Does the UDHR apply to the CDS?

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

Moderator: SC Moderators

User avatar
Fernando Book
Forum Admin
Forum Admin
Posts: 92
Joined: Fri Sep 15, 2006 2:39 pm

Post by Fernando Book »

[quote="FR":3bn8km7p]AFAIK, the SC has the power to declare existing laws unconstitutional? That is, the SC can (and has, iirc) review existing law for constitutionality after the 48 hours expires. Or is this someting the JA disallows?[/quote:3bn8km7p]
No, you're right, but it would be a bit strange to jump into a law months after its approval; at least doing it without the request of some body of the government. I think leaving this door open without a limit in the time is undesirable, and puts a Damocles' sword on every law.
Of course, the RA may think in a procedure to give, say, the judges in some circunstances, the factions or a given number of citizens (only in the few weeks following the approval of the law), the right to bring before the SC a question of unconstitutionality.

Last edited by Fernando Book on Tue Jan 02, 2007 2:13 pm, edited 1 time in total.
Beathan
Forum Wizard
Forum Wizard
Posts: 1364
Joined: Sun Oct 29, 2006 3:42 pm

Post by Beathan »

Oni wrote [quote:mtpkwbud]The only way to avoid that situation is to give judges veto power on legislation or for the RA and SC not to pass abominable legislation in the first place. As I've said, i think the later solution is currently the better approach. Ultimately, we have to trust to the good sense of the electorate and the soundness of our elected officials to protect us here.

Speaking as a judicial applicant, if the CDS law required me to do something I found morally repugnant, I would resign. Which I hope is what I would do if a similar situation arose in RL. Ultimately, it's not for a judge to decide what law he wants to apply. If its a matter of law or conscience it's all or nothing, you can't try to hang onto bits of each. [/quote:mtpkwbud]

This is the worst possible approach to take. It eviscerates the civil liberties check an indpendent judiciary is supposed to have on the other branches of government. I think that the Nazi example best illustrates this -- but I will use other examples if I must.

I agree that judicial "veto" is a bad idea -- but Judicial review of statutes to see if they protect civil and human rights, applying the UDHR as a yardstick, is essential. The critical difference here is that the Judiciary will approach the statute from the perspective of case -- from a specific fact pattern -- rather than as an abstract question. This provides a double check. First, the SC and executive test statutes in the abstract through their veto. However, because some problems hide until they appear in the context of a specific interaction -- a specific case -- judicial review provides an additional protection.

I think that judges should not resign rather than do morally abominable things -- or assist in the violation of human rights. Judges should act to protect those rights by invalidating laws that violate human rights. Even if the judge is impeached -- or beheaded -- as a result of this defense, the judge should nonetheless take the right stand. However, legalist judges will not take the stand unless they have some express legal basis on which to do so. Therefore, if Ash and his applicants are to be judges, we need the UDHR to be law.

Let's say the Goreans pass a "Fugitive Slave Law" -- and the RA and SC agree to respect it. A Gorean slave, under this law, if seen outside a Gorean Sim (in NF for example) must be caged until her Master can retrieve her. If all the judges who disagree with this law on human rights grounds resign -- to be replaced by judges who agree with the law in disregard to human rights -- how are we helped? How are human right preserved? The individual resigning judges keep their hands clean, but the CDS is still bathing in the blood of the innocent.

In other words, if the Judiciary is supposed to be a check on the abuse of power by the other branches (the RA and the SC), we cannot have judges who resign rather than check such abuses. Such resignation increases the depth of oppression by running away form it. Our judges, like our leaders in all branches, must have the moral courage to exercise their power to crosscheck and prevent oppression. We cannot be comforted by moral cowardice in the face of corruption, even if it is soundly based on a convenient theory.

Now, as with all exercises of power, this power of judges to check oppression is not boundless and should not be used arbitrarily. It should be based on expressed rules. For most of us, it should be based on principles. For legalists, who reject principles as a matter of principle, it should be based on clearly applicable civil rights law. In either case, we must have something judges can apply to prevent oppression -- and we must also have checks on the judiciary (some limit to its total independence) so that it does not iteself become oppressive. This is a difficult balancing act, but a critical one. I support simplicity here not only because simple things tend to be better and easier -- but also because the working out of this balance is already complex enough to require our complete attention. We cannot afford to be distracted by the complexity of the stuff on one side of the scale when we should be focussing on the scale itself.

Further, despite claims to the contrary, I am not opposed to process. I am simply opposed to monstrous, monolithic, hyperprocess of the kind Ash proposes. I think -- and have consistently thought -- that we need some process, but that it should be as minimalist and as flexible as possible given the uncertainties of our project, and the simultaneous smallness and diversity of our community.

That said, saying that the UDHR will be treated as principles that guide the Common Law does not tell us anything worth knowing. Will those principles expressly guide or determine decisions? If so, how are they different from laws? If not, exactly what use will they serve such that we can have any confidence that they will inform decisions?

Ash's example, concerning free speech, was essentially this --

1. Plaintiff claims a free speech right under the UDHR.

2. This right exists, but as a human rather than a legal right, it has no force of law.

3. However, the Court rules, as a matter of CDS Common Law, that the CDS has recognized a right of free speech.

4. Therefore, Plaintiff wins, but not on the basis Plaintiff claims.

There are several problems here.

First, without a preexisting tradition of Common Law, the Court are free to make things up. Therefore, from a pure legal matter, the Court could have just as easily have said, "freedom of speech is not recognized in the Common Law of the CDS" -- or, more likely, "while the CDS recognizes freedom of speech, it imposes standards of politeness on that speech, and Plaintiff's speech, in the Court's opinion, was impolite and therefore unprotected."

Both these results would essential deny human rights under the veil of judicial discretion to determine the common law in the absence of binding prior authority. Because Common Law judges have this power and discretion, we must be very, very careful who we have as our judges. We must scrutinize the persons of our judges, to a very deep and detailed level -- and anyone uncomfortable with such scrutiny should not seek such power.

Second, this analysis expressly disregards the UDHR, although it reaches a result consistent with the UDHR. However, the Constitution expressly requires all branches of government, including judges, to act to uphold the UDHR. You cannot act to uphold the UDHR without having the goal of upholding the UDHR in view as the end you are seeking. Therefore, even if the result reached by the Court here was consistent with the UDHR, by expressly disregarding the UDHR, the Court has nonetheless acted unconstitutionally.

The only way to avoid is problem is to expressly consider and apply the UDHR. However, for a legalist judge to do that, the UDHR must be law and not just principle. Either we need to make the the UDHR law in the CDS, or we need to make sure that we have no legalist judges.

Third, in the absence of an established common law, where are citizens supposed to look for their rights? I think that the answer is -- "in the UDHR." However, if the UDHR is the source of rights claims, why should we reject the Plaintiff's argument (even if we accept its conclusion) that the UDHR provides for this right and requires protection of this right. Again, on a Hohfeldian, legalist view -- we either have a right as a matter of law (have it in a manner that simultaneously imposes a legal duty on others to respect it), or we don't have it in any useful way. Such rights are like judgments against bankrupts -- suitable for framing and cocktail party talk, but lacking in any real cash value.

Beathan

Let's keep things simple enough to be fair, substantive enough to be effective, and insightful enough to be good.
Oni Jiutai
Seasoned debater
Seasoned debater
Posts: 69
Joined: Thu Dec 07, 2006 3:42 pm

Post by Oni Jiutai »

[b:m4db40bt]Resignation[/b:m4db40bt]

As I read the current law, the judiciary doesn't have any power to veto legislation on the basis that it's unconstitutional. That power is entirely in the hands of the SC.

It therefore follows that if a [i:m4db40bt]Fugitive Slave Law[/i:m4db40bt] were passed and ratified the Court has no power to say "This law is a breach of Article 4 of the UDHR and I strike it down." As I said, I think there are sensible argument either way on whether Courts should have those powers - but as it stands the CDS ones don't.

Therefore if such a law is passed a judge dealing with it has three choices:
[list:m4db40bt]Apply the law as written
Refuse to apply the law
Resign[/list:u:m4db40bt]

Now the problem with the first is obvious. Slavery is morally repulsive and nobody should be a party to it.

The problem with the second is that judges can't - or at least shouldn't - refuse to apply the law. The whole role of a judge is to apply the law; there is no other moral basis for a judges decisions to have any force. Acting outside the law is simply not ethically acceptable in the role of judge. It's a betrayal of trust and a betrayal of the democratic system. And, least importantly in some ways, must be an indictable offence.

