Justice: by truth or victory?

Credit: Javitomad

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?

You might think that I’m setting up another facile thought experiment, but I am not. Most of the world has, through the fascinating and mysterious quirks of history, chosen one or the other of these underlying approaches to justice.

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).

We generally find the inquisitorial philosophy undergirding the civil law systems of continental Europe and its former colonies and the countries that have adopted it voluntarily. That turns out to be most of the world — all the countries in blue on the map above.

And we find the adversarial philosophy mainly in the common law systems of England and all the lands it ruled at one point or another — ie, the countries in red or brown on the map. (Let’s leave the countries with Islamic Law, in yellow, and Mongolia, in green, out of this post.)

Because justice, and therefore law, is so fundamental to freedom (which is one of my favorite topics) I have for some time been pondering the question I opened with. So I challenged Richard, a frequent commenter on The Hannibal Blog and a veteran English lawyer, to compare the two systems. Somewhat to my surprise, he did.

In this rigorous series of posts, Richard introduces the systems in turn, proceeding methodically and cautiously to unveil — somewhat coquettishly, I might add 😉 — his preference. (I won’t spoil the fun: Go and find out for yourself.)

Here now is my modest contribution.

A brief history of the systems

Historically, the adversarial system descends from the brute medieval practice of trial by combat.

You did me wrong! → Let’s fight.

It is, in short, the law of the stronger.

Click for credits

Right from the start, especially whenever ladies were involved, the adversaries were allowed to appoint champions to fight on their behalf.

Like its gruesome medieval judicial cousin, trial by ordeal, trial by combat made no pretense to truth. Somebody prevailed, that was all. So it was efficient. But we would not call that justice.

In 1215, Pope Innocent III wanted to change that. So he reformed the court system administered by the Catholic Church across Europe (ie, the ecclesiastical courts, from Greek ekklesia, assembly or church).

The idea was that an ecclesiastical court could take the initiative and summon and interrogate witnesses even without an accusation by one adversary against another.

Trial by combat was now forbidden in the ecclesiastical system. On the continent, this ecclesiastical tradition then became the basis for the subsequent evolution of secular courts.

But in England, Henry II had, during the 1160s, established parallel secular courts. When the church-administered courts in England switched to the inquisitorial system, the secular courts remained adversarial, and those in time became the courts of England. Hence the split.

Henry II

Critique

I) The adversarial system

The adversarial system makes me — intrinsically, philosophically, emotionally — uncomfortable because it was not originally designed to ascertain truth, merely the supremacy of one side.

That said, it has evolved in such as way that truth is now the implicit and desired by-product of the adversarial struggle. If the rules (of evidence, testimony, presumption of innocence et cetera) are sophisticated, it is hoped, the truth is revealed in the process and the “right” side wins, so that the outcome is indeed just.

Nonetheless, there are troubling remnants of the system’s combat origins:

1) The undue role of the “champions”

Today, we call those champions lawyers (attorneys, solicitors….). In the adversarial system, they are the stars. What do you tell a friend in trouble in an adversarial country? “Get a good lawyer.”

Some people try to get a good lawyer, but end up with a bad one, or at least one less good than the adversary’s. Other people cannot afford a good one. Others can afford entire armies of lawyers, and usually win. So money plays an unsavory role.

If the truth really wanted to be revealed, why should it matter so much which lawyer you have? But we all know that it does matter.

2) The undue emphasis on winning

An inquisitor wants to find the truth. But a prosecutor wants to win. To him, that means to convict.

A couple of days ago, I was chatting with Steve Cooley, the district attorney of Los Angeles County and a candidate for attorney general of California. How does he compare himself to his rival, Kamala Harris, the district attorney of San Francisco? Through the conviction rate, of course. Whether or not the convictions were just does not even come up for discussion. (How would you even discuss it?)

In practice, said Cooley, about 95% of convictions come through plea bargains, an inherent part of the adversarial system. (Ie, the two sides come to an agreement even before an independent judge or jury evaluates the truth of their arguments.)

