The Mueller Report thread

[Dill]

(05-07-2019, 12:48 PM)Belsnickel Wrote: As the US is a common law country, we lean towards a primarily adversarial judicial system. What this means is that our judiciary, as described by Hamilton in Federalist 78, is only there to levy judgment. It sits as an independent referee in matters between two parties. This is the result of our English origins, as they are also rooted in this common law/adversarial system.

In civil law systems, such as what is found in most of the EU, they also have an inquisitorial (which sounds bad, but isn't really) judiciary. What this means is that judges play a role in investigating the facts of a case. There is a judicial law enforcement which is primarily responsible for criminal investigations and the like and the prosecutors are a part of the judicial branch. What this means is that criminal cases are between the defendant and the judiciary, not the defendant and the executive with the judiciary as a mediator. The executive still maintains a police force which handles more of the public safety situations--the day-to-day patrol type of work.

There are pros and cons, there, but the civil law system provides greater independence from the other two branches, bringing them closer to being on their level. It does, however, open the judiciary to more corruption as the more power gained, the more potential to twist it there is. Civil law systems do not allow for judicial precedence to create law, it is only creating by the people (or their duly elected representatives).

It's hard to get into all of the differences because each country is a little different and so the nuances are plentiful. My main point here is that this type of system does exist, but our constitutional framework is that of a common law country. This is likely to keep the judiciary--the non-elected branch--the weakest of the three as it lacks purse or sword. There are pros and cons to both primary types of judicial systems and we have to think long and hard about the wisdom of changing that balance.

Excellent summary.  Frankly, though, I think there are mostly cons to any system which sets up direct conflict between defendant and judiciary.