Kinley, David --- "Legal Transplants: ALRC Review of the Adversarial System of Civil Litigation" [1996] ALRCRefJl 13; (1996) 69 Australian Law Reform Commission Reform Journal 40

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ALRC Reform 69

LEGAL TRANSPLANTS?
alrc review of the adversarial system of civil litigation

The mix in Australian law

Europe - a legal laboratory

The respective roles of judges

Conclusion

The Australian Law Reform Commission (ALRC) is currently examining the adversarial system of litigation in Australia with respect to administrative law, family law and civil litigation proceedings in courts and tribunals exercising federal jurisdiction. The terms exclude any analysis of criminal proceedings. Although it is still in its early stages the review has already generated a considerable amount of interest.

The aim is to identify the adversarial features of our litigation system that impede desirable reforms. This will entail some comparative analysis of corresponding proceedings in other jurisdictions, including those which are based on an inquisitorial model of litigation, both to see how things are done elsewhere and to assess whether we might adopt similar approaches and techniques.

In this article, ALRC Legal Specialist Dr David Kinley compares the two systems and looks at the benefits and problems of transplanting legal features between them.

The adversarial system of litigation, invariably associated with common law jurisdictions, is often contrasted with the inquisitorial system, usually associated with civil code jurisdictions. These two systems differ in manner and form.

In common law jurisdictions such as Australia, law is a mixture of judge-made case law, ie broad legal statements extrapolated from cases with like circumstances, and legislation which is detailed and intended to be definitive. The traditional, common law, role of a judge is quite passive; it is left to the litigating parties to determine the content and the manner of proceedings. The judge referees the ensuing legal battle and is the final arbiter of the matter - hence the 'adversarial' label for this system.

The law in the civil tradition takes the form of broadly-stated legal principles contained in codes. In what is basically an exercise in deduction, these codes are applied to specific circumstances of a case. The litigation process places judges in a pro-active position; their role is to take charge of the case to determine what is and is not to be pursued and precisely how the proceedings are to be conducted. In short their approach is actively to inquire - hence the label 'inquisitorial'.

In reality, there exists no 'pure' inquisitorial or adversarial system. They are two ideal types and as such, the terms are used as conceptual tools to help understand, explain and compare various legal systems.

Today, elements that are more readily associated with one or other system are often to be found in the other. The increasing prominence and significance of international law since the second World War and the accompanying exposure of different legal systems to each other has certainly resulted in better understanding and appreciation (and also, it must be said, some suspicion and criticism) of other legal traditions and methods. Law, to yield to the temptation of a hackneyed phrase, is more globalised than ever.

The continued existence of differences between systems strongly indicates that each system is itself an expression of social, political and cultural peculiarities. The grafting of features of one system onto another, therefore, is by no means guaranteed of success, no matter how admirable the features in question might be. Aspects of other systems, even superficial ones, are, by definition, part of another system; intricately interwoven in the legal fabric of that jurisdiction. These legal, social and political contexts must always be taken into account.

Italy, which is predominantly an inquisitorial system, recently transplanted a number of adversarial features into its new system of criminal litigation. The experience provides a salutary warning. A study by Pizzi and Marafioti of this graft revealed that passive defence lawyers and bureaucratic prosecutors were culturally ill-suited to the new 'adversarial contest'. They were not disposed to fight the case or motivated to seek the efficient resolution of criminal cases.

Just as the Italian experiment suffered in transplanting adversarial features onto a civil system, our modifications of the adversarial approach could likewise encounter difficulties. The inquisitorial system strikes a balance of forces different to our own. Any borrowing of non-adversarial features must take into account the effect on the balance. The reform may actually add new problems to the adversarial system.

Bestowing inquisitorial powers upon an adversarially-trained judge is likely, in the opinion of prominent US judge Justice Frankel, to lead to the judge becoming a 'blind, blundering intruder, acting in spasms as sudden flashes of seeming light may lead or mislead him at odd times'.

Still, it is quite possible to see the value of using specific features of other systems when they are pared back to their essential functional base - that is, by asking what is their objective? At this point one is better able to make comparisons, to learn from the experience and perhaps adopt methods or approaches to suit one's own legal system.

The mix in Australian law

The impact of non-adversarial litigation procedures has long been evident in Australian law, in spite of our adversarial legal heritage. The whole notion of discovery, for example, is a classically inquisitorial mechanism that has been with us for more than 100 years. The fact that the discovery process has been hijacked by an undeniably adversarial approach has in turn prompted a more interventionist approach by the courts in an effort to curb resultant excesses.

