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Aliasi Stonebender
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Post by Aliasi Stonebender »

[quote="Ashcroft Burnham":3uecjisi]
Justice, the point of having a legal system in the CDS is to provide workable dispute resolution to our citizens, and beyond, not to play around with different ideas for the sake of it.
[/quote:3uecjisi]

If you truly believe this, then you quite simply miss the point of the whole project.

[quote:3uecjisi]
In any event, I have explained at very great length above the reasons why the oversimplified model cannot work. If nobody can show that reasoning to be flawed, then there is no argument against the point, RL experience or no.[/quote:3uecjisi]

I believe people have been pointing out many, many flaws; you have merely dismissed their arguments as meaningless and irrelevant, which is not at all the same thing as actually [i:3uecjisi]being[/i:3uecjisi] meaningless and irrelevant.

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Ashcroft Burnham
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Post by Ashcroft Burnham »

[quote="Aliasi Stonebender":tsrnf8dn]If you truly believe this, then you quite simply miss the point of the whole project.[/quote:tsrnf8dn]

Of course I believe it: I always have done, and have always made that abundently clear. Why do you think that the point of this project is just to play around?

[quote:tsrnf8dn]I believe people have been pointing out many, many flaws; you have merely dismissed their arguments as meaningless and irrelevant, which is not at all the same thing as actually [i:tsrnf8dn]being[/i:tsrnf8dn] meaningless and irrelevant.[/quote:tsrnf8dn]

Aliasi, nobody has even [i:tsrnf8dn]attempted[/i:tsrnf8dn] to address the most recent post above in which I explain the point about the inherent nature of complexity with reference to the hypothetical harassment example. Indeed, it is those who insist that law can be simple who, without attempting analysis, merely dismiss my detailed and careful arguments as "lacking vision". Can you or can you not find any flaw in the precise arguments that I make in the post above containing the harassment example?

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Beathan
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Post by Beathan »

OK --

Ash, I will take up your challenge with regard to your hypothetical regarding harassment.

First, the problem with your strawman simple rule is not that it is simple, it is that in undefined. I think that it would be a perfectly workable system, without all the procedural and substantive complexity, if it had just one more sentence -- a sentence defining harassment, such as "for one person to trouble or vex another by repeated attacks" which is taken from my handy OED. As a judge, I could hear and decide cases based on this simple rule. Further, provided there is a general theory of punishment, I could impost sentence as well. (I also note that there should be a general, not a specific, theory and system of punishments -- even if worked out by common law experience -- for a justice system to work optimally.)

I don't necessarily agree with this definition as a policy matter -- but I don't necessarily agree, as a policy matter, with the complicated definition in your hypothetical either. Futher, I think that both rules provide for fair predictability and properly notify people what actions to avoid doing. The simple rule remains easier to read, and is preferable for that reason. Further, in its simplicity, it is more flexible, allowing it to adapt more readily to new methods of harrassment, or the use of new media to harass, than the more complicated rule would be. (The more complicated rule might require amendment to keep up with changing life.)

Further, I think that as a matter of interpretation and clarity, your hypothetical harassment statute is godawful. Like the simple rule -- it does not define harrassment in any approachable or discoverable way. Harassment is conduct that "a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other." Well, what if reasonable persons might disagree? Who is this reasonable person? Is he available for us to ask him if he thinks the conduct is harassment? Does he just happen to be the collective mind of a jury? If so, what if the jury is comprised of similarly unreasonable people -- is the conduct still hrrassment?

The later examples of what is included in harassment. These harassment just point to cases we ought to examine to determine whether they are cases of harassment. They act as red flags, not definitions. In the end, we have a vacuous definition at the heart of your allegedly workable statute.

Further, the rest of the statute does not get us any farther down the road of recognizing harassment when we see it. Rather, it all concerns the procedures and remedies available when we see it. This adds nothing to the substantive law. It just makes the substantive law more complicated to apply. (Perhaps, for trained legal specialists, clear rules for process and remedy also make the remedy easier to fashion -- but I think that we should have clear substantive law and fair remedies, not unclear substantive law with remedies that are foreordained by process.)

