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Ok, I’m new to Objectivism and there are many things I don’t understand properly, so I’m not sure if this is actually correct, but from what I know now, I have the impression that a person with limited funds will have much less chances of winning his case if he is facing an opponent who has the means of affording good lawyers. Is this moral?
How would a poor person be able to have proper legal representation? If justice is valued by Objectivism, isn’t the fact that poor people can’t afford good lawyers a problem?

asked Sep 12 '14 at 05:27

Carl's gravatar image

Carl
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edited Sep 13 '14 at 10:51

Greg%20Perkins's gravatar image

Greg Perkins ♦♦
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For criminal cases, unless we are going to abandon the adversarial system, definitely. One who is accused of a crime has a right to a fair trial, and a trial in which one does not have any legal representation is not a fair one.

An adversarial system is probably the best one. In fact, there's a recent case (http://www.abajournal.com/news/article/no_prosecutor_no_defense_lawyer_judge_allegedly_held_trial_anyway) where a judge took it upon himself to hold a trial without any prosecutor or defense attorney, and I think it highlights how easy it is for such a trial to not be a fair one.

(Sep 24 '14 at 07:15) anthony anthony's gravatar image

For non-criminal cases, current US law already does not provide for guaranteed access to public legal aid. Rather, this is handled in other ways, such as cases being taken on a contingency basis, and fee-shifting statutes which allows the prevailing party to collect legal fees.

In terms of defending oneself for a non-criminal case, an uninsured and indigent individual generally isn't a defendant in a non-criminal case, since a judgement against them would be uncollectable anyway.

(Sep 24 '14 at 07:20) anthony anthony's gravatar image

"Ideas for Life" states that "government funding of anything presupposes that there is a source for the funds".

This is true. Of course, government funding of a criminal trial (not to mention execution of the punishment should the accused be convicted) also presupposes that there is a source for the funds. In fact, it's true of everything which the government does.

If a group of individuals, acting through a government, aren't willing or able to fund (or find volunteers willing to hold) a fair trial, then they may not rightfully hold any trial at all (nor execute any punishment).

(Sep 24 '14 at 07:23) anthony anthony's gravatar image

For a somewhat related topic, see http://objectivistanswers.com/questions/4040/is-trial-by-jury-a-valid-means-of-justice

The right of the accused to a defense attorney is similar to the right of the accused to a jury. The question of how to fund and/or gather individuals to act as defense attorneys is similar to the question of how to fund and/or gather individuals to act as jurors.

(Sep 24 '14 at 07:52) anthony anthony's gravatar image

I'd be interested in how those who identify as Objectivists and believe that jury-duty should be compulsory feel about forcing lawyers to enter into a defense attorney pool. Personally, I'm against both, though the case for the latter is probably actually stronger, if entering into the pool is a requirement for permission to appear before a court as a defense attorney (rather than a requirement merely for giving legal advice).

(Sep 24 '14 at 07:59) anthony anthony's gravatar image

Another possibility, which is perhaps more palatable, would be to have judges act as public defenders for trials held by other judges. But the potential for conflicts-of-interest might be too strong for that to be viable.

Still, having two different judges act as judge and defense attorney would be much more fair than having the same judge effectively act as both.

(Sep 24 '14 at 08:09) anthony anthony's gravatar image
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For anyone who is new to Objectivism, there is much that one can learn by checking various topics in The Ayn Rand Lexicon, which is readily accessible on-line (there is a link for it on every Q&A page of this website). For example:

  • On the Objectivist view of charity, refer to the topic of "Charity."
  • On the Objectivist view of property rights, refer to the topic of "Property Rights."
  • On the Objectivist view of physical force, refer to that topic.
  • On the Objectivist view of government and its very limited proper functions, refer to "Government."
  • On the Objectivist view of causality, refer to that topic.
  • On the Objectivist view of the metaphysically given versus the man-made, refer to that topic.
  • For a broad introductory overview of the entire philosophy of Objectivism, refer to "Objectivism."
  • On the Objectivist view of morality and values, refer to those topics.

