Issue #71, 1/19/2007

In Defense of Inquisition

The court system in America is based on a concept called the adversarial system. When a conflict is brought to trial, lawyers for each side present their case to a neutral judge in a highly structured forum, and the judge then chooses one side or the other. The judge does not go out and seek evidence himself, which would be called an inquisitional system. Instead, the evidence is brought to him by adversarial parties, along with two conflicting theories about what the evidence means. He "weighs the evidence" and picks one of the theories.

The adversarial system has its strengths. One advantage, from the court's perspective, is that it is relatively cheap. One judge can handle a lot of cases if he doesn't have to go out and investigate things. From the litigant's perspective, it is also relatively fair. A judge who actively hunts for evidence is quickly going to become emotionally invested in his investigation and lose his neutrality, while a judge who stays home has no real stake in the matter. Instead, the litigant himself conducts any investigation and presents the evidence, and if he becomes biased that's okay, because the opposing side is going to look at the same evidence and present a different opinion. What shakes out in the end is a reasonably fair approximation of the truth. The people who are convicted are usually guilty, and deliberate fraud is usually detected and corrected.

But the adversarial system is also deeply flawed. It works only to the extent that both sides are competently represented by counsel. For example, a judge can't rule on evidence that is never presented to him or consider arguments that are never made. The fact that most lawyers are obscenely expensive also doesn't help the cause of justice. Many people can't afford attorneys, and if one isn't appointed to them (as they are not in divorce cases) then the system is way too complicated for them to safely navigate on their own. Every day, people's lives are screwed up by the court system either because there was no one to represent their viewpoint or their lawyer failed to understand their needs or present important evidence.

The other problem with the adversarial system is more subtle. It involves how the question is framed to begin with.

Take that long-running case of Coke v. Pepsi. Which tastes better? In this particular adversarial proceeding, you and I are the judge. The case is presented to us in advertizements, and we render our judgment by buying a bottle of one or the other.

But the only reason we are asking this question at all is because both Coke and Pepsi have huge advertizing budgets. They have the wherewithal to bring the issue to the court (of public opinion) and essentially create the playing field. In the adversarial system, the judge must choose one or the other; he doesn't have the means or authority to reformulate the question or to go out and look for other solutions. Thus, Coke and Pepsi, although they are "adversaries," have an opportunity to totally control the game. Caffeinated sugar water becomes society's beverage of choice, and all other options are shut out.

The sickness of the adversarial system is that all conflicts tend to get polarized into two simplistic choices ("A" v. "B"), while a whole universe of healthier and more creative options ("C" through "Z") has to be ignored.

The adversarial system is probably the only philosophy that can reasonably be expected to work in any real court environment. We can't have judges solving crimes and acting like private eyes, because chaos would ensue and fairness would be lost. At the same time, we shouldn't see the adversarial system as an optimal decision making process. It is only a "last resort" process when more flexible and creative decision making systems have failed.

The adversarial system is not an appropriate philosophy of life outside the courtroom, yet we see it all around us in the modern world. Think of how most people conduct their lives. They watch TV and cases are presented to them: Coke v. Pepsi, Republican v. Democrat, Infiniti v. Lexus. The average viewer accepts the contest as presented, casts his vote, and we move on to the next artificial conflict.

What you rarely see in modern life are people who go outside the system, conduct their own inquiry, and make their own independent choices from a wider spectrum of options. The majority of the suckers on this planet are going to choose Coke or Pepsi because they don't have the time or creativity to inquire any deeper. They feel very proud of themselves for having made their own choice, when in fact the choice was an almost meaningless one that was set up for them by others.

The majority of people are "receivers" who do not attempt to mold the world around them. They simply accept whatever contest is presented to them and choose from one of the multiple-choice options they have been given.

Although necessary in the legal world, the adversarial system is a crude, numbingly explicit and essentially passive decision making process that has never built anything. It doesn't help you raise children, run a business, conduct healthy relationships or solve your daily problems, because it blocks out the million creative options that are unique to your own life and that don't have any public representation. Only inquisition can yield any truly meaningful answers in your life. Only inquisition can lead to creativity, joy and dignity.

In essence, the adversarial system is sitting on your ass waiting for the world to come to you. Inquisition is when you go out, seek your own options and start judging them within your own self-designed structure. You move away from passivity and the framework of others and become an active player in your own life.

—G.C.

Links Also see Essay #7: Where Do Judges Come From? Also see Newsletter #12: Lawyers Can Be Saved Painting at top is: Jean-Paul Laurens (1838-1921): The Agitator of Languedoc, 1882 oil on canvas ( 115 cm c 150 cm) Musée des Augustins, Toulouse, France

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