In other words, I see no benefit to the added complexity of your act. Further, the fundamental problem, that no one can really tell what harassment it by reading the statute, is as true of the complicated statute as of the simple one. Perhaps the outcome of the case is driven by the language of the statute -- like the apparatus in the game "Mousetrap" -- but, personally, if I want to catch a mouse, I would rather use a simpler trap -- and I want any mousecatching statute to tell me how to recognize a mouse in the first instance.

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Post by Ashcroft Burnham »

[quote="Beathan":2irup0mg]Ash, I will take up your challenge with regard to your hypothetical regarding harassment.

First, the problem with your strawman simple rule is not that it is simple, it is that in undefined.[/quote:2irup0mg]

It is simple [i:2irup0mg]because[/i:2irup0mg] it is undefined.

[quote:2irup0mg]I think that it would be a perfectly workable system, without all the procedural and substantive complexity, if it had just one more sentence -- a sentence defining harassment, such as "for one person to trouble or vex another by repeated attacks" which is taken from my handy OED. As a judge, I could hear and decide cases based on this simple rule. Further, provided there is a general theory of punishment, I could impost sentence as well. (I also note that there should be a general, not a specific, theory and system of punishments -- even if worked out by common law experience -- for a justice system to work optimally.)

I don't necessarily agree with this definition as a policy matter -- but I don't necessarily agree, as a policy matter, with the complicated definition in your hypothetical either. Futher, I think that both rules provide for fair predictability and properly notify people what actions to avoid doing. The simple rule remains easier to read, and is preferable for that reason. Further, in its simplicity, it is more flexible, allowing it to adapt more readily to new methods of harrassment, or the use of new media to harass, than the more complicated rule would be. (The more complicated rule might require amendment to keep up with changing life.)[/quote:2irup0mg]

First of all, the Protection from Harassment Act 1997 is not an example that I have invented: it is a real UK statute that I have used myself a number of times in court, both in civil and criminal cases, without any difficulty in understanding it. Secondly, upon what basis do you contend that the definition of a course of conduct amounting to harassment in the 1997 Act is any less adaptable than your dictionary definition?

[quote:2irup0mg]Further, I think that as a matter of interpretation and clarity, your hypothetical harassment statute is godawful.[/quote:2irup0mg]

Blame the Parliamentary draftspeople, not me.

[quote:2irup0mg]Like the simple rule -- it does not define harrassment in any approachable or discoverable way. Harassment is conduct that "a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other." Well, what if reasonable persons might disagree? Who is this reasonable person? Is he available for us to ask him if he thinks the conduct is harassment? Does he just happen to be the collective mind of a jury? If so, what if the jury is comprised of similarly unreasonable people -- is the conduct still hrrassment?[/quote:2irup0mg]

The "reasonable person" device can be confusing, but it is not a product of rule-complexity as much as legal tradition. It is shorthand for, "what is reasonable for a person to think", so, in the 1997 Act example, it means that harassment is "conduct that a person in possession of the same information reasonably would think is harassment". The main point of that is to add an additional liability condition: a person is not guilty of harassment unless he or she, at the time of undertaking the course of conduct in question, is aware of all the information knowledge of which would make it harassment. Even if you can say that the rule ought be drafted more clearly, the more clear version is no [i:2irup0mg]simpler[/i:2irup0mg] than the version from the real Act: it is just clearer. The rule still has an important function: it ensures that nobody can be found guilty of or liable for a course of conduct which unwittingly amounted to harassment, such as accidentally dialling the wrong number on a fax machine late at night, and repeatedly disturbing people asleep in bed.

That relates to the other point that I made in the post above: even if it was possible to have a simple rule that was readily understood, it would be very unlikely to do what one wanted it to do because it would not accurately fit that vastly complex pattern of behaviour that genuinely ought be prohibited. Complexity is a product not just of predictability, but of function (as anyone who has ever used computers will know).

[quote:2irup0mg]The later examples of what is included in harassment. These harassment just point to cases we ought to examine to determine whether they are cases of harassment. They act as red flags, not definitions. In the end, we have a vacuous definition at the heart of your allegedly workable statute.[/quote:2irup0mg]

"Allegedly workable"? It has been working in the UK for nine years.

