Philosophy Now Forum

I hate the adversarial “justice” system.

It is not based on trying to find the truth, but it is based on WINNING, regardless of truth, regardless of guilt or innocence, regardless of harm done or not.

It is based on lies, theatrics, emotional manipulation and loopholes to get the guilty off or punishing the innocent if that is what it takes to win the case.

What other options are you aware of?

The problem with justice is that it has no option but to be subjective. Justice is responsible for deciding what is acceptable and what is not, and the line between those two can be as unclear as the line between good and evil. Not only that, but "acceptable" is a notion that depends on the individual, one that can vary from person to person. We are trying to use objectively a notion that is subjective by nature, resulting in the adversarial justice system you speak of. As it is not absolute, it is easily corrupted by human greed and pride. I do not think there is an alternative system that can somehow root out this corruption, as the problem is not of the system but of justice itself. As Pascal said, "Justice is subject to dispute, might is easily recognized and not disputed. Hence, we cannot give might to justice."

A lot depends on who is charging who. If a really bad person charges a good person with a crime, the courts will restrict what the good person can present as evidence to demonstrate what a bad person they really are, in favor of the person making the charges. Victim status is more dependent on who brings charges against the other person.

Starfall wrote:The problem with justice is that it has no option but to be subjective. Justice is responsible for deciding what is acceptable and what is not, and the line between those two can be as unclear as the line between good and evil. Not only that, but "acceptable" is a notion that depends on the individual, one that can vary from person to person. We are trying to use objectively a notion that is subjective by nature, resulting in the adversarial justice system you speak of. As it is not absolute, it is easily corrupted by human greed and pride. I do not think there is an alternative system that can somehow root out this corruption, as the problem is not of the system but of justice itself. As Pascal said, "Justice is subject to dispute, might is easily recognized and not disputed. Hence, we cannot give might to justice."

Options?

First – remove money from the system and it will eliminate most of the problems. Members of the legal profession will not be motivated any more (with few exceptions) by the desire to WIN their cases, regardless of guilt or innocence of their clients.

Then, you can think about the details of the justice system where practitioners can focus on doing justice, instead of winning at any cost.

I would do away with defense and prosecution altogether – instead I would appoint experts relevant to the case, to study, evaluate and report on all the evidence available in the case from interviews, police reports and facts collected.

They could submit their report to either an impartial judge (or 3 judges) or even to a jury to study, deliberate and make decisions. The objective of all the participants would be to find the truth, instead of winning for one side or for the other.

I am sure a lot of details would have to be ironed out but this is the general direction it should proceed in.

The major difference would be: impartiality, desire to find the truth, and to do justice – instead of winning at any cost, regardless of guilt or innocence.

The bail system should be completely divorced from money – instead it should use the best judgment available to evaluate the danger the accused is posing to society if left at large.

The system would not be perfect, mistakes would be made – but far fewer than in our present system which is heavily biased to monied and political interests.

Could this new social contract be corrupted? Of course it could. Human beings are very good at corrupting anything, given time. But it would work for a while, maybe long enough for people to develop a taste for sanity.

Do I seriously think that the proposed changes are possible?

Not really.

So what good is this fantasy? Not very practical for the moment, other than, maybe, help some people think outside the box and consider something beyond rearranging deck chairs on the Titanic..

I am a scientist, intent on trying to find the truth.

Scientists often have conferences, symposiums, etc., to discuss one specific idea and find out if it is true or false.

They usually don’t appoint one scientist to argue for, and another to argue against, the idea, ignoring and attacking everything the other said – they just take turns looking at the issue, examining it from all angles, listening to each other, modifying their own thoughts on the subject, based on what they hear from the others and trying to reach a consensus.

Niels Bohr once said to Wolfgang Pauli: "We are all agreed that your theory is crazy. The question which divides us is whether it is crazy enough to have a chance of being correct"

Scientist are usually intent on finding the truth, rather than winning the argument even if they are wrong.

Scientists are also fighting with each other (in some environments, not in others) but the warfare is about personal ambition and not about scientific truth.

In this battle it never happens that both sides would deliberately falsify scientific truth in order to 'win' (with the exception of VERY few cases, and they are ALWAYS found out and punished for it).

If there is a disagreement about scientific truth (and there are plenty), it is based on HONEST differences of opinion, with both parties intent on finding the TRUTH (again, with a VERY few exceptions).

