By: Ralph G. Smith and Daniel Smith
Most of us who are part of the common law system of justice will always regard it, even with its problems, as the best available. The civil law system has its devout followers, too, however. The end to be sought- – justice- -is the same, but the approaches are different, and each system is subject to its own brand of abuses. As one writer, Jerome Frank, put it, the adversary system is based on the “fight theory”, whereas the inquisitorial system is based on the “truth theory”. Either system working to the level of its ideal will undoubtedly provide substantial justice, but, obviously, neither system has consistently reached that level.
The two systems, in some respects, are slowly converging. The criminal law is certainly now codified in detail in every state in the union, and the duty of the prosecutor and the court is to find the correct “box” in which to place the charge. With the growing use in the United States of discovery and depositions even in criminal trials, the civil law system of making the record before the trial does not now seem so strange. And consider the matter of sentences: there are now strict federal guidelines for sentencing, and state legislatures, ever distrustful of “soft” judges, are increasingly likely to impose mandatory sentences in a variety of cases. The civil law’s insistence upon the legislature having the last word in such matters cannot now be regarded by the common law lawyer as something all that unusual.
In some common-law jurisdictions the principle of stare decisis is being eroded to some degree. In Arizona, for example, certain appellate decisions are, by rule, not to be regarded as precedent, and even published decisions may be “depublished.” See Arizona Supreme Court Rule 111(c).
On the other side of the coin, or border, if you will, we have a growing pressure for more use of juries, despite the reservations expressed by many, to provide an insulation from sometimes corrupt elements of the judicial system. In addition, the demand for public, oral trials has increased dramatically during the last few years, fueled by outrage over the human rights violations which have occurred in many areas of Latin America. In some areas, new codes are being proposed which would remove the judge from the investigation of crimes and replace him with the fiscal, resulting in a procedure similar to that of the common law.
So, as time goes by, some aspects of each system appear in the procedures of the other. It is doubtful that there will ever be a total convergence of the systems, in view of their centuries of individual development, but perhaps each system may someday become acceptable and understandable to proponents of the other.