Public consultation: judicial qualification requirements

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Ashcroft Burnham
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Post by Ashcroft Burnham »

[quote="Beathan":288lkuok]In the application, Ashcroft asks, essentially [quote:288lkuok]What is Justice? Answer in 750 words.[/quote:288lkuok] I'm not sure that my criticism requires more than this quotation. Last I checked, both Socrates and Diogenes spent lifetimes, and far more than 750 words, even trying to define this question without beginning to answer it.[/quote:288lkuok]

This is not a question of vagueness: the question "what is justice?" is very precise: it asks for an analysis of a particular concept. There is no vaguness in that. Your criticism is that answering it is too difficult, not that the question is too vague. I do not agree that the answer is difficult. There is a conceptual distinction between analysing a concept in the abstract, and providing a complete account of every last thing that that concept entails in practice. There is most certainly nothing overly onerous about asking candidates to exaplain what, in the abstract, they think that justice is ultimately all about. Those who cannot provide such an answer may wish to reconsider their suitability for an office that requires applying that concept to nearly every decision made. A person cannot very well apply a concept of which he or she has so little understanding that he or she cannot even answer a question asking what it is.

[quote:288lkuok]Also, Ashcroft indicates that he believes that he has responded to my criticisms, but that I have not replied. The problem is that, as I have said in my replies, I don't think Ashcroft has in fact provided any substantive responses to my criticisms. Rather, he has posted defenses of his process that do not actually respond to the criticism in any substantive way.

A case in point concerns my oberservation that, unlike an nomination and confirmation process, there is nothing in the current application that gets to critical issues of judicial character and temperament. These critical aspects of the office (aspects that I personally consider to me more critical aspects than the analytical abilities on which the examination focusses) are not addressed by the application process at all. To this criticism Ashcroft answers: (1) the statement of judicial qualification includes these issues and (2) these issues are particularly difficult or impossible to reveal through examination. However, this criticism makes rather than answers my point. To be qualified, judges mush have good judicial character and temperament, but there is no guarantee, even a slight guarantee, from the application process that our judges will have such character and temperament.[/quote:288lkuok]

I have provided a response to this that you have not paraphrased above: that is it that the [i:288lkuok]qualification[/i:288lkuok] process was never intended to be a complete assessment of a person's suitability to be a judge. It was intended to be part of a wider process. The PJSP's power to decide which of those qualified candidates are appointed completes the process. The role of the existing judiciary is ensuring that candidates have those elements of judicial skill (knowledge of the law, legal reasoning, general reasoning, ability to be practical in situations that might arise) that are best assessed by the existing judiciary, whereas the role of the PJSP is in assessing those characteristics (such as temprement and character) that can equally well be assessed by anyone with common-sense and judgment.

Furthermore, I have already explained that there is an important distinction between criticising the [i:288lkuok]constitutional framework[/i:288lkuok] of the process and the way in whcih the process is applied in practice. All of your criticisms so far in substance amount to criticisms of the latter type, yet, by writing of advantages and disadvantages in reletion to a "nomination/confirmation" process, you are claiming that they are of the former type. It is not clear why you have muddled the two, or why you have not responded to my earlier post where I pointed out that conflation.

[quote:288lkuok]Personally, I believe that each of Ashcroft's responses amounts to a similar analysis. "That might be a problem -- but the examination would be impossible otherwise, so I'm going to pretend it is not a problem." This response is only proper if we are deeply committed to examinations as qualifying tools. I see no reason to maintain that commitment, in the face of my criticism, when, as I point out, there are far better and far more nuanced and far less burdensome qualifying tools available.[/quote:288lkuok]

As far as I recall, you have not suggested alternative qualification [i:288lkuok]tools[/i:288lkuok] in this thread (I do not have time now to read back through all of it), but an alternative framework, that there is no basis for suggesting is in any way linked to the particular tools used. The only alternative tools that you have suggested is the process of choosing judges from people who have demonstated to the existing judiciary their ability over time by appearing as advocates in our courts, which I think is a very good idea, but cannot, of course, be applied for a process at a stage this early, before there have been any cases.

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Post by Beathan »

[quote:3eqyvbd2]This is not a question of vagueness: the question "what is justice?" is very precise: it asks for an analysis of a particular concept. There is no vaguness in that. Your criticism is that answering it is too difficult, not that the question is too vague. I do not agree that the answer is difficult. [/quote:3eqyvbd2]

I disagree. Justice, properly understood, is a multifaceted concept. It breaks down into many parts, each of which is conceptually distinct from the other parts. For instance, retributive justice is very different from social justice, which is different from economic justice. I agree that the question is difficult. However, that is not what I shrink from. I shrink from the vagueness of the the question -- just as Socrates did. Further, like Socrates, I believe that the wise man knows that he can probably never understand the question, let alone answer it. Therefore, like Socrates, and unlike Ashcroft, I do not think that we need to get to the conceptual bottom of the concept of justice before we can apply it. If that were the case, there has never been justice in our world and there never will be.

