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Post by Gwyneth Llewelyn »

Interesting that this was the only issue raised, and deeply discussed, [i:3zfmb4xz]after[/i:3zfmb4xz] the bill was passed; although Dianne raised the point that "we are making too many changes in such a short time", this was clearly stated as a personal opinion on what the pace of change should be.

In any case, I expect that the SC will discuss this issue of "apolitical" or "non-partisan" members of the Judiciary later today. In my mind it seems to be the issue that raised the most emotional discussions at this point.

There is always a tradition to fall back — a very simple mechanism that states that someone on the SC or the voting Guild members cannot run for the RA, and this mostly means that they can't be on the party's list that runs for office on the RA. Also, it means that if someone from the RA wants to move to the SC, or to a voting position in the Guild, they have to resign from the RA first.

This mechanism was never contested, although it has been slightly expanded to limit, for instance, SC members' participation in active politics (although not strictly required). My own example is a good one; I'm a member of the CSDF, although I was never listed for running for the RA, and never introduced a bill. Still, that didn't mean that I never voiced my opinion, either at the RA or at the many CSDF meetings. A counter-example is Diderot's; he was even more rigorous, as a SC member, never to affiliate with any party, and instead of debating his ideas publicly, he suggested "a new party, if someone would pick it up", as a thought experiment.

In either case, it's clear that SC members do have a political opinion, and are at least sympathisers of some factions or political interest groups. It's next to impossible to demand that they are holy angels, of immaculate spirit, and refrain to participate in any political discussion in Neufreistadt. Verily, this would even make things slightly dangerous — an SC member out of touch with the political life of Neufreistadt will hardly understand the requests and demands of the citizens. There is no "ivory tower" for the SC; they are active participants of the political life in Neufreistadt; still, that doesn't mean they're allowed to get elected for the RA while they hold an office in the SC!

Is this also a violation of the Universal Declaration of Human Rights? Well, if it is, it was never mentioned in our 2 years of history in Second Life. A simple statement in the Constitution tried to separate the scope of powers. Ashcroft rightfully mentioned that people are not limited to either join parties, run for elections, or be a member of the SC; they can't simply do both things at the same time. But it is a [i:3zfmb4xz]personal choice[/i:3zfmb4xz] they have to do: either to stay in one branch or the other. There are no limitations of personal freedoms here. That would be claiming that the covenants stating an upper limit on how much land you can own inside and outside city walls is a limitation on the unalienable right of owning property. It is no limitation, as most would agree — the covenants are also "social contracts" in the sense that your right to property is checked by other citizen's rights to property, and since we have limited resources (land is not infinite), a boundary to ownership has to be established. But no "rights" are violated here.

There are naturally lots of other examples, some more forced, some so natural that we forget them on everyday usage.

Thus, in my mind, requiring that members of the Judiciary do not participate actively in other branches is [i:3zfmb4xz]not[/i:3zfmb4xz] a violation of any personal rights, but it also does not immediately follow that power is going to be abused. As so many have already posted, if we [i:3zfmb4xz]strictly forbid[/i:3zfmb4xz] people of "having opinions", all we do is pushing those opinions underground — on personal emails, on private IMs, thus, in secret, where nobody will know about them. Because simply "forbidding people to have opinions" will only force those opinions to vanish from public scrutiny — not from people's minds and hearts.

Naturally enough, the public has the right to demand a [i:3zfmb4xz]fair[/i:3zfmb4xz] Judiciary, one that is as unbiased as humanly possible. For that to happen, all it needs is a systems of checks and balances, where people file their complaints about a Judge that is blatantly (or not-so-blatantly) following his [i:3zfmb4xz]personal[/i:3zfmb4xz] (political) opinions in judging cases, instead of applying the law neutrally, fairly, and equally. But that's why there is a Panel after all — and why Judges can be removed from offices if one can prove their "favouring" some citizens at the expense of others, just because they're politically aligned towards them.

