On stability

[Ashcroft Burnham]

In my recent post [url=http://forums.neufreistadt.info/viewtop ... 2:979w422w]on civil soceity[/url:979w422w], I stated that I should post separately on the topic of stability; I do so here.

[b:979w422w]The nature of stability[/b:979w422w]

Before writing on the virtues of stability, one must first have an understanding of what stability is. The most basic concept of stability is the absence of change: one can say that a currency exchange rate is stable, for example, when its value compared to other currencies remains constant. Stability is also a concept of degrees: i.e., something can be more or less stable. A currency exchange rate, for example, can be said to be "stable" when it does fluctuate in comparison to other currencies, but where the fluctuation is not very great. Degrees of fluctuation can differ both in the amount of individual fluctuations, and also the total number of fluctuations ofer any given period: a large number of small changes together can have the same effect on stability as a single great change. So, relative stability is the absence of a great deal of change.

More than that, the concept can refer to (and I am using it in this sense to refer to) the absence of only certain kinds of change. The sorts of change to which I am referring here are changes to our basic constitutional structure, changes to the sorts of functions that our government seeks to perform, changes to the overall ethos of our soceity, and reductions in our ability to do what we purport to do.

One further refinement is needed: there is a difference between planned and unplanned change, and a further difference between incremental, evolutionary change that adds to the structures as they are now, in a way consistent with the current ethos, and change that is inconsistent with the present ethos, and replaces or removes existing structures. It is the latter types of change in each of the two above pairs to which I am referring when I refer here to stability. As ever, it is a matter of degree: some changes can slightly change the overall ethos, whilst adding a great deal to the structures, others can remove apparently a small amount from the structures, yet change the ethos a great deal.

Thus, when I refer to stability in this particular context, I mean the absence of a high degree of changes to our basic constitutional structure, changes to the sorts of functions that our government seeks to perform, changes to the overall ethos of our soceity, and reductions in our ability to do what we purport to do that are either unplanned or not evolutionary adaptations of existing ways of doing things. I am thus referring to social and political stability.

[b:979w422w]The virtues of stability[/b:979w422w]

The virtues of the sort of stability that I describe above are many. They include: (1) the capacity of a system to become refined, and therefore work better, over a long time by small, incremental changes being made to an overall structure that remains otherwise largely unchanged; (2) it being easier for people, whether citizens or not, to learn about the system, since there will be less information to take in if there are fewer radical changes; (3) the ability to plan for the future, and execute those plans in an orderly way to achieve the many things that only the orderly execution of careful plans for the future can acheive; (4) the fostering of a strong and cohesive soceity around the ethos that underpins the institutions of state; (5) the effective testing of the virtues of our existing institutions by a long-running test (we are, to some extent, at least, an experiment, after all, and one cannot learn very much from an experiment whose variables keep changing before the experiment is complete) (6) a higher degree of predictability in the operation of the mechanisms of state that makes it easier for people to work out what to do when interacting with our state or the things that affect it; and (7) a greater cause for others to have trust in the continuing integrity of our nation, and, in particular, trust that, if they, for example, enfranchulate with us, we will remain the same sort of organisation with which they enfranchulated, so that they do not have to entrust their assets to something that may change radically from what it was when they first joined. [i:979w422w]Edit[/i:979w422w]: another advantage of stability is that it enables people to focus their attention on things other than the government itself: after all, government is only of any use if it serves purposes not directly related to the institutions of government themselves. The more that people can concentrate on the things that government is there to do, rather than the government itself, the more successful that our government is.

That does not mean, of course, that radical change can never be justified. There can on occasions exist reasons that are so strong that the benefits of radical change outweigh all of the advantages of stability listed above. We should not be conservative for the sake of being conservative, nor radical for the sake of being radical: we should change everything that needs changing, and nothing that does not. However, the occasions on which the benefits of radical change will outweigh the detriments to instability that will be the consequence thereof will be rare: the benefits of stability are, generally, very great, and even a moderate advantage is often outweighed by the detriments of instability. Radical change needs radically strong reasons to support it.

[b:979w422w]How to acheive stability[/b:979w422w]

There are essentially three kinds of useful things that can be done to achieve stability: (1) create a culture of stability; (2) design political institutions to promote stability; and (3) be successful.

As to the first, that is perhaps the hardest to achieve: people can, ultimately, believe whatever they like about the values of stability, and nobody can force anybody to believe anything. Those who recognise the virtues of stability can, however, seek to educate and persuade those who do not, and our overall publicity can seek to attract predominently those sort of people who value stability over instability.

