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John
O. McGinnis is the George C. Dix Professor in Constitutional Law at
Northwestern University. His book Accelerating Democracy was published
by Princeton University Press in 2012. McGinnis is also the coauthor
with Mike Rappaport of Originalism and the Good Constitution published
by Harvard University Press in 2013 . He is a graduate of Harvard College,
Balliol College, Oxford, and Harvard Law School. He has published in
leading law reviews, including the Harvard, Chicago, and Stanford Law
Reviews and the Yale Law Journal, and in journals of opinion, including
National Affairs and National Review.
McGinnis,
John O., Harvard Journal of Law & Public Policy - Jan 2003
LAWYERS
AS THE ENEMY OF TRUTH
In these brief remarks, I
will focus on a single aspect of the relationship between lawyers and
truth. I will discuss why the issue of truth in the legal system reveals
a fundamental tension between lawyers and the public. The public benefits
from truth-eliciting rules in the legal system, but lawyers can benefit
from truth-obscuring rules. Truth-eliciting rules are an important part
of the rule of law, because they assure that courts base legal decisions
on relevant factual states of the world. Unfortunately, lawyers often
have an interest in truth-obscuring rules because legal complexity and
uncertainty can be a source of business. Hence, we face a sad paradox:
the class that should be the great guardian of truth in law may instead
have the greatest interest in subverting it.
As a matter of intellectual history, it is not surprising that the search
for truth is an important part of the rule of law. We inherited both
the modern concept of the rule of law and the empirical sciences from
the Enlightenment, and both are similarly rooted in an ideal of objectivity.
The rule of law requires that society be governed by abstract legal
rules whose application is objective, in the sense that it does not
vary with the status or rank of the parties to a particular dispute.
The scientific idea of empirical truth is also objective in that the
real world is the same for everyone regardless of personal perspective
or social status. The alliance of these concepts seems clear from recent
postmodernist attacks on objectivity in both law and science.
Moreover, in the Anglo-American tradition similar modes of competition
have been used to facilitate the search for truth in both science and
law. Scientists seek the truth in a decentralized process of peer review,
in which rival colleagues test and critique each other's results. It
is only when a consensus emerges from the competing perspectives that
we accept a given finding as true. Similarly, we have rejected an inquisitorial
system of legal fact finding in favor of an adversarial system largely
because we fear the power of the centralized state to skew the truth.
Institutionalized conflict among self-interested individuals underlies
the validity of classic defenses of the adversarial system: "[cross-examination
is the] greatest legal engine ever invented for the discovery of truth."
(1) Our adversarial system is thus better than the alternatives because
it decentralizes accountability for truth seeking. Each litigant has
an incentive to ferret out the facts, no matter how uncomfortable those
facts may make the government or society at large.
Arbiters of truth, whether legal or scientific, need to be insulated
from direct government control. In the West scientists are rarely simply
government functionaries, but instead enjoy genuine independence through
employment at a network of universities and non-profit institutions.
Scientists are more likely to assess the world accurately because a
centralized authority does not directly govern their pursuits. Similarly,
we have separated the judiciary from the rest of the government and
provided federal judges with life tenure to increase the likelihood
that legal rules will be correctly applied without fear of political
retaliation.
The beneficial results of the Enlightenment have been as great in law
as in science. The rule of law, including truth eliciting rules, is
one of the greatest goods a society can enjoy. Coherence, clarity and
stability are the hallmarks of the rule of law. Indeed, by reducing
the number of uncertainties in our dealings with one another, the rule
of law generates wealth more pervasively than any single scientific
invention in human history. Truth-eliciting rules similarly facilitate
wealth creation by helping courts reach factually accurate decisions,
thus increasing both the predictability and effectiveness of law.
Unfortunately, one of the greatest obstacles to maintaining the rule
of law, including truth-eliciting rules, is the profound interest that
lawyers have in subverting it.
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