Public consultation: judicial qualification requirements

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Gxeremio Dimsum
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Re: Wow

Post by Gxeremio Dimsum »

[quote="Ashcroft Burnham":3tkj69y0][quote="Gxeremio Dimsum":3tkj69y0]Again, I get the feeling that trying to help you understand another point of view is a waste of time. [/quote:3tkj69y0]

Are you [i:3tkj69y0]seriously[/i:3tkj69y0] suggesting that you posting is a waste of time unless I end up agreeing with you? Why should I agree with you if you are wrong? Why is it any more a waste of time that I do not capitulate to your position than that you do not capitulate to mine?[/quote:3tkj69y0]

I didn't say posting was a waste of time unless you agreed with me. I said posting feels like a waste of time unless you understand me. There is a lot of room for disagreement when people feel at least understood.

[quote="Ashcroft Burnham":3tkj69y0][quote="Gxeremio Dimsum":3tkj69y0]The crux of your argument seems to be that "This is already decided. Over and done with. Move on." But numerous people disagree with the way things are going, as evidenced by the formation of the Simplicity Party, posts in the forum, and the polls at http://forums.neufreistadt.info/viewtopic.php?t=440 and http://forums.neufreistadt.info/viewtopic.php?t=534 that show more people want change than like the current system. [/quote:3tkj69y0]

Neither the manifesto of the Simplicity Party or either of the polls has anything to say about judicial selection. What your point is, therefore, I have no idea. Did you even read "on stability"?[/quote:3tkj69y0]

I read it when you originally wrote it. However, referencing something else you have written is not an appeal to authority that has any merit. It's not as if your previous posts are Scripture, or even high-level political treatises.
It seems true that you have no idea what my point is. That is why I wrote earlier that I feel misunderstood by you. All I can say is, think a little harder, perhaps try to think as if you were approaching the topic for the first time, as an outsider. You may begin to understand.

[quote:3tkj69y0]The next elections are going to be in January. As I have posted elsewhere, having started writing the Code of Procedure shortly after the Judiciary Act was passed, I am now more than two thirds done with it. We will be able to have cases presented in our courts well before January.

Furthremore, the fact that our judicial system is not fully functional is [i:3tkj69y0]more[/i:3tkj69y0], not less of a reason not to change it so soon after it has been established, since, until it is functional, there will not be any data upon which to base any evaluation of how it is performing that might show that decisions taken in its establishment were either wrong or right.[/quote:3tkj69y0]

The comparison could be made to the "Star Wars" defense program of the Reagan era, which could certainly not be judged on its effectiveness, but could be judged on what a waste of time it was and how solid the thinking behind it was.

I do hope that the cases which have been languishing on the dockets will be resolved before January. If not, justice will not have been speedy.

[quote:3tkj69y0]You well know that the people who participate in the forums are a minority of users. Indeed, you yourself were reluctant to become involved in forum discussion until I persuaded you to do so some months ago. As to who is active in the sims, it rather depends on the time of day.

Furthermore, there is no basis in reason for any assertion that the level of any such activity has any relationship whatsoever to the complexity or otherwise of our government. [/quote:3tkj69y0]

What is that the CDS does that no one else is doing? Government. It is clearly the reason that many are attracted to pay money to be part of this community. On what other measures should I base our health than the people's participation in the community and particularly its governance?

[quote:3tkj69y0]It does not deter you from participating: what are you doing now but participating?[/quote:3tkj69y0]

I would say I'm dissenting rather than participating. :)

Participation implies some level of power or ability to effect change. You have not indicated any willingness to allow the people who disagree with you to have any effect on changes.

[quote:3tkj69y0]Our purpose is not to have a government for the sake of having government: our purpose is to create a democratic community in which the rule of law prevails because democratic communities in which the rule of law prevails are better communities in general than other sorts of community. The purpose of our government is not to serve its own ends, but to serve the needs of all of our citizens, including (in fact, especially) those who are not themselves involved in the process of government. The only point of having a democratic community in which the rule of law prevails is because such a community is better for culture, commerce and general habitation than other sorts of communities, because we can co-ordinate things better and resolve disputes better.[/quote:3tkj69y0]

Hear, hear. When will we have a govenrment like that?

Interesting how you get around an argument about the problems of our current system by saying what a government should be, while at the same time actively blocking forward movement towards such a system.

