(Reprinted from Telicom XI, 30: 48, Aug, 1995.)
Faith? Integrity? Does this sound like a pitch for a religious doctrine? It does. In fact, Western State University College of Law proclaims in a radio advertisement it "wholeheartedly believes in the sanctity of America's judicial process."
Legal institutions preach the legal faith to the public, hoping to elevate legal institutions above criticism by sanctifying them. Moreover, apologists for the legal faith wave off criticisms of infidels with pious platitudes such as "the adversary system is the best way to find truth" and "the jury infallibly finds facts because jurors are wise, perceptive, and discriminating."
Because legal propagandists prefer appearances over substance, we must ask, "Should the people place their faith in a legal system that is demonstrably corrupt? Should we blindly adopt a legal faith that claims the criminal justice machine infallibly produces justice?"
Sanctifying the law produces an important clue to understanding the social institution known as "the law." Realizing that hypocrisy is the constant companion of sanctimony, objective students of the law look for duplicity in the legal faith--and it's not hard to find.
The Simpson trial is currently showcasing a justice system that lacks integrity worthy of respect. Lawyers on both sides of the case consistently reveal that the judicial process is a flight from--not a search for--truth. Moreover, observers of the trial, including many lawyers, denounce the trial's illogical arguments, deceptive tactics, and non sequitur attacks on valid evidence.
Legal apologists warn us not to judge the law from the Simpson case, arguing that it is anomalous. In fact, there is nothing anomalous about the trial: No special laws, procedures, or rules of evidence have been promulgated specifically for Mr. Simpson. Instead, the trial is a caricature, its excesses and exaggerations making the law's beliefs, methods, and fallacies all the more conspicuous.
Trial law disdains reason by embracing several logical fallacies. Following the traditional principle, falsus in uno, falsus in omnibus (false in one thing, false in everything), trial lawyers use argumentum ad hominem to impeach witnesses as liars. Yet liar is a meaningless term: A witness deemed credible can lie, and a witness labeled a liar can speak the truth.
The legal faith disdains truth through the doctrine that facts magically emerge from lies--that a game of deception infallibly produces facts concerning reality. Like poker, a trial is a contest of bluff and bluster. The presumption of innocence notwithstanding, the typical game opens with a presumed lie--"Not guilty"--and proceeds on the assumption that lawyers on both sides and all of their witnesses practice deceit and trickery. Honoring the paranoid principle that perception is reality, each side pitches its particular fiction to jurors, leaving no room for reality.
Like eskimos, who use 30 different words to characterize frozen precipitation, lawyers use many terms to describe deliberate deception. They boast openly of their skills to bluff, trick, sandbag, fabricate, falsify, mislead, misdirect, misconstrue, misrepresent, mischaracterize, and otherwise out-lawyer their opponents. Yet they protest loudly if outside critics characterize their stratagems as lying.
To reform criminal law into a logical, truth-seeking method of justice would require a total overhaul of the legal system. Just as physicians adopted the scientific method to free medicine from folklore and superstition, lawyers would have to adopt modern methods of factual enquiry to replace chicanery and sophistry. Because the overwhelming majority of lawyers are scientifically illiterate, however, and because lawyers control the legal system, scientific methods are not likely to bring justice to the law.
Some lawyers would argue that scientific evidence is already used in trials. But scientific evidence in court does not refine the reality testing of the legal process. Instead, the fiction-based judicial process debases the scientific evidence. The corrupting principle is this: Mixing fiction with reality produces only fiction.
Distinguishing scientific knowledge from legal knowledge is not difficult. The two types of knowledge occupy separate prongs on Hume's Fork--a division articulated by the Scottish philosopher, David Hume, who observed that we can gain knowledge in one of two mutually exclusive ways--the rational method and the empirical method.
The rational and empirical methods rely on two antithetical ways of reasoning--deduction and induction. Deduction is reasoning from the general to the specific--from a theory or premise to a discrete fact. Induction is reasoning from specific facts to a general theory.
This syllogism exemplifies deduction: All pigs can fly; Prudence is a pig; therefore Prudence can fly. Obviously, neither this logically true conclusion nor its premise has anything to do with reality. Indeed, the rational method does not require any connection to reality.
