Who moderates the Forums?

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Patroklus Murakami
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Who moderates the Forums?

Post by Patroklus Murakami »

In another [url=http://forums.neufreistadt.info/viewtop ... 5:39hztxmp]thread[/url:39hztxmp] Ash has said that "the Scientific Council no longer can appear forum moderation appeals, and that they should be heard by Courts of Common Jurisdiction". I challenged this interpetation of the constitutional amendments that were part of the Judiciary Act. It has always been my understanding, in line with the Forum Moderation guidelines, that the SC acts as forum moderators in line with its service role, as outlined in the Constitution.

Ash has referred me to one of his [url=http://forums.neufreistadt.info/viewtop ... m:39hztxmp]original posts[/url:39hztxmp] on the development of our legal system (you need to look under "Originating process - classification" in Part IV), and to the relevant sections of the constitution which lay out the powers of the judiciary, particularly that "Courts of Common Jurisdiction, and only Courts of Common Jurisdiction, shall have the power when giving judgment on a disputed matter between two or more parties ... to make binding determinations of the rights, duties, powers, privileges, immunities, liabilities and disabilities of any or all such parties according to the law of the Confederation of Democratic Simulators". I am starting a new thread here because the original one was about freedom of speech on the forums and this is a substantially different topic.

The reference back to one of Ash's original posts is revealing. Tucked away, within thousands of words of exposition over several posts is one little line "Notice of Moderatorial Appeal for the commencement of appeals against moderatorial decisions in the forum" in a section which describes the types of 'originating process' that Ash was proposing in one of his first posts on the need for a legal system. This is not sufficiently clear notification that appeals over moderation would be taken away from the SC. Maybe I'm the only one who missed it (I'd be interested to hear others' views on this) but Ash's interpretation of who gets to hear appeals was news to me and I'm pretty sure that it was news to most of the SC and to the RA.

This leaves me wondering what other 'Christmas Presents' or 'Easter Eggs' are hiding in the text of the JA, just waiting for Ash to come forth and say 'Well, of course it says what I say it does. I referred to this obliquely in a ten thousand word post six months ago and the text of the JA, as passed, supports my interpretation.' It pains me to say this, especially as I've been a firm supporter of the need for a judiciary and have defended the JA against unjustified criticism, but I'm having second thoughts now.

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Re: Who moderates the Forums?

Post by Ashcroft Burnham »

[quote="Patroklus Murakami":1da6trfp]In another [url=http://forums.neufreistadt.info/viewtop ... 5:1da6trfp]thread[/url:1da6trfp] Ash has said that "the Scientific Council no longer can appear forum moderation appeals, and that they should be heard by Courts of Common Jurisdiction". I challenged this interpetation of the constitutional amendments that were part of the Judiciary Act. It has always been my understanding, in line with the Forum Moderation guidelines, that the SC acts as forum moderators in line with its service role, as outlined in the Constitution.

Ash has referred me to one of his [url=http://forums.neufreistadt.info/viewtop ... m:1da6trfp]original posts[/url:1da6trfp] on the development of our legal system (you need to look under "Originating process - classification" in Part IV), and to the relevant sections of the constitution which lay out the powers of the judiciary, particularly that "Courts of Common Jurisdiction, and only Courts of Common Jurisdiction, shall have the power when giving judgment on a disputed matter between two or more parties ... to make binding determinations of the rights, duties, powers, privileges, immunities, liabilities and disabilities of any or all such parties according to the law of the Confederation of Democratic Simulators". I am starting a new thread here because the original one was about freedom of speech on the forums and this is a substantially different topic.

The reference back to one of Ash's original posts is revealing. Tucked away, within thousands of words of exposition over several posts is one little line "Notice of Moderatorial Appeal for the commencement of appeals against moderatorial decisions in the forum" in a section which describes the types of 'originating process' that Ash was proposing in one of his first posts on the need for a legal system. This is not sufficiently clear notification that appeals over moderation would be taken away from the SC. Maybe I'm the only one who missed it (I'd be interested to hear others' views on this) but Ash's interpretation of who gets to hear appeals was news to me and I'm pretty sure that it was news to most of the SC and to the RA.

This leaves me wondering what other 'Christmas Presents' or 'Easter Eggs' are hiding in the text of the JA, just waiting for Ash to come forth and say 'Well, of course it says what I say it does. I referred to this obliquely in a ten thousand word post six months ago and the text of the JA, as passed, supports my interpretation.' It pains me to say this, especially as I've been a firm supporter of the need for a judiciary and have defended the JA against unjustified criticism, but I'm having second thoughts now.[/quote:1da6trfp]

Well, hang on a minute: there was nothing "tucked away" about my posts on the original thread: it was [i:1da6trfp]all[/i:1da6trfp] there for everyone to read. Why do you think that the issue of forum moderation appeals is something that should have been specially highlighted, or given extra-special prominence, above and beyond all of the other equally important information about legal procedure and everything else? I never saw it as anything more or less important than any of the multitude of other aspects of the legal system that I was proposing, and treated it accordingly. It is hardly fair now to say that I was trying to hide it by giving it equal prominence with many other equally important things.