[quote:3tkj69y0]I do not believe in complexity for its own sake: I believe in building institutions and systems that work [i:3tkj69y0]properly[/i:3tkj69y0], however simple or complex that such institutions or systems be. I do not believe that it is a valid criticsm of an institution or system merely to state that it is complex, rather than to show that any given part of the complexity has no useful function at all.[/quote:3tkj69y0]

How about this: the complexity of the current judicial system has stalled justice for at least a few situations over the last month?

[quote:3tkj69y0]Not on the definition of "government" that prevails in the UK.[/quote:3tkj69y0]

If you think we should leave our national prejudices at the door, you should stop appealing to how it is in the UK. It's certainly a fine system, but it's not the system of the majority of people in the CDS and shouldn't be our default way of doing things or looking at things. Neither should the US way, or the Spanish way, or the German way. Rather, we should admit our preconceptions and deal honestly with why we think one system or way of looking at things is better than another.

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Ashcroft Burnham
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Re: Wow

Post by Ashcroft Burnham »

[quote="Gxeremio Dimsum":liog27ag]I didn't say posting was a waste of time unless you agreed with me. I said posting feels like a waste of time unless you understand me. There is a lot of room for disagreement when people feel at least understood.

...

I read it when you originally wrote it. However, referencing something else you have written is not an appeal to authority that has any merit. It's not as if your previous posts are Scripture, or even high-level political treatises.
It seems true that you have no idea what my point is. That is why I wrote earlier that I feel misunderstood by you. All I can say is, think a little harder, perhaps try to think as if you were approaching the topic for the first time, as an outsider. You may begin to understand.[/quote:liog27ag]

I was not referring to "on stability" as some sort of authority: I was referring to it because I did not want to have to write all the arguments that I made there over again when I had already written them.

If you think that I am not understanding you, why don't you try to explain your ideas more clearly, rather than assuming that the fault is mine for not trying to understand you?

[quote:liog27ag]The comparison could be made to the "Star Wars" defense program of the Reagan era, which could certainly not be judged on its effectiveness, but could be judged on what a waste of time it was and how solid the thinking behind it was.[/quote:liog27ag]

That is hardly a valid comparison, given that the possibility of nuclear attack was wholly uncertain, whereas there is a virtual certaintly of having disputes that need to be resolved.

[quote:liog27ag]I do hope that the cases which have been languishing on the dockets will be resolved before January. If not, justice will not have been speedy.[/quote:liog27ag]

I certainly hope that they will be resolved before January. I daresay, our justice system will be far speedier than any real-world justice system can ever hope to be. For example, I undertake cases [i:liog27ag]pro bono publico[/i:liog27ag] for a legal charity in London. I am currently representing a lady who claims that she was the victim of disability discrimination. She was turned down for a job at the beginning of April 2005. I took her case on in September 2005. The hearing was in late April 2006. The judgment was in late June 2006. She was unsuccessful in most of the claim, but is appealing. There was due to be a prelimainry hearing in the appeal last week (although that was cancelled in the end). The date for the final appeal has not yet been set. If she succeeds in that, the case will have to be remitted to the employment tribunal at first instance for a remedies hearing. That is not atypical of the sort of timescales involved in real-world civil cases. It should also be noted that the UK has, compared to other nations, a moderately expeditious legal system, and that the specialist employment tribunals in which this lady's case was being heard tend to be more expeditious than the orindary courts.

Criminal cases tend to be a little faster, but can still be very slow. Three weeks ago, I was prosecuting a lady accused of using a false passport in September 2005. The case was a re-trial after a jury had failed to reach a verdict in May 2006. At the hearing three weeks ago, the lady was convicted. The sentence was adjourned until the 18th of December. In inquisitorial systems such as that which prevails in France, criminal cases can often take [i:liog27ag]years[/i:liog27ag] before they come to court at all.

Bearing in mind that the time that our cases are taking to come to court is largely due to the fact that the system has not been fully [i:liog27ag]designed[/i:liog27ag] yet, if we get any of the cases heard by January we will, by real-world standards, be the Michael Schumaker of legal systems. I fully expect that we will be in that position.

[quote:liog27ag]What is that the CDS does that no one else is doing? Government. It is clearly the reason that many are attracted to pay money to be part of this community. On what other measures should I base our health than the people's participation in the community and particularly its governance?[/quote:liog27ag]

Governance is not so much the thing that we are doing, but the way that we have organised ourselves to make everything else that we are doing or want to do work better.