Well, I recently mentioned Harvey Silverglate’s book detailing the various excesses to which prosecutors can go in the pursuit of victory. You can make anybody break down by piling more charges on him until he pleads. That does not make it just.

II) The inquisitorial system

The inquisitorial system makes me uncomfortable in a different way.

In theory, it is splendid to task somebody with inquiring after the truth. Take the example of plea bargains cited above: In the inquisitorial system, a guilty plea does not automatically lead to conviction. It is merely one more piece of evidence. (The inquisitor might decide to ignore the plea if he suspects, for instance, that the pleader is trying to protect somebody else, or is insane, et cetera.)

In practice, however, you have to choose an actual human being to find out the truth, and how is that likely to go?

There is a reason why we (or at least I) hear bad connotations in the word inquisition. It reminds us of the Spanish Inquisition, a time when the system went awfully wrong. The inquisitors, as it happened, were altogether more concerned with pleasing Ferdinand and Isabella than with ascertaining the truth. And they subscribed to the notion that you can get any truth that suits you; it’s just a matter of how you ask.

So an inquisition into truth can become corrupt. Notice, however, that this is a problem common to both the inquisitorial and the adversarial systems: The judiciary must be absolutely independent from political pressure. That includes not only the executive branch of government but also the mob. Ask black people in the Jim Crow South how well the adversarial system worked for them.

The subtler but more profound critique of the inquisitorial system has to do with what Richard calls “over-confidence in the expert”:

If you have a trained magistracy, ostensibly expert in discerning and charged with discovering the truth, there is the risk of over-valuing their work.

And why would that be a problem? Because experts are experts precisely because they have seen lots and lots of cases. And so they are likely to slip into a thought process that says “Hmm, this case X reminds of Y, and I should be consistent so I will…”. No. The facts (truth) of case X must be considered on its own merits alone.

Perhaps experts are less able to do that. As Richard says,

Justice is the art of espying the exception.

Which leaves us, unfortunately, where we started: with questions.

Who, expert or lay, is more likely to espy the exception?  Who is most likely to be free and fair? Which process — a search for truth or a struggle that reveals it — is more just?

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68 thoughts on “Justice: by truth or victory?

  1. Masterly, intelligent, instructive and beautifully written – as always, of course.
    A lesson to me how a historical perspective can hold attention and instantly bring things into shape.

    • I couldn’t have said it better. Now, all you have to do is come up with a new system that will fix these problems!

      What makes these considerations especially interesting is the framework of truth that we’ve been discussing in the last post.

    • Piggy-backing on you, Richard. We’ve opened, not closed, a discussion. 🙂

      Thomas: Yes, I suppose it’s all about that “choice” (the one Nietzsche talks about in the previous post). Golly, truth is an awfully complicated business.

  2. I wish you hadn’t diluted the salient points of your ruminations with pop history crap … Dick Cheney, really? Not NKVD? Disappointed.

    • I concur with Mimi. I don’t have much use for Mr. Cheney myself, but political cheap shots like this tend to derogate from the most brilliantly written piece, at least in the absence of countervailing drive-by directed against the opposing tribe.

    • Alright, then. Perhaps I lost my writerly restraint for a moment. What is cheeky to some is pop history crap to others — it’s all a matter of tone. Gotta be consistent.

      Let it hereby be known to all late-comers that I have bowed to editorial crowd-sourcing and removed the following line from the paragraph about the Spanish Inquisition:

      “…. And in any case, they subscribed to the Dick Cheney philosophy of pursuing truth…” [which is: you can get any truth that suits you; it’s just a matter of how you ask.]

      Poor Dick Cheney. So misunderstood.

      I’ll have to ponder that bit about the need for countervailing drive-bys, however. Something wrong with that logic.

    • @Thomas

      I don’t believe it is censorship when:

      a) it isn’t imposed by a governmental body
      b) a complaint was made and the “offender” simply acquiesced.

      But that’s just me.

