Proposed Restoration of Justice Act

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Proposed Restoration of Justice Act

Post by Beathan »

Several people have observed (including Claude and Ashcroft) that one critical reason why the Judiciary Act passed in its current form was because no other proposal was made at the time. I think that this justification is inadequate and unfortunate. I have reviewed the Act in comparison with the system that existed prior to it. Based on this review, I have concluded that, while the prior system needing tinkering, it did not need to be replaced. In fact, in almost every respect, the prior sstem was preferable (in principle if not in practice) to the current one.

The prior system created a well-thought-out and carefully measured balance of power and allowed for deep enfranchisement of all citizens in the process. The current system, in the name of "judicial independence," has created an anti-democratic institution that is insulated from democratic scrutiny and control, and has then placed that invidious institution in the center of our state and has given it a very real ability to destroy or damage our state. This is unwise and dangerous.

I have argued, in other posts, that every proposal for action is actually two proposals -- do what is proposed or do nothing (wu wei). The CDS sould have been wiser to have done nothing rather than pass the Judiciary Act. The more I review the Judiciary Act, the more dangerous, cumbersome, and illegitimate it seems to me.

In FL, one of my clients is a newly recognized (or rerecognized) Native American Tribe. As part of my work for the Tribe, I was asked to assist in drafting and reviewing the Tribal Court System. The Tribe has several thousand members, including several prominent clans or families with a history of mutual hostility. The court system woul dhave to handle cases ranging from tribal membership based on ancestry and "blood quantum," to tribal government disputes (including disputes between clans), to cases involving real property, trusts, and contracts, to criminal prosecution for some crimes (although criminal jurisdiction is concurrent with or partly displaced by out state, just as our jurisdiction is limited and informed by LL). The FL justice system my committee implemented was simpler in form and substance than the current CDS system -- and that system has worked well for the lasy several years.

Based on this, I propose the following act to reform and simplify the administration of justice in the CDS and to restore the balance of power and to preserve and protect democracy in this, the only democratic state in SL. I am inviting comments prior to formal submission to the RA.

Restoration of Justice Act

1. The Judiciary Act is repealed.

2. The portions of the Constitution that were repealed by the Judiciary Act are restored.

3. The Scientific Council is recognized as the source and seat of all judicial authority in the CDS.

4. Paragraph 1 of Section 6 of Article III of the Constitution, as restored, is amended as follows:

The Chairs of the SC will ratify bills passed by the Representative Assembly by simple majority vote and may resubmit the bill with modifications for revote. Hearings and trials not proceeding through a formal impeachment process shall be tried and judged by a single member of the SC, appointed as trial judge by the Dean. Any party to the trial may request an appeal folowing judgment, which shall be heard by a panel of three memebers of the SC, appointed as an appellate panel by the Dean, which panel shall not include the person who heard the trial. Appellate panels shall publish, in journal or memoranda form, a statement explaining its decision, and these statements shall bind future trial courts as binding precedent. In the event an appellate panel published a statement that appears to contradict a previous statement of another appellate panel, the SC, sitting as a whole, shall hold a formal hearing on the issue about which there is disagreement or apparent contradiction and shall clarify and harmonize the rules. However, this full S.C. consideration shall be limited to the formal poin of law only and shall not change or modify the decision in any case.

5. A new second paragraph shall be added to Section 6, Article III, as follows:

No specific Code of Procedure need be developed, published or followed. However, the SC, in its own discretion, may propose such mandatory trial procedures, which shall be considered and passed as acts of the RA. In every case, whether or not the SC has published and he RA has passed a formal procedure, the SC member appointed to serve as trial judge shall, within one week of appointment, hold a procedural and scheduling hearing. At that hearing, the judge, parties, and counsel (if any) shall work out the procedures and schedule for the case. This procedural and scheduling order shall state, at a minimum:

A. Whether pretrial discover is allowed and how, when and under what terms it is allowed;
B. Whether witnesses will testify in person or by written statement, and when such testimony will be taken or when such statements will be submitted;
C. How cross-examination will occur;
D. Whether arguments of law or policy will be presented in person or by written statement and when such argument will be heard or submitted.

