Essay on law: leaving behind the inquisitorial system

2452 Words Feb 17th, 2014 10 Pages
Leaving behind the Inquisitorial System
29/11/2012

In the modern world, competition is the bond that holds society together. Every person can relate to it whether that competition is within a sport, video game, or a court hearing. The Canadian legal structure operates on the adversarial system. Neil Brooks defines an adversarial system as one in “which the parties and not the judge have the primary responsibility for defining the issues in dispute and for carrying the dispute forward through the system” (Brooks, The judge and the Adversary system.p.341-353). Within the adversarial system the judge has less of a role. He’s passive due to his lack of participation in the fact-finding. Its opposing system is the
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The second aspect of party-autonomy is that the parties have the responsibility for defining their dispute (Brooks, The judge and the Adversary system.p.341-353). The judge will not insist an anterior dispute that might further the case. For instance, if the offender is charged with recklessness, but he should be charged for manslaughter then the judge will not insist the victim change the dispute. Party-autonomy reflects the laissez-faire philosophy, in a sense which it is free from government control. The second branch is party-prosecution. Within this premise the parties are able to choose the manner they wish to present their case (Brooks, The judge and the Adversary system.p.341-353). There are two big assumptions associated with party-prosecution. Firstly, the legitimacy with adjudication is enhanced if it’s used within the adversarial system, and secondly, the more accurate fact-finding would take place since the parties would be operating on motivation (Brooks, The judge and the Adversary system.p.341-353). Both principles are legitimate because it’s in line with the liberal idea that every individual should be left alone to operate on his own accord (Brooks, The judge and the Adversary system.p.341-353). The inquisitorial system differs from adversarial in 5 different ways.
The
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