[quote:liog27ag]I would say I'm dissenting rather than participating. :)

Participation implies some level of power or ability to effect change. You have not indicated any willingness to allow the people who disagree with you to have any effect on changes.[/quote:liog27ag]

No, participation means being involved in one way or another: literally, "taking part". A dissenter is taking part just as much as is a person who takes the decision.

Furthermore, it is not a meaningful criticism that I do not let people with whom I disagree influence my decisions: one ought always do what one genuinely believes is the right thing to do. If people are telling one to do what one believes is wrong, it would be dishonest to do it just in order to give into the pressure. If people actually persuade me that they are right, then that is another matter, but that requires a solid, reasoned argument that all fits together coherently.

[quote:liog27ag]Hear, hear. When will we have a govenrment like that?[/quote:liog27ag]

We already have such a government. It will be even more so when the Guild reform is completed (whatever form it takes), and when the code of judicial procedure is issued. People are working tirelessly towards both ends.

[quote:liog27ag]Interesting how you get around an argument about the problems of our current system by saying what a government should be, while at the same time actively blocking forward movement towards such a system.[/quote:liog27ag]

You merely assert, yet do not even attempt to substantiate with any real reasoning, the claim that I am doing anything to block movement towards a government that promotes a good civil soceity.

[quote:liog27ag]How about this: the complexity of the current judicial system has stalled justice for at least a few situations over the last month?[/quote:liog27ag]

It has not stalled anything, since, without the judicial system, there would be no justice at all. It is far better to get something right to-morrow than get it wrong to-day. As the system is being created, there may be a little delay before cases can be heard (but nothing in comparison to the delay that is endemic in real-life legal systems), but that is infiintely better than rushing the design of the system (and the selection of those who are to operate it), and risking recklessly causing real injustice.

[quote:liog27ag]If you think we should leave our national prejudices at the door, you should stop appealing to how it is in the UK. [/quote:liog27ag]

I am not appealing to "how it is in the UK": the point was just about the use of the [i:liog27ag]word[/i:liog27ag] "government". The meaning that prevails in the UK is different to the meaning that prevails in the US. Being British, I will naturally assume that any use of the word "government" bears the meaning with which I am familliar, and act on that assumption until I am expressly told otherwise, just as anyone from the US will do with the US version.

Ashcroft Burnham

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Post by Beathan »

I'm going to make a few last comments. Personally, I am inclined to agree with Dimsum, what we say seems to have no effect, no matter its validity. That said, dissent is essential so that, when time comes for a change, we have a basis on which to act and a direction in which to go. I believe that we have laid the groundwork here for future change. Hopefully that is enough.

Ashcroft wrote [quote:19wdjca7]This is a wholly unfair and inaccurate analysis of all that I have written on judicial selection. The point that I have made time and time again is that both legal skill and the tempremental qualities that you have discussed are equally important, and that, in our two-stage appointment process, the existing judiciary principally deal with the first, and the Public Judiciary Scrutiny Panel principally deal with the second. [/quote:19wdjca7]

The counterpoint I wrote is that legal skill is not as important as temperament and character, in RL or in SL. Further, the level of legal skill you require is not required, in RL or in SL. Finally, if we have a system of appeals, we are fully protected, even from relatively unskilled judges. It is unscrupulous, not unskilled, judges who truly pose a threat to law and the rule of law.

That said, I favor skilled over unskilled judges. However, I don't think it matters much how we get them, provided that we do, and that they are also people of character.

Ashcroft wrote

[quote:19wdjca7]Seven is not a majority of 61. [/quote:19wdjca7]

One is even less of a majority than is seven. The point I was making is that of the nine people who have taken up this discussion, one is neutral and seven have disagreed with you. I see no reason to doubt that that is meaningful. I even see no reason to doubt that this division is transferable to the electorate as a whole. The Simplicity Party, which arose in significant part from Diderot's resistance to the judicial system, is this political force made flesh. I have great hopes for it.

This brings me back to a larger point. Ashcroft's counterarguments fall into three categories -- 1. a dismal of an argument as nonsensical or incoherent; 2. a recasting of the argument as a misleading strawman, which is then attacked, and 3. an appeal to established rules -- as in, it was decided already so let's move on. All three of these arguments are fundamentally fallacious.

