My thoughts on the judiciary

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Justice Soothsayer
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Post by Justice Soothsayer »

We each bring our own cultural baggage on our journey in SL. Certainly Ashcroft has developed a system heavily influenced by English law, but that neither makes it bad or good [b:sqsq9sfd]because of [/b:sqsq9sfd]that influence. Indeed, I think it is Ashcroft's legal training, more than his English background, that has led to our present system. I am much more concerned, and Claude and others seem to share this concern, that we are developing a legal system of, by and for the lawyers, and I say that somewhat ironically as an RL lawprof.

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Patroklus Murakami
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Post by Patroklus Murakami »

[quote="Beathan":37b3hwvg]The last time England was truly a nation of immigrants, my ancestors had just landed with William the Bastard of Normandy.[/quote:37b3hwvg]Are you serious? England (and the wider UK) has enjoyed wave after wave of immigration in the last 50 years which has seen significant numbers of people from the Commonwealth (and former Commonwealth), East Asia, other European states and the former Eastern bloc countries find their home here. There are over 200 languages spoken in schools in London. When I was teaching in North London ten years ago my class of 30 had twenty nationalities in it! England is far from being the place you imagine it to be.
[quote:37b3hwvg]On the contrary, America today is still a nation of immigrants -- and the problem of incorporating immigrants into our society without offending the sensibilities of either landstanding citizens or newcomers is a matter of constant public debate and importance in America, always has been, probably always will be.[/quote:37b3hwvg]Given my outline of what's been happening in the UK in the last 50 years you won't be surprised to hear that we have been having these debates fairly constantly too.
[quote:37b3hwvg]Further, with regard to America being preferrable as it was once a frontier society like SL, I think this is a valuable insight. SL is behaving like a frontier society.[/quote:37b3hwvg]However you dress it up, and whichever references you quote, this is still a questionable assumption which privileges American cultural norms, institutions and values. It is not far short of cultural imperialism to suggest that your own society, rather than any others, has valuable lessons for virtual worlds to learn.
[quote:37b3hwvg]However, I think that the American frontier experience is a far more apt place to look for our processes than the multilayered and fundamentally civil and controlled processes that have developed in Europe proper.[/quote:37b3hwvg]This is American cultural arrogance of the worst kind. If this is the kind of thinking that becomes embedded in the CDS there really is no place for those of us from European (or other, non-American) backgrounds.

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Ashcroft Burnham
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Re: My take...

Post by Ashcroft Burnham »

[quote="Pelanor Eldrich":ueencyd7]If we need to make minor tweaks to the Judiciary per Justice then fine. [/quote:ueencyd7]

Please don't confuse Justice's proposal as a "minor tweak": he proposes to remove the [i:ueencyd7]entire[/i:ueencyd7] judiciary section of the constitution, and replace it with something completely different. That is only very slightly less radical than Beathan's idea.

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Post by Ashcroft Burnham »

[quote="Beathan":3gkxqmkz]The problem is that you cannot avoid the three things you don't want if we implement the Judiciary Act, in its current form or in any possible amendment. The Judiciary Act, by its very nature, strips meaning and authority from the SC.[/quote:3gkxqmkz]

Have you read what I have written about how important that the SC is in its present form on the thread about the Scientific Council (Publication of Transcripts) Bill?

[quote:3gkxqmkz]Further, the judiciary act, if it continues to be based on English ideas of judicial independence and rule of law (rather than on the more democratic, American versions -- as I have suggested; or on even more multicultural ideas, as Ranma has suggested) will necessarily, but needlessly, professionalize the administration of justice in the NDS.[/quote:3gkxqmkz]

So, the American model has worked to prevent "professionalisation", in America, has it?

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Post by Ashcroft Burnham »

[quote="Claude Desmoulins":39x6n09q]In response to Pel:

When I heard the term "professional judiciary" I took professional to mean that there would be those whose job it was to hear cases, and therefore, cases would be heard.

In actual implementation, it seems that professional means formally legally educated. I would think that one would be hard pressed to navigate the judge selection process without at least being enrolled in a legal education program.

From dealing with the SC, it has been my observation that doing a good job is much more a matter of temperament than formal training, and that knowledge of the realities of the community is a very important part of the equation. In that respect , I am concerned with the prospect of our judgeships being rapidly filled by those who, whatever their RL legal background, have little firsthand knowledge of our community.[/quote:39x6n09q]

Would you trust a real-life judge who had no legal education sitting, without any formal advisor who did hae a legal education, in the highest court in the land?