As said, in my mind, this discussion is rather superfluous. A simple statement saying "19. There shall be a Public Judicial Scrutiny Panel consisting of between three and five members (not being members of, or affiliated with, any political faction in the Confederation of Democratic Simulators), who shall be appointed by popular election" shows the reasoning behind the whole system. The Panel has no powers over the Legislative Branch — only over the Judiciary, and over the SC, as overseers and a central point for accepting complaints, and acting on those complaints. It is a popularly elected body, but not through the party system. There is a separation of powers which is clearly defined through the Judiciary Act.

Thus, the focus is much more on [i:3zfmb4xz]an elected Panel[/i:3zfmb4xz] and much less about [i:3zfmb4xz]political independence[/i:3zfmb4xz] (in the sense of personal opinions).

Also, Dianne expressed the fear that the SC was having "its power removed". In a sense, I would argue that the reverse is actually true! What happened with this act is that finally there is a clear separation of the SC as "ultimate court of appeal", the SC as Constitutional Court, and the SC as the Court of Common Jurisdiction. It was too dangerous to have all the three on the shoulders of the same people. If this Act had not been passed, the SC would have to set up its own procedures instead — creating, so to speak, "internal procedures" for setting up its own courts (since it has the constitutionally granted power to "set its own internal procedures"), but without the need of any RA Acts, which seems to me rather undemocratic, and thus my reluctance to pursue it further. It would be a judiciary totally dependent on a hermetic body, without any checks and balances from the outside.

The current model is absolutely the reverse. It emanates from the RA and is an Act, with some amendments on the Constitution. It adds so many new checks and balances that it seems to be absolutely foolproof — perhaps to the extent that, in the limit, the whole system could grind to a halt if there is too much abuse and power manipulation. It has so many small issues to address that even a "small" Judiciary will be very hard to manipulate [i:3zfmb4xz]totally[/i:3zfmb4xz] by a group of malevolent citizens trying to "game" the Judiciary by appointing corrupt judges and protect them at the RA level; nay, there are many more opportunities for the public to protest and remove a Judge from office, and it will be next to impossible to keep a travesty of justice in place. But it also re-establishes the SC as an overseeing body, with proper procedures for its primary functions on the legal system: impeachment and court of last appeal. These procedures are now much clearer, and do not interfere with the SC's other primary function: acting as a Constitutional Court. In fact, reading the Act again, it even allows Judges to sit as SC members, unless there is a conflict of interest, and it's clearly stated when this is the case. But the RA does not "lose power" to the Judiciary Branch; in fact, it can even replace the Panel in some cases, and of course it gets a new power of impeachment over any Judge or the Chair of the Judiciary Commission.

So, let's go back to the issue here. Let's imagine that Judge Dredd, our infamous and corrupt member of the Judiciary, is able to convince his party to put him in power. By bribing some members of the Panel, he is validated as a judge, then appointed by the Judiciary Comission to hold his Court. Now someone from the public gets evidence that Judge Dredd is indeed a party member (although not openly so, since all meetings of that specific party are done in secret on the Preview Grid, and communication between party members is mostly conducted on encrypted emails). The public appeals to the Panel to get this Judge removed from office; but, of course, bribery will make the Panel to shrug this off, and eventually, Judge Dredd will move a process against the citizen who raised these "charges", and bribes the Chief Judge to get a "friendly" judge to be appointed to that specific case. At this point, the citizen is scared. But he has so many options left!
[list:3zfmb4xz][*:3zfmb4xz]he can appeal to the RA, and hopefully get them to approve on a majority vote to start impeachment procedures against Judge Dredd;[/*:m:3zfmb4xz]
[*:3zfmb4xz]if Judge Dredd has been appointed by the majority party, this will fail, so the citizen goes to the SC next, which also has the power to commence impeachment powers[/*:m:3zfmb4xz]
[*:3zfmb4xz]if that fails because the SC is too biased (imagine: Judge Dredd could be a member of the SC, and "persuade" his fellow Chairs of the SC that this appeal is "ridiculous"), the citizen still has a choice left: he can start a popular movement to get elected to the Panel (or get a group of people to get elected to the Panel), by publicly stating how corrupt this Panel is and asking the citizens, by public vote, to get a new Panel elected, one not affiliated with Judge Dredd's party, and very likely prone to initiate investigations against Judge Dredd[/*:m:3zfmb4xz][/list:u:3zfmb4xz]
So the worst case scenario is having to wait 6 months (one term) until the next Panel is elected!

