My thoughts on the judiciary

Forum to discuss issues pertaining to the organisation and operations of the judiciary.

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Claude Desmoulins
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My thoughts on the judiciary

Post by Claude Desmoulins »

I want to try to set out an explanation of my multiple judiciary proposals. I'll start with some background, then move on to an explanation of why I proposed what I did.

[b:e6bhdiei]How we got here[/b:e6bhdiei]

There has for some time been a recognition of the need for some sort of formal dispute resolution in our community. As far back as the incorporation act last term, the SC was empowered to create commercial and other "secondary" courts. Unfortunately, they never got round to it. Since there wasn't a pressing demand for such resolution, neither faction dealt with the issue in a detailed way in the last election cycle.

Into this stepped Ashcroft with his mammoth proposal. Keep in mind that there was literally months of back and forth within the community , the RA, and the SC before it was finally enacted. During this entire process, none of the proposal's critics offered [i:e6bhdiei]any kind of substantive alternative[/i:e6bhdiei] to Ashcroft's vision of the judiciary.

Given Ash's RL legal background, I at least was very willing to leave the design of a legal system to a legal expert. In hindsight this was probably an error. The fact that our other institutions were not designed by experts has perhaps helped them to be less complex than they otherwise would have been. Another probable error on our part was appointing Ash as the only judge. If there were more judges, the judiciary would perhaps not be perceived as "Ash's domain".

[b:e6bhdiei]What went wrong and why I made multiple proposals[/b:e6bhdiei]

Let me state very clearly that, given the current state of the CDS constitution, Ash is within his rights to set judicial qualifications and standards and to choose which applicants to qualify however he wishes and without regard for anyone else's opinion on these issues. However, in choosing to do so , [i:e6bhdiei]I believe he has undermined public confidence in the institution[/i:e6bhdiei]. In a voluntary community such as ours, an institution without such public confidence is less than worthless. For all the time invested in it, the judiciary has yet to solve any problems, while creating quite a bit of strife. In that respect it is a failure. I cannot see how public confidence in the judiciary can be rebuilt without significant change.

I proposed both a repeal and an imposition of SC oversight on the process. I don't know which way we ought to proceed and wanted to ensure there were multiple options on the table for the RA to consider. But I do feel the system as it now stands isn't tenable, and something must be done.

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Post by Publius Crabgrass »

Thanks, Claude, for a very level headed view of the state of the judiciary.

I have been a fierce critic of the implementation, but would hate to see the RA throw out the baby with the bath water by abolishing the judicial system. It seems to me that we do need some functioning system soon.

1) Abolish the post of Chief Judge (and my jobs as Judiciary Commission chair as well, while we are at it, since that position was intended as a balance to the CJ). As Beathan points out elsewhere, administration of the judiciary could be a chore rotated among the judges or even non-judge citizens. Also, abolishing the Chief Judge post would let Ashcroft keep his well-earned judicial seat because he would not have to be impeached for undermining public confidence in the judiciary, but allow the community to change the methods by which the judicial system is implemented.

2) Eliminate life tenure for judges, to be replaced by a term appointment.

3) Change the selection of judges. I'm in favor of electing our judges in this small community, but if that is too "political" for the group, then let the SC do it.

4) I'll endorse Beathan's suggestion of at least 4 judges, so that one can hear a case and a panel of 3 remaining could handle any appeal.

5) As suggested in Claude's post in the Legislative discussion, clearly establish that the judges may propose the adoption of rules (procedures, ethics, judicial qualifications, etc.) subject to a period of public comment, and which may be rejected or amended by the RA prior to final adoption.

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Post by Patroklus Murakami »

These are my personal views, presented here without consultation with fellow faction members because time is pressing and this is a very important issue.

When I first saw that you had proposed repealing the Judiciary Act I thought you must be putting forward someone else's proposal or putting up a straw man for debate. Now I see that you're seriously suggesting junking six months' worth of work, the major achievement of this legislative term, and I can't believe you could make such an irresponsible proposal.