Now compare this to the adversarial 'justice' system (where the opposite is the norm) and you will see what I am talking about.

One example of how science is done (as opposed to 'justice') is the epic battle between Einstein and Bohr:

Albert Einstein and Niels Bohr spent over 25 years arguing about the Uncertainty Principle. Einstein would dream up thought-experiments to prove that the theory was incorrect and Bohr would prove Einstein wrong every time. Until, one day, at the 1930 Solvay conference, Einstein managed to come up with one example that completely baffled Bohr, who went to bed and spent a sleepless night trying to find a way to prove Einstein wrong, yet one more time.

Next morning they met at breakfast, each with a huge grin on his face. Einstein was convinced that he finally defeated Bohr. Bohr, on the other hand, had found the mistake Einstein had made - Albert forgot to take only one thing into consideration: the effect of his own General Theory of Relativity. There was much merriment around the table that morning!

Now, can you imagine this attitude between defense and prosecution where both parties are intent on finding the truth, instead of winning by any means, including lies, omissions, misrepresentation, trickery, theatrics, emotional manipulation, exploiting loopholes, intimidation and even bribery (of 'expert' witnesses)?

In our political/social system it is the need to fight it out -- politely ("my learned friend is ..."), but trade as many blows as we can and hope to win.

It is the old underlying conflict between co-operation and competition.

Co-operation is a lot more efficient and a lot less wasteful.

Some choose co-operation, some choose competition, confrontation, violence, fraud and another long list of methods humans have used over history.

In a family you wouldn't put your kids on trial and appoint 2 family members, instructing one to prove the kid guilty, instructing the other to prove him innocent, regardless what they personally thought.

Some might and I would pity his/her children.

In the "human family" of ours, however, we do exactly that.

I know you will say that society is not a family -- and that is exactly where the source of our problems lie.

Some aspects of the justice system we have now are pretty good.

Let's pretend we're satisfied with the body of laws we have at present - the law is not on trial; there is no disagreement over whether some act is criminal, whether someone suspected of committing it should be brought to justice; whether a convicted criminal should be condemned to punishment or correction, and by what means.

Then, one component we should definitely keep is a jury. "Of his peers" is problematic - I certainly wouldn't like Conrad Black tried by house of Lords, or Bernie Madoff by a dozen money marketeers. For most trials, I'm content with a random selections of eligible citizens. On the whole, I'm content with the Canadian jury selection process (I haven't seen the US or British ones in operation.)

We need the police - some kind of honest law-enforcement agency that has the people, skills, facilities and authority to conduct an investigation and to arrest suspects - some of whom may be violent and antisocial - to neutralize any threat they pose and make them available for trial.

We need the forensic scientists and other expert witnesses.

I'm generally satisfied with the magistrates, court clerks, recorders and legal researchers.

So, then the only serious problem is the opposing counsel squaring off as in gladiatorial combat. I particularly object to this configuration when one or the other party has a team, or army, of lawyers. How wasteful and unequal!

How about this? We keep the system, for the time being, in the same kind of structure and organization. We make a small team - say one attorney and two clerks - available for consultation on matters of law and precedent, and to give advice. This one team would serve all concerned in a case: police, accused, victim, litigants - even the grandmother who might get custody of a child if her son is sent to jail.

Then we amass all the pertinent information we possibly can, couch it in the most appropriate format - photos, filmed interviews, forensic reports, witness statements, maps, diagrams, bloody gloves - the works, in an orderly fashion. We put the jury in a room with the evidence - and maybe a professional presenter, who takes them through the investigation process as it happened. The jury can stop proceedings to ask questions of the legal panel at any time. The court recorder takes a note of any question each juror has on a particular topic, or regarding a piece of evidence.

Then the accused is brought in and allowed to summarize his side of the story. Then the witnesses come in one by one, summarize their evidence, and answer whatever questions the jury asks (with the court recorder adding any they had thought of earlier and forgot.)

Between sessions, the jury is given time to discuss what they've heard. Once they're satisfied that there is no more to learn, the judge comes in, gives them instruction in matters of law, and leaves them to deliberate.

Would that work?

PS We can keep the jury in same courtrooms we already have, with audience allowed to see, and media film, them at work - but not talk to them. This to show that the jury really exists, is doing what it's supposed to, and not being coerced.

