Agenda item 9: Formalities and procedures

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

Moderator: SC Moderators

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

Agenda item 9: Formalities and procedures

Post by Justice Soothsayer »

[quote:3mh0k4vj]9. Formalities and procedures
Should the procedures mandate formalities that are not required to
operate the system? Should these be made optional?[/quote:3mh0k4vj]
Comments?
User avatar
Aliasi Stonebender
I need a hobby
I need a hobby
Posts: 585
Joined: Fri May 26, 2006 12:58 pm

Post by Aliasi Stonebender »

We should keep things simple; both for ease of use and to reflect the general informality of the world we're in, which is to say, SL.
Member of the Scientific Council and board moderator.
Oni Jiutai
Seasoned debater
Seasoned debater
Posts: 69
Joined: Thu Dec 07, 2006 3:42 pm

Post by Oni Jiutai »

Well, the procedures should certainly not mandate anything that isn't required to operate the system effectively and efficiently. </frivolity>

I'm not sure I have anything to add to what I've already said elsewhere, except that the procedural rules don't need to stand alone. As in RL I was expect simplified guides to the rules to emerge (indeed I intend to write one myself, once the procedure settles down to the point that I know what I'm writing about). That could provide accessibility while maintaining the advantages of a more complete procedural code.

Conversely, if we do have very simple written code, the gaps will need to be filled. I tend to to think that the gap filling will end up being much more trouble. I also worry that it'll lead to confusion as people try to merge different ideas about what legal procedure is / should be on the hoof.
User avatar
Patroklus Murakami
Forum Wizard
Forum Wizard
Posts: 1929
Joined: Fri Jun 02, 2006 5:54 pm
Location: Neufreistadt, Colonia Nova and Locus Amoenus and Locus Amoenus

Post by Patroklus Murakami »

Formalities that are not necessary? No, I see no reason to do that. I assume this means robes, forms of address etc. These are optional, in my opinion.

But there is an argument for having a comprehensive code of procedure that gives clear instructions for what you have to do in each circumstance. This needs to be supplemented with 'How To...' guides written in clearer English with a minimum of legalese. (The Codes of Procedure should also be written as clearly as possible but, if one is trying to be comprehensive in describing a legal system some legal terminology is probably unavoidable).

I'm happy to try out the simpler code of procedure recently passed by the RA. We'll soon learn if something more comprehensive is needed.

I don't see this as a major issue.
Beathan
Forum Wizard
Forum Wizard
Posts: 1364
Joined: Sun Oct 29, 2006 3:42 pm

Post by Beathan »

Pat --

As a person who deals with procedures for a living, I can assure you that this is a major issue.

We need, above all, to have flexibility in our system. We are doing something new. We don't know what will work. It is irrational, imo, to set detailed procedures until we know what will work. Thus, we need to be able to experiment with possible rules and options before we set any in detail. This means that we cannot and should not have, at this stage in our development of a Justice system, a detailed Code, which, by its detail, rules out options and forecloses experiment.

Further, I believe that any system we adopt will have to be able to accommodate our culture differences, rather than denying those differences by force-fitting litigants to routinized systems that might be foreign or even troubling or repugnant to them. For instance, I think that a dispute between two Americans can and should be resolved differently than a dispute between two Trobriand Islanders, which should be resolved differently than a dispute between and American and a Trobriand Islander. We don't have any Trobriand Islanders? Well, we might. Even though we don't, substitute any RL culture you wish and the logic applies.

Each cultures has its own traditions and institutions for dispute resolution. Those work in those cultures. They are not necessarily better than the English System. They are also not necessarily worse. The fact is, we don't know what will work and what won't. We don't even know all the options. Our system, at this stage, should invite ideas and test those ideas. The pretrial procedural hearing allows just this. A more rigid and detailed Code does not.

