Philosophy Discussion Forums | A Humans-Only Philosophy Club

[Elder]

It's hard to stay away from this forum..

I have a few minutes and this topic is important.

....................

I hate the adversarial “justice” system.

It is not based on trying to find the truth, but it is based on WINNING, regardless of truth, regardless of guilt or innocence, regardless of harm done or not.

It perfectly goes hand in hand with Capitalism. Winners and losers, regardless of worth or harm to society.

It is based on lies, theatrics, emotional manipulation and loopholes to get the guilty off or punishing the innocent if that is what it takes to win the case.

I am a scientist, intent on trying to find the truth.

Scientists often have conferences, symposiums, etc., to discuss one specific idea and find out if it is true or false.

They usually don’t appoint one scientist to argue for, and another to argue against, the idea, ignoring and attacking everything the other said – they just take turns looking at the issue, examining it from all angles, listening to each other, modifying their own thoughts on the subject, based on what they hear from the others and trying to reach a consensus.

Niels Bohr once said to Wolfgang Pauli: "We are all agreed that your theory is crazy. The question which divides us is whether it is crazy enough to have a chance of being correct"

Scientist are usually intent on finding the truth, rather than winning the argument even if they are wrong.

Scientists are also fighting with each other (in some environments, not in others) but the warfare is about personal ambition and not about scientific truth.

In this battle it never happens that both sides would deliberately falsify scientific truth in order to 'win' (with the exception of VERY few cases, and they are ALWAYS found out and punished for it).

If there is a disagreement about scientific truth (and there are plenty), it is based on HONEST differences of opinion, with both parties intent on finding the TRUTH (again, with a VERY few exceptions).

Now compare this to the adversarial 'justice' system (where the opposite is the norm) and you will see what I am talking about.

One example of how science is done (as opposed to 'justice') is the epic battle between Einstein and Bohr:

Albert Einstein and Niels Bohr spent over 25 years arguing about the Uncertainty Principle. Einstein would dream up thought-experiments to prove that the theory was incorrect and Bohr would prove Einstein wrong every time. Until, one day, at the 1930 Solvay conference, Einstein managed to come up with one example that completely baffled Bohr, who went to bed and spent a sleepless night trying to find a way to prove Einstein wrong, yet one more time.

Next morning they met at breakfast, each with a huge grin on his face. Einstein was convinced that he finally defeated Bohr. Bohr, on the other hand, had found the mistake Einstein had made - Albert forgot to take only one thing into consideration: the effect of his own General Theory of Relativity. There was much merriment around the table that morning!

Now, can you imagine this attitude between defense and prosecution where both parties are intent on finding the truth, instead of winning by any means, including lies, omissions, misrepresentation, trickery, theatrics, emotional manipulation, exploiting loopholes, intimidation and even bribery (of 'expert' witnesses)?

Can you see now why I find this system insane?

If you are saying that the "psychological need" is to bash each others' heads in -- you may be right in some cases.

In other cases (like a well functioning family) the psychological need is to sit down and discuss the issue intelligently, maturely, from every possible angle, and then come to some conclusion at the end.

In our political/social system it is the need to fight it out -- politely ("my learned friend is ..."), but trade as many blows as we can and hope to win.

It is the old underlying conflict between co-operation and competition.

Co-operation is a lot more efficient and a lot less wasteful.

Some choose co-operation, some choose competition, confrontation, violence, fraud and another long list of methods humans have used over history.

In a family you wouldn't put your kids on trial and appoint 2 family members, instructing one to prove the kid guilty, instructing the other to prove hi.mn innocent, regardless what they personally thought.

Some might and I would pity his/her children.

In the "human family" of ours, however, we do exactly that.

I know you will say that society is not a family -- and that is exactlt where the source of our problems lie.

[Jklint]

I didn't expect to add any more posts for a while but you sabotaged my intent with the subject which has always been of great interest.

I agree up to a point with your views but don't believe one can give the law a complete scientific methodology...unless I misunderstood. Whereas the forensic factor is absolutely essential to establishing guilt or innocence, which is much more reliable than the testimony of witnesses, an intrinsic part of the Law is meant to be a social function, that it's not the state which decides just like it's not the state that decides who its executives will be at the next election.