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Post by Chicago Kipling »

Fine words have been said that I need not repeat. I have no problem with the requirements listed. Free association and abstaining from certain freedoms so that, as much as possible, impartiality is preserved are not mutual exclusive propositions.

As I have communicated to a member of the Scientific Counsel, I would be happy to be considered for the public judiciary scrutiny panel. Please consider this my formal request. I have left the faction I was part with knowledge of the faction head to honor the bill that our assembly passed, knowing that I may or may not be chosen for the panel.

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Post by Rudy Ruml »

I have followed the arguments here with great interest. Some clearly desire to impose an abstract rule on who should be eligible for election to the Public Judiciary Scrutiny Panel (whoever selected this name should get two demerits). Among the 40-60 members of the city, among whom the most active and important are well known, the criteria for this office should be up to the voters. That is, in deciding whom to vote for, the voters presumably will take into account the political and faction activity of those nominated, as well as any other characteristics they deem relevant.

There is a tendency here interpose abstract rules between the voter and nominee. If one is bothered by the possibility that some with certain "undesirable" characteristics will be elected to this panel, or any other office, then we can further knowledgeable voting by having disclosure requirements for nominees

Sigh.

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Post by Ashcroft Burnham »

[quote="Publius Crabgrass":22qub81i]There is a difference, I think, between apolitical and nonpartisan. I believe the intent of the framers of this bill is to remove the PSJP from the political winds of factions, an intent which would not be met if it were mandated that all factions were represented on the PSJP.[/quote:22qub81i]

Indeed.

[quote:22qub81i]The intent to remove the PSJP from the ill winds of partisan politics, however, might be achieved if faction members (as well as the factionless) could stand for office to the PSJP but not [b:22qub81i]as[/b:22qub81i] members of a faction. Thus, at election time we would have a faction-based election to the RA and a non-faction-based election to the PSJP, but ALL could fully participate in both elections.[/quote:22qub81i]

How exactly do you envisage that working, given the explanation of the particular evil of faction membership amongst members of the PJSP that I have addressed above?

[quote:22qub81i]If the SC simply vetoes (or is "rewrites" the appropriate term?) that part of the bill that prohibits members of factions from serving on the PSJP, that puts the issue squarely back in the hands of the legislature to fix it.[/quote:22qub81i]

In order to reach the point of vetoing that part of the bill, however, it would have to be satisfied not merely that it is undesirable (that, after all, is the job of the Representative Assembly alone), but that it imposes a restriction on the freedom of expression so great, and so unjustified, as to render it a violation of citizens' human rights. That is a far higher threshold. For the reasons that I have already given, that cannot be said of it.

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Post by Ashcroft Burnham »

[quote="Aliasi Stonebender":4xic88zp]No.

Perhaps I should back that up, hm?

Ashcroft, the entire problem with your point of view is it seems based around "this is how people should act, how can we force them to do so?" I would prefer a law system based around "This is how people DO act, how can we mitigate the damage?"[/quote:4xic88zp]

Why do you think that the question is anything other than "by what rules ought people live such that the greatest benefit is secured for all"?

[quote:4xic88zp]You seem to pretend...[/quote:4xic88zp]

Are you [i:4xic88zp]seriously[/i:4xic88zp] accusing me of intellectual dishonesty? If so, upon what basis?

[quote:4xic88zp]...that asking people to not publicly be a member of a faction will keep them independent and not influenced by a faction. This is, of course, utterly impossible. What would prevent me from simply leaving the DPU group while pushing a DPU-friendly agenda at every opportunity? Far better to keep such biases in the open![/quote:4xic88zp]

You again miss the point: I have explained above exactly how political [i:4xic88zp]alliegence[/i:4xic88zp] is, and mere political [i:4xic88zp]opinion[/i:4xic88zp] is not, a dangerous force in relation to the selection of the judiciary. I notice that you pointedly have failed even to attempt to find any flaws in that argument, and failed to answer any of my specific qusetions addressed to you about your arguments, and failed even to attempt to provide any easons for so failing. If you cannot find any flaw in that specific argument, how can your argument be anything other than baseless?

