James Hanley at Positive Liberty reflects on recent experience with lawyers and the law:
Despite the mythology surrounding our adversarial system of justice, it is a terrible way to pursue the truth. I already knew that, but it became ever more clear to me that one of the primary duties of the lawyer is to obscure the truth, to hide and dissemble about all facts that are not conducive to his case.
But I think there is a difference in incentives in our occupations. A lawyer, at least in certain fields, can be quite well-rewarded for purposefuly obfuscating the facts. And while for academics it can be rewarding to unintentionally obfuscate the truth, as long as enough others are also fooled, purposefully obscuring it can be treated as a serious offense.
I think Mr Hanley hits on an important point here. In an adversarial system of justice nobody involved is interested in discovering the truth, they are all interested in winning.
Chantal Delsol in Icarus Fallen has a chapter on Democracy, in which she locates doubting Democracy as something of a third rail in our culture. She writes:
So it is that contemporary democracy has become the only cornerstone considered to be untouchable. Lacking the inquisitorial methods that it condemns, it practices its own brand of intolerance through verbal ostracism. Whoever dares to criticize finds himself either scorned for weak or backward reasoning, or accused of barbarity, relegated to the darkness, and placed in the company of our historic enemies. All of which clearly demonstrates the sacralization of democratic thinking: its adversaries are doomed to ruination, diminshed by moral condemnation, and deprived of the right to take issue. The sacred is precisely that against which contradiction kills the contradictor.
(as an aside, I’m uncertain whether I understand what she’s saying in that last sentence, but I don’t think it consonant with a Christian meaning of sacred.) But getting back to the matter of hand. If the problem with an adversarial system of justice is that it is not optimized to find truth, but instead to provide an arena in which a noetic gladiatorial event transpires. An event not to find any underlying truth, i.e., did he do it, or who is right. It doesn’t help that the playing field itself is uneven, having been set by another gladiatorial event, the jousting for favor of elected officials who themselves are jousting for approval of the electorate. In our short American history, we have had the practice of electing to high office those military leaders who are successful (who run) after a war. While these men very often are very poor Presidents, the reason might be that leading civilians is as similar to leading soldiers as is herding cats and herding dogs. However, one of the main reasons on which their electoral success is based is that the test which they passed, leading men successfully, is seen a better test of their fitness to lead the state than rhetorical brilliance in the public forum, debating skills, or finding a good team to run a campaign.
Democracy, Ms Delsol suggests, is a system designed to optimize happiness. (As another aside, this might explain why a common flawed misreading of happiness as related to pleasure underlies the regretful decisions being made by our nominally democratic government today.) However this raises two important questions. The first is one I’ve asked before, namely, “Is our electoral process one which might reasonably expected to winnow out and discover a good leader?” This is related to Mr Hanley’s observation that our legal system is not one designed of fit to find truth, and that if it does occasionally find truth that discovery is more accidental than not. I’d offer, just as our conflict based judicial process is not one which is designed to find truth, I’d offer neither is our electoral procedure one which is designed to find good leaders. A second question arises from the observation of Ms Delsol’s of what is being optimized that is, “What should in fact be optimized by government?” If you are considering the fitness of various forms of the state and how government might best be constructed, it surely prior to engaging on that enterprise, one should consider what is it that should be maximized by our design?
I’d like to offer a non-intuitive stab at an answer to the second question. I would offer that the thing which government should optimize is just authority. If I define the just authority of a state that authority which is freely granted by the people, then good government is a “straightforward” min-max problem. Maximize authority with a minimum of coercion. Straightforward is in scare quotes because the solution is almost certainly not crystal clear nor straightforward. In this view, Libertarians have it half right. Minimizing coercion is a key ingredient to government. But they also have it exactly half wrong, in that minimizing state authority is getting it exactly backwards. Authority should in fact be maximized …within the condition that coercion be minimal. A totalitarian state maximizes coercion and authority. In an ideal government, any and every act by the government performed would be seen by its citizens as within the authority they granted. Unlike a minimal authority state, it would also fill the roles expected of the state in accord with the desires of its people. It would be free to do anything it wished because it would not wish to do anything that its people did not desire.
What sorts of tentative suggestions might one make toward a system of government that tries to min/max coercion and authority. Two factors come to mind. One, the subsidiarity arises as a important factor a large state, where large regional and micro-regional differences exist regarding expectations of how far the authority of government and its role extends. If you are trying for a min/max solution the flexibility of local adjustments can find a tighter solution than a single global one. Secondly, the forms of government which are considered normally on the playing field, oligarchy, monarchy, democracy and republic are forms which were developed centuries ago. How might information technologies and the ease of transportation in the modern era permit new forms to be imagined (and tested)?