As you more or less implied, the system is stupid and unfair but only because of the overdone complexity, ineptitude and downright unfairness of many of the laws which stand between the defense and prosecution not because the adversarial system is inherently bad in itself.

Given what's available by way of allowances and disallowances in the law, the gaps that can be utilized one way or the other (the loopholes) it offers a smorgasbord of techniques to either party which makes a chess game out of justice which no-longer functions as the main concern though always given lip service. Instead, it's forced into a bureaucracy ruled dictatorially by due process in which the final verdict is merely incidental.

The adversarial system could actually be quite efficient if the evidence were given priority and allowed to "speak" for itself instead of the artificial legalities which are allowed to overrule and superimpose itself causing greater expense and procrastination which as we all know, can be very profitable to those who supposedly practice Law.

Anyways, this is only partly how I see it but I'll stop here.

[Elder]

The adversarial system could actually be quite efficient if the evidence were given priority and allowed to "speak" for itself instead of the artificial legalities which are allowed to overrule and superimpose itself causing greater expense and procrastination which as we all know, can be very profitable to those who supposedly practice Law.

Jklint, I agree that it could work, but only if we removed big money from the system that attracts the worst kind of opportunists and unscrupulous parasites to the legal system. Members of the moneyless legal profession will not be motivated any more (with few exceptions) by the desire to WIN their cases, regardless of guilt or innocence of their clients.

Then, you can think about the details of the justice system where practitioners can focus on doing justice, instead of winning at any cost.

I would do away with defense and prosecution altogether – instead I would appoint experts relevant to the case, to study, evaluate and report on all the evidence available in the case, from interviews, police reports and facts collected.

They could submit their report to either an impartial judge (or 3 judges) or even to a jury to study, deliberate and make decisions. The objective of all the participants would be to find the truth, instead of winning for one side or for the other.

I am sure a lot of details would have to be ironed out but this is the general direction it should proceed in.

The major difference would be: impartiality, desire to find the truth, and to do justice – instead of winning at any cost, regardless of guilt or innocence.

The bail system should be completely divorced from money – instead it should use the best judgment available to evaluate the danger the accused is posing to society if left at large.

The system would not be perfect, mistakes would be made – but far fewer than in our present system which is heavily biased to monied and political interests.

[Mgrinder]

It's hard to stay away from this forum..

I have a few minutes and this topic is important.

....................

I hate the adversarial “justice” system.

It is not based on trying to find the truth, but it is based on WINNING, regardless of truth, regardless of guilt or innocence, regardless of harm done or not.

It perfectly goes hand in hand with Capitalism. Winners and losers, regardless of worth or harm to society.

It is based on lies, theatrics, emotional manipulation and loopholes to get the guilty off or punishing the innocent if that is what it takes to win the case.

Do you have a better idea?

There are political and economic thinkers out there who have come up with seemingly much more ethical and much more just political and economic systems. For Political, see Stephen Shalom's "parpolity" and for an economic system, see Michael Albert's and Robin Hahnel's "parecon".

However, I've never seen a proposal that would be better than the jurisprudent justice system that we have today. You can modify it, have only juries, get rid of legal terms to make it more equitable, but how can you get away from the idea that someone needs to assess a case and make a judgement? Someone or a group of people needs to judge whether or not something must be done about someone's behavior. Also, lawyers seem needed because the ability to defend yourself well might be too hard for some people.

In science, the truth of the matter is up to what you can measure, and scientists want to find the truth, there are penalties for lying. In a criminal case, there are penalties for you if you tell the truth. You might go to jail if you tell the truth. SO there are people in a courtroom with a motivation to lie, not like in a scientific conference.

BTW, Jared Diamond's book "the world until yesterday" has a very interesting section on the justice systems of hunter gatherer types, worth a read.

[Elder]

BTW, Jared Diamond's book "the world until yesterday" has a very interesting section on the justice systems of hunter gatherer types, worth a read.

