Inquisitorial system
Encyclopedia
An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system
where the role of the court is primarily that of an impartial referee between the prosecution and the defense
. Inquisitorial systems are used in some countries with civil legal systems
as opposed to common law systems. Also countries using common law, including the United States, may use an inquisitorial system for summary hearings in the case of misdemeanors such as minor traffic violations. In fact, the distinction between an adversarial and inquisitorial system is theoretically unrelated to the distinction between a civil legal and common law system. Some legal scholars consider "inquisitorial" misleading, and prefer the word "nonadversarial". The function is often vested in the office of public procurator
, as in many communist or ex-communist states such as Russia, China, and Ukraine, in addition to non-communist jurisdictions such as Japan and Scotland.
The inquisitorial system applies to questions of criminal procedure
as opposed to questions of substantive law
; that is, it determines how criminal enquiries and trials are conducted, not the kind of crimes for which one can be prosecuted, nor the sentences that they carry. It is most readily used in some civil legal systems
. However, some jurist
s do not recognize this dichotomy
and see procedure and substantive legal relationships as being interconnected and part of a theory of justice as applied differently in various legal cultures.
In some jurisdictions, the trial judge may participate in the fact-finding inquiry by questioning witnesses even in adversarial proceedings. The rules of admissibility of evidence may also allow the judge to act more like an inquisitor than an arbiter of justice.
in France and other countries functioning along the same lines is the function of the examining or investigating judge (juge d'instruction). The examining judge conducts investigations into serious crimes or complex enquiries. As members of the judiciary, they are independent and outside the province of the executive branch, and therefore separate from the Office of Public Prosecutions which is supervised by the Minister of Justice
.
Despite high media attention and frequent TV portrayals, examining judges are actually active in only a small minority of cases. In 2005, there were 1.1 million criminal rulings in France, while only 33,000 new cases were investigated by judges. The vast majority of cases are therefore investigated directly by law enforcement agencies (police
, gendarmerie) under the supervision of the Office of Public Prosecutions (procureurs).
The judge questions witnesses, interrogates suspects, and orders search
es for other investigations. The examining judge's goal is not to prosecute the accused, but to gather facts, and as such their duty is to look for any and all evidence
(à charge et à décharge), incriminating or exculpatory. Both the prosecution and the defense
may request the judge to act and may appeal the judge's decisions before an appellate court. The scope of the inquiry is limited by the mandate given by the prosecutor's office: the examining judge cannot open a criminal investigation sua sponte
.
In the past the examining judge could order committal of the accused, this power being subject to appeal. However, this is no longer the case, and other judges have to approve a committal order.
If the examining judge decides there is a valid case against a certain suspect, the accused is bound over for an adversarial trial by jury. The examining judge does not sit on the trial court vested with trying the case and is in fact prohibited from sitting for future cases involving the same defendant. The case is tried before the court in a manner similar to that of adversarial courts: the prosecution (and on occasion a plaintiff) move for the conviction of accused criminals, the defense rebuts their claims, and the judge
and jury
draw their conclusions from the evidence presented at trial.
Examining judges are used only for severe crimes, e.g., murder
and rape
, as well as for moderate crimes, such as embezzlement
, misuse of public funds, and corruption
, when the case has a certain complexity.
As a result of judicial investigation and defendants being able to have judicial proceedings dismissed on procedural grounds during the examining phase, cases where the evidence is weak tend not to reach the trial phase. Conversely, the guilty plea
and plea bargain
ing were until recently unknown to French law, and now it only applies to crimes for which the maximum sentence is one year imprisonment. Therefore, most cases go to trial, including cases where the prosecution is almost sure to win a conviction, whereas, in countries such as the United States, these would be settled by plea bargain.
s such as the Council of State, litigation proceedings are markedly more inquisitorial. Most of the procedure is conducted in writing; the plaintiff writes to the court, which asks explanations from the administration or public service concerned; when answered, the court may then ask further detail from the plaintiff, etc. When the case is sufficiently complete, the lawsuit opens in court; however, the parties are not even required to attend the court appearance. This method reflects the fact that administrative lawsuits are for the most part about matters of formal procedure and technicalities.
