Top-level legal concepts like civil vs. common law are rarely going to play more than a background role in a story — even a story set in the real world. But when it comes to trials, our TV, movies, and fiction have a whole subgenre known as the legal drama. Writing one of those in a believable fashion requires knowing something about how trials work . . . or, in an invented setting, deciding how they work.
The basic division here is between two approaches that usually get called adversarial and inquisitorial (though some people prefer non-adversarial for the latter, owing to the negative connotations of the word “inquisition”). These are often enough linked with the common law and civil law systems respectively that people often treat those terms as synonymous, though that isn’t a requirement.
(Obligatory disclaimer again: when you get down to the level of actual practice, you find that any given country may run things a little bit differently. These systems aren’t rigid in their structure, and the point here is merely to get an overview.)
If you’ve ever watched an American legal drama, you know how the adversarial system works. The two sides, the prosecution and the defense, present evidence and arguments; the judge and/or jury (more on that in a moment) plays the role of referee between them — theoretically, an impartial one — and makes a decision based on the information provided by the opposing sides.
In an inquisitorial system, it’s quite different. Here there may be multiple judges involved, the first of whom is sometimes called a magistrate. That person is not an impartial referee; instead they’re the chief investigator, acting much like the prosecutor for an adversarial trial in that they’re responsible for gathering evidence for the trial. When that’s done, it gets passed along to the sitting or presiding judge (or a panel of several judges), who rules on the facts presented. Hence the terminological difference: in the adversarial system, two sides duke it out in front of a judge, while in the inquisitorial system, the judge/magistrate literally “inquires” into the case.
That’s the basic distinction. But the contrasts ripple well beyond that, which you can already see a little in the role of judges. What about police, lawyers, and juries? What role do they play in each situation?
Where police are concerned, American TV again probably shapes many people’s perceptions. Police in the adversarial system not only maintain order, but also investigate crimes. In the inquisitorial system, those functions may be divided: the regular police maintain order, but investigation belongs to a separate category of “judicial police” who work with the magistrate. They or the magistrate will be the ones questioning witnesses, visiting crime scenes, and so forth. (Police will get their own essay at a later date, so we can dig into how exactly they operate, and what that looked like in the past.)
The role of lawyers (or more broadly, counsel) varies not only between systems, but also through history. Both ancient Greece and ancient China had nothing but contempt for such people, seeing them as parasites feeding off other people’s troubles, and preferring or requiring participants in a dispute to represent themselves — though in Greece, nothing said the speech you delivered in court had to be your own words, so they had a thriving profession of legal speech-writers. Nowadays we tend to see attorneys as vitally important to the process, because our legal systems have gotten so complex that a non-specialist attempting to represent themself is liable to regret it afterward. But again, there are differences in the roles they play in the adversarial and inquisitorial systems.
In an adversarial court, lawyers are the key players for the prosecution and defense. It’s their job to marshal the facts that support their case, to bring witnesses and testimony, and to look for ways to tear down the other side’s arguments. In an inquisitorial court, it’s less straightforward, varying among countries. The prosecutor may be an adviser to the court, and mostly responsible for making sure there’s sufficient evidence to bring a case, or shepherding it through the necessary procedures. Similarly, the defense counsel may ensure that a suspect is being treated according to the law, but they’re usually forbidden from interacting with witnesses — a far cry from the melodramatic cross-examinations that are a staple of American legal dramas!
And then there’s the jury. Or is there? Even in the U.S., not all trials involve juries. If there is one, the job of the jurors is to look at the facts of the case (as presented by the two opposing counsels) and decide whether the defendant is guilty under the law, as instructed by the presiding judge. But juries are rare in civil law countries, and when they’re used, they may be composed of a mixture of non-specialists and professional judges, rather than the ordinary citizens used to make up a jury in the U.S.
The two systems can also have a significant effect on how long it takes for a trial to play out. An adversarial trial may have an excruciatingly lengthy run-up — as in, it could take years — during which the prosecution and defense work on assembling their facts and developing their arguments, possibly with brief appearances in court to request something like a change of venue or a motion to compel. Once the trial begins, though, the presentation of evidence and arguments goes relatively quickly — sometimes as little as a day or two. An inquisitorial trial will in some senses be the same; once things go before the presiding judge, it’s over fairly quickly. But the investigation of the magistrate may involve hearings and other judicial procedures, so that long run-up can involve much more time spent interacting with the court.
I’ve been using the term “magistrate” instead of “investigating judge” partly to avoid the repetition of “investigation” and confusion as to what roles different judges are playing — but also because that’s the term often used when discussing East Asian legal systems, China’s in particular. And if you look to China, you’ll soon come across the name Dí Rénjié, a.k.a. Judge Dee/Judge Di. He’s the sort of historical figure who was fascinating in his own time, and since then has been fictionalized in multiple media. Those stories, while often diverging wildly from anything resembling historical accuracy, give a sense of the concept — and an alternative to the English model of Sherlock Holmes, when it comes to clever investigators.
But that gets into the question of evidence. Before we get there, I want to talk about other kinds of trials . . . including trial by combat, which I promised back when we discussed dueling. So come back next week for that one!