    • Yes, Andreas. I agree that NKVD is a preferable example than Cheney and making the change for that reason is perfectly acceptable. It’s a little bit like someone pointing out a typo or grammatical error. It gives you a chance to make the post a little better.

      What put me in the frame of mind that I had when I made my censorship comment was (a) your statement that you were “bowing to editorial crowd sourcing” and (b) some of the commentators who seemed to have the impression that you were being offensive or politically incorrect and that your revision was called for on that basis. Making a change to bow to that sort of pressure is a big no-no and I do not think for one minute that is what you were doing.

      Perhaps I was just afraid that if you start bowing to editorial crowd sourcing, you will become niggardly with respect to providing fresh, challenging ideas.

      One more point, however. Depending on your audience, Cheney may have actually been a better example. I heard that in a poll taken around the 4th of July, 25% of American kids “were unsure” about who America declared independence from. Some thought China, some Germany and some France. Even Mexico got a mention. Based on that, the NKVD might be a bit obscure. Although I think Cheney, and what you are referring to, might be equally arcane to that crowd.

      I will say no more because this is way off the topic of this very interesting post and discussion.

    • “… I was just afraid that if you start bowing to editorial crowd sourcing, you will become niggardly with respect to providing fresh, challenging ideas…”

      Were you really afraid of that? 😉

  3. “………we find the adversarial philosophy mainly in the common law systems of England and all the lands it ruled at one point or another — ie, the countries in red or brown on the map……..”

    How are the systems in the red and brown countries different from each other?

    • I’m out of my depth here, Phil, but it seems that those are mixed systems. Louisiana and French Canada, for instance, were French before they were English, South Africa was Afrikaner etc. So the traditions mixed and merged.

    • The clue might be in the little brown dot over Scotland, where the law is based on Roman Law. Likewise, South Africa is Romano-Dutch. Both operate adversarial systems. I cannot speak for Louisiana or French Canada.

    • @Andreas

      Isn’t the US a little mixed also? We have an adversarial system in the lower courts but inquisitor at the appeals level, especially at the Supreme Court.

  4. Another question: Am I right to assume that in your piece you are only talking of civil law?

    If so, how is the system of criminal law in the countries shaded green, different from the system of criminal law in the countries shaded red and dark brown?

    • Richard might offer help here, but my understanding is that the adversarial and inquisitorial methods pervade all law, criminal and civil. It’s about the process of fact discovery.

      Green: That’s Mongolia. No idea what’s going on there….

    • Using “Civil” in the sense of the law which, broadly, applies as between individuals and does not involve punishment, in England the adversarial system is both criminal and civil.

  5. Why did I come away thinking several seemingly conflicting thoughts?

    Adversarial systems are inherently flawed because they are based on a type of “might makes right” philosophy.

    Inquisitorial systems are inherently flawed because they are more easily corrupted and lead to abuses. And it assumes that those appointed as inquisitors and arbiters (judges) will remain “pure” in their search for truth.

    Some might say we should mix the two, combining the strengths of each, and produce a just system. But, being a cynic, I think that would more likely meld the bad parts of each and create an even more unjust system.

    The problem, it seems to me, is human. It is that we all see (and seek) a slightly different “truth”.

    • Bingo. You feel as I do. “Coming away with conflicting thoughts” is always a risk here on the HB, I guess. Personally, I arrive and come away conflicted. 😉

    • Well, conflictedness (apparently not a word) is my normal condition since I tend to overdue the objectivity thing most times. I suppose I meant more so on this and because I hadn’t considered inquisitorial systems to be just. I most associated them with countries that were under totalitarian rule or dictatorships. To be honest, I hadn’t thought that deeply about them before this.

  6. In whichever system law and justice are two different things. When a judgment or a verdict is pronounced it may be very well founded in law but be severely flawed regarding justice. For instance when you apply the “three strikes” law of Florida one guy will get a light sentence for stealing thousands of dollars, but the other guy who has had 2 prior minor misdemeanor conviction will get the book thrown at him. The law has been upheld but has justice been done?

