[quote="Diderot Mirabeau":2ejcfh7f]I have had the opportunity to read your thorough and well thought out proposal outlining the foundation for a judiciary for Neufreistadt. First, I'd like to reiterate my gratitude for you having had the ability to undertake a work of this magnitude. It is truly a remarkable feat and there is no doubt in my mind that whatever solution we decide upon in the end it will be of immense benefit for our community as a whole to have had such a solid basis of thoughts upon which to make our decisions.
Having said that I must admit that I disagree with your proposal on a number of issues most of which are about technical details of implementation rather than principled or conceptual disagreements.[/quote:2ejcfh7f]
Thank you very much for your comments; it is always welcome, and the more discussion the better. I respond to your detailed points below.
[quote:2ejcfh7f]1) Jury service is unrealistic. Requiring every court case to be overseen by two impartial citizens sitting alongside a judge will only result in making it even more difficult to schedule court cases - especially those spanning more than a single meeting. Furthermore, since our constituency numbers around 40 citizens it is not unlikely that an undue strain will be put on these citizens to act as jurors in the case where our legal system gears up to handle a greater volume of cases. Let's face it: The wording in the constitution is simply unrealistic on this point and we should seek to have it amended.[/quote:2ejcfh7f]
The main reson that I put trial by jury into my proposals was that it was already in the constitution; I rather assumed for that reason that the practicalities had already been considered. That was not the only reason, however: trial by jury is, generally, a fairer way of administering justice than trial by judge alone. Although there will inevitably be [i:2ejcfh7f]some[/i:2ejcfh7f] practical problems with trial by jury (just as there are in real life), it is not clear to me at this stage just how great those problems are or will be: after all, nobody has ever, as far as I am aware, tried to conduct a trial by jury in SecondLife. It would be helpful to have input from others, perhaps those more experienced than I in planning events in SecondLife, on the question of the practicality of jury service (given that, for example, for a jury of four, seven or so people would be called, four of whom would then be selected, and the remaining three stood down, and the trials would be scheduled some time in advance to give potential jurors sufficient time to raise any issues of timing). If, all that taken into account, it is still not realistically practical to hold trials by jury, then so be it. If, however, albeit with some effort, the problems can largely be managed effectively, then it is my view that the benefits of trial by jury would make that effort worthwhile. If it is not clear either way, it is worth experimenting with trial by jury, and then changing the position if it is clear that the system is untenable.
[quote:2ejcfh7f]2) Financial compensation to the professional actors in the court system is unlikely to serve as sufficient incentive to retain these persons in so far as it does not correspond to RL levels of compensation: I.e. at least 5 - 10,000 L$ per hour served. Alternatively, we should devise a system that keeps at a low level the volume of cases delegated to the individual judge. Possibly each case could be assessed before being handed to a judge for how long it is expected to last and for the degree of complexity in relation to Neufreistadt legislation. Individual judges could indicate the level of workload they are willing / able to contribute on a monthly basis and the chief administrator of the judiciary would then delegate cases on a random basis in accordance with these indications. The ideal model for this should be not unlike how tasks are delegated in the development of open source software.[/quote:2ejcfh7f]
I am not entirely sure that I follow the economic reasoning here: I never suggested that financial compensation would, in the foreseeable future, be the [i:2ejcfh7f]only[/i:2ejcfh7f] incentive for legal professionals in our jurisdiction to work; just like everyone else in the community, the builders, the planners, the government officials and the like, they would do it mainly for the joy of doing it itself. However, some financial reward, not enough to earn anything near a real-word living, but maybe a few hundred L$ per month, enough, for example, to go towards land rent and buy some SecondLife furniture, clothes, gestures and so forth now and again, would provide extra incentive which, along with the non-financial incentives, should be sufficient in combination even if each were not sufficient on their own. Above all, a salary, even a relatively small one, comes with it a sense of responsibility not present in the truly voluntary worker that can help to ensure continuity. Furthermore, the salary should be in approximate proportion to the GDP of the CDS; since the judiciary is a potentially important element in the economic success of our community, not only is it fair that they receive some small portion thereof, but such people would be incentivised to practise in the expectation that, if the CDS would become greatly more financially successful, their salaries might increase, too. Furthermore, in my view it would be a selling point for the Confederation to potential citizens and/or customers thereof if we could claim that we have a truly professional judiciary: we would, after all, thereby be unique in that aspect in all of SecondLife: the world's first professional judiciary for a virtual world.
