Review
There is a reason why most legal systems in use today have evolved from (mostly or all) inquisitive to (mostly or all) adversarial, and that's because we have a gigantic body of evidence to suggest that inquisitive systems are particularly prone to render biased judgements.
What evidence do you have for that claim?
In Germany we allow judges to be more focused on being more inquisitorial than in Anglosaxon systems. How strong do you think the evidence for their being more biased judgements in Germany than in Anglosaxon system happens to be?
Otherwise, what evidence do you see that the features of Anglosaxon systems get copied by other Anglosaxon systems via mechanisms of well-researched argument instead of just following traditions?
Among other big European countries France, Italy, Spain also work more like the German system like the Anglosaxon systems.
To me, it sounds like you treat the particulars of the Anglosaxon legal systems as universals without good reason for that.
What evidence do you have for that claim?
In Germany we allow judges to be more focused on being more inquisitorial than in Anglosaxon systems. How strong do you think the evidence for their being more biased judgements in Germany than in Anglosaxon system happens to be?
I mean, I guess (almost?) all countries today at least have the prosecutorial function vested in an organ separate from the Judiciary – that's already a big step from the Inquisition! It's true that no legal system is purely adversarial, not even in the US (judges can still reject guilty pleas, for instance), but I think few people would disagree that we have generally moved quite markedly in that overall direction. In particular, we used to have purely inquisitorial systems in the past, and it seems like we don't anymore. To take Germany as an example, Wikipedia notes that, while public prosecutors are "simple ordinary servants lacking the independence of the Bench", they nonetheless "earn as much as judges" – which seems to suggest they hold quite a prominent position in their legal system, as I suspect few other public servants do in fact earn that much.
Otherwise, what evidence do you see that the features of Anglosaxon systems get copied by other Anglosaxon systems via mechanisms of well-researched argument instead of just following traditions?
I tend to reject that dichotomy, not only in this instance but more generally: I don't believe things survive very long on the basis of tradition alone. Tradition may be a powerful force in the short run, but over hundreds of years it tends to get displaced if it turns out to be markedly suboptimal.
You define your terms when you say:
An inquisitive (aka inquisitorial) legal system is one in which the judge acts as both judge and prosecutor, personally digging into the facts before ruling.
In the German system, digging into the facts before the ruling is part of the job of the judge. They are doing it from a neutral perspective, but digging into facts is part of what they are supposed to do. In Anglosaxon common law on the other hand it's the job of both parties of a legal case to law out all the facts that they think support their side and it's not the job to dig into facts that neither of the sides presented.
I’m curious to understand that a bit better, if you don’t mind (and happen to be familiar enough with the German legal system to answer). Which of the following would a German judge commonly do in the course of an ordinary proceeding?
(i) Ask a witness to clarify statements made;
(ii) ask a witness new questions that, while relevant to the case, do not constitute clarifications of previous statements made;
(iii) summon new witnesses (including but not limited to expert witnesses) without application from either party;
(iv) compel a party to produce documents not in discovery, without application from the other party;
(v) compel third parties to produce documents neither party has requested be produced.
All the above used to be pretty standard in most jurisdictions AFAIK. But what tends to happen nowadays is that either some of those are expressly disallowed, or else, while judges may well retain legal authority to perform all those kinds of digging, in practice that authority is used very sparingly.
When it comes to trying to understand basic facts like how legal systems work LLMs make it easy to get an overview.
Not for this kind of fact, I’m afraid – my experience is that in answering questions like these, LLMs typically do no better than an educated guess. There are just way too many people stating their educated legal guesses as fact in the corpus, so it gets hard to distinguish.
This can be a great time-saver because it relies on each party to present the best possible case for their side. This means I don't have to do any evidence-gathering myself; I just need to evaluate the arguments presented, with that heuristic in mind. For example, if the pro-X side cites a bunch of sources in favor of X, but I look into them and find them unconvincing, then this is pretty good evidence against X, and I don't have to go combing through all the other sources myself. The mere existence of bad arguments for X is not in itself evidence against X, but the fact that they're presented as the best possible arguments is.
