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?

American Caligulas

Alan Dershowitz

It is fundamental to a free society that its citizens be able to read the law and conform their conduct to it.

So says Alan Dershowitz, a Harvard law professor and famous lawyer, in his foreword to “Three Felonies a Day,” a new book by Harvey Silverglate. (Silverglate talks about his book at the Cato Institute in the clip below).

So this is yet another way in which simplicity, one of my recurring themes on The Hannibal Blog, is a prerequisite for freedom, another thread of mine. By contrast, complexity and vagueness, by entrapping citizens, can lead them into serfdom.

America’s founders, Dershowitz reminds us, used to say that a criminal statute had to be so clear and simple that it could be understood when read by a person “while running.” They believed that, if people struggle to understand what they are supposed to do or refrain from doing, society is no longer free in any meaningful sense of that term.

Caligula

The notorious Roman emperor Caligula also understood this, but had a different motivation. Cassius Dio (LIX, 28.8), tell us that

after enacting severe laws in regard to the taxes, he inscribed them in exceedingly small letters on a tablet which he then hung up in a high place, so that it should be read by as few as possible and that many through ignorance of what was bidden or forbidden should lay themselves liable to the penalties provided…

Another man who understood and used this insight is Lavrenti Beria, Stalin’s head of the KGB, who famously said

Show me the man and I’ll find you the crime.

The Road to American Serfdom

Is America today like Caligula’s Rome or Beria’s Soviet Union? No, at least not yet, and nobody is suggesting that it is.

But the fact that we need to spell this out should itself cause alarm. For this might be the road we’re on. (We already found that the Soviet Union during the Gulag was the only society with a higher incarceration rate than America today. This is not the sort of peer group that one wants to be compared to!)

The reason for worry is the increasing and extreme vagueness of America’s federal and state statutes. Sometimes, in addition to being vague, statutes also contradict other statutes, so that a law-abiding citizen in certain situations has no legal option to act at all! As Dershowitz writes:

The very possibility that citizens who believe they are law-abiding may, in the eyes of federal prosecutors, be committing three federal felonies each day … threatens the very foundation of our democracy…. when the executive branch, through its politically appointed prosecutors, has the power to criminalize ordinary conduct through accordion-like criminal statutes, the system of checks and balances breaks down…. [We are] … in danger of becoming a society in which prosecutors alone become judges, juries and executioners because the threat of high sentences makes it too costly for even innocent people to resist the prosecutorial pressure.

What he is referring to there is the trend among even innocent defendants today to plead guilty to “reduced” charges rather than risk a trial with draconian sentences in the event of conviction. Because that’s what American prosecutors are wont to do: to pile charges upon charges until the victim breaks down in fear, and tells prosecutors whatever they want to hear in return for a deal, so that the prosecutors can then go after another and more valuable target.

Silverglate, in his book, describes case after case of this so-called “laddering” by prosecutors. (Silverglate’s task is difficult because, by definition, the evidence is not so much in trial records but in the plea bargains that did not lead to trials.)

So let’s talk …

About American prosecutors

Unlike Beria or Caligula, they may genuinely believe that they are on the side of good rather than evil. (Technically, the congressmen who write the laws are the equivalents of Caligula; the prosecutors who manipulate the laws’ vagueness are the Berias.) As Dershowitz writes,

The men and women of zeal who use elastic criminal statutes to prosecute citizens who they believe are exploiting or endangering other citizens may in fact be doing God’s work, but they are not doing Jefferson’s work or Hamilton’s work or Madison‘s work or the work of the other founders of our secular nation and Constitution. They should leave to God (or public opinion) the punishment of immoral people who do not violate the explicit terms of criminal statutes.

America, of course, is unusual among liberal democracies in several respects:

Its attorneys general are political appointments by the president. They have two distinct functions. One is to be loyal and trusted advisers to the president. The other, in theory, is to be impartial prosecutors. Other democracies split these two roles into two separate jobs. America does not.
Being a prosecutor in America is very often merely a stepping stone toward higher office, such as senator or congressman or governor, so prosecutors must … win, win, win. (Remember Spitzer?) Never mind the “truth” or “justice”.
At the state and county level, Americans often elect prosecutors and even judges. This is because they believe that democracy is always synonymous with freedom and refuse to examine this idea. In other democracies, prosecutors and judges are civil servants. In America, many of them campaign for re-election, raise money from voters, compete with each other to be “tough on crime” and so on.