Further, Ashcroft now raises, for the first time, his belief that his qualification process is, in fact, a selection process. He states that only candidates qualified through his process can be selected for service. This is a selection process, not a qualification process. It is just a two-part selection process. Candidates have to be selected for consideration and then again selected for service after consideration. I am concerned that is places far too much power in Ashcroft's hands for comfort. I remain committed to the principle that the law, rather than any person, rules and should rule. This selection process slides into the realm of personal rule, at least insofar as the judiciary is concerned.

Further, once again, I have proposed an alternative process -- nomination by the S.C. and approval by the R.A. My proposed process, unlike the current process, would provide an important initial check and balance on the judicial branch without sacrificing the independence of that branch once constituted and operating. Further, my proposed process would be simpler to administer and would, I think, be far more able to qualify people under Ashcroft's statement of judicial qualification than Ashcroft's examination process could ever hope to be.

To this end, I would like to hearken back to a post by Justice Soothsayer early on in this debate. In that post, Jsutice indicated that we could determine who was analytically qualified (and possibly even qualified in terms of character and temperament) by merely reviewing postings in this forum. I agree. I think that we can be completely comfortable with and confident in a selection process in which the S.C. nominates candidates that it believes will perform the judicial office well and with sufficient analytical ability based on the S.C.'s considerations of the tone, content, substantiveness and tenor of the nominee's postings in these forums. However, as a further protective step, I would still recommend a final approval process, by R.A. hearing, so that this S.C. judgment can be checked and so that candidates can be tested for troubling tendencies or character flaws not revealed in the forum postings.

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Post by Beathan »

Ashcroft writes [quote:38kjjurl]If Hitler (or Milosevic, or Dr. Evil, or any other archetypal villain) were to be a judge, there would be rather more important things to worry about than hypothetical questions in the qualification requirements.

Any judicial system necessarily and unavoidably rests on the trustworthiness of its judges: that is why the qualification requirements are so strict in the first place. If we start with the premise that judges cannot be trusted to at least some significant extent, the inevitable conclusion is that the rule of law is not attainable at all. That is not a conclusion that the experience of the operation of the judiciary in most civilised countries compels.[/quote:38kjjurl]

This is certainly true. However, it also proves, rather than challenges, my point. In order for the rule of law to be attainable, we must have a problem that ensures and protects, to the extent possible, the integrity and ability of our judges. If we do not, we are in serious trouble.

That is why I have repeatedly challenged this process as being deficient in that it is unable to provide this assurance. The process does not approach, let alone reveal, critical issues of character and temperament. In this regard, it is woefully deficient. A nomination and approval process would remedy this.

This is a separate and independent criticism I have advanced in addition to my ethical challenge to hypothetical questions. They should not be lumped.

Second, Ashcroft's reference to seminal cases as providing clear rules of law is an instance of special pleading. I do not deny that seminal cases do provide clear answers in many (even most) cases. However, in each of those cases, the facts were considered in their context and the judge determined that there were no special features that would suggest or require a departure from precedent or an application of different precedent. Proper judging is not a matter of pigeon-holing cases, even if that's what it looks like from the outside. Proper judging requires a full consideration of each case on its own merits under the guidance of established legal principles. Use of detailed hypotheticals in judicial selection is highly corrosive to this process, for the reasons I have provided. I have yet to see a substantive answer to this problem.

There is a further issue underlying this debate. Ashcroft poses the proposition that there is some activity called "good legal analysis" that judges are engaged in. This I accept. However, he then asserts that there is something unique about this activity that makes it unlike all other kinds of good thinking such that it can only be proven through questions which specifically call for legal analysis. I disagree with this.

To me, good legal thinking is just an instance of good thinking applied to a particular subject matter -- the law. Other than its subject matter, there is nothing unique to good legal thinking that distinguishes it, in kind, from good thinking generally. Further, that subject matter, the law, is expressed in written language. These writings exist as linguistic artifacts in our world so that they can be discovered, read, and understood by readers.

On this basis, I think we can parse good legal analysis into three parts -- identify three skills which are necessary and sufficient for good legal reasoning. First, we need good reasoning ability. Second, we need good research ability such that the practitioner can find and read the relevant law. Third, we need good linguistic ability such that the practitioner can understand what she reads. All three of these skills can be fully tested without resort to legal hypotheticals -- and without raising the ethical problems hypotheticals present.

However, even when we discover good legal analytical ability, we have not yet reached a point of satisfaction when qualifying a judge. Other issues, issues of character and temperament, loom as critical unresolved issues.

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Post by Justice Soothsayer »

[quote="Beathan":yxyyuihg]...I would like to hearken back to a post by Justice Soothsayer early on in this debate. In that post, Jsutice indicated that we could determine who was analytically qualified (and possibly even qualified in terms of character and temperament) by merely reviewing postings in this forum. I agree. [/quote:yxyyuihg]

Thanks for the endorsement of my views. I'm still waiting to see the outcome of the current qualification process before deciding on whether it should be changed.

I do believe that character and temperament are important ingredients in those who we choose to judge us. A subset, or perhaps a separate characteristic, is a sense of humor. One of the judicial qualification questionaire items asks what the prospective judge would do if a party suddenly exclaimed "this is a kangaroo court with no jurisdction over me". I would argue that one correct answer could be "I would rezz my furry kangaroo avatar", though I would suspect Ashcroft might not mark this answer as acceptable as it does not comport with judicial dignity.