Further, the scheduling order can provide for any other matter required for the fair and expeditious administration of justice in the case. The judge shall endeavor to obtain the consent and agreement of the parties to an order. If the parties fail to agree to a procedural order or if a procedural hearing cannot be heard within one week of judge appointment, the judge shall draft and distribute to the parties a procedural and scheduling order. The parties shall have one week following receipt of such order to object to the order, suggest revision of the order, or accept the order. If a party objects to the order, that party may request an immediate appeal limited to the content and requirements of the procedural and scheduling order only. A party who fails to object to, suggest revision to, or formally accept a procedural and scheduling order is subject to defaut (automatic loss) of its position in the case. If a party fails to comply with a procedural and scheduling order to which the party has not objected, or which was imposed by an appellate panel hearing review on the objection, that party shall be subject to default.

6. Section 10 shall be addedd to Article III as follows:

The SC shall consist of no fewer than four members. If the SC includes fewer than four members, additional members shall be actively recruited and presented for confirmation as required by this Constitution. In the interim, the members of the RA shall serve on the SC in order of RA seniority. However, any appellate decision issued by a panel that includes an interim member of the SC shall have no precedental value.

End proposal.

I see at least nine unique and discrete benefits from this proposal over the current Judiciary Act.

1. It restores the proper balance of power between branches of government.

2. It provides protection and respect for democratic institutions and processes and prevents Krytocracy.

3. It is simple and straightforward.

4. It does not unnecessarily professionalize the administration of justice in the CDS.

5. It does not impose strict procedures or judicial authority, but works by consent rather than coercion. This should have enforcement benefits. Further, this will allow for procedural flexibility so that the procedures and schedule can be tailored to the needs of a specific case and the specific parties in the case. In addition to enforcement benefits, this flexibility will allow for greater procedural experimentation in case management so that we can feel out and discover what procedures work best in the SL setting.

6. It avoids the technical and tedious debate we have had about hightly technical issues.

7. It encourages participation of citizens in the traditional branches of the CDS government by requiring that judges serve more generally through the SC.

8. It gives the SC the benefit of trained professionals with experience in FL administration of justice by channelling such people into the SC.

9. It could be immediately implemented and would move on a fast schedule to resolve the backlog of current legal disputes in the CDS.

Beathan

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Re: Proposed Restoration of Justice Act

Post by Ashcroft Burnham »

[quote="Beathan":2z8p80ui]Several people have observed (including Claude and Ashcroft) that one critical reason why the Judiciary Act passed in its current form was because no other proposal was made at the time.[/quote:2z8p80ui]

Given that the Judiciary Act [i:2z8p80ui]was[/i:2z8p80ui] passed, it must now be regarded as the status quo, only to be reversed if there are strong reasons, particularly since I have spent [i:2z8p80ui]months[/i:2z8p80ui] of my time [i:2z8p80ui]for free[/i:2z8p80ui] developing it, and all that is associated with it.

You incessently claim that the current system is "illigitimate" and antidemocratic, yet utterly fail, despite my repeated requests for reasons, to set out a proper reasoned basis for those so far wholly unfounded assertions. Radical change requires radically strong reasons in support: we have nothing more from you than mere assertions. That you claim that something is illigitimate does not make it so, nor is it any sort of reason for believing it to be so.

We pass an Act establishing a judiciary, some people come along (attracted, at least in part, by that very judicary), decide that they don't like, it, and try to abolish it, [i:2z8p80ui]before it has even heard its first case[/i:2z8p80ui]. What is to stop a new set of people coming to the CDS next week and doing the same thing with your proposal, and so on ad infinitum?

