Public consultation: judicial qualification requirements

Forum to discuss issues pertaining to the organisation and operations of the judiciary.

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Ashcroft Burnham
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Re: Wow

Post by Ashcroft Burnham »

[quote="Gxeremio Dimsum":2k7dowdk]...However, it is also a good reminder for us that our systems - all of them - need to remain flexible so that future newcomers can also make this system their own without any prior affiliation. The difficulty in this present debate seems to be how to avoid one common fear (pure mob rule where the winds of popular opinion could change the judiciary overnight) while also staving off an equally bad situation (oligarchy of the founders, or simply the first people to hold strong opinions about a topic such as the judiciary). We seem, lately, to be erring on the side of oligarchy by the most persistent voices. Setting up a judicial system in which one resident - Ashcroft - has more power than the rest of the citizenry combined, would be very counterproductive indeed to the goal of establishing a democratic community in Second Life.[/quote:2k7dowdk]

We have already had the debate on judicial independence. A balance was already struck by the legislature. It was a fair balance. It is wrong in principle to conflate your criticism with the way in which any given power is exercised with a criticism about whether the body or institution in question should have the power at all. To give an analogy, criticising the actions of the current U. S. president does not entail criticising the existance of a U. S. president at all, or any of the particular powers that the president has.

[quote:2k7dowdk]I return to a theme I have mentioned before - this experiment in virtual democracy is not nearly as successful as it could be. I haven't seen updated citizenship numbers, but judging by forum participation and who's actually inworld when I visit N'stadt or Colonia Nova, it seems that the number of people who are actively involved in CDS is either the same, or perhaps even less, than when I joined back in July. [/quote:2k7dowdk]

I am not sure how you draw that estimate, but, when I joined, also in July, there were 35 citizens. Two weeks ago (the most up-to-date information that I have), there were 61. I am fairly sure that at least one more person has joined since then, and I know of at least two more who are about to join. Given that what is now the CDS has been established since some time in 2004, we have nearly doubled our population in a period of our existence that is very short compared to our overall lifespan. That is not the sign of failure.

Indeed, far from the citizen numbers being any possible basis upon which to critcise the judiciary, a large number of citizens have joined us precisely [i:2k7dowdk]because[/i:2k7dowdk] of our judicial system, many of whom I have introduced personally to the CDS, including Beathan himself. Far from driving people away, there is good evidence that, during the last three months, the judiciary, more than one other factor (apart, perhaps, from Colonia Nova itself) has drawn new citizens to the CDS.

[quote:2k7dowdk]This is a shame, especially since the population of SL as a whole has at least doubled in that time, not just in terms of total signups but also real accounts and people online concurrently. This cannot merely be excused as poor advertising. We must get out of our rut and explore better ways of doing things to include more people at a more reasonable level of expected commitment, as well as providing more incentives for joining our experiment. I again suggest that we can do this by providing a more flexible framework of government that rewards instead of chastises experimentation and innovation, while also increasing the chance for people to be involved at various levels of commitment.[/quote:2k7dowdk]

There is no evidence to support your claim that the nature of the government has any substantial deterrance whatsoever. Most prospective citizens to whom I give tours are [i:2k7dowdk]fascinated[/i:2k7dowdk] by our government and legal system, and see it as a reason in favour of joining (and, although some of these are lawyers that I contact through groups, many of these are random people who are found in our public spaces).

You claim that it cannot be due to poor advertising, yet produce no evidence for this. What is that but speculation? It is wholly irrational, and quite improper, to criticise institutions on the basis that they cause a problem when there is no evidence whatsoever of any such causal connexion.

[quote:2k7dowdk]It would be unfair to portray myself as a totally impartial observer; I have proposed legislation that was not taken up (or even considered, as far as I can tell from transcripts of the RA) largely because of Ashcroft's repudiation of it in the forums.[/quote:2k7dowdk]

I very much doubt that I was as responsible for this as you think: merely because I wrote the most on it does not mean that people who disagreed with it would not have done had I not written those things.

[quote:2k7dowdk]Virtual democracy is a beautiful dream, and needn't remain only that.[/quote:2k7dowdk]

Quite. It will, however, if the rule of law does not prevail, which it cannot if judicial independence is not sufficiently safeguarded.

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Post by Beathan »

Ashcrodt wrote [quote:2hgh43fv]Furthermore, it is utterly incoherent to claim that the constitution is unconstituional. The constitutionality of any amendment to the consitution is bindingly assessed by the Scientific Council at the time of ratification. The Scientific Council ratified the Judiciary Act. The Judicary Act amended the constitution. The constitution as it stands cannot be unconstitutional.[/quote:2hgh43fv]

I am, of course, not saying that the Constitution is unconstitutional. Rather, I am saying that this provision of the Constitution, [i:2hgh43fv]as applied by Ashcroft[/i:2hgh43fv], is being implementd in an unconstitutional way. In the U.S., this is a living distinction in our Constituional jurisprudence.

Further, I don't know UK employment practices, but I would be shocked if it were as crazy as Ashcroft describes. Surely an employer can hire someone based on what that employer has seen of their work (the work they did for a competitor, or a firm that does business with the new employer). Further, if the employer chooses to implement qualifying procedures for other applicants, people the employer has not had a prior opportunity to assess, that expands the recruitment demographic.

I also don't see an working distinction between confidence and competence in a judicial system. Like most arms of government, the judiciary operates on people. It is effective -- competent -- only insofar as the will of the governed allows it to be. This necessarily reduces competence to confidence.

Moreover, I don't think it is self-evident that democracy requires the level of rule of law advocated by AShcroft. Some law, yes; but minimal law would do just fine. Further,democracy certainly does not require a judicial system with the complexity and entry hurdles this one has.

My final point comes back to fairness. I accept Ashcroft's contention that appointing judges based on forum participation privileges forum participation. However, I don't think that is necessarily a bad thing. Why shouldn't our judges be known commodities and active citizens?

However, even if I grant his point that using forum participation as the only qualifying tool would be unfair, it does not follow that using it as one of two or more qualifying tools would be unfair. In this case, I have (and have described) several serious problems with the exam being used to qualify applicants. Not the least of these, in terms of ability to serve as a judge, is a deep ethical concern involving the prejudicial effect of hypothetical questions. In the face of this legitimate ethical concern, it is unfair to penalize me by deeming me unqualified (despite all other indications to the contrary).

In fact, if I were Publius or someone else on the qualifying Board -- to which Ashcroft has deferred the critical determinations of character and temperament -- I would have to determine that anyone who applied for the judgeship by answering the hypothetical questions on the exam was not qualified to act with the impartiality and lack of prejudice required by the office. That is, if I were on the Board, we would have a Catch-22. Anyone who applied through this process would be disqualified due to an ethical flaw in the process. We have a broken process.

Beathan

Last edited by Beathan on Wed Nov 29, 2006 10:40 am, edited 5 times in total.
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Post by Beathan »

Ashcroft writes [quote:ql7w3xku]That is quite untrue. Evidence need only be heard when there is identified in advance a dispute of fact. In English courts, for example, in a criminal case, evidence is only called if the accused pleads not guilty. In a civil case, evidence is only called if the parties' pleadings disclose a material dispute of fact that would affect the judgment. Where the parties agree on the facts, there is no evidence presented...
It is wholly untrue, therefore, as a matter of legal practice, to assert that judgments can only be made after the hearing and evaluation of evidence. Real life legal practice allows for, and commonly involves, the giving of judgment on the basis of a series of condensed (and often simple) factual propositions . It is therefore false that any prejudice is necessarily involved in answering hypothetical questions on the basis of such a series of simple propositions of fact.
[/quote:ql7w3xku]

In this discussion, Ashcroft is failing to recognize and apply a critical distinction between the resolution of a case and the resolution of a case by the judgment of a judge. That is, he is failing to distinguish between judicial action and legal practice more generally.

