Fuller, Adjudication
Lon Fuller argues that the adversarial system is essential to adjudication. Explain why you disagree with this argument.
Introduction
In Black's Law Dictionary adjudication is expressed as - "the legal process resolving a dispute; the process of judicially deciding a case."1 Lon Fuller's argument is that the only way to resolve a dispute effectively is through the adversarial system.
You have two adversaries in every civil dispute - someone asserting a right, someone denying it. Someone contending for one thing, someone contending against it.2
Sir Jacob describes a system of conflict concerned with the assertion of a right, deciding between two persons which side wins. Fuller and other like-minded commentators are content with confining adjudication within this narrow concept however this essay will argue that by doing this they ignore firstly, that there are a number of flaws in this assessment and secondly, the importance of alternative dispute resolution and the Woolf Reforms which have had a large impact on the procedure of resolving disputes within the civil system.
Do Fuller's arguments stand up to scrutiny?
The only way to safeguard against judicial bias and prejudgement
is by having a system where the adjudicator takes a backseat
role. This argument is extremely naïve in that it fails
to take into consideration a number of significant factors.
Firstly, it takes the adjudicator in isolation instead of
within a system where there are number of judicial checks
such as the right to appeal and the adjudicators own extensive
legal experience and his ability to question himself. In
many ways Fuller's opinion can be seen as patronising.
A second point is that the argument concentrates extensively
on the Anglo-American experience and fails to conduct a
successful comparison with the inquisitorial system which
is prevalent in a number of European countries.3 In this type of system the truth is revealed through an
inquiry which is conducted by the judge who takes the initiative
rather than the prosecution or the defence. He will examine
the evidence and interrogate the witnesses. In these cases
adjudication still occurs. Fuller would see this as ineffective
however there are a number of advantages to this type of
adjudication, one of them being that there is less likely
to be bias through the manipulation of facts and evidence
by the prosecution or defence.
The arguments of counsel hold the case, as it were in suspension between two opposing interpretations of it.4
This quote from Fuller is a contradiction in itself as
it can equally be used to point to the ineffectiveness that
can occur. The dispute can remain in a state of being unresolved
as the purpose of the adversarial system is to find a winner
(this can sometimes prove difficult), therefore proving
a hindrance to adjudication.
A final point which is interesting to note is that Fuller
himself has since realised his own limited conception of
adjudication and has begun to move towards middle ground.
Fuller and other writers in the common law world unnecessarily
limit the conception of adjudication by equating it with
the adversarial process. By doing this they create a stagnant
notion of adjudication preventing the evolution of more
effective methods of justice.
The Woolf Reforms and Alternative Dispute Resolution
Since 1999 the civil process has undergone some significant
changes to the way in which it is run. This has come about
since the Woolf Reforms and the implementation of the Civil
Procedure Rules 1998. Lord Wolf created them as part of
a strategy to change the civil justice system. Since then
the number of civil disputes that have advanced to trial
has dropped significantly as the objective has been to promote
the use of ADR which would mean speedier, cheaper and more
effective settlements of civil disputes. In fact out of
three volumes of the CPR, only 11 pages are concerned with
the trial as a method of resolution!5
An important indicator of the ineffectiveness of the adversarial
system can be seen by those claimants who actually use it
as a method of justice. In 1995 the National Consumer Council
conducted a survey where they found that 3 out of 4 people
in serious legal disputes were dissatisfied with the civil
justice system.6 While people like Fuller see adversary as essential such
evidence as this raises serious doubt.
In the system that Lord Woolf examined, the main responsibility for the initiation and conduct of proceedings rested with the parties to each individual case and it was normally the plaintiff who set the pace. Thus, Lord Woolf also noted that, without effective judicial control, the adversarial process is likely to encourage an adversarial culture and to degenerate into an environment in which the litigation process is, too often, seen as a battlefield where no rules apply.7
Conclusion
There is a need to draw a distinction between civil and
criminal law when discussing the adversarial process, as
the Woolf Reforms were only concerned with the former. However
as has been discussed the limitation of the concept of adjudication
in Fuller's terms leaves the law stagnant. It has been shown
how the civil trial has declined significantly in favour
of settling a dispute in advance. The inquisitorial criminal
justice system is also out with Fuller's statement, yet
adjudication is effectively handled there as well. Where
the primary purpose of adjudication is to resolve the dispute,
regardless of whether it is civil or criminal, by limiting
it as a concept there is a real threat of failing to carry
out justice which should always be the ultimate objective.
- Black's
Law Dictionary, 7th edn. (1999)[^ Return]
- Sir Jack
I.H. Jacob, "The Adversary System of Civil Litigation"
(1983) City of London Law Review 17,18 cited in Smith,
Bailey & Gunn (2002)[^ Return]
- Allison
in Cambridge Law Journal p. 376 [^ Return]
- Allison,
p.376[^ Return]
- Smith,
Bailey & Gun (2002), p. 1023[^ Return]
- "Seeking
Civil Justice: A survey of people's needs and experiences",
1995, NCC as cited in Slapper & Kelly (2001), p. 215[^
Return]
- Slapper
& Kelly (2001), p. 216[^ Return]
BIBLIOGRAPHY
Allison JWF, "Fuller's Analysis of Polycentric
Disputes" [1994] Cambridge Law Journal 367-383
Black's Law Dictionary, 7th edn, (1999)
Slapper & Kelly, Q & A Series English Legal System,
4th edn, Cavendish (2001)
Smith, Bailey & Gunn, The Modern English Legal System,
4th edn, Sweet & Maxwell (2002)
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