Wednesday, May 18, 2005

The adversarial society

There is a common phenomenon I’ve noticed over the past few yeas. Perhaps it has always been present in like measure, yet it seems to be becoming more pervasive as the culture war has intensified.

This mindset may take its inception in the legal profession. A defendant who has guilt written all over him for some especially heinous crime is acquitted. His lawyer is asked how he can, in good conscience, defend a client who is so obviously guilty of so heinous crime. The reply is always the same: “That’s our system of justice. It’s an adversarial system.”

By this he means that it’s the role of the prosecution to make the case for the defendant’s guilt, and the role of the jury to judge the merits of the case. Hence, so the argument goes, it’s the role of the defense attorney to make the case for the defendant’s innocence.

Hence, a lawyer can defend a guilty client in all good conscience. Indeed, it’s his civic duty to do so--however guilty and however heinous the crime. The accused may confess his crime to the lawyer, but that makes no difference.

This sounds somewhat plausible, but is deeply specious.

i) The adversarial format is more than a mere formality. The prosecution is not supposed to take the opposing side for the sake of balance. Rather, the prosecution is supposed to honestly believe that the defendant is, indeed, guilty, and to have probative evidence to justify that belief.

ii) There is nothing in our Constitutional system of justice which says that a lawyer is supposed to get a guilty client off the hook. All the Constitution says is that the accused has the right of counsel (6th Amendment).

So the idea that it is a lawyer’s professional and civic duty to get a guilty client acquitted is not part of our system, handed down to us by the Founding Fathers. Neither has there ever been a national plebiscite to ratify this policy.

Rather, this is a policy made by lawyers and for lawyers. To appeal to your policy in order to defend your policy is viciously circular.

iii) There is no general obligation on the part of a lawyer to represent any client in particular.

iv) From a Christian standpoint, the law of God is only concerned with the guilt or innocent of the accused, and with rules of evidence designed to convict the guilty and acquit the innocent.

Yet another possible model for the adversarial mindset is the business world, where one seeks a competitive edge. This is particularly the case in commercial negotiations, where both sides drive a hard bargain by asking for more than they expect.

The principle here is quite simple. If I ask for more than I’m prepared to accept, that gives me a margin, so that even if I eventually settle for less that I originally demanded, I still end up getting more than if I hadn’t asked for more in the first place.

Is there anything wrong with this? Not that I can see. For this is not a question of truth and falsehood, but whatever the market will bear. In general, the seller is under no obligation to retail his goods and services, while the buyer is under no obligation to secure his goods and services. The commodity has no intrinsic worth (in the sense of a set monetary value), so a fair price is whatever the two parties agree to. There are exceptions to this principle, but that’s the norm.

But if the source of the problem begins with the legal profession, or the financial world, or some combination thereof, that is not where it ends. It has become quite pervasive in politics, academia, and the news media.

According to the adversarial mindset, I can say things I don’t believe as long as it’s in the furtherance of a cause I do believe. I don’t have to seek out the evidence. I don’t have to be true to the facts. I don’t have to honestly represent the opposing side.

I don’t even have to be honest with myself. I can advocate one policy while I’m in power, and its contrary while I’m out of power. I can have one standard for my team, and another standard for your team. A just cause (as I define it) justifies any means whatsoever.

For if I were to be honest, I would lose my competitive edge and forfeit my dickering room. The best way to get my way is to ask for more than I want, and to lie about it, since the opposing side will also ask for more than it wants, and lie about it. It’s us verses them, so the only way to get our fair share is to be unfair to our opponent, since he will be just as ungenerous to us.

Now, this dishonorable honor code is destroying the public square. For it makes professional liars of all parties concerned. They habitually say things that they themselves don’t believe for a minute, and ask for all sorts of things they don’t really want.

Everything is reduced to a game of bluff, of chicken, of who blinks first. And the danger here is that in a real world situation, the facts really do matter. If you play a game of bluff, you may go over the bluff. If you play a game of chicken, you may die in a head-on collision. Even if you strike a deal, that no longer holds because the rule of law has become another game of chicken.

The adversarial mindset is the denouement of atheism. Once you deny divine providence, then you’re really on your own in a dog-eat-dog world. Left to its own devices, secular ethics quickly degenerates into a feast of mutual cannibalism. Screw thy neighbor and do unto him before he does unto thee.

Unwilling to trust in the providence of God, they no longer trust their fellow man. So every one lies to everyone else to secure a competitive edge. But, of course, if everyone does it, the advantage is cancelled out, and the social fabric unravels without the common thread of truth to bind it into one. Everyone loses by winning at everyone else’s expense.

Welcome to humanism. Next stop: oblivion.

5 comments:

  1. Yes, this is a very depressing state of affairs. To be honest, one feels foolish for trying to be upfront and plainspoken about anything today. Any questioning of the adversarial society, as you point out, leads to accusations of weakness or not keeping in the modern spirit of things.

    Good [but depressing] post.

    PP

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  2. Hi Steve,

    This was a superb post! Thanks for penning it; I always appreciate your tremendous insight.

    Now, I'm wondering, if you don't mind my asking you, do you think this state of affairs is tied to or perhaps rooted in our society's bent to placing concepts such as tolerance and political correctness on a pedestal?

    Thanks again.

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  3. 1. Good question, Silvanus. First off, I don't regard the adversarial mindset or, for that matter, political correctness, as a broad-based social phenomenon. Rather, it is concentrated in and disseminated from the liberal elite. One characteristic of the liberal establishment is that it is self-insulated from the general culture, at the same time it tries to reshape the general culture. It exists in the germ-free laboratory of the court room, the class room, and the TV studio.
    2. I also wouldn't go so far as to say that the adversarial mindset is rooted in political correcteness, but they are related.
    3. For the liberal, equality is the great moral imperative. But for everyone to be equal, they must be made to be equal through coercive measures.
    4. Hence, for a liberal, the job of a judge is not to interpret and apply the law, but to use his power to make society more equitable. The job of a journalist is not to report on what actually happened, but to "speak truth to power," under the Marxist assumption that the haves are profiting at the expense of the have-nots. The job of the college prof. is not to teach history or logic, but to question authority. So truth doesn't matter. Truth is just an instrument of oppression--a social construct imposed by the winners on the losers.
    5. In order to make everyone equal, they must be made to think alike. For a liberal, freedom and equality are opposing factors, for freedom would mean the freedom of dissent, the freedom to fail, the freedom to challenge liberal social engineering.

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