THE ETHICS IN LEGAL ETHICS

THE ADVERSARY SYSTEM EXCUSE

1. INTRODUCTION

1.1. The Adversary System and Neutral Partisanship in Legal Ethics

In 1831, Samuel Taylor Coleridge voiced his concerns about the ethical limits of advocacy,
suggesting that an advocate should not do for a client what the client, in foro conscientiae (in
the court of conscience), has no right to do for themselves. Coleridge’s perspective
underscores a fundamental moral tension in legal representation: the idea that an advocate’s
duties are bounded not only by law but also by personal morality. Thirteen years later, William
Whewell elaborated on this view, arguing that every individual, by virtue of being a moral
agent, has a duty to judge right and wrong independently. According to Whewell, a lawyer
cannot discard their moral agency upon assuming their professional role; to do so would be
to act immorally. If a lawyer prioritizes professional success over personal morality, Whewell
argues, they “make the Moral Rule subordinate to the Professional Rule” and risk “selling
themselves” in the pursuit of being a successful lawyer rather than a good person.

Despite these early criticisms, Whewell’s position—that lawyers should retain their moral
agency even in professional settings—is largely disregarded in contemporary legal ethics.
George Sharswood, whose 1854 treatise Legal Ethics laid the foundation for modern ethical
standards in law, argued that a lawyer who refuses representation based on a personal
judgment about the case’s morality “usurps the functions of both judge and jury.” For
Sharswood, it is not the lawyer’s role to judge the justice of a client’s cause; such a decision
is for the legal system, not the lawyer. This perspective—now enshrined in the ethical
standards governing legal practice—implies that a lawyer’s personal morality is distinct from,
and should not interfere with, their professional responsibilities.

This separation of personal morality from professional duties is a cornerstone of what Murray
Schwartz terms the Principle of Nonaccountability, which states that “when acting as an
advocate for a client … a lawyer is neither legally, professionally, nor morally accountable for
the means used or the ends achieved.” According to this principle, a lawyer’s ethical
accountability is limited to compliance with legal and professional standards, not the moral
implications of the client’s goals or methods. Complementing this is Schwartz’s Principle of
Professionalism, which mandates that “a lawyer must, within the established constraints
upon professional behavior, maximize the likelihood that the client will prevail.” Together,
these principles form the basis of the professional morality commonly associated with legal
practice.

Philosophers of legal ethics, such as Gerald Postema and William Simon, have explored these
principles, with Simon naming them the Principle of Neutrality (the lawyer’s detachment from
the client’s moral purposes) and the Principle of Partisanship (the lawyer’s duty to advocate
zealously for the client). This framework, often referred to as Neutral Partisanship, defines
what Simon calls “partisan advocacy.” Under this view, the lawyer’s role is that of a neutral
advocate, pursuing the client’s interests without moral judgment and with maximal
dedication.

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However, shortly after introducing these principles, Schwartz raises potential challenges to
this model. First, he suggests that the law’s endorsement of certain actions as “legal” does
not necessarily make those actions morally acceptable; legality and morality are distinct, and
the law cannot convert an immoral act into a moral one merely by declaring it permissible.
Second, Schwartz questions whether the Principle of Nonaccountability can genuinely shield
lawyers from moral responsibility if it relies on the ethical legitimacy of the adversary system
itself. If the adversary system is morally flawed, then the moral justification for lawyers’
nonaccountability within that system may be undermined. Thus, Schwartz hints at a deeper
issue: the moral defensibility of the adversary system as a whole, and whether the ethical
immunity that lawyers claim within it can withstand scrutiny if the system itself is morally
suspect. If either of these challenges proves persuasive, the foundational justification for
Neutral Partisanship, and the idea that lawyers can remain morally detached from their
clients’ causes, may collapse, forcing a reconsideration of the moral accountability inherent
in the lawyer’s role.

2. THE ADVERSARY SYSTEM EXCUSE

In this chapter, the author confronts the ethical implications of the adversary system and its
role in supporting the principle of lawyer nonaccountability—an idea raised by Murray
Schwartz but left unresolved in his analysis. The goal here is to critically examine the extent
to which the adversary system can justify the ethical position that lawyers bear no moral
responsibility for the actions they take on behalf of their clients.
The argument proceeds in three steps:
1. Nonaccountability Depends on the Adversary System: The first claim is that a
lawyer’s nonaccountability—the ethical stance that lawyers are not morally
responsible for the means and ends pursued on behalf of clients—is indeed rooted in
the adversary system. The adversary system assumes that each side will present its
case as vigorously as possible, leaving it to an impartial judge or jury to make the final
judgment. Under this model, lawyers are viewed as agents of a procedural mechanism
that ostensibly produces just outcomes when each side is fully and zealously
represented. Thus, nonaccountability relies on the premise that the lawyer’s role is
only one part of a larger process designed to reveal the truth or achieve justice.

2. The Adversary System is Insufficient to Justify Nonaccountability: However, the

author argues that the adversary system alone cannot fully justify the principle of
nonaccountability. Simply participating in an adversarial process does not absolve
lawyers of moral responsibility, because the system itself is not inherently moral. The
adversary system is designed to prioritize procedural fairness, but it does not
guarantee that the outcomes it produces are morally or ethically sound. This raises a
significant problem: if the adversary system does not necessarily produce just or moral
outcomes, then a lawyer’s detachment from the morality of their client’s goals cannot
be justified solely by their role within this system. Nonaccountability cannot rest on
the adversary system as a moral foundation if the system itself lacks a solid moral
basis.

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 3. The Principle of Professionalism May Hold, But Not the Principle of
Nonaccountability: As a consequence, while the Principle of Professionalism—which
requires lawyers to advocate zealously within the bounds of the law—may still be
valid, the Principle of Nonaccountability is not. Professionalism demands dedication
to the client’s case within legal limits, but it does not necessitate moral detachment
from the client’s actions or objectives. Lawyers may still be professionally obligated to
advocate vigorously for their clients, yet this obligation does not exempt them from
moral responsibility for their choices in advocacy. Therefore, the idea that
professional duty can override a lawyer’s personal moral conscience is flawed.

By dismantling the ethical foundation of nonaccountability, the author defends the “morality
of conscience”, the perspective championed by Coleridge and Whewell. Coleridge and
Whewell argued that lawyers, as moral agents, cannot and should not abandon their own
ethical judgment simply by assuming a professional role. If the adversary system cannot
justify moral detachment, then the lawyer’s professional obligation cannot override their
personal conscience. This challenges the prevailing view in legal ethics that the lawyer’s role
as a zealous advocate permits moral neutrality, asserting instead that lawyers retain moral
accountability for their actions, regardless of their participation in the adversary system. In
doing so, the author reasserts the importance of individual moral judgment in legal practice,
challenging the notion that professional duty alone can absolve lawyers of ethical
responsibility.

3. INSTITUTIONAL EXCUSES

In this section, the author examines the concept of institutional excuses, the idea that a
person’s conduct, which would ordinarily be deemed morally culpable, can be justified by
their role within a particular social institution. The discussion begins with a notable example:
Richard Helms, former CIA director, lied to Congress about U.S. involvement in the Chilean
coup of Salvador Allende. When Helms was prosecuted for perjury, his defense hinged on the
claim that national security required him to lie. Although his case never went to trial, his
lawyer, Edward Bennett Williams, used a tactic known as graymailing by demanding classified
information for Helms’s defense, which forced the government to settle on a lesser charge,
Helms’s justification parallels the defense that his lawyer could have given for his own actions.
Just as Helms claimed he was protecting national security, Williams could argue that he was
simply fulfilling his role as a defense attorney, advocating for his client by any available legal
means. In this way, Helms and Williams both rely on institutional excuses to justify morally
questionable actions: Helms as a “good soldier” for the CIA, and Williams as a zealous
advocate for his client.

The issue of institutional excuses arises again in another example of graymail, this time
involving a corporate merger case where attorneys threatened to shut down a plant and lay
off workers to pressure the Federal Trade Commission (FTC) into approving an otherwise
illegal and anticompetitive merger. Acting on the lawyers’ advice, the companies gradually
laid off employees until the FTC relented under political pressure, allowing the merger to
proceed. Here, as in Helms’s case, the lawyers might justify their actions by invoking the
professional duty to represent their clients’ interests zealously, even when it involves morally

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dubious tactics. Such tactics, while troubling, are often defended by invoking what Lord Henry
Brougham famously articulated in 1820: that “an advocate, in the discharge of his duty, knows
but one person in all the world, and that person is his client.” According to Brougham, an
advocate’s sole duty is to save their client “by all means and expedients, and at all hazards
and costs to other persons,” disregarding any harm this might cause to others or to society
itself.

