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Do adversarial legal systems obstruct compromise?

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Celebaelin
1368748.  Fri Dec 18, 2020 5:51 pm Reply with quote

Not thinking of any current events in particular of course...

Does the adversarial nature of UK Law predispose negotiators towards a belligerent stance? Does the mentality instilled by inquisitorial systems generate a subconscious expectation of oversight which will not be forthcoming in international political negotiations? Does it remove the element of ego in the development of negotiating style? Does it engender a tendency towards resignation to the over-arching power of the state? Does it actually make no difference at all?

Inquisitorial legal systems are a lot more common than you might imagine btw - they are used basically everywhere not influenced by the UK legal system be the code used Napoleonic, Roman, Islamic or what have you.

 
Brock
1368773.  Sat Dec 19, 2020 5:55 am Reply with quote

What do you mean by the "UK legal system"? There are three separate ones in use (England and Wales, Scotland, Northern Ireland).

 
Celebaelin
1368777.  Sat Dec 19, 2020 6:26 am Reply with quote

They are all based on adversarial rather than inquisitorial principles are they not? I thought this was a rare example of my intent being clear!

 
Brock
1368781.  Sat Dec 19, 2020 6:34 am Reply with quote

I'm not a legal expert by any means, but I understood that the Scots law system was based on a combination of civil law and common law.

However, Wikipedia says "in some mixed civil law systems, such as those in Scotland, Quebec, and Louisiana, while the substantive law is civil in nature and evolution, the procedural codes that have developed over the last few hundred years are based upon the English adversarial system".

So I suppose it's reasonable to talk about "the adversarial system" as applying throughout the UK.

 
PDR
1368792.  Sat Dec 19, 2020 7:45 am Reply with quote

Brock - you are talking about the structure of the legislation. Cel is talking about the court process. In the UK (all of the UK) we use the adversarial model in which one party puts a case and the other answers it, all in front of a passive magistrate, judge and (sometimes) jury, at the end of which the magistrate, judge and/or jury decide whether the case was proven to the required standard. We use this model for both criminal and civil processes and its origins go back to Edward II. Those parts of the world whose legal systems were exported from Britain tend to use this model.

In much of Europe (and the parts of the world who they exported THEIR legal systems to) they use a different "inquisitorial" model in which an *active* judge leads the discovery of truth by hearing and interacting with the advocates for the parties and then either the inquisitor or the jury decide whether the case is proven.

Both have their merits - there is a good informed discussion of the relative merits of the two in the early chapters of "Stories of the Law and how it is broken" by The Secret Barrister. The principle advantage claimed by the proponents of the inquisitorial model is that it is less prone to legal shenanigans and tactical behaviours, because the inquisitor is deemed able to ignore them. The principle criticism of the inquisitorial model is that it requires a goodly supply of inquisitors who are both extremely skilled and also possessed of almost inhuman levels of detachment and disinterest to ensure any prejudgement and prejudice does not unduly influence the outcome. Critical suggest the presumption of innocence is therefore less assured in the inquisitorial model.

PDR

 
Brock
1368798.  Sat Dec 19, 2020 8:59 am Reply with quote

PDR wrote:
Brock - you are talking about the structure of the legislation. Cel is talking about the court process. In the UK (all of the UK) we use the adversarial model in which one party puts a case and the other answers it, all in front of a passive magistrate, judge and (sometimes) jury, at the end of which the magistrate, judge and/or jury decide whether the case was proven to the required standard.


Well I'll take your word for it. I was under the impression that the Scottish system had elements of both, as suggested here:

"While the trial in the Scottish system is clearly adversarial, the relevance of this concept to other stages of the process is open to doubt. This is because there are stages in Scottish criminal process which are designed to be inquisitorial in nature, taking the form of something more like the continental search for the truth of the facts of the case than of a contest."

https://www.crimeandjustice.org.uk/sites/crimeandjustice.org.uk/files/09627259608553353.pdf

But this is detracting from the original point, so I'll leave the discussion to people who know more about it.

 
Leith
1368813.  Sat Dec 19, 2020 1:59 pm Reply with quote

My experience with trade negotiations is on the corporate rather than Government side, and mainly involved with the technical rather than legal detail, but I'm more used to seeing the legal side handled by solicitors rather than barristers, so not usually people whose experience is from the adversarial domains of UK law.

I think as regards the Brexit negotiations, the UK team is characterised by a different background of adversity. They are political campaigners, whose Government has been characterised as being run more like an ongoing campaign than an operational executive, and whose mandate to engage in these negotiations was secured by demonising the organisation with which they are now required to negotiate, while promising both the cake and the eating of it to those on whose behalf they negotiating.

It's no surprise under the circumstances that the negotiations are giving the impression of being conducted in a spirit of adversity and mistrust, rather than constructive co-operation.

 
bobwilson
1368926.  Sun Dec 20, 2020 7:58 pm Reply with quote

short answer - no - long answer - fuck no

i do think the original post would have some artistic merit if rendered in an inquisitorial, soft-southern USA mode

Quote:
Does the adversarial nature of UK Law predispose negotiators towards a belligerent stance? Does the mentality instilled by inquisitorial systems generate a subconscious expectation of oversight which will not be forthcoming in international political negotiations? Does it remove the element of ego in the development of negotiating style? Does it engender a tendency towards resignation to the over-arching power of the state? Does it actually make no difference at all?


Ah jest ask 'cos I wanta kno, billy bob

 
Leith
1368929.  Sun Dec 20, 2020 8:13 pm Reply with quote

As regards impact on international negotiations, I think you could make a stronger argument for the impact of the UK's first-past-the-post electoral system that promotes bi-partisan politics over coalition.

 
bobwilson
1368930.  Sun Dec 20, 2020 8:18 pm Reply with quote

Before you start to question electoral systems (which, almost by definition, invariably have the unquestionable assent of the majority of the population in a given area)

you need to ask questions about the broader systems in place

 

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