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Truth and Justice

It is generally acknowledged that the first casualty in conflict is truth (Aeschylus)

In one of the first Hebrew codes of laws, "Rabbi Shimon ben (son of) Gamliel  asserts the three bedrock principles that underpin Western legal systems:

 'The world stands upon three things: upon Truth, Justice and Peace. Without these three elements the world cannot be sustained - and further, like the pillars holding up the ceiling of a house, all three are essential - together: There can be no Truth in the absence of Justice and Peace; no Justice in the absence of Truth and Peace; no Peace in the absence of Truth and Justice.

 “That which can be destroyed by the truth should be”   - P.C. Hodgell

"All truth passes through three stages; First it is ridiculed, second it is violently opposed, third it is accepted as being self-evident.. Shopenhauer

This may be a laudable assertion but turns out a bit more problematic in real life.  It is often difficult to pin down Truth.  It is elusive, protean; it can be ambiguous, pliable; it can also be subjective and depend upon your perspective and perceptions.

Conflicting perspectives attempt to ascertain the truth by looking at issues from other sides.  Ascertaining the truth is extremely difficult but by objectively considering the evidence we have some chance.  As Orwell put it:

 it’s usually not hard to find the truth – but first you have to want to know”. 

Evidence, like Language, can never achieve pure representation. It cannot mean by itself – it is determined by context, intention and collective agreement.

People often use language to conceal rather than reveal their real intentions.  All attempts to communicate are subjective and therefore even well intentioned, informative writings can be prone to bias or unconscious distortion of truth.   

Attempting to sort out the truth of a marriage as any Family court Judge will tell you is fraught with danger.  As Churchill said of Russia: “It is a riddle wrapped in a mystery inside an enigma”.

Also that truth is very much a matter of perspective and perception - it is ambiguous, elusive and subjective -  but worthy of pursuing.

The sources eliciting truth are not necessarily reliable but certainly preferable to fanciful speculative assumptions, supporting eristic arguments forming mythical conclusions.

Albert Einstein distinguished between “what is true and what is real; truth is subjective and abstract while reality is objective and concrete.  In the Real World and the World of an adversarial Court System, truth is malleable and can be manipulated, distorted, selective and sacrificed for ulterior motives.

Historically we have myriads of precedences to either follow or justify the use of falsehoods or deception.  Nietzsche advised that “if you are going to tell a lie in the marketplace, make sure it is a big one and you repeat it often enough.”  Hitler, Goebbels and modern politicians have been inspired by this. 

People prefer a good story to the truth.  George Orwell stated that “Political language is designed to make lies sound truthful, murder respectable and to give an appearance of solidity to pure wind”.   This is a form of age-old casuistry or eristic reasoning; a tactic in debating or persuasion favoured by adversarial lawyers, public relations spruikers and other low life in systems where winning is everything.

The habit of lying is not nearly so extraordinary as people’s readiness to believe them. It is indeed because of human credulity that lies flourish.

Machiavelli insisted that deception was vital for pragmatic leaders to use without compunction to maintain power.  Here is some advice from Machiavelli to rulers:

"The promise given was a necessity of the past; the word broken is a necessity of the present." "He should appear to be compassionate, faithful to his word, guileless, and devout. And indeed he should be so. But his disposition should be such that, if he needs to be the opposite, he knows how."

Groucho Marx’s version: 

The secret of success in business is honesty and fair dealing. If you can fake that, you've got it made.

 As Tacitus stated: “crime, once exposed, has no refuge but in audacity”.

 
Evan Whitton is a legal historian. His Our Corrupt Legal System details the origins of the system used in England and its former colonies.

Evan Whitton has been reporting on corruption for more than twenty years, received the Walkley Award for National Journalism five times and was Journalist of the Year 1983 for "courage and innovation" in reporting a corruption inquiry. He was editor of The National Times, Chief Reporter and European Correspondent for The Sydney Morning Herald and Reader in Journalism at the University of Queensland. He is now a columnist on the online legal journal Justinian www.justinian.com.au


‘Our Corrupt Legal System: Why Everyone is a Victim (Except Rich Criminals)’ by Evan Whitton (Book Pal, 2009)


The main thing will be to abolish the judge-lawyer cartel by training judges separately from lawyers, as they do in Europe. Common law countries will change to a  truth-seeking system when lawyers in legislatures learn to fear the public more than they love the anti-truth system.

Whitton demonstrates out of the mouths of these people, so much of what is wrong with the adversarial system of justice; How they have constructed a system which is riddled with inbuilt ploys that deny truth and deny justice whilst at the same time is effective in covering up their own misdeeds.