As to the suggestion that there be no written rules of procedure, that is downright insane. Do you have any idea of the problems that that will cause when people from different countries around the world, with wildly different expectations about how judicial procedure should work, all set out with different assumptions? There is a precedent for that in SecondLife: the infamous StarFleet trial that Ludo Merit wrote about in the November SecondLife Business Magazine. Indeed, so disasterous was it that they are trying to enlist the help of real-life lawyers (I have been asked to assist) in creating Star-Trek based rules of legal procedure to govern their future hearings.

The rule-impoverished vagueness that you are trying to foist on the CDS is anathama to justice and the rule of law, and wholly irresponsible.

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Post by Beathan »

Frankly, Ashcroft, I think that flexibility to adapt a process to fit the understandings, preconceptions and abilities of the parties to the case is more important, not less important, given our diversity. I am perfectly willing to adapt on the fly -- and believe most of us have the imagination and ability to do so. When the alternative is having bangors and mash thrust down our throats, the choice, for me, is clear.

Additionally, while you think my proposal is insane, I find yours unreadable and unreasonable. We need to be able to accomodate to our differences, not force fit our citizens into a mold a la the Victorian Empire.

Beathan

Last edited by Beathan on Sat Dec 02, 2006 5:23 pm, edited 1 time in total.
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Post by Ashcroft Burnham »

[quote="Beathan":2awgq13d]Frankly, Ashcroft, I think that flexibility to adapt a process to fit the understandings, preconceptions and abilities of the parties to the case is more important, not less important, given our diversity. I am perfectly willing to adapt on the fly -- and believe most of us have the imagination and ability to do so. When the alternative is having bangors and mash thrust down our throats, the choice, for me, is clear.[/quote:2awgq13d]

Are you deliberately avoiding constructing a carefully resoned argument because you know that I will find real flaws in it, or do you have another, undisclosed reason for doing so, and replying to me instead with sweeping bald assertions (without, for example, giving any conception whatsoever of what on earth you think that "adapting on the fly" could mean in practice, or how it could possibly be consistent with the rule of law)?

[i:2awgq13d]Edit[/i:2awgq13d]: I also note that once again, you pointedly refuse to address my request for reasoned analysis of your assertions that the current judicial system is "illegitimate" and antidemocratic. Do you do this because you cannot provide any reasons, because you think that I am likely to be able to find real flaws in any reasons that you do have, or for some other, undisclosed reason?

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Post by Beathan »

Ashcroft wrote [quote:2cxbcrch]Are you deliberately avoiding constructing a carefully resoned argument because you know that I will find real flaws in it, or do you have another, undisclosed reason for doing so, and replying to me instead with sweeping bald assertions?
[/quote:2cxbcrch]

No. Are you deliberately being obtuse? I have repeatedly given you sound and solid arguments, as have others. Your assertions that you find them "flawed" are typically based on extremely fallacious and shallow reasoning. I have, in fact, already deconstructed your argument form to reveal this problem.

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Post by Ashcroft Burnham »

[quote="Beathan":wycznzfu]Additionally, while you think my proposal is insane, I find yours unreadable and unreasonable. We need to be able to accomodate to our differences, not force fit our citizens into a mold a la the Victorian Empire.[/quote:wycznzfu]

The difference is, I have explained exaclty [i:wycznzfu]why[/i:wycznzfu] I think that your irresponsible proposal is insane. You have repeatedly failed to explain why, exactly, you think that the current system is unreasonable. If your only problem is that you cannot get used to a system more closely modeled on the English judiciary than the American one, then you are evidently the one who is incapable of adapting.