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Post by Beathan »

Justice wrote [quote:b9mg2ns8]I do believe that character and temperament are important ingredients in those who we choose to judge us. A subset, or perhaps a separate characteristic, is a sense of humor. One of the judicial qualification questionaire items asks what the prospective judge would do if a party suddenly exclaimed "this is a kangaroo court with no jurisdction over me". I would argue that one correct answer could be "I would rezz my furry kangaroo avatar", though I would suspect Ashcroft might not mark this answer as acceptable as it does not comport with judicial dignity.[/quote:b9mg2ns8]

The best judge I have ever practiced before also had perhaps the best sense of humor I have ever found. He also had a knack of knowing how to use it to disarm situations with dignity and to cut to the chase in labored presentations.

Personally, in that context, I might say that I've always been found of Australians and note that while we have a koala, I have not yet seen a kangaroo.

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Post by Ashcroft Burnham »

[quote="Beathan":ltouqgbg]I disagree. Justice, properly understood, is a multifaceted concept. It breaks down into many parts, each of which is conceptually distinct from the other parts. For instance, retributive justice is very different from social justice, which is different from economic justice. I agree that the question is difficult. However, that is not what I shrink from. I shrink from the vagueness of the the question -- just as Socrates did. Further, like Socrates, I believe that the wise man knows that he can probably never understand the question, let alone answer it. Therefore, like Socrates, and unlike Ashcroft, I do not think that we need to get to the conceptual bottom of the concept of justice before we can apply it. If that were the case, there has never been justice in our world and there never will be.[/quote:ltouqgbg]

You tell me that the question cannot be answered, and, when I probe you further on the point, provide what is evidently the beginnings of a sensible answer. I may not agree with your analysis, but that is not what the question sought to establish: it sought to establish the ability to analyse in general, combined with an understanding of what justice is all about. An answer that developed the above theme would probably be marked as acceptable, even though I might diagree with some of the analysis.

[quote:ltouqgbg]Further, Ashcroft now raises, for the first time, his belief that his qualification process is, in fact, a selection process. He states that only candidates qualified through his process can be selected for service. This is a selection process, not a qualification process. It is just a two-part selection process. Candidates have to be selected for consideration and then again selected for service after consideration. I am concerned that is places far too much power in Ashcroft's hands for comfort. I remain committed to the principle that the law, rather than any person, rules and should rule. This selection process slides into the realm of personal rule, at least insofar as the judiciary is concerned.[/quote:ltouqgbg]

I am not raising any such thing for the first time: the constitution could hardly make it clearer that only the qualified may be appointed. That has always been the whole point of the current scheme. The point was to ensure that only those who were genuinely suitable for judicial office could be appointed, to prevent bodies other than the judiciary from appointing candidates who have insufficient judicial skill to maintain the quality and effectivenss of the judicial system. If we do not have sufficiently skilled judges, our judicial system will be in grave danger of collapse. Existing judges are uniquely qualified to determine who is so skilled, because they are the ones with the legal training and the experience of handling actual cases. What you proposed above as a "compromise", appointment without qualification, is no compromise at all: the compromise is the system as it presently stands. The compromise was made between those who believed that the judiciary should be soeley responsible for appointing judges, and those who believed that judges should be appointed by a process involving elected representation. It was a compromise that was forged after intense and lengthy debate, unprecedented, as far as I am aware, in the history of CDS politics, and it is not a compromise that can properly be torn apart less than a month after having been instituted because some people do not like what would always have been the effects. It is also vitally important to separate the question of whether any given person or institution should have any given power, and whether one agrees with the way in which that person or institution has exercised such a power on any given occasion. Disagreeing with the latter does not entail disagreeing with the former.

[quote:ltouqgbg]Further, once again, I have proposed an alternative process -- nomination by the S.C. and approval by the R.A.[/quote:ltouqgbg]

You have not made it clear (1) what advantage that the Scientific Council has over the existing judiciary in determining whether applicants have sufficient judicial skill; and (2) what advantage that the Representative Assembly has over the Public Judiciary Scrutiny Panel in determining who of those qualified candidates to appoint. It should be noted that what you discuss was an option that was specifically posited and rejected at the stage when jthe process of judicial appointments was being debated by the legislature.

[quote:ltouqgbg] My proposed process, unlike the current process, would provide an important initial check and balance on the judicial branch without sacrificing the independence of that branch once constituted and operating. Further, my proposed process would be simpler to administer and would, I think, be far more able to qualify people under Ashcroft's statement of judicial qualification than Ashcroft's examination process could ever hope to be.

