Truth or Consequences
Aníbal Sabater on the Errors of Legal Modernism
The New Digest is delighted to offer a guest essay from Mr. Aníbal Sabater, a frequent contributor to our pages and a leading commentator on classical legal themes. Mr. Sabater is a lawyer in New York specialized in international arbitration.
A distinctive mark of legal modernism is the mistaking of means for ends. Examples abound,1 but in the field of litigation few are more prominent than the enthronement of “due process” (in reality, a means) at the expense of truth itself (the end).
At the 1984 Dayton Law School commencement address, a distinguished modernistic legal scholar set forth his case as follows (the quote is long but necessary):
“Lawyers really have no more interest than anyone else—and no more expertise than anyone else—in what the substance of our laws should be. If you want to know whether deregulation is good or bad, ask an economist. If you want to know whether indeterminate prison sentences are good or bad, ask a criminologist or penologist. What lawyers are good at, what lawyers are for, is implementing these decisions in a manner, through a process, that is fair and reasonable. I fear that this characteristic of ours, which is perhaps our most distinctive and profound characteristic, will never be understood by the layman. It is the source of the most common criticism of lawyers: that we can argue both sides of a case. But of course we can—because except to the extent that a client’s interest may be involved, we as lawyers have no interest in a particular outcome, but only in assuring that the outcome be fairly and intelligently arrived at and clearly and precisely expressed!”
“To show you what I mean—to demonstrate how corrupted by process your thinking has already become—let me read to you a statement, written by the nineteenth-century English essayist Sydney Smith, intended as an indictment of lawyerkind, but which will, I expect, not seem to you much of an indictment at all: ‘Can anything be more preposterous than this preference of taste to justice, and of solemnity to truth? What an eulogium of a trial to say, “I am by no means satisfied that the jury were right in finding the prisoner guilty; but everything was carried on with the utmost decorum. The verdict was wrong; but there was the most perfect propriety and order in the proceedings. The man will be unfairly hanged; but all was genteel!”’”
“Now the lawyer’s reaction to that statement is ‘Good grief, what more can the man expect! If by “perfect propriety and order in the proceedings” there is included (as there must be) the notion that there was the minimum amount of evidence necessary to enable a reasonable jury to convict, then it is not my job to second-guess the jury!’ This attitude which stresses the propriety of process rather than correctness of result is born, of course, of that skepticism I mentioned earlier. We lawyers know from experience that a lot of different people have a lot of different views as to what is a ‘correct’ result. That is what separates the kingdom of Caesar, with which we deal, from the kingdom of God. But for the fact that he was dealing with the wrong kingdom when he asked the question, Pontius Pilate was quite right to inquire ‘What is truth?’ Indeed, in the realm of political science, as opposed to theology, he was ahead of his time. That skepticism is the very basis for preferring democracy to enlightened autocracy. And the paramount truth of democracy is process.”2
This I-know-better-than-the-classics attitude is sheer sophistry and ignores the very reason why our rules of procedure, including due process itself, exist. Appeals are instituted because the legislator knows that judges may err and their judgments may warrant amendment; judges are required to be impartial so that they may more readily arrive at a correct determination; both parties are afforded the opportunity to present their case in order that the tribunal may have the information necessary to ascertain the truth.3 And so on and so forth. If we do not acknowledge that the process is ordained to the service of truth (and that there is a truth to be served), then we have no need of the process at all.4 A coin toss or trial by fire will do.
To our Dayton speaker, however, one may apply what Elizabeth Anscombe said of Hume, “namely that, although he reaches his conclusions—with which he is in love—by sophistical methods, his considerations constantly open up very deep and important problems.”5 What are those problems here? Two certainly come to mind.
First, there is the thorny issue of the limits of the pursuit of truth. Aquinas, reflecting centuries of legal thought before and after him, put it simply—the judge must arrive at the truth within the boundaries of the process duly set out by the legislator, without using his private knowledge or relying on information unduly obtained.6 In other words, the judge must—and can—only follow the truth that arises from the record. This is a prudential limitation that the legislator has instituted to try to establish a balance between finding the truth and protecting other worthy interests such as predictability, fair game, and efficiency. Truth is a goal of the process, and surely the most pre-eminent, but not the only one.
Second, truth can indeed be difficult to ascertain. The facts may be unclear, the law or the contract may be unclear, and the application of the law or contract to the facts may be unclear. Yet again, that is precisely why the legislator has devised rules on burden of proof, preponderance of evidence, and canons of construction and interpretation. Of course, these rules facilitate but cannot ultimately eliminate the judge’s daunting task of “getting it right.” Yet they all confirm that the goal is precisely getting it right.
The modernist position thus collapses upon examination. It claims humility—’who are we to say what truth is?’—but practices a far more radical arrogance: the assertion that there is no truth to be found, or that if there is, we need not concern ourselves with it. This sophistry is most insidious and destructive. For if truth were truly unavailable to human reason, then not only would judicial process be pointless, but so too would every legal enterprise that requires discernment between right and wrong, the just and the unjust, the valid and the invalid.
