chapter
26 Pages

The Adversary Nature of the American Legal System: A Historical Perspective 1

ByMarion Neef, Stuart Nagel

This chapter examines the origins of the adversary nature of the American judicial system. Under the American adversarial legal system, it is assumed that the fairest decision can be obtained when the two parties to the immediate conflict argue in open court according to carefully prescribed rules and procedures. The confrontation of witnesses in open court is at the heart of the American legal system, since it is thought that the best result is obtained when the parties face each other as adversaries in a kind of constrained battle procedure. The adversary theory of justice is premised on the assumption that the truth can best be discovered if each side strives as hard as it can, in a partisan spirit, to bring to the court's attention the evidence favorable to itself. The adversary process is thus an intricate system of fact gathering and fact presentation, under which the opposing parties confront each other according to elaborate procedural rules.