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Post by Beathan »

Ash asked me [quote:aufzvk5q]Have you read what I have written about how important that the SC is in its present form on the thread about the Scientific Council (Publication of Transcripts) Bill? [/quote:aufzvk5q]

Yes. I happen to agree with Gwyneth rather than you. The judiciary act was th emost revolutionary act in the history of the CDS. None of the proposals to amend or repeal are actually as revolutionary as the act was. Each of these proposals either scales back the judiciary act to something more in accord with CDS's constitutional history or restores the original constitutional order, with some tweaking, by repealing the act.

Sure, you do not expect me agree with you merely because you write something. I am unlikely to agree with God or Gandhi on that basis. I want reasons, and I will conduct my own analysis and evaluation of the reasons given.

Ash wrote "So, the American model has worked to prevent "professionalisation", in America, has it?"

No America, like most places, has rule of lawyers rather than rule of law, as I have described the difference. This is because American law, after importation of an already arcane legal system from England, has had more than two centuries to make the system even more arcane. Thankfully, we are not in America. We are not in England. We are in CDS and reason and simplicity can prevail. The victor will be justice and rule of law, even if the victim is the legal profession as a muttering cabal of wizards engaged in secret and inscrutable rites. I like being a wizard as much as the next lawyer -- but I think we can give the muttering a rest for a while here.

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Post by Ashcroft Burnham »

[quote="Beathan":1ape1nuf]Sure, you do not expect me agree with you merely because you write something. I am unlikely to agree with God or Gandhi on that basis. I want reasons, and I will conduct my own analysis and evaluation of the reasons given.[/quote:1ape1nuf]

No, but if you disagree with me, I expect you to provide specific reasons, rather than expecting me to agree with you just because you write it. Why do you not think that the SC is an important institution whose function is to uphold the rule of constitutional law?

[quote:1ape1nuf]No America, like most places, has rule of lawyers rather than rule of law, as I have described the difference. This is because American law, after importation of an already arcane legal system from England, has had more than two centuries to make the system even more arcane. Thankfully, we are not in America. We are not in England. We are in CDS and reason and simplicity can prevail. The victor will be justice and rule of law, even if the victim is the legal profession as a muttering cabal of wizards engaged in secret and inscrutable rites. I like being a wizard as much as the next lawyer(in fact, iRL I am a mason) -- but I think we can give the muttering a rest for a while here.[/quote:1ape1nuf]

Do you [i:1ape1nuf]serioulsy[/i:1ape1nuf] think that it is possible to have a truly "simple" legal system in any civilised soceity, when not a single serious real-life nation on earth has a legal system that is otherwise than hugely complex?

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Post by Beathan »

Ash wrote [quote:s4u9wf4l]No, but if you disagree with me, I expect you to provide specific reasons, rather than expecting me to agree with you just because you write it. Why do you not think that the SC is an important institution whose function is to uphold the rule of constitutional law? [/quote:s4u9wf4l]

I have not been particularly active in that thread. I am already getting enough criticism for being too loud for my status as a newcomer. I think Gwyneth's analysis of the problem and solution is right so, and put as well or better than I could. You yourself gave her the high praise (which I have never seen you give anyone else) that her reasoning was not totally hopeless.

When I have nothing new to add, I try to remain quiet -- or at most say "hear, hear" if I think my weight, if not my reasoning, might help.

[quote:s4u9wf4l]Do you serioulsy think that it is possible to have a truly "simple" legal system in any civilised soceity, when not a single serious real-life nation on earth has a legal system that is otherwise than hugely complex?[/quote:s4u9wf4l]

Yes -- and, other than calling me "crazy" for this reason, you really have not rebutted me. Simplicity works -- and works better than complexity when it is possible. It is possible. Let's be simple.

As John F. Kennedy said (roughly), "Some people look at what is and ask 'why?'. I dream of what never was and ask 'why not?'" Surely there has never been a better place than SL -- and the CDS -- to ask "why not?"

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Post by Ashcroft Burnham »

[quote="Beathan":26bw9zkr]I have not been particularly active in that thread. I am already getting enough criticism for being too loud for my status as a newcomer. I think Gwyneth's analysis of the problem and solution is right so, and put as well or better than I could. You yourself gave her the high praise (which I have never seen you give anyone else) that her reasoning was not totally hopeless.[/quote:26bw9zkr]

Gwyneth never did produce any reasoning to show that the SC as it currently stands is worthless: she just wrote that it is very different to what it had been before, and, for that reason, needed to be constituted differnetly. She actually [i:26bw9zkr]accepted[/i:26bw9zkr] my claim that the current SC is important in the upholding of the rule of constitutional law.

