The “Adversary System”: Rhetoric or Reality?

Abstract

AbstractOur system of justice is generally referred to as an “adversary system,” although this term is used very loosely. At times, the term is used in a technical way to refer to a system with structured rules of evidence, party presentation of evidence, and a neutral decision-maker. At other times, the phrase seems to be given a broader meaning, referring to the way in which law is practised—that hard-headed competitiveness is the proper, and normal, approach. In fact, neither the rules of our justice system, whether criminal or civil, nor the way in which lawyers behave most of the time are best described as “adversarial.” The current situation, in which largely nonadversarial behavior and rules are described as an adversary system, gives rise to confusion and, more importantly, to unethical action. A possible solution is to cease calling our system an adversary one, and to acknowledge that other rules and behavior are more defining.