Agenda item 3: Judiciary and the other branches

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Agenda item 3: Judiciary and the other branches

Post by Justice Soothsayer »

[quote:1l67m214]3. Relation of the Judiciary with the other branches of state
a) What is "judicial independence"? How do we define it, and how do we
guarantee it?
b) What is the jurisdiction of the Judiciary? What are the limits to
the power of the Judiciary?[/quote:1l67m214]
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Post by Ashcroft Burnham »

As I have explained many, many, many times on these fora before, judicial independence is the independence of the judiciary from any outside influences, either directly or indirectly, in the way in which it deals with any given case, except that it should be bound by the abstract rules, publicly promulgated in advance by the democratic legislature.

Judicial independence is guarunteed by ensuring that judges have no motivation whatsoever in relation to the outcomes of any given cases, and that judges are selected on nothing other than their ability to be judges, and by people who have, and cannot realistically have, any motivation whatsoever to tend to appoint judges who will decide cases in any given way. Ensuring that judges have no motivation in relation to the outcomes of cases entails ensuring in particular that the powers of various branches of the government cannot be used or threatened to be used against the judiciary in the conduct of its affairs, so that, for example, judges cannot be removed from office for deciding cases in unpopular ways, or ways unfavourable to the interests of the present government. The bodies who appoint judges must similarly have no possible motiviation for appointing judges who are favourable to the interests of government over those who are not favourable to the interests of government. The legislature must not easily be able to change these rules, or else they are worthless: the legislature could just threaten to change the rules to put the judiciary in a position where it can be threatened in other ways.

The ultimate source of our judiciary's jurisdiction is in our estate-owner's powers of banishment and of reclamation. It follows from that that any dispute where a possible outcome is banishment from the CDS or reclamation of land form the CDS of any given person is a dispute that our judiciary has the jurisdiction to resolve. Whether the law provides that, after consideration of the case, any court orders should be made, is a different matter. The Court of Scientific Council in impeachment proceedings also has the power to determine who may continue to hold public office.
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Post by Beathan »

Ash has indeed repeatedly offered his theory and definition of Judicial Independence. However, saying something is so does not make it so. More, saying something is good does not make it good. More, saying a thing has certain implications or necessary characteristics does not make it true that it does.

In all his discussions, Ash has failed to answer, at least to completely answer, the following questions, all of which must be answered before we should accept, as an insitution of CDS culture, Ashcroftian Judicial Independence.

First, what does judicial independence get us? That is, given our project, community and culture in the CDS, what does judicial independence do for us?

Second, what does judicial independence cost us? That is, given our project, community and culture, what do we give up, even if only as a possible alternative action or theory, when we accept any given theory of Judicial Independence? Given these costs, even if we get less from an alternative theory, do we net more when the costs are considered?

Third, what kind of Judicial Independence, or how much Judicial Independence, do we want based on the answers to the other questions? For instance, I think we can all agree that we want our judges to be free from inappropriate influence when deciding cases. However, we want our judges to be appropriately influenced by the things we want to matter and to figure in judging. What are those things -- both the good things and the bad things? As a democratic simulator, dedicated to democracy writ large, do we really want our judges to be free from democratic influence? If so, why?

Further, even if we want Judicial Independence in judging, do we want Judicial Independence in selection of judges, or in the abstract, general methods, rules or procedures of judging. How about Judicial Independence in the creation of substantive law -- judicial lawmaking, insulating the common law from legislative control? How about independence from impeachment or public criticism?

None of these questions are answered by simply asserting that Judicial Independence is a good thing. Chocolate is a good thing -- but do we want to eat it all the time, in every form, even if we aren't hungry, even if we are getting scurvy? If we do, do we want Swiss or German chocolate?

The argument so far appears to have been of the "my Judicial Independence is bigger than yours" variety -- rather than getting to the heart of the matter. Why do we want it to be big? Does size matter? If so, would we rather it be bigger in certain places and smaller in others?

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Post by Ashcroft Burnham »

[quote="Beathan":1by2ektq]Ash has indeed repeatedly offered his theory and definition of Judicial Independence. However, saying something is so does not make it so. More, saying something is good does not make it good. More, saying a thing has certain implications or necessary characteristics does not make it true that it does.[/quote:1by2ektq]

Are you [i:1by2ektq]honestly[/i:1by2ektq] claiming that I have not supported my claims with reasons, as I have done in posts past at great length, in great detail and with great care? Have you even [i:1by2ektq]tried[/i:1by2ektq] to find the posts on these forums where I argued, on principle, as to exactly why this is essential for judicial independence, and why anything else is gravely dangerous?
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Post by Beathan »

Ash --

Yes. I have not found complete answers to any of the questions in my posts in any of your posts. Rather, you seem to assume that judicial independence is a certain thing, that the thing you assume it to be is a good thing, and then to defend it on that basis.

