Hanging the Paradigm of Fairness
Rev. Fr. Ranhilio Aquino
Trials were fair, it has been thought for a long time now, when each party to a dispute before the court was left free to adduce the evidence and to argue the law most favorable to his case. Given that fundamental persuasion then the judge had to be some rather passive, neutral umpire who resolved the dispute merely on the basis of what was presented to him. So if, through insouciance or ineptitude of counsel, a party raised the wrong issue, or failed to produce in court the document or the testimony that should have been brought before it, the judge could not, by the rules of the game, ask that the gaps be filled in because that would be, once more by this same persuasion, “unfair”. This, put simplistically, is commonly known as the adversarial procedure in litigation — and it left a prominent common law jurist wondering aloud how a judge might reasonably be expected to arrive at the truth under circumstances that allowed both parties to stand before the bar, equally prepared to lie to the teeth! There is also something counter-intuitive about the adversarial system. Let us assume that you are a person for whom the difference between truth and falsehood is significant. (It is not, for some!) When someone excitedly tells you that the moon turned green at midnight, the night before, average intelligence and a minimum of intellectual curiosity would ask you to demand proof: that could come in the form of others who saw the strange spectacle, or of colored photographs, or of video recordings on one’s smart phone — the ways of proving are myriad. And if you were further told: “There are pictures!”, then once more, fundamental intelligence would make you demand: “Show me”.
Rev. Fr. Ranhilio Aquino
Trials were fair, it has been thought for a long time now, when each party to a dispute before the court was left free to adduce the evidence and to argue the law most favorable to his case. Given that fundamental persuasion then the judge had to be some rather passive, neutral umpire who resolved the dispute merely on the basis of what was presented to him. So if, through insouciance or ineptitude of counsel, a party raised the wrong issue, or failed to produce in court the document or the testimony that should have been brought before it, the judge could not, by the rules of the game, ask that the gaps be filled in because that would be, once more by this same persuasion, “unfair”. This, put simplistically, is commonly known as the adversarial procedure in litigation — and it left a prominent common law jurist wondering aloud how a judge might reasonably be expected to arrive at the truth under circumstances that allowed both parties to stand before the bar, equally prepared to lie to the teeth! There is also something counter-intuitive about the adversarial system. Let us assume that you are a person for whom the difference between truth and falsehood is significant. (It is not, for some!) When someone excitedly tells you that the moon turned green at midnight, the night before, average intelligence and a minimum of intellectual curiosity would ask you to demand proof: that could come in the form of others who saw the strange spectacle, or of colored photographs, or of video recordings on one’s smart phone — the ways of proving are myriad. And if you were further told: “There are pictures!”, then once more, fundamental intelligence would make you demand: “Show me”.