Separation Of Powers In An Adversarial Legal System

An adversarial legal system refers to prosecution or a defendant debating over a case in an attempt to achieve justice. Some benefits of this include pre-trial procedure and the inclusion of the separation of powers, however, some inconsistencies include financial hardships and time-consuming and costly processes. Australia is liberal democracy; this means that the government is elected by the people to ensure individual rights are protected.

The adversarial legal system has many advantages including its ability to be fair and equal by providing pre-trial procedures, however, some parties may be at an unfair disadvantage as a result of financial hardships. This system allows for both parties of the case to present their argument in the best light possible and provide their evidence that supports the facts of the case, along with procedures in place in the lead up to trial such as discovery, which allows for an equal and fair ruling on cases. This system allows both parties to present their evidence and witnesses to support their cases, ensuring the jury has an adequate amount of information and facts of the case to reach a verdict of guilty or not guilty. However, the adversarial legal system may not be just, as verdicts may be made on the basis of which party had a more compelling argument rather than which party had sufficient evidence to support a guilty verdict. As parties may not have the funds to access adequate legal representation, as a result, their lawyer may not be as experienced or adequate enough to present the facts of the case accurately or effectively enough and as a result, may be unfairly disadvantaged and ‘equality before the law cannot be achieved’ (Dalton, et al., 2017, p. 369) due to not being able to afford adequate representation. Therefore, the adversarial legal system ensures to provide evidence and relevant material prior to trial however financial disadvantages can still hinder a prosecution or defendant’s ability to receive a fair trial.

The adversarial legal system ensures those that have power in courts aren’t able to abuse it however the downside is that it is time-consuming and costly. The separation of powers is not only a feature of liberal democracy but also key to the adversarial legal system as it ensures powers cannot be abused and that any branches of government don’t overlap with one another. The separation of powers ‘circumscribes the discretion of judges to make law (sometimes as judicial activists)’ (Hughes, et al., 2003, p. 192) ensuring judges aren’t abusing their right to do so. Furthermore, this system is quite expensive and time-consuming as there are many procedures in a criminal trial including discovery and jury empanelment which not only increase stress on parties involved in the case it also increases case backlogs as a result of cases being time-consuming. Thus. the adversarial legal system has its advantages and disadvantages however it aims to ensure cases are fair and equal.

Hence, an adversarial legal system attempts to ensure that all parties to cases are treated fairly and equally by providing pre-trial procedures and the inclusion of the separation of powers to prevent anyone abusing their powers, however, there are some disadvantages that can hinder this ability such as case backlogs and financial hardships.