Brougham’s statement encapsulates the extreme version of the lawyer’s duty of loyalty, but
it invites deep philosophical scrutiny. It seems to defy common moral theories: from a
utilitarian perspective, it is implausible to argue that the client’s welfare should outweigh the
welfare of everyone else; from a Kantian or rights-based perspective, Brougham’s dictum
appears to reduce others to mere means for the client’s ends, ignoring their inherent moral
worth. Even religious moral frameworks, such as the Golden Rule or the Biblical command to
“love your neighbor as yourself,” are at odds with Brougham’s idea that the advocate should
focus exclusively on the client to the exclusion of others’ well-being.

Nevertheless, defenders of Brougham’s position argue that the role of the lawyer, established
by the adversary system of justice, can “repair” the ordinary moral rules, relaxing some moral
obligations and imposing new ones. An Australian appellate court has affirmed this notion,
claiming that the adversary system “necessarily imposes upon those who practice advocacy
duties which have no analogies” in other fields, and that strict adherence to these unique
duties is essential to the functioning of the justice system.

The central question posed by the author is whether the adversary system truly justifies this
kind of moral exceptionalism. Do institutional excuses hold up under scrutiny, and can they
morally exonerate conduct that would otherwise be condemnable? This question extends
beyond the legal profession to other roles within social institutions, raising the issue of
whether an individual can appeal to their institutional role to excuse actions that would be
deemed morally wrong if performed by someone outside that role.

In some cases, society accepts institutional excuses, for instance, a soldier killing an enemy in
wartime is not viewed as a murderer, while the same act in civilian life would be a criminal
offense. However, there are other roles, such as that of a concentration camp commandant
or a professional strikebreaker, where institutional excuses are insufficient; the role itself is
so morally repugnant that it implicates the person who performs it.

This suggests that for an institutional excuse to be valid, the institution itself must be morally
justified. Yet the author contends that even this is not a complete answer; the type of
justification that can be offered for the institution also matters. Thus, the success of an
institutional excuse depends not only on the legitimacy of the institution but on the kind of
moral reasoning that supports it. This raises further questions about whether the adversary
system provides the right kind of justification to absolve lawyers of moral accountability,
challenging the assumption that professional duty within the adversary system can override
personal moral obligations.

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4. THE ADVERSARY SYSTEM AND THE TWO PRINCIPLES

In the practice of law, there are times when a lawyer’s commitment to zealously advocating
for their client leads them to engage in morally questionable actions. Examples
like graymailing, using threats of revealing classified information to compel the government
to drop charges, or the infamous Lake Pleasant bodies case, where lawyers Frank Belge and
Frank Armani withheld information about murder victims’ locations, starkly illustrate the
lengths to which lawyers may go to protect their clients. These extreme cases highlight an
ethical dilemma at the heart of legal advocacy: lawyers are often compelled to pursue their
client’s interests even when doing so causes harm to others or violates personal moral
intuitions.

The ethical justification for this duty of zealous advocacy is rooted in the ideals of
the adversary system. Lawyers are expected to pursue their clients’ interests to the full extent
permitted by law, even if it results in “alarm, torments, or destruction” for others, as Lord
Henry Brougham famously put it. This ethic of loyalty resembles Nietzsche’s description of
the old Teutonic code—loyalty for its own sake, even “for evil and dangerous things.” The
American Bar Association’s (ABA) Model Rules of Professional Conduct enshrine this principle
by instructing lawyers to act with “commitment and dedication to the interests of the client”
and to “take whatever lawful and ethical measures are required to vindicate a client’s cause.”
Importantly, the terms “lawful and ethical” in this context refer only to compliance with the
rules of professional conduct, not to any independent moral principles. The ABA Model Rules
clarify that a lawyer’s representation does not imply endorsement of the client’s moral,
political, or social views, a version of Schwartz’s Principle of Nonaccountability, which
absolves lawyers of moral responsibility for the outcomes they help achieve. “Lawful,” too, is
a double-edged concept: the same rules intended to prevent abuses of power may be used
by lawyers to manipulate legal proceedings, such as through discovery abuse or strategic
conflicts-of-interest claims. In the words of Judge Marvin Frankel, the objective is often to
“beat every plowshare into a sword,” turning procedural safeguards into tools of obstruction
and manipulation. This double-edgedness of law means that lawyers push right up to, and
sometimes beyond, the margin of legality, disregarding the “spirit” of the law in favor of
narrowly defined legal limits.

The adversary system is often invoked as the institutional excuse that justifies this moral
ruthlessness. Under the adversarial model, each party in a dispute is represented by an
advocate whose sole duty is to present their side as vigorously as possible, while an impartial
judge or jury evaluates the arguments and evidence. The 1969 ABA Code of Professional
Responsibility explicitly links a lawyer’s duty to their client with their duty to the legal system,
stating that both are fulfilled by representing the client “zealously within the bounds of the
law.” According to this framework, any restraint on a lawyer’s zeal would supposedly weaken
the adversarial process itself, which relies on strong, unqualified advocacy to reveal the truth
and achieve justice.

This Justification by the Adversary System is more than a simple argument; it operates as an
unquestioned presupposition within the legal profession. Many lawyers, even those who view
legal ethics with cynicism, reflexively rely on the adversary system to justify their conduct.
The author captures this phenomenon by describing how even the most pragmatic attorneys,

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when pressed about ethical concerns, “retreat” into the adversary system as a moral defense,
invoking its rhetoric as though it provides complete absolution. The problem is that these
discussions often stop at the invocation of the adversary system rather than critically
examining whether it actually justifies the moral latitude lawyers claim.

To better understand the ethical implications of the adversary system, it is useful to

distinguish between narrow and wideconceptions of this model. In the narrow sense, the
adversary system is defined by three core elements: an impartial tribunal with a defined
jurisdiction, formal procedural rules, and a structure where each party is responsible for
presenting its own case and challenging the opponent’s. Within this framework, lawyers have
a duty of partisan zeal in advocating for their clients, supported by collateral duties such as
disinterestedness (e.g., avoiding conflicts of interest) and confidentiality. These obligations,
often called the Three Pillars of Advocacy, are meant to ensure strong representation for each
side, thereby enhancing the quality of the adversarial process.

According to the narrow conception, Schwartz’s Principle of Professionalism (the duty to

advocate zealously) and Principle of Nonaccountability (the lack of moral responsibility for
client goals) are both justified within the structure of adversarial adjudication. If a lawyer were
to limit their zeal based on personal moral objections, they would, in theory, undermine the
adversarial process by not fulfilling their assigned role. Thus, the adversary system seems to
necessitate nonaccountability: if lawyers held themselves morally accountable for the
consequences of their advocacy, they would feel compelled to restrain their zeal in cases
where they find the client’s ends objectionable. The logic is that the adversary
system requires lawyers to suspend personal moral judgment to function effectively, thereby
providing an institutional excuse for their conduct.

However, this justification is valid only within the narrow context of adjudication. In practice,
lawyers often extend Schwartz’s principles to non-litigation contexts, such as negotiations,
counseling, and transactional work, where the adversary model does not apply in the same
way. By equating these non-courtroom roles with courtroom advocacy, lawyers invoke the
adversary system in a wide sense, treating all client interactions as if they required the same
degree of moral detachment and zeal. This equivocation allows lawyers to claim moral
immunity even in situations that do not involve a true adversarial process, effectively
broadening the scope of their institutional excuse.

The author suggests that this uncritical extension of adversarial principles to all aspects of
legal practice is problematic. If the justification for nonaccountability is shaky even within the
narrow confines of the courtroom, it becomes even less defensible outside of it, in areas of
legal work that do not inherently require adversarial advocacy. Thus, before accepting the
adversary system as a blanket justification for moral nonaccountability, we must critically
examine whether it actually warrants the ethical exemptions lawyers claim, especially when
they apply these principles to non-adjudicative roles. The author implies that such
unexamined assumptions about the adversary system often serve as a rhetorical shield rather
than a robust ethical foundation, raising serious questions about the moral responsibilities
that lawyers owe to society, both inside and outside the courtroom.