Therefore, at least in my view, the only ethical route is to simply refuse to apply an immoral law, by resigning.

Now, of course, this doesn't solve the problem that Human Rights are being violated, but at least it doesn't add the further problem of having a judiciary that's ignoring the law on the basis of their personal morality - which, after all, might touch on matters much less uncontroversial than slavery.

Now, if people want judges to act as a final check on the legislature, by having the power to strike down legislation if it breaches a constitutional provision, then that could be done. At that point the hypothetical judge isn't acting outside the law, but within it, and the problem doesn't arise. But it would need a constitutional amendment and would substantially increase judicial power, which I don't think we want to do at this stage. If we do think we need a further check (and I'm not immediately convinced that our present checks are insufficient), I much prefer Fernando's suggestion of a sort of emergency referral to the SC.

[b:m4db40bt]Application of the UDHR[/b:m4db40bt]

[quote:m4db40bt]First, without a preexisting tradition of Common Law, the Court are free to make things up. Therefore, from a pure legal matter, the Court could have just as easily have said, "freedom of speech is not recognized in the Common Law of the CDS"[/quote:m4db40bt]

You see, I think this is exactly what they can't do - because they are bound to uphold the UDHR.

Balancing competing rights is more complicated. In the free speech example, one must balance Article 19, freedom of speech, with a number of other rights. Indeed, Article 19 must be balanced with itself! For example, if a group of people want to exercise their Article 19 rights by holding a small meeting to discuss a legal issue, do I have the the right to break in and start explaining my own ideas, if they don't want me to and feel I'm disturbing their meeting?

That problem exists regardless of the way the right is protected. i don't think the questions get any less difficult by making the UDHR a law, rather than a statement of principle. In the CDS, although judges certainly have a role to play, those decisions are ultimately in the hands of the RA, who can pass legislation to lay down how the rights balance.

[quote:m4db40bt]Second, this analysis expressly disregards the UDHR, although it reaches a result consistent with the UDHR. However, the Constitution expressly requires all branches of government, including judges, to act to uphold the UDHR. You cannot act to uphold the UDHR without having the goal of upholding the UDHR in view as the end you are seeking. Therefore, even if the result reached by the Court here was consistent with the UDHR, by expressly disregarding the UDHR, the Court has nonetheless acted unconstitutionally. [/quote:m4db40bt]

Well, I'm afraid I don't think I agree. It argues that the UDHR is not part of the Code of Laws, not that it should be disregarded. I'm afraid I don't see any inconsistency between regarding the UDHR as a binding statement of principles, which everybody, including judges is required to seek to give effect to and not regarding it as a piece of law.

A somewhat helpful, if ultimately flawed analogy, is probably the "rules" created by the SL software. The way the SL world works isn't a "law" either, but clearly any decision maker in our government, including a Judge must have regard to it. Obviously, SL physics have a practical, rather than moral force, which is where the analogy breaks down, but it does at least demonstrate that things that aren't laws can have considerable importance.

[quote:m4db40bt]The only way to avoid is problem is to expressly consider and apply the UDHR. However, for a legalist judge to do that, the UDHR must be law and not just principle. Either we need to make the the UDHR law in the CDS, or we need to make sure that we have no legalist judges. [/quote:m4db40bt]

Insofar as I think a problem could exist here, haven't we solved it by inserting into the Constitution (which is definitely a source of law) a requirement that Judges must uphold the UDHR?

It seems to me that any Judge who doesn't consider and seek to give effect to the UDHR, is in clear breach of the law and subject to impeachment.

[quote:m4db40bt]Third, in the absence of an established common law, where are citizens supposed to look for their rights? I think that the answer is -- "in the UDHR."[/quote:m4db40bt]

Well, I agree. All citizens should be aware that the judiciary, and thereby the Common Law, must be guided by the UDHR.

Beathan
Forum Wizard
Forum Wizard
Posts: 1364
Joined: Sun Oct 29, 2006 3:42 pm

Post by Beathan »

Oni --

First, with regard to your assertion that the "rules" created by SL's software are not a "laws" -- at least within the context of SL -- I disagree. The counteranalysis was made by Lawrence Lessig, in his books [i:2t4ti23l]Code[/i:2t4ti23l] and [i:2t4ti23l]Code 2.0[/i:2t4ti23l] far better than I could make it. However, the basic point is that the Code (computer programming) that supports the Internet (including all virtual worlds on the Internet) is true Code in the legal sense as well.

But -- the critical point concerns whether judges should resign when asked to apply statutes or other laws that violate human rights. There is a fourth option-- making the UDHR law, even paramount law (or treating it as unswerving and inviolable principles, if the judge is not a legalist). One of the primary judicial functions is to reconcile laws that are in conflict. Sometimes the laws can be reconciled by interpreting them in a manner that resolves the apparent contradiction or tension between them. In other cases, however, there is an irreconcilable conflict. In such case, the judge must take a stand and must say "I will apply law X and refuse to apply law Y because I cannot apply both and there is something about law X that privileges it over law Y."

Note that this involves conflicts of laws -- not Constitutional interpretation. The Constitutional power reservation in the SC is not implicated here at all. Rather, judges have the right and duty to invalidate oppressive laws on civil rights grounds by simply determining that the law is in irreconcilable conflict with the rights of CDS citizens and, therefore, is trumped by those rights. No Constitutional interpretation (beyond the initial one -- that the UDHR demands respect) is necessary.

I think the UDHR can and should be treated as privileged law such that when another law conflicts with the UDHR, judges apply the UDHR even if it means invalidating the conflicting law. I think that most members of our community believe that this is the right way to resolve such conflicts. I would like to see the current and potential judges -- and the C.A.R.E. partisans -- confirm that the UDHR will be given this kind of respect. So far, such reassurance has been entirely lacking from all these quarters.

It really is cold comfort to me for you and Ash to say, well, we won't just make up the Common Law. We will apply the UDHR principles -- but not the UDHR -- when fashioning our Common Law. If there is no Common Law in place, judges can make it up. That is what common law means. Common law operates by applying precedent from prior cases. If there is no precedent or binding statutory law (as there is none here as we have no legal history that we are looking to), then the case is a "matter of first impression." In such case, the judge has broad discretion to fashion, in his wisdom, whatever result he considers appropriate, applying whatever standards seem just to him. This is an extreme and frightening power.

In America we are very much in touch with this problem -- requiring specific rules of judicial restraint and specifically scrutinizing potential judges to ensure that they will show restraint. Perhaps England does not have this problem with its judges. Perhaps English judges need no institutionalized restraint or pre-appointment scrutiny because there is something inherently restrained about the English. However, we are not all English. We need to be ensured that our judfge will be restrained even if they are not English.

I really don't want to face a situation in which the citizens of the CDS are forced to conclude of our judiciary that "Oni lacks all conviction, while Ashcroft is filled with passionate intensity."

Beathan

Let's keep things simple enough to be fair, substantive enough to be effective, and insightful enough to be good.
Oni Jiutai
Seasoned debater
Seasoned debater
Posts: 69
Joined: Thu Dec 07, 2006 3:42 pm

Post by Oni Jiutai »

[quote:3lpc5vj7]I think the UDHR can and should be treated as privileged law such that when another law conflicts with the UDHR, judges apply the UDHR even if it means invalidating the conflicting law. I think that most members of our community believe that this is the right way to resolve such conflicts.[/quote:3lpc5vj7]

I completely agree that this is an option and one that many people might agree with. I personally disagree, because I think it gives Judges too much power and assigns them responsibility for policy decisions which are best left with the legislature. Others may think that such judicial power is a valuable check on the legislature; it's something that reasonable people can disagree about.

The point is that I don't think it's the way that the Constitution is currently written. I don't see any principled way of avoiding the rule that the Court is bound by duly ratified Acts. The Constitution, to my mind, forbids Judges interfering with the RA and SC conclusion that an Act is constitutional. If people want that to change, then that can be done, but I'm firmly convinced it would require a constitutional amendment.

[quote:3lpc5vj7]It really is cold comfort to me for you and Ash to say, well, we won't just make up the Common Law. We will apply the UDHR principles -- but not the UDHR -- when fashioning our Common Law[/quote:3lpc5vj7]

Of course. Which is why, I would respectfully suggest, there is a requirement in the Constitution to apply the UDHR principles and an impeachment power to enforce the Constitution. Not to mention the RA's power to override any common law with legislation.

