On the necessity and meaning of a "professional judicia

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Diderot Mirabeau
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On the necessity and meaning of a "professional judicia

Post by Diderot Mirabeau »

It has come to my attention that at least one political faction is campaigning on a platform of establishing a 'professional' judiciary in the CDS.

This seems to me to be an interesting and potentially contestable point, which I'd like to take the opportunity to explore a bit further - hopefully with the participation of other citizens - since it seems to be a point of no small importance for the establishing of a future judiciary.

Of course the word "professional" can be endowed with a variety of different meanings. The word is mentioned in the same sentence as the word "fair", which seems to imply that there is some perceived connection between the two concepts.

Let me explore further a bit the range of possibilities. The Princeton WordNet dictionary yields the following alternatives for the "profession" entry:
[quote="Princeton WordNet":2p1rzut4]# S: (n) profession (the body of people in a learned occupation)
# S: (n) profession, professing (an open avowal (true or false) of some belief or opinion)
# S: (n) profession (affirmation of acceptance of some religion or faith)
# S: (n) profession (an occupation requiring special education (especially in the liberal arts or sciences))[/quote:2p1rzut4]
Wikipedia gives the following introductory definition:
[quote="Wikipedia":2p1rzut4]A profession is an occupation that requires extensive training and the study and mastery of specialized knowledge, and usually has a professional association, ethical code and process of certification or licensing.[/quote:2p1rzut4]
I would like also to include a critical perspective as introduced by Michel Foucault, who views power and knowledge relations as inseperable in so far as it concerns the study and disciplining of individuals. He points out that all 'professions' will inevitably embody this schism within them:
[quote="Stanford dictionary of Philosophy":2p1rzut4]Foucault's point is [..] at least for the study of human beings, the goals of power and the goals of knowledge cannot be separated: in knowing we control and in controlling we know.[/quote:2p1rzut4]

Thus in 'professionalising' a discipline society implicitly creates a mechanism by which the interests of a certain subgroup are somehow coordinated in ways, which can potentially have adverse effects on the dispensing of knowledge in so far as it becomes intertwined with the maintenance of the knowledge monopoly or the maintenance of entrenched interests claimed by the profession - something, which Foucault says will inevitably happen due to the special discursive characteristics of the knowledge - power relationship.

Anyhow, returning to the concept of 'professionalism' as we see it manifested in Second Life: One concept of professionalism would be those companies, who make a living in RL from developing and building solutions for RL clients on the SL platform. A parallel in the legal profession would probably be the lawyer, who agreed to take on the case of "Bragg vs Linden Lab" in an RL court.

A second "tier" of professionalism could be those, who spend a significant proportion of their presence in SL to generate revenue on the sale of goods or services in world to the extent that it maintains either their life in world or even in RL in part or in full.

A third "tier" of professionalism might be those, who share similar backgrounds in terms of education in RL and who agree to be recognised as being in possession of such knowledge in SL and possibly even perform compensated work on the basis of the claim to this knowledge. Examples of this might be the RL architect, who does freelance work or sells prefabs in SL as a hobby on the side to supplement his income in world. Another example might be the RL lawyer, who offers his services in world for compensation.

A fourth "tier" of professionalism might be those, who do not share similar RL educational backgrounds, but who nevertheless specialise within certain fields in SL with the direct or indirect effect of achieving some form of compensation. This is a rather large category indeed as it comprises both those for example, who design clothing in SL and sell it from their hobby shop to those, who specialise in the government bureaucracy of the CDS and earn the salary of a government official.

The fifth "tier" would be those, who are brought together occassionaly in the dispensation of some function, and who do so according to some shared notions of professionalism within that function, but who otherwise consider themselves as individuals quite independent of that function and strive to submit to their dispensation of the function as much as possible of their particular life experience and unique insight devoid of interests related solely to the carrying out of the profession.

I should be quite interested to know which specific category of professionalism is advocated by those, who insist on a 'professional judiciary.' I would furthermore be interested in knowing the justifications for why this category of professionalism is needed and what would be the response to the criticism raised by Foucault of the risk of a too intimate relationship between dispensing knowledge and maintaining power in the inevitable, modern quest to professionalise all avenues of society.

Personally, I observe that most of the government functions of the CDS have so far been carried out at a level of professionalism as exemplified by my categories 5 and 4. I see this as a result of several circumstances including:

1) We are a small community with a rather small potential for deep professionalisation.

2) We are a community based on voluntary participation the most important determinant of which is based on having trust in each other and the common desire to work toward shared goals.

3) It fits our notion of democracy well that every citizen is sort of a renaissance person endowed with the ability to function in a range of capacities as needed by the circumstances of our society. It prevents our community from fragmenting into segregated and distinct sub-groups with alienating impacts on each other when there is a certain overlap and influx/outflow between the various groups depending on the needs of the community and the particular interests of an individual at the time.

Finally, in the question of the necessity of establishing professionalism within the judiciary I would say that can follow and support the desire in so far as it extends to categories 5 and 4 since this is how we have always governed our community. I am personally not convinced of the need to move to a category 3 professionalisation in the case of the judiciary even if the argument is that of its necessity in order to ensure a fair trial.

I base this opinion on the observation that other measures are at our disposal in order to ensure the fairness of our trials and that the extent to which the concept of 'fairness' is idealised and proportionalised relative to other principles of a legitimate court depends also on the circumstances of the citizenship, the circumstances for those mandated with the exercise of governance and what one ultimately stands to gain or lose from one's inclusion or exclusion in the community and the protection or negligence of one's rights. It is important to remember that in cases where a sufficiently vital interest is at risk there is always the option of the ultimate appeal to bodies with supra-national jurisdiction over our community.

Another measure that could be considered for ensuring fairness in our trials is the establishment of a system of checks and balances between bodies in the judiciary and government and the possibility of appealing one's case to a higher body.

I hope that with the above I have both contributed toward a framework for understanding and discussing the concept of 'professionalisation of CDS government' and clarified my own view relative to this question in the specific context of the judiciary.

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Post by Ashcroft Burnham »

I notice that you omit The Free Dictionary's [url=http://www.tfd.com/professional:3apb873p]definition[/url:3apb873p] of "professional", which is:

[quote="The Free Dictionary":3apb873p]pro·fes·sion·al Pronunciation (pr-fsh-nl)
adj.
1.
a. Of, relating to, engaged in, or suitable for a profession: lawyers, doctors, and other professional people.
b. Conforming to the standards of a profession: professional behavior.
2. Engaging in a given activity as a source of livelihood or as a career: a professional writer.
3. Performed by persons receiving pay: professional football.
4. Having or showing great skill; expert: a professional repair job.
n.
1. A person following a profession, especially a learned profession.
2. One who earns a living in a given or implied occupation: hired a professional to decorate the house.
3. A skilled practitioner; an expert.[/quote:3apb873p]

Getting law right requires great skill (acquired by training and experience) and a comprehensive code of ethics, strictly followed. Getting law wrong entails serious and perpetual injustice. A professional judiciary is one composed of skilled practitioners who follow strict ethical standards. A judicial system cannot be fair, therefore, unless it is professional. You are dangerously delusional if you think otherwise, and place an absurd and unprincipled ideal of universal participation for the sake of it above getting the function right. The reality is that most people simply don't want to participate in most things: law doesn't interest most people (except when they have a legal problem that they need solving, in which case their only interest is securing their desired outcome).

As to checks and balances and appeals, they are worthless unless the bodies to which one appeals are themselves skilled and ethical. It is absurd to suggest that the failings of one amateurish body can be cured by another, equally amateurish body, with equally little understanding of law.

The CDS's reckless rejection of professionalism condemns the community to the intractable and serious failings of perpetual amateurishness for the foreseeable future; that is why those with a professional mindset (as defined in my post on [url=http://forums.neufreistadt.info/viewtop ... 3:3apb873p]this[/url:3apb873p] thread) are very sensibly abandoning this "let's all play government" nationette in search of more satisfying pursuits that prioritise function over form. If any government is going to succeed at doing anything worthwhile in SecondLife, it will be a government whose members recognise that the government is there to serve a greater purpose than itself, and that whatever means that best serves such a purpose are the means that ought be adopted, whether or not that means that some eager beavers with no knowledge or understanding who would like to play at being in charge get to have their fun.

