Rule of Law

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Beathan
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Rule of Law

Post by Beathan »

Both in these forums, and in private conversation, people have bantered about the term "rule of law" with some frequency. I would like to know what people mean by this term.

To me, it means that substantive law equally binds all citizens. That is, there are no special privileges or immunities from otherwise generally applicable law. That is, the rule of law has three parts: 1. There must be generally applicable law (and preferably no specially applicable laws -- such as bills of attainder) which is clear enough to be understood by those expected to follow it and by those expected to enforce it (this prevents arbitrary action in the name of "law"). 2. There must be equality of citizens before the law. 3. There must be a process of enforcement of the law, and the clear meaning of the substantive law must be preserved and applied through this process.

On this definition, law is a matter of substance, not of process, provided there are one or more processes that result in consistent substantive enforcement of the law. There is an alternative, which elevates process, such that rule of law becomes a matter of prescribed procedures and rituals. I call this process alternative "Rule of Legal Process" -- and I consider it undesirable as elevating form over substance (often losing the substance in the process) and losing the essential egalitarian feature of real rule of law. Related to this is administration of law by professionals. I call this "Rule of Lawyers." I find it even more objectionable than Rule of Legal Process in a small comunity such as ours because, as a fundamentally elitist form of law, it actually violates and impedes the egalitarian purpose of rule of law.

Rule of lawyers is only necessary to approximate the rule of law when the law is too complex for ordinary people to understand, discover or apply. Our law is not there. God willing, it will never be there. We should not institute rule of lawyers unless and until it is necessary to administer an otherwise arcane code of laws. Even then, we should recognize that it is a sad and sorry substitute for the rule of law.

I would like both Ashcroft and Michel Manen to provide definitions in this context so that I can better understand their criticism of my proposal for restoring judicial power to the SC. I fail to see how this restoration changes, let alone deprives us of the protection of, substantive law. It is a change in process only -- and the only people who lose are an emerging privileged class of lawyers. Further, that class only loses a kind of special privilege that is antithetical to rule of law.

Beathan

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Post by Ranma Tardis »

I understand what you are referring to and how destructive this can become. In Japan the rules are the rules and the law is the law. There are no exceptions and the "rule of law" must be followed no matter what. This resulted in thousands of people being burned to death in fires fueled by leaking gas mains. Nobody had the "authority" to shut the gas mains off. They got shut off by the delay cost lives.
We can do better than the above. Our government is around for the benefit of its citizens and not to provide a place for a debating club on the meaning of different laws or for the definition of legal terms.

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Post by Ashcroft Burnham »

The concept of the rule of law is encapsulated in the Aristotle quote that I have in my signiture: "[i:1p3laxeb]We do not permit a man to rule, but the law[/i:1p3laxeb]". That means that power must be exercised indirectly, by means of abstract, written rules, rather than directly, by an individual or group commanding particular outcomes in individual cases. The following principles are principles of the rule of law:

(1) power is exercised only by rules;

(2) the rules are interpreted and applied by people wholly independent of the people who make them, and by people who have no interest in the outcome of any dispute about how the rules are interpreted or applied;

(3) there are rules about what rules can be made, who can make them, how rules are made, and how the rules are applied and interpreted;

(4) the rules are all written and made publicly available, and it is only the public textual content of those rules that is recognised by the instiutions that interpret and apply the rules as having foce; and

(5) there are effective (not necessarily perfect) ways of stopping people from breaking the rules, which are in fact applied to stop people from breaking the rules in a significant proportion of the cases in which people do break the rules, or that deters most people from breaking the rules at all except in a few marginal cases where they are unlikely to be caught.