User avatar
Ashcroft Burnham
Forum Wizard
Forum Wizard
Posts: 1093
Joined: Thu Aug 03, 2006 3:21 pm

Human rights, sources of law, policy, and applicability

Post by Ashcroft Burnham »

[b:3fbzeg61][u:3fbzeg61]Human rights, sources of law, policy, and applicability[/u:3fbzeg61][/b:3fbzeg61]

Both Beathan and Gwyneth raise a number of points in relation to human rights, and the relationship between international declarations of them and sources of law, and the relationship between the rights themselves and legal rights, which need to be addressed. Oni has already made some helpful comments, and I hope here to expand upon them.

There are, as far as I can tell, several questions: (1) are human rights important; (2) are human rights the same sorts of things as legal rights; (3) is it wise to have a human rights declaration treated as a source of law; (4) is the UDHR in fact a source of law in the CDS; and (5) if it is not a source of law, what is its significance, since express reference is made to it in the constitution? The last question also covers Gwyneth's question on another thread, which I answer here, about what a court ought to do when people make references to the UDHR in court.

[b:3fbzeg61]1. Are human rights important?[/b:3fbzeg61]

Human rights are those background rights, as Harris calls them, that are due to all people by virtue only of being human. The idea arose shortly after the second world war, when people were appalled that whole groups of people had been treated by certain dictatorial regimes as less than human, and, additionally, that entire populations had been denied important freedoms by dictatorial regimes the denial of which was considered to amount to oppression.

Human rights declarations, such as the [url=http://www.un.org/Overview/rights.html:3fbzeg61]UDHR[/url:3fbzeg61] were drafted as a response to such atrocities and oppressions, as a statement of principles about what the world, represented through the then newly-formed United Nations, would and would not stand for in the future.

Contrary to what might have been assumed at the time that the UN was formed, and the Declaration written, human rights abuses do not come just in the form of mass murder by brutal despots; more subtle and insidious human rights abuses can occur relatively unnoticed under outwardly civilised and even democratic regimes: the U. S. slave trade is perhaps one of the most prominent examples, but consider also, for example, laws prohibiting blasphemy. As any of us who have attended Rudy's celebrated seminars will know, there is considerable empirical evidence to support the claim that he makes that, even amongst democracies, those democracy that Rudy calls "liberal democracies" (i.e., those which respect (1) the rule of law; and (2) human rights), the incidences of democide (the killing of citizens by government) and of corruption are lower, and economic prosperity is higher than in mere "electoral democracies" (although, for completeness, it should be noted that the evidence also shows that even democracies that do not respect human rights or the rule of law are better in those respects than non-democracies).

There can be no doubt that human rights are important: it is positively unpleasant (one might say oppressive) to live in circumstances where one faces, for example, arbitrary deprivation of property or liberty, where one is not free to express oneself as one pleases, or one is treated less favourably merely because one is of one or another race.

The relevance of human rights to a virtual world is another, more complicated question entirely - I rather suspect that nobody has yet quite grasped the subtleties of the distinctions necessary for things to make sense. Two well-known positions as the Koster argument and the Llewelyn argument. The Koster argument is that the virtual world is a very different place from the real world, and that virtual-world-specific "avatar rights", like human rights, but special to avatars, and substantially different in content, need to be developed for virtual worlds. The Llewelyn argument is that the virtual world is a subset of the real world; an avatar is like an e-mail address or a telephone number, not a special kind of person, and that human rights apply to people interacting through virtual worlds in the same way as they apply to people making telephone calls or sending e-mails: the medium is irrelevant, it is the fact that it is humans who are doing the interacting that counts. There is a great deal more to be considered about the two arguments (and whether they are as opposed as one might imagine), and I may do so in future, in a different thread (probably not in these fora, but on the SL Homepage forums, since it is not a CDS-specific issue).

However, what is clear about human rights in the virtual world is that consideration of some rights is irrelevant, not because the rights themselves are unimportant, but because it is, in practical terms, just plain impossible to violate them through the medium of SecondLife: one cannot be killed, for example, through SecondLife, nor can a child be denied education through SecondLife, nor can one be denied an adequate standard of living or health, nobody can use SecondLife to stop people from founding a family, and so forth. What is being considered when we consider human rights is that specific subset of rights that are practically capable of being violated in SecondLife, such as the freedom of expression or association, not to be deprived arbitrarily of property, and so forth. In turn, it only makes sense to conceive of those as being violable through the medium of SecondLife if one takes the virtual world as if it were a real world, and virtual property, for example, as if it were, for the purposes of the right in question, real property, arbitrary deprivation of which is a violation of one of the rights. No doubt, we do take the virtual world seriously to that extent, or else we would, I imagine, unless we just wanted to role-play, not have formed a government in the first place. If we did just want to role-play, incidentally, the human rights of our assumed characters would probably not matter a great deal, since being arbitrarily deprived of property (etc.) in character would be the functional equivalent of being killed in character in many a game in which that is possible, albeit, I daresay, somewhat less exciting (one can conceivably imagine a first-person 3d computer game that entailed, instead of trying to kill as many of one's adversaries as possible, trying to deny as many of them as possible a nationality, or prevent them from exercising a right to freedom of speech, but I suspect that it would not sell well; I digress).

To surmise, therefore, to the extent to which we treat the virtual world as seriously as if it were a real world in itself (as we must do if we are bothering to have a government in the first place), and in any event to the extent to which our real-world human rights (such as, for example, privacy) can be violated through the medium of a virtual world, human rights are, indeed, important and deserving of protection. The questions that remain, therefore, are essentially about (1) what precisely these rights that are being upheld are; and (2) how best to uphold them.

[b:3fbzeg61]2. Are human rights the same things as legal rights?[/b:3fbzeg61]

There are two quite unconnected reasons to answer this question in the negative. The first is this: a legal right is only capable of existing if provided for in some positive source of law, and is applicable only to persons in the jurisdiction to which that source of law applies. My legal right, for example, not to be unfairly dismissed if I am employed comes from the Employment Rights Act 2003 passed by the UK Parliament, and only applies to me because, and to the extent that, (1) the UK Parliament happened to pass an Act prohibiting unfair dismissal; and (2) I am in the UK. If Parliament had not passed that Act, or any similar act, or I lived, for example, in Botswana, I should not have that right. That is not so of human rights: they are, as stated above, rights which, by their very nature, are applicable to all people in consequence only of their being human. People would have human rights even if there was no law (although at least some of their rights would likely be violated in consequence of having no law), but it would be conceptually impossible for anybody to have any legal rights if there was no law. This might be what Gwyneth means when she writes that human rights are "above" legal rights, although that could do with some clarification.

The second reason is that human rights and legal rights are analytically distinct as to their inherent nature. Beathan rejects Hohfeld and Harris's arguments, as far as I can see, without having read Harris's (the text is not available on the internet, and I doubt that he went to his local law library and found the Law Quarterly Review before posting his hasty and highly vitriolic reply), and without really understanding either. Beathan claims, for example, that the U. S. rejected Hohfeld's analysis of rights in the 1950s when its supreme court acted on a "fundamental right to privacy" that, they found, prohibited sterilisation for eugenic purposes. What Beathan entirely fails to appreciate is that Hohfeld's theory, being inherently an analytic theory about the nature of law, tells us, of itself, nothing about what the practical outcomes of court cases should be: Hohfeld might have exhorted judges and legislators to make their legal relationalities explicit in their judgments and legislation, and to avoid confusion, but there is nothing in Hohfeld's theory that would, if followed, prevent the U. S. Supreme Court having reached the decision that it did in the case that Beathan cited (although Hohfeld might have preferred the Justices in that case to have used clearer language).

Hohfeld's theory, unlike, for example, the theory of Hart, is not itself a theory about the sources of law, but about the constitution of law. Hohfeld explains that law, as a set of rules that apply to people, can be broken down into a discrete set of relationalities between people, such as the right (or claim), the duty, the privilege (or liberty), the power, the immunity, the disability, and so forth. Each of the relationalities has a specific and fixed relationship with each other relationality, and with the practical effect of the law of which the relationalities are necessarily constituents. It is, as such, a descriptive theory about law, and not a prescriptive one. It does not tell judges or legislators what to do beyond make clear in their judgments and legislation what they actually mean in terms of the legal relationalities of which all law is constituted when they are interpreting, applying or making the law. It is an exhortation, if nothing else, to avoid redundant abstraction and unnecessary obfuscation and make the true effect of law clear: an exhortation of the sort with which I should imagine that Beathan, if he really understood what Hohfeld meant, would agree, given his views on the question of simplicity.