[quote:2ejcfh7f]3) Jurisdiction should be limited to those areas where NFS has effective means of enforcement and where there is no other body with jurisdiction. It should therefore in my opinion be limited to "(2) the conduct of all avatars in relation to the interests they hold in resources over which the Government of Neufreistadt purports to exercise sovereign control including the discussion forums in so far as the dispute in question is not subject to arbitration by another body." This means for example that complaints regarding abuse in relation to individual citizens should be dealt with by the proper Linden abuse system and not by the government of Neufreistadt. Let us not waste the time of our judges by asking them to resolve petty abuse cases when there is already a Linden-scalable system in place to deal with these matters.[/quote:2ejcfh7f]
Part of the reason for having our own judicial system is precisely that other means of enforcement, especially reporting complaints to Linden Labs, are notoriously ineffective. The mere fact, therefore, that Linden Labs would have power to punish an individual for misconduct should never be a reason why our judicial system should not also have jurisdiction. Indeed, were that to be so, no in-world judicial system other than Linden Labs' own quasi-judicial powers of summary punishment could exist, as Linden Labs has powers broad enough to punish anybody for anything.
If our judicial system is not as all-encompassing as its powers of enforcement (including banishment and forfeiture) allow it to be, then there is a serious risk that it will be considered irrelevant. It would also be extremely unwise to make it ever possible for a defendant to be able to defeat a case brought against her or him soeley on the ground that Linden Labs would, if it chose to do so, be able to punish her or him. That would risk making the whole judicial system woefully ineffective.
The whole point of having a private community is that we can ban those who behave improperly either within it or anywhere towards other members of it. In the interests of justice, and of fostering confidence in non-citizens that they will be treated justly by us, we declare that no person may be banished without order of the court, and the opportunity to have a trial. From that flows the principle that should form a part of our law that our law runs in parallell to any other legal system or system of enforcement, and that our courts ignore other such codes (save to the extent that they must not themselves act in violation of any duly applicable real-world law or SecondLife term of service), and decide the issues based only on the law of the Confederation.
For those reasons, it most certainly is not a waste of judicial time dealing with abuse cases (whether petty or not), since our ability both to punish effectively the perpetrators thereof by our own means, and our unwaivering commitment to treat alleged such perpetrators fairly are both essential cornerstones of our emerging system of justice upon which our unique and excellent community is founded.
[quote:2ejcfh7f]4) Instantiation: In my view a case should only be considered by the courts on the initiative of a citizen (or possibly a non-citizen but in that case regulated by some qualitative mechanism such as requirement to pay RL legal fees, to have petition sponsored by citizens or to present an extensive notice that lives up to formal requirements outlined in an act), who is of the conviction that his interests have been wronged by another individual or by action of a government body. In the case where John Random Avatar is banned by an Estate manager representing the government there should be no consideration by a court unless the person affected by the decision appeals to have it overturned by the court. Requiring government officials to file a suit with the court within x days of banning a person and to file the necessary administrative paperwork will only serve as a deterrent and might well result in the being reluctant to establish order in the sim from fear of all the resulting paperwork.[/quote:2ejcfh7f]
I have already given reasons above why the banishment of non-citizens must have judicial involvement; it is, after all, a great potential selling point of our community that people who visit it, whether citizens or not, will not be banished without the right to a hearing.
Your concern seems to be more the administrative burden on those with powers of summary enforcement than anything else, which is undertandable. However, I must emphasise that the plan that I set out involved only a most minimal amount of work for the proposed Marshals of the Peace in uncontested cases (service of a notice with only some basic requirements). In cases where the defendant does not respond to the notice, there need be no court [i:2ejcfh7f]hearing[/i:2ejcfh7f]: the matter can be decided swiftly by a judge in chambers based on the written notice and nothing else. (From what you have written above, I think that even you agree that contested cases deserve a full hearing). I do not, however, agree that such a hearing should be considered as an [i:2ejcfh7f]appeal[/i:2ejcfh7f], since that would imply that those with summary powers of banishment have the power to make a final determination on the issue (albeit subject to appeal), which is not in the interests of justice, but that is perhaps more a semantic issue than anything else.
To give an idea just how little a burden that the service of the notice would be, I take as an example a case dealt with under the existing system (a Notice of Banning being posted in the AC Announcements forum), the [url=http://forums.neufreistadt.info/viewtop ... 0:2ejcfh7f]case of RavenOfShadow Fool[/url:2ejcfh7f] on the 18th of June this year. That link is a link to the post on which the Notice of Banning was made. In the system that I propose, instead of issuing a Notice of Banning on the forums, the Marshal of the Peace would instead serve notice in standard form both on the defendant and on the court. Doing so would take almost no more time than posting a Notice of Banning on the forum. In the above example, it would look something like this:
[i:2ejcfh7f][Formal heading - would not be written every time, but would be copied from a blank form.]
