[b:umfv6d41][u:umfv6d41]Defending my proposed legal system[/b:umfv6d41][/u:umfv6d41]
Thank you to the members of the Citizens' Social Democratic Faction who last night let me sit in on their meeting, and join in their discussions about my proposed developments of our legal system.
A number of people, including the two CSDF members of the Representative Assembly, there raised some concerns about my proposals that had not previously been raised in discussions about the proposals on the forum. I am somewhat disappointed that those concerns were not raised on the forum some time ago, since, if they were, there would have been a far better opportunity than there now is to discuss them and consider them fully.
From what I remember of the discussions (unhelpfully, SL, unlike IM clients do, does not seem to save chat histories between sessions, so I am having to rely on my memory of the meeting), there were, broadly speaking, three concerns outlined: (1) complexity; (2) sustainability; and (3) the chat logs issue, as discussed before. I will address each of those issues in turn because I think that the first two objections, although well-meaning, do not quite square with the reality of the situation. As to the third, that is not an overall objection to the proposals in general, and I deal with it shortly below.
[b:umfv6d41][u:umfv6d41]1. Complexity[/b:umfv6d41][/u:umfv6d41]
A number of people had suggested that the system that I propose was "too complex" for the citizens of Neufriestadt. It is perhaps unhelpful that, despite some requests by me, nobody has said in what particular respects my proposal is too complex, whether the complexity refers just to the contents of the [b:umfv6d41]Judiciary Bill[/b:umfv6d41] that I propose, or to the more general structure that I discussed in my original post, or what particular simplifications that they propose, but I will nonetheless do my best to address in general terms the concern.
As I explained at the meeting, the first point is an important conceptual point: law cannot help but be complex because the function that law has (governing human behaviour with rules interpreted, applied and enforced by other humans) is an inherently complex activity. Because humans, and the world in which they operate, are inherently vastly complicated things, designing, implementing and understanding rules about what humans should do in particular conditions (and what humans deciding whether humans have followed those rules, and, if not, what to do about it, should do) in order to achieve particular ends is also, inherently, vastly complicated. Just [i:umfv6d41]how[/i:umfv6d41] complicated that it is depends on just how many different ends that one wants to achieve, how complex that those ends are, and the number of possible subject-matters of the rules. In SecondLife, the number and complexity of ends, and the number of possible subject-matters of rules is far less than in real life, so a legal system in SecondLife will always be a good deal simper than a real life one, but a good deal simpler than something that is very, very, very complicated (as all real life legal systems by necessity are) is still something that is very complicated.
The mistake that people who think that law can be simple often make is confusing the question of whether the text of the sources of law is complicated with whether the law denoted by those sources is complicated. There is very often, in fact, an [i:umfv6d41]inverse[/i:umfv6d41] proportionality between the linguistic simplicty and length of the text of the sources and the complexity of the laws created thereby. The reason for this is that oversimplification (that is, making the text of the sources of law [i:umfv6d41]more[/i:umfv6d41] simple than is required to deal comprehensively and precisely with the subject-matter) creates ambiguities, the resolutions of which are more complex (largely because they are uncertain) than the (ostensibly more complex) text that would be required to disambiguate the rules. In other words, a long, comprehensive text that answers in advance the hundreds of questions that are inherently raised by subject-matter of the law is simpler [i:umfv6d41]in practice[/i:umfv6d41] (and that, after all, is what is important) than a simple text that leaves hundreds of questions unanswered.
A brief example should suffice to illustrate the point. I choose the subject-matter of contracts both because it is an area ripe for conceptual complexity, and an area that is important for our law.
Suppose a "simple" commercial code (that purported to be a comprehensive statement of the law) were to state:
[quote:umfv6d41]1. When people agree on something, they shall be bound by their promises.
2. Anybody who breaks those promises shall be liable to pay compensation to the people to whom the promises were made.[/quote:umfv6d41]
Those two sentences do indeed, broadly, set out the most fundamental principles of real-life contract law. Would it not be better, many would ask, to have that rather than the books of thousands of pages devoted to the subject with which real-life law libraries are stocked that provide only an overview of the subject?