You have never provided a nuanced discussion setting forth the full range of possible theories of judicial independence, showing us why your theory is better than the alternative theories. You have also never given a full front-end justification for judicial independence in the first instance.

Before I buy a horse, I want to see its teeth and watch it run, and I would never buy a horse from someone who told me not to bother because it is the only horse around.

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Post by Oni Jiutai »

For my own part, I think if you don't have judicial independence you don't have a judicial system.

This doesn't necessarily deal with Beathan's points. It's certainly possible to argue that the CDS doesn't need / want a judicial system for a variety of reasons and that other sorts of dispute resolution are more suited to it.

A quick note for the avoidance of doubt, I'm not saying that other forms of dispute resolution, such as arbitration can't co-exist with a judicial system. They can and should. I actually suspect that arbitration is even more useful in SL than it is in RL (or at least can be more popular and effective than it is in RL yet).

But what a judicial system is is a system in which decisions are made on the basis of the law, by independent judges. If you don't have independent judges, you don't a judicial system. Any more than you do if you have a body of independent people who decide cases without reference to the law.

That does leave the question of how much judicial independence is necessary (beyond the fairly significant amount needed to create a judicial system in the first place) and how to achieve it.
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Post by Ashcroft Burnham »

[quote="Beathan":7f3ai2ia]Ash --

Yes. I have not found complete answers to any of the questions in my posts in any of your posts. Rather, you seem to assume that judicial independence is a certain thing, that the thing you assume it to be is a good thing, and then to defend it on that basis.[/quote:7f3ai2ia]

So you have entirely failed to find all of my detailed posts about specifically why elected judges, judges without security of tenure, or judges appointed by political bodies are extremely dangerous in that they lead to specific, adverse consequences, have you?

[quote:7f3ai2ia]You have never provided a nuanced discussion setting forth the full range of possible theories of judicial independence, showing us why your theory is better than the alternative theories. You have also never given a full front-end justification for judicial independence in the first instance.[/quote:7f3ai2ia]

This request does not make any sense: why would I discuss other people's theories of judicial independence, with which I disagree, unless and until somebody else suggests that such a particular theory is better than mine? In other words, if I am advocating a particular claim in which I genuinely believe, and which I genuinely believe is extremely important, why should that involve a discussion of other claims that I believe to be false that other people happen to give the same name as the one that I advocate as true?
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Post by Beathan »

Ash --

No, I have read those posts. Before I posted a single thing, I printed over twelve hundred pages from these forums. I read most of these -- including everything having anything to do with the Consitutional structure of the CDS and with the Judiciary Act. I find no full and complete answers to my list of questions in any of them. Rather, I find the assumptions I call out above -- with not much deeper or less circular.

Perhaps you should take up and answer my specific questions.


Oni --

Surely we can have a Judiciary or a Justice System that is not independent. Such a system just renders judgments deciding disputes among citizens. Even a Solomonic system, in which disputes are brought to the king and the king decides them, is a justice system. If the king delegates that function to judges, retaining ultimate authority to decide cases himself if he sees fit, then we have a judiciary. I agree that without some kind of indpendence, we don't have a good justice system or a good judiciary. However, I also think that with too much judicial independence (for instance -- no democratic control over substantive law, no ability to impeach judges, no ability to criticize judges) we also have a bad judiciary. Therefore, we need some judicial indpendence -- but not complete judicial independence. We need some balance. The questions for us is: 1. how much judicial independence do we need, 2. why, and 3. do we need as much, or more, judicial independence in SL as we need iRL?

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Post by Oni Jiutai »

Beathan, I think we may just be arguing about the meaning of words rather the underlying theories.

[quote:18fqr9e5]However, I also think that with too much judicial independence (for instance -- no democratic control over substantive law, no ability to impeach judges, no ability to criticize judges) we also have a bad judiciary.[/quote:18fqr9e5]

I'm not sure if you mean that this [i:18fqr9e5]would[/i:18fqr9e5] be bad (in which case I agree) or [i:18fqr9e5]is[/i:18fqr9e5] bad (because it's the current system. If the later I think I'm confused since I'm under the impression that (a) the RA can pass whatever law they choose and all judges must then be bound by it, (b) Judges can be impeached by the the RA, the SC and by the Chair of the Judiciary Commission and (c) anybody can criticise anybody they like (and campaign for either changes in the law or impeachment).

