A Judicial Fable?

Forum to discuss issues pertaining to the organisation and operations of the judiciary.

Moderator: SC Moderators

Justice Soothsayer
Pundit
Pundit
Posts: 375
Joined: Sun Jun 04, 2006 1:14 pm

A Judicial Fable?

Post by Justice Soothsayer »

Just in time for the New Year, I found this story in a box on the Platz and thought I would share it with all.

[quote="Aesop never":1juleadz]Once upon a time, Newf and Connie Lianova met Arch the Architect at a party. Arch was a charming fellow, and convinced Newf and Connie that he could design them their dream house. He said it would be an architectural masterpiece, and he would do it for free because he really, really wanted to design a masterpiece. Newf and Connie weren’t really looking for a house, but they were very impressed with Arch’s design he made just for them, so they decided to build the house. They made a few modest changes in the design, which Arch very reluctantly accepted.

Once the house was built, Newf and Connie weren’t as happy as they thought they would be with it. The house was very large, and they thought it had far too many rooms. “I don’t really like a Tudor house”, Connie said. “It’s not Tudor, it’s Tudor-inspired”, Arch said archly. “It has a solid foundation, nicely proportioned rooms, and look at how well built it is”, he said. Arch even invited over some of his fellow architects. “Yes, it is indeed well built with a solid foundation and nice rooms”, they said. “It is an architectural masterpiece, and since we are architects, we expect that you will believe us”.

Newf and Connie believed what all the architects said about their house, but they still weren’t happy with it. “There are rooms that have little function for us, staircases that go to floors of the house we haven’t even seen yet, and it is really more of a castle than a home,” they said. “But the foundation is solid and the rooms are nicely proportioned, as I have told you many times”, Arch said even more archly. “We need storm windows”, said Newf and Connie, “because it gets cold and drafty in here”. “Nonsense!”, said Arch. “It won’t be an architectural masterpiece if you add storm windows, and besides, you have to expect a little chill once in a while. You could clearly see there were no storm windows in the blueprints, and you know it gets cold around here, so you got just what you should have expected”.

Newf and Connie invited their friends over to visit. “What’s that thing?” one asked. “Oh, that’s a bidet”, Connie replied. “We don’t really know what to do with it, but Arch says that any European guests will love it.” “This house is really too big for you”, their friends said. “Yes”, said Newf, “but we don’t know how to make this house into a real home for us.” “It’s a monstrosity, burn it down immediately”, said some of their friends.

Newf and Connie really didn’t want to burn down their new house, so they tried a bit of remodeling. First they changed the interior design to something that was a little more pleasing to them. “A travesty,” said Arch. “This house was professionally designed and needs a professional decor or it won’t be an architectural masterpiece”. But Newf and Connie went ahead and did some redecorating. The house didn’t look like it dropped out of a magazine anymore, but it was a bit more pleasant to them.

Next they tried to remodel some of the rooms. After a lot of sweating and a little cursing from Newf, they decided that remodeling was just not going to work. “We can never make this house right for for us without destroying it”, they decided. So they started over on a more modest house. Today they are still working happily on their new home. As their family grows, from time to time they add another room, and every so often they apply a new coat of paint. They even moved the bidet from the house that Arch built, and their European friends indeed thought that was a good idea.

The house that Arch built still stands unoccupied. It is a lovely house, really almost a castle, and every once in a while Arch brings his architect friends over and they admire the solid foundation, the nicely proportioned rooms, and how well built it is. They all lament what a shame it is that Newf and Connie can't really appreciate an architectural masterpiece.

Newf, Connie, and Arch lived happily ever after.[/quote:1juleadz]

:D

User avatar
Ashcroft Burnham
Forum Wizard
Forum Wizard
Posts: 1093
Joined: Thu Aug 03, 2006 3:21 pm

Post by Ashcroft Burnham »

As you well know, a fabelised version of a true story can be made to give any impression that the person writing it wishes to give. The following alternative can be presented:

A small but growing group of people ran a co-operative structured business in a frontier territory. A professional accountant from a well-established land came to the frontier territory, having [url=http://www.firstmonday.org/issues/issue ... l:1h4x6hjn]heard[/url:1h4x6hjn] that business was picking up, but that there as a lack of proper accountancy.

The accountant stumbled upon the co-operative, the only one of its kind in a land so far dominated by individual traders, and spoke to some of the people in it.

"I'm an accountant" he said. "I see that you don't really have a system for keeping your accounts".

