[b:2t07o19j][u:2t07o19j]Executive summary of my proposed legal system[/b:2t07o19j][/u:2t07o19j]
A number of people have commented that they have found my [url=http://forums.neufreistadt.info/viewtop ... 9:2t07o19j]original[/url:2t07o19j] legal system proposal rather overwhelming, and that it could be difficult for citizens and outsiders to follow.
Although I explain [url=http://forums.neufreistadt.info/viewtop ... 9:2t07o19j]here[/url:2t07o19j] exactly why, in truth, the legal system that I propose would be far clearer and easier to understand [i:2t07o19j]in practice[/i:2t07o19j] than our existing system, I thought that it might be helpful for me to give a brief and easily digestible summary of the main points of my proposal, both so that those who are interested in learning more about it in depth have a good starting point for doing so, and can more easily structure their thoughts about it, and so that those who want to know about it, but have no interest in taking the time and trouble to learn about it in depth, can do so.
After all, no real-world legal system (or, for that matter, constitution or rules of any real-world members' club) is understood in detail and in full by all of its citizens (or members), nor need it be, but people must have a working knowledge of the important provisions in order to be able to operate effectively under it (and the ability to consult somebody else on, or look up, further details if necessary). This post I hope will provide such a working knowledge, and, in so doing, obviate the need for splitting my proposal into bits and passing it piecemeal as Justice Soothsayer (who was evidently trying to be helpful, but in a somewhat misguided way) has suggested.
I shall follow the structure of my original outline, setting out a summary of the points very briefly. That should make it easy for anybody who wants to find more detail on a particular part only to do so without having to wade through a long document to find the part in question.
[b:2t07o19j][u:2t07o19j]1. Problems of our present system[/b:2t07o19j][/u:2t07o19j]
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1. There are no rules of procedure.
2. It is not clear who has the right to bring legal proceedings, or against whom they may be brought (as between citizens and non-citizens).
3. The sources of law are not clearly defined: does the Scientific Council bind itself, for example, or may it overturn previous precedent?
4. It is not at all clear what the powers of the courts are.
5. There are, most confusingly, no fewer than [i:2t07o19j]four[/i:2t07o19j] distinct types of courts, all run by the Scientific Council, those being (i) the criminal court; (ii) the civil court; (iii) the commercial court; and (iv) the constitutional court. Furthermore, the division of jurisdiction between these is most unclear, as is the purpose for such a division, since essentially the same judges will be sitting in each.
6. There are not adequate constitutional safeguards against punishment without process: the current system, for example, allows non-citizens to be banished without giving them the right to a trial, and nowhere in the constitution does it state that people have the right to make representations at their own trials, or even that a person has the right to a trial before being banished.
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[b:2t07o19j][u:2t07o19j]2. Proposed structure for the judiciary[/b:2t07o19j][/u:2t07o19j]
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1. Instead of having four courts each governed directly by the Scientific Council, I propose to have two distinct levels of courts: [b:2t07o19j]Courts of Common Jurisdiction[/b:2t07o19j] and the [b:2t07o19j]Court of Scientific Council[/b:2t07o19j].
2. The Courts of Common Jurisdiction will be a fully autonomous branch of government, held together and administered by an institution called the [b:2t07o19j]Judiciary Commission[/b:2t07o19j], which will also have some ancillary functions, such as legal education in the Confederation, and making records of proceedings public.
3. The leader ("chair") of the Judiciary Commission will be appointed by the Scientific Council, and will, in turn, have the power to appoint Judges of Common Jurisdiction.
4. Only the Courts of Common Jurisdiction will have the power to banish people or forfeit their assets in the jurisdiction (the two main forms of enforcement: see below). Only the Court of Scientific Council will be able to conduct impeachment proceedings, and remove or disqualify any person from holding public office (although there is a suggestion that, when a member of the Scientific Council itself is impeached, there should be an option for a non-member of the Scientific Council to preside over the hearing, to prevent abuses of power).
5. Judgments of the Courts of Common Jurisdiction will be final and binding, but, exceptionally, parties may appeal to the Court of Scientific Council on the very limited ground that the Court of Common Jurisdiction has acted outside the powers granted to it by the text of the constitution in such a way as has affected the outcome of the case.
6. Initially, there will only be one Court of Common Jurisdiction and one Judge of Common Jurisdiction, but more judges, and different levels of Courts of Common Jurisdiction could be added easily and without structural change as we expand.
7. Just like their real-world counterparts, in England at least, Judges of Common Jurisdiction would have security of tenure, and only be able to be removed for gross dereliction of duty, bais, corruption or insanity. This is required to ensure the vital independence of the judiciary.
