The adversary system excuse

Pragmatic justification

So far the course of argument has been purely negative, a persecution and assassination of the adversary system. By this time you are entitled to ask what I propose putting in its place.

I do not, let me quickly say, have an argumentative novelty to produce. It would be strange indeed for a social institution to be justified on the basis of virtues other than the tried and true ones, virtues that no one had noticed in it before. My justification is rather a version of the tradition argument, but purged of its ideological overtones. I shall call it the “pragmatic justification” or “pragmatic argument” to suggest its affinity with the relaxed, problem- oriented, and historicist notion of justification associated with American pragmatism. The justification is this:

First, the adversary system, despite its imperfections, irrationalities, loopholes, and perversities, seems to do as good a job as any at finding truth and protecting legal rights. None of its existing rivals is demonstrably better, and some, such as trial by ordeal, are demonstrably worse. Indeed, even if one of the other systems were slightly better, the human costs - in terms of effort, confusion, anxiety, disorientation, inadvertent miscarriages of justice due to improper understanding, retraining, resentment, loss of tradition, you name it - would outweigh reasons for replacing the existing system.

Second, some adjudicatory system is necessary.

Third, it’s the way we have done things for at least a century.

These propositions constitute a pragmatic argument: if a social institution does a reasonable enough job of its sort that the costs of replacing it outweigh the benefits, and if we need that sort of job done, we should stick with what we have.

A cynic might say that the insight underlying a pragmatic justification is twofold: first, what has been called the Law of Conservation of Trouble, and second, the principle that the devil you know is better than the devil you don’t.

That this is a very relaxed sort of justification may be seen from the fact that it works equally well for the inquisitorial system in France and Germany. A pragmatic justification is weak as well because it crumbles in the face of a demonstration that, contrary to what we believe, the institution is awful enough to replace. The argument, in other words, does not really endorse an institution - it only endures it.

Accepting a pragmatic justification of the adversary system, it should be added, does not commit one to a blanket conservatism. One can believe that our society should be drastically changed or that our legal system is scandalously unjust and still accept that a changed society or overhauled legal system should utilize adversary adjudication. Thus, while the argument leads to a conservative conclusion, it does so in a piecemeal, nonideological way, and the conclusion extends no further than the institution for which the argument is offered.

In my opinion, many of our social institutions are like the adversary system in that they admit only of pragmatic justification. Some are not intended to serve any positive moral good; some serve it badly. That these institutions are not worth replacing may be a measure of nothing more than social lethargy and our inability to come up with a better idea; my point is that this is a real reason. A pragmatic argument is logically weak - it justifies institutions without showing that they are better than their rivals, or even that they are particularly good - but in practice it is overwhelmingly powerful. Institutions, like bodies, obey Newton’s First Law.

Pragmatic justification and institutional excuses

Because this is so typical of institutions it is worth asking about the effect of pragmatic argument on the moral obligations of institutional functionaries (such as lawyers).

Let me spell this out by criticizing what I shall call the Transitivity Argument, which goes as follows:

1. The institution is justified.

2. The institution requires its functionary to do A.

3. Therefore, the functionary is justified in doing A.

This plausible-looking defense of institutional excuses can be criticized by denying the first premise; however, I am accepting the pragmatic justi­fication of the adversary system and thus accepting the premise. Or it could be criticized by attacking the second premise: thus, Richard Abel and William Simon have argued that the role-morality of lawyers is so riddled with contradictions that it is impossible to derive any coherent set of pro­fessional requirements from it.^[98] My strategy, however, is to deny that the conclusion follows from the premises. The institutional obligation is only a prima facie obligation, and the weaker the justification of the institution, the weaker the force of this obligation in overriding other morally relevant factors.

To get the argument underway, let us look at the way an institutional excuse might work when the institution is strongly justified, when it is a positive moral good.

Consider, as an example, a charitable organization whose sole function is to distribute food to famine-stricken people in impoverished areas of the world. We will call this the institution. Division of labor within it creates different jobs or institutional tasks, each of which has specified duties or role­obligations. These may be quite general: the logistics officer, for example, might have as his role-obligation procuring means of transporting food.