The Head of Administration said, "You're right, we don't. The Administration department does it at the moment, but we're hardly professionals. In fact, we had a big problem a few months ago when we spent [i:1h4x6hjn]weeks[/i:1h4x6hjn] just trying to work out what our net worth was, and some people say we didn't even get that right".

"I see" said the accountant. "Why don't I design for you a professional accountancy system, based on the accountancy systems that I know back in my homeland, with a new Accounts Department that'll take over most of the accounting work of the Administration Department, except for auditing, and build up some proper accountancy practice there? I won't even charge you for it - all I want is to get to be an accountant in this co-operative, working with the accountancy system that I designed".

"Ahh, an excellent idea!" said the Head of Administration. "Why don't you put it in writing for the Board"?

So, the accountant put it in writing for the Board. There was much discussion. One of the Board members said,

"But this will take far too many people! We're in the process of opening a second shop, and I'd far rather that we put all our resources into doing that".

"No problem," said the accountant, "I'll do all the work, and I'm no good at shop-fitting anyway. All I'll need is perhaps one clerk to help me out, and he/she could just be part-time".

"This accountancy system is too much like the one from your home country, and not enough like the one from mine" said another Board member, who used to teach finance back in his home country. "We should do it [i:1h4x6hjn]this[/i:1h4x6hjn] way instead".

"No, no," said the accountant, "there are good reasons for believing that way to produce inaccurate results", and then went onto explain the reasons. Much discussion ensued, and, eventually, a new kind of accountancy system was developed quite distinct from that which prevails in either's home country. The Board eventually approved the rules, and it, and the Administration department, appointed the accountant as an official accountant of the co-operative.

The accountant started setting about putting in place the procedure for drawing up the accounts. The new Accounts Administrator (whom one of the Board members had insisted be appointed to oversee the work of the accountant, and who happened to know one of the members of the Board from back home) said that there should be three accountants, not one.

"I thought people were concerned that we'd need too many accountants" the accountant said, "but, no matter, I'll set about recruiting two more", so the accountant wrote up an application form, which contained some practical accountancy tests, given that there was no recognised accountancy qualification in the frontier town.

"Hang on a minute", said the Accounts Administrator, "that test is far too difficult. Why don't you just ask them one or two questions about why they want to be accountants instead?"

"Don't be silly," said the accountant, "that won't tell us whether these people would make good accountants or not. Just imagine if one of them got the accounts wrong - we'd all be in trouble".

"But this is a [i:1h4x6hjn]frontier[/i:1h4x6hjn] land", the Administrator insisted, "we want people here to do things that they didn't do back home. And who said an accountant had to be good at adding up or know anything about double-entry bookkeeping, anyway?"

Realising that the Administrator was not talking sense, the accountant did not change his test. Indeed, the accountant had, in the meantime, got lots of other accountants from all over the place coming and joining the co-operative, and had even managed to get the co-operative mentioned on a news programme back home as the first in the frontier land to use professional accountancy techniques. Two of the new accountants who had come to the co-operative by the first accountant's encouragement duly passed the test, but still needed approval from the Board before being appointed.

Meanwhile, some other people had started complaining that the accountancy system was too much like the one in the accountant's home country, and not enough like the one in theirs.

"But we already decided that," the accountant pointed out, "and invented a whole new system based on both the two systems combined. The Board approved it. We discussed it for ages. Can't you just let us get on with doing some accounts now? You'll see that the system works just fine".

"No, no", the people insisted, "this system is so bad we must change it now. And look at how you've put it into operation - all that paperwork! We never used to have to do all that paperwork before".

"We do the paperwork now so that we can keep a track of things or else we'll get in a terrible muddle later," pointed out the accountant. "Remember what happened when you tried to calculate your net worth last time? You had to work everything out from scratch. This way is much easier in the long-run. That's how it's always done back where I come from, and where you come from, too, come to think of it."

"But this is a [i:1h4x6hjn]frontier[/i:1h4x6hjn]," they replied; "we need to do things differently here. Who said we can't have a system that doesn't need paperwork now and doesn't create a problem later? Why can't we have our cake and eat it?"

And so the Board convened and replaced the accountancy manual that the accountant had drafted with a piece of paper saying "We'll do all the work later. We [i:1h4x6hjn]can[/i:1h4x6hjn] have our cake and eat it".