The importance of mediating political power through rules is to prevent the exercise of power from being capricious, to enable public scrutiny of all exercises of power, and to ensure that power is exercised conistently. Justice entails treating like cases alike and unlike cases unlike: there is no better way of doing so than with rules. Furthermore, rules provide for [i:1p3laxeb]predictability[/i:1p3laxeb]: it is far better to resolve potential disputes in advance by making rules than it is to wait until disputes arise and then work out what should have happened. If people know how disputes are likely to be resolved, they can not only prevent themselves from getting involved in disputes in the first place (which itself is a good thing), but can organise their affairs far more efficiently than if they have no idea how prospective disputes may be resolved. This is especially important to the commercial world: good, detailed law is vitally important for economic efficiency. It is no coincidence that the most sophisticated, in many ways, the most complicated, legal systems on earth correspond to the nations that have the greatest economic wealth, nor that the law of contract is one of the areas with the most precise and detailed set of rules, and whose specialist practitioners tend to be amongst the most intellectually skilled in the whole legal profession.

(Incidentally, the above is equally an argument for an executive that is independent from the legislature as it is an argument for a judiciary that is independent from the legislature. In fact, there are additional reasons why the judiciary should be independent of all popular political processes, as I have discussed elsewhere. We have a semi-independent executive, in that our executive is not (and may not be) a member of our legislature, and can only directly be controlled by the legislature by the legislature making public written rules (Acts) about what she may do, but not fully independent, as she is appointed by the legislature, rather than elected separately and at a different time from the legislature. Those who have criticised me for being unthinkingly biased towards UK models should note that, in the UK, the executive and legislature are not at all independent of each other - one of the greatest failings of the political system here. I value the rule of law in the abstract, not whatever the system in the UK happens to be come what may).

As to Beathan's attack on the importance of professionalism, there are good reasons why the legal profession, and indeed other professions, grow up. Because the rule of law demands that all power is exercised by written rules, and because there are a vast array of permutations of circumstances in which some degree of power ought be exercised (to prevent people taking advantage of other people, or being weighed down by intractible disputes: the law of contract alone is huge), and a mind-boggling number of possible permutations of interactions between those facts and the basic tenets of a legal system, which the principle of treating like cases alike, and of exercising power only through rules, demands each has a rule that covers it predictably. The rule of law and justice, therefore, between them, necesssarily create a set of complex rules. Furthermore, the practice of arguing about how rules apply to particular factual circumstances, and of advocating a position in any formal dispute-resolving process, are skills that not only can be enhanced significantly by learning, but are things that some people are inherently better at than others, and, moreover, the presence of absence of which in any given party to a dispute might be decisive as regards the outcome of that dispute.

Far from creating some sort of inequality, legal professions exist to ensure that anyone has access to a pool of people with training and expertise in formal advocacy, rule-application, and the specific law of the legal system in question. That makes the position of parties [i:1p3laxeb]more[/i:1p3laxeb], not less, equal, in that it ensures that cases are won and lost on their merits, not on the basis of how good that the individual litigants happen to be at arguing. That is why the right to legal advice, the "right to counsel" as it is sometimes put, is recognised by constittionas and human rights treaties (including the UNHDR by which we are governed) as of fundamental importance. Indeed, as I imagine that Beathan well knows, the historical development of the legal profession owes far more to the demand for people who were good at [i:1p3laxeb]arguing[/i:1p3laxeb], and at advancing a cause in a formal context, than to deal with complex law.

Problems with a legal profession can arise, not because of the mere fact that parties need to rely on the legal profession to have as good a chance of winning their case as other parties who do rely on the legal profession, but when legal professions either become too expensive for a significant number of people to afford, or when they behave in damaging ways. Neither are necessary featuers of the legal profession: in many countries (including the UK), there is government subsidisation for lawyers for those who cannot afford their own (it is often called "legal aid", although the term is no longer formally in use in the UK). In our virtual country, it is likely that supply and demand economics in SecondLife will mean that, practically, everybody will be able to afford a SecondLife lawyer. Legal professions who behave in damaging ways (such as the US legal profession, whose ethical standards are derided accross the world, and nowhere more so than in the US) can be tamed (or, better, prevented from arising in that way at all) by proper regulation. Compare the US legal profession with the English Bar, renowned accross the world for its high standards both of ethics and advocacy, proof that a legal profession can be a benefit, not a burden, to a soceity.

