Nonconsequentialist justifications of the adversary system

It may be thought, however, that assessing the adversary system in con- sequentialist terms of how it will get some job done misses the point. Some social institutions, such as participatory democracy, are justifiable despite the fact that - maybe even because - they are inefficient.

I wish to consider two nonconsequentialist justifications of the adversary system. The first and perhaps boldest is an attempt to justify the adversary system in the wide sense: it is the argument that the traditional lawyer-client relation is an intrinsic moral good. The second is a cluster of related argu­ments: that adversary adjudication is a valued and valuable tradition, that it enjoys the consent of the governed, and that it is thus an integral part of our social fabric.

Adversary advocacy as intrinsically good

When we seek out the services of a professional, it seems to me that we generally see more to the relationship than a mere quid pro quo. Perhaps this is because the quo may be of vital importance to us; perhaps it is because a lot of quid may be required to hire those services. In any event, we have the sense of entrusting a large chunk of our life to this person, and the fact that he or she takes on so intimate a burden and handles it in a trustworthy and skillful manner when the stakes are high seems commendable in itself. Nor does the fact that the professional makes a living by providing this service seem to mitigate the praiseworthiness of it. The business aspect moves along a different moral dimension: it explains how the relationship came about, not what it involves.^[79] Finally, our being able to bare our weaknesses and mis­takes to the professional and receive assistance without condemnation enhances our sense that beneficence or moral graciousness is at work here.

Feelings such as these are quite real; the question is whether they have merely subjective significance. If they do not, if they mean something more, that may show that Schwartz’s two principles, and thus the adversary system and the behavior it countenances, are themselves positive moral goods. Such arguments are, in fact, frequently made: they are based on the idea that providing service is intrinsically good. No finer statement of this exists, in my opinion, than Mellinkoff’s. He sees the paradigm client as the “man-in- trouble.”

Cruelty, oppression, deception, unhappiness, worry, strain, incomprehension, frus­tration, bewilderment - a sorcerer’s bag of misery. These become the expected. Then the saddest of all human cries: “Who will help me?” Try God, and politics, and medicine, and a soft shoulder, sooner or later a lawyer. Too many do.

The lawyer, as lawyer, is no sweet kind loving moralizer. He assumes he is needed, and that no one comes to see him to pass the time of day. He is a prober, an analyzer, a scrapper, a man with a strange devotion to his client. Beautifully strange, or so it seems to the man-in-trouble; ugly strange to the untroubled onlooker.^[80]

Charles Fried thinks of the lawyer as a “special-purpose friend” whose activity - enhancing the client’s autonomy and individuality - is an intrinsic moral good.^[81] This is true even when the lawyer’s “friendship” consists in assisting the profiteering slumlord to evict an indigent tenant or enabling the wealthy debtor to run the statute of limitations to avoid an honest debt to an old (and less well-off) friend.

I mention Mellinkoffs and Fried’s arguments together because, it seems to me, they express similar ideas, while the unsavory consequences Fried draws from his argument expose the limitations of Mellinkoff’s. Both argu­ments attempt to show that a lawyer serving a client is engaged in an intrinsic moral good.

Fried, on the other hand, bites the bullet and argues that it is morally good to represent the man-in-no-trouble-in-particular, the man-who-troubles- others. The slumlord and the graymailing, anticompetitive multiglomerate are nobly served by a special-purpose friend who helps extract that pound of flesh. Fried constructs a “concentric-circles morality” in which, beginning with an absolute right to self-love based on our own moral standing, we work outward toward those closest to us, then to those whose connections are more remote. Fried argues that the abstract connection between a remote person (even a person-in-trouble) and the agent exercises too slight a claim on the agent to override this inclination toward concrete others. This justifies lav­ishing special care on our friends, even at the expense of “abstract others”; and because lavishing care is morally praiseworthy, once we grant that a lawyer is a special-purpose friend of his client, we are home free with the intrinsic moral worth of the lawyer-client relation.

