Author: Monalisa Chandra, PhD Scholar.
Common Law (Schmiegelow, 2014) and Civil Law (“Common Law and Civil Law,” 2022) are two of the most common kinds of legal systems in use across the world. An adversarial style of law, the Common Law, is often practised in nations such as England, India, Australia, and the United States of America. Civil law in Spain, China, Japan, and others is of the inquisitorial kind.
It was common to refer to the English legal trial procedure as the adversarial process (Ellison, 2002). Legal prosecutors/lawyers conducted thorough trials and investigations to determine the guilt or innocence of a defendant and the other party, and then used that information to reach a theoretical and spoken agreement in court. The judges were only umpires for the facts, relying on precedents to make their decisions. Consideration was given to the presumption of innocence. The accused of a crime has the right to remain silent until he or she is proven guilty. The subject could not be cross-examined because of the Right to Silence. Without cross-examination, the defendants may be forced to testify in court. Due to the methods and misleading evidence, the Judges were completely unbiased in their decision making process. The right of the accused to be represented by a lawyer was rejected, thus the evidence must be presented by a prosecutor (Sherman, 1917).
Before the establishment of the Catholic Medieval Church, until the adoption of Inquisitorial system in 12th century, the legal system relied only on Adversarial system. However, this method was shown to have several weaknesses, such as the purchase of fraudulent witnesses and trial failures in which the Act was not proven. A more precise judicial system, the Inquisitorial System, was thus implemented. When it came to researching the matter and determining whether or not the actor was guilty, the Judges took the lead. Prior to the defendant's appearance in court, they were informed of the facts of the case. The judges had complete discretion in making their decisions, and there was little or no precedent to guide them. Jury verdicts were combined and a two-thirds majority was needed to convict an offender (Mousourakis, 2017).
Papal improvements in the ecclesiastical (“Ecclesiastical Law Society,” 2001) courts system, allowing the judge to intervene and call witnesses in investigations, date back to 1198, when Pope Innocent III made significant changes. Accused/witnesses testified in secret. The Fourth Lateran Council approved the usage of inquisitorial system in 1215. They were then established across Europe and the United Kingdom and quickly became the primary method of resolving disputes.
King Henry VIII created independent secular courts in England in the 1160s, which followed the inquisitorial system. Inquisitorial and adversarial systems were still used in secular common law courts. When a court administered an inquisitorial oath, the defendant and witness had to swear to tell the truth in order for the case to proceed. In the European Civilian Legal System, this practise grew increasingly popular and was institutionalised. After the French Revolution, a more lucid form of the inquisitorial system emerged in France and Germany. This spread to other continents after that.