As to the second, our current institutions go a long way towards promiting stability - the Scientific Council and judiciary in partiuclar, and the current debate on increasing the entrenchment levels of certain parts of the constitution is a debate about increasing stability: entrenching at least the most important, fundamental parts of the constitution (requiring regular elections, permitting all to vote, providing for an independent, autonomous and authorotative judiciary, for legislative supremacy, for example) can be a powerful tool to promote stability. [i:979w422w]Edit[/i:979w422w]: another aspect to this means of achieving stability is to have effective enforcement, which ensures that our political structures do what they purport to do. I will post in greater depth on enforcement in due course.

As to the third, this is not a post about how to achieve success - I hope that we all already have a good idea about that, but, if we are successful, then the incentive for people to undermine our stability will be much reduced; why, after all, should people change a system that is working? One might take a note from real life that the most stable countries also tend to be the most economically successful.

[b:979w422w]Conclusion[/b:979w422w]

Overall, stability, in the sense that I have described above, is highly desirable and, although its virtues can, rarely, be outweighed by the virtues of specific changes, it takes radically strong reasons to justify radical change when the virtues of stability are, as outlined above, so great. The means outlined above for achieving stability will hopefully, if adopted, help the CDS to acheive what it has always sought to achieve: the bringing of civil soceity to those in SecondLife who want it.

[Beathan]

Ash --

I will respond to your post in favor of stability here.

To start, I agree with your definition of stability. [quote:1w83s7ff]Before writing on the virtues of stability, one must first have an understanding of what stability is. The most basic concept of stability is the absence of change: one can say that a currency exchange rate is stable, for example, when its value compared to other currencies remains constant. Stability is also a concept of degrees: i.e., something can be more or less stable.[/quote:1w83s7ff]

However, I think that definition can also fully describe mummification. I do not share your resistance to change, even radical change. If change is good (will likely have good consequences overall), why should we only undertake it in extreme and radical circumstances? I think that many other citizens are equally comfortable with change, even radical change, if the benefits are clearly perceived, even if the need is not critical. Both social democrats and Jeffersonian libertarians (two of our 4 parties) fit this description. Personally, I think that those who resist change until their backs are against the wall will be the first against the wall when the revolution comes.

That said, I do agree that [i:1w83s7ff]some[/i:1w83s7ff] stability is necessary, and I agree with your description of the benefits of stability. I only lament that you, and the RA, did not apply this analysis before passing the Judiciary Act.

You indicate that stability and the more generalized benefit of refinements come from [quote:1w83s7ff]1) the capacity of a system to become refined, and therefore work better, over a long time by small, incremental changes being made to an overall structure that remains otherwise largely unchanged.[/quote:1w83s7ff]

This was true before the passage of the Judiciary Act -- and should have been heeded. Instead of radically changing our Constitutional structure by eviscerating the role of the SC in our Constitutional order, we should have developed a process to incrementally improve the ability of the SC to serve as a proper judiciary.

[quote:1w83s7ff](2) it being easier for people, whether citizens or not, to learn about the system, since there will be less information to take in if there are fewer radical changes; [/quote:1w83s7ff]

The current debate about the Judiciary Act actually proves this point. I, and several other new citizens, joined the CDS based in large part on what we understood from reading the Constitution as it was posted on the website at the time we joined. Only thereafter, in my case, did I read the Judiciary Act -- and I was immediately appalled by its detail, unreadability, complexity, and process-orientation. Further, the Act has radically changed our Constitutional structure, apparently consolidating substantial power in the Judiciary (including the power to moderate these forums). This was an unexpected and nasty surprise to longtime citizens, as well as new citizens. Further, the Judiciary Act, by setting forth a description of what the CDS law is without mentioning the UDHR, has radically changed -- even destroyed -- the civil liberty structure of the CDS. I for one joined the CDS in large part because I understood, from these forums, that my investment in this community would be protected by the terms of the UDHR. I hope and pray that I was not wrong about that. I certainly did not ever agree to subordinate myself or sacrifice my rights to a legalistic kritocracy.

[quote:1w83s7ff](4) the fostering of a strong and cohesive soceity around the ethos that underpins the institutions of state;[/quote:1w83s7ff]

The Judiciary Act, especially when seen through the lens of recent debate, has certainly proven this point. The Judiciary Act was a radical change to the Constitutional order of the CDS -- and as a result, the society of the CDS has been polarized and driven apart into warring camps that reject each other's vision and ethos. The Judiciary Act reflects an ethos foreign to the one that previously existed in the CDS (legalism and judicial elitism and professionalism, as opposed to libertarian democracy and egalitarianism) -- and the inevitable backlash has resulted.

