Proposed Restoration of Justice Act

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Justice Soothsayer
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Post by Justice Soothsayer »

I don't believe that judicial independence is threatened by the legislature changing the method of judicial selection, if we conclude that the current system doesn't work. Judicial independence is all about making sure that judges make decisions on the merits of a case, not about how the judiciary is structured.

I'm not aware of any RL legal systems where the judges act as gatekeepers in deciding who sits on the bench with them. (US Circuit Judges do select US Bankruptcy Judges - an inferior court -- but they don't get to decide who is qualified to sit on their own court with them.) Taking the gatekeeper role away from the judges (or in this case, the sole judge) is a decision well within the province of the legislature, especially if we determine that the gates built by the judiciary are too high or are too much of a maze.

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Post by Ashcroft Burnham »

So I [i:1xdx1kn0]was[/i:1xdx1kn0] right? The substance of your criticism really [i:1xdx1kn0]is[/i:1xdx1kn0] nothing more than "This is not American enough for me"? As Pat pointed out, we had the judicial independence debate before you came here, and struck the balance that we struck now after lengthy and detailed debate. Just because you have turned up and don't like it is not a reason to go back on it. Your arrival has not, by itself, changed anything.

Incidentally, it is not at all true to claim that there is anything "antidemocratic" in the English notion of judicial independence and the rule of law. Far from it, the rule of law, served, as it is, by judicial independence, serves the same important functions as does democracy: to act as a check on abuses of power. The rule of law and democracy also balance against each other to provide the right interplay of majoritarianism, justice, stability and flexibility. I have already written at length in the historical threads that discussed whether judges ought be elected or appointed, and ought have security of tenure or not, exactly why it is so important that the influences of popular majoritarianism not pervade the operations of the judiciary. I shall not repeat them here. Believing in the importance of democracy, as I do, does not entail in believing that democracy is the right kind of way of bancing every kind of power. It is the right check for political power, but the wrong check for judicial power.

As to whether you, or other people would "ever be able to accept" a judiciary that is truly independent is really a matter for you; but there is no reason to believe that you or people like you are any more important than the people who would never be able to accept a nation that does not have an independent judiciary. Nobody is stopping you from developing your own visions of democracy and justice: you can start your own independent virtual nation, if you like, with your own court system with elected judges, and no doubt we'll be happy to create a commonwealth with you in it and a reciprocal enforcements of judgments agreement. However, the implimentation of your way of doing things would no less stop us from pursuing our goal of having a democracy with an independent judiciary and a strong rule of law than we are stopping you from pursuing your goal of having a virtual nation with elected judges.

As to frontiers, your comments are at best speculative. It is worthy of note that we are not frontier [i:1xdx1kn0]people[/i:1xdx1kn0]: all of us who inhabit SL (or, at least, most of us) live out our first lives in sophisticated, civilised, refined societies, with complex legal systems and democratic governments. It is the people who make the soceity for the most part, not the environment, so one cannot assume that we will all start behaving like wild-Western cowboys merely because the (virtual) physical environment is relatively uncharted.

However, if all your criticism boils down to is "this system is too English", then it is a very weak criticism indeed, since the English legal system is considered the benchmark for justice the world over, and was the very system that inspired the system that you consider preferable.

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Post by Beathan »

Ash -- My criticism may well be "this system is too English." However, it is certainly not "the system is not American enough for me." The system I propose as an alternative is not American either. My system is not based on any legal system I know of anywhere in the U.S. Rather, my legal system proposal is based on substantial research I have done into the emergence of online culture, ecomony and legal system. I can cite references at length if you want. For now, I note the following:

Castronova, Edward, [u:114zektm]Synthetic Worlds[/u:114zektm]

Koster, Ralph, various, including his "Rights of Avatars"

Lessig, Lawrence , [u:114zektm]Code and Other Laws of Cyberspace[/u:114zektm]

Lastowka, F. and Hunter, D. "The Law of Virtual Worlds"

My system does not match any of the systems proposed or discussed in these texts, but does match the evolution of my thoughts in light of what is now over fifteen years spent on MUDS and MMOGs. The one truth I have learned from this experience is that the online world experience is fundamentally multicultural and that, therefore, any system imported into an online world wholesale from anywhere on earth will cause dissent, hardfeeling and disenfranchisement. We are involved in something entirely new -- and we need to bring entirely new ideas to the endeavor.

That said, I think it is not at all speculative to call this virtual space a frontier. Castronova and the others I have cited have done so and have provided extremely good analysis to support that description. As I see it, online spaces break naturally into two categories -- colonies and frontiers. Where the space is associated closely with or primarily populated by members of a distinct earth culture (as are some games in China due to the governmental regulation and control of such games), they act like colonies of that culture. Where the space is international, it is a frontier. Ashcroft's mistake (underscored by his fellowcountryman, Patroklus) is that they, based on the experience and abilities of their earth nation, are treating SL as a colony rather than a frontier. This is a fundamental misstep, and an antidemocratic mistake as well.

We need our systems to allow for our personal differences in background and culture. More, we need are systems to make use of and benefit from those differences. We need to avoid systems that suppress or deny those differences. The current judicial system suppresses and denies those differences. It should be rejected and replaced for that reason.