The accountant said, "Are you insane? This is a recipe for disaster. You'll never get accurate accounts like this, especially if people all work on their own, different accounting systems from their own home countries".

"Are you threatening to make the accounts a disaster if we don't use your rules?" the Board retorted. "You'll use our rules, and like them, so there".

A few people then pointed out that, actually, the new rules didn't even require people to keep a record of what they'd sold, or what the price of anything was. The Board said, "Well, we can just add those bits to the piece of paper", but never got around to doing that.

At the same time, one of the staff queried his wages, and asked the Administration Department, who had always handled wage queries in the past, to look into it for him.

The accountant said, "Ahh, but, actually, that's for the Accounts Department now. Remember, the Accounts Department does all accounting now, apart from auditing. See? It's in the rules."

The Deputy Head of Administration said, "What!? You mean you the [i:1h4x6hjn]Accounts[/i:1h4x6hjn] department does [i:1h4x6hjn]wage queries[/i:1h4x6hjn] now? But the Administration department has [i:1h4x6hjn]always[/i:1h4x6hjn] done that. Look - it says here in the staff guide that that's what the administration department does. And look: the rules say that the Administration department is responsible for payroll!"

"Payroll isn't the same as wage queries", pointed out the accountant, and anyway the new rules make it clear that it's the Accounts Department. The Accounts Administrator agreed.

"But this is preposterous!" spluttered the Deputy Head of Administration. "[i:1h4x6hjn]I[/i:1h4x6hjn] never realised that wage queries would fall under the Accountancy Department. They should have told me that in advance".

"But I did ", said the accountant, pointing out where he had made that clear in the past.

"But you didn't make it clear [i:1h4x6hjn]enough[/i:1h4x6hjn]", said the Deputy Head of Administration.

"Right, I've had enough of this: I'm going to ask the Board to change the rules again, and have the Administration Department check all the Accountancy Department's accounts, and correct any errors in them before submitting them".

"But that's silly," said the accountant: "that puts us back where we started, only, now, instead of one set of people doing the accounts, you've got two".

"I don't care," said the Deputy Head of Administration, "I don't think you're a very good accountant anyway. Look at all those forms you'd have us fill in! And look at how difficult you made it for other people to be accountants!"

And so the Board passed the new rules. And, the next week, the Board said, "Actually, we're fed up of this whole accountancy thing. People keep saying they don't like it. I know we haven't actually given it the chance to produce any accounts yet, but [i:1h4x6hjn]obviously[/i:1h4x6hjn] it's not what we thought it was going to be, so we'll have to change it. We'll create a new Accounts and Administration Department. Accountants can help out, but, really, it's all run by administrators". And so they did. The accountants, meanwhile, seeing the unfolding absurdity, all left (bar one who never really liked writing things down in advance anyway, and would much rather have to work it all out at the end, even if it made the results inaccurate), and formed a lobby group to persuade the government of the frontier land to require proper auditing.

The co-operative, meanwhile, carried on as normal for a while, until its next set of accounts were due. And then realised that it had no idea what anything was worth, or what they were going to charge for anything, and that, actually, they were missing a great deal of money (they had no idea where it had gone; they suspected that someone might have stolen it, but they couldn't be sure because nobody had kept records of anything) and would not be able to go on for much longer unless they made big cutbacks. So, reluctantly, they sold their second shop, laid off a lot of staff, and went back to selling a few odds and ends from their run-down shop. And, as the bailiffs moved in, one of the members of the Board could be heard to mutter, "I can't work out where we've gone wrong, but I'm sure that it's all that accountant's fault".

Ashcroft Burnham

Where reason fails, all hope is lost.
Publius Crabgrass
Passionate Protagonist
Passionate Protagonist
Posts: 143
Joined: Wed Sep 27, 2006 5:12 pm

Post by Publius Crabgrass »

Two excellent contributions to the story-telling genre. I hope others will chime in with other stories, maybe even one about Enron accounting. I'm looking around the alleys of Neufreistadt right now!

Gxeremio Dimsum
Veteran debater
Veteran debater
Posts: 205
Joined: Fri Jun 30, 2006 6:37 pm

Post by Gxeremio Dimsum »

The first story is about making Newf and Connie happy. The second story is about making the accountant happy.