The proper interpretation of the U. S. Supreme Court's decision in the case cited by Beathan is not that it found, mysteriously lurking under the carpet in the corridors to the Supreme Court building, a source of law, hither to unknown, of the kind recognised by the rule of recognition prevailing in the U. S., for a legal right called the "right to privacy" that it merely applied in that particular case just like any other legal right. Instead, the U. S. rule of recognition (itself partly a product of the common law, partly a product of the constitution,and partly a product of the Bill of Rights) permitted the court to create new law (as all common law rules of recognition permit) to give effect to one of the principles (recognised in human rights treaties) that the Supreme Court justices believe is so important as to be of fundamental significance. In the case to which Beathan made reference, the Supreme Court exercised that discretion, and, in so doing, created a new set of legal rights (etc.) that had not existed before (which it then, as all courts in common law systems do when creating new law, applied it retrospectively), viz. a right not to be sterilised (presumably in the absence of certain good medical reasons of which eugenic reasons were not amongst them) without consent, imposing a correlative duty on all persons (enforced mainly through the criminal law) not to sterilise any person without that person's valid consent, except, for example, where the person is incapable of consent and her or his life depends on it.

Beathan also makes the entirely absurd claim that the analytic distinction between legal rights, on the one hand, and human rights (part of a subset of what Harris calls "background rights") on the other entails that "[i:3fbzeg61]humans have [them] but laws and judges need not respect [them], and legal rights... are the only things that can demand respect in a legal action by imposing a legal duty on others[/i:3fbzeg61]". (Beathan also claims that the distinction is "incoherent" (i.e., self-contradictory), but entirely fails to bring forth any reasoning to show precisely where he alleges that the contradiction may be found). As I have explained above, the analytic distinction between human rights and legal rights is entirely silent on the issue of whether judges and legislators ought respect human rights, and, if they do, precisely how they should go about doing so. One could quite readily have a specific legal rule (whether written or not) that enjoined judges to change the law (even retrospectively) if they found that the legal rights (etc.) that hitherto existed did not conform to what the judges believed to be the correct interpretation of human rights: that is exactly what appears to have happened in the case about which Beathan wrote.

It is also possible for there to be a system with no such rule, in which the law requires judges to apply the law without doing any such thing. Such a system might (but will not necessarily) permit serious violations of human rights. The analysis of the nature of human rights and legal rights as distinct kinds of rights does not tell judges what they should do in such circumstances, or tell us whether or not such systems are evil, but neither does quantum theory, or the principle of parsimony, and they cannot be criticised for that. Hohfeld's analysis of the nature of legal rights, and Harris's analysis of the nature of human rights, are not a theories that purport to tell judges what to do when faced with evil legal systems or evil laws, nor are they theories that purport to be able to distinguish which laws or legal systems are and are not evil, so it is not meaningful to criticise them for failing to do so. Furthermore, there is no principle, whether moral or analytic, that compels the conclusion that an evil legal system must also be an analytically incoherent one, or one whose participants have a flawed analytic understanding of the nature of law: it is perfectly possible for an evil legal system to be an analytically coherent all of whose participants have and apply a true understanding of the nature of law, but are morally corrupt. That does not mean, however, that, all other things being equal, it is not better to have a system all of whose participants do have a correct understanding of the nature of law, and that is analytically coherent, than the converse.

If Beathan were to spend less time finding new pejorative adjectives for theories that superficially appear to him to be dislikeable, and engage instead in thorough, serious analysis of those theories (preferably after having read what their proponents write about them), we would no doubt have a rather more constructive debate than one in which I carefully explain a theory, and Beathan replies with what amounts to "That's a horrible theory because it makes it easy for legal systems to be evil", which even a small amount of considered thought would reveal is an utterly meaningless criticism of an analytic theory of the nature of something. Incidentally, labelling a theory "outdated" is also a meaningless criticism of it, since the validity or otherwise of a theory is not something capable of being determined by how fashionables that it is, but by whether its propositions are capable of withstanding the sort of scrutiny to which Beathan does not seem inclined to subject anything before rejecting it out of hand.

To surmise, human rights are analytically distinct from legal rights: they are simply not the same kind of thing at all. One can give effect to human rights by creating legal rights (which, by their nature, are more specific than human rights), that is not the only way of giving effect to them: a state, for example, that had a fully functioning, fair and independent judicial system, and legal rights that recognised human rights to the fullest possible extent, but no functioning executive, could not in practice (at least, not without the assistance of non-governmental organisations), give effect to the right to an adequate standard of living, adequate health-care, free education or social order. Having a legal right to these things is of no relevance if they cannot, in practice, be provided. Human rights are about [i:3fbzeg61]more[/i:3fbzeg61] than legal rights: having a legal right giving effect to a human right does not guarantee that the right is not violated, nor does not having a corresponding legal right entail that the right is violated: it is perfectly possible, for example, to imagine a nation in which, although there was no legal right to free education, because of the efficient organisation of the government (or non-governmental organisations) everyone did, in fact, enjoy free education: nobody is being deprived of her or his human rights because they would not, in theory, be able to complain to a court if their education was taken away, and taking away the education would equally be a violation of that right whether a person could bring a successful legal action for taking it away or not. Legal rights and human rights are fundamentally different kinds of things, and it is simply analytically false to conflate them and assume that they are identical.

[b:3fbzeg61]3. Is it wise to have a human rights declaration treated as a source of law?[/b:3fbzeg61]

I shall confine the answer specifically to the Universal Declaration, since that is the point of discussion here. Firstly, it is quite clear that the Universal Declaration of Human Rights was never [i:3fbzeg61]intended[/i:3fbzeg61] to be a source of law (unlike the U. S. Bill of Rights). The preamble to the Universal Declaration states, for example,

[quote:3fbzeg61]Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, [b:3fbzeg61]shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance[/b:3fbzeg61], both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.[/quote:3fbzeg61]

(Emphasis added). The clear implication (which, if one thinks about it for only a moment, makes perfect sense) from the passage in bold is that having, or even recognising, the declaration itself is not enough: it must be [i:3fbzeg61]implemented[/i:3fbzeg61]. There must be "progressive measures, national and international" to see to it that rights are observed. As stated above, those measures could include the creation of new legal rights (duties, liabilities, privileges, immunities, etc.) under national law, or of other things, such as the provision of free education (and the implementation of economic policies necessary to sustain it).

It is of note that Article 8 of the Universal Declaration states,

[quote:3fbzeg61]Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law,[/quote:3fbzeg61]

which pointedly omits to make an express requirement that there be a specifically legal remedy for breach of the rights provided for the by the [i:3fbzeg61]Declaration[/i:3fbzeg61] itself: it is clear from this that what was intended was that the rights would be given effect by the passing of specific national laws that recognise those rights, and then that those specific laws be properly enforceable, i.e., that people should have an effective remedy for their non-observance.

The whole point of the UDHR was that it outlined what the people who drafted it, supposedly on behalf of the whole world, thought were human rights (in the specific sense described above), and that, in order to achieve the observance of those rights, "progressive measures" had to be taken (including, but not limited to, providing for new legal rights, duties, privileges, powers, liabilities, immunities, etc. - it is perhaps worthy of note, for example, that the "human [i:3fbzeg61]right[/i:3fbzeg61]" enumerated in Article 8 is actually a requirement to impose [i:3fbzeg61]liabilities[/i:3fbzeg61] on people) to establish.

Furthermore, as established above, the UDHR lists [i:3fbzeg61]human[/i:3fbzeg61] rights, not [i:3fbzeg61]legal[/i:3fbzeg61] rights. No doubt, that is why those who wrote it never designed it to be used as a source of law. It is not analytically impossible for a document that was never intended to be a source of law to be treated as such: the constitution of any nation could simply say "the UDHR is a source of law" (or even, "the bible is a source of law"), or something to that effect, and it would, indeed, be a source of law.

That does not mean, however, that it would be a [i:3fbzeg61]good[/i:3fbzeg61] source of law. It would take a good deal of working out what it actually meant in practice. Consider Article 21:

[quote:3fbzeg61](1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.

(2) Everyone has the right of equal access to public service in his country.