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Post by Publius Crabgrass »

I don't think being unthinkingly biased towards UK is the problem, but being biased towards a legal system that virtually requires legal professionals to navigate is the problem. And it is of concern to the lawyers and non-lawyers alike among our citizens.

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Post by Beathan »

Publius wrote [quote:2c03ngrb]I don't think being unthinkingly biased towards UK is the problem, but being biased towards a legal system that virtually requires legal professionals to navigate is the problem. And it is of concern to the lawyers and non-lawyers alike among our citizens.[/quote:2c03ngrb]

Having read Ash's response, I now agree. I was surprised to discover that Ash's formulation of the rule of law is even more complicated than the traditional formulation given in UK Constitutional law (let alone its simpler American version).

Rule of law, on both sides of the pond, traditionally has three components -- and only three components: 1. general laws, 2. equality before the law, 3. effective enforcement of those laws given this equality. This is as much an English and an American description of the requirement.

The mere observation that rule of law requires rule by laws not men is either circular, impossible (if it requires enforcement by robots or their equivalent), or vacuous as an argument. It is a good principle. The question is how we do it.

Ashcroft's description is simultaneously too complicated and incomplete. He completely forgets the central feature of rule of law -- equality before the law. Here again we see an elitist impulse in his legal theory, which is found throughout his theoretical and jurisprudential work. It is the elitist impulse, more than anything, that first raised my concerns -- and that continues to raise concerns among this community.

Ash has been given every opportunity to reform his position and return to the common fold of common justice for all citizens of the CDS. In response, he has tenaciously, and with increasing rhetorical violence, held on to his elitist principles -- drowning in volume the egalitarian objections he fails to acknowledge or respond to with reasons. This is a problem with the Act. It is also a problem with Ashcroft as judge.

I welcome Claude's suggestion that we avoid giving judicial offices to newcomers -- and I include myself in that category (obviously). These offices are too important to be held by people who have not been sufficiently steeped in the CDS history and its traditions. Eventually, Ash, and Michel Manen, and I, and the other recently arrived legal talent will be sufficiently acclimated to the CDS to serve judicial functions. However, until then, we should not do so.

That said, as a democracy, we should be allowed a full place in the debate. I am tired of what I consider to be an illegitimate criticism of me -- advanced in particular by Patroklus -- that, as a newcomer, I should be considered a lesser or second-class citizen, at least insofar as public debates are concerned. It is true that newcomers should not be given public responsibility until we have proven ourselves and our abiity and worthiness to fill the positions. However, it is another to propose that we be muzzled for a time. This is another elitist impulse -- the impulse of the here-firsters as opposed to the Ashcroftian elitism of special ability. Neither elitism has a place in a democracy.

Beathan

Last edited by Beathan on Tue Dec 05, 2006 11:50 am, edited 6 times in total.
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Post by Ashcroft Burnham »

[quote="Beathan":kqpe7x85]Rule of law, on both sides of the pond, traditionally has three components -- and only three components: 1. general laws, 2. equality before the law, 3. effective enforcement of those laws given this equality. This is as much an English and an American description of the requirement.[/quote:kqpe7x85]

Do not confuse the rule of law itself with different theories about what the rule of law is. A thing is not a theory of itself. Just like there is, by definition, only one logic, but multiple, competing theories of logic, there is only one rule of law, of which there are multiple, competing theories.

[quote:kqpe7x85]The observation that rule of law requires rule by laws not men is either circular, impossible (if it requires enforcement by robots or their equivalent), or vacuous.[/quote:kqpe7x85]

So, despite me explaining in detail what I mean by rule by laws, not men, you still think that the concept (posited by Aristotle) is vacuous or circular, even though you have not actually found any logical flaw in what I have written?