Let us suppose that to get food to a remote village the logistics officer must obtain trucks from a local, very powerful gangster, P. As it happens, P is involved in a number of unsavory activities, including a plan to murder a local man, because P wants to sleep with the man’s wife. Imagine further that the logistics officer overhears P dispatching a murderer to kill the man that very night, that P discovers that the logistics officer has overheard him, and that P tells the officer that if the man is warned and escapes, P will not provide the trucks.

The officer faces a terrible moral dilemma. Other things being equal, he is under a moral obligation to warn the man. Let us, at any rate, suppose that this is so. But here, if anywhere, we may wish to permit an institutional excuse. Suppose the officer complies with P’s demand. Asked to justify this, he says, “My job is more important.” This is an institutional excuse, the structure of which may be spelled out as follows: he points out that the role-act of complying with P is required by his role-obligation, which in turn is necessary to perform the institutional task, which (finally) is justified by the positive moral good of the institution - the saving of many innocent lives.

The general problem, which creates the dilemma, is that the propositions The institution is a morally good one and The institution imposes role­obligations on its officers some of which may mandate morally bad role-acts can both be true.

In such a case, the institutional excuse, fully spelled out, will take the form I have indicated: the agent justifies the role-act by showing that it is required by the role-obligation, justifies the obligation by showing that it derives from the institutional task, justifies the institutional task by appealing to the structure of the institution, and justifies the institution by demonstrating its moral goodness.

Let us apply this form of argument to a legal example. Freedman uses it in his analysis of the Lake Pleasant bodies case.^[99] The lawyers’ role-act (pre­serving the defendant’s confidence) was required by the general duty of confidentiality (the role-obligation). This is justified by arguing that the duty is required in order to guarantee adequate criminal defense (the institutional task). That argument maintains that without confidentiality, defendants will not tell their lawyer what the lawyers need to know to conduct an adequate defense. The next step asserts that an adequate defense is a requirement of the adversary system, and this in turn, or so it is claimed and so I have agreed, serves the positive moral good of preserving individual rights against the encroachment of the state.

I am not claiming that an institutional excuse is inevitably appropriate when the institution is strongly justified. You and I may differ in our assessment even of the humanitarian aid worker and Lake Pleasant examples. I am claiming only that in such cases a difficult moral dilemma exists, from which an institutional excuse offers one possible way out.

If, on the other hand, an institution can be justified only pragmatically, the sides of the dilemma do not have equal weight and the institutional excuse collapses. For in that case it reads as follows:

It is true that I am morally wronging you. But that is required by my role­obligations, which are essential to my institutional task, which is necessary to the structure of the institution, which is justified

because it is there;

because it’s the way we do things around here;

because it’s not worth the trouble to replace it.

This, I think, will not do. The excuse rests on an elephant that stands on a tortoise that floats in the sky. But the sky is falling.

Compare this well-known example with the Lake Pleasant case. A youth, Spaulding, badly injured in an automobile wreck, sued for damages.

The defense lawyer concealed the information and settled for $6,500.^[100] How could this be justified? Presumably, the argument would have to track Freedman’s defense in the Lake Pleasant case, but the final step would be missing. In this case the adversary system is not strongly justified by the liberal argument about keeping the state’s hands off people accused of a crime. No one is accused of a crime in this case. Uncharitably put, the basis of confidentiality here is the need to save money for an insurance company. Charitably put, it is that the adversary system is weakly justified - justified because it is there. That may be a reason to risk one’s own life on a mountain, but it is not a reason to risk Spaulding’s life in a law office.

It might be objected to this line of criticism that the pragmatic argument for the adversary system is a strong justification for it, even in noncriminal cases. After all, what better justification of the system can there be than saying that it performs a necessary function as well as any of its competitors? What absolute yardstick is used to measure it and find it wanting?