Eventually, once we have tried and tested various options, we might be ready to decide that some are better than others. Then, and only then, we should draft up a more detailed and rigid Code. We are not there yet. Note, I am not against having a detailed Code in theory (although I think we might find out that we don't actually want one because the cultural differences make it unworkable), I just think that, before we regulate an SL activity in detail, based on assumptions and ideas from RL, we need to try out all the options to see what works, and what works best, in SL.

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
Location: UK

Post by Ashcroft Burnham »

[quote="Beathan":eyddllt5]As a person who deals with procedures for a living, I can assure you that this is a major issue.

We need, above all, to have flexibility in our system. We are doing something new. We don't know what will work. It is irrational, imo, to set detailed procedures until we know what will work. Thus, we need to be able to experiment with possible rules and options before we set any in detail. This means that we cannot and should not have, at this stage in our development of a Justice system, a detailed Code, which, by its detail, rules out options and forecloses experiment.[/quote:eyddllt5]

This argument is contradictory: you argue that we do not know what will work, and then, in the very next clause, claim that what will work is a system in which there are very few written procedures. How are you able to conclude that such a system will work if you are unable to conclude that any given detailed set of rules will work? Do you believe that we are aiming for a detailed set of rules eventually? If so, how eventually? Why is starting from nothing and hoping that something will fall into place of its own accord better than starting with something detailed and carefully planned and adjusting those details as necessary?

Experiment is not foreclosed by having detailed rules any more than it is foreclosed by not having detailed rules, as not having detailed rules prevents there being any experiment as to whether having detailed, universal rules works better than not having detailed, universal rules.

Having few rules is not all options: it is one option.
Ashcroft Burnham

Where reason fails, all hope is lost.
Gxeremio Dimsum
Veteran debater
Veteran debater
Posts: 205
Joined: Fri Jun 30, 2006 6:37 pm

Post by Gxeremio Dimsum »

[quote="Ashcroft Burnham":3lm68di5]Experiment is not foreclosed by having detailed rules any more than it is foreclosed by not having detailed rules, as not having detailed rules prevents there being any experiment as to whether having detailed, universal rules works better than not having detailed, universal rules. [/quote:3lm68di5]

To me this is akin to telling Thomas Edison that he could experiment with one kind of lightbulb filament, and he needed to get it right the first time. Why not try many kinds of filaments (as he did) until he discovered the carbon filament as the best improvement to the lightbulb, which before his time had only been able to work for short amounts of time?

In other words, why assume we CAN know the one best answer to how to conduct trials in SL when we all recognize it's an experiment at some level? The more documented experimentation, the better.
User avatar
Ashcroft Burnham
Forum Wizard
Forum Wizard
Posts: 1093
Joined: Thu Aug 03, 2006 3:21 pm
Location: UK

Post by Ashcroft Burnham »

[quote="Gxeremio Dimsum":259gjgu9]To me this is akin to telling Thomas Edison that he could experiment with one kind of lightbulb filament, and he needed to get it right the first time. Why not try many kinds of filaments (as he did) until he discovered the carbon filament as the best improvement to the lightbulb, which before his time had only been able to work for short amounts of time?[/quote:259gjgu9]

Because you are wrongly assuming that there is a meaningful parity between testing lots of different sorts of lightbulbs and having legal rules that are not clear and precise. Having legal rules that are not clear and precise is [i:259gjgu9]one[/i:259gjgu9] option. It is not like the lightbulb scenario, where the experimentation is very different from the product itself: a more accurate anology would be suggesting that, becaue one cannot be certain what sort of lightbulb filament will work the best, [i:259gjgu9]all[/i:259gjgu9] lightbulbs should be made with lots of bits of different filaments fused together. That lightbulb, of course, may be worse than any one type of filament. Similary, a legal system in which the rules are different for each case, and have to be worked out in advance, may be a worse system than one with any given specific set of rules. Furthermore, arriving at any given set of rules through a system of having to work them out as one goes al0ng is a very different thing to having those rules as the universal rules to start with. The experiment is, therefore, simply not testing the same thing.