[quote:kqpe7x85]Ashcroft's description is simultaneously too complicated and incomplete. He completely forgets the central feature of rule of law -- equality before the law. Here again we see an elitist impulse in his legal theory, which is found throughout his theoretical and jurisprudential work. It is the elitist impulse, more than anything, that first raised my concerns -- and that continues to raise concerns among this community.[/quote:kqpe7x85]

This is an ad hominem attack on my personality rather than any genuinely substantive criticism of the theory. First of all, equality before the law is indeed important (if you have bothered to read the forum threads on the debate before the Judiciary Act was passed, you will see me defending the principle in discussions about whether or not people who serve in public office should be able to be banished by Courts of Common Jurisdiction, even though that would have the same effect as impeachment). Secondly, equality before the law is an [i:kqpe7x85]emergant property[/i:kqpe7x85] of the theory that I have described above: I am surprised that that is not obvious to you. What could the result be [i:kqpe7x85]but[/i:kqpe7x85] equality if power can only be exercised through written, abstract rules? The requirement of abstractness entails the equality.

As to being "too complicated", as a criticism of a [i:kqpe7x85]theory[/i:kqpe7x85], it is incoherent: either the complicated theory is not an accurate theory of the thing of which it is a theory, in which case it is a bad theory because it is inaccurate, not because it is complicated, or it is an accurate theory, in which case whether it is complicated is neither here nor there. If the thing of which something is a theory is complicated, anything other than a complicated theory would be a fasle theory. Do you criticise quantum theory for being "too complicated"?

[quote:kqpe7x85]Ash has been given every opportunity to reform his position and return to the common fold of common justice for all citizens of the CDS. In response, he has tenaciously, and with increasing rhetorical violence, held on to his elitist principles -- drowning in volume the egalitarian objections he fails to acknowledge or respond to with reasons. This is a problem with the Act. It is also a problem with Ashcroft as judge.[/quote:kqpe7x85]

If you think that it is a bad thing that judges do not give into one or other side of an argument, not because of the inherent merits in an argument, but merely because one side appears to be more popular than another, then your conception of justice is dangerously skewed. What of the judge in a criminal case, faced with an overwhelming clamour of public opinion to convict the highly unpopular defendant, who realises that the evidence presented by the prosecution is nowhere near adequate even to be left to the jury, let alone to found a conviction?

[quote:kqpe7x85]I welcome Claude's suggestion that we avoid giving judicial offices to newcomers -- and I include myself in that category (obviously). These offices are too important to be held by people who have not been sufficiently steeped in the CDS history and its traditions.[/quote:kqpe7x85]

What is that but the elitism that you so ferociously decry when you (mistakenly) spot it in others?

[quote:kqpe7x85] Eventually, Ash, and Michel Manen, and I, and the other recently arrived legal talent will be sufficiently acclimated to the CDS to serve judicial functions. However, until then, we should not do so.[/quote:kqpe7x85]

I have been here since August. How long do you think is necessary, in the fast changing world of SecondLife, to hold public office? Let it be noted that most people don't [i:kqpe7x85]use[/i:kqpe7x85] SecondLife for longer than six months before going off and doing something else.

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Post by Claude Desmoulins »

[quote="Ashcroft Burnham":1rihd0vo]
I have been here since August. How long do you think is necessary, in the fast changing world of SecondLife, to hold public office? Let it be noted that most people don't [i:1rihd0vo]use[/i:1rihd0vo] SecondLife for longer than six months before going off and doing something else.[/quote:1rihd0vo]

I was in office about 90 days after joining. However....

* That office had a set term, and the citizens had a chance to remove me from that office at the end of it. It is not so with judges under the system as presently designed.

* The office did not have much unilateral power. If I wanted to pass something, I had to get at least two other RA members to agree with me (Also remember that the DPU was a minority government last term). Judges, OTOH are called on to, to some degree, be the conscience of the community. They also have a great deal of individual authority as they decide cases.

