ADVERSARIAL AND INQUISITORIAL PROCESS
The role of judge and parties is strikingly different in England and on the Continent, the former being marked by the adversarial approach and the latter by the inquisitorial. The adversarial is the early European system, whereas the inquisitorial was introduced in the wake of neo-Roman law (which, incidentally, fits in well with Lupoi’s thesis I presented earlier).
The adversarial procedure of the common law sees the trial as an oral contest between the parties and is controlled by them: the judge is a referee, who supervises the fairness of the proceedings in general and the cross-examination in particular, but does not himself initiate lines of questioning.22 The parties are the active element and the judge, who is like an umpire in a match, an impartial onlooker who would not dream of actively joining the contest, the passive element. We know from legal anthropology that this is the archaic approach, especially when the struggle between the parties took on the form of a judicial combat to the death, under the watchful eyes of the judges and the encouragement of the onlookers. Under the influence of Roman-canonical procedure the role of the judge became more prominent, first in ecclesiastical courts everywhere and afterwards in the lay courts on the Continent. This was particularly noticeable in criminal cases, where the old accusatorial process, a contest between the private accuser and the suspect, gave way to the inquisitorial technique, where the machinery was set in motion by an official prosecutor and the truth of the matter actively investigated (inquirere) by the judge. The result was that in ecclesiastical courts one judge could at the same time and in one and the same22 The Englishjudge, as Lord Wilberforce put it, acquires ?the character of a referee.
He is always telling himself “I must keep out ofthe dispute; my only job is to see fair play, to blow the whistle when the rules are broken”’, whereas the civilian judge ?thinks that it is his duty, not thatofthe advocate, tounveil untruths’: LordWilberforce, ?Legal listening’, The Journal of the College of General Practitioners, suppl.
3 to vol. ι 3 (no. 62), 3 at 5, quoted by J. M. J. Chorus, ?The judge’s role in the conduct of civil proceedings. Some continental and Scottish ideas before ι 800’, Comparative and historical essays in Scots law. A tribute to Sir Thomas Smith (London, 1992), 32, n. 2. case prosecute, investigate and sentence. The difference with the old common-law procedure is striking, for there the indictment was brought by the grand jury, the verdict given by the petty jury and the sentence by the judge. In civil cases the difference is not so pronounced but no less real. On the Continent, in the words of Peter Stein, ?The judge sees his function as to discover the true basis of the dispute, to bring to light all aspects of the case. All the evidence is written down and filed away. The whole proceedings, from a common-law perspective, have a rather leisurely and bureaucratic air about them.’[57] This bureaucratic character is, of course, connected with the very nature of the ius commune as a system of written law. Whereas continental civil procedure was less inquisitorial than its criminal counterpart, there were some notable attempts to bring civil procedure more in line with the Instruktionsmaxime or Offzialmaxime or ?principle of judicial investigation’, i.e. the idea that the judge must actively intervene ex officio to discover the truth. The most remarkable attempt to jettison the traditional Verhandlungsmaxime or ?principle of party presentation’, i.e. let the parties act, took place under King Frederick the Great of Prussia, who introduced the Instrukdion (comparable to the role of the juge d' instruction or investigating magistrate in criminal cases) into civil proceedings, and created the Assistenzrate, provided by the court to take the place of the traditional barristers (who belonged to the liberal professions).[58] What Frederick had tried, however, was no more than a heightening of the active role that continental judges before him used to play in civil cases. ?There was, in J. Chorus’s words, in the German gemeiner Prozess... no one-sidedly passive judge’, but ?a well-balanced division of tasks between judge and parties’. The latter, he goes on, ?dominate the allegation of proof of facts and the invoking of the law on which they wish to found their claim and defence, but the judge has a far-reaching right to co-operate both in adducing and establishing the facts and in bringing in the laws to be applied.’[59]Although the basic difference between common-law and civil- law procedure is real enough, the reader should realize that our characterization is schematic and that reality is not as clear cut. English judges, for example, have certain powers to call witnesses, as long as there is no party objection, and they have some power to take initiatives in the conduct of proceedings without any demand by parties or counsel to do so.[60] This leads us to the concluding remark that whereas the differences between common law and civil law were and remain real enough, in several respects a rapprochement is undeniable.