Musings on the impact of an adversarial legal system on social dynamics
I don’t know about you, but in my less self aware moments, I’ve often had flashes of fancying myself as a crusading defence lawyer. Passionately believing in the underdog when all the resources of the state or nefarious corporation are stacked against them. Wading through the murky layers of conspiracy. And finally, delivering a slice of inspirational oratory to pierce the preconceptions of the jury and wrest justice from the jaws of iniquity.
It’s a deeply seductive ideal, forged in the primal quest for truth and the complex human relationship with morality. And yet if we examine the nature of the systems we have developed to preserve justice and champion truth, we can hear the echoes resonate through the wider structures of our society.
There is a reason why courtroom dramas are so prevalent on British and American television and in Hollywood, but so under-represented in the cultural fabric of mainland Europe – the adversarial system. They play directly into the dualist nature of archetypal art – the eternal struggle between good and evil – with the law as a theatre of war where the bullets are honeyed words and the uniforms are cut from an altogether richer cloth. But the principle remains much the same – the adversarial system casts defence and prosecution in the role of warriors, each with a mission to destroy the credibility of the other and sweep the zero sum prize.
Lawyers speak of their record in terms of wins and losses and words like battle, struggle, victory and defeat are the very essence of legal chambers. Indeed many historians argue that our current legal system is a direct descendant of trial by combat where physical prowess (touched by the hand of God naturally) was the ultimate arbiter of truth. And if law and justice are the cornerstones of fairness in our society, what does the violently competitive nature within our legal system say about us?
If we look beyond the courts and into the patterns of modern civilisation for the legacy of adversarial systems, they swiftly sharpen into vivid focus. Political systems instantly spring to mind, and without much of a leap of faith the entire essence of capitalism and competitive markets roll into view alongside advertising and the media.
Truth as usual, is the first casualty. It is neither the job of prosecuting counsel nor defence counsel to tell the truth. One may end up telling the truth, the whole truth and nothing but the truth by accident or default, but neither obligation nor incentive to do so forms part of any legal brief. Quite the opposite in fact. It is all about the story, the manipulation of facts to tell that story and the convincing delivery of that story to the exclusion of any mitigating facts or tiresomely contradictory testimony. Huge swathes of the media skew news to an agenda in a very similar fashion.
The prosecution seeks to paint a defendant, whose potential innocence is of no concern to them, as a sordid villain that has no place within our society, using every tool and trick available to present that narrative to a court. Consequently a defendant with an unfortunate appearance, a chequered history or ill equipped to assist in his own defence often falls victim to the subtext of so many prosecution cases – that this person is not like us. Evidence is very often thin despite everything CSI has to offer and again and again, conviction boils down to vague circumstance and an instinctive dislike for the person in the dock
The defence are no better. The bottom line is that the vast majority of people brought to trial are guilty of the crime they committed and whether their counsel knows this explicitly or implicitly, it is his job to tailor every available thread to a story of saintly misfortune. Defence lawyers will cut ever deeper scars into victims giving evidence. They badger and discredit citizens who have taken a stand against the criminals terrorising them. They use sarcasm and contemptuous implication to impugn the motives and morality of witnesses and throw suspicion onto innocents to raise the spectre of reasonable doubt.
And doing any less would be viewed as a breach of legal ethics and curtail a career before you can say ‘Objection’. The sole mission of the ‘officers of the court’ is to present their version in the most convincing terms possible – making sure to pander to the prejudices of the jury and to accepted conventions of normalcy. I know I always wore a suit to court.
The parallels with the advertising industry begin to look very striking as they emerge from the mists of metaphor. There are some lightweight safeguards in place to prevent outright lies, but the fundamentals are almost identical. Advertisers mould and manipulate ‘facts’ and statistics to fit the story they are telling about their product, making wild claims and subliminal suggestions in order to convince the public of their urgent need to go out and purchase. One product whips up an orgy of pseudo science while another dangles breathless testimony from ecstatic customers. The judge is the regulator and the jury are the viewing public.
Just as in a courtroom, objective truth is subsumed by shades of subjectivity and facts are nakedly relative. We are flying as blind as a traditional trial jury, fumbling through the spin and ultimately settling on the story that best complements our existing view of ourselves and the world. But is there anything actually wrong with any of this?
It has been said that democracy is the worst form of government except all those other forms that have been tried from time to time. Winston Churchill
He’s got a point. And not just about political democracy either. Surely the public are the best judge, or at any rate the worst judge apart from every other. Surely the public can make the best decision on which product to buy after being given the best spiel that the competing manufacturers have to offer. Are the public not the best judge of the rights and wrongs of a news story after listening to the right wing rantings of Fox News and the liberal librettos of Democracy Now?
I suppose that the problem is that this mythically impartial public doesn’t actually exist and that no-one will watch both the news channels mentioned above unless they are watching one for ‘truth’ and the other to wind themselves up. We don’t sit around making balanced decisions on much, but instinctively side with whoever or whatever sells our world view back to us with the most verve. To strip people of that right would be to infantilise them and concentrate power in the hands of a few select individuals. And that is always dangerous.
In France and across most of Europe where modern law is underpinned by the Napoleonic Code, the system of justice is known as the inquisitorial system. Juries are rare and the vast majority of cases are decided by a bench of judges. Lawyers are still in play, but often the judges themselves will question witnesses. The idea of course being that these judges are fair and impartial, well versed in the minutiae of the law, long in the tooth enough to see through a good blag and the best arbiters of truth. Involving the public can only sully proceedings.
