Developing our legal system

[Ashcroft Burnham]

[size=150:1123gzfc][color=darkred:1123gzfc][b:1123gzfc][u:1123gzfc]Part I[/u:1123gzfc][/b:1123gzfc][/color:1123gzfc][/size:1123gzfc]

[b:1123gzfc][i:1123gzfc]Note:[/b:1123gzfc] Those who are only interested in reading about what I propose for the legal system, rather than why I am making a proposal at all, should skip to Part II.[/i:1123gzfc]

[b:1123gzfc][u:1123gzfc]Preamble[/u:1123gzfc][/b:1123gzfc]

As Claude so eloquently stated in his opening address to the Representative Assembly this morning, our project of self-governence within SecondLife has been to date most successful, surviving what appear, from the perspective, at least, of a citizen who has joined since the events in question and read about them subsequently, to have been considerable setbacks, and demonstrating true independence and the ability to make effective decisions and develop a strong sense of community.

There are, I am most encouraged to see, a number of proposals for expanding what will soon not just be Neufreistadt, but the Confederation of Democratic Simulators, to a whole new island, and potentially a series of "Franchulates" on the mainland, which would, if all goes well, considerably swell our population beyond the mid-thirties, possibly even into the triple figures by the end of the year.

Whilst generally the constitution and governmental arrangements have quite evidently worked well so far, there is one area that could probably benefit from some development: the legal system. It seems that the Scientific Council's function to hold trials under Art. III, S. 6 of the Constitution has only been exercised on one occasion, which is perhaps testiment to the cohesiveness of the community.

Nevertheless, as good-willed and reasonable as, in my short experience so far, the citizens of Neufreistadt seem to be, with expansion on the horizon, there is now a need to think carefully about giving some more detail to the fairly sketchy legal system that seems to be in place at present.

One of the main objectives of Neufreistadt/the CDS seems to be commerce; commerce, in turn, in order to thrive, requires a good, solid legal system, which can swiftly, inexpensively, justly and predictably resolve disputes between (a) traders and other traders; and (b) traders and consumers. Commerce also demands a relatively orderly environment, in which consumers can shop for, purchase, and use goods and services, safe in the knowledge that there are effective means of dealing with people who wish them harm. Indeed, history shows that those nations with an effective government and legal system are consistently more commercially successful - often by huge degrees - than dictatorships with ineffective or corrupt legal systems. It is often said, for example, that the success British Empire was largely predicated on the success of its rapidly developing commercial law throughout the 19th century, underpinned by a strong legal tradition.

Having spoken to a number of Neufriestadt officials in-world, I think that I can be fairly safe in saying that there is a broad (albeit not necessarily universal, although I have yet to meet someone who disagrees) consensus that this is the right time to invest in developing the Neufriestadt/CDS legal system. Being a practitioner of law in the "first life", I am very interested to participate in that development, and have a number of ideas on how to turn the sketchy beginnings of a legal system currently in the constitution into a fully-fledged judicial machine that operates with at least the same efficiency as the more developed governmental and administrative branches of the state/confederation.

[b:1123gzfc][u:1123gzfc]A brief note on some of the drawbacks of the present sytem[/u:1123gzfc][/b:1123gzfc]

The current legal system of Neufreistadt/the CDS could be a lot worse: it does, after all, embody an effective separation of the powers by giving the function of discharging legal proceedings to the Scientific Council, and has a workable system for the appointment of members of the Scientific Council (and ergo potential judges) in a similar way to that which the English legal system, that with which I am familliar, uses, i.e. appointment by merit by a body independent of the political legislature (a system, in fact, better than that of the English legal system until a few years ago, when the Lord Chancellor's (a member of the government's) role in appointing judges was transferred to a new independent Judicial Appointments Commission).

There is aslo a rather encouraging statement in the constitution that hearings and trials (other than impeachment hearings) are to be conducted before a jury of peers, a system that has for many years safeguarded justice in some of the better and more mature legal systems of the world.

Nevertheless, there are presently some significant shortcomings. Firstly, there are no rules of procedure: it is not even clear who has the power to commence legal proceedings other than impeachment hearings. May any citizen bring non-impeachment legal proceedings? What about non-citizens? Or must legal proceedings be commenced only by a member of the Scientific Council? If not, how exactly does a person go about commencing proceedings?

Secondly, in order to give people the right to trial by jury, there must concomitently be a duty on citizens to serve on juries should they be called upon to do so: there does not seem to be any reference to this that I have found.

Thirdly, it is unclear what [i:1123gzfc]sort[/i:1123gzfc] of legal system that Neufriestadt has. Is it an adversarial system (in which the court acts as a neutral arbitor between two or more opposed parties who have responsibility for conducting the case), or an inquisitorial system (where the court itself actively enquires into the substance of the matter in question, leaving the parties largely as objects of that enquiry)? Is it a common law system (whereby the court decides disputes between parties based on legislation if there is any governing the matter, or, if there is not, previous precedent-setting decisions of the courts if there are any on point, or, if there are not, the court's own view of what the law should be based on the general principles of law that pervade in the legal system, which then sets a new precedent), or a civil law system (where the courts decide the law based on comprehensively-drawn but approximate codes of law, which the court interprets according to its discretion on each occasion, and is not bound to follow earlier decisions)?

Forthly, it is unclear what exactly the [i:1123gzfc]powers[/i:1123gzfc] of the various courts are. If a court finds that somebody has acted unlawfully according to Neufriestadt law, what can it do? What if somebody violates a court order?

Fiftlhy, it seems that there are a number of separate courts in Neufreistadt for reasons that are not entirely clear. The [b:1123gzfc]NL 4-14 Registration and Incorporation Act[/b:1123gzfc], for example, provides for a "commercial court" to resolve disputes about Neufreistadt registered companies, but it is unclear how that court should be composed, what its powers are, or exactly what its jurisdiction is: would a litigant be able, for example, to defeat a suit soeley on the ground that the conduct in question, although unlawful by Neufriestadt law, was undertaken in a personal capacity, and not as the officer of a Neufreistadt registered company? That sort of situation is reminiscent of the separation before 1873 in England of the Court of Chancery and the common law courts, where different (but co-existing) sets of rights and remedies operated, and, if one brought suit in the wrong court, one's action could be defeated on that ground alone, and one would have to start again in the correct court.

Sixthly, any court enquiring into the conduct of citizens of Neufriestadt must be able to hear all the evidence available to be presented to it, including evidence about what took place during conversations, which might be the subject of substantial and important dispute. The SecondLife Terms of Service, however, requires that residents do not make public logs of conversations held in SecondLife without express consent to do so. This could cause considerable difficulty in the court's adjudication process if not addressed.

Seventhly and finally, in terms of substantive law, looking through at the legislative archive, there is a great deal of public law (especially planning and finance), but, with the exception of the abovementioned statute on incorporation, very little in the way of private law. If we had a common law system, that could be developed through a series of precedent-setting decisions, although it might be helpful to have at least some framework to start with.

In the coming parts, which I will post below, I will set out what I propose to address all of these shortcomings, dealing first my proposals for the constitution and structure of the court system, then with the court's powers (including powers of enforcement), then with procedure and then, briefly, touching on substantive law.

[Ashcroft Burnham]

[size=150:37uzhvor][color=darkred:37uzhvor][b:37uzhvor][u:37uzhvor]Part II[/u:37uzhvor][/b:37uzhvor][/color:37uzhvor][/size:37uzhvor]

[b:37uzhvor][u:37uzhvor]Summary of Part I[/u:37uzhvor][/b:37uzhvor]

For those who did not read part I, here is a brief summary: Neufreistadt/the CDS has what is in many respects the beginnings of a good legal system (embodying the separation of powers and trial by jury), but it is sketchy and needs considerable development in order to be effective. An effective legal system is of great importance to commercial success. As a legal practitioner in England, I am very interested in the development of law and the legal system in Neufriestadt, and am making this detailed proposal in order to begin what will hopefully be a swift and effective development process.

[b:37uzhvor][u:37uzhvor]The courts and the constitution[/b:37uzhvor][/u:37uzhvor]

Changing the legal system would require a constitutional amendment, since the present constitution provides, at [b:37uzhvor]Art. III, S. 6[/b:37uzhvor]

[i:37uzhvor]"Chairs of the SC will ratify bills passed by the Representative
Assembly by simple majority vote and may resubmit the bill with
modifications for vote. Hearings and trials not involving
government officials will be overseen by a single Professor
and judgment will be decided by a jury of peers.

All impeachment hearings will be performed in the Philosophic
branch by the Chairs without a jury. If a Chair is accused, that
Chair will be excused for the duration of the hearing. A member
of the branch which is not calling for the impeachment hearing
will serve as Leader of the Philosophic branch during the hearing."[/i:37uzhvor]

I will deal presently with [i:37uzhvor]how[/i:37uzhvor] to acheive the changes that I suggest, but it will be easier if I first outline [i:37uzhvor]what[/i:37uzhvor] changes I propose, then return to the mechanics thereafter.

[b:37uzhvor]Levels of court: a professional judicary[/b:37uzhvor]

At present, there are several courts, and presiding over each is a chair of the Scientific Council. The Scientific Council is not a full-time, professional judiciary, but has an assortment of functions, which are mainly constitutional in nature, one of the most significant being ratification of bills passed by the Representative Assembly (this function has a particular significance with respect to the legal system, to which I shall return later). What I propose is a professional, salaried judiciary with its own administration, at least partly independent of the SC, to deal with most matters of law, with the SC retaining jurisdiction to sit as a court for impeachment hearings and certain other limited purposes relating to the constitution.