On the issue of forced charity, here is a further excerpt from Ayn Rand's article, "Collectivized Ethics" (VOS Chap. 10):

Objectivists will often hear a question such as: "What will be done about the poor or the handicapped in a free society?" [...]

[A one-time leading Objectivist lecturer answered:] "If you want to help them, you will not be stopped."

This is the essence of the whole issue and a perfect example of how one refuses to accept an adversary's premises as the basis of discussion.

Only individual men have the right to decide when or whether they wish to help others; society—as an organized political system—has no rights in the matter at all.

Since nature does not guarantee automatic security, success and survival to any human being, it is only the dictatorial presumptuousness and the moral cannibalism of the altruist-collectivist code that permits a man to suppose (or idly to daydream) that he can somehow guarantee such security to some men at the expense of others.

Many today might ask: but aren't there always special cases that serve as exceptions to any general principle? Aren't principles inherently impossible to practice fully consistently? Accordingly, people respond to any statement of broad principle by vigorously searching for possible exception cases. They wonder if a discussion of charity would apply to legal aid, since legal aid is a different concrete than values like food, clothing, shelter, education, roads, bridges, transportation, the Post Office, the coining of money, and so on. The practicality of principles is addressed in the Lexicon under the topics of:

  • Moral-Practical Dichotomy
  • Soul-Body Dichotomy
  • Theory-Practice Dichotomy
  • Emotions; Subconscious; Reason

Basically, principles are impractical if they are derived from a mystic metaphysics and epistemology. They can be completely practical if derived from reality and reason, as they are in Objectivism. (In Objectivism, "derived" refers more to inductive generalization from observation than to deduction from prior premises, though still with logic as man's method of non-contradictory identification and integration.)

There is an entire philosophical tradition of mysticism, altruism, collectivism and statism that Objectivism opposes -- and an entire alternative trend of reason, egoism, individualism and capitalism that Objectivism upholds and carries to fully consistent completion.

As for legal aid, it is a man-made value, like so many others. Objectivism recognizes and upholds the rights (and causal efficacy) of those who create and make possible the values that man consumes. (Refer to "Consumption" in The Ayn Rand Lexicon.)

Along the same lines as the search for special exceptions, people sometimes also look at our society and political system as it is, and then ask: what would happen if one specific aspect of that system were to be changed as Objectivism advocates, while leaving the rest of the system intact? The answer is that Objectivism doesn't advocate making piecemeal changes out of context; a mixed system (mixing freedom and controls) isn't likely to work very well and may actually hasten the deterioration and final collapse of a society by leaving bad principles fully in place, waiting to resurface and grow again at any time. For example, why would there be a need for "legal aid" in a free society, differing in status from man's need for anything else?

Update: Government Financing

It should also be stated explicitly that government funding of anything presupposes that there is a source for the funds. Objectivism advocates voluntary government financing. Refer to "Taxation" in The Ayn Rand Lexicon.

answered Sep 14 '14 at 18:38

Ideas%20for%20Life's gravatar image

Ideas for Life ♦
467718

edited Sep 18 '14 at 00:26

General Principles

It is appropriate for a government in a free society to perform an activity if the following two criteria are satisfied: (1) the proposed activity does not violate anyone's individual rights, and (2) the proposed activity is instrumental to achieving the sole legitimate purpose of government—protecting individual rights.

If the proposed government activity violates rights by initiating force against innocents, then the government should not engage in the activity, no questions asked. Such actions are the exact opposite of what the government is supposed to do, and they directly generate substantial harm.