In any event, it really ought be clear from the wording of the constitution itself what powers that the Courts of Common Jurisdiction have (and, as far as I can see, it is abundantly clear): the part that I have cited, and that you have reproduced above, is one of the most important parts of Article VII, and is of definitional importance to Courts of Common Jurisdiction. You will also notice that the forum moderation guidelines are not included amongst the enumerated sources of law (although legislation could, of course, provide for forum moderation rules, and even appeals, although it could not oust the jurisdiction of the Courts of Common Jurisdiction to hear applications for judicial review of those appeals without a change in the constitution). It does not exactly take mental gymnastics to deduce the consequences of that. One simply has to ask: (1) is there a disputed matter between two or more people; (2) does a binding determinations of the rights, duties, powers, privileges, immunities, liabilities and disabilities of any or all such people according to the law of the Confederation of Democratic Simulators need to be made; and (3) is the matter one of those matters for which the constitution provides that the Court of Scientific Council has the power to make decisions? If the answer to the first two questions is yes, but the answer to the third is no, the matter must be decided by a Court of Common Jurisdiction; if the answer to all three questions is yes, the matter must be decided by the Court of Scientific Council.

Applying that to forum moderation, since, according to a decision of the Scientific Council (whose status as a source of law is preserved by Article VII of the constitution), the moderation of the forums falls under the jurisdiction of what is now CDS law, a decision about whether or not to allow an appeal of a forum moderator's decision is indeed a decision about the rights, duties, powers, privileges, immunities, liabilities and disabilities of any or all such parties according to the law of the Confederation of Democratic Simulators. There is no reference in the text of the constitution to the Court of Scientific Council having the power to hear such appeals. If a binding decision is needed, it therefore follows that a Court of Common Jurisdiction is the place to hear it. As I have written elsewhere, there is nothing, however, to stop the Scientific Council, who are responsible for the day-to-day moderation of the forums (which, incidentally, makes the answer to the question that forms the topic of this thread, "The Scientific Council", which is entirely consistent with its service role), holding an informal review of its own decision; if all parties are satisfied with that, then that can be the end of it, but nothing can stop one of the parties taking out a case in a Court of Common Jurisdiction seeking an order that a moderatorial decision be reversed.

Returning to the point about sufficiently clear notice, what exactly do you think would constitute sufficiently clear notice of the inevitable consequences of one of the clear provisions of the Act? Given that what is now the CDS held itself out as nothing less than a virtual nation, with a legislature and executive and a written constitution, and called its subscribers "citizens", I think that I was, and still am, entirely entitled to act on the basis that it should be treated as a nation, and that its legislators can be trusted to understand the inevitable implications of the clear and precise wording of any given piece of legislation, and that if one proposes a piece of legislation, one does not have to flag in red text bold and twenty-six point every last conceivable consequence that might alter the status quo, since whether such consequences need to be considered is, ultimately, a matter for the legislature to ruminate on.

As to what other "surprises" that you might find in our constitution, that rather depends on what your views are on what the position is now: since I cannot predict what, if any other, mistakes that you have made about the interpretation of the constitution, I cannot (nor can anyone else) tell you in what ways, if at all, your understanding of the constitution differs from what deductively follows from its express wording.

Finally, I am somewhat at a loss as to why you see the issue of appeals of forum moderation as quite so important; is it such a terrible thing that the body that hears appeals on forum moderation is an entirely independent body to that which conducts the day-to-day running of forum moderation? Is that not progress in the field of justice?

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Post by Publius Crabgrass »

Notably, the [url=http://www.aliasi.us/nburgwiki/tiki-ind ... t:u9te9pjl]Judiciary Act[/url:u9te9pjl] did not amend Article III, Section 1 of the Constitution which gives the SC the service role to "moderate user forums and events", so the answer to the topic question is that the SC moderates the forum. Nor did the Judiciary Act tell the SC how to fulfill its role as forum moderator - it would certainly be proper for the SC to delegate its work to one or more members, subject to review by the entire body, which is exactly what it did by adopting the [url=http://forums.neufreistadt.info/viewtop ... 1:u9te9pjl]Forum Moderation Guidelines[/url:u9te9pjl].

The US lawyers among us will recognize a similar process occurs in the US Courts of Appeals. Those courts hear appeals in panels of three judges, but further appeal may be made to the entire court in what is called [i:u9te9pjl]en banc[/i:u9te9pjl] review. Such [i:u9te9pjl]en banc[/i:u9te9pjl] appeals are rarely heard, but they do happen in the most significant cases. In the case of forum moderation, it seems that the SC has chosen to let its individual members act as moderators, subject to [i:u9te9pjl]en banc[/i:u9te9pjl] review by the entire SC.