I propose the replacement of the existing courts system with two distinct kinds of courts: (1) [b:37uzhvor]Courts of Common Jurisdiction[/b:37uzhvor], dealing with all matters except certain constitutional matters, and (2) [b:37uzhvor]the Court of Scientific Council[/b:37uzhvor], which would deal with (1) impeachment hearings (including impeachment hearings of judges of common jurisdiction, which is a reason to have the separate Court of Scientific Council); and (2) appeals from Courts of Common Jurisdiction, but only with the leave of a single judge of the Court of Scientific Council, and only on the ground that the Court of Common Jurisdiction exceeded its powers under the [i:37uzhvor]constitution[/i:37uzhvor], [u:37uzhvor]not[/u:37uzhvor] that it incorrectly interpreted or applied the common law of Neufreistadt/the CDS, or any act of the Representative Assembly, or any other such ground. [i:37uzhvor]Edit[/i:37uzhvor]: I propose that the Court of Scientific Council require a minimum of [i:37uzhvor]three[/i:37uzhvor] (or more accurately, any odd number greater than two) judges to preside over it, given both the importance of the decisions that it has to make, and the infrequency with which it will meet.

[i:37uzhvor]Point for further discussion[/i:37uzhvor]: What, if any, other jurisdiction need the Court of Scientific Council have to discharge its function as final arbiter of disputes about the constitution itself, whilst leaving the running of the ordinary judicial system, including most appeals, to the Courts of Common Jurisdiction?

I write Court[i:37uzhvor]s[/i:37uzhvor] of Common Jurisdiction for a reason: although initially, no doubt, there would only need to be one Court of Common Jurisdiction, eventually, it is quite possible that it would help to have multiple levels of such courts. I propose designing the system from the outset to accommodate that sort of scalability in the future. Initially, therefore, there would be established just [b:37uzhvor]the High Court of Common Jurisdiction of the Confederation of Democratic Simulators[/b:37uzhvor], or [b:37uzhvor]The Federal High Court[/b:37uzhvor] for short. (I chose the name "High Court" rather than "Supreme Court" because the initials of the latter clash those of with "Scientific Council"). Then, if demand warrants it, below that could be created [b:37uzhvor]Local Courts[/b:37uzhvor] (such as, for example, "[i:37uzhvor]The Colonia Nova Court of Common Jurisdiction[/i:37uzhvor]"), with similar, but slightly differing rules of procedure to focus on the simpler and less serious cases, and prehaps curtailed powers of punishment. With the two-teir system, parties bringing cases would select in which court to bring them; the courts could then, having regard to any representations that any other party wished to make on the matter, if the case was considered more suitable for a higher or lower court, transfer it there. Furthermore, it would be possible to appeal from the local court to the Federal High Court, not for a full-rehearing, but on the ground that the decision of the court below was wrong in law. There should be no such appeal from first instance cases brought in the High Court, except by means of the very limited appellate jurisdiction exercised by the Court of Scientific Council. It might be that, in time, the High Court becomes principally a court of appeal, with only the most serious or complicated first instance cases being dealt with there, although that will, of course, depend on levels of demand.

[b:37uzhvor]Administration and structure on the macro scale[/b:37uzhvor]

I propose the establishment of a [b:37uzhvor]Judiciary Commission[/b:37uzhvor], whose functions would be (1) to appoint and pay judges and administrators; (2) to administer and control the mechanics of the operation of the court system; (3) to promulgate and archive public information regarding the law and legal system (including the facilitation of the service of documents by which proceedings are commenced); (4) to provide, or at least oversee, education in the law and legal system; and (5) to publicise and advertise the fact that we have a functioning legal system (and therefore, indirectly, the Confederation itself), and provide advice to other SL governments about how to create and run a legal system.

The Judiciary Commission would be constituted by a single Chair of the Judiciary Commission (who would have the power to appoint deputies), and a salaried Chief Clerk to the Judiciary, who would, subject to the authority of the Chair, be in charge of the administrative aspect of the judicial system, and have the power to appoint deputy clerks and junior clerks. The Chair of the Judiciary Commission would, in turn, be appointed by a majority vote in the Scientific Council, and would serve until resignation, retirement, death or successful impeachment, whichever is sooner. (The reason for this, incidentally, is that security of tenure is of great importance in establishing a just legal system that is truly independent of government).

[i:37uzhvor]Point for further discussion:[/i:37uzhvor] Should the Chief Clerk to the Judiciary be appointed by the Chair, or directly by the SC?

[i:37uzhvor]Point for further discussion:[/i:37uzhvor] Should the Chair of the Judiciary Commission also be a member of the Scientific Council?

[b:37uzhvor]Judges[/b:37uzhvor]

Judges of Common Jurisdiction would be appointed by the Judiciary Commission, and would serve until resignation, retirement, death or successful impeachment, whichever came first (security of tenure again). If Judges of Common Jurisdiction are members of the Scientific Council, they would not be permitted to sit as judges on the Court of Scientific Council.

To start with, I imagine that only one or two judges would be needed, but, if demand warrants it, more would eventually be required. Of all the judges, there should be a Chief Judge of Common Jurisdiction, whose principal power would be to choose which judge sits on which case.

[i:37uzhvor]Point for further discussion[/i:37uzhvor]: Should the Chair of the Judiciary Commission automatically be Chief Judge of Common Jurisdiction (he or she would probably need to be at first: I envisage a Judiciary Commission starting with a staff of two: the Chair/Cheif Judge, and the Chief Clerk), or should it be possible for the Chair to be a more junior judge, or not a judge at all?

I propose that the formal rank of judges sitting in the High Court be the same as those sitting in the local courts (when established) (i.e., a Judge of Common Jurisdiction), but that, as a matter or practice, generally the Chief Judge should assign more senior judges to hear cases in the High Court, and more junior judges to hear cases in local courts.

[b:37uzhvor][i:37uzhvor]See the forthcoming Part III (and later) for my proposals regarding the court's jurisdiction, powers, procedure and some ideas about the substantive law[/b:37uzhvor][/i:37uzhvor]

[Ashcroft Burnham]

[size=150:20atsuvs][color=darkred:20atsuvs][b:20atsuvs][u:20atsuvs]Part III[/u:20atsuvs][/b:20atsuvs][/color:20atsuvs][/size:20atsuvs]

[b:20atsuvs][u:20atsuvs]Jurisdiction, powers and enforcement[/u:20atsuvs][/b:20atsuvs]

[b:20atsuvs]Jurisdiction[/b:20atsuvs]

I propose giving the judiciary of the CDS a broad jurisdiction, whose powers will be limited more by the enforcability of judgments than by technical considerations of territory, such that the system might be as effective as possible. I propose that the Courts of Common Jurisdiction of the Confederation of Democratic Simulators have jurisdiction over: (1) the conduct of all citizens of the Confederation; (2) the conduct of all avatars visiting any holding, tier or terratory over which the Representative Assembly purports to exercise terratorial control; (3) the conduct of any resident of SecondLife that materially affects the affairs of the Confederation, or any citizen thereof; and (4) the conduct of any person who posts on these fora, including appeals from decisions of the moderators. To ensure effectiveness of the jurisdiction, the Court of Scientific Council should be reluctant to entertain any appeal from the High Court on the ground that it has acted outside those fields of jurisdiction, and allow appeals only in the most obvious cases (such as where no reasonable person could possibly come to the conclusion that the matter fell within one of those four categories).

[b:20atsuvs]Civil or criminal?[/b:20atsuvs]

Legal systems in the first life have often developed two distinct arms: the criminal and the civil, the first dealing with conduct prejudicial to the public good, and the latter dealing with private disputes between citizens and each other, or between citizens and the state.

It does not take much to realise that those categories overlap to a very great extent. In fact, the separation between civil and criminal, in England at least, is more an accident of history than anything else, with kings of years past having a personal interest in the maintenance of order among their subjects (and so instituting systems to "keep the King's peace" - even to-day in England, the lower criminal courts (magistrates' courts) are presided over by magistrates, who are alternatively known as "justices of the peace" for that very reason), whereas private disputes about things such as land ownership were dealt with in a different way.

I propose that there not be separate and distinct legal sysetms for "criminal" and "civil" law, but, instead, that all law (save for those aspects of constitutional law reserved for the Court of Scientific Council) be administered in the single set of Courts of Common Jurisdiction described above.

Although I onlly touch on the subject here, since it really belongs in discussion of substantive and procedural law, the way in which the amalgamation would work is essentially quite simple: citizens (either acting as private citizens, or in their capacities as officials of some or other arm of state: they would be treated alike by the courts) would bring an action against a resident (usually a citizen or a company), by setting out a set of propositions of fact, and asking the court to make one or more orders in respect of that person. Such a document would also state whether the person who brings the action alleges that the person against whom the action is brought has acted [b:20atsuvs]culpably[/b:20atsuvs] or not, and, if so, with which degree of culpability (intentionally, recklessly or carelessly) that the person has acted. If, and only if, a Court of Common Jurisdiction finds that a person has acted (a) unlawfully, and (b) culpably may it impose a [b:20atsuvs]penalty[/b:20atsuvs] (see furhter below). Otherwise, its powers are confined to making non-penal orders regarding the litigants' respective rights, including, for example, that certain property be transferred, that a debt is valid and should be repaid, or that compensation be paid for, for example, non-culpable breach of a contract.

Incidentally, the above paragraph also deals succinctly with my proposals as to the [b:20atsuvs]powers[/b:20atsuvs] of the Courts of Common Jurisdiction.

[b:20atsuvs]Enforcement[/b:20atsuvs]

A legal system is only as effective as its power to make the unwilling submit to its orders. In real-world legal systems, some orders of the court are [b:20atsuvs]coercive orders[/b:20atsuvs], i.e., ones that have effect by themsleves over an unwilling subject (sentences of imprisonment, warrants of arrest, orders that banks pay money formerly owed to one litigant to another, orders that goods be seized by bailiffs, and so on), whilst some are [b:20atsuvs]non-coercive[/b:20atsuvs] orders of the court, i.e., those can only be enforced by the threat of one or more coercive orders (such as fines, orders to pay damages, orders to undertake community service, orders to perform certain terms of a contract, etc.).

Thus, our in-world legal system has to have one or more effective coercive orders (which can then be supplemented by a range of non-coercive orders) in order to be effective. The most obvious (and most draconian) of such orders is an order of [b:20atsuvs]banishment[/b:20atsuvs], i.e., an order directed to whoever controls the ban lists for the various sims and Franculates under the jurisdiction of the CDS to add the name of that person to the list in question, to revoke that person's citizenship (if he or she has any), and to forfeit any land holdings that he or she has within the jurisdiction, as well as, for example, any money held in a CDS bank or owed by a CDS company. Cases of the most serious culpable misconduct, and repeated or serious violations of other court orders, should result in banishment. Banishment could be for a term certain (such as a week, month or year), or, in the most serious cases, permanent. This would, of course, have more effect on those with a greater interest in the sim, and probably would have the greatest effect on the owners of a Fruanculate.

