Agenda item 2: Complexity

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Oni Jiutai
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Post by Oni Jiutai »

[quote:245fwjjd]I have proposed such a system[/quote:245fwjjd]

Beathan, I think I've missed this in the flurry of posts on the subject. Could you point me at it, please?
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Post by Beathan »

Ash,

Other than you and Pat, it seems that the only people who like the direction the train is going are people who got on at stations along its current track. Some of us new-boarders also got on at recent stations -- but only because we read the placard saying where the train was supposed to go and did not realize that it was pointed in the wrong direction. Let's turn this train around before we end up stranded up the river, at the end of the tracks in East Hell-and-Gone, when the banjos start playing.

Further, I am advocating a return to the old system as a waystation, not as a destination. There are many unanswered questions that cannot be answered if we keep forging ahead based on the assumptions of the JA. Further, I am not advocating drafting the judiciary by committee -- I am advocating brain storming by all interested people. I think that drafting by committee does not work, but committee brainstorming certainly does. Once we make the choices by democratic discussion, then we can do the hard work of drafting -- but it is wrong and silly to draft first, ask questions later.

The creation of a governmental institution, especially a judiciary, is too important to leave as a private and personal task, by a single person, conducted in his lonesome room, to be imposed, fully-fledged, onto the people it will regulate. Even if the institution is approved by some rubber-stamp process -- it is nonetheless not democratic. It is clear that much about the JA was assumed, rather than considered, and implemented, rather than discussed, merely because its primary architect and builder was British.

Personally, I favor common law over civil law as the general process for creating new law and giving that law direction -- but, more than that, I want to start, as all legal systems start, from a foundation of customary law. Then I want to develop that customary law through the parallel processes of civil law (by RA legislation) and common law (through the courts). This is the successful model of law now emerging in Africa and in other Native communities in the Americas and in Australia. These places are only now finding their own way out from the nightmare that was the imposition of European models on people and places that were not completely European (much like SL and the CDS are not completely European). These areas are where justice systems are forming. They are where we should look for our model -- rather than looking at the wise old men of the world of justice systems, who remember their origins, if at all, only in idealized form.

This focus on custom and common law, acting together, is why I think it is so important that judges be enculturated before they start judging. Otherwise we end up in an imperial system, the Raj, with the Great White Hunters making judgments that throw down and destroy what had been built here in the CDS before their arrival.

I look around at everyone I have met in the CDS and ask, who is currently best suited to be a judge here. The answer is clearly Gwyn -- she is reasoned and reasonable, insightful, and steeped in CDS culture from the beginning, as a primary creator of it. She lacks formal legal training -- but that is a small, even an irrelevant, matter when compared to the rest of the picture. We don't need that level of training unless we already start with a system that is too complex. We should not get ahead of ourselves that way. Unfortunately, we have -- so now we have to bring it back home and reassess everything.

This reassessment should start with personalities and CDS culture and ask -- how do we get the most from those things. The answer is that we get the most by engaging Gwyn. So -- how do we engage Gwyn in the judicial system? The answer is restoring the judicial function to the SC. But didn't we decide the SC did a poor job? Perhaps -- so let's fix the SC and ensure that its job performance improves.

This leaves unanswered questions about process. However, I think that people, in SL and RL, are perfectly able to resolve most disputes without lawyers. In fact, lawyers often make problems worse before they get better. It's like surgery -- if you need surgery, you should have it -- but it you don't, it looks alot like mayhem, torture and vivisection. Therefore, I would again look to SL and CDS custom with regard to process. I would ask, "how do people actually resolve disputes on SL and in the CDS -- and how can we formalize and use those processes in our justice system?" Then, only where I found real, not speculative, gaps in SL or CDS informal dispute resolution would I fill those gaps by choosing some formal process to impose into the gap to fill the space. I would also only select the gap-filling process after consultation and brainstorming -- because I know that I am not smart enough to see all options and get things absolutely right by myself.

