There is a time and place for everything and I don't think you can just totally rule out the adversarial form in favor of the investigative.

I believe the adversarial process is more conducive to an amiable result in contract law which can become extremely complex beyond the education and experience of any judge or jury. The only bodies who really understand the issues are the litigants themselves and therefore they are the best ones to come up with a resolution. I have seen cases where after several weeks of courtroom adversity the parties come to agreement. If the case goes on to the jury to decide you take your chances.
On the other hand, tort, fraud, civil and many forms of criminal cases would be best handled by an investigative form of trial as the emotional arguments would most likely be ignored in favor of the facts leading to a much more consistent and publicly agreeable outcome.

I have practised in both adversarial and inquisitorial forums. I found the inquisitorial system so suffocating of justice that it was like a breath of fresh air getting back into the adversarial courts. I can’t understand why anyone would say the inquisitorial system is preferable, unless from academic speculation.

It is true that the lawyers and judges have a cartel. But that is not an argument against the adversarial system; it is an argument against occupational licensing. The same exclusive privileges would affect an inquisitorial profession.

Similarly many of the injustices of the legal system come from the fact that it is run by a monopoly – the state. Rearranging the monopoly will only mean the problems reappear in a different guise. Competition between providers of judicial services – at least in civil matters - would likely lower the cost, reduce delay, and improve consumer satisfaction on both sides.

It is not an argument against the adversarial system that parties can raise or evidence any point. From the standpoint of both seeking truth, and justice, that is as it should be.

It is not correct to say that the adversarial system does not provide for seeking agreement. The purpose of pleadings is to isolate issues before the trial by eliminating matters that are not in contention, in other words, to require the parties to identify points of agreement. Thus most cases settle by consent before trial.

To say that it is an insult to justice for rape victims to face embarrassing questions presupposes that they are rape victims in the first place, which is the whole issue. It is precisely the fact that such a prejudiced attitude can have free rein in an inquisitor abusing his power which makes the adversarial system better.

From the standpoint of justice and truth it is far worse for prejudiced hectoring to come from a judge, dominating the entire proceedings, than from counsel facing the correction of an adversary and a judge. In practice that is the alternative.

The title of the piece was about "Common Law", but most of the piece, and comments, are about the adversarial vs investigative debate. I dont think that is the central issue in discussing common law, is it?
Correct me if I am wrong, but isn't "statute law" the law enshrined in Acts of Parliament, while "Common Law" is the law enshrined in the age old records of court decisions, going back to 1000AD and before in Britain? Common Law allows for commonsense judgement, and mostly utilizes precendent. Where no exact precedent exists judges or counsel can try to invoke precedent of roughly similar cases.
Can "the common law be scrapped"? I dont think it is possible, whether K Rudd wanted it or not. Even if Parliament decreed that it should be, surely judges would exercise judgement and continue to consider common law argument in their rulings. It couldnt really be scrapped unless all the judges were imprisoned, or threatened with torture to change their ways of making decisions.
But the business of investigative vs adversarial - yes, perhaps Parliament could alter that. But that is not the crux of common law, as I see it.

The analysis by Ironer of the distinction between common law and statute law [ legislation ] is generally correct and the title of the Legal Sceptic article [ replacing the common law ] is misleading . The only manner in which the common law could , indeed , be replaced , would be to codify all law , by legislation - a massive undertaking and the resulting legislative code would not , necessarily , result in greater justice or more speedy results of disputes . Replacing the adversarial system with the inquisitorial system may , or may not , result in an improved standard of justice . Is there a reliable analysis of the comparative merits of the outcomes of disputes , as between adversarial and inquisitorial systems ?

Any changes would have to be made at both Commonwealth and State levels .

Ironer and Jaylex, the author of the original piece upon which I was commenting suggested that the entire common law should be scrapped, and that Parliament should institute a civil code purporting to "cover the field" instead - as civil law countries have done. That is, effectively, legislation would replace the common law. But I don't like calling it "legislation", as the Civil Codes are quite different to what we call legislation. They are extremely general, and attempt to encapsulate the law in as few words as possible, as opposed to our statutes, which can take up volumes when you put in definitions, exceptions, qualifications etc... Our legislation is very, very detailed by comparison.

As you rightly point out, Jaylex, it would be a massive undertaking, and would have to be undertaken at both a State and a Federal level. It would cost an immense amount to achieve, and everyone would have to be retrained.

I was trying to consider whether there were any reasons why such a massive undertaking would be worthwhile - ultimately, I think there may be some benefits of a civil law system, but the detriments vastly outweigh the benefits.

Interestingly, I understand that France is looking at abolishing investigating judges, and there is a great controversy as a result.

The article is well written and informative but on a pragmatic level is asks the wrong question. Instead of” would you like arsenic or hemlock with your corn flakes?” it might have given a better result by asking “What can we do to improve our legal system here are some of the options”.

In essence I fail to see how either or is the only or best option available e.g. the court should decide on the nature of the evidence and combatants which system is likely to give the best justice for each case i.e.:
• Mr Joe Smith V Workcover might gain a more even contest if it were inquisitorial.
• Likewise ATO V Westfield in front of a jury is patently absurd in that the average Juror would compelled to listen to hours of complex accounting much of which they wouldn’t understand. Such cases would be better heard by a panel of appropriately qualified professionals.
• A dispute over a fence would best be heard by a jury.
The other salient factor is to eliminate legal action being used to avoid responsibility on one side, a quick payday for the opportunist, or as a bulling tool by some dubious public figures seeking to use their public position to squash criticism.
It seems to me that the entire legal system is opperating in horse and buggy world where as modern society is into rockets and computers.