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Post by Ashcroft Burnham »

[quote="Beathan":6mt2uw8i]No. Are you deliberately being obtuse? I have repeatedly given you sound and solid arguments, as have others. Your assertions that you find them "flawed" are typically based on extremely fallacious and shallow reasoning. I have, in fact, already deconstructed your argument form to reveal this problem.[/quote:6mt2uw8i]

[i:6mt2uw8i]Where[/i:6mt2uw8i], exactly, do you explain precisely (rather than merely assert) how you think that the current system is illigitimate and antidemocratic? And how have you done anything other than merely assert (rather than deconstruct analytically) that my reasoning is flawed?

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Post by Gxeremio Dimsum »

If I might...
Ashcroft raises the reasonable and thought-provoking question, if we abolish the current judicial system, what's to prevent abolishing a future system too? And the answer is clearly: nothing can prevent that. It's a little silly to complain that democratic institutions shouldn't be allowed to change when the electorate wants them to.
So instead, we need to make sure our system (whatever it is) is flexible enough to survive such permutations, or better yet work so that the system is such that people don't want to change it. Beathan's proposal seems a reasonable alternative to our current system.

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Post by Ashcroft Burnham »

[quote="Gxeremio Dimsum":1uxwca2k]Beathan's proposal seems a reasonable alternative to our current system.[/quote:1uxwca2k]

We have yet to establish, through reason, rather than bald assertion, that any alternative is needed.

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Post by Beathan »

Ashcroft wrote [quote:yjpwhskq]We have yet to establish, through reason, rather than bald assertion, that any alternative is needed.[/quote:yjpwhskq]

This is like someone telling Fortinbras, at the end of Hamlet, with the hall strewn with the Shakespearean dead, that it is not yet established that Denmark needs a new king. The Judiciary Act, from its first proposal, has generated hostility and corrosive debate in this community. That debate was hard to read when I was getting to know these forums. That corrosion continues, and is even getting worse. I have my piece of that worsening of the landscape. Chicago has called me to task on it, and I will try to moderate my tone and temper.

That said, my proposal is aimed at changing course by developing a proposal that can, in its simplicity, gather consensus -- and which could then develop slowly, based on what we discover to have worked and not worked. It's greatest strength is that it does not try to conjure, out of thin air, a full modern judiciary that fits and perfectly serves this virtual space. That will let us try things out -- and to incorporate ideas and insights from all our citizens and all the cultures from which we draw citizens. This is a significant strength.

I apologize for the stubbornness of my position. I wish Ashcroft would back off from the stubbornness of his. We need to move forward -- but that requires that we move passed the current roadblock, which is the current act, to develop something new.

In private message, Justice Soothsayer has highlighted a number of very good and presently workable aspects of Ashcroft's Act. I am going to try to incorporate these observations into my proposal and repost it tomorrow.

However, as a framework for discussion, I think we have to realize 1. the current Act lacks support; 2. the S.C. has been and should be an important and central institution, rather than an institution that is cast to the side in favor of a insular and professionalized undemocratic institution; 3. the founders of the CDS, like many founders, got most things right -- and we were rash in rejecting the balanced system they created merely because, in a time of constitutional crisis, the process was painful. I have no faith that the trial of Ulrika under the new Act would have been less painful, and I rather suspect the opposite.

Beathan

Last edited by Beathan on Sat Dec 02, 2006 6:32 pm, edited 3 times in total.
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Post by Gxeremio Dimsum »

[quote="Ashcroft Burnham":b1uv9fg6]We have yet to establish, through reason, rather than bald assertion, that any alternative is needed.[/quote:b1uv9fg6]

It is not untrue to say that right now we have no system, since what has been established by the Judiciary Act is currently such that it can't hear cases and isn't likely to be in a condition to do so soon. More than that, even if it begins to hear cases the legitimacy of the system has been seriously called into question by numerous people.

It's beginning to look like the U.S.'s problems in Iraq. Pretending that nothing is wrong and saying we should "stay the course" hasn't proven an effective strategy.

At this point we may be better off with an alternative system simply to start sooner, and with a clean slate.

