Adversarial Systems and Adversarial Mindsets: Do We Need Either?

Abstract

extract] The styles of teaching and studying law in civilian and common law jurisdictions are very different. In the context of a desire to make civil procedure in common law jurisdictions less adversarial, the greater emphasis on case based learning in the common law world is striking. The origins of this difference lie in the greater importance (at least doctrinally, if not in practice) of precedent. In the common law world much of the law is still found in binding judgments, and even where there is statute law, the emphasis in teaching is still on the cases, and their facts, rather than on a systematic and theoretical analysis of legislation or ‘codes’.