Fine. Makes sense. Apart from the fact that most judges are old white men who are just as prejudiced as anyone else, albeit with better groomed and more polished biases. The inquisitorial system has its own flaws, though it does cut out much of the bitter rancour and grandstanding of our adversarial format, but the question is less about which is ‘the best’, but how the growth of society around these frameworks has influenced their character and evolution.
The adversarial system is…well…adversarial. Or to use another word…competitive. Now anyone following the outpourings of recriminations over the financial crisis will have noticed the sharp divide between the European and Anglo Saxon models. The French and Germans waxed apoplectic about the savage market capitalism of the UK and US. From their avowed perspective, laissez faire economics tore down the global economy through its greed and lack of social conscience. Within the arena of unfettered capitalism, competition and ruthlessness are all and vast profits are the gilded reward.
Goldman Sachs – long famed as the world’s most successful investment bank was left fleetingly red faced a couple of years ago when emails by banker ‘Fabulous’ Fabrice Tourre were leaked. They showed him boasting of unloading worthless trades onto ‘widows and orphans’ and admitting he didn’t really understand the complexities of the securities he was trading. All very ‘Wolf of Wall Street.’
Despite the (worryingly brief) furore, one can’t help but feel that the real problem for his bosses was not so much him thinking it, but committing the cardinal sin of getting caught. The infamously bankrupt Royal Bank of Scotland was similarly fuming at Goldman for selling them a billion dollars worth of nothing that contributed to their spectacular heist on the public purse. It’s them – those fucking bankers – string em up and burn their Ferarris.
The problem of course, especially with RBS, is what the bloody hell were they doing buying a billion dollars of hot air anyway. As far as these bankers are concerned, they offered people a deal by massaging the buyers lust for profit and if they accepted it and got burnt – that was their problem. It’s not the sellers fault. Just as it’s not the defence lawyers fault if he gets his client off with a stirring tale only for him to murder again. The public is the jury, the buyer is the jury, and if you cast off outrage and emotion, it becomes all too clear that the bankers didn’t actually do much wrong within the parameters of an adversarial system.
The responsibility of informed consent is thus placed on an uninformed public. It was up to you to research the investments I pitched and not just take my word for it. If you swallowed my story and missed the 6 volume small print – then that’s all fair and above board. And there you have the adversarial system in a nutshell.
The Europeans claim to be appalled by this logic even as they cautiously edge toward it. Competing sides need to be regulated and refereed properly but we have yet to find a set of obliging Solomons that can be genuinely trusted to make impartial decisions in the public interest. Who guards the guardians when there’s more than enough corporate hospitality and directorships to go round ? Who really has the slightest faith in that bunch of ‘yah boo sucks to you’ children yelling at each other across the green benches in Westminster? Or yet another monochrome ‘committee’ buried in the vaults of Brussels?
The American system of government – designed so painstakingly to provide checks and balances on each of the three branches – has effectively stopped functioning thanks to the pathological need of each side to outdo the other. Zealotry, antagonism and tribal alliances have seen the breakdown of the dialectic, where ‘synthesis’ is put to the sword of vested interest and thesis and antithesis refuse to give an inch.
How the fuck did we end up in a situation where politics in a modern society breaks down to two sides rather than a proportionally represented patchwork of different interests? Even if a proportional system was to result in multi polar dithering and indecision as its critics claim, can it really be less effective than perpetual war between two parties? The status quo has managed to disengage, disillusion and disenfranchise at least a third of the electorate through limited spectrum representation and the tub thumping nihilism of adversarial discourse.
The competitive, first past the post system leaves little room for balance or compromise. It plays out like an adversarial courtroom dynamic; each party rubbishing the other while spinning their own highly dubious lines till they’re blue (or red) in the face. By the time one has witnessed the extraordinarily unconvincing synthetics of a political campaign, it is difficult to imagine these flimsy mediocrities regulating anything more important than a gas bottle.
If we examine ‘Anglo Saxon’ society and imbibe the degree to which competition is the essence of progress, and truth is a fluid, malleable concept we start to understand everything from the nature of capitalism to cultural imperialism. Your culture tells you to wear traditional dress and be a farmer, mine tells you to eat McDonalds and wear jeans. But mine is shinier and better presented so you become yet another acolyte of the Western Dream. It’s all about the sales pitch, all about presentation, and ultimately all about winning. It is the adversarial system writ large.
It is worth pausing to consider what effect living within such systems has on our core humanity and how they subconsciously shape our world view. The latent effect of rooting our search for truth in cutthroat rivalry rather than unity and shared purpose. The jury may still be out on which is the least worst framework to run a society by, but can we be anything but intrinsically corrupted and inherently tarnished by a system of competition and falsehood so insidious that it has touched the darkest recesses of our identity. When truth itself is defined in adversarial terms, is it any wonder the world works as it does.
by Cyrus Bozorgmehr
Painted bodies image by Adam Martinakis
Blind Justice image by Jared Kubicki
Flying Saws image by Damian Ortega
Mechanical heads by Kazuhiko Nakamura
Graffiti by Does Loveletters
Love / Hate by Andrew Zig Leipzig
Edited version of an article first published in LSD Magazine Issue 5 – Coming of Age