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Post by Patroklus Murakami »

I'm going to try to remain calm while writing my response to Beathan's proposal, forgive me if I falter :)

This proposal should be opposed. It is unnecessary, irresponsible, and a pointless distraction. It has *no* chance of becoming passing before the election, we should avoid wasting too much time discussing it.

My reasons are pretty much those I gave in response to Claude's equally irresponsible proposal but they bear repeating. This community has been involved in an intense, fully-considered and lengthy debate about the Judiciary for some months now. It has been the main item on the agenda for the Representative Assembly for months. It has been discussed extensively at the Citizens' Social Democratic Faction meetings (open to all) as well and in numerous emails, IMs, and chats inworld. It is a debate which I welcomed, I think that Ash deserves a great deal of credit for the work he has put into this, he has saved us the two years' work it would have taken (in my estimation) to develop a workable system. The RA has passed the Judiciary Act unanimously and it is now law, and is in the process of being implemented. All of that took a lot of effort. There were endless discussions and many compromises agreed to satisfy both factions representing CDS citizens and the citizens who took an active role in the debate and who shaped the discussion.

My point is: this wasn't cobbled together in two weeks, it took months. Now, it is unfortunate that some have arrived rather late to the party and don't like what has been agreed. You're quite right to say that, in a democracy, you're well within your rights to raise objections and propose changes or an alternative. Those of us who spent some considerable time working on this are entitled to tell you:
[list:2dy072hg]* we considered all the points you are making now during our discussions and rejected them
* we see no reason to go back on that decision now, you are not saying anything we haven't heard before
* we spent a lot of time developing this and we are not prepared to junk it to suit you
* we want to give this endeavour a fair wind and then, and only then, will we consider the system in operation and how it could be made better
* we consider this proposal to be an unwelcome distraction from the task of setting up the Judicial system we have painstakingly agreed
* we are disappointed that you could have so little respect for the time and effort of dozens of your fellow citizens over several months that you suggest junking the whole system[/list:u:2dy072hg]

That's why I consider it to be unnecessary, irresponsible and a distraction. Heres' why it hasn't got a hope in hell of passing right now, here's a little [i:2dy072hg]realpolitik[/i:2dy072hg]. Firstly, we have held an initial discussion, about Claude's proposal to junk the whole lot, at our CSDF General Meeting on Friday (the transcript is posted on our bit of the Forums). We agreed this idea is premature. I can't see your alternative passing muster either and you need at least 2/3 at the RA to pass a Constitutional Amendment overturning the Judiciary Act. That means, with 3 DPU and 2 CSDF reps you need to get the DPU to agree with you plus one CSDF rep, or two DPU reps plus both CSDF. The DPU may give you more of a hearing, after all Claude put forward a similar proposal the other week. The DPU would, of course, have to consider how ridiculous it might look in the eyes of the electorate if it were to support abolition of the principal achievement of this legislative term [i:2dy072hg]before it had even begun to operate[/i:2dy072hg], but that's for them to decide. But you do not stand a good chance of convincing the CSDF we should junk all this hard work in a heartbeat.

So this hasn't got a hope, unless..... it becomes part of the Simplicity Party's manifesto and you win 2/3 of the seats at the next election (or you manage to form a coalition with a party irresponsible enough to agree to this, wonder who that might be?:)). This is, I guess, what this is really about. You're positioning yourselves in advance of the election in January. Well, it's a bad idea now and it'll be a bad idea in January. I expect it will attract some votes for you and lose far more. [i:2dy072hg]Aliasi[/i:2dy072hg]: is this your party's policy?

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Post by Justice Soothsayer »

Pat, you may be right that changes to the implementation of the judicial system will fall victim to electoral politics, but I hope not. The CSDF meeting transcript indicates concern about how the judiciary is being implemented, and DPU seems to share those concerns. I think we all (or almost all) agree that a one-person judiciary has many pitfalls, and there is a broad consensus (of those other than Ashcroft who have spoken about the matter) that there are signficant deficiencies in the judicial qualification process.

