An Australian judge, Russell Fox, said justice means fairness, and fairness requires a search for the truth otherwise the wrong side may win. English law is the only legal system in the world which does not search for
On Justice Fox’s definition, the English system is unfair, unjust and immoral. That would not matter so much except that England exported the system to its colonies, India, the United States, Canada, Australia, New Zealand, Ireland etc.
People who actually pay tax fund legal systems and pay the wages of judges, prosecutors, court officials and police. A comparison between the English adversary system and the French version of the more widespread inquisitorial system might interest taxpayers.
The French inquisitorial system. Seeks the truth and trained judges are in charge.
They rarely charge the innocent; do not conceal evidence; and do not let lawyers
use sophistry: false arguments, trick questions, shifting the goalposts etc.
The system uses the commonsense of ordinary people to protect judges from error; jurors sit on the bench with judges and can outvote them. Suspects must answer questions. Most hearings take a day or so. About 95% of guilty defendants are convicted. Reasons are given for verdicts.
The English adversary system. Does not seek the truth. Lawyers are in charge and can use sophistry to confuse witnesses and jurors. US Judge Richard Posner described “adversarial procedure” as “contests of liars”.
Lawyers can prolong trials unnecessarily for weeks or months. Yale law Professor Fred Rodell wrote: “The legal trade, in short, is nothing but a high class
Untrained judges conceal evidence on the ground that jurors are stupid. It gets sillier. Judges sitting without a jury have to conceal evidence from themselves, which is quite a trick and implies that judges are stupid.
Jurors do not give reasons. At least 1% of people in prison (5% in the US) are innocent. No country which uses the adversary system has a conviction rate
higher than 50%. The low conviction rate is the product of truth-defeating mechanisms.
- Beyond reasonable doubt. The formula came into being about 1800. Jurors still don’t know what it means; Judge Christopher Wright was
“convinced” it gets about 25% of guilty defendants off.
- Concealing a pattern. In 1894, a corrupt Chancellor, Farrer Herschell, invented a rule which conceals evidence of previous crimes. The rule gives jurors the false impression that a repeat offender, e.g. a serial rapist, is a first offender.
- Cruelty. US law professor James Elkins said the adversary system has a philosophy of cruelty. There are no jurors at committal hearings. 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”
In 2013, Frances Andrade gave evidence in Manchester that she had been raped. Defence lawyer Katherine Blackwell’s cross-examination was severe. Andrade said: “This feels like rape all over again”, and killed herself before the trial was over.
- White collar crime. Judges apparently think that white collar criminals are not really criminals. Former Australian judge Ray Finkelstein wrote in Targeting Tax Crime (March 2012): “How do judges punish white collar crimes? As a general rule, the judge’s rationale in sentencing is different from sentencing true criminals … imprisonment … is regarded as a last resort.” (Emphasis added.)
- Ethics. Legal ethics tend to confirm an old joke: ethics is a county in south-east England. 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.”
Professor Freedman also said that even if a rapist tells his lawyer he is
guilty, the lawyer can still question the victim about her sex life to suggest she consented. Victims of rape have vomited on the witness box. The American Bar Association gave Freedman its highest award for his work on ethics.
Professor Rodell said 99.44% of lawyers don’t know the adversary system is a racket. Perhaps it was a joke.
Origins of the two legal systems.
Law schools don’t teach much legal history; judges and lawyers in England
and its former colonies thus don’t know where their system came from. So far as
I know, no one else has traced the origins and development of two quite
different legal systems. So here is a little history.
The ostrich feather in the cap of Maat, Egyptian goddess of justice c. 2700 BC, symbolised truth, justice, morality.
From c. 449 BC, Roman law was inquisitorial (truth-seeking). England
presumably used that system when it became part of the Empire in 43 AD.
After the Empire collapsed in 476, England and West Europe changed to an anti-truth accusatorial (prove it) system, trial by barbaric ordeal, and verdict by some unknown god. For example, if the Witchfinder-General accused a woman of being a witch, she was trussed and thrown into a section of a river blessed by a priest. If the blessed water rejected her, i.e. she floated, the deity’s verdict was guilty, and she was fished out and hanged or burned at the stake. If the blessed water received her, i.e. she sank, she had the consolation that the deity’s verdict was innocent.
The Byzantine (East Roman) Empire centred on Constantinople continued to use Roman law, and the Emperor Justinian had it codified in 535AD. A digest of his code surfaced in Italy about 1070.
English common law began in 1166 but was adversely affected by a king’s action some 75 years earlier. William II, king from 1087 until he was shot dead on August 2, 1100, put every public office, from Chancellor down, on sale; buyers in turn extorted bribes from people who dealt with the office.
History professor John Gillingham said that system continued for at least two centuries. Judges thus extorted bribes when the common law began and lawyers were their natural bagmen (as in Chicago quite recently; see Operation Greystoke). Consequences included:
- A US judge/economist, Richard Posner, said judges and lawyers have always been a cartel. Members of a cartel collude to increase profits.
- Judging is different from lawyering, but common law judges have never been trained as judges separately from lawyers, as they are in France and Germany.
The most significant legal figures are probably Pope (1198-1216) Innocent III and Napoleon (1769-1821).