To this end, I would like to hearken back to a post by Justice Soothsayer early on in this debate. In that post, Jsutice indicated that we could determine who was analytically qualified (and possibly even qualified in terms of character and temperament) by merely reviewing postings in this forum. I agree. I think that we can be completely comfortable with and confident in a selection process in which the S.C. nominates candidates that it believes will perform the judicial office well and with sufficient analytical ability based on the S.C.'s considerations of the tone, content, substantiveness and tenor of the nominee's postings in these forums. However, as a further protective step, I would still recommend a final approval process, by R.A. hearing, so that this S.C. judgment can be checked and so that candidates can be tested for troubling tendencies or character flaws not revealed in the forum postings.[/quote:ltouqgbg]

The problem with the idea of using forum postings is that it is fundamentally unfair: it imposes [i:ltouqgbg]de facto[/i:ltouqgbg] requirements on candidates that they are frequent posters in this forum, and that they have posted on subjects where their judicial ability could properly be assessed. Neither such requirement is a genuine requirement for judicial office. A person can perfectly well be a suitable candidate without having happened to have posted anything sufficiently weighty on the forum to be assessed. Furthermore, using forum postings will tend to lead to bias in the selection, as people are likely to pick those whose postings that they agree with, or whose personality that they like, rather than focussing soeley on that person's legal skill (bearing in mind that personality issues are best assessed by the P. J. S. P.).

I deliberately designed the system that is now in place to be fair to all applicants, whether or not they happened to be regular posters on the forum (or have had any other personal contact with the selectors), by setting measured objectives, and then requiring all candidates to answer the same questions, as well as anonomysing the applications. If a judicial system cannot be fair and evenhanded in its appointment processes, what hope does it have of being so towards its litigants?

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Post by Ashcroft Burnham »

[quote="Justice Soothsayer":1e34ocsb] I'm still waiting to see the outcome of the current qualification process before deciding on whether it should be changed.[/quote:1e34ocsb]

I, too, am awaiting the outcome to see whether the process (that is, the qualification process, not the constitutional framework) should be changed. After all, it is (necessarily) untested. If fewer than two judges are qualified (or, worse, fewer than two submit completed responses at all), then I will consider at that stage what revisions need to be made to the process. If one judge is qualified, and then appointed, I should see whether that judge (who would then have as much input into the qualification process as I would) would have any fresh ideas about how to approach qualification.

I suggest, therefore, that the legislature does not act hastily in undermining a compromise reached in good faith after lengthy debate in response to a problem that might arise with an unavoidably untested system, without first giving the judiciary, in whom the legislature, as a result of that compromise, invested the power, a chance to solve the problem itself.

Last edited by Ashcroft Burnham on Tue Nov 28, 2006 3:46 pm, edited 2 times in total.
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[quote="Beathan":bg9380wa]Ashcroft's reference to seminal cases as providing clear rules of law is an instance of special pleading. I do not deny that seminal cases do provide clear answers in many (even most) cases. However, in each of those cases, the facts were considered in their context and the judge determined that there were no special features that would suggest or require a departure from precedent or an application of different precedent. Proper judging is not a matter of pigeon-holing cases, even if that's what it looks like from the outside. Proper judging requires a full consideration of each case on its own merits under the guidance of established legal principles. Use of detailed hypotheticals in judicial selection is highly corrosive to this process, for the reasons I have provided. I have yet to see a substantive answer to this problem.[/quote:bg9380wa]

If you now accept that some of the most important cases in legal history can be, and rightly were, decided without reference to the detailed factual background, but on the basis of a few simple propositions of fact, then your claim that any person who has made a decision on such a basis is necessarily prejudiced in all future cases must be untenable. How is a judge who has decided a case on the basis that, having evaluated all of the evidence, there are no special features in a different position vis a vis deciding a future case than a judge who has, in a selection questionaire, expressly been told, for the purposes of the exercise, to assume the very same thing? If you accept that some cases can be decided on a few simple propositions, then it is very uncler why you think that a judge who has weighed the evidence in the case and decided that only those few propositions matter is not prejudiced, wheras a potential judge who has been told to assume that he or she has weighed the evidence, and found only the stipulated propositions of relevance is prejudiced.

[quote:bg9380wa]There is a further issue underlying this debate. Ashcroft poses the proposition that there is some activity called "good legal analysis" that judges are engaged in. This I accept. However, he then asserts that there is something unique about this activity that makes it unlike all other kinds of good thinking such that it can only be proven through questions which specifically call for legal analysis. I disagree with this.

To me, good legal thinking is just an instance of good thinking applied to a particular subject matter -- the law. Other than its subject matter, there is nothing unique to good legal thinking that distinguishes it, in kind, from good thinking generally. Further, that subject matter, the law, is expressed in written language. These writings exist as linguistic artifacts in our world so that they can be discovered, read, and understood by readers.

On this basis, I think we can parse good legal analysis into three parts -- identify three skills which are necessary and sufficient for good legal reasoning. First, we need good reasoning ability. Second, we need good research ability such that the practitioner can find and read the relevant law. Third, we need good linguistic ability such that the practitioner can understand what she reads. All three of these skills can be fully tested without resort to legal hypotheticals -- and without raising the ethical problems hypotheticals present.[/quote:bg9380wa]

This does not make any sense: those who have degrees in law are also assessed on the basis of their legal reasoning ability. There is a good reason why the questions are [i:bg9380wa]about[/i:bg9380wa] law, and not about other things that display the ability to analyse in general.

A person with two or more skills necessary for a particular activity does not necessarily have the capacity to use those skills together in the way necessary to perform that activity well. A person who is both a good sprinter and a good long-jumper is not necessarily a good triple-jumper or a good hurdler. Combining skills in a particular way is itself a skill: it takes mental co-ordination and disclipline, and the specific ability, that is not part of the individual skills, to perceive and understand the connexions between the two types of thought. That is why law degree examinations ask questions about law, and why our qualification process for judges should similarly ask judges questions about law, and the application of law in practice.