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Post by Beathan »

Ash writes that I am confusing the theory of rule of law with rule of law as a thing. His theory defines the thing. Mine is just a theory. This is special pleading of the highest order. It also fails to recognize that rule of law is a legal theory -- the thing is a theory, so to discuss the thing is to discuss the theory. Ashcroft has his theory wrong, on both the American and the UK statements of the theory. To see this more clearly, I recommend interested people read http://en.wikipedia.org/wiki/Rule_of_law.

Ash writes of my criticism that his legal theory has an elitist impulse,[quote:2xr3aogr]This is an ad hominem attack on my personality rather than any genuinely substantive criticism of the theory.[/quote:2xr3aogr]

It is not. I was specifically attacking Ash's theory and its subtext, not Ash. It is possible that Ash is not elitist, merely confused. He certainly is confused when he claims that equality can be an emergent quality of an elitist institution. At best, the equality of everyone outside the institution can be equalized by being equally debased. This is not the kind of equality I have in mind when I say that I want egalitarian rule of law. Further, abstractness does not lead to equality. The concept of absolute monarchy is abstract, but it is profoundly unequal.

Ash write [quote:2xr3aogr]As to being "too complicated", as a criticism of a theory, it is incoherent: either the complicated theory is not an accurate theory of the thing of which it is a theory, in which case it is a bad theory because it is inaccurate, not because it is complicated, or it is an accurate theory, in which case whether it is complicated is neither here nor there. [/quote:2xr3aogr]

I follow Occam's razor. My criticism is in that vein. The theory is too complicated to be trusted to be accurate.

Ash writes [quote:2xr3aogr]If you think that it is a bad thing that judges do not give into one or other side of an argument, not because of the inherent merits in an argument, but merely because one side appears to be more popular than another, then your conception of justice is dangerously skewed.[/quote:2xr3aogr]

I think that there is a distinction between Justice as meted out in a case and Justice as a public policy. Justice in a case should be tailored to the case and should look to the law and generally not to the crying mob. However, policy decisions, such as what kind of Justice System to have, should be determined by democratic process. Further, even in single cases, when there is a matter of public importance involved in the case, it is wise to look at the will of the people, provided we realize that the will of the people is not always wise (at least at any given instance).

With regard to my restriction on newcomer office holding as being elitist in the same vein as Patroklus's attacks on my right to participate in public debate, I disagree. Newcomers are citizens. They should have the full rights of citizenship, equal with all other citizens regardless of age of citizenship. Office holding is different. Officers are hired by the citizens, based on criteria the citizenry as a whole deems appropriate. Familiarity of office holders with the history and traditions of the CDS seems like an appropriate requirement, indeed a necessary requirement to preserve stability in the CDS. For judges, temperament and character are also incredibly important. Hypercompetence, as currently required, to the detriment of temperament, character, and CDS enculturation, is not such a requirement and is causing substantial and legitimate heartburn as the Judiciary Act is implemented.

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Post by Ashcroft Burnham »

[quote="Beathan":35ah4s43]Ash writes that I am confusing the theory of rule of law with rule of law as a thing. His theory defines the thing. Mine is just a theory. This is special pleading of the highest order.[/quote:35ah4s43]

That is a wholly unjustified criticism. My point is that the theory of the rule of law is a theory [i:35ah4s43]of[/i:35ah4s43] something. If it is a good theory, it explains accurately the thing of which it is a theory. If it is a bad theory, it does not explain accurately the thing of which it is a theory. The thing of which the theory of the rule of law is a theory is the rule of law. Both my theory and the theories that you have cited attempt to be accurate theories of the rule of law. My point is simply that my theory is a [i:35ah4s43]more[/i:35ah4s43] accurate theory. That is the essential nature of the argument itself, not special pleading. Have you found anything specifically [i:35ah4s43]wrong[/i:35ah4s43] with my theory, or can you muster no real argument against it?