The problem with the JA is that it assumed an empty dispute resolution space -- and forced a British model into that space. This space was not empty -- and better, more fitted, SL processes were pushed out by the JA. Even if we dislike the SC process as it was, we should have considered how to make it work -- reform not replace. Even if we decided that it was unworkable in principle, we should have recongized that it was not the only dispute resolution mechanism that was actually out there. We need to push these SL dispute resolution mechanisms back in. To do that, we need to push out the monolithic JA system that displaced them, and we need to build our system piecemeal to fit the space. That is how you must build any system that is to be fitted to a space that is already partly occupied.

Beathan
Last edited by Beathan on Tue Dec 19, 2006 1:28 pm, edited 5 times in total.
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Post by Gxeremio Dimsum »

[quote="Ashcroft Burnham":qy7iizka][quote="Gxeremio Dimsum":qy7iizka]Without laws dealing with such issues, what would your judiciary do in the above situation?[/quote:qy7iizka]

That is precisely why we have a [url=http://en.wikipedia.org/wiki/Common_law:qy7iizka]common law[/url:qy7iizka] system.

[quote:qy7iizka]I tend to think that our judiciary ought to try to be good at the most common kinds of disputes, like griefing and breach of contract, and not try to be too all-purpose just yet.[/quote:qy7iizka]

Our judiciary must deal with all disputes that come before it, or else it is not a real judiciary at all. It cannot say "Sorry, we haven't worked out how to deal with this yet, come back next year". It must provide a final, binding, determinative outcome to all cases presented before it, come what may. That is part of the irreducible minimum of what it takes for something to be a judicial system in the first place.[/quote:qy7iizka]

I think it is absolutely appropriate to recognize our limitations, based on our very limited jurisdiction, the LL Terms of Service, and applicable RL laws. Your grandiose vision of a "final, binding, determinative outcome to all cases presented before it, come what may" strikes me as at once pompous and unworkable; the path to the CDS becoming a laughingstock.

Based on your reply, is it fair to say that you intend to legislate from the bench, basically taking upon the unelected judiciary the role of dealing with new situations, and then leaving it to the RA to clean up your messes, if there are any?

I am again amazed that in the midst of being criticized for being power-hungry, you reveal that your intentions are to have even more power than many believed!

So what WOULD your response be to the problem of a sim that was filled by a popular place to the detriment of other landowners in the sim?

Perhaps if your intent is to build on a system of common law, we need to vet your opinions more to ensure you will fairly interpret the will of the people rather than your personal druthers? Since, unlike most RL judges, you will be creating and not merely acting on precedent.
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Post by Ashcroft Burnham »

[quote="Gxeremio Dimsum":r4gup9s1]I think it is absolutely appropriate to recognize our limitations, based on our very limited jurisdiction, the LL Terms of Service, and applicable RL laws.[/quote:r4gup9s1]

Nobody is suggesting doing anything else. The question is why you think that those limitations entail anything different to what we have already established.

[quote:r4gup9s1]Your grandiose vision of a "final, binding, determinative outcome to all cases presented before it, come what may" strikes me as at once pompous and unworkable; the path to the CDS becoming a laughingstock.[/quote:r4gup9s1]

Gxeremio, that is part of the irreducible minimum of what something is to be a judiciary in the first place. We should be a laughing stock if we claimed to have a judiciary, but had, in fact, something that is not a judiciary.

[quote:r4gup9s1]Based on your reply, is it fair to say that you intend to legislate from the bench, basically taking upon the unelected judiciary the role of dealing with new situations, and then leaving it to the RA to clean up your messes, if there are any?

I am again amazed that in the midst of being criticized for being power-hungry, you reveal that your intentions are to have even more power than many believed![/quote:r4gup9s1]

I have made abundantly clear right from the very beginning that what I was proposing was a common law system, and that was exactly what almost everybody wanted. The reason to have it was because we would be here until domesday if we were to try to codify all our laws in advance. This is exactly how the law evolved in England, and there is no good reason why it should not also so evolve here in the CDS.

[quote:r4gup9s1]So what WOULD your response be to the problem of a sim that was filled by a popular place to the detriment of other landowners in the sim?[/quote:r4gup9s1]

I should look carefully at the pleadings, listen to all the arguments (and evidence, if there was any dispute of fact) from all the parties, and decide the case accordingly. The precise decision would depend on factors such as the nature of the sim, whether there were any covenants in force, and so forth.