Another possible coercive sanction below banishment is [b:20atsuvs]forfeiture[/b:20atsuvs], where, if the person in question holds land or property within the jurisdiction that is practically controlled by an office holder of the CDS (such as land, or money in the bank), then a court could order that some or all of that property be forfeit (either as a punishment in itself, or to satisfy an existing court order, such as an order to pay a fine or compensation), and the co-operation of the person whose property is forfeit would not be required.

Finally, of course, coercive enforcement on the forum is relatively easy, albeit limited punatively, as moderators can delete messages readily.

[i:20atsuvs]Point for further discussion[/i:20atsuvs]: Can anybody think of any other effective coercive means of enforcement?

Non-coercive means of enforcement could range from [b:20atsuvs]public admonishment[/b:20atsuvs], fines, orders to pay compensation, orders to deliver up goods, orders to remove structures from land placed in violation of planning restrictions, and so forth.

There could also be combinations of coercive and non-coercive orders, such as an order for banishment suspended on conditions (such as the undertaking, to the Guild's satisfaction, of [b:20atsuvs]good works[/b:20atsuvs] for the city, to be set by the Guild, such as the provision of objects, textures or architecture).

There is also a sense in which even an apparently non-coercive means of enforcement (such as a public admonishment) can have indirect coercive power, as, since I propose that all judicial proceedings and court orders be made public (the Judiciary Commission should, perhaps, have a specific subset of its own on the Confederation website for just that purpose), the fact that a person has been found to have acted unlawfully by a court might itself have adverse consequences for that person, such as where, for example, a trader has a finding against her or him for malpractice in the course of that trade, and some potential customers are deterred thereby.

[b:20atsuvs]Interim banishment[/b:20atsuvs]

There are some cases, of course, where banishment only after a trial can take place will not be effective, such as where a person is causing immediate danger or severe and repeated annoyance to persons within the jurisdiction, and who should be banished forthwith to prevent them from causing any further problems. On the other hand, such people should have the right to a trial, just like everyone else: after all, it would not be an effective legal system in which people could circumvent the trial process merely by making their accusaitons against others more serious.

To acheive the appropriate balance, I propose a system of interim banishments that serve the same function in our in-world jurisdiction as remand into custody serves in the real world. Particular persons would be authorised by the Representative Assembly as Marshals of the Peace, and would have the power to issue summarily a temporary order of banishment, which would have effect for a limited period of time. That person would then be served with a notice (by IM, perhaps), stating (1) that he or she has been banished; (2) the reasons therefor; (3) the period of the temporary banishment; and (4) how to make representations to the Court of Common Jurisdiction about why he or she should not be the subject of an interim banishment.

Some time before the time limit for the temporary banishment expires, the person who is the subject of the order should have an opportunity to be present before a court, and the court should then rule on whether to extend the interim banishment order until the trial (or other disposal), or grant the person bail, with or without conditions. It would be for the Marshal of the Peace to show that cause as to why the temporary banishment order should be made into a full interim banishment order, and the person against it is proposed to be made would have a chance to make representations as to why it should not be made. A Marshal would also be able to concede that the person should be granted bail, but ask the court to impose conditions. Any Marshal may impose a further temporary banishment upon any person who breached any condition of bail, and again give the person an opportunity to come before the court and make representations about why a full interim banishment order should not be made. Questions of interim banishment should be decided by a judge sitting without a jury.

A person who is the subject of an interim banishment should not lose citizenship or forfeit any holdings, and should be able to vote during the period of interim banishment (after all, a person should be presumed innocnet until proven guilty). A Marshal of the Peace should always be present at any court hearing at which a person who is the subject of a temporary banishment order is present (the banishment, of course, would have to be revoked in order for a person to be so present) in order to ensure that the person does breach the peace during the hearing, and should escort the banished person from the telehub to the court, being ready to banish the person again if he or she should do or attempt to do anything sufficiently serious. Once in court, however, the Marshal of the Peace should not banish the person without leave of the judge.

[b:20atsuvs]Jury service[/b:20atsuvs]

The Chief Clerk to the Judiciary should have power to serve on citizens of the Confederation a notice requiring them to attend the court for jury service at a particular date and time. A person should be required to attend unless, on her or his application well in advance of the hearing for which he or she has been called, he or she can show cause to a Judge of Common Jursidiction as to why he or she should be excused, such as a prior appointment. Members of the Representative Assembly, Judges of Common Jurisdiction, any citizen who is the subject of a temporary or interim banishment order, and anybody having any interest in the case in question should be disqualified from sitting on a jury.

[i:20atsuvs]Point for further discussion[/i:20atsuvs]: Who, if anyone else, should be disqualified from jury service? Should, for example, citizens who have had a recent finding of culpable unlawful c0nduct be disqualified? If so, how recent, and how serious should it be before it disqualifies?

[b:20atsuvs]Enforcement and consent for chat logs[/b:20atsuvs]

The problem of chat logs was discussed in Part I, where I noted that the fact that the Second Life Terms of Service prohibit the distribution of chat logs without the consent of the participants in the conversation in question creates potential problems for the administration of justice, particuarly where evidence of what was said in conversations (in a case, for example, of harassment or breach of oral contract) is essential to resolving a dispute between litigants.

My proposed solution is this: all existing citizens should be required to give perpetual and irrevocable consent to any chat logs, IMs, or other communications being used as evidence in judicial proceedings in the courts of the Confederation. Anyone who refuses to do so should be liable to banishment. All new citizens should be required so to consent in order to become citizens in the first place (perhaps by making such consent part of the deed). Since I propose that the courts of the Confederation have jurisdiction over non-citizens, who cannot, therefore, be compelled to give general consent, I propose that the courts have power to order non-citizens to consent to particular chat logs being made available for court proceedings, failure to comply with which will render the person in question liable to banishment (or any other coercive means of enforcement). That should stand as a comprehensive solution to the potential problem of people refusing to consent to chat logs being used in judicial proceedings in order to frustrate the effective administration of justice.

[b:20atsuvs][u:20atsuvs]A lighter note - architecture, robes and heraldry[/b:20atsuvs][/u:20atsuvs]

In order for a court to function effectively, it needs a court-house, and in order for it to be taken seriously, it needs what is often called in the Confederation "iconography", i.e. aesthetic symbols of the court's power and culture.

As to the first, I propose that there be constructed somewhere in the City of Neufreistadt a new civic building to house the High Court of Common Jurisdiction. That court building should have (1) a hearing room, with a raised chair for the judges (as a precaution, it is probably best to arrange it so that three judges may sit at once: it might be that that will end up being the usual composition for the court when it comes to exercise its appellate jurisdictio over the local courts when they are created), a desk below and in front of the judge's bench for the clerk of court, a jury box to house eight jurors (if I remember correclty, eight is the number to which reference is made somewhere in the constitution, and I have some doubt that twelve will be a practical number for a community so small - it might even have to be six at first), several benches facing the judge for the parties to sit, a witness box, and a public gallery. It should also have an entrance hall (including a notice board with details of the case(s) that is/are to be held in the near future, and an office at which (hopefully automatically) documents can be served, etc. It should also have a small private room for the judge, and a retiring room for the jury, each accessible through a separate back entrance. I can provide further detailed guidance on court architecture - including some pictures of British courtrooms from the official website of the court service here. The court should be a no-fly zone. Until such a court-house is built, I propose that any court hearings be held in the church. Local courts, if established, should have thier own, local court-houses, in the theme of the sim in question. Any area too small or insufficiently developed to have a court-house for a local court should use the court-house built for the High Court (but, if the case is allocated to the local court, for it to function as the local court: i.e., for example, "[i:20atsuvs]The Colonia Nova Court of Common Jurisdiction sitting at Neufreistadt"[/i:20atsuvs]).

It might also be useful for somebody (Gwynneth? ) to design some court-specific gestures: I know that we already have a bow, but we probably need one for a person in the witness box giving evidence, one for a person in the witness box taking an oath (or similar), one for the foreman of the jury pronouncing the findings, and so forth.

The Judiciary Commission should have a coat of arms, which should be displayed behind the judge's seat when the court is sitting. There should be a heraldic motto, [i:20atsuvs]"We do not permit a man to rule, but the law"[/i:20atsuvs] (from Aristotle, Book V, The Nicomachean Ethics), and the predominent colour (which should also be reflected in the court architecture) should be a mid-green: a colour different to the Cofederation's own colours to symbolise judicial independence.

When sitting, judges of both the Court of Common Jurisdiction and the Court of Scientific Council should wear robes (can any Neufreistadtian design some?). In the case of Judges of Common Jurisdiction, I propose that they wear ankle-length black robes with bell sleeves, trimmed with Judiciary Commission green, and the Chief Judge should additionally wear a sash of red. Judges of the Court of Scientific Council should wear full-length red robes with a train, trimmed with royal blue, and the Chief Judge of the Court of Scientific Council should wear additionally a royal blue sash. [i:20atsuvs]Edit[/i:20atsuvs]: In both cases, the Clerk of Court should wear a knee-length plain black gown with no sleeves.

[i:20atsuvs]Point for further discussion[/i:20atsuvs]: Should judges also wear wigs? Should Marshals of the Peace have uniforms or badges?

[Ashcroft Burnham]

I think that that will suffice for to-night; I hope to post more to-morrow. In the meantime, does anyone have any comments on what I have suggested so far?

[Ashcroft Burnham]

[b:1b9hkghh][u:1b9hkghh]Addendum[/b:1b9hkghh][/u:1b9hkghh]

Before I turn to the detailed and complex topic of procedure, a brief addendum to what I wrote above: as a safeguard of judicial independence, the Scientific Council should have the power to veto any proposal to reduce the Judiciary Commission's budget, or any legislative (or executive...) act that purports to have the effect of stating what, if any, salaries that judges in general or any particular judge should earn.