[quote:bg9380wa]However, even when we discover good legal analytical ability, we have not yet reached a point of satisfaction when qualifying a judge. Other issues, issues of character and temperament, loom as critical unresolved issues.[/quote:bg9380wa]

What, if any, reason is there that these should be assessed by the judiciary in the first phase (qualification), rather than the Public Judiciary Scrutiny Panel in the second phase (appointment)?

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Post by Beathan »

Ashcroft wrote [quote:1glxfpko] you now accept that some of the most important cases in legal history can be, and rightly were, decided without reference to the detailed factual background, but on the basis of a few simple propositions of fact, then your claim that any person who has made a decision on such a basis is necessarily prejudiced in all future cases must be untenable.[/quote:1glxfpko]

I do not accept this. Any such decision would be fundamentally unjust. Merely because, after evaluation of the detailed factual background, a court decides to follow what it determines to be clearly applicable and binding precedent does not mean that the case was, or could have been, decided as a hypothetical or as abstracted from its factual background.

Further, most of Ashcroft's responses to the objections raised in this thread have been of the "it's already been decided after debate" variety. If that is the case, what is the point of having a thread for "public consultation: judicial qualification requirements"? It does not seem to me that any judicial qualifications are constitutionally mandated. It is not even clear to me that the process being implemented in constitutionally mandated.

As I see it, if the point is to qualify applicants, we should be satified provided we are comfortable with the applicants' qualifications. Thus, it is no more unfair to qualify an applicant based on forum contributions than to qualify an applicant based on examination -- provided that the applicants are qualified. In fact, it seems to me more fair to have more than one qualification process so that someone (like Ashcroft's friend) who is qualified but not active in the forums can apply and so that someone (like me) who has substantive objections to the examination, but who is (I presume here) qualified can also apply. Our goal -- to have qualified applicants, is served, even promoted more than it would be through a one-gate process.

On this note, Ashcroft wrote with regard to my criticism of his question on justice

[quote:1glxfpko] You tell me that the question cannot be answered, and, when I probe you further on the point, provide what is evidently the beginnings of a sensible answer. I may not agree with your analysis, but that is not what the question sought to establish: it sought to establish the ability to analyse in general, combined with an understanding of what justice is all about. An answer that developed the above theme would probably be marked as acceptable, even though I might diagree with some of the analysis.[/quote:1glxfpko]

Personally, I have no doubt about my ability to coherently and articulately answer the questions on the qualification exam. My objections to the exam do not arise from self-doubt as to my ability to complete it. My objections to it have to do with (1) its unreasonable burden; (2) its failure to reach what are probably the critical issues as to judicial qualification (character and temperament); (3) its use of hypothetical legal questions which, in my opinion, tend to prejudge cases to the detriment of judicial integrity, esteem and freedom of action; and (4) its use of questions which I believe are not properly answerable in exam form.

The justice question is an example of the last. I think that, if we really want to sound someone out about their theory of justice, we need to talk to them, debate with them, ask them a series of questions, each following up on the answer. We can't just ask them to state their theory. To me, it is no comfort to have the person grading the exam or giving the exam tell me -- "just tell me why the question is not answerable -- that would be an acceptable answer." The fact is, semantically, such an answer would be no answer at all, so if such an answer is intended to be an acceptable answer, the question needs to be reworded to allow for it.

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Post by Ashcroft Burnham »

[quote="Beathan":2gphm3fj]I do not accept this. Any such decision would be fundamentally unjust. Merely because, after evaluation of the detailed factual background, a court decides to follow what it determines to be clearly applicable and binding precedent does not mean that the case was, or could have been, decided as a hypothetical or as abstracted from its factual background.[/quote:2gphm3fj]

This does not make sense: the point that I was making was that, if it is possible for a judge to conclude that, in a given case, only a few simple propositions of fact are important for reaching a decision, then it cannot be the case that any criticism can be made of a questionaire that asks applicants to assume that they have already made that conclusion, and then goes on to outline those propositions of fact for a decision on the basis of them. There is nothing wrong with a questionaire that asks candidates to deal, in their answer, with only one stage of judicial decisionmaking, the other parts being provided by the question.

[quote:2gphm3fj]Further, most of Ashcroft's responses to the objections raised in this thread have been of the "it's already been decided after debate" variety. If that is the case, what is the point of having a thread for "public consultation: judicial qualification requirements"? It does not seem to me that any judicial qualifications are constitutionally mandated. It is not even clear to me that the process being implemented in constitutionally mandated. [/quote:2gphm3fj]

There is a very important distinction between, on the one hand, a public consultation about how the Board of the Judiciary Commission exercises its power (which is what this thread is really about), and, on the other hand, whether the Board of the Judiciary Commission should have that power at all (which is the matter that has already been debated and decided).

As to whether judicial qualifications are constutionally mandated, the provisions are here:

[quote="Article VII of the Constitution":2gphm3fj]4. There shall be a Board of the Judiciary Commission, which shall consist of seven or fewer Judges of Common Jurisdiction (to be appointed by election amongst all Judges of Common Jurisdiction in accordance with any procedure determined in accordance with Section 2 (a) above if there are more than seven Judges of Common Jurisdiction), and which shall have the power: –

...