[quote:r4gup9s1]Perhaps if your intent is to build on a system of common law, we need to vet your opinions more to ensure you will fairly interpret the will of the people rather than your personal druthers? Since, unlike most RL judges, you will be creating and not merely acting on precedent.[/quote:r4gup9s1]

Judges should [i:r4gup9s1]never[/i:r4gup9s1] be appointed or removed on the basis of their political opinions: that is one of the most important tenets of judicial independence. Judges are most certainly not there to represent the will of the people, or, indeed, anybody's will: they are there impartially and independently to interpret the law and administer justice. If the legislature wants to make law, it can.
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Post by Gxeremio Dimsum »

[quote="Ashcroft Burnham":35h2kzgo][quote="Gxeremio Dimsum":35h2kzgo]I think it is absolutely appropriate to recognize our limitations, based on our very limited jurisdiction, the LL Terms of Service, and applicable RL laws.[/quote:35h2kzgo]

Nobody is suggesting doing anything else. The question is why you think that those limitations entail anything different to what we have already established.

[quote:35h2kzgo]Your grandiose vision of a "final, binding, determinative outcome to all cases presented before it, come what may" strikes me as at once pompous and unworkable; the path to the CDS becoming a laughingstock.[/quote:35h2kzgo]

Gxeremio, that is part of the irreducible minimum of what something is to be a judiciary in the first place. We should be a laughing stock if we claimed to have a judiciary, but had, in fact, something that is not a judiciary.[/quote:35h2kzgo]

Erm...on the one hand you say, "Of course we have limitations on the cases we deal with, based on the reality of our situation," while on the other you say, "We have no limitations for which cases we deal with, and to have them would mean not having a judiciary." Which is it?

[quote:35h2kzgo]I have made abundantly clear right from the very beginning that what I was proposing was a common law system, and that was exactly what almost everybody wanted. The reason to have it was because we would be here until domesday if we were to try to codify all our laws in advance. This is exactly how the law evolved in England, and there is no good reason why it should not also so evolve here in the CDS.[/quote:35h2kzgo]

Here's a good reason: this is not England.

[quote:35h2kzgo]Judges should [i:35h2kzgo]never[/i:35h2kzgo] be appointed or removed on the basis of their political opinions: that is one of the most important tenets of judicial independence. Judges are most certainly not there to represent the will of the people, or, indeed, anybody's will: they are there impartially and independently to interpret the law and administer justice. If the legislature wants to make law, it can.[/quote:35h2kzgo]

If you want to interpret the law, fine, judicial independence to avoid meddling. However, if you want to MAKE the (common) law, then we've got a big problem - I think the word is despotism.
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Post by Ashcroft Burnham »

[quote="Gxeremio Dimsum":35qgl2x2]Erm...on the one hand you say, "Of course we have limitations," while on the other you say, "We have no limitations for which cases we deal with. Which is it?[/quote:35qgl2x2]

What kind of limitations do you imagine here? There are limitations in what we can practically achieve, but there can be no cases brought before the court where the court says " Sorry, we can't resolve that". The court might say "the prosecutor's case fails because what is being alleged is not unlawful because that is not the kind of thing that we can sensibly regulate"; I hope that you appreciate the difference.

[quote:35qgl2x2]Here's a good reason: this is not England.[/quote:35qgl2x2]

Are you suggesting that that is, in and of itself, a sufficient reason to counteract (1) the fact that nearly everybody wanted a common law system; and (2) the fact that we do not have the resources to draw up codes of law in advance?

[quote:35qgl2x2]If you want to interpret the law, fine, judicial independence to avoid meddling. However, if you want to MAKE the (common) law, then we've got a big problem - I think the word is despotism.[/quote:35qgl2x2]

Judges are not despots because they are bound by the laws made by the legislature, and therefore do not have absolute power.
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Post by Gxeremio Dimsum »

[quote="Ashcroft Burnham":30c7chg6][quote="Gxeremio Dimsum":30c7chg6]Erm...on the one hand you say, "Of course we have limitations," while on the other you say, "We have no limitations for which cases we deal with. Which is it?[/quote:30c7chg6]

What kind of limitations do you imagine here? There are limitations in what we can practically achieve, but there can be no cases brought before the court where the court says " Sorry, we can't resolve that". The court might say "the prosecutor's case fails because what is being alleged is not unlawful because that is not the kind of thing that we can sensibly regulate"; I hope that you appreciate the difference.[/quote:30c7chg6]

I hope YOU appreciate the difference between disputes a CDS-based judiciary can reasonably resolve (i.e. griefing in the CDS, breach of contracts notarized by CDS, etc.) and those outside our jurisdiction.

