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.
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) <http://www.austlii.edu.au/au/journals/MonashULawRw/2011/8.pdf>.