Several of Fried’s critics focus on the fact that the friendship analogy is question-begging: Fried builds enough lawyerly qualities into his concept of friendship that the argument becomes circular; in the words of Edward Dauer and Arthur Leff, “a lawyer is like a friend...

This does not, however, vindicate the adversary system. For the friendship analogy undercuts rather than establishes the Principle of Nonaccountability. Most of us are not willing to do grossly immoral things to help our friends, nor should we be. Lord Brougham’s apology may be many things, but it is not a credo of human friendship in any of its forms. Fried realizes the danger, for he confesses that

not only would I not lie or steal for... my friends, I probably also would not pursue socially noxious schemes, foreclose the mortgages of widows or orphans, or assist in the avoidance of just punishment. So we must be careful lest the whole argument unravel on us at this point.^[83]

The method for saving the argument, however, proves disappointing. Fried distinguishes between personal wrongs committed by a lawyer, such as abusing a witness, and institutional wrongs occasioned by the lawyer, such as foreclosing on widows. The latter are precisely those done by the lawyer in his or her proper role of advancing the client’s legal autonomy and - pre­established harmony? - they are precisely the ones that are morally accep­table. That is because the lawyer isn’t really doing them; the system is.

This last distinction has not been very popular since World War II, and Fried takes pains to restrict it to “generally just and decent” systems, not Nazi Germany. With this qualification, he can more comfortably assert: “We should absolve the lawyer of personal moral responsibility for the result he accomplishes because the wrong is wholly institutional.”^[84]

This last sentence, however, is nothing but the assertion that institutional excuses work for lawyers, and this should tip us off that Fried’s argument will be useless for our purposes.

Part of the problem is that Fried considers the wrong institution: the context of the lawyer’s behavior is not simply the system of laws in general, which he assumes to be just and decent, but the adversary system in particular with its peculiar requirement of one-sided zeal at the margin. It is the adversary system and not the system of laws that shapes the lawyer-client relationship.

The more fundamental problem, however, is that Fried takes the lawyer to be the mere occasion rather than the agent of morally-bad-but-legally-legit- imate outcomes. The system did it; it “was just one of those things difficult to pre-visualize - like a cow, say, getting hit by lightning.”⁷⁸

This is false in three respects. First, because it discounts the extent to which the lawyer has had a creative hand in advocating the outcome, at times even reversing the law - a skilled lawyer, after all, argues, advocates, bargains, and persuades. Second, because the system is not an abstract structure of impersonal role-descriptions but a social structure of interacting human beings, so that the actions of its agents are the system. Third, because the lawyer is indeed acting in propria persona by “pulling the levers of the legal machinery.”^[85] Fried’s imagery seems to trade on a Rube Goldberg insight: if the apparatus is complex enough, then the lever-puller doesn’t really look like the agent. But that cannot be right. I chop the broccoli, whether I do it with a knife or merely push the button on the blender. The legal levers are pulled by the lawyer: no one else can do it.

The social fabric argument

The remaining arguments are distinct but closely related. They are two variants of the following idea, which may be called the “social fabric argument”: Regardless of whether the adversary system is efficacious, it is an integral part of our culture, and that fact by itself justifies it. The first variation derives from democratic theory: it claims that the adversary system is justified because it enjoys the consent of the governed. The second varia­tion comes from conservative theory: it claims that the adversary system is justified because it is a deeply rooted part of our tradition.

According to the social fabric argument, the moral reason for staying with our institutions is precisely that they are ours. We live under them, adapt our lives and practices to them, assess our neighbors’ behavior in their light, employ them as a standard against which to measure other ways of life. Traditional institutions bind us - morally and legitimately bind us - because we assimilate ourselves to our tradition (Variation 2). In the language of political theory, we consent to them (Variation 1). They express who we are and what we stand for.