[quote:35ah4s43]It also fails to recognize that rule of law is a legal theory -- the thing is a theory, so to discuss the thing is to discuss the theory.[/quote:35ah4s43]

No, the rule of law is a state of affairs. It is meaningful to state "The rule of law prevails in Uzbekistan". That does not mean "The people in Uzbekistan have a good idea about the theory of the rule of law", but that Uzbekistan is a nation that really is ruled by laws, not by the capricious power of people, in the way that I described.

[quote:35ah4s43]Ashcroft has his theory wrong, on both the American and the UK statements of the theory. To see this more clearly, I recommend interested people read http://en.wikipedia.org/wiki/Rule_of_law.[/quote:35ah4s43]

[quote="Wikipedia":35ah4s43]The rule of law is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedure. The principle is intended to be a safeguard against arbitrary governance.

On 16 November 2006, Lord Bingham of Cornhill said, in relation to the rule of law: "The core of the existing principle is, I suggest, that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts."

Hallmarks of adherence to the rule of law commonly include a clear separation of powers, legal certainty, the principle of legitimate expectation and equality of all before the law.[/quote:35ah4s43]

Isn't that a summary of exactly what I wrote?

[quote:35ah4s43]It is not. I was specifically attacking Ash's theory and its subtext, not Ash. It is possible that Ash is not elitist, merely confused. He certainly is confused when he claims that equality can be an emergent quality of an elitist institution.[/quote:35ah4s43]

Merely stating that I am "confused" is not an argument. I have presented specific arguments as to how equality before the law can be an emergant property of the rule of law I have explained. I have not claimed that it is the product of any particular institution. Why are you attacking straw men, and by mere assertion, at that?

[quote:35ah4s43]At best, the equality of everyone outside the institution can be equalized by being equally debased. This is not the kind of equality I have in mind when I say that I want egalitarian rule of law. Further, abstractness does not lead to equality. The concept of absolute monarchy is abstract, but it is profoundly unequal.[/quote:35ah4s43]

It is the abstractness of [i:35ah4s43]rules[/i:35ah4s43] that I wrote lead to equality before the law, since the rules, being abstract, necessarily apply to all equally. It really does pay to read what I write more carefully before making sweeping criticims.

[quote:35ah4s43]I follow Occam's razor. My criticism is in that vein. The theory is too complicated to be trusted to be accurate.[/quote:35ah4s43]

[url=http://plato.stanford.edu/entries/simplicity/:35ah4s43]Occam's razor[/url:35ah4s43] is the principle that, [i:35ah4s43]all other things being equal[/i:35ah4s43], a simpler theory is preferable. In this case, for the reasons that I have given, all other things are not equal. It is not a meaningful criticism of any theory, in and of itself, to say "this is complicated": it is only a meaningful criticism to say "this is more complicated than it needs to be in certain specified respects, which are...". Unless you can find particular aspects of my theory that are superflouous, and exaplain [i:35ah4s43]how[/i:35ah4s43] they are superflouous, then you have no argument at all.

[quote:35ah4s43]I think that there is a distinction between Justice as meted out in a case and Justice as a public policy. Justice in a case should be tailored to the case and should look to the law and generally not to the crying mob. However, policy decisions, such as what kind of Justice System to have, should be determined by democratic process. [/quote:35ah4s43]

That is what happened: our democratically elected representatives passed the Judiciary Act. Thrice. But determinations of [i:35ah4s43]who[/i:35ah4s43] can be a judge, and, therefore, [i:35ah4s43]how[/i:35ah4s43] one decides who can be a judge, necessarily, albeit indirectly, impact on the impartiality of decisions in individual cases. If a body only appoints judges whom it knows will decide cases in a particular way, then the independence of the judiciary is as much undermined as if judges just plain give into popular opinion merely because it is popular opinion.