The interesting part is what happens next, after the full SC reviews one SC member's action in imposing a sanction. I think Ashcroft is correct, that the Judiciary Act does give the Court of Common Jurisdiction the authority to hear appeals from decisions of the forum moderators. Of course, we now have only one judge, who happens to have been warned in the exact same individual moderator decision that Beathan seeks to have reviewed by the full SC. So if Beathan is disappointed by a decision of the full SC, he could appeal to the Court of Common Jurisdiction. Ashcroft would, I trust, recuse himself from hearing such an appeal, and on the same grounds might consider refraining in the future for calling upon the moderators to review postings.

If we had more than one judge, the Chief Judge could recuse himself from hearing a case where he was personally involved. But the judicial qualification procedures ensure (at least for now) that any judges chosen to replace the Chief would have been personally albeit anonymously approved by the Chief as "qualified". Ash has also proposed another way around this dilemmna, which is to let the SC appoint "special commisisoners" to handle matters when we don't have a sufficient number of permanently appointed judges.

If Ash were not personally involved in this imbroglio, he would be empowered to make a decision, which could then be further appealed [i:u9te9pjl]back to the SC[/i:u9te9pjl], but this time acting as the "Court of the Scientific Council" which hears final appeals on constitutional questions. Beathan's appeal undoubtedly raises a constitutional question, as it is about his claim that the forum rules bump up against our constitutional guarantee to respect the Universal Declaration of Human Rights. So the appeal route would end up in full circle back to the SC. Gwyneth needs to make another diagram! :D

Pat, I have little doubt there are many other such condunrums wrapped inside the riddle that is the mystery of the Judiciary Act. Time will help us find them.

Last edited by Publius Crabgrass on Fri Dec 29, 2006 8:51 am, edited 1 time in total.
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Re: Who moderates the Forums?

Post by Gxeremio Dimsum »

[quote="Ashcroft Burnham":1k4r7ajv]In any event, it really ought be clear from the wording of the constitution itself what powers that the Courts of Common Jurisdiction have[/quote:1k4r7ajv]

You're right; it OUGHT to be clear, but it obviously isn't. Now, you can blame the majority who are confused by it, or the person who wrote it. I'll take a wild guess which side you feel is to blame.

As I have said before, when the JA was being passed I kind of trusted the RA to look it over carefully and use wisdom in either cutting or keeping various parts. However, each time I have wondered if the JA gave the judiciary (read: Ashcroft) some extraordinary and unexpected power, you have said that in fact the Judiciary has that authority. This has raised alarms, as you will understand, since I can't recall one time in these forum discussions that you have actually cited a limit of the authority or jurisdiction of the judiciary. Your recent 3-step plan for deciding whether it's your jurisdiction or not encompasses just about every dispute, in SL or RL, on earth and in space, forever and ever, amen.

[quote:1k4r7ajv]and that its legislators can be trusted to understand the inevitable implications of the clear and precise wording of any given piece of legislation, and that if one proposes a piece of legislation, one does not have to flag in red text bold and twenty-six point every last conceivable consequence that might alter the status quo, since whether such consequences need to be considered is, ultimately, a matter for the legislature to ruminate on. [/quote:1k4r7ajv]

I would like to flag this quote for use by the Simplicity Party during the next election.

[quote:1k4r7ajv]As to what other "surprises" that you might find in our constitution, that rather depends on what your views are on what the position is now: since I cannot predict what, if any other, mistakes that you have made about the interpretation of the constitution, I cannot (nor can anyone else) tell you in what ways, if at all, your understanding of the constitution differs from what deductively follows from its express wording.[/quote:1k4r7ajv]

So when a tyrant takes power through the appropriate channels, who bears most of the blame? The tyrant, or the Reichstag?

[quote:1k4r7ajv]Finally, I am somewhat at a loss as to why you see the issue of appeals of forum moderation as quite so important; is it such a terrible thing that the body that hears appeals on forum moderation is an entirely independent body to that which conducts the day-to-day running of forum moderation? Is that not progress in the field of justice?[/quote:1k4r7ajv]

If only you WERE at a loss. :)

The body hearing appeals is not an "entirely independent body," whether it be your court or the SC. The CDS, like it or not, is a small community. Nothing is entirely independent of anything. I might add also that no country has ultimate separation of powers, as you conceive them. And I also add that the section on the Judiciary is the ONLY part of the Constitution that I can see where the term "this branch, and only this branch has such and such powers." And again, I remind readers that you wrote it originally.

