If the practice of criminal justice does not live up to its rhetoric one should not look only to the interactions and negotiations of those who put the law into practice but to the law itself. One should not look just to how the rhetoric of justice is subverted intentionally or otherwise by policemen bending the rules, by lawyers negotiating adversariness out of existence, by out-of-touch judges or biased magistrates: one must also look at how it is subverted in the law. Police and court officials need not abuse the law to subvert the principles of justice; they need only use it. Deviation from the rhetoric of legality and justice is institutionalised in the law itself.
Liberal legal rhetoric is an ideal of what a legal system ought to be …show more content…
The legal systems of Australia and United States developed from the English legal system. People in these countries are heavily influenced by television dramas, movies, books and other cultural and creative works emanating from Hollywood. American author, John Grisham has had books on court-room litigation translated into 42 languages and published worldwide.
This essay will broadly examine the nature of the Anglo-American adversarial legal system, and the role of lawyers, judges and litigants within it with a view to determining if the often and widely held liberal impressions of it are valid.
According to John H. Langbein (2005) , ‘’ The adversary system of trial, now the defining feature of Anglo-American criminal procedure, developed late in English legal history. For centuries, defendants were forbidden to have trial counsel. The criminal trial was meant to be a lawyer-free occasion at which the defendant could hear the accusing evidence and respond to it in person.’’ However, between the 1690s and 1780s, ‘’ Trial ceased to be an opportunity for the accused to speak, and became instead an occasion for defence counsel to test the prosecution …show more content…
It is much more likely that the court process derives from the society’s attitude towards state power and political process. Liberal English societies have tended to be more suspicious of the threat to individual liberty from the state, than their continental counterparts. Hence the English legal process adopted the adversarial model where the prosecutor is put at some theoretical disadvantage such as proving a case beyond reasonable doubt.
The adversarial system is about limiting judicial power, since the judiciary is seen as an arm of government. According to Bottomley and Bronitt: the passivity of the judge under the system symbolises ‘’the liberal ideals of a neutral and non-interventionist state, of limited government, and the separation of the judiciary from other arms of government. The state, in the guise of the judge, can only decide those issues put before it by the parties. Thus litigation must be conducted within a complex framework of rules of evidence and procedure that are designed to the fairness of the
Liberal legal rhetoric is an ideal of what a legal system ought to be …show more content…
The legal systems of Australia and United States developed from the English legal system. People in these countries are heavily influenced by television dramas, movies, books and other cultural and creative works emanating from Hollywood. American author, John Grisham has had books on court-room litigation translated into 42 languages and published worldwide.
This essay will broadly examine the nature of the Anglo-American adversarial legal system, and the role of lawyers, judges and litigants within it with a view to determining if the often and widely held liberal impressions of it are valid.
According to John H. Langbein (2005) , ‘’ The adversary system of trial, now the defining feature of Anglo-American criminal procedure, developed late in English legal history. For centuries, defendants were forbidden to have trial counsel. The criminal trial was meant to be a lawyer-free occasion at which the defendant could hear the accusing evidence and respond to it in person.’’ However, between the 1690s and 1780s, ‘’ Trial ceased to be an opportunity for the accused to speak, and became instead an occasion for defence counsel to test the prosecution …show more content…
It is much more likely that the court process derives from the society’s attitude towards state power and political process. Liberal English societies have tended to be more suspicious of the threat to individual liberty from the state, than their continental counterparts. Hence the English legal process adopted the adversarial model where the prosecutor is put at some theoretical disadvantage such as proving a case beyond reasonable doubt.
The adversarial system is about limiting judicial power, since the judiciary is seen as an arm of government. According to Bottomley and Bronitt: the passivity of the judge under the system symbolises ‘’the liberal ideals of a neutral and non-interventionist state, of limited government, and the separation of the judiciary from other arms of government. The state, in the guise of the judge, can only decide those issues put before it by the parties. Thus litigation must be conducted within a complex framework of rules of evidence and procedure that are designed to the fairness of the