The Judiciary Act that was finally passed after being debated at virtually every RA meeting for several months. There was comprehensive discussion of every aspect of the proposal in the forums and at CSDF faction meetings inworld. The arrangements finally put in place were the result of extensive discussion and compromise between members of the RA with the involvement of numerous citizens. And now you want to junk all of this? Before the system that you voted for, that you debated and decided on, has even had a hairs' breadth chance to get started? Your proposal, if enacted, would make this Representative Assembly a laughing stock and make the CDS look ridiculous. You are saying, in effect, that you have utterly squandered the last six months of the legislative session, and many thousands of hours of assembly members and citizens' time, in developing a Judicial system that you now want to junk. It beggars belief.

Let me be quite clear here. I am concerned by Ash's actions too. I think his self-appointment as Chief Judge is questionable, his qualification requirements for Judges to be over-the-top and his approach to public consultation is woeful. But that is no reason to junk the system that he, the RA and a significant number of our citizens, have put so much time into developing before it's even had a chance to get started. There is much we could properly discuss, the qualification requirements would be a good starting point. But repealing the whole thing? What are you even thinking of? This is sheer lunacy.

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Post by Claude Desmoulins »

Pat,

Throwing out the entirety of the Judiciary Act is not my first choice. I consider it within the realm of possibility, however, that such drastic action may be necessary. As to whether or not it is, I don't know the answer to that question. I hope others will contribute to the discussion. The bottom line is, what must happen in order for citizens to willingly submit their disputes to the judiciary's jurisdiction? It may be as simple as an immediate growth to the three or four judges Publius and Beathan have suggested. It might take more. Remember that we have little in the way of powers of compulsion. Therefore, popular assent to/comfort with the structure of the judiciary is a more important issue than in RL.

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Post by Patroklus Murakami »

[quote="Claude Desmoulins":34sxuyck]Throwing out the entirety of the Judiciary Act is not my first choice..[/quote:34sxuyck]Then why is is the first thing you suggest?

This proposal of yours is utterly irresponsible. What is your response to the charge that the Judiciary Act, as passed, was the major achievement of the past Representative Assembly session which you presided over as Leader of the RA and you now wish to junk it all before it has even had a chance to start? You are making the RA look ridiculous by proposing this. Trashing our judicial system, before it has even had a chance to begin, would make the whole of the CDS a laughing stock to the whole of Second Life. Even the sternest critics of the Judiciary in its current form do not support throwing the baby out with the bathwater (if I have understood them correctly). This proposal should be withdrawn.

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My perspective

Post by Ashcroft Burnham »

[b:2ud2q8cf][u:2ud2q8cf]History[/b:2ud2q8cf][/u:2ud2q8cf]
I came to SecondLife in order to craft a judicial system after having read an article in the [i:2ud2q8cf]New Scientist[/i:2ud2q8cf] about SecondLife, the need for the rule of law, the failed Superior Court of SecondLife experiment, and the rise of self-governing communities as a source of co-ordination and dispute resolution. I was fascinated by the idea of using my legal expertise to [i:2ud2q8cf]start afresh[/i:2ud2q8cf], with an entirely new legal system in hitherto uncharted territories.

I happened upon Neufreistadt: then, and now, the only democratic nation in SecondLife. I talked to a few people, I remember in particular talking to Gwyn very early on, and it transpired that they acknowledged the need for this community to have a fresh judiciary. In the hope of helping to develop one, and being its first judge, I joined it, and set about the work of developing a judicial system. I posted on the forum with some ideas for discussion, but few people responded to it. Somebody suggested that I just write the proposed legislation, which I did.