The RA unanimously passed a resolution at it's next-to-last meeting that it would move to considering changing the method of selection of judges if we don't have more soon; consideration of the issue was brought to a premature close because people had to leave the meeting early, and because Ashcroft has extended the deadline for judicial applications to 7 December.

As Beathan has mentioned, I've told him and will tell others that I think there is much good in the Judiciary Act as passed, and won't support wholesale repeal. But I also think it is becoming increasingly clear that some changes are needed. The judicial "qualification" process is too cumbersome, has deterred several from applying, and doesn't really assess judicial temperament. I also worry about the forthcoming Code of Procedures (I think Ashcroft has described it as a "mammoth" task). If the procedures are too complex, no one will use our judicial system, which is purely voluntary.

Our self-governing community with a working judicial system can be a model shining city on the the hill (fog and all) for governance in the metaverse. It's important that we get this one right, and if that means admitting errors at the outset, I'm willing to do so.

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Post by Ashcroft Burnham »

[quote="Justice Soothsayer":1kfbfhbw] I think we all (or almost all) agree that a one-person judiciary has many pitfalls, and there is a broad consensus (of those other than Ashcroft who have spoken about the matter) that there are signficant deficiencies in the judicial qualification process.

The RA unanimously passed a resolution at its next-to-last meeting that it would move to considering changing the method of selection of judges if we don't have more soon; consideration of the issue was brought to a premature close because people had to leave the meeting early, and because Ashcroft has extended the deadline for judicial applications to 7 December.[/quote:1kfbfhbw]

The proof of the pudding is in the eating: I have extended the deadline to the 8th of December. If we do not have applicants by then, I will review the process. As Diderot pointed out, it is insane to change the qualification process mid-stream. There are still people interested in applying under our present model. If, for some reason or another, those interested people do not apply, then I may need to reconsider the qualificaiton procedures.

Remember, the whole point of the current system of judiical qualifications was to preserve the independence of the judiciary. That independence is not truly preserved when the legislature threatens to intervene whenever it does not like the processes adopted, or whenever they are unpopular. Judicial independence demands that the judiciary is given a substantial margin of appreciation in such matters as judicial qualification. I have already written that, if the current qualification procedures prove unworkable, I will change them. Remember, the qualification procedures are unavoidably untested: even if they do not work the first time around, that is not reason to abolish the independence of the judiciary and let other institutions interfere with judicial qualifiction. If problems arise in an area in which judicial independence must prevail, the judiciary should be given an opportunity to solve those problems before the legislature imposes systemic changes.

[quote:1kfbfhbw]As Beathan has mentioned, I've told him and will tell others that I think there is much good in the Judiciary Act as passed, and won't support wholesale repeal. But I also think it is becoming increasingly clear that some changes are needed. The judicial "qualification" process is too cumbersome, has deterred several from applying, and doesn't really assess judicial temperament.[/quote:1kfbfhbw]

Firstly, the fact that you do not like the way that a person exercises a power conferred by the constitution is not by itself a reason to change that consitution. The first port of call is trying to persuade the person to do things differently. As I have written before, I will not change the process part-way through, because I think that that is premature. Also, I will not impliment a system that imposes merely cursory checks on applicants for qualification: that would undermine the whole idea of the judiciary qualifying judges in the first place. If it fails to qualify anyone, then I will review it. The second port of call is not to change the fundamental system, but to change the people. The best way of doing that in this case is with the Special Commissioners proposal that Claude adopted as a friendly amendment to his judiciary oversight bill.

Secondly, as to judicial temprement, I have made this point now several times and I cannot understand for the life of me why everybody is ignoring it: the judicial qualification process was never designed to be a complete appointment process. It is part of a two stage process. The first stage is qualification by the judiciary, the second stage is appointment by the PJSP. The point of that process always was that the judiciary qualification process would make sure that the applicants had sufficient skill, and that the PJSP would make sure that they had the right kind of character. That the qualification process addresses skill, not character, therfore, is not a criticism of the qualification process, any more than it is a criticism of your washing machine that it does not also iron the clothes.