(Reply to Ned)

The shortest answer I can give is that it is not that simple, but you know that already, don't you?

First of all, comparing science with justice is just wrong. Science is universal and objective, justice is not. You cannot use the methods of debate science uses in the area of justice. You probably wanted to describe how competition and rivalry doesn't always have to be unhealthy, and you are correct in that. However, as with many cases, the desires of humans once again are the problem.

If humans had no personality, no desires whatsoever, then society itself would function just like the human body. Justice would not even be an issue. Every person would do what he/she needed to do for the society to be healthy, and through flawless cooperation the society closest to being perfect would be achieved.

Or would it?

Is such a society truly worthy of existence? Perhaps the society is supposed to be different from the human body, as humans have wills of their own. Human desire might be the root of all corruption, but it is also what makes the society dynamic, always changing.

This is a question for another day, however. Let me focus on the theme of "finding the truth vs winning". The Sophists once said that information is relative, hence what matters is not the truth or falsity of the information but rather your ability of persuading the person before you to accept it. While they viewed all information as relative, what they said holds for justice as well. Problem after problem occurs in the justice systems of today that leave judges baffled so as to what to do. The laws can be obsolete, and you might not be able to decide which side is right and which side is wrong. Even if you do, you will still have to determine exactly how much your decision should favor the side that is right. In such cases, what matters is the lawyers' competence in the area of defense. Whoever has the better lawyer has a certain advantage, simply because justice is that ambiguous a notion. Hence, the goal of justice is to win and not to find the truth, because more often than not there is no one truth to find. You seem to be under the false impression that justice is only comprised of criminal law, which is one of the rare fields of law where there is some kind of an absolute truth (the crime was either committed or not.) However, even so, factors like the circumstances of the crime, the economic status of the defendant, the moral disposition of the prosecution all influence the severity of the punishment. In justice, no matter what the case, absolute truth does not exist.

Conversely, science is an area of absolutes, where information is universal. I don't need to persuade you that every polynomial function with complex coefficients has at least one complex zero, because it is a universal and absolute result. There can be scientific disputes in areas that have not yet been fully explored, such as the dispute between Bohr and Einstein. However, there is only one truth: the uncertainty principle is either true or false - it can't be both. However, in a subjective area such as justice, an argument can be right and wrong at the same time depending on your perspective. Stuff like removing money from the system is secondary and fail to address the core of the problem, which is that justice is subjective.

OK, you gave me a lot to think about.

I will get back to you after I reflected on what's been said.

Skip made some very good point too and I need to think about them as well.

Rare pleasure indeed!

Starfall wrote:If humans had no personality, no desires whatsoever, then society itself would function just like the human body. Justice would not even be an issue. Every person would do what he/she needed to do for the society to be healthy, and through flawless cooperation the society closest to being perfect would be achieved.

I agree.

Is such a society truly worthy of existence? Perhaps the society is supposed to be different from the human body, as humans have wills of their own. Human desire might be the root of all corruption, but it is also what makes the society dynamic, always changing.

I am not sure if a dynamic and always changing society is a value by itself, regardless of how it changes and in what direction.

Problem after problem occurs in the justice systems of today that leave judges baffled so as to what to do. The laws can be obsolete, and you might not be able to decide which side is right and which side is wrong. Even if you do, you will still have to determine exactly how much your decision should favor the side that is right.... In such cases, what matters is the lawyers' competence in the area of defense. Whoever has the better lawyer has a certain advantage

Yes, that is probably true. I have minimum personal experience with the justice system. I know for a fact that it often fails and is often unjust. Innocents get punished and guilty get off, with alarming regularity. I partially blame the adversarial legal system for it. Remember the OJ Simpson trial?

Hence, the goal of justice is to win and not to find the truth, because more often than not there is no one truth to find.

That sounds horrible to my scientist mind.

... in a subjective area such as justice, an argument can be right and wrong at the same time depending on your perspective.

I have to agree to that -- life is a lot more complicated than science. However, a systematic approach of resolving conflicts should be possible to build on some basic principles. I once attempted to suggest such a system and started a thread on it called "Resolving conflicting loyalties" I will post it again if I find it.

Stuff like removing money from the system is secondary and fail to address the core of the problem, which is that justice is subjective.

I strongly believe that that would greatly improve the system!

