I started questioning the law only after a unique opportunity to observe at first hand how the West’s two legal systems dealt with the same organised criminal, Sir Terence Lewis, Police Commissioner of Queensland.
In 1988, the European inquisitorial (investigative) system found a Niagara of evidence against him, but in 1991 the Anglo-American adversary system effectively found none. The judge felt obliged to conceal so much evidence that he had to tell the jury there was no reliable evidence [left], and that it would be dangerous to convict.
But the jury found Terry guilty, and that gave him entrée to a select club: he is the 14th knight since the 14th century to be stripped of his knighthood. He also got 14 years and served 10½. As for me, trying to find out why two systems of justice are so different condemned me to 14 years of drudgery. What I learned is quite interesting, in its way.
First, what are lawyers? Harvard ethics professor Arthur Applbaum said in 1995: “Lawyers might accurately be described as serial liars because they repeatedly try to induce others to believe in the truth of propositions, or in the validity of arguments, that they believe to be false.” I assume he meant the 40 per cent who are trial lawyers.
Second, what is justice? A former Australian Federal Court judge, Russell Fox QC, says in Justice in the 21st Century (Cavendish, 2000) that justice means fairness, fairness requires truth, truth means reality, and the search for truth gives a system a moral face, otherwise the likely winner will merely be the one with the most resources.
So everything turns on truth. The adversary system does not search for the truth, and trial lawyers control the evidence, and hence the process, and hence the money. Judges control the courtroom, but are untrained, ignorant of the facts and passive. The investigative system is the opposite: it searches for the truth, and trained judges control the process.
Third, how did it happen? Roman law was based on truth, but in the Dark Ages after the fall of the Roman Empire in AD476, Europe and England reverted to superstition and changed to an anti-truth accusatorial system: A accused B and an inscrutable deity was supposed to deliver the verdict.
William II (d. 1100) made the English public sector totally corrupt: he put every public office on sale and the buyer in turn extorted bribes from those who dealt with him. When lawyers and judges began to be paid for the first time about 1180, they naturally formed a cartel to maximise their profits.
In Rome in 1190, the future Pope Innocent III began to reinvent Roman law as a method of finding the truth of allegations against religious. His inquisitorial system was endorsed by an ecumenical council in November 1215 and shortly adopted by European courts.
In 1219, the English lawyer-judge cartel decided to persist with the accusatorial system, either from bottomless stupidity or because corruption is easier if truth is not on the agenda. An inscrutable jury replaced the inscrutable deity.
The adversary system is a version of the accusatorial system. It origins go back to 1460, when lawyers began to get control of civil evidence, and began to invent ways of spinning the process out.
There was then no money in criminal work; lawyers began to appear in criminal courts only in the 18th century, and had control of the criminal process by the first decade of the 19th century. The adversary system was now complete. Most of the system’s 26 anti-truth devices have been invented since then.
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