Reading Legal Week this morning, I was impressed by an article drawing on reports from a journalist embedded with the Baghdad Provincial Reconstruction Team. Ben Hallman, who is a reporter with The American Lawyer, spent ten days looking at how Iraq’s civil justice system is being restored.
In the middle of his account, one sentence leapt out at me:
This failure to study cases may be a shock to lawyers working in the Anglo-American common law tradition, which is founded on the doctrine of stare decisis, but Iraq’s legal system is (still) part of the civil law tradition. As such, the judicial function is stereotypically to apply the law to the facts without reference to the way similar cases might have been determined in the past. (This stereotype is not as accurate as it used to be, but it will suffice for now.)
Without this understanding, Hallman assumes that a number of the things he sees in the Iraqi system are deficiencies. He is rightly critical of the standard of criminal investigation, but goes on to extend the same criticism to the system itself:
Criminal courts function somewhat better, to the extent that there are trials and judgments that are usually carried out — but they are hardly just. The Iraqi authorities regularly torture suspects until they confess and their justification is that the system for gathering evidence and presenting cases is in such a shambles that they wouldn’t win any cases otherwise.
Defense lawyers, meanwhile, are also undertrained. In Iraq there is no tradition of a lawyer serving as an advocate for their client. They don’t know how to cross-examine witnesses, how to challenge evidence at a trial and neither they nor the judge is accustomed to them playing an active role. Furthermore, they often meet their clients minutes before a trial is to begin.
The adversarial approach, on which advocacy and cross-examination is predicated, is one that belongs in common law systems. It is not present in the French and German legal systems, for example, but the investigatory process is markedly better. To conclude that investigation and presentation of cases could be improved is reasonable. To imply that the system precludes such improvement is not.
I don’t know what the end result of the reconstruction process will be, but I don’t think wholesale adoption of common law and adversarial techniques is appropriate if there is a long-standing alternative tradition in place. It is interesting to note that although General MacArthur promoted consitutional change in post-war Japan, the pre-war Civil and Criminal Codes were left largely untouched. (And, if Wikipedia is to be believed, the criminal justice process is closer to Iraq’s than to the United States’.)
On a more general point, this is a useful reminder that: more than one tradition is always possible; things that are different may not necessarily be worse; and, crucially, what you do is almost always less important than how you do it.