“For whatever reason, when the interests of justice conflict with the interests of lawyers, then, injustice is inevitable.”

As so many of us can vouch, and as Evan Whitton so ably demonstrates, the adversarial system of law is not working and is not fit for purpose, the main reason being is that, at any level, it can be, and often is, corrupted to suit the purposes of those who administer it. It does not serve or seek the truth and without truth there can be no justice.

Cross-examination: in the hands of a fact-gathering judge, it is a great engine for discovering the truth; in the hands of a defence lawyer, it a great engine for obscuring or suppressing it.

The Christie Discretion . This gives judges the power to conceal virtually all admissible evidence. The grounds for applying the discretion require a degree in metaphysics rather than law. Error is inevitable, but there can be no appeal against wrong decisions.

Charles Dickens observed in 1852: "The one great principle of English law is to make business for itself." Apart from everything else, the rules for concealing evidence enable lawyers and judges to engage in endless technical discussion on whether evidence can be admitted.

Judge Rothwax in his book, 'Guilty: The Collapse of Criminal Justice'' contended that the technical rules imposed by the appeals courts had undermined the search for truth in courtrooms. ''Without truth,'' he wrote, ''how can our society properly maintain the ideals, values and principles upon which it was founded?''  A legal system that conceals this much evidence may be trying to be fair, but it is not trying to find the truth; as Judge Rothwax says: suppressing evidence is suppressing truth.

Truth. In view of the above, it is idle for 'common lawyers and judges to claim that a criminal or civil trial is a "tribunal of fact". In criminal trials, one nominal fact-gatherer, the prosecutor, is impeded by the rules for suppressing evidence, and the defence lawyer is often impeded by his obligation to his client. In civil actions, the lawyers gather only those facts which help their case and try to hide those which don't. A US Judge, Marvin Frankel, says: "It is the rare case in which either side yearns to have the witnesses, or anyone, give the whole truth." (Judge Frankel's emphasis.)

Civil Litigation . In Germany, civil litigation is more like a conference than a trial. Putting fact-gathering into the hands of truth-seeking judges would reduce the cost and many of the problems of civil litigation.

As Mel Barnett says, "the common law is not a justice system, only a legal system".

Lawyers. There are some three million lawyers and judges in the common law world, many desperately trying to produce justice from a system fatally infected eight centuries ago. Lawyers like Mel Barnett and judges likes Harold Rothwax and Geoffrey Davies are speaking out for change, and it was certainly a giant step for lawyers at the Australian Law Reform Commission to effectively recommend that the cartel should be dismantled.

But there is a view that real change will have to come from the community; most lawyers are not interested; Nicholas Cowdery QC, Director of Public Prosecutions in NSW, says: "To a lawyer love of justice is, or should be, the love of a lifetime. Is it being spurned?"

The Community . The giant is stirring; among the common law's 1597 million non-lawyers some in the US are joining such organisations as Justice For All, People Before Lawyers, UCLR (United Citizens for Legal Reform) and FLAC (For Legally-Abused Citizens). In 1997 FLAC was considering a march on Washington to demand reform; UCLR was planning to use the RICO legislation in a class action seeking US$100 billion on behalf of victims of the American judicial system. An Australian chapter of FLAC was formed in November 1997.

Those organisations tend to focus on ever-abundant legal horror stories, e.g. FLAC Australia's case of a dispute over $230 that generated $20,000 in legal fees. But the cartel has long absorbed such punishment - if never in such concentrated form - by reference to Blackstone's brilliant line that the inconveniences are a tiny price to pay for the protection their grand legal system affords.

The organisations should thus have subsidiaries called something like GLARA (Genuine Law Reform Association), NELSA (New Legal System Association) or TILA (Truth in Law Association). The subsidiary should have a programme of positive and costed reform based on: 1. An understanding of how the common law went wrong; and 2. The better aspects of the common law and inquisitorial systems. May I modestly suggest that this book provides the basis of such reform programmes? Chapters 33-40 provide data on criminal pre-trial and trial procedures in France, Germany and Italy, and on civil litigation procedures in Germany.

The Legislature . Law-and-order politicians tend to focus on the wrong end of the system: long sentences for the few relatively minor criminals the law manages to convict. A more persuasive deterrent is the degree of certainty of going to prison if caught. A real law-and-order program would focus on putting more major criminals into prison and keeping the innocent out.

The fundamental reform is a commitment to truth; no reform will succeed without it. The words: "The object of justice is to find the truth" at the head of a new Crimes Act should wind back the adversary system to acceptable levels. The rules for concealing evidence can be abolished by a simple change in the layout of the court room: moving the jury from the side of the court to the bench. A pre-trial system of investigating judges and defence lawyers' access to the dossier can be instituted by a stroke of the legislative pen.

