Response to Walter Rumans
As Walter clearly brings out in his comment on comparative judicial systems, there are three major legal or criminal justice systems depending on whether it is civil or common law jurisdiction. These are the adversarial system mainly found in common law countries, the inquisitorial system commonly found in civil law jurisdictions and the popular or mixed system that combines aspects of the latter two. These different legal cultures indicate how our various justice systems work and operate differently. As pointed out, the adversarial system is the most shared and familiar one in which two parties to a legal dispute battle it out in an open court through the aid of their respective Counsels. Here, the roles of the judge, Counsels and Prosecutor are clearly demarcated. The judge normally has a passive role of listening to parties' arguments, directing the parties or their Attorneys appropriately and maintaining order in court. He or she is usually trained in law.
In countries like the US with a jury system, the judge's role is limited to matters of law while the jury tackles issues of facts. On the other hand, the inquisitorial system as Walter states is indeed quite the exact opposite where the judge plays an active investigative role. The mixed system involves the actual participation of citizens who are not criminal justice professionals in the trial process. It consists of lay judges assisting the judges learned in the law to make decisions. According to Walt (51-56), these legal cultures and system differ regarding mode of presentation of evidence, the dominant players, and rules of evidence and inference of guilt. I side with Walter as to which system is the best. I think the inquisitorial system is superior to the adversarial system because, as Mosteller argues, the adversarial system cannot ensure full protection of the innocent and lacks fairness in the investigation of cases (15).
Response to Maria Saavedra
As Dammer and Albanese observe in their work, judicial independence is one of the pillars of the rule of law doctrine (175). Maria has succinctly put it that for there to be the independence of the judiciary; judges must have the ability to make decisions based purely on the application of the law and legal principles or rules. There must not be any external influence such as politics, corruption, and governmental power. All these factors erode and compromise judicial independence by holding judicial officers at ransom. Judges under an independent judicial system should be able to apply the law freely equally and justly and uphold the principle of equality before the law which also underpins the rule of law. They should be impartial and recuse themselves whenever there is a likelihood of conflicts of interest in any given case before them. Through this, they can uphold the nobility and integrity of the judicial and legal systems. It also enables them as Maria puts it, not to second-guess the morality and ethics of their decisions. Moreover, judges need to be objective for there to be an independent judicial system. Objectivity entails them not letting their own personal social, political or cultural feelings and prejudices to affect their decisions though this does not mean they don't take such factors into consideration as the law does not operate in a vacuum.
Works Cited
Dammer, Harry R and Jay S Albanese. Comparative criminal justice systems. Belmont, CA: WADSWORTH CENGAGE Learning, 2013. Print.
Mosteller, Robert P. "Failures of the American adversarial system to protect the innocent and conceptual advantages in the inquisitorial design for investigative fairness." North Carolina Journal of International Law & Commercial Regulation 36.2 (2011): 1-28. Print.
Walt, Lirieka Meintjes van der. "Comparative method: Comparing legal systems and/or legal cultures." SPeculum Juris Journal 1 (2006): 51-64. Print.
