There is a reason why most legal systems in use today have evolved from (mostly or all) inquisitive to (mostly or all) adversarial, and that’s because we have a gigantic body of evidence to suggest that inquisitive systems are particularly prone to render biased judgements.
What evidence do you have for that claim?
In Germany we allow judges to be more focused on being more inquisitorial than in Anglosaxon systems. How strong do you think the evidence for their being more biased judgements in Germany than in Anglosaxon system happens to be?
Otherwise, what evidence do you see that the features of Anglosaxon systems get copied by other Anglosaxon systems via mechanisms of well-researched argument instead of just following traditions?
Among other big European countries France, Italy, Spain also work more like the German system like the Anglosaxon systems.
To me, it sounds like you treat the particulars of the Anglosaxon legal systems as universals without good reason for that.
In Germany we allow judges to be more focused on being more inquisitorial than in Anglosaxon systems. How strong do you think the evidence for their being more biased judgements in Germany than in Anglosaxon system happens to be?
I mean, I guess (almost?) all countries today at least have the prosecutorial function vested in an organ separate from the Judiciary – that’s already a big step from the Inquisition! It’s true that no legal system is purely adversarial, not even in the US (judges can still reject guilty pleas, for instance), but I think few people would disagree that we have generally moved quite markedly in that overall direction. In particular, we used to have purely inquisitorial systems in the past, and it seems like we don’t anymore. To take Germany as an example, Wikipedia notes that, while public prosecutors are “simple ordinary servants lacking the independence of the Bench”, they nonetheless “earn as much as judges” – which seems to suggest they hold quite a prominent position in their legal system, as I suspect few other public servants do in fact earn that much.
Otherwise, what evidence do you see that the features of Anglosaxon systems get copied by other Anglosaxon systems via mechanisms of well-researched argument instead of just following traditions?
I tend to reject that dichotomy, not only in this instance but more generally: I don’t believe things survive very long on the basis of tradition alone. Tradition may be a powerful force in the short run, but over hundreds of years it tends to get displaced if it turns out to be markedly suboptimal.
An inquisitive (aka inquisitorial) legal system is one in which the judge acts as both judge and prosecutor, personally digging into the facts before ruling.
In the German system, digging into the facts before the ruling is part of the job of the judge. They are doing it from a neutral perspective, but digging into facts is part of what they are supposed to do. In Anglosaxon common law on the other hand it’s the job of both parties of a legal case to law out all the facts that they think support their side and it’s not the job to dig into facts that neither of the sides presented.
I’m curious to understand that a bit better, if you don’t mind (and happen to be familiar enough with the German legal system to answer). Which of the following would a German judge commonly do in the course of an ordinary proceeding?
(i) Ask a witness to clarify statements made;
(ii) ask a witness new questions that, while relevant to the case, do not constitute clarifications of previous statements made;
(iii) summon new witnesses (including but not limited to expert witnesses) without application from either party;
(iv) compel a party to produce documents not in discovery, without application from the other party;
(v) compel third parties to produce documents neither party has requested be produced.
All the above used to be pretty standard in most jurisdictions AFAIK. But what tends to happen nowadays is that either some of those are expressly disallowed, or else, while judges may well retain legal authority to perform all those kinds of digging, in practice that authority is used very sparingly.
Not for this kind of fact, I’m afraid – my experience is that in answering questions like these, LLMs typically do no better than an educated guess. There are just way too many people stating their educated legal guesses as fact in the corpus, so it gets hard to distinguish.
What evidence do you have for that claim?
In Germany we allow judges to be more focused on being more inquisitorial than in Anglosaxon systems. How strong do you think the evidence for their being more biased judgements in Germany than in Anglosaxon system happens to be?
Otherwise, what evidence do you see that the features of Anglosaxon systems get copied by other Anglosaxon systems via mechanisms of well-researched argument instead of just following traditions?
Among other big European countries France, Italy, Spain also work more like the German system like the Anglosaxon systems.
To me, it sounds like you treat the particulars of the Anglosaxon legal systems as universals without good reason for that.
I mean, I guess (almost?) all countries today at least have the prosecutorial function vested in an organ separate from the Judiciary – that’s already a big step from the Inquisition! It’s true that no legal system is purely adversarial, not even in the US (judges can still reject guilty pleas, for instance), but I think few people would disagree that we have generally moved quite markedly in that overall direction. In particular, we used to have purely inquisitorial systems in the past, and it seems like we don’t anymore. To take Germany as an example, Wikipedia notes that, while public prosecutors are “simple ordinary servants lacking the independence of the Bench”, they nonetheless “earn as much as judges” – which seems to suggest they hold quite a prominent position in their legal system, as I suspect few other public servants do in fact earn that much.
I tend to reject that dichotomy, not only in this instance but more generally: I don’t believe things survive very long on the basis of tradition alone. Tradition may be a powerful force in the short run, but over hundreds of years it tends to get displaced if it turns out to be markedly suboptimal.
You define your terms when you say:
In the German system, digging into the facts before the ruling is part of the job of the judge. They are doing it from a neutral perspective, but digging into facts is part of what they are supposed to do. In Anglosaxon common law on the other hand it’s the job of both parties of a legal case to law out all the facts that they think support their side and it’s not the job to dig into facts that neither of the sides presented.
I’m curious to understand that a bit better, if you don’t mind (and happen to be familiar enough with the German legal system to answer). Which of the following would a German judge commonly do in the course of an ordinary proceeding?
(i) Ask a witness to clarify statements made;
(ii) ask a witness new questions that, while relevant to the case, do not constitute clarifications of previous statements made;
(iii) summon new witnesses (including but not limited to expert witnesses) without application from either party;
(iv) compel a party to produce documents not in discovery, without application from the other party;
(v) compel third parties to produce documents neither party has requested be produced.
All the above used to be pretty standard in most jurisdictions AFAIK. But what tends to happen nowadays is that either some of those are expressly disallowed, or else, while judges may well retain legal authority to perform all those kinds of digging, in practice that authority is used very sparingly.
When it comes to trying to understand basic facts like how legal systems work LLMs make it easy to get an overview.
Not for this kind of fact, I’m afraid – my experience is that in answering questions like these, LLMs typically do no better than an educated guess. There are just way too many people stating their educated legal guesses as fact in the corpus, so it gets hard to distinguish.