[quote:1w83s7ff]the effective testing of the virtues of our existing institutions by a long-running test (we are, to some extent, at least, an experiment, after all, and one cannot learn very much from an experiment whose variables keep changing before the experiment is complete)[/quote:1w83s7ff]

Again, this rationale has been repeatedly cited by proponents of the Judiciary Act to save the Judiciary Act. It has been claimed that we cannot properly reject the Judiciary Act until we give it a full and fair hearing -- a full and fair test. Further, after the test, if we find points of failure, we should incrementally improve the Judiciary, not reject it.

However, isn't sauce for the goose, sauce for the gander? Did we give the SC a full and fair hearing and test before we gutted its purpose and Constitutional role? If we found points of failure in the Ulrika trial, did we try to make narrow and incremental improvements aimed as saving the institution and improving the system? No -- we just rejected it, and turned our society upside down in the process. Where is the stability, or the virtue, in that?

Finally, you note [quote:1w83s7ff]another advantage of stability is that it enables people to focus their attention on things other than the government itself: after all, government is only of any use if it serves purposes not directly related to the institutions of government themselves. The more that people can concentrate on the things that government is there to do, rather than the government itself, the more successful that our government is. [/quote:1w83s7ff]

Again, it is almost universally lamented that our discussion and political and social life has been entirely absorbed by the division and debate about the Judiciary Act. This further indicates just how radical a change the Act was. The Simplicity Party -- and the DPU and Social Democrats -- have all tried to move the debate beyond the Judiciary Act, but we have been largely unsuccessful given the magnitude of the change the Judiciary Act represents and the magnitude of the problems caused by that change.

I think that it is ironic that this community embraced the Judiciary Act -- even recognizing it as a radical change -- due to the great comfort our citizens have with trying new and different things. However, I think that even strong proponents of radical politics recognize the risk of such radical change. If we are willing to make radical changes, we must be equally willing to undo those changes with equal speed if they prove to have been mistaken.

That is exactly the situation we are in. The Judiciary Act was a radical change. Now it is being defended by the very people who advocated it -- who are now arguing that getting back on track will be a radical change and radical changes are inherently bad. Radical changes are not inherently bad, but they are inherently dangerous -- and we must be willing to backpedal quickly if the danger emerges.

Beathan

[Flyingroc Chung]

Aren't the constitutional changes brought about by the JA some "high degree of changes to our basic constitutional structure"?

[michelmanen]

The JA was unanimously approved by the RA at the beginning of a new mandate, after extensive consultations and debate ...

.. .and certainly not at the tail end of a mandate, in the absence of an RA member, without any public consultation and debate whatsoever, in the middle of a hotly contested election campaign, when customarily the RA suspends its sittings and in no case adopts new legislation, let alone such far reaching modificati0ns to the Judiciary Act and the constitution itself. But customs, hoever well established, are by their nature not entrenched and can be ignored whenever convenient to those holding the reins of power..... So I guess we average citizens have no say in this matter and just have to accept and agree to whatever our four representatives in their wisodom decide to do -just as they are about to lay down the charge of their office and ask for a new mandate...

[Aliasi Stonebender]

[quote="michelmanen":3et73hvk]The JA was unanimously approved by the RA at the beginning of a new mandate, after extensive consultations and debate ...
[/quote:3et73hvk]

And shot down by the Scientific Council.

Twice.

This tells me the 'extensive debate' was not nearly as extensive as it should have been.

[Ashcroft Burnham]

[quote="Aliasi Stonebender":2r88eblz]And shot down by the Scientific Council.

Twice.

This tells me the 'extensive debate' was not nearly as extensive as it should have been.[/quote:2r88eblz]

It says nothing of the sort: the first time, the Scientific Council disapproved of the faction prohibition on membership of the PJSP, a wholly tangential part of the overall scheme of the Act (and a part that had been added to it comparatively recently), and the second time, it was vetoed because of one of Justice's badly worded amendments. That tells one nothing about the scheme of the act as a whole. You might remember that the Soothsayer Rules were also vetoed by the SC on their first pass - does that tell you the same thing about them, for that reason?

[Aliasi Stonebender]

[quote="Ashcroft Burnham":qfpxsuya]
It says nothing of the sort: the first time, the Scientific Council disapproved of the faction prohibition on membership of the PJSP, a wholly tangential part of the overall scheme of the Act (and a part that had been added to it comparatively recently), and the second time, it was vetoed because of one of Justice's badly worded amendments. That tells one nothing about the scheme of the act as a whole. You might remember that the Soothsayer Rules were also vetoed by the SC on their first pass - does that tell you the same thing about them, for that reason?[/quote:qfpxsuya]

No. Once can be a simple error; we are, after all, all amateurs in the matter of virtual-world government. Twice is more worrisome.