The first generally represents either Ashcroft's inability to understand an argument or his decision to dismiss it rather than any flaw in the argument. I have been perfectly able ot understand and follow arguments made by Diderot, Dimsum, Book and others that Ashcroft dismissed as nonsense. Others have been able to understand and build on my arguments, even when those arguments have been called "nonsense." If someone can understand and take up an argument, it is not nonsense.

The second argument is a classic strawman fallacy. For instance, on several occassions, Ashcroft has asserted that he had me backed into a corner at swordpoint and asked me to yield. On each point, from behind him, I tapped his shoulder and said, "Ashcroft, I'm not there -- I'm here."

The final argument is the most corrosive to democratic society. It is fundamentally flawed for several reasons. First, as I have pointed out, in democratic society, no institution is ever insulated from democratic review and rethinking. It might be unwise to prematurely reject an institution. However, if a democratic society reconsiders an institution -- even if that reconsideration comes before the institution is fully developed -- it is proper, even required, to implement that reconsidered opinion.

Further, I note that many of the judicial system's critics were not active in the debate on which Ashcroft relies. I was not a member of CDS. It seems thast Diderot did not actively participate until late in the process (possibly because of other commitments). However, even latecomers and sleepers should not be disenfranchised in democratic society. We maintain ourselves best by never closing debate -- always taking up and returning to issues, reconsidering them in light of new wisdom an insights.

Ashcroft's objection to this is that it creates instability. I disagree. It causes the branches in the tree of state to bend and some leaves to fall -- but the deep roots of our society remain embedded in the earth. This is not disorder, it is growth and life.

What we need is not a reactionary impulse to squelch debate and silence dissent. We need simple and easily justified institutions that can stand scrutiny and survive debate. (See my post in opposiiton to complexity). My criticism of the judicial system, from my first post, is that, unlike the other arms of government we have constituted in the CDS, the judicial branch does not have the simple strength I, and others like me, want our institutions to have -- and that makes me, and others, skeptical that it is illegitimate or unable to survive scrutiny.

A defense of the justice system aimed at stifling debate, rather than defending the justice system, tends to reinforce, rather than rebut, this skeptical impulse.

With regard to my suggestion that my ethical concerns should be given a public hearing and vote, Ashcroft writes [quote:19wdjca7]Do not confuse what is popular with what is right. Merely because we all recognise democracy as an important check on political power does not (and cannot, for it is incoherent) entail that what is popular must be right. That is to fall into the ad populam fallacy. To support democracy does not entail falling into the ad populam fallacy. [/quote:19wdjca7]

Surely this argument is fundamentally anti-democratic. In a democracy, the popular will is the first thing we look to. In an absolute democracy, it is also the last thing we look to.

Notably, I am not arguing in favor an absolute democracy (although others here might wish to). I agree with Ashcroft that sometimes the general public gets things wrong, and minority rights usually suffer when that happens. However, my primary point was that the democratic instinct must be to look first to popular understandings and social consensus. Further, if we find such understanding and consensus, we must take it very seriously and never reject it out of hand.

In this case, Ashcroft accused me of being ethically mistaken. I indicated that I was confident that most of our CDS citizens would not see it that way, but that if they did, I would take their position seriously and reassess mine in light of it. Ashcroft argued in response that if most people agreed with me, then most people would be wrong. This is not merely arrogant and undemocratic, it is extremely dangerous to our project, especially given the importance and power of Ashcroft as chief judge. I note only that, in democratic Athens, Ashcroft's statement here would have been a banishable offense.

In defense of his exam structure, and his claim that using it as the sole measuring tool for competence, Ashcroft writes
[quote:19wdjca7]A fair test, in a scientific sense, is a test that accurately evaluates the things that it seeks to evaluate in a consistent way. [/quote:19wdjca7]

I have noted, and will note again, that this begs the question. It assumes that the exam, as written, will accurately assess competence. It won't. It won't because qualified, competent people who share my ethical commitments will not be accurately evaluated. Therefore, even if consistent, it is not accurate. When choosing between accuracy and consistency, I choose accuracy. If I am elk hunting, I would rather hit with a killing shot once than tightly cluster several shots in a nearby tree (or, worse, in a painful but nonfatal wound area).

Beathan

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