The legal faith follows the rational method: Starting with the premise that courts find facts, for example, it follows that whatever a court decides is a fact. Such facts are merely logical truth--not to be confused with truth concerning reality.
Science, on the other hand, is founded on the empirical method: Hypotheses are induced from observed data, their implications tested by further observation, and discarded if they don't correspond to observed reality.
Say that a person saw Prudence and her brother, Providence, flying. From these data, the person can induce the theory that all pigs can fly. But this induction proves nothing; many other hypotheses can explain why the person saw pigs flying. Moreover, a single datum can disprove the hypothesis: Evidence of a pig that cannot fly.
Because it relies on non-provable hypotheses, scientific knowledge is never certain. The legal faith, on the other hand, promises certain knowledge. This unrealistic requirement for certainty explains why trial law is a game: Games produce certain results.
Confusing deduction and induction is like confusing the direction of time. Imagine watching a movie of a person dropping a handful of marbles: The marbles bounce and scatter when they hit the floor. Now imagine watching the movie played backwards: The marbles gather from all over the floor to rise to the person's hand. Trying to prove a theory of a murder is like playing the movie backward: It's neat in principle, but it can't be done in reality.
Consider an enduring fiction perpetuated by Sir Arthur Conan Doyle. He wrote--and most persons uncritically believe--that Sherlock Holmes "deduced" solutions to his cases. Yet Holmes did not deduce solutions. He induced them, formulating his theories of crimes starting from discrete clues. But he could solve his cases only because his creator knew the solution to the case before he contrived the clues--like playing a movie backwards.
Legal lore completely ignores the distinction between deduction and induction. For example, though legal theories cannot be proven true, the legal game requires the prosecution to do so. Correspondingly, the Simpson prosecution claims it has proven true its theory of the crime. Pure fiction.
The Simpson defense is also following Conan Doyle, trying to capitalize on one of his specific fictions. In "Silver Blaze," Sherlock Holmes solved a case because he observed that a dog did not bark. The Simpson defense has evoked much unperceived evidence from witnesses, not only non-barking dogs, but imaginary footprints, putative missing blood, illusory drug dealers, fictitious dual perpetrators wearing Bruno Magli shoes, and photos of an unbruised defendant three days after the crime.
Absent evidence, of course, proves nothing. If it did, a dozen witnesses could testify that they did not see the defendant kill anyone--on June 12, or any other night. Some of them might even produce photographs of the defendant not murdering anyone.
Absurdities aside, the question remains, "Can the legal system be reformed to meet its ideal of truth and justice?" The Simpson trial has provoked calls for legal reforms that would tinker with the rules of the game--without actually reforming it. Real reform would require changes that few lawyers are likely to understand, much less endorse. Nonetheless, it is worth mentioning three elements of reform.
First, reality testing would require the law to surrender its faith in producing certain knowledge. That is, no case would ever be considered final, regardless of the jurors' opinions concerning the guilt of a defendant. Of course, throwing out the cherished legal doctrine of stare decisis (let the decision stand) would require abolishing the death penalty, which claims innocent lives together with guilty ones.
Second, the adversary system, which no serious search for truth uses, would be abolished. In its place, all persons interested in justice would work together in an earnest--and honest--search for reality.
Third, the private practice of trial law would be abolished. Instead, the entire weight of the state ("the people") would be applied first, to assure that no innocent person is convicted of a crime, and second, to assure that guilty persons are identified and held responsible for their behaviors. An addition bonus would be bringing legal profession into compliance with the equal protection principle of the Fourteenth Amendment.
Given the intransigence of the legal faith, can significant legal reform actually occur? The answer to this depends on who controls Justice. The framers of the Constitution evidently envisioned Justice as a member of the family of humanity, but that lady is a stranger to the people; long ago, the legal profession kidnapped her, and sold her into prostitution. The kidnappers were able to get away with this because lawyers have always dominated the government, and they have applied the beliefs, premises, and methods of the legal faith to writing, interpreting, and administering the law. Such is the corrupting influence of power.
Perhaps, some day, the people will use the power of democracy to redeem Justice--to rescue her from the legal profession. That action, not "faith in the integrity of the justice system," would be "critical to our democracy."