Question: How can a trial be conducted fairly if one party can afford a much better lawyer than the other?
In many countries, the state provides lawyers to the poor; in partially socialized Britain where I am from, the state will provide a lawyer if the defendant can prove he cannot afford one himself. I am aware that these lawyers are paid through taxation, which is initiation of force.
I am fairly new to Objectivism and was caught out recently in an argument about whether or not out of court settlements were just if the one side won or lost depending on the amount of money they were able to pay to lawyers. This of course applies to the entire criminal justice system if the quality of defense one gets is dependant on ability to pay. Do you have an answer to this?
Answer: There is no settled Objectivist view on whether there should be public defense funds or not. This is a matter for a developed Objectivist legal philosophy, which does not exist yet. Moreover, it is also a matter of determining the practical consequences of a state institution in the context of a free society. This might require more evidence and experience with a free society before it could be definitively settled.
At our 2002 Advanced Seminar, we discussed a paper by Christopher Robinson arguing that state-funded legal defense was as justifiable as state-funded prosecution.
Robinson argues that the purpose of a justice system should be to determine the truth, not merely to successfully convict those who are charged with crimes. Thus, he argues, it is in the basic interest of the state as Objectivists conceive of it to ensure that judicial proceedings are conducted objectively. For this end, the successful prosecution of an innocent defendant is of no more value than the successful defense of a guilty defendant.
All Objectivists hope for a legal system that is much less intrusive and in which laws relate to fundamental principles much more clearly. This, we hope, will make expert legal advice less necessary.
It is worth considering that in a system with no state funding for legal defense, insurance could be a solution for people of limited means who might need such a defense. I imagine that in a free insurance market, there could be all-in-one shopping for health, home, accident, and legal insurance. With radically lower taxes, people would have plenty of money to dedicate to such a purpose.