Truth To Be Told: Understanding Truth In The Age Of Post-Truth Politics

• Author: Justice Peter Charleton - Ciara Herlihy
• Position: A graduate of Trinity College Dublin, is a judge of the Supreme Court - A graduate of University College Cork
• Pages: 1-18

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[2019] Irish Judicial Studies Journal Vol 3

TRUTH TO BE TOLD: UNDERSTANDING

TRUTH IN THE AGE OF POST-TRUTH

POLITICS

Abstract

The role of human rights in litigation and the pursuit of justice are emphasised in academic writing on

court decisions. What is also central to any pursuit of a fair outcome to litigation is that the court

determinedly pursue where the truth lies as between the various contending positions of the parties. This

article emphasises the centrality of truth to all human processes, including litigation, which seek to achieve

a just outcome to controversies. In that regard, some aspects of existing and past Irish law which may not

measure up to the pursuit of truth as an absolute value are highlighted and analysed.

Authors: Peter Charleton and Ciara Herlihy. Peter Charleton, a graduate of Trinity College Dublin, is

a judge of the Supreme Court and Ciara Herlihy, a graduate of University College Cork, works as a

Supreme Court researcher. This paper was originally presented as part of the UCD Humanities

Institute's public lecture series at the invitation of Professor Annette Fuchs. The lecture was dedicated to

Ciarán Brannigan.

Truth and the Law

Every novel has a pivotal point and so does every life. There may be many twists and

turns, but usually there is one event generating a realisation or decision that dominates all

that comes after. In Tolstoy’s Anna Karenina, the heroine’s dry and unsympathetically

portrayed husband, having discovered his wife’s affair, suggests that they maintain an

outward show of social propriety, but coming home one evening discovers with horror

that a military greatcoat hangs in the hall, announcing the presence of the man who has

demeaned him to a cuckold, Alexei Vronsky. The next day he goes to visit a famous

lawyer in Saint Petersburg. In the lawyer’s internal world, his mind roves over protecting

his expensively upholstered furniture from moths, and money dominates his thinking:

interrupting the consultation for another matter, he snaps at his clerk: “Tell her we don’t

haggle over fees!” Perhaps the most unattractive character in the entire book, Tolstoy

describes the lawyer’s eyes as shining like his patent leather boots, his small white haired

fingers intertwining and his look of laughter at Karenin’s pain, which he must hide by

averting his eyes from his client’s face but which, nonetheless, issue a malignant gleam. It

is not only the capture of such an important client that has fed his humour, but the

humiliation of one of Russia’s most important public servants who has had to come to

him for counsel. But, to the law, which every lawyer and every judge uses as their point

of reference: yes, the lawyer says, divorce is available for adultery, issuing the usual dull

recitation of basic legal rules, but absent desertion or physical defect, the best route to

divorce is adultery and this is most easily achieved not by discovery, as that is too closely

scrutinised, but by mutual consent. Despite his faults, Karenin has not been physically

unfaithful to his wife; he has just been so soulless and so inhuman as to be impossible to

love. And, above all, he wants to keep their young son in his care, an action that breaks

Anna’s spirit and ultimately leads to the leap between the carriages of a train that rips her

body to pieces. But ‘mutual consent’, the lawyer explains, means that each side, husband

and wife, admit physical infidelity with another. That has not happened, but the lawyer is

only concerned with the practicalities of getting from the law that which his client wants.

Despite Karenin telling him, “[i]t is out of the question in the present case”, the lawyer

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maintains his advice. After church the next day, the unhappy man writes to the lawyer

putting his affairs in his hands: ‘[w]ithout the slightest hesitation he gave him authority to

act as he thought best’.1

And there it is: the entire life of a courtroom encapsulated in one scene. The litigants

who want something, the law that stands in their way, and facts that can be manipulated,

misstated and lied about in order to achieve what people see as fair for them, as right for

their cause. And then there is what lawyers call the other side, the defendant or the

plaintiff, the applicant or the respondent, who oppose each other and who may not in

our age be subject to the religious scruples that make Karenin hesitate, but who battle to

make facts fit into the definitions that circumscribe the law and allow courts to make

rulings so binding that people may lose liberty or property and find deep unhappiness in

substantial measure. Even without the outcome that ultimately defines Anna Karenina’s

tragedy, every resort to litigation is a deadly business undertaken for the most serious of

reasons. Putting aside paranoid self-represented litigants who join in their cases every

court official and government minister whom they imagine has wronged them, the

litigant for amusement’s sake portrayed by Arthur Conan Doyle in The Hound of the

Baskervilles does not exist.2 The stakes are too high. ‘War is deception’, so they say,3 and

no one resorts to law without some measure of the sense of siege that admits of no other

recourse than the assault on real or imagined injustice that the law allows them.

But, it is wrong to imagine the law courts only as places of deception. Courts are tasked

with searching out untruth and not affirming it and with righting wrongs and not

affirming them. Many ringing pronouncements have been made that justice is at the heart

of any legal system. While many would agree with Socrates’ pronouncement that

adherence to justice leads us to follow better and happier lives,4 no judge would be wise

to forget what the unhappy Job pointed out:5 that the wicked prosper, that no one

reproaches them for their sins and that thousands join in the funeral processions of evil men

to their well-guarded tombs, where even the earth lies gently over their bodies.6 While

justice is the aim of every legal proceeding, truth is the object of every judicial exercise.

The relationship between truth, justice and law is unavoidable. You cannot have one

without the other. John Rawls views justice as ‘the first virtue of social institutions’, with

the requirement that laws and institutions, ‘no matter how efficient and well-arranged’, be

reformed or abolished if they are unjust.7 Truth and justice are linked, with both

described as the ‘first virtues of human activities’, and thus uncompromising.8

In Rawls’ development of his core concept of justice as fairness, he considered that

imperfect procedural justice was ‘exemplified by a criminal trial’, the trial itself being

‘framed to search for and to establish the truth’.9 In his view, perfect procedural justice

was rare ‘if not impossible’ to achieve,10 considering that it seems impossible because

legal rules cannot be designed to ‘always lead to the correct result.’ In this way, there may

1 Lev Nikolayevich Tolstoy, Anna Karenina (Signet Classics 2002) part 4 chapters 1 to 8.

2 Arthur Conan Doyle, The Hound of the Baskervilles (Penguin Classics 2012) chapter 8.

3 Sun Tzu, The Art of War (Pax Librorum 2009) chapter 1.

4 Plato, The Republic (Penguin Classics 2007).

5 Job 21: 27-33.

6 ibid. To state otherwise is to lie: deceit is no comfort, he proclaims.

7 John Rawls, A Theory of Justice (Harvard University Press 1971) 3.

8 Rawls (n 7) 4.

9 Rawls (n 7) 74.

10 Rawls (n 7) 74.