In addition, over the last 20 years or so a number of developments have borrowed heavily from the inquisitorial system. Obvious examples are to be found in the fields of family law - with the many conceptual and procedural innovations that have been introduced under the Family Law Act 1975, and in administrative law - in particular, with the establishment of the myriad of tribunals. More recently in some State jurisdictions there have been significant, judicially inspired, procedural innovations in civil procedure centring on 'case management' strategies.

The terms of reference of the inquiry direct the ALRC to these areas. They are seen as the areas most likely to benefit from adaptations borrowed from the inquisitorial system. Moreover much that has been achieved so far in these areas has yet to be properly evaluated. That in itself will be an important function of the review.

Europe - a legal laboratory

Europe offers a particularly rich mixture of experience, tradition, reflection and innovation for comparative analysis. The birth places of the two systems are to be found here - common law/ adversarial in England and civil law/inquisitorial in France. Despite their geographical proximity, the two have, until recently, developed in isolation from one another. Since the United Kingdom joined the European Community in 1972, the two traditions have been forced directly to recognise, accommodate and sometimes to confront each other within the developing medium of European Community (EC) law.

Both have contributed to the unique form of EC law - though the influence of the civil code is more apparent than that of the common law. This has been due to two facts: first, that only two of the (now) 15 Member States are common law systems - the United Kingdom and Ireland; and second, the fact that the EC was the product of, and had been nurtured by, the civil code countries that made up the EC in the first 20 years of its existence.

The legal laboratory of Europe provides us with valuable insights into how things can been done differently and what benefits and problems one might expect to result from any changes made to our own system.

I recently visited Europe on behalf of the ALRC and in conjunction with the European Union Visitors Programme. It was clear to me that legislators, public servants and judges in the Member States as well as within the European Union itself have all been affected by the melding of two broad legal traditions. The questions of sovereignty and jurisdictional boundaries have exercised the minds of parliamentarians and judges alike. Public servants and policy-makers in particular have had to come to terms with the different forms of EC law; and judges and their courts have been exposed to unfamiliar procedures, methods of argument and means of interpretation. Out of these experiences - which are as yet far from fully investigated or appreciated, even in Europe - lessons can be learnt.

The respective roles of judges

One of the most striking areas of difference between the two legal systems lies in the respective roles of judges. In France, a judge operates more as a decision-maker in the continuum of the governing process than as the final arbiter of a dispute. As Antoine Garapon, the Director of the Institut des Hautes Etudes sur la Justice - a body concerned primarily with the ongoing education and development of French judges - has remarked 'the culture of [common law] judges is centred on the audience as opposed to the French whose culture is centred on the dossier'. French judges are not accorded anything like the respect and reverence that we accord our judges - the vaulted status of 'top of the legal pile' in France is bestowed on the leading academic lawyers. A sobering thought indeed!

A civil code judge is also less-bound by precedent than common law judges. He or she can be seen as a public servant in a robe, who openly weighs up policy objectives and prevailing community values as they relate to the case in order to reach the just outcome. They are expected to consider a wide range of social economic and political principles. In Australia we are only now coming to terms with the fact that judges do 'make law' by filling in legal principle where none is otherwise provided and by applying the law in a manner which is consistent with community expectations.

Civil and common law judges are products of their respective systems of legal education and training. The adversarial system trains the players of the legal system - the lawyers - then selects judges from the ranks of experienced practitioners. It is impossible to say with certainty who, out of the current crop of young barristers and solicitors in Australia, will become the judges of tomorrow.

The inquisitorial systems stress training for the ultimate decision-makers - the judges - from the start. One of the destinations during my visit was the Parisian branch of the Ecole Nationale de la Magistrature (National School for Judges). Each year, the school takes 200 or so students fresh out of law school for the 31 month course that all judges in France must now complete before they can practise. As well as legal subjects, the curriculum includes for example, topics on cultural studies, the economy, juvenile delinquency and other pressing social questions. These young students are embarking on a very different career from practising lawyers (avocats) in France and certainly different from their judicial counterparts in Australia.

The expectations made of, and the actual roles played by, judges and lawyers in the Australian legal system compared to other jurisdictions will clearly bear on many aspects of the inquiry.

Conclusion

The ALRC's review is an ambitious one. It will undoubtedly constitute a step in the ongoing process of interchange between legal systems. Throughout, the ALRC will be assisted by an Advisory Group and working groups including judges, lawyers and litigants which will provide strategic guidance as well as specific and detailed advice on aspects of the reference. The Review is to be conducted over a period of two and a half years - with preliminary recommendations for reform of the civil litigation system to be made no later than September 1997 and a final report to be made on all aspects of the reference by September 1998.

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