The classical legal tradition, by contrast, proceeds from the acknowledgment that truth exists and that it can be known—imperfectly, fallibly, but genuinely. Our procedural rules do not exist to replace the pursuit of truth with the worship of process; they exist to channel that pursuit within rational bounds. When we forget this, we do not merely err in legal theory; we hollow out the law itself, leaving the empty shell of the name without any substance.
The relationship between common good and human rights is an obvious example of this means-for-end confusion. Pacem in Terris (1963) was clear that fundamental rights are a means towards the common good: “It is generally accepted today that the common good is best safeguarded when personal rights and duties are guaranteed.” (Para. 60.) Many modern legal instruments, however, tend towards the Kantian assertion, or implied assumption, that the end of the government is just the protection of human rights. See for instance the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” (Emphasis added.). Against this, see again Pacem in Terris: “The attainment of the common good is the sole reason for the existence of civil authorities.” (Para. 54.)
Antonin Scalia, Scalia Speaks: Reflections on Law, Faith, and Life Well Lived 93–94 (2017). Is the whole of the Dayton speech as terrible as these paragraphs? Actually not. The rest is a paean on the need for lawyers to be precise in their expression and wise in their judgement—all of which is odd if lawyers’ only real business is to care about process and solemnity rather than truth. (Precision and wisdom indeed presuppose a truth that is being correctly expressed or pursued.). Professor Vermeule has shown that Justice Scalia gradually departed from his classical commitments and considers that this departure took place after 1988-1989. Adrian Vermeule, The Original Scalia, 2 Harv. J.L. & Pub. Pol’y Per Curiam 1 (2023). The Dayton speech suggests that a serious strain of anti-classical modernism was already present in Scalia’s mind as early as 1984 ... or the provocateur in him may have just said things he could not seriously believe in.
This is nothing new. In re Gault, 387 U.S. 1 (1967) (Black, J., concurring): “It is these instruments of due process which enhance the possibility that truth will emerge from the confrontation of opposing versions and conflicting data. ‘Procedure is to law what ‘scientific method’ is to science.” And quite recently Pope Leo XIV just confirmed it: “... the sacred power exercised in ecclesial judicial processes [is] in the service of truth ... A fundamental aspect of pastoral service operates in judicial [ecclesial] authority: the diaconia of truth.” (Audience with participants in the formation course of the Roman Rota, November 21, 2025, available at https://press.vatican.va/content/salastampa/en/bollettino/pubblico/2025/11/21/251121h.html.)
A trite rhetorical objection to this is—very well, but don’t judges just get it wrong too often too? This, however, is no real objection. Of course, sometimes even if truth was to be pursued, the decision of the judges will not reflect it. But this does not discredit the legal system or turn it into a nihilistic behemoth. It discredits the person who judged. Our rules of procedure exist on the notion that such erroneous outcomes, while possible, are not ideal or encouraged. Another objection asserts that the goal of the process is to furnish the judge not with elements to rule in truth but with inputs to issue a judgement variously labelled as reasonable, persuasive, logical, or legally compliant. But this is sophistry all over again and circumlocutions to avoid using the term “truthful.” A reasonable judgement is more truthful than a non-reasonable judgement, and so on.
E. Anscombe, Modern Moral Philosophy, in Human Life, Actions and Ethics: Essays by G.E.M. Anscombe, 172 (2005).
St. Th. II-II, Q. 67, a. 2.
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As an aside, Scalia also misunderstands Pilate’s question to Our Lord. It was not a skeptical rhetorical question but a sincere query as Pilate grappled with the difficulty of deciding what to make of his prisoner.
I address this at length here.
https://open.substack.com/pub/basedbarrister/p/the-fall-of-pontius-pilate-in-the?r=2ck8gy&utm_medium=ios
Interesting piece. I was not familiar with this Dayton speech by Antonin Scalia, and the reference to Pilate at the end got me thinking. Hans Kelsen presented a very similar interpretation of that episode, arguing that skepticism towards truth (and truths) is indeed essential to democracy, unless one is ready to go all the way—even accepting the possibility of death, Christ-like, to defend that which one believes is fundamentally right.
It is not the first time that some of Scalia’s statements have reminded me of Kelsen—and so this is not the first time I have wondered: is it a coincidence that Kelsen and Scalia presented such a similar argument? Was it because of their shared positivist tendencies (although I believe that Scalia’s positivism was more methodological than ideological, as it was in Kelsen's case), or had Scalia read Kelsen—channeling him, at least to some extent, into his own thinking about law? (Until now, I have found only one explicit reference to Kelsen in Scalia’s extrajudicial writing, regarding the question of whether a judge can analogically extend a law to cover cases that were not taken into account by the lawgiver; interestingly enough, Scalia approvingly quotes Kelsen’s position, which departs from the classical understanding of that power).