(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.[/quote:3fbzeg61]

That provides that there should be democratic elections, but it does not specify what [i:3fbzeg61]sort[/i:3fbzeg61] of elections. It leaves entirely open the question of what sort of electoral system to have, what sort of representative government to have, how often the elections should be, who should count the votes, and even whether to have representative or direct democracy. Indeed, unless the law provided specific rules set out in advance about what sort of electoral system to have, and then muster the administrative wherewithal to implement it, the human right set out in article 21 would undoubtedly be violated. The same applies to Article 17 (the right not to to own property: the law must have specific rights first defining what property is), Article 9 (the right not to have non-arbitrary detention or exile: non-arbitrariness can only be achieved through specific rules, although the Declaration is silent on [i:3fbzeg61]which[/i:3fbzeg61] specific rules, and equally allows a great many different sets thereof), Article 28 (the right to social and international order, which can only be protected if there is a comprehensive system of criminal law), and so forth.

A further reason why the UDHR should never be considered a source of law is Article 29(2), which states:

[quote:3fbzeg61]In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.[/quote:3fbzeg61]

On at least some interpretations (including Beathan's) of what it means to have the UDHR as a source of law, judges would be given the power (a power that they do not have now) to ignore legislation passed by the elected legislature, and ratified by the Scientific Council, on the ground that the judge believes that a human right would be violated by applying it. This is a very bad idea: it gives judges in deciding individual cases a power that should be reserved to the legislature when passing legislation (and, in our case, the Scientific Council when ratifying it), i.e., the power to decide exactly when the legislature's laws are and are not ones whose restrictions on the exercise of the human rights outlined in the declaration are "[i:3fbzeg61]or the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society[/i:3fbzeg61]". That is, ultimately, a question of policy, and, although courts in common law jurisdictions sometimes have to look at policy when there is no source of law that expressly answers the question of law that they have to decide, should certainly not be able to over-rule the elected legislature on a question of policy. Indeed, it could, at the very least, be argued that the power of an unelected body, the judiciary, to over-ride the legislature's decisions on policy is contrary to Article 21(3), which provides,

[quote:3fbzeg61]The will of the people shall be the basis of the authority of government.[/quote:3fbzeg61]

As Oni remarked, it is odd that Beathan, who incessantly criticises our judiciary for having too much power, is now criticising it for claiming that it has, or ought to have, too little.

Indeed, the whole assumption behind the claim that recognising human rights entails making the question of whether any given piece of primary legislation does, in fact, give adequate effect to the rights set out in the Universal Declaration justiciable is a flawed one: there is nothing inherently superior about a judge's ability to spot what is and is not compliant with a person's human rights than a legislator's. Either way, the interpretation is being made by a fallible human or set of humans and is prone to some degree of error. The question is "what system ensures that whoever takes any given decision is in the best position to do so to get it right?". With questions of policy, the answer is undoubtedly the legislature, and, so, the circumstances in which Article 29(2) may be invoked are decisions best left to the legislature.

Against that, one may complain that leaving it to a popularly elected body gives rise to the possibility of the tyranny of the majority, and that there needs to be some politically independent check. The judiciary is certainly politically independent, and so is taken as the convenient repository in which to pour that function in many nations (including the U. S.), but, in the C. D. S., it is not the only such body: the Scientific Council is also such a body. In the C. D. S., we have a unique (and rather excellent) arrangement, whereby, before it comes into force, a politically neutral body is empowered to check any Bill for constitutionality and compliance with human rights declarations (the UDHR, in particular), and refuse to ratify it if it finds it not to be so compliant. Only ratified Bills (Acts) have the force of law; anything else is a nullity. Provided that the Scientific Council does not overstep the boundaries of its proper function, and start making its own judgments about the what best (rather than merely permissible) policy is in relation, for example, to an Article 29(2) question, this is a far superior system to one which allows for judicial review of legislation by a court hearing a case that purports to apply such legislation. It is superior because the body (the Scientific Council) making the decision is independent not only from the legislature, but also from the ordinary judiciary making the day-to-day decisions in cases (and thus prevents a single judicial system from accumulating illegitimate power by using the combined effect of the common law and judicial review of legislation on broad policy grounds to carve out its own policy agenda, and entirely or even partly ignore the rules created for it by the legislation). It is also superior because it is more conducive to the rule of law, in the sense that it enables greater legal certainty: one knows that, once an Act has been ratified by the Scientific Council, it [i:3fbzeg61]will[/i:3fbzeg61] be applied in the courts, whether the Judges of Common Jurisdiction like it or not. That is not so in circumstances where judges have the power to strike down existing legislation: people will always be less certain of what their rights are.

Given that Beathan is very fond of CDS-specific ideas, and has an intense (and very frequently expressed) disliking for importing first-life legal principles into SecondLife unthinkingly, writing, for example,

[quote:3fbzeg61]If we have a formal legal system incorporated from elsewhere (as opposed to one developed here from our own principles), we sacrifice the force of our (native) principles to the force of our (foreign) laws,[/quote:3fbzeg61]

it is extremely odd indeed that he favours, evidently unthinkingly (for there is no analysis to support the preference), the U. S. practice of having a court able to strike down existing legislation for unconstitutionality, rather than our own, unique, C. D. S. developed principle of having the Scientific Council able to refuse to ratify legislation at the stage of passage on constitutional or human rights grounds, but for the legislation then to be binding unless changed. (Indeed, Beathan even goes as far as to claim that the UDHR should be considered "fundamental" law, a concept imported wholesale from U. S. law and that is not found anywhere in the C. D. S. constitution or in any decision of the Scientific Council). There is certainly nothing in any human rights declaration providing that the system for ensuring compliance with human rights has to be the U. S. model, rather than the C. D. S. model: it is not a human right to have one's human rights determined in the way that Beathan suggests, rather than in another, at least equally good, way.

So, to conclude, human rights declarations in general (and the UDHR in particular) ought not be treated as sources of law because they were never designed to be treated as sources of law, and they would make very poor sources of law; it is not technically impossible to have such a treaty as the source of law, any more than it is to have the bible as a source of law, but, in either case, it is a very bad idea, since they each say very little about what a person's legal rights, duties, privileges, powers, immunities, liabilities (etc.) should be. The court would be enjoined to try to make sense of them, and would have to attempt it, but it would be a very difficult job to do it properly, and would lead to a great deal of difficulties. Far better would be for the legislature to pass specific statutes, and (as explained further below) for the courts to recognise specific common law principles that give effect in specific legal rights to the human rights set out in the declaration, rather than have to try to pick through the Universal Declaration and work out what legal rights are mandated by the human rights listed therein.

[b:3fbzeg61]4. Is the UDHR in fact a source of law in the CDS?[/b:3fbzeg61]

The answer to this has already been given clearly by Oni, and I need add little to that. An exhortation to "uphold the UDHR" in the constitution's preamble does not entail (1) that human rights can be considered as legal rights, or (2) that the UDHR is, or should be, treated as a source of law. The enumerated sources of law do not contain reference to the UDHR precisely because, as explained above, it is a serious mistake to treat human rights as if they were identical to legal rights, or to make human rights declarations sources of law. It is not, as Beathan Polemically asserts (as usual, with no supporting analysis), authoritarian, or overly rigid or literalistic to recognise that human rights declarations make very poor sources of law, and that the best way of giving effect to human rights is not to pretend that they are identical to legal rights, nor to make human rights declarations into sources of law, but to make specific laws, whether by statute or the common law, that, in fact, give effect to the rights set out in the Declaration, leaving as many policy decisions on how to give effect to those rights as possible to the elected legislature.

[b:3fbzeg61]5. If the UDHR is not a source of law, what is its significance, since express reference is made to it in the constitution?[/b:3fbzeg61]

As I have written before, recognising and giving effect to the human rights set out in the UDHR is an important shared policy objective of the CDS community. It is also a basis upon which the Scientific Council can, if it concludes that legislation is put before it, is in violation of it, refuse to ratify that legislation, rendering it (as the constitutional amendments in the Judiciary Act made clear) of no legal effect at all.