[quote:1kfbfhbw]I also worry about the forthcoming Code of Procedures (I think Ashcroft has described it as a "mammoth" task). If the procedures are too complex, no one will use our judicial system, which is purely voluntary.[/quote:1kfbfhbw]

The code will certainly be long: that does not, however, make it complex, at least in a practical sense. It is rather less complex, in fact, that many real-life sets of procedural rules (see [url=http://www.dca.gov.uk/civil/procrules_f ... m:1kfbfhbw]here[/url:1kfbfhbw] for an example of the English Civil Procedure Rules).

The length of the code that I am writing is largely due to it accounting for lots of possible eventualities, rather than saying a lot about each one. It is also due to the fact that, because our legal system has no traditions, there are no shared assumptions about how things like oral hearings work (who gets to speak first? Who gets the last word?), so everything has to be spelled out very clearly. Remember, people who are not lawyers need to be able to know how the system works. A short code might be easier to [i:1kfbfhbw]read[/i:1kfbfhbw], but it does not help to answer the inevitably huge number of "what happens if...?" qusetions. To answer those questions, people need either to draw on their experience of working with the legal system (nobody has any here), or work it out for themselves. Lawyers can usually work it out for themselves (at least, if they're lawyers who share a legal culture with those who wrote the code), but that is a harder thing for non-lawyers to do, and not that easy for lawyers from a different system, who might make many wrong assumptions. Therefore, to answer the "what happens if...?" questions, with a short code, one has to work out the answers, and with a long code, one has to look up the answers. Looking up is easier than working out, and therefore it is easier to use a system with a long code than a short one. It is also more predictable for everybody precisely because the "what happens if...?" questions are answered in advance, rather than being left entirely to the judge's discretion.

It is not inflexible, however: judges are given discretion, but it is not ulimited discretion: it is bounded discretion. Judges are told what their powers are, then given a list of factors that they should take into account when deciding whether to exercise those powers. That, of course, means that the code gets fairly long because it has set out the factors to take into consideration when it lists the powers. But, overall, for fairness and flexibility, it is the best balance.

My emphasis on drafting the code has been to balance, on the one hand, fairness and predictability, and, on the other, flexibility and efficiency. The aim is to create a system that, once up and running, will be easy to use because people will know what to expect, and also because the system is inherently designed to be efficient. It is also, of course, based heavily on the original idea that was presented when I posted my first judiciary thread, "Developing our judicial system" back in August, although it contains a few refinements.

I expect that the code, once issued, will need to be refined some more, with our experience of operating it. No doubt people will also have spotted things that I have missed, or have good ideas of which I had not thought. I do ask, however, that people give it a chance, and do not dismiss it merely because it contains many words. That sort of unthinking legal ludditism is damaging to a soceity in which the rule of law attempts to prevail.

Finally, even if the legislature does think that the code of procedure needs changing, it need not change the current constitutional arrangements in order to do so: the Judiciary Act was designed to give the legislature the power, as it has in England and other common-law jurisdicitons, to make its own rules of procedure that over-ride those created by the judiciary. However, I ask that, given what I have written above, and the amount of time and effort that I have put into our code of procedure, the legislature not be too hasty in exercising this power, and instead look first to the judiciary for refinements if there are any problems.

[quote:1kfbfhbw]Our self-governing community with a working judicial system can be a model shining city on the the hill (fog and all) for governance in the metaverse. It's important that we get this one right, and if that means admitting errors at the outset, I'm willing to do so.[/quote:1kfbfhbw]

Getting it right entails judicial independence, legal predictability, written procedural rules in enough detail to answer all the likely "what happens if...?" questions, systemic stability, and a highly skilled judiciary. Remember the fate of the Starfleet trial...

