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I am not sure where to put this thread, but I chose Great Debates. I could have chosen History, so Moderator, please move if more appropriate there. We don't have a "Law" forum. The focus is the difference in legal systems between the "common law" countries with an "adversarial" system of justice, mostly English-speaking and the "inquisitorial" system of justice practiced in Continental Europe and much of the rest of the world.
Amanda Knox was convicted of the brutal murder of her roommate, which occurred on November 1, 2007. This link is to a NY Times Article in today's "Styles" section that may be paywalled, Amanda Knox Was Exonerated. That Doesn’t Mean She’s Free. This article may be more generally available, on Biography.com, Amanda Knox.
Italy and the U.S., both liberal democracies, have fundamentally different forms of justice. Italy's form of justice, "inquisitorial" focuses on a joint search by the prosecutors and the defense for "the truth." The "judges" are frequently arms of the prosecution. The defense lawyers are not totally on the side of the accused. Thus, a technicality, or prosecutorial abuse will not normally result in an acquittal. Under the "adversarial" system, other than acting courteously and professionally (and then not always) the defense uses every tool to gain an acquittal, even if the defendant is quite guilty. The philosophy here is that a true battle yields the truth. The unique twist in the U.S. is a limited forum of protection from double jeopardy.
While I have not read the ultimate ruling freeing Amanda Knox, I gather that the defense team did too little, even by "inquisitorial" standards.
I have heard Europeans say something to the effect of, "I would like to live in France, work in Germany, eat in Italy, and be policed by the British."
I think what the OP is really getting at is a debate between common law and civil law legal systems, which is truly a great debate.
I would always choose to live under a common law system because it enshrines the governing principle of plurality of powers. Having multiple parts of the government that are legally set against each other is the common man's best hope for justice. Governments that do not embrace this become centralized and comparatively oppressive.
The only shame with the common law system is that there isn't a third, fourth, or fifth alternative. I guess sharia law is an alternative but it's not viable for me. The global preponderance of civil law systems is depressing and one of the greatest yokes on humankind.
I have heard Europeans say something to the effect of, "I would like to live in France, work in Germany, eat in Italy, and be policed by the British."
I'll have to remember that phrase.
Quote:
Originally Posted by Avondalist
I think what the OP is really getting at is a debate between common law and civil law legal systems, which is truly a great debate.
When I took a pre-law program during the summer of 1978 one of the two courses was "The Adversarial System." My parents wanted me to take that program to ensure that I really wanted to become a lawyer. The rest is history, but I digress.
The professor, Irving Younger, is long dead. He never mentioned the adversarial system being coextensive with the common law system or the civil law system being inquistorial but I guess, on reflection, it pretty much is. The one advantage of the inquisitorial system is that generally the police are a higher, more educated grade, but all things considered I prefer the adversarial system.
Quote:
Originally Posted by Avondalist
I would always choose to live under a common law system because it enshrines the governing principle of plurality of powers. Having multiple parts of the government that are legally set against each other is the common man's best hope for justice. Governments that do not embrace this become centralized and comparatively oppressive.
It sure seems that way. And they even try to further centralize by creating unaccountable entities a further step removed from the people such as "Europe." Ultimately, Britain ejected itself from the dubious embrace of Europe.
Quote:
Originally Posted by Avondalist
The only shame with the common law system is that there isn't a third, fourth, or fifth alternative. I guess sharia law is an alternative but it's not viable for me. The global preponderance of civil law systems is depressing and one of the greatest yokes on humankind.
To paraphrase Churchill the common law system is the worst form of government excepting all the others.
It comes down to which system you would prefer to live under: A system where the state (who has power) must prove guilt because the consequences of a wrong decision are so great or a system where the accused essentially must prove a negative and the consequences of a wrong decision are assumed trivial compared to the needs of the state?
It comes down to which system you would prefer to live under: A system where the state (who has power) must prove guilt because the consequences of a wrong decision are so great or a system where the accused essentially must prove a negative and the consequences of a wrong decision are assumed trivial compared to the needs of the state?
I prefer our system. There is something to be said, however, for a system where it is possible to convince a police officer, who is closest to the event, that you are not the "right person." As a lawyer I must tell anyone questioned by the police to "dummy up." I wish I didn't have to give that advice sometimes.
All in all, however, it is better to have a real champion at your side. I am paid to fight people's battles for them, and to stop the State as bully. So, I am torn.
An important side-issue is the grand-jury system, which indicts defendants. There, only the prosecution is represented. The defense has no say, and indeed, the accused normally isn't even aware that he/she is under the examination by the judicial system.
For a truly adversarial system to work, the adversarial aspect has to be present at the indictment-level too. Otherwise we have a fundamental problem... the accused may be innocent until proven guilty, but the very fact that the accused is accused in the first place, presupposes that there's something serious already levied against the accused.
The problem is especially acute at the federal level. In state court, there's plenty of reason to suppose that prosecutors are young, the resources of the system are spotty, police may have taken liberties, and so on... so, it may be reasoned, that the grand-jury process has severe limitations, and the actual trial isn't prejudiced. But at the federal level, the investigation is done by the FBI, and the charges are brought by a US Attorney... who is no amateur. All of this happens before any of the adversarial-aspect of the system kicks in. This is why so many federal cases either result in a guilty plea or a conviction.
The system there released her and that is that, under the rules of the country where she was convicted. No other country has the right to "take a shot at her" just because someone there disagrees
Depends on what you mean by "justice". Americans believe justice means keeping one adult male out of 70 locked up in a brutal prison, unable to provide for his family. Norwegians think "justice" means incarceration for one in 500, and alternative approaches to resolution of misbehaving citizzens. I think Italians are closer to the Norwegian model.
Globally, these outcomes are so outrageously varied, I think the use of the tem "justice" at all, in aby context, in the US is just laughable.
Depends on what you mean by "justice". Americans believe justice means keeping one adult male out of 70 locked up in a brutal prison, unable to provide for his family. Norwegians think "justice" means incarceration for one in 500, and alternative approaches to resolution of misbehaving citizzens. I think Italians are closer to the Norwegian model.
Globally, these outcomes are so outrageously varied, I think the use of the tem "justice" at all, in aby context, in the US is just laughable.
Are you saying that the one in 70 don't deserve to be behind bars? Unlike Norway, the U.S. has greater integration of different cultures, educational levels, etc. A recent article in the local paper, for example, detailed the slaying by a twenty-one year old and twenty year old of another young person with bullets apparently aimed for others. Who are those two providing for except maybe some "love children" they created along the way.
Are you saying those two likely (subject to an unlikely lack of a conviction) prisoners should be let out?
I have heard Europeans say something to the effect of, "I would like to live in France, work in Germany, eat in Italy, and be policed by the British.".
The Nordic countries have the best judicial systems. Germany has the best system of the larger nations.
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