Further, I should not be disregarded merely because I am a newcomer. I am saying nothing that was not said in the earlier debate. However, I seem to be saying it with more analytical force than previously. As a result, the criticism now has a traction is previously lacked. This should not be disregarded by the government and community. If it is disregarded, it will be either at the peril of the government (if we remain democratic) or the community (if we cease to be democratic). I am pleased that the DPU understands this and look forward to working with them in whatever capacity I am honored with, whether it be citizen, representative, judge, or member of the SC or other institution.

However, I am concerned with the response of the CDSF. I never thought that I would see reason to believe the American Conservative claim that "Social Democrat" is an oxymoron. At the moment, I think I might be seeing that the Buchanan Republicans have this, at least, right -- and I am appalled that I might share common ground with them.

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Post by Ashcroft Burnham »

[quote="Justice Soothsayer":ccmj1kqe]I don't believe that judicial independence is threatened by the legislature changing the method of judicial selection, if we conclude that the current system doesn't work. Judicial independence is all about making sure that judges make decisions on the merits of a case, not about how the judiciary is structured.[/quote:ccmj1kqe]

Judicial independence is threatened when the legislature says to the judiciary, which is charged with judicial selection, "if you don't qualify the sort of judges that we want you to qualify, then we'll take away your power to qualify judges, and give it to somebody who will qualify the ones that we want". Judicial selection is indeed closely related to judicial selection.

I am not suggesting that that is what you are currently proposing. If the judiciary proves itself incpable over time of qualifying enough judges to meet the demand for judges, and cannot rectify the problem itself, then the legislature would be right to intervene. However, firstly, even if the current system did not produce sufficienty suitably qualified candidates for judicial office, the fact that the judiciary does not get it right the first time does not mean that the judiciary will never get it right: provided that the judiciary is willing to revise the qualificaiton procedures, which I am if there are insufficient people qualified and no prospect of more soon, then the legislature need not intervene unless the judiciary consistently fails, despite numerous revisions, to qualify enough candidates. Secondly, even if the judiciary as it is presently composed cannot be trusted to set in place procedures that are capable of qualifying enough good candidates for judicial office, the right answer is not to abolish wholesale the principle that the judiciary shall select who is qualified for judicial office, but rather to adopt the special commissioners proposal.

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Post by Ashcroft Burnham »

[quote="Beathan":1o3a83i5]Ash -- My criticism may well be "this system is too English." However, it is certainly not "the system is not American enough for me."[/quote:1o3a83i5]

Even "This system is too English" is a weak criticism, as explained above.

[quote:1o3a83i5]My system does not match any of the systems proposed or discussed in these texts, but does match the evolution of my thoughts in light of what is now over fifteen years spent on MUDS and MMOGs. The one truth I have learned from this experience is that the online world experience is fundamentally multicultural and that, therefore, any system imported into an online world wholesale from anywhere on earth will cause dissent, hardfeeling and disenfranchisement. We are involved in something entirely new -- and we need to bring entirely new ideas to the endeavor.[/quote:1o3a83i5]

How is the election of judges and having judges have fixed term offices any less imported wholesale from the US than a system of courts with a professional judiciary and refined and detailed rules of procedure is imported from the UK, or, for that matter, many other nations? Indeed, much of our existing system is unique, too. Our two-stage judicial qualificaiton system, for example, and the Public Judiciary Scrutiny Panel in particular, is unique. Our combination of the functions of criminal and civil law into one system of courts is unique. The role of the Scientific Council (including its judicial role) is unique, and provides a unique check on the power of the judiciary as upholder of the rule of constitutional law. Why do you assume that an online social space will be [i:1o3a83i5]multi[/i:1o3a83i5]cultural, rather than develop its [i:1o3a83i5]own[/i:1o3a83i5], singular, culture? SecondLife, remember, is very different from the online games of old: it is far more about socialising, and far less about playing. Culture has more space to develop. There are [i:1o3a83i5]already[/i:1o3a83i5] SecondLife specific cultural norms emerging: Gwyneth is the expert on those. There is no reason why that should not apply to our legal systems, too.

In any event, the system that I have crafted does very specifically take into account the fact that people will come to the system with very different expectations: it does that by setting out very precisely what people should expect from our system. Some of those things may well be very unexpected to people familliar with other systems (including the English system), but that is part of the challenge and joy of working with an emerging legal system in an emerging world. Where people's expectations differ, the answer is most certainly not to increase reliance on expectations in general by having few, if any, detailed procedural rules.

[quote:1o3a83i5]We need our systems to allow for our personal differences in background and culture. More, we need are systems to make use of and benefit from those differences. We need to avoid systems that suppress or deny those differences. The current judicial system suppresses and denies those differences. It should be rejected and replaced for that reason.[/quote:1o3a83i5]