As ever, the rules appear simpler until the complexities of reality inevitably supravene. What happens when people agree not to be bound by their promises? How do we assess how much compensation should be paid? Should compensation be payable for losses that were not foreseeable consequences of breaches of the contracts? What about where one person promises on behalf of another? Without that person's consent? With that person's consent, but acting slightly otuside the scope of it? Does it make a difference if the person on behalf of whom the other person makes a promise tells the first person that the agent has authority to make such promises, but tells the agent that he or she doesn't have that authority? Is an agreement to enter into an agreement in the future enforceable? What if people believe that they are agreeing about the same thing, but are talking at cross purposes - when they each come to perform the promises according to their understandings, is either or both of them entitled to compensation? What about where the subject-matter of the agreement is destroyed, unbeknownst to the parties, shortly before the agreement was entered into? What if it was not destroyed, but significantly changed? Moderately changed? Slightly changed? What if one of the parties was responsible for the change? What if one of the parties knew that there might be such a change, but didn't tell the other party? What if the agreement is in writing but the parties to the agreement agree verbally terms that aren't in the written agreement? What if a party to an agreement promises not to enforce a promise? Does it make any difference whether the other party relies on that promise or not? What if one of the parties is genuinely mistaken about the subject-matter of the agreement? What about both parties? Can parties agree that any disputes about the agreement shall be resolved in a particular way? Can parties agree to alienate their constitutional rights? What about rights acquired under statute? What if the promises are informal - do they still count? "I promise I'll be online at 2.00pm and take you on a tour of Neufriestadt" - enforcable? Does it make a difference if the other person promised to pay? Are promises enforceable where one side of the agreement does far better out of it than the other? What about a written agreement that contains contradicting terms - which, if any, are enforceable? What about if parties agree to do something illegal - is that enforceable? What about a big agreement that has a small part where parties agree to do something illegal - is any of it enforceable? What if a person deliberately breaks a promise knowing that the money that he or she would make by doing so would be greater than the loss sustained by the other party - should he or she be allowed to pay just the loss to the other party, or should the law act so as to discourage people from breaking their agreements in the abstract?
That is just a small slice of the problems that the real-world law of contract has to solve, and problems that no less occur in our law of contract. In the example of the oversimplified code above, people faced with any of those problems would have no idea what the law meant for them. The decision that they would have to make about what to do, therefore, would have to be very complex indeed, taking into account lots of different contingencies about what the law might be. That would apply to not only to people faced with the situations in question, but who anticipate the possibility of some or all of those problems, and want to know what to do to plan in advance for their potential actualisation. How should somebody react if somebody else offers to enter into an agreement that contains a small element of illegality? How should somebody react when a person offers to promise to alienate her or his constitutional right(s)? How should a person react when presented with an opportunity to make far more money than he or she would under a contract, but that would mean breaking the contract, albeit the losses incurred by the other party thereto being less than the total amount that the first party would gain, meaning that, if compensation were assessed purely on the basis of loss, it would still be worthwhile for the first party to break the agreement?
Also, those legal institutions applying the law are faced with equally difficult questions, and the even harder question of [i:umfv6d41]how[/i:umfv6d41] to decide the answers to those questions. What if those questions have already come up in a previous case, and the court has decided the outcome - should not a later court decide the case in the same way? What if the current case is slightly different? How is it decided what differences are relevant and what aren't? Does it matter if the other case was a long time ago?
Not only are there a multitude of "what" questions, but each answer to those generates a "why" question. If the answers to all the "why" questions are not wholly consistent with each other, then there is something terribly wrong with the law.