[i:3apb873p]Edit[/i:3apb873p]: Lest anyone cannot be bothered to search the other thread for my writings there on professionalism, I reproduce the relevant passage here:

[quote="Ashcroft Burnham":3apb873p]Although certain people with warped views insist that professionalism is evil, professionalism is really about more than getting paid: it is about dedicating oneself to becoming exceptionally skilled in a particular field so that there can be far more achievement in that field than there could be by people not so dedicated; it is about professional detachment from the work that one undertakes; it is about always putting one's professional duty above one's own personal interests; it is about having and always maintaining a rigorous standard of professional ethics; and it is about never being satisfied with anything less than the very best that can be achieved, even if it means a great deal more hard work than might otherwise be undertaken. Professionals do not, as officials in the CDS pervasively do, fudge things, or make do with what, at first glance, seems to be approximately adequate, or do whatever of those things that will achieve something approximating what one is aiming for that takes the least work, or do what one is seeking to do in whatever way seems the most "fun", or do things in a particular way just to make it easy for everybody to join in. Professionals believe in putting in as much work as is necessary to get things as good as they can be, and that professionalism takes dedication, hard work and skill. Professionalism means recognising that nothing is worth doing unless it is worth doing, at the very least, properly. Professionalism means recognising that jacks of all trades are masters of none, and that one should strive to achieve excellence in whatever field in which one has skill and to which one has chosen to dedicate oneself, and recognise that other fields are better left to those who have similarly chosen to do the same in relation thereto, for the benefit of all. It is that sort of professionalism that is absolutely necessary to make the extremely difficult, unavoidably complicated, and highly skilled task of creating and running a truly fair judicial system even remotely possible, and it is that sort of professional attitude that is, apart from many of the people who are professionals of one sort or another in the first life, dangerously absent in the CDS.[/quote:3apb873p]

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Post by Diderot Mirabeau »

We've now heard the position of an RL judicial extremist, who quite clearly equates standards of fairness with level 1 professionalisation and at the same time in my view is a good example of the discourse critiqued by Foucault of being unable to seperate the administration of knowledge of law from one's interest in seeing passed a whole system of law as conceived by one's own expert skills.

I notice that the argument takes as given that 'law can be gotten right' according to some unspecified but presumably objective notion, which can only be fulfilled through skilled practice and rigid pursuance of strict ethical standards for which - surprise surprise - RL educated lawyers are the best suited.

The argument is ahistorical; omits any honest mention of the assumption that the only proper benchmark of 'getting law right' is RL standards rather than the anarchistic/autocratic SL mainland; refrains from justifying how professional competence in category 1 is compatible with our society being one based on voluntary contributions in one's spare time; ignores the significance as exemplified by many forum contributors of the judiciary holding a degree of trust from the society and explicitly precludes the possibility that such trust can be obtained through other means than one's ability to demonstrate RL legal skills while at the same time labelling the mere speculation of the possibility as to alternative sources of trust and perception of fairness as being 'dangerously delusional.' It is obviously pointless to engage in discussion with anyone holding such a point of view.

I do however look forward to hearing the answer of Michel Manen, who has so far done a good job of presenting CARE's position on the judiciary. It shall be interesting indeed to see whether CARE's policy is 'dangerously delusional' or not.
[quote="Ashcroft Burnham":35201dkh]
I notice that you omit The Free Dictionary's definition of "professional", which is:[/quote:35201dkh]
[quote="The Free Dictionary":35201dkh]Copyright information:
[..]
Material contained in the Content may not be duplicated or redistributed without the prior written consent of Farlex, except that one print copy of search output is permitted for use within the customer's organization and that search output may be stored temporarily in electronic media for editing or reformatting and subsequent printing of one print copy of search output for internal use. [/quote:35201dkh]
I doubt that re-posting on a public bulletin board constitutes temporary storage in electronic media [..] for internal use. Quite an example of strict compliance with a comprehensive code of ethics.

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Post by Ashcroft Burnham »

Diderot,

if I thought for a moment that you (or any of your cohort of ultra-aggressive anti-judiciary and anti-intellectual extremists) were personally or intellectually capable of a genuine, reasoned debate on the topic, I should have taken a great deal of time to explain precisely why law can, indeed, be got right, why the fact that humans are interacting through a virtual medium is conceptually incapable of amounting to any reason at all to believe that the skills necessary to understand and administer fairly formal, rule-governed dispute resolution mechanisms for those interactions are radically different to when humans are interacting through any other given medium, why it is absurd and dangerous to ignore quite deliberately literally thousands of years of learning on the topic of how to administer law, how, until the destructionist agenda of the anti-judiciary extremists was realised by a grossly reckless legislature, there were indeed a great many people willing, quite voluntarily, to practice their professional skill to provide for a truly fair judicial system, why being greatly skilled and following a professional code of ethics are precisely what is needed in order to win social trust, why it is absurd to the point of delusional to imagine that those professionals who were willing voluntarily to invest a great deal of their time here did so for some cloak-and-daggers ulterior motive, and why, if, as I had suggested from the very beginning, a system of in-world legal education was established (something that Publius, one of the anti-judiciary extremists, was responsible for doing, and something that he singularly failed to do), it would not only be those who already had first-life legal qualifications who would be able to be legal professionals here, but I have no intention of wasting my time attempting to reason with those who are constitutionally incapable of reasoning.

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Post by Diderot Mirabeau »

I am sorry but perhaps your goodwill toward the possibility of letting non-RL legal professionals become able to run our judiciary was buried under the mountains of lengthy posts you wrote in defense of your judiciary act as conceived.

If you have so little faith left in your fellow citizens as stated then I have to say I don't really see the point in continuing to contribute to this forum except for maybe making some symbolic form of protest.

In any case following your argument to its logical conclusion entails that there is no point in us even trying to establish a judiciary as our little society of 65+ people relying on the pro bono efforts of a handful of RL lawyers with some time to spare can never hope to reach the high standard posed by an RL judiciary that has the benefits of actual, tangible instruments of enforcement; of all its participants residing in the same time zone; of operating on the same daily work hours; getting salaried at a level enabling them to make a living from their involvement in the system; of all the participants either speaking the same language or enjoying the benefits of qualified interpreters as intermediares; and much more.

Following your logic it would always be a better alternative to refer all disputes to arbitration by an RL court.

By the way I'm still awaiting CARE's answer to my question of what exactly is meant by a professional judiciary relative to the taxonomy outlined by me in my original post.

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Post by Flyingroc Chung »

Surprise surprise, a lot depends on the meaning of "profession" and "professional".

My own dictionary defines "profession" as: "a paid occupation, esp. one that involves prolonged training and a formal qualification."

And "professional" as:
[1] a person engaged or qualified in a profession : professionals such as lawyers and surveyors.
[2] a person engaged in a specified activity, esp. a sport or branch of the performing arts, as a main paid occupation rather than as a pastime.
[3] a person competent or skilled in a particular activity

Now I take it that the definition in [1] means that the professional goes through a process that "involves prolonged training and a formal qualification."

Personally (may not be an opinion shared by any of the groups I'm affiliated with), I reject that the CDS currently requires professionals in the sense of [1] and [2]; and agree that we need professionals in the sense of [3].

This corresponds to Diderot's level 4 and 5 tier of professionalism. Professionals in the context of SL.

I reject [1] because I believe the most critical skills for a judge at this point in our development is a strong sense of fairness, an ability to listen, and a lot of common sense--which does not require formal training. Of course, formal lawyerly training is a big advantage, it gives us some degree of confidence that a person is competent to be a judge. Just as an RL architecture degree inspires some confidence that a builder is competent.

I reject [2] because our economy cannot yet support it.

I agree that we need [3]: people competent in being judges. How do we determine that? I propose the test should be that person's *in-world* actions must be weighted more heavily than their RL qualifications. This is because:

1. RL qualifications are easily fabricated
2. For privacy reasons, a person might not want to reveal RL qualifications
3. RL qualifications will not matter if a person does not understand the unique social, cultural, and legal norms of SL and the CDS

Take the builder analogy: if I am to hire a builder, his RL qualification as an architect might be a plus, he might have even built some nifty RL buildings. But I'd still ask him to show me some of his in-world builds, and hire him on that basis. (in fact many of my favorite builders are *not* RL architects, or 3d modelers)

If we are to get a judge he must have already demonstrated to us that he is fair-minded, is able to listen objectively to opposing arguments, and has a lot of common sense. Add to that, of course knowledge and understanding of the CDS constitution and laws.

I do like Ash's idea of having some sort of training program that would help develop CDS legal expertise. However, it would be wise of us take some lessons from the largely failed experiment of the Guild, which was envisioned partly as a system to train and qualify artisans.

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Post by Beathan »

In response to Diderot's argument, Ash restates his standard argument, right down to the claims of delusion:

[quote:5ca4h8y0]Getting law right requires great skill (acquired by training and experience) and a comprehensive code of ethics, strictly followed. Getting law wrong entails serious and perpetual injustice. A professional judiciary is one composed of skilled practitioners who follow strict ethical standards. A judicial system cannot be fair, therefore, unless it is professional. You are dangerously delusional if you think otherwise, and place an absurd and unprincipled ideal of universal participation for the sake of it above getting the function right. The reality is that most people simply don't want to participate in most things: law doesn't interest most people (except when they have a legal problem that they need solving, in which case their only interest is securing their desired outcome).[/quote:5ca4h8y0]

Let's parse this a bit.