[quote:26bw9zkr]Yes -- and, other than calling me "crazy" for this reason, you really have not rebutted me. Simplicity works -- and works better than complexity when it is possible. It is possible. Let's be simple.[/quote:26bw9zkr]

I have repeatedly explained why it is wholly impossible to have a "simple" legal system even if one tries, and why trying to make the system "simple" will only make it more complex and unjust because it will be increasingly unpredictable. So far, you have had nothing whatseover to say on that. Are you capable of answering the point, or do you concede it?

[quote:26bw9zkr]As John F. Kennedy said (roughly), "Some people look at what is and ask 'why?'. I dream of what never was and ask 'why not?'" Surely there has never been a better place than SL -- and the CDS -- to ask "why not?"[/quote:26bw9zkr]

The answer to "why not" is "because it's impossible", as explained above.

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Pelanor Eldrich
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Forgive me for not following more closely...

Post by Pelanor Eldrich »

I meant to imply by professionalism that I would not want RL bar or other RL legal credentials as a requirement to become a CDS judge or law practitioner. Gywn makes a good point that SL is becoming professionalized from a content creation standpoint. That is fine, but I feel that occupations should be available to the skilled, not just the formally RL accredited.

To some degree I feel as Ash. Despite a few hours at Gywn's role of the SC conference, I did not really see how the SC was truly emasculated. I believe she feels that at this point it only serves to rigidly rule on constitutional matters and that the Judiciary is wholly independent of the SC. None of us wants a vestigial SC.

I would like to see this substance remain:
The Scientific Council (SC) is a self-selected meritocracy. Its
governmental role is to interpret and enforce the constitution.
Its service roll is to resolve citizen disputes and moderate
user forums and events.

To my mind, this means that the SC serves as a supreme constitutional court as well as forum moderator. My view is that while the judiciary is at arm's length, it should be under the SC. I'd like to see section 8 more or less intact as well. Ash, can we restore Article III section 8 without demolishing the Judiciary? Do we feel that the court of scientific council is a bit too circumscribed? What about the advisory capacity to solve CDS social and other problems by holding conferences and eliciting outside opinion?

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Re: Forgive me for not following more closely...

Post by Ashcroft Burnham »

[quote="Pelanor Eldrich":3mv7mw1y]I meant to imply by professionalism that I would not want RL bar or other RL legal credentials as a requirement to become a CDS judge or law practitioner.[/quote:3mv7mw1y]

Thank you for clarifying that. I had never intended such qualifications to be required; just that sufficient skill and understanding of the law be required. Indeed, I had always planned to set up, in time, [i:3mv7mw1y]our own[/i:3mv7mw1y] system of legal education and legal qualifications: you will see the evidence for that in the articles in the constitution about the powers of the Chair of the Judiciary Commission to designate legal qualifications. That is one of the many sections that Justice's reckless "amendment" (that is closer to a repeal) seeks to demolish.

[quote:3mv7mw1y]To some degree I feel as Ash. Despite a few hours at Gywn's role of the SC conference, I did not really see how the SC was truly emasculated. I believe she feels that at this point it only serves to rigidly rule on constitutional matters and that the Judiciary is wholly independent of the SC. None of us wants a vestigial SC.

I would like to see this substance remain:
The Scientific Council (SC) is a self-selected meritocracy. Its
governmental role is to interpret and enforce the constitution.
Its service roll is to resolve citizen disputes and moderate
user forums and events.

To my mind, this means that the SC serves as a supreme constitutional court as well as forum moderator. My view is that while the judiciary is at arm's length, it should be under the SC.

I'd like to see section 8 more or less intact as well. Ash, can we restore Article III section 8 without demolishing the Judiciary? Do we feel that the court of scientific council is a bit too circumscribed? What about the advisory capacity to solve CDS social and other problems by holding conferences and eliciting outside opinion?[/quote:3mv7mw1y]

The problem with the following phrase,

[i:3mv7mw1y]"Members of the Philosophic branch are not bound by a strict literal interpretation of the Bill of Rights, Founding Philosophy,
Constitution, or the strict adherence to legal precedence[/i:3mv7mw1y],"

is as I outlined above: it pays insufficient regard to the importance of the rule of law, rather than the rule of the personal preferences of the individual members of the Scientific Council. If that clause is in the constitution, it permits the Scientific Council to say "I know that is what is written, but we think it should be something different, therefore we won't take any notice of the written rules, and use our own personal beliefs about how things should be instead". If it is the views of individuals, rather than the rules written in advance, that prevail, then we do not have the rule of law, but the rule of people, and unelected people at that.

As I have indicated above, the real function of the Scientific Council is, and always has been to at least some significant extent, to uphold the rule of constitutional law. That is an extremely important function. That function is augmented, not circumscribed, by requiring the Council itself to adhere to the rule of law.

