Talk:Adversarial system
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Wouldn't the redirect be better the other way around as User:Tarquin suggests? Alex756
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[edit] Intro
Is it me or is the current intro rather too long and detailed? I'd be inclined to chop it off after the first para, making the rest a new section - but that would overlap somewhat with existing sections, so editing it down would take more work than that easy solution. Rd232 talk 02:04, 24 December 2005 (UTC)
[edit] Possible merges
Do any of these articles deserve to be merged into this one? Adversarial process, Adversary proceeding, Adversarial review. They seem to be suspiciously similar, but possibly different contexts. -- Bovineone 02:06, 30 May 2006 (UTC)
[edit] "Right to counsel" paragraph
I think this paragraph might get into a little too much detail for this particular article. Ideas about how to present this in a more general and global way? - danculley 18:34 04 Aug 2006 (UTC)
[edit] "They point out that"
They point out that most cases in adversarial systems are actually resolved by plea bargain and settlement.
This declaration of fact desparately needs a reference showing that it is true. Is it? Even if it's true in the USA, that's not the same as "adversarial systems". If it isn't a demonstrable fact, but just an argument made by opponents of adversarial systems, then a reference to one such argument, and a modification of the sentence to read "They claim that in most cases" would be sufficient. Del C 07:46, 15 August 2006 (UTC)
[edit] writing style lacks clarity
Upon reading these paragraphs, I often can't determine when the adversarial system is being described, when it is being compared to the inqusitorial system, and when one system incorporates elements of the other. This should be re-written using more "compare and contrast" cues to make the two systems more identifiable. Perhaps a summary using "bullet points" might also be appropriate.
[edit] Distinguish criminal from civil matters
I would only like to caution that the crude distinction between adversarial anglo-saxon models and inquisitorial continental-European models applies only to criminal proceedings -- which an uninformed reader may not realized from the article.
In civil matters, the question is much more complex and may well cut the other way round: Civil law systems hardly ever use discovery. Systems in the common law tradition rely heavily on it in complex litigation. Discovery is, essentially, an "inquisitorial" court order that allows a claimant to make a case against the defendant on the basis of material that is in the possession of the defendant. The reason is, again fully in the inquisitorial tradition, that proceedings should represent a quest for truth.
This is simply not the case in continental systems. Here, the assumed facts are simply what adversarial proceedings may be able to prove. If a claimant cannot prove a point, it cannot rely on the state (judge) to help it find material to prove his point. Rather, he will lose on grounds of burden of proof.
[edit] Predating the Magna Carta?
I'm trying to find an accurate English translation for a German source where the quote reads about
- "Der germanische Akkusationsprozeß wurde im Hochmittelalter zunehmend durch den Inquisitionsprozeß verdrängt."
It basically says that in Continental Europe (Holy Roman Empire, Scandinavia), a native Germanic (including Anglo-Saxon) form of criminal trial (called Akkusationsprozeß, lit. accusation trial) was gradually replaced by the inquisitorial system during the High Middle Ages. Since proper Anglo-Saxon legal history studies only seems to differentiate between adversarial and inquisitorial system, might this be the adversarial system in question? Akkusationsprozeß doesn't seem to properly equal trial by ordeal as that is usually referred to as Gottesurteil in Germanophone legal history studies, and in the context of above-mentioned quote, Akkusationsprozeß appears to rather refer to a rather sophisticated system, including a complex procedure of taking of evidence, testimonials, and probably authentication even, with a more fundamental legal philosophy behind it than just some way of leaving the decision to the Celestials. Or, in others words, might the adversarial system actually pre-date Magna Carta however be neither of Roman nor ecclesiastical origin? The current history section here seems a bit vague about that. --Tlatosmd 21:17, 10 July 2007 (UTC)
[edit] Added references/sources tag
I thought that this was appropriate due to the number and nature of the references given on this page. The first source serves only to back up conjecture in the 'History of the adversarial process' section; while the second reference is to a statement that does not give any validation for its criticism (obviously, found in the 'Cricitisms of the adversarial system' section). As a result of the lack of research, the article reads as being highly opinionated claptrap. Indja (talk) 18:46, 1 January 2008 (UTC)