Arranging for people to be trained as professional fact-gathering judges in charge of police investigations and criminal and civil trials will effectively abolish the cartel.

If judges refuse to co-operate on some spurious ground, e.g. that the new system is unfair to the accused, or that fact-gathering leaves no time for knitting, the community's representatives will sadly have to take the iron fist out of the velvet glove and remove them from office for misconduct, i.e. effectively refusing to sit.

Legal Academics . As will be apparent, I have relied on legal academics for much of the material in this book, but Judge Rothwax says: "Even in law journals, arguably the centre of legal learning and dialogue, there has been little attempt to view the system as a whole." It is ridiculous that Trial by Voodoo and The Cartel are the only books in the language which offers a critical examination of the law as a whole; legal academics should apply the weight of their knowledge and authority to the big picture.

Law Schools. Law schools will be left behind if they continue to mindlessly assert that the common law is the best system and that's all there is to it. They will have to learn the origins of both systems, how inquisitorial systems work, and how to teach students to be professional fact-gatherers. Dare I say that, until a better one comes along, The Cartel is unfortunately the obvious, and indeed the only, text?

High Schools. The law is critical to society; high school teachers should teach how it actually works and what can be done about it. Again, The Cartel is sadly the only text. Any civics class could compile a book supplementary to this by cutting and filing data from the Press in a number of folders: The Cartel, The Malady, The Unimportance of Truth, The Adversary System, the Right of Silence and the other magic tricks.

Civil Libertarians . It is surprising that civil liberties groups do not agitate to stop torture and fabrication, i.e. by judicial supervision of police and for trials that are fair to accused, victim and community. Is it because they tend to be lawyerised?

The Media. A traditional function of journalism is to expose wrongdoing, in particular corruption, which defeats democracy. The common law has been doing wrong for eight centuries; libel law has been protecting the corrupt for nearly three.

Obstructing Reform . The cartel is the only impediment to reform; it has been obstructing it for eight centuries. One technique is to assert that the law is a great mystery and that only its priesthood can know how it really works. But ignorance is recycled; the priests don't know either.

Judge Richard Posner says: “’Legal Theory' is the body of systematic thinking about (or bearing closely on) law to which non-lawyers can and do make important contributions, and which lawyers ignore at their peril." Nonetheless, it may confidently be surmised that elements of the cartel will seek to dismiss The Cartel as the work of a mere scribbler.

In a sense, however, scribblers have an advantage over lawyers. The rule against similar facts makes lawyers nervous of context and pattern but they are a reporter's stock-in-trade. This is confirmed by a psychologist; he said of a remark that a journalist needs a mind like a corkscrew: "The technical term for corkscrew mind is divergent intelligence. This correlates highly with the pattern approach to evidence espoused by RICO.

"English law seems to me to be a determined attempt to limit divergent intelligence and to promote its opposite, convergent intelligence. Divergent intelligence is right-brained, convergent left-brained. One point of promoting women judges is that fewer are so totally left-brained. "

The great masters of contextual or pattern journalism are The Philadelphia Inquirer's Jim Steele and Donald Barlett. Steele described the technique in 1976: "The challenge is to gather, marshal and organise vast amounts of data already in the public domain and see what it adds up to."

Ending the Magic . The data gathered for The Cartel shows why it is inevitable that the common sense will replace the common law. Some lawyers and judges won't like it, but the cartel has had a splendid innings.   EVAN WHITT0N


More Sayings on Truth:

“Truth that’s told with bad intent, Beats all the lies you can invent”.

  •  “Believe those who are seeking the truth; doubt those who claim to have found it”.  Andre Gide

  • In the right moment, one word of truth outweighs the world”. Solzhenitsyn

  • Truth may be free;  but bullshit – propaganda costs a fortune.

  • “The truth is not hard to find; but first you need to want to find it”. Orwell

  • "All truth passes through three stages; First it is ridiculed, second it is violently opposed, third it is accepted as being self-evident.. Shopenauer

  • “In a room, where people unanimously maintain a conspiracy of silence, one word of truth sounds like a pistol shot. Czesław Miłosz      
  • "When you tell a lie you steal someone’s right to the truth."  The Kite Runner
  • "I'm not upset that you lied to me, I'm upset that from now on I can't believe you".   German philosopher Friedrich Nietzsche

  • That which can be destroyed by the truth, should be”    P.C. Hodgell

  • "It thus becomes vitally important for the State to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State.  Joseph Goebbels - borrowing from Nietzsche

  • "In our country the lie has become not just a moral category but a pillar of the State".  Solzhenitzyn  

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