Why should an activity be professionalized? The general rule and starting point for human activities is generalized and fungible behavior. Let's start at the most basic form of human social organization -- bands. This is the form of social organization that all humans lived in until relatively recently (the mesolithic or neolithic eras -- with the invention of agricultural production). In band-organized cultures, everyone is a complete generalist. Roles are defined by age and biological gender -- with little or no other distinctions in terms of social roles. There are not even assigned "chiefs" or "religious functionaries." Leaders arise on an ad hoc basis based on who has shown great skill in a subset of the general skills . The leaders then merge back into the undifferentiated community when the specific task they were charged with is done. (E.g. the most skilled trackers or hunters lead hunting parties -- but this position is based on individual skill and is not permanent or reified; in fact, the "position" is not even recognized within the cultural context of the band.)

As social complexities increase, so do the permanence and reification and number of social roles. Anthropoligists generally recognize three levels of complexity above the band: tribe, chiefdom, and state. A tribe is generally a group of associated bands, with some permanent leadership, but the leadership is "personal-charismatic-meritocratic" and not hereditary. Tribes tend to develop when agricultural production allows for and requires sedentary populations. However, tribes do not tend to have very many social roles -- and nothing like "professions."

Chiefdoms are more complicated social organizations with complicated social patterns and traditions. Kin-structures are given particular importance, and leadership tends to be hereditary as a result of the kinship structure. Professions emerge, coinciding with the areas of life the people recognize as being so complex as to require a special understanding and therefore special training. Chiefdom professions tend to include medicine, combat, religion, trade, and diplomacy. Law is never found as a profession in these societies -- because the means of social control and organization(which I consider to be the law) is not so complex as to defy common understanding.

Finally, we have states. These include everything from Greek Citystates to modern nationstates. They are even more complicated -- and far more varied -- than are chiefdoms. Laws on the Ashcroftian model -- as promulgated statutes or generalized principles of common law -- emerge for the first time at the state level. However, contrary to Ashcroft's argument, lawyers do not emerge as a profession alongside the emergence of law. Lawyers were not a profession in Greece. They appear not to have been a profession in Egypt, the Mayan or Aztec empires, ancient Zimbabwe, Babylonia, ancient Persia, Sumer, India etc. They appear not to have been a profession in China until about the same time as the profession emerged in Europe.

Professional lawyers first emerged in Europe in Rome -- but even then they were not a profession in Ashcroft's sense. Rather, they were a group of self-declared experts in the Roman Code. The Roman Code was so complex that ordinary people could not understand it. Therefore, if an ordinary Roman citizen had a legal problem, he was forced to seek help -- and the legal profession arose as a result. Essentially, it arose as a parasite feeding on the body of Rome's complicated and confusing law.

This anthropological analysis makes clear that professions are necesseary only when a field of human endeavor is so complicated that only specially trained people can competently engage in it. Medicine emerges as an early profession because human health is inherently complicated. Similarly, religion/science emerges as an early profession because the natural world in which we, as humans, find ourselves is inherently complex. However, as with warriors, lawyers don't become a profession until the social complexity of the activity (war or law) becomes so complex that ordinary people cannot engage in it.

Thus, the professionalization of a social (as opposed to a scientific) activity is the result of social complexity. Further, it marks a real loss to the members of a society. It indicates that the society has become too complicated for its own members to be able to fully engage in the culture and in cultural activities. I find the emergence of such social professions to be regrettable. Professionalization of social activities should be avoided if possible.

Is the CDS law so complicated that our citizens cannot generally understand it? I don't think so. If not, there is no good reason to professionalize the activity. Professionalizing the law prematurely merely creates a specialized social class of lawyers within the CDS. As this social class is not required for the CDS law to function -- it is unnecessary. Unnecessary social organizations seek first to justify their existence. In this case, the professionalization of the law will create a group of lawyers who will then feel the need to justify their special status. As their special status will not be justified as long as the law is simple enough to be readily and generally understood, this class will seek to complicate and obfuscate the law so that lawyers become truly necessary. This is the trajectory we were on under the Judiciary Act. It is an awful trajectory -- aiming us straight into the chasm of legal elitism and judicial rule.

Further, contrary to Ash's claim, a professional organization of an acitivity is neither necessary nor sufficient for the ethical performance of the activity by its participants. When the legal profession first emerged, it was not ethically regulated. This is true of all professions. Professional ethics, like other forms of formal regulation of behaviors, emerge as an afterthought to respond to a need. Further, even without a formal code of ethics, there were lawyers who behaved ethically. More, even with a formal code of ethics, there are lawyers who behave unethically. This is equally true of other professions -- engineers, accountants, priests.

Further, a proper code of ethics is designed to regulate an activity to prevent behaviors that a society considers to be unethical. Thus, proper professional ethics cannot be imported wholesale from another context. Professional activities that are considered ethical in one place might be considered unethical in another -- as we see in the difference between the way American judges and British judges instruct juries. Further, ethical problems might not arise in certain contexts. Thus, as with legal procedures, legal ethics must be form-fitted the the practice of law as it exists, rather than imposed on the practice of law from some other system of legal practice. Lessons learned on land do not necessarily apply at sea.

Ash's fundamental mistake is to claim that a judiciary cannot be fair unless there is a professional judiciary. This assertion mistakes the cause for the effect. Many judiciaries are completely fair without a professional judiciary. Most humans have lived perfectly well -- have even lived perfectly well in complicated states with formal codes of laws -- without a professional judiciary. A professional judiciary, like the legal profession as a whole, is only necessary when the law is so complex that it would be unfair to expect an ordinary person to navigate it without special training or the help of someone with such special training.

The CDS is not there. The CDS might never be there. Even if our laws become so complicated that they approximate RL modern laws, the fact that we are involved in an activity on an information medium might mean that professionalization of the law might not be necessary because our laws might be so readily accessible by our citizens to be different in kind from RL law in just the right way to allow us to avoid professionalizing social control through law. If this is true, it would be a wonderful thing -- a thing that would be greeted throughout our world with a rejoicing in equal proportion to the distaste most folks feel about lawyers.

Finally, Ash argues that most people do not have sufficient interest in law to become sufficiently educated in it to do it right. First, this implies that to do law right requires special training. As seen above, this is not necessarily true. Second, if a person has a lawsuit or faces a legal charge, they will be motivated -- and if the law is accessible enough, they will not need special skill to navigate it. Again, iRL the accessibility of law is hampered by its complexity and the obstacles to accessing it (it is written in strange language, it is found in places that most people do not know how to access). We might be able, through the fact that SL, and the internet itself, is a readily accessible medium for information, to overcome or avoid the erection of these obstacles. Finally, in real life, most people are not interested in politics either, but that has not been fatal to the CDS project, nor has it forced the CDS to create, as real states have done, an elite class of professional politicians.

Beathan

Last edited by Beathan on Tue Jan 16, 2007 10:41 pm, edited 1 time in total.
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CARE's contribution

Post by michelmanen »

Discussing the notion of a “professional judiciary” and the semantic and philosophical issues underlying it has indeed become a necessary task in our community. CARE welcomes this debate and will gladly participate in it at the same level of discourse and in the same spirit of open discussion and exchange of ideas in which it was offered.

[u:2pdwi0iq]
[b:2pdwi0iq]I. The Syllogism at Issue[/b:2pdwi0iq][/u:2pdwi0iq]

As was aptly noted above, “professional” and “professionalism” are essentially contested concepts whose meaning remains inherently open to interpretation based on the specific contextual background within which it is embedded.

By focusing its analysis of the term “profession” as it relates to an “occupation” or a “body of people in a learned occupation”, the above commentary fundamentally misconstrues (unintentionally, no doubt) the meaning CARE attaches to the notion of a “professional judiciary”-and therefore brings it to question not only the relation between “professionalism” and “fairness” which is at the heart of its policy expounding the need for “ a government where our judicial system is fair, stable, and professional”, but just as importantly, raises the issue of the correlation between the notion of “professionalism” and that of “exclusion”.

When a Foucauldian analysis of the relationship between power and knowledge is applied to this foundational interpretation, we are suddenly faced with the iron laws of an inescapable syllogism:

1. A professional judiciary signifies the monopoly of exercise of legal functions by a body of individuals belonging to the legal profession.

2. The monopoly of exercise of legal functions by a body of individuals belonging to the legal profession is the application of knowledge to power and therefore the exclusion from the exercise of such power of all individuals and groups not belonging to this profession.

3. Therefore, a professional judiciary inevitably leads to the exclusion from the exercise of power of all groups not belonging to the legal profession.

The syllogism, of course, is structurally sound and its conclusion logically inevitable –but only to the extent that the substantive content of both premises are, indeed, demonstrable and factual.

CARE takes issue with the factual claims of both premises and therefore rejects the conclusion the post clearly points towards.

