America's English-Style Legal System Evolved to Conceal Truth, Not Reveal It

The civil adversarial system that developed over centuries in England, and later spread to the U.S. and other colonies, might not work as well as a truth-seeking system.

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Judges in British Hong Kong adjust their wigs before a 2001 ceremony. (Reuters)

Taxpayers pay for their countries' legal systems, including the wages of law officers, judges, legal bureaucrats, regulators, police, and prosecutors. Citizens living under English-style common law legal systems (and in particular those of former colonies Australia and the United States) also increasingly sense there is something wrong with these systems. A poll taken for the Australian Reader's Digest in 2011 found that judges and lawyers are less trusted there than bus drivers, vets, police, hairdressers, or chefs.

But what exactly is wrong? Whatever it is, it seems that lawyers, including judges and academics, cannot help much; law schools generally teach what the law is, not where it came from, or what ails it, or the cure. If vet schools did that, a lot of cats and dogs would be dead, and a lot more children would be sad.

Chronology is always the first element of deduction, so perhaps an evaluation of the development of the Anglo-American legal system is in order. The following account, drawn largely from the words of more than 300 lawyers and judges over the past few millenia, suggests that the system developed in what we might classify as six stages.

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1. Trickle-down extortion. English common law began in 1166. At the time, every public office was for sale; buyers in turn extorted bribes from people who dealt with the office. It seems fair to assume that judges used lawyers as go-betweens for extortions. The entire form of the law, then, evolved from an elaborate dance of bribery and manipulation; hardly a solid foundation upon which to build a society.

2. The cartel. Members of any cartel collude to increase prices and profits. As Judge Richard Posner of the U.S. Court of Appeals has said, judges and lawyers have always been a cartel. That may explain why judges have never been trained as judges; one day they are lawyers versed in sophistry -- trick questions, false arguments, etc. -- and, after either an election or political appointment, judges the next. Hence the uneasy feeling: will a ruling reflect justice, or will it be made for some other purpose? Political ideology? More business for lawyers? Power?

3. Truth rejected. Justice Russell Fox, who researched the law for 11 years after he retired from the Australian Federal Court, said that justice means fairness; fairness and morality require a search for the truth; truth means reality. Judges in England rejected a truth-seeking (inquisitorial) system in 1219. That partly explains why our system can at its worst be unfair, unjust, unreal, and immoral; truth often takes a back seat to process and form.

Continental European countries adopted an inquisitorial system after a church-state conference in November 1215, but of course their judges perverted justice in a different way; for more than five centuries, they believed torture to be a reliable method of finding the truth.

4. The civil adversary system. The system dates back to 1460, when judges began to let lawyers take control of pleadings. Comparing Napoleon's reformed inquisitorial system with the adversary system would dismay our taxpayers. In France, trained judges are in charge of evidence and questioning witnesses. Paid on a fixed wage, they have little motive to prolong the process. Most hearings take a day or so.

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Evan Whitton is an Australian journalist and a former chief reporter at The Sydney Morning Herald. He is a five-time recipient of the Walkley Award.

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