[quote:259gjgu9]In other words, why assume we CAN know the one best answer to how to conduct trials in SL when we all recognize it's an experiment at some level? The more documented experimentation, the better.[/quote:259gjgu9]

We certainly can know that there will be a great many similarities between litigation here an in the first life. Indeed, what we do know is that the differences are in many respects trivial: it is still the application by people of legal rules created by people to people using other rules also created by people, in a formal setting, with the function of resolving conflict, using formal adjudiction backed with the ultimate possibility of penal sanctions. That is exactly the same in SL as it is in the FL, and those are the most defining characteristics of law. The only difference is that the physical environment is computer-generated and virtual, rather than being real. The people, however, although they interact through the virtual environment, are real. There is no reason to believe that the difference in the environment alone should cause a radical difference in the way in which dispute resolution with rules of the sort described above works.
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

The virtual vs the physical

Post by Diderot Mirabeau »

[quote="Ashcroft Burnham":pcv7royk]The only difference is that the physical environment is computer-generated and virtual, rather than being real. The people, however, although they interact through the virtual environment, are real. There is no reason to believe that the difference in the environment alone should cause a radical difference in the way in which dispute resolution with rules of the sort described above works.[/quote:pcv7royk]
Pardon me, but it is my impression that there are a few qualitative differences between the virtual environment and the real one, which have or can have an impact on how one needs to form one's code. Whether they are substantial enough to decide the dispute between the two of you in the above matter is not for me to say as it would require further analysis. Nevertheless, consider the following examples:
- Timezone problems wrt drafting jurors
- IM and Witnesses' ability to coordinate statements
- Alts and the problem of enforcement of court orders
- Economy of micro payments and the problem of establishing sufficient incentive for ordinary people to spend their free time studying an extensive code as judges, lawyers, parties to the case

I wrote a bit more about the potential implications of this in a [url=http://forums.neufreistadt.info/viewtop ... 7:pcv7royk]previous post[/url:pcv7royk] (see under C.5)

I am sure more differentiating circumstances can be found if one thinks hard enough or goes through the observations unearthed in our many discussions. I do however consider the above to be sufficient to establish that the difference between a virtual and physical environment may well be a non-trivial issue when it comes to designing a judiciary.
User avatar
Ashcroft Burnham
Forum Wizard
Forum Wizard
Posts: 1093
Joined: Thu Aug 03, 2006 3:21 pm
Location: UK

Re: The virtual vs the physical

Post by Ashcroft Burnham »

[quote="Diderot Mirabeau":x90y3r41]Pardon me, but it is my impression that there are a few qualitative differences between the virtual environment and the real one, which have or can have an impact on how one needs to form one's code. Whether they are substantial enough to decide the dispute between the two of you in the above matter is not for me to say as it would require further analysis. Nevertheless, consider the following examples:
- Timezone problems wrt drafting jurors[/quote:x90y3r41]

This is an issue no greater for the judiciary than for any other kind of organisation that involves participation of many people. StarFleet was able to muster a jury.

[quote:x90y3r41]- IM and Witnesses' ability to coordinate statements[/quote:x90y3r41]

This is not as significant as it might appear at first. In the first-life, there are many ways for witnesses to co-operate to fabricate testimony. The way that that is dealt with is by examining the testimony of those witnesses. The fact that this is a possible feature of SL is something that fact-finders must bear in mind. However, it is unclear what particular differences that you think that this ought to make. All that this tells us is that it is harder to work out who is telling the truth in SecondLife. That was always going to be the case. It is not easy in the first life, however, and making it a little harder again is not something that fundamentally undermines the basic tenets of a judicial system

[quote:x90y3r41]- Alts and the problem of enforcement of court orders[/quote:x90y3r41]

I have dealt with this a very great many times in the past, in considerable detail. As exaplained in my many, many posts past, the way of dealing with this is to require securities for non-citizens. We will never be able to enforce anything as effectively as a legal system that can send people to prison in the first life, but we can certainly be more than effective enough to be worthwhile.