It is true that many, even most, cases are resolved without the need of a judge to actively render judgment. Most civil cases settle. Most criminal cases end by final plea (guilty, no contest, or some other dispositive plea). However, in those cases, the parties agree to accept some circumstance without resort to a judge's issuance of a judgment. In fact, those forms of resolution exist just to avoid the risk of a judge making a judgment that is worse for the party's position than the settlement -- or to avoid the cost of presenting the evidence a judge needs to make a sound judgment. Because these instances are not instances of judges acting, the fact that there are such instances is not relevant to our qualification of judges.

There is another way to end a case. In the United States, we call this "summary judgment." In a summary judgment, the parties are allowed to set forth all they facts they think relevant in paper form and the judge then reads those facts and, if the judge determines that there is no factual dispute that requires an in-person hearing, the judge renders judgment without holding a trial or other hearing. However, this method of practice is suspect. It is not allowed at all in criminal cases because American law has a deep commitment to allowing a person to say his piece and confront his accusers in person before facing criminal penalties. I share this commitment. Even in civil cases, different states apply the summary judgment standards (even though those standards are typically based on identical procedural rules) very differently. I am licensed and practice mostly in Washington State. In Washington, Trial Courts frequently grant summary judgment -- and Appellate Courts frequently reverse those decision. I am also licensed in North Carolina. In North Carolina, Trial Courts rarely grant summary judgments -- and Appellate Courts rarely reverse them. Personally, I think that the North Carolina rule is better -- as seen by the lower reversal rate.

However, even on summary judgment, the case is not decided without consideration of evidence. The parties still submit evidence. The judge still considers that evidence [i:ql7w3xku]without prior commitments[/i:ql7w3xku] and makes a decision [i:ql7w3xku]based on the evidence[/i:ql7w3xku]. Any system of justice that allows judges to make decisions that are not based on the evidence -- either by refusing to hear the evidence or by abstracting the case so much that the evidence disappears -- is a bad system of justice. I would even call it systematized injustice.

The danger here is a bad judicial practice called "pigeon holing." A judge who decides cases by hearing very little of the parties' stories and making snap judgments about what kind of case it is, deciding the case accordingly, is a very poor judge indeed. My fundamental problem with the qualification of judges through hypotheticals is that such a qualification process is likely to give us just this kind of judge.

Beathan

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Re: Wow

Post by Gxeremio Dimsum »

[quote="Ashcroft Burnham":27glt69c]We have already had the debate on judicial independence. A balance was already struck by the legislature. It was a fair balance. It is wrong in principle to conflate your criticism with the way in which any given power is exercised with a criticism about whether the body or institution in question should have the power at all. To give an analogy, criticising the actions of the current U. S. president does not entail criticising the existance of a U. S. president at all, or any of the particular powers that the president has.[/quote:27glt69c]

This is not an adequate analogy. The U.S. presidency was not created less than 3 months ago, with the participation of perhaps 10 people and the approval of 5. You have said elsewhere that when a matter has been "settled" by the RA, it should remain so; this is not true in the real world and even less so in our small community.

[quote="Ashcroft Burnham":27glt69c][quote="Gxeremio Dimsum":27glt69c]I return to a theme I have mentioned before - this experiment in virtual democracy is not nearly as successful as it could be. I haven't seen updated citizenship numbers, but judging by forum participation and who's actually inworld when I visit N'stadt or Colonia Nova, it seems that the number of people who are actively involved in CDS is either the same, or perhaps even less, than when I joined back in July. [/quote:27glt69c]

I am not sure how you draw that estimate, but, when I joined, also in July, there were 35 citizens. Two weeks ago (the most up-to-date information that I have), there were 61. I am fairly sure that at least one more person has joined since then, and I know of at least two more who are about to join. Given that what is now the CDS has been established since some time in 2004, we have nearly doubled our population in a period of our existence that is very short compared to our overall lifespan. That is not the sign of failure. [/quote:27glt69c]

I have told you precisely how I drew that estimate - forum participation and inworld presence. Paying rent on land is an altogether different thing from participating in the community. There are some new faces that are regular contributors to the forum and to the inworld community, but several others (about the same number, in my estimation) have gone away over that time.

[quote:27glt69c]There is no evidence to support your claim that the nature of the government has any substantial deterrance whatsoever. Most prospective citizens to whom I give tours are [i:27glt69c]fascinated[/i:27glt69c] by our government and legal system, and see it as a reason in favour of joining (and, although some of these are lawyers that I contact through groups, many of these are random people who are found in our public spaces).

You claim that it cannot be due to poor advertising, yet produce no evidence for this. What is that but speculation? It is wholly irrational, and quite improper, to criticise institutions on the basis that they cause a problem when there is no evidence whatsoever of any such causal connexion.[/quote:27glt69c]

The evidence of the deterrent factor is that I am saying it. It is a deterrent to me to participate in the government the way that is. Though overstated, Ranma has said the same. Rudy has too. Beathan indicated the over-complexity of becoming a judge as a deterrent for him. How many more never got up the courage or took the time to say what seems quite obvious to all but those currently in power?

As far as advertising goes, here's what I'm thinking along those lines: CDS (or Nstadt, at least) has been in Wired magazine, written about in inworld media, been discussed on pretty much every forum about SL, and even featured on that recent inworld HUD of places to see. What is your counter-evidence that if only more knew about us, they would surely join? What new person, other than yourself, is likely to become part of the government during the next election cycle or by appointment?

[quote:27glt69c]...if the rule of law does not prevail, which it cannot if judicial independence is not sufficiently safeguarded.[/quote:27glt69c]

Don't confuse judicial independence and a power grab.

Last edited by Gxeremio Dimsum on Wed Nov 29, 2006 12:33 pm, edited 1 time in total.
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Re: Wow

Post by Publius Crabgrass »

[quote="Gxeremio Dimsum":3e9fyff6]The evidence of the deterrent factor is that I am saying it. It is a deterrent to me to participate in the government the way that is. Though overstated, Ranma has said the same. Rudy has too. Beathan indicated the over-complexity of becoming a judge as a deterrent for him. How many more never got up the courage or taken the time to say what seems quite obvious to all but those currently in power?[/quote:3e9fyff6]
I believe the recent formation of the Simplicity Party is partially in response to a governmental system that many of our citizens believe is too complex for our small society, especially with the addition of the judiciary and its cumbersome procedures and practices.

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Post by Beathan »

Publius wrote [quote:1wlat4c4]I believe the recent formation of the Simplicity Party is partially in response to a governmental system that many of our citizens believe is too complex for our small society, especially with the addition of the judiciary and its cumbersome procedures and practices.[/quote:1wlat4c4]

I concur. Indeed, the fact that the DPU had the helm during development of this judicial system is the first and foremost of the handful of reasons I have for not wanting to associate with the DPU.

Further, with regard to Ashcroft's claim that I, and perhaps several other people, have joined the CDS because of the judicial system, this is true in part. I would have joined the CDS when introduced regardless of the judicial system because I have a keen personal interest in the emergence of online culture and self-government. As part of this, I have a keen interest in development of judicial systems as part of that self-government. I sincerely want a fully functional and sound judicial system to develop here in the CDS and hope that some day it will. I just don't think that that day is now, and that that system is the current one.

