On the necessity and meaning of a "professional judicia

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Flyingroc Chung
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Post by Flyingroc Chung »

[quote="Ashcroft Burnham":333d6y5d] Do you accept that, whatever you think that the CDS should do, there is room for - and a real need for - a genuinely serious justice system within SecondLife that resolves the serious disputes that arise between real people when interacting through the medium of the virtual world? [/quote:333d6y5d]

Why does that justice system need to be *within* SecondLife. Will not RL justice systems do?

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Post by michelmanen »

Not really. Please read Diderot's list of reasons why (above).

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Post by Ashcroft Burnham »

[quote="Flyingroc Chung":27bzh789]Why does that justice system need to be *within* SecondLife. Will not RL justice systems do?[/quote:27bzh789]

A system within SecondLife is far more practical: it is not marred by territorial boundaries or the intractable difficulties in ascertaining people's first life identities. It is likely to be much cheaper, since the SecondLife economy is greatly deflated compared to the first-life economy (and note how many legal professionals were willing to dedicate substantial amounts of time to the CDS for free or SecondLife scale fees before the judicial system was destroyed).

Also, it would be able to resolve disputes of the sort that first-life courts would not consider worth resolving, relating, for example, to the use of virtual land, virtual property rights, contracts that first-life courts may consider to have been too informal to be enforceable, and many other such things. Because the environment in SecondLife is different, it needs its own rules, and a system with its own rules needs its own means of enforcing those rules.

Professor David Post gives a clear explanation of the need for a genuinely serious judicial system in virtual worlds [url=http://www.firstmonday.org/issues/issue ... /:27bzh789]here[/url:27bzh789].

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Post by Jon Seattle »

[quote="Jon Seattle":3fxq6a9l]Even if we did have full blown court procedures it is not clear to me that we could ever really support five or ten or twenty lawyers. And as a variation on the old saying goes, idle hands may start meddling in public policy. I strongly believe that designing public policy should be the job of elected representatives, with the SC just making sure these are consistent with the constitution and UHDR. [/quote:3fxq6a9l]
[quote="michelmanen":3fxq6a9l]While RA representatives should have the final say in approving public policy (by voting aye or nay) the "design" of public policy should be basaed on an on-going deliberative processs including all CDS citizens. Their RL or 2L profession should be of no relevance to their ability to contribute on an ongoing basis to the process of policy formation and policy discussion.[/quote:3fxq6a9l]
One of the fundimental ideas built into our constitution is that of checks and balances. Because we had a bad experience with the abuse of power in the past (shortly after I became a citizen a good chunk of NFS was destroyed) we should be very vigilant about any proposal that gives one person or group power without sufficient checks on that power.

I agree with Michel that every citizen should be involved in the design of policy, including RL lawyers. I was talking about the danger of having a future judge go beyond participation as an ordinary citizen and use their office to design and implement policy. Almost as bad would be to have a skilled lawyer insert language into a bill in order to trigger an interpretation or surprise consequence that we might discover only after the bill was passed.

The Judicial Act had no protection short of actual impeachment to keep a judge from making policy or shaping the non-law procedures of other branches of government. This “shaping from the top” could be subtile and incremental and gradually destroy our rights as citizens.

The PJSP was supposed to be a check on judicial power, but it did not include any way of acting other than to publish it’s conclusions. The problem with relying on impeachment is that could be used only for glaring offenses. Also it involves a trial, and we have one group with a lifetime of practice contesting in court. It seems to me that it would difficult for the representative assembly or the executive to bring a future chief judge who abused his office under control through impeachment.

Without anyone having power to establish a check on the judiciary, a future judiciary could attempt to defame the legislature, claim that it had no right to pass certain laws, (perhaps referring to an unwritten constitution as Michel did in his arguments before the SC) and then reverse it’s bills. You may say that any future court could be trusted, but it seems to me that we cannot depend on it.

The other practical problem is that in the current political situation if the Judicial Act were to be reinstated it seems very likely that all of the judges would be drawn from a single political party. With a strong, organized judiciary, and a weak fragmented representative assembly, this could create a serious inbalance.

So we have one argument, should the Judiciary be “professional” and another issue, should there be sufficient constitutional protections to protect against abuse of power. So the question is, apart from a professional judiciary, would CARE support mechanism for checking judicial power and limiting it’s scope? If so, what is that proposal?

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Post by Ashcroft Burnham »

[quote="Jon Seattle":1ooo7a72]The Judicial Act had no protection short of actual impeachment to keep a judge from making policy or shaping the non-law procedures of other branches of government. This “shaping from the top” could be subtile and incremental and gradually destroy our rights as citizens.[/quote:1ooo7a72]

Why do you repeat so incessantly this nonsensical falsehood? The most important check on judicial power is the ultimate power of the legislature to pass laws which the judiciary must obey. There was also the appellate power of the Court of Scientific Council.