[Patroklus Murakami]

Thanks for all the thought and effort you've put in to this Ashcroft, and welcome to our community! It looks like you have a lot to offer and you've wasted no time in bringing something of benefit to us. I expected the development of our legal system to be a task that would take place over the next year and involve many hours of inworld meetings and lengthy forum debates; the thinking you have done on this should shorten the process so that we can make a lot more progress in a shorter time frame.

There's too much to comment on here in detail so I'll restrict myself to some general comments and try to frame the discussion as we go forward. Points are numbered for ease of reference later

[list:v3x977ue][b:v3x977ue]1. Size and scaleability.[/b:v3x977ue] I think you're right to think ahead to what the needs of the system will be when we reach a much bigger size; we need legal institutions which scale well. But we also need to keep in mind the need to start with manageable institutions. The founders of Neualtenburg (as was) made some errors here which we should learn from. For example, insisting that the RA have a minimum of 7 seats; having a lot of government posts so that a number of citizens sat on 2 (or all 3!) bodies but only had votes on one. I don't think we could muster too many judges and jurors with our current communty of thirty-odd. Could we start small with one Court (and Judge) of Common Jurisdiction and juries of three members?

[b:v3x977ue]2. Remit and focus.[/b:v3x977ue] What are the key legal challenges we need to be prepared for? I don't think our recent challenges are a reliable guide here . I hope we're unlikely to need to banish people for wanton vandalism ever again. What I think we're more likely to need is the kind of Commerical Courts that would resolve trader-trader and trader-consumer issues. It's one of Neufreistadt/CDS's unique selling points that we can offer this kind of guarantee. Commercial law is probably where our first efforts should be focussed.

[b:v3x977ue]3. Jurisdiction. [/b:v3x977ue]While I agree that our court system should cover citizens and non-citizens while on our territory I find it difficult to see how we could reasonably extend our reach to [i:v3x977ue]"the conduct of any resident of SecondLife that materially affects the affairs of the Confederation, or any citizen thereof"[/i:v3x977ue]. Well, let's just say I'm confused about it! I suppose we [i:v3x977ue]did[/i:v3x977ue] decide that our jurisdiction did cover non-citizens in the only hearing which the SC has held but that related to our forums (which can be considered to be an extension of our territory). It just makes me think of all those 'don't impose your government on me' posts when the issue of democracy or self-government comes up on the SL forums.

[b:v3x977ue]4. Evidence and Chat Logs.[/b:v3x977ue] I think this may be unworkable. While we could make it a condition of citizenship that you perpetually and irrevocably consent to the recording and use of chat logs I'm not sure that it would be desirable or that our current citizenry would accept it . We are a freedom-loving people and many would see this as an unacceptable imposition. I can see it being a major issue as we expand and a potential stick to beat us with. Even worse, ordering non-citizens to consent to the use of chat logs as evidence seems to violate the Linden Labs ToS. You're presenting it as 'play by our rules or face banishment' and you could argue that we are completely within our rights to demand that (after all the Gorean sims are able to enforce a certain dress code on their territory) but this is more of a direct challenge to the ToS and there are definitely presentational issues to consider. Is there any way we can develop a functioning legal system without this requirement?

[b:v3x977ue]5. Pomp and circumstance.[/b:v3x977ue] Hmmm. Robes, wigs, heraldry. Well, I guess it could be fun but all the mummery that surrounds the English court system is a turnoff for many. Isn't it something that we're trying to dispense with? Provided the procedures and law are sound I'd be happy to have the proceedings take place on a couple of plywood cubes in the Marketplatz, overseen by Judge XtRaa7333t Shyamalan in a giant mecha-droid AV! (But that's just me being perverse )
[/list:u:v3x977ue]
Great work Ashcroft, I hope others will chip in with their thoughts too.

[Ashcroft Burnham]

[size=150:25y82pgv][color=darkred:25y82pgv][b:25y82pgv][u:25y82pgv]Part IV[/u:25y82pgv][/b:25y82pgv][/color:25y82pgv][/size:25y82pgv]

[b:25y82pgv][u:25y82pgv]Procedure[/u:25y82pgv][/b:25y82pgv]

Any judicial system requires defined procedures in order to work effectively. Here is what I propose for our legal system.

[b:25y82pgv]Powers of procedure[/b:25y82pgv]

In order to enable the efficient administration of justice, following the old English model, Courts of Common Jurisdiction (and, indeed, the Court of Scientific Council) should have inherent jurisdiction to govern their own procedure. To balance that, however, with the due power of the elected legislature, that should be subject to any express enactment of the Representative Assembly.

The Judiciary Commission would then issue a [b:25y82pgv]Code of Procedure[/b:25y82pgv], by virtue of that power, governing the Courts of Common Jurisdiction, and the Scientific Council would issue its own Code of Procedure (which ought to be very similar to the Judiciary Commission's), the substance of which I propose to be the following.

[b:25y82pgv]Originating process - classification[/b:25y82pgv]

Originating process is the means by which a legal action of any type comes to start. As far as I can make out, Courts of Common Jurisdiction will need up to four different kinds of originating process:

1. the commencement of an ordinary action by one party against another;

2. the commencement of an action to appeal a decision by a forum moderator;

3. the commencement of an appeal from a local court to the Federal High Court (if and when local courts are established); and

4. the commencement of proceedings for an interim order of banishment (which would usually be tied to substantive proceedings, although it should be possible to commence proceedings for an interim order of banishment before substantive proceedings are brought).

The Court of Scientific Council, meanwhile, would need at least two sorts of originating process:

1. the commencement of impeachment proceedings; and

2. the commencement of an appeal from a Court of Common Jurisdiction on the ground that the latter had acted in excess of the powers granted to it by the constitution.

[i:25y82pgv]Point for further discussion[/i:25y82pgv]: What, if any, other forms of originating process are required for either court?

I propose the following nomenclature for the above forms of originating process:

1. [b:25y82pgv]Notice in the Ordinary[/b:25y82pgv] for the commencement of ordinary actions;

2. [b:25y82pgv]Notice of Moderatorial Appeal[/b:25y82pgv] for the commencement of appeals against moderatorial decisions in the forum;

3. [b:25y82pgv]Notice of Common Appeal[/b:25y82pgv] for the commencement of an appeal from a local court to the Federal High Court;

4. [b:25y82pgv]Notice of Interim Banishment[/b:25y82pgv] for commencement of proceedings to secure an order of interim banishment;

5. [b:25y82pgv]Notice of Impeachment[/b:25y82pgv] for the commencement of impeachment proceedings; and

6. [b:25y82pgv]Notice of Special Appeal[/b:25y82pgv] for the commencement of an appeal of a decision of a Court of Common Jurisdiction to the Court of Scientific Council.

[b:25y82pgv]Originating process - substance[/b:25y82pgv]

For the sake of expediency, I shall focus on the details of procedure for commencing an action by Notice in the Ordinary; the commencement of proceedings by way of a Notice of Interim Banishment is described briefly above, commencement of action by way of a Notice of Impeachment would be very similar, and appeals would also be fairly similar (although different in some respects, and slightly simpler overall).

A Notice in the Ordinary should, in broad terms, be required to state: (1) the (SecondLife) name(s) of the party or parties bringing the action (the "[b:25y82pgv]proecutor(s)[/b:25y82pgv]"); (2) the name(s) of the party or parties against whom the action is brought (the "[b:25y82pgv]defendants[/b:25y82pgv]"); (3) the status of each party (i.e., whether a citizen, a non-citizen, a registered company of unlimited liability, a registered company of unlimited liability, or the Confederation itself); (4) the factual propositions upon which the prosecutor seeks to rely in bringing the action; (5) in what way(s), if any, it is alleged that the defendant(s) has/have acted unlawfully (by Confederation law); (6) whether it is alleged whether the defendant(s, or any of them) has/have acted with culpability, and, if so, with what degree of culpability; (7) what orders of the court are sought; and (8) in which level of court the process should be originated (i.e., whether High Court or local court).

I will illustrate that with two wholly fictional examples, one of a case of simple misconduct ("griefing"), and one of a commercial dispute between a trader and a non-citizen resident.

[b:25y82pgv][u:25y82pgv]IN THE HIGH COURT OF COMMON JURISDICTION OF THE CONFEDERATION OF DEMOCRATIC SIMULATORS[/b:25y82pgv][/u:25y82pgv]

[b:25y82pgv]BETWEEN: -[/b:25y82pgv]

JOE SCHMOE
(prosecutor)

- and -

ASHCROFT BURNHAM
(defendant)

[b:25y82pgv][u:25y82pgv]NOTICE IN THE ORDINARY[/b:25y82pgv][/u:25y82pgv]

1. The prosecutor and defendant are both citizens of the Confederation of Democratic Simulators.

2. On the 2nd of August 2006 at or around 5.00 a.m. SLT, the prosecutor and defendant were engaged in conversation in or about the MarketPlatz in the City of Neufreistadt, when the prosecutor disagreed with the defendant about whether or not judges should wear wigs.

3. After several minutes of argument, the defendant became verbally abusive to the prosecutor, calling him a "rank idiot" and stating that his mother smelt of elderberries. The prosecutor then teleported to another location.

4. On the 3rd of August, at or around 11.00am, the prosecutor was again standing in the MarketPlatz admiring the model of Colonia Nova, when the defendant approached him, and again shouted verbal abuse at him, stating that he was "several sandwiches short of a picnic", and that he should "consider a brain transplant". The prosecutor asked him to desist, but he refused to do so.

5. By verbally abusing the prosecutor on the 2nd and 3rd of August as described above, the defendant acted unlawfully in that he harassed the prosecutor.

6. The defendant's unlawful actions were culpable in that he intended to harass the prosecutor.

7. The prosecutor seeks the following orders:

(a) an order of compensation for the distress of being subject to verbal abuse on two occasions, in a sum at the discretion of the court; and

(b) an order of penalty, greater than public admonishment, at the discretion of the court.