in the 12th century, the legal systems used in medieval Europe
generally relied on the adversarial system to determine whether someone should be tried and whether that person is guilty or innocent. Under this system, unless people were caught in the act of committing crimes, they could not be tried for them until they had been formally accused, either by the voluntary accusations of a sufficient number of witnesses or by an inquest
(an early form of grand jury
) convened specifically for that purpose. A weakness of this system was that because it relied on the voluntary accusations of witnesses, and because the penalties for making a false accusation were severe, would-be witnesses could be hesitant to actually make their accusations to the court, for fear of implicating themselves. Because of the difficulties in deciding cases, procedures such as ordeal
or combat
were accepted, though it is now generally agreed that these procedures are not acceptable ways of finding truth or settling a dispute.
Beginning in 1198, Pope Innocent III
issued a series of decretals that reformed the ecclesiastical court system. Under the new processus per inquisitionem (inquisitional procedure) an ecclesiastical magistrate no longer required a formal accusation to summon and try a defendant. Instead, an ecclesiastical court
could summon and interrogate witnesses of its own initiative, and if the (possibly secret) testimony of those witnesses accused a person of a crime, that person could then be summoned and tried. In 1215, the Fourth Council of the Lateran
affirmed the use of the inquisitional system. The council also forbade clergy from conducting trials by ordeal or combat. As a result, in parts of continental Europe, the ecclesiastical courts operating under the inquisitional procedure became the dominant method by which disputes were adjudicated. In France, the parlement
s — lay courts — employed inquisitorial proceedings.
In England, however, King Henry II
had established separate secular courts during the 1160s. While the ecclesiastical courts of England, like those on the continent, adopted the inquisitional system, the secular common law
courts continued to operate under the adversarial system. The adversarial principle that a person could not be tried until formally accused continued to apply for most criminal cases. In 1215 this principle became enshrined as article 38 of the Magna Carta
: "No bailiff for the future shall, upon his own unsupported complaint, put anyone to his law, without credible witnesses brought for this purposes."
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 reviewed 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, there exist significant differences of operating methods and procedures between 18th century ancien régime courts and 19th century courts; in particular, limits on the powers of investigators were typically added, as well as increased rights of the defense.
It would be too much of a generalization to state that the civil law is purely inquisitorial and the common law adversarial. Indeed the ancient Roman custom
of arbitration
has now been adapted in many common law jurisdictions to a more inquisitorial form. In some mixed civil law systems, such as those in Scotland
, Quebec
and Louisiana
, while the substantive law is civil in nature and evolution, the procedural codes that have developed over the last several hundred years are based upon the English adversarial system.
These types of tribunals or boards can be found in most modern democracies. They function as an expedited form of justice where the state agents conduct an initial investigation and the adjudicator's job is to confirm these preliminary findings through a simplified form of procedure that grants some basic amount of due process
or fundamental justice
in which the accused party has an opportunity to place his or her objections on the record.
Adversarial system
The adversarial system is a legal system where two advocates represent their parties' positions before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth of the case...
where the role of the court is primarily that of an impartial referee between the prosecution and the defense
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
. Inquisitorial systems are used in some countries with civil legal systems
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
as opposed to common law systems. Also countries using common law, including the United States, may use an inquisitorial system for summary hearings in the case of misdemeanors such as minor traffic violations. In fact, the distinction between an adversarial and inquisitorial system is theoretically unrelated to the distinction between a civil legal and common law system. Some legal scholars consider "inquisitorial" misleading, and prefer the word "nonadversarial". The function is often vested in the office of public procurator
Public procurator
A public procurator is an officer of a state charged with both the investigation and prosecution of crime. The office is a feature of a civil law inquisitorial rather than common law adversarial system of law and is usually found in current or former communist states...
, as in many communist or ex-communist states such as Russia, China, and Ukraine, in addition to non-communist jurisdictions such as Japan and Scotland.
The inquisitorial system applies to questions of criminal procedure
Criminal procedure
Criminal procedure refers to the legal process for adjudicating claims that someone has violated criminal law.-Basic rights:Currently, in many countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution – that is, it is up to the...
as opposed to questions of substantive law
Substantive law
Substantive law is the statutory or written law that defines rights and duties, such as crimes and punishments , civil rights and responsibilities in civil law. It is codified in legislated statutes or can be enacted through the initiative process.Substantive law stands in contrast to procedural...