(e) to determine and publish a set of requirements of professional judicial ability that any person must meet before he or she may be appointed as a Judge of Common Jurisdiction;

(f) to determine and administer (or delegate the administration of) procedures whereby whether any applicant for judicial office meets the requirements determined in accordance with paragraph (b) above meets those requirements is determined, and publish the results of such determinations;

...

(h) to determine and publish internal procedures for discharging any of its powers.[/quote:2gphm3fj]

and

[quote:2gphm3fj]19. There shall be a Public Judicial Scrutiny Panel consisting of between three and five members, who shall be appointed by popular election at the same time as elections for the Representative Assembly are held, and, additionally, whenever there are fewer than three members, which shall have the power: –

(a) to determine who, of those persons whom the Board of the Judiciary Commission determines as qualified to hold office as Judge of Common Jurisdiction in accordance with Section 4(d) and (e) above, shall be appointed as Judges of Common Jurisdiction...[/quote:2gphm3fj]

I cannot see how those sections could leave anybody in doubt about the mandate for the process.

[quote:2gphm3fj]As I see it, if the point is to qualify applicants, we should be satified provided we are comfortable with the applicants' qualifications.[/quote:2gphm3fj]

It is not about comfort: it is about ensuring that applicants have the necessary skill.

[quote:2gphm3fj] Thus, it is no more unfair to qualify an applicant based on forum contributions than to qualify an applicant based on examination -- provided that the applicants are qualified.[/quote:2gphm3fj]

It is unfair in the sense that it imposes an arbitrary additional requirement of being a frequent contributor on weighty matters that has no bearing on judicial ability. It prevents suitable people from being qualified for no good reason at all.

[quote:2gphm3fj]In fact, it seems to me more fair to have more than one qualification process so that someone (like Ashcroft's friend) who is qualified but not active in the forums can apply and so that someone (like me) who has substantive objections to the examination, but who is (I presume here) qualified can also apply. Our goal -- to have qualified applicants, is served, even promoted more than it would be through a one-gate process.[/quote:2gphm3fj]

How is it fair that some applicants would have to go through a more rigorous process than others merely because some applicants knew, and others did not, those appointing them?

[quote:2gphm3fj]The justice question is an example of the last. I think that, if we really want to sound someone out about their theory of justice, we need to talk to them, debate with them, ask them a series of questions, each following up on the answer. We can't just ask them to state their theory.[/quote:2gphm3fj]

Why not? University examinations work on that principle. Do you say that all degrees are flawed for that reason?

[quote:2gphm3fj] To me, it is no comfort to have the person grading the exam or giving the exam tell me -- "just tell me why the question is not answerable -- that would be an acceptable answer." The fact is, semantically, such an answer would be no answer at all, so if such an answer is intended to be an acceptable answer, the question needs to be reworded to allow for it.[/quote:2gphm3fj]

Stating that there are different [i:2gphm3fj]kinds[/i:2gphm3fj] of justice, and stating that the answer is different in respect of each of them is not replying that there is no possible answer.

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Post by Beathan »

Ashcroft's privileging of his exam over forum participation has two fundamental problems, both of which should concern citizens of CDS and participants in these forums. First, he asserts that it is unfair to consider forum participation as an equivalent of his exam because it is easy. This is false. Good forum participation is not easy. It takes as much commitment as filling out the exam would. It requires and uses all the skills we could look for in a judge. It is a perfectly sound exam equivalency.

Further, forum has the benefit of being public and transparent -- and being courageous for being public and transparent. To be confident in a judicial system the people must be confident in its judges. This is served by evaluating candidates based on forum contributions. The very people who might come before the judge could, in advance of qualifying the judge, consider what kind of person he or she is based on the postings in the forums. This is a very valuable thing and should not be under-valued. Personally, I would much rather have a case heard by someone I respect based on their forum postings than to have a case heard by someone who was deemed qualified by answers to the exam questions presented by Ashcroft.

Further, the Constitutional citations set forth by Ashcroft again indicate that some qualifying process shall be use -- it does not mandate the one he puts forward. The one he puts forward was offered up for public comment. The public has spoken -- and it seems that the only person who supports it is Ashcroft (although Justice Soothsayer is willing to give it the benefit of the doubt). Of the people who have considered the specific process, I count one "aye"; one "abstain"; and at least five "nays."

The problem is that the only "aye" vote is the only vote that set up to count. This is a fundamental problem -- and should be considered as antithetical to a democratic system or democratic constitution. Personally, I consider the process as implemented by Ashcroft to be extra-constitutional as contrary to the spirit of a democracy. Surely a democracy cannot and should not be set up such that it will consume itself in this way.

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Post by Beathan »

Ashcroft writes [quote:16flhf24]This does not make sense: the point that I was making was that, if it is possible for a judge to conclude that, in a given case, only a few simple propositions of fact are important for reaching a decision, then it cannot be the case that any criticism can be made of a questionaire that asks applicants to assume that they have already made that conclusion, and then goes on to outline those propositions of fact for a decision on the basis of them. There is nothing wrong with a questionaire that asks candidates to deal, in their answer, with only one stage of judicial decisionmaking, the other parts being provided by the question. [/quote:16flhf24]

The key distinction here is when and after what hearing the decision is made. Even a simple and clear case cannot be decided without a full hearing of all the evidence. Further, the decision of what evidence is relevant cannot be made in advance. To do otherwise is to prejudge the case -- to act from judicial prejudice.

