[b:3ss5v92f][u:3ss5v92f]Introduction[/b:3ss5v92f][/u:3ss5v92f]
Pursuant to the keen-ness of many to increase the number of judges as soon as possible, I have been working this afternoon on the judicial qualification requirements. The system comprises of two parts: (1) the general procedure for applications and the standards; and (2) the application forms.
I have finished work on the first draft of the former, and I reproduce the same below for public consultation. I will then start working on the application forms, although those will not be released publicly until the application process formally opens, so as not to give any candidates an unfair advantage of having seen the form at an earlier stage.
All of this does, however, unfortunately mean that work on the Code of Procedure will be delayed whilst this work is undertaken, delaying, in turn, the time at which we will have a fully working judicial system.
[b:3ss5v92f][u:3ss5v92f]Timetable[/b:3ss5v92f][/u:3ss5v92f]
This document will be here for public consultation and discussion until Wednesday the 15th of November. On that date, I will, based on the consultation, publish the final version (if different from the existing version), and the application forms. If there is significant demand, I may extend the consultation period.
To ensure that candidates have enough time to complete their application forms fully, and to ensure that all people who are interested have time to apply, applications will be open for two weeks starting on Wednesday, closing on the 29th of November (assuming hat the consultation period has not been extended). If any person publicly applies for the closing date to be extended, or if fewer than two candidates return completed application forms within that time, I will consider extending the deadline.
I will then turn around the marking of those applications within a week, meaning that there should be a list of persons qualified to be judges by the 6th of December (assuming that neither the consultation period or the application deadline has been extended).
Thereafter, the progress of the applications will be out of my hands. I sincerely hope that, by then, there will be a Public Judiciary Scrutiny Panel, so that no more judges have to be appointed by a political body, although I will not delay the process just to ensure that that is so.
[b:3ss5v92f][u:3ss5v92f]The qualification requirements themselves[/b:3ss5v92f][/u:3ss5v92f]
Below is reproduced the list of qualification requirements. Any constructive feedback would be welcome. I also especially welcome (and, indeed, invite) suggestions as to ways of testing, in a written application (any other process would take too long) how some of the qualities can be tested (I have some ideas already, but I suspect that some of the qualities might end up going untested if I do not get any fresh ideas). In particular, I am interested in ideas of how to test fairness, integrity and pragmatism in a written application.
The standards:
***
[b:3ss5v92f]Introduction[/b:3ss5v92f]
The office of Judge of Common Jurisdiction is an important public office in the Confederation of Democratic Simulators, carrying great responsibility. The private interests litigants before the Courts of Common Jurisdiction, and the public interest in the fair and effective administration of justice all rest on the skills and personal abilities of the judges in whose hands a considerable amount of power in disposing of individual cases rests. For that reason, it is of the highest importance that those qualified to be Judges of Common Jurisdiction are of the utmost calibre, both in terms of their legal and general analytic ability, and also their fairness and pragmatism.
This set of requirements is the standard against which applicants for qualification for judicial office will be assessed when the Board of the Judiciary Commission considers completed applications, which applications will be set out according to a form provided. The questions asked will be rigorous ones, since the qualification process, by virtue of who it must qualify, must also be a rigorous one. The standard against which applications must be assessed must take into account in particular the constitutional security of tenure of Judges of Common Jurisdiction, which means that they can only be removed in truly extreme circumstances.
In setting these standards, it is hoped that the judiciary of the Confederation of Democratic Simulators will, as it grows to meet the growing needs of the Confederation, maintain the highest possible standards of integrity, impartiality, fairness, legal knowledge, intellectual and analytic skill, and pragmatism. Only with such standards can a judicial system hope to be respected, or to perform effectively those functions that any judicial system by its nature exists to perform.
[b:3ss5v92f]Assessing applications[/b:3ss5v92f]
All applicants for qualification for judicial office shall have their applications assessed according to their standard in the following areas:
* analytic skill;
* legal knowledge;
* ability to communicate effectively;
* integrity;
* fairness; and
* pragmatism.
Each of the questions (or, in some cases, sets of questions) on the application form will test an applicant's ability in one or more of those areas. The examiner(s) of the Board of the Judiciary Commission will, in respect of each question answered, award one of four grades to each answer in respect of each of the areas outlined above tested:
* outstanding;
* acceptable;
* nearly acceptable; and
* unacceptable.
Each question (or set of questions) will be weighted (by a weighting score of between 1 and 10) as regards each of the six areas tested. In order to be qualified, any candidate must not have any question with an “unacceptable†level of performance, and no more than 10% “nearly acceptableâ€. “Nearly acceptable†answers in any given area may be offset against “outstanding†answers in that area to a maximum of 25% . That means that, a candidate may pass in relation to any given area with up to 25% answers of “nearly acceptableâ€, provided that there are (in the case of 25% “nearly acceptableâ€, diminishing if less) 15% of “outstanding†answers in that area.
A candidate must pass each of the six areas in order to be qualified. However, a candidate who fails two or fewer areas by a small margin, and whose overall performance is considered to indicate real potential for judicial office, may, if he or she reapplies within three months of the promulgation of the result in the original application, need to be assessed again only on those areas on which he or she failed. Whether to award any candidate who would otherwise fail a partial fail is ultimately a matter of discretion for the examiner(s) of the Board of the Judiciary Commission. Thus, there are three possible overall outcomes of a qualification application:
* pass;
* partial fail; and
* fail.
Only candidates who achieve a pass may have their names put forward to the Public Judiciary Scrutiny Panel (or Representative Assembly, if the Public Judiciary Scrutiny Panel is not constituted with at least three members) for appointment.