[quote:x90y3r41]Economy of micro payments and the problem of establishing sufficient incentive for ordinary people to spend their free time studying an extensive code as judges, lawyers, parties to the case[/quote:x90y3r41]

There is no reason that judges and/or lawyers would not want to spend time on cases: that is why they are there in the first place. It is also a pervasive feature of the SecondLife economy that the money:person-time ratio is far, far lower than in the first life. As to parties, what is at stake is usually a great deal more than a micropayment. The system that I had designed, however, in the code of procedure was such as to enable cases to be dealt with as expeditiously as possible, without an oral hearing unless there was a real dispute. A well-written guide to the codes will make it easy for people to learn what they need to know about it for the more straightforward cases. The current ultra-vague codes mandate hearings in every case to discuss what procedure to apply. That will definitely mean that people will have to spend disproportionate amounts of time on cases.
Ashcroft Burnham

Where reason fails, all hope is lost.
User avatar
Ashcroft Burnham
Forum Wizard
Forum Wizard
Posts: 1093
Joined: Thu Aug 03, 2006 3:21 pm
Location: UK

Re: The virtual vs the physical

Post by Ashcroft Burnham »

[quote="Diderot Mirabeau":1z9f4h7z]
I wrote a bit more about the potential implications of this in a [url=http://forums.neufreistadt.info/viewtop ... 7:1z9f4h7z]previous post[/url:1z9f4h7z] (see under C.5)[/quote:1z9f4h7z]

That seems to have been posted some time before I joined. Having read it, it is rather interesting in several respects, in particular, the following:

[quote:1z9f4h7z]) The SC should be an independent and impartial entity with the power to review the decision of any government body that affects the interests of a citizen

As individual members of the SC do not have a democratic mandate tThe SC as an institution should not become an active "political player" and must therefore only initiate proceedings and possibly intervene at the request of one or more plaintiffs.

In order for the SC to be able to check the power of the other branches it should continue to be endowed with the power to review every decision made by a government official that affects a citizen using the Constitution as its legal and ethical foundation.

To remain independent and not need to seek "political goodwill or reward" the members of the SC should not have the renewal of their terms be dependent on the acceptance of other branches of government.

2) Since the Constitution is the most important constraint on the exercise of the powers of the SC, the SC should have its powers to restrict modification of the Constitution constrained or kept in check by another entity - preferably the people

3) Impeachment is too blunt and stigmatising an instrument to be used in our community for anything but the most gross illegality and incompetence - it is therefore not useful in cases of disagreement in substance between branches of government. A seperate procedure is needed.

4) In the interpretation of the meaning of specific clauses in the Constitution or any other acts the Scientific Council will only take into account the actual wording of the legislation plus any other statements made at the time when the bill was proposed.

An author of an act or a legal document cannot claim any kind of special ability to interpret the meaning of a passage in the constitution or any other legislation that he or she wrote originally. It is rather obvious that if this privilege be granted to authors of legislation they remain free to re-interpret the wording of the bill in the indefinite future to promote their own interests. This has been attempted already. If the intention of a bill has not been made clear at the point of presentation before the RA then it was not present and the SC must interpret it accordingly.[/quote:1z9f4h7z]

Much of what you wrote about the Scientific Council applies to the judiciary (especially "[i:1z9f4h7z]To remain independent and not need to seek "political goodwill or reward" the members of the SC should not have the renewal of their terms be dependent on the acceptance of other branches of government[/i:1z9f4h7z]"), and some of it, such as, "[i:1z9f4h7z]In the interpretation of the meaning of specific clauses in the Constitution or any other acts the Scientific Council will only take into account the actual wording of the legislation plus any other statements made at the time when the bill was propose[/i:1z9f4h7z]", has a direct bearing on the current debate on the role and function of the SC.
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

Re: The virtual vs the physical

Post by Diderot Mirabeau »

Thanks for taking the time to reply to my contribution in detail and even reading from my backlog of posts.

