David Luban is a professor of Law and Philosophy at the University of Georgetown. His research centers on legal and moral responsibilities in organizational settings such as government firms, law firms, and the military firms. He writes books on legal ethics, national security, war theory, and international criminal law. Currently, he is working on a book based on the legal and moral philosophy of Hannah Arendt. He is a visiting professor at Harvard and Stanford law schools and at Israel’s Dartmouth College and Melbourne University. He has lectured in eighteen nations including the USA. This paper will critically evaluate the merits of David Luban’s pragmatic justification of the adversary system.
Several writers had written that the adversarial system had offered various arguments and all of them are categorized into two groups; consequentialist and non-consequentialist arguments. The aim of Luban was to show that none of the past arguments were sound, but the adversarial systems were justified. David Luban has agreed that so far all the past debates have been contrary, an assassination and the oppression of the adversarial systems. But he thinks that the adversarial systems have been justified (Bignami & Kelemen, 2017). He does not have argumentative uniqueness to create the justification. It was strange that the social institutions were justified based on virtues which were not tried or true ones but based on attributes which nobody had observed earlier. The justification of Luban was modest with no ideological burden. He has named it pragmatic justification or pragmatic argument, which has suggested its similarity with the peaceful, problem-oriented and historical concept of justification connected with the pragmatism of USA (Gertner & Sanders, 2018). Luban who is otherwise doubtful of the more exaggerated claims made on the adversary system advances to call it a pragmatic justification of the adversary system:
The adversary systems of the USA is as good a job as any non-adversary systems to find the truth and protect the legal rights. None of the present competitors is better than the other
Even if the competitors are better, the human capitals replace the adversary system of the USA. Confusion, loss of tradition, anxiety and social efforts would surpass the reasons for setting up a new adversary system
As adversary system has always been used by the USA
It is essential to have some of the adjudicatory systems
The adversary system must be retained by the USA
The adversarial system followed in the USA is the legal system. Under this system, the lawyers present their arguments, collect and submit their evidence, calls, and questions the witnesses, and manages the given information as per the legal procedure. It had been noted by Luban that pragmatic justification had also worked well for other legal systems such as inquisitorial systems of the nations of Europe (Gordon, 2019). It seems like it would sustain instead of authorizing the social institutions in defense of its development. He has also claimed that the usage of pragmatic justification does not need complete conservatism. He has said that an individual could consider that their society must be considerably changed or the legal systems were hopelessly unfair and still agree that an evolved society or the renewed legal systems must use adversary judgment. Only this justification of the adversary system succeeds. However, it does not indicate that this system has to be abolished (Hoyano, 2015). It would be better if real-world alternatives like the procedural regime of Continental European were found to useful and contemplate a far-reaching transformation. The common law of the nation must maintain the adversary system for three reasons
Some procedural systems would be needed
Alternatives that were available are not suitable for the adversary systems
The adversary system is a system with its own place
It is the pragmatic justification of the adversary system and it might be reasonably weak but practically strong. It has been noticed that pragmatic justification is not an argument for its own benefits but to retain the status quo which had aroused due to lack of better alternatives for the adversarial systems. In the jurisdictions of common law, the status quo is represented by adversarial systems. Non-consequentialist arguments for the adversary system does not fare in better way with Luban (Luban, 2018). To initiate with, nothing is inherently good between the lawyer and client relationships. Even if the autonomy of some clients seems to be increased legally by the services of the lawyer, not all needs of the clients are innocent or unbiased. Moreover, in most of the cases accomplishing the client’s ends might come at the cost of the autonomy of the third parties. Secondly, the people of America have not consented to the adversarial
Luban has insisted that some of the institutions of USA are less trusted than the adversarial adjudication, specifically because it provides a license to the lawyers to crush the truth, the legal rights, and the morality (Premnath & Haas, 2015). Finally, Luban has claimed that the adversarial system do not enjoy the approval of historical traditions which are deeply rooted in the culture in USA. It tends to change over time and in the view of Luban, it could not be recorded among vital social institutions of USA. A bare fact is left by it which suggest that there is the adversarial system and the supposition to replace it completely would be a considerable task of undefined success and cost (Romeo, 2019). So, Luban has concluded that it could be said for adversarial systems that it is as good a job as any non-adversary systems finds truth and protects the legal rights. A social institution which could get only pragmatic justification does not have the capability to provide institutional excuses for the immoral behaviors.