That is logically flawed. Having any given set of rules is not by itself capable of suppressing or denying people's differences. Rules are needed for a good reason in any given soceity: they ensure that the actions of some do not cause substantial detriment to many, and they ensure co-ordination. In order for rules to be capable of being effective, the same, coherent set of rules, must apply to all in that society. The mere fact that some of the people in a virtual nation come from a real-life nation in which any given set of rules prevail cannot conceivably entail that those people are bieng "suppressed" or the differences between them and any given different set of people are being "ignored" merely because the rules are not the same. Indeed, the whole [i:1o3a83i5]point[/i:1o3a83i5] of a virtual nation is to have a soceity governed by a [i:1o3a83i5]single[/i:1o3a83i5] set of rules, rather than to have the anarchy the pervades most of SecondLife. Some of those rules may well be drawn from real-life societies that have learned from hundreds, or even thousands, of years of experience what rules work and what does not. However, the way that we run our government here is such that no person, coming from any given country, will find all of the rules familliar. Our constitution is, in at least some significant aspects, radically different to that of any given real life nation. It draws, of course, quite heavily on real-life nations' constitutions for inspiration, especially those of North America and Europe from which most of our citizens come. But it is abusrd to claim that the British people here are being "suppressed", or their differences "ignored" because we have a presidential head of the executive with a veto power instead of a cabinet government, or that the Portugese people here are being "suppressed" or their differences "ignored" because we have a common law, rather than civil law, legal system. In order to live in a virtual nation, people must come to undertstand that they will inevitably have to adapt their thinking to operate within a system that has hitherto been entirely alien to them; but it is not a bad thing that they have to do so - it is good, because the process of adapting is highly educational; people who have always assumed that there is only one possible way of doing things see that things can be - and successfully are - done in quite different ways. I have learnt, for example, about the benefits and practicality of an executive that is at least partly independent from the legislature, which is very different to the situation here in the UK, where the executive is comprised of members of Parliament. I consider myself enriched thereby, not suppressed or ignored.

[quote:1o3a83i5]Further, I should not be disregarded merely because I am a newcomer. I am saying nothing that was not said in the earlier debate. However, I seem to be saying it with more analytical force than previously. As a result, the criticism now has a traction is previously lacked.[/quote:1o3a83i5]

You have not made any argument or cited any reason against the true independence of the judiciary that Justice Soothsayer has not already made or cited in our previous discussions on the matter. You should not, indeed, be disregarded merely because you are a newcomer, but similarly, the fact that you have come is not a reason not to have an independent judiciary more than we had before.

[quote:1o3a83i5]This should not be disregarded by the government and community. If it is disregarded, it will be either at the peril of the government (if we remain democratic) or the community (if we cease to be democratic).[/quote:1o3a83i5]

You think that the CDS is genuinely in [i:1o3a83i5]peril[/i:1o3a83i5], merely because we are not abandoning our new judicial system in favour of the one that you prefer? That is wholly without basis, and, at the very best, highly exaggerated.

[quote:1o3a83i5]I am pleased that the DPU understands this and look forward to working with them in whatever capacity I am honored with, whether it be citizen, representative, judge, or member of the SC or other institution.[/quote:1o3a83i5]

I don't think that I have seen anybody from the DPU think that we would be in peril if we do not abandon our existing judicial system and adopt yours.

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Post by Beathan »

Ashcroft asks me [quote:3aqvk0v8]How is the election of judges and having judges have fixed term offices any less imported wholesale from the US than a system of courts with a professional judiciary and refined and detailed rules of procedure is imported from the UK, or, for that matter, many other nations? [/quote:3aqvk0v8]

Have I proposed this? Where? I don't recall doing so. I do recall saying that electing judges would be preferrable to the current system, which has and may continue to fail to provide for judges. However, I have not said that it is the best alternative. I think that the best alternative is nomination and approval -- as we have for selection of SC members. Indeed, I think that the best process would be to return judicial power to the SC, where it was originally placed and from where it was stripped without good reason.

I have also not opposed the idea of lifetime service as a way of creating and preserving judicial independence. I am not sure that we need or want judicial independence, but if we do, we should have it through a system like tenure. That is, we should not have have the further feature of judicial self-selection and control over the appointment process. This judicial control of judicial appointment creates a fully insulated institution at the heart of democracy, with insufficient democratic control over it. The reason why such a system is preferred in England has to do with England's traditional caste system rather than from any commitment to more sound principles of justice and law. The form of Judicial Independence we have in the US -- based on lifetime appointment of Federal Judges after nomination and approval by democratic institutions -- is a more sound and proper balance of the interest of independence with the needs of a democracy.

Ashcroft writes [quote:3aqvk0v8]Our two-stage judicial qualificaiton system, for example, and the Public Judiciary Scrutiny Panel in particular, is unique. Our combination of the functions of criminal and civil law into one system of courts is unique.[/quote:3aqvk0v8]

Not really. Both are American.

[quote:3aqvk0v8]Why do you assume that an online social space will be multicultural, rather than develop its own, singular, culture? SecondLife, remember, is very different from the online games of old: it is far more about socialising, and far less about playing. Culture has more space to develop. There are already SecondLife specific cultural norms emerging: Gwyneth is the expert on those. There is no reason why that should not apply to our legal systems, too. [/quote:3aqvk0v8]

I don't assume this. In fact, I think I strongly suggested that a unique culture would develop and proposed setting up ways to allow for it. That said, I think that we have to realize that we all come from different cultures. Indeed, this cultural exchange (which I have had with Ashcroft, Gwyneth, Michel Manen, Jade and others) is one of the richest and most wonderful things I have discovered in SL.

[quote:3aqvk0v8]In any event, the system that I have crafted does very specifically take into account the fact that people will come to the system with very different expectations: it does that by setting out very precisely what people should expect from our system.[/quote:3aqvk0v8]

Again, this is dealing with difference by squashing it. That is wrong from the start. We should allow each of us to actively bring what they have to offer and use it in free-form experiment. We should not accept some parochial viewpoint and forcefit people to it.

