Fact-finding role of the judge in Anglo-American law

In many legal systems in the world, reform movements have been observed and two major legal systems, common law and civil law, have huge impacts on these reforms. Due to the globalization and convergent movements of law between or above legal systems, these deep-rooted legal systems, common law and civil law, have interacted with each other. This interaction has reduced primary differences with time. Briefly, the main objective of these reform movements is to implement and adopt the best features of these legal systems. The primary corner stone of the alteration and improvement of these legal systems are judges. In this study, the fact-gathering process of the Anglo-American and Turkish laws which have not only common but also different features at the same time was examined comparatively. Furthermore, American and English laws, which are the two major representatives of Anglo-American law, were analysed in detail and an overall picture of Anglo-American law has been drawn. Turkish law, a representative of civil law, was also examined in detail. In this comparative study, the main target is the comprehensive consideration of the role of the judge in fact-gathering process in Anglo-American law and to reach a conclusion for our legal system by making comparisons with Turkish law. In this regard, in order to improve our legal system and to find solutions to the shortcomings within the scope of judge's role in Turkish law, some recommendations have been proposed to offer solutions. Among Anglo-American law and Turkish law, even though numerous fundamental procedural differences are still being distinguished throughout the proceeding, fact-gathering process and accordingly "judges" and "the role of the judges in the proceedings" are stood out as the essential divergence points of these different legal systems. In this context, the topic of this study is framed as fact-gathering role of the judge. Both in Anglo-American law and in some Continental laws touched upon in this study, there exists some important reforms in the role of the judges and indirectly in the role of the lawyers and the parties. In the context of the reform movement that increases the role of the judge throughout proceeding, there has been a remarkable interaction among Anglo-American law and Continental laws that were discussed in the study. In English law, with the enactment of Civil Procedure Rules in 1998, the rules of overriding objectives and case management are adopted and thus the active judge is provided to take an important role throughout the proceeding. In addition to the overriding objectives and case management rules which are the main pillars of the English civil procedure reform, almost complete abolition of jury trial, emphasis on the pre-trial stage and comprehensive change of the discovery method have caused the conversion of the balance in the proceeding and also caused a shift from strict adversarial system which provides the main role to the parties, to the judge. In American law, with the enactment of Federal Rules of Civil Procedure in 1938, an important change has been realized in fact-gathering process. Previously, petitions and trial phase were the focus processes throughout proceedings; but now with the involvement of the middle phase, which is called pre-trial phase, became one of substantial phases. The discovery process which is administered by lawyers has become the main phase in fact-gathering process. In Anglo-American law, fact-gathering through disclosure process has always seen as a trouble by the Continental law perspective. In fact, these concerns remain irrelevant after examining recent Anglo-American law practice in detail. Both English and American law broke the strict adversarial character of the civil procedure, activated the role of the judge and thus Anglo-American law has provided a new procedural system conveniently to the core of its civil process. On the contrary to popular belief, disclosure procedure has no longer been a process that is solely administered by the parties, without involvement of the judge. As a matter of course, although disclosure procedure has some shortcomings, there are many exemplary points as well. English civil procedure law is still administered by adversarial principle. But the dominant adversarial character of English civil procedural law is softened by the Civil Procedure Rules in order to meet the requirements of procedural law and to find solutions to the shortcomings. By this way, a new image is tried to be given to the procedural law. In this context, judges who are the main impeller of the judiciary have been activated substantially but on the other hand adversarial character was not completely abandoned, an active judge was involved to the system which was used to be administered solely by parties and their lawyers. Thereby, English legal mechanism has been tried to be a more controlled process. English procedural law has undergone a radical change, in accordance with its legal structure, socio-economic and political needs and globalisation but at the same time without losing its essential features. English procedural law has got changed not only substantially but also carefully and eluded to be a strict representative of adversarial system. English procedural law, with the active role of judge, has approached to the most of the Continental law countries' features and moreover it has become an exemplary to the most of the Continental law countries with the reforms it has made. Now, English law which has been always linked together with American law, has entered into a big change and created an independent English civil procedural law eluding from its strict adversarial character. These reforms have caused to diverge from the concept of Anglo-American law system and also caused to weaken the effect of this notion had before. Nowadays an utterly different English law can be distinguished especially in the context of the fact-gathering role of the judge. Throughout this study, it was persistently tried to draw attention to not only the degree of the increase but also importance of the change in the role of the judge. Even the adversarial English law has changed dramatically within the scope of activation the role of the judge. From this point of view, Turkish law