User avatar
Ashcroft Burnham
Forum Wizard
Forum Wizard
Posts: 1093
Joined: Thu Aug 03, 2006 3:21 pm

Post by Ashcroft Burnham »

[quote="Gxeremio Dimsum":2vnwxxhn]The first story is about making Newf and Connie happy. The second story is about making the accountant happy.[/quote:2vnwxxhn]

No, the second story is about the accountant trying to put in place systems to get the accounts right, being stopped by everyone else from doing so, and the accounts (and therefore the whole business) going catastrophically wrong in consequence. Why is that so hard for you to understand?

Ashcroft Burnham

Where reason fails, all hope is lost.
Diderot Mirabeau
Master Word Wielder
Master Word Wielder
Posts: 453
Joined: Thu Jun 01, 2006 6:28 am

Post by Diderot Mirabeau »

I actually like the way our current accountant/treasurer manages the books and publishes a monthly report. It is all very simple, easy to understand and user-friendly without requiring you to have to wade through 95 pages of interestingly written texts. I wish all our administrative systems could be like that.

User avatar
Ashcroft Burnham
Forum Wizard
Forum Wizard
Posts: 1093
Joined: Thu Aug 03, 2006 3:21 pm

Post by Ashcroft Burnham »

[quote="Diderot Mirabeau":2is2lzgc]I actually like the way our current accountant/treasurer manages the books and publishes a monthly report. It is all very simple, easy to understand and user-friendly without requiring you to have to wade through 95 pages of interestingly written texts. I wish all our administrative systems could be like that.[/quote:2is2lzgc]

Our actual accountant is indeed good, largely because she knows what she's doing and understands accountancy. The monthly reports, you will notice, are not the accounts themselves. She publishes those, too: they are the important bits. I doubt that many people really understand them: I certainly don't. But nobody is [i:2is2lzgc]complaining[/i:2is2lzgc] that they can't understand them, or that having accounts [i:2is2lzgc]and[/i:2is2lzgc] a monthly report makes things even [i:2is2lzgc]more[/i:2is2lzgc] difficult than having just "simple" accounts, or saying that we should use a different accounting method, or that the current accounting method reveals a cultural bias, or that the accounting system is "undemocratic" because the accountant does not have a fixed term and have to be voted in, or that Sudane is trying to take over the CDS (or the entire grid) with her accountancy.

Ashcroft Burnham

Where reason fails, all hope is lost.
Publius Crabgrass
Passionate Protagonist
Passionate Protagonist
Posts: 143
Joined: Wed Sep 27, 2006 5:12 pm

Post by Publius Crabgrass »

The moral of the second story is that with some, there's [url=http://www.bartleby.com/59/3/theresnoacco.html:2pdjk46u]no accounting for taste[/url:2pdjk46u], with others, there's no taste for accounting.

User avatar
Ashcroft Burnham
Forum Wizard
Forum Wizard
Posts: 1093
Joined: Thu Aug 03, 2006 3:21 pm

Post by Ashcroft Burnham »

[quote="Publius Crabgrass":2j1utk1i]The moral of the second story is that with some, there's [url=http://www.bartleby.com/59/3/theresnoacco.html:2j1utk1i]no accounting for taste[/url:2j1utk1i], with others, there's no taste for accounting.[/quote:2j1utk1i]

And that people put irrational preferences before reason at their peril.

Ashcroft Burnham

Where reason fails, all hope is lost.
Beathan
Forum Wizard
Forum Wizard
Posts: 1364
Joined: Sun Oct 29, 2006 3:42 pm

Post by Beathan »

Ash wrote [quote:miqt4iy5]And that people put irrational preferences before reason at their peril.[/quote:miqt4iy5]

And people also delude themselves that their irrational preferences are reasons at their peril.

Beathan

Let's keep things simple enough to be fair, substantive enough to be effective, and insightful enough to be good.
User avatar
Ashcroft Burnham
Forum Wizard
Forum Wizard
Posts: 1093
Joined: Thu Aug 03, 2006 3:21 pm

Post by Ashcroft Burnham »

[quote="Beathan":352tx18p]And people also delude themselves that their irrational preferences are reasons at their peril.[/quote:352tx18p]

To prevent that is exactly why it is necessary to have reasoned debate that goes only to the substantive reasons of the matter, that does not veer off into analogy or story-telling or metaphor or bald assertion or people claiming that they know best through "intuition", despite being utterly incapable of lending reasoned support to their claims, or failing to respond to substantive points merely asserting that they are "pontification" without substantiating that, either.

