[quote="Beathan":35ah4s43]Ash writes that I am confusing the theory of rule of law with rule of law as a thing. His theory defines the thing. Mine is just a theory. This is special pleading of the highest order.[/quote:35ah4s43]
That is a wholly unjustified criticism. My point is that the theory of the rule of law is a theory [i:35ah4s43]of[/i:35ah4s43] something. If it is a good theory, it explains accurately the thing of which it is a theory. If it is a bad theory, it does not explain accurately the thing of which it is a theory. The thing of which the theory of the rule of law is a theory is the rule of law. Both my theory and the theories that you have cited attempt to be accurate theories of the rule of law. My point is simply that my theory is a [i:35ah4s43]more[/i:35ah4s43] accurate theory. That is the essential nature of the argument itself, not special pleading. Have you found anything specifically [i:35ah4s43]wrong[/i:35ah4s43] with my theory, or can you muster no real argument against it?
[quote:35ah4s43]It also fails to recognize that rule of law is a legal theory -- the thing is a theory, so to discuss the thing is to discuss the theory.[/quote:35ah4s43]
No, the rule of law is a state of affairs. It is meaningful to state "The rule of law prevails in Uzbekistan". That does not mean "The people in Uzbekistan have a good idea about the theory of the rule of law", but that Uzbekistan is a nation that really is ruled by laws, not by the capricious power of people, in the way that I described.
[quote:35ah4s43]Ashcroft has his theory wrong, on both the American and the UK statements of the theory. To see this more clearly, I recommend interested people read http://en.wikipedia.org/wiki/Rule_of_law.[/quote:35ah4s43]
[quote="Wikipedia":35ah4s43]The rule of law is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedure. The principle is intended to be a safeguard against arbitrary governance.
On 16 November 2006, Lord Bingham of Cornhill said, in relation to the rule of law: "The core of the existing principle is, I suggest, that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts."
Hallmarks of adherence to the rule of law commonly include a clear separation of powers, legal certainty, the principle of legitimate expectation and equality of all before the law.[/quote:35ah4s43]
Isn't that a summary of exactly what I wrote?
[quote:35ah4s43]It is not. I was specifically attacking Ash's theory and its subtext, not Ash. It is possible that Ash is not elitist, merely confused. He certainly is confused when he claims that equality can be an emergent quality of an elitist institution.[/quote:35ah4s43]
Merely stating that I am "confused" is not an argument. I have presented specific arguments as to how equality before the law can be an emergant property of the rule of law I have explained. I have not claimed that it is the product of any particular institution. Why are you attacking straw men, and by mere assertion, at that?
[quote:35ah4s43]At best, the equality of everyone outside the institution can be equalized by being equally debased. This is not the kind of equality I have in mind when I say that I want egalitarian rule of law. Further, abstractness does not lead to equality. The concept of absolute monarchy is abstract, but it is profoundly unequal.[/quote:35ah4s43]
It is the abstractness of [i:35ah4s43]rules[/i:35ah4s43] that I wrote lead to equality before the law, since the rules, being abstract, necessarily apply to all equally. It really does pay to read what I write more carefully before making sweeping criticims.
[quote:35ah4s43]I follow Occam's razor. My criticism is in that vein. The theory is too complicated to be trusted to be accurate.[/quote:35ah4s43]
[url=http://plato.stanford.edu/entries/simplicity/:35ah4s43]Occam's razor[/url:35ah4s43] is the principle that, [i:35ah4s43]all other things being equal[/i:35ah4s43], a simpler theory is preferable. In this case, for the reasons that I have given, all other things are not equal. It is not a meaningful criticism of any theory, in and of itself, to say "this is complicated": it is only a meaningful criticism to say "this is more complicated than it needs to be in certain specified respects, which are...". Unless you can find particular aspects of my theory that are superflouous, and exaplain [i:35ah4s43]how[/i:35ah4s43] they are superflouous, then you have no argument at all.
[quote:35ah4s43]I think that there is a distinction between Justice as meted out in a case and Justice as a public policy. Justice in a case should be tailored to the case and should look to the law and generally not to the crying mob. However, policy decisions, such as what kind of Justice System to have, should be determined by democratic process. [/quote:35ah4s43]
That is what happened: our democratically elected representatives passed the Judiciary Act. Thrice. But determinations of [i:35ah4s43]who[/i:35ah4s43] can be a judge, and, therefore, [i:35ah4s43]how[/i:35ah4s43] one decides who can be a judge, necessarily, albeit indirectly, impact on the impartiality of decisions in individual cases. If a body only appoints judges whom it knows will decide cases in a particular way, then the independence of the judiciary is as much undermined as if judges just plain give into popular opinion merely because it is popular opinion.
[quote:35ah4s43]However, even in single cases, when there is a matter of public importance involved in the case, it is wise to look at the will of the people, provided we realize that the will of the people is not always wise (at least at any given instance).[/quote:35ah4s43]
Do you seriously believe that a judge in a case such as that which I describe should have [i:35ah4s43]any[/i:35ah4s43] regard whatsoever to the public clamour for conviction?
[quote:35ah4s43]With regard to my restriction on newcomer office holding as being elitist in the same vein as Patroklus's attacks on my right to participate in public debate, I disagree. Newcomers are citizens. They should have the full rights of citizenship, equal with all other citizens regardless of age of citizenship. Office holding is different. Officers are hired by the citizens, based on criteria the citizenry as a whole deems appropriate. Familiarity of office holders with the history and traditions of the CDS seems like an appropriate requirement, indeed a necessary requirement to preserve stability in the CDS. For judges, temperament and character are also incredibly important. Hypercompetence, as currently required, to the detriment of temperament, character, and CDS enculturation, is not such a requirement and is causing substantial and legitimate heartburn as the Judiciary Act is implemented.[/quote:35ah4s43]
You have ignored so many times the point that I have made about the ability of the PJSP to assess temprement that I think that you might be deliberately trying to hide something. I do not require "hyper"-competence: I require competence.
Furthermore, there is no reason to believe that being "steeped in the traditions of" a fast-changing soceity, made up mostly of people who have arrived within the last few months, will have any effect whatsoever. I am beginning to think that this is a tactical ploy by you to say "look, according to the 'being here for ages' requirement, we have no judicial applicants suitably qualified. The application system [i:35ah4s43]must[/i:35ah4s43] be too hard. Let's dismantle the whole judiciary". Are you worried that your position will be weaker if we get many judicial applications by the end of the week? Is that why your position is so radically different now from what it was before, when you were willing to serve as a judge, only just having arrived?
Why have you also pointedly failed to answer my question about [i:35ah4s43]how[/i:35ah4s43] long you think is long enough?