November 16, 2013

Out of the Darkness.

History has seen many horrific injustices.  Tyrannical rulers, brutality, slavery… the list goes on.  Yet, I was surprised to learn about certain historic methods of dispute resolution.

For example, in the Middle Ages, one method of dispute resolution was trial by ordeal.[1]  This method was practiced several different ways, but usually, the accused was forced to participate in some kind of physically injurious act such as carrying a red-hot iron (‘ordeal of iron’) or dipping their arm into boiling water (‘ordeal by hot water’).[2]  If the person’s wounds healed within a certain period of time then the accused was deemed innocent, but if they did not heal with in the set period of time the person was guilty.[3]

Another method used during this time was trial by combat.  This saw the parties to the dispute go head to head in a gladiatorial style battle until either one of the competitors surrendered or was killed.  The winner was then declared innocent.[4]

This got me to thinking about our system of dispute resolution.  As a common law legal system our courts use the adversarial system.  The adversarial system requires that the parties involved perform their case using a competitive approach, with the judge being involved as an impartial referee.[5]  Although there are strict procedural rules put in place for this system to be run smoothly, there is one thing I feel it lacks – the pursuit of truth.

Comparatively, the inquisitorial system used in courts of civil law legal systems, is an inquiry into the truth.[6]  All parties, including the judge, are involved in the investigation of the facts to arrive at the truth.[7]

Is our current adversarial system the ideal and most just system that could be in place?  I know nothing is perfect, but it seems that it has a lot of room to improve.  It seems to me to be a system that insists parties make self-interested arguments, and while legal professionals are bound to abide by certain rules of conduct, there is the possibility that important facts of a case can often be omitted.[8]

Fortunately, everything is constantly in a state of evolution.  Unlikely as it presently seems, it may be that our current system for dispute resolution will at some point seem as barbaric and primitive as trial by ordeal.  But, for now, these are just my opinions.

[1] Nikolas James and Rachael Field, The New Lawyer (John Wiley & Sons Australia, Ltd, 2013) 171.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Ibid.
[7] Ibid.
[8] Ray Finkelstein, ‘The Adversarial System and the Search for Truth’ Monash Law Review (2011) 37 (1) <>.