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Post by Ashcroft Burnham »

[quote="Publius Crabgrass":3ej9eku0]Notably, the [url=http://www.aliasi.us/nburgwiki/tiki-ind ... t:3ej9eku0]Judiciary Act[/url:3ej9eku0] did not amend Article III, Section 1 of the Constitution which gives the SC the service role to "moderate user forums and events", so the answer to the topic question is that the SC moderates the forum. Nor did the Judiciary Act tell the SC how to fulfill its role as forum moderator - it would certainly be proper for the SC to delegate its work to one or more members, subject to review by the entire body, which is exactly what it did by adopting the [url=http://forums.neufreistadt.info/viewtop ... 1:3ej9eku0]Forum Moderation Guidelines[/url:3ej9eku0].

The US lawyers among us will recognize a similar process occurs in the US Courts of Appeals. Those courts hear appeals in panels of three judges, but further appeal may be made to the entire court in what is called [i:3ej9eku0]en banc[/i:3ej9eku0] review. Such [i:3ej9eku0]en banc[/i:3ej9eku0] appeals are rarely heard, but they do happen in the most significant cases. In the case of forum moderation, it seems that the SC has chosen to let its individual members act as moderators, subject to [i:3ej9eku0]en banc[/i:3ej9eku0] review by the entire SC.

The interesting part is what happens next, after the full SC reviews one SC member's action in imposing a sanction. I think Ashcroft is correct, that the Judiciary Act does give the Court of Common Jurisdiction the authority to hear appeals from decisions of the forum moderators. Of course, we now have only one judge, who happens to have been warned in the exact same individual moderator decision that Beathan seeks to have reviewed by the full SC. So if Beathan is disappointed by a decision of the full SC, he could appeal to the Court of Common Jurisdiction. Ashcroft would, I trust, recuse himself from hearing such an appeal, and on the same grounds might consider refraining in the future for calling upon the moderators to review postings.

If we had more than one judge, the Chief Judge could recuse himself from hearing a case where he was personally involved. But the judicial qualification procedures ensure (at least for now) that any judges chosen to replace the Chief would have been personally albeit anonymously approved by the Chief as "qualified". Ash has also proposed another way around this dilemmna, which is to let the SC appoint "special commisisoners" to handle matters when we don't have a sufficient number of permanently appointed judges.

If Ash were not personally involved in this imbroglio, he would be empowered to make a decision, which could then be further appealed [i:3ej9eku0]back to the SC[/i:3ej9eku0], but this time acting as the "Court of the Scientific Council" which hears final appeals on constitutional questions. Beathan's appeal undoubtedly raises a constitutional question, as it is about his claim that the forum rules bump up against our constitutional guarantee to respect the Universal Declaration of Human Rights. So the appeal route would end up in full circle back to the SC. Gwyneth needs to make another diagram! :D [/quote:3ej9eku0]

For the most part, this is a lucid explanation of the position. There are, however, one or two corrections that need to be made. Firstly, in respect of judges; in this particular case, I shall indeed (if the matter is brought before a court) recuse myself from hearing the case, since I posted on the same thread. There is no reason that judges who were qualified by me should also recuse themselves, since they were not involved on the thread in question. If those qualified judges are not appointed in time for any hearing in the matter, then the constitution provides:

[quote:3ej9eku0]7. A person who is a party to any proceedings before any Court of Common Jurisdiction shall not preside over those proceedings as judge or juror, or over any part thereof, or deliver any judgment or verdict in respect of those proceedings.

8. If no Judge of Common Jurisdiction is available to preside over any proceedings in any Court of Common Jurisdiction, either by virtue of Section 7 above, or because there is no Judge of Common Jurisdiction at all who holds office at a time at which a Judge of Common Jurisdiction is required to preside over such proceedings, the Dean of the Scientific Council shall appoint a member of the Scientific Council to act as judge in those proceedings, and that person shall, for the purposes only of the particular proceedings for which he or she is appointed, have all and only the powers in respect of those proceedings as a Judge of Common Jurisdiction,[/quote:3ej9eku0]

which would, since I would interpret section 7 broadly and consider myself to be a party to the proceedings for the purposes of that section, enable the Dean of the Scientific Council to appoint a member of the Scientific Council to act as a special judge to hear the case.

Further, something is not appealable to the Court of Scientific Council from a Court of Common Jurisdiction merely because it involves a question relating to the UDHR: the constitution provides:

[quote:3ej9eku0]1. The Scientific Council, when sitting as a court, may hear and determine an appeal from any superior Court of Common Jurisdiction (or any inferior Court of Common Jurisdiction if no superior Court of Common Jurisdiction will entertain an appeal on the matter), and either uphold or overturn the decision (or any part thereof) from which the appeal is made, but only on the grounds both that the Court of Common Jurisdiction from which the appeal is sought: –

(a) acted in the proceedings out of which the appeal arises [b:3ej9eku0]outside its jurisdiction as conferred by the text of this Constitution[/b:3ej9eku0]; and