This way of looking at the adversary system is quite different from the claim that it promotes the discovery of truth, or the protection of legal rights, or the rectification of wrongs. Those arguments are consequentialist in character: they attempt to justify the adversary system on the basis of what it does. The social fabric argument justifies it on the basis of what we do, or who we are. Let us look at the variants.

The consent argument claims that the adversary system forms part of the social contract. The adversary system is justified because it enjoys the con­sent of the governed, the highest moral compliment that can be paid to it in a democracy. An immediate problem with the argument, however, is that we obviously do not explicitly consent to the adversary system. Nobody asked us, and I don’t suppose anyone intends to. If the argument is to work, the consent must be tacit consent, and then we are entitled to wonder how we can tell that it has been given. One test is simply that, over an extended period of time, we have incorporated the institution into our shared practices. Michael Walzer makes this suggestion: “Over a long period of time, shared experiences and cooperative activity of many different kinds shape a common life. ‘Contract’ is a metaphor for a process of association and mutuality.”^[86]

There is a problem with this account, however: just because people do not have the energy, inclination, or courage to replace their institutions we should not conclude that they want them or approve of them. But unless they want them or approve of them, people’s endurance of institutions does not make the institutions morally good. The verb “consent” can mean either “put up with” or “actively approve.” Only the latter has the moral force required to show that the institution is a positive moral good, but only the former is revealed by the mere existence of “our common life.”

To see this, recall the original point of consent theory - classically, the theory that we incur political obligations and forfeit political rights only through our own consent. The intuition behind consent theory is that human beings are morally autonomous. For classic consent theorists such as Locke, this autonomy was expressed in the concept of natural right, but other con­ceptual vocabularies capture the same idea. In each version, regardless of vocabulary, consent theory assumes that coercion is prima facie wrong and that this prima facie wrongness may normally be overridden only by the fact that we have consented to submit to coercive institutions. It offers a theory of governmental legitimacy that assumes government is illegitimate until pro­ven otherwise, and that specifies the standard form of such proof: demon­stration of the consent of the governed.

Such a demonstration - and this is the important conclusion of the pre­ceding paragraph - shows that a coercive institution is not illegitimate, that it is acceptable. It does not show that it is good and thus does not provide an argument in favor of it. Think of this analogy: you ask me for a two-week extension on repaying some money you owe me. I grant the extension - I consent to it. That shows that you may wait two more weeks before repaying me, but it does not show that you should wait two more weeks, or that it is good for you to wait two more weeks.

Thus, the most we get from tacit consent arguments, such as Walzer’s appeal to our “common life,” is a demonstration that we are not obliged to dismantle the adversary system. To get anything stronger we must appeal to a different concept in democratic theory from consent: we must show that

people want the adversary system. In Rousseau’s language, we must show that having an adversary system is our “general will.”

Does the adversary system pass such a test? The answer, I think, is clearly no. Few of our institutions are trusted less than adversary adjudication, precisely because it seems to license lawyers to trample the truth, and legal rights, and common morality. David Mellinkoff begins The Conscience of a Lawyer with a history of lawyer-hating that is quite eloquent in this regard. At one point he notes: “ The full force of the complaint is not alone the denial of truth, even coupled with avarice, but that with a God-given talent the lawyer stands in the way of every man’s birthright, the right to justice. The lawyer, in John Stuart Mill’s phrase, is ready to ‘frustrate justice with his tongue.’ ”81 Is this because of the adversary system? Indeed it is, for it is the adversary system that makes zealous advocacy of the client’s interests the pillar of professional obligation. The Joint Conference Report puts it best:

At the first meeting of the Conference the general problem discussed was that of bringing home to the law student, the lawyer and the public an understanding of the nature of the lawyer’s professional responsibilities. All present considered that the chief obstacle to the success of this undertaking lay in “the adversary system”... Those who had attempted to teach ethical principles to law students found that the students were uneasy about the adversary system, some thinking of it as an un­wholesome compromise with the combativeness of human nature, others vaguely approving of it but disturbed by their inability to articulate its proper limits... Confronted by the layman’s charge that he is nothing but a hired brain and voice, the lawyer often finds it difficult to convey an insight into the value of the adversary 82

system.