Ashcroft Burnham

Where reason fails, all hope is lost.
Beathan
Forum Wizard
Forum Wizard
Posts: 1364
Joined: Sun Oct 29, 2006 3:42 pm

Post by Beathan »

[quote:b07tmnmk]Beathan wrote:
And people also delude themselves that their irrational preferences are reasons at their peril.

To prevent that is exactly why it is necessary to have reasoned debate that goes only to the substantive reasons of the matter, that does not veer off into analogy or story-telling or metaphor or bald assertion or people claiming that they know best through "intuition", despite being utterly incapable of lending reasoned support to their claims.
[/quote:b07tmnmk]

Ash -- the point is that in my reading of these forums before I posted, and in my continuing reading of them since my first post, you are the only poster who has stubbornly maintained each and every position he takes, despite the cogence of any criticism. Everyone else (including me) has read someone's criticism of what we wrote and has experience an "eureka" moment when we saw things differently and realized that, when seen from that different perspective, our position needed to be adjusted.

This is the real strength of debate. It is not that reason wins over passion. It is that reason, passion, intuition and insight all come together in a dialectic maelstrom of thesis and antithesis -- and that a better and more complete synthesis emerges at the end. To over-privilege reason over other mental processes through which humans experience and shape our world (intuition, passion) is misguided -- and impoverishes, rather than enhances, the debate.

Even more worrying, to be so passionately connected to ones own "reasons" that one cannot be moved from them indicates that the "reasons" are not reasons at all. They are prejudices and biases, the very things that should be challenged and dislodged through dialectic. They are passions disguised as reasons and, as such, fail to respond to either reasoned argument or beautiful/sublime argument.

Ash, I see you as the only person posting on these forums who has not been moved by another's argument except insofar as it was a paraphrase of your own. This should make you pause. The people posting on these forums are exceptionally insightful and bright people who come here from wide range of cultures and life experiences. The native intelligence and variegated histories of the other people on these forums should cause you (as it causes me) to expect to be enlightened by counterarguments. No matter how smart you are -- and how much smarter you are than the rest of us -- there will be a time when someone here says something that should cause you to see things radically differently. If that never happens it means either that you aren't listening or that you aren't understanding.

So far, as near as I can see, it has never happened that someone has made a counterargument that moved you voluntarily from any position you held. (You have been moved from some positions by political force -- but that is not at all the same thing. Compromise under coercion is not virtuous.) This indicates to me one of two things. First, either you suffer from a deficiency in imagination that prevents you from moving outside yourself and your thoughts when confronted with the thoughts of another and charged with the obligation, as a reader, to assess those thoughts. This defect is fatal to the hermeneutic process -- and is fatal to any interpretive act, including judging. It would be a failure to understand.

Alternatively, you might be so arrogant that you merely latch onto key phrases without bothering to listen to or find out the actual argument being made. Thus, you might jump to what you think the person must be saying -- the mistake you think they must be making -- if they disagree with you, rather than actually hearing them out. This produces strawman arguments, which you counter, but which miss the point. This would be a failure to listen -- and it would also be fatal to any interpretive act, including judging.

It is your failure to engage in full and fair debate on these forums -- as evidenced by your singleminded adherence to positions despite counterargument, and without any attempt to accommodate, rather than refute, the counterargument, that has the rest of us so troubled. We see that a judge must not merely be able to think and argue -- that's the job of a lawyer. A judge must be able to listen and understand -- and we are skeptical that you have those skills.

Finally, in defense of this thread, I would like to quote the noted legal and virtual world theorist, Lawrence Lessig, from his book [i:b07tmnmk]Code and Other Laws of Cyberspace[/i:b07tmnmk]. Notably -- before you reject Lessig as a free-form kook, I should note that he is a deeply conservative Constitutionalist -- and a darling of the emerging NeoCon American blogospheric media for appointment to the US Supreme Court.

[quote:b07tmnmk]Most people think that to understand [i:b07tmnmk]law[/i:b07tmnmk], you need to understand a set of [i:b07tmnmk]rules[/i:b07tmnmk]. That's a mistake, as Stanley Fish taught us. The law is best understood through stories -- stories that teach what is later summarized in a catalog of rules.[/quote:b07tmnmk]

Beathan

Let's keep things simple enough to be fair, substantive enough to be effective, and insightful enough to be good.
Publius Crabgrass
Passionate Protagonist
Passionate Protagonist
Posts: 143
Joined: Wed Sep 27, 2006 5:12 pm

Post by Publius Crabgrass »

[quote="Beathan":3bqy2wbg]Finally, in defense of this thread, I would like to quote the noted legal and virtual world theorist, Lawrence Lessig, from his book [i:3bqy2wbg]Code and Other Laws of Cyberspace[/i:3bqy2wbg]. Notably -- before you reject Lessig as a free-form kook, I should not that he is a deeply conservative Constitutionalist -- and a darling of the emerging NeoCon American media for appointment to the US Supreme Court.