Skip wrote:Then, one component we should definitely keep is a jury. "Of his peers" is problematic - I certainly wouldn't like Conrad Black tried by house of Lords, or Bernie Madoff by a dozen money marketeers. For most trials, I'm content with a random selections of eligible citizens.

I can go along with that.

So, then the only serious problem is the opposing counsel squaring off as in gladiatorial combat. I particularly object to this configuration when one or the other party has a team, or army, of lawyers. How wasteful and unequal!

Excellent point. My suggestion of removing money from the system would do away with inequality in this regard.

Then we amass all the pertinent information we possibly can, couch it in the most appropriate format - photos, filmed interviews, forensic reports, witness statements, maps, diagrams, bloody gloves - the works, in an orderly fashion. We put the jury in a room with the evidence - and maybe a professional presenter, who takes them through the investigation process as it happened. The jury can stop proceedings to ask questions of the legal panel at any time. The court recorder takes a note of any question each juror has on a particular topic, or regarding a piece of evidence. Then the accused is brought in and allowed to summarize his side of the story. Then the witnesses come in one by one, summarize their evidence, and answer whatever questions the jury asks (with the court recorder adding any they had thought of earlier and forgot.) Between sessions, the jury is given time to discuss what they've heard. Once they're satisfied that there is no more to learn, the judge comes in, gives them instruction in matters of law, and leaves them to deliberate.

This is brilliant, Skip, very much what I had in mind how the adversarial theatrics could be done away with. Looks like we are making progress in discussing alternatives.

Starfall ---- Hence, , because more often than not there is no one truth to find. You seem to be under the false impression that justice is only comprised of criminal law, which is one of the rare fields of law where there is some kind of an absolute truth (the crime was either committed or not.) However, even so, factors like the circumstances of the crime, the economic status of the defendant, the moral disposition of the prosecution all influence the severity of the punishment. In justice, no matter what the case, absolute truth does not exist.

I know you were not talking to me, but this stood out, and I sort of care.

the goal of justice is to win and not to find the truth

I do not believe this. Winning may be the goal for the each participant, but not for the justice system itself and the society which set it up and spends a good deal of its resources on it, the goal is much bigger. We are attempting to curtail, contain or control the most destructive activities of our citizenry, whether directed at one another or the state, its agencies or infrastructure. That's important. It's also important for the orderly conduct of the state that its citizens are confident of protection by the law. Thus, justice must be seen to be done - in a manner acceptable to the majority of its citizens. (That's one of the changeable aspects of both law and its practice.)

You seem to be under the false impression that justice is only comprised of criminal law

True, Ned didn't address all the litigations domestic, corporate, deed, probate, personal injury, copyright, etc. They're not a bit sexy - except to some of the practitioners, of course. But neither do they result in a lot of lives snuffed out by the inept executioner or wasted in confinement. Criminal court is where the most egregious injustice takes place. On humanitarian grounds, that's more important than squabbles over who should have got Aunt Helena's Picasso, though perhaps not so important as who should clean up the oil spill.

[in criminal cases]factors like the circumstances of the crime, the economic status of the defendant, the moral disposition of the prosecution all influence the severity of the punishment.

Obviously. That's one reason mitigating circumstances are introduced by the defence - only, most low-income people get low-competence representation* - and why judges have considerable leeway in sentencing. But we can nullify prosecution prejudice by making the process non-adversarial. Juries are quite capable of understanding provocation, predisposition and circumstance, without anyone grandstanding it at them. Juries might be able to understand the defendant better in a face-to-face, rather than stage-managed, meeting.
And I maintain that that the jury should have access to all police interview recordings - preferably videos.

In justice, no matter what the case, absolute truth does not exist.

Of course it doesn't. Every adult reporting for jury duty knows this, and is prepared to wrestle with it. You should see how serious, dedicated and discreet they suddenly become when they've been chosen for a criminal case. (And how much they dread being picked for a monetary litigation.) Trust your fellow citizens: if they are given all the facts, they'll usually make the right decision. One major problem of the adversarial system is that juries are given carefully selected and edited facts.

(*What the haitch did CBC do with This is Wonderland?)

If you restrict the area of justice to only criminal law, then it becomes easier to find alternatives, because as I said, there is some absolute truth in criminal cases. The jury system is well suited for dealing with the subjective nuances of any case, in fact, that is why the system exists in the first place. At the moment, the jury is provided with selective truth, which makes them biased towards one side rather than the other. This is indeed the product of the adversarial justice system spoken of in this thread. It isn't so hard to provide the jury with all of the facts, and then leave them to deliberate about the case until they find a satisfactory resolution. This should eliminate most of the problems of injustice in criminal cases.