You have been made the subject of an order of summary banishment for a period of 14 days because you approached two citizens of Neufreistadt, namely Ranma Tardis and Sudane Erato, firing guns and using abusive language towards them. You acted unlawfully in so doing because you harrassed Ranma Tardis and Sudane Erato. You were culpable in so doing in that you did so intentionally.
If you do not respond [details would be given, in standard form, as to how to do so], an independent Court of Common Jurisdiction will consider whether, on the information given, you should be the subject of a longer or permanent order of banishment, and you will be notified in writing of the outcome in due course.
If, and only if, you submit a Notice of Response by [deadline], you will be entitled, if your notice of response contains an arguable defence, to a trial, and to show cause as to why you should not be made the subject of an interim banishment order until your trial.
[date of notice, and name of person serving notice][/i:2ejcfh7f]
As you will see, writing that notice will take no more work than the current Notice of Banning forum posts, especially since much of it will be in pro-forma.
There is a slight innovation in that, which differs from what I suggested in my original post, which takes into account your point about adminstrative burdens, in that, in cases of summary banishment, unless they are particularly complicated, the court could permit the Notice of Summary Banishment to stand as a Notice in the Ordinary (provided that it sets out, as mine does above, the sense in which the defendant is said to have acted unlawfully and culpably). In complex cases, the court could order a separate Notice in the Ordinary, but those cases would likely be very few. This should streamline the procedure so that, in a simple, uncontested case, a Marshal of the Peace need only submit one, simple notice, and then do nothing else, the workload thereof being no greater than the workload involved at present in the forum posts.
[quote:2ejcfh7f]5) Robes and heraldry are in my opinion not worth wasting resources on unless some talented artist wants to donate the trappings as a pro bono effort for our courts. I am on par with Patroklus in this one in that I'd rather see our court system be seen to be effective by SL standards of accountability, transparency and fairness and have the "wordly trappings" of the system be in tune with the surrounding society. Wigs and robes will only serve to reinforce the impression that the judiciary is an aloof aggregation of incomprehensible legal geeks out of tune more concerned with roleplaying an English court than with the actual problems and issues of the world around them.[/quote:2ejcfh7f]
Are not robes and heraldry perfectly in tune with the medieval European surroundings of Neufreistadt? Whether to have robes and heraldry is, of course, a quite separate question of how much is worth spending on them. I address the former point in my response to Patroklus above, and need not repeat it here. As to resourcing, whether it is worth it depends entirely on how much that it costs, which has, in the case of robes, yet to be determined. As for heraldry, not only does the Judiciary Commission need a logo of [i:2ejcfh7f]some[/i:2ejcfh7f] sort (and, given that, it might as well be a coat of arms as anything else), my father (who knows a fair bit about heraldry) as indicated a willingness to design such a coat of arms for us, so that would be free. Ultimately, however, what to spend the Judiciary Commission's budget on would ultimately be a matter for the Chair of the Judiciary Commission, not the legislature in deciding whether or not there should be one 
[quote:2ejcfh7f]I would have written a more comprehensive and systematic response following the order of the issues as you presented them in your contribution but unfortunately I left my notes at home and I wanted to expedite this now having left it unanswered for too long already. I might well return with further comments once I gain access to my notes, though.[/quote:2ejcfh7f]
It is unfortunate that you left your notes at home, and I look forward to any further replies when you find them. Thank you for expediting the discussion - your contribution has been most valuable (especially in relation to the administrative burden of simple, uncontested cases of culpable misconduct against non-citizens). Do have a look at the legislative proposal that I have made recently (see the post above yours), and tell me what you think of that, too (I know that the point about juries you have already made - perhaps that should be taken out of the constitution and made a simple rule of procedure to account for the possibility of it being impractical).
All further comments would be extremely welcome
Ultimately, however, although we must of course be careful not to be extravagant and impractical with the designs for our judiciary, what we are planning and seeking to acheive - a professional, independent judiciary for a democratically-governed community in an entirely virtual world - is something that nobody in the world has ever done before. We are the pioneers of something truly unique and ground-breaking, and we should not, in the name of over-cautiousness, dilute what I hope will one day become renowned the oldest and finest virtual legal system in the world. To be timid rather than bold now is something that we may very well regret in years to come.
