Agenda item 10: Citizens and non-citizens

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Agenda item 10: Citizens and non-citizens

Post by Justice Soothsayer »

[quote:2xvylaiv]10. Citizens and non-citizens
Up to now most of the discussion has assumed that the court will be used to result conflicts between citizens. In a case that involves a citizen and a non-citizen the citizen has much more to lose -- as much as hundreds of dollars invested in CDS properties, court costs, and reputation in their home community. Non-citizens may more easily file cases using an alt (because they are less well known), and at most risk banning from CDS regions. If a person is banned they can always re-enter using an alt. The Non-citizen has very little to loose. How can we preserve universal access to the courts while creating a level playing field? Can we protect citizens from cases filed for the purpose of retribution or to defame a citizen at very low risk by non-citizens? [/quote:2xvylaiv]
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Post by Beathan »

We should recognize that the SC has original trial court jurisdiction to hear disputes involving citizens and should develop a process under which citizens should have the right to seek removal of actions from the Judiciary to the SC.

This does not necessarily address the problem. However, I think that the SC is more likely to act as a court of equity and fashion a remedy that is balanced given the differences between the parties.

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Post by Oni Jiutai »

This may be something of an perennial problem, given the way SL is set up.

However, I think sensible use of strike out powers and orders to pay a deposit into court may keep it to a manageable level.
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Post by Ashcroft Burnham »

[quote="Beathan":3egnjzr7]We should recognize that the SC has original trial court jurisdiction to hear disputes involving citizens and should develop a process under which citizens should have the right to seek removal of actions from the Judiciary to the SC. [/quote:3egnjzr7]

The Scientific Council already authorotatively ruled against you on that one.
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Post by Ashcroft Burnham »

This issue has been addressed before - I addressed it at length long ago. Anybody who wishes to address the issue should search for my previous posts on the topic.

The simple answer is that the best way to prevent non-citizens from having an unfair advantage is, generally, to require them to pay a security for costs and, where a claim is made agaisnt them, a security in respect of compensation, failure to pay which should result in their claims being struck out. That was all in my original code of procedure: it is not in the new rules.
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Post by Dianne »

You are missing the obvious *other* possible solution which is that the law of the CS and the Judicial system should perhaps only apply to citizens of the CDS.

This whole idea of setting up a court and laws in one "country" and then saying (without any negotiation with those other "countries") that it applies to them too always struck me as particularly American.

Why should a law made in France apply to a citizen in Sweden or vice versa?

The only basis for this in RL is the European Union which is a specific setup and agreement that ensures that laws in one country do apply to citizens from another. The United Nations and the International Courts are more examples of such cooperation. In the absence of any of these inter-sim or "inter-country" agreements however, isn't the idea of our law applying to the whole of SL just a bit much?

If we set up a fantastic legal system and a fantastic political system, other "countries" or sims will join us. If it sucks they probably won't.

But to set it up ahead of time as some kind of perfect monument to justice that applies to non-citizens and citizens alike across all of SL is just more hubris IMO.
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Sovereignty and the rule of law

Post by michelmanen »

Dianne,

This analogy between iRL countries and sims is entirely inappropriate. Sims are not countries which maintain sovereignty over their territory and citizens.

In any case, even iRL the theory of sovereignty is braking down in the face of ever-more complex and pressing problems which need to be addressed together by some or all countries - such as the environment, security, human rights, intellectual property and so on. The European Union is only one particular institutional example in our attempt to deal with the dissonance between our outdated models of government baed on a territorially-defined, sovereign nation-state and the stark realities and problems of the early 21st Century.

This has nothing to do with an "American" view of the world; indeed, it is much more widespread in Canada and Western Europe than in an USA still very much concerned with its own sovereigny and independence from an increasingly complex and multi-layered international system of governance currently emerging in our post-soverign, globalising "3rd rock from the sun".
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Post by Ashcroft Burnham »

[quote="Dianne":1qdcy7cn]You are missing the obvious *other* possible solution which is that the law of the CS and the Judicial system should perhaps only apply to citizens of the CDS.[/quote:1qdcy7cn]

This is not a solution to a problem: it is a problem. The ultimate basis of our court's power is the ability to banish people. We want to be able to banish both citizens and non-citizens. There is no good reason why our powers of banishment should be exercised fairly, after proper judicial procedure, in the case of citizens, and exercised potentially capriciously in the case of non-citizens.

