Is It a Disaster To Have An Adversarial Legal System in a Society That No Longer Believes in Truth?




This article, written by John Barrs, originally appeared in the Evangelicals Now journal. I provide a link to their website at the article ending.


In a society that no longer believes in the existence of truth, it is asking for disaster to have an adversarial legal system. Today for many people, 'truth' is what they hear on the 'box', especially the opinions of the 'great and good' as represented by the talk-show hosts and their guests. What is 'true' changes daily and is no longer referred to the idea of an unchanging and absolute standard. This fact poses many problems, not least of which is whether one can define what a lie is or even whether such things as liars exist. Behind this daily experience are philosophies called by a whole host of 'isms'. I don't intend to deal with them one by one or even at all. I am going to comment only on how this one result of them affects this one area of the practice of law.

Marquis de Sade's court

Firstly, it is a philosophic problem of some magnitude if one bases the practice of justice upon the determination of truth when you no longer believe in truth. There is a logical inconsistency here which defies proper description in a short note, but which can only be fatal for freedom and fatal for justice as these have been understood until now.

Secondly, the fact that many of the accepted legal systems are adversarial in their practice of the determination of 'justice'-we can no longer honestly talk about the determination of truth - means that the philosophy of the Marquis de Sade must triumph in our courts. That is: 'Might is Right', or 'The Strongest Must Win'. In our western society, 'strength' is currently associated with 'riches' and so he who can employ the most expensive lawyers will be the winner. Truth is at the mercy of financial strength. Concepts of justice per se, of right and wrong, of truth, manifestly no longer have much to do with the current practice of law. In other words, there are two different wrongs that I am highlighting here: the real and serious problem of the loss of absolutes in the area of truth and what this in and of itself means for the societies of mankind, and also the problem that arises when that is exacerbated by an adversarial legal system. Some of my comments apply more obviously to American society than to English society where a real effort is being made to reduce the adversarial approach to law-but at the expense of increasing the power of the individual; lawyers become more advisers to the judge who is the one who decides. This has hope of success only if judges can remain incorruptible and impartial; but I suggest that the basic problem remains. If there is no agreement as to whether truth itself exists then the attempt to ascertain what constitutes truth in a particular case is ultimately doomed.

Incorruptible?

The additional fact that judges are fallen persons and that we cannot guarantee their incorruptibility is also exacerbated by the fact that we have no standards by which to judge the incorruptibility of the judge anyway. Incorruptible by comparison with what? Include in this equation that 'what is true' may itself change from day to day, and therefore that which is considered incorruptible may also change from day to day and I can envisage judges themselves being afraid to give judgements lest they are sued on the morrow and found to have contravened the new truth which then applies.

Meanwhile the adversarial system makes this problem that much worse. If the individual can find a lawyer to act for him or her - especially for a damages claim on a no-win/no-fee basis - then the individual becomes more powerful because they can sue anyone for any perceived disadvantage. The 'disadvantage' may or may not be real-after all, who defines what is real? - the courts via the lawyers who have a vested interest in winning their case. Teachers fear to teach, surgeons dare not operate, shops hesitate to sell goods and all because some 'expert' somewhere can be paid to testify that damage has been suffered or may be suffered in the future. In a peculiar way, by a poetic twist of 'justice' the old communist promise has come true. The individual can be more powerful even than the State itself. But only in a system that allows the truth to be held hostage to the purses of the greedy. So much for 'to each according to his need'!

The future looks bleak. Unless we can restore some idea of an external standard that judges all else and especially all human beings, then there is little hope for justice for anyone. This affects us all. Governments are God's ministers with the power of the sword to protect the righteous and punish the wicked. If what is right is defined by how much one can pay, then governments will increasingly be at the beck and call of the richest in society. While there are rich people, they will be rich but fallen people. That is bad enough, but increasingly the richest sector of society will be the mighty corporation and in particular the impersonal 'holding-fund'. We must not ever think that what is good for an impersonal construct is what is good for a personal human being and yet, because that is what controls the purse-strings, that is what defines right and wrong, justice and injustice, crime and punishment, truth and lies.

Christians

What then for the Christian in such societies?

Firstly, we must remember that all individual activity must begin with the individual person. Christianity is, among other things, a personal religion. A Christian is a person who has a relationship with the God who defines truth and justice, defines goodness and love, defines them in himself. We can do nothing unless we have that personal relationship with God. Apart from anything else, not many of us are rich and powerful in this world. We need a power beyond our own; but more than all else we need to be changed ourselves from the fallenness and selfishness that would tend to drag us into thinking the same way as the rest of society.

Secondly, we need to re-establish individually, in our own thoughts and minds and not least, in our own actions, what constitutes truth and justice. This we can only do as we learn what God thinks of these things. This we can only do as we study what he has said.

Work out salvation

The primary lesson to learn is the realisation of the reality of truth as an absolute. Enough has been said by others about the objective reality of history, especially the fact of the cross, that I am taking it as understood. Here I am emphasising more the acceptance of who that absolute is - the One who said: 'I am the truth', and who over and over again said: 'Truly, truly, I tell you', with that Aramaic repetition of words used to emphasise certainty - 'truly, truly' which means: 'This is really where it is, this is really true.'

The second lesson is to realise that God's concepts of justice are not those of our secular courts. Here I do not mean that God's justice differs from our legal system as it is today, that should be self-evident; but that God's justice differs from our legal system in its purest theoretical form. True human justice must always be based on impartiality, not making a difference between persons, but judging rightly based upon the evidences - giving a person what they deserve. God's justice is best imaged in our personal salvation: we did not get what we deserved. Praise God! We are commanded to forgive others even as we are forgiven. Even here though, salvation is an image of God's justice that goes far beyond the mere (sic) forgiving of those who have wronged us. God uses the image of the shepherd who has to seek the lost ones in his flock, not merely round them up. 'Mishpat', the Old Testament Hebrew word for 'judging' calls upon us to seek out the disadvantaged and positively work to undo that disadvantage. Unlike our court system at its best, God's Old Testament judges were commanded to be biased. Judge for the fatherless, the widow and the poor.

Only when we have our own practice sorted out; only when we can stand before God and at least say that we have tried to do it correctly; only then can we think about joining together to try and do something to oppose the real and potential injustices of our current legal system because only then will we agree in any way about what we should be doing.

As we work out our own salvation in fear and trembling, let us always remember that we are called to the service of others. The wonder is that when we do such things then God accepts that service as service to himself. 'Inasmuch as you did it to the least of these, you did it to me' he says to the sheep on his right hand. 'Even a cup of cold water will do', but the context of that parable in Matthew 25 is judgment. There is right, there is wrong, and one day everyone will acknowledge that there really is objective truth. One day all the bad things will be swept away-yes, and sadly all the bad people too. The best service we can render others is to rescue them from burning, but they have to realise that they have a real problem and there is a true answer to that problem in the One who is 'The Way, the Truth and the Life'.

Copyright: Evangelicals Now

(I would like to thank John Benson for granting me permission for the occasional use of Evangelicals Now archive articles).

Many thanks to Lena Kittrell, my good internet friend, for supplying me her background picture for this article. Lena's site is HERE

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