(b) that, by so doing, whether wholly or in part, incorrectly determined any issue in dispute between any parties to those proceedings (including any question of law necessary to resolve such a dispute).[/quote:3ej9eku0]

(Emphasis mine). The text of the constitution does not provide that the Courts of Common Jurisdiction shall take the Universal Declaration as a source of law, nor is the Universal Declaration itself part of the text of the constitution. The only reference to it is here:

[quote:3ej9eku0]The Philosophic branch may veto or rewrite and resubmit a bill or constitutional amendment if it is in violation of any of the founding documents.[/quote:3ej9eku0]

Although it is not expressed in the text of the constitution, it seems that the Universal Declaration is taken to be among the founding documents. The Council therefore is expressly given the power to veto legislation for non-compliance with a "founding document" other than the constitution itself, whereas, in considering appeals from Courts of Common Jurisdiction, it is restricted to cases where it can be satisfied that the Court of Common Jurisdiction has acted outside its jurisdiction as conferred by the text specifically of the [i:3ej9eku0]constitution[/i:3ej9eku0]. Since the text of the constitution does not enjoin Courts of Common Jurisdiction to treat the Universal Declaration as a source of law (which would be very unwise, given how vague that it is, as I pointed out at the time), the Court of Scientific Council cannot say, "We think that the Universal Declaration means that the Court of Common Jurisdiction should have done [i:3ej9eku0]this[/i:3ej9eku0], and therefore we allow the appeal". There is nothing specifically constitutional about the Universal Declaration: it is an extraconstitutional document (expressly recognised in the constitution as such), and there is no reason why rights ought not be built up through the common law developed by Courts of Common Jurisdiction, rather than based on the Scientific Council's interpretation of the vagueness of the Universal Declaration.

Even that argument notwithstanding, the decision could only be appealed to the Court of Scientific Council if the way in which the Court of Common Jurisdiction from which the appeal was made acted outside its jurisdiction as conferred by the text of the constitution in such a way as altered the outcome of the case: so, if the Court of Common Jurisdiction, for example, declined to make any declaration on the Universal Declaration issues because it did not consider them to resolve any practical dispute, then that would not be the kind of thing that one could appeal to the Scientific Council.

In any event, to surmise, as Publius points out, although I had imagined when drafting the Judiciary Act all moderatorial appeals being dealt with at first instance by the Courts of Common Jurisdiction, there is certainly some force in saying that the Scientific Council ought be invited to review the decision of one of its individual moderators before a case is presented to a Court of Common Jurisdiction (and, indeed, for a Court of Common Jurisdiction - possibly - to refuse to hear a case in which that has not happened because the parties have not exhausted their remedies). Nonetheless, the jurisdiction of the Courts of Common Jurisdiction as I have described it remains.

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Re: Who moderates the Forums?

Post by Ashcroft Burnham »

[quote="Gxeremio Dimsum":8tqpf647]You're right; it OUGHT to be clear, but it obviously isn't. Now, you can blame the majority who are confused by it, or the person who wrote it. I'll take a wild guess which side you feel is to blame. [/quote:8tqpf647]

Why do you think that there is anything in the least unclear about the sections that I have quoted? Nobody has suggested that they are unclear, and there is certainly no evidence that a majority of our 65-strong population finds them unclear. What seems to have happened is that one person did not make a deduction of one of the logicically necessary implications of the clear text, and assumed that the status quo was preserved, when, in fact, it was altered.

[quote:8tqpf647]As I have said before, when the JA was being passed I kind of trusted the RA to look it over carefully and use wisdom in either cutting or keeping various parts.[/quote:8tqpf647]

So did I.

[quote:8tqpf647]However, each time I have wondered if the JA gave the judiciary (read: Ashcroft) some extraordinary and unexpected power, you have said that in fact the Judiciary has that authority.[/quote:8tqpf647]

Why do you think that the power discussed above is "extraordinary or unexpected", given the clear wording of the constitution?

[quote:8tqpf647]This has raised alarms, as you will understand, since I can't recall one time in these forum discussions that you have actually cited a limit of the authority or jurisdiction of the judiciary.[/quote:8tqpf647]

Actually, I have mentioned many, many times that the judiciary is bound to follow duly ratified acts of the Representative Assembly and, of course, the constitution, which are the most important restrictions on its power. As to the jurisdiction, the constitution expressly provides that only disputes involving residents of SecondLife are justiciable, so, again, your point is not well-taken.

[quote:8tqpf647]I would like to flag this quote for use by the Simplicity Party during the next election.[/quote:8tqpf647]

Use to what end?

[quote:8tqpf647]So when a tyrant takes power through the appropriate channels, who bears most of the blame? The tyrant, or the Reichstag?[/quote:8tqpf647]

Are you accusing me of being a tyrant? If so, upon what precise grounds? That is an extremely serious matter indeed.

[quote:8tqpf647]If only you WERE at a loss. :)[/quote:8tqpf647]

Are you accusing me of dishonesty?