I have read almost everything Jared Diamond published recently, including The world until yesterday -- and I found it fascinating. There is a lot to learn from past civilizations, I agree. The Third Chimpanzee and Collapse were both extremely informative and thought provoking.

As I said in my essay on the justice system: "The system would not be perfect, mistakes would be made – but far fewer than in our present system which is heavily biased to monied and political interests."

However, I grant you that the human species is probably not ready for a rational approach to find truth in human affairs.

[Mgrinder]

Jklint, I agree that it could work, but only if we removed big money from the system that attracts the worst kind of opportunists and unscrupulous parasites to the legal system. Members of the moneyless legal profession will not be motivated any more (with few exceptions) by the desire to WIN their cases, regardless of guilt or innocence of their clients..

But isn't that very dangerous? As a lawyer your duty should be to do your best to win a case, regardless if you think your client is guilty. Lawyers in Nazi germany were rightly condemned for not doing much for their anti-Nazi clients. The lawyers thoughts their clients were guilty, so they helped the prosecution put them in jail. That's pretty unethical. Similarly, if you are a lawyer and your client tells you they are not guilty, it is your duty to do your best for them, despite your personal opinion, because you might be wrong.

Then, you can think about the details of the justice system where practitioners can focus on doing justice, instead of winning at any cost.

I would do away with defense and prosecution altogether – instead I would appoint experts relevant to the case, to study, evaluate and report on all the evidence available in the case, from interviews, police reports and facts collected.

Shouldn't people have the right to defend themselves against accusations? If a committe does not get to hear from the accused or their lawyer, they could all just agree and condemn an innocent. I sure wouldn't want a system that doesn't allow me to defend myself if I am innocent. Hence I should be allowed to repond to accusations, answer questions. Much like a courtroom.

They could submit their report to either an impartial judge (or 3 judges) or even to a jury to study, deliberate and make decisions. The objective of all the participants would be to find the truth, instead of winning for one side or for the other.

I am sure a lot of details would have to be ironed out but this is the general direction it should proceed in.

The major difference would be: impartiality, desire to find the truth, and to do justice – instead of winning at any cost, regardless of guilt or innocence.

I would prefer the current system to one that I could not defend myself in, if that is what you are suggesting. I would not want to leave it up to a bunch of people I could not defend myself to, that I could not give my side of the story to.

[Elder]

As a lawyer your duty should be to do your best to win a case, regardless if you think your client is guilty. Lawyers in Nazi germany were rightly condemned for not doing much for their anti-Nazi clients. The lawyers thoughts their clients were guilty, so they helped the prosecution put them in jail. That's pretty unethical. Similarly, if you are a lawyer and your client tells you they are not guilty, it is your duty to do your best for them, despite your personal opinion, because you might be wrong.

That is the way it works in the current adversarial system that I am arguing with.

Shouldn't people have the right to defend themselves against accusations? If a committe does not get to hear from the accused or their lawyer, they could all just agree and condemn an innocent. I sure wouldn't want a system that doesn't allow me to defend myself if I am innocent. Hence I should be allowed to repond to accusations, answer questions. Much like a courtroom.

Of course people have the right to defend themselves and have the right to have help defending themselves. Only it should not be in the theatrics of a courtroom farce in which both sides lie, cheat, exaggerate and use whatever loopholes they can find to win at any cost, regardless of guilt or innocence. The focus should be on trying to establish the truth.

[Jklint]

Lawyers in Nazi germany were rightly condemned for not doing much for their anti-Nazi clients. The lawyers thoughts their clients were guilty, so they helped the prosecution put them in jail. That's pretty unethical.

If you consider that unethical guess what the rest of the regime was like. If you were a lawyer in Nazi Germany who really worked hard to get his client off the hook when the Nazis didn't want him off the hook, you may consider your career concluded and lucky if it's only your career.

But back to the here and now. If your clearly proven to be guilty you shouldn't need a lawyer to say your not but only why you shouldn't be considered guilty due to circumstances. In short, working hard to get as many excuses going to ameliorate the deed and then wait to see how a jury or judge would acknowledge these usually improvised evasions of guilt.