[quote:3bqy2wbg]Most people think that to understand [i:3bqy2wbg]law[/i:3bqy2wbg], you need to understand a set of [i:3bqy2wbg]rules[/i:3bqy2wbg]. That's a mistake, as Stanley Fish taught us. The law is best understood through stories -- stories that teach what is later summarized in a catalog of rules.[/quote:3bqy2wbg]

Beathan[/quote:3bqy2wbg]

I rather enjoyed the stories as an amusing diversion from the usual back-and-forth talking at each other, rather than with each other, that passes for discussion on these fora. Both stories reveal much about the poster and their competing views, without the usual acrimony.

User avatar
Ashcroft Burnham
Forum Wizard
Forum Wizard
Posts: 1093
Joined: Thu Aug 03, 2006 3:21 pm

Post by Ashcroft Burnham »

[quote="Beathan":3ijjeepu]Ash -- the point is that in my reading of these forums before I posted, and in my continuing reading of them since my first post, you are the only poster who has stubbornly maintained each and every position he takes, despite the cogence of any criticism. Everyone else (including me) has read someone's criticism of what we wrote and has experience an "eureka" moment when we saw things differently and realized that, when seen from that different perspective, our position needed to be adjusted.[/quote:3ijjeepu]

Forgive me if I don't recall any of yours in relation to the judiciary discussion.

[quote:3ijjeepu]This is the real strength of debate. It is not that reason wins over passion. It is that reason, passion, intuition and insight all come together in a dialectic maelstrom of thesis and antithesis -- and that a better and more complete synthesis emerges at the end.[/quote:3ijjeepu]

Why do you think that irrational means are more capable of providing true answers than reasoning?

[quote:3ijjeepu]To over-privilege reason over other mental processes through which humans experience and shape our world (intuition, passion) is misguided -- and impoverishes, rather than enhances, the debate.[/quote:3ijjeepu]

I do not agree that it is meaningful to claim that reason is "over-privileged": there is ultimately no other method capable reliably of producing true answers to analytic questions. A debate is impoverished by being contaminated by irrationality, not by being confined to reason.

[quote:3ijjeepu]Even more worrying, to be so passionately connected to ones own "reasons" that one cannot be moved from them indicates that the "reasons" are not reasons at all. They are prejudices and biases, the very things that should be challenged and dislodged through dialectic. They are passions disguised as reasons and, as such, fail to respond to either reasoned argument or beautiful/sublime argument.[/quote:3ijjeepu]

As a matter of principle, I respond only to reasoned argument.

[quote:3ijjeepu]Ash, I see you as the only person posting on these forums who has not been moved by another's argument except insofar as it was a paraphrase of your own. This should make you pause. The people posting on these forums are exceptionally insightful and bright people who come here from wide range of cultures and life experiences. The native intelligence and variegated histories of the other people on these forums should cause you (as it causes me) to expect to be enlightened by counterarguments. No matter how smart you are -- and how much smarter you are than the rest of us -- there will be a time when someone here says something that should cause you to see things radically differently. If that never happens it means either that you aren't listening or that you aren't understanding.[/quote:3ijjeepu]

I did indeed expect to be enlightened. With a few exceptions (conversations with Gwyneth being chief amongst them), I have been disappointed.

Your argument, however, which can be summarised as: because I have never given into anyone else's view on a matter in these forums, I must be acting out of irrational prejudice rather than true reason, is flawed in two respects. Firstly, as a matter of fact, it is simply not true that I have not conceded any point at all. Secondly, were it true or not, as a matter of reason, it does not necessarily follow (as you claim that it does) that refusing to concede to any given set of counter-assertions entails that one is acting otherwise than through reason.

As to the first point, if you had read as thoroughly as you claimed to have read, you would have noticed, for example, that, in the early discussions about the legal system, I preferred jury trial to be compulsory for all those cases in which it was available, but made it optional when some concerns as to its practicality were raised by Diderot, and then went on to point out that we might find, thorough experience, that jury trials were too impractical to have at all, but that we should at least try them before we reach that conclusion. In the later debate on the same matter in relation to the Special Commission, somebody else suggested voluntary juries, a suggestion which I thought made a good alternative to ordinary juries should it prove impractical to use them.