As Dershowitz writes,

Our penchant for voting on everything has reached laughable proportions in Florida, where even “public defenders” must run for office. I can only imaging what the campaign must be like.

The result, of course, is a severe and growing threat to liberty. This is a non-partisan issue, neither of “the left” nor of “the right.” Americans (whether on FOX or MSNBC) must stop evoking “freedom” as a soundbite and political cudgel and start thinking about what it actually means and requires.

Watch Silverglate:

“Ought” vs “is”: Socrates and Callicles

One of the most momentous conversations in history you’ve never heard about took place between Socrates and a man named Callicles, and is recorded in Plato’s Gorgias. It is a surprisingly moving portrayal of a man who tries to describe the world as it is but, upon prompting, reveals how much he yearns for the way it ought to be. Although it took place 2,400 years ago, the conversation is timeless and very modern. I think it describes many of us today.

Lions and sheep

As usual, Socrates is going around asking people to define “justice” and to expose, as was his wont, their confusion and ignorance. Callicles decides to have a go.

He proceeds to give a sort of genealogy of the concepts just and unjust. The law of nature is that the stronger and better dominate the weaker and worse. The lions feast on the sheep. That is natural justice. (Compare: Thucydides, writing at about the time the dialogue would have taken place, about the genocide of Melos.)

The weak, the sheep, don’t like that, of course, so they get together and call what the strong do unjust. By implication, what they themselves do is just. Collectively as a herd, the sheep want to dominate the lions. So whereas nature is on the side of the strong and the lions, convention is on the side of the weak and the sheep.

Influence on Nietzsche

To many of you, this rings a bell. Yes, this is where Nietzsche got his ideas for his Genealogy of Morals. Nietzsche took his metaphors of lions, sheep, herds, slaves and so forth from Callicles, then spun his theory. It was that the sheep banded together to invert the natural concepts of good and bad, strong and weak, motivated by a festering rage for which Nietzsche used the French word ressentiment.

Relevance to Darwin

Socrates being Socrates, of course, he goes on to needle Callicles about the precise meaning of words in order to poke a hole in his argument. He asks Callicles to clarify the terms “better” and “stronger”. Are they the same?

Callicles has to admit that they are not. And off they go, debating what that means.

Today, of course, we know that Callicles was looking for a better word: not strong or good but fit. Not fit as in ‘toned from the gym’ but as in ‘survival of the fittest’. The fittest, according to Darwin, are not the strongest or the best but the most adapted.

The law of nature that Callicles refers to is therefore evolution. It is the tautological observation that those who are better adapted to the prevailing circumstances will leave more of themselves (ie, their genes) behind than those who are worse adapted.

Gibe at democracy

Callicles and Socrates go on to mock democracy (Athens was an even more direct democracy than America is today). Democracy to them is the inversion of nature, the herd of sheep ruling the lions, the weak dominating the strong, the inferior getting their revenge on the superior.

Yearning for what ought to be

But the dialogue between Callicles and Socrates becomes more moving than anything Nietzsche did with it. That’s because during the conversation it becomes clear that Callicles is a sophisticated and sensitive man who’s trying to describe how the world is while simultaneously being sad about it and yearning for how things ought to be.

He’s confused and bitter, about many things. He’s angry at Socrates for needling him, but also because he already foresees (correctly, of course) that the democratic herd of sheep will condemn the lion Socrates. And he hates himself for having to suck up to the herd, to the Athenians, to make his living.

He also hates seeing the fit succeed whether or not they are also good. In other words, he has the ideal of justice in his head as though it were an archetype. Like most of us, he’s frustrated. That’s all that Plato definitely establishes in this dialogue.

The rape of Melos: Thucydides as great thinker

One of the most important dialogues in all of literature, all of history is the so-called “Melian dialogue.” Its subject is power.