JOE SCHMOE

***

[b:25y82pgv][u:25y82pgv]IN THE HIGH COURT OF COMMON JURISDICTION OF THE CONFEDERATION OF DEMOCRATIC SIMULATORS[/b:25y82pgv][/u:25y82pgv]

[b:25y82pgv]BETWEEN: -[/b:25y82pgv]

ANNE SHOPPER
(prosecutor)

- and -

THINGS FOR SALE, N. REG.
(defendant)

[b:25y82pgv][u:25y82pgv]NOTICE IN THE ORDINARY[/b:25y82pgv][/u:25y82pgv]

1. The prosecutor is a non-citizen resident, and the defendant is a Confederation registered company of unlimited liability.

2. The defendant carries on a business at 1234 MarketPlatz, Neufreistadt, as a vendor of novelty items, including judicial wigs.

3. On the 3rd of August 2006, at or about 2.00p.m. SLT, the prosecutor entered the defendant's abovementioned business premises, and saw on the wall thereof an advertisement for novelty wigs.

4. On the advertisement was a picture of a judicial wig, and underneath it were the words, "Novelty wigs: impress your friends with our range of amusing headwear: look like a judge! Price: L$400. No mod/no copy/no transfer".

5. Having a fancy dress party to attend, the prosecutor purchased the item by paying the advertisement object L$400.

6. The object duly offered the prosecutor a judicial wig object, which the prosecutor duly accepted.

7. When the prosecutor went to try on the wig, however, she discovered that it was approximately four times the size of her head, and that it could not be modified to a more suitable size.

8. The prosecutor attempted to contact an officer of the defendant by IM on the 4th and at least twice on the 5th of August, and has had no reply.

9. In consequence of the abovementioed facts, the defendant has acted unlawfully in that:

(a) by offering to sell the object as "headwear", and by stating that a purchasor could "look like a judge", it made an implied representation that the object was suitable to be worn on the head;

(b) by supplying an object that was too large to be worn on the head, it supplied an object other than that which was described; and therefore

(c) it acted in breach of its contract of sale with the prosecutor.

9. The prosecutor seeks an order that the defendant refund the L$400 that she paid for a wholly unusable item, or alternatively supply her, before 10.00p.m. SLT on the 10th of August 2006 (the date of the fancy dress party) a wig of the correct size.

ANNE SHOPPER

***

[b:25y82pgv][i:25y82pgv]See Part V and beyond for the rest of this brief outline of procedure, and for some notes on substantive law.[/b:25y82pgv][/i:25y82pgv]

[Patroklus Murakami]

Since this discussion may be of interest to people outside of Neufreistadt/CDS, I've posted a link on the Law Society of Second Life Forum [url=http://forums.secondlife.com/showthread ... 1:3ediu0re]here[/url:3ediu0re]. Hopefully this might widen the discussion (and publicity's never a bad idea, eh?)

[Ashcroft Burnham]

[quote="Patroklus Murakami":1swxsp1k]Thanks for all the thought and effort you've put in to this Ashcroft, and welcome to our community! It looks like you have a lot to offer and you've wasted no time in bringing something of benefit to us. I expected the development of our legal system to be a task that would take place over the next year and involve many hours of inworld meetings and lengthy forum debates; the thinking you have done on this should shorten the process so that we can make a lot more progress in a shorter time frame.[/quote:1swxsp1k]

I am very pleased to be of assistance I am very much enjoying the process of designing a legal system, and I am very glad that it is appreciated.

[quote:1swxsp1k]There's too much to comment on here in detail so I'll restrict myself to some general comments and try to frame the discussion as we go forward. Points are numbered for ease of reference later

[b:1swxsp1k]1. Size and scaleability.[/b:1swxsp1k] I think you're right to think ahead to what the needs of the system will be when we reach a much bigger size; we need legal institutions which scale well. But we also need to keep in mind the need to start with manageable institutions. The founders of Neualtenburg (as was) made some errors here which we should learn from. For example, insisting that the RA have a minimum of 7 seats; having a lot of government posts so that a number of citizens sat on 2 (or all 3!) bodies but only had votes on one. I don't think we could muster too many judges and jurors with our current communty of thirty-odd. Could we start small with one Court (and Judge) of Common Jurisdiction and juries of three members?[/quote:1swxsp1k]

I agree with most of this: my plan, as I think I stated above, was to start with a Judiciary Commission essentially consisting of two people: the Chief Judge of Common Jurisdiction and the Chief Clerk to the Judiciary, and a single Court of Common Jurisdiction, that being the Federal High Court. I am not sure about the jury numbers, but you might be right that it may have to be as little as three in the early days (although numbers aren't my strong point, so any other input on this would be appreciated). But three is the absolute minimum that a jury could possibly be to function at all. Four would probably be better.

Incidentally, you make reference to there being "one court" to start with: my proposal would be to start with just one Court of Common Jurisdiction, but the Court of Scientific Council is, of course, a second level of court. Nonetheless, that is not something that should be added later: its constitutional significance means that it must be present from the outset.

That is not, however, a problem for resources, since, unlike the Courts of Common Jurisdiction that I envisage having a professional judiciary, the Court of Scientific Council should be made up of any three or greater (odd) number of members of the Scientific Council, not being Judges of Common Jurisdiction. Furthermore, it is expected that the Court of Scientific Council would sit extremely infrequently given its narrow jurisdiction.

[quote:1swxsp1k][b:1swxsp1k]2. Remit and focus.[/b:1swxsp1k] What are the key legal challenges we need to be prepared for? I don't think our recent challenges are a reliable guide here . I hope we're unlikely to need to banish people for wanton vandalism ever again. What I think we're more likely to need is the kind of Commerical Courts that would resolve trader-trader and trader-consumer issues. It's one of Neufreistadt/CDS's unique selling points that we can offer this kind of guarantee. Commercial law is probably where our first efforts should be focussed.[/quote:1swxsp1k]

I certainly agree that establishing a good, solid foundation of commercial law is a particularly important function of our fledgling judicial system. However, as I hope will become clear when I address substantive law below, this need not be at the expense of developing a comprehensive law that is also capable of dealing with other things, from "griefing" to "terrorism".

[quote:1swxsp1k][b:1swxsp1k]3. Jurisdiction. [/b:1swxsp1k]While I agree that our court system should cover citizens and non-citizens while on our territory I find it difficult to see how we could reasonably extend our reach to [i:1swxsp1k]"the conduct of any resident of SecondLife that materially affects the affairs of the Confederation, or any citizen thereof"[/i:1swxsp1k]. Well, let's just say I'm confused about it! I suppose we [i:1swxsp1k]did[/i:1swxsp1k] decide that our jurisdiction did cover non-citizens in the only hearing which the SC has held but that related to our forums (which can be considered to be an extension of our territory). It just makes me think of all those 'don't impose your government on me' posts when the issue of democracy or self-government comes up on the SL forums.[/quote:1swxsp1k]

The reason for the extra-terratorial jurisdiction that I propose is to solve a simple practical problem, which is this: suppose that a Confederation citizen were to be the victim of harassment by a person or persons, not being a citizen or citizens of the Confederation, on the mainland. It would be highly desirable for such a person to be prohibited from entering our jurisdiction at all, but the law ought to be such that no person (whether a citizen or not) can be banished without the right to a trial. Similarly where a non-citizen trader has, for example, defrauded a citizen or company.

It would make the legal system quite ineffective if it could not act until the person or persons in question set foot on Confederation land: the court should have the power to banish people for misconduct towards citizens whereever it takes place, to protect citizens from such people as effectively as possible.

Furthermore, if the legal system only had jurisdiction over intra-terratorial conduct, absurd situations could arise where, for example, contracts were negotiated between people by IMs, where it would not be possible to show where one of the parties was located. It would interfere with the administration of justice if an otherwise good action could be defeated on the basis that some or all of the conduct complained of might have taken place outside the terratorial boundaries of the Confederation.

As I stated in my original writing on jurisdiction, the practical power of the court would be limited by its enforcement mechanisms: i.e., the power to banish. A person who has little interest in visiting a Confederation holding would not consider that to be much of a threat, so the de facto power that any Confederation court could exercise over such a person would be low (it would still, of course, be worthwhile to exercise it, to keep the Confederation lands free of troublemakers).

It would therefore be a mistake to think of the proposed extra-terratorial jurisdiction as anything akin to the largely discredited idea of SL-wide government: after all, any sim owner can banish any SL resident from her or his sim(s) for any reason or no reason at all, whether or not that person has ever visited such a sim, a far [i:1swxsp1k]broader[/i:1swxsp1k] power than that of a court which may only do so after a trial by jury in accordance with law. Just like the UK Parliament has, in theory, extra-terratorial jurisdiction, such that it could, if it wanted to, ban smoking in China, its real powers are limited to what can be enforced by its courts, which is largely confined to its terratory.

For those reasons, therefore, I stand by my original proposal to give the Confederation legal system extra-terratorial jurisdiction.

[quote:1swxsp1k][b:1swxsp1k]4. Evidence and Chat Logs.[/b:1swxsp1k] I think this may be unworkable. While we could make it a condition of citizenship that you perpetually and irrevocably consent to the recording and use of chat logs I'm not sure that it would be desirable or that our current citizenry would accept it . We are a freedom-loving people and many would see this as an unacceptable imposition. I can see it being a major issue as we expand and a potential stick to beat us with. Even worse, ordering non-citizens to consent to the use of chat logs as evidence seems to violate the Linden Labs ToS. You're presenting it as 'play by our rules or face banishment' and you could argue that we are completely within our rights to demand that (after all the Gorean sims are able to enforce a certain dress code on their territory) but this is more of a direct challenge to the ToS and there are definitely presentational issues to consider. Is there any way we can develop a functioning legal system without this requirement?[/quote:1swxsp1k]

To answer the last question: no. A court cannot operate effectively if it cannot be presented with evidence of what was said between people unless both people consent: people would never consent to the logs being divulged where it might be against her or his interests to do so, thus frustrating the administration of justice.

I do not agree that it would be a "challenge" to the SecondLife Terms of Service requiring consent to disclose chat logs to make participation in our community conditional on giving that consent under certain circumstances. As stated above, any owner of any sim may banish any resident of SecondLife from that sim for any reason or no reason at all, which must, it follows, include failing to give that consent. No violation of the Terms of Service occurs unless the logs are disclosed without consent: giving people incentives to concent that do not amount to threats to do wrong to that person cannot alter that basic principle.