That legislation, the Judiciary Bill, as then it was, raised a number of controversies. Chief amongst them was the selection mechanism for judicial office. A number of those who came from the United States of America favoured a political selection process of either popular election or appointment by political office. I, and some others, who come from countries where the importance of judicial independence is more clearly recognised, favoured a judicial system that could not be influenced by popular opinion, and set out in the forums detailed and carefully considered reasoning in favour of that.

There was a great deal of debate on that and other aspects of the judiciary proposals. As Claude has mentioned, all agreed that some form of judiciary was needed. The debates were about many of the details of implementation. After the longest and most intense debate in the history of what is now the CDS, the current Judiciary Act was passed. In it was contained the key compromise on judicial selection that forms part of the present constitution. It was not proposed by me: it was proposed by Moon Adamant, although I modified the details to make it fit the structure of the Act, and the legislature passed it in that form.

The structure of the compromise was to let the existing judges decide the list of who may be [i:2ud2q8cf]qualified[/i:2ud2q8cf] to be a judge, and let a popular, but non-partisan body, the Public Judiciary Scrutiny Panel, choose who of those qualified judges should be appointed. That gave both the existing judiciary and a popular body a decisive say in who may be a judge. Judicial independence was preserved, because the PJSP is a non-partisan body, and the problem of purely popularist mechanisms selecting judges based on their popular appeal, rather than their judicial merit, meaning that the qualities that one needs to be appointed as a judge vary wildly from the qualities that one needs to [i:2ud2q8cf]be[/i:2ud2q8cf] a judge, widely recognised as a key problem with popular systems of appointment, is avoided. These issues were all expressly discussed at length in the debate, as was the issue of judicial term of office, when the argument was put forward, and ultimately accepted by the legislature in giving judges life terms, that judges who are need to be re-appointed regularly might decide cases based on what they think will please those who have to re-appoint them, rather than the inherent merits of the cases themselves.

There then arose the issue about what to do about appointing the [i:2ud2q8cf]first[/i:2ud2q8cf] judges, since the system as described above could only work when there were already judges. That was also true of the original proposal that I had made, which involved all judges being appointed directly by the Chief Judge. My original proposal provided that the Scientific Council (as the least partisan of all governmental bodies) should appoint the Chief Judge, and the Chief Judge should appoint all other judges. When the Judiciary Bill was revised to encompass the compromise on judicial appointments reached above, the Bill provided for substitute bodies for when there were no members of the PJSP, and/or no existing judges. The SC would stand in place of the existing judiciary (being a non-electoral, non-partisan body), and the Representative Assembly would stand in place of the PJSP (being an elective, popular body). A requirement was added that elections for the PJSP be held whenever there are vacancies to ensure that the RA had no power to prevent the PJSP from running, and therefore take the power of appointment of judges for itself.

As to the position of Chief Judge, the original idea in Moon Adamant's proposal had been for the Scientific Council to qualify, and for the Representative Assembly to appoint, the Chief Judge as a separate office from an ordinary judge, in a similar way to that in which my original proposal had worked. I thought that that did not look sufficiently far into the long term, since, once the judicary was up and running, it would be unnecessary and undesirable for the Scientific Council to get involved in furhter judicial appointments, when all other judicial appointments were handled by a board of the existing judiciary. I proposed instead that the office of Chief Judge not be separately qualified and appointed by the external bodies, but that the Board of the Judiciary Commission choose who to appoint as the Chief Judge from within its own ranks.

One of the early criticisms that had been made of my proposal was that it would be likely to collapse because insufficient people could be found to fill all the roles. Jon Seattle of the CSDF was a leading proponent of that view. To meet that criticism, the system was expressly designed to be able to work with as few people as possible: one judge/Chair of the Judiciary Commission and perhaps one clerk. Later on, Justice Soothsayer insisted that the Judiciary Bill be changed to require that the Chief Judge and Chair of the Judiciary Commission be held by separate people. I was concerned that there would not be anyone willing to do what would ultimately be a very boring and routine administrative job of being Chair of the Judiciary Commission, but Justice brought his real-life work colleague, Publius Crabgrass, into Neufreistadt as a citizen, and he willingly took on the role.