As I have said before, because we simply do not have the resources to draw up comprehensive codes of law in advance, I have proposed a common law system, whereby rules are created by precedent-setting cases, but can be 0ver-ruled by the legislature, providing that the legislature's intervention is in the nature of general rules applying to all, rather than interference in individual cases. We cannot answer all the questions in advance, but at least we can answer the question of [i:umfv6d41]how[/i:umfv6d41] we go about answering the other questions. We cannot simply leave structure and procedure to be developed by judicial precedent from scratch, since judicial precedent will not get the chance to develop if there is not already a fixed and clear structure within which it can do so. That structure, just like the substantive law that it is there to interpret and enforce, is inherently complex, and a system that answers the complex questions before they arise is a simpler system [i:umfv6d41]in practice[/i:umfv6d41] than one that leaves those qustions unanswered. Those questions inherently arise out of the subject-matter of the law: they do not go away if people do not think about them.
That is why real-world legal systems are invariably highly complex (if complexity were merely optional, one would expect that some real-world legal systems would be complex, and others not), and that is why our legal system needs to be complex to an extent (although a lesser extent, as I have explained, than real-world law in relation to many things, because there are fewer subject-matters: we cannot have a law of personal injury in SecondLife, for example).
Nonetheless, advocating simplicity and clarity in law is not a wholly pointless exercise: although there is an irreducible minimum complexity that law on any given topic has to have in order to be workable (that minimum being often quite high), it is certainly possible to have law that is more complex than it need be. A good real-life example of that is the law of [url=http://en.wikipedia.org/wiki/Trust_law:umfv6d41]trusts[/url:umfv6d41], whose historical creation (through the unnecessarily complex old English system, abolished in 1873, of having two separate types of courts (the courts of Chancery and the common-law courts) for the same jurisdiction and the same subject-matter) owed much to a failure to understand the essentially simple but very important analysis of the nature of legal rules proposed by [url=http://en.wikipedia.org/wiki/Wesley_N._Hohfeld:umfv6d41]Hohfeld[/url:umfv6d41], with the consequence that the ultimate effect of the rules is channelled through entirely redundant layers of abstraction that bear little relation to the underlying realities of how the law on the matter ends up operating.
Thus, there are two kinds of legal complexity: laws that are complex because they need to provide for, and only in so far as they need to provide for, the complexities inherent in the thing about which they are laws, and laws that introduce thier own, wholly needless complexity, either in substance (as in the law of trusts) or in expression (as in many a badly drafted contract of years past). I hope that the only kind of complexity in the [b:umfv6d41]Judiciary Bill[/b:umfv6d41] is the first kind. If anybody can find any of the second kind, please do tell me, and I will see whether I can redraft the section in question to eliminate it.
Following on from that, the second point about complexity is this: the system that I propose will be [i:umfv6d41]less[/i:umfv6d41], not more, complicated in practice than the one that is currently operating. As I understand it, for example, there are no fewer than [i:umfv6d41]four[/i:umfv6d41] different courts (all administered by the Scientific Council, with no established rules of procedure, nor any idea how exactly one brings or contests a case in those courts): the criminal court, the civil court, the commercial court and the constitutional court. How is anybody going to pick which one of those to bring a case in if, for example, it is a dispute about whether or not a contract is with a company (which it is disputed whether it is insolvent), where there is an allegation of a (criminal) fraud by the operators of the company to engineer a false bankruptcy to escape liability on debts? The only thing that a suitor would know is that it would certainly not be the constitutional court! Would a person have to bring an action in all three courts separately for each part of the claim? What if the courts reached conflicting decisions? What if the courts each held each other responsible for deciding part of the claim? Which court (if any) would have the power to freeze the assets of the defendant(s) pending trial to prevent them from being dissipated outside the jurisdiction? Which court would deal with breach of a freezing order? What if the operators of the company want to bring a claim against the person suing them for what they claim to be an unpaid debt? Do they have to do that after the first case is over with? The system that I propose will be simpler in its operation as, not only will it have half the numbers of different courts (and the division between the two levels of courts created will also be clearer - for anything other than impeachments and some appeals, use the Courts of Common Jurisdiction), but all or at least most of those questions will have an answer that can merely be looked up. Thus, although the [i:umfv6d41]text[/i:umfv6d41] establishing the law will be more complex, the [i:umfv6d41]practice[/i:umfv6d41] of the law for those involved in it will be much simpler.
