There are different kinds of court, which vary in how they are conducted; each has benefits but none can be guaranteed to be fair.
It is the function of courts of law 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.
· It has been argued that juries in America were set up as a defence against politicians: “our Founders created the jury system in large part to prevent powerful leaders from putting people in jail to satisfy their own political imperatives”.
· The civil law system, which is used in Europe for example, is inquisitorial. Cases are heard in courts of law 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).
· Culturally-tuned courts can be effective because they don't alienate those who are brought before them. Rangatahi courts for Maoris in New Zealand, for example, have a good track record in reducing recidivism.
· Specialist tribunals, with delegated powers, are increasingly appropriate 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.
(This is an archive of a page intended to form part of Edition 4 of the Patterns of Power series of books. The latest versions are at book contents).