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Post by Ashcroft Burnham »

[quote="Beathan":1e0g3t6o]I am, of course, not saying that the Constitution is unconstitutional. Rather, I am saying that this provision of the Constitution, [i:1e0g3t6o]as applied by Ashcroft[/i:1e0g3t6o], is being implementd in an unconstitutional way. In the U.S., this is a living distinction in our Constituional jurisprudence.[/quote:1e0g3t6o]

Can you explain, please, what precisely about having a rigerous paper-based application system for our judges contravenes the constitution, and which particular chapter and section of the constitution that it contravenes?

[quote:1e0g3t6o]Further, I don't know UK employment practices, but I would be shocked if it were as crazy as Ashcroft describes. Surely an employer can hire someone based on what that employer has seen of their work (the work they did for a competitor, or a firm that does business with the new employer). Further, if the employer chooses to implement qualifying procedures for other applicants, people the employer has not had a prior opportunity to assess, that expands the recruitment demographic.[/quote:1e0g3t6o]

Race discrimination claims in the UK have been upheld on the grounds that employers strongly favoured recruiting or promoting people who were in their existing social circle, which tended to be dominated by people of one particular race, and therefore prejudiced applicants from other races, who were less likely to be in such social circles.

[quote:1e0g3t6o]I also don't see an working distinction between confidence and competence in a judicial system. Like most arms of government, the judiciary operates on people. It is effective -- competent -- only insofar as the will of the governed allows it to be. This necessarily reduces competence to confidence.[/quote:1e0g3t6o]

That is incoherent: a judge needs to have legal skill to do her or his job properly. Whether a judge has legal skill is an inherently distinct question from whether anybody believes that the judge has legal skill (a person's belief of the truth of a proposition cannot be determinative of whether it is true). It may be important that people have confidence in judges [i:1e0g3t6o]as well[/i:1e0g3t6o]: that is why we have a system that provides for two stages: the first assessing legal skill, the second allowing popular input.

[quote:1e0g3t6o]Moreover, I don't think it is self-evident that democracy requires the level of rule of law advocated by Ashcroft. Some law, yes; but minimal law would do just fine. Further,democracy certainly does not require a judicial system with the complexity and entry hurdles this one has.[/quote:1e0g3t6o]

What do you mean "the level of role of law advocated by Ashcroft"? What kind of concept do you think that the concept of the rule of law is such that it is capable of having levels? What level do you think that I advocate, what level do you advocate, and why do you think that the difference between the level that you think that I advocate and the level that you advocate is such that democracy requires only the lower level? Finally, I did not claim that the proposition was self-evident: merely that it was true.

[quote:1e0g3t6o]My final point comes back to fairness. I accept Ashcroft's contention that appointing judges based on forum participation privileges forum participation. However, I don't think that is necessarily a bad thing. Why shouldn't our judges be known commodities and active citizens?[/quote:1e0g3t6o]

Because perfectly good people who have not yet had the opportunity to post heavily in the forums might make just as good a judges as those who have had such an opportunity.

[quote:1e0g3t6o]However, even if I grant his point that using forum participation as the only qualifying tool would be unfair, it does not follow that using it as one of two or more qualifying tools would be unfair.[/quote:1e0g3t6o]

As I have already explained, using different ways of testing the same thing is bound to produce inconsistencies. It is not a fair test in the scientific sense of "fair test".

[quote:1e0g3t6o]In this case, I have (and have described) several serious problems with the exam being used to qualify applicants. Not the least of these, in terms of ability to serve as a judge, is a deep ethical concern involving the prejudicial effect of hypothetical questions.[/quote:1e0g3t6o]

I have explained at lengh why your contentions on this point are flawed.

[quote:1e0g3t6o]In the face of this legitimate ethical concern, it is unfair to penalize me by deeming me unqualified (despite all other indications to the contrary).[/quote:1e0g3t6o]

It is not unfair not to qualify candidates who refuse to answer the questions because they wrongly believe them to be unethical.

[quote:1e0g3t6o]In fact, if I were Publius or someone else on the qualifying Board -- to which Ashcroft has deferred the critical determinations of character and temperament -- I would have to determine that anyone who applied for the judgeship by answering the hypothetical questions on the exam was not qualified to act with the impartiality and lack of prejudice required by the office. That is, if I were on the Board, we would have a Catch-22. Anyone who applied through this process would be disqualified due to an ethical flaw in the process. We have a broken process.[/quote:1e0g3t6o]

If you were on the qualifying board, you would have an equal say to me in what the questions were in the first place. This is another straw man: you are envisaging coherency from a situation that could never arise.

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Post by Ashcroft Burnham »

[quote="Beathan":20fg4x59]In this discussion, Ashcroft is failing to recognize and apply a critical distinction between the resolution of a case and the resolution of a case by the judgment of a judge. That is, he is failing to distinguish between judicial action and legal practice more generally.[/quote:20fg4x59]

No, you are entirely missing the point. I am not dealing with the resolution of a case by settlement, where no judge is involved: I am dealing with the resolution of a case by a judge, where that resolution involves a resolution only of the legal consequences of agreed facts, rather than a resolution of the question of which facts are true. You seem, wholly bizarrely, to assume that all judgments must somehow involve determination of which facts are true. As I have explained many times, and you seem entirely to have ignored, a considerable number of judgments involve no such consideration at all, and are based either on propositions of fact contained in the parties' pleadings or on the judgment of a lower court, in the case of an appeal.

[quote:20fg4x59]There is another way to end a case. In the United States, we call this "summary judgment." In a summary judgment, the parties are allowed to set forth all they facts they think relevant in paper form and the judge then reads those facts and, if the judge determines that there is no factual dispute that requires an in-person hearing, the judge renders judgment without holding a trial or other hearing. However, this method of practice is suspect. It is not allowed at all in criminal cases because American law has a deep commitment to allowing a person to say his piece and confront his accusers in person before facing criminal penalties. I share this commitment. Even in civil cases, different states apply the summary judgment standards (even though those standards are typically based on identical procedural rules) very differently. I am licensed and practice mostly in Washington State. In Washington, Trial Courts frequently grant summary judgment -- and Appellate Courts frequently reverse those decision. I am also licensed in North Carolina. In North Carolina, Trial Courts rarely grant summary judgments -- and Appellate Courts rarely reverse them. Personally, I think that the North Carolina rule is better -- as seen by the lower reversal rate.

However, even on summary judgment, the case is not decided without consideration of evidence. The parties still submit evidence. The judge still considers that evidence [i:20fg4x59]without prior commitments[/i:20fg4x59] and makes a decision [i:20fg4x59]based on the evidence[/i:20fg4x59]. Any system of justice that allows judges to make decisions that are not based on the evidence -- either by refusing to hear the evidence or by abstracting the case so much that the evidence disappears -- is a bad system of justice. I would even call it systematized injustice.[/quote:20fg4x59]

That is very different to anything in the English legal system, and very different to anything that will be part of our legal system. (The English leagal system has what it calls "summary judgments", but these are quite different to what you describe). But again, all of this is wholly irrelevant when the point is that, in very many cases, the court is simply not being asked to decide what facts are true, but is being asked to decide what the legal consequences are of agreed facts.