The answer to these questions has already been given in our discussion of the difference between the criminal and noncriminal contexts. In the non­criminal context, the primary end of adversary adjudication is the assignment of rewards and remedies on the basis of parties’ behavior as prescribed by legal norms: legal justice, rather than protection from the state, is the pre­ponderant goal. The adversary method is supposed to yield accurate accounts of facts and legitimate interpretations of the law. That is the absolute yard­stick: if the adversary system yields legal justice, it is a positive moral good. But, as I have argued, we have no reason to believe that it does yield legal justice in the hard cases.

An analogy may clarify this point. Scientists at times accept and use a theory because it is the best account going, even though they do not have much confidence in its truth. Such a theory is pragmatically justified in much the same way as the adversary system: it is as good as its competitors, some theory is necessary, and it is there. It’s just that most scientists in the field

Cramton and Knowles learned (a) that Zimmerman’s defense counsel were (as is common) working for Zimmerman’s insurance carrier; (b) that they made the decision not to reveal Spaulding’s aortic aneurism without consulting either Zimmerman or the insurer; (c) that the reason Spaulding’s inexperienced attorney did not request the defense physician’s report was not sheer negligence, but rather that he feared it would lead to disclosure of one of his own physician’s reports, which he thought might prevent the court from approving the settlement because it suggested waiting a year to see how bad Spaulding’s brain injuries were; and (d) that the judge refrained from criticizing defense counsel in part because counsel’s law partner was his close friend.

The denouement of Spaulding v. Zimmerman is worth recounting. Several years after the settlement, Spaulding discovered the aneurism when he went in for his draft physical. He had life-saving surgery to repair the damage, and then moved successfully to have the settlement in the case set aside (which is how it came before the Minnesota Supreme Court). But the ending was not entirely happy: because of the delay between the settlement and the surgery, Spaulding suffered a terrible side-effect, losing the power of speech. predict that the theory will turn out to be false - and for that reason it is weakly, not strongly, justified.^[101]

The general point is that some practices carry absolute criteria of success. The criterion of success for a scientific theory is truth; the criterion of success for mountain-climbing is getting to the top and back. Other practices carry criteria that are merely relative (the fastest runner in the world is ipso facto a successful runner). A pragmatic argument strongly justifies only the latter sort of practices, but, if I am right, the adversary system is of the former sort.

Let us return to the two confidentiality examples and, more generally, to the adversary system excuse. As we have seen, the adversary system estab­lishes an institutional role, whose functional requirements become role­obligations on those who inhabit the roles. There is a general presumption that lawyers will represent their clients faithfully and keep confidences. But the presumption that lawyers must fulfill their role-obligations may be overcome by sufficiently weighty values on the other side. What if fulfilling the role-obligation breaches some other moral obligation, such as the obli­gation to reveal information that could save Spaulding’s life? An institution anchors a moral excuse only to the extent that it has moral heft. If the institution is justified only because it is there, it possesses only the minutest quantum of force to excuse an otherwise immoral act. The Transitivity Argument fails.

Another way to see this, derived from a point made by Gerald Postema and Bernard Williams, can also be offered.^[102] Suppose that the Transitivity Argument were valid. Then it would not be immoral for lawyers to engage in ruthless, rights-violating activity. They would therefore have no occasion for moral regret at their actions. But - and this is Postema’s and Williams’s point - we want agents in “dirty hands” situations to feel regret at what they must do, because otherwise they will not develop the sort of moral character that enables them to judge when they should refrain from ruthless action. It follows that we should accept the Transitivity Argument only if we are willing to accept lawyers who are incapable of turning off their own adver- sariality. But that would be an absurd thing to want, because such a lawyer would be unable to draw adequate lines in any sort of situation that requires normative judgment, and that is inconsistent with what it takes to practice law at all.

The basic problem with the Transitivity Argument is that it exempts officers of an institution from ordinary moral requirements that conflict with role-obligations, even though the institution itself is in place only because we have done it that way for a long time. The result is to place conformity to existing institutions beyond the very possibility of criticism. This, however, is no longer justified conservatism: rather, it is fetishism of tradition.

Pragmatic arguments do not really praise institutions; they merely give reason for not burying them. Since their force is more inertial than moral, they create insufficient counterweight to resolve dilemmas in favor of the role-obligation. An excuse based on institutions justified in this way is simply a “good soldier” argument with little more to be said.