To give a real life analogy, in the UK, as in many countries, it is a criminal offence to drive a motor vehicle after having consumed so much alcohol that the proportion of it in one's breath, blood or urine exceeds a prescribed limit. A police officer acting in the course of an investigation into that offence, has the power to require any person to provide a sample of breath into a roadside breath screening device. A person cannot be physically forced to do so if he or she refuses, but failing to provide such a sample is an arrestable offence. The roadside machine is not accurate enough to provide evidnece in court, but once a person is arrested (either after a positive breath test, or after failing to provide a sample), a person can then be required to provide a fruther sample on a much larger, and much more accurate, breath testing device in the police station (or, if the machine is broken, or he or she cannot provide such a sample, a sample of blood or urine, at the officer's discretion, instead). Again, a person cannot be physically forced to give any of those samples, and, if a blood sample is taken, must expressly consent to it being analysed, but failure or refusal to do so is a separate criminal offence, the penalties for which are exactly the same as the offence of driving with excess alcohol in the first place.

It is a workable and highly effective system that balances on the one hand the rights of the suspect not to be manhandled, and on the other the need to enforce the law. My proposal on ordering consent to disclose chat logs is similar in principle to the requirement that consent be given for the sample of blood to be analysed: in accordane with the Linden Labs Terms of Service, a person has the right not to consent, but, by those same Terms, we have the right not to let a person who does not continue to participate in our community.

If there is particular concern about the idea, for example, of requiring all citizens to consent to the disclosure of all past and future chat logs for the purposes of judicial proceedings, then applying the same regieme to citizens as I had proposed to non-citizens might be an alternative, whereby a court could make an order for disclosure, and a person against whom it is proposed to be made could have an opportunity to show cause as to why such an order should not be made.

[quote:1swxsp1k][b:1swxsp1k]5. Pomp and circumstance.[/b:1swxsp1k] Hmmm. Robes, wigs, heraldry. Well, I guess it could be fun but all the mummery that surrounds the English court system is a turnoff for many. Isn't it something that we're trying to dispense with? Provided the procedures and law are sound I'd be happy to have the proceedings take place on a couple of plywood cubes in the Marketplatz, overseen by Judge XtRaa7333t Shyamalan in a giant mecha-droid AV! (But that's just me being perverse )[/quote:1swxsp1k]

I don't think that I'm ever going to agree with you on this one I like wearing my wig and gown in real courts, so why should we not have the same here?

You write that the robes of the English legal system are a "turn-off for many", yet as recently as 2003, plans to abolish wigs and gowns in the courts of England and Wales were dropped as being unpopular and unworkable after a thorough consultation by the government.

As far as our community goes, we have a coat of arms, a flag, a procession and a swearing-in procedure to start the term of the Representative Assembly: we even have ceremonial swords, lamps, and flaming staffs of office! Judicial robes and heraldry would not be inconsistent with that.

Also, a formal process, where status is denoted by dress, especially in a fledgling community like ours where the institutions are not respected because of their history, is potentially important for investing in the citizenry and those others who come to have contact with them a sense of respect for those institutions - a sense that they are more than just a group of people having a sit-down and trying to muddle through the problems to get to some sort of workable answer, but a carefully-considered and crafted and highly refined system based on rules and details whose purpose and function is the public administration of justice.

It is no surprise, therefore, that the most respected legal system in the world - the English legal system - is the one with the most pagentry.

[quote:1swxsp1k]Great work Ashcroft, I hope others will chip in with their thoughts too.[/quote:1swxsp1k]

Thank you very much again for your contribution: it is much appreciated. I, too, look forward to others' ideas

[i:1swxsp1k]Edit[/i:1swxsp1k]: thank you for linking this thread to the Law Society of Second Life's forum: the more discussion, the better

[Ashcroft Burnham]

[size=150:2cpec2qb][color=darkred:2cpec2qb][b:2cpec2qb][u:2cpec2qb]Part V[/u:2cpec2qb][/b:2cpec2qb][/color:2cpec2qb][/size:2cpec2qb]

[b:2cpec2qb][u:2cpec2qb]Procedure - continued[/u:2cpec2qb][/b:2cpec2qb]

[b:2cpec2qb]Service of and response to originating process[/b:2cpec2qb]

Once the [b:2cpec2qb]Originating Notice[/b:2cpec2qb] (the generic term for one of the six kinds of notices described above to initiate proceedings) has been compiled, it should be [b:2cpec2qb]filed[/b:2cpec2qb] with the [b:2cpec2qb]Office of Judicial Clerks[/b:2cpec2qb] (in practice, by sending it to, at first, the Chief Clerk to the Judiciary, or, as the system develops, some other person nominated by her or him), where it will then be [b:2cpec2qb]sealed[/b:2cpec2qb] (i.e., have an official stamp with the court's insignia placed upon it: a texture, in SL terms), and additioanlly have the date of seal placed upon it, and then [b:2cpec2qb]served[/b:2cpec2qb] on the defendant.

[i:2cpec2qb]Points for further discussion[/i:2cpec2qb]: Technically, how exactly should the process of filing, sealing, and serving work (notecards, IMs, forum posts, a combination of the three)? Should service be effected by the Office of Judicial Clerks, or by the prosecutor, or by either, depending on the circumstances? How should filing work in the Court of Scientific Council?

Once the Originating Notice is served upon the defendant, the defendant should have a fixed amount of time in which to respond to it by either: (1) filing a [b:2cpec2qb]Notice of Response[/b:2cpec2qb], or (2) filing an application to extend time for the service of the notice of response. A party seeking to extend the time should be required to show cause as to why this should be done.

Failure to respond within that time should mean that the defendant is taken to accept all of the propositions of fact set out in the Originating Notice, and will leave what consequences should flow from that at the court's discretion, and waives her or his right to address the court in her or his defence. Only in the most exceptional circumstances should a defendant be entitled to enter a response late where an extension of time has not been granted.

[i:2cpec2qb]Point for further discussion[/i:2cpec2qb]: What should the time limit be? Should it be the same in every case, or should it vary?

A Notice of Response should have the same heading as the Originating Notice, plus (1) in respect of each proposition of fact upon which the prosecutor seeks to rely, whether that proposition is (a) admitted; (b) denied, or (c) one in respect of which the defendant can neither admit or deny because he or she has no knowledge of the matter set out therein (and a failure to address any particular proposition will be taken as an admission of that proposition); (2) if any assertion of fact is denied, what the defendant asserts the true position to be; (3) any additional proposition of fact upon which the defendant seeks to rely; (4) whether the defendant admits or denies acting with culpability (a) at all, or (b) to the particular degree alleged in the originating notice; (5) whether the defendant admits or denies acting unlawfully; and (6) what, if any, orders that he or she wishes the court to make, or a statement that he or she wishes the court to make no orders.

Examples again follow:

[b:2cpec2qb][u:2cpec2qb]IN THE HIGH COURT OF COMMON JURISDICTION OF THE CONFEDERATION OF DEMOCRATIC SIMULATORS[/b:2cpec2qb][/u:2cpec2qb]

[b:2cpec2qb]BETWEEN: -[/b:2cpec2qb]

JOE SCHMOE
(prosecutor)

- and -

ASHCROFT BURNHAM
(defendant)

[u:2cpec2qb][b:2cpec2qb]NOTICE OF RESPONSE[/b:2cpec2qb][/u:2cpec2qb]

1. Paragraphs 1 and 2 of the prosecutor's Notice in the Ordinary are admitted.

2. Save that it is admitted that there were several minutes of argument after which the prosecutor teleported to another location, paragraph 3 of the Notice in the Ordinary is denied.

3. In fact, the conversation was perfectly congenial until the defendant raised a point in argument to which the prosecutor had no answer, at which point the prosecutor immediately teleported away. At no time did the defendant call the prosecutor a "rank idiot", or accuse his mother of smelling of elderberries (or anything else), or make any abusive remarks to the prosecutor at all.

4. It is admitted that the prosecutor and defendant encountered each other in the place and time set out in paragraph 4 of the Notice in the Ordinary, but it is denied that any conversation took place, other than the defendant asking the prosecutor on two occasions why he had teleported away the previous day, to which no reply was made on either occasion. The defendant then walked away.

5. In the premises, it is denied that the defendant harassed the prosecutor as alleged or at all.

6. Furhter or alternatively, the conduct described in the Notice in the Ordinary is not sufficient in law to amount to harassment.

7. In the premises, the defendant would respectfully ask the Court to make no orders.

ASHCROFT BURNHAM

***

[b:2cpec2qb][u:2cpec2qb]IN THE HIGH COURT OF COMMON JURISDICTION OF THE CONFEDERATION OF DEMOCRATIC SIMULATORS[/b:2cpec2qb][/u:2cpec2qb]

[b:2cpec2qb]BETWEEN: -[/b:2cpec2qb]

ANNE SHOPPER
(prosecutor)

- and -

THINGS FOR SALE, N. REG.
(defendant)

[b:2cpec2qb][u:2cpec2qb]NOTICE OF RESPONSE[/b:2cpec2qb][/u:2cpec2qb]

1. Paragraphs 1-8 of the Notice in the Ordinary are admitted. In fact, an officer of the defendant had mistakenly increased the size of the wigs shortly before putting them on sale, and no officer of the defendant company had signed into SecondLife since the 2nd of August in consequence of first-life commitments.

2. The defendant has now produced a wig of the correct size, and would therefore ask that the court make the second order to which reference is made in paragraph 9 of the Notice in the Ordinary, i.e. an order that the defendant supply a wig of the correct size to the prosecutor.

3. The defendant respectfully asks the Court to make that order conditional upon the prosecutor first deleting the original oversized copy of the wig, since the prosecutor is entitled only to one wig (of correct size) under the contract of sale, and not two wigs, one of the correct size and one oversized.

JOHN CORPORATE acting on behalf of
THINGS FOR SALE N. REG

***

The Notice of Response should then be filed, sealed, dated and served in the same way as the Originating Notice.

