: English for Law Students. 2 year. Part 2 - ( ..)


: 1569

Text 6 judicial systems

Legal systems based on the common law tradition, such as those in England, Canada, and the United States, are typically contrasted with civil law systems, which are found in many Western European countries, much of Latin America and Africa, and parts of Asia. Civil law and common law systems have entirely different approaches to criminal procedure. Most countries with civil law systems use what is known as the inquisitorial system. Common law countries use what is called the adversarial system.

Inquisitorial System

The inquisitorial process is characterized by a continuing investigation

conducted initially by police and then more extensively by an impartial examining magistrate. This system assumes that an accurate verdict is most likely to arise from a careful and exhaustive investigation. The examining magistrate serves as the lead investigator an inquisitor who directs the factgathering process by questioning witnesses, interrogating the suspect, and collecting other evidence. The attorneys for the prosecution (the accuser) and defense (the accused) play a limited role in offering legal arguments and interpretations that they believe the court should give to the facts that are discovered. All parties, including the accused, are expected (but not required) to cooperate in the investigation by answering the magistrate's questions and supplying relevant evidence.

The case proceeds to trial only after completion of the examining phase and

the resolution of factual uncertainties, and only if the examining magistrate determines that there is sufficient evidence of guilt. Under the inquisitorial approach, the trial is merely the public finale of the ongoing investigation. At this point, the accused assumes the burden of refuting the prima facie (apparent) case of guilt developed in the examining phase. Critics argue that the inquisitorial system places too much unchecked power in the examining magistrate and judge, who both investigate and adjudicate (legally determine) the case.

Adversarial System

In a common law system, an adversarial approach is used to investigate and adjudicate guilt or innocence. The adversarial system assumes that truth

that is, an accurate verdictis most likely to result from the open competition between the prosecution and the defense. Primary responsibility

for the presentation of evidence and legal arguments lies with the opposing parties, not with a judge. Each side, acting in its self-interest, is expected to present facts and interpretations of the law in a way most favorable to its interests. The approach presumes that the accused is innocent, and the burden of proving guilt rests with the prosecution. Through counterargument and cross-examination, each side is expected to test the truthfulness, relevancy, and sufficiency of the opponent's evidence and arguments.

The adversarial system places decision-making authority in the hands of neutral decision makers. The judge ascertains the applicable law and the jury determines the facts. The system emphasizes procedural rules designed to ensure that the contest between the parties is a fair fight. Critics of the adversarial approach argue that the pursuit of winning often overshadows the search for truth. Furthermore, inequalities between the parties in resources and in the abilities of the attorneys may distort the outcome of the adversarial contest.

The Soviet Legal System

Law in the Soviet Union changed considerably in the early 1990s, as a result

of dramatic reforms in Soviet life initiated by President Mikhail Gorbachev. The traditional view of law as an instrument of state to further the aims of Communist ideology was discarded, and ultimately the Soviet Union itself ceased to exist. The following discussion deals with the Soviet legal system from the Russian Revolution up to the time of Gorbachev.

Soviet law reflected the strong presence of the state in the lives of the people. The law codes covered virtually every activity in which the state and its citizens were engaged. There were extensive regulations concerning the ownership and management of property. At the heart of these regulations was the provision that the state owns and operates all the means of production.

In the area of criminal law, new definitions of crime emerged under Stalin

that reflected socialism. Along with the traditional crimes dealt with in other legal systems crimes against persons and property the Soviet Union added certain economic crimes and counterrevolutionary activities. Undertaking religious activity also fell within the sphere of the criminal code until 1990. The court system of the Soviet Union was established by the judiciary act of Oct. 31, 1922. At the local level there were people's courts with a full-time judge and two lay judges, who were selected for a few days of service from a panel of local citizens. Appeals from the people's courts went to provincial courts, which also had original jurisdiction in certain security, criminal, and civil cases. At the top of the legal system was the Supreme Court of the Soviet Union. It heard cases on appeal from the provincial courts, but it was also responsible for disciplining the lower courts, issuing rulings to interpret the legal codes, and trying cases of a significant nature to the state.

In the Soviet Union there was no separation of powers as there is in the United States, and the courts were therefore subject to the legislative authority. The United States Supreme Court can declare an act of Congress unconstitutional. No such possibility existed in the Soviet Union.


B1. Write a brief instruction to a member of a jury on the

procedure of a trial.

B2. Choose one of the following statements as an essay topic and provide arguments to support (oppose) it.

1. A jury consists of twelve persons chosen to decide who has the better lawyer

Robert Frost

2. The jury system puts a ban upon intelligence and honesty, and a premium upon ignorance, stupidity and perjury.

S. L. Clemens

3. There is no such thing as an impartial jury because there are no impartial people.

Jon Stewart