Some complain that the new, "more" complex system that I propose will be hard for people to understand. That may be, but it will not be harder for anybody to understand than the present system. As things stand now, [i:umfv6d41]nobody[/i:umfv6d41] understands the procedures of our courts. In the system that I propose, anybody who has access to the legal texts (i.e., everybody with access to the internet) will have the opportunity to understand them. Those who say that people will not, for the most part, understand what they need to understand have a very pessimistic view of the intelligence or literacy of our citizens!
Of course, in the real world, nobody understands everything about all the laws. Even lawyers specialise, and even they often have to look things up in their specialist areas. The general public has an approximate understanding of the law, which more or less serves their purposes. As things stand in Neufriestadt, nobody at all really understands the law, not even those most intimately connected with it: much of it is an incomprehensible void. In the system that I propose, many people will have a thorough understanding of our law (those who work in it, and those who take trouble to familiarise themselves with it), and everyone else will have the opportunity to become basically familiar with the important parts as far as they are concerned through an education programme that I will, if my bill is passed, and I am appointed Chair of the Judiciary Commission, establish. Traders in particular would probably be interested in my proposed "introduction to the law of the Confederation of Democratic Simulators" classes, which I propose to hold occasionally (according to demand) once the Code of Procedure is drafted. I also plan to have, as suggested at the CSDF meeting, beginners' guides to the important aspects of our law, including how to bring a case, and what to do to contest a summary banishment. (As to that last topic, incidentally, only last week somebody who had been summarily banned by Gwynneth, I think, IMed me and asked how to appeal the banishment. Although, no doubt, he had been banned in good faith and for good reason, I was interested in assisting him in at least knowing how to go about using the existing system to seek a reconsideration of his banishment, because that is an important subject of the legal system that I propose. All that I could tell him was that the Scientific Council would review his banishment within 28 days. There does not even seem to be a mechanism for telling people who have been banished what the outcome of the review is. Have any such reviews ever taken place? If not, are banishments more than 28 days old now unlawful?)
Far, therefore, from making it [i:umfv6d41]harder[/i:umfv6d41] to understand, my proposals would make law far [i:umfv6d41]easier[/i:umfv6d41] to understand [i:umfv6d41]in practice[/i:umfv6d41], which, of course, is the important bit. I understand the concerns of those who want the law to be as simple as possible: I will do everything that I can to make sure that I do not generate unnecessary complexity, and to make the system as easy to understand as is possible without compromising its function in any way. I will endeavour to do all that I reasonably can to educate citizens in our law, both at a basic and, in due course, at an advanced level, so that they may know their rights and how to go about defending them.
[b:umfv6d41]2. Sustainability[/b:umfv6d41]
The concern was raised that, supposing I were to be appointed the Chair of the Judiciary Commission and the Chief Judge of Common Jurisdiction, and run the system for a while, and then decide no longer to participate (because of real-life commitments, for example), then there would not be anyone else who would be able to step in and understand how to run the legal system, and it would fall apart. Firstly, I must stress that I have no intention at present of going anywhere, but people are, of course, quite right to treat that as a realistic prospect: one can never predict these things accurately (as past experience seems to have shown us).
My response to that concern is twofold: firstly, I plan to encourage other jurists, legal practitioners and legal scholars to come and live in Neufriestadt on the back of the legal system that I propose. After all, if Rudy, an eminent political scholar, has decided to set up shop here because of our political system, why should not a few real-world lawyers, law teachers and law students not do the same thing? Indeed, I am very much hoping that we can use the legal system as a means of advertising ourselves. Once everything was set up, I had planned to contact real-world legal academics (including one who taught me at Oxford who might be quite interested in our law of property), at least some of whom are likely to be interested. Indeed, is not "world's first virtual jury trial" not a significant headline for at least a legal newspaper, if not an ordinary newspaper? As stated above, I plan to provide at some stage some formal education in our legal sytem: it will not take long, as our legal system will be far smaller and simpler than any real world legal system. People attracted by what I hope will be our reputation will be able to be trained quickly in our law and able to take the mantle as judges. It might be wise to try to find a second judge fairly soon (within a few months), not least because, if I was the only judge, I would not be able to bring any actions against anybody, and nobody would be able to bring any actions against me!