To answer Gwyneth's question in another thread about what a court would (or, at least, ought) do if a human rights argument was made before it, I largely adopt Oni's analysis, but will expand on it somewhat. One must first start with how common law courts decide contested issues cases. Firstly, they look to see whether any source of law conclusively answers the point. The constitution comes first, then statute law, then previous decisions of the court. If it finds that one of those sources of law does conclusively answer the question, then that is the end of it: the matter is already settled, and the court is not concerned with whether or not that settled law ought to have been so settled in the first place: it is the legislature's job to fix it if it is wrong. If no source of law provides an answer to the question, or, at least provides any determinative answer, then the court must first identify the possibilities that the sources of law leave open, and then decide which of those possibilities to choose. In deciding which of those possibilities to choose, it cannot, as a legislator can, simply pick whichever the particular judge personally believes will make the best law: it must develop the law incrementally from the surrounding law, and make the decision fit as much as possible with the existing principles that have guided previous decisions. The court must, in other words, develop law coherently. (An excellent analysis of how judges in common law jurisdictions reach decisions in difficult cases is provided by [url=http://en.wikipedia.org/wiki/Ronald_Dworkin:3fbzeg61]Ronald Dworkin[/url:3fbzeg61]; he also provides a theory of the nature of law itself, but that theory is critically flawed; as an analysis of how judges in common law systems work, however, it is very good.) To do this, it looks at the reasons that judges used to decide similarly novel points in previous cases, reasons by analogy by looking at the results in other cases or at the way in which statutes provide for things (and, for example, where a decision of policy cannot help but be made, try to work out what the legislature's policy has been in similar areas of law, and try to give effect to that policy in reaching the decisions. One of the mechanisms that judges use to reach decisions in such cases is by the application of principles, which are underlying guidelines (whose sources may be numerous) about how the common law should be developed where there is no source that determines the answer. Undoubtedly, as our constitution expresses, one of those principles in the CDS is that the human rights expressed in the UDHR should be upheld. That is not the only principle, of course: the court must bear in mind, if nothing else, the effect of Article 29(2), and that other principles may guide the common law towards developing a set of rules (that could, of course, be over-ridden by the legislature) about just when limitations on the exercise of the other rights are, "[i:3fbzeg61]for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society[/i:3fbzeg61]".

So, as I have expressed before, a judge may rule, "The Yellow Hat Act says [i:3fbzeg61]this[/i:3fbzeg61], so this is what must happen", without more, but not, "The UDHR says that everyone has the right to freedom of expression, the prosecutor's complaint is merely about some act of expression, therefore I am compelled to find for the defendant". But a judge may rule, "There is no source of law that conclusively answers this question, therefore I must turn to principle. One of the guiding principles of our community is, of course, the importance of freedom of expression. It is not absolute, of course, but it is important nonetheless, and may only be encroached upon for good reason. The prosecutor argues that, in this case, there is good reason to encroach upon the defendant's freedom of expression as set out in the pleadings. The defendant argues that there is not. In my judgment, having regard to my previous ruling in the case of [i:3fbzeg61]Pilchards v. Herring[/i:3fbzeg61], in which I gave some guidance on what might count as sufficient cause to restrict somebody's freedom of expression, I find that, in the particular circumstances of this case, the reasons put forward by the prosecutor are/are not sufficient for [i:3fbzeg61]these[/i:3fbzeg61] detailed reasons, and I therefore find in favour of the prosecutor/defendant".

[b:3fbzeg61][u:3fbzeg61]Conclusion[/b:3fbzeg61][/u:3fbzeg61]

I hope that I have, as I hope, in the foregoing paragraphs, succeeded in providing a thorough, carefully-reasoned analysis of my view on the relevance of human rights (and the Universal Declaration thereon in particular) in the C. D. S., and why it simply does not make any sense to suggest, as some have done, that having the UDHR as a source of law is a necessary condition for upholding those rights, nor that I do not think that human rights are important, nor that the UDHR does not "apply" in the CDS (unless one means "apply" in the narrow sense of "apply as a source of law"). I hope that I have succeeded in persuading at least those who are genuinely willing to engage in reasoned analysis and substantive debate on the matter (instead of repetitive unreasoned assertions and unfounded personal accusations), that I do believe that human rights are important, and that they are better, not worse, protected in a nation in which the treaty establishing them is not treated as a source of law, and in which the nation's courts are not empowered to strike down existing legislation because the judges believe that it violates human rights.

It is very sad that so many people have unthinkingly assumed, without pause for careful reflection, and without even giving me a reasonable chance to put together what is quite evidently necessarily a lengthy and detailed (but, I hope, thorough and well-reasoned) explanation of my position. The recent Bill to be presented at the Representative Assembly it seems was made on the wholly unfounded basis that (1) the Judiciary Act meant that the UDHR had no relevance in or application to the CDS; and (2) the Chief Judge did not think human rights to be important, both of which, as I have explained, are wholly untrue. It now remains to be seen only whether the responses to what I write will be truly analytic and reasoned, or whether those who choose to write about or act on this issue would rather to so irrationally and hastily rather than carefully and with due consideration. I shall look forward to discovering the answer.

Ashcroft Burnham

Where reason fails, all hope is lost.
Beathan
Forum Wizard
Forum Wizard
Posts: 1364
Joined: Sun Oct 29, 2006 3:42 pm

Post by Beathan »

Once again Ash says way too little in way too many words. I am reminded of my favorite speech in [i:hu2ldc6p]As You Like It[/i:hu2ldc6p]. "'Poor deer,' quoth he, 'thou makest a testament as worldlings do, giving thy sum of more to that which had too much.'"

But, the bottom line is -- no, we have no reason to have faith that the UDHR will apply in our courts or that our courts, under Ash and Oni, will defend our rights from oppressive legislation. It is clear that we need to add the UDHR to the order of laws in the Constitution. If we keep the JA, we must, at a minimum, amend it to clarify that the UDHR has the weight of Consitutional Law in the CDS.

This is easy to do.

Even if parts of the UDHR are irrelevant in this virtual world, we should do it. Insofar as the UDHR applies, we should apply it. Insofar as it does not apply, it will never come up.

Beathan

Let's keep things simple enough to be fair, substantive enough to be effective, and insightful enough to be good.
User avatar
Ashcroft Burnham
Forum Wizard
Forum Wizard
Posts: 1093
Joined: Thu Aug 03, 2006 3:21 pm

Post by Ashcroft Burnham »

[quote="Beathan":3t829qn6]Once again Ash says way too little in way too many words. I am reminded of my favorite speech in [i:3t829qn6]As You Like It[/i:3t829qn6]. "'Poor deer,' quoth he, 'thou makest a testament as worldlings do, giving thy sum of more to that which had too much.'"

But, the bottom line is -- no, we have no reason to have faith that the UDHR will apply in our courts or that our courts, under Ash and Oni, will defend our rights from oppressive legislation. It is clear that we need to add the UDHR to the order of laws in the Constitution. If we keep the JA, we must, at a minimum, amend it to clarify that the UDHR has the weight of Consitutional Law in the CDS.

This is easy to do.

Even if parts of the UDHR are irrelevant in this virtual world, we should do it. Insofar as the UDHR applies, we should apply it. Insofar as it does not apply, it will never come up.

Beathan[/quote:3t829qn6]

I see that you are as devoted as ever to "full and fair debate", and to genuine reasoned argument, as opposed to mere repetitive assertion. Are you capable, Beathan, of actually addressing the substance of what I write, or are you merely hiding behind empty rhetoric? If you can address the substance, why do you not? If you cannot, of course, then only a dishonest person would fail to admit it.

Ashcroft Burnham

Where reason fails, all hope is lost.
Beathan
Forum Wizard
Forum Wizard
Posts: 1364
Joined: Sun Oct 29, 2006 3:42 pm

Post by Beathan »

Ash --

I wasn't being nonresponsive. Rather, I was trying to take seriously the criticism of this debate that I have heard from Diderot and TOP and others -- that it has become so wordy, and complicated, and professionalised that ordinary citizens cannot follow it. In other words, the debate has, not surprisingly, taken on the character, and character flaws, of its subject matter -- the Judiciary Act.

However, to summarize and clarify, I understand this thread to be as follows:

Community to Ash -- "Ash, the UDHR has always served as the basis for civil liberties in the CDS, and civil liberties are important in the CDS, please assure us that the UDHR will be respected by the Judiciary under the Judiciary Act."

Ash to community -- "Well, you know, the UDHR is confusing and ambiguous, it's impossible to apply, it really doesn't apply to very much in SL anyway; it's also not part of the laws of the CDS, and never has been, and the job of the Judiciary is to apply the law, nothing else; and there are good legal theoretical reasons not to apply the UDHR, because the UDHR is, on its own account, about human rights, not legal rights -- and human rights do not exist as a legal matter under these theories, which are good theories; and if you read the UDHR is was never intended to be a source of law, merely something legislators can look at for good ideas -- and because the judiciary is not a legislature, there is no reason for us to look at it; besides, the judiciary job is to apply and interpret the law -- and the UDHR is not law; But, don't worry, I assure you that the common law we create as the judiciary will be as good as the UDHR at protecting civil rights; in fact, it will be better -- much better -- I promise -- so don't worry your pretty little heads none, Ashcroft is here to comfort and protect you."