Working on the assumption, reasonably, because of the concerns that had in the past been expressed about the number of people required to operate the system, and because a person who had also been willing to be a judge (Publius) had gone instead for the position of Chair of the Judiciary Commission, and that there were only two cases then outstanding, that we would only have one judge for at least a month or two (I had hoped to be able to have a second judge soon, and perhaps more thereafter), I started to do what was necessary to get the judicial system working, as there was, and still is, a very great demand for. Having a working judicial system required a Chief Judge. to set rules of procedure and allocate cases. In any event, the system of appointment of Chief Judge that I had proposed was always designed to have the same effect as the system that Moon had proposed as far as the very first appointment was concerned: instead of the SC and the RA expressly appointing the first Cheif Judge, they would appoint a single judge, who, being the only judge, would have to appoint himself the Chief Judge. With that in mind, I duly appointed myself Chief Judge, in the belief that we were not likely to require further judges for some time.

Knowing that there were cases pending, judicial procedure was my first priority: the qualification requirements would only be needed if we were going to appoint more judges, and the code of ethics, whilst important, was not something whose absence prevented cases from being heard. I prioritised accordingly. Then, Publius, to my surprise, announced only a few days after I was appointed that the the quota of judges should be three. Given that there were still only two cases pending, I still believed that the priority was judicial procedure, and acted accordingly. It was only when Publius urged upon the legislature a resolution proposing changes to the constitution that would reverse the hard-won compromise on judicial appointments and independence did I set about designing the qualification requirements and procedures that the judicial appointments compromise required of me.

Indeed, given the way in which the constitution was framed, nobody else had the power to do that: it [i:2ud2q8cf]had[/i:2ud2q8cf] to be the existing Judges of Common Jurisdiction, i.e., me. To get more judges, as Publius had determined should be done, I would have to draft and publish qualification requirements, and then assess applicants for qualification according to those requirements to determine who should be qualified. If I did not do that, then no more judges would or could be appointed.

So, I set about the task of writing the qualification requirements and the application questionairre. I put the qualification requirements out for public consultation (there is not a specific constitutional duty to do so: I did it because I believe that many heads are better tha one). There were a number of responses: most of them made vague and generalised criticisms about the fact that the qualification requirements set high standards. Chicago Kipling made a more specific point about the way in which I phrased the English language requirement, and I rephrased that in the final draft in consequence.

I did not seek feedback on the questionnaire itself because to do so would potentially defeat the purpose of having such an assessment, since discussion of the questions would give candidates hints as to how they should be answered, whereas the idea of the questionnaire was to ensure that candidates' own, independent abilities were assessed.

Nonetheless, a number of people, most notably Beathan Vale, one of the people who had been attracted to the CDS as a whole in part because of our judicial system, made comments about the questionnaire on the thread seeking feedback on the qualification requirements. Beathan's main criticisms were (1) that the questionnaire was too lengthy (a criticism shared by one or two others), and (2) that, in asking hypothetical questions, the questionnaire was asking candidates to pre-judge cases in ways that might unethically prejudice their decisions in a similar case if it arose before them in court. I did not agree with the substance of either criticism.

The second has been discussed enough, and I do not need to repeat that dialogue here. As to the first, the questionaire was quite purposely thorough. As explained above, one of the most important purposes of the judicial appointments compromise was to ensure that candidates for judicial office were appointed on their ability to be judges, rather than on their popularity. I have always believed, and, throughout the debate on judicial appointments, have made clear that I believed, that judicial office requires considerable judicial skill. Without it, unskilled judges, who make unjust and unpredictable decisions in cases might well be appointed. That would undermine the effectiveness in and public trust of the judiciary: it would be a disaster. The appointment of skilled judges cannot be assessed effectively by a cursory test: it must be assessed thoroughly. So, I defended the system that I had put in place, explaining the reasons that I believed that it was justified.