[quote:3aqvk0v8]Having any given set of rules is not by itself capable of suppressing or denying people's differences.[/quote:3aqvk0v8]

What? This is nonsensical. (Note, this is the first time I am using that term in these discussions.) Rules control and limit behavior. The more detailed and sweeping the rules, the more they control. Even limited rules stifle some differences. This is not a bad thing, if the differences that are stifled are harmful. However, the more sweeping the rules, the more likely that good and fruitful differences will be stifled. This is my point. Ash's rules go too far -- way too far.

[quote:3aqvk0v8]Indeed, the whole point of a virtual nation is to have a soceity governed by a single set of rules, rather than to have the anarchy the pervades most of SecondLife. [/quote:3aqvk0v8]

Again, I disagree. As I have argued elsewhere, freedom is what exists in the space between law and anarchy. The point of a free society in secondlife is to have enough rules to avoid anarchy, but no more. Otherwise we approach, even fall into, totalitarianism. Surely we can chart a middle course between anarchy and totalitarianism? My objection is that Ash's proposal, like that of any good Hobbesian, fails to do so.

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Post by Ashcroft Burnham »

[quote="Beathan":3tu3g6vf]Have I proposed this? Where? I don't recall doing so. I do recall saying that electing judges would be preferrable to the current system, which has and may continue to fail to provide for judges. However, I have not said that it is the best alternative. I think that the best alternative is nomination and approval -- as we have for selection of SC members. Indeed, I think that the best process would be to return judicial power to the SC, where it was originally placed and from where it was stripped without good reason.

I have also not opposed the idea of lifetime service as a way of creating and preserving judicial independence. I am not sure that we need or want judicial independence, but if we do, we should have it through a system like tenure. That is, we should not have have the further feature of judicial self-selection and control over the appointment process. This judicial control of judicial appointment creates a fully insulated institution at the heart of democracy, with insufficient democratic control over it. The reason why such a system is preferred in England has to do with England's traditional caste system rather than from any commitment to more sound principles of justice and law. The form of Judicial Independence we have in the US -- based on lifetime appointment of Federal Judges after nomination and approval by democratic institutions -- is a more sound and proper balance of the interest of independence with the needs of a democracy.[/quote:3tu3g6vf]

I am not going to waste my time re-writing the detailed arguments in support of the importance of judicial independence that I wrote the first time around.

[quote:3tu3g6vf]Not really. Both are American.[/quote:3tu3g6vf]

You have the same rules of procedure for civil and criminal law in the USA? And what institution serves the function of the Public Judiciary Scrutiny Panel over there, that is, a non-partisan but elected body, whose members may be impeached for actions tending to undermine judicial independence, with the power to appoint judges qualified by the existing judiciary, and to investigate complaints into the judiciary (other than those which should be dealt with by way of appeals), and produce reports on the judiciary?

[quote:3tu3g6vf]I don't assume this. In fact, I think I strongly suggested that a unique culture would develop and proposed setting up ways to allow for it. That said, I think that we have to realize that we all come from different cultures. Indeed, this cultural exchange (which I have had with Ashcroft, Gwyneth, Michel Manen, Jade and others) is one of the richest and most wonderful things I have discovered in SL.[/quote:3tu3g6vf]

Nobody is denying that we all come from different cultures. That does not mean that any one person can expect that any given set of institutions will entirely conform to the exepctations that he or she has from her or his culture.

[quote:3tu3g6vf]Again, this is dealing with difference by squashing it. That is wrong from the start. We should allow each of us to actively bring what they have to offer and use it in free-form experiment. We should not accept some parochial viewpoint and forcefit people to it.[/quote:3tu3g6vf]

As I have written before, for rules to have any use, there must be only one set of rules; and for rules of court procedure to have any value, they must deal with all reasonably foreseeable eventualities by setting out clearly what will happen in those eventualities. That is utterly incompatible with the idea of some "free-form experiment", whatever you mean by that, that does not have precise rules.

[quote:3tu3g6vf]What? This is nonsensical. (Note, this is the first time I am using that term in these discussions.) Rules control and limit behavior. The more detailed and sweeping the rules, the more they control. Even limited rules stifle some differences. This is not a bad thing, if the differences that are stifled are harmful. However, the more sweeping the rules, the more likely that good and fruitful differences will be stifled. This is my point. Ash's rules go too far -- way too far.[/quote:3tu3g6vf]

[i:3tu3g6vf]What[/i:3tu3g6vf] rules go too far, in precisely [i:3tu3g6vf]what[/i:3tu3g6vf] ways? What you write makes no sense at all: in order to benefit from rules (and that is the whole point of the existence of the CDS), we must have [i:3tu3g6vf]one[/i:3tu3g6vf] set of rules. Incoherent rules or sets of rules are worse than worthless. If people who come to the CDS are unwilling or unable to step back from their own cultures, and embrace a detailed ruleset that is drawn from many different cultures (including a goodly number of rules drawn from no particular real life culture), then they are not the sort of people who will do well in any virtual nation. I ask you again, since you seem pointedly to have ignored the question that I raised before: are all the British people here being suppressed or squashed or ignored becaues we have an American style executive?