[quote:20fg4x59]The danger here is a bad judicial practice called "pigeon holing." A judge who decides cases by hearing very little of the parties' stories and making snap judgments about what kind of case it is, deciding the case accordingly, is a very poor judge indeed. My fundamental problem with the qualification of judges through hypotheticals is that such a qualification process is likely to give us just this kind of judge.[/quote:20fg4x59]

This does not make any sense. In a legal system that involves written propositional pleading, the parties set out in their pleadings all of the propositions of fact upon which they seek to rely, and the orders that they would like the court to make. Where those pleadings disclose contradictory facts, a trial must be heard if the case is not settled to determine the factual basis upon which the court will pass judgment. Where the parties' pleadings disclose no dispute of fact, the judge hears no evidence at all (since the only conceivable function of evidence is to be evidence [i:20fg4x59]of[/i:20fg4x59] a proposition of fact that a party is seeking to prove), but makes judgment based on the propositions set out in the pleadings. This is not an exercise that involves any unfairness: legal rules, by thier nature, are largely binary, and surrounding circumstances are very often irrelevant to the determination of a party's legal rights and duties. Surrounding circumstances are far more relevant when deciding what actually happend, when weighing competing accounts of events, and deciding which witnesses are credible, but that is a process of trial, not of a judgment on the basis of agreed facts. The kind of thing that is happening is distinctly different.

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Re: Wow

Post by Ashcroft Burnham »

[quote="Gxeremio Dimsum":3380l4po]This is not an adequate analogy. The U.S. presidency was not created less than 3 months ago, with the participation of perhaps 10 people and the approval of 5. You have said elsewhere that when a matter has been "settled" by the RA, it should remain so; this is not true in the real world and even less so in our small community.[/quote:3380l4po]

This does not make any sense at all: why should the fact that the matter was decided recently make it more, not less, appropriate to change it? See my post "on stability" for a full development of the arguments against repeated changing of the same thing.

[quote="Ashcroft Burnham":3380l4po]I have told you precisely how I drew that estimate - forum participation and inworld presence.[/quote:3380l4po]

You have not told me how you have evaluated that. You are asking us to rely on your mere assertion: that is not good enough. I have presented precise numerical statistics. That is a far more staisfactory way of measuring things, especially when our economic health rests so importantly on the number of poeple paying land rent.

[quote:3380l4po]Paying rent on land is an altogether different thing from participating in the community. There are some new faces that are regular contributors to the forum and to the inworld community, but several others (about the same number, in my estimation) have gone away over that time.[/quote:3380l4po]

People often go away and come back again. However, here is a list of people who have joined the CDS at least partly in consequence of our legal system recently:

Ludo Merit
Beathan Vale
Michel Manin
Blue McDonagh
Jeremy Utaid
Rose Springvale

Here is a list of people who are likely to join the CDS at least in part because of our legal system in the next few weeks:

Dexter Leopold
Benjamin Noble
Oni Junati (sp?)

That is not counting many the people who have been attracted to the CDS by the article in October's edition of the SecondLife Business Magazine on our legal system, or of my recent presentation to the Kuurian Expedition (held in Colonia Nova) about our legal system, in consequence of which there are a further two people who expressed some interest in joining.

How many people have you attracted to the CDS recently?

[quote:3380l4po]The evidence of the deterrent factor is that I am saying it.[/quote:3380l4po]

Do you seriously expect people to accept what you claim merely because you claim it?

[quote:3380l4po]It is a deterrent to me to participate in the government the way that is. [/quote:3380l4po]

Why do you conflate participating in [i:3380l4po]government[/i:3380l4po] with being a citizen of the CDS? We have many good people here who are happy citizens, attracted by our architecture and sense of community, but with no particular interest in government. Consider Roenik Newell, with her gestures shop in Neufreistadt, or Mizau Vavoom, with her architecutre business (Carpe Diem Designs) in Colonia Nova.

[quote:3380l4po]Though overstated, Ranma has said the same.[/quote:3380l4po]

Ranma's concern was with the covenant prohibiting commercial pornograph, although, as others have pointed out, her concerns were largely based on a misapprehension about what they meant, and kept shifting whenever people pointed out that what she thought was prohibited was actually permitted.

[quote:3380l4po]Rudy has too.[/quote:3380l4po]

He has not been deterred from anything.

[quote:3380l4po]Beathan indicated the over-complexity of becoming a judge as a deterrent for him.[/quote:3380l4po]

His main concern appears to have been his belief that some of the questions were unethical.

[quote:3380l4po] How many more never got up the courage or took the time to say what seems quite obvious to all but those currently in power?[/quote:3380l4po]

Again, this is a wholly unsubstantiated assertion: merely because you believe something to be so does not by itself entail that there is a silent majority who agree wtih you.

[quote:3380l4po]As far as advertising goes, here's what I'm thinking along those lines: CDS (or Nstadt, at least) has been in Wired magazine, written about in inworld media, been discussed on pretty much every forum about SL, and even featured on that recent inworld HUD of places to see. What is your counter-evidence that if only more knew about us, they would surely join?[/quote:3380l4po]

The fact that a very high proportion of those to whom I give guided tours, and those whom I perosonally introduce to the CDS do, indeed, go onto join and become citizens.

[quote:3380l4po]What new person, other than yourself, is likely to become part of the government during the next election cycle or by appointment?[/quote:3380l4po]

I am certainly not going to become part of the government: I am a judge, and intend to remain one. I have no intention of holding any political office.

I have no idea who else will become involved in the government in the next election cycle. I know that at least three people are now interested in becoming members of the Public Judiciary Scrutiny Panel (Michel Manin, Ludo Merit and Chicago Kipling). But, as I wrote before, involvement with [i:3380l4po]government[/i:3380l4po] is most certainly not the same as involvement in the CDS as a whole. We are not here just to have a government: the government is here to serve its citizens, and let them be part of a community that has the benefit of democracy and the rule of law. That most certainly does not mean that all or even most citizens need to be involved any more with government than once every election time.

[quote:3380l4po]Don't confuse judicial independence and a power grab.[/quote:3380l4po]

What do you think that judicial independence is such that you think that me doing what the constitution requires of me (publishing a set of judicial qualification requirements and determining a procedure by which it is determined who meets those requirements) is concpetually capable of amounting to a "power grab"?

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Re: Wow

Post by Ashcroft Burnham »

[quote="Publius Crabgrass":b40h9vtw]I believe the recent formation of the Simplicity Party is partially in response to a governmental system that many of our citizens believe is too complex for our small society, especially with the addition of the judiciary and its cumbersome procedures and practices.[/quote:b40h9vtw]

If you read Aliasi's manifesto, it seems to be just as much about a response to the recent suggestions of local devolution as institutional complexity, and one of the greatest priorities seems to be a non-interventional stance by government.

As to the judiciary, how can you possibly complain that it has "cumbersome procedures and practices" when you have not even seen the Code of Procedure yet?

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Post by Ashcroft Burnham »

[quote="Beathan":1nhj90s0]Further, with regard to Ashcroft's claim that I, and perhaps several other people, have joined the CDS because of the judicial system, this is true in part. I would have joined the CDS when introduced regardless of the judicial system because I have a keen personal interest in the emergence of online culture and self-government. As part of this, I have a keen interest in development of judicial systems as part of that self-government. I sincerely want a fully functional and sound judicial system to develop here in the CDS and hope that some day it will. I just don't think that that day is now, and that that system is the current one.[/quote:1nhj90s0]

Since your only criticism of it so far seems to be that the application procedure for judges is too lengthy and requires the answering of questions that you consider to be unethical, is this not a wholly premature and unfounded claim?