[quote:4xic88zp]Edit: Additionally... it occurs to me you're saying the [i:4xic88zp]Universial Declaration of Human Rights[/i:4xic88zp] doesn't belong in any civilized nation. Sure you cannot actually mean this?[/quote:4xic88zp]

No, I am stating, as I have written many times over now, and as people seem to have ignored equally many times without having given any reasons for so ignoring, that the general (and extremely vague) right to freedom of expression in the UNHDR is not absolute (a point that I notice that you have specifically failed to address - why did you not answer my question about whether you would be happy for your doctor to tell the world about your ailments in the name of freedom of expression?), but qualified, and one of the things by which it can be qualified is (as is expressly stated in the text of the slightly more detailed European Convention on Human Rights and Fundamental Freedoms) is "preserving the authority and independence of the judiciary".

Furthermore, I made the point (which you have again ingored repeatedly) that, since the UNHDR does not provide that everybody shall have the right to sit on the Public Judicary Scrutiny Panel, and that nobody is forced to sit on the Public Judiciary Scrutiny Panel, nobody's freedom of expression is being limited by being offered the [i:4xic88zp]extra[/i:4xic88zp] choice of sitting on a panel if, and only if, they are not members of factions. You have [i:4xic88zp]also[/i:4xic88zp] pointedly failed to answer my question about why prohibiting faction members from joining the PJSP is any greater restriction on the freedom of expression than is already provided for in our constitution by the prohibition of members of one faction joining another.

The point is that there is no conflict between any [i:4xic88zp]genuine[/i:4xic88zp] principle of freedom of expression (or democratic participation) and the composition requirements for the PJSP, as I have explained many times, and as you have not found any reasons to fault. You seemed to state above that some unspecifcied founding principle of Neualtenburg required that faction members be allowed to sit on the PJSP. Any such principle would, if any such principle really exists at all, be wholly wrong, and not a viable part of any civilised soceity.

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Re: a few braincells collided, and I had a thought.

Post by Ashcroft Burnham »

[quote="Nightwind Leonov":iec9rgsm]as far as I can tell, the main problem we have is that the wording of this bill says there can be no partisan [party affiliated] judge appointed to this position. We run into a problem that finding such a person is nigh impossible, as even if that person doesn't ascribe to one party or another (such as myself; I'm currently "unaffiliated" as it were), I still have my own views and takes on things, which would lead me to be naturally biased.[/quote:iec9rgsm]

You have misread the Act, I am afraid: it merely provides that members and affiliates of political factions may not sit on the Public Judiciary Scrutiny Panel. It prohibits those with political [i:iec9rgsm]affiliation[/i:iec9rgsm], rather than merely those with political [i:iec9rgsm]opinions[/i:iec9rgsm] sitting on the panel, for all the reasons that I have given already many times and in which nobody seems to have been able to find any logical flaw.

[quote:iec9rgsm]By citing the UN charter, yes, it does say to have unbiased judges. But, if we can take it more into context, it's not saying "the judge can't be part of one party or another" but more or less "the judge can't be influenced by one country/faction or another" as that would be the more pressing problem in the international community.[/quote:iec9rgsm]

What, exactly, is your reasoning for that interpretation?

[quote:iec9rgsm]Therefore, I do reccomend this bill just get scrapped, because it's phrasing is far too confusing, and way too harsh.[/quote:iec9rgsm]

The Scientific Council does not have the power to veto an Act of the Representative assembly on the ground that it is "confusing", or that it is "harsh", only on the basis that it is unconstituional. For reasons that I have already given, it is none of the three.

[quote:iec9rgsm]If you want to keep it, then you -literally- need to find new people to fill these honored positions... non citizens, I mean. and that's not only stupid to do, but dangerous to do.[/quote:iec9rgsm]

This all rests upon the misapprehension of what is prohibited that I corrected above. [i:iec9rgsm]Affiliation[/i:iec9rgsm] is not the same as mere [i:iec9rgsm]support[/i:iec9rgsm].