As Diderot pointed out on one occasion also, it did not make any sense to make revisions to the questionnaire during the currency of a formal process of appointments. Given the extensive feedback that I have received, if it proves to be the case that, after a reasonable period of time has elapsed for potential candidates to complete their forms, not enough candidates do so, I would revise the qualification system. As I pointed out on that thread, it is (quite unavoidably) untested. As it happens, the present position, so far as I am aware, is that one person has probably already completed the questionnaire, and one other person is able to do so if he is granted a week's extension of the deadline (such extension was expressly contemplated when I first published the questionnaire). If both of those people do, in fact, complete questionnaires, and are thereby qualified, I will have fulfilled my duty in respect of the quota of judges set by Publius. Once new judges are appointed, of course, those new judges will have as much of a say as I in the qualification requirements and procedures.

[b:2ud2q8cf][u:2ud2q8cf]Where we are now and the way forward[/b:2ud2q8cf][/u:2ud2q8cf]

One of the criticisms that has been levelled against me by a number of people is poor response to feedback. Whilst it is true that I often strongly disagree with those who give feedback, I do not think that the criticism is, in the circumstances, a fair one. As stated above, one of the critical reasons for having the existing judiciary set the qualification requirements was to preserve judicial [i:2ud2q8cf]independence[/i:2ud2q8cf]: that is, the principle that judicial selection ought not unduly be influenced by popular opinion. The great compromise on judicial appointment entailed a recognition that some popular input into judicial selection was desirable, but, at the same time, that, at least when assessing judicial skill, what should count is the opinions of existing judges, legal experts, not the non-expert popular opinions. Just as a judge must, when deciding a controversial case, put out of her or his mind the popular opinion about how a case should be decided, and focus only on the merits, so, when determining the requirements for judicial qualification, the judiciary must do what they genuinely believe to be right, even if it is unpopular. It was because I genuinely believed – and still do – that the current questionnaire is duly, not unduly, rigorous, and that hypothetical questions are not unethical, but a valuable tool for assessing judicial candidates that I defended the questionnaire on what has become, largely because of the tendency of Beathan and I to respond quickly and not to give up in a debate, rather than anything else, one of the longest threads in CDS forum history.

However, amongst all the clamour for re-opening the great compromise on judicial selection, and undoing the result of the most intensive debate in CDS history, and going back on the principles of judicial independence (recognised in a recent decision of the Scientific Council) that were guaranteed thereby, there also seem to be people whose principal concern is nothing more than the fact that the (necessarily) great powers of the Board of the Judiciary Commission should fall into the hands of a single person. I can understand why people might be concerned about such a thing: there is, after all, safety in numbers. That is why juries have (in different jurisdictions) 8 or 12 people, why appeal courts generally sit with three, rather than one, judge(s). As explained above, the present position of having just one judge was undoubtedly reached because we did not realise the number of people who would be willing and able to serve on our judiciary: in other words, we greatly underestimated our own success and popularity.

Nevertheless, whilst the drafting and passage of the Judiciary Act, the subsequent appointment of me as the only judge, and my work since then to discharge the duties that the constitution places upon me by virtue of being the only judge were all done in good faith, I accept that the concern about having a single person exercising all the power of the Board of the Judiciary Commission is one that needs to be addressed. Claude's “Judiciary Oversight” proposal appears to be an attempt to address that. It has some problems in its detail, however: for example, by giving the Scientific Council the right of veto over certain actions of the Board of the Judiciary Commission, it creates the possibility of an impasse between the Board and the SC: if the Board proposes, for example, qualification requirements, and the SC rejects them, there will be no qualification requirements at all, and, in theory, the SC could reject every proposal that the Board makes. Also, the power to over-ride the codes of procedure is already built into the constitution because the codes rank below primary legislation as a source of law. That means that the RA can pass its own laws regulating procedure, which over-ride any general directions on procedure issued by the Chief Judge. There is no need to add a layer of complication and bureaucracy in giving yet a third body, one with neither the expertise of the judiciary, nor the democratic mandate of the legislature, the power to veto the codes of procedure. The RA's power to over-ride them with legislation is enough.