[u:2pdwi0iq][b:2pdwi0iq]
II. "Professionalism": An Essentially Contested Concept[/b:2pdwi0iq][/u:2pdwi0iq]

In CARE’s acception of the word, “Professionalism” is exhibited by one of the "professional character, spirit or methods" or the "standing, practice, or methods of a professional as distinguished from an amateur." (http://www.tsl.state.tx.us/ld/tutorials ... sm/IA.html) The crux of the matter in this case is not, as above, a “profession”, “occupation”, or a “body of people in a learned occupation” – but rather a personal ethics of approaching a given task. A “professional”, in this sense of the word (in counter-distinction to the connotations attaching to the term “profession”) signifies, therefore, an individual possessed of “abilities [who] can provide a valuable service to society and operate with little or no self-interest”, who is “dedicated to services and institutions” and who take pride in the quality of [his/her] work”. Therefore, fundamentally,

“Professionals are considered experts.
Professionals have a high degree of generalized and systematic knowledge with a theoretical base.
The primary orientation of professionals is to their public and/or community interest.
Professionals have a high degree of self-control of their behavior and are governed by a code of ethics.
The code of ethics is a statement of values.
The code ensures a high quality of service.
The code guarantees competency of membership, honor and integrity.
The code is a direct expression of the professions' principles of service orientation.
The code emphasizes no personal gain and protection of the client or patron.
The professional's system of rewards is primarily a set of symbols of work achievement.
There is a system of testing the competence of members.”
(http://www.tsl.state.tx.us/ld/tutorials ... stics.html)

At first sight there seems to be a high degree of congruity between the definitions of “professional” and “professionalism” expounded on above. This is indeed the case, to a certain extent, in Real Life, where access to the practice of law is strictly restricted and reglemented by professional bar associations, law societies, Barreaux and so on. However, the simple transposition of a set of factual givens from Real Life to Second Life often does not hold. The practice of legal professions in Second Life is not (yet?) restricted to members of those belonging to a legal qualification by virtue of their length of studies and qualifications achieved; rather, it is reglemented by their ability to master a core set of legal concepts, rules and methodologies, and willingness to make it their own a certain code of “professional” behavior. To the extent that any individual possessing such skills and professing such ethical commitments can indeed be characterized as “professional” and become a member of the judiciary, 2L exhibits a radical openness and potential for inclusivity, diversity and difference which Real Life has by an large lost. In any case, the true attraction of a “professional” judiciary in 2L is its very ability of combining the “professionalism” of RL legal professionals with the creative and innovative skills of 2L jurists who do not belong to the “legal profession” YET possess the necessary intellectual, cognitive, epistemological and ethical requirements for becoming members of our “professional judiciary” and bringing to it a new impetus towards difference, otherness, and lateral thinking which is more often than not frowned upon and even discouraged in what have indeed become, alas, rather ossified Real Life bodies of “professionals”.

To conclude CARE’s argument on this first point, while the post above does indeed make valid points regarding Real Life “professional” bodies of legal specialists, it misses the point of CARE’s argument that the notion of a “professional” judiciary can (and should) indeed combine Real Life “professionalism” with Second Life “anarchistic” (in its acception of non-reglemented and radically open) features in ways now largely impossible in Real Life in order to develop a sui generis Second Life judiciary capable not just of replicating, but indeed of improving upon Real Life practice by taking advantage of the radical potential immanent in a “professional”, YET not “profession”-dominated judiciary. What CARE strongly objects to is not the actualization of this immanent potential embedded within the notion of “professional”, but rather the disjunction between such radical openness and the necessary intellectual, cognitive, epistemological and ethical requirements for becoming members of our “professional judiciary”. While “trust” may indeed by obtained from some sections of the population by ignoring the latter, the longer-term consequences of such an ill-thought out move would be nothing short of disastrous, since any such additional trust gained by jettisoning such “professional” standards would inevitably be lost as our judiciary’s inevitable shortcomings and practical failings would inevitably surface and destroy even such trust as may initially have existed from the part of our citizens in our judicial institutions before “anarchistic” opening up to members of non-”professional” Real Life bodies (which CARE welcomes and, indeed, promotes) AND the abandonment of the “standards of professionalism” required for a “fair, stable, and professional” judicial system –which it vehemently opposes.


[u:2pdwi0iq][b:2pdwi0iq]III. Beyond the Habermas-Foucault Debate[/b:2pdwi0iq][/u:2pdwi0iq]

The critique of the second premise underlying the syllogism of the post above moves us away from the field of semantics into that of philosophy and sociology. It reaches at the very heart of the fundamental differences which distinguish CARE from a competing faction which seems to adopt a Foucauldian approach to social analysis. Superficially, one might summarize these differences as mirroring the (in)famous Foucault-Habermas debate, concerning whether Michel Foucault's ideas of "power analytics" and "genealogy" or Jürgen Habermas's ideas of "communicative rationality" and "discourse ethics" provide a better critique of the nature of power within society. The debate compared and evaluated the central ideas of Habermas and Foucault as they pertain to questions of power, reason, ethics, modernity, democracy, civil society, and social action (http://en.wikipedia.org/wiki/The_Foucau ... mas_debate ).


[b:2pdwi0iq]A. A politics of “résistance”[/b:2pdwi0iq]

Even attempting to summarize such a debate here would be a pointless and, frankly, impossible task. The heart of the controversy can, however, be briefly alluded to, in order to develop the necessary tools to expound on CARE’s position on this matter in the specific “life-world” in which we live our “Second Lives”.

As Flyvbjerg explains (http://flyvbjerg.plan.aau.dk/CIVSOC5%200PRINTBJS.pdf at p. 221 in text), Foucault’s normative position in this debate is expressed in a desire to challenge “every abuse of power, whoever the author, whoever the victims” and in this way “to give new impetus, as far and wide as possible, to the undefined work of freedom” (Foucault). Flyvbjerg goes on to explain the Foucauldian approach in a manner worth quoting at length, since it seems to mirror rather closely the normative commitment underlying the second premise expounded by the above post in the syllogism under discussion:

“Foucault here is the Nietzchean democrat, for whom any form of government –liberal or totalitarian- must be subjected to analysis and critique based on a will not to be dominated, voicing concerns in public and withholding consent about anything that appears to be unacceptable. Foucault’s norms are based on historical and personal context… [which] cannot be given a universal grounding independent of those people and that context… Nor would such grounding be desirable, since it would entail an ethical uniformity with the kind of utopian-totalitarian implications that Foucault would warn against in any context...: “The search for a form of morality acceptable by everyone in the sense that everyone would have to submit to it, seems catastrophic to me”. In a Foucauldian interpretation, such morality would endanger civil society, not empower it. Instead, Foucault focuses on the analysis of evils and shows restraint in matters of commitment to ideas and systems of thought about what is good for man, given the historical experience that few things have produced more suffering among humans than strong commitments to implementing utopian visions of the good” (Flyvbjerg pp/ 221-222 in text).

Needless to say, this politics of “résistance” to purportedly monolithic and quasi-totalitarian legal structures aiming to employ specialized knowledge in the attainment of power and domination over society at large constitutes the philosophical foundation upon which the above post (and the position of the faction seeming to endorse its views) stands or falls. Before analyzing the merits of this position in our specific context, a brief (!) description of the Habermasian position in this debate is unavoidable.
[b:2pdwi0iq]

B. Communicative reason[/b:2pdwi0iq]

Habermas approached this debate from an entirely different perspective – that of intersubjectivity. For Habermas, the path towards a rational constitution safeguarding the “Unfinished Project of Modernity” –namely that of rationality - as it developed ever since the Enlightenment, and its safeguarding against the (purportedly) normless and foundationless geneaological-deconstructive attacks of Foucault and his adherents (whose consequence could only lead to a normless, relativist void in which “anything goes” depending upon purely local standards lacking any grounding in the universal, Kantian reason which underlies Habermas entire body of work) resides in a path towards a rational constitution and the establishment of a bulwark against relativism by means of a re-orientation from Hegel’s and Marx’s focus on subjectivity to a focus on intersubjectivity. Habermas' work, and in particular his theory of ‘communicative action” and “discourse ethics’ is located in the intersubjective approach to the problematic of modernity using the concept of “communicative rationality”:

“The communicative rationality recalls older ideas of logos, inasmuch as it brings along with it the connotations of a non-coercively-unifying, consensus-building force of a discourse in which the participants overcome their of first subjectively based views in favor of a rationally-motivated agreement.”

Such a rational agreement, based exclusively on the validity and truth norms inherent in the “force of the better argument” (and excluding strategic pursuits and rational choice models by which bureaucratic and economic “systems” threaten to invade and destroy the communicative “life-world” exemplified by discoursive civil society) is embodied in the five key processual requirements of discourse ethics:
1. Generality: no party affected by what is being discussed should be excluded from the discourse;
2. Autonomy: all participants should have equal opportunity to present and criticize validity claims in the process of discourse;
3. Ideal role taking: participants must be willing and able to empathize with each other’s validity claims;
4. Power neutrality: existing power differences between participants must be neutralized such that these differences have no effect on the creation of consensus; and
5. Transparence: participants must openly explain their goals and intentions and in this connection desist from strategic action.