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5. CRIMINAL VERSUS NONCRIMINAL CONTEXTS

The author argues that the adversary system excuse, the justification that the adversary
system permits morally questionable actions by lawyers in service to their clients, may be
valid only to the extent that the adversary system itself is justified. Yet, discussions of this
system often fail to critically assess its effectiveness or moral foundations, treating any
skepticism toward the adversary model as an attack on fundamental American values.
Monroe Freedman’s Lawyers’ Ethics in an Adversary System exemplifies this tendency:
Freedman defends practices such as putting a perjurious client on the stand or aggressively
cross-examining a truthful witness by appealing to the adversary system as a protector of
individual liberty. For Freedman, these tactics safeguard criminal defendants against potential
state overreach, encapsulating the idea that a strong criminal defense is essential to protect
individual rights, even if it occasionally results in guilty people going free.

While Freedman’s defense of zealous advocacy is compelling within the criminal context, the
author contends that it does not provide a general justification for the adversary system.
There are two main reasons for this. First, Freedman’s argument pertains only to criminal
defense, whereas the vast majority of legal cases are civil matters. In criminal cases, a vigorous
defense may lead to a lighter sentence or an acquittal, but it does not inflict tangible harm on
specific individuals. However, in civil litigation, where one party’s gain is another’s loss, the
lawyer’s duty to zealously advocate for a client can result in direct harm to others. If, for
example, a lawyer helps a client win an undeserved personal injury claim, every dollar
awarded to the client is taken from the defendant. Thus, while zealous advocacy in criminal
defense primarily impacts the state, in civil cases it directly harms other private parties, raising
distinct ethical concerns that are not addressed by Freedman’s argument.

Second, criminal defense is an exceptional case in which the adversary system serves a unique
political purpose. The primary goal of zealous advocacy in criminal defense is not to achieve
abstract justice, but rather to limit the state’s power over individuals. The adversary model in
criminal law is designed to place significant burdens on the state to prevent wrongful
convictions and safeguard civil liberties. This goal, impeding the state’s power in the interest
of protecting individual freedom, justifies practices that might otherwise be seen as
obstructing justice. In criminal defense, Brougham’s maxim that a lawyer should disregard the
“torments or destruction” caused to others may be appropriate because the fundamental
purpose is to ensure that the state cannot overreach. This logic does not apply, however, to
civil litigation, where the adversary system is intended to distribute justice between private
parties rather than protect citizens from government power.

Using Aristotle’s terminology, one might say that the “final cause” of the adversary system
differs between criminal and civil cases. In civil cases, the primary objective is legal justice,
assigning rights, liabilities, and remedies based on adherence to legal norms and principles.
Here, the adversary process is expected to produce accurate representations of fact and fair
applications of law. In criminal cases, by contrast, the system is as concerned with protecting
the rights of the accused as with establishing guilt or innocence. The criminal justice system
aims to safeguard life, liberty, and property from wrongful state interference, not only from
criminal actors. Thus, in criminal proceedings, the adversary model prioritizes a “margin of
safety” against state overreach, making criminal justice distinct from general legal justice. This

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distinction highlights that the adversary system’s rationale in criminal contexts does not
necessarily transfer to civil cases.

The author also notes that certain noncriminal contexts, such as administrative proceedings
with severe consequences (e.g., deportation hearings), may require similar protections
against state power. In these quasi-criminal cases, the individual faces serious threats from
government action, so a strong adversarial defense may be warranted to prevent abuse. Thus,
the term “criminal context” should be understood to encompass these quasi-criminal
scenarios as well.

Focusing on the adversary system’s role in criminal defense can obscure the broader question
of its function as a system of justice in noncriminal contexts. The author proposes that a
proper assessment of the adversary system should consider its performance in achieving
justice, particularly in civil cases where the state is not a party. The author suggests two types
of arguments for the adversary system’s value in this broader context: consequentialist
arguments, which claim that the adversary system best achieves desirable outcomes, and
nonconsequentialist arguments, which assert that it is intrinsically just. The author intends to
examine three consequentialist defenses of the adversary system:

1. The adversary system as the best method for discovering truth: One argument is that
the adversarial model, by allowing each side to present evidence and challenge the
opposition’s claims, provides the most reliable path to uncovering the truth.
2. The adversary system as a defender of legal rights: Another argument is that
adversarial procedures are the most effective way to ensure that individuals’ legal
rights are protected, giving each party a fair chance to make their case.
3. The adversary system as a check on excesses: Finally, the adversary system is said to
establish checks and balances that guard against abuses of power and ensure that no
single party dominates the process.

By analyzing these arguments, the author seeks to determine whether the adversary system
genuinely serves justice in noncriminal contexts or whether it merely provides a convenient
excuse for morally questionable legal practices. This inquiry is essential for understanding the
limits of the adversary system as a justification for the principles of zealous advocacy and
lawyer nonaccountability, especially outside the unique context of criminal defense.

6. CONSEQUENTIALIST JUSTIFICATIONS OF THE ADVERSARY SYSTEM

6.1. Truth
One common defense of the adversary system is that it serves as the best method for
uncovering the truth. However, this justification is far from certain and raises complex
empirical questions that are difficult, if not impossible, to answer conclusively. Unlike a quiz
show where the "right answer" is revealed at the end, trials don’t provide a way to verify
whether the final decision reflects the actual facts. We rarely have an opportunity to learn
the true details of a case after a verdict, so it’s challenging to determine how effective the
adversary system truly is at arriving at the truth.

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Most empirical investigations into this question are limited to laboratory simulations, such as
those conducted by social psychologists Thibaut and Walker. These experiments attempt to
model the adversary and inquisitorial systems, but their results are inconclusive and limited
by the inherent differences between controlled simulations and real-world trials. Their
findings indicate that each system may be better at finding the truth in different types of
cases, and that participants in these simulations are often unable to judge which system is
more effective in a given situation. If there were a significant advantage to one system over
the other, we might expect this to be widely recognized after centuries of comparative legal
practice. However, this hasn’t happened, suggesting that neither system has an obvious
superiority in truth-finding.

Since empirical evidence is sparse, most arguments defending the adversary system’s truth-
finding capacity are theoretical. A common theoretical defense posits that the adversary
process promotes truth through a dialectic similar to Karl Popper’s philosophy of scientific
inquiry, where conjectures are put to the test through attempts at refutation. In the adversary
system, each side presents its strongest case while attempting to undermine the other’s
arguments, theoretically resulting in a comprehensive presentation of the facts for the fact-
finder.

However, this analogy to Popperian science has significant flaws. In scientific inquiry,
researchers do not deliberately withhold evidence or present conjectures they know to be
false. By contrast, lawyers in the adversary system are expected to present the facts in a way
that best supports their client’s case, often by suppressing unfavorable evidence or
manipulating context to downplay damaging facts. The adversarial process assumes that
these opposing accounts will "cancel out" to reveal the truth, but there’s little reason to
believe this actually happens. Rather than clarifying the facts, the process may simply add
layers of confusion.

This problem is particularly evident in cases involving subjective determinations, such as

assessing someone’s sanity or mental state. Here, each side often brings in expert witnesses,
such as psychiatrists, whose testimony is shaped and influenced by the lawyers who hire
them. Lawyers may subtly bias these experts by initially presenting only favorable facts,
leading the expert to discount contradictory evidence later. Cross-examination, intended as
a tool for uncovering the truth, may not help much, as trial tactics often include restricting
the witness’s ability to explain answers or disrupting the opposing counsel’s arguments to
maintain control over the narrative. Such tactics, while effective in adversarial terms, are not
conducive to uncovering the full truth.

The adversary system can work well for finding the "truth" in the context of purely legal
questions—for instance, appellate arguments on points of law, where no new evidence is
introduced. In these settings, lawyers debate the interpretation of established facts within a
controlled record, which closely resembles Popper’s model of rigorous dialectic. By
presenting opposing legal arguments without the need to obscure or manipulate factual
evidence, the adversary system can genuinely aid judges in reaching well-considered legal
conclusions. Judges often attest that strong legal advocacy improves the quality of their
decisions by ensuring that all relevant legal arguments are thoroughly examined.

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In contrast, adversarial fact-finding suffers from its reliance on tactics designed to obscure or
distort facts. Lawyers are often incentivized to keep damaging information out of the record
entirely, and their "finesse and art" in doing so runs counter to the goal of comprehensive
fact-finding. As a recent innovation in the American legal system illustrates, allowing jurors to
directly question witnesses has provoked criticism from lawyers who argue that it disrupts
their carefully crafted strategies for controlling the information presented. These lawyers
lament that juror questions undermine their efforts to exclude unfavorable evidence,
highlighting a fundamental contradiction: while the adversary system claims to seek truth,
lawyers often operate in ways that intentionally restrict the flow of information to fact-
finders.