As to the second point, it is simply a non-sequitor to claim that it necessarily follows from the fact that a person does not give in to counter-assertions that the person must believe what he or she does irrationally. The possibility simply cannot be excluded either (1) that the person really is right about all the points, and that all the counter-assertions wrong and counter-arguments flawed; or (2) that, while the person in question is mistaken about at least some of her or his views, those who make the counter-assertions are either also mistaken (and therefore are not providing the person, by presenting only mistaken assertions, with any reason to depart from her or his original views), or have the correct positions in at least some respects, but have not (perhaps because the correct positions were stumbled upon by accident, rather than by reasoning) provided genuine reasons why those positions are indeed correct. Since you provide no basis for excluding either of these possibilities in the present circumstances, your claim is wholly groundless.

Whether a person is right or wrong about any given thing or any given set of things is not something to be determined by looking at the number of people who agree or disagree, or the identities of those people, or how passionate that people are about their opposing views: it can be determined by, and only by, a thorough, genuine, rational analysis of the inherent merits of the subject-matter at hand.

[quote:3ijjeepu]It is your failure to engage in full and fair debate on these forums -- as evidenced by your singleminded adherence to positions despite counterargument, and without any attempt to accommodate, rather than refute, the counterargument, that has the rest of us so troubled. We see that a judge must not merely be able to think and argue -- that's the job of a lawyer. A judge must be able to listen and understand -- and we are skeptical that you have those skills.[/quote:3ijjeepu]

What, precisely, do you contend are the constituents of a full and fair debate? Are you seriously claiming that a debate is not full or fair if one of the parties does not give into any other given party, whatever the inherent merits of the argument presented thereby? What could a full and fair debate possibly be other than a debate that thoroughly and rigorously analyses the merits of the matter at hand by reason and reason alone?

Incidentally, as regards judicial skill, a judge indeed must be able to listen (or read, as the case may be), but, contrary to what you imply, listening, reading and/or understanding does not entail agreeing. A judge is worthless if he or she does not always retain her or his critical faculties, and, after having listened to and understood to the best of her or his ability any line of argument presented, reject any such argument that does not truly withstand the scrutiny to which those critical faculties, most thoroughly deployed, must subject it. One cannot assess any person's ability to judge in that way based only on counting the number of times with which a person agrees with the arguments of another, but only by looking to the inherent merits of the arguments themselves and assessing whether the decisions were, on their own terms, correct or not.

[quote:3ijjeepu]Finally, in defense of this thread, I would like to quote the noted legal and virtual world theorist, Lawrence Lessig, from his book [i:3ijjeepu]Code and Other Laws of Cyberspace[/i:3ijjeepu]. Notably -- before you reject Lessig as a free-form kook, I should note that he is a deeply conservative Constitutionalist -- and a darling of the emerging NeoCon American blogospheric media for appointment to the US Supreme Court.[/quote:3ijjeepu]

I do not accept or reject people: I accept or reject ideas or arguments or propositions, based, not on their authorship, but on their inherent merits. Many a wise person has said an unwise thing, and many an idiot a wise one.

[quote:3ijjeepu]Most people think that to understand [i:3ijjeepu]law[/i:3ijjeepu], you need to understand a set of [i:3ijjeepu]rules[/i:3ijjeepu]. That's a mistake, as Stanley Fish taught us. The law is best understood through stories -- stories that teach what is later summarized in a catalog of rules.[/quote:3ijjeepu]

As Hart points out, law is, by its very nature, a set of rules. The thing that one is understanding when one is understanding law is, therefore, a set of rules, whether, in some cases at least, a useful route to that understanding might be the reciting of a story about how those rules came to be, or an example of how they are or could be applied.

Ashcroft Burnham

Where reason fails, all hope is lost.
Beathan
Forum Wizard
Forum Wizard
Posts: 1364
Joined: Sun Oct 29, 2006 3:42 pm

Post by Beathan »

Ash --

You are right that I have not yet agreed with you, or worked out a consensus with you, about the Judiciary Act. This is for two reasons. First, the Judiciary Act is so horribly, hopelessly flawed in its current details and implementation that it cannot be accepted without major revision, even rewriting. Second, you are demanding acceptance of it and are unwilling to engage in constructive conversation aimed at changing the Act to address its flaws and improve it. Your first and last instinct seems to be to refute counterargument, rather than work toward a compromise -- and you tend to accept revision only under duress.

