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.
Friday, October 15, 2010
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.
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.
Tuesday, October 12, 2010
Rights and the Self
Tibor R. Machan
The human self gets all kinds of abuse from intellectuals, poets, artists and entertainers. Hubris and selfishness are roundly condemned whereas selflessness and unselfishness are widely praised. This rank misanthropy is fatal to the assertion of human rights!
Even as the Nobel Prize goes to the jailed Chinese champion of individual rights in opposition of the Communist Chinese government’s unabashed affirmation of its placing such a person in jail for more than a decade and even as the more pragmatic Western commentators lament the fact, the connection between altruism and the violation of individual rights is rarely being made. Yet it is a major source of the age long abuse of human beings and their liberty since, of course, free men and women are not bound to always overlook themselves as they pursue their various tasks in their lives.
What is the source of this awful paradox? How come so many demean human beings while also champion their liberty to do as they judge fit when the latter clearly runs the risk that they will look out for themselves first and foremost in numerous realms of their lives?
One main reason is that over the centuries very often human nature has either been completely annihilated or utterly derided as nasty and brutish and anti-social. Not only did some versions of Christianity—although by no means all—affirm and vigorously defend the doctrine of original sin, such that every person is born laden with evil from which he or she needs to be saved by baptism and other rituals. But secular philosophies, such as that of the very influential English political philosopher Thomas Hobbes, declared people to be fundamentally ill-willed, brutal to their fellows and rapacious in all manner of human endeavors, especially the economic. This idea that we are all ruthless, amoral profit maximizers is very fashionable, especially in Hollywood where Oliver Stone makes millions depicting economic agents as nothing but vicious cads.
Why did this view become so credible even while people, especially those in the business world, are routinely pursuing a course of conduct that advances not just their but everyone else’s profit with whom they trade? Why will the silly zero sum game vision of human economic life not go away even while nearly all trade actually advances the economic interest of all the traders?
A source of this very hostile view of humanity comes from the belief that we are automatically driven to charge ahead with no regard for anything else but power and wealth. Where this vision gained its plausibility is in classical physics which Hobbes used as his model for explaining everything, including human life and politics. All of us are like atoms, like matter-in-motion moving forward blindly, ineluctably and whoever we meet we are inclined to mow down mercilessly, just as are the physical bits and pieces of which the material world is made crush anything in their path that's weak. And for those who championed original sin what stands out about us is our animal nature, the element of us that places us at home in the wilds or the jungle. Only when we focus on the spiritual are we saved from being insufferably mean and nasty.
None of this makes much sense of our actual lives in which the great majority of us are focused on both, our own flourishing and on the well being of those close to us and even quite far! Only a small portion of humanity fits the picture that depicts us as heartless brutes. Even when we are indeed selfish—or as the ancient thinkers would have it, properly prudent—we are by no means anti-social. Mostly we realize that the company of our fellows is a great plus in our lives whether we cooperate or compete with them.
Unless people wish to give up on fighting for their rights not to be oppressed and tyrannized by the worst among us, they will need to stop denigrating themselves and assert their own value. That way, also, lies their full acknowledgement of the value of other human beings and their basic rights.
Tibor R. Machan
The human self gets all kinds of abuse from intellectuals, poets, artists and entertainers. Hubris and selfishness are roundly condemned whereas selflessness and unselfishness are widely praised. This rank misanthropy is fatal to the assertion of human rights!
Even as the Nobel Prize goes to the jailed Chinese champion of individual rights in opposition of the Communist Chinese government’s unabashed affirmation of its placing such a person in jail for more than a decade and even as the more pragmatic Western commentators lament the fact, the connection between altruism and the violation of individual rights is rarely being made. Yet it is a major source of the age long abuse of human beings and their liberty since, of course, free men and women are not bound to always overlook themselves as they pursue their various tasks in their lives.
What is the source of this awful paradox? How come so many demean human beings while also champion their liberty to do as they judge fit when the latter clearly runs the risk that they will look out for themselves first and foremost in numerous realms of their lives?
One main reason is that over the centuries very often human nature has either been completely annihilated or utterly derided as nasty and brutish and anti-social. Not only did some versions of Christianity—although by no means all—affirm and vigorously defend the doctrine of original sin, such that every person is born laden with evil from which he or she needs to be saved by baptism and other rituals. But secular philosophies, such as that of the very influential English political philosopher Thomas Hobbes, declared people to be fundamentally ill-willed, brutal to their fellows and rapacious in all manner of human endeavors, especially the economic. This idea that we are all ruthless, amoral profit maximizers is very fashionable, especially in Hollywood where Oliver Stone makes millions depicting economic agents as nothing but vicious cads.
Why did this view become so credible even while people, especially those in the business world, are routinely pursuing a course of conduct that advances not just their but everyone else’s profit with whom they trade? Why will the silly zero sum game vision of human economic life not go away even while nearly all trade actually advances the economic interest of all the traders?
A source of this very hostile view of humanity comes from the belief that we are automatically driven to charge ahead with no regard for anything else but power and wealth. Where this vision gained its plausibility is in classical physics which Hobbes used as his model for explaining everything, including human life and politics. All of us are like atoms, like matter-in-motion moving forward blindly, ineluctably and whoever we meet we are inclined to mow down mercilessly, just as are the physical bits and pieces of which the material world is made crush anything in their path that's weak. And for those who championed original sin what stands out about us is our animal nature, the element of us that places us at home in the wilds or the jungle. Only when we focus on the spiritual are we saved from being insufferably mean and nasty.
None of this makes much sense of our actual lives in which the great majority of us are focused on both, our own flourishing and on the well being of those close to us and even quite far! Only a small portion of humanity fits the picture that depicts us as heartless brutes. Even when we are indeed selfish—or as the ancient thinkers would have it, properly prudent—we are by no means anti-social. Mostly we realize that the company of our fellows is a great plus in our lives whether we cooperate or compete with them.
Unless people wish to give up on fighting for their rights not to be oppressed and tyrannized by the worst among us, they will need to stop denigrating themselves and assert their own value. That way, also, lies their full acknowledgement of the value of other human beings and their basic rights.
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