[quote:30c7chg6]Are you suggesting that that is, in and of itself, a sufficient reason to counteract (1) the fact that nearly everybody wanted a common law system; and (2) the fact that we do not have the resources to draw up codes of law in advance?[/quote:30c7chg6]

I am explicitly saying, not suggesting, that the judiciary should not take up 1) criminal cases when there is no clear law against the behavior or 2) civil cases that exceed the jurisdictional authority of the CDS. If we limit the expected function of our judiciary to a reasonable and helpful level, we can get away from the level of complication which you suggest is necessary for minimum functionality, and thus create a system that people will actually use.
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Post by Beathan »

Ash wrote [quote:1iz22qkr]What kind of limitations do you imagine here? There are limitations in what we can practically achieve, but there can be no cases brought before the court where the court says " Sorry, we can't resolve that". The court might say "the prosecutor's case fails because what is being alleged is not unlawful because that is not the kind of thing that we can sensibly regulate"; I hope that you appreciate the difference.
[/quote:1iz22qkr]

Ash, in the United States, our courts recognize (at least, perhaps, until Bush v. Gore in 2000) just this sort of limitation. It is called the "political question doctrine." It is a doctrine that characterizes some disputes as raising the kind of questions or issues that are best resolved by the democratic political process, rather than by judicial action. In such cases, our courts do say, "Sorry, we can't resolve that -- take it up with the Legislature or by election." This doctrine is absolutely necessary to preserve and protect democratic rule from the potential power of a court system -- and I do not see how any democracy is safe without just this sort of check on the judiciary. Further, if the judiciary is not willing to impose this check on itself -- then the check must be imposed on the judiciary. If judicial independence is something worth having -- than the judiciary must check itself in this way or it must lose its independence at least insofar as this check is imposed.

Again, this check is not a check of reason on regulation. Such thing might well be sensibly regulable. The check is a check on court action. The courts recognize that they are not absolute or complete authorities -- and even if something might be sensibly regulated, it still might not be properly regulated by the courts. Like most Americans, I place the whole of criminal law in this context -- crimes should be defined by statute, not developed by common law, and something not defined by statute as a crime should not be considered criminal, even if it is considered to be a common law tort.

So far you have not expressed a recognition or understanding of this kind of limitation on the powers of the courts -- and this scares many folks, including me, including Dimsum.

On a different, but not unrelated note, I want to mention that Chris Hayward, the Emmy-award winning writer of the "Rocky and Bullwinkle" show died. In his memory, and to aid this discussion, I think we should watch the first "Rocky and Bullwinkle" episodes, the four-part "Rue Britannia". We will all be better off for it.

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Post by Ashcroft Burnham »

[quote="Beathan":3raia5vz]Ash, in the United States, our courts recognize (at least, perhaps, until Bush v. Gore in 2000) just this sort of limitation. It is called the "political question doctrine." It is a doctrine that characterizes some disputes as raising the kind of questions or issues that are best resolved by the democratic political process, rather than by judicial action. In such cases, our courts do say, "Sorry, we can't resolve that -- take it up with the Legislature or by election." This doctrine is absolutely necessary to preserve and protect democratic rule from the potential power of a court system -- and I do not see how any democracy is safe without just this sort of check on the judiciary. [/quote:3raia5vz]

Presumably, unless the US judicial system is even more insane than I had hitherto imagined, the court does not say "We can't decide what to do here - the case is adjourned for ever": it decides the case against whoever brings the action in the first place. That [i:3raia5vz]is[/i:3raia5vz] a resolution of a dispute: in favour of the person against whom the case is brought, and it is a resolution of a dispute in accordance with a rule no doubt developed by the common law in the usual way.