[b:2cpec2qb]Resolving disputes - trials and other disposals[/b:2cpec2qb]

It is quite clear from the above examples that, in the first, there is a substantial dispute of fact, whereas, in the second, there is little, if anything, in dispute.

It would quite obviously be a pointless and wasteful exercise to convene a whole court, replete with jury and clerk, if there really was not anything to disagree about.

In cicrumstances such as those in the Things for Sale disptue above, therefore, I propose that Courts of Common Jurisdiction be empowered to make [b:2cpec2qb]Orders by Consent[/b:2cpec2qb] where the nature of the orders to be made is not substantially in dispute between the parties.

The way that that would work is this: once an Originating Notice and a Notice of Response are both before the court (or the time for filing a Notice of Response has elapsed, and no notice has been served and no extension of time has been granted), both Originating Notice and Notice of Response should be placed before a judge. If the judge is of the view that there is little of substance in dispute between the parties, he or she should be able to issue in writing a [b:2cpec2qb]Notice of Draft Order by Consent[/b:2cpec2qb], which contains a draft of an order in terms that, in the opinion of the judge, are likely to be agreeable to both parties.

The parties would then have a fixed amount of time within which to express any objections to the Draft Order; if neither party files a [b:2cpec2qb]Notice of Objection[/b:2cpec2qb] within that time, then the Draft Order should become a Final Order, and have exactly the same force as an order of the court made after a trial. If a party does serve a [b:2cpec2qb]Notice of Objection[/b:2cpec2qb], that party must set out alternative terms for the order(s) that he or she seeks. The matter would then proceed to a hearing to determine what, if any, order should be imposed.

Parties would, of course, be free to reach agreement at any time, and jointly submit a [b:2cpec2qb]Notice of Disposal by Consent[/b:2cpec2qb] with terms agreed between the parties could be ordered by a judge on the papers without a hearing.

Turning to cases, such as the first, where there is a substantial dispute between the parties, the matter should be set down for trial on a date to be appointed (the parties should liaise with the Office of Judicial Clerks so that a mutually convenient date can be arranged - only in cases of intractable disagreement should a dispute about dates go before a judge; the responsibility for setting a date should normally rest with the Office of Judicial Clerks).

Where the trial is by judge and jury, the jury should decide the disputed questions of fact (in the Joe Schmoe example, for instance, what was said in the MarketPlatz on the 2nd and 3rd of August, and what, if any, culpability that there was) by indicating, in the case of each disputed proposition of fact in the Notice in the Ordinary and the Notice of Response, which proposition of fact that they adjudge to be made out, the burden of proof in each case resting on the prosecutor. The judge should then decide issues of law (in this example, the question of whether the conduct alleged can amount to harassment), and then decide what, if any, orders to make consistent with the jury's findings. It thus follows that juries should only be empanelled where there is a dispute of fact between the parties.

[i:2cpec2qb]Points for further discussion[/i:2cpec2qb]: (1) What cases require trial by jury: (a) all cases with disputes of fact; (b) all cases with disputes of fact where additionally culpability is alleged; (c) all cases with disputes of fact where culpability is alleged, except cases where the court has issued a certificate that, whatever the outcome of the case, the defendant will not face a penal order of banishment; or (d) all cases that involve a dispute of fact (or a dispute of fact including an allegation of culpability) in which the defendant does not consent to be tried without a jury? (2) Should juries be required to give reasons for their individual findings of fact? (3) What should the standard of proof be: (a) that the proposition is more probable than not to be true; (b) that the proposition is [i:2cpec2qb]considerably[/i:2cpec2qb] more probable than not to be true; or (c) that there is no reasonable doubt that the proposition is true?

In court, the conduct of a trial with a jury should largely follow the model adopted by the English criminal courts: the prosecutor should address the court in opening, outlining the case against the defendant; the defendant should then address the court in opening, outlining her or his case (this is at varience with English practice, where the defence opening speech, if any, is at the close of the prosecution case: I suggest this practice to make it clearer to all what exactly is in dispute; opening speeches may be dispensed with entirely in simple cases not involving juries); the prosecutor should then present her or his evidence (any witnesses being called being liable to be cross-examined by the defendant), the defendant would then call any evidence that he or she wished to call (and any witnesses being subject to cross-examination by the prosecutor), then fisrt the prosecutor, then the defendant would be entitled to address the court in closing. The judge would then sum up the case to the jury, and give them directions about how they are to decide the matter, and the jury would then retire to discuss the matter in private. Once they have agreed on all of their verdicts on the factual questions, they would indicate that they have reached their decisions to the Clerk of Court (who would be responsible for supervising the jury when in retirement), and then annoucne their verdicts in open court. The parties would then have a further chance to address the judge (but not call evidence) on the legal consequences of those factual decisions before the judge pronounces the final findings of the court, and makes any orders.

Note that the part about juries answering specific factual questions and leaving the legal consequences to the judge is also at varience with English criminal practice, but is the method adopted in civil cases in England involving juries (since 1954, most civil cases in England are decided by a judge without a jury, but some cases, such as libel cases or civil actions against the police, are still decided by a judge and jury). It is better than the criminal practice of asking juries simply to return a verdict of "guilty" or "not guilty" becuase it leaves less room for non-legally trained jurors to make errors (everyone can see the factual basis of decisions), and leaves questions of law to the judge, rather than requiring the judge to give the jury often complex directions of law, and hoping that they get it right.

[i:2cpec2qb]Point for further discussion[/i:2cpec2qb]: How, practically, can jury discussions take place in private? Group IM, perhaps, with the clerk of court as the officer of the group, and the jurors as members?

When giving judgment, the judge should start by outlining the factual background to the case, the disputes (if any) of fact, and how they were resolved, the disputes of law, and the judge's reasoning for resolving them in the way that he or she did, and then the orders (including penal orders) that the judge makes in consequence of the findings.

The judgment and orders of the court should then be entered into an official register (a web page, probably) by the clerk of court, and, if the order is one of banishment or forfeiture, should be immediately carried out by an officer of the court with the power to banish or forfeit, to prevent a person who is about to be banished, knowing the he or she has nothing to lose, from causing serious trouble between the time of the pronouncement of the court's order and the taking effect of the banishment, and to stop a person whose assets are about to be forfeit from first dissapating those assets outside the jurisdiction to frustrate such efforts. The orders of the court should take effect from the moment that they are pronounced in court, unless the order specifies otherwise.

All judgments of the court should be made publicly available (perhaps on a website) for future reference. This should be the responsibility of the Office of Judicial Clerks (which, in the early stages, no doubt, would comprise only the Chief Clerk to the Judiciary, who would serve all clerical functions of the Judiciary Commission, including that of clerk of court).

[b:2cpec2qb]Costs[/b:2cpec2qb]

Running the Judiciary Commission will take money: the court building will take land space, and will need to be designed, as will judicial robes, the heraldry, and so forth; and, more importantly, the judges and clerical staff (although they are likely to be only two in number at the inception of this sytem) will have to be paid. That money has to come from somewhere; I propose that the Judiciary Commision be partly funded by charging court costs to an unsucessful party at the end of any contested hearing. I do not propose that any costs be payable at an early stage, as they often are in civil legal systems, because that will deter people who do not have much money from bringing actions. The costs should all be in L$, and setting the scales of costs (more complicated cases should cost more than simpler cases) should be the responsibility of the Chief Clerk to the Judiciary.

[b:2cpec2qb]Conclusion on procedure[/b:2cpec2qb]

Procedure is a huge subject, and, in an outline proposal, I can only briefly scratch the surface. There are many more aspects that would be included in a Code of Procedure, such as the procedure for cases involving multiple prosecutors or defendants, the procedure for commencing an action by means other than Notice in the Ordinary, the procedure for where a defendant wants to make a claim against a prosecutor, or wishes to join another defendant to the proceedings (alledging, for example, that the loss complained of is partly someone else's fault), the procedure for obtaining orders of disclosure and other intolucutory disputed matters, as well as forms of address in court, the form of oath/undertaking taken by witnesses in court, the court's powers to strike out defective prosecutions, and a multitude of other things that are too detailed for an outline proposal such as this. However, if anybody has any burning questions to ask about those elements of procedure, I can try to address the point.

[b:2cpec2qb][i:2cpec2qb]See Parts VI and later for discussion of the structure of the substantive law, and how the constitution would need to be amended to provide for the system that I propose[/b:2cpec2qb][/i:2cpec2qb]

[Ashcroft Burnham]

[b:tfoz6lba][u:tfoz6lba]Addendum to procedure: alterntaive dispute resolution[/u:tfoz6lba][/b:tfoz6lba]

I notice that the Constitution provides for alternative dispute resolution: i.e., the resolution of a dispute upon which legal proceedings could be founded by a means other than legal proceedings.

In mature jurisdictions, where there is a great workload placed on the courts, this is a good idea, as it greatly increases the efficiency with which the courts operate by helping to ensure that only the most intractable disputes are resolved by a trial.

In our fledgling jurisdiction, however, it is best not to discourage too strongly people from using our courts, since a legal system develops mainly through use. What I suggest is that, whilst parties to disputes of course should always remain free to settle their disputes amicably between themselves (and there is provision in the above procedure for just that), there should be no active encouragement of alternative dispute resolution unless and until the demand for judicial dispute resolution excesds the supply.

[Ashcroft Burnham]

[b:3bnue7go][u:3bnue7go]Addendum on heraldry[/b:3bnue7go][/u:3bnue7go]

It so happens that my father knows quite a bit about heraldry; he could probably design a coat of arms (on paper: he doesn't really have the expertise to draw on the computer; it could then be scanned) for the Judiciary Commission.

[Ashcroft Burnham]

[size=150:1lomc3ea][color=darkred:1lomc3ea][b:1lomc3ea][u:1lomc3ea]Part VI[/u:1lomc3ea][/b:1lomc3ea][/color:1lomc3ea][/size:1lomc3ea]

[b:1lomc3ea][u:1lomc3ea]A note on substantive law[/u:1lomc3ea][/b:1lomc3ea]

Substantive law is patently a vast topic, and I can in an introductory thread do no more than make a few superficial observations within the limits of sanity. Nonetheless, it is worth making them.

