Undercutting Justice – Why legal representation should not be allocated by the market

Politics, Philosophy and Economics 20 (1):99-123 (2021)

Abstract

The adversarial legal system is traditionally praised for its normative appeal: it protects individual rights; ensures an equal, impartial, and consistent application of the law; and, most importantly, its competitive structure facilitates the discovery of truth – both in terms of the facts, and in terms of the correct interpretation of the law. At the same time, legal representation is allocated as a commodity, bought and sold in the market: the more one pays, the better legal representation one gets. In this article, I argue that the integration of a market in legal representation with the adversarial system undercuts the very normative justifications on which the system is based. Furthermore, I argue that there are two implicit conditions, which are currently unmet, but are required for the standard justifications to hold: that there is equality of legal representation between parties, and that each party has a sufficient level of legal representation. I, therefore, outline an ideal proposal for reform that would satisfy these conditions.

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Shai Agmon
Oxford University

References found in this work

Anarchy, State, and Utopia.Robert Nozick - 1974 - New York: Basic Books.
Anarchy, State, and Utopia.Robert Nozick - 1974 - Philosophy 52 (199):102-105.
Value in Ethics and Economics.Elizabeth Anderson - 1993 - Harvard University Press.
Capitalism and Freedom.Milton Friedman - 1962 - Ethics 74 (1):70-72.

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Citations of this work

Civic Equality as a Democratic Basis for Public Reason.Henrik D. Kugelberg - forthcoming - Critical Review of International Social and Political Philosophy:1-23.
Markets.Lisa Herzog - forthcoming - Stanford Encyclopedia of Philosophy 2013.

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