Agenda item 2: Complexity

To plan and discuss the meetings to take place under the auspices of the Comission

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Post by Beathan »

Oni -- Excellent, clear and measured summary of the two polar sides of two of the issues in the current discussion (debate) about judicial theory. Do you care to make a stab at the other issues? If you can replicate this clear and dispassioned summary of the issues, you will probably save the Commission hours of heated and fruitless argument.

However, I am not sure that you have perfectly captured the full discussion on judicial independence. Unlike the general theory of the proper judicial structure a fledgeling judiciary should have, there is a range of possibilities regarding judicial independence. Many people involved in the discussion (myself included) think that a SL judiciary should have the same judicial independence as many RL judiciaries we are familiar with, but do not think that it should have the amount or kind of independence that it currently has (which is apparently the amount and kind the UK judiciary has). Thus, I don't think that the debate is necessarily polarized between RL model vs. no RL model -- although that dichotomy characterises much of the discussion we are having about this and other issues. Rather, I think the debate concerns different ideas, based largely on RL examples, of how much, and what kind of, judicial independence is necessary to achieve fair and unprejudiced results from the judicial system without unduly burdening or sacrificing other democratic values.

Further, I think there is an additional point in the pro-simplicity argument in constituting the judicial system that we must note. General rules are less likely to created cultural ingroups, outgroups and permanently liminal groups. SL attracts people from all over the world -- from many different cultures. We need to endeavor to be as inclusive as possible -- both because there is a virtue in this form of inclusion and because, as Aliasi points out, we need to sell our system, and it will be hard to sell to people who find it foreign or who feel excluded by it. The more details we fill in, the more likely we are to include things from one culture to the exclusion of others.

The bowing and scraping of the Ashcroft rules is a perfect example of this. Such behavior, while comfortable to British barristers, strikes others as quaint or strange, and strikes still others as downright demeaning. (I for one, as a Western American, would as soon shoot someone as bow to him. Out here in the West, our motto could well be "I bow to God, but to no man.") This kind of cultural activity or preference (bowing to human authority figures) must be avoided when we fill in the details -- but I don't think that any of us, being embedded in our cultures as we are, can perfectly predict where and whether any given detail will go astray. Thus, we need to avoid such detail in the first place -- filling it in only when we discover, through practice, that we can trust it not to harm us or our system.

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

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