[quote:3tu3g6vf]Again, I disagree. As I have argued elsewhere, freedom is what exists in the space between law and anarchy. The point of a free society in secondlife is to have enough rules to avoid anarchy, but no more. Otherwise we approach, even fall into, totalitarianism.[/quote:3tu3g6vf]

Are you [i:3tu3g6vf]seriously[/i:3tu3g6vf] suggesting that [i:3tu3g6vf]any[/i:3tu3g6vf] SecondLife state could realistically be totalitarian, yet alone that our Confederation could be by virtue of [i:3tu3g6vf]merely having an independent judiciary and detailed procedural rules[/i:3tu3g6vf]? We are back in the realms of wild exaggeration and wholly unfounded vague assertions.

[quote:3tu3g6vf]Surely we can chart a middle course between anarchy and totalitarianism? My objection is that Ash's proposal, like that of any good Hobbesian, fails to do so.[/quote:3tu3g6vf]

If you think that judicial independence is Hobbesian, you have a very limited grasp indeed of what judicial independence in a democratic society really entails.

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Post by Justice Soothsayer »

[quote="Ashcroft Burnham":1b8aa0rs]If the judiciary proves itself incpable over time of qualifying enough judges to meet the demand for judges, and cannot rectify the problem itself, then the legislature would be right to intervene.[/quote:1b8aa0rs]

Your argument boils down to "we should wait for the outcome before changing the system", a conservative position. There are two problems with that argument. First, we *have* waited. The RA held off at the November meeting from adopting any changes in part to give time for the qualification process to work, and it still hasn't. I know, you have extended the deadline to give two possibly interested candidates time to complete the long form. We'll see what happens by December 8th.

Second, it's not the yet-to-come outcome that I and others find troubling, it is the qualification process itself and of what it may symptomatic. I fear that you are developing a system that is so complicated that it will take RL lawyers to handle. Your vision of a professionalized judiciary may be too much for this small society to take.

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Post by Ashcroft Burnham »

[quote="Justice Soothsayer":1am2xxwx]Your argument boils down to "we should wait for the outcome before changing the system", a conservative position. There are two problems with that argument. First, we *have* waited. The RA held off at the November meeting from adopting any changes in part to give time for the qualification process to work, and it still hasn't. I know, you have extended the deadline to give two possibly interested candidates time to complete the long form. We'll see what happens by December 8th.[/quote:1am2xxwx]

I do not think that I am being excessively conservative in stating that the legislature would be very hasty and premature to make radical changes to what it passed because the very first set of qualification procedures adopted by the judicary did not produce enough qualified candidates, only three or four weeks after the vacancies arose. If the judiary, if that transpires to be the case (I currently know of three interested people), resolves to change the system itself, why should the legislature then intervene?

[quote:1am2xxwx]Second, it's not the yet-to-come outcome that I and others find troubling, it is the qualification process itself and of what it may symptomatic. I fear that you are developing a system that is so complicated that it will take RL lawyers to handle. Your vision of a professionalized judiciary may be too much for this small society to take.[/quote:1am2xxwx]

We [i:1am2xxwx]have[/i:1am2xxwx] real-life lawyers, and lots of them. More are joining all the time, many specifically because of this legal system. I remember, way back in August, Jon Seattle saying that there would not be more than one person who wanted to be a judge. Even I had said that nobody would want to be Chair of the Judiciary Commission. If you think that a full judicial system is too much for the CDS to handle, then you underestimate the CDS. Remember also what I have written many times before about what it [i:1am2xxwx]means[/i:1am2xxwx] for a legal system to be complex, and how, whilst a legal system cannot help, whatever it does, being mind-bogglingly complex in practical application (think of all the possible permutations of rule-situation interactions), what it can do is tame some of that complexity by predicting it in advance. The [i:1am2xxwx]sources[/i:1am2xxwx] of law will then be more complex, but what really counts - the practical application - will actually be simpler. Detailed sources of law do not, in reality, indicate legal rules that are harder, rather than easier, to apply than vague sources of law. Why else do you think that the legal system of every civilised system on earth has, without exception, developed huge amounts of highly detailed source material for its rules?

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Post by Beathan »

Justice wrote [quote:2s90e5ly]I fear that you are developing a system that is so complicated that it will take RL lawyers to handle. Your vision of a professionalized judiciary may be too much for this small society to take.[/quote:2s90e5ly]

This hits the nail on the head. What I am afraid of, and what I see in the Judiciary Act, especially as it is being implemented, is the creation of an institution that has the potential to hijack the CDS and turn it into a society run by lawyers for lawyers. As a lawyer, one might think I would welcome that. However, the more lawyers I meet, the more I like my coonhounds.

We need to start simple, with simple rules that anyone can step into. We should model ourselves on Rome and Athens, where every citizen could and often was an attorney, rather than on current modern justice systems. If we do, our legal system may eventually develop -- as all modern legal systems have done -- into a professional system staffed and run by professionals. However, it is both unnecessary and unwise -- as well as profoundly elitist -- to start there.

Further, I am disturbed by the essential Englishness of the system. This is a badge and mark of a colony -- not a free state, not a frontier. English found the people on the Indian subcontinent and said, "these Indians are not English -- let's make them English." That marked India out as a colony. It is the wrong way for the CDS to go. It is not too late to stop this process and put us back on the right track.

