The Justice Game by Geoffrey Robertson records some of the landmark legal cases a young lawyer from Australia faced in his early days after graduating from Oxford in England from the early 1970’s to the mid 1990’s. The book chronicles some major Human rights cases that challenged the entrenched mind set of an ancient legal institution. It is interesting to note that Robertson does a lot of his early work as a student supported by a Rhodes Scholarship and later "pro bono" - Latin for free.
The title derives from a perception Robertson has that all human activity eventually comes down to “a game” where precedent often sets tacit rules. Its origin may have come from John Mortimer’s play, A Voyage Round My Father, which includes this depiction of “the law” :
…the great stone column of authority which has been dragged by an adulterous careless, negligent and half-criminal humanity down the ages – as if it were a small mechanical toy which might occupy half an hour on a rainy afternoon.
Plato already was perceptive enough to see Justice could be used as trickery. In The Republic, the character Thrasymachus argues that justice is the interest of the strong—merely a name for what the powerful or cunning ruler has imposed on the people. The rich and powerful make the laws to preserve their positions from the “little people”. Plato argued that justice is internal to the soul, requiring not only laws, but discrimination and virtue.
Skilled legal professionals with low standards of integrity are able to mould and manipulate ideas, popular beliefs and, ultimately, the direction of arguments. The majority of the population is not alert to this kind of deceptive manipulation. They are more or less defenseless against such clever 'perception management'.
There are a number of confidence tricks in an experienced Advocate’s grab bag.
Framing is a good lawyer’s single most important, and most significant, activity. Framing, setting parameters or -- with phrases, attitudes or ideologies -- sets the frame of reference within which evidence, events and statements and how people see things. They frame issues, evidence, situations and ideas in ways that set the agenda for persuasive effect. At its simplest level it employs the use of words and phrases.
Examples are the Bush-Howard phrase "cut and run", as a way of describing the otherwise sensible policy of getting out of Iraq. Similarly, when Christian fundamentalists stopped referring to their anti-Darwinism as "creationism" and started to call it "intelligent design" they were re-framing their position hoping to change how you thought about it.
Casuistry (sophistry) is the use of subtle, sophisticated, and sometimes deceptive argument and reasoning, especially on moral issues, in order to justify something or mislead. They may use specious (plausible) or spurious (false) arguments.
Socrates considered the debate in such settings unedifying, pointless and unworthy—in a word, “eristic”. Eris was the Greek goddess of strife (the Roman Discordia). It was Eris* who, uninvited to the Marriage celebrations of Thetis and Peleus, crashed it regardless and cunningly dropped a golden apple with the inscription “to the fairest” into a feast, inciting three goddesses—Hera, Athena and Aphrodite—to bicker over who deserved it and thus launching the ten-year Trojan War. Eris is present in presidential debates, in court rooms and wherever people are talking not to discover truth but to win.
*The cornerstone of our system of democracy is the separation of our system of justice from the legislative and executive arms of government. Yet all three are needed to guard the public from abuse of office by the other two.Like the three nymphs of the Hesperdes, given the task of guarding the golden apples of the Hesperdes, had to watch each other. Not trusting them, Hera also placed in the garden a never-sleeping, hundred-headed dragon named Ladon as an additional safeguard. So too the three bodies of government have to keep an eye on each other to make sure each one remains true to their calling. It is the people in a democracy that need to adopt the role of Ladon.
In contrast, Socratic dialectic claims to be in search of honest discussions that lead to truth. Socrates’s alternative was “good” conversation or dialectic. To converse originally meant to turn towards one another, in order to find a common humanity and to move closer to the truth of something. Dialectic, in other words, is decidedly not about winning or losing, because all the conversants are ennobled by it. Socratic dialect can be misused and abused as well.
Today, debate has become a simple contest of narratives - when was conflicting legal debate anything but a competition of vested interests in which power rather than quaint notions of decency or truth and logic determined the victor? Lawyers usually play to win at any cost.
Robertson’s main tenet appears to be that the Judicial Institution, like other entrenched ones – The established Churches, often fail to keep up with the times and have to be forced to challenge the complacency of some of their cherished assumptions.
In an ideal world, Justice is pure and simple; in the real world it is rarely so but becomes murky and complex, subject to competing forces.
A just conclusion results from a fair, open and balanced investigation, based on factual assumptions, incisive investigation, rigorous analysis, soundly reasoned arguments supporting grounded conclusions, while anything short of that can result in either a travesty, a miscarriage or even a perversion of Justice.
The most fundamental ingredient has to be an objective, impartial and balanced approach by the arbiter.
The Justice Game in its discussion of truth as objective or subjective, may also indulge in tactics to position the responder to accept its version of the truth (Geoffrey Robertson is depicted in his "silks" [his QC outfit], there are 17 quotes of self praise, the book cover is in simple, elegant colours like black, gold and silver etc.).
Geoffrey Robertson, a young lawyer from Australia graduated from Oxford in 1990. Geoffrey Robertson QC has been counsel in many landmark cases in constitutional, criminal and media law in the courts of Britain and the commonwealth and he makes frequent appearances in the Privy Council and the European Court of Human Rights. In 2008 the UN Secretary General appointed him as one of the three distinguished jurist members of the UN’s Internal Justice Council.
Mr Robertson is the author of Crimes against Humanity, – The Struggle for Global Justice, The Justice Game (Vintage).
His most recent publication is The Tyrannicide Brief, the story of how Cromwell’s lawyers produced the first trial of a Head of State – that of Charles I. It traces the memorable career of John Cooke, the radical barrister and visionary social reformer who had the courage and intellect to devise a way to end the impunity of sovereigns.
Robertson's paper Ending Impunity: How International Criminal Law Can Put Tyrants on Trial has been published in the 2005 Cornell Law Journal (issue 3, Volume 38). In 2006 he chaired a Commission of Inquiry into the United Nation’s internal justice system.
Geoffrey Robertson is founder and head of Doughty Street Chambers, the UK’s leading human rights practice, which comprises some 80 barristers and 30 staff. He is a Bencher of the Middle Temple; and a Recorder (part-time judge) in London; an executive Member of Justice, and a trustee of the Capital Cases Trust. He is visiting Professor in Human Rights at Queen Mary College, University of London. He lives in London with his wife, author Kathy Lette, and their two children.
It is best to look at some of the recurring issues in some of the international cases dealt in depth.
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