Synthesis by consensus is not possbile if either party refuses to engage in a full and fair effort to compromise. Compromise is impossible if the parties hold irreconcilable positions. To be charitable to you, I will assume (despite some contrary evidence) that our positions are irreconcilable rather than that you are hopelessly obtuse and pigheaded. Personally, however, I believe that I can only be considered pigheaded in the context of my debate with you -- I have shown far more flexibility and a greater willingness to compromise in other debates, even in related debates with other people. Perhaps this means that I have a particular and lamentable inability to deal with you, Ash, productively -- but perhaps the fault, dear Caesar, lies not in your stars, but in yourself.

I have had fruitful synthetic discussions with Diderot, Jon, Pel, Moon, Gwyn -- even Oni and Michel. I have found real insight in posts of all these people -- and in your posts as well (although I have not found the insight I see in your posts to comport with your conclusions -- or support the details of your project). I do wonder why, if you find these forums so disappointing, you continue to post here and engage people here. I also find it strange that the only person you have found insightful is Gwyn -- who is also the only person (through her position as Dean of the SC) who had the power to force you to accept her view by coercion through veto. Your statements here seem to confirm, rather than refute, my concerns.

With regard to your question why I think irrational means are more capable of providing true answers than is reasoning, I don't. I just don't think that intuition, insight, even passion to some extent, are irrational means. I think we have very good reason not to disregard these methods of interacting with and understanding the world. These reasons can be found in biological psychology, anthropology, even inductive logic. To confine a discussion to deductive analysis is not only impoverished, it is silly because it cannot give us any reason to accept any given starting point or assumption.

This is the primary flaw in your reasoning and your project and your examples (such as the antiharrassment act analyses). You build wondeful structures of reasoned argument. However, you never give us any reason to accept your base assumptions -- and you refuse, without good reason, any attempt to move to the base of your argument to reveal and evaluate these assumptions.

We cannot protect rights without first having conceptions of them. We cannot prohibit harrassment without having a definition of it. We cannot have good laws, regardless of process, unless we have good legal goals and good content in our substantive laws.

Further, once we have those goals, clear in our mind, we can take any number of roads to get to them. This is why I contend that process is not essential. Any process will do provided it lets us keep our goal in view and move toward it. The problem with the hyperdetailed process, and process-orientation, of Ash's system is that it thwarts this critical purpose. The process distracts us from the substance, such that we lose sight of the substance. No process will work if we lose the substance; any process will work if we keep it in view and have the means to move toward it.

This is the primary insight of the Simplicity Party -- and it is a good insight. It is also not an insight that is at all contrary to the rule of law. On the contrary, it shows that the rule of law is different than the rule of legal process or the rule of lawyers, and we must never sacrifice rule of law to either legal process or legal professionals.

This error in thought is also responsible for Ash's mistaken and unpopular rejection of the UDHR as substantive law in the CDS. Ash argues, the UDHR is too vague to provide for good procedural analysis. Perhaps, but it is good enough to serve as a purposive definition of a substantive law of civil rights in the CDS. That is its historical function in the CDS -- and it is a proper one.

I do wonder, reading both these stories, why anyone needed either an architect or an accountant. Things were working fine before professional intervention. I see no reason to believe that Connie and Neuf -- or the frontier folks -- could not have worked out their problems for themselves as they came up in ways that did not disrupt their lives to the extent found in either story. Frontier folks are simple, practical folks -- but they don't need paternalistic intervention from the "civilized world" for that reason. They do just fine. In other words, Country ain't dumb.

The fact is that systems, especially complicated systems, that evolved in a certain social or historical context are particularly well suited to that context. This leads to the illusion that they are superior systems -- because they work so well where they evolved. However, this just means that they are uniquely suited to their context -- not that they are transferrable. In fact, they rarely are transferrable - and rarely work better in a new context than a more primitive system that evolves in the new context on its own. By incorporating RL law -- whether British or American or Orinoco Tribal -- we are trying to fit a round, or oval, or triangular peg in our square hole. I would rather have a well-fitted wooden peg for the hole than the most gilded round one.

Beathan

Let's keep things simple enough to be fair, substantive enough to be effective, and insightful enough to be good.
Post Reply

Return to “Judiciary Discussion”