I'll return to the other questions later, need to get some work done now. :)
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Post by Beathan »

Oni --

I mean that any system that gives too much independence to judges would be a bad system. I think that the amount and nature of judicial independence under the current Judiciary Act might give too much independence to judges. Therefore, I think that the current system is a bad system, but that is (I acknowledge) a debatable point.

I don't see that the current theory of judicial independence has ever been considered against alternative theories of judicial independence. Rather, the argument has been 1. judicial independence is good; 2. judicial independence is defined as follows "judges are a self-appointing, self-regulating, insular body of legal professionals who interpret and apply the general law in particular cases based on procedural law developed, with little or no outside oversight, by the judges"; 3. this system has that kind of judicial independence; 4. therefore, this system as good insofar as it has judicial independence.

Like so much else with the Judiciary Act, this theory of judicial independence was advocated by Ashcroft and accepted by the CDS for want of alternatives. The CDS, recognizing that Ashcroft had professional expertise that others lacked, deferred to Ashcroft's judgment on these matters, failing to consider other alternatives because no one had or could present them. We now have people who can and are presenting alternatives -- both to the Act as written and implemented and to the ideas and theories underlying the Act. The Commission exists to consider these ideas. Thus, we do need to answer the questions about what kind of judicial independence we want; why do we want that kind of judicial indpendence, rather than another kind; and how do we get the kind of judicial independence we decide we want.

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Theories of judicial independence

Post by michelmanen »

This argument is a bit like finding ourselves at Rawls' Point of Origin, behind his Veil of Ignorance, and saying: Now, we can choose between a liberal democratic system of government (judicial independence and the rule of law), an apartheid system of government (some judicial independence but no rule of law), and a communist system of goverment (no judicial independence and no rule of law). Let's debate the pros and cons of each in detail and decide which system is more appropriate for us...

Whilst in theory this argument is true, actual practice has long provided unequivocal replies to such hypothetical enquiries: both apartheid and communist systems have ended up in Marx's dustbin of history, and liberal democracies have spread and prospered at a sustained rate (due in no small measure to precisely their enforcement of the rule of law and judicial independence). I should hope that we should be allowed to learn from historical experience without having to re-enact it all over again... As Schiller once wrote, "The history of the world is the world's court of justice".
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Post by Beathan »

Michel --

Your analysis is wholly unfair. Neither I, nor anyone else, is arguing for an apartheid system or a communist system. I also note that you have failed to talk about a fourth alternative -- Krytocracy -- in which we have judicial independence but do not have rule of law. You also don't consider a fifth alternative, I'm not sure what to call it, in which we have rule of law without judicial independence. This might be accomplished by, for instance, setting up the law as an algorithm administered by a computer which is directly programmed by the legislative body and which operates by parties feeding in facts and having the computer spit out results. This computer would not be a judge, let alone an independent judge, and its "judging" would be completely determined by its programming, which is entirely done by the legislative body. However, I am hard pressed to conclude that this system is not one with rule of law.

Further, it is simply wrong to assert that judicial independence and rule of law act like on/off switches and you either have them or you don't. Everyone agrees that we should have them. Therefore, everyone agrees that we should have a liberal democratic government. However, liberal democratic governments are not all the same. In fact, they differ on these very points -- the theories of rule of law and judicial independence.

The key point is that saying we want rule of law and judicial independence does not settle the question of how amd why we want them and what kind of judicial independence and rule of law we want. A secondary point is that judicial independence is completely distinct from rule of law -- having it does not guarantee rule of law, not having it does not defeat rule of law. Even a liberal democracy can ask, "how independent do we want our judges to be from democratic control" and can decide to subject judges to democratic control without ceasing to be liberal democracies. In other words, a liberal democracy can say, "We don't permit a man to rule, but the law; but we do permit people (or the People) to rule (or to rule themselves) through the democratic process as applied through the law."

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Post by Dianne »

[quote="Beathan":1gkcw9lp]Oni --

I mean that any system that gives too much independence to judges would be a bad system. I think that the amount and nature of judicial independence under the current Judiciary Act might give too much independence to judges. Therefore, I think that the current system is a bad system, but that is (I acknowledge) a debatable point.

I don't see that the current theory of judicial independence has ever been considered against alternative theories of judicial independence. Rather, the argument has been 1. judicial independence is good; 2. judicial independence is defined as follows "judges are a self-appointing, self-regulating, insular body of legal professionals who interpret and apply the general law in particular cases based on procedural law developed, with little or no outside oversight, by the judges"; 3. this system has that kind of judicial independence; 4. therefore, this system as good insofar as it has judicial independence.