To ensure that the examiner(s) of the Board of the Judiciary Commission mark applications according to merit, and merit alone, the applications will be anonymised before being passed to the examiner(s). This means that a neutral and trustworthy third party will remove the candidates' name, and replace it with a number, and send the applications on to the examiner(s). The examiner(s) will mark the papers, and return them to the neutral third party, who will publish the results, along with the candidates' true names.
[b:3ss5v92f]Analytic skill[/b:3ss5v92f]
Analytic skill is the abstract ability to understand, analyse and parse information, and the ability and willingness to reach conclusions by, and only by, a process of careful and expressible reasoning. It is the foundation of intellect, which is one of the most important characteristics of any judge. Analytic skill is separate from any particular knowledge or understanding of the law itself, although it is assessed in this context by reference to answers to legal questions. The giving of reasons for decisions is one of the most important functions of any judge, and the ability to reason and analyse well is therefore also of critical importance.
[b:3ss5v92f]Legal knowledge[/b:3ss5v92f]
Legal knowledge is about:
* the ability to learn and remember express statutory and constitutional rules;
* the ability to parse those rules and apply them to particular cases;
* the understanding of how common law systems of precedent operate; and
* the ability to apply the law of the Confederation of Democratic Simulators (and, if necessary, develop that law by judicial precedent) without ever unthinkingly applying a principle of law merely because it is a familiar principle from a first-life jurisdiction, however basic that that principle may appear.
Legal knowledge is similar to analytic skill, since its demonstration requires intellect, but, unlike analytic skill, it is specific to law, and, in particular, to the law of the Confederation of Democratic Simulators. Judges must know not only what the Constitution, statues, delegated legislation and case-law says, but what it means, and how that can be applied to real situations in a fair, reasoned and consistent way. The separateness of our legal system from the laws of first-life legal systems is also important, and litigants cannot be expected to know or follow any given first life system of law. It is essential for its success that our legal system evolves truly independently.
[b:3ss5v92f]Ability to communicate effectively[/b:3ss5v92f]
The ability to understand and apply law, and make judicial decisions, is of little use if that understanding, and those applications and decisions are not effectively communicated. Ability to communicate effectively involves:
* an especially high degree of proficiency in the English language;
* the ability to communicate precisely and comprehensively the reasons for decisions;
* the ability to articulate highly complex and/or abstract concepts and sets of facts clearly;
* the ability to structure long passages of writing so that the meaning can be followed readily;
* the ability to convey authority in court;
* the ability to direct juries in in ways readily understandable but also sufficiently precisely;
* the ability to explain the effects of decisions to unrepresented litigants clearly but precisely;
* generally, the ability to use forms of language and expression suited to the audience and circumstances, without oversimplifying or creating misleading impressions.
Law is always going to be a complex field, so clarity of communication is paramount. It is important that people, not all of whom have a legal background, understand what is being said by judges, but also that attempts at making what is said easy to understand are not taken so far that the vital precision of what is being communicated is compromised. The practice of law is, in many respects, the practice of verbal communication, so the ability to express oneself clearly in words is an inherent part of the ability to be a judge.
[b:3ss5v92f]Integrity[/b:3ss5v92f]
Integrity is more than just about avoiding bias or corruption, although those are important, too, of course; integrity is about giving judgments on the basis of, and only of, the evidence in the case (where the judgment is one of fact), and the legal sources (where the judgment is one of law), and not being influenced by factors that judges should not take into account, such as what is popular, the judge's own political views, or any personal sympathy with the position of one of the litigants. It also means the avoidance of all forms of intellectual dishonesty: sometimes, judges are compelled by the law to reach conclusions that they dislike; they should not, in those circumstances, attempt to find illegitimate ways to reach instead the conclusion that they would prefer. That we do not permit a man to rule, but the law, applies to judges as well as to politicians.
[b:3ss5v92f]Fairness[/b:3ss5v92f]
A judicial system must be fair if it is nothing else: justice means fairness. At the most basic level, fairness requires treating relevantly like cases alike, and relevantly unlike cases unlike. That, in turn, involves an ability to tell which characteristics of similarity or dissimilarity are relevant, which is related to analytic ability.
Beyond that most basic level, fairness involves an understanding of human motivations, the tendency to be steadfastly respectful to people, whatever their background or views, and whatever the judge's personal opinion of the person or her or his conduct; the ability to deal with litigants with politeness and dignity, but, simultaneously, the ability to be very firm when the need arises. Fairness also involves the ability to be firm and decisive, without being arbitrary, and the absence of any form of prejudice or any tendency thereto.
[b:3ss5v92f]Pragmatism[/b:3ss5v92f]
The practice of law is not an academic exercise: real, practical decisions are being made about real situations. Intellectual and academic ability, and the capacity to be fair, are vital, but not sufficient for a person to be an effective judge. Judges must also be practical, and, whilst justice should never be sacrificed for expediency, all other things being equal, it is better to be expedient and expeditious than inexpedient and inexpeditious. In particular, pragmatism involves:
* the ability to manage time effectively so as to discharge judicial duties within a reasonable period;
* the ability to realise what orders of the court (both procedurally and substantively) will and will not work to achieve their desired ends;
* the ability to understand how the unique challenges of operating a judicial system in a virtual world impact on how judicial decisions should be taken and judicial time organised; and
* the ability to distinguish, when making judgments of fact without a jury, or when summing-up to a jury, how realistic that any given suggestion about the facts in dispute made by or on behalf of any litigant really is.