[b:1lomc3ea]Common law or civil law?[/b:1lomc3ea]

I explained in [b:1lomc3ea]Part I[/b:1lomc3ea] above the difference between common law and civil law. I propose that the Confederation adopt a common law structure. The principal reason for that is a question of resources: a civil law system requires a huge investment in time in advance to draft lengthy codes of law from the outset, which have to be as complete as ever they will be. In a common law system, the law can develop over time, on a case-by-case basis, and the law is formed largely by precedent set in court decisions. The legislature can, of course, over-ride the common law by passing legislation (which only has prospective effect: i.e., affects legal rights only after the date on which it comes into effect). The other advantage of a common law system is that refinement of many cases can make the rules more precise, and a system where courts are bound to follow precedent increases predictability, and, as noted above, predictability is of great importance in commercial law in particular.

In such a system, of course, maintaining a comprehensive library of previous decisions of the court is important, which is why the Office of Judicial Clerks should be responsible for publishing every court's decision. There should also be a standardised way of citing each case, to serve the same function as the "N" numbers for our legislative acts.

Of course, as in many common law jurisdictions (such as New Zealand), the legislature can always create a system that has some superficial resemblence to a civil law system by creating codes for particular areas of law (such as a "commercial code"). Against a background of a common law system, however, gaps would still be filled in by judicial precdent, and the interpretation of the code would also be fixed by precedent and thus more predictable.

[b:1lomc3ea]Important areas of substantive law[/b:1lomc3ea]

As far as I can see, the most important areas of substantive law to develop initially are commercial law (that is, principally the law of contract, although the law of companies, banking, restitution and property are also relevant), and the law of wrongs (the equivalent of crimes and/or torts in legal systems with a split civil and criminal administration), as well as, perhaps, non-commercial aspects of the law of property (the concepts of intellectual and actual property merge somewhat in the virtual world).

[i:1lomc3ea]Point for further discussion[/i:1lomc3ea]: Should the legislature pass certain acts forthwith to establish certain foundational principles of the laws of contract and wrongs, or should it be left in its entirety to be developed by the common law (as it was in England many centuries ago), with the legislature intervening only when problems arise?

On the subject of company law, I am slightly concerned about one or two elements of the [b:1lomc3ea]Registration and Incorporation[/b:1lomc3ea] Act, such as the fact that it doesn't appear to require companies to trade only in Linden Dollars (it is highly doubtful that a company registered in our in-world state, but not in the real world, could claim limited liability in the real world if it traded in real-world currency); it is also slightly unclear on the exact nature of the relationship between the avatars who run the company and the company itself (in the English jurisdiction, there is the concept of [i:1lomc3ea]directors[/i:1lomc3ea] and [i:1lomc3ea]officers[/i:1lomc3ea] of a company, through whom the powers of a company are exercised), and it is not clear quite how the limitation of liability works (again, in English law, it works by directors and other investors holding shares, which they purchase from the company, and not personally being liable to lose anything more than the value of the shares in the sense that, if the company goes into liquidation, the shares that they have purchased will become worthless), and one should, perhaps, as in real life, require companies of limited liability to publish their accounts (are there any accountants or auditors in SecondLife?), but perhaps that is a discussion that can be separated from the discussion of the legal system, per se.

[i:1lomc3ea]Point for further discussion[/i:1lomc3ea]: What, if any, other areas of substantive law are of particular concern at the early stages?

[b:1lomc3ea]Penalties[/b:1lomc3ea]

I discuss penalties above under "enforcement", but it might be helpful to set out here a slightly more detailed outline of the penalties that I propose be used by the Courts of Common Jurisdiction.

[b:1lomc3ea]1. Banishment[/b:1lomc3ea]: as discussed above under "enforcement". Can be permanent or for a term certain. If it is for a term certain, the term would be deemed to start at the beginning of any interim/temporary banishment imposed.

[b:1lomc3ea]2. Forfeiture[/b:1lomc3ea]: as discussed above under "enforcement". Is automatic with permanent banishment. Courts of Common Jurisdiction would have the power to grant a [b:1lomc3ea]Freezing Order[/b:1lomc3ea], preventing the defendant from dealing with the assets in question until trial, to prevent the defendant from dissipating the assets outside the jurisdiction to frustrate the administration of justice. A prosecutor would have to make a special written application for a Freezing Order, and show cause why it should be made.

[b:1lomc3ea]3. Fines[/b:1lomc3ea]: the simplest of penalties. Enforcable by forfeiture or banishment in default. Must always be in L$.

[b:1lomc3ea]4. Public Admonishment[/b:1lomc3ea]: the least severe of all penalties. The judge issues a formal admonishment of the defendant, which is announced at court, and published on the Judiciary Commission's web page for all to see in perpetuity.

Penalties might also be [b:1lomc3ea]suspended[/b:1lomc3ea] on condition of good behaviour or good works. For example, a court might impose a fine of L$2,000, suspended for one month on condition of good behaviour. If the defendant does not commit any further culpable unlawful acts within that month, the fine would be commuted to a public admonishment (a court would not be permitted to impose any penalty less severe than a public admonishment, or impose no penalty at all, where it has found that a defendant has acted culpably). Similarly, a penalty may be suspended on condition of good works, so, for example, a banishment for a term certain of two months may be suspended for six months on condition of good behaviour and that the defendant undertake without charge public works for the Confederation (at the discretion of the Guild). If the defendant duly undertakes those good works and remains of good behaviour during that time, then the banishment would be commuted to, for example, a fine (the alternative penalty would have to be specified when the suspended penalty was imposed), but, if the defendant had any further findings of culpable and unlawful acts before the period of suspension ended, or failed to complete the good works to the reasonable satisfaction of the guild, the banishment would come into effect.

The above discussion, of course, is discussion of the penal powers of the Courts of Common Jurisdiction. The Court of Scientific Council would not have the power to impose a penalty [i:1lomc3ea]per se[/i:1lomc3ea], but it would, on an impeachment hearing, have the power to remove and disqualify from public office any person against whom successful impeachment proceedings are brought, and would also be able to exercise its limited ("Special") appellate jurisdiction over the Courts of Common Jurisdiction, including, in theory at least, over penal powers.

[b:1lomc3ea]Conclusion on substantive law[/b:1lomc3ea]

An introductory thread of this nature cannot hope to do anything but give the most approximate outlines of a few areas of substantive law, but I hope that what I have written here will give an idea of the sort of direction that I propose.

[b:1lomc3ea][u:1lomc3ea]The mechanics of change: amending the constitution[/b:1lomc3ea][/u:1lomc3ea]

Although I earlier indicated that I should discuss in this thread the mechanics of how the constitution ought to be amended if this proposal were to be implimented, I have realised that it is probably better not to do so until some discussion has taken place, and a braod consensus reached on exactly what parts of my proposal to adopt and/or modify, so that effort is not wasted thinking of how to do things that do not eventually get done.

[b:1lomc3ea][u:1lomc3ea]Overall conclusion[/b:1lomc3ea][/u:1lomc3ea]

I hope that I have, in this series of posts, outlined and detailed in as much as is necessary at this stage and practical on this thread a good sketch of a solid foundation of what will hopefully be a strong and lasting legal system for the Confederation of Democratic Simulators.

It is a project that I have very much enjoyed, and one of which I hope to be a part for some time to come. I hope, too, that what I have written herein will be of use to a fledgling but emerging and increasingly successful community of people sharing a common interest in real government in a virtual world. With the hope, therefore, that my proposals will be refined by their discussion amongst the esteemed members of this community, I commend them to you all in the hope that they will, with alterations as need be, be accepted, and I also offer my services as the first Chair of the Judiciary Commission and Chief Judge of the Courts of Common Jurisdiction.

[Ashcroft Burnham]

[b:1jiosszc][u:1jiosszc]Addendum: overlap between impeachment and common misconduct[/b:1jiosszc][/u:1jiosszc]

A potential issue (and solution thereto) has just occured to me whilst musing over the Ulrika incident: which cour should have jurisdiction when a person in high office is alleged to have committed acts of misconduct serious enough to warrant banishing?

Evidently, a person who is banished cannot continue to hold office, but that possibility would then enable the Courts of Common Jurisdiction effectively to usurp the exclusive jurisdiction over impeachment proceedings possessed by the Courto f Scientific Council.

Two potential solitions emerge: the first is to accept that, as the principal court having jurisdiction over matters of common misconduct, the Court of Common Jurisdiction should not have any less power to banish merely because the person in question holds high office, and that, in such circumstances, impeachment proceedings should be commenced after a premanent banishment order is made by the Court of Common Jurisdiction on the ground that hte holder of high office cannot properly conduct her or his duties whilst banished.

Another, more complex, possible solution is this: if a holder of high office has a finding of culpable unlawful conduct made against her or him by a Court of Common Jurisdiction, in circumstances where the Court of Common Jurisdiction would otherwise impose a penalty of either permanent banishment, or banishment for a term certain ending on a date later than the date at which that office-holder's office expires in any event, the Court should not make a final order of banishment, but an order of interim banishment, and refer the matter to the Court of Scientific Council, which will then conduct impeachment proceedings (although it will be bound by any finding of [i:1jiosszc]fact[/i:1jiosszc] made by the Court of Common Jurisdiction), which, if successful, would cause the matter to be remitted to the Court of Common Jurisdiction to make the banishment order final.

An interim banishment order (whether imposed in the special way described above or the normaly way) should be considered a suspension from office. For that reason, it might be worthwhile having a right of special appeal to the Court of Scientific Council from an order of interim banishment imposed by the High Court of Common Jurisdiction in any case where that order of interim banishment entails suspension from high office.

I should be most grateful for any feedback on these issues, or indeed any matter that I address in the whole proposal.

[Pelanor Eldrich]

But I still love it! Ashcroft, are you a citizen yet? BTW I likes the robes/gestures. There may be an opening on the SC <wink wink>.

Chatlogs: Easily forged, however, notarized/signed documents using Nota Bene are not. This is why I use these for all serious commercial contracts when I do business.

PS: The Nota Bene in the Rauthaus isn't quite working right (can't sign with a document too long message). That's why I'm currently using the one on Thyris.