In a society structured in accordance with this model, citizenship would be defined in terms of taking part in public debate. Participation is discursive and detached participation. Given Habermas' procedural requirements mentioned above, as well as his definitions of discourse ethics and communicative rationality, it is clear that we are talking about procedural as opposed to substantive rationality: “Discourse ethics does not set up substantive orientations. Instead it establishes a procedure based on presuppositions and designed to guarantee the impartiality of the process of judging” (Habermas). Flyvbjerg again aptly summarizes this approach and ins implications:

“Habermas is a universalistic, “top-down” moralist as concerns process: the rules for correct process are normatively given in advance, in the form of the requirements for the ideal speech situation. Conversely, as regards content Habermas is a “bottom-up” situationalist”: what is right and true in a given communicative process is determined solely by the participants in that process… Habermas’ view of the democratic process is directly linked to judicial institutionalization: “I wish to conceive of the democratic procedure as the legal institutionalization of those forms of communication necessary for rational political will formation” (Habermas…). On the relationship between law and power in this process, Habermas states that “ authorization of power by law and the sanctioning of law by power must occur both uno acto”… Habermas thus makes it clear that he operates within a perspective of law and sovereignty… which contrasts with Foucault who finds this conception of power “by no means adequate”. Foucault says about his own “analytics of power” that it “can be constituted only if it frees itself completely from [this] representation of power that I would term… “juridico-discursive”… a certain image of power-law, of power-sovereignty”. It is in this connection that Foucault made his famous argument to “cut off the head of the king” in political analysis and replace it by a decentred understanding of power. For Habermas the head of the king is still very much on, in the sense that sovereignty is a prerequisite for the regulation of power by law” (Flyvbjerg 214 in text).

The extended discussion above is quite relevant for the CDS elections for three related reasons:

1. The struggle between the proponents and opponents of the Judiciary Act has mirrored, in its fundamentals, the Habermas-Foucault debate;
2. CARE was labeled as a solely process-oriented party whose “bottom-up” approach complements and completes the “top-down” approach of the (former) Chief Justice, thus inscribing itself squarely within the Habermasian perspective and normative project; and
3. Now that the “head of the king” has been indeed “chopped off” CARE is considered by its Foucauldian opponents to be nothing more than the substantive-less remnant of a failed attempt of a judicial institutionalization process to achieve “the sanctioning of law by power” and the (purportedly) consequent submission of all forms of free and decentred governance to a discursive-juridical form of universal morality most likey to destroy civil society – not to empower it.

CARE refuses to be labeled and defined in such a manner and allow such attempts by its opponents to re-inscribe it in a more than a decade-old argument.


[b:2pdwi0iq]C. The “Broken Middle”: the dialectics of reason and résistance[/b:2pdwi0iq]
[u:2pdwi0iq]
a. Theoretical conceptualization[/u:2pdwi0iq]

The particularity of law's function as a medium of legitimation is that it operates through its constitutional, substantive, and procedural dimensions; in fact, it constitutes the vital process which brings these dimensions together in a coherent legal order and endows them with a unique, performative type of legitimacy; crucially, it also represents the site of law's reflexivity -wherein the very natures of constitutional, substantive, and procedural law are constantly, critically re-examined and modified in light of changed legal norms and requirements; finally, it constitutes the porous, flexible membrane through which law as a system engages in a recursive process of communication with its external, non-legal environment, thus ensuring both that the legal order promptly adapts to changes in its environment, and that the environment itself responds to changes within the legal order. The performative legitimacy of law is thus constantly re-created through its own, triune function as a medium for systemic coherence, internal reflexivity, and recursive communication with its external surroundings.

The task of law as a medium of performative legitimation is thus particularly complex both theoretically and practically. We must therefore set out clear criteria by means of which we can judge the extent to which it is successfully performing its above-described triple function. Within the context of the CDS, law as a medium of coherence must integrate two sets of apparently conflicting requirements -namely, firstly, the very unity of the CDS legal order itself, with the diversity of various sims that will (eventually) constitute it, and secondly, the requirements of private autonomy as exemplified in the need to uphold substantive individual rights, with the necessity of public autonomy as expressed through democratic participation in decision-making processes. Law as a medium of internal change must bring about the simultaneity of the principles of stability and reflexivity -that is, it must ensure not only that changed legal norms and requirements are actually implemented at the various levels of the CDS (and indeed, Second Life) legal order -thus reaching a new, stable equilibrium but, crucially, that this equilibrium does not become self-perpetuating by means of ossification and resistance to any such further change. Finally, law as a medium of recursive communication must set up effective channels of interaction between CDS law as a constantly evolving social system and its dynamic non-legal environment, thereby establishing a pattern of recursive congruence - meaning that changes in both the CDS legal order and in its environment are coordinated with, and reflected in, changes in the other.

If we are to succeed in our endeavour, we must rediscover, at the conceptual level, the notion of law as medium, as process exposing the arbitrary falsity of each of the dichotomous conceits outlined above -the tertium quid mediating between unity and diversity, between the public and the private, between reflexivity and stability and between inside and outside. In effect, we must strive not towards the elimination of such apparent dichotomies and their replacement with a harmonious, self-perpetuating unity transcending these 'broken middles', but rather towards a reconfiguration of the dirempted notions of singular, universal and particular mirrored in the fissioning of the legal idea of a person as bearer of universal rights and duties, as a particular capable of interiorising such legality as individual morality, and finally as irreducibly singular, "as figured and fused in the name -legal surname with first, 'given', or 'Christian', singular name" appended (Gillian Rose, The Broken Middle). This triune structure of the particular, of the institutions of the middle, and of the state, where we are singular, individual and universal in each position can reassert its creative dynamism only if we can break free of the arbitrary binary oppositions between universal and particular and between individual and the state. Or, such a reconfiguration can only occur if we will ourselves to rediscover and reassert the legally-mediated force of these institutions of the middle, which "represent and configure the relation between particular and the state: they stage the agon between the three in one, one in three of singular, individual and universal; they represent the middle, broken between morality and legality, autonomy and heteronomy, cognition and norm, activity and passivity. Yet they stand and move between the individual and the state" (Rose). What, in fact, we would then achieve is nothing less than our coming to terms with the realities of a radicalised modernity, by recasting the Hegelian process of dialectical evolution from its violent and destructive Marxist teleological conceptualisation as the inevitable, external struggle between ossified institutional structures and an avant-garde of revolutionary agents of progress, resulting in the utterly distopian vision of a complete and violent eradication of the old order and establishment of radically new social relations, into a "delicate dynamics of controlled change". Such an internal dialectical process of transformation would consist of a recursive, creative and emancipatory tension between reflexive processes of deliberation and decision-making, open to constant change yet stable in their procedural structure, and the vibrating impulses of a dynamic social environment, conceived not as threats to stability and order to be neutralised and excluded, but rather as the vital springs of institutional efficiency, flexibility and legitimacy, to be recognised and included in the actual structure of a polity's system of governance.

[u:2pdwi0iq]2. Practical conceptualisation[/u:2pdwi0iq]

At the practical level of juridico-political institutionalisation, our point of departure must undoubtedly be the Habermasian insight that the performative legitimacy of a legal order is continually crafted by means of deliberative discourses in the public sphere - in the very arena where the triune structure of the legal, the political and the social intersect and interact in a perpetual dynamic process of reflexive and recursive self-transformation. Thus, "law receives its full normative sense neither through its legal form per se, nor through an a priori moral content, but through a procedure of law-making that begets legitimacy". The challenge we face resides in the need to embrace the very concept of deliberative discourse developed by Habermas whilst simultaneously overcoming the potentially stifling implications of the consensus-seeking dimension of his 'procedural paradigm', by reconceptualising law's legitimating function as the enabling medium of a deliberative vision of democratic politics which can also do justice to the agonistic spirit of democracy. The conception of law as enabling medium could actually be conceptualised as a process of deliberative democracy -and thus, it would be able to endow the constitutional, substantive and procedural aspects of the CDS legal order with the performative legitimacy which alone can hold the promise of the CDS’s long-term survival.