[quote:1ooo7a72]The PJSP was supposed to be a check on judicial power, but it did not include any way of acting other than to publish it’s conclusions.[/quote:1ooo7a72]

Again, a nonsensical falsehood: the Panel had the power to refuse to appoint judges. Given the way in which you have acted, it is hardly surprising that you have such a poor grip on what exactly it is that you destroyed so recklessly.

[quote:1ooo7a72]Without anyone having power to establish a check on the judiciary, a future judiciary could attempt to defame the legislature[/quote:1ooo7a72]

Any non-citizen could do that just as well - is what you are really worried about just that you might be the subject of powerful and true criticism?

[quote:1ooo7a72]claim that it had no right to pass certain laws, (perhaps referring to an unwritten constitution as Michel did in his arguments before the SC) and then reverse it’s bills. You may say that any future court could be trusted, but it seems to me that we cannot depend on it.[/quote:1ooo7a72]

We can certainly depend on the fact that any court in the CDS for the foreseeable future (and, for that matter, any legislature or any other branch of government) [i:1ooo7a72]cannot[/i:1ooo7a72] be trusted to any meaningful extent whatsoever, given the identities of those who will inevitably constitute such institutions and the way in which most of such people have behaved in the recent past, combined with the inability of anybody who remains prepared to devote any time to any such project to produce anything well-conceived enough to be workable.

However, the above discloses a [i:1ooo7a72]third[/i:1ooo7a72] nonsensical falsehood: the judiciary that you destroyed was specifically prohibited from disapplying any ratified legislative act (although some of the anti-judiciary extremists, such as Beathan, specifically [i:1ooo7a72]wanted[/i:1ooo7a72] a judicial system to have the power to hold that any given piece of legislation ought be disapplied because it violated somebody's human rights, a power which the system that I had designed expressly reserved to the Scientific Council on ratification), a prohibition that could effectively be enforced by the special appeals procedure.

[quote:1ooo7a72]The other practical problem is that in the current political situation if the Judicial Act were to be reinstated it seems very likely that all of the judges would be drawn from a single political party. With a strong, organized judiciary, and a weak fragmented representative assembly, this could create a serious inbalance.[/quote:1ooo7a72]

That is a situation that was inevitably created by your and your fellows' destruction of the judicial system, and the abject failure of the other three political parties to support a properly-conceived judicial system. You shall reap what you sow.

[quote:1ooo7a72]So we have one argument, should the Judiciary be “professional” and another issue, should there be sufficient constitutional protections to protect against abuse of power.[/quote:1ooo7a72]

It is a grotesque misrepresentation of the position of everybody to suggest that anybody would disagree that there should be sufficient constitutional provisions to protect against abuses of power: the debate is not about whether to have sufficient protections, but what protections really are sufficient.

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Post by Jon Seattle »

[quote="Ashcroft Burnham":25e3pmsy]
Why do you repeat so incessantly this nonsensical falsehood? The most important check on judicial power is the ultimate power of the legislature to pass laws which the judiciary must obey. There was also the appellate power of the Court of Scientific Council. [/quote:25e3pmsy]
Nonsense. Judges promise to obey the laws as they interpret them and if they feel they can make sense of those laws. Even if they keep that promise this leave a lot of room for creative interpretation. For there to be an effective check against abuse there needs to be someone else who can step in to correct a judge’s actions. Your court-above-all approach does not provide an effective check.

The powers of the Scientific Counsel to hear appeals were slashed and shredded by the Judicial Act. Lets look at the text of the Judicial Act:
[quote:25e3pmsy]2. Without prejudice to the specificity of the foregoing, the Scientific Council when sitting as a court [b:25e3pmsy][u:25e3pmsy]shall not in any circumstances[/u:25e3pmsy][/b:25e3pmsy] have the power to determine any appeal from any Court of Common Jurisdiction only on any or all of the following grounds:

(a) that the Court of Common Jurisdiction reached the wrong conclusion on any question of fact;

(b) that the Court of Common Jurisdiction wrongly interpreted or applied the common law of the Confederation of Democratic Simulators (except the common law with respect to the jurisdiction of the Courts of Common Jurisdiction);

(c) that the Court of Common Jurisdiction wrongly interpreted or applied any duly ratified Act of the Representative Assembly (except where the Court of Common Jurisdiction expressly purports to disapply any Act of the Representative Assembly); or

(d) that the Court of Common Jurisdiction wrongly interpreted, applied, or disapplied any regulation (or similar) made by any person or body deriving its power to do so from the Representative Assembly, or any person or body who, in turn, derives her, his or its power to do so from the Representative Assembly,

nor shall any of those grounds have any bearing on the outcome of any appeal from any Court of Common Jurisdiction to the Court of Scientific Council. [/quote:25e3pmsy] (emphasis mine.)

So, as you very well know, in most cases the SC’s hands would be tied.

