Adversarial Justice

The Adversarial System

Adversarial justice is one of two common dispute-resolution forms found around the world, the other being the inquisitorial system. Adversarial justice is typically based on the common law tradition, which operates on a case-by-case basis and in which the law is applied to new circumstances where the facts are in dispute. Adversarial justice is practiced in the United States and in many other the countries influenced by Great Britain and the common law system.

Adversarial justice is distinguished from other systems of justice by three key elements discussed by Landsman (1988): a neutral and passive fact finder, the presentation of arguments by the parties in the dispute, and the use of legally defined rules of argument. The neutral fact finder acts as an objective referee and makes sure that the arguments of attorneys are legitimate and conform to the procedural rules of the system. The judge or jury has the power to decide or adjudicate the case based on the side that presents the most compelling argument under the legally defined standards of argument. The disputants are typically represented by counsel who present their arguments to the neutral fact finder. Counsel or attorneys are legal professionals who help the parties negotiate what is often a complex set of legal procedures and who argue before the judge or jury. Arguments under the adversary system are based on the presentation of factual evidence that is structured according to existing law and legal procedures.

The adversarial system differs from inquisitorial systems, which are based on the Roman canon system and are found primarily on the European continent, in [Page 6]such countries as France, Germany, and the members of the former Eastern block. In inquisitorial systems, power is more centralized in the hands of the judge, who uncovers the truth through active inquiry.

Other systems of justice, such as mediation and victim-offender reconciliation, have developed around the world. In these systems, the neutral official seeks to foster communication between the disputing parties and aids them in coming to their own solution to the dispute or crime. In criminal mediations, individuals typically agree to some form of restitution, and they may apologize for their wrongs. In these more consensus-oriented justice styles, the parties are not battling for a finding of guilt, but instead are working together to reach reconciliation after guilt is determined. The ultimate goal of such proceedings is to heal the victim and to bring the offender back into society. In civil varieties of mediation, individuals must communicate their side of the dispute to the other party (rather than to the neutral or judge). The mediator's job is to keep the parties talking, to keep the discussion constructive, and eventually, to help the parties reach an agreement and in put it on paper.

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