; that is, it determines how criminal enquiries and trials are conducted, not the kind of crimes for which one can be prosecuted, nor the sentences that they carry. It is most readily used in some civil legal systems
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
. However, some jurist
Jurist
A jurist or jurisconsult is a professional who studies, develops, applies, or otherwise deals with the law. The term is widely used in American English, but in the United Kingdom and many Commonwealth countries it has only historical and specialist usage...
s do not recognize this dichotomy
Dichotomy
A dichotomy is any splitting of a whole into exactly two non-overlapping parts, meaning it is a procedure in which a whole is divided into two parts...
and see procedure and substantive legal relationships as being interconnected and part of a theory of justice as applied differently in various legal cultures.
In some jurisdictions, the trial judge may participate in the fact-finding inquiry by questioning witnesses even in adversarial proceedings. The rules of admissibility of evidence may also allow the judge to act more like an inquisitor than an arbiter of justice.
Criminal justice
The main feature of the inquisitorial system in criminal justiceCriminal justice
Criminal Justice is the system of practices and institutions of governments directed at upholding social control, deterring and mitigating crime, or sanctioning those who violate laws with criminal penalties and rehabilitation efforts...
in France and other countries functioning along the same lines is the function of the examining or investigating judge (juge d'instruction). The examining judge conducts investigations into serious crimes or complex enquiries. As members of the judiciary, they are independent and outside the province of the executive branch, and therefore separate from the Office of Public Prosecutions which is supervised by the Minister of Justice
Minister of Justice (France)
The Ministry of Justice is controlled by the French Minister of Justice , a top-level cabinet position in the French government. The current Minister of Justice is Michel Mercier...
.
Despite high media attention and frequent TV portrayals, examining judges are actually active in only a small minority of cases. In 2005, there were 1.1 million criminal rulings in France, while only 33,000 new cases were investigated by judges. The vast majority of cases are therefore investigated directly by law enforcement agencies (police
French National Police
The National Police , formerly the Sûreté Nationale, is one of two national police forces and the main civil law enforcement agency of France, with primary jurisdiction in cities and large towns. The other main agency is the military Gendarmerie, with primary jurisdiction in smaller towns and rural...
, gendarmerie) under the supervision of the Office of Public Prosecutions (procureurs).
The judge questions witnesses, interrogates suspects, and orders search
Search warrant
A search warrant is a court order issued by a Magistrate, judge or Supreme Court Official that authorizes law enforcement officers to conduct a search of a person or location for evidence of a crime and to confiscate evidence if it is found....
es for other investigations. The examining judge's goal is not to prosecute the accused, but to gather facts, and as such their duty is to look for any and all evidence
Evidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
(à charge et à décharge), incriminating or exculpatory. Both the prosecution and the defense
Defense (legal)
In civil proceedings and criminal prosecutions under the common law, a defendant may raise a defense in an attempt to avoid criminal or civil liability...
may request the judge to act and may appeal the judge's decisions before an appellate court. The scope of the inquiry is limited by the mandate given by the prosecutor's office: the examining judge cannot open a criminal investigation sua sponte
Sua sponte
In law, sua sponte describes an act of authority taken without formal prompting from another party. The term is usually applied to actions by a judge taken without a prior motion or request from the parties...
.
In the past the examining judge could order committal of the accused, this power being subject to appeal. However, this is no longer the case, and other judges have to approve a committal order.
If the examining judge decides there is a valid case against a certain suspect, the accused is bound over for an adversarial trial by jury. The examining judge does not sit on the trial court vested with trying the case and is in fact prohibited from sitting for future cases involving the same defendant. The case is tried before the court in a manner similar to that of adversarial courts: the prosecution (and on occasion a plaintiff) move for the conviction of accused criminals, the defense rebuts their claims, and the judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
and jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
draw their conclusions from the evidence presented at trial.
Examining judges are used only for severe crimes, e.g., murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
and rape
Rape
Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent. The...