which is essentially based upon civil law tradition should also activate the role of the judge compatible with its core features in order to provide a fair trial in a reasonable time with a reasonable cost. With the Code of Civil Procedure Nr. 6100, Turkish procedural law has also made an important reform in order to comply with the harmonisation movement in the world. However, we believe that, Turkish law has still more to do to activate the role of the judge in fact-gathering process. In both Anglo-American law and Turkish law, there exists the adversarial principle at a certain level. In other words, parties of a litigation have the main role in fact-gathering process. Having said that, primary reason for the differences in fact-gathering process between these legal systems is the degree of the application of the adversarial principle. In American law, the adversarial principle is being applied more intensely than English law. In English law with the reform in the context of the Civil Procedure Rules, the degree of the application of the adversarial principle is softened and crucial power has given to the judge in order to conduct, administer and illuminate the proceedings. Besides in Turkish law the adversarial principle has been moderated by article 31 of Code of Civil Procedure, titled judge's illumination task. Since the examination of the role of the judge without taking into consideration of the illumination task of the judge would be evisceration of the role of the judge, having said that the role of the judge in fact-gathering process should be evaluated with the illumination task of the judge. Accordingly, the main factor to reach the truth that is compatible with the purpose of the proceeding and embody the role of the judge in fact-gathering process is the illumination task of the judge. Judge's illumination task moderates the adversarial principle. In this way, judge reaches a decision according to the facts and evidences only alleged by parties but at the same time judge provides the facts and evidences alleged by parties are substantially and legally clear and complete. Thus judge also provides to reach a fair decision through the proceeding. Judge enables parties with his/her concrete remarks to explain the unclear, deficient and contradictory points with the help of judge's illumination task which serves furthermore for right to a fair trial. Judge's illumination task also contributes considerably to the principle of procedural economy. In Anglo-American law for many years before the radical reforms realized in procedural laws, adhesion strictly to the adversarial principle and judge's passive role had been considered appropriate for a fair and impartial trial. Main reason of adhesion strictly to the adversarial principle is the idea to reach the truth with the adversaries contest and battle whose interests are being interfered. In this contest, judge only acts as an impartial arbiter who is not to be involved actively in fact-gathering process because decision maker should be a different authority from the investigator in order not to give a partial decision. In other words, with such a passive judge, impartiality can be maintained and judge acts only as an arbiter who controls the conduct of the process. Whereas giving an active role to the judge does not automatically mean that judge's impartiality is in danger. Judge should use his/her illumination task actively to maintain a fair trial in a reasonable time and to preserve impartiality by treating equally to the parties. Indeed, with such an application the facts and evidences are brought by the parties to the proceeding, nevertheless judge assures only the facts and evidences brought by the parties are complete and clear. In this context, judge can not remind specific issues and encourage parties to bring specific facts and evidences to the proceeding that are not included to the proceeding by the parties before. In Anglo-American law and in some Continental law countries that are mentioned in this study, although there are numerous reasons and impacts to formalise and determine the scope of the adversarial principle, the most significant one is the illumination task of the judge. In this regard, English law has increased the role of the judge accomplishedly and has taken an important step to realize the proceedings in a more fair way, in reasonable time with reasonable costs. Whilst the role of the English judge has been reshaped and activated with case management and overriding objectives, the reform in Turkish law has been realized especially within the scope of article 31 of the Code of Civil Procedure titled judge's illumination task. Besides in American law, even though important reforms about enhancing the role of the judge have been realised in the context of case management rules, these reforms have not reached a sufficient level. So in American law the shortcomings caused by the passive role of the judge can be intensively seen. The radical reform realised in English law has been an important exemplary even for most of the Continental law countries which have already an active judge. Even English law which has strictly adhesion to the adversarial principle for centuries, has activated the role of the judge in fact-gathering process as a radical solution for the major problems that render the proceeding cumbersome. Certainly English law has realised these huge exemplary reforms compatible with its essential structure without leaving its Anglo-American features. Having said that, to maintain administration of the proceedings fairly in a reasonable time, with reasonable costs, it is inevitable to give an active role to the judge in fact-gathering process. On the other hand, globalization, harmonization and the movement of convergence of the legal systems have important impacts on activation of the role of the judge in Anglo-American law, in Turkish law and in some Continental law countries stated in this study. In this regard, reform quests and interactions have been still continued. In accordance with Turkish legal system we should comply with the reform movement. We consider that contrary to popular belief there are various beneficial procedures that we can adopt in order to improve Turkish procedural law, from Anglo-American legal system which looks distant to our legal system.