There are two systems in jurisprudence, which define the method in which courts come to their decisions. The first one is adversarial system, in this system, the judge hears the arguments of the councils of the two parties and gives his decision on the basis of the arguments presented before him. Stricto senso, it means that the judge has to base his judgment on the arguments presented before him and the mind of the judge is supposed to be a tabula rasa that is a blind slate.
Whereas, in the second system which is known as the inquisitorial system, the judge can inquire into the facts of the case and is not bound to base his decision on the arguments presented by the counsels of the parties in front of him.
The adversarial system in my opinion is based on the assumption that both the counsels would present the best arguments for their respective clients and as the interests of the two clients are completely opposite, so these two sets of arguments will cover the most important aspects of the case. Whereas the inquisitorial system does not accept the above stated assumption. In my opinion this approach of the inquisitorial system is more suitable for the final aim of the courts to do complete justice. This opinion is based on the following argument, the adversarial system basically assumes a hundred percent efficiency in the system of presentation of the best arguments for both the parties, this in my opinion is not a valid assumption because, many a times the counsels for external considerations might not present the best arguments in front of the courts or maybe even if they do not do so intentionally it may be a result of the wrong understanding of law or that they overlooked some fact or legal position. My basic argument is that the system of presenting the best arguments is not a hundred percent efficient in the presentation of the whole picture and hence the courts should not base their judgments only on the arguments presented before them.
I will now present, two examples of the inefficiency of the adversarial system, the first example is the BMW case, in this case, the counsel for the prosecution was seen accepting bribe from the defense counsel for throwing away the case. This in my view is the best example, where the adversarial system will result in an information asymmetry and the courts will end up giving a judgment which is not in the interests of justice, equity and good conscience(Copyright Law School Lingo).
The second example is that of the Nikita Mehta case. I am using this case, to show that many times even if the best and all possible legal arguments are presented before the court, still if the judgment is based only on these arguments, the court still might not give a completely just and equitable decision. Let us suppose that the counsels in this case, presented the complete set of legal arguments possible in this case, and the judge based his judgment upon those arguments, then as this case is about a act which has other social ramifications, the judge in my view should have taken social arguments into consideration as well, but as such arguments are generally not presented and hence in a adversarial system not taken into consideration, so the judgment might not be fully correct. In my view the judgment given in this case suffers from this defect, as the judge did not consider the social ramifications of his judgment, the ramification being that the judgment will result in increase in spate of illegal abortions as couple's will now be hesitant to come in front of a system, which aims to apply its anti-abortion laws by the letter, not taking into consideration aspects other than those in medical in nature for allowing abortion.
Thus, on the basis of the above arguments, I would like to conclude that, a judicial system is better off not following the adversarial system, but rather following a mix of the adversarial and inquisitorial or only the inquisitorial system, for fulfilling its aim of meting out complete justice.
Whereas, in the second system which is known as the inquisitorial system, the judge can inquire into the facts of the case and is not bound to base his decision on the arguments presented by the counsels of the parties in front of him.
The adversarial system in my opinion is based on the assumption that both the counsels would present the best arguments for their respective clients and as the interests of the two clients are completely opposite, so these two sets of arguments will cover the most important aspects of the case. Whereas the inquisitorial system does not accept the above stated assumption. In my opinion this approach of the inquisitorial system is more suitable for the final aim of the courts to do complete justice. This opinion is based on the following argument, the adversarial system basically assumes a hundred percent efficiency in the system of presentation of the best arguments for both the parties, this in my opinion is not a valid assumption because, many a times the counsels for external considerations might not present the best arguments in front of the courts or maybe even if they do not do so intentionally it may be a result of the wrong understanding of law or that they overlooked some fact or legal position. My basic argument is that the system of presenting the best arguments is not a hundred percent efficient in the presentation of the whole picture and hence the courts should not base their judgments only on the arguments presented before them.
I will now present, two examples of the inefficiency of the adversarial system, the first example is the BMW case, in this case, the counsel for the prosecution was seen accepting bribe from the defense counsel for throwing away the case. This in my view is the best example, where the adversarial system will result in an information asymmetry and the courts will end up giving a judgment which is not in the interests of justice, equity and good conscience(Copyright Law School Lingo).
The second example is that of the Nikita Mehta case. I am using this case, to show that many times even if the best and all possible legal arguments are presented before the court, still if the judgment is based only on these arguments, the court still might not give a completely just and equitable decision. Let us suppose that the counsels in this case, presented the complete set of legal arguments possible in this case, and the judge based his judgment upon those arguments, then as this case is about a act which has other social ramifications, the judge in my view should have taken social arguments into consideration as well, but as such arguments are generally not presented and hence in a adversarial system not taken into consideration, so the judgment might not be fully correct. In my view the judgment given in this case suffers from this defect, as the judge did not consider the social ramifications of his judgment, the ramification being that the judgment will result in increase in spate of illegal abortions as couple's will now be hesitant to come in front of a system, which aims to apply its anti-abortion laws by the letter, not taking into consideration aspects other than those in medical in nature for allowing abortion.
Thus, on the basis of the above arguments, I would like to conclude that, a judicial system is better off not following the adversarial system, but rather following a mix of the adversarial and inquisitorial or only the inquisitorial system, for fulfilling its aim of meting out complete justice.
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