In Real Life, the notion of deliberative discourse in the public sphere, and its radical implications for our very conceptions of 'democratic politics' and 'constitutional government', have been increasingly at the forefront of philosophical, political and sociological debates over the last decades. Yet, only very recently have these notions begun to find an echo in our legal discourse and forced the legal community to start questioning the paradigmatic, state-centric assumptions underlying our understanding of the very nature of a 'legal order' and of 'the rule of law' within a democratic framework of governance. Conceptually, deliberative discourse refers to a process of communicative action taking place in a particular setting, constituted by the intersection of the public processes of a society's legal sphere, political sphere, and civil society. This setting, referred to as that society's 'public sphere', has been virtually equated, in the context of sovereignty-bound representative liberal democracies, with the institutionalised political and administrative actions of governmental actors - in short, with 'the state'. These structures, deemed to represent the 'general will', 'common good' or 'national interest', have been contrasted with the conception of a loosely-structured, 'civil society' conceptualised as the aggregation of the narrow, private interests of a variety of 'factionalised' socio-economic groups, whose social roles were therefore considered to be inherently a-political and therefore, lying outside society's 'public sphere'. The critical contribution of deliberative discourse theory has been to recast the dynamics between the individual as an autonomous and unique person, as a member of various civil society networks, and as citizen of a given polity, by conceptualising them as legally-structured communicative processes taking place within an enlarged public sphere. At this point, we shall focus our attention on the legal dynamics of deliberative discourse and its implications for our conception of law as a medium of performative legitimacy.

The core assumption of deliberative discourse is the observation that, in the context of a radicalised modernity characterised by an irreversible decline of social uniformity and homogeneity and the reflexive liquefaction of traditions -that is, by the critical and reflexive re-evaluation of the traditional power structures of such totalising societies, law's legitimacy can be preserved -and, indeed, enhanced, "only if enfranchised citizens switch from the role of private legal subjects and take the perspective of participants who are engaged in a process or reaching understanding about the rules for their life in common". This intersubjective conception of social interaction, reconceptualising politics as a process of contestation over questions of value and not simply questions of preference, is structured around the fundamental principle that the rules of law and politics are factually, and should be normatively, open-ended and subject to perpetual discussion, evaluation and transformation of the rules of social life. Thus, law becomes a reflexive means of social integration and simultaneously, one of legitimating political power: "by meeting its need for legitimation with the help of the productive forces of communication, law takes advantage of a permanent risk of dissensus to spur on legally institutionalised public discourses". Constitutional structures based on a contractual model are thus replaced by a discursive or deliberative system, whereby the legal community constitutes itself not by way of a social contract but on the basis of a discursively achieved agreement subject to constant revision and renegotiation.

Such a paradigmatic shift in our understanding of constitutional theory entails three vital consequences: firstly, this conceptualisation of law as a medium of performative legitimation privileges the communicative presuppositions and procedural conditions of democratic opinion- and will-formation as the primary source of legitimation; thus, in assuming a legal shape, deliberative discourse is transformed into a principle of democracy. Secondly, "in the light of this idea of the self-constitution of a community of free and equal persons, established practices of making, applying, and implementing law cannot avoid being exposed to critique and self-critique; constitutional law thus loses its static character and becomes a project, at once the outcome and the catalyst of law's transformation into both a "system of knowledge" (or set of public norms) and as a "system of action" (or set of institutions) embedded in a societal context. Thirdly, the implementation of the conception of law as a medium of performative legitimacy in effect signifies that "ubjects who want to legitimately regulate their living together by positive law are no longer free to choose the medium in which to realise their autonomy. They participate in the production of law only as legal subjects; it is no longer in their power to decide which language they will use in this endeavour". Consequently, the principles regulating the dynamics of the procedural paradigm of law must be uniformly applied across the entire spectrum of activities of each person, whether acting as a unique individual, as member of particular communities, or as citizen of a particular polity. The internal, reflexive coherence of the procedural paradigm and its consistent application at all levels of democratic discourse in the public sphere has profound implications on the above-discussed false dichotomies of unity versus diversity and public versus private autonomy.

On the one hand, the public sphere itself must be envisaged not as a single site of deliberation and decision-making of citizens in their roles as formally equal and depersonalised individuals, but rather as a network of functionally and territorially differentiated communities, each autonomous within its own sphere of activity, yet engaged in a dynamic, interactive process of norm setting, decision-making and problem-solving. Thus, each such community would be able to function within the bounds of its chosen legal order, provided democratic principles of deliberative discourse would be applied both internally, to the interactions taking place between the community's members, and externally, to the deliberations between various such communities. Deliberative discourse would thus constitute a process of collective learning - of free public reasoning among equals, where the preferences entering the political process would be viewed not as something merely given but as inputs that, open to exchange of arguments, can be discursively changed- taking place within a social and institutional framework facilitating free discussion among equal citizens by means of favourable conditions for expression, association, and discussion, and tying the authorisation to exercise public power both within and between communities, and hence throughout the entirety of the enlarged public sphere, to the actual application and observance of such discussion -thus ensuring the democratic accountability and responsiveness of public power at all its levels of activity. The rules of deliberative discourse would thus constitute the coherent, democratic framework of action enabling both the effective differentiation of a variety of autonomous functional and territorial public spheres, as well as their necessary integration into a polity-wide, heterarchical, enlarged public sphere, in circumstances requiring their cooperation in the setting of norms and rules, and the resolution of problems, of common concern.

On the other hand, the application of democratic principles of deliberative discourse -namely, that private legal subjects cannot come to enjoy equal individual liberties if they do not themselves, in the common exercise of their political autonomy, achieve clarity about justified interests and standards, and agree on the relevant aspects under which equals should be treated equally and unequals unequally- has dramatic implications on the tension-filled dynamics between public and private autonomy. In effect, the unresolved tension between the paradigms of liberalism going back to Locke and of civic republicanism reaching back to Aristotle, in which the former postulates the necessary priority of human rights to that of popular sovereignty, whilst the latter argues in favour of the political "liberty of the ancients" over the unpolitical "liberty of the moderns", overlooks the fact that, just as human rights cannot be paternalistically imposed as positive law on a sovereign legislator, so this legislator, regardless of his autonomy, should not be able to adopt anything that violates human rights. Or, deliberative discourse, assuming the shape of a principle of democracy through the medium of law, bridges this divide by developing into a system of rights that brings private and public autonomy into a relation of mutual presupposition. Starting from an idea of jurisgenerative politics according to which all legal consociates are both authors and addressees of valid law, the proceduralist paradigm of law posits the internal linkage between rights and democracy by means of a deliberative process of opinion- and will-formation whereby the exercise of popular sovereignty simultaneously secures human rights, as the cornerstone of an intersubjective deliberative model for settling normative questions:

[i:2pdwi0iq]"[T]he legitimacy of law ultimately depends on a communicative arrangement: As participants in more or less rational discourses, in more or less fair negotiations, consociates under law must be able to examine whether a contested norm meets with, or could meet with, the agreement of all those possibly affected. The internal connection between popular sovereignty and human rights that we are looking for consists in the fact that human rights state precisely the conditions under which the various forms of communication necessary for politically autonomous law-making can be legally institutionalised. These conditions are no longer constraints, but enabling conditions for the exercise of popular sovereignty. The system of rights can be reduced neither to a moral reading of human rights nor to an ethical reading of popular sovereignty, because the private autonomy of citizens must neither be set above nor made subordinate to their political autonomy... Private and public autonomy are co-original and of equal weight. The substance of human rights then resides in the formal conditions for the institutionalisation of those discursive processes of opinion- and will-formation through which the sovereignty of the people can be exercised" (Habermas).[/i:2pdwi0iq]

This unique and powerful argument for a model of democracy in which the public and the private autonomy of citizens are given equal consideration generates an intersubjective account of basic rights and a procedural democracy more attractive than any of the liberal or republican accounts currently available and offers a strong argument for the design of institutions that will facilitate discussion based on mutual respect. Most importantly, by demonstrating how public and private autonomy suppose one another, it points to the fact that they must be jointly realised and institutionalised in order to secure a performatively legitimate law-making process.