As to the code of ethics and the qualification requirements and procedures, a far better, simpler and more elegant solution to avoid the one-man-band judiciary about which many people are concerned is to give the Dean of the Scientific Council the power to appoint members of the Scientific Council to the Board of the Judiciary Commission to make up its numbers to three whenever its numbers are less than three. Any incoming Judges of Common Jurisdiction increasing the Board's numbers would then displace the members of the Scientific Council. The Dean would decide who should go. Those special members of the Board would have all the power of Judges of Common Jurisdiction in respect of actions of the Board, and would thus have an equal say on the code of ethics and qualification requirements and procedures (and, indeed, if there was only one judge, would be able to outvote her or him on the matters), whilst maintaining the long-term independence of the judiciary by retaining the original function of the board when there are at least three members. I will draft an amendment to Claude's Judiciary Oversight Bill which will hopefully achieve that. Such a system should strike a balance between addressing the understandable concern at having a great deal of power vested in a single person (albeit temporarily), and preserving the carefully designed structure and vital independence of the judiciary. It will not necessarily appease all of those who call for, for example, elected judges with fixed terms, but the compromise struck on that issue so recently in the past should stand: none of the recent events, or the concerns about a single person possessing all of the power of the Board of the Judiciary Commission, lend any extra weight to the arguments that were, when the issue was last debated, rejected in favour of the principle of judicial independence, albeit checked by a popular body, embodied in the great compromise. Democracy, after all, is about compromise: since I am prepared to compromise (and, as detailed above, have been in the past), so should those who oppose the present arrangements also be so prepared.

[b:2ud2q8cf][u:2ud2q8cf]Achievements of the judiciary so far[/b:2ud2q8cf][/u:2ud2q8cf]

Those who are seriously considering abolishing the entire judiciary should consider what it has achieved in its short life so far, before even having heard its first case. It has, at the very least, in part, attracted no fewer than [i:2ud2q8cf]six[/i:2ud2q8cf] citizens to the CDS (excluding me), and promises to attract about three more in the near future. That is [b:2ud2q8cf]more than 10% of our entire population[/b:2ud2q8cf] who are or will soon be here in consequence of the judiciary. We have been featured in the SecondLife Business Magazine, on BBC Radio, and in the Kuurian Expedition (which itself might well have attracted two further citizens). It has caught the attention of Professor David Post, a leading expert on the law of virtual worlds (whom the BBC radio programme had interviewed in the previous week to the item in which I was interviewed), who plans to come and visit us when he returns from the place where he currently has a dialup connexion. It was prompted no fewer than [i:2ud2q8cf]two[/i:2ud2q8cf] people quite independently to suggest, and be serious about attempting to, set up a securities exchange in the CDS. It has even managed to get the infamous Prokofy Neva worried that the system will be so successful that Linden Lab will, in his words, “do a GOM on it”, and adopt it for the [i:2ud2q8cf]whole of SecondLife[/i:2ud2q8cf].

This project is bigger than a few internal squabbles over judicial qualification procedures should ever be able to interfere with it. Anyone seriously contemplating abolishing half a year's worth of work over such a thing, especially when the primary concern is addressed by what I propose above, ought think long and hard about exactly why he or she is in the CDS in the first place and what we are here to achieve.

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Post by Claude Desmoulins »

[quote="Patroklus Murakami":1up4k9om][quote="Claude Desmoulins":1up4k9om]Throwing out the entirety of the Judiciary Act is not my first choice..[/quote:1up4k9om][/quote:1up4k9om]Then why is is the first thing you suggest?
[quote]

As a matter of fact, I posted the minimalist proposal (SC oversight) three minutes before the maximal one (repeal), though I did mention the latter first in my long post at the beginning of the thread.

