Disadvantages of the Adversarial System
Published 27 Jul 2016
The adversarial system forms the basis of legal proceedings in most developed countries. The analysis shows that the advantages of the adversarial system of legal proceedings such as compliance with the interests of the parties, the thoroughness of working out the actual material by the litigants, the fairness, and fairness of the competition easily turn into its shortcomings. Clear competitiveness is not feasible. It needs constraining barriers. Honest competitiveness is possible only if there are appropriate legal and factual preconditions, and in this connection, there are questions of guarantees of access to justice such as ensuring equal access to a lawyer and legal assistance.
In any case, adversarial system corresponds to the nature of things. Plaintiff and defendant are better than other participants in the process familiar with the actual side of the matter and, in addition, they are most interested in resolving the dispute that has arisen between them. The thoroughness of the investigation of the factual side of the matter is also guaranteed by the fact that in a competitive trial system, a party with a weak position or its lawyer will be forced to give complete information about the circumstances of the case than in cases where the process is investigative. This system has both advantages and shortcomings. Examining the “pros” and “cons” of adversarial system, one can come to the conclusion that building a process on the basis of “pure” adversariality, understood as the principle of a “sleeping” court, with all the parties involved in the process, has more positive moments, but still there are major negative ones. These moments can be summed up to the two main facts. There are the different legal preparedness of the plaintiff and defendant and the unequal material condition of the parties involved in the process.
There are the following disadvantages of the modern adversarial system. With the predominance of the principle of competitiveness, understood as the principle of “sleeping Court,” “the court with blindfolds,” the court risks to become a soulless machine in the hands of the plaintiff and defendant. This situation does not correspond to the dignity of it as an authority. Not only private individuals are interested in the protection of civil rights. The aggregate of private rights that are adequately protected constitute the rule of law, the state and society are interested in maintaining of, therefore the court should not be indifferent to the one who wins the dispute, but, trying to establish the actual rights and obligations of the plaintiff and defendant, to encourage a victory of the party who is really right.
The adversarial system also contributes to the injustice decision. The principle of competitiveness forces the court to decide the decision on the basis of not all materials of the case, but only those that are submitted by the parties. In order to disclose the objective truth in the case, the judicature should enjoy unlimited freedom in researching the case materials from the actual side, including collecting evidence on the case. If the hands of the court are related in this respect, the goal of the process is not objective south (establishing the actual circumstances of the case), but the formal (the correspondence of the court’s conclusions to the data submitted by the plaintiff and defendant) one.
Although the principle of competitiveness is justified by the interests of the litigants, in reality, it does not provide them. The parties are interested in the judicature taking into account all the arguments in their favor, including those to which they did not refer, for example, because of ignorance of the law. Competitiveness makes it impossible for the court to assist the party that needs it. Competitiveness is quite appropriate in the conscientiousness of the parties, but if the parties hide the facts and confuse the matter, it is difficult for the court to deal with it.
- Martin, B. The Adversarial model in the criminal justice system: what change is happening? Speech delivered at the Heads of Prosecuting Agencies in the Commonwealth Conference, 23-26 September 1997, Wellington, New Zealand. Retrieved 23 September 2007
- Davis, G.L. A Modified Adversary System: How Different Is it from Yours? Retrieved 23 September 2007