In November 1215, a church-state conference in Rome (population c. 1,000,000) confirmed Innocent’s inquisitorial system. West European lay courts then changed back to that system, but in 1219 a handful of probably corrupt judges in London (pop. c. 25,000) chose to keep the accusatorial system. Rejecting truth is a step down a slippery slope; if truth does not matter, any lie is possible.
In the English system, judges were initially in charge. On a fixed wage (plus bribes), they had no incentive to prolong the process; trials averaged 30 minutes.
For five centuries, European judges wrongly believed that torture is a reliable way of finding the truth, as do Donald Trump and the CIA.
In England, change to a more profitable lawyer-run system was made via pleadings, which are supposed to narrow the issues, but have never had to be true.
Lawyers originally pled orally before a judge for an hour or two until all agreed on the issue(s); the case then went to a jury. The adversary system dates from 1460 when lawyers began to exchange written pleadings, thus cutting judges out of the process, and judges did not stop them.
Lawyers can spin written pleadings out for months or years like a game of ping pong: statement of claim, defence, reply, rejoinder, surrejoinder, rebutter, surrebutter etc. The procedure thus tends to confirm Yale law professor Fred Rodell’s notion that the legal trade is a racket.
An Australian judge, James Thomas, said of the Tudor period (1485-1603):
“With few exceptions, all officials, including judges, were … corrupt.”
In 1554, the Count of Egmont bribed every member of the Royal Council and advised Philip of Spain that “more could be done with money in England than anywhere in the world”.
Origins of the two legal systems.
Concealing evidence defeats truth. An English judge, William Cordell, first concealed evidence in 1577; he ruled in Berd v Lovelace that communications
between lawyers and clients were to be secret.
The Chancellor was a politician and sole judge of the Chancery Court. About
1650, a Chancellor, possibly Bulstrode Whitelock, ruled that in cases concerning disputed wills, the deceased estates, not clients, would pay lawyers. Chancellors then held hearings but did not finalise will cases for decades. Lawyers are still paid from deceased estates in will cases in NSW today.
In the 18th century, corruption and hypocrisy went hand-in-hand. After a new moneyed class emerged about 1700, several hanging offences were created to protect their property. Public executions became a spectator sport.
None of the corrupt Whig politicians who ran England for much of the century was charged, let alone hanged. Walpole, Prime Minister 1715-17 and 1720-42, said: “All these [politicians] have their price.”
The Duke of Newcastle was the Whig bagman for 38 years (1724-62,
and was Prime Minister 1754-56 and 1757-62. An Australian judge, Justice James Thomas, said Walpole or Newcastle appointed most judges between 1714 and 1760 and that 77% were politicians.
Lord Macclesfield, the Whig Chancellor 1718-25, took bribes of £5000 (c. £500,000 today) from barristers who sought appointment as Masters in the Chancery Court in order to get bribes from litigants. A barrister, Francis Elde, used a clothesbasket to convey the gold and banknotes to Macclesfield and his bagman, Peter Cottingham.
William Blackstone, a serial liar, opened the first law school at Oxford in 1758. Judge Posner said “the professsoriat” are part of the lawyer-judge cartel.
The Duke of Newcastle made Lord Mansfield Chief “Justice” in 1756. Mansfield held the job for 32 years and invented a lie, the greater the truth, the greater the libel.
Jennens v Jennens was a will case concerning an estate worth some $1.5 billion today; 32 Chancellors kept it going from 1798 until the estate was empty in 1915.
Only 36.6% of accused paid lawyers to defend them in 1795. Since then, a series of truth-defeating mechanisms – some noted above – have come into being, presumably to encourage rich criminals to pay lawyers.
A fluke of timing at about 5.20 pm on Saturday, June 14, 1800 gave Napoleon victory over Austria at the Battle of Marengo and ended the second (of seven) coalitions which England financed against France.
England did not put together another coalition until 1805. Napoleon thus had time to begin work on his monument, reform and codification of the inquisitorial
system. His system is now the most widespread, accurate and cost-effective.
Details of Marengo and how Napoleon fixed the law are in my book.
England was England yet. David Lloyd George (1863-1945), a lawyer, was Prime Minister 1916-22. He and his bagman, Maundy Gregory, took bribes for honours and for the Order of the British Empire which Lloyd George invented in 1917. He awarded 25,000 OBEs. Gregory sold some for the equivalent of £25,000 today.
Lloyd George gave the Liberal Party some of the money, and kept an estimated £150 million for himself. Gregory was charged in 1933 but was in a position to bargain; he could name those who paid for honours and OBEs. He got a nominal two months and a fine of £50. Lloyd George was not charged and was made an Earl in 1945.
It would be idle to believe that corruption ended with Lloyd George. Tax
expert Nicholas Shaxson said in April 2016: “London is the epicentre of so much of the sleaze that happens in the world. Usually there will be links to the City of London [Corporation], to UK law firms, to UK accountancy firms, and to UK banks.”
Lawyers infest English-speaking legislatures, but an Australian judge, Russell Fox, said the public knows that “justice marches with the truth”. The public, including taxpayers, can thus insist that politicians change to a truth-seeking legal system.
Evan Whitton studied History at the University of Queensland.
China Fangzheng Press has translated his eighth non-fiction book, ‘Our Corrupt Legal System’. The English text can be seen at a section of a site run by legal academic Dr Robert Moles: netk.net.au/Whitton/OCLS.pdf.