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[b:2t07o19j][u:2t07o19j]3. Jurisdiction, powers and enforcement[/b:2t07o19j][/u:2t07o19j]
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1. To prevent good actions being defeated on technical grounds, and to make our courts as effective and useful as possible, they would, in theory, have a wide jurisdiction, over affairs that relate to the Confederation of Democratic Simulators, or any of our citizens.
2. That theoretical power, however, would be limited in practice by the means of enforcement available: those being banishment from CDS-controlled territory and forfeiture of assets held in (and debts owed under) the jurisdiction. Only citizens or those with an interest in us would consider these things to be a punishment, but banishment is effective against common griefers in any event.
3. The problem of alts is currently intractable with or without a legal system, but there is [i:2t07o19j]some[/i:2t07o19j] administrative overhead in creating one, so we can only hope that the alt-happy griefers will find somewhere else to grief.
4. In addition to the powers of forfeiture and banishment, Courts of Common Jurisdiction would have powers to make lesser penal orders, such as fines, or to suspend orders on conditions (such as on a condition of doing good works for the city), as well as to make non-penal orders (such as an order for restitution or compensation), breach of which could be enforced by forfeiture and/or banishment.
5. There would not be separate "civil" and "criminal" courts: instead, as in real-world civil courts, a person would bring a case against another person, setting out the facts on which he or she relies, and the legal consequences that flow from those facts, and seek an order or orders from the court to give effect to what he or she claims is her or his rights under our law (such as compensation, restitution, etc.). Additionally, however, if a party alleges, and, if disputed, successfully proves, that the person against whom the action is brought has acted [b:2t07o19j]culpably[/b:2t07o19j], then the court would additionally have the power to make a [b:2t07o19j]penal[/b:2t07o19j] order (one whose only purpose is to punish the wrongdoer), as discussed above. This system would be more efficient and easier to understand than a split civil/criminal system, which, in real life, arose as an accident of history more than anything else.
6. Similar to the existing arrangement under the [b:2t07o19j]Defence of the Republic Act[/b:2t07o19j], there would be [b:2t07o19j]Marshals of the Peace[/b:2t07o19j], who would have the power to execute orders of banishment issued by courts, and also to issue summary banishments where it is necessary to prevent a person causing trouble before a court can come to consider the case. Summary banishments would be time-limited, would not entail loss of assets or citizenship, and would have to be reviewed by a Court of Common Jurisdiction.
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[b:2t07o19j][u:2t07o19j]4. Procedure[/b:2t07o19j][/u:2t07o19j]
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1. Both the Courts of Common Jurisdiction and the Court of Scientific Council would be granted by the constitution the power to govern their own proceedings, subject to any Act of the RA.
2. The Judiciary Commission would publish a [b:2t07o19j]Code of Procedure[/b:2t07o19j], setting out in detail the procedures to be adopted before the Courts of Common Jurisdiction. The Scientific Council would also publish such a code in respect of the Court of Scientific Council. They might be consolodated into a single joint code.
3. The Judiciary Commission would also publish simplified guides to procedure to help those unfamiliar with the system who are involved in litigation.
4. Any resident of SecondLife would have the right to bring judicial proceedings in Courts of Common Jurisdiction (but see above on jurisdiction).
5. A person would commence proceedings by serving a formal notice, called an [b:2t07o19j]Originating Notice[/b:2t07o19j], upon the other party or parties to proceedings, and filing a copy with the court.
6. An originating notice would have to set out (a) the facts upon which the person brining the action relied; (b) what he or she contends the legal consequences of those facts to be; (c) whether or not he or she contends that other parties have acted culpably; (d) the order or orders of the court that he or she seeks; and (e) some other minor formalities, such as a heading, the date, etc.
7. A person against whom an action is brought will always have the right to defend that action. He or she exercises that right by (a) serving a [b:2t07o19j]Notice of Response[/b:2t07o19j], and (b) attending any trial or other hearing to resolve disputed issues between the two notices. A person would not have to do either of those things, but, by not doing so, would lose some or all of her or his rights to defend the action, and could not then complain if the court makes an unfavourable order, even an order of banishment.
8. The Notice of Response should set out (a) whether any facts contended for in the Originating Notice are admitted or denied, (b) any other facts upon which the defendant seeks to rely, (c) any issue that the defendant takes with what the person brining the action (the "prosecutor") claims are the legal consequences of those facts; (d) what, if any, orders that the defendant wishes the court to make; and (e) other minor formalities (as above).
