[b:2ud2q8cf][u:2ud2q8cf]History[/b:2ud2q8cf][/u:2ud2q8cf]
I came to SecondLife in order to craft a judicial system after having read an article in the [i:2ud2q8cf]New Scientist[/i:2ud2q8cf] about SecondLife, the need for the rule of law, the failed Superior Court of SecondLife experiment, and the rise of self-governing communities as a source of co-ordination and dispute resolution. I was fascinated by the idea of using my legal expertise to [i:2ud2q8cf]start afresh[/i:2ud2q8cf], with an entirely new legal system in hitherto uncharted territories.
I happened upon Neufreistadt: then, and now, the only democratic nation in SecondLife. I talked to a few people, I remember in particular talking to Gwyn very early on, and it transpired that they acknowledged the need for this community to have a fresh judiciary. In the hope of helping to develop one, and being its first judge, I joined it, and set about the work of developing a judicial system. I posted on the forum with some ideas for discussion, but few people responded to it. Somebody suggested that I just write the proposed legislation, which I did.
That legislation, the Judiciary Bill, as then it was, raised a number of controversies. Chief amongst them was the selection mechanism for judicial office. A number of those who came from the United States of America favoured a political selection process of either popular election or appointment by political office. I, and some others, who come from countries where the importance of judicial independence is more clearly recognised, favoured a judicial system that could not be influenced by popular opinion, and set out in the forums detailed and carefully considered reasoning in favour of that.
There was a great deal of debate on that and other aspects of the judiciary proposals. As Claude has mentioned, all agreed that some form of judiciary was needed. The debates were about many of the details of implementation. After the longest and most intense debate in the history of what is now the CDS, the current Judiciary Act was passed. In it was contained the key compromise on judicial selection that forms part of the present constitution. It was not proposed by me: it was proposed by Moon Adamant, although I modified the details to make it fit the structure of the Act, and the legislature passed it in that form.
The structure of the compromise was to let the existing judges decide the list of who may be [i:2ud2q8cf]qualified[/i:2ud2q8cf] to be a judge, and let a popular, but non-partisan body, the Public Judiciary Scrutiny Panel, choose who of those qualified judges should be appointed. That gave both the existing judiciary and a popular body a decisive say in who may be a judge. Judicial independence was preserved, because the PJSP is a non-partisan body, and the problem of purely popularist mechanisms selecting judges based on their popular appeal, rather than their judicial merit, meaning that the qualities that one needs to be appointed as a judge vary wildly from the qualities that one needs to [i:2ud2q8cf]be[/i:2ud2q8cf] a judge, widely recognised as a key problem with popular systems of appointment, is avoided. These issues were all expressly discussed at length in the debate, as was the issue of judicial term of office, when the argument was put forward, and ultimately accepted by the legislature in giving judges life terms, that judges who are need to be re-appointed regularly might decide cases based on what they think will please those who have to re-appoint them, rather than the inherent merits of the cases themselves.
There then arose the issue about what to do about appointing the [i:2ud2q8cf]first[/i:2ud2q8cf] judges, since the system as described above could only work when there were already judges. That was also true of the original proposal that I had made, which involved all judges being appointed directly by the Chief Judge. My original proposal provided that the Scientific Council (as the least partisan of all governmental bodies) should appoint the Chief Judge, and the Chief Judge should appoint all other judges. When the Judiciary Bill was revised to encompass the compromise on judicial appointments reached above, the Bill provided for substitute bodies for when there were no members of the PJSP, and/or no existing judges. The SC would stand in place of the existing judiciary (being a non-electoral, non-partisan body), and the Representative Assembly would stand in place of the PJSP (being an elective, popular body). A requirement was added that elections for the PJSP be held whenever there are vacancies to ensure that the RA had no power to prevent the PJSP from running, and therefore take the power of appointment of judges for itself.