Ashcroft Burnham

Where reason fails, all hope is lost.
Beathan
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Publiation of part of letter to Ashcroft

Post by Beathan »

In light of Ashcroft's response to Justice, I think I should post something. Fortunately most of what I would say publically, I have already said privately to Ashcroft by letter in a private correspondence he and I are conducting, at my request, to try to keep the more personal aspects of our current spat from muddying up the public space.

Here's part of that letter that touches only on matters of public import and debate:

However, the judicial institution you have created is antidemocratic, and it is because the UK notion of judicial independence is profoundly antidemocratic. Even the US notion of judicial independence, which we reach by appointing judges to lifetime terms after nomination by the president and approval by the Senate, is antidemocratic, but less to than the UK version. I, many newcomers like me, and many people who were here before, would never be able to accept an insular and professional independent judiciary at the core of this experiment, which is supposed to be an experiment in online democracy, not the online rule of law in the sense you support. As citizens in a democracy, we have the right to clamor for change -- and to keep clamoring until we get it.

Personally, I am not at all worried by the "excesses of democracy" as you describe them. In real life, people suffer because they cannot leave, and suffer because change happens slowly. Here, we can leave at any time and we can act quickly to respond to suffering and change the circumstances that cause it. These are vital differences. Because of these differences, absolute democracy might work in SL in far better ways than in could in FL. I, for one, would like to test that -- rather than to have the ability to test it stripped from me. If I can't test whether virtual democracy is more viable than real democacy by watching the CDS, I don't know how I can explore the issue.

For me, rule of law is important -- extremely so. However, it does not require that law touch on and control every subject. In fact, if a subject is one that can proceed by consensus and agreement, rather than by legal fiat, it should. I believe that legal procedures in small to moderate sized legal systems are just such a setting. Further, allowing parties and judges to experiment with procedures will give us real advantages when we grow too big for such experimentation. We will have experimented with a broad range of procedures and will know, from that experiment, what things work, what things don't, and what appears to go wrong. At a minimum, even if we keep your judicial structure, I would strongly urge allowing freedom of procedure at the moment for these reasons.

The second problem I have with the nuts and bolts of your system involves judicial qualification. In this, I think that you are forgetting that SL is a frontier. As such, law and justice should proceed accordingly -- through antigriefing devices, we already have frontier justice; we should also have frontier law. The simple fact is that, as a frontier, we have no choice. Any attempt to bring London or New York law to the frontier failed in the last century, and any attempt to bring full-blown modern systems into SL will fail.

I think that you are at a disdvantage because the UK has not had anything like frontier law for hundreds of years. Colonial law comes closest, but colonial law is not the same and also has the drawback of being, on any account, fundamentally and irreducibly undemocratic.

That said, let me tell you about my family history in this regard. Right after the American Civil War, in which my great-great-great-grandfather served as a surgeon, my family homesteaded a ranch in Wyoming. My great-great-grandfather and his brother ran cattle from Wyoming to Texas. It was tough and dirty work and they didn't like it much, so they packed lawbooks in their saddlebags and read them by campfirelight. On the American frontier, if a person "read the law" for seven years, he could become an attorney. My great-great-grandfather and his brother did.

Later, they both moved to Washington State, just after it became a state in 1889. They were very active in Republican politics in the state. They were also involved in the governance and opening of the Territory of Alaska. From this political basis, my great-great-grandfather's brother ran for Congress and became a Congressman, and my great-great-grandfather was appointed as a Federal District Court Judge, an office he served with such ability and honor that his picture is posted prominently in the federal courthouse for the Western District of Washington, recognizing him as perhaps the best judge who has ever served on that court.

Perhaps this perspective can underscore where I am coming from when I complain that your system, with its complexities and professional requirements, is built of "needless things."

Beathan

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