[quote:3raia5vz]Again, this check is not a check of reason on regulation. Such thing might well be sensibly regulable. The check is a check on court action. The courts recognize that they are not absolute or complete authorities -- and even if something might be sensibly regulated, it still might not be properly regulated by the courts. Like most Americans, I place the whole of criminal law in this context -- crimes should be defined by statute, not developed by common law, and something not defined by statute as a crime should not be considered criminal, even if it is considered to be a common law tort.

So far you have not expressed a recognition or understanding of this kind of limitation on the powers of the courts -- and this scares many folks, including me, including Dimsum.[/quote:3raia5vz]

And, preytell, what opportunity has there been for me to express an understanding of a rule of the American common law?
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Post by Ashcroft Burnham »

[quote="Gxeremio Dimsum":3idh2je4]I hope YOU appreciate the difference between disputes a CDS-based judiciary can reasonably resolve (i.e. griefing in the CDS, breach of contracts notarized by CDS, etc.) and those outside our jurisdiction.[/quote:3idh2je4]

I do indeed appreciate the difference between the cases that the CDS judiciary can and cannot reasonably resolve. You, however, may not, especially if you think that it is limited only to the things above.

[quote:3idh2je4]I am explicitly saying, not suggesting, that the judiciary should not take up 1) criminal cases when there is no clear law against the behavior or 2) civil cases that exceed the jurisdictional authority of the CDS.[/quote:3idh2je4]

That is not an answer to the question. Are you or are you not saying that the fact that this is not England is, in and of itself, a sufficient reason not to have a common law system, despite the fact (1) that almost everybody has always wanted one; and (2) it would be practically impossible to write comprehensive codes of law in advance?

[quote:3idh2je4]If we limit the expected function of our judiciary to a reasonable and helpful level, we can get away from the level of complication which you suggest is necessary for minimum functionality, and thus create a system that people will actually use.[/quote:3idh2je4]

What you think is "reasonable and helpful" is likely to be very distant from what truly is reasonable and helpful.
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Post by Gxeremio Dimsum »

[quote="Ashcroft Burnham":2eas2ur1]And, preytell, what opportunity has there been for me to express an understanding of a rule of the American common law?[/quote:2eas2ur1]

Well, in my view, that's one of the problems. You have insisted that having multiple cultures really shouldn't matter much, which it wouldn't so long as you were basing all the rules and expectations on your own judicial culture. But for others, not privileged to make up the rules as they go along, this is a major problem.
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Post by Gxeremio Dimsum »

[quote="Ashcroft Burnham":2u5yinhk]I do indeed appreciate the difference between the cases that the CDS judiciary can and cannot reasonably resolve. You, however, may not, especially if you think that it is limited only to the things above. [/quote:2u5yinhk]

Let's hear your list, then.

[quote:2u5yinhk]That is not an answer to the question. Are you or are you not saying that the fact that this is not England is, in and of itself, a sufficient reason not to have a common law system, despite the fact (1) that almost everybody has always wanted one; and (2) it would be practically impossible to write comprehensive codes of law in advance?[/quote:2u5yinhk]

Objection your honor! Badgering the witness! :)

The popular understanding of common law as desired by the people of the CDS is, I'm sure, not what you think it is. I have no problem with England. I do have a problem with your quote, "This is exactly how the law evolved in England, and there is no good reason why it should not also so evolve here in the CDS." Precisely which characteristics of midieval England are akin to ours in SL? There is some argument for an American frontier mentality, which has been advanced elsewhere. What is your support for your...cough...bland assertion that the development of SL can or should follow England's development pattern?

[quote:2u5yinhk]What you think is "reasonable and helpful" is likely to be very distant from what truly is reasonable and helpful.[/quote:2u5yinhk]

What a polite thing to say. How did Second Life ever survive without you, Omniscient One?

Seriously, though, it's better to cause the government to chafe under the limitations of freedom than the people to chafe under the limitations of a too-powerful government.
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Post by Ashcroft Burnham »

[quote="Gxeremio Dimsum":w6jn3r25]Well, in my view, that's one of the problems. You have insisted that having multiple cultures really shouldn't matter much, which it wouldn't so long as you were basing all the rules and expectations on your own judicial culture. But for others, not privileged to make up the rules as they go along, this is a major problem.[/quote:w6jn3r25]

How is it a problem that I have not had an opportunity to express an understanding of a rule of the American common law?
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Post by Ashcroft Burnham »

[quote="Gxeremio Dimsum":2g4zomfj]Let's hear your list, then.[/quote:2g4zomfj]

* Disputes between our government and anyone;
* disputes between citizens and each other;
* disputes between citizens and non-citizens;
* disputes concerning the assets of the CDS, including all public spaces;

(all as relate to conduct that is at least partly in-world conduct), and additioanlly:

* disputes concerning CDS forum moderation.