In some cases, adversarial tactics go beyond obscuring facts and actively prevent cases from
reaching fact-finding stages. Defense lawyers for corporate clients, for example, may use
procedural delays or intimidation tactics to exhaust the opposing party’s resources and force
them to drop legitimate claims. A notorious example is the litigation surrounding the Dalkon
Shield, a defective contraceptive device that caused serious harm to thousands of women.
Lawyers for the manufacturer, A.H. Robins, employed aggressive deposition tactics, asking
invasive and humiliating questions about plaintiffs' personal lives to intimidate them into
abandoning their lawsuits. Similarly, SLAPP suits (Strategic Lawsuits Against Public
Participation) are filed by corporations not to win on the merits, but to silence critics by
burdening them with prohibitive legal costs. These cases show that the adversary system not
only tolerates but sometimes encourages practices that actively prevent the truth from
emerging.

Interestingly, there is a marked contrast in ethical rules when it comes to legal arguments
versus factual ones. Lawyers are required to disclose adverse legal authority to the court if
it’s relevant to the case, even if it undermines their client’s position. This rule ensures
transparency and aids judges in reaching sound legal conclusions. However, no comparable
rule requires lawyers to reveal unfavorable facts about their client’s case. This discrepancy
underscores the difference between adversarial legal argumentation, which aims at clarity,
and adversarial fact-finding, which often involves obfuscation.

One sophisticated defense of adversarial fact-finding comes from Lon Fuller and John Randall
in their 1958 Joint Conference Report. They argue that partisan advocacy, despite its apparent
bias, is ultimately more effective at uncovering the truth than inquisitorial systems, because
it is psychologically impossible for a single judge to impartially represent both sides of a case.
The judge, they claim, would be unable to develop equally strong arguments for each side
without becoming personally biased. By assigning lawyers to each party, the adversary system
avoids this problem and ensures that each side’s case is presented in its strongest form.

However, this argument is flawed. It assumes that the strongest versions of opposing
arguments necessarily lead to a balanced picture, but exaggerations, strategic omissions, and
misleading implications can distort the fact-finding process. Furthermore, Fuller's argument
proves too much: if it is psychologically impossible for a judge to fairly consider opposing
perspectives, then it should be equally impossible for a lawyer to objectively anticipate and
counter the opposing side’s arguments, yet this is a skill lawyers routinely employ.

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The Joint Conference Report also suggests that adversarial proceedings prevent premature
conclusions by "holding the case in suspension" between two opposing interpretations, and
that inquisitorial judges may suffer from cognitive dissonance, sticking with initial theories
even when evidence contradicts them. While cognitive dissonance is a real psychological
phenomenon, it doesn’t imply that the adversary system is inherently superior. Many
inquisitorial systems use multi-judge panels, which mitigate individual biases by allowing
other judges to check each other's assumptions.

In the end, the adversary system’s approach to fact-finding is based not on an objective
standard of truth, but rather on presenting the facts "from the standpoint of the client’s
interest." This is fundamentally different from uncovering the truth from an impartial
perspective. A lawyer's duty is to present facts in the most favorable light for the client, not
to pursue an objective account of events. This bias undermines the adversary system’s claim
to be an effective truth-finding mechanism, as it often leads to distorted narratives shaped
by strategic interest rather than factual accuracy.

In conclusion, while the adversary system may have some merit in the context of legal
argumentation, its effectiveness as a fact-finding mechanism is dubious. Theoretical
justifications based on dialectical inquiry fail to account for the adversarial system's incentives
to obscure and manipulate evidence. The system’s defenders lack empirical evidence to
substantiate the claim that adversarial fact-finding is superior to alternatives, leaving the
adversary system’s truth-finding function largely unsupported. Ultimately, the adversary
system may be “as good as its rivals,” but we simply lack the evidence to claim that it reliably
achieves justice by uncovering the truth.

6.2. Legal ethics

A common defense of the adversary system is that it serves not necessarily to uncover the
truth, but rather to protect individuals’ legal rights. This argument holds that the best way to
safeguard a person’s rights within a legal dispute is to provide them with a zealous advocate
dedicated to pursuing their interests. The lawyer’s duty is not merely to seek a just outcome,
but to fight for everything the law can provide on behalf of the client. This form of
representation is seen as the most effective means of defending legal rights, even if it
sometimes involves morally questionable tactics.

This argument is subtly different from the one advanced by Monroe Freedman, who contends
that zealous advocacy itself is a constitutional right, integral to the adversary system and to
due process. Freedman suggests that the right to counsel implicitly requires a right to
adversarial representation—making the adversary system itself a constitutional value.
However, the U.S. Constitution does not explicitly enshrine the adversary model; it only
guarantees the right to counsel under the Sixth Amendment for criminal defendants. Courts
have acknowledged that due process can be satisfied even in non-adversarial proceedings, as
seen in the history of U.S. equity courts, which operated under non-adversarial procedures
until the early twentieth century. Thus, while adversarial advocacy is deeply embedded in
American legal practice, it is not constitutionally mandated in the way Freedman implies.

The argument we are considering here is not that adversary advocacy is a right in itself, but
rather that it is instrumentally valuable—that the adversary model is the most effective

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mechanism for defending individuals’ legal rights. The rationale is that a zealous advocate,
committed to obtaining everything the law might provide for the client, best protects the
client’s legal entitlements. By maximizing the client’s position within the bounds of the law,
the lawyer supposedly ensures that all of the client’s rights are fully defended.

However, this argument rests on a crucial confusion. Legal rights refer to what individuals are
actually entitled to under the law, not to everything they can potentially obtain through legal
maneuvering. A skilled lawyer may be able to secure outcomes for a client that exceed what
they are legally entitled to, often by exploiting loopholes or intimidating opponents into
settling. But this is not defending the client’s rights; rather, it involves infringing on the
opposing party’s rights. Tactics like the “dirty questions list” in the Dalkon Shield litigation or
the use of SLAPP suits are strategies that serve to undermine an opponent’s legal entitlements
rather than protect the client’s rights.

One might respond that the adversary system should be viewed in aggregate: while an
individual lawyer may not directly defend legal rights, the overall clash of two zealous
advocates supposedly produces an outcome that respects and upholds legal rights. However,
this reasoning is unpersuasive. The analogy to the “Invisible Hand” in economics, that the
competition between self-interested parties will produce beneficial outcomes, does not
necessarily apply in the legal realm. Every technique a lawyer learns in advocacy is aimed
at winning, regardless of where the legal right truly lies. Whether through procedural
maneuvers, graymailing, disqualification of opposing counsel, or distorting facts through
selective presentation, the goal is victory, not justice. Winning a legal battle, like winning a
physical duel, does not establish that the winning side was legally or morally correct; it only
demonstrates tactical superiority.

Moreover, the way lawyers themselves view their profession undermines the idea that they
are focused on defending clients’ legal rights. Lawyers often measure success by their win-
loss records or the size of the judgments they obtain, rather than by the fairness or justness
of the outcomes. Legal publications celebrate attorneys with impressive strings of victories or
record-breaking settlements, as if these achievements inherently validate the lawyers’ roles
as defenders of justice. This focus on outcomes rather than rights suggests that lawyers are
motivated by the pursuit of client interests, not by a commitment to uphold objective legal
entitlements.

From a systemic perspective, guaranteeing clients’ legal rights could theoretically be achieved
by assigning each party a less partisan advocate, tasked with ensuring that both sides’ rights
are protected, rather than aggressively pursuing one side’s interests. Such a model might
more effectively balance the rights of all parties involved. While this is not necessarily a
recommendation, it illustrates that the adversary system is not the only conceivable method
of safeguarding legal rights, and we have no reason to believe that it is the most effective one.
The core objection to the adversary system as a defender of legal rights is that it
encourages overkill. Lawyers are required to fight for every possible advantage within the
bounds of the law, even when those advantages may extend beyond the client’s actual
entitlements. Thus, an exemplary lawyer, by the standards of the adversary system, may
achieve outcomes that infringe on the rights of others, as they use every available tactic to
secure favorable results for their client. This is not a flaw of individual lawyers, but a structural

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feature of the adversary model, which incentivizes lawyers to push for outcomes that stretch,
if not violate, the bounds of their client’s legal rights.