As to the position of Chief Judge, the original idea in Moon Adamant's proposal had been for the Scientific Council to qualify, and for the Representative Assembly to appoint, the Chief Judge as a separate office from an ordinary judge, in a similar way to that in which my original proposal had worked. I thought that that did not look sufficiently far into the long term, since, once the judicary was up and running, it would be unnecessary and undesirable for the Scientific Council to get involved in furhter judicial appointments, when all other judicial appointments were handled by a board of the existing judiciary. I proposed instead that the office of Chief Judge not be separately qualified and appointed by the external bodies, but that the Board of the Judiciary Commission choose who to appoint as the Chief Judge from within its own ranks.
One of the early criticisms that had been made of my proposal was that it would be likely to collapse because insufficient people could be found to fill all the roles. Jon Seattle of the CSDF was a leading proponent of that view. To meet that criticism, the system was expressly designed to be able to work with as few people as possible: one judge/Chair of the Judiciary Commission and perhaps one clerk. Later on, Justice Soothsayer insisted that the Judiciary Bill be changed to require that the Chief Judge and Chair of the Judiciary Commission be held by separate people. I was concerned that there would not be anyone willing to do what would ultimately be a very boring and routine administrative job of being Chair of the Judiciary Commission, but Justice brought his real-life work colleague, Publius Crabgrass, into Neufreistadt as a citizen, and he willingly took on the role.
Working on the assumption, reasonably, because of the concerns that had in the past been expressed about the number of people required to operate the system, and because a person who had also been willing to be a judge (Publius) had gone instead for the position of Chair of the Judiciary Commission, and that there were only two cases then outstanding, that we would only have one judge for at least a month or two (I had hoped to be able to have a second judge soon, and perhaps more thereafter), I started to do what was necessary to get the judicial system working, as there was, and still is, a very great demand for. Having a working judicial system required a Chief Judge. to set rules of procedure and allocate cases. In any event, the system of appointment of Chief Judge that I had proposed was always designed to have the same effect as the system that Moon had proposed as far as the very first appointment was concerned: instead of the SC and the RA expressly appointing the first Cheif Judge, they would appoint a single judge, who, being the only judge, would have to appoint himself the Chief Judge. With that in mind, I duly appointed myself Chief Judge, in the belief that we were not likely to require further judges for some time.
Knowing that there were cases pending, judicial procedure was my first priority: the qualification requirements would only be needed if we were going to appoint more judges, and the code of ethics, whilst important, was not something whose absence prevented cases from being heard. I prioritised accordingly. Then, Publius, to my surprise, announced only a few days after I was appointed that the the quota of judges should be three. Given that there were still only two cases pending, I still believed that the priority was judicial procedure, and acted accordingly. It was only when Publius urged upon the legislature a resolution proposing changes to the constitution that would reverse the hard-won compromise on judicial appointments and independence did I set about designing the qualification requirements and procedures that the judicial appointments compromise required of me.
Indeed, given the way in which the constitution was framed, nobody else had the power to do that: it [i:2ud2q8cf]had[/i:2ud2q8cf] to be the existing Judges of Common Jurisdiction, i.e., me. To get more judges, as Publius had determined should be done, I would have to draft and publish qualification requirements, and then assess applicants for qualification according to those requirements to determine who should be qualified. If I did not do that, then no more judges would or could be appointed.
So, I set about the task of writing the qualification requirements and the application questionairre. I put the qualification requirements out for public consultation (there is not a specific constitutional duty to do so: I did it because I believe that many heads are better tha one). There were a number of responses: most of them made vague and generalised criticisms about the fact that the qualification requirements set high standards. Chicago Kipling made a more specific point about the way in which I phrased the English language requirement, and I rephrased that in the final draft in consequence.
I did not seek feedback on the questionnaire itself because to do so would potentially defeat the purpose of having such an assessment, since discussion of the questions would give candidates hints as to how they should be answered, whereas the idea of the questionnaire was to ensure that candidates' own, independent abilities were assessed.
Nonetheless, a number of people, most notably Beathan Vale, one of the people who had been attracted to the CDS as a whole in part because of our judicial system, made comments about the questionnaire on the thread seeking feedback on the qualification requirements. Beathan's main criticisms were (1) that the questionnaire was too lengthy (a criticism shared by one or two others), and (2) that, in asking hypothetical questions, the questionnaire was asking candidates to pre-judge cases in ways that might unethically prejudice their decisions in a similar case if it arose before them in court. I did not agree with the substance of either criticism.
