Embedded within the cultural stories of liberal democracy is an unquestioned belief in the value of adversarial talk: where formalized debate is the idealized version and the courtroom is the idealized practice of it.
Debates, in one form or another, are the primary means for exploring and resolving issues and problems in democratic societies. Decisions at public hearings, in parliament or congress, in local organizations, or at board meetings, are typically reached through discussion and debate. Indeed, any discussion of a resolution is a form of debate between at least two parties on different sides, following formal rules, and with a third party as judge.
The same form of talk is practised in Anglo-American courts based on the adversarial system. This adversarial process is characterized by an impartial tribunal of defined jurisdiction, formal procedural rules, and a responsibility assigned to each of the parties in a dispute to present their own case and challenge the opponents. The major purpose of this process is to establish the facts of the matter.
In some ways, you could say that the public sphere in a liberal democracy runs on adversity. I find that observation quite disturbing.
What makes it disturbing?
Let’s take the model of the adversarial system used in Anglo-American courts as an idealized case to explore why this link between liberal democracy and adversity is so disturbing. The adversarial court system is something many of us are familiar with, especially given we have any number of courtroom dramas on television, or any number of fiction books on the same.
In all of the stylized courtroom dramas, the dramatic impact arises out of the tension created by the clever questions of the lawyers and the resolution of the drama inevitably occurs as one lawyer (usually the “goody”) demonstrates their superior cleverness in establishing the innocence of the party they are representing. It is the struggle against adversity that wins!
Such dramas are exploitable as such because of two critical elements: the fact that lawyers stand for the parties in the dispute and the presumption that truth will out with the aid of the clever advocate wielding all their adversarial skills. If only it worked that way in real life. In reality, it is the very nature of the lawyer’s role that creates a fundamental problem.
Because the battle of arguments that is essential to the adversarial system is conducted by lawyers, they have a heightened professional duty of partisanship to their clients. In some ways, it could be said that without this partisan duty the adversarial system would not work as required. This principle of partisanship also means that the lawyer has a diminished, or even no, duty to respect the interests of their adversaries or third parties, such as witnesses.
At the same time, the lawyer engaged in this battle of arguments has no moral responsibility for the nature of the client’s goals or for the means to achieve them. The lawyer is merely the advocate for the client and in order to engage in adversarial advocacy to the highest professional standard, they must abstain from any judgement of the client and give their client’s interests absolute priority.
The adherence to these two principles makes it possible to exonerate morally outrageous professional behaviour, such as assisting a man convicted of incest gain custody of his children, by justifying it on the grounds of the necessary partisanship and non-accountability of the lawyer.
Why would such a morally outrageous possibility (and it is a real one) be acceptable? Because, it is argued, the adversarial system represents far more than a simple model for resolving disputes: it consists of a core of basic rights that recognize and protect the dignity of the individual in a free society. In this view, the adversarial system functions to maintain a free society in which individual rights are paramount. This belief in the primacy of the individual and their rights is the core element in the autonomous individual story described and criticized in my first post, We have a crying need for new stories.
When it comes to the adversarial legal system, then, the core cultural commitment to the pursuit of individual rights above all else, trumps any ensuing moral conflict that may emerge and justifies even the most extreme moral role conflict—advocacy for the known perjurious client.
Getting at the truth?
The second substantive argument that is typically offered in support of the adversarial system is that it is the best way of getting at the truth. And, this claim is often made despite the various moral issues raised above. In other words, getting at the truth also trumps any moral conflict.
The belief in the adversarial process as the best one for arriving at truth is not confined to the system of justice in courts. It is, in fact, a widespread belief across all Anglo-American cultures and for all forms of public discourse.
So where is the evidence for these beliefs? Is it just another of those unchallenged, deeply embedded, cultural beliefs? There is good reason to claim this is so.
The history of the adversarial trial exposes how much this belief in the relationship between adversarial conditions and truth is unsupported in reality. Indeed, this history shows that there is a well-recognized truth-impairing tendency of the adversarial trial—not a truth-finding one. And, despite various attempts over the past few centuries to address this issue, no attempt has really been satisfactory.
The truth-impairing tendencies of the adversarial system continues to be recognised in contemporary times. According to currently practising jurists in Anglo-American courts, believing that ‘truth’ is discoverable by evidence and procedures is misleading. The adversarial procedure actually obfuscates relevant facts, it does not reveal them.