A potential objection to this critique is rooted in legal realism, which challenges the idea of
objective entitlements under the law. Legal realists argue that legal rights are merely what
courts ultimately decide, meaning that there is no independent notion of what a client
“ought” to have beyond what can be obtained through legal representation. However, if legal
rights are strictly identical to judicial outcomes, then it is incoherent to claim that the
adversary system is uniquely effective in defending legal rights. Any system, adversarial or
otherwise, would be equally valid, as long as courts issue rulings based on it. This reduces the
argument to a tautology: whatever legal system we have by definition defends legal rights, as
there is no standard outside the system to judge it by.

There is, however, a kernel of insight in this realist critique. While legal rights might not have
an independent existence, the courts are nonetheless responsible for adjudicating them. If
lawyers were allowed to exercise moral discretion in moderating their zeal, they would, in
effect, be determining what the client’s rights should be, usurping the role of the judge. The
adversary system could therefore be seen as protecting the judicial function by preventing
lawyers from substituting their own judgments for those of the court.

This insight, though valuable, does not justify many of the adversarial tactics commonly used
outside the courtroom, such as procedural delays, SLAPP suits, and other methods intended
to pressure opponents into settling without a fair hearing. In fact, these practices subvert the
adjudicatory process by preventing cases from reaching trial at all. Nor does this reasoning
support rules that allow lawyers to withhold adverse information from the court, as requiring
transparency would not interfere with the judge’s role.

In sum, while the adversary system may have some merit as a mechanism for protecting legal
rights within the courtroom by preventing lawyers from usurping the judge’s role, it does not
provide a comprehensive defense for the broad range of adversarial practices that undermine
fair adjudication. The adversary system’s insistence on zealous advocacy often leads lawyers
to pursue outcomes that exceed their clients’ genuine legal entitlements, and the system
lacks mechanisms to ensure that the legal rights of all parties are respected. Consequently,
while the adversary system may defend clients’ rights in a limited sense, it falls short of being
an ideal structure for protecting legal rights in the broader sense.

6.3. Ethical Division of Labor

The concept of ethical division of labor, as formulated by Thomas Nagel, offers a different
defense of the adversary system than those based on truth-finding or rights-protection. The
idea here is that certain public roles are structured to require specialized, often ruthless forms
of moral behavior that would be unacceptable in everyday life. For instance, public officials
might be tasked with making hard, consequentialist decisions that prioritize outcomes over
traditional moral constraints. In this model, various roles within a larger institutional
framework are each assigned specific ethical duties, creating a system of checks and balances.
Individual actors may perform morally troubling actions, but these actions are theoretically
counterbalanced by other roles within the system, allowing each role to focus on its own

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narrow set of responsibilities without assuming full moral accountability for the system’s
outcomes.

Applied to the legal profession, this argument suggests that zealous advocacy is morally
permissible because the adversary system provides countervailing mechanisms to balance it.
A lawyer’s duty to pursue their client’s interests with maximum zeal is justified, according to
this view, by the presence of opposing counsel and a neutral arbiter (such as a judge or jury)
who will counterbalance any excesses. This division of moral responsibility allows lawyers to
concentrate fully on their clients’ interests without being constrained by broader ethical
concerns.

This checks-and-balances defense is widely cited by lawyers. They argue, for instance, “The
other side has a lawyer, too,” or “It’s not my job to do the judge’s work.” George Sharswood,
a foundational figure in legal ethics, famously asserted that a lawyer who declines a case on
moral grounds usurps the functions of both judge and jury. The adversary system, then, is
structured to function as a self-correcting mechanism: each role operates under its own set
of ethical duties, and the collective system supposedly absorbs and rectifies any moral
imbalance.

However, the author argues that this justification is ultimately flawed. In the adversary
system, lawyers are not merely relying on checks and balances to mitigate the effects of their
zeal—they are actively working to circumvent those checks. For example, a lawyer might use
procedural tactics to prevent opposing counsel from introducing evidence or manipulate the
legal process to gain an unfair advantage. This is akin to a fencer using a blade that can cut
through their opponent’s protective clothing. The lawyer’s job is not to trust in the system’s
self-correction, but to overcome it wherever possible to serve the client’s interests. The
ethical division of labor argument fails in this context because lawyers are not relying on the
system’s balancing mechanisms; rather, they are strategically undermining them.

A further critique of the ethical division of labor argument concerns the transaction
costs associated with the system’s self-correction. Rectifying the harms caused by adversarial
tactics often entails significant costs in terms of money, time, emotional strain, and
bureaucratic effort. These costs act as a form of background “noise” in the system, a penalty
imposed on anyone who becomes entangled in legal proceedings. This cumulative burden is
only justifiable if the adversary system itself is morally defensible. If the system’s structure
imposes such high transaction costs on individuals, then the checks-and-balances justification
either begs the question by assuming the system’s inherent goodness or shifts the burden of
proof to those defending the adversary model on other grounds.

The author also raises a broader concern with the ethical division of labor: institutional
structures like the legal system tend to dilute moral responsibility. Within bureaucratic
institutions, moral accountability is often divided among those who make the rules, those
who issue commands, and those who carry them out. Each actor can claim that they are not
fully responsible for any negative consequences, creating a diffusion of responsibility. This is
ethically problematic because it can lead to a situation where no one is held accountable.
Division-of-labor arguments must therefore walk a fine line between acknowledging that
different roles entail different duties and avoiding the implication that moral responsibility is

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“divided down” or diminished within institutional structures. If each actor abdicates
responsibility, the institution as a whole becomes morally unaccountable, a deeply troubling
outcome.

The Joint Conference Report provides a further variant of the ethical division of labor
argument, one that emphasizes the diverse functions lawyers perform. According to the
report, lawyers spend relatively little time in litigation and are more often engaged in
activities such as document drafting, negotiation, and providing counsel. This reality suggests
a separation of roles within the legal profession itself, where different standards of
professional behavior might apply depending on the function. The report argues that zealous,
no-holds-barred advocacy should be confined to litigation, while in other contexts, such as
giving advice or drafting documents, lawyers should exercise greater ethical restraint,
advising clients against conduct that, though technically legal, violates the “spirit” of the law.

However, the author is skeptical of this argument, seeing it as misleading and incomplete. The
report relies on vague notions like “long-run costs” to dissuade clients from morally dubious
conduct. This is problematic for two reasons. First, it is unclear whose “long-run costs” are at
stake. If the lawyer is warning the client about reputational damage or future business
obstacles, it’s unlikely that morally unscrupulous clients will be deterred by such concerns. In
fact, clients who succeed in aggressive or ruthless litigation often gain respect rather than
disdain. In a highly competitive and litigious society, legal victories, no matter how morally
questionable, are frequently rewarded. Thus, the Joint Conference Report’s appeal to “long-
run costs” as a deterrent for unethical behavior is overly optimistic, assuming a harmony
between the client’s and society’s interests that rarely exists in practice.

Second, even if a lawyer advises against a morally dubious course of action, they are still
professionally obligated to represent the client if the client insists. The lawyer can say they
have done their moral duty by advising the client, but they are still left with “dirty hands” if
they proceed with the representation. The ethical burden remains, as the lawyer is still
engaged in the potentially harmful advocacy that sparked the ethical dilemma in the first
place.

In summary, the ethical division of labor argument fails to provide an adequate moral
foundation for adversary advocacy. The notion that the legal system’s structure can morally
justify aggressive, one-sided representation collapses when we consider that lawyers are
incentivized to circumvent rather than rely on the system’s checks and balances. Moreover,
the high transaction costs involved in self-correction and the diffusion of moral responsibility
across institutional roles raise serious ethical concerns. Finally, attempts to limit zealous
advocacy to litigation while promoting ethical restraint in other contexts are both unrealistic
and insufficient, as they rely on questionable assumptions about the alignment of clients’
interests with societal values. Ultimately, the division of labor within the legal system does
not diminish or “divide down” moral responsibility, and lawyers must confront the ethical
implications of their role more directly.

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6.4. Nonconsequentialist justifications of the adversary system
In examining nonconsequentialist justifications for the adversary system, we move beyond
the practical outcomes of truth-finding or the protection of legal rights and focus instead on
whether the system has an intrinsic moral value. Two main approaches are considered here:
(1) the argument that the traditional lawyer–client relationship itself embodies a fundamental
moral good, and (2) arguments that posit adversarial adjudication as a valuable tradition,
integral to societal structure, and consented to by the public.