However, criminal law is not the only branch of justice; and there is much more relativity in the other branches. In order for you to get an understanding of this, I will give a real life example from an unnamed country. The Constitutional Court abolishes a certain law because it is in conflict with the Constitution, and declares that the law will cease to be in effect six months from that date. However, the Supreme Court of Appeals argues "If the law is against the Constitution, why are you allowing it to be in effect for six months? Shouldn't you abolish it immediately?" and decides to cease the application of the law immediately. The Constitutional Court, in turn, defends its decision by stating "If the law had been abolished immediately, then there would be a hole in the legal system that would take time to fill. In that time, since there is no law to apply, it would lead to ambiguity in cases concerning the abolished law."

Such disputes happen often in legal systems, where the courts themselves are at a loss as to what to do. It sounds ridiculous that two different courts of the same country can make two opposing decisions on the same topic, but it is how the justice system works. Which side is right? Which side is wrong? You will find that it is no longer so easy to answer.

Starfall wrote:If you restrict the area of justice to only criminal law, then it becomes easier to find alternatives, because as I said, there is some absolute truth in criminal cases. The jury system is well suited for dealing with the subjective nuances of any case, in fact, that is why the system exists in the first place. At the moment, the jury is provided with selective truth, which makes them biased towards one side rather than the other. This is indeed the product of the adversarial justice system spoken of in this thread. It isn't so hard to provide the jury with all of the facts, and then leave them to deliberate about the case until they find a satisfactory resolution. This should eliminate most of the problems of injustice in criminal cases.

My emphasis in the quote.

So how about doing away with the adversarial system in the case of criminal law?

It would be a step in the right direction, I think.

The idea is nice, but the adversarial justice system arises from the adversarial social system. Capitalism is based on competition and puts emphasis on winning, so obviously the justice system in a capitalist society will also share those traits, even if there is an absolute truth behind the case. Solving the issue isn't very hard if you have the power to do so, but those who have such power are capitalists who like the system as it is. Thus, I do not really see a way from here to there, even if the journey would have been very short if it was embarked on.

Starfall wrote:The idea is nice, but the adversarial justice system arises from the adversarial social system. Capitalism is based on competition and puts emphasis on winning, so obviously the justice system in a capitalist society will also share those traits

Fine. So how about doing away with the Capitalist system? (Not a serious question in this post).

Solving the issue isn't very hard if you have the power to do so, but those who have such power are capitalists who like the system as it is.

In the "Your deepest convictions -- Twitte style" thread I said:

- Solutions to mankind’s problems are easy and obvious. They remain unsolved because those who could solve them – don’t want to.

In a big, heterogeneous, federated nation-state, law is never going to be simple; the work of courts is never going to be easy.

In a case of constitutional ambiguity, it's not a problem of adversarialism or winning; it's a problem of interpretation and the logistics of application. Legislatures and courts will always have a lag-time between their decisions, whether there are two or more (police, appeals courts, insurance companies, escrow, injunctions) sides, whether they are represented separately, or en classe. That's just a feature of complexity.

In litigation between two equal parties, I have no objection to adversarial legal proceedings: after all, they are adversaries.
Between a large corporation and a single wronged employee, or a landlord and one tenant, even though they are adversaries, it doesn't work at all well because they are unequal. That's why they have class action suits. The biggest problem with those is that discovery is a long and difficult process (the more litigants, the more depositions and cross-checks, etc.) and sifting through such a mountain of information can take years - by which time, half the complainants will have died without compensation. This kind problem is harder to solve.... so I suggest preventing it, instead, with good government regulation and a good complaint board to deal with individual infractions as they happen.
Each sort of legal issue can be dealt-with on its own terms and probably improved, but not all types would benefit from removing the confrontational approach, or the goal of a clear victory.

It's appropriate in the particular instance of criminal law to remove confrontation, because this, above all, is a matter of the citizen vs the machinery of the state. That is not an economic issue: it's a moral and psychological one. The government exists to protect all citizens - it's not supposed to be the enemy of some in order to befriend others; it's not supposed to take up sides. It's supposed to keep peace and order among all the people; it's supposed to mete out justice impartially.