Critics of this Habermasian juridico-political paradigm of law point out, however, that by overly emphasising the concept of rational consensus as decision-making procedure, as well as by excluding the public sphere's multiple networks from direct participation in institutional problem-solving and decision-making, and limiting their role to that of applying pressure 'in a siege-like manner' on established legislative structures, it stops well short of fully realising its immanent potential of a radically transformed, democratically legitimated structure of governance. In effect, supporters of an agonistic model of democracy have argued that modern, pluralist democracies cannot hope to abolish domination and violence by "establishing once and for all the definite principles and arrangements that the members of a well-ordered society should accept". Therefore, since divisive issues cannot be confined to the sphere of the private, and since it is an illusion to believe in the possibility of a public sphere of rational argument where a noncoercive consensus based on the power of persuasion and of the best argument can actually be attained, democratic politics contains within its very structure irreducible alterities which, far from putting in jeopardy its democratic ideals, actually protect pluralist democracy from any attempt at closure. Once we accept that, "n a democratic polity, conflicts and confrontations, far from being a sign of imperfection, indicate that democracy is alive and inhabited by pluralism", it becomes clear that, for every settlement arrived at by means of a deliberative discourse, there will (factually) and should (normatively) necessarily exist a "constitutive outside" perpetuating the permanence of conflict and antagonism. As feminist theorists have argued, such enclaves of resistance, where difference comes to mean not otherness, exclusive opposition, but specificity, variation, heterogeneity that can be reduced to neither coextensive identity nor nonoverlapping otherness, are constitutive of democratic politics' capacity for change by their very willingness to remain open to change, resistance, and creativity. The critical role of law as a democratic medium of performative legitimacy then becomes that of fostering the dialectical tension between deliberative discourse and enclaves of resistance inhabited by subaltern counterpublics capable of formulating oppositional discourses and counterdiscourses, "which in turn permit them to formulate oppositional interpretations of their identities, interests and needs". This conception of an agonistic pluralism, containing the implicit recognition that, within the context of political community, the opponent should not be considered as an enemy to be destroyed, but as an adversary whose existence is legitimate and must be tolerated, is constitutive of the dynamics of democracy in a social setting shaped by the processes of a radicalised modernity. Thus, rather than seeing it as a threat, we should realise that it represents the very condition of existence of such democracy and therefore, actively seek to accommodate it within our proceduralist paradigm of law.

The second objection raised above is closely related to this discussion of agonistic pluralism. If our democratic model of deliberative discourse is to retain and enhance its mediating power with respect to such subaltern counterpublics as will inevitably exist outside the current prevailing consensus, these must retain the hope that one day, their own perspective might garner the public respect and support necessary to constitute the foundation of a new consensus. It is therefore vital that they be granted full rights of participation in the norm-setting, decision-making, and problem-solving institutional arrangements of the political sphere, rather than being edged to the periphery of a public sphere whose networks would, in any case, be limited to an informal, extra-institutional role serving merely "as a series of reminders -that human communication need not be narrowly technical [and] that unsolved problems remain outside the purview of conventional institutions". It is within this context that the proponents of a model of directly-deliberative polyarchy -"a conception of radical, participatory democracy with problem-solving capacities useful under current conditions and unavailable to representative systems", argue in favour of opening up the institutionalised structures of our juridico-political paradigm to the various publics constituting the interactive network of communication of the enlarged public sphere. Thus, rather than acting 'in a siege-like manner' on these exclusionary institutions, they would actually become an integral part of the dynamic processes of a jurisgenerative politics inclusive of all actors present within our enlarged public sphere.

The tertium quid capable of establishing a dynamic and creative tension between the two elements of the false dichotomy opposing the consensus-seeking rationality of deliberative discourse to the conflict-ridden arguments of an agonistic democracy is thus none other than the inclusive and dynamic process of principled debate in its actual norm-setting, decision-making and problem-solving capacities, leading to the legitimate and effective acceptance and implementation of its outputs -as well as to the toleration of enclaves of resistance as irreducible emanations of the very plurality and heterogeneity characteristic of a radicalised modern democracy. Deliberative rationalism and agonistic conflict thus constitute nothing less than each other's conditions of existence -for the former would be reduced to the meaningless status of a mere theoretical construct in the absence of the latter, whilst the latter's latent destructive potential could not be positively steered and channelled outside the former's disciplined framework of interaction. Tirelessly mediating between the apposite forces of deliberative rationalism and agonistic conflict in a reflexive process of dynamic evolution and change whereby each constantly strives to rejoin and reshape the other, yet never becomes entirely of the other, these legally-defined principles of debate thus constitute yet another embodiment of law as a medium for the effective regeneration of performative legitimacy.

Consequently, the arguments in favour of directly-deliberative polyarchy go well beyond the immediate concerns of feminist theorists and of proponents of agonistic democracy -extending deep into the cohesive, reflexive and recursive functions of law as a medium of performative legitimation. By opening up decision-making structures to the various networks of an organisationally dispersed and socially heterogeneous public sphere and combining the advantages of local learning and self-government with those of wider social learning and heightened political accountability resulting from the pooling of many concurrent experiments so as to permit public scrutiny of the effectiveness of strategies and leaders, directly-deliberative polyarchy transforms the public sphere into "the place where practicality in the form of problem-solving meets political principle in the form of deliberation through reason-giving among citizens who recognise themselves as free and equal". Furthermore, by shifting the processes of democratic politics away from the formalistic, self-limiting, and exclusionary grasp of the traditional, representative institutional structures of liberal democracy and recentering them on the actual dynamics of an enlarged, inclusive, yet also differentiated public sphere not thwarted by, but rather benefiting from, the heterogeneity of its actors, directly-deliberative polyarchy provides us with the necessary tools of institutionalising deliberative discourse as problem-solving technique at the very heart of our new proceduralist paradigm. Law as a medium of performative legitimation thus re-establishes a direct, dynamic, and creative link -a 'vibrant middle'- between unity and diversity, public and private autonomy, institutional action and social change, deliberative rationality and agonistic pluralism, public power and the power of the public -thus transforming the often explosive effects of an until now external and periodic clash of juridico-political thesis and social antithesis into a permanent and continuous dynamic of recursive integration and transformation, functioning in accordance with a set of norms and rules subject themselves to reflexive change by means of the same, deliberative procedures of discourse. We thus observe the continuous re-formation of a never-quite-fully attained synthesis which, at the moment of Becoming, is forced to keep open the recurring dialectical process of public deliberation, as well as the synchronic movement of perpetual reimagination of its empirical and conceptual boundaries.

Such a model of directly-deliberative polyarchy has radical implications for the emerging CDS order. Perhaps the most important consequence of this conceptualisation of law as a medium for performative legitimacy resides in the fact that it tears asunder the false dichotomy between an anarchic Second Life versus CDS democracy -thus permitting an extension of the idea of radical democracy to Second Life as a whole. Simultaneously, it provides us with an example of the manner in which private regulatory networks and structures of governance, such as Linden Labs, can be constitutionalised in such a way that the legitimacy problem inherent therein can be solved -namely, by associating radical democracy to functionally specified 'problem solving units', "neither conventionally public since they operate independently from state command and control, nor conventionally private because they do exercise a problem-solving function and have reflexive capacities concerning the interest of society as a whole. The idea of directly-deliberative polyarchy disconnects the democracy principle from the political institutions of the CDS and thus makes its extension to Second Life possible.


[u:2pdwi0iq][b:2pdwi0iq]IV. Conclusion[/b:2pdwi0iq][/u:2pdwi0iq]

The three key propositions which, together, underlie the charges brought against CARE by its opponents and detractors were as follows:

1. The struggle between the proponents and opponents of the Judiciary Act has mirrored, in its fundamentals, the Habermas-Foucault debate;

2. CARE was labeled as a solely process-oriented party whose “bottom-up” approach complements and completes the “top-down” approach of the (former) Chief Justice, thus inscribing itself squarely within the Habermasian perspective and normative project; and

3. Now that the “head of the king” has been indeed “chopped off” CARE is considered by its Foucauldian opponents to be nothing more than the substantive-less remnant of a failed attempt of a judicial institutionalization process to achieve “the sanctioning of law by power” and the (purportedly) consequent submission of all forms of free and decentred governance to a discursive-juridical form of universal morality most likey to destroy civil society – not to empower it.


CARE has answered this challenges comprehensively and authoritatively by:

1. showing that the Habermas-Foucault debate has progressed well beyond the original positions of the two main protagonists;

2. developing a detailed and coherent juridico-political theory of directly-deliberative polyarchy combining constitutional, substantive, and procedural elements, and integrating Foucauldian notions of power and knowledge into a Habermasian discursive framework.

3. developing, based on this coherent theoretical foundation, its specific vision, mission, ideals, principles, internal organization, decision-making procedures, and specific policy platform which puts an enlarged and participative civil society at the core – and not at the margins – of its juridico-political framework of governance for the CDS (and perhaps, beyond).


In doing do, it has comprehensively refuted the second premise of the key syllogism contained in the post initiating this discussion, claiming that:

[quote:2pdwi0iq]2. The monopoly of exercise of legal functions by a body of individuals belonging to the legal profession is the application of knowledge to power and therefore the exclusion from the exercise of such power of all individuals and groups not belonging to this profession.[/quote:2pdwi0iq]

In fact, CARE has shown that the existence of a professional judicary and the implementation of a directly-deliberative poliarchy as the CDS' jurudico-political framework will lead to the exact opposite result than that claimed above.