However, just because an activity is not rights violating, that does not mean that the government should engage in it. Some non-rights violating activities are inappropriate for the government to perform. In particular, the government should only engage in activities that are instrumental to achieving the legitimate purpose of government, which is ensuring the protection of individual rights.[1]

Application to Public Legal Aid

Government funded legal aid clearly would not violate individual rights in a free society, and thus the first criteria noted above is clearly satisfied.[2]

Whether or not the second criteria is satisfied with regard to legal aid is a more difficult question. Although I think that it may be possible for there to be some reasonable disagreement on the issue, ultimately, I think that public legal aid is instrumental to protecting individual rights, at least in the case of criminal prosecutions. A brief sketch of the arguments I find convincing in this regard follows.

In order to protect individual rights, the government must establish a justice system that includes courts to determine whether accused persons are guilty of a crime. Furthermore, in order for the government to effectively protect individual rights, the criminal justice system must be as just as it is practically possible to make it (meaning a system that achieves the correct result as often as possible). Because we are not omniscient nor infallible, achieving the correct result in every criminal case is by no means guaranteed. Thus, if the government is to be able to establish a just criminal justice system, the government will need to be able to establish objective institutions, rules, practices, and so on that are calculated to increase the likelihood of achieving correct results in criminal cases. Because such institutions, rules, practices, etc. are clearly instrumental to achieving a just criminal justice system, they are also instrumental to protecting individual rights. Thus, it would be acceptable for the government to establish such institutions, rules, practices, etc. that increase the likelihood of achieving correct results in criminal cases (always assuming, of course, that the first criteria is satisfied as well). Obviously, establishing such institutions, rules, practices, etc. often will include providing funding as necessary—for example, it costs money to provide a competent judge, to pay for jurors’ expenses, to provide a competent prosecutor, and so on.

Turning now specifically to legal aid, it seems indubitable to me that ensuring that all criminal defendants have some legal representation increases the likelihood of achieving just results in the criminal justice system.[3] If this is so, then by the above-noted analysis, it would be acceptable for the government to establish such institutions, rules, practices, or the like that would ensure that all criminal defendants have some legal representation. Accordingly, if it is not possible for some criminal defendants to obtain legal representation, whether by paying for it themselves or through private charity, then it would be acceptable for the government to pay for it.

The precise form of the institution, rule, practice, etc. that the government should establish to ensure that all criminal defendants have some legal representation is debatable, and will depend on the specific context of the free society we are hypothesizing. For example, if private charity in the free society is sufficient to cover the legal needs of all indigent criminal defendants, then there would be no need for the government to set up an elaborate public legal aid institution, and perhaps all the government would need to do is facilitate indigent defendants connecting with such private charities or something like that. Alternatively, if private charity is not sufficient to cover the needs of all criminal defendants, the government could simply hire private attorneys on an ad hoc basis for those defendants. Alternatively, if the number of times that it is necessary to hire a private attorney for a defendant is sufficiently high, it may be more efficient for the government to establish an institution comprising full time defense attorneys for indigent defendants funded by the government (i.e., what we commonly think of as public legal aid or “public defenders”). Given that we do not know the specific context of the hypothesized society, it seems rather fruitless to debate what the “best” institution would be. It suffices for purposes of this question to note that public legal aid is one possible answer that would not be forbidden to a proper government.

Note, however, that the above analysis does not justify public legal aid on the altruistic grounds of a duty to satisfy the "needs" of the indigent defendant. It may be true that legal representation is a value and that the indigent defendant needs this value, but the reason the government can legitimately provide this value has nothing to do with the defendant's needs. Instead, the justification is the government's mandate to protect individual rights by establishing a just criminal justice system. It is in nobody's best interest to have a government that convicts innocent people because it can't be bothered to spend the money required to fully develop the factual record. The very existence of an unjust criminal justice system is a threat to every citizen, even those who would never face the prospect of a criminal prosecution without representation--just because you yourself might not be at risk of wrongful conviction does not mean that you do not suffer harm from its occurrence, even if only by the loss of the value that otherwise potentially could have been provided to you by association with good people who were instead wrongfully put away.