Please forgive me if I find this not only unsatisfying, but downright scary.

It is especially scary when considered in the context of Ashcroftian judicial exceptionalism in the CDS.

All CDS branches of government are checked and balanced by other branches in their operation -- except the judiciary;
All CDS branches of government are responsible to the people and the will of the people as expressed in the democratic process -- except the judiciary;
All CDS branches of government are open to service by ordinary citizens -- except the judiciary;
No CDS branch of government is independent from the others -- except the judiciary;
All CDS branches of government are, in principle, subject to rotation of people and factions in power -- except the judiciary;
All CDS branches of government are consituted by people selected either by popular election or by selection, in part, by some other branch -- except the judiciary;
No branch of government can interpret or give meaning to the laws of the CDS -- except the judiciary;
Real life social and economic class distinctions apply nowhere in the CDS -- except the judiciary;
We elect factions, not people, because we believe that all branches of CDS government should be about ideas, not personal credentials -- except the judiciary;
Commitment to the CDS, its project, and its people is the most critical requirement for service in every branch of government -- except the judiciary;
No branch of government is exempt from public criticism or control -- except the judiciary;
Every branch of government acts subject to review or veto by another branch of government -- except the judiciary;
All CDS branches of government should be guided by the UDHR -- except the judiciary.

In this context, I would be perfectly happy placing my rights as a citizen in the hands of any branch of CDS government -- except the judiciary.
No branch of CDS government scare the hell out of me -- except the Judiciary.
We should keep, subject to reform where necessary, all of the CDS government -- except the judiciary.

Beathan

Last edited by Beathan on Tue Jan 02, 2007 4:35 pm, edited 2 times in total.
Let's keep things simple enough to be fair, substantive enough to be effective, and insightful enough to be good.
User avatar
Ashcroft Burnham
Forum Wizard
Forum Wizard
Posts: 1093
Joined: Thu Aug 03, 2006 3:21 pm

Post by Ashcroft Burnham »

[quote="Beathan":2oq7czdy]I wasn't being nonresponsive.[/quote:2oq7czdy]

Yes, you were, actually. Not responding is what being non-responsive means.

[quote:2oq7czdy]Rather, I was trying to take seriously the criticism of this debate that I have heard from Diderot and TOP and others -- that it has become so wordy, and complicated, and professionalised that ordinary citizens cannot follow it.[/quote:2oq7czdy]

Do you count yourself among those "ordinary citizens" who cannot follow it? In any event, this criticism simply does not make sense: that you blandly assert (without any evidence in support) that unspecified people cannot follow the debate is not a criticism of the substance of what I write, nor is it meaningful to claim that a debate is the kind of thing that can be characterised as "professionalised": when did people ever debate on forums for a living? Either what I write is sound in substance or it is not, and it is no excuse to fail utterly to address it that you do not like the form.

[quote:2oq7czdy]However, to summarize and clarify, I understand this thread to be as follows:

Community to Ash -- "Ash, the UDHR has always served as the basis for civil liberties in the CDS, and civil liberties are important in the CDS, please assure us that the UDHR will be respected by the Judiciary under the Judiciary Act."

Ash to community -- "Well, you know, the UDHR is confusing and ambiguous, it's impossible to apply, it really doesn't apply to very much in SL anyway; it's also not part of the laws of the CDS, and never has been, and the job of the Judiciary is to apply the law, nothing else; and there are good legal theoretical reasons not to apply the UDHR, because the UDHR is, on its own account, about human rights, not legal rights -- and human rights do not exist as a legal matter under these theories, which are good theories; and if you read the UDHR is was never intended to be a source of law, merely something legislators can look at for good ideas -- and because the judiciary is not a legislature, there is no reason for us to look at it; besides, the judiciary job is to apply and interpret the law -- and the UDHR is not law; But, don't worry, I assure you that the common law we create as the judiciary will be as good as the UDHR at protecting civil rights; in fact, it will be better -- much better -- I promise -- so don't worry your pretty little heads none, Ashcroft is here to comfort and protect you."

Please forgive me if I find this not only unsatisfying, but downright scary.[/quote:2oq7czdy]

And please forgive me if I find your inability to attempt to understand what I am actually arguing, coupled with your unwavering insistence that you are right about all things, to be both unsatisfying and downright scary, too.

[quote:2oq7czdy]It is especially scary when considered in the context of Ashcroftian judicial exceptionalism in the CDS.

All CDS branches of government are checked and balanced by other branches in their operation -- except the judiciary;[/quote:2oq7czdy]

That, of course, is false; the judiciary is checked by the Scientific Council both in relation to special appeals and in relation to impeachment, and checked by the legislature (although you insist that this check should be taken away) because it has to follow the legislature's laws.

[quote:2oq7czdy]All CDS branches of government are responsible to the people and the will of the appeal in the democratic process -- except the judiciary;[/quote:2oq7czdy]

What do you mean the "will of the appeal" here?

[quote:2oq7czdy]All CDS branches of government are open to service by ordinary citizens -- except the judiciary;[/quote:2oq7czdy]

What do you mean "ordinary" here? Anybody who understands the law well enough and has enough intellectual and legal skill can be a judge. Anyone who is popular enough and adept at politics can be a legislator. Anyone who understands the constitution well enough can be a member of the Scientific Council. Anyone popular enough with the legislator can be the Chancellor. Different skills and abilities are required for different offices: the ability to be a good politician is no more "ordinary" than the ability to be a good judge.

[quote:2oq7czdy]All CDS branches of government are, in principle, subject to rotation of people and factions in power -- except the judiciary;[/quote:2oq7czdy]

And for very good reason, as I have elaborated upon elsewhere, and, I notice, you have never found a genuine reasoned argument against.

[quote:2oq7czdy]All CDS branches of government are consituted by people selected either by eleection or by selection, in part, by some other branch -- except the judiciary;[/quote:2oq7czdy]

Judges are appointed by the PJSP, which is not part of the judiciary.

[quote:2oq7czdy]No branch of government can interpret or give meaning to the laws of the CDS -- except the judiciary;[/quote:2oq7czdy]

Well, that's what the judiciary is for. No branch of government can pass legislation except the legislature; no branch of government can implement the laws and policies except the executive. Of course, by "judiciary" here, you must count the Scientific Council, too, since it is a judicial body when it sits as a court, and can interpret and give meaning to laws there just as much as Courts of Common Jurisdiction can.

[quote:2oq7czdy]No branch of government is exempt from public criticism or control -- except the judiciary.[/quote:2oq7czdy]

Nothing is stopping anyone from criticising anyone: to state the contrary is positively specious. The judiciary must, of course, be independent from popular control to some extent, a right guaranteed by Article 10 of the Universal Declaration.

[quote:2oq7czdy]In this context, I would be perfectly happy placing my rights as a citizen in the hands of any branch of CDS governement -- except the judiciary. No branch of CDS government scare the hell out of me -- except the Judiciary.[/quote:2oq7czdy]

Then why on earth you are suggesting giving it more powers is beyond me.

Ashcroft Burnham

Where reason fails, all hope is lost.
User avatar
Gwyneth Llewelyn
Forum Wizard
Forum Wizard
Posts: 1183
Joined: Thu May 25, 2006 8:00 am
Contact:

Post by Gwyneth Llewelyn »

Well, thanks for the excellent treatise on human rights vs. legal rights, Ashcroft. I must admit I was expecting a more simple yes/no answer, but I can fully understand the need for a much more detailed explanation.

I might be a bit disappointed, because when you use the argument "the UDHR [i:193szfxn]could[/i:193szfxn] be employed as a source of law, but it would be a poor choice, because it is vague and self-contradictory", the conclusion is that, simply by using the UDHR as a "source of law", it will [i:193szfxn]not[/i:193szfxn] give people better protection of their human rights. Of course I understand that one should consider, as a [i:193szfxn]goal[/i:193szfxn], that all laws are not vague, and at the very least, not self-contradictory (or not contradicting other laws). My problem here is one of pure practicality. We have a contradictory Constitution with vague "founding documents"; and we have poor laws. Nevertheless, we still need to hear cases in spite of everything.