    • I believe you are confusing California’s Three Strikes law with Florida’s Violent Offender’s Act. Floria requires three actual felonies, not a combination of misdemeanors and felonies (as you imply). California, I believe, allows a misdemeanor to be raised to a felony if committed whi9le on parole.

    • Sure, Paul, but isn’t the idea (of progress, of civilization) to find a system that narrows the “delta”, as it were, between law and justice? Meaning, we strive to have a justice system that maximizes justice and minimizes injustice.

      The Three Strikes Law is actually what I went to talk to Steve Cooley about. He’s got surprising views on it. More to come anon.

    • I look forward to that discussion!

      An interesting starting point is to compare and contrast law and justice and to discuss whether either or both are absolutes. Law certainly isn’t. Is justice? Woodrow Wilson (a good candidate for a closer look, Andreas, once said “What we seek is the reign of law, based upon the consent of the governed and sustained by the organized opinion of mankind.”

      Is justice a moving target based upon the ‘organized opinion of mankind?’ History might seem to say so and it might also explain, but not justify, for lack of a better word, things like three strikes laws.

    • @Thomas

      Woodrow Wilson? The president who signed the Sedition Act of 1918?

      http://en.wikipedia.org/wiki/Sedition_Act_of_1918

      Justice, like beauty, may be in the eye of the beholder. Most of what we see as justice is better described as retribution.

      But, on the other side, is it justice when a person serves 18 months to 2 years for killing someone? That was the average for non-first degree murder convictions in northeast Florida between 1980 and 1990, I believe.

      Is it justice when the guy waiting in the getaway car is tried for first capital murder because the one who went into the bank killed a guard?

    • Yes, that’s the one.

      What makes WW an interesting study is that he is a very good example of a person whose values totally conflicted with what he had to do while in office. His career is a study in good and bad choices as to when to make a stand. He was often the victim of “the organized opinion of mankind” which wasn’t the same as his views.

      With respect to your last question, that’s the point. I think a law school professor and the family of the guard who was killed might have different views of what constitutes justice in a case like that.

    • @Thomas

      I have never been able to discern the actual values of a person since I have never been able to read minds. In Wilson’s case, he had some goals that, in order to advance them, he abdicated some values he had professed at various times. Whether he really held those values, I cannot know. I can only know he professed them and tossed them aside in favor of some goals. Just as he campaigned as the person to keep us out of WWI and then promptly got us into it.

      But, yes, he is an interesting man.

      Your last statement goes to my “justice, like beauty, is in the eye of the beholder” and that “justice is better described as retribution.” What is justice to the family who lost a member to violence? Death sentence (which, in most states means 20+ years on death row), life imprisonment for the killer, 2o years, 10 years?

      We seek something called “closure” but that maybe an ephemeral feeling. The loss remains, the pain lingers, a life cannot be restored. And restoration of the life lost is the only real justice. I have no answer for what justice is, I believe it is different for each of us. I do not think we will ever find it in our courts.

  7. “……political cheap shots like this tend to derogate……”

    “…..Dick Cheney, really? Not NKVD? Disappointed……”

    Nowadays you have to be soooo careful about the objects of humour.

    I surmise, though, that had your little joke been at the expense of someone not on the political right, it would gave gone unremarked.

    • As you saw above, it’s been submitted that one may offend only as long as one adds a countervailing offense toward the opposing tribe. 😉 Unpack that one, if you care.

    • Only meant to inject a little intellectual rigor, not to be a ‘censor’ or not have a sense of humor. I am a tribeless drunken housewife, so clearly take my comments for what they are worth … not much. Hope newcomers to the blog are still welcome to comment. Or has censorship really come to the Hannibal Blog?!

    • Newcomers are very welcome to the HB, and ESPECIALLY tribeless drunken housewives.

      (Only a tiny percentage of readers leave comments. I’d love to change that.)