  1. The reasons why the government should only engage in activities that are instrumental to protecting rights deserve an in-depth treatment. However, since this question is more narrowly focused on a specific issue (public legal aid), I will limit the discussion in this answer to a general outline. There are at least three reasons why the government should not perform activities that are not instrumental to protecting rights. First, government by its very nature is a force wielding institution—it holds the legal monopoly on the use of force. Thus, there is a danger any time the government acts that force or the threat of force will creep onto the scene, even if only implicitly. Second, the government simply is not well adapted to performing most activates—the private market can provide the activities much more efficiently. Thus, having the government perform the activities is simply wasteful. Third, some activities, although innocuous on their face, may create a conflict of interests or perverse incentives for the government which may ultimately lead to deleterious result. For example, government funded television, while not necessarily harmful in and of itself, could provide the perverse incentive for government propagandizing (e.g., pro-ecology children’s cartoons). As another example, government funded health care could perversely incentivize the establishment of rights-violating controls on the medical industry.
  2. In our current environment in which all government funding is coercively obtained (which is a rights violation), any proposed government spending program (such as for government-funded legal aid) is arguably at least an indirect rights violation. Such programs can only exist if they are funded, and they are funded only by rights violations—thus, the program results in rights violations, even if only indirectly. However, in the hypothesized free society, the government will not obtain its funding by way of rights violations. Therefore, in a free society a government funded legal aid program would not be a rights violation.
  3. Our present justice system is designed to be an adversarial system, in which each side attempts to present the facts and legal interpretations in the light most favorable to their side. The idea is that we are more likely to get to the truth of what really happened if each side has its strongest case put forward. In such a system, if one side cannot put forward its strongest case, we cannot be as confident that the ultimate decision will be correct. Clearly most defendants will not be able to present their best case without some legal representation, and thus in cases where the defendants do not have such representation we are less confident about the correctness of the results. Moreover, in the criminal justice system, the “adversary” of the defendant is not just another Joe-Shmo off the street—the adversary is the government. It is the government, with all its might and vast resources, that is prosecuting the criminal defendant. Further, the agent of the government in prosecuting the criminal defendant is a highly educated attorney who has trained and specialized, day in and day out, in putting defendants behind bars. Unfortunately, the law and the justice system are such that it is possible for a skilled and knowledgeable prosecutor to manipulate them in such a manner that innocent persons can be convicted, and often are. Of course, we can hypothesize that in a free society hopefully the laws and the system will be improved, making such manipulations more difficult. However, I do not believe that even then such manipulations can be completely prevented. Moreover, even if we set aside deliberate manipulations, the sheer one-sidedness of a proceeding in which a skilled prosecutor faces off against an all-too-often unsophisticated defendant is enough to bring into question whether any result from such a proceeding is correct. Even if we postulate that the prosecutor presents only true evidence and legitimate interpretations of the law, that still does not ensure that the proceeding will achieve the correct result. For example, it may be clear that a defendant did commit a crime, but the defendant may have an affirmative defense available to them or other mitigating circumstances, which, if established, would exculpate the defendant or perhaps at least reduce the severity of the sentence. In such a case, it is possible for the prosecutor to objectively prove that the defendant committed each of the elements of the crime without falsifying evidence or distorting the law. However, the prosecutor does not need to put forward evidence about, or even mention, the affirmative defense or mitigating circumstances—those are the responsibility of the defendant to prove. However, if the defendant is unsophisticated and not represented by an attorney, they may not even know that the affirmative defense or mitigating circumstances are available to them, much less how to go about proving them to a jury, much less having the ability to present such proof in a convincing manner. In such a case, the defendant may wrongly be convicted without the prosecutor ever presenting false evidence or bad legal interpretations, the wrong conviction instead stemming from an incomplete factual record, which in turn stemmed from the one-sidedness of the proceeding, which in turn stemmed from the lack of legal representation for the defendant.

answered Sep 17 '14 at 10:48

ericmaughan43's gravatar image

ericmaughan43 ♦
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edited Sep 17 '14 at 12:37

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Asked: Sep 12 '14 at 05:27

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Last updated: Sep 24 '14 at 08:15