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Post by Beathan »

Aschroft writes

[quote:3o441lyn]Since your only criticism of it so far seems to be that the application procedure for judges is too lengthy and requires the answering of questions that you consider to be unethical, is this not a wholly premature and unfounded claim?
[/quote:3o441lyn]

No, especially given your inability to recognize that selection of judges is a political act that involves far more important issues than mere legal hypercompetence. Personally, both in RL and in SL, I would rather have a judge who listens rather than a sorting machine, even if that sorting machine were a particularly good one. Further, I have never met a client or citizen who does not agree with me.

Ashcroft also writes [quote:3o441lyn]If you read Aliasi's manifesto, it seems to be just as much about a response to the recent suggestions of local devolution as institutional complexity, and one of the greatest priorities seems to be a non-interventional stance by government.

As to the judiciary, how can you possibly complain that it has "cumbersome procedures and practices" when you have not even seen the Code of Procedure yet?[/quote:3o441lyn]

I cam to this same conclusion the first time I read the judiciary act. I tihnk the act is overreaching and irresponsible. As I have stated elsewhere, the passage of this act during a DPU government is one of my primary objections to the DPU. Generally, I agree with most of the DPU programs and platforms. However, when the issue is big enough, I can become a single issue voter.

Speaking of my decision to not submit an examination application, Ashcroft wrote [quote:3o441lyn]His main concern appears to have been his belief that some of the questions were unethical. [/quote:3o441lyn]

This is a misrepresentation. The unethical issues did not deter me from submitting an application. I was planning to submit an application that restated my objection to the hypothetical, recast the question in a form that did not raise my concern, and then answered the recast question. However, when I turned my attention to the remaining questions, especially in light of the requirement that I rewrite most of them, the culmulative result was that it was unduly cumbersome. In fact, applications to RL judicial positions in my jurisdiction are less cumbersome than this one. I believe that Justice Soothsayer made a similar observation early on -- one that should have been attended to at the time.

Ashcroft continues to challenge Dimsum, saying [quote:3o441lyn]Again, this is a wholly unsubstantiated assertion: merely because you believe something to be so does not by itself entail that there is a silent majority who agree wtih you. [/quote:3o441lyn]

In fact, there is a vocal majority that agree with him. If we look over this thread, we find one, and only one, advocate for Ashcroft's position -- Ashcroft. We find one skeptical neutral -- Justice Soothsayer. We now find seven voices raised in opposition. That indicates something real.

Ashcroft writes, in defense of his hypothetical [quote:3o441lyn]No, you are entirely missing the point. I am not dealing with the resolution of a case by settlement, where no judge is involved: I am dealing with the resolution of a case by a judge, where that resolution involves a resolution only of the legal consequences of agreed facts, rather than a resolution of the question of which facts are true. You seem, wholly bizarrely, to assume that all judgments must somehow involve determination of which facts are true. [/quote:3o441lyn]

I am not saying that parties cannot present cases on agreed facts. They do -- it is very rare in the U.S. -- but they do. What I am saying is that the hypotheticals are dangerously general. They have a tendency to prejudge cases because they are part of an application process. With a few exceptions (questions that I believe omit facts that would have to be found out to answer the question), I believe that I could decide cases based on the hypotheticals if they came to me on stipulated facts. That is not the point. The point is that there is something confining in hypothetical questioning -- they will tend to limit the freedom of decision of honest judges is harmful ways. For this reason, they are not proper in judicial selection. If real parties present real facts with such limits to a judge, this problem does not arise because the judge is evaluating a real case in a real factual circumstance.

Ashcroft wrote [quote:3o441lyn]This does not make any sense. In a legal system that involves written propositional pleading, the parties set out in their pleadings all of the propositions of fact upon which they seek to rely, and the orders that they would like the court to make. Where those pleadings disclose contradictory facts, a trial must be heard if the case is not settled to determine the factual basis upon which the court will pass judgment. Where the parties' pleadings disclose no dispute of fact, the judge hears no evidence at all (since the only conceivable function of evidence is to be evidence of a proposition of fact that a party is seeking to prove), but makes judgment based on the propositions set out in the pleadings. [/quote:3o441lyn]

This sounds like a form of pleading that has been abandoned in the United States (with the possible exception of Oregon). Most U.S. jurisdiction require what we call "notice pleading" -- that is, a pleading is sufficient if it informs the other party, in extremely general terms, what the case is about and what kind of law applies. Specific facts need not be plead -- although they must later be proved. Thereafter, the parties engage in discovery to root out the facts, often adjusting theories of the case in light of what they learn. In fact, in my ten years of litigation work, I cannot think of a single trial my firm has done that went to trial on the set of facts we understood at the outset. Every case involved some discovery during litigation that had some effect on what we presented at trial and what legal theory we tried. In fact, some cases changed in radical ways. I think this is a strength, not a weakness, of our system. It gives us the flexibility to learn and adapt to the truth through litigation. Placing a "learn the complete story first" requirement unfairly retards litigation -- presenting an insurmountable burden to filing some cases that should be heard.

In this -- as in most things -- our watchword should be "flexibility".

Ashcroft wrote
[quote:3o441lyn]It is not unfair not to qualify candidates who refuse to answer the questions because they wrongly believe them to be unethical. [/quote:3o441lyn]

Perhaps before Ashcroft accuses me of being wrong, we should have a vote on the subject. I think both my view and his have been throughly aired. I am confident that this polity would, for the most part, share my ethical instincts and support my ethical analysis. If not, I would be willing to submit to the ethical judgment of the majority -- as any member of democratic civil society must do at some point.

Ashcroft writes, of my bifurcated selection proposal [quote:3o441lyn]As I have already explained, using different ways of testing the same thing is bound to produce inconsistencies. It is not a fair test in the scientific sense of "fair test".[/quote:3o441lyn]

I am not sure what a scientific "fair test" is. In fact, I am not aware of any science that has anything to say about what is fair or not. That is an ethical, not a scientific, judgment. I believe that I have given very good reasons to support the ethics of the bifurcated proposal I have advanced. As I propose it, this bifurcation would open, rather than close, doors -- qualify more qualified people, not less. I don't see how that is a bad thing.

Ashcroft asked [quote:3o441lyn]What do you mean "the level of role of law advocated by Ashcroft"? What kind of concept do you think that the concept of the rule of law is such that it is capable of having levels? What level do you think that I advocate, what level do you advocate, and why do you think that the difference between the level that you think that I advocate and the level that you advocate is such that democracy requires only the lower level? Finally, I did not claim that the proposition was self-evident: merely that it was true.
[/quote:3o441lyn]

Perhaps I should not have used the phrase "rule of law". What I meant was this. Based on reasons similar to those set forth by Rudy in his discussion of government and its purposes, I believe that freedom (at least negative freedom -- freedom from government) exists in the space between law and anarchy. If the law expands to fill this space -- fully defining the realm of human activity up to the point of anarchy -- everything we do, say and are becomes subject to legal control, and the only escape from this totalitarian rule is anarchy. This is unhealthy, debilitating, anti-democratic, and very dangerous. I agree with the rule of law over everything that should be ruled -- but I don't believe that everything should be ruled.

Ashcroft wrote
[quote:3o441lyn]Race discrimination claims in the UK have been upheld on the grounds that employers strongly favoured recruiting or promoting people who were in their existing social circle, which tended to be dominated by people of one particular race, and therefore prejudiced applicants from other races, who were less likely to be in such social circles.
[/quote:3o441lyn]

This is very sad. It dooms the UK to a real economic disadvantage to more classically liberal societies woth stronger commitments to free association. I hope that the CDS does not follow the UK down this dismal road.