The lawyer–client relationship as an intrinsic moral good

Some theorists argue that the relationship between lawyer and client is itself morally
praiseworthy, independent of the outcomes it produces. This view is based on the notion that
professionals, particularly lawyers, serve their clients in a deeply personal and committed
way, akin to a “special-purpose friendship.” Charles Fried, for instance, suggests that lawyers
act as "friends" to their clients, enhancing their clients' autonomy by helping them navigate
and assert their legal rights. Even when the lawyer’s actions assist morally dubious clients,
such as a profiteering slumlord or an unscrupulous debtor, Fried maintains that the lawyer’s
role in supporting the client’s autonomy has inherent moral worth.

Similarly, David Mellinkoff portrays the lawyer as a champion of the “man-in-trouble.” For
Mellinkoff, the lawyer’s dedication to clients facing cruelty, oppression, or bewildering legal
challenges is “beautifully strange,” reflecting a noble devotion that transcends simple
economic transaction. The lawyer’s role, he argues, is more than just a business arrangement;
it is a form of service that allows the client to confide in the lawyer without fear of judgment
and to receive guidance in times of personal crisis.

Criticisms of the lawyer–client relationship as a moral good

While Mellinkoff’s and Fried’s perspectives emphasize the lawyer’s role as an unwavering
supporter, there are signifcant limitations to this view. Mellinkoff’s romanticized portrayal of
the client as a “man-in-trouble” obscures the reality that many clients are not victims of
misfortune but are, in fact, powerful individuals or entities seeking to assert their interests at
others' expense. In cases involving slumlords, monopolistic corporations, or wealthy debtors
evading repayment, the lawyer is not aiding a beleaguered client but rather someone who
uses the law to further exploit others. The moral intuition that Mellinkoff relies upon, of the
lawyer as a helper of the helpless, falls apart when applied to clients who actively harm others.

Fried, however, is willing to embrace this darker aspect of the lawyer’s role, arguing that even
morally objectionable clients are entitled to “special-purpose friendship” from their lawyers.
He justifies this through a “concrete-circles morality,” suggesting that individuals naturally
prioritize the interests of those close to them (friends and family) over more distant “abstract
others.” According to Fried, the lawyer–client relationship replicates this moral structure by
treating the client’s interests as paramount, even when this results in harm to others.

However, Fried’s “friendship” analogy raises fundamental issues. True friendship, as

traditionally understood, involves ethical limitations; most people would not, for example,
commit serious wrongdoing to aid a friend. Lord Brougham’s infamous assertion that a lawyer
should be willing to sacrifice “all hazards and costs to other persons” to save their client is not
compatible with any genuine notion of friendship. If friendship is meant to capture moral

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devotion, then it must include ethical constraints, constraints that the principle of zealous
advocacy disregards. By this standard, the analogy to friendship fails to justify the adversarial
role; rather, it highlights the ethical excesses that the role demands.

Fried’s Appeal to Institutional Morality

Recognizing the challenge, Fried tries to draw a distinction between personal and institutional
wrongs. He argues that morally problematic actions taken on behalf of a client, such as
foreclosing on a widow or helping a debtor evade repayment, are not personal wrongs
but institutional wrongs. According to Fried, the lawyer can be absolved of moral
responsibility because the wrongs are produced by the legal system itself, which, in his view,
is “generally just and decent.” In other words, the lawyer is merely a functionary within a
larger, legitimate structure and does not bear personal accountability for the outcomes that
structure produces.

This move is problematic on multiple levels. First, it assumes that the moral issues with the
adversary system can be shifted onto the legal institution as a whole, effectively absolving
individual lawyers. This claim only works if the institution itself is justifiable. But if the
adversary system’s moral justification is in question, as we are examining here, then Fried’s
reliance on institutional morality becomes circular: the lawyer’s actions are justified by the
system, but the system’s legitimacy depends on justifying those actions.

Second, Fried’s argument mischaracterizes the nature of the lawyer’s role within the
adversary system. Lawyers are not merely passive conduits through which the law operates;
they actively shape outcomes through advocacy, negotiation, and legal interpretation. A
skilled lawyer has significant influence over how a case is presented, how legal rules are
applied, and even over the evolution of the law itself. To say that the “system did it” ignores
the lawyer’s agency in using that system to achieve specific ends. The lawyer is not merely
flipping a switch in a complex machine; they are actively pulling the levers, crafting
arguments, and maneuvering within the system to advance their client’s position.

Third, Fried’s attempt to locate moral responsibility in the abstract “system” rather than in
the actions of individual lawyers is ethically dubious. Legal systems are social structures
constituted by human actors, and these actors, judges, lawyers, juries, are the ones who bring
the system’s outcomes into being. Lawyers cannot escape responsibility by appealing to the
impersonal nature of “the system,” as if their actions within it were morally neutral. In truth,
every action a lawyer takes within the adversary system is a human choice with ethical
implications.

Adversary Adjudication as a Valued Tradition and Social Fabric

A second nonconsequentialist defense of the adversary system rests on its status as an
entrenched social institution that reflects shared values and enjoys broad public acceptance.
This view holds that adversary adjudication, like other longstanding traditions, has a kind of
intrinsic worth as part of our societal fabric. As a cultural institution, it provides a structured
outlet for legal disputes, giving citizens a sense that justice is pursued through a fair process
in which both sides have an opportunity to be heard.

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This justification appeals to the principles of tradition and consent. The adversary system, it
is argued, embodies a set of procedural norms that have been collectively endorsed and
integrated into society over time. The very familiarity and durability of the adversarial process
lend it legitimacy, and this established place within society contributes to its moral standing.

Criticisms of Tradition-Based Justifications

While appealing to tradition and social consent may give the adversary system a veneer of
legitimacy, these factors alone do not establish its moral validity. Traditions are not inherently
valuable simply because they are longstanding; many historical practices, from slavery to
disenfranchisement, were once entrenched social norms that we now recognize as deeply
unjust. Tradition alone cannot justify practices within the adversary system that conflict with
broader ethical principles. If the system inherently promotes morally dubious actions, such as
enabling wealthy clients to manipulate legal loopholes at the expense of poorer, less powerful
individuals, then its status as a tradition does not absolve it of these ethical flaws.

Moreover, public consent to the adversary system may be illusory or at best passive. Citizens
may accept the adversary model not because they endorse its underlying ethics, but because
they have few realistic alternatives. Many people feel alienated from the legal system,
perceiving it as complex, inaccessible, and skewed in favor of those who can afford better
representation. The adversary system’s legitimacy cannot be grounded in social consent if
that consent is largely a matter of resignation or lack of alternatives.

Conclusion
Nonconsequentialist justifications of the adversary system, whether based on the supposed
moral value of the lawyer–client relationship or on the system’s traditional and consensual
status, fail to provide a convincing defense. Fried’s concept of the lawyer as a “special-
purpose friend” collapses under scrutiny, as true friendship implies moral limits that the
principle of zealous advocacy disregards. His appeal to institutional morality as a way of
absolving lawyers of responsibility is similarly unpersuasive, as it obscures the active role
lawyers play in shaping legal outcomes. Furthermore, appeals to tradition and social fabric do
not address the ethical issues inherent in a system that incentivizes morally questionable
behavior

Ultimately, the adversary system cannot be justified merely by claiming that it is “part of the
social fabric” or that it represents an intrinsic good in the lawyer–client relationship. If the
system fosters actions that violate fundamental moral principles, its legitimacy must be
questioned regardless of its historical or cultural status. The adversary system requires a more
robust ethical foundation than what these nonconsequentialist arguments provide.

6.5. The Social Fabric Argument

The social fabric argument is a nonconsequentialist attempt to justify the adversary system,
not on the basis of its outcomes, but on the grounds that it is deeply embedded in our cultural
and legal traditions. This argument has two primary variations:
1. The Consent Argument: The adversary system is justified because it has the implicit
consent of the governed, aligning with democratic theory.
2. The Tradition Argument: The adversary system is justified because it is part of a
longstanding cultural tradition, a view rooted in conservative theory.

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Both variations appeal to the idea that our institutions are morally binding because they are
interwoven with our social identity. They claim that, as members of a society with shared
norms, we are morally bound to uphold these institutions—not necessarily because they are
the most effective or just, but because they reflect who we are.

