From: Rishab Aiyer Ghosh <rishab@dxm.org>
Date: Fri, 22 Aug 1997 23:55:37 +0800
To: "tcmay@got.net>
Subject: RE: an end to "courts" (was RE: An end to "court appointed attorneys" )
Message-ID: <01BCAF39.EF6B13E0@d414.pppdel.vsnl.net.in>
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Tim May wrote:
>The modern American legal system, at least in the many recent capital
>murder cases which have received such wide publicity, is not about a
>"search for truth," obviously. Instead, it is an adversarial system (no
>surprise there) in which competing teams spend vast amounts of money trying
>to derail the other side, get jurors dismissed because of "jury consultant"
>models, etc.

Yes, but. The point I was trying to make is that, in a system of voluntary
justice, you don't need to worry about the abuse of power, because there
is no power with the judge (arbitrator). In any state-backed legal system,
there is potential for abuse, because the court represents the power of
the state and can enforce it. So you have the cliched checks and balances.
The alternative to an American system is to limit jury trials, as is done
in India and much of the ex-British colonies following common-law. While
the use of juries in America is excessive (in patent trials, good grief! where
even the judges can barely understand a word), they are supposed to
balance the power of the state as represented by the judge.

As to the common-law system itself, which is unique to England and its 
former colonies, true it is adversarial - but that's why _at the trial_ you're
_innocent_ until proven guilty. Under code-civil legal systems, which are
usually inquisitorial, and where the judge (or magistrate) _does_ try
to determine the "truth", there is much less competition over technicalities
because by the time a case gets to trial, the likelihood of guilt, in terms
of evidence, is probably quite established. But then, you might worry
that a magistrate is no longer impartial, and possibly leans towards 
the prosecution. The potential for abuse and excessive wielding of state
powers is perhaps higher in such a system - I admit that I am biased
towards common-law.

However much we hate lawyers - it is worth noting here that _Shakespeare_,
living under adversarial common-law, suggested that we shoot all the lawyers,
rather than, say, Moliere - they do not represent the enforceable power of the
state. Even when, as prosecutors in criminal trials, they are state-backed, they
are on level ground with defence lawyers (possibly also state-funded) in front of
the court - which _really_ represents the power of the state.

I have no reason to doubt the integrity of military court judges like Tim's father,
nor those who work for prosecutorial legal systems in much of continental Europe.
But a legal system, if we have one at all, is designed to prevent abuses when
it is operated even by dishonest people. Just as a dictatorship may be the most
efficient among several models of the state, but a democracy is usually favoured
because it takes just one "bad" person to ruin a dictatorship and rather more to
harm a democracy, so a common-law jury system is inherently among the better
of various choices for a state-backed model of justice. Excesses in its implementation
in America may need restraining, but that's more pruning than uprooting.

In a state-backed court system, lawyers, remember, exist to protect you against 
the court-directed abuse of state power. If you don't like the state, or its court system,
that's fine, but it's not the lawyers who are inherently to blame. A recent issue of
Forbes ran an article arguing that judges and laws, not lawyers, are to blame for
American "excesses". They weren't half-wrong, for it's the judges and the laws who
have the state behind them, not lawyers. No, not even state-_financed_ lawyers.

Rishab

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