To begin such an investigation, we may first wish to gain a broader perspective of the matter by also considering accompanying critiques of this system as generally voiced in the world. A major one that is often articulated in connection to any review of this system, reminds us that the underlying basic theory is based upon the assumption that it is actually deemed to be a battle of thought between two equal antagonists that is projected as the best way of bringing out the truth. A critique of the system thus often emerges in the reality that in many cases, if not most, the two sides are not really equal in ability and/or resources. As such, given such a situation, there is basis to contend that an achieved result will often not reflect true justice but such strengths of the one side over the other. This, obviously, would be a challenge to the pursuit of truth.
As this is, however, a recognized potential weakness of the system, many emendations exist and are undertaken within the system -- both formally and informally -- to obviate this problem or, at least, lessen its negative effects. These alterations, though, are attempts to correct the system while still maintaining its inherent basic principles. What is then significant to us is to recognize how this reality about the Adversarial System in itself actually reflects an essential flaw in the system from the perspective of Torah. While there can be value in promoting a clash between opposing thoughts, in the basic structure of the Adversarial System, there is still also a powerful, natural potential for negative consequences. The very possibility for a presentation of opposing views is, in itself, obviously, not necessarily positive. Opposing battles of this nature can also simply yield extremely negative results. How such confrontations in thought are structured and formed would seem to thus be of major significance. It is with this issue in mind that we may best explore the Torah perspective in regard to this system.
There is clearly much evidence within Torah thought to support a basic idea that confrontation over ideas can play a vital role in reaching the best solution and greatest recognition of the truth possible for humanity. What immediately comes to mind is the famous story presented in T.B. Baba Metzia 84a regarding Rabbi Yochanan and Reish Lakish which articulates how the former most valued the challenges in thought that the latter would present to him. The overriding Torah message of these great Tannaim is that it is indeed in such confrontations that the truth can be best attained. This would seem to imply, indeed, that the Torah would possess a positive perception of the Adversarial System. What is notably different, however, about the case of Rabbi Yochanan and Reish Lakish is that they, both, absolutely still desired the truth. Their goal was not to personally win. Victory was only in the attainment, to the extent humanly possible, of the truth. They powerfully argued for their positions simply because they felt that their views were correct. If they were proven wrong, they, however, also celebrated for, most importantly, was that the truth was made known. They themselves wanted strong challenges in debate because they themselves wanted to attain the proper result in truth. Within the realm of Torah, the overriding motivation of all involved in such a process, even the adversaries, would still, above all else, be truth and justice.
In contrast, the desired motivation in the confrontation, within the Adversarial System is, specifically, self-interest. The argument is that the two parties, greatly motivated by their own self-interest, will present their positions to the best of their abilities specifically because of this motivation. It is then that the objective court -- with its goal of justice -- will be able to reach the best conclusion possible because the information which the court will have before it will be maximized by the debate resultant of such personal desire and effort of the parties. There is then the recognition that there could be a problem if the two sides are not equal in ability as one would be able to present its side better. It is with this in mind that certain emendations may be introduced. to lesson this problem. Pursuant to this system, though, the self-interest of the parties is still seen as a fundamental necessity that must be maintained -- and no emendation which would challenge this would be acceptable. It is on this point that we would find the Torah's essential problem with the Adversarial System. The standard of the Torah would be that it is still obviously correct and necessary that all involved in any process that involves the pursuit of truth and justice should have truth and justice as their absolute goal. Self-interest in such matters is deemed to be an inherent problem which, furthermore, can almost inherently always potentially yield negative results.
This, of course, does not mean that the Torah does not recognize a value in divergent opinions. It obviously does. It is this very reality of powerful divergence in thought which yields the clash in ideas which results in the eventual greater perception of the truth. And this is even as Torah recognizes that such divergence in thought may result from the distinctions in self of individuals. Yes, there is, in fact, a reality of self-interest as created by God. This exists and even has its place. The challenge is in how we are to respond to this reality of self. The call of Torah demands of us that our overriding goal must still be truth. This call of truth must then demand of us that we also be concerned about this self-interest as it may lead us away from what must be our true and objective goal. As such, we must always challenge the necessity of self-interest. And this cannot solely be, as per the Adversarial System, the task of the judge(s) for this commitment to truth must continuously be a value of all in all our endeavours. The Adversarial system wishes to bring forth all the possible divergent opinions through the promotion of the parties advocating in their best interest. Torah simply cannot accept such a promotion of self-interest as the greater goals of truth and justice are thereby set aside to some extent. Truth and justice must be part of our very consciousness at all times. The goal of all must always be truth and justice.
This issue becomes even more problematic when the call of such confrontation occurs outside the parameters of the court. The model of the Adversarial System, with its encouragement of debate arising from personal, emotional perceptions, actually also permeates our society's promotion of ideas in general. As people take sides in almost any endeavour, they then place the advancement of their positions -- winning -- as their ultimate objective. All around us is the call to be motivated to promote our views, ourselves. Individuals have thus incorporated a rigid attitude of “I'm right and you're wrong." In the court setting, the court enters the fray to evaluate the battle to arrive at what is hoped will be the proper objective conclusion. The problem in society is that there is no similar referee to undertake this role. We are left with the perception: 'Let the best man win -- and that's me." We learn how to fight for a pre-conceived victory. We do not learn to go beyond this fight to reach the truly soundest conclusion which will serve us all in the best manner.
While Torah advocates for individuals to think, take positions and promote their ideas most adamantly, it strongly demands that the goal can never be to win -- solely self-interest and self-advancement -- but always the greater Divine ideal. We must, as such, never lose sight of the value of truth and justice in all our endeavours. We must apply all our strengths in promoting our views but not because they are our views but because we believe they are right. In the same way, we must also apply all our strengths to search and hear challenges to such views in the same manner that Rabbi Yochanan lived for the critiques of Reish Lakish. It was truth he sought! This emerges in substantial dialogue and debate in the evaluation, discussion and honest critique of the variant opinions. We must, as such, not just work to develop our opinions but similarly work to search for critiques of our opinions, hear other viewpoints and find the more correct answer as a result of all these undertakings. This is why the value of truth and justice must always be in the consciousness of everyone. To truly win, we must always recognize the ultimate goal of reaching the Divine ideal. The ideal of truth and justice cannot be just the province of the judges of a court. It must be a fundamental standard of all in every step we take.
Rabbi Benjamin Hecht