      Incidentally, I might add this for perspective: With your very first intervention, you have exerted actual editorial influence for the better. Not bad, eh?

    • You are to be commended for removing the offending joke.

      It behooves all of us bloggers to exercise more self-censorship as you’ve so thoughtfully just done, so to produce blogging pieces which are Fair and Balanced.

    • Laws are tricky. Some seem eminently just and fair, others seem to make no sense at all, and still others seem contradictory to justice.

      Way too many laws are passed to satisfy the emotions of the electorate and to make them believe their elected representatives are doing something.

  8. The jury trial is calculated to be some reassurance that the sense of common men and women will determine the outcome of cases, whether criminal or civil. It takes the power away from the civil law authorities to find the truth, because a single judge can’t be relied upon to be as pristine as a jury.

    The perceived problems with the jury system might be based on aberrant results. Like the OJ case; despite the machinations of trial lawyers, the overwhelming number of verdicts are within the expectations of the people who watch and study them. (most judges I have spoken to over the last 30 years think the system works pretty well.) Nonetheless, with the problems with the heavy and expensive use of experts in a complex society also seems to turn the common man off.

    Justice you shall seek? I guess its in the trying, whether in Continental Europe or Britian, or the US, that is important. To use all of one’s viscera to find the truth and seek justice.

    Two more things; yes Doug, the wheel man in you exammple should be charged with capital murder under the felony murder rule-it works and its air.

    Finally, in answer to the queston on the front of the Economist this month, my answer is, Yes, Penelope Cruz!!

    • There you have it, Steve. Crystal clear reality in a nutshell.

      What is this visceral quest that the people expect? Is it co-extensive with justice or the expectations of the wrongly accused and convicted, or the disappointed victim? How can we tell if the result satisfies all those expectations? You say that common men and women provide reassurance as to the outcome: is it then permissible to state the views of experts as to the success of a system?

      I am interested to know if Dafna, a victim of violent crime, is satisfied that the jury system meets her expectations.

    • Whoa. Dafna is a victim of violent crime? I had no idea. Pray tell, dafna. (if you care, that is)

      Juries vs Judges: Having been a juror, I happen to have very strong views on the subject. So strong that I consider it best not to post on that subject for the time being.

    • richard,

      what a memory you have.

      i shared that comment on phil’s blog when i was talking to one of his pen names. where have all his nom de plum’s gone?

      hmmm…. yes i survived a violent crime (more than twenty plus years ago) which involved a knife and sexual assault. the man was a serial offender, who had been released and gone back to his same ways. he was profoundly dangerous and obviously mentally ill. he stalked his victims, attached in broad daylight.

      the police took my testimony (specifics only a victim would know) but i never had to testify. there must have been enough other physical and witness testimony. he was convicted. he later hanged himself, or i suspect foul play.

      this blog topic is beyond my scope. however, i remember feeling a great pity for the assailant when learning of his death. why? because i lived and he did not. so- my expectations were met when the man was convicted, but not when he took his life (or someone took it from him).

      i don’t think that added anything to the discussion because i have no real knowledge of how the particular judgement was reached.

    • unfortunately richard i think most lay people are ignorant of “process” until they end up on one side of the equation.

      it’s only now that i realize lack of interest in the process. given the nature of the crime and the number of victims, i figure that there was enough evidence to support the verdict.

      my feeling back then was relief that i was not asked to be more a part of the process. and now it is the past…

  9. Another great topic though I seem to be late to the party. 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.

    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.

    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.

    N.B. I went slightly afield in my response so I cut it out and put it on my blog to spare everyone not interested.

  10. Richard:

    I think the challenge is that Justice is often in the eyes of the beholder. The beholder can be a judge, a jury, or the public square. Moreover, it depends on the traditions and mores of the society and the model under which the law is made and delivered. Civil systems and adversarial systems, today, often have statutes that define and order the relationships among people. Lawyers “help” us understand what the statutes mean and argue to interpret them to help a client or cause. Ultimately, whether a result if just, depends on the collective experience of the citizens and what they think is just. The problem is that some people come with an overbearing religious view of law (natural law) and others a belief that man-made (positive law) is the answer to everything.