[quote:2g4zomfj]The popular understanding of common law as desired by the people of the CDS is, I'm sure, not what you think it is.[/quote:2g4zomfj]

What is the basis for your understanding of what the popular understanding of common law in the CDS is? I have only ever used the true understanding of the nature of common law. I have no idea where you or (supposedly) anyone else has had any other ideas about what it means.

[quote:2g4zomfj]I have no problem with England. I do have a problem with your quote, "This is exactly how the law evolved in England, and there is no good reason why it should not also so evolve here in the CDS." Precisely which characteristics of midieval England are akin to ours in SL?[/quote:2g4zomfj]

The fact that we do not yet have fully developed laws, but that we do have a legal system.

[quote:2g4zomfj]There is some argument for an American frontier mentality, which has been advanced elsewhere. What is your support for your...cough...bland assertion that the development of SL can or should follow England's development pattern?[/quote:2g4zomfj]

(1) The fact that almost everybody agrees with it.

(2) The fact that we do not have the resources to write comprehensive codes of law in advance.

[quote:2g4zomfj]Seriously, though, it's better to cause the government to chafe under the limitations of freedom than the people to chafe under the limitations of a too-powerful government.[/quote:2g4zomfj]

That just begs the question of precisely when a government is "too powerful".
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Post by Oni Jiutai »

I think we may be descending into an unprofitable essay question of "The Judiciary Act is more English than SL. Discuss." But for what it's worth:

Beyond the fact that it's a Common Law system (along with England, US Federal law, most US state law - Louisiana is the pub quiz exception -, most of Canada and much of the Commonwealth) I don't think that the legal system created by the JA is particularly English.

There is undoubtedly some surface similarity, particularly in names. Some of which I disagree with. For the record, I'd call everybody on the bench "Judge", which has the benefit of being quick to type. Some of it, "High Court", say, I just can't bring myself to care very much either way. It all, after all, has to be called something. [I should, of course, accept that it could be said I'm bound to feel that way, being English, but I think it's a valid point.]

The bones of the thing, on the other hand has a number of rather notable distinctions. For a start the CDS has a written constitution, which England never has (I will forestall any argument that the Human Rights Act has produced a de facto constitution as [i:1lgp1ggb]really[/i:1lgp1ggb] being too academic.). This is a pretty big difference now - but will only lead to greater divergence as CDS Common Law develops.

The other obvious one is the collapse of the civil / criminal case distinction. There is no separate criminal jurisdiction - everything is under one court. Given that the English system had effectively three jurisdictions up to the late 19th Century - and we still have innumerable different court divisions and tribunals - this is also pretty different. Actually, it's incredibly radical - nobody, so far as I know has tried it in RL - but is entirely in keeping with the SL focus on individual remedies and rights. Plus it's marvellously small government. ;-)

Those are two big differences, but there are minor ones too. For example, the Original Procedure Rules work on the assumption that preliminary hearings will be dealt with in writing - which would put a considerable section of the Judiciary in the UK out of work.

I'm slightly confused by Beathan's suggestion that we should proceed on the parallel course of law being passed in the RA and also being developed the courts, only because that is exactly what a Common Law system is! Nobody, either in RL or in SL so far as I'm aware as ever suggested that in a Common Law system the Courts aren't bound by laws past by the legislature.

For that matter the African countries and America (I'm not familiar with law in the Americas I'm afraid) are also Common Law Jurisdictions. One of the strengths of a Common Law approach is its adaptability. Just look as how US and UK law has diverged - each responding to the specific needs, cultures and challenges of the Country in which its operating.

In any event, if we're not to have a Common Law system, I'm not quite sure who is going to draw up the Code of Laws. Given the levels of controversy we've managed to scale over a set of procedures, I'm certainly not volunteering. :wink:
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