6.5.1. The Consent Argument

The first variation of the social fabric argument appeals to democratic theory, claiming that
the adversary system is justified because it has the consent of the governed. In democratic
societies, the notion of tacit consent implies that long-standing institutions enjoy legitimacy
simply by virtue of their endurance over time. Michael Walzer, for instance, suggests that
shared experiences and cooperative practices across generations create a form of tacit
“contract” that binds us to our institutions.

However, there are problems with this view. Tacit consent is a tenuous basis for legitimacy
because it can often be indistinguishable from mere acquiescence. People may “consent” to
an institution not out of genuine approval, but simply because they lack the resources,
inclination, or practical alternatives to replace it. In such cases, enduring an institution does
not necessarily indicate support or moral approval; it may only indicate resignation. If the
“consent” people give to the adversary system is passive, then it does not carry the moral
weight required to justify the institution as a positive good.

More fundamentally, this interpretation of consent fails to meet the standards of classic social
contract theory. According to thinkers like Locke, political legitimacy arises from explicit
consent because individuals are morally autonomous and must voluntarily relinquish certain
freedoms to form a government. Tacit consent, at best, establishes that an institution is not
illegitimate; it does not prove that the institution is morally good. If we tolerate the adversary
system because we lack better options, that tolerance does not imply endorsement.

This critique suggests that, at most, tacit consent might show that we are not obligated to
dismantle the adversary system. However, it does not prove that the system is a positive
moral good or that we have any special reason to maintain it. For a stronger justification, we
would need evidence that society collectively wants the adversary system and views it as
integral to the common good—a concept closer to Rousseau’s notion of the “general will.” In
reality, public opinion often reflects profound skepticism about the adversary system,
particularly when it is perceived as enabling lawyers to undermine truth and justice for the
sake of winning cases. Historical critiques of the legal profession, as chronicled by figures like
David Mellinkoff, suggest that the public does not view adversarial zeal as a moral ideal;
rather, it often sees it as morally problematic.

6.5.2. The Tradition Argument

The second variation, drawn from conservative theory, appeals to the adversary system’s
place within our tradition. This approach echoes Edmund Burke’s idea that society is not
merely a temporary contract among living individuals but a “partnership” across generations.
According to this view, traditional institutions carry an intrinsic moral authority because they
link the past, present, and future into a cohesive social fabric. Therefore, dismantling the
adversary system would be irresponsible, a reckless abandonment of a structure that has,
over time, shaped our collective identity.

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While Burke’s argument is influential in conservative thought, it does not apply convincingly
to the adversary system. There are several reasons for this:

• The lack of a stable tradition: The adversary system, especially in its current form, is
not as ancient or unchanging as Burkean conservatives would require. Common law,
including the rules and ethics of advocacy, has evolved significantly. For instance, until
1836, English criminal defendants were not allowed representation by counsel in
court, and the right to counsel in U.S. criminal cases was not guaranteed until 1963.
These shifts show that the adversary system, far from being a timeless institution, is a
relatively recent construct subject to ongoing change.
• The limited scope of adversarial ethics: Not all parts of the legal system adhere to the
norm of zealous partisanship. Prosecutors, for example, are ethically obligated to seek
justice rather than merely victory. This norm for prosecutors diverges from the
“neutral partisanship” that characterizes much of adversarial ethics and demonstrates
that our legal tradition includes a mix of adversarial and non-adversarial elements.
Consequently, the adversary system does not hold the central, foundational status
that Burkean theory demands for something to be part of the “primeval contract” of
society.
• The marginal importance of the adversary system in the social order: As legal theorist
William Simon points out, questioning the adversary system does not threaten to
unravel the entire social order. Unlike revolutionary changes that seek to restructure
society from the ground up, reforms to the adversary system would constitute
incremental improvements to a particular method of dispute resolution. Replacing or
reforming adversarial norms would not lead to a “chaos of elementary principles” but
would instead be a modest adjustment to our legal procedures. Invoking Burkean
conservatism here is therefore disproportionate; the adversary system is not as
central to social cohesion as institutions like democracy or constitutional government.

Conclusion
The social fabric argument, whether based on tacit consent or tradition, fails to provide a
robust justification for the adversary system. The consent argument rests on a weak
foundation because passive acquiescence does not constitute genuine moral endorsement.
People may “consent” to the adversary system out of resignation, not conviction, which does
not confer moral legitimacy. Furthermore, classic social contract theory requires explicit
consent to establish a positive good, and tacit consent at most shows that an institution is not
actively illegitimate.

The tradition argument also falls short because the adversary system lacks the historical
continuity and moral centrality that would make it a foundational social institution. Legal
ethics and procedures have evolved over time, and adversarial norms are neither uniform
across all areas of law nor essential to the social order. To question or reform adversarial
practices does not entail a fundamental threat to society’s moral fabric.

In the end, the social fabric argument cannot adequately defend the adversary system against
criticism. To justify the adversary system morally, we would need either a clear demonstration
of its intrinsic ethical value or compelling evidence that it reliably produces morally good
outcomes, such as truth or justice. Neither the tacit consent of the governed nor the

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institution’s place in tradition is sufficient to meet these standards. Thus, the social fabric
argument leaves the adversary system without a firm moral foundation, reinforcing the need
for further inquiry into its ethical implications and possible alternatives.

6.6 The adversary system excuse

6.6.1. Pragmatic justification

After a long critique of the adversary system, the text finally offers a defense, though not an
enthusiastic one. This pragmatic justification does not present the adversary system as an
ideal, nor does it attempt to imbue it with any lofty moral virtues. Rather, it argues that the
adversary system is simply "good enough," doing an adequate job at adjudicating disputes
and protecting rights, and that the costs and risks of replacing it would outweigh any potential
benefits.

The justification rests on three main points:

1. The Adversary System’s Performance: Despite its flaws, the adversary system seems
to do as well as any alternative in finding truth and safeguarding legal rights. While it
may be irrational and even perverse in certain ways, none of its rivals — certainly not
extreme alternatives like trial by ordeal — demonstrably does a better job overall. The
argument here does not deny the system's flaws but suggests that these flaws are
tolerable compared to the disruption and new problems that might arise from a
wholesale replacement.
2. Necessity of Some Adjudicative System: Adjudication is necessary in any society to
resolve disputes and uphold justice. Thus, we are not free to simply reject the
adversary system without replacing it with some alternative. Given that we need some
mechanism for legal adjudication, sticking with a system that “does the job” is
preferable to experimenting with radical changes that may introduce as many
problems as they solve.
3. Historical Continuity: The adversary system has been the foundation of legal practice
in the Anglo-American tradition for over a century. This historical continuity is valuable
in itself, as it has shaped legal norms, professional expectations, and procedural
understandings. Replacing it would require extensive retraining, create widespread
confusion, and likely result in numerous unintended consequences.

These propositions constitute a pragmatic justification: if a social institution performs its

function reasonably well, and if the costs of replacing it are likely to outweigh the benefits,
then it is best to keep the institution as it is. This argument does not celebrate the adversary
system as morally exemplary or even especially effective; instead, it sees the system as “good
enough” — a practical solution with tolerable flaws.

The Law of Conservation of Trouble

The pragmatic justification rests on a principle the author refers to as the Law of Conservation
of Trouble: replacing a flawed institution with a new one is likely to generate new, unforeseen
problems. Even if the adversary system has characteristic shortcomings — such as the way it
can distort truth or allow morally dubious tactics — an alternative system may bring its own

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types of distortion or inefficiency. This perspective suggests a cautious approach to reform:
replacing the adversary system might simply replace familiar problems with unfamiliar ones.
This reasoning is grounded in the idea that the devil you know is better than the devil you
don’t. The adversary system’s flaws are known and manageable, whereas a new system might
introduce unexpected issues that could be equally or even more troubling. The pragmatic
justification is thus inherently conservative, but in a non-ideological way: it argues for keeping
the adversary system not because it is inherently valuable, but because the costs of disruption
and the risks of unanticipated negative consequences likely outweigh any potential benefits
from adopting an untested alternative.

Justification Without Enthusiasm

A key feature of this pragmatic justification is its lack of enthusiasm. It is not an argument that
praises the adversary system or claims it is the best conceivable method for achieving justice.
Instead, it merely argues that the adversary system is adequate and that no clearly superior
alternative exists. This justification would apply equally well to other legal systems, such as
the inquisitorial system used in France or Germany, as long as those systems also perform
adequately without obvious replacements.