Its author was Thucydides, whom I’ve introduced before. He was a contemporary of Socrates, a general in the Peloponnesian War between Athens and Sparta, and of course the preeminent historian of that war. He is also considered the world’s first Realist.

I’m using that word in the context of International Relations and Political Science, as distinct from Idealism. All later Realists, from Thomas Hobbes to Machiavelli and Henry Kissinger, owe an intellectual debt to Thucydides.

1) Background

The dialogue is supposed to have taken place in 416 BCE, roughly in the middle of the long war between Athens and its allies (mostly the islands and ports around the Aegean) and Sparta and its allies (mostly the land-locked cities of the Peloponnese).

One life time earlier, the Athenians, Spartans and other Greeks together had kicked out several huge Persian invasion armies. This was the beginning of Athens as a superpower. Democratic and idealistic at first, Athens quickly became nakedly self-interested and arrogant and dominated its allies as though they were vassals. That alliance was called the Delian League, but it was really an Athenian Empire. Here is a map of it, before the outbreak of the Peloponnesian War:

If you click through to enlarge the map, you will see the tiny island of Melos in the southern Aegean, just outside the line demarcating the Athenian Empire. Melos was a Spartan colony but otherwise neutral. It was sort of a tiny Switzerland. It wanted to stay out of the troubles.

The premise of the dialogue is simple: The Athenians send a fleet to Melos and flatly demand that Melos bow to Athenian power and become a vassal or else be ethnically cleansed.

The Melians appeal to higher ideals (hence Idealism) such as justice.

In the course of the dialogue, excerpts of which I am about to give you, the Athenians and Melians use all the arguments that Realists and Idealists have been using ever since.

And then, Thucydides ends with one of the most abrupt–but, I believe, intentional and genius–codas in literature. But let’s wait till we get to that.

2) The dialogue

Notes:

You can read the full version here, but I have cut it for ease of use
Glossary: Lacedaemon = Sparta. (Laconia is the area around Sparta, whence “laconic”, since the Spartans didn’t apparently say more than necessary.)

Athenians: … we shall not trouble you with specious pretences … and in return we hope that you, instead of thinking to influence us by saying … that you have done us no wrong, will aim at what is feasible, holding in view the real sentiments of us both; since you know as well as we do that right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must.

Melians: … you should not destroy what is our common protection, the privilege of being allowed in danger to invoke what is fair and right….

Athenians: … We will now proceed to show you that we are come here in the interest of our empire, and that we shall say what we are now going to say, for the preservation of your country; as we would fain exercise that empire over you without trouble, and see you preserved for the good of us both.

Melians: And how, pray, could it turn out as good for us to serve as for you to rule?

Athenians: Because you would have the advantage of submitting before suffering the worst, and we should gain by not destroying you.

Melians: So that you would not consent to our being neutral, friends instead of enemies, but allies of neither side.

Athenians: No; for your hostility cannot so much hurt us as your friendship will be an argument to our subjects of our weakness, and your enmity of our power.

Melians: Is that your subjects’ idea of equity, to put those who have nothing to do with you in the same category with peoples that are most of them your own colonists, and some conquered rebels?

Athenians: As far as right goes they think one has as much of it as the other, and that if any maintain their independence it is because they are strong, and that if we do not molest them it is because we are afraid; so that besides extending our empire we should gain in security by your subjection…

Melians: … if you debar us from talking about justice and invite us to obey your interest, we also must explain ours, and try to persuade you, if the two happen to coincide. How can you avoid making enemies of all existing neutrals who shall look at case from it that one day or another you will attack them? …

Athenians: … it is rather islanders like yourselves, outside our empire, and subjects smarting under the yoke, who would be the most likely to take a rash step and lead themselves and us into obvious danger.

Melians: … it were surely great baseness and cowardice in us who are still free not to try everything that can be tried, before submitting to your yoke.

Athenians: Not if you are well advised, the contest not being an equal one, with honour as the prize and shame as the penalty, but a question of self-preservation and of not resisting those who are far stronger than you are.