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Post by Claude Desmoulins »

Thank you Ashcroft.

For the first time in a while on this issue, I feel part of a dialog rather than a debating society. I also very much appreciate your explanation of where you were coming from.

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My take...

Post by Pelanor Eldrich »

Thanks for your insight Ashcroft.

[b:15y2aim7][u:15y2aim7]Here are things I want from a judiciary:[/u:15y2aim7][/b:15y2aim7]
1. Fair
2. Predictable
3. Fast

[b:15y2aim7][u:15y2aim7]Here are things I don't want:[/u:15y2aim7][/b:15y2aim7]
1. Full professionalization (RL lawyers only)
2. Lack of community confidence
3. The [i:15y2aim7]de jure[/i:15y2aim7] removal of role/power of the SC or much more substantive constitutional amendment.

I'd rather BBQ my left nut [i:15y2aim7]in situ[/i:15y2aim7] than repeal the judiciary at this point. I'd like Ash and Publius and Beathan et al. to continue working as hard as possible and for the community to make a decision about the system after both cases have been heard or 3 months pass, whichever comes first.

I have a case before the courts and I'm in no particular hurry. I hope it serves to help solidify the process.

If we need to make minor tweaks to the Judiciary per Justice then fine. He has my support. If the whole thing is a lead zeppelin that doesn't begin to hear a case in 3 months, then I'd take a hard look at Beathan's propsal for v2.0.

It's easy (for me especially) to debate, to write legislation, to post to the forums etc. It's real hard work to actually implement stuff. Implementation needs to be the focus. Implementation is impossible if we don't all row in the same direction. Maybe we can agree on a plan and timetable?

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Post by Beathan »

Pel --

I understand where you are. You don't want to create a privileged class of RL lawyers within the CDS and you want the CDS to be constituted as it was intended to be -- with a balanced government between (at a minimum) the RA, SC, and AC. You are doing great work with regard to saving the AC.

You also feel a bit out of your depth with regard to the legal system, and look to your eminently qualified colleague, Justice, for guidance. You also recognize that four months of work -- much of it intensive work, much of it deeply considered and debate work -- has gone into the Judiciary act. Ash is deeply committed to his act through pride of authorship. The RA is deeply committed to the act because it was a difficult compromise reached after painful process and deliberation. It makes sense that you would rather undergo a painful frying of a sensitive body part than scrap the process and start from scratch.

I think we can get the things you do want from the judiciary, although not from the current judiciary act. However, I think that Justice's amendments can fix the act and accomplish the positive goals you lay out -- fair and expeditious administration of justice.

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. It cannot do otherwise. 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.

I see no alternative but to repeal the act. We have the SC. The SC was working. The SC should be allowed to continue to work. We should fix and empower and restrain the SC. We should not abandon the SC or make it meaningless and vestigal.

Beathan

Let's keep things simple enough to be fair, substantive enough to be effective, and insightful enough to be good.
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Post by Patroklus Murakami »

[quote="Beathan":15504wh3] 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:15504wh3]This is an appalling statement, you really should reconsider before exposing your narrow cultural prejudices like this. English=bad, Amercian=good? I see no hope for our experiment in democratic self-government if avatars whose RL selves reside in American jurisdictions (likely to be the majority for several reasons) cannot tolerate anything that is based on European or other political norms (and vice versa of course). We really need to be better than this if we are to work together.