The pragmatic justification is thus a weak argument, but it has a certain power in practice. It
does not attempt to establish the adversary system as morally or instrumentally superior; it
simply underlines its durability and adequacy. This form of argument is robust in practice
because institutions, like bodies, follow Newton’s First Law: they tend to remain in motion
unless acted upon by a strong external force. Without a compelling reason to replace the
adversary system, inertia keeps it in place.

Not a Call for Blanket Conservatism

Importantly, accepting the pragmatic justification for the adversary system does not require
a blanket conservatism. One can believe that many aspects of society or the legal system
should change while still supporting the adversary system in its current form. For instance,
one could advocate for broader legal reforms to address issues like access to justice or
inequality, while retaining adversarial adjudication as the default mode of dispute resolution.
The pragmatic justification, then, leads to a piecemeal, case-by-case approach to reform
rather than a wholesale defense of the status quo. It suggests that, even if society undergoes
substantial reform, adversarial adjudication might still be the best method for handling legal
disputes. Thus, the argument is limited in scope: it supports the adversary system not as a
moral ideal, but as a practical solution suited to the needs of a particular type of legal culture.

The Limits of Pragmatic Justification

The pragmatic justification is a modest defense of the adversary system, grounded in practical
considerations rather than moral or ideological principles. This modesty, however, also
reveals the argument’s limitations. If evidence were to emerge that the adversary system
systematically fails to provide justice, or that an alternative is clearly better, the pragmatic
justification would lose its force. Its strength lies in the assumption that the adversary system
performs well enough and that alternatives are either not clearly better or too disruptive to
be worth the transition. Should these assumptions change, the pragmatic justification would
collapse.

Bernat Balcells Fusté

In essence, this defense of the adversary system is provisional and contingent. It does not
claim that adversarial adjudication is a superior method in any absolute sense. Rather, it rests
on the absence of a clearly better alternative and on the costs associated with radical change.
For this reason, the pragmatic argument is less a ringing endorsement than a reluctant
acceptance, a justification that keeps the adversary system in place, but only as long as no
compelling reason arises to replace it.

7. PRAGMATIC JUSTIFICATION AND INSTITUTIONAL EXCUSES

The author concludes with a pragmatic justification of the adversary system, acknowledging
its flaws but ultimately defending it on the basis that it performs its essential functions as well
as any known alternatives. However, this pragmatic justification has critical implications for
the moral obligations of those who operate within the system, namely lawyers. The argument
suggests that while the adversary system may justify certain institutional norms and practices,
it does not provide a robust moral foundation that can excuse all morally questionable
actions. This nuanced perspective challenges the conventional idea that lawyers can rely on
the adversary system as a blanket moral shield for their actions within it.

7.1. The limits of institutional excuses in a pragmatically justified system

The key claim is that an institution justified only pragmatically cannot provide its functionaries
with a strong moral excuse for immoral acts. To serve as an effective institutional excuse, an
institution would need to be more than pragmatically justified; it would need to be justified
as a positive moral good. A pragmatically justified institution, by contrast, is simply the best
available option among a set of imperfect alternatives. As such, it cannot confer moral
immunity on its agents for actions that would otherwise be considered morally wrong.

The Transitivity Argument illustrates this limitation. According to this argument:

1. The institution is justified.
2. The institution requires its functionary to perform certain acts (like withholding
information).
3. Therefore, the functionary is justified in performing those acts.

The author critiques this argument by rejecting the notion that the justification of the
institution automatically transfers to every specific act it mandates. In cases where the
institution is justified only pragmatically, the obligations it imposes on its agents are at
best prima facie obligations, meaning they are subject to being overridden by more pressing
moral considerations.

7.2. Strong vs. Weak institutional justification: a charitable example

To illustrate the difference between a strongly justified institution and a weakly justified one,
the author uses the example of a charitable organization distributing food in famine-stricken
areas. If a logistics officer within this organization must engage in morally questionable
behavior (e.g., cooperating with a local gangster) to carry out the institution’s positive mission
of saving lives, an institutional excuse may be defensible. The officer’s actions, though morally
troubling, serve a greater moral good—the prevention of starvation.

Bernat Balcells Fusté

In contrast, consider the example of the Spaulding case, in which defense lawyers concealed
information about a life-threatening injury in order to settle a lawsuit for a lower amount.
Unlike the humanitarian aid example, the adversary system here is not justified as a strong
moral good. The only defense for the lawyers' actions is that the adversary system is "the way
we do things," justified merely on pragmatic grounds. Thus, the adversary system does not
have the moral weight to excuse the harm done to Spaulding. In this scenario, the justification
for the lawyers' actions is not morally compelling—it rests on an institution that is merely the
best of imperfect options, not a morally positive institution.

7.3. The adversary system’s justification in criminal vs. Civil contexts

The author argues that the adversary system’s pragmatic justification is more compelling in
criminal contexts than in civil ones. In criminal cases, the adversary system serves a critical
function: it constrains the power of the state and protects individual rights. This strong
justification may warrant certain institutional excuses, such as strict adherence to client
confidentiality, even when doing so could result in morally troubling outcomes, as in the Lake
Pleasant bodies case.

In civil cases, however, the adversary system primarily aims to achieve legal justice—fair
outcomes based on the facts and applicable laws. Since the adversary system does not have
a strong justification in these cases (it does not protect individuals from state overreach), it
lacks the moral weight necessary to excuse morally questionable behavior. The example of
concealing life-threatening information in the Spaulding case, where no state power is
involved, illustrates that civil litigators cannot claim an institutional excuse for actions that
harm others.

7.4. The flaws of the adversary system as a justification for moral exemption
The author suggests that the adversary system’s justification is similar to that of a scientific
theory accepted for its pragmatic utility despite doubts about its truth. Just as scientists may
use a theory for lack of a better alternative, even if they believe it is probably incorrect, we
rely on the adversary system because it seems to work as well as any alternative, not because
it is morally flawless. This weak justification implies that lawyers cannot assume their
professional obligations always override other moral duties.

In contrast, institutions that are justified as moral goods, such as a charity dedicated to saving
lives—can impose moral obligations on their agents that may sometimes excuse actions that
would otherwise be seen as wrong. The adversary system, lacking this strong moral
justification, does not have the same power to excuse lawyers from ordinary moral
constraints. In noncriminal cases, lawyers cannot claim moral exemption simply because they
are fulfilling their role obligations under the adversary system.

7.5. The moral limitations of the transitivity argument

The Transitivity Argument assumes that if an institution is justified, then the actions it
requires of its functionaries are also justified. However, the author argues that this reasoning
is flawed. Just because an institution is pragmatically justified does not mean it can excuse
actions that are morally wrong in other contexts. In fact, the pragmatic justification of the
adversary system suggests that lawyers should retain a critical perspective on their own

Bernat Balcells Fusté

actions and not blindly follow professional obligations when they conflict with serious moral
duties.

The author points out that institutional excuses are most defensible in situations where they
are accompanied by moral regret. In morally ambiguous or “dirty hands” situations, agents
should feel regret for actions they are institutionally required to perform, as this helps them
retain their moral compass and recognize when they should resist institutional pressures. A
lawyer who is untroubled by ethically dubious actions risks losing the capacity to exercise
sound moral judgment in future cases.

7.8. Conclusion: a pragmatic defense, not a moral exemption

In summary, the author’s defense of the adversary system is pragmatic rather than moral.
While the adversary system may justify certain professional obligations, it does not grant
lawyers carte blanche to act without moral accountability. Lawyers are not excused from
moral obligations simply by virtue of their role in the adversary system; they are still subject
to the same ethical standards that apply to ordinary individuals.

The ideology that justifies ruthless advocacy by invoking the adversary system fails, especially
outside the criminal context. The adversary system can excuse minor moral compromises in
the pursuit of professional duty, but it cannot justify actions that cause significant harm or
violate fundamental moral principles. The pragmatic justification of the adversary system
imposes limits on the moral latitude of lawyers, suggesting that they should act with caution
and moral awareness, even when fulfilling their role obligations.

Thus, the adversary system provides a framework for legal practice, but it does not absolve
lawyers of personal moral responsibility. In cases of serious moral conflict, the lawyer’s
obligation to act ethically outweighs their professional obligation to zealously advocate for a
client. The adversary system’s role in protecting legal rights does not exempt lawyers from
ethical scrutiny, and when professional duties conflict with moral imperatives, lawyers must
be prepared to prioritize morality over professional role.

Bernat Balcells Fusté