Interestingly, this is exactly the ethical problem I have with hypothetical examinations of prospective judges. It requires that the prospective judges prejudge cases based on a mere sketch of evidence. I submit that this is irresponsible and any person who is willing to answer such a question is acting from an irresponsibility that is suspect in a judicial candidate. The only proper answer to any such question is "I need to know more." If the examiner answers -- there is nothing more to know -- take the case on the facts given -- the only proper answer is "that hypothetical is so devoid of a factual context as to be unreal -- and to be meaningless for being unreal -- the law is about making decisions in fact-bound, reality-bound circumstances -- it is not an exercise in abstraction, and anyone who makes it an exercise in abstraction is committed to a path to ruin."

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Wow

Post by Gxeremio Dimsum »

This has become one of the longest forum threads I've seen since I became a citizen this summer.

I remember meeting Ashcroft not long after I started setting up Esperanto-parko. He was clear that a major goal for him was to create a working judicial system for Second Life. I admire the tenacity of his goal and the time he has spent to craft the judiciary bill, his proposed application, and of course the countless hours spent thinking and posting to the forums. Compared to the history of Neualtenburg/Neufreistadt he, myself, and Beathan are relative newcomers. It is a testament to the nature of this community that newcomers can have such an important impact in a short time.

However, it is also a good reminder for us that our systems - all of them - need to remain flexible so that future newcomers can also make this system their own without any prior affiliation. The difficulty in this present debate seems to be how to avoid one common fear (pure mob rule where the winds of popular opinion could change the judiciary overnight) while also staving off an equally bad situation (oligarchy of the founders, or simply the first people to hold strong opinions about a topic such as the judiciary). We seem, lately, to be erring on the side of oligarchy by the most persistent voices. Setting up a judicial system in which one resident - Ashcroft - has more power than the rest of the citizenry combined, would be very counterproductive indeed to the goal of establishing a democratic community in Second Life.

I return to a theme I have mentioned before - this experiment in virtual democracy is not nearly as successful as it could be. I haven't seen updated citizenship numbers, but judging by forum participation and who's actually inworld when I visit N'stadt or Colonia Nova, it seems that the number of people who are actively involved in CDS is either the same, or perhaps even less, than when I joined back in July. This is a shame, especially since the population of SL as a whole has at least doubled in that time, not just in terms of total signups but also real accounts and people online concurrently. This cannot merely be excused as poor advertising. We must get out of our rut and explore better ways of doing things to include more people at a more reasonable level of expected commitment, as well as providing more incentives for joining our experiment. I again suggest that we can do this by providing a more flexible framework of government that rewards instead of chastises experimentation and innovation, while also increasing the chance for people to be involved at various levels of commitment.

It would be unfair to portray myself as a totally impartial observer; I have proposed legislation that was not taken up (or even considered, as far as I can tell from transcripts of the RA) largely because of Ashcroft's repudiation of it in the forums. Nonetheless, I do think I offer something of an insider/outsider point of view, having followed the proceedings and spoken to major players without myself being a member of the government. I have also been privileged to experience many exciting elements of SL's culture through my work as an inworld journalist.

Virtual democracy is a beautiful dream, and needn't remain only that.

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Post by Ashcroft Burnham »

[quote="Beathan":lcjk16vy]Ashcroft's privileging of his exam over forum participation has two fundamental problems, both of which should concern citizens of CDS and participants in these forums. First, he asserts that it is unfair to consider forum participation as an equivalent of his exam because it is easy. This is false. Good forum participation is not easy. It takes as much commitment as filling out the exam would. It requires and uses all the skills we could look for in a judge. It is a perfectly sound exam equivalency.[/quote:lcjk16vy]

You misrepresent my position. I did not state that forum participation is necessarily easy. The point is that, if two or more quite different tests are administered to different candidates, the test is inherently unfair: applying a different test to the [i:lcjk16vy]same[/i:lcjk16vy] person might result in different outcomes. The only proper means of selection is to apply a single test to all people. A test by forum postings may, in any given case, either qualify somebody who would not be qualified by the written test procedure, or not qualify somebody who would be qualified by the written test procedure. Either way, it would be grossly improper to have the two tests run in parallell.

I do not know whether you are familliar with the law of employment. In the UK, at least, an employer who applied different tests to different categories of candidates would be highly likely to face a claim in an Employment Tribunal for one or other form of discrimination if it transpired that any of the processes favoured candidates from a particular demographic.