It had been noted by Luban that pragmatic justification had also worked well for other legal systems such as inquisitorial systems of the nations of Europe. It seems like it would sustain instead of authorizing the social institutions in defense of its development. In the year 2008, Mexico has passed several legal reforms for the oral adversarial systems (Ryan, 2016). The changes gave time to the Mexican states till the year 2016 to adopt the new oral adversarial systems from its old written inquisitorial systems. Most of the states had already implemented the changes with variable degrees of success. These changes were encouraged by both external and internal factors. The old inquisitorial systems had become clumsy and ineffective and needed transparency. The old system was criticized by the several international communities including the UN Commission on Human Rights. After that USA and Mexico have joined on a project known as Mexico Project to spread the proposals of justice reform of President Vicente Fox (Spencer, 2016).
Applying the changes was a challenge for Mexico. Forming new court systems and training the lawyers and judges to cope up with the new system needed a huge amount of resources as well as time. The biggest challenge was the change in the perception of the legal communities of Mexico (Thomson, McArthur & Camilleri, 2017). The legal system of Mexican was built on a positivist philosophy which began to conflict with the expectations of the new adversary systems. The lawyers and judges for the changes to work needed to challenge some of the expectations of the old systems. Mexico has considered to some of the nations with adversary traditions for getting the idea with the reforms like the USA.
In the view of Luban, most of the social institutions of the USA are similar to the adversarial systems in the way to the approval of pragmatic justification. Some of the social institutions of the USA might not intend to provide any positive or moral good while some of the social institutions of the USA are even worse than the others (Vannatta, 2018). The replacement of these institutions might be the result of nothing more than social exhaustion and the incapability of the Americans to come up with other better concepts. Luban has believed that this was the actual reason for not replacing the social institutions in the USA. Pragmatic justification might be reasonably weak although it has provided justifications to the institutions without demonstrating that they were better than their competitors or they were right in other ways. But pragmatic justification is extremely powerful, and it is like the institutions following the first law of Newton. Luban has concluded that the only legal reason to maintain the adversarial systems is the tedious pragmatic arguments which could be a possible alternative for the adversarial systems. The pragmatic justification is crucial for deciding the capability of the adversarial systems to underwrite the institutional excuses for the lawyers (Welbourne, 2016).
Conclusion
The paper had critically analyzed the merits of David Luban’s pragmatic justification of the adversary system. The justification given by Luban for the adversarial systems was modest with no ideological burdens. He has named it pragmatic justification or pragmatic argument, as it has similarities with the peaceful, problem-oriented and historical concept of justification connected with the pragmatism of USA. Pragmatic justification has worked well for other legal systems such as inquisitorial systems of the nations of Europe. It had sustained instead of authorized the social institutions. He has also claimed that the usage of pragmatic justification does not need complete conservatism.
References
Bignami, F., & Kelemen, R. D. (2017). Kagan’s Atlantic crossing: adversarial legalism, eurolegalism, and cooperative legalism in European regulatory style. In Varieties of Legal Order, 81-97.
Gertner, N., & Sanders, J. (2018). Alternatives to Traditional Adversary Methods of Presenting Scientific Expertise in the Legal System. Daedalus, 147(4), 135-151.
Gordon, R. W. (2019). Lawyers, the Legal Profession & Access to Justice in the United States: A Brief History. Daedalus, 148(1), 177-189.
Hoyano, L. (2015). Reforming the adversarial trial for vulnerable witnesses and defendants. Criminal Law Review, 2, 107-129.
Luban, D. (2018). Self-Representation, Access to Justice, and the Quality of Counsel: A Comment on Rabeea Assy’s Injustice in Person: The Right of Self-Representation. Jerusalem Review of Legal Studies, 17(1), 46-63.
Premnath, S. N., & Haas, Z. J. (2015). Security and privacy in the internet-of-things under time-and-budget-limited adversary model. IEEE Wireless Communications Letters, 4(3), 277-280.
Romeo, A. (2019). The Adversary System of Excuse and the Lawyer’s Role between Law and Morality. Archiv für Rechts-und Sozialphilosphie, 104(4), 570-588.
Ryan, A. (2016). Comparative procedural traditions: Poland’s journey from socialist to ‘adversarial ‘system. The International Journal of Evidence & Proof, 20(4), 305-325.
Spencer, J. R. (2016). Adversarial vs inquisitorial systems: is there still such a difference?. The International Journal of Human Rights, 20(5), 601-616.
Thomson, L., McArthur, M., & Camilleri, P. (2017). Is it ‘fair’? Representation of children, young people and parents in an adversarial court system. Child & Family Social Work, 22, 23-32.
Vannatta, S. (2018). Conservative in What Sense?: Conservatism and Pragmatism Revisited in Response to Plotica, Bell, and Mendenhall. Contemporary Pragmatism, 15(4), 547-564.
Welbourne, P. (2016). Adversarial courts, therapeutic justice and protecting children in the family justice system. Child & Fam. LQ, 28, 205-215
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