[quote:35ah4s43]However, even in single cases, when there is a matter of public importance involved in the case, it is wise to look at the will of the people, provided we realize that the will of the people is not always wise (at least at any given instance).[/quote:35ah4s43]

Do you seriously believe that a judge in a case such as that which I describe should have [i:35ah4s43]any[/i:35ah4s43] regard whatsoever to the public clamour for conviction?

[quote:35ah4s43]With regard to my restriction on newcomer office holding as being elitist in the same vein as Patroklus's attacks on my right to participate in public debate, I disagree. Newcomers are citizens. They should have the full rights of citizenship, equal with all other citizens regardless of age of citizenship. Office holding is different. Officers are hired by the citizens, based on criteria the citizenry as a whole deems appropriate. Familiarity of office holders with the history and traditions of the CDS seems like an appropriate requirement, indeed a necessary requirement to preserve stability in the CDS. For judges, temperament and character are also incredibly important. Hypercompetence, as currently required, to the detriment of temperament, character, and CDS enculturation, is not such a requirement and is causing substantial and legitimate heartburn as the Judiciary Act is implemented.[/quote:35ah4s43]

You have ignored so many times the point that I have made about the ability of the PJSP to assess temprement that I think that you might be deliberately trying to hide something. I do not require "hyper"-competence: I require competence.

Furthermore, there is no reason to believe that being "steeped in the traditions of" a fast-changing soceity, made up mostly of people who have arrived within the last few months, will have any effect whatsoever. I am beginning to think that this is a tactical ploy by you to say "look, according to the 'being here for ages' requirement, we have no judicial applicants suitably qualified. The application system [i:35ah4s43]must[/i:35ah4s43] be too hard. Let's dismantle the whole judiciary". Are you worried that your position will be weaker if we get many judicial applications by the end of the week? Is that why your position is so radically different now from what it was before, when you were willing to serve as a judge, only just having arrived?

Why have you also pointedly failed to answer my question about [i:35ah4s43]how[/i:35ah4s43] long you think is long enough?

Last edited by Ashcroft Burnham on Tue Dec 05, 2006 2:38 pm, edited 1 time in total.
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Post by Patroklus Murakami »

[quote="Beathan":hwt6w2ap]policy decisions, such as what kind of Justice System to have, should be determined by democratic process.[/quote:hwt6w2ap]It was. After a long and exhaustive debate the Representative Assembly voted unanimously in favour of the Judiciary Act three times. It is that democratic process that you now seek to undermine.

[quote:hwt6w2ap]With regard to my restriction on newcomer office holding as being elitist in the same vein as Patroklus's attacks on my right to participate in public debate, I disagree. Newcomers are citizens. They should have the full rights of citizenship, equal with all other citizens regardless of age of citizenship.[/quote:hwt6w2ap]Naughty! You really shouldn't misrepresent people like that. I have not attacked your right to participate in this debate. I have said that those of us who worked on this proposal for several months have the right not to agree with you. You're trying to get us to junk months' worth of work, we have the right to refuse. I've also described you as a 'newcomer with an agenda'. The first part is clearly true, as is the second. I'm disappointed that most of the voices raised in this debate since you started your antagonism with Ash have seemed to agree that we should junk the work of months. I had rather hoped that our elected representatives would have stood up for the decision they took. To reverse their position, scant weeks after they last voted in favour of the Judiciary Act, would make them look like idiots.

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Post by Diderot Mirabeau »

[quote="Patroklus Murakami":32tvvu01]I had rather hoped that our elected representatives would have stood up for the decision they took. To reverse their position, scant weeks after they last voted in favour of the Judiciary Act, would make them look like idiots.[/quote:32tvvu01]

I disagree. It might as well indicate their surprise at the way that the implementation of the act has been handled.