[quote:lcjk16vy]Further, forum has the benefit of being public and transparent -- and being courageous for being public and transparent. To be confident in a judicial system the people must be confident in its judges. This is served by evaluating candidates based on forum contributions. The very people who might come before the judge could, in advance of qualifying the judge, consider what kind of person he or she is based on the postings in the forums. This is a very valuable thing and should not be under-valued. Personally, I would much rather have a case heard by someone I respect based on their forum postings than to have a case heard by someone who was deemed qualified by answers to the exam questions presented by Ashcroft.[/quote:lcjk16vy]

As I have explained repeatedly, the purpose of qualification has nothing whatsoever to do with public confidence in judges: it was inserted into the constitution because the legislature rightly realised that more is needed than public confidence: real, indepedently evaluated skill is a necessary prerequisite to an independent and properly functioning judiciary, and the best way of achieving that is, as the legislature accepted by passing the Judiciary Act, requiring existing judges to qualify candidates for judicial office. The public confidence part of the process is the appointment of qualified candidates by the Public Judiciary Scrutiny Panel.

[quote:lcjk16vy]Further, the Constitutional citations set forth by Ashcroft again indicate that some qualifying process shall be use -- it does not mandate the one he puts forward.[/quote:lcjk16vy]

It mandates that the existing judiciary shall have the power to determine what the process shall be. That is a deliberate and vital provision: without it, judicial independence (which the Scientific Council recognised as being a funamental principle of our constitution when it vetoed an earlier revision of the then Judiciary Bill for not providing for impeachment of members of the PJSP on the ground of undermining judicial independence) cannot be sustained. Judicial independence is, in turn, fundamentally necessary to the rule of law. Without the rule of law, democracy is worthless.

[quote:lcjk16vy]The one he puts forward was offered up for public comment. The public has spoken -- and it seems that the only person who supports it is Ashcroft (although Justice Soothsayer is willing to give it the benefit of the doubt). Of the people who have considered the specific process, I count one "aye"; one "abstain"; and at least five "nays."

The problem is that the only "aye" vote is the only vote that set up to count. This is a fundamental problem -- and should be considered as antithetical to a democratic system or democratic constitution. Personally, I consider the process as implemented by Ashcroft to be extra-constitutional as contrary to the spirit of a democracy. Surely a democracy cannot and should not be set up such that it will consume itself in this way.[/quote:lcjk16vy]

As I have stated before, democracy is worthless without the rule of law, which is impossible without true judicial independence. Judicial independence cannot prevail unless the existing judiciary, has a decicive role in the judicial appointments process. This was all recognised by the legislature when it passed the Judiciary Act. It is wholly inappropriate to attempt to re-open the debate now.

Furthermore, it is utterly incoherent to claim that the constitution is unconstituional. The constitutionality of any amendment to the consitution is bindingly assessed by the Scientific Council at the time of ratification. The Scientific Council ratified the Judiciary Act. The Judicary Act amended the constitution. The constitution as it stands cannot be unconstitutional.

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Post by Ashcroft Burnham »

[quote="Beathan":3k7httt8]The key distinction here is when and after what hearing the decision is made. Even a simple and clear case cannot be decided without a full hearing of all the evidence.[/quote:3k7httt8]

That is quite untrue. Evidence need only be heard when there is identified in advance a dispute of fact. In English courts, for example, in a criminal case, evidence is only called if the accused pleads not guilty. In a civil case, evidence is only called if the parties' pleadings disclose a material dispute of fact that would affect the judgment. Where the parties agree on the facts, there is no evidence presented.

Part 8 of the Civil Procedure Rules in England even provides a special procedure for starting claims where there is unlikely to be a substantial dispute of fact. They are traditionally (from before the days of the CPR) called "construction claims", because they are commonly (although not necessarily) a claim where the only legal dispute is the construction of a document. Although cases involving a dispute of fact (the standard Part 7 claims) are more common, the Part 8 procedure is used with enough frequency for it to be more than something merely esoteric.

Furthermore, appeal cases almost [i:3k7httt8]never[/i:3k7httt8] involve the hearing of evidence or facts. The judgments made therein are, in the great majority of cases where the appeal is on a point of law, made on the basis of the judgment in the case below, which discloses all relevant facts, and the parties' submissions on the law, with citation of relevant authorities.

It is wholly untrue, therefore, as a matter of legal practice, to assert that judgments can only be made after the hearing and evaluation of evidence. Real life legal practice allows for, and commonly involves, the giving of judgment on the basis of a series of condensed (and often simple) factual propositions . It is therefore false that any prejudice is necessarily involved in answering hypothetical questions on the basis of such a series of simple propositions of fact.

[quote:3k7httt8]Further, the decision of what evidence is relevant cannot be made in advance. To do otherwise is to prejudge the case -- to act from judicial prejudice.[/quote:3k7httt8]

This 0nly applies in those cases that involve a dispute of fact, and therefore require the calling of evidence.

[quote:3k7httt8]Interestingly, this is exactly the ethical problem I have with hypothetical examinations of prospective judges. It requires that the prospective judges prejudge cases based on a mere sketch of evidence. [/quote:3k7httt8]

This is a misconception. It is not a sketch of [i:3k7httt8]evidence[/i:3k7httt8]: it is a series of propositions of [i:3k7httt8]fact[/i:3k7httt8]. In each case, the candidate is asked to assume, quite plausibly, that the case in question is a case in which there is no dispute of fact, and therefore where there will be no evidence.

Everything that follows is predicated on the false assumption that it is an outline of evidence, rather than a set of undisputed or already proved proopsitions of fact, that is being presented and is therefore adequately addressed by the above.

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