[quote:8tqpf647]The body hearing appeals is not an "entirely independent body," whether it be your court or the SC. The CDS, like it or not, is a small community. Nothing is entirely independent of anything. I might add also that no country has ultimate separation of powers, as you conceive them.[/quote:8tqpf647]

What does this have to do with anything? Do you or do you not accept that the Courts of Common Jurisdiction are significantly more independent of the Scientific Council than the Scientific Council is of itself?

[quote:8tqpf647]And I also add that the section on the Judiciary is the ONLY part of the Constitution that I can see where the term "this branch, and only this branch has such and such powers." And again, I remind readers that you wrote it originally.[/quote:8tqpf647]

Why? What does that have to do with anything? The reason that it is written like that, as I have explained repeatedly before, and you have repeatedly ignored, is to preserve the separation of the powers. I did not write the rest of the constitution, relating to the legislature, and so forth: had I have done, I should have written it in similar terms ("The Representative Assembly, and only the Representative Assembly, shall have the power to pass legislation...", or, perhaps, better, "Bodies created by this constitution shall have only those powers expressly reserved to them by the text of this constitution").

[quote:8tqpf647]Justice is when people get what they deserve, isn't it?[/quote:8tqpf647]

Justice is the principle that no person shall benefit from her or his own wrongdoing, nor shall any person suffer as a result of another's wrongdoing. What exactly was the context of the above remark intended to be, however?

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Post by Oni Jiutai »

I'm not sure that this is entirely on point, but I offer it as an observation nonetheless.

It seems to me that there's a significant disconnect between different people's ideas of just what a court system should be there to do - and an even greater disconnect between different ideas of what the court system actually can does.

For example, it seems natural to me for a court to make decisions on appeal from forum moderation. Resolving disputes, after all, is what court systems do. If people really don't want a court system that does that kind of thing, they probably don't want a court system that decides on contracts, torts, or much of anything else.

A quite separate issue is how much power the court has to decide on things while resolving the disputes. And the answer to that seems to me, where the RA feels strongly enough to say anything, seems to me not much. The court interprets and enforces the law - but the law is created by the RA.

If, for example, the RA says "Freedom of speech must be absolute - anyone may say anything in the forums" (which, as a bit of a fanatic on free speech, is not a view I'm entirely out of sympathy with) then those are the rules that the court applies.

If the court - in the form of one of its judges - doesn't follow that line they get impeached and tossed out of office.

So, to me, concerns like:

[quote:3vgi1vgc]So when a tyrant takes power through the appropriate channels, who bears most of the blame? The tyrant, or the Reichstag? [/quote:3vgi1vgc]

Which, after all, might seem to suggest the judiciary is capable of organising a take over of Europe, followed by a winter campaign in Russia and a genocide - or at least a take over of the CDS, seem to come out of left field a bit.

I'm about to take off for the New Year, but I think "How much power does the judiciary actually have over things within its jurisdiction? And is that enough to make it a serious risk to liberal democracy in the CDS? are at least as important as "How wide is its jurisdiction?"
[/quote]

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Post by Publius Crabgrass »

Ashcroft made a good point about the Dean's power to appoint someone to act when no judge is available due to recusal or other reasons. And thanks for rating my post as "lucid", a high compliment indeed. As to the other observations about the constitution, I do not quite agree.

Ashcroft wrote:
[quote="Ashcroft Burnham":2fs232ga]The text of the constitution does not provide that the Courts of Common Jurisdiction shall take the Universal Declaration as a source of law, nor is the Universal Declaration itself part of the text of the constitution. The only reference to it is here:

[quote:2fs232ga]The Philosophic branch may veto or rewrite and resubmit a bill or constitutional amendment if it is in violation of any of the founding documents.[/quote:2fs232ga]
[/quote:2fs232ga]

Not quite. The UDHR is mentioned in the Constitution's Preamble:

[quote="CDS Constitution":2fs232ga]All branches of the government are bound to serve the public before themselves and to uphold the Universal Declaration Of Human Rights, Founding Philosophy, Constitution, local laws, the SL ToS, and Community Standards without exception. [/quote:2fs232ga]

I am sure that someone will say that the Preamble is merely introductory and not part of the [i:2fs232ga]text[/i:2fs232ga] of the Constitution. This same argument is also raised with regard to the Preamble of the United States Constitution:

[quote="Findlaw":2fs232ga]Although the preamble is not a source of power for any department of the Federal Government, the Supreme Court has often referred to it as evidence of the origin, scope, and purpose of the Constitution. ''Its true office,'' wrote Joseph Story in his COMMENTARIES, ''is to expound the nature and extent and application of the powers actually conferred by the Constitution, and not substantively to create them. For example, the preamble declares one object to be, 'to provide for the common defense.' No one can doubt that this does not enlarge the powers of Congress to pass any measures which they deem useful for the common defence. But suppose the terms of a given power admit of two constructions, the one more restrictive, the other more liberal, and each of them is consistent with the words, but is, and ought to be, governed by the intent of the power; if one could promote and the other defeat the common defence, ought not the former, upon the soundest principles of interpretation, to be adopted?''[/quote:2fs232ga]

http://caselaw.lp.findlaw.com/data/cons ... /preamble/ (citations omitted). Similarly, our Preamble acts to explain the context of the constitution, including the judicial powers, which must be exercised in accord with the command to "uphold the Universal Declaration Of Human Rights, Founding Philosophy, Constitution, local laws, the SL ToS, and Community Standards without exception."