, as well as for moderate crimes, such as embezzlement
Embezzlement
Embezzlement is the act of dishonestly appropriating or secreting assets by one or more individuals to whom such assets have been entrusted....
, misuse of public funds, and corruption
Political corruption
Political corruption is the use of legislated powers by government officials for illegitimate private gain. Misuse of government power for other purposes, such as repression of political opponents and general police brutality, is not considered political corruption. Neither are illegal acts by...
, when the case has a certain complexity.
As a result of judicial investigation and defendants being able to have judicial proceedings dismissed on procedural grounds during the examining phase, cases where the evidence is weak tend not to reach the trial phase. Conversely, the guilty plea
Plea
In legal terms, a plea is simply an answer to a claim made by someone in a civil or criminal case under common law using the adversary system. Colloquially, a plea has come to mean the assertion by a criminal defendant at arraignment, or otherwise in response to a criminal charge, whether that...
and plea bargain
Plea bargain
A plea bargain is an agreement in a criminal case whereby the prosecutor offers the defendant the opportunity to plead guilty, usually to a lesser charge or to the original criminal charge with a recommendation of a lighter than the maximum sentence.A plea bargain allows criminal defendants to...
ing were until recently unknown to French law, and now it only applies to crimes for which the maximum sentence is one year imprisonment. Therefore, most cases go to trial, including cases where the prosecution is almost sure to win a conviction, whereas, in countries such as the United States, these would be settled by plea bargain.
Administrative justice
In administrative courtAdministrative law
Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law...
s such as the Council of State, litigation proceedings are markedly more inquisitorial. Most of the procedure is conducted in writing; the plaintiff writes to the court, which asks explanations from the administration or public service concerned; when answered, the court may then ask further detail from the plaintiff, etc. When the case is sufficiently complete, the lawsuit opens in court; however, the parties are not even required to attend the court appearance. This method reflects the fact that administrative lawsuits are for the most part about matters of formal procedure and technicalities.
History
Until the Medieval inquisitionMedieval Inquisition
The Medieval Inquisition is a series of Inquisitions from around 1184, including the Episcopal Inquisition and later the Papal Inquisition...
in the 12th century, the legal systems used in medieval Europe
Europe
Europe is, by convention, one of the world's seven continents. Comprising the westernmost peninsula of Eurasia, Europe is generally 'divided' from Asia to its east by the watershed divides of the Ural and Caucasus Mountains, the Ural River, the Caspian and Black Seas, and the waterways connecting...
generally relied on the adversarial system to determine whether someone should be tried and whether that person is guilty or innocent. Under this system, unless people were caught in the act of committing crimes, they could not be tried for them until they had been formally accused, either by the voluntary accusations of a sufficient number of witnesses or by an inquest
Inquest
Inquests in England and Wales are held into sudden and unexplained deaths and also into the circumstances of discovery of a certain class of valuable artefacts known as "treasure trove"...
(an early form of grand jury
Grand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...
) convened specifically for that purpose. A weakness of this system was that because it relied on the voluntary accusations of witnesses, and because the penalties for making a false accusation were severe, would-be witnesses could be hesitant to actually make their accusations to the court, for fear of implicating themselves. Because of the difficulties in deciding cases, procedures such as ordeal
Trial by ordeal
Trial by ordeal is a judicial practice by which the guilt or innocence of the accused is determined by subjecting them to an unpleasant, usually dangerous experience...
or combat
Trial by combat
Trial by combat was a method of Germanic law to settle accusations in the absence of witnesses or a confession, in which two parties in dispute fought in single combat; the winner of the fight was proclaimed to be right. In essence, it is a judicially sanctioned duel...
were accepted, though it is now generally agreed that these procedures are not acceptable ways of finding truth or settling a dispute.