Gwyn's mistake is to assume that not having what was effective discretion to depart from the actual meaning of the written rules whenever the Council liked entails reducing the mental function of the Scientific Council to no more than mere calculation. In legal interpretation, nothing could be further from the truth. Although the Council is now required to respect the textual meaning of the constituon in a way that it was not before, rather than to ignore the textual meaning and make its own judgment about what the people who wrote it "really meant" beased on their own ideas about how things should be, the textual meaning may still be ambiguous or not fully answer a given question in practice.

To take an example that I used in the judicial qualification questionnaire, the section of the Constitution on election campaigning says,

[quote:3mv7mw1y]No spamming of any kind is allowed, including the dropping of items on avatars without permission, sending messages by group IM, or by shouting messages to large groups.[/quote:3mv7mw1y]

That still does not tell us exactly what "spamming" is, or how large that a group has to be before it is "large" in that context. Supposing that a person does not drop an item on an avatar without permission, send a message by group IM, or shout a message to a large group, but drops prim "leaflets" into people's SL homes. It cannot be excluded by not being on the list, since the list does not purport to be exhaustive: it says "no spamming, [i:3mv7mw1y]including[/i:3mv7mw1y]...". So, the Council will have to work out firstly what "spamming" means in this context, and secondly whether the activity in question falls into that definition. These questions are not answered by the text, and, just as any court in a common-law system when faced with textual vagueness, the Council must make up its own answer.

But, unlike a legislature, or a body wholly unbounded by a constitutional requirement to defer to the rule of law, as was the case in the Scientific Council of old, it cannot make up its own answer based on what its members believe that the answer ought to be. Instead, it must look, as higher courts do in real life, to the overall scheme of the law, what "spamming" means in other contexts, make anologies with previous decisions, and look at the list of things that is included and see how similar that the acitvity is to that. It may then decide something like "In our judgment, spamming in an election campaign is any form of campaigning which is: (1) intrusive to individual avatars; (2) undesired by them; and (3) not expressly permitted by the constitution". It would then have decide how to classify the activity in the particular case (in the example that I have given, given that definition of "spamming", the Council is likely to find that the activity does constitute spamming), and then decide what to [i:3mv7mw1y]do[/i:3mv7mw1y] about the fact that a person has spammed. It might be an appeal from a Court of Common Jurisdiction, in which the court has refused to impose a penalty against a person dropping leaflets because it judged that a person was entitled to do so; now that the person is [i:3mv7mw1y]not[/i:3mv7mw1y] entitled to do so, is a [i:3mv7mw1y]penalty[/i:3mv7mw1y] required, or ought the only remedy be disqualification from the election? Should the matter be remitted back to the Court of Common Jurisdiction to decide whether the matter shoudl be penal, or can the Court of Scientific Council properly determine whether something has penal consequences itself. As will become apparent, none of those things are in the least mechanical decisions, and require as much intellectual nouse and philosophical ability as anything that that the SC has had the power to do before.

What the Council is not, however, allowed to do that, at least on one interpretation of that clause, it might have been allowed to do before, is "interpret" the text of the constitution in such a way as to go against an unambiguous meaning in the text. For example, the section in our Constitution about the Chancellor says,

[i:3mv7mw1y]2. The Chancellor of Neufreistadt-CDS shall, subject to the laws of
Neufreistadt-CDS, have the power:

(a) to determine the use to which any and all land in Neufriestadt
shall be put;...[/i:3mv7mw1y]

The Scientific Council would not be now be permitted to say, as it might have considered itself able before (and that would have been enough, given that there is no appeal from the SC) that the Chancellor had acted outside her powers by permitting land to be used as a securities exchange as, although the constitution [i:3mv7mw1y]says[/i:3mv7mw1y] that the Chancellor has the power "[i:3mv7mw1y]to determine the use to which any and all land in Neufriestadt shall be put[/i:3mv7mw1y]", what it [i:3mv7mw1y]really[/i:3mv7mw1y] means is that the Chancellor may determine how the land is used, as long as it fits with the original intentions of the creators, and because the creators were socialists, a securities exchange would never be contemplated by them, even though the clear wording of the constitution purports to place no such restriction on the Chancellor's actions. As you can see, not having that sort of restriction enables the Council to push a political agenda upon the elected portions of government, and gives those elected portions no power to stop it. Impeachment is an insufficient remedy, especially as it might successfully be argued that the SC were doing what they were always supposed to do in such a circumstance, citing the very section of text that gives them the power to interpret the constitution in a way divorced from what the text of the constitution actually says.

To, to surmise, the removed part of the constitution is not consistent with the rule of law, and the Scientific Council has an important, and most certainly non-mechanical, function even after it is removed.

Ashcroft Burnham

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