Monday, July 12, 2010

Brief Comments on the Law

Originally a comment at The Hannibal Blog post, "Justice: by truth or victory?" and cross-posted here.

1. Andreas Kluth posed the question:
Which sort of judicial system, generally speaking, is more likely to lead to justice? One that:
  • looks for the truth, or
  • lets two sides fight it out to see who wins?
The first philosophy — justice as a search for truth — we call the inquisitorial system (because a judge sets out to inquire after the facts of a case, ie the truth).
The second philosophy — justice by duking it out until one side is left standing — we call the adversarial system (because two adversaries and their lawyers meet in court, and a judge merely makes sure that the rules are observed).
2. I'm somewhat more bullish on the "adversarial system" insofar as it seems essentially dialectical, i.e. that we expect truth to come out of the opposing ideas. Of course the adversarial system could be nothing but a glorified duel. Indeed, as one could show, it often has been, but I do not think it is of essence. We expect in this system not that each side be equally persuasive, but as persuasive as possible since the system assumes there is only one truth. Also, the arguments for both sides might be deficient, but seeing both of them resulted in a synthesis (truth.) This system is of course subject to the availability of facts and quality of logic.

3. Now the inquisitorial is ostensibly truth seeking too and just as dependent on the need of facts and logic. The difference is that the inquisitorial system is entirely dependent on the inquisitor's logic (would an "inquisitory panel" be more reliable? The term certainly reeks of totalitarianism.) whereas in the adversarial system, even if carried out poorly, there would be some element of contrast.

4. The problems seem in both cases to be 1) human error, and 2) the lack of finite methods for dealing with these cases. Regarding point No. 2, such is why many rightly consider English common law such an achievement, since it dealt with many issues and was refined over many many years. It reflected the nature and character of the people, what they considered natural and normative. Yet such a system requires an essentially homogeneous and relatively static society.

A brief discussion of justice as it intersects with the need for truth. Those uninterested may skip to paragraph 11.

5. As commenter Richard said, though, what is justice? Justice would seem to require truth. The burden of proof being "guilty beyond a reasonable doubt" certainly prevents injustice, but if a guilty person goes free is that justice? Of course not, but implicit in this very liberal standard is a sense of the imprecision of matters. To paraphrase Aristotle, the legal world is by nature a combination of logic and ethical-politics, rhetoric and dialectic, and various disciplines (with their own problems) precisely because it deals with matters for which there are no specific arts and precisely because we have alternative possibilities.

6. Its methods are inherently imprecise in some cases. To use the word science loosely, science aims at the truth but can be refined over many years by many great minds and altered with the benefit of looking at many examples. Still, it's truth is admittedly provisional. To expect perfection in every case from a legal system with so many variables, including time constraints, working against truth is hazardous. Thus, "beyond a reasonable doubt" is not only necessary but its existence demonstrates a keen observation. Such is not to say truth is always or even usually, out of reach, but rather that an individual's liberty (and thus his finite life) ought not to be lightly taken away. We might be less wary of pronouncing judgment if the stakes were not so high. One must note though, that we cannot say a legal system has failed either by excess or lack of convictions, but must independently consider each case. 

7. Additionally, in a system founded on natural law, justice is part adherence to natural, immutable law and part adherence to positive, man-made law. To call a decision "just" then requires justice in both senses, and thus the positive has in all cases to be in accord with the natural. (See Aristotle, Ethics, 1134b, Rhetoric 1373b)

8. Let us consider a few hypothetical cases then. If a defendant has been logically proven guilty but is acquitted on account of a procedural rule or an obscure point of law, the fault is in the positive law. I say fault and not defect since the law in question may be designed to prevent a guilty man from being convicted. Such a system protects the innocent to the advantage of the guilty (and perhaps at the expense of other innocents, if the guilt party who was not convicted goes on to harm innocents.)

9. Such sounds unpleasant and contrary to justice but the only alternatives are 1) a perfect system with perfect people, or 2) a system which convicts the guilty at the expense of the innocent. Such examples can readily be found in totalitarian states. The concept was also nicely illustrated in two episodes of the Star Trek franchise. In the Deep Space Nine episode "Tribunal" we learn on one planet that all cases end in convictions. "The system is efficient and the swiftness of 'justice' makes the people take pride in it." (a paraphrase) In the Next Generation episode "Justice" we see a planet with seemingly normal rules, but there is only one punishment, death. That surely keeps the peace. (In contrast to this extreme consider Aristotle's concept of "equity," Ethics 1137b and Rhetoric, 1374.)

10. Thus in every legal case we are subject to the available means of truth-gathering, the available means of persuasion, the competency of the legal parties (lawyers and judges), and to what the laws themselves tend, deliberately or accidentally, to produce.

11. Have we answered our original question, whether an adversarial or inquisitorial system is desirable? Yes, insofar as we have seen they carry mostly the same defects. Is it more likely to find one person, the inquisitor, competent to the task for an inquisitorial system or two, evenly matched in skill, for the adversarial system? Is it more likely for a judge or two lawyers to be corrupt? These questions are most similar to those we saw in examining the concept of executive authority. [1] Are there then no virtues in any system involving these two methods?

12. Yes, and we will see them in a mixed system, whereby the whole case is broken down into separate elements. We see one virtue in the need of being convicted not by a fixed "inquisitorial board" but a newly- and impartially-formed jury of one's peers. We see one in the ability to represent oneself, choose one's counselor, and be guaranteed one. We see one in having an expert in law (a judge) accordingly guide the proceedings. Yet these structures do not guarantee justice, though they aim toward protecting the innocent. Also they cannot produce perfect justice in every case if they aim either to protect the innocent or convict the guilty. Most importantly they do not guarantee justice because they cannot guarantee good and wise lawyers, jurists, and judges, and while law may be amended better to promote justice, the injustice of acquitting the guilty or convicting the innocent cannot be undone.

13. Thus we, if we are to expect justice for others and ourselves, ought to err on the side of liberty and, being a part of the justice system, must ourselves keep informed and strive toward wisdom. No system can compensate for a foolish and frivolous people.



  1. Interesting handling of a huge and slippery topic. Any time people discuss such topics as liberty, democracy, freedom and justice you first have to level the playing field with definitions of terms. I have what may seem a sophomoric definition of justice--simply the elimination of privilege.

  2. It is slippery isn't it? It frustratingly intersects with every other topic conceivable.

    Regarding privilege and justice I would certainly say that the law ought not to confer any special privilege on any person or group.