Justice Russell Fox researched the law for 11 years. He concluded that justice means fairness; fairness and morality require a search for the truth; truth means reality. To put it another way, a legal system cannot possibly be fair to everyone concerned, including victims, police and the taxpayers who fund it, unless it first tries to find out the truth of what happened.
The inquisitorial (investigative) system in Europe and elsewhere seeks the truth. Trained judges control evidence; do not let lawyers pollute the truth with sophistry, a technique of lying, and have no motive to prolong the process. In France and Germany, most trials take a day or two; 95% of guilty defendants are convicted; the innocent are rarely charged.
The adversary system in England and its former colonies does not seek the truth. Yale law professor Fred Rodell said it is “nothing but a high-class racket”. Lawyers adept at sophistry control evidence and, at $10+ a minute, have a motive to spin the process out. Trials can take months. Untrained judges do the decent thing; they try to stay awake.
Concealed evidence, sophistry by lawyers and judges, and beyond “reasonable” doubt tend to make outcomes uncertain and unfair. More than 50% of guilty defendants get off (India’s conviction rate is 16%) but at least 1% of people in prison are innocent, some on Death Row. Negligence law is unfairly biased against doctors and people in business and industry. Libel law (outside the US) is biased against citizens’ right to know what scoundrels are up to.
Change to a truth-seeking system is achievable – the inquisitorial system is already used for inquiries of various kinds – and will be supported by informed voters: Justice Russell Fox said “the public estimation must be correct, that justice marches with the truth”.
Unlike the common law, journalism is a truth-seeking occupation; the basic obligation is to find out and report what is really going on. Investigative/Explainer units can expedite change by calculating the relative costs of the systems in Australia and France.
Our Corrupt Legal System*, based on 20 years’ research, has some background. Dr Robert Moles, LLB Hons Belfast, PhD Edinburgh, says it is “one of the most important books I have ever read on the common law legal system”. It details the system’s 24 anti-truth devices, including six ways of concealing evidence, and how the common law developed in five stages:
1. Corrupt judges and lawyers formed a cartel late in the 12th century. Members of a cartel collude to increase profits.
2. Rejection of the inquisitorial system in 1219 effectively meant that truth does not matter. This enabled judges to:
3/4. Let lawyers trained in sophistry control civil evidence from 1460, and criminal evidence from the 18th century.
5. Conceal evidence in the 19th and 20th centuries.