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Tuesday, September 22, 2020

The Adversarial System and the Torah Ethic of Justice

The Common Law -- which originated in England and then became the basis for the legal structures of many countries including Canada and the United States -- is built upon what is termed "The Adversarial System". The argument is that the most effective method by which to uncover the truth and reach a proper conclusion is through the parties in conflict battling the issue out, to the best of their abilities, in the presence of an unbiased and objective court. In the give and take which will occur as the parties attempt to present their positions, arguments and responses to challenges from the other side(s) and the court, the perception is that, to the extent humanly possible, the full truth will undoubtedly emerge. The proper and just resolution of the matter should then become clearer for the court to render the most proper decision possible. In that many countries apply this system, there must be some basis for this perspective. It must have some record of, indeed, achieving justice. We may wonder, though, how Torah thought views such a system.

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



  1. I object to your presentation on several grounds. You left out the best example of how Torah favors the Adversarial System. It reveals a glaring blind spot in your thinking to not notice, during the Ten Days of Repentance that God himself employs an adversarial system. The description of the heavenly court includes a Prosecution - The Kategor and the Defense, the Sanigor. It is striking that the heavenly Court does not model a Beit Din. The only words Chazal could come up with to describe this system were Greek in origin? Why does the Aggadic imagination go to a Greek system and not the Halachic system? I don't believe it was only to employ terminology that resonated with the populace. I would hope that a Beit Din would be equally familiar. I posit rather that by describing the Heavenly Court as reflecting a Prosecution and Defense, the Torah was describing the Ideal court system, the one employed by God. This is particular striking because it was not the societal norm at all. You correctly point out that the Adversarial system originated with Common Law and the Norman Invasion of England. It is a 1000 years in the making and did not exist when the Midrash described the Heavenly Court system. It borrowed terms from Greek Orators that spoke on behalf and against the defendant. But only presaged the full Adversarial system because the concept of a lawyer was only organized and made available recently. The last barriers against taking money in order to defend someone in court were dropped shockingly recently. And yet the Torah speaks about the Spiritual Ideal of a Defense Attorney. Historically speaking - until very recently - it was the victim's responsibility to bring the accused to justice. Only when the Crown saw it in its own interest to pursue justice, to take the part of the victim, to employ the royal Prosecution did the Adversarial system begin. It is a great step forward! It is the major contributor to civil society. It enables democracy. Yes, it has excesses. Yes, in its 1000 year of development the pendulum has swung too far and we have become overly litigious. But it is a great institution. And I believe it reflects a great Torah insight, a truly countercultural one, that it is God's and a Human King's responsibility to accuse and prosecute criminality. There is needed distinction here between civil disputes and criminal disputes. But in most civil disputes one party is claiming to have been disadvantaged and is seeking recourse to the law. The claim that most civil disputes can be analyzed in the eyes of the law until one party is found correct and the other wrong should also resonate with a Torah perspective. It is rare that Nezekin issue is left ambiguous - כל דאלים גבר. The goal of Halacha is to analyze issues with such clarity that most civil disputes can come to court and the court and adjudicate one party as correct and the other wrong. Finally your use of Reish Lakish and R. Yochanan is again misleading. That story ended with a terrible and tragic fight. A fight that was never resolved. How can your ideal models of Sages that put disinterested commitment to truth ahead of personal affront end up totally estranged from one another until their dying day? I also object to your language. If you want to engage a thoughtful debate, if you want create a space where ideas can be honestly discussed, you should avoid language like "the Torah's perspective" "the Torah's view on" when in fact you mean Rabbi Hecht's view on and Rabbi Hecht thinks . . . In the end, when you put out an ideal of people all deferring to a greater truth - you have to ask, whose truth is that? And you just showed that while human's aspire to some truth they inevitably project their own thinking onto the absolute. Which is why justice is better achieved when I oppose you rather than defer to your concept of the truth.

    1. There is no doubt that Torah favours the intense investigation of an issue from all angles and that in the pursuit of truth and justice, one wants confrontation. To find the honest truth, one wants to be challenged, one wants to be confronted by arguments that contest one’s present assumptions and conclusions. I would hope that in a Beit Din, in the deliberations between the dayanim, one would find heated debate between judges with differing viewpoints as one would find in the secular courtroom, for such confrontation is necessary in the process of discovering the truth and achieving justice. My problem with the Adversarial System, though, is that the goals of these adversaries is actually to win, not the higher goal of truth and justice. The theory is that, as a result of such debate, truth and justice will emerge but that is a by-product, not a necessary goal of the participants. That is where the Adversarial System breaks down, in my opinion, from the perspective of Torah. The goal of the dayanim as they confront each other in deliberations is the proper answer, not personal victory or acclaim. Of course, the call of the process is to uncover the full spectrum of perspectives and thus it is important to have input from all sides. Your contention that I should have used the example of the Kategor and the Sanigor may have legitimacy in this regard because this idea does reflect the extent to which we must investigate a matter. The Kategor and Sanigor, are, however, both servants of God who do not have any self-interest as a concern. They don’t want to win. They are just doing their angelic job to clarify the matter; truth and justice are the only goals. The Adversarial System may indeed promote a fuller investigation of a matter but, my contention is, it does so at a cost. Each side is promoting its own position. Their consideration is not necessarily what is right. Torah indeed does see value in the fight, in the confrontation. It wants the intensity of the battle between the Kategor and Sanigo., This, however, must always be subservient to the higher goals of truth and justice. The recognition of this significance may also explain why I did not refer to this idea in my original posting. This reflects the functioning of angels in the Heavenly Court. Within the realm of humanity, though, one cannot be simply a kategor or sanigor. The human being must always strive for truth and justice.
      As you also mention, the case of Rav Yochanan and Reish Lakish is a most difficult one to understand. There are numerous questions that need to be solved. It was not my intent to deal with these issues, albeit significant ones, in my post. Nonetheless, they are still the classic Torah models of how it is important for us, in the pursuit of truth, to search for confrontation, which will thereby challenge and question us. They are, as such, not possessors of “disinterested commitment to truth” but passionate strivers for the truth. What occurred between them is actually even more difficult to understand given the reality of this passion.