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Post by Ashcroft Burnham »

[quote="Beathan":in0i7unl]Further, I am disturbed by the essential Englishness of the system. This is a badge and mark of a colony -- not a free state, not a frontier. English found the people on the Indian subcontinent and said, "these Indians are not English -- let's make them English." That marked India out as a colony. It is the wrong way for the CDS to go. It is not too late to stop this process and put us back on the right track.[/quote:in0i7unl]

Considering that it was an English person who had the idea of helping to develop a legal system in a self-governing community in a virtual nation, and an English person who was prepared to spend hours of work for free perfecting it, it is hardly surprising that the system draws more from the English legal system than any one other legal system. But to claim, as you do, that there is something "colonial" about being heavily influenced by a system with which one is familliar and a system that works very well is just plain abusrd.

And please read what I have written above on why a truly "simple" legal system is impossible; the legal systems of old were not simple, merely unsophisticated. Working out how to work effectively with the legal system was still mind-bogglingly complicated, but it was [i:in0i7unl]so[/i:in0i7unl] unpredictable that not even the best minds could hope to understand it, so everybody was equally disadvantaged. Now, after people have learnt what rules work best to deal with all sorts of permutations that people had not predicted years ago, it is easier (not easy - it never will be) to predict what the outcome of humans applying particular rules to particular factual permutations will be.

The emergance of a legal profession is not "elitist", but an important step towards becoming a truly advanced soceity, and one that has been predicted for some time now by Professor David Post, who has a considerable interest in SecondLife, and predicted the rise of a legal system inside a self-governing community such as ours. I have written to him, and he has expressed a great interest in visiting us, once he is able to get to a broadband connexion.

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Post by Gwyneth Llewelyn »

As a moderator of these forums, I'm personally concerned about any public debate where the arguments employed are ones related to (RL) national bias. I fear that these don't add any value at this stage. Like someone very wise once said, "we all have our own personal bias" — it's unavoidable. The Art of Democracy is to Learn to Compromise. And we still have that wonderful opportunity to pick the best from all systems we know — or dreamed about, or read about on science fiction books — and try to work them out into a coherent system.

(Living in a country under a civil law system modelled after *Roman* law — unlike most civil law systems that are modelled on the more modern Napoleonic Code — I naturally might have even weirder ideas about a legal system :) )

Put into other words, a system is not "better" if it is "more English" or "more American" or more "European" or whatever "more" comes next in the list ("more Martian?"), but if it is more acceptable to the citizens that live under that system. If not, it's a bad system; and it's up to the citizens to create a new one. It will be impossible to devise the [i:2aaf47g7]best[/i:2aaf47g7] possible legal system ever, that starts from perfection ultimate, and pleases all generations to come. Instead, we have, so far, approved the system that gathered more votes by the democratically elected Representative Assembly. That's all we've got, and all we should expect to have.

I would also like to share Justice's concerns. While there are things in the CDS that traditionally take a long time — we have waited 9 months for the franchulates, and one year to do a sim expansion! — there is indeed a concept of "waiting too long". The Perfect Utopian Judiciary might just be a chimera, a Holy Grail that lives in the dreams of many, but is impossible to achieve. We can only hope, as human beings, to get the "best possible" system, and tweak it over the time to make it as fair and balanced as possible.

Overall, I don't shun a system that requires professionals to deal with it. As time goes by, this will become more and more true. With a thousand sims, we will be very likely audited by Anderson or any similar auditing firm — and hire professional accountants to do our budgets, like Anshe Chung does. We will have more professional RL architects planning and designing our sims (we already have a couple). We will have marketing experts hired to promote the CDS. We will have bankers and financial advisers selling our bonds in a (future) SL stock market. The overall professionalising of the functions publicly held in the CDS is not a bad thing by itself; it is a mark of growth. One can only argue if it's overkill to do it [i:2aaf47g7]now[/i:2aaf47g7] while there are only 65 of us, or if, by the contrary, this is the right moment to start slowly getting people used to having professionals at all levels, and prepare people for the required changes step by step, starting with one area and slowly covering all others.

I don't know if this is "good" or "bad". I can certainly claim it is "good" if it is the will of the majority of citizens, and that suffices for me, since I'm a firm believer in that principle :)

It is not my purpose to discuss what aspects of the current Judiciary Act might fail to address specific needs or desires of the CDS population. All I can say at this point is that settling on compromises and abdicating from irreducible positions is the only way we can work with what we have, instead of working with what we (individually) wished to have. The challenge is to know [i:2aaf47g7]what[/i:2aaf47g7] to change and in which way to apply these changes. That, I'm afraid, is the hard and difficult task of our honourable members of the RA :)

FYI, Beathan, you will be pleased to know that the whole set of authorities you quote are relatively frequent visitors of Second Life, and perhaps except for Lessig, they have a very intriguing approach to SL: they're [i:2aaf47g7]scared[/i:2aaf47g7] by it. Castronova thinks that the SL economy is so real that it can't hardly be studied separately from, say, the Web economy; Raph Koster has no idea on what it takes to define a "bill of rights for avatars" when they become mere nicknames of RL persona (and not role-playing identities) — he gasps and coughs under a serious de-construction of his arguments publicly done by an (in)famous SL blogger and opinion leader and refuses to discuss things earnestly; Richard Bartle thinks that the visual, interactive, 3D aspect of SL clouds all the other aspects of a synthetic world which make them worthy (appealing to the imagination — through text — and community building, vs. "visual effects" that distract the mind and do not focus it on the important issues). Globally, I can only see them as being "very puzzled" with Second Life — too similar to what they're used to research, and thus they cannot afford to ignore it, but at the same time too different that they can't grasp its concepts and utterly fail to apply the fruit of their research to the virtual, synthetic world of Second Life.