[quote:iec9rgsm]On another random thought tangent... you can't throw out the defining, origional bills and principles this society was founded on.[/quote:iec9rgsm]

That is, of course, supposing that Aliasi was right that a founding principle that faction members be prohibited from joining more than one faction, but not from the Public Judiciary Scrutiny Panel. No reasoning was advanced in favour of that proposition. However, even if it was, it cannot be right to say that no founding principle, however evil, ought ever be excised for any reason. Suppose that it was a founding principle that only people of a certain race may be elected to public office - would you say that that principle must be retained because, and only because, it is a founding principle?

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Post by Ashcroft Burnham »

[quote="Rudy Ruml":3vbdumfx]I have followed the arguments here with great interest. Some clearly desire to impose an abstract rule on who should be eligible for election to the Public Judiciary Scrutiny Panel (whoever selected this name should get two demerits).[/quote:3vbdumfx]

What is wrong with the name? It is a public panel that exercises scrutiny over the judiciary. What else would one call it? The Flower Club?

[quote:3vbdumfx]Among the 40-60 members of the city, among whom the most active and important are well known, the criteria for this office should be up to the voters. That is, in deciding whom to vote for, the voters presumably will take into account the political and faction activity of those nominated, as well as any other characteristics they deem relevant.

There is a tendency here interpose abstract rules between the voter and nominee. If one is bothered by the possibility that some with certain "undesirable" characteristics will be elected to this panel, or any other office, then we can further knowledgeable voting by having disclosure requirements for nominees

Sigh.[/quote:3vbdumfx]

What do you have against abstract rules, in the abstract? In any event, of course, none of this is a basis upon which the Scientific Council has the power to exercise its veto, as none of this goes to whether or not the provision is unconstitutional.

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Post by Ashcroft Burnham »

Incidentally, thank you to Gwyneth for a very detailed and well-reasoned analysis on the point, and also to Chicago for expressing an interest in standing. I do hope that others will stand, too (Rudy included, despite his feelings on the faction criterion): we need to show the sceptics of SecondLife that we are a viable nation.

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Post by Aliasi Stonebender »

[quote="Gwyneth Llewelyn":1j4s0zdk]
[*]if that fails because the SC is too biased (imagine: Judge Dredd could be a member of the SC, and "persuade" his fellow Chairs of the SC that this appeal is "ridiculous"), the citizen still has a choice left: he can start a popular movement to get elected to the Panel (or get a group of people to get elected to the Panel), by publicly stating how corrupt this Panel is and asking the citizens, by public vote, to get a new Panel elected, one not affiliated with Judge Dredd's party, and very likely prone to initiate investigations against Judge Dredd[/list]
So the worst case scenario is having to wait 6 months (one term) until the next Panel is elected![/quote:1j4s0zdk]

Actually, Gwyn, the [i:1j4s0zdk]worst[/i:1j4s0zdk] case scenario is the citizen says "Fuck this shit" and leaves. Remember, unlike real-world governments, our citizens can tell us to go to hell with very little trouble. ;)

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Post by Publius Crabgrass »

Exactly right, Aliasi. SL [i:3v84ne3x]is [/i:3v84ne3x]different and we can't simply transplant RL institutions here without considering these differences. That's why we need to be especially careful to select judges who are sensitive and responsive to the needs of our citizens. Judicial independence is a worthy aim, but if those independent judges alienate our citizenry, we are sunk.

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Post by Ranma Tardis »

I still do not see the need for this process. It reminds me of a beautiful bridge that was built on Okinawa. It is fine and looks like it can carry a lot of traffic safety. Only problem is that there are no roads on either side of the bridge. It stands by itself with the nearest road over 1km away.
It is true we are expanding but unlike real life I favor simple in these matters. The worse any citizen can expect to receive is to be banished and perhaps a review authority should be made some day.
I call upon the RA to table this bill. We need to come up with a better plan that will truly serves the needs of the community and not idealistic dreams. In second life simple is better. I do not believe that thoughtful discussion is a waste of time. It is foolish to race ahead to make something without considering all of the possibilities. Second Life is not like Real Life in so many ways. It took centuries to develop common law, two months is just not enough time. I suggest we have a convention to develop our new Judiciary plan. Something this important needs to have the input of the entire community instead of a few.

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Post by Claude Desmoulins »

I have yet to read all of this thread as I've been away in RL for a day or two.

