the game in some other respect ... The role of the Anglo-American judge may berelatively passive because knowing nothing of the case at the outset, he must learn aboutit as it proceeds, but the reason for giving the leading role to the parties and their lawyershas to do with certain deeply held views about the best way to get at the truth, orsomething akin to it, in the course of a court hearing. It is thought best to let the partiesbattle it out, each presenting and defending a consciously one-sided view of his own case,with the judge standing passively by, essentially seeing simply that the rules of the gameare observed ... The 'adversary procedure' which common lawyers see as the rulingprinciple of procedural law manifests itself in this determined if regulated confrontationbetween the parties to the lawsuit.In Germany and neighbouring countries in Continental Europe procedural law is ratherbased on the idea that it will be easier to get at the truth if the judge is given a strongerrole: he should be entitled, indeed bound, to question, inform, encourage, and advise theparties, lawyers and witnesses so as to get a true and complete picture from them, as freeas possible from inconsistency and ambiguity, and to counteract any mistakes due to lackof care or skill on the part of the suitors or their attorneys. It is true that the German judgecannot of his own motion call a witness simply because his evidence might cast light onthe matter; it is also true that in normal civil litigation the Judge may take account only ofwhat has been led in evidence. Even so, writers from the Common Law ... describe theGerman civil trial, as compared with the Anglo-American trial, as 'inquisitorial', and theGerman judge as ... constantly descending to the level of the litigants as an examiner,patient or hectoring, as counsellor and advisor, as insistent promoter of settlements...There is [also] a complex set of rules, called the 'laws of evidence', which determineswhat evidence may be given by witnesses and what questions they may be asked inexamination and cross-examination. There is no counterpart for this in the Civil Law,where evidence is heard by professional judges who, in a civil suit, should get to heareverything; after all, they are experienced, even hardened, enough to make a 'freeevaluation of the evidence' and separate the grain from the chaff . .....(taken from AN INTRODUCTION TO COMPARATIVE LAW 2nd ed,by K Zweigert & H Kotz, translated by T Weir, pp. 280 - 284)37
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CO5119:03 Business Law SUBJECT MATERIALS >>SCHOOL OF LAWJAMES COOK UNIVERSITYThe effect of the choice between the adversarial and inquisitorial models oftrial is further discussed in the following extract:¶716The adversary system: historical factorsAs mentioned earlier, the judicial system used in common law countries (which includesAustralia and most countries which have been part of the British Empire) follows theadversarial model to a large extent, while the civil law systems (operating in Europe and
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