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Inquisitorial system

The inquisitorial system is a legal system where the court is led through a discovery of facts, as opposed to the adversarial system where separate prosecution and defence cases are presented. It basically applies to questions of procedure as opposed to questions of substantial law and is most readily used in many, but not all civilian legal systems.

In the common law legal system historically the adversarial system was used to uncover the positions of litigants and to determine their opposing views regarding their individual entitlements; whereas the inquistiorial system (perhaps best known from the Inquisition) was a system in which the judges or decisionmakers took an active role in uncovering the evidence they needed to justify their decisions. As canon law continued to be applied throughout Europe throughout the middle ages, this inquistorial system of the Catholic church and ecclesiastical courts continued to be the most popular method by which disputes were adjudicated, perhaps as most feudal overlords remained linked to the powers of eclessiastical bodies where Roman law was preserved and learned jurists available for consultation, whereas in England individuals were granted access to various levels of courts without the intervention of the Lord of the Manor and thus the Court system developed independently of the ecclessiastical system.

In the development of modern legal institutions which occurred in the 19th century, for the most part, most jurisdictions did not only codify their private law and criminal law, but the rules of civil procedure were review and codified as well. It was through this movement that the role of an inquisitorial system became enshrined in most European civilian legal systems. However it would be too much of a generalization to state that the civil law is purely inquisitorial and the common law adverarial, indeed the ancient Roman custom of arbitration was the earliest form of adverarial proceeding, has now been adapted in many common law jurisdictions to a more inquisitorial form. In some mixed civil law systems, such as Scotland, Quebec and Louisiana while the substantial law is civilian in nature and evolution, the procedural codes that have developed over the last several hundred years are based upon the English adversarial system.

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