Finally, Ashcrodt wrote

[quote:3o441lyn]Can you explain, please, what precisely about having a rigerous paper-based application system for our judges contravenes the constitution, and which particular chapter and section of the constitution that it contravenes? [/quote:3o441lyn]

In an earlier post, you referred to a "purposive" interpretation of the Constitution. The purpose of our constitution is to create and ensure democratic institutions allowing for real self-rule and control over our government. This process contravenes that purpose.

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Re: Wow

Post by Gxeremio Dimsum »

Again, I get the feeling that trying to help you understand another point of view is a waste of time. However, I am hoping others will pipe in and/or benefit from our back and forth on these important and underlying issues.

[quote="Ashcroft Burnham":2rj5c7jy][quote="Gxeremio Dimsum":2rj5c7jy]This is not an adequate analogy. The U.S. presidency was not created less than 3 months ago, with the participation of perhaps 10 people and the approval of 5. You have said elsewhere that when a matter has been "settled" by the RA, it should remain so; this is not true in the real world and even less so in our small community.[/quote:2rj5c7jy]

This does not make any sense at all: why should the fact that the matter was decided recently make it more, not less, appropriate to change it? See my post "on stability" for a full development of the arguments against repeated changing of the same thing.[/quote:2rj5c7jy]

The crux of your argument seems to be that "This is already decided. Over and done with. Move on." But numerous people disagree with the way things are going, as evidenced by the formation of the Simplicity Party, posts in the forum, and the polls at http://forums.neufreistadt.info/viewtopic.php?t=440 and http://forums.neufreistadt.info/viewtopic.php?t=534 that show more people want change than like the current system. Your analogy was that presidential power and the office of the president should not be under fire in an argument about this particular president, but my point is that since the judiciary has yet to actually accomplish anything, the debate now is precisely and can only be about the existence and power of the judiciary. In fact, at the rate things are going we may have another election before the judiciary has even heard its first case.

[quote:2rj5c7jy]You have not told me how you have evaluated that. You are asking us to rely on your mere assertion: that is not good enough. I have presented precise numerical statistics. That is a far more staisfactory way of measuring things, especially when our economic health rests so importantly on the number of poeple paying land rent.[/quote:2rj5c7jy]

Come now, Ashcroft, are you playing dumb? Compare the number of residents actually engaged in forum conversation, or take a sample each hour of who's in-world on a CDS sim. Saying the number of residents has grown from 35 (which was actually at a low point as I recall because of the unpleasantness with Ulrika) to 61, perhaps 15 of whom are engaged in any meaningful way in the community, is not "present[ing] precise numerical statistics." It is one statistic, and not getting at what we're talking about anyhow. I'm not talking about our ability to continue paying tier; I'm talking about our ability to construct and maintain and grow a democratic community.

[quote:2rj5c7jy]How many people have you attracted to the CDS recently?[/quote:2rj5c7jy]

Your tireless efforts at recruitment are not in question. I appreciate them immensely. You may remember that I also work to bring in people (especially Esperanto speakers) and also try to cover the community via inworld journalism to draw people in. Do not mistake my criticism of your proposals as a criticism of your work ethic.

I must admit that I'm curious how people could be attracted, as you claim, by a judicial system that has yet to exist in any tangible way. Perhaps it is more fair to say that they, like you and I, were drawn by the potential of the community and the desire to further democracy and stable governance in SL.

[quote:2rj5c7jy]Do you seriously expect people to accept what you claim merely because you claim it?[/quote:2rj5c7jy]

Certainly not in all cases, but in a situation where one side (you) says, "A cumbersome governmental system has no deterrent effect on participation." and another side (me) says, "It deters me from participating," then yes, I expect people to accept the claim. I'm glad you went into law and not medicine. "What precise proof do you have that the left side of your body is numb?"

[quote:2rj5c7jy]Why do you conflate participating in [i:2rj5c7jy]government[/i:2rj5c7jy] with being a citizen of the CDS? We have many good people here who are happy citizens, attracted by our architecture and sense of community, but with no particular interest in government. Consider Roenik Newell, with her gestures shop in Neufreistadt, or Mizau Vavoom, with her architecutre business (Carpe Diem Designs) in Colonia Nova. [/quote:2rj5c7jy]

Oh, so we don't need a government at all then, I suppose. Architecture and community are found elsewhere in the anarchy of SL. I thought our purpose was to create a democratic community, and though I'm glad to have whoever will join us, I'm most glad to have those who will help further the goal.

[quote:2rj5c7jy] Again, this is a wholly unsubstantiated assertion: merely because you believe something to be so does not by itself entail that there is a silent majority who agree wtih you. [/quote:2rj5c7jy]

I stand by my claim that at least myself, Ranma, Rudy, and Beathan have expressed that the cumbersome nature of our local government have deterred their participation at various levels. I hope some of them, or others, will chime in to agree or correct me. I note that elsewhere Beathan has already corrected you on this matter. Whether or not it is a "silent majority", it is a number of people that is greater by multiples than the lone voice for preserving and furthering complexity.

[quote:2rj5c7jy]I am certainly not going to become part of the government: I am a judge, and intend to remain one. I have no intention of holding any political office. [/quote:2rj5c7jy]

Ashcroft, the judiciary is part of the government. Judges are, by extension, part of the government. Whether or not their office is elected or appointed is neither here nor there.

[quote="Ashcroft Burnham":2rj5c7jy][quote="Gxeremio Dimsum":2rj5c7jy]Don't confuse judicial independence and a power grab.[/quote:2rj5c7jy]

What do you think that judicial independence is such that you think that me doing what the constitution requires of me (publishing a set of judicial qualification requirements and determining a procedure by which it is determined who meets those requirements) is concpetually capable of amounting to a "power grab"?[/quote:2rj5c7jy]

Let me check my notes here...who proposed the Judiciary Act which requires you to do this? Who appointed himself Chief Judge (for life, I think)? Who singlehandedly created the Judicial Qualification Requirements and then put them up for "public consultation" but, despite numerous voices raising complaint, has yet to change one jot or tittle as far as I can tell? Who believes he has the sole power to choose other judges?

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Post by Ashcroft Burnham »

[quote="Beathan":2yijni5d]No, especially given your inability to recognize that selection of judges is a political act that involves far more important issues than mere legal hypercompetence. Personally, both in RL and in SL, I would rather have a judge who listens rather than a sorting machine, even if that sorting machine were a particularly good one. Further, I have never met a client or citizen who does not agree with me.[/quote:2yijni5d]

This is a wholly unfair and inaccurate analysis of all that I have written on judicial selection. The point that I have made time and time again is that [i:2yijni5d]both[/i:2yijni5d] legal skill and the tempremental qualities that you have discussed are [i:2yijni5d]equally[/i:2yijni5d] important, and that, in our two-stage appointment process, the existing judiciary principally deal with the first, and the Public Judiciary Scrutiny Panel principally deal with the second.

[quote:2yijni5d]I cam to this same conclusion the first time I read the judiciary act. I tihnk the act is overreaching and irresponsible. As I have stated elsewhere, the passage of this act during a DPU government is one of my primary objections to the DPU. Generally, I agree with most of the DPU programs and platforms. However, when the issue is big enough, I can become a single issue voter.[/quote:2yijni5d]

It really is most unfair to criticise something with vague generalisms. What precise parts of the Judiciary Act do you claim are over-reaching and irresponsible, and in what way are they over-reaching and irresponsible? What do they over-reach, exactly?

