Column on The Adversarial System

In Defense of the Adversarial System

Tibor R. Machan

Every once in a while I get sucked into defending the way the legal system aims to secure justice in the criminal law. In particular, why do the accused or suspected criminals get to be defended so vigorously, as if they were always victims of perpetuation rather than pretty much guilty as charged. Defense attorneys, especially, get a lot of flack if they accept as clients people everyone “knows” are guilty as sin. How could they do such a thing? Isn’t that immoral? Does it not in fact make the profession corrupt?

I keep insisting that this normally isn’t so at all. Defense attorneys are committed, professionally, to provide the best defense to anyone who hires them because the system is supposed to work as an adversarial one, whereby justice is supposed to emerge from a debate as to what is the truth of the matter, who did what and was it a crime and how responsible is the defendant if at all. It resembles the Socratic method of inquiry, study or research whereby questions are raised and answers proposed, then criticized, on and on until one reaches the answer that can withstand all reasonable objections for the time being! In the end, given the available context of information and analysis, the result is as good as it gets. Wanting more is unreasonable, even irrational!

So no one can have a rational position on the issues that gave rise to the trial prior to its taking place (and the assorted associated procedures). Sure, people can speculate, even bet on the result that’s likely to be reached once the entire process has played itself out. But before that no one is supposed to know whether the accused defendant is guilty or not, not as far as the law is concerned. The way the system works is supposedly a very effective one for purposes of reaching a sound conclusion. The jury, for example, will have heard pros and cons and all the evidence and arguments for both sides and then can take it upon itself to render a just verdict.

Nor is the justice to be achieved perfect, incontrovertible. That’s what appeals are about. Only once the whole processes has been deployed is there a best result available and that result is not to be regarded as timelessly unassailable, forever the best. No results of human inquiry, be it in ethics, law, science or philosophy can promise a final resolution, not until time has come to an end! That is the human condition and unless someone has the word of an omniscient God to consult about it all, no one can reasonably want anything better.

More generally, human knowledge ought not to be expected to produce the last word on any subject. That’s not knowledge but omniscience! We live in an unfolding universe and whatever knowledge we manage to gain of it must accommodate that fact and not aim for more. Otherwise skepticism and cynicism arise, the belief that no one can know anything and that all human efforts are useless and futile.

Some people would delight in spreading such an idea around since then they might get the chance to convince us that they do have special abilities, mystical insight and such, that entitles them to lord it over the rest of us “mere” humans. But it is ruse since no one has such abilities. Knowledge, the proper kind, needs to be earned through hard work and there will always be room for updating it as time unfolds and new information comes to light.

Here as in many other areas of human affairs it is once again best to remember that the perfect or ideal is the enemy of the good! Wishing for the impossible dream will prevent one from obtaining the very best that’s humanly possible. And that should be all counts be enough.

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