Beginning in 1198, Pope Innocent III
Pope Innocent III
Pope Innocent III was Pope from 8 January 1198 until his death. His birth name was Lotario dei Conti di Segni, sometimes anglicised to Lothar of Segni....
issued a series of decretals that reformed the ecclesiastical court system. Under the new processus per inquisitionem (inquisitional procedure) an ecclesiastical magistrate no longer required a formal accusation to summon and try a defendant. Instead, an ecclesiastical court
Ecclesiastical court
An ecclesiastical court is any of certain courts having jurisdiction mainly in spiritual or religious matters. In the Middle Ages in many areas of Europe these courts had much wider powers than before the development of nation states...
could summon and interrogate witnesses of its own initiative, and if the (possibly secret) testimony of those witnesses accused a person of a crime, that person could then be summoned and tried. In 1215, the Fourth Council of the Lateran
Fourth Council of the Lateran
The Fourth Council of the Lateran was convoked by Pope Innocent III with the papal bull of April 19, 1213, and the Council gathered at Rome's Lateran Palace beginning November 11, 1215. Due to the great length of time between the Council's convocation and meeting, many bishops had the opportunity...
affirmed the use of the inquisitional system. The council also forbade clergy from conducting trials by ordeal or combat. As a result, in parts of continental Europe, the ecclesiastical courts operating under the inquisitional procedure became the dominant method by which disputes were adjudicated. In France, the parlement
Parlement
Parlements were regional legislative bodies in Ancien Régime France.The political institutions of the Parlement in Ancien Régime France developed out of the previous council of the king, the Conseil du roi or curia regis, and consequently had ancient and customary rights of consultation and...
s — lay courts — employed inquisitorial proceedings.
In England, however, King Henry II
Henry II of England
Henry II ruled as King of England , Count of Anjou, Count of Maine, Duke of Normandy, Duke of Aquitaine, Duke of Gascony, Count of Nantes, Lord of Ireland and, at various times, controlled parts of Wales, Scotland and western France. Henry, the great-grandson of William the Conqueror, was the...
had established separate secular courts during the 1160s. While the ecclesiastical courts of England, like those on the continent, adopted the inquisitional system, the secular common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
courts continued to operate under the adversarial system. The adversarial principle that a person could not be tried until formally accused continued to apply for most criminal cases. In 1215 this principle became enshrined as article 38 of the Magna Carta
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
: "No bailiff for the future shall, upon his own unsupported complaint, put anyone to his law, without credible witnesses brought for this purposes."
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
Private law
Private law is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts or torts, as it is called in the common law, and the law of obligations as it is called in civilian legal systems...
and criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
, but the rules of civil procedure
Civil procedure
Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits...
were reviewed 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, there exist significant differences of operating methods and procedures between 18th century ancien régime courts and 19th century courts; in particular, limits on the powers of investigators were typically added, as well as increased rights of the defense.
It would be too much of a generalization to state that the civil law is purely inquisitorial and the common law adversarial. Indeed the ancient Roman custom
Custom (law)
Custom in law is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law." Customary law exists where:...
of arbitration
Arbitration
Arbitration, a form of alternative dispute resolution , is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons , by whose decision they agree to be bound...
has now been adapted in many common law jurisdictions to a more inquisitorial form. In some mixed civil law systems, such as those in Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
, Quebec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
and Louisiana
Louisiana
Louisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties...
, while the substantive law is civil in nature and evolution, the procedural codes that have developed over the last several hundred years are based upon the English adversarial system.
Inquisitorial tribunals in common law countries
Administrative proceedings in many common law jurisdictions may be similar to their civil law counterparts and be conducted on a more inquisitorial model. A good example are the many administrative boards such as the New York City Traffic Violations Bureau, a minor tribunal that deals with traffic violations where the adjudicator also functions as the prosecutor and questions the witnesses; he or she also renders judgment and sets the fine to be paid.These types of tribunals or boards can be found in most modern democracies. They function as an expedited form of justice where the state agents conduct an initial investigation and the adjudicator's job is to confirm these preliminary findings through a simplified form of procedure that grants some basic amount of due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
or fundamental justice
Fundamental justice
Fundamental justice is a legal term that signifies a dynamic concept of fairness underlying the administration of justice and its operation, whereas principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the...
in which the accused party has an opportunity to place his or her objections on the record.
Further reading
- French Code of Penal Procedure (Code de procédure pénale)
- legislative part
- regulatory section — regulations taken after advice of the Conseil d'État
- American Law Encyclopedia: Inquisitorial System