Since there is no good reason to believe that the principle of security for costs and other remedies will not work, there is no good reason to limit, quite artificially, our judicial system to only citizens. It may be noted that [i:1qdcy7cn]not a single other judicial system in the world[/i:1qdcy7cn], as far as I am aware, claims to limit its judisdiction to citizens: if you go to France, you can be dealt with by the French legal system; if you go to Australia, you can be dealt with by the Australian legal system, and so on.

I have already written before at length on this topic, and it is extremely tiresome to have to repeat myself. If we are to be taken serioulsy as an arbiter of commercial disputes, we need to be open and available to all, not just those privelidged few who happen to own land here. Do we not hope that, one day, the CDS will be big enough that banishment from it will be a real punishment for [i:1qdcy7cn]anybody[/i:1qdcy7cn] in SecondLife?

[quote:1qdcy7cn]This whole idea of setting up a court and laws in one "country" and then saying (without any negotiation with those other "countries") that it applies to them too always struck me as particularly American.[/quote:1qdcy7cn]

You misunderstand the principle: the idea is not that we regulate the behaviour of any two or more non-citizens off in their own part of the grid somewhere, but that we regulate all disputes that have some real bearing on citizens. It would create very serious problems indeed artifically to restrict our court's jurisdiction: the limit ought be the natural limit of the relevance of the power of banishment to the dispute. The constitution specifically provides that the court may resolve only "disputes capable of being resolved by the law of the CDS". That is the basis for our jurisdiction: a dispute between people wholly unrelated to the CDS does not fall within it. This is not imperialism: it is practicality.

[quote:1qdcy7cn]Why should a law made in France apply to a citizen in Sweden or vice versa? [/quote:1qdcy7cn]

They apply to a citizen of Sweden [i:1qdcy7cn]visiting[/i:1qdcy7cn] France.
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Post by Aliasi Stonebender »

[quote="Ashcroft Burnham":2tt2nxz2]
This is not a solution to a problem: it is a problem. The ultimate basis of our court's power is the ability to banish people. We want to be able to banish both citizens and non-citizens. There is no good reason why our powers of banishment should be exercised fairly, after proper judicial procedure, in the case of citizens, and exercised potentially capriciously in the case of non-citizens.
[/quote:2tt2nxz2]

Actually, there's a very good reason.

A Citizen has displayed at least some minor monetary investment into the CDS. A non-citizen has displayed nothing more than the ability to register a free alt account.
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Post by Gxeremio Dimsum »

[quote="Aliasi Stonebender":2t9nsotg][quote="Ashcroft Burnham":2t9nsotg]
This is not a solution to a problem: it is a problem. The ultimate basis of our court's power is the ability to banish people. We want to be able to banish both citizens and non-citizens. There is no good reason why our powers of banishment should be exercised fairly, after proper judicial procedure, in the case of citizens, and exercised potentially capriciously in the case of non-citizens.
[/quote:2t9nsotg]

Actually, there's a very good reason.

A Citizen has displayed at least some minor monetary investment into the CDS. A non-citizen has displayed nothing more than the ability to register a free alt account.[/quote:2t9nsotg]

This is a very strong argument, Aliasi. I have advocated elsewhere for the ability to be a citizen with some other kind of investment, and I think that is called for by those who wish to use our courts.

Otherwise, as you've said, it's like if someone with several aliases snuck across a national border and was tried under each of his aliases. What a waste of resources! Perhaps a better system would be that certain people could ban non-citizens easily, and those people could challenge their banishments if they wished. Citizen banishment would always need to go through trial.

As this debate goes on, it is seeming more and more likely that our judicial system will be a house of cards since our actual ability to enforce our rules is very minimal. When someone declares it a kangaroo court, or simply refuses to take part, that will be the end of it, and the incentive for actually taking part in the process will be almost nill. The question is how many people might leave or be forced out of the CDS in the process of discovering this to be so.
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Post by Ashcroft Burnham »

[quote="Aliasi Stonebender":1p1eoha1]Actually, there's a very good reason.