[Elder]

But back to the here and now. If your clearly proven to be guilty you shouldn't need a lawyer to say your not but only why you shouldn't be considered guilty due to circumstances. In short, working hard to get as many excuses going to ameliorate the deed and then wait to see how a jury or judge would acknowledge these usually improvised evasions of guilt.

That's exactly my point in this thread, Jklint!

[Mgrinder]

Of course people have the right to defend themselves and have the right to have help defending themselves. Only it should not be in the theatrics of a courtroom farce in which both sides lie, cheat, exaggerate and use whatever loopholes they can find to win at any cost, regardless of guilt or innocence. The focus should be on trying to establish the truth.

Hmmm. You don't object to people defending themselves, you don't object to having a lawyer, you don't object to having a judge or jury, you don't object to there being a courtroom. I also assume you don't object to the idea "innocent until proven guilty". The burden of proof is on the prosecution.

Is all that correct?

If so, given you are fine with all this, how does an alternative system work? It sounds very similar to today.

What you don't like is the current BS in courtrooms today. Fine, I don't like it either, I support reforms to stop it. But you say you want a completely different system, but what I don't see is how a better system could work?

On the face of it, your wish that "people should seek the truth" seems quite reasonable, but without a clear idea of how an alternative system would work, it's hard to support it. You can't get away from the fact that people don't want to go to jail, and people who think a person is guilty, really want to put them in jail, but the judge doesn't know the truth. How best to deal with this? There is motivation to WIN on both sides, no getting away from that. Both sides need to make their case, need to defend, and need to prosecute, no getting away from that.

If a lawyer for a person that looks guilty, whom the lawyer believes guilty, do not try their utmost to defend, then an innocent might go to jail. Your personal opinion as a lawyer should not affect what you do, because you don't know. If the lawyer takes the attitude of seeking the truth, then they potentially do a very unethical thing. Also, teh prosecution should not be lazy, even if the prosecution thinks the person is innocent, maybe the prosecution is wrong. The fact that I would support a lawyer trying to win, regardless of what the lawyer thinks, amazes me, but it seems I must, as I do not see how an alternative system would serve both parties better.

Tell me how an alternative system would work.

Also, the judge should be trying to seek the truth, and do they for the most part? Why is that not enough? You've got one person trying to seek the truth, everyone else trying to win. Given the situation they are in, where there is strong motivation to prosecute and defend that you cannot get away from, what's wrong with that?

[Alias]

I have some thoughts, if I may interject.

Step one, as has already been mentioned, would be to remove financial and political benefit from the motivation of any jurist involved in any case. "Money" and "power" don't even belong in the same sentence with "justice".

Step two, insure that the available legal skill is distributed fairly. Assuming we're happy with the law as it stands, and that courtrooms, juries, judges and police are competent and honest (I know, that's a big assumption) and evidence gathering methods are efficient, how about this?

We keep the the same structure and organization. We make a legal team available for consultation on matters of law and precedent, and to give advice. This one team would serve all concerned in a case: police, accused, victim, witnesses - even the grandmother who might get custody of a child if her son is sent to jail.

Then we amass all the pertinent information we possibly can, couch it in the most appropriate format - photos, filmed interviews, forensic reports, witness statements, maps, diagrams, bloody gloves - the works - in an orderly fashion. We put the jury in a room with the evidence and a professional presenter, who takes them through the investigation process as it happened. The jury can stop proceedings to ask questions of the legal panel at any time. The court recorder takes a note of any question each juror has on a particular topic, or regarding a piece of evidence. Then the accused is brought in and allowed to summarize his side of the story. Then the witnesses come in one by one, summarize their evidence, and answer whatever questions the jury asks. At reasonable intervals, the jury is given time to rest, consider and discuss what they've heard. Once they're satisfied that there is no more to learn, the judge comes in, gives them instruction in matters of law, and leaves them to deliberate.

This applies only to criminal cases, where the might of the state is arrayed against a single citizen; wherefore, the accused needs all the safeguards possible in order to give him or her a fair trial. In other kinds of litigation, either adversarial or arbitration arrangements may be more appropriate.

