adversarial system | Definition

Doc's CJ Glossary by Adam J. McKee
Course: Introduction

An adversarial system is a  legal system of common law origin where two parties advocate opposing positions and a neutral finder of fact, such as a judge or jury, determines the truth in a matter.

Contrast with an inquisitorial system.

An adversarial system is a legal system that is designed to resolve disputes between two opposing parties. It is based on the common law tradition and is widely used in countries such as the United States, Canada, and the United Kingdom. The adversarial system is built around the idea that two parties in a dispute are best equipped to present their cases to a neutral third party, who will ultimately determine the truth in the matter. This system is in contrast to the inquisitorial system used in some civil law countries, where a judge or panel of judges plays a more active role in gathering and presenting evidence.

Under the adversarial system, each party to a dispute is responsible for presenting their case to a judge or jury and for challenging the case presented by the other party. The parties are typically represented by legal counsel, who act as advocates for their clients. The goal of each advocate is to persuade the judge or jury that their client’s position is the correct one.

One of the key features of the adversarial system is the principle of procedural fairness. This means that each party has an equal opportunity to present their case and to challenge the case presented by the other party. The judge or jury must remain impartial and must base their decision solely on the evidence presented in court.

Another important feature of the adversarial system is the requirement for disclosure of all relevant evidence. Each party is obligated to disclose all evidence that is relevant to the case, even if it is detrimental to their own position. This ensures that the judge or jury has all the information necessary to make an informed decision.

The adversarial system is often criticized for its emphasis on winning and losing rather than finding the truth. Critics argue that skilled advocates can manipulate the system and that it can be unfair to parties who cannot afford high-quality legal representation. Others argue that the system is too time-consuming and expensive and that it can result in decisions that are based on technicalities rather than substantive issues.

Despite these criticisms, the adversarial system remains the most widely used legal system in common law countries. Its strengths lie in its ability to provide a fair and transparent process for resolving disputes and its reliance on impartial third parties to make decisions based on the evidence presented in court. The system also allows for a great deal of flexibility in the presentation of evidence, which can be beneficial in complex cases.

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Last Modified: 03/30/2023

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