[quote:2yijni5d]This is a misrepresentation. The unethical issues did not deter me from submitting an application. I was planning to submit an application that restated my objection to the hypothetical, recast the question in a form that did not raise my concern, and then answered the recast question. However, when I turned my attention to the remaining questions, especially in light of the requirement that I rewrite most of them, the culmulative result was that it was unduly cumbersome. In fact, applications to RL judicial positions in my jurisdiction are less cumbersome than this one. I believe that Justice Soothsayer made a similar observation early on -- one that should have been attended to at the time.[/quote:2yijni5d]

That was not the impression that you gave when you wrote:

[quote:2yijni5d]Regretably, and on further reflection, I have decided not to apply for a judicial post given the current qualification procedure. My reasons for this decision are stated in my earlier posts, but primarily include:

1. my inability to answer approximately half the questions asked in the application process under principles of judicial ethics I hold;

2. my feeling that the remaining questions are either too vague to be appropriately answered or require a work burden out of all proportion to the requirements of the office as it is constituted now and into the foreseeable future;

3. my deep skepticism that the qualification process even approaches the critical characteristics of the office.[/quote:2yijni5d]

[quote:2yijni5d]In fact, there is a vocal majority that agree with him. If we look over this thread, we find one, and only one, advocate for Ashcroft's position -- Ashcroft. We find one skeptical neutral -- Justice Soothsayer. We now find seven voices raised in opposition. That indicates something real.[/quote:2yijni5d]

Seven is not a majority of 61.

[quote:2yijni5d]I am not saying that parties cannot present cases on agreed facts. They do -- it is very rare in the U.S. -- but they do. What I am saying is that the hypotheticals are dangerously general. They have a tendency to prejudge cases because they are part of an application process.[/quote:2yijni5d]

This is a wholly new point not raised before. What, precisely, about being part of an application process is distinctive in causing, do you claim, the answering of such questions to prejudice future cases that are in some respects similar to them?

[quote:2yijni5d] With a few exceptions (questions that I believe omit facts that would have to be found out to answer the question), I believe that I could decide cases based on the hypotheticals if they came to me on stipulated facts. That is not the point. The point is that there is something confining in hypothetical questioning -- they will tend to limit the freedom of decision of honest judges is harmful ways.[/quote:2yijni5d]

Why does this apply to hypothetical questions and not to real judgments on equally limited facts? What is this mysterious "something limiting"?

[quote:2yijni5d]For this reason, they are not proper in judicial selection. If real parties present real facts with such limits to a judge, this problem does not arise because the judge is evaluating a real case in a real factual circumstance.[/quote:2yijni5d]

What about it being real prevents the problem from arising?

[quote:2yijni5d]This sounds like a form of pleading that has been abandoned in the United States (with the possible exception of Oregon). Most U.S. jurisdiction require what we call "notice pleading" -- that is, a pleading is sufficient if it informs the other party, in extremely general terms, what the case is about and what kind of law applies. Specific facts need not be plead -- although they must later be proved. Thereafter, the parties engage in discovery to root out the facts, often adjusting theories of the case in light of what they learn. In fact, in my ten years of litigation work, I cannot think of a single trial my firm has done that went to trial on the set of facts we understood at the outset. Every case involved some discovery during litigation that had some effect on what we presented at trial and what legal theory we tried. In fact, some cases changed in radical ways. I think this is a strength, not a weakness, of our system. It gives us the flexibility to learn and adapt to the truth through litigation. Placing a "learn the complete story first" requirement unfairly retards litigation -- presenting an insurmountable burden to filing some cases that should be heard.[/quote:2yijni5d]

I was speaking to a Scottish QC yesterday about legal procedure. The Scottish legal system uses the full propositional pleading system that I described. The advantages, as he described them, of such a system are that the issues are made clearer and resolved sooner, and there are fewer unnecessary hearings. Those hearings that there are tend to be shorter because the issues have been defined in advance.

People often tend to privilege and favour systems with which they are familliar in debates about which systems should apply. Because of our international status, no one system will be familliar to everyone. We must look independently to the merits of such systems, and especially the merits as applied to a virtual world, in which scheduling trials and other hearings is a very difficult feat, given the different timezones.

[quote:2yijni5d]In this -- as in most things -- our watchword should be "flexibility".[/quote:2yijni5d]

No, the watchword should be "balance". Flexibility must be balanced against predictability to produce fairness and efficiency.

[quote:2yijni5d]Perhaps before Ashcroft accuses me of being wrong, we should have a vote on the subject. I think both my view and his have been throughly aired. I am confident that this polity would, for the most part, share my ethical instincts and support my ethical analysis. If not, I would be willing to submit to the ethical judgment of the majority -- as any member of democratic civil society must do at some point.[/quote:2yijni5d]

Do not confuse what is popular with what is right. Merely because we all recognise democracy as an important check on [i:2yijni5d]political[/i:2yijni5d] power does not (and cannot, for it is incoherent) entail that what is popular must be right. That is to fall into the ad populam fallacy. To support democracy does not entail falling into the ad populam fallacy.

[quote:2yijni5d]I am not sure what a scientific "fair test" is. In fact, I am not aware of any science that has anything to say about what is fair or not. That is an ethical, not a scientific, judgment.[/quote:2yijni5d]

A fair test, in a scientific sense, is a test that accurately evaluates the things that it seeks to evaluate in a consistent way. A fair test is one in which the criteria applied to each thing tested are the same so that the results of each test are meaningful in comparison to the results of each other test. There is nothing distinct about science and any other kind of test in this regard: science is just the application of general reasoning to the discovery of facts about the natural world.

[quote:2yijni5d]Perhaps I should not have used the phrase "rule of law". What I meant was this. Based on reasons similar to those set forth by Rudy in his discussion of government and its purposes, I believe that freedom (at least negative freedom -- freedom from government) exists in the space between law and anarchy. If the law expands to fill this space -- fully defining the realm of human activity up to the point of anarchy -- everything we do, say and are becomes subject to legal control, and the only escape from this totalitarian rule is anarchy. This is unhealthy, debilitating, anti-democratic, and very dangerous. I agree with the rule of law over everything that should be ruled -- but I don't believe that everything should be ruled.[/quote:2yijni5d]

Nobody is going to deny that the law ought govern only that which the law ought govern: as you have expresed it, what you are claiming is merely truistic. But you seem to have been claiming above that I was claiming something contrary what you were claiming. If what you were claiming is trueistic, then you must have been claiming that what I was claiming was incoherent. Where, do you claim, is the incoherency? Where have I claimed that law ought do more than, in fact, it ought do? And what does any of this have to do with the point that I was making, which was about the rule of law?

[quote:2yijni5d]This is very sad. It dooms the UK to a real economic disadvantage to more classically liberal societies woth stronger commitments to free association. I hope that the CDS does not follow the UK down this dismal road.[/quote:2yijni5d]

There is a lot to be said for this criticism: the law of indirect discrimination in Europe is in many ways oppressive. Nonetheless, the case does illustrate the point that fairness in recruitment entails applying the same recruitment criteria to all. In the UK, it is unheard of for any kind of office, whether public or private, in any organisation of any size to be fulfilled without a recruitment process that is scrupilously fair to all in the sense of applying exactly the same procedures and tests. The general practice is that, even in interviews, the questions must be the same unless there is a good reason to ask a particular candidate something different.

[quote:2yijni5d]In an earlier post, you referred to a "purposive" interpretation of the Constitution. The purpose of our constitution is to create and ensure democratic institutions allowing for real self-rule and control over our government. This process contravenes that purpose.[/quote:2yijni5d]

It is no less a part of the purpose that our institutions bindingly resolve disputes between people about how our government should be structured by providing for representative democracy and a written constitution that precisely sets out what government can and cannot do. It contravenes that purpose to construe the constitution in the way that you seek to do.

