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Sir Jack Jacob Notes

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Sir Jack Jacob - Hamlyn Lectures: The Fabric of English Civil Justice (1987)

1. Fundamental Features A. Introductory The system of civil justice is of transcendent importance for the people of this country. The subject may be said to consist of three parts: the institutional part, the professional part and the procedural part. Civil justice, especially its procedural part, is generally, or at any rate popularly, regarded as being highly technical, rule-ridden, formalistic, shrouded in mystery and serviced by its own cloistered priests, some of whom perform their ritual capers and speak an unfamiliar language in strange surroundings and in the higher strata dressed in ornamental garb. Thus it is that for most people English civil justice is a remote, incomprehensible, mystifying and in some ways terrifying area of the law. What is needed above all today is a breath of fresh air to blow through the corridors of civil justice to de-mystify the process, to render it plain, simple and intelligible, to enable not only the experts in other disciplines but also the man in the High Street to understand and appreciate its operation and in this way to bring justice closer to the common people. Ten markers, each of which may be regarded as a primary principle of the system of English civil justice and which taken together present the basic form and shape of its fabric and the essential methods of its operation. A. Fundamental Features

1. The Adversary System In both the adversary and the inquisitorial systems, there is a division of functions between the court on the one hand and the parties on the other. The division of functions, however, is the very reserve in the adversary system from the way in which it operates in the inquisitorial system. The fundamental divergence between the two systems is that under the English adversary system the court plays an inactive, passive, non-interventionist part whereas under the civil law inquisitorial system, the court plays an active, authorative, interventionist role; and, corresponding, under the adversary system, the parties play a major, dominating, independent role to persuade the court to adjudicate or otherwise resolve the dispute in their favour whereas under the inquisitorial system, they play a minor, tentative, supportive role to enable the court to perform its function to inquire into and determine the dispute. Under the adversary system, the basic assumptions are that civil disputes are a matter of private concern of the parties involved and may even be regarded as their private property, though their determination by the courts may have wider, more far-reaching, even public

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