9. After proceedings are brought, they would be disposed of either by a [b:2t07o19j]trial[/b:2t07o19j] (if there are any disputed questions of fact), or by a simple [b:2t07o19j]hearing[/b:2t07o19j] if the facts are agreed, but the legal consequences and/or proposed orders are not, or by an [b:2t07o19j]Order by Consent[/b:2t07o19j] where both parties (whether because they have agreed to settle, or for any other reason) both agree on what orders that the court should make, in which case there would be no formal hearing.
10. At a trial, each party would be given the opportunity to call evidence, and challenge the other side's evidence (by cross-examining witnesses, or calling evidence in rebuttal), and of making representations to the Court about the facts, the law and any orders that the court is considering making, or that a party is inviting the court to make.
11. At the end of a trial, the court would then deliver verdicts on the factual questions, a judgment on the legal questions, and make orders consistent with those findings.
12. Where it is practical, trial might be by jury, in which case, the jury would decide a series of specific factual issues that are in dispute between the parties, rather than returning an overall verdict, and the judge would then deliver a judgment on the legal consequences of those specific answers.
13. At the end of the trial, the unsuccessful party would have to pay court costs (costs related to running the Judiciary Commission), as well as any costs of brining or defending the proceedings incurred by the other side. A non-citizen might be required to give [b:2t07o19j]security for costs[/b:2t07o19j], by putting money in escrow, to be claimed if an unfavourable finding is made, or to be repaid otherwise.
14. There would not be a [i:2t07o19j]constitutional[/i:2t07o19j] provision for alternative dispute resolution, as there is now: instead, if any alternative dispute resolution were needed, it would be allowed to grow organically, and adapt to our circumstances. However, there is a sense in which, as far as [i:2t07o19j]SecondLife[/i:2t07o19j] is concerned, litigation in in-world courts [i:2t07o19j]is[/i:2t07o19j] the alternative way of resolving disputes. In any event, there would be a need in the early days to accumulate judicial precedent: see below.
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[b:2t07o19j][u:2t07o19j]5. Substantive law[/b:2t07o19j][/u:2t07o19j]
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1. The system that I propose will be a [i:2t07o19j]common law[/i:2t07o19j] system. That means that, instead of drafting in advance purportedly comprehensive legal codes on every conceivable subject on which our courts could possibly adjudicate (which we do not have the resources to do), law would develop by individual cases setting binding precedents for future cases.
2. The Representative Assembly, however, would have the power to pass an Act which would reverse the law established by judicial precedent on a point, but only prospectively (i.e., from the date on which the Act was passed and onward), and would not have the power to undo the outcomes of individual cases. This provides for a delicate balance of power between the judiciary (to develop the law where the legislature has not been able to do so), and the legislature, as an elected body, to set broad policy.
3. Because much law would be by way of judicial precedent, the Judiciary Commission would have to (and would) create an online library of judicial precedent so that the law could easily be researched.
4. Because of the need for judicial precedent to be clear, judgments would have to be reasoned, and explain the basis upon which they reach their decisions.
5. The only exception to not codifying law in advance would be procedure, as described above: this would be necessary to enable people to have access to the courts effectively, and to know what to do in order to gain such access. Judicial precedent would, however, still be able to fill in any gaps, and the Representative Assembly would always have the power to pass laws about judicial procedure that would over-ride any judicial precedent or rules issued by the Judiciary Commission (provided always that they were constitutional, of course).
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[b:2t07o19j][u:2t07o19j]6. Implementation[/b:2t07o19j][/u:2t07o19j]
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1. In order to bring about this judicial system, there should be constitutional amendments to enshrine a number of "due process" rights into the constitution, as well as the independence of the judiciary (and the autonomy of the Judiciary Commission), and the powers of the various courts.
2. To that end, I have drafted a [b:2t07o19j]Judiciary Bill[/b:2t07o19j], a number of versions of which can be found [url=http://forums.neufreistadt.info/viewtop ... 2:2t07o19j]here[/url:2t07o19j], where there is also some discussion of some aspects of it.
3. That Bill was submitted to the last meeting of the Representative Assembly, but there was not time to discuss it.
4. I will be submitting again that Bill, revised to take account of, amongst other things, the new executive structure that we now have, as well as some suggestions made by Gwynneth, as well as a few other things, to the next meeting of the Representative Assembly.
5. I urge those with the power to do so to pass the [b:2t07o19j]Judiciary Bill[/b:2t07o19j] at the next meeting of the Representative Assembly so that work may begin on the next phase developing our judicial system. It is better to fix minor problems later than to delay the whole bill until everybody agrees about absolutely everything.
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I hope that this makes things easier to understand. If anybody has any queries about my proposals that are not already answered in the other threads about them, then I will do my best to answer them 