The second has been discussed enough, and I do not need to repeat that dialogue here. As to the first, the questionaire was quite purposely thorough. As explained above, one of the most important purposes of the judicial appointments compromise was to ensure that candidates for judicial office were appointed on their ability to be judges, rather than on their popularity. I have always believed, and, throughout the debate on judicial appointments, have made clear that I believed, that judicial office requires considerable judicial skill. Without it, unskilled judges, who make unjust and unpredictable decisions in cases might well be appointed. That would undermine the effectiveness in and public trust of the judiciary: it would be a disaster. The appointment of skilled judges cannot be assessed effectively by a cursory test: it must be assessed thoroughly. So, I defended the system that I had put in place, explaining the reasons that I believed that it was justified.
As Diderot pointed out on one occasion also, it did not make any sense to make revisions to the questionnaire during the currency of a formal process of appointments. Given the extensive feedback that I have received, if it proves to be the case that, after a reasonable period of time has elapsed for potential candidates to complete their forms, not enough candidates do so, I would revise the qualification system. As I pointed out on that thread, it is (quite unavoidably) untested. As it happens, the present position, so far as I am aware, is that one person has probably already completed the questionnaire, and one other person is able to do so if he is granted a week's extension of the deadline (such extension was expressly contemplated when I first published the questionnaire). If both of those people do, in fact, complete questionnaires, and are thereby qualified, I will have fulfilled my duty in respect of the quota of judges set by Publius. Once new judges are appointed, of course, those new judges will have as much of a say as I in the qualification requirements and procedures.
[b:2ud2q8cf][u:2ud2q8cf]Where we are now and the way forward[/b:2ud2q8cf][/u:2ud2q8cf]
One of the criticisms that has been levelled against me by a number of people is poor response to feedback. Whilst it is true that I often strongly disagree with those who give feedback, I do not think that the criticism is, in the circumstances, a fair one. As stated above, one of the critical reasons for having the existing judiciary set the qualification requirements was to preserve judicial [i:2ud2q8cf]independence[/i:2ud2q8cf]: that is, the principle that judicial selection ought not unduly be influenced by popular opinion. The great compromise on judicial appointment entailed a recognition that some popular input into judicial selection was desirable, but, at the same time, that, at least when assessing judicial skill, what should count is the opinions of existing judges, legal experts, not the non-expert popular opinions. Just as a judge must, when deciding a controversial case, put out of her or his mind the popular opinion about how a case should be decided, and focus only on the merits, so, when determining the requirements for judicial qualification, the judiciary must do what they genuinely believe to be right, even if it is unpopular. It was because I genuinely believed – and still do – that the current questionnaire is duly, not unduly, rigorous, and that hypothetical questions are not unethical, but a valuable tool for assessing judicial candidates that I defended the questionnaire on what has become, largely because of the tendency of Beathan and I to respond quickly and not to give up in a debate, rather than anything else, one of the longest threads in CDS forum history.
However, amongst all the clamour for re-opening the great compromise on judicial selection, and undoing the result of the most intensive debate in CDS history, and going back on the principles of judicial independence (recognised in a recent decision of the Scientific Council) that were guaranteed thereby, there also seem to be people whose principal concern is nothing more than the fact that the (necessarily) great powers of the Board of the Judiciary Commission should fall into the hands of a single person. I can understand why people might be concerned about such a thing: there is, after all, safety in numbers. That is why juries have (in different jurisdictions) 8 or 12 people, why appeal courts generally sit with three, rather than one, judge(s). As explained above, the present position of having just one judge was undoubtedly reached because we did not realise the number of people who would be willing and able to serve on our judiciary: in other words, we greatly underestimated our own success and popularity.