It occurs to me that the differences of opinion over this provision may be rooted cultural understandings of party membership. In the US, the is little party loyalty. Many members of a party feel quite free to cross party lines and vote for members of the other party in individual contests. Even legislators vote against their party lines frequently.

My impression is that parliamentary systems differ . Any member of the legislature who breaks ranks is punished. Perhaps party loyalty among citizen members is higher.

I guess what I'm wondering here is this. Does Ashcroft, when he imagines a faction member on the PJSP, believe that the nature of faction membership is such that any member of a faction will be so loyal and otherwise linked to their faction that they cannot help but be partisan? And do I, on the other hand, see faction membership as a sufficiently loose association that mere membership in a faction does not carry a significant risk of corrupting the PJSP?

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Post by Chicago Kipling »

I think you're shifting the conversation in a healthy new direction here. I hope more people center on your thoughts, Claude.

A few personal thoughts...

[b:2azgt55j]Objections based on legal complexity[/b:2azgt55j] are to be respected, but they involve what should probably be a different discussion about the passing of the entire bill. Obviously the elected representatives felt this was not the case in general if if passed without opposition (Will we soon see the birth of a faction that focuses primarily on reducing bureaucracy?)

[b:2azgt55j]Those who address this particular point of the bill[/b:2azgt55j] though seem to be more concerned that we keep too many people from a part of civil service or keep people from being represented by officials that share most of their views.

As must be obvious by now, I don't feel that either of the later two concerns are adequate to derail the bill. [b:2azgt55j]Will so many people feel disenfranchised that they leave and we crumble?[/b:2azgt55j] I have a hard time seeing that. Right now if a few key people left we would be in trouble no doubt. We continue to find interest in our project though. A good number of theses people from what I gather are not faction members. They don't share the passion many of you have for political debate and would much rather focus on accomplishing more immediate tasks. I tend to think this opens the doors for people like me to serve the city without emphasizing factions that hold only peripheral value for me.

[b:2azgt55j]Will people go unrepresented?[/b:2azgt55j] Well, that falls to many of you. Many in the RA make a particular point to gather voices from throughout the city. Others make a point to read these discussions where any person may comment. The Democrat offers a potential platform for initiating discussion as does other private journalism. If selected as a member of the panel, I believe I'll still be able to participate in these things and express opinions. I simply won't be able to directly control the course of a faction. In my mind, that is a very small sacrifice for the peace of mind of new citizens who may not understand the nuance of those who are part of a faction but not swayed by it.

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Post by Aliasi Stonebender »

[quote="Chicago Kipling":290jepv8] (Will we soon see the birth of a faction that focuses primarily on reducing bureaucracy?)
[/quote:290jepv8]

I was, at one time, under the impression that this was the DPU.

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Post by Ashcroft Burnham »

[quote="Claude Desmoulins":2jp0a1hq]I have yet to read all of this thread as I've been away in RL for a day or two.

It occurs to me that the differences of opinion over this provision may be rooted cultural understandings of party membership. In the US, the is little party loyalty. Many members of a party feel quite free to cross party lines and vote for members of the other party in individual contests. Even legislators vote against their party lines frequently.

My impression is that parliamentary systems differ . Any member of the legislature who breaks ranks is punished. Perhaps party loyalty among citizen members is higher.

I guess what I'm wondering here is this. Does Ashcroft, when he imagines a faction member on the PJSP, believe that the nature of faction membership is such that any member of a faction will be so loyal and otherwise linked to their faction that they cannot help but be partisan?[/quote:2jp0a1hq]

Yes, precisely. That is exactly the point that I was making.

[quote:2jp0a1hq] And do I, on the other hand, see faction membership as a sufficiently loose association that mere membership in a faction does not carry a significant risk of corrupting the PJSP?[/quote:2jp0a1hq]

The problem, though, is this: SecondLife draws people from all around the world, from all cultures. It may well be that the prevailing culture in the US is for loose political parties that are not dominated by loyalty in return for reward (unlike political parties in the UK, where the executive effectively controls the legislature by that means, albeit subject to the occasional rebellion on particularly controversial issues), but all that it takes is one successful faction in which loyalty [i:2jp0a1hq]is[/i:2jp0a1hq] a dominating force, and judicial independence can be critically undermined.

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