[Elder]

Excellent response, Mgrinder and, now, I will attempt to answer your questions:

Hmmm. You don't object to people defending themselves, you don't object to having a lawyer, you don't object to having a judge or jury, you don't object to there being a courtroom. I also assume you don't object to the idea "innocent until proven guilty". The burden of proof is on the prosecution.

Absolutely, so far so good!

There is motivation to WIN on both sides, no getting away from that. Both sides need to make their case, need to defend, and need to prosecute, no getting away from that.

That's where we disagree. There is a way to get away from it, if you remove big money. What is it lawyer's charge per hour these days?

According to reports, some lawyers are billing over $1000 an hour (that’s just over $2 million a year). This is major news for the legal field, since charging more than $1000 an hour has previously been somewhat of a social taboo. Many corporate clients would even go so far as to bill only $995, just to make sure that they don’t commit a billing blunder in the eyes of the legal world. lawblog.legalmatch.com/2011/03/16/lawye ... hour-mark/

How much are surgeons make per hour?

Orthopedic surgeon salary in the United States is about $425,000 per year or about $204 per hour. The highest earning 10th percentile of the profession reported wages of about $665,000 or more per year or an hourly wage or about $319 or more per hour. The bottom 10th percentile of orthopedic surgeons earn a salary of about $254,000 or less per year which is about $122 or less per hour. healthcareworkersalary.com/physicians/o ... on-salary/

If the lawyer takes the attitude of seeking the truth, then they potentially do a very unethical thing.

That sounds like the mother who is feeding her baby healthy food is doing something terribly unethical.

... even if the prosecution thinks the person is innocent, maybe the prosecution is wrong. The fact that I would support a lawyer trying to win, regardless of what the lawyer thinks, amazes me, ...

It amazes me too!

Tell me how an alternative system would work.

I think I have already outlined the major structural changes and how, even though it would not be fool proof, it would be a major improvement in the direction of sanity.

Also, the judge should be trying to seek the truth, and do they for the most part? Why is that not enough? You've got one person trying to seek the truth, everyone else trying to win. Given the situation they are in, where there is strong motivation to prosecute and defend that you cannot get away from, what's wrong with that?

Lawyers and prosecutors are motivated by money and prestige (access to more money). Judges are under enormous pressure to get rid of the case load, backing up, as quickly as possible, never mind the political pressure from all sides, to make sure that they will be appointed again -- they have no time and energy to worry too much about justice.

[Mgrinder]

I have some thoughts, if I may interject.

Step one, as has already been mentioned, would be to remove financial and political benefit from the motivation of any jurist involved in any case. "Money" and "power" don't even belong in the same sentence with "justice".

Step two, insure that the available legal skill is distributed fairly. Assuming we're happy with the law as it stands, and that courtrooms, juries, judges and police are competent and honest (I know, that's a big assumption) and evidence gathering methods are efficient, how about this?

No problems with that, of course.

We keep the the same structure and organization. We make a legal team available for consultation on matters of law and precedent, and to give advice. This one team would serve all concerned in a case: police, accused, victim, witnesses - even the grandmother who might get custody of a child if her son is sent to jail.

Then we amass all the pertinent information we possibly can, couch it in the most appropriate format - photos, filmed interviews, forensic reports, witness statements, maps, diagrams, bloody gloves - the works - in an orderly fashion. We put the jury in a room with the evidence and a professional presenter, who takes them through the investigation process as it happened. The jury can stop proceedings to ask questions of the legal panel at any time. The court recorder takes a note of any question each juror has on a particular topic, or regarding a piece of evidence. Then the accused is brought in and allowed to summarize his side of the story. Then the witnesses come in one by one, summarize their evidence, and answer whatever questions the jury asks. At reasonable intervals, the jury is given time to rest, consider and discuss what they've heard. Once they're satisfied that there is no more to learn, the judge comes in, gives them instruction in matters of law, and leaves them to deliberate.

What about cross examination? Both sides questioning the witness? Asking probing questions by someone trying to prove someone guilty or innocent seems like an important part of a fair trial. Is the witness impartial? How do you decide this without probing questions?