One should not minimise the importance of these great researchers and authors. They should all be required reading; however, one should also take their views and opinions with a pinch of salt. Koster's "Avatar Bill of Rights", for instance, is contrary to the Universal Declaration of Human Rights in several aspects that he "deemed not to be necessary in a virtual world". This begs to have him answer the question if we are "less" human while interacting within the realm of a synthetic space, and thus do not require "as many rights" as when talking them face-to-face. When I do a phone call, do I also get my basic human rights "downgraded" because I'm not talking face-to-face to a fellow human being?

Discussing these and other aspects is a fascinating subject and I would love to host a series of events on the theme "Are The Experts All Puzzled By Second Life?" and incite public ostracism by the whole research community in the world :)

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Post by Beathan »

Gwyneth,

The point of my ojection to the current system being too English is not an objection to its being English per se. Rather, it is an objection to it being anything. We need to forge our own future from our own needs as presented by this virtual world. Thus, I think it is a profound mistake to draw too much on RL traditions or intitutions.

I have gone out of my way to propose a system based on my own experience in virtual space and on the ideas of others with strong critical and analytical experience of virtual space. I have gone out of my way to propose an alterntive system that is not "American" -- but that is virtual and multiculturally expansive. This, rather than Ashcroft's more parochial approach, is (I think) the correct one.

For that reason, I look to the authorities I cited. I agree, those authorities make bad gospel -- and I have not followed any of them as such. However, I do think that they have highlighted some of the unique benefits, unique abilities, and unique challenges of virtual worlds. We should use the unique benefits of this system (which will not be found in any RL system) to overcome both general problems and the unique challenges of this virtual space. Further, as a democratic sim, we should do so in as accessible and generally enfranchizing a manner possible.

Beathan

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“Proposed Restoration of Justice Act”

Post by michelmanen »

(1) I have resisted the temptation to discuss in detail the “Proposed Restoration of Justice Act” and the many wonderous issues and arguments raised and discussed above in such colorful terms. Compared to them, the politico-legal debate we have been having in Canada regarding the (possible) sovereignty of Quebec since the mid-1960s looks downright low-key and orderly…

(2) Let us proceed to the crux of the matter, beyond any ad hominem attacks and all political jokeying. Our system's unique nature in 2L is founded on the twin and inseparable principles of democratic legitimacy and the rule of law. Neither principle can be violated or dismissed without severely damaging the very essence of what we stand for. None of us should encourage, condone, or accept any such attempts either individually or as a member of a group.

(3) The foundational act underlying any possible discussion on this matter is the RA's adoption of the “Judicature Act” (the Act). The RA, our only democratically-elected legislature, thereby conferred the Act with the necessary legitimacy and authority and spelled out a numb er of procedures. It follows that only the RA has the ultimate authority to repeal it or amend its contents.

(4) In order to adequately balance the twin and inseparable principles of democratic legitimacy and the rule of law, as well as to provide a clear mechanism of change should a major, non-transient Judicial Crisis arise in the DCS, I propose, in draft format, “An Act to give effect to the requirement for clarity regarding claims of Judicial Crisis in the CDS” for the consideration, amendment (if required) and adoption of the Representative Assembly.

An Act to give effect to the requirement for clarity regarding claims of Judicial Crisis in the CDS

Preamble

WHEREAS it is commonly held that, under international law and under the Constitution of the DCS, it is necessary for the Representative Assembly of the DCS and for DCS citizens as a whole to effect the repeal of the DCS Judicature Act or of its successors, if any;

WHEREAS any proposal regarding the repeal of the DCS Judicature Act or its successors, if any, is a matter of the utmost gravity and is of fundamental importance to all of its citizens;

WHEREAS the government of the DCS is entitled to consult its citizens by referendum on any issue and is entitled to formulate the wording of its referendum question;

WHEREAS it is commonly held that the result of a referendum on the repeal of the DCS Judicature Act or its successors, if any, must be free of ambiguity both in terms of the question asked and in terms of the support it achieves if that result is to be taken as an expression of the democratic will that would give rise to an obligation to hold a vote in the Representative Assembly that might lead to its repeal;

WHEREAS it is commonly held that democracy means more than simple majority rule, that a clear majority in favour of the repeal of the DCS Judicature Act or its successors, if any, would be required to create an obligation to hold a vote in the Representative Assembly regarding such repeal, and that a qualitative evaluation is required to determine whether a clear majority in favour of the repeal of the DCS Judicature Act or any of its successors, if any, exists in the circumstances;

WHEREAS the repeal of the DCS Judicature Act or its successors, if any, would be governed by the principles of democracy, constitutionalism and the rule of law;

