“This life is slow suicide, unless you read.”Herman Wouk

Wednesday, September 19, 2018

The Tragedy of the Moot Point

 The exchange below is adapted from a scene in T.H. White's The Once and Future King, Book IV: The Candle in the Wind, as a commentary on the recent sexual-misconduct accusations against President Donald Trump's nominee to the U.S. Supreme Court, Judge Brett Kavanaugh, which accusations, initially anonymous and confidential, have now become a national scandal through the efforts of Congressional Democrats. 

The Orkney brothers Agravaine, Gawaine, and Mordred, having plotted to overthrow King Arthur by removing the Queen and defeating his chief knight, Lancelot, enter the King's court.

MORDRED: We came to tell you of a treason of which we have learned. Queen Guenever is Sir Lancelot's mistress.  

ARTHUR: Are you ready to prove this accusation? 

MORDRED: We are. 

ARTHUR: You know that the Queen and Sir Lancelot deny it. 

MORDRED: It would be extraordinary if they did not. 

ARTHUR: And that such an accusation, on your standing alone, would supply the accused no possibility of their own defense or the public of any possibility of forming a reasonable belief of the facts by which justice may be dispensed through the courts. Indeed it is for such very reasons that the courts of law do not countenance claims of this nature -- claims as are not susceptible to being either proved or disproved.

MORDRED: We know all that. But the charge is now made, and neither the King nor the courts may deny standing to its maker or the possibility of its credibility. To remain silent on the claim would be no different than to deny it, and would stir a feeling of great unfairness in the public. 

ARTHUR: You are still very young, Mordred. You have yet to learn that nearly all the ways of giving justice are unfair. If you can suggest another way of settling moot points, except by evidence in a court of law, I will be glad to try it.

MORDRED: Because the standards of evidence require greater proof than we possess to overcome the innocence of the accused, does not mean that the accused is always in the right. 

ARTHUR: I am sure it doesn't. But then, you see, moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody. It is not as if you would have to argue against the accused in your own person. You could hire the greatest arguer you knew to argue your case. And the accused would, of course, get the best arguer he knew to argue theirs. It would be much the same thing if you each hired the strongest man you knew to fight for you. In the last resort it is usually the richest person who wins, whether he hires the most expensive arguer or the most expensive fighter, so it is no good pretending that this is simply a matter of brute force. 

MORDRED: Proved or no, the claim is now asserted in full view of the King's court. Neither the King nor his courts of law may deny the public its privilege of forming its opinion against the accused and of having its justice upon it. 

ARTHUR: An opinion, Mordred, is not a fact. And justice against a person must rest upon established facts. 

MORDRED: The law's justice rests on facts. We do not seek that kind of justice. 

ARTHUR: What is it you seek? 

AGRAVAINE: Justice for the House of Orkney. 

MORDRED [muttering]: I don't care a damn about my House. 

AGRAVAINE [ignoring Mordred]: To establish the standing in the realm to which our House is entitled.

ARTHUR: You tell me that my wife is the mistress of my best friend, and apparently you are to prove this by demonstration, so let us stick to that. I take it that you understand the implications of the charge? The implications are these. If you insist on a civil proof, instead of an appeal to the Court of Honour, the matter will go forward along the lines of civil proof. Should you establish your case, the man who saved you both from Sir Turquine will have his head cut off, and my wife, whom I love very much, will have to be burned alive, for treason.

AGRAVAINE: if you will excuse me, uncle, what I was going to say was this. We intend to settle the matter without civil proof or any appeal to the Court of Honour at all. The standards of proof as you said are designed to satisfy the public mind as to the truth of a claim. But what do we care about the contents of the public's mind when their excited passions will produce that which is needful? 

ARTHUR: Passion alone cannot support the execution of justice under the laws, particularly when it means condemnation to death. 

AGRAVAINE: Uncle, we are in no pursuit of any result offered by justice and the requirements of law to establish true facts; we pursue not that condemnation be carried out, merely that condemnation be declared, in whatever way it might. By this means we shall have justice for our House. We will not be denied this by any more general or public pursuit of truth established by law, in which we do not share besides. Let the public call for their heads, and the Queen and Lancelot will be forced into exile, and justice for our House will be achieved. 

ARTHUR: That may be, Agravaine: you are a keen advocate, and you are determined to have your result. But you underestimate that the public, once its passions have subsided, will once more take an interest in truth, and in justice. I suppose it is no good reminding you that, in the mind of a man not of Orkney, justice is a thing done to a man, not for a House. And that it rests upon truth revealed to a candid mind through facts revealed to be of sound quality and probity as the laws ensure. 

MORDRED: What need has the public of truth after justice is done? Why, an entire people must be convinced of a fact in your courts before it may do justice to a single person! Yet a lightning bolt may dispense justice though it knows not a single fact. 

ARTHUR: Then it is not justice. 

MORDRED: We do not want justice, we want the storm. 

ARTHUR: I understand the situation. 


Charles said...

Brilliant. Thank you.

Burl said...

Excellent!! Perhaps there is other commentary good King Arthur could make on our present day state of affairs... of state... lead on!!

Unknown said...

I really enjoyed this, thank you.