(This is an archived page, from the Patterns of Power Edition 3 book. Current versions are at book contents).
It is the function of courts to determine whether the law has been broken and to decide upon the consequences to the offender. There are different ways of conducting court proceedings, according to the legal system in use (5.2.1):
· The common law system used in America and Britain is adversarial: the cases for the prosecution and defence are presented by different advocates. It has the advantage that defendants can feel that there is someone on their side, so that they feel less powerless in front of the might of the law. A disadvantage, though, is that the outcome can be swayed by the brilliance of one or other of the advocates – so justice will not always be best served and very wealthy people are more likely to escape justice than those who cannot afford the best lawyers.
· The presence of a jury, composed of ordinary citizens, is also reassuring to a defendant. As with any other group of people, though, juries can be swayed by a charismatic individual; their competence and impartiality cannot be guaranteed.
· The civil law system, which is used in Europe for example, is inquisitorial: the case is heard by judges or magistrates without the presence of advocates for the defence and prosecution. Competence and impartiality depend solely on those on the bench. In the absence of advocates, they are less likely to be swayed by oratory – so perhaps they are more likely to find the truth, but defendants may feel less reassured by the process.
· A public perception of impartiality is particularly important in a pluralist society, and cultural considerations are one reason why there is a demand for some cases to be heard in religious courts – as discussed later in this chapter (5.3.3).
· Specialist tribunals, with delegated powers, are increasingly appropriate as a way to respond to new types of crime such as cases related to finance or advanced technology.
These systems differ in their acceptability, depending on the situation.