[quote:2irup0mg]Further, the rest of the statute does not get us any farther down the road of recognizing harassment when we see it. Rather, it all concerns the procedures and remedies available when we see it. This adds nothing to the substantive law.[/quote:2irup0mg]

This is not a reasonable criticism of the 1997 Act, since it does not [i:2irup0mg]purport[/i:2irup0mg] to add anything to the substantive law. The 1997 Act creates three criminal offences and a form of civil liability. It gives the courts (including criminal courts) a new power to issue restraining orders, and punish people for breaching them. Those are all useful and important functions without which the scheme of the Act would not work in the UK system with separate civil and criminal courts, and two differnent levels of criminal courts, one for more serious crimes, and one for less serious crimes.

[quote:2irup0mg]It just makes the substantive law more complicated to apply.[/quote:2irup0mg]

In the English legal system, it would make the law far [i:2irup0mg]more[/i:2irup0mg] complicated if the Act did not specify whether it was creating civil or criminal liability, what the criminal penalties are, and what other orders that the court could make. It would also make the Act less effective.

[quote:2irup0mg](Perhaps, for trained legal specialists, clear rules for process and remedy also make the remedy easier to fashion -- but I think that we should have clear substantive law and fair remedies, not unclear substantive law with remedies that are foreordained by process.)[/quote:2irup0mg]

Why not clear substantive law with clear, more easily-fashionable remedies?

[quote:2irup0mg]In other words, I see no benefit to the added complexity of your act. Further, the fundamental problem, that no one can really tell what harassment it by reading the statute, is as true of the complicated statute as of the simple one.[/quote:2irup0mg]

As explained above, it defines several important features of harassment (including the [i:2irup0mg]mens rea[/i:2irup0mg] for the criminal offences) that are not present in your dictionary-only definition that have an important function in preventing the concept of harassment from being so broad as to be arbitrary and oppressive.

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Aliasi Stonebender
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Post by Aliasi Stonebender »

[quote="Ashcroft Burnham":2c034jyl][quote="Aliasi Stonebender":2c034jyl]If you truly believe this, then you quite simply miss the point of the whole project.[/quote:2c034jyl]

Of course I believe it: I always have done, and have always made that abundently clear. Why do you think that the point of this project is just to play around?
[/quote:2c034jyl]

We no more play around than the researchers at Xerox's Palo Alto Research Center were "just playing around"; you may have heard of them. It has been the case since the very beginning that experimentation and seeking novel forms of self-government in a virtual world are at the very core of Neualtenburg-that-was and CDS-that-is.

[quote:2c034jyl]
Aliasi, nobody has even [i:2c034jyl]attempted[/i:2c034jyl] to address the most recent post above in which I explain the point about the inherent nature of complexity with reference to the hypothetical harassment example. Indeed, it is those who insist that law can be simple who, without attempting analysis, merely dismiss my detailed and careful arguments as "lacking vision". Can you or can you not find any flaw in the precise arguments that I make in the post above containing the harassment example?[/quote:2c034jyl]

Yes. It is a poorly crafted example; simple does not mean 'stupid'. There is certainly a middle ground between the two examples that provides sufficent definition of harassment without the wherefores and thereases.

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Ashcroft Burnham
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Post by Ashcroft Burnham »

[quote="Aliasi Stonebender":2d4s76pg]We no more play around than the researchers at Xerox's Palo Alto Research Center were "just playing around"; you may have heard of them. It has been the case since the very beginning that experimentation and seeking novel forms of self-government in a virtual world are at the very core of Neualtenburg-that-was and CDS-that-is.[/quote:2d4s76pg]

There is a great difference between doing something for real, and learning as one goes along, and the whole thing being set up purely as an experiment. Why do you think that we are the latter rather than the former?

[quote:2d4s76pg]Yes. It is a poorly crafted example; simple does not mean 'stupid'. There is certainly a middle ground between the two examples that provides sufficent definition of harassment without the wherefores and thereases.[/quote:2d4s76pg]

The example that I gave was just that: an example. It is an example of the abstract point that I made elsewhere in the post. If it is a poor example of the point, then there is still a good point of which it is a poor example to which nobody has even attempted to reply. But see above on why it is not such a poor example as you and Beathan seem to think.

Ashcroft Burnham

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