As to the first premise of the syllogism in question, opining that:

[quote:2pdwi0iq]1. A professional judiciary signifies the monopoly of exercise of legal functions by a body of individuals belonging to the legal profession.[/quote:2pdwi0iq],

CARE has refuted this attempt to limit the meaning of the word "professional" to that of a body of RL certified legal experts and has explained how this notion can and should be interpreted in the CDS in particular and 2L in general;

Consequently, the conclusion of the syllogism, stating that:

[quote:2pdwi0iq]3. Therefore, a professional judiciary inevitably leads to the exclusion from the exercise of power of all groups not belonging to the legal profession.[/quote:2pdwi0iq]

is flawed and untenable. CARE's postion on the judiciary, as elaborated and expounded on in detail above, is as follows:

[b:2pdwi0iq]1. A professional judiciary is essential (but not sufficient) for developing in the CDS (and perhaps, beyond) a democratic, participative, open, diverse, accountable and efficient juridico-political framework of governance (directly-deliberative polyarchy);

2. A democratic, participative, open, diverse, accountable and efficient juridico-political framework of governance will put an enlarged and participative civil society at its core – and not at its margins;

3. Therefore, a professional judiciary is essential (but not sufficient) for the CDS to situate an enlarged and participative civil society at the core of its juridico-political framework of governance.[/b:2pdwi0iq]


[b:2pdwi0iq]Thus, the issue to be elucidated becomes -not whether the CDS needs a professional judiciary as expounded above- but rather, what does a professional judiciary entail and how can we best develop and implement it in a democratic, participative, open, diverse, accountable and efficient manner -which will ensure its legitimacy and wide-spread acceptance by the vast majority of its citizens?[/b:2pdwi0iq]

Over the next weeks, all CARE members interested in this issue will work assiduously to develop exactly such a proposal.

Last edited by michelmanen on Wed Jan 17, 2007 2:53 pm, edited 15 times in total.
Diderot Mirabeau
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Re: CARE's contribution

Post by Diderot Mirabeau »

Thanks for your answer, which I understand to mean that CARE's view of professionals in the judiciary falls within the fourth and fifth tier of the informal "taxonomy" outlined by me in the above. That understanding will be useful for the Simplicity party and probably others to build upon when negotiating a compromise over the New Judiciary.

I take the liberty of ignoring the rest of the contents of your post as they do not seem to be related to my inquiry or any arguments I have been making.

Last edited by Diderot Mirabeau on Fri Jan 19, 2007 3:46 am, edited 1 time in total.
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Post by Beathan »

Michel --

Based on your discourse above, I firmly believe that our community would have readily accepted a Judiciary Act if written and implemented by you based on the policies you articulate. I even think that the policies that you articulate can and must inform our change of direction in passing a new judiciary. Unfortunately, these principles -- especially the delinking of "professionalism" from the RL legal profession (which I call "credentialism") was not part of the Judiciary Act as passed and as implemented by our former chief judge. If Ash had not insisted so strongly on RL credentials, which are not necessary to fully and fairly apply our currently simple laws -- I, and many others, would not have rebelled against the Judiciary.

I take it that you, and CARE, are now declaring yourselves open to a new and different kind of judiciary -- one that embodies ethical and fair decisionmaking but one which does not insist on RL credentials, requiring only on RL talent -- specifically "intellectual, cognitive, epistemological and ethical" talents. In such case, we can work with CARE in our development of a fair, accessible and open judiciary and legal system that preserves our commitment to equality among citizens and real participation of citizens. This commitment is well in line with CARE's rhetoric of "deep diversity".

However, this commitment requires that CARE commit itself, as the other parties have done, to the abandonment of the Judiciary Act and the Ashcroftian project -- dedicating itself instead to a project that requires personal competence but not RL credentials. Can I confidently hold you to a pledge to join with the rest of us in pursuing such a project? Yes or no please.

Beathan

Last edited by Beathan on Tue Jan 16, 2007 4:30 pm, edited 2 times in total.
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Post by michelmanen »

I said it will come up soon. I have an RL too, you know :)

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Post by michelmanen »

Beathan,

From the contents of my post above you will appreciate that I do not provide YES/NO answer in repsonse to trial-based questioning techniques. CARE's reasoned and detailed position will be posted as soon as possible in conclusion to my post above.

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Post by Beathan »

[quote="michelmanen":yx8kmygq]Beathan,

From the contents of my post above you will appreciate that I do not provide YES/NO answer in repsonse to trial-based questioning techniques. CARE's reasoned and detailed position will be posted as soon as possible in conclusion to my post above.[/quote:yx8kmygq]

Ask a simple question, get a meandering obfuscatory Habermasian answer, (but I repeat myself by saying "meandering obfuscatory" and "Habermasian").

Still, I will take Michel at his word. The Judiciary Act is dead, long live the Judiciary! We should now get to work, all four factions together, on coming up with a framework for the Judiciary we want and a plan to move forward.

However, in light of this statement of principles which run contrary to the Judiciary Act, I must note that, in abandoning the Judiciary Act, CARE seems to have lost its last and only actual substantive policy. CARE has become a party of principles -- and only principles. There is no policy there. Such discussion of principles first, last and only might well suit an academic pursuit -- but real politics and governance must be more practical (dare I say, more pragmatic). CARE does not offer much to the daily business of governing the CDS.

Of course, CARE can save itself by rejecting or hypocritically misinterpreting its principles in a way that pretends they compart with the Judiciary Act. However, I trust that such cognitive dissonance will not appeal to most CDS voters.

Beathan

Last edited by Beathan on Tue Jan 16, 2007 10:58 pm, edited 2 times in total.
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Post by Ashcroft Burnham »

[quote="Beathan":2ww13soa]Unfortunately, these principles -- especially the delinking of "professionalism" from the RL legal profession (which I call "credentialism") was not part of the Judiciary Act as passed and as implemented by our former chief judge. If Ash had not insisted so strongly on RL credentials, which are not necessary to fully and fairly apply our currently simple laws -- I, and many others, would not have rebelled against the Judiciary.[/quote:2ww13soa]

This is another one of your countless deliberate lies. You know perfectly well, as I have stated it over and over again, even on this very thread, that the system as we had it before did not necessarily depend on first-life qualifications: no judicial candidate was asked to declare any such qualification, and no means of checking whether any such declaration would have been accurate exist; I had advocated (as I have stated repeatedly, and you have ignored repeatedly, evidently quite deliberately) that the plan had always been to have in-world legal education so that we could establish our own legal qualifications and train our own lawyers, so that they need not have first-life qualifications to understand law well enough to administer it. Your incessant and wilful refusal even to attempt to engage in this point throughout the debate is one of the many reasons that it is quite clear to me that your participation in this debate has been far from honest.

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Post by Ashcroft Burnham »

[quote="Diderot Mirabeau":1xndxnse]I am sorry but perhaps your goodwill toward the possibility of letting non-RL legal professionals become able to run our judiciary was buried under the mountains of lengthy posts you wrote in defense of your judiciary act as conceived.[/quote:1xndxnse]

In the debate, I have stated over and over and over again that the intention had always been to have our own in-world programme of legal education and qualifications (look at the Judiciary Act: it expressly gives power to the Chair of the Judiciary Commission to administer such things) so that we could train our very own lawyers and judges, and not have to rely on their understanding of law being built up by being trained elsewhere. Every single time that I have mentioned it, it has been totally ignored by everyone (presumably because, inconveniently to those who wish to use the false spectre of a society being taken over by people from a particular first-life profession with no means of entry thereto in our own community to cloak their real anti-intellectual agenda, the facts did not fit their arguments). Beathan, on the other hand, specifically advocated during an in-world discussion that we had some time ago that (1) judges should be chosen from the ranks of lawyers; (2) lawyers should be licenced; (3) there should be strict criteria and rigorous testing for licencing lawyers; but (4) those who are lawyers in a first-life jurisdiction should be exempt. You may be interested to ask him how, as a member of your party advocating now the anti-professional views that he does, he can square that with the position that he once advocated.

[quote:1xndxnse]If you have so little faith left in your fellow citizens as stated then I have to say I don't really see the point in continuing to contribute to this forum except for maybe making some symbolic form of protest.[/quote:1xndxnse]

And why should I not protest at conduct so grotesquely corrupt, dishonest, irresponsible and reckless as that which I have witnessed in this increasingly intellectually destitute community?

[quote:1xndxnse]In any case following your argument to its logical conclusion entails that there is no point in us even trying to establish a judiciary as our little society of 65+ people relying on the pro bono efforts of a handful of RL lawyers with some time to spare can never hope to reach the high standard posed by an RL judiciary that has the benefits of actual, tangible instruments of enforcement; of all its participants residing in the same time zone; of operating on the same daily work hours; getting salaried at a level enabling them to make a living from their involvement in the system; of all the participants either speaking the same language or enjoying the benefits of qualified interpreters as intermediares; and much more.

Following your logic it would always be a better alternative to refer all disputes to arbitration by an RL court.[/quote:1xndxnse]

If you honestly think that, given all that you know perfectly well that I have written in detail on all of those topics, that actually is a logical conclusion of any of my arguments, then you are even stupider than I thought, and that is saying something.

A parting thought on professionalism - why would you want to be judged by amateur judges any more than you would want to be operated on by amateur surgeons?

Ashcroft Burnham

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