    What may be just in Georgia may not appear as just in California, and certainly what is just in Tunisia is not necessarily just here in America.

    The verdict in the BART police shooting is a good example where the culture and history of a failed City understandably has the citizens in that City up in arms. A tragic case to be sure and I personally wish it never happened. But from a pure legal analysis, the verdict was supported by the evidence. The jury, the conscience of the community, made the decision; that’s refreshing that it was not the government in some sort of inquisition.

    So justice is a state of mind anchored by the moral compass shared by groupings of societies in articulation with the legislature’s best effort to codify proscribed conduct. I personally think that Western Civilization, which used to be taught in college, has done a good job at seeking justice. Not always successful for sure, but it is part of the culture.

    • A masterpiece of elucidation, Steve , and you cover so much. I am, however, uneasy about the notion of the jury being the conscience of the community. How exactly do you associate the BART verdict with this notion? To what extent were the possible findings limited by the judge’s directions and so dependent on expert opinion? In the broad issue of justice, how relevant is the distinction between law and fact?

      Had the verdict been one of guilty of first degree murder, how would you have distinguished the jury from a lynch mob? I hope my question is not fatuous, but your position is a justification of both.

      Discussions of the jury and comparison of adversarial and inquisitorial systems seem unavoidably to merge when we tackle these inescapable questions, and I am not quite sure why.

    • Aha.

      sablock seems to raise another possibility: that the REAL choice (or dialectic) is not between adversarial and inquisitorial systems, but between natural and positive law.

      Will ponder, Steve….

  11. Andreas,

    In order to clear the air, and resolve the outstanding issue of mentioning Dick Chaney, I think we should strap a large rock to your buttocks, and throw you in the pond, and if you sink, my friend, then are totally absolved, and you can relax!! If you float Mister, then you are in big trouble!!

    Best,
    SB

    • We all suspect that you are hoping to much to be the one strapping the rock to my buttocks. Remember: Ye shall be exposed in the strapping long enough for me to exact revenge.

    • just remember… one spark and the whole place goes up.

      potty humor is also a sign of higher intelligence, so i’ve heard.

  12. I found your analysis here and on your blog profoundly thought-provoking, Nick.

    There is, however, a distinction between justice per se and justice according to law. What we deal with here is justice according to law, otherwise we encroach upon the principles of lawmaking

    Speaking generally, the nature of truth is prescribed in the adversarial system, just as you describe in your blog; it is not prescribed in the inquisitorial system.

    Truth is so elusive. Which approach is the more valid? It seems to me that the adversarial system accepts the limitations of the pursuit, whereas the inquisitorial system does not. Yet in practical terms, and accepting the human imperfections you observe, I suppose those difficulties must all come out in the wash, provided you abandon the idea that anyone has a monopoly on wisdom.

    • Thank you for your kind words and I am glad you found my comment so. I certainly have a lot to build on between Andreas’ provocative posts and the other comments here.

      You make a critical distinction between absolute and positive justice. Indeed we must be careful to make distinctions so we do not overstep the bounds into lawmaking.

      I shall return to your excellent posts on your blog as I continue considering this seemingly ever-deepening issue. Always more questions!

  13. It shouldn’t be too difficult to write a computer program that manages information gathering for each type of complaint, and then with input/choices from a judge, requests further information from each party, until a concise and adequate side-by-side comparison exists for all necessary facts with which to judge a case.

  14. For example, beginning with the “essential elements” for a complaint, and working backwards for essential law and facts. The main problem would be that the BAR would hate such a thing, because it would nearly elminate a need for attorneys, and opportunity for most legal corruptions (which definitely appears to be the reason for the current designs where attorneys are free to work outside the record with the judges and decide what outcome will provide the most money for the BAR or political correctness or any other agenda at work – which too often is not “justice”).

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