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Re: Wow

Post by Ashcroft Burnham »

[quote="Gxeremio Dimsum":2czt8lqn]Again, I get the feeling that trying to help you understand another point of view is a waste of time. [/quote:2czt8lqn]

Are you [i:2czt8lqn]seriously[/i:2czt8lqn] suggesting that you posting is a waste of time unless I end up agreeing with you? Why should I agree with you if you are wrong? Why is it any more a waste of time that I do not capitulate to your position than that you do not capitulate to mine?

[quote:2czt8lqn]The crux of your argument seems to be that "This is already decided. Over and done with. Move on." But numerous people disagree with the way things are going, as evidenced by the formation of the Simplicity Party, posts in the forum, and the polls at http://forums.neufreistadt.info/viewtopic.php?t=440 and http://forums.neufreistadt.info/viewtopic.php?t=534 that show more people want change than like the current system. [/quote:2czt8lqn]

Neither the manifesto of the Simplicity Party or either of the polls has anything to say about judicial selection. What your point is, therefore, I have no idea. Did you even read "on stability"?

[quote:2czt8lqn]Your analogy was that presidential power and the office of the president should not be under fire in an argument about this particular president, but my point is that since the judiciary has yet to actually accomplish anything, the debate now is precisely and can only be about the existence and power of the judiciary. In fact, at the rate things are going we may have another election before the judiciary has even heard its first case.[/quote:2czt8lqn]

The next elections are going to be in January. As I have posted elsewhere, having started writing the Code of Procedure shortly after the Judiciary Act was passed, I am now more than two thirds done with it. We will be able to have cases presented in our courts well before January.

Furthremore, the fact that our judicial system is not fully functional is [i:2czt8lqn]more[/i:2czt8lqn], not less of a reason not to change it so soon after it has been established, since, until it is functional, there will not be any data upon which to base any evaluation of how it is performing that might show that decisions taken in its establishment were either wrong or right.

[quote:2czt8lqn]Come now, Ashcroft, are you playing dumb? Compare the number of residents actually engaged in forum conversation, or take a sample each hour of who's in-world on a CDS sim.

Saying the number of residents has grown from 35 (which was actually at a low point as I recall because of the unpleasantness with Ulrika) to 61, perhaps 15 of whom are engaged in any meaningful way in the community, is not "present[ing] precise numerical statistics." It is one statistic, and not getting at what we're talking about anyhow. I'm not talking about our ability to continue paying tier; I'm talking about our ability to construct and maintain and grow a democratic community.[/quote:2czt8lqn]

You well know that the people who participate in the forums are a minority of users. Indeed, you yourself were reluctant to become involved in forum discussion until I persuaded you to do so some months ago. As to who is active in the sims, it rather depends on the time of day.

Furthermore, there is no basis in reason for any assertion that the level of any such activity has any relationship whatsoever to the complexity or otherwise of our government. Why do you claim that the government has any more to do with it than, for example, the lack of entertainment activities, or structured non-governmental organisations (the latter of which Pat is working very hard to address: I applaud his efforts).

[quote:2czt8lqn]Your tireless efforts at recruitment are not in question. I appreciate them immensely. You may remember that I also work to bring in people (especially Esperanto speakers) and also try to cover the community via inworld journalism to draw people in. Do not mistake my criticism of your proposals as a criticism of your work ethic.

I must admit that I'm curious how people could be attracted, as you claim, by a judicial system that has yet to exist in any tangible way. Perhaps it is more fair to say that they, like you and I, were drawn by the potential of the community and the desire to further democracy and stable governance in SL.[/quote:2czt8lqn]

No, many of the people were [i:2czt8lqn]specifically[/i:2czt8lqn] attracted by the prospect of participating in a judicial system in a virtual world. A number of people (Michel Manin, Blue McDonagh, Jeremy Utaid, Rose Springvale) have set up or are in the process of setting up law firms in the CDS, partly in some cases, and wholly in others, to serve the needs of litigants in CDS courts.

[quote:2czt8lqn]Certainly not in all cases, but in a situation where one side (you) says, "A cumbersome governmental system has no deterrent effect on participation." and another side (me) says, "It deters me from participating," then yes, I expect people to accept the claim. I'm glad you went into law and not medicine. "What precise proof do you have that the left side of your body is numb?"[/quote:2czt8lqn]

It does not deter you from participating: what are you doing now but participating?

[quote:2czt8lqn]Oh, so we don't need a government at all then, I suppose. Architecture and community are found elsewhere in the anarchy of SL. I thought our purpose was to create a democratic community, and though I'm glad to have whoever will join us, I'm most glad to have those who will help further the goal.[/quote:2czt8lqn]

Our purpose is not to have a government for the sake of having government: our purpose is to create a democratic community in which the rule of law prevails because democratic communities in which the rule of law prevails are better communities in general than other sorts of community. The purpose of our government is not to serve its own ends, but to serve the needs of all of our citizens, including (in fact, especially) those who are not themselves involved in the process of government. The only point of having a democratic community in which the rule of law prevails is because such a community is better for culture, commerce and general habitation than other sorts of communities, because we can co-ordinate things better and resolve disputes better.

[quote:2czt8lqn]I stand by my claim that at least myself, Ranma, Rudy, and Beathan have expressed that the cumbersome nature of our local government have deterred their participation at various levels.[/quote:2czt8lqn]

Rudy has not been deterred from participation: he is participating by joining the Simplicity Party. Indeed, he is participating [i:2czt8lqn]because[/i:2czt8lqn] he dislikes our present government structure. Beathan decided not to apply for judicial office because he thought that the qualification form had questions that he considered to be unethical and that it was too long, not because the institutions themselves would be too cumbersome. Ranma sold her property in Colonia Nova in protest at a covenant prohibiting commercial pornography. In any event, four is not a majority of 61.

[quote:2czt8lqn]I hope some of them, or others, will chime in to agree or correct me. I note that elsewhere Beathan has already corrected you on this matter.[/quote:2czt8lqn]

He has contradicted me, not corrected me. See above for the response.

[quote:2czt8lqn]Whether or not it is a "silent majority", it is a number of people that is greater by multiples than the lone voice for preserving and furthering complexity.[/quote:2czt8lqn]

I do not believe in complexity for its own sake: I believe in building institutions and systems that work [i:2czt8lqn]properly[/i:2czt8lqn], however simple or complex that such institutions or systems be. I do not believe that it is a valid criticsm of an institution or system merely to state that it is complex, rather than to show that any given part of the complexity has no useful function at all.

[quote:2czt8lqn]Ashcroft, the judiciary is part of the government.[/quote:2czt8lqn]

Not on the definition of "government" that prevails in the UK.

[quote="Ashcroft Burnham":2czt8lqn]Let me check my notes here...who proposed the Judiciary Act which requires you to do this? Who appointed himself Chief Judge (for life, I think)? Who singlehandedly created the Judicial Qualification Requirements and then put them up for "public consultation" but, despite numerous voices raising complaint, has yet to change one jot or tittle as far as I can tell? Who believes he has the sole power to choose other judges?[/quote:2czt8lqn]

Who approved the Judiciary Act after months of debate during which the Act was rewritten countless times? Who qualified then appointed the first judge, who was always intended to become the Chief Judge (see Moon Adamant's comments on the matter in the last but one transcript of the CSDF meeting)? Who suggested in the first place the idea that judges be qualified on the basis of written qualification requirements drafted by existing judges?

Ashcroft Burnham

Where reason fails, all hope is lost.
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