Nevertheless, whilst the drafting and passage of the Judiciary Act, the subsequent appointment of me as the only judge, and my work since then to discharge the duties that the constitution places upon me by virtue of being the only judge were all done in good faith, I accept that the concern about having a single person exercising all the power of the Board of the Judiciary Commission is one that needs to be addressed. Claude's “Judiciary Oversight†proposal appears to be an attempt to address that. It has some problems in its detail, however: for example, by giving the Scientific Council the right of veto over certain actions of the Board of the Judiciary Commission, it creates the possibility of an impasse between the Board and the SC: if the Board proposes, for example, qualification requirements, and the SC rejects them, there will be no qualification requirements at all, and, in theory, the SC could reject every proposal that the Board makes. Also, the power to over-ride the codes of procedure is already built into the constitution because the codes rank below primary legislation as a source of law. That means that the RA can pass its own laws regulating procedure, which over-ride any general directions on procedure issued by the Chief Judge. There is no need to add a layer of complication and bureaucracy in giving yet a third body, one with neither the expertise of the judiciary, nor the democratic mandate of the legislature, the power to veto the codes of procedure. The RA's power to over-ride them with legislation is enough.
As to the code of ethics and the qualification requirements and procedures, a far better, simpler and more elegant solution to avoid the one-man-band judiciary about which many people are concerned is to give the Dean of the Scientific Council the power to appoint members of the Scientific Council to the Board of the Judiciary Commission to make up its numbers to three whenever its numbers are less than three. Any incoming Judges of Common Jurisdiction increasing the Board's numbers would then displace the members of the Scientific Council. The Dean would decide who should go. Those special members of the Board would have all the power of Judges of Common Jurisdiction in respect of actions of the Board, and would thus have an equal say on the code of ethics and qualification requirements and procedures (and, indeed, if there was only one judge, would be able to outvote her or him on the matters), whilst maintaining the long-term independence of the judiciary by retaining the original function of the board when there are at least three members. I will draft an amendment to Claude's Judiciary Oversight Bill which will hopefully achieve that. Such a system should strike a balance between addressing the understandable concern at having a great deal of power vested in a single person (albeit temporarily), and preserving the carefully designed structure and vital independence of the judiciary. It will not necessarily appease all of those who call for, for example, elected judges with fixed terms, but the compromise struck on that issue so recently in the past should stand: none of the recent events, or the concerns about a single person possessing all of the power of the Board of the Judiciary Commission, lend any extra weight to the arguments that were, when the issue was last debated, rejected in favour of the principle of judicial independence, albeit checked by a popular body, embodied in the great compromise. Democracy, after all, is about compromise: since I am prepared to compromise (and, as detailed above, have been in the past), so should those who oppose the present arrangements also be so prepared.
[b:2ud2q8cf][u:2ud2q8cf]Achievements of the judiciary so far[/b:2ud2q8cf][/u:2ud2q8cf]
Those who are seriously considering abolishing the entire judiciary should consider what it has achieved in its short life so far, before even having heard its first case. It has, at the very least, in part, attracted no fewer than [i:2ud2q8cf]six[/i:2ud2q8cf] citizens to the CDS (excluding me), and promises to attract about three more in the near future. That is [b:2ud2q8cf]more than 10% of our entire population[/b:2ud2q8cf] who are or will soon be here in consequence of the judiciary. We have been featured in the SecondLife Business Magazine, on BBC Radio, and in the Kuurian Expedition (which itself might well have attracted two further citizens). It has caught the attention of Professor David Post, a leading expert on the law of virtual worlds (whom the BBC radio programme had interviewed in the previous week to the item in which I was interviewed), who plans to come and visit us when he returns from the place where he currently has a dialup connexion. It was prompted no fewer than [i:2ud2q8cf]two[/i:2ud2q8cf] people quite independently to suggest, and be serious about attempting to, set up a securities exchange in the CDS. It has even managed to get the infamous Prokofy Neva worried that the system will be so successful that Linden Lab will, in his words, “do a GOM on itâ€, and adopt it for the [i:2ud2q8cf]whole of SecondLife[/i:2ud2q8cf].
This project is bigger than a few internal squabbles over judicial qualification procedures should ever be able to interfere with it. Anyone seriously contemplating abolishing half a year's worth of work over such a thing, especially when the primary concern is addressed by what I propose above, ought think long and hard about exactly why he or she is in the CDS in the first place and what we are here to achieve.