Justice in Crisis: Comparative Dimensions of Civil Procedure
Adrian A. S. Zuckerman
All systems of procedure seek to do justice. So much we can take for granted as regards each of the systems discussed in this volume. It is also obvious that different systems of procedure employ different methods for achieving this goal. Whether the differences between systems are small or great, a comparison is inevitably called for. We look at each other in order to measure ourselves. But like any other form of assessment, this too requires some parameters, some common denominator by which we can measure and compare.
Accordingly, the first purpose of this opening essay is to develop such a set of parameters. It will be argued that justice has three dimensions by which it is measured. Unfortunately, these three dimensions are not entirely complementary. As we shall see, at times they pull in different directions and call for compromises. Compromise, therefore, is an inescapable feature of ally system of justice.
Once this conceptual framework has been set out, attention will be given to individual procedures. The purpose of this analysis is not to grade the different procedures in some order of preference. Such ordering, it will become apparent, would be largely meaningless, if not altogether arbitrary. Rather, the purpose of the analysis will be to draw attention to how different systems of procedure seek to achieve the goals of justice and what compromises or sacrifices are made in the attempt to do so. This last point is perhaps the most instructive aspect of a comparison of systems, for it draws attention to the fact that what lies behind different methods of doing justice is really a difference in priorities. It is the priority given to this or that objective of justice which shapes the procedures with which we end up.
In all systems of procedure doing justice means arriving at decisions which give the parties before the court what is legally due to them. In order to do justice, then, the court has to determine the true facts and then correctly apply the law
Sue Gibbons, of University College, Oxford, has rendered invaluable assistance with the preparation of this paper.