Like so much else with the Judiciary Act, this theory of judicial independence was advocated by Ashcroft and accepted by the CDS for want of alternatives. The CDS, recognizing that Ashcroft had professional expertise that others lacked, deferred to Ashcroft's judgment on these matters, failing to consider other alternatives because no one had or could present them. We now have people who can and are presenting alternatives -- both to the Act as written and implemented and to the ideas and theories underlying the Act. The Commission exists to consider these ideas. Thus, we do need to answer the questions about what kind of judicial independence we want; why do we want that kind of judicial indpendence, rather than another kind; and how do we get the kind of judicial independence we decide we want.

Beathan[/quote:1gkcw9lp]Beathan, I agree with you in spirit but I am not sure if you have a really good argument for judicial "dependence." You are quite right however, (and Ashcroft is quite wrong) that the concept of judicial independence has not been explained very well in these forums.

Ashcrofts explanation/definition [i:1gkcw9lp]"...judicial independence is the independence of the judiciary ..." [/i:1gkcw9lp]is tautological, as you have instinctively noticed, and therefore meaningless as a definition. Also you are right that when most people are asked to define it, they *have* resorted to "why it's a good thing" arguments as opposed to actual definitions or plans. So if you thought you were going crazy, you are not! :)

The problem is that "judicial independence" is an [i:1gkcw9lp]ideal[/i:1gkcw9lp] rather than a thing. So that makes it both hard to define and impossible to lay out in any exact fashion. It is this confusion between judicial independence as an [i:1gkcw9lp]ideal[/i:1gkcw9lp], and the structure of the government and constitution required to [i:1gkcw9lp]get[/i:1gkcw9lp] it that is the main problem.

Another probblem is that although Ashcroft's high sounding words about the imperative nature of judicial independence are all well and good, in reality such pure independence is unobtainable. He doesn't lay out the [i:1gkcw9lp]exact[/i:1gkcw9lp] way in which we can [i:1gkcw9lp]get[/i:1gkcw9lp] this judicial independence because there really is no way to completely assure it.

Ashcrofts descriptions of [i:1gkcw9lp]"ensuring that judges have no motivation whatsoever in relation to the outcomes of any given cases"[/i:1gkcw9lp] and to have them appointed by people who [i:1gkcw9lp]"... cannot realistically have, any motivation whatsoever to tend to appoint judges who will decide cases in any given way"[/i:1gkcw9lp] are pure bombast. They should really have been phrased as the [i:1gkcw9lp]ideals[/i:1gkcw9lp] they actually are instead of as statements of fact or methods of operation which they certainly are not. It is that kind of blunt, literal, absolutist language that is the root of the confusion IMO.

All that being said, judicial independence is a good goal to shoot for. Anything that can be built into the system that is not too unwieldy or bureaucratic that tends to give judicial independence is usually considered to be a good thing.

However, we must also always keep in mind that any Judiciary system or Judge is going to be both dependent and biased to some degree. To believe otherwise is just hubris.

My opinion on Judicial independence is that we should be [b:1gkcw9lp]practical[/b:1gkcw9lp] about it. If the price of "close to complete" independence is a vast bureaucracy of rules and regulations and boards and committees, then we have to ask ourselves is it really worth it given the situation we find ourselves in?

IMO the Scientific council provided an excellent, impartial judicial function that was more than adequate for solving the day to day problems of 40 or so avatars in a sim. Given that I do not any longer believe to any large degree in the project of "exporting justice" to other sims and other citizens not members of the CDS, I find that the entire new "Judiciary" is too much bureaucracy for me given the tiny rewards it is likely to provide.
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Judicial independence

Post by michelmanen »

Beathan,

I never accused you or anyone else of advocating either apartheid or communism - which is why I deliberately wrote "This argument is a bit like..." - although I realise this is a nuance which is not immediately apparent to a superficial reading of my post. I actually meant to highlight in stark terms the redundancy of a theoretical discussion which takes little of no account of actual human experience with judiciary systems which failed to protect judicial independence and the rule of law. As Santayana aptly remarked, "Those who cannot learn from history are doomed to repeat it".

I clearly and explicitly acknowledge the difference between judicial independence and the rule of law in my comments above by the very fact that I state they can be more or less present or absent in a judicial system, in various configurations. In fact, such a difference is an important and integral component of my thesis: that BOTH are required in full measure in a well-ordered society based on principles of liberal democracy.

Finally, I am not aware of a true liberal democratic system of government where the rights of its individuals and communities are fully protected and where democracy in its true meaning of a deliberative means of goverment inclusive of all the members of that community and based on the validity of the best argument is upheld (rather than a crude understading of it as a blunt tool allowing the majority to rule as it pleases over the entire body politic) where judicial independence and the rule of law are not fully upheld - or one which, failing to do so, did not deteriorate over time into a less than fully democratic one. Perhaps you could enlighten me with a few such examples....

Michel
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