Melians: … to submit is to give ourselves over to despair, while action still preserves for us a hope…

Athenians: Hope, danger’s comforter, may be indulged in by those who have abundant resources … [But] you, who are weak … hang on a single turn of the scale…

Melians: You may be sure that we are as well aware as you of the difficulty of contending against your power and fortune, unless the terms be equal. But we trust that the gods may grant us fortune as good as yours, since we are just men fighting against unjust…

Athenians: When you speak of the favour of the gods, we may as fairly hope for that as yourselves; neither our pretensions nor our conduct being in any way contrary to what men believe of the gods, or practise among themselves. Of the gods we believe, and of men we know, that by a necessary law of their nature they rule wherever they can. And it is not as if we were the first to make this law, or to act upon it when made: we found it existing before us, and shall leave it to exist for ever after us; all we do is to make use of it, knowing that you and everybody else, having the same power as we have, would do the same as we do…

Melians: … we now trust to [the Lacedaemonians’] respect for expediency to prevent them from betraying the Melians, their colonists, and thereby losing the confidence of their friends in Hellas and helping their enemies.

Athenians: Then you do not adopt the view that expediency goes with security, while justice and honour cannot be followed without danger; and danger the Lacedaemonians generally court as little as possible.

Melians: But we believe that they would be more likely to face even danger for our sake … as our nearness to Peloponnese makes it easier for them to act, and our common blood ensures our fidelity.

Athenians: Yes, but what an intending ally trusts to is not the goodwill of those who ask his aid, but a decided superiority of power for action; and the Lacedaemonians look to this even more than others. … now is it likely that while we are masters of the sea they will cross over to an island?

Melians: But they would have others to send…

Athenians: … we are struck by the fact that, after saying you would consult for the safety of your country, in all this discussion you have mentioned nothing which men might trust in and think to be saved by. Your strongest arguments depend upon hope and the future, and your actual resources are too scanty, as compared with those arrayed against you, for you to come out victorious. … Think over the matter, therefore, after our withdrawal, and reflect once and again that it is for your country that you are consulting, that you have not more than one, and that upon this one deliberation depends its prosperity or ruin.

With that the Athenians left the Melians to make their decision. Let’s just summarize the dialogue briefly:

A: Cut through the crap: might makes right. Don’t waste our time. M: We have a right to invoke justice!
A: We would prefer to let you live, so submit! M: How exactly would submitting be in our interest?
A: Were you not listening? Because you would live! M: Why can’t we be neutral? We would not bother you.
A: Somebody somewhere might think we are weak. M: If you exterminate us, all other neutrals will hate you.
A: Let us worry about that. M: We are not cowards and we want to stay free.
A: For you it’s not about freedom but survival. M: We still have hope.
A: Hope is for the powerful. And you are not. M: The gods are on our side because our cause is just.
A: The gods are just like you and us: They do what power lets them. M: The Spartans will come to our aid.
A: No, they won’t. They know they would lose at sea. M: We think they would send somebody.
A: Enough of this silly nonsense. You make up your mind. Submit or die.

The Melians decided not to submit and to fight. Thucydides then describes at some length the Athenian siege. Eventually, the Athenians overpower the Melians.

And then, in perhaps the most abrupt final sentence in literature, Thucydides simply informs us that the Athenians

put to death all the grown men whom they took, and sold the women and children for slaves, and subsequently sent out five hundred colonists and inhabited the place themselves.

3) Analysis

Style: Thucydides writes the dialogue (admittedly, with my cutting I have accentuated this) a bit as Hemingway does: This is a staccato back-and-forth, not a treatise. We are not teasing out a subtlety of argumentation here. We simply have two sides who are talking past each other, and one side has power whereas the other does not.
Style: Any modern editor would have forced Thucydides to provide more “color” at the end, to make the true horror of the extermination more vivid. Thucydides has none of that. He wants the atrocity to be a mere afterthought. This is the way the world is, he is saying.
Content: Does Thucydides approve of the Athenians? We have no idea. Probably not. Who cares?, he is saying. This is reality.

Hannibal and Me: life lessons from history

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