Of course the problem is, outside of a legal proceeding, parties rarely have that strong an incentive to dig up the best possible arguments. Their time is limited as well, and they don't really suffer much consequence from failing to convince you. Also, the discussion medium might structurally impede the best arguments from being given (e.g. replies in a Twitter thread need to be posted quickly or else nobody will see them). Or worse yet, a skilled propaganda campaign can flood the zone with bad pro-X arguments from personages who appear to be pro-X but are secretly against it, knowing that the audience is going to be evaluating these arguments using the adversarial heuristic.
This can be a great time-saver because it relies on each party to present the best possible case for their side.
That seems to be unlikely to be true. Having a system that focuses the evidence gathering on the questions that actually matter can save a lot of time.
A huge reason why lawsuits are so time consuming and expensive in the United States is that the judge does not have the role to focus the evidence gathering on the questions that actually matter the way a German judge would.
All true, but bear in mind I'm not suggesting you should limit yourself to the space of mainstream arguments, or for that matter of arguments spontaneously arriving at you. I think it's totally fine and doesn't substantially risk the overfitting I'm warning against if you go a bit out of the mainstream. What I do think risks overfitting is coming up with the argument yourself, or else unearthing obscure arguments some random person posted on a blog and no one has devoted any real attention to. The failure mode I'm warning against is basically this: if you find yourself convinced of a position solely (or mostly) for reasons you think very few people are even aware of, you're very likely wrong.
Epistemic status: prima facie unlikely in the usual framework, which I'll try to reframe. Corroborated by loads of empirical observations. YMMV, but if you've held some contrarian view in the past that you came to realize was wrong, this might resonate.
In practical (and also not-so-practical) life, we often have to make a call as to which theory or fact of matter is probably true. In one particularly popular definition of rationality, being rational is making the right call, as often as possible. If you can make the map correspond to the territory, you should.
I believe that in many cases, the best way to do so is not to adopt what I will call inquisitive thinking, in which you, potentially after researching somewhat deeply on a topic, will go on and try to come up with your own arguments to support one side or the other. Rather, I think you should most often adopt adversarial thinking, in which you'll simply judge which side of the debate is probably right on the basis of the existing arguments, without trying to come up with new arguments yourself.
You might feel the adjectives "inquisitive" and "adversarial" are being used wierdly here, but I'm taking them from the legal literature. An inquisitive (aka inquisitorial) legal system is one in which the judge acts as both judge and prosecutor, personally digging into the facts before ruling. An adversarial system, on the other hand, is one in which judges are mostly passive observers, and parties are to argue their case before them without much (or any) interference, for them at the end to rule on the basis of the evidence presented, not being allowed to go dig more evidence themselves.
There is a reason why most legal systems in use today have evolved from (mostly or all) inquisitive to (mostly or all) adversarial, and that's because we have a gigantic body of evidence to suggest that inquisitive systems are particularly prone to render biased judgements. The more you allow judges to go dig, the more likely they are to lose their purported impartiality and start doing strange things.
I suggest that this phenomenon is not particular to judges, but is rather a common feature of human (and very possibly even non-human) rationality. The main point is that digging more and more evidence yourself is ultimately not selecting for truth, but rather for your particular biases. If you have a limited amount of pre-selected evidence to analyze – evidence selected by other people –, it's unlikely to be tailored to your particular taste, and you're thus more likely to weigh it impartially. On the other hand, once you allow yourself to go dig evidence for your own taste, you're much more likely to select evidence that is flawed in ways that match your own biases.
As an intuition pump, that's really much the same as an AI trained to identify pictures of cats that will, on request for the prototypical cat, generate something that looks like noise. Such an AI is not useless, mind you – it's actually often pretty accurate in telling pre-selected images of cats and non-cats apart. But you may want to use it in a way that does not involve asking it to go dig the best cat picture out there in the space of possible pictures. Perhaps our brains are not so different, after all.