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Post by Beathan »

Pat wrote [quote:2u873fqj]It was. After a long and exhaustive debate the Representative Assembly voted unanimously in favour of the Judiciary Act three times. It is that democratic process that you now seek to undermine. [/quote:2u873fqj]

I am not seeking to undermine the process, I am seeking to use the process to repeal a legislative mistake, which was not obviously a mistake at the time the Act was passed, but which has proven to be a mistake as the Act was being implemented. The mere fact that efforts were made in the wrong direction does not make the direction the right one.

This, interestingly, is contrary to Ash's self-declared agenda -- which was to implement and test his own legal system and legal theories. I don't have that kind of agenda. I proposed a legal system for two reasons: 1. the Judiciary Act provides for a bad system and 2. supporters of the Act, notably including Patroklus, argued that the Act should be retained because no one had proposed an alternative.

Pat wrote [quote:2u873fqj]. I've also described you as a 'newcomer with an agenda'. The first part is clearly true, as is the second. I'm disappointed that most of the voices raised in this debate since you started your antagonism with Ash have seemed to agree that we should junk the work of months. [/quote:2u873fqj]

I do have an agenda -- I want a sound and workable, fair and equitable, legal system for the CDS. This is not a bad agenda.

Further, I observe that Pat appears to say that newcomers can talk as long as they don't persuade anyone. This not only muzzles and stigmatizes newcomers, it muzzles and stigmatizes exactly those newcomers that have important things to say.

Beathan

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

[quote="Beathan":1mw5iexs]I am not seeking to undermine the process, I am seeking to use the process to repeal a legislative mistake, which was not obviously a mistake at the time the Act was passed, but which has proven to be a mistake as the Act was being implemented. The mere fact that efforts were made in the wrong direction does not make the direction the right one.[/quote:1mw5iexs]So you're seeking to persuade the RA that they messed up in passing the Judiciary Act and should rip it up and start again? How can you assess that the passage of the Judiciary Act was a mistake when we are still in the earliest stages of implementation? You have prejudged the situation on the basis of partial information and your objections to the selection process where, I grant you, there are legitimate concerns. These should be investigated by a Commission drawing in lots of citizens voices. The RA should not cave in to your agenda just because you've made 160 posts (and counting!) attacking the Judiciary Act.

[quote:1mw5iexs]Further, I observe that Pat appears to say that newcomers can talk as long as they don't persuade anyone. This not only muzzles and stigmatizes new-comers, it muzzles and stigmatizes exactly the newcomers that have important things to say.[/quote:1mw5iexs]Again with the misrepresentation. You can say as much as you want, my point is I don't have to agree with you and our elected representatives don't have to dance to your tune just because you are very persistent in playing it. Muzzle you? I'd like to see someone try! (That was a joke, btw :))

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Post by Beathan »

The Wikipedia entry describes rule of law as "The rule of law is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedure. The principle is intended to be a safeguard against arbitrary governance. "

It also cites multiple authorities, both American and English, with emphasis on English authorities, for the principle. Notably, the most analytically rigorous authorities all divide rule of law into three parts, as I do. Further, they define those parts as I do.

The opening sentence of this entry appears to beg the question about whether there should only be one preseribed procedure or whether multiple procedures, which together protect, preserve and apply the substantive general law, is sufficient rule of law. The academic authorities clarify this point. Multiple procedures are OK as long as substantive law is enforced and enforced equitably.

In fact, by referring to "established procedure" rather than "an established procedure" the Wikipedia antry does not beg this question. Ashcroft does. It is an important quesiton -- and one that is central to my opposition to the Judiciary Act -- and it should be answered, not begged.

Beathan

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Post by Ashcroft Burnham »

[quote="Beathan":3efudbvq]In fact, by referring to "established procedure" rather than "an established procedure" the Wikipedia antry does not beg this question. Ashcroft does. It is an important quesiton -- and one that is central to my opposition to the Judiciary Act -- and it should be answered, not begged.[/quote:3efudbvq]

How do you interpret the word "established"?

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