Image for How taxpayers are obliged to fund a racket

*Pic: Image from HERE

Taxpayers pay the wages of judges, prosecutors and police and fund two legal systems. So far as I know, no one else has traced their origins:

• The adversary system dates from 1460 and now affects some 1.6 billion in England and its former colonies: the US, India, Australia, New Zealand, Canada, Ireland etc.

• The inquisitorial (investigative) system dates from c. 450 BC and now affects twice as many in France, Germany and elsewhere. (The system is not to be confused with the Spanish Inquisition; it ran from 1480 to 1834).

Yale law professor Fred Rodell said the adversary system is a racket. If he was right, taxpayers are awkwardly placed: should we demand a fair share of the proceeds?

Three ways of confirming Professor Rodell’s assertion follow. Sources not given here are in my book.

1. Two systems compared

The adversary system is the only legal system which does not try to find the truth; relevant evidence is concealed. Lawyers control the process. They can prolong trials for weeks or months and can confuse jurors with a technique of lying called sophistry: false arguments, trick questions, shifting the goalposts etc. Untrained judges are mostly passive. Jurors are isolated and do not give reasons for their verdicts. About 30% of guilty defendants are convicted, but at least 1% (5% in the US) of people in prison are innocent. 

Professor Rodell said 99.44% of lawyers don’t know the adversary system is a racket.   

The inquisitorial system seeks the truth; evidence is not concealed. In France, trained judges control the process and do not let lawyers pollute the truth with sophistry. Most trials take a day or so. Judges and jurors sit together and give reasons for their verdicts. About 95% of guilty defendants are convicted, and the innocent are rarely charged, let alone convicted.

2. A history of two systems in 460 words

Roman law was inquisitorial; it dates from about 450 BC. As a colony of Rome from 43 AD, England used the inquisitorial system Roman law until the Empire fell in 476. England and West Europe then changed to an anti-truth accusatorial (prove it) system, trial by barbaric ordeal, and verdict by a god who did not give reasons for his/her verdicts.   

Roman law continued in the Byzantine (East Roman) Empire. Emperor Justinian had it codified in 535. A digest of his Code was found in Italy about 1070.

William II, king of England from 1087 until he was shot dead on 2 August 1100, put every public office on sale; investors extorted bribes from people who dealt with the office. That system continued for at least two centuries. Consequences included:

• When the common law began in 1166, judges extorted bribes, and lawyers were their natural bagmen, as they were in Chicago recently. 

• Lawyers and judges have always been a cartel, according to a US judge, Richard Posner. A cartel mainly aims to increase members’ profits. 

Pope Innocent III persuaded a church-state conference to accept an inquisitorial system in November 1215. European courts then reverted to that system, but in 1219 English judges chose to persist with the accusatorial system.

Lawyers have been the “dominant influence” in English-speaking legislatures since about 1350. The law will continue to be a racket until enough taxpayers refuse to vote for lawyers. 

Judges on a fixed wage (plus bribes) had no incentive to prolong the process; trials took a few hours. Lawyers paid by the day do have an incentive, but the cartel took 300 years to realise that a lawyer-run system would be more profitable. The adversary system dates from 1460, when lawyers began to run the civil process.

Charles Dickens wrote in Bleak House (1853): “The one great principle of the English law is to make business for itself.” The novel concerns a racket dating from c. 1650; in cases of disputed wills, lawyers were paid by the deceased estates, not clients. Chancellors kept will cases going for decades; lawyers got paid for turning up. Jennens v Jennens, the model for Dickens’ Jarndyce v Jarndyce, concerned an estate worth some $1.5 billion today. Jennens began in 1798, and 32 corrupt Chancellors kept it going for 117 years while lawyers “devoured” the estate. 

A few lawyers began to defend criminals in 1695. By 1795, lawyers were appearing in 36.6% of criminal trials. That was enough for judges to devise truth-defeating mechanisms which encourage rich criminals to pay lawyers.

Napoleon began work on his monument, reform of the inquisitorial system, in 1800, and England and its colonies would probably have reverted to that system if Admiral Villeneuve had followed Napoleon’s instructions in 1805.

3. When truth does not matter, anything goes

Legal “ethics”
devised by lawyers oblige them to get the best result for clients; if guilty, the best result is to get them off, by lying if necessary. US law professor Monroe Freedman said: “… a lawyer can ethically make a false statement of fact to a tribunal … and can ethically engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”

Freedman said that even if a rapist admits to his lawyer that he is guilty, the lawyer can ethically let him deny the crime on oath, and can question the victim about her sex life to hint she consented; victims have vomited on the witness box. The US Bar Association gave Freedman its highest award for his work on ethics.

Committal hearings. There are no jurors. Dr Caroline Taylor, author of Court-Licensed Abuse, said: “A standard tactic … is to attack complainants with such ferocity at a committal hearing that they are too afraid to go to trial.”

Cross-examination. Judges and lawyers told Four Corners in 1999 they would not let their children be cross-examined. The report concerned a committal in which it was alleged that a boy, 7, had been raped by the husband of his mother’s best friend. A defence lawyer tried to get the child to say he had lied for five hours, with breaks to stem the sobbing. The transcript is at abc.net.au/4corners/stories/s39718.htm. The trial verdict was not guilty. 

Cross-examined by Kate Blackwell in 2013, Frances Andrade, an English rape victim, said: “This feels like rape all over again”. She killed herself before the trial ended.

Lawyer-politicians have no shame. They will not let cases of sex crimes against children and women be heard in victim-friendly courts in case it sets a precedent for other victims. Vote 1: Anyone but a lawyer.

The “right” of silence is the product of a lie by the first legal academic, William Blackstone (1723-80). Judges have never corrected his lie. The “right” is said to get off about half those who hide behind it. 

Patterns of crime concealed. In 1894, a corrupt Chancellor, Farrer Herschell,  devised a rule which conceals evidence of previous crimes. The rule gives jurors the false impression that repeat offenders – white/blue collar organised criminals, paedophiles, rapists etc. – are first offenders.

Any or all evidence concealed. In 1914, a court headed by an inside trader, Lord Reading, devised a ridiculous but unappealable rule: judges can conceal any evidence if they simultaneously think it tends to prove the accused is guilty and tends to prejudice jurors against the accused.

Beyond reasonable doubt. Devised c. 1800, the negative formula baffles jurors, but Australian judges are not allowed to tell them it means: are we sure? Justice Christopher Wright, of Tasmania, believed the formula caused wrong not guilty verdicts in about 25% of cases. In two centuries, that would be millions. 

Sentencing. White collar criminals tend to be repeat offenders, i.e. organised criminals, but judges apparently think they are not really criminals; former Australian Federal Court judge Ray Finkelstein wrote in 2012: “As a general rule the judge’s rationale in sentencing [white-collar criminals] is different from sentencing true criminals … imprisonment, when available, is regarded as a last resort.”

Even so, prisons are full of criminals who pleaded guilty (and got the discount) because they could not afford a high-priced shyster.

China Fangzheng Press has translated and is to republish *Evan Whitton’s book on the two systems, Our Corrupt Legal System, in mainland China. The English text can be seen at netk.net.au/whittonhome.asp.