However, as I'm sure you agree I was not taking issue with whether or not the/a judiciary could overcome the special challenges raised by the differences between a virtual and a physical environment. I was rather pointing out that there are indeed differences between the two that merit some special tweaking of a judiciary system for it to fit in the context.

With regard to your statement that particular content of my imagined party manifesto is interesting because it has direct bearing on the role of the SC I am a bit disappointed: I thought when I first read your statement of it being interesting that you intended to say that you found it useful. However, I am a bit at a loss to see how that might be the case as you do not elaborate on how you would find it useful - so clearly you must be thinking of some other meaning in which it has a "bearing on the debate"?

By the way if you find that you are repeating yourself inevitably in these debates why not take some time to set up your own Wiki where you can publish definitive theses and whitepapers detailing your view on certain topics that you find to be recurring in the debates. That way instead of having to choose between the alternatives of saying "I've pointed this out many many times" or spending a lot of time using the rather ineffective search tools to find the exact post where you produced your first exposition of the topic for reference in your reply you can instead link to your treatise on the wiki. This will also be good exercise for using a Wiki for the coming judiciary to document court rulings in a precedence repository and to make the code of procedure more accessible?
User avatar
Ashcroft Burnham
Forum Wizard
Forum Wizard
Posts: 1093
Joined: Thu Aug 03, 2006 3:21 pm
Location: UK

Re: The virtual vs the physical

Post by Ashcroft Burnham »

[quote="Diderot Mirabeau":3s1g0e2w]Thanks for taking the time to reply to my contribution in detail and even reading from my backlog of posts.

However, as I'm sure you agree I was not taking issue with whether or not the/a judiciary could overcome the special challenges raised by the differences between a virtual and a physical environment. I was rather pointing out that there are indeed differences between the two that merit some special tweaking of a judiciary system for it to fit in the context.[/quote:3s1g0e2w]

Ahh, I see. Well, that makes more sense. I think that we disagree on the extent of adaptation necessary, but I think that we both agree that [i:3s1g0e2w]some[/i:3s1g0e2w] adaptation is necessary, but that a substantial amount of what works in RL will also work in SL - is that a fair summary?

[quote:3s1g0e2w]With regard to your statement that particular content of my imagined party manifesto is interesting because it has direct bearing on the role of the SC I am a bit disappointed: I thought when I first read your statement of it being interesting that you intended to say that you found it useful. However, I am a bit at a loss to see how that might be the case as you do not elaborate on how you would find it useful - so clearly you must be thinking of some other meaning in which it has a "bearing on the debate"?[/quote:3s1g0e2w]

Sorry if I was unclear: I found it interesting because it is about exactly the same thing as we are having a debate about now, i.e. whether the old "not bound by a strict and literal interpretation" clause was a good or bad thing, what it entailed, and what the consequences of removing it have been. I was pleasantly surprised to find that you had, in a forum post made before I even arrived, expressed a position that almost entirely agreed with mine on the matter.

[quote:3s1g0e2w]By the way if you find that you are repeating yourself inevitably in these debates why not take some time to set up your own Wiki where you can publish definitive theses and whitepapers detailing your view on certain topics that you find to be recurring in the debates. That way instead of having to choose between the alternatives of saying "I've pointed this out many many times" or spending a lot of time using the rather ineffective search tools to find the exact post where you produced your first exposition of the topic for reference in your reply you can instead link to your treatise on the wiki. This will also be good exercise for using a Wiki for the coming judiciary to document court rulings in a precedence repository and to make the code of procedure more accessible?[/quote:3s1g0e2w]

LOL! "The World According to Ashcroft" Wiki? ;-) An intriguing idea.
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

Re: The virtual vs the physical

Post by Diderot Mirabeau »

[quote="Ashcroft Burnham":3s5fksev]I think that we disagree on the extent of adaptation necessary, but I think that we both agree that [i:3s5fksev]some[/i:3s5fksev] adaptation is necessary, but that a substantial amount of what works in RL will also work in SL - is that a fair summary?[/quote:3s5fksev]
I'd be inclined to agree, yes!