[quote="Ashcroft Burnham":25e3pmsy]
[quote:25e3pmsy]The PJSP was supposed to be a check on judicial power, but it did not include any way of acting other than to publish it’s conclusions.[/quote:25e3pmsy]

Again, a nonsensical falsehood: the Panel had the power to refuse to appoint judges. Given the way in which you have acted, it is hardly surprising that you have such a poor grip on what exactly it is that you destroyed so recklessly. [/quote:25e3pmsy]
Nonsense. The PJSP could have kept judges from being appointed if they have complete knowledge of the candidate’s knowledge and judgment. It is not a check on abuse once they have been appointed. Or do you think that once they have been appointed it is impossible for them to misuse their power?

[quote="Ashcroft Burnham":25e3pmsy]. . .the debate is not about whether to have sufficient protections, but what protections really are sufficient.[/quote:25e3pmsy]
Indeed it is. That is why I asked this question. What, exactly, do you and CARE propose as protections? From what I can see the very few protections you do propose are entirely inadequate and would leave us open to future abuse.

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On Checks and Balances

Post by michelmanen »

Jon,

Any government branch could in principle abuse its powers in our current system. In my opinion, the last RA did exactly that when it met twice during the last two weeks before elections, including once minutes before the polls opened, in violation of its own, longstading and unbroken traditions, and passed major bills that (in one case) dramatically affected our constitutional order, with no meaningful previous public consultation or debate on the text of that Bill. When the SC was asked to check this abuse of power, it decided in its wisdom that it had no powers to do so -and since the first bill so introduced destroyed the judiciary, there was no other functioning branch capable of checking such legislative violations of principles of democracy, fairness, accountability, openness and the rule of law.

All this is not because I wish to reopen this debate, but rather to show that if any branch has the institutional abilities to abuse its powers, it is the legislature - because it is the only democratically elected one, yet under the current system, it can choose to act as an olygarchy of 5 between elections, and by passing bills, it can effectively both destroy the judiciary and muzzle the SC- and has indeed done so.

The checks and balances proosed by CARE have been clearly spelled out both theoretically (in directly-deliberative approach to policy formation based on significant and continuous public involvement in the policy-fromation process) as well asa in the creation of an Advisory Legislative Body, including the heads of all 4 branches of goverment (RA Leader, SC Dean, Chancellor, Guildmaster) would examine all bills intrduced in the legislature, would discuss any modifications they might deem necessary, would have the opportunity to question each other, and then suggest a (possibly) revised bill text to the legislature. The legislature, of course, would continue to have the right to accept or reject or modify such changes and adopt a bill of its chosing. Taken as a whole, this constitutes a much more open, participative, cooperative legislative process than what we had until now, where abuses of power by any branch of government would be highly unlikely - even assuming, as CARE does not, than the members of any such branch would so uttely lack the professionalism, competence and respect for our democratic system of government as to be inclined to do so.

Regarding the alleged abuses of power by our (former) Chief Justice in drafting the Judiciary Act and hiding "easter eggs" in it (claims in no way born out by factual evidence), one must remember that the Judiciary ACt itself was a unique piece of legislation, in that it was, by definition, jurisgenerative: there was no functioning judiciary branch worth of its name before the act; the legislature authorised a qualified individual to draft such an act; approved it 3 times; and the creator of the Act became Chief Justice. Because of this unique set of circumstances, the appearance took hold (unjustifiably so, in my opinion) that the Chief Justice intended, through the Judiciary Act, to weaken all other branches of government and instaurate a judge-led system of government. Setting aside this unique situation, which because of the directly-delibarative system of polyarchic government proposed by CARE would not be able to occur again should CARE have the necessary votes in the RA to implement ints proposals, I do not forsee any other situation in which the input ofour judicial branch in the drafting of our bills would be so predominant as was the case with hte Judiciary ACt and the Code of Civil Procedure.

In the final instance, the democratically-elected legislative remains the untimate check on the other branches of goverment by its ability to pass laws changing the very nature of other branches o effectively neutralising others (both of which the last legislature did, rather irresponsibly, with respect to the judiciary and scientific branches) -and the ultimate balance against the legislative is the expression of popular will at the ballot box - the results of which, in our case, we shall soon know.

I, for one, and CARE as a whole, are much more optimistic about the professionalism and integrity of all members of our various branches of govenment, and of their genuine desire to act in the public interest as opposed to their own or their immediate groups, to assume that any of them will engage in such blatant, reckless, and desloyal abuse of power as you describe, in violation of all ethical, legal and democratic principles they are sworn to uphold. In any case, under the system proposed by CARE, such abuses of power, were they to be attempted, would be detected and neutralised at an early stage of the legislative process, in a cooperative manner, by all branches of government working together, rather than allowing such issues to fester and explode in an adversarial and recriminatory manner in our public sphere, as hasa hapened recently with the Judiciary Act.

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