Ashcroft also wrote:

[quote="Ashcroft":2fs232ga]Although it is not expressed in the text of the constitution, it seems that the Universal Declaration is taken to be among the founding documents. The Council therefore is expressly given the power to veto legislation for non-compliance with a "founding document" other than the constitution itself, whereas, in considering appeals from Courts of Common Jurisdiction, it is restricted to cases where it can be satisfied that the Court of Common Jurisdiction has acted outside its jurisdiction as conferred by the text specifically of the [i:2fs232ga]constitution[/i:2fs232ga]. Since the text of the constitution does not enjoin Courts of Common Jurisdiction to treat the Universal Declaration as a source of law (which would be very unwise, given how vague that it is, as I pointed out at the time), the Court of Scientific Council cannot say, "We think that the Universal Declaration means that the Court of Common Jurisdiction should have done [i:2fs232ga]this[/i:2fs232ga], and therefore we allow the appeal". There is nothing specifically constitutional about the Universal Declaration: it is an extraconstitutional document (expressly recognised in the constitution as such), and there is no reason why rights ought not be built up through the common law developed by Courts of Common Jurisdiction, rather than based on the Scientific Council's interpretation of the vagueness of the Universal Declaration.

Even that argument notwithstanding, the decision could only be appealed to the Court of Scientific Council if the way in which the Court of Common Jurisdiction from which the appeal was made acted outside its jurisdiction as conferred by the text of the constitution in such a way as altered the outcome of the case: so, if the Court of Common Jurisdiction, for example, declined to make any declaration on the Universal Declaration issues because it did not consider them to resolve any practical dispute, then that would not be the kind of thing that one could appeal to the Scientific Council. [/quote:2fs232ga]
Again, I dissent. Since "all branches" are bound to "uphold the Universal Declaration of Human Rights", a decision of the Judiciary which fails to do so may be appealed to the Court of the Scientific Council as raising a constitutional question, the judiciary having "acted in the proceedings out of which the appeal arises outside its jurisdiction as conferred by the text of this Constitution".

Do we need to adopt a CDS Bill of Rights?

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Post by Ashcroft Burnham »

[quote="Publius Crabgrass":1dnnsunm]Not quite. The UDHR is mentioned in the Constitution's Preamble:

[quote="CDS Constitution":1dnnsunm]All branches of the government are bound to serve the public before themselves and to uphold the Universal Declaration Of Human Rights, Founding Philosophy, Constitution, local laws, the SL ToS, and Community Standards without exception. [/quote:1dnnsunm]

I am sure that someone will say that the Preamble is merely introductory and not part of the [i:1dnnsunm]text[/i:1dnnsunm] of the Constitution. This same argument is also raised with regard to the Preamble of the United States Constitution:

[quote="Findlaw":1dnnsunm]Although the preamble is not a source of power for any department of the Federal Government, the Supreme Court has often referred to it as evidence of the origin, scope, and purpose of the Constitution. ''Its true office,'' wrote Joseph Story in his COMMENTARIES, ''is to expound the nature and extent and application of the powers actually conferred by the Constitution, and not substantively to create them. For example, the preamble declares one object to be, 'to provide for the common defense.' No one can doubt that this does not enlarge the powers of Congress to pass any measures which they deem useful for the common defence. But suppose the terms of a given power admit of two constructions, the one more restrictive, the other more liberal, and each of them is consistent with the words, but is, and ought to be, governed by the intent of the power; if one could promote and the other defeat the common defence, ought not the former, upon the soundest principles of interpretation, to be adopted?''[/quote:1dnnsunm]

http://caselaw.lp.findlaw.com/data/cons ... /preamble/ (citations omitted). Similarly, our Preamble acts to explain the context of the constitution, including the judicial powers, which must be exercised in accord with the command to "uphold the Universal Declaration Of Human Rights, Founding Philosophy, Constitution, local laws, the SL ToS, and Community Standards without exception."[/quote:1dnnsunm]

Even if that were so, that does not entail that the Court of Scientific Council could entertain an appeal on a question of [i:1dnnsunm]interpretation[/i:1dnnsunm] of the UDHR, since the text of the constitution does not compel any given interpretation. However, a body being bound to uphold the constitution entails it being bound to follow the heirarchy of sources of law expressly enumerated in the constitution, of which the UDHR is not one.