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Post by Beathan »

Pat wrote [quote:3bfnxqxo]This is an appalling statement, you really should reconsider before exposing your narrow cultural prejudices like this. English=bad, Amercian=good? I see no hope for our experiment in democratic self-government if avatars whose RL selves reside in American jurisdictions (likely to be the majority for several reasons) cannot tolerate anything that is based on European or other political norms (and vice versa of course). We really need to be better than this if we are to work together.[/quote:3bfnxqxo]

Pat, if you were paying better attention, you would realize that I am not saying English = bad; American = good. In general, I think the opposite. However, in the context of the development of the concepts of legal independence and rule of law, for reasons I have set forth in my analysis, the formulations of these concepts in American jurisprudence is more amenable to our current project. This is true for many historical reasons -- not the least of which being that America did not start saddled with autocracy and monarchy and that America, life SL, has always been a society of immigrants coming from widely diverse cultural backgrounds.

Frankly, I would prefer a system, if I could imagine it, that was specifially tailored to SL rather than arising from any RL set of jurisprudential theories. I have, in fact, tried to propose such a system. (In fact, my system has been recognized, by Michel Manen, as ressembling no real life system so closely as the Shi'a courts adminsitered by Ayatollahs in Iran. This is actually a fair comparison. However, an idea is not bad merely from keeping bad company any more than an idea is good from keeping good company. Ideas stand on their own.) Further, Justice has gone one better and possibly actually proposed the system we should adopt.

However, although my conclusion is "English worse than American" with regard to this particular issue -- that conclusion does nor arise from prejudice or cultural bias, but actually from thoughtful analysis and review fo current scholarly thinking of law in virtual space.

Let's keep things simple enough to be fair, substantive enough to be effective, and insightful enough to be good.
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Patroklus Murakami
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Post by Patroklus Murakami »

[quote="Beathan":23hhnso7] in the context of the development of the concepts of legal independence and rule of law, for reasons I have set forth in my analysis, the formulations of these concepts in American jurisprudence is more amenable to our current project. This is true for many historical reasons -- not the least of which being that America did not start saddled with autocracy and monarchy and that America, life SL, has always been a society of immigrants coming from widely diverse cultural backgrounds.

...

However, although my conclusion is "English worse than American" with regard to this particular issue -- that conclusion does nor arise from prejudice or cultural bias, but actually from thoughtful analysis and review fo current scholarly thinking of law in virtual space.[/quote:23hhnso7]Oh dear! It gets worse. So now the internet/SL/metaverse (delete as applicable) is a 'frontier society', the US (quite some time ago now) was a frontier society therefore.... American institutions/values/codes (again, delete as applicable) are more appropriate than those of other societies? That is still an appallingly Americo-centric argument.

You then rehash questionable statements describing the US as 'a nation of immigrants' (like any other country isn't?) in support of your argument.

Of course your position derives from cultural bias, it cannot help but derive from cultural bias. You dismiss the arguments about the necessary independance of the judiciary because of your cultural background. My point was that we need to try and rise above this if we are to live together in this virtual space.

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Post by Claude Desmoulins »

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.

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Post by Beathan »

Pat wrote [quote:2fpwqk7q]You then rehash questionable statements describing the US as 'a nation of immigrants' (like any other country isn't?) in support of your argument. [/quote:2fpwqk7q]

The last time England was truly a nation of immigrants, my ancestors had just landed with William the Bastard of Normandy. (Granted, it has pockets of colonial immigrants in urban areas, but this is not the same thing. The effect is not deep rooted or transformative of English culture.) 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. (For instance, it is looking likely that the next leader of the United States may either be named "Rudy Giuliani" or "Barack Obama".)

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. Indeed, all MMOGs are. Castranova, in this book on virtual worlds, has an extremely thoughtful and well-supported analysis of this process. I recommend the book to everyone.

That said, America's frontier history is not that far off. Indeed, with American interstate migration patterns, we still have much of the feeling of a "core land" and a "frontier". Alaska certainly remains a frontier -- as indicated on their license plates claiming to be "the last frontier."

I don't think America's experience is unique in either of these regards. Australia and Canada, at the very least, have things to offer from their recent and current history. 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.

Beathan

Let's keep things simple enough to be fair, substantive enough to be effective, and insightful enough to be good.
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