Even law students, then, are suspicious of the adversary system (though not for long). There is irony here: the need to justify the adversary system lies, according to the Joint Conference Report, in the fact that no one seems to trust it or the conduct it countenances; our current argument purports to justify it by claiming that we all tacitly approve of it. The argument fails.

Seeing that it fails and why can motivate the second variation, which we may call the tradition argument. Consent theorists assume that we have no political obligations except those we consent to, but as Hume noted, “would these reasoners look abroad into the world, they would meet with nothing that, in the least, corresponds to their ideas, or can warrant so refined and philosophical a system.”^{[87] [88] [89] On the contrary, as Hume argued, people commonly consent to institutions because they take themselves to be obli­gated to them, rather than the other way around. We feel that traditional institutions lay claim to us, even when they themselves originated through violence or usurpation.}

The power of the past to move us and bind us is enormous; compared with such deep feelings, the ideas of consent theory seem shallow and alien to human experience. This criticism is most familiar in Burke (though it is implicit in Hume as well):

Society is indeed a contract... but the state ought not to be considered as nothing better than a partnership agreement in a trade of pepper and coffee, callico or tobacco, or some such low concern, to be taken up for a little temporary interest, and to be dissolved by the fancy of the parties... It is... a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born. Each contract of each particular state is but a clause in the great primaeval contract of eternal society... The municipal corporations of that universal kingdom are not morally at liberty at their pleasure, and on the speculations of a contingent improvement, wholly to separate and tear asunder the bonds of their subordinate community, and to dissolve it into an unsocial, uncivil, unconnected chaos 84

of elementary principles.

A Burkean argument for the adversary system would appeal to its place in our traditions and claim that we are under a moral obligation to spurn “speculations of a contingent improvement” that would tear this tradition apart. There is much to be said for Burkean argument, if for no other reason than its rejection of a shallow and philistine conception of progress.^{[90] [91] But it does not apply to the adversary system.}

In the first place, it ignores the fact that there is no constant tradition: common law constantly modifies the adversary system.^[92] Indeed, the adversary advocate is a recent invention within that changing tradition. In England, criminal defense lawyers were not permitted to address the courts until 1836;^[93] in the United States, criminal defendants were not guaranteed counsel until 1963.^[94] Civil litigants still have no guarantee of counsel, even in quasi-criminal matters such as a state’s attempt to take a child from its parent.^[95] Moreover, it is simply false that the “neutral partisanship” norm governs every aspect of litigation. Ethics codes and case law insist that public prosecutors should seek justice, not victory.^[96] Admittedly, prosecutors often forget this and play the hardest of hardball to win convictions; but that simply illustrates the extent to which the adversary system excuse has permeated litigator culture in defiance of formal rules and the cultural norms they reflect. All in all, it is hard to see the adversary system as “a clause in the great primaeval contract.”

In the second place, the adversary system is an ancillary institution compared with those with which Burke was concerned. In William Simon’s words,

I think the argument will seem rather out of proportion to the subject. It’s one thing to talk about the dangers of utopian change when you’re talking about ripping the whole society apart to restructure it from top to bottom. But there are plenty of ways of abolishing adversary ethics which from a larger point of view are really just marginal social reforms which, whether good or bad, hardly suggest the likelihood of Burkean dangers. It’s like making a Burkean argument against no-fault or social security.^[97]

The Burkean argument is in effect a demurrer to the demand that we justify the adversary system: it suggests that the system is too central to the “great primaeval contract” to be put to the justificatory test. To this argument the reply is simply that the tradition does not clearly incorporate the adversary system, and that the system is too marginal for us to let Burkean considerations permit the demurrer.