[quote:1dnnsunm]Again, I dissent. Since "all branches" are bound to "uphold the Universal Declaration of Human Rights", a decision of the Judiciary which fails to do so may be appealed to the Court of the Scientific Council as raising a constitutional question, the judiciary having "acted in the proceedings out of which the appeal arises outside its jurisdiction as conferred by the text of this Constitution".[/quote:1dnnsunm]

See above: the [i:1dnnsunm]text[/i:1dnnsunm] of the constitution does not compel any given interpretation of the UHDR, and, in any event, the court's jurisdiction is expressly set out in the section enumerating the sources of law.

[quote:1dnnsunm]Do we need to adopt a CDS Bill of Rights?[/quote:1dnnsunm]

Yes, we probably do: this would be far more effective than relying on the vague and contradictory text of the UHDR. We could make it far more specific and precise, and avoid the difficulties of interpretation that such a vague text gives (and avoid also non-legislative bodies, such as the Scientific Council, thereby being granted what are effectively policy-making powers by determining the correct balance between the competing rights). However, there is virtually no prospect of reaching any sort of agreement as to what should be in such a bill of rights, and, if one were ever approved, the danger of it being almost immediately overturned when some people who disagreed with it all along got together with some new people who disagree with it and start purposely generating controversy on the forums, would be so great that only a very foolish person would ever put any non-trivial amount of effort into writing it.

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Post by Publius Crabgrass »

I read the above to indicate that your position is that the Judiciary, as well as the Scientific Council, are free to ignore the UDHR despite the Preamble's command that you must "uphold" it.

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Post by Ashcroft Burnham »

[quote="Publius Crabgrass":25onkp7c]I read the above to indicate that your position is that the Judiciary, as well as the Scientific Council, are free to ignore the UDHR despite the Preamble's command that you must "uphold" it.[/quote:25onkp7c]

Please address my arguments analytically rather than merely making inadequate and inaccurate summaries of them.

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Post by Publius Crabgrass »

[quote="Ashcroft Burnham":37g33bb1][quote="Publius Crabgrass":37g33bb1]I read the above to indicate that your position is that the Judiciary, as well as the Scientific Council, are free to ignore the UDHR despite the Preamble's command that you must "uphold" it.[/quote:37g33bb1]

Please address my arguments analytically rather than merely making inadequate and inaccurate summaries of them.[/quote:37g33bb1]
What, precisely, is "inadquate" or "incaccurate" about the conclusion I drew from your writings?

You state that the UDHR is not included in the hierarchy of "sources of law" the judiciary is bound to uphold, notwithstanding the explicit reference to the UDHR in the Preamble, apparently because you distinguish the Preamble as not being within the "text" of the Constitution but merely appended as [url=http://www.google.com/search?q=define%3 ... 8:37g33bb1]precatory[/url:37g33bb1]. I deduce from this that you do not consider the UDHR as binding upon the decisions of the judiciary. Where, precisely, does this logic fail?

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Post by Aliasi Stonebender »

Also, in the midst of all these pretty, pretty words, I'd like to inject some hard, cold, reality.

The forums are on Gwyn's server, as I recall, much as the wiki is on my own. Ashcroft, nor any other possible member of the Judiciary outside of the Scientific Council, has actual administrative power here. Strictly speaking, it does not [i:344minxd]matter[/i:344minxd] what the Constitution says.

Of course, one could argue that Gwyn's position is much like Rudeen Edo's as Estate Owner, but the forum is a secondary entity compared to the SL sims; the sims comprise the CDS; the forum is a tool [i:344minxd]of[/i:344minxd] the CDS. More importantly, she's got the button. The Judiciary does not.

(Additionally, despite the use of the Wiki as an offical-ish repository, I've always been quick to insist that the Wiki is [i:344minxd]not[/i:344minxd] CDS property but my own, unless the CDS cares to pay for it. Gwyn has not been so insistent about the forum, but as the recent decisions rebutting some of the Judicary Act's limits on the SC show, I don't think Ashcroft's opinion would actually matter much if push came to shove.)

I'm sure this will provoke a lengthy response saying how I'm wrong, but this is a real case of "possession is 9/10ths of the law".

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Post by Patroklus Murakami »

There's an important point arisen here which I think merits some discussion in its own thread: the question of whether, and how, the UDHR applies to the CDS. Our Chief Judge seems to think (wrongly) that it doesn't. I'd like to expand on why he's wrong but that discussion probably belongs elsewhere.

As for the original topic of this thread, the CSDF has proposed a constitutional amendment to rectify the situation. The proposal is [url=http://forums.neufreistadt.info/viewtop ... 5:253vsyq7]here[/url:253vsyq7].

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