When the requirements of partisanship are coupled with those of non-accountability, there is even less incentive to prioritise matters of truth. Most trial lawyers will, when pressed, admit that the overriding pressure for them is to win at any cost. Winning is, in fact, in the best interest of their client and, in too many instances, truth most definitely is not.
Given that the very conditions for conducting an adversarial trial rule out being able to independently verify the truth of the matter, what are we to do with the concept of truth, its relationship to adversity, and with adversarial talk itself?
What’s really at stake here
What is really at stake here is whether we take adversarial talk to be merely a technical process or something that is part of a more complex communicating process. This is exactly the same choice I wrote about in the last post on Communicating is consequential to human affairs. Using adversarial talk as a practical example of this choice well illustrates how profound the consequences can be.
Adversarial talk relies on pitting champions against each other in order to achieve the goal of determining guilt or innocence of parties being represented by the champions. There are always opposing sides. There are always presumptions of right and wrong. And there is always the presumption that the truth will out.
As a mere technical process, adversarial talk is at its best when the rules are followed, both procedural and evidential, and wit and cleverness displayed. If something goes wrong it is a matter of polishing the adversarial skills. In this way, a good adversarial advocate has all the virtues of a jousting champion—pity about the witnesses they trample (often to metaphorical or real death) on the way.
In the adversarial system in courts, the person that stands in the witness box—whether they be the accused, the defendant, or independent witness—is merely the vehicle to be used in the process of truth determination. As such, the person in the witness box is not accorded any status as a real person. They do not have the capacity to negotiate meanings or, most importantly, their moral worth as a potentially truthful (or otherwise) person.
When viewed as a particular form in a more complex communicating process, adversarial communication in courts has all the features of a degradation ceremony. The formal legal rules and the adversarial process itself acts to ensure that every witness is treated as worthy of contempt—regardless.
The truth-impairing tendencies of the adversarial process identified by legal scholars can be directly attributable to the relationship-demeaning qualities of the process—specifically the relationship between the lawyer and those who stand in the witness box. And this is the crux of the matter: it is not possible to separate a truth claim from the relational context in which it is being made.
When it comes to adversarial talk, in or out of courts, the relational context is always oppositional—it is us vs them and there are always winners and losers. And, when winning is at stake, the grounds for degrading the other party/person are in place. The more at stake, the greater the potential for a relationally-demeaning process to emerge.
You need only watch the adversarial talk in congress or parliament, to appreciate how degrading of the other this talk can become when defending the speaker’s political party’s so-called truth. You need only watch a real-life trial to see how the formal evidential and procedural rules in court support this degradation process. This is why I continue to find the observation that significant institutions in a liberal democracy run on adversity quite disturbing.
It doesn’t have to be that way
If we choose to shift our point of view to an appreciation of communicating as a complex process in which we construct our social realities, then all manner of alternatives become possible.
When it comes to the way in which our parliaments and congresses operate, it is possible to consider alternative forms of talk following models of deliberation and dialogue. You can find a vision of one possible option at the level of local government here
When it comes to courtroom processes, it is possible to consider alternative forms of doing justice that recognize the challenges inherent in communicating in quite different ways. You can find a vision of one possible option here
Stay tuned. I will be posting far more on public communicating practices that can contribute to creating better social worlds.
Hi Robyn. I appreciate this piece, and I have a comment and a question. I looked in it for more about the argument that adversarial systems are one form of critical engagement, the general process systematized in peer review procedures and practices. This argument does not engage with the moral problem of offering one exclusive perspective. It does, though frame the process of critical reflection on, and publiuc response to an argument or case, which is at the heart of most understandings of "the scientific method" and "critical thinking." Importantly, this is exactly what you are doing in this essay.
Your piece offers an adversarial comment about the adversarial system. I'd say you have reflected, in an informed and engaged way, on the adversarial system and you are making public some of your conclusions. Do you view what you're doing differently?
Thanks Robyn - this is an important point, and reminded me of Laura Nader's paper on controlling processes, in which she argues harmony ideology and associated alternative dispute resolution approaches have mostly undermined justice (although interestingly they were also readily adopted by the Zapotec to resist the Spanish crown).