[quote="Ashcroft Burnham":3s5fksev]Sorry if I was unclear: I found it interesting because it is about exactly the same thing as we are having a debate about now, i.e. whether the old "not bound by a strict and literal interpretation" clause was a good or bad thing, what it entailed, and what the consequences of removing it have been. I was pleasantly surprised to find that you had, in a forum post made before I even arrived, expressed a position that almost entirely agreed with mine on the matter.[/quote:3s5fksev]
Yes it's not often that it happens is it? Well, I am sorry to have to disappoint you but I think technically it is possible to advocate a conservative approach to the handling of one's mandate (i.e. an approach where in the interpretation leading up to one's verdicts one consults closely with the text and does not lay claim to some sort of divine inspiration or political motivation) while still desiring the retainment of that particular clause of the Constitution. The sense I'm trying to make is hopefully this: The SC is not seldomly navigating in uncharted waters, when it has to perform interpretations of ramifications of particular passages in acts and in these cases it is almost unavoidable to draw to some extent on one's experience in perceiving what the (possibly unintended) consequences of an act may be in relation to the (possibly unstated) intentions of the founding fathers. Since this is bound to happen I think it is more fair and honest to retain the clause in the constitution for the citizens to see and know about rather than the present status quo where we may well end up doing the same thing but making sure our verdict is not so controversial as to elicit impeachment proceedings.

[quote="Ashcroft Burnham":3s5fksev]LOL! "The World According to Ashcroft" Wiki? ;-) An intriguing idea.[/quote:3s5fksev]
Well why not. Gwyneth has been doing something similar for some time now. And it may well save you some time at the end of the day!
User avatar
Ashcroft Burnham
Forum Wizard
Forum Wizard
Posts: 1093
Joined: Thu Aug 03, 2006 3:21 pm
Location: UK

Re: The virtual vs the physical

Post by Ashcroft Burnham »

[quote="Diderot Mirabeau":i9jq4bls]Yes it's not often that it happens is it? Well, I am sorry to have to disappoint you but I think technically it is possible to advocate a conservative approach to the handling of one's mandate (i.e. an approach where in the interpretation leading up to one's verdicts one consults closely with the text and does not lay claim to some sort of divine inspiration or political motivation) while still desiring the retainment of that particular clause of the Constitution. The sense I'm trying to make is hopefully this: The SC is not seldomly navigating in uncharted waters, when it has to perform interpretations of ramifications of particular passages in acts and in these cases it is almost unavoidable to draw to some extent on one's experience in perceiving what the (possibly unintended) consequences of an act may be in relation to the (possibly unstated) intentions of the founding fathers. Since this is bound to happen I think it is more fair and honest to retain the clause in the constitution for the citizens to see and know about rather than the present status quo where we may well end up doing the same thing but making sure our verdict is not so controversial as to elicit impeachment proceedings.[/quote:i9jq4bls]

I understand that it would indeed have been techincally possible to retain that clause, whilst the Council made decisions only by reference to the text: real-life judges draw on their life experience all the time. However, the big problem was that the clause was dangerous: a Scientific Council who [i:i9jq4bls]wanted[/i:i9jq4bls] to use it to forward a policy agenda could have done. Gwyn has confirmed that she considered that the old clause legitimated that very thing. If the SC has tended traditionally to interpret that clause as meaning "we'll do what we like", then the only thing to do is get rid of it. Note that the Judiciary Act did not replace it with a clause saying "The Scientific Council [i:i9jq4bls]is[/i:i9jq4bls] bound by a strict and literal interpretation".
Ashcroft Burnham

Where reason fails, all hope is lost.
Locked

Return to “Special Comission on the Judiciary Forum”