Inquisitorial System vs Adversarial System

Civil System:
- Inquisitorial system
Judge makes a decision by applying the relevant civil code – this enables them to
inquire and ascertain what the relevant facts in the case are. They don’t have a strong
hand in shaping the law.
- Judges ask for evidence, ask the questions and demand evidence. Lawyers present
arguments based on the evidence the court finds.

Common law system:

- Adversarial basis
Both sides argue their cases: The claimant/ Prosecutor vs Defendant
And judge acts as referee
Lawyers question witnesses and demand evidence and present cases based on evidence
they have gathered.

SIDE NOTE:
The way a country develops has been seen to be determined on which system it has adopted.
Both systems have their advantages and disadvantages;
Common Law system: Flexibility because law isn’t written down – allows points of law to be
mooted and for the law to evolve to suit changing environments.

Civil law system: little scope to take a broad interpretation of law because its written down.
Advantage is there is greater certainty.

Sources of law:
Primary sources:
- Legislation and case law.
- Not all areas of law will be covered by legislation but may be covered by case law.
Eg: Contract of offer and purchase
Questions that arise are: Was the price clarified?
Delivery date and method of payment?
_ There is no legislation involved in determining these questions but rather what you
are required to do is to undertake a factual enquiry with reference to other cases that
have considered similar points to reach a conclusion.
_ Some issues of are such importance that legislation is developed to give effect to the
side situation, and such legislation is then said to be interpreted and understood using
the case it was based off.

SOURCES OF COMMON LAW SOURCES OF CIVIL LAW

Case law
the legal codes, such as the
institutionalized opinions civil code or the and
interpretations criminal code,
judicial authorities custom;
public juries.