This applies only to criminal cases, where the might of the state is arrayed against a single citizen; wherefore, the accused needs all the safeguards possible in order to give him or her a fair trial. In other kinds of litigation, either adversarial or arbitration arrangements may be more appropriate.

Hmm...

-- Updated Tue Jun 16, 2015 11:43 am to add the following --

There is motivation to WIN on both sides, no getting away from that. Both sides need to make their case, need to defend, and need to prosecute, no getting away from that.

That's where we disagree. There is a way to get away from it, if you remove big money. What is it lawyer's charge per hour these days?

That's a great thing to do, but does nothing to the motivation of the accused to not go to jail, and nothing to the desire of the police to lock up someone they think dangerous. These desires you cannot get away from, it is different from a scientific conference in that respect.

If the lawyer takes the attitude of seeking the truth, then they potentially do a very unethical thing.

That sounds like the mother who is feeding her baby healthy food is doing something terribly unethical.

... even if the prosecution thinks the person is innocent, maybe the prosecution is wrong. The fact that I would support a lawyer trying to win, regardless of what the lawyer thinks, amazes me, ...

It amazes me too!

You're not addressing my point. It seems it is the ethical duty of the lawyer to put their personal feelings aside and do the best for their client, because they, the lawyer, might be wrong. You think lawyers should help the prosecution condemn a potentially innocent person to jail? You think lawyers should help the defence free a person who might have murdered because of their personal opinion?

Tell me how an alternative system would work.

I think I have already outlined the major structural changes and how, even though it would not be fool proof, it would be a major improvement in the direction of sanity.

It's not very clear to me at all, and I've read your post. You want to do away with the defense and prosecution trying to win, and I suggest that might be very dangerous, and a worse system than we have now. You envision a bunch of "experts" "impartially" sitting in a room reviewing my case, and deciding my fate. That is why I asked if I get a chance to defend myself as I do in today's courtroom? If I can't it sounds like a nightmare. If I can't defend myself as effectively as today, I'd rather have our current system than that.

Also, the judge should be trying to seek the truth, and do they for the most part? Why is that not enough? You've got one person trying to seek the truth, everyone else trying to win. Given the situation they are in, where there is strong motivation to prosecute and defend that you cannot get away from, what's wrong with that?

Lawyers and prosecutors are motivated by money and prestige (access to more money). Judges are under enormous pressure to get rid of the case load, backing up, as quickly as possible, never mind the political pressure from all sides, to make sure that they will be appointed again -- they have no time and energy to worry too much about justice.

Well, as Alias suggests, reform it to deal with the money problem. I am in interested in the structural changes you suggest, where nobody tries to win. No prosecution, no defense. If it means I can't defend myself adequately, no thanks.

[Elder]

I am in interested in the structural changes you suggest, where nobody tries to win. No prosecution, no defense. If it means I can't defend myself adequately, no thanks.

I have already said the the accused has the right to defend himself and has the right to have help to defend himself.

Why do you write as if id did not say that?

I have already said that the onus is entirely on the evidence to prove guilt.

Except, both the defense and the experts are focused on establishing the truth, the best way they can understand it, instead of winning, regardless of the truth?.

What on earth is wrong with this?

I will never understand what is wrong with sanity?

[Mgrinder]

I am in interested in the structural changes you suggest, where nobody tries to win. No prosecution, no defense. If it means I can't defend myself adequately, no thanks.

I have already said the the accused has the right to defend himself and has the right to have help to defend himself.

Why do you write as if id did not say that?

Right to defend myself, good. Adequate right to defend myself under your system, whatever it is? That's my question. And as before, you are not articulating your system beyond some fairly vague comments. Sorry. I don't know what's in your head. What's written is too vague for me to understand.

Except, both the defense and the experts are focused on establishing the truth, the best way they can understand it, instead of winning, regardless of the truth?.

What on earth is wrong with this?

I will never understand what is wrong with sanity?

I keep telling you my problem with it, and you keep ignoring what I tell you. Kindly save your insults until you can answer my question about the duty of lawyers I keep putting to you.