Secondly, even if my hopes of finding other legal practitioners willing to participate in the legal system that I propose were not fulfilled, and I were to leave one day with nobody to replace me, and the system were to cease to be functional, would we have lost anything? Suppose that we make an amendment to the [b:umfv6d41]Judiciary Bill[/b:umfv6d41] to say that, where nobody holds the office of Judge of Common Jurisdiction, the Scientific Council shall have all the powers of the Court of Common Jurisdiction: would that not mean that, if the Judiciary Commission were to become defunct, there would still be a functioning legal system no worse than the one that we have at present? If that is so, what do we have to lose by giving my plan a try, and letting it run as long as it lasts? At worst (if, contrary to my plan at present, I have to leave suddenly), we will have had a fascinating, albeit brief, experiment with a sophisticated judiciary in a virtual world. At best, we will have a lasting and sustainable legal system that can survive the departure of its founders, just like Neufreistadt itself. After all, who would have thought back when Neualtenburg as then it was was founded that it would be able to survive the loss of its principal founding members?
Since we have so much to gain by a good, comprehensive, fair, efficient legal system (in terms of publicity, commerce, stability, and, not least, justice), can it really be said that it is a risk not worth taking (especially since nobody else has proposed a viable alternative legal system, or looks likely to do so any time soon)? Surely the bigger risk is to pass this opportunity by than it is to seize it?
[b:umfv6d41]3. Chat logs[/b:umfv6d41]
I have already set out my principled and reasoned arguments in favour of the terms of service change that I propose to require citizens to give their consent to the use of chat logs in another post, and I need not repeat that here. I still stand by the reasoning that I have outlined there, and note that nobody has managed to find any flaws in my reasoning.
Nonetheless, whilst I still urge all who have a view on the matter to support my proposal in its original form, I would rather that the controversial part be removed than that the whole bill be defeated. The issue is in any event slightly less important than I had previously thought, since SecondLife does not save chat histories between sessions. The only alternative is the orders for disclosure regime previously discussed. I did not want to have to rely on that, precisely because it would make litigation far more complex and difficult than it needs to be. Nonetheless, it is better to have that aberration than no developed legal system at all.
Presumably, those who oppose the terms of service change do not oppose it in so far as it requires consent to the transcripts [i:umfv6d41]of[/i:umfv6d41] court proceedings at which they were present and at which they spoke to be made available to the public? Court proceedings are, after all, inherently public affairs, so I cannot see how the privacy conerns raised in realtion to the full proposal, unfounded though I believe them to be, could conceivably apply to such public proceedings.
[b:umfv6d41]Conclusion[/b:umfv6d41]
For those who vote on my Bill at the Representative Assembly meeting to-morrow, and those who seek to influence them, there are two options: either to adopt the legal system that I propose, as I propose it (with, perhaps, one or two minor amendments as suggested above) now, and, if problems arise, address them then, and have between then and now a functioning legal system whose flaws, if any, can be discovered by its practice; or to defeat the bill, and retain our muddled status quo indefinitely in the hope that something different will come along. There are no signs of any such thing at this juncture, and one may doubt whether there ever will be, at least for a very long time indeed.
We have much to gain, and very little to lose, by passing my Bill, and establishing, for the first time ever in the world, a professional judiciary in a virtual world; if it comes to the worst, we can always revert to the old system (but no doubt augmented by the lessons learnt); if it works, then we will have created something unique and special with the potential to do us great service. Let us be bold, and not timid, and take the option that gives us the chance to become reveered as a pioneering community, the first to bring true nationhood to cyberspace.
[i:umfv6d41]Edit:[/i:umfv6d41] I accidentally double-posted this before I had finished editing it. I deleted the original version, because this is the final version. From the forum records, it seems that one person viewed that earlier version. I thought that I had better write this note for clarity.