WHEREAS, it is commonly held that it would be for elected representatives of the Representative Assembly to determine what constitutes a clear question and what constitutes a clear majority in a referendum held regarding the repeal of the DCS Judicature Act or any of its successors, if any, the Representative Assembly, as the only political institution elected to represent all DCS citizens, has an important role in identifying what constitutes a clear question and a clear majority sufficient for the government of the DCS to hold a vote in the Representative Assembly in relation to the repeal of the DCS Judicature Act or its successors, if any;

AND WHEREAS it is incumbent on the government of the DCS not to hold a vote in the Representative Assembly that might lead to the repeal of the DCS Judicature Act or its successors, if any, unless the citizens of the DCS have clearly expressed their democratic will in favor of the repeal of the DCS Judicature Act or its successors, if any,
NOW, THEREFORE, the Representative Assembly of the DCS, enacts as follows:

Representative Assembly to consider question

1. (1) The Representative Assembly shall, within thirty days after being presented with a petition signed by at least ten per cent (10%) of all DCS citizens entitled to vote, asserting the existence of a Judicial Crisis in the CDS and setting out a referendum question to this effect, consider the question and, by resolution, set out its determination on whether the question is clear.

Extension of time

(2) Where the thirty days referred to in subsection (1) occur, in whole or in part, during a general election of members to serve in the Representative Assembly, the thirty days shall be extended by an additional forty days.

Considerations

(3) In considering the clarity of a referendum question, the Representative Assembly shall consider whether the question would result in a clear expression of the will of the citizens of the DCS.

Where no clear expression of will

(4) For the purpose of subsection (3), a clear expression of the will of the citizens of the DCS could not result from:

(a) a referendum question that focuses on a mandate to effect the repeal of the DCS Judicature Act or its successors, if any, as long as a minimum of two (2) judges, in addition to the Chief Justice, are willing and able to partake in the good functioning of the judicial system of the DCS existing and in force at the time; or

(b) a referendum question that envisages other possibilities in addition to the wholesale repeal of the DCS Judicature Act or its successors, if any, that obscure a direct expression of the will of the citizens of the DCS on whether the DCS should effect the repeal of the DCS Judicature Act or its successors, if any;

Other views to be considered

(5) In considering the clarity of a referendum question, the Representative Assembly shall take into account the views of all political parties represented in the Representative Assembly as well as the submissions of the Chief Justice and his / her colleagues (if any).

No Representative Assembly vote if question not clear

(6) The Government of the DCS shall not hold a vote in the Representative Assembly on whether the DCS should effect the repeal of the DCS Judicature Act or its successors, if any, if the Representative Assembly determines, pursuant to this section, that a referendum question is not clear and, for that reason, would not result in a clear expression of the will of the population of the DCS on whether a state of Judicial Crisis exists in the DCS.

Representative Assembly to consider whether there is a clear will to repeal

2. (1) Following a referendum relating to whether the DCS should effect the repeal of the DCS Judicature Act or its successors, if any, the Representative Assembly shall, except where it has determined pursuant to section 1 that a referendum question is not clear, consider and, by resolution, set out its determination on whether, in the circumstances, there has been a clear expression of a will by a clear majority of the citizens of the DCS.

Factors for the Representative Assembly to take into account

(2) In considering whether there has been a clear expression of a will by a clear majority of the population the DCS, the Representative Assembly shall take into account:

(a) the size of the majority of valid votes cast in favour of the repeal proposal: no less than sixty-seven per cent (67 %) of the votes cast must support the repeal proposal;

(b) the percentage of eligible voters voting in the referendum: no less than eighty per cent (80 %) of the DCS citizens must have cast their ballots in the referendum; and

(c) any other matters or circumstances it considers to be relevant.
Confirmation by the Representative Assembly.

(3) In considering whether there has been a clear expression of a will by a clear majority of the population of the DCS, the Representative Assembly shall take into account the views of all political parties represented in the Representative Assembly of the DCS, by taking an open vote to confirm or reject the results of the referendum.

Confirmation and entry into force of the repreal

3. (1) Should the Representative Assembly confirm by resolution that a clear expression of a will by a clear majority of the population the DCS has voted in favor of the repeal of the DCS Judicature Act or its successors, if any, the Representative Assembly shall, within thirty (30) days of such confirmation, hold an open vote of its members to ratify the result of the referendum.

(2) The referendum in favor of the repeal of the DCS Judicature Act or its successors, if any, shall be deemed ratified by the Representative Assembly if a two-thirds (2/3) majority of no less than eighty per cent (80%) of its total number of elected Members, vote in favour of the repeal of the DCS Judicature Act or its successors, if any; further to the ratification of the referendum by the Representative Assembly, the Judicature Act will be deemed repealed.

Limitations

3. The repeal of the DCS Judicature Act or its successors, if any, shall enter into force ninety (90) days after the confirmation vote of the Representative Assembly, or the entry into force of the DCS’s new judicial system legislation, whichever of these events may occur last.

4. The Representative Assembly shall in no circumstances consider a petition asserting the existence of a of Judicial Crisis in the CDS and setting out a referendum question to this effect, before the one-year anniversary of a previous ratification or rejection of a previous DCS Judicature Act repeal referendum by the Representative Assembly, if any.

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Re: “Proposed Restoration of Justice Act”

Post by Diderot Mirabeau »

It's CDS.

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