Oni tends to hint at my own qualms as well — in an ideal system, we would have a rather large body of laws (several thousands, not a few dozens), and many of those would establish rights, freedoms, duties, and all sorts of similar things, that could then be protected by a fully operational Judiciary. However, we have none of the sort. All we have is a few tidbits here and there, and a "guideline document" (the UDHR) to tell us that some fundamental rights have to be protected, no matter what.

It is the [i:193szfxn]way[/i:193szfxn] they are protected in 2007 with a few dozen laws (and not in 2070, with a full body of laws and thousands of cases and precedent drawn from these cases), that worries me — will we need to wait so long until we can truthfully guarantee some protection to our citizens? If the answer is "there is no doubt of it — common law systems require time to grow", well, then, I feel very disappointed, and I would certainly prefer a model where citizens' rights can be protected [i:193szfxn]now[/i:193szfxn], efficiently and swiftly, instead of in a distant date in the far future.

Just for the record... I understand the old argument of "avatars can't die, or get ill, or constitute families, so we don't need to apply all the human rights inside SL". It is unarguable that avatars cannot, in fact die, or made to suffer — but the human being can. It's also true that they cannot reproduce or have to deal with the issue of bearing children, but, a mother giving recent birth to a child, is still worthy of protection while she logs in to SL. So I think it's way harder to say "these rights apply, these do not" — the UDHR actually forbids the exclusion of some rights in favour of others, they are all equally important, and thus my doubting the wisdom of picking some to stay and some to go — but that just demands for some clarification: while it's undoubtedly true that some human rights require a transposition into legal rights, other might not require them (at least not in 2007) — but they should still be left in the UDHR.

Ironically, when all this discussion started in October 2004 or so, one of the issues we had at the time was, naturally, the extent of the legal system that had to be rolled out for adequate protection of human rights. We had basically two options — opt for a detailed system (a civil law system, based very likely on Roman code, since it would be more fun to do), which would take ages to write and approve (and we were running out of time) or a simple one, that would be easy to add as time went by, and thus the preferred choice was to adopt a common law system, which could set us up and running starting from a Constitution and a few scattered random founding documents :)

Now I personally question that decision. Two years later, all I can see is that we might have our "simple system", but no way to adequately protect citizens' basic human rights — just because we started the legislative process assuming that just referring the UDHR as being a founding document was enough to protect basic rights. It was naive.

It clearly isn't. I think it's slowly time that we realise that the issue is not about "the Judiciary Act" any more, but that we should, once and for all, start to rethink the whole basic assumptions on which the CDS is founded. If we do it properly — with due thought and much open-minded discussion — it will be the work of a whole semester, not of a "few weeks".

I thus propose that we start to give serious though towards a major rewriting of the Constitution. Not something thrown up on a sudden whim, hastily cooked up in a few days of forum discussion — but a true Constitutional Convention that would last us at least six months of debate, and very likely a whole year.

It requires, however, quite a different mindset of the one currently being expressed in the forums — a common stance of destructing each other's work, by increasingly long-winded arguments, which are, these days, sadly mostly targeted at individuals and much less at specific aspects of our poor code of laws. Sure, I've enjoyed Beathan's "except the judiciary" post as anyone else — it was fun, and it made a point — but what lesson does it show us? That by establishing judicial independence, as desired by Article 10 of the UDHR, we were overzealous and made it too independent? So instead of spending ages arguing with each other, we should perhaps define what "judicial independence" means in the context of the CDS. We would be placidly following the guidelines of the UDHR, and building constructively from there a better framework.

I can already listen to people moaning "oh no, another six months of discussion, give us a break...". Well, I'm afraid that at the very least we have to thank everybody for pointing out that this work cannot be rushed as we'd like, and that the more we discuss things, the more loopholes are uncovered, and so, instead of blaming each other for uncovering loopholes, we should strive to devise a method of eliminating them. It is definitely arguable that this method is slow and takes time and patience. But I'm pretty sure that people willing to discuss endlessly the same points over and over again have, indeed, time and patience to discuss things [i:193szfxn]differently[/i:193szfxn] — if they just change their mindsets.

We were once accused of "groupthink" — ie. that the CDS only prospered because everybody thought the same way and basically agreed to what a small group said. All these accusers are long gone, but they would be very surprised to see how far they were from the truth. We're definitely much more a group of individuals (mostly [i:193szfxn]stubborn[/i:193szfxn] individuals, starting with myself, of course :) ) that have yet to learn the art of compromise. A few of us have obviously mastered this art through their experience in dealing with conflicting wishes — personal wishes vs. community wishes — and striving to find a "middle way" that works. I think, however, that this is not (yet) a common trait of the CDS. Disagreement, and conflict, are much more the norm, and these days the emphasis is put so much more in destructive speech than constructive one, which personally frightens me. So my wish for 2007 is that you all prove me completely wrong on this, and roll up your collective sleeves and start to work towards the legal framework — Constitution, Code of Laws, founding documents and all — that [i:193szfxn]all[/i:193szfxn] wish to live under, and not "just a few". Since we have so many opposing, conflicting, and contradictory views, is there anything at all that is common ground to start from?

I think we found one — the need to make sure that all citizens get their human rights properly protected. Well, let's start from that. If, to defend those human rights, we require a much more thorough rewording of the Constitution, I'm all for it. I've seen a few modern (ie. post-1948) Constitutions, as said, and they all have 40 or 50 articles at the very beginning, establishing the fundamental principles of the UDHR and incorporating them as law into their constitutions; and only after those are fully established, do they begin explaining how the governmental branches work. Well, we have that latter part; now we might need to make a serious attempt at writing the former one. For me, like others, the form of government is not exactly important; all that matters is that it is democratic — in the sense that it is willed by all citizens living under it, and that all can work to make a change to the system — and protects human rights by the rule of law.

[i:193szfxn]Slightly edited for some inconsistencies in style[/i:193szfxn]

"I'm not building a game. I'm building a new country."
  -- Philip "Linden" Rosedale, interview to Wired, 2004-05-08

PGP Fingerprint: CE8A 6006 B611 850F 1275 72BA D93E AA3D C4B3 E1CB

User avatar
Ashcroft Burnham
Forum Wizard
Forum Wizard
Posts: 1093
Joined: Thu Aug 03, 2006 3:21 pm

Post by Ashcroft Burnham »

Gwyneth, as much as the constitution needs attention, I think it practically inconceivable that anybody sane will ever spend any time working on our constitution again, given the recklessness and haste with which the legislature here acts to destroy any such work.

Ashcroft Burnham

Where reason fails, all hope is lost.
Beathan
Forum Wizard
Forum Wizard
Posts: 1364
Joined: Sun Oct 29, 2006 3:42 pm

Post by Beathan »

Ash --

I think that you are right. The CDS will never again hand over its Consitutional fate to a single individual, but will always work through collective effort, which produces results of greater wisdom and greater sensitivity to the needs and desires of the CDS as a community, while at the same time protecting all citizens from extreme labor by spreading the load among us all.

Beathan

Let's keep things simple enough to be fair, substantive enough to be effective, and insightful enough to be good.
User avatar
Ashcroft Burnham
Forum Wizard
Forum Wizard
Posts: 1093
Joined: Thu Aug 03, 2006 3:21 pm

Post by Ashcroft Burnham »

[quote="Beathan":zqv2d5jb]Ash --

I think that you are right. The CDS will never again hand over its Consitutional fate to a single individual, but will always work through collective effort, which produces results of greater wisdom and greater sensitivity to the needs and desires of the CDS as a community, while at the same time protecting all citizens from extreme labor by spreading the load among us all.

Beathan[/quote:zqv2d5jb]

Beathan, it is doubtful that anybody sane would ever attempt to contribute any effort to any such project.

Ashcroft Burnham

Where reason fails, all hope is lost.
Justice Soothsayer
Pundit
Pundit
Posts: 375
Joined: Sun Jun 04, 2006 1:14 pm

Post by Justice Soothsayer »

Gwyn, thank you so much for posting your comments which summarize much of what I have been thinking. You hit just the right note of the perspective of one of the founding generation coupled with a vision of our future.

Although I run the risk of joining those who Ash has twice in the space of one hour called insane, I am willing to join with you in the quest for common ground. There is a space for human rights (or even, for the positivists among us, legal rights) to be properly protected in our world. I'm not convinced that our current judicial arrangements afford sufficient room for such protections; but I am willing to trust the SC to do so while we work together to find a better way.

Post Reply

Return to “Judiciary Discussion”