A Citizen has displayed at least some minor monetary investment into the CDS. A non-citizen has displayed nothing more than the ability to register a free alt account.[/quote:1p1eoha1]

That's a reason to have a rule on securies for costs and other remedies, not to make arbitrary limits on our jurisdiction, as I have now explained many, many times.
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Post by Ashcroft Burnham »

[quote="Gxeremio Dimsum":oup6d0fs]Otherwise, as you've said, it's like if someone with several aliases snuck across a national border and was tried under each of his aliases. What a waste of resources! Perhaps a better system would be that certain people could ban non-citizens easily, and those people could challenge their banishments if they wished. Citizen banishment would always need to go through trial.[/quote:oup6d0fs]

This is [i:oup6d0fs]precisely[/i:oup6d0fs] why we have the securities principle and the principle that the unsuccessful party in litigation pays costs to the court and to the other side, as well as fact, rather than notice, pleading. These fundamental principles that were devised after this concern was raised the first time around were unthinkingly and recklessly swept aside in the ultra-vague rules passed by the Representative Assembly recently.

It would work like this: a non-citizen does some wrong, and is summarily banished. A notice of summary banishment is served. If he or she doesn't respond to that notice, there is no trial because the case is uncontested: the court can make an order on the papers, and banishes the person. If the person responds, and is not a citizen, he or she will have to pay a security for court and litigant costs into the court, as well as a security against any compensation, fine (etc.) that he or she might have to pay the other party. If he or she wins her or his case, he or she gets the money back. If he or she loses, the court costs, litigant costs, and any compensation is duducted from that amount, and anything remaining is returned. If the person refuses to put up a security then, in all but the most exceptional of circumstnances, her or his notice in response would be struck out, and the case would proceed as an uncontested case, with an order made on the papers, and not trial.

If, therefore, a person were to come back many times as an alt and do the same thing, either the person could be banished easily each time on the papers without a trial, or the CDS would grow ever richer with all the fines, costs and compensation that the person would end up paying.

Of course, the new ultra-vague rules contain no such possibility, so this problem has returned in consequence of the legislature's reckless action in passing them. Now, in [i:oup6d0fs]every[/i:oup6d0fs] case, there has to be a pre-trial hearing, come what may, and no costs can be payable.
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Post by Beathan »

In responding (or not responding) to Aliasi's concerns about the real differences between citizens and noncitizens and whether those differences mean that we should consider treating these groups of people differently in our legal system, or dealing with them under different legal systems, Ash wrote [quote:2ryy056r]That's a reason to have a rule on securies for costs and other remedies, not to make arbitrary limits on our jurisdiction, as I have now explained many, many times.
[/quote:2ryy056r]

This appeal to repeated, prior explanation is becoming Ascroft's habitual response to criticism and questions. It is also an unsatisfying, even a vacuous, response.

I and others have noted the two most critical traits of a judge are character and judicial temperament. A key part of these traits is the ability to listen, understand, and respond. Ash does none of these. Rather, when someone criticises one of Ash's positions, analyzing it and pointing to problems with it or raising questions about it, Ash responds by explaining it again, rather than listening to the criticism and responding to it or by answering the question. When the person responds, with "you have not answered my question" -- or "I understand your explanation, but there is still this problem with your idea" -- Ash again explains his position, but does not listen.

We need our judges to listen. Justice is blind, not deaf. I'm afraid that Ash might be the opposite. This is certainly not a problem with the justice system in theory -- either in Ash's theory or in any other theory -- but it is a problem with the system in fact. Sometimes we have to get rid of perfectly good institutions because they have become dangerous in fact. Perhaps we are there with regard to our Justice System.

I know that in saying this I am moving from talking about institutions in the abstract to talking about concrete institutions run by real people. I am also mindful that this violates Gwyn's injunction to not do so. However, I think that while it is generally best to discuss Constitutions in abstract terms, sometimes we need to see how they actually work, and that necessarily involves us in considerations about who they work through. Thus, good policy discussion often involves Phillipics. Personality matters in actual fact, even if not in theory, and, as Michel tells us, we need to look at actual fact, not merely ideals and abstractions.

Beathan
Last edited by Beathan on Wed Dec 13, 2006 4:31 pm, edited 1 time in total.
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Post by Flyingroc Chung »

Under the current system, are non-citizens allowed to file suit against citizens?
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Post by Ashcroft Burnham »

Beathan, your above post consisted of nothing but an improper and unjustified attack on my character. The moderators will be notified.
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