I suspect your declaration that the UDHR doesn't apply to the CDS would have counted for a third one, had you made it at the time.

[Ashcroft Burnham]

[quote="Aliasi Stonebender":jij7auoo]I suspect your declaration that the UDHR doesn't apply to the CDS would have counted for a third one, had you made it at the time.[/quote:jij7auoo]

Can you really not see the difference between "The UDHR doesn't apply" and "The UDHR isnt' a source of law because it was never meant to be"?

[Flyingroc Chung]

How should the CDS apply the UDHR if it is not a source of law?

[Ashcroft Burnham]

[quote="Flyingroc Chung":16n3g1wb]How should the CDS apply the UDHR if it is not a source of law?[/quote:16n3g1wb]

By making precise, specific laws (either by statute or the common law) that give effect to the rights briefly outlined in the UDHR, and in them deciding exactly where the balance lies in our particular case between the competing rights where they compete.

[Flyingroc Chung]

[quote="Ashcroft Burnham":2okwzktp]
By making precise, specific laws (either by statute or the common law) that give effect to the rights briefly outlined in the UDHR, and in them deciding exactly where the balance lies in our particular case between the competing rights where they compete.[/quote:2okwzktp]

If the UDHR applies via the common law, how is it not a source of law?

[Beathan]

[quote:e4dxn475]Flyingroc Chung wrote:
How should the CDS apply the UDHR if it is not a source of law?

By making precise, specific laws (either by statute or the common law) that give effect to the rights briefly outlined in the UDHR, and in them deciding exactly where the balance lies in our particular case between the competing rights where they compete.[/quote:e4dxn475]

Ash, how is it possible for the RA to pass statutes that implement the UDHR without exercising legislative judgment, interpreting the UDHR, which you have elsewhere argued against? Further, how can the CDS government fill the duty imposed on it by the preamable of the CDS Constitution, to protect and uphold the UDHR, if the means of doing so, on your account, does not exist yet? The duty imposed in the preamble does not say, "uphold the UDHR insofar as the UDHR is protected by otherwise applicable CDS laws" -- it says "uphold the UDHR." That is an end of the story.

I also not that, elsewhere, you claim that Gywn has stated that the UDHR is not a basis for law in the CDS. Where did she say this? All I have found from her indicates the contrary. For instance, as Aliasi points out, the SC vetoed the Judiciary Act because the draft did not comport with the UDHR. This indicates that Gwyn, and the SC, recognize that the UDHR has Constitutional force in the CDS by its incorporation by reference into the Constitution through the preamble. This position is, I think, the correct one -- as well as being the position I see in SC decisions.

If you disagree, please cite me to specific rulings of the SC, or specific statements of Gwyn, that support your position.

I also note that you have not addressed my substantive analysis of the JA under the principles you articulated in your post on stability. Are you going to defend the JA on these principles -- or will you leave the defense of the JA to the single-issue party, C.A.R.E., formed for that defense?

Beathan

[Prokofy]

The UDHR is used all the time by RL countries as a basis for RL law. Of course the language is brief and as a negotiated text, it is a compromise and countries are free to go *above* it. Going *below* it is not considered an option, however. After all, the context of UDHR is the whole set of human rights treaties which have more detailed language. Certain treaties or concepts will be irrelevant to a virtual world. Can there be torture in a virtual world? Yes, possibly, by incessant Banana Phone clips, but you cannot be detained and can always TP away or log off.

But what's not applicable in so much else of the UDHR? Take Art. 4, "No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms." Great! "in all its forms" can include allegedly "consensual" Gorean RP. Unless you mean to make a slavishly huge code book a la some civil law systems filled with pre-determined statutes to apply to every system, you need only general principles which you will apply in the courts, and the court decisions then become part of the body of law.

Given that Ashcroft himself is steeped in the common law tradition, I'm not understanding why so much of his writings here seem to be about advocating heavily pre-determined civil-law type statutes with excessive power imbued in magistrates in a magisterial system that doesn't appear to create open access for adversarial defense.

I always think countries should start with a Law on the Bar and have bar associations and free lawyers first, and they will naturally tend to serve their clients, for pay, be regulated by their own profession, and fight adversarial cases in the courts -- they can help reform an entire magisterial system from the bottom up. Where are the lawyers? Where's the Law on the Bar? Or is it all to be magistrates in FriesWithThat?

Or take Art. 10, "Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him." Art. 10 is violated each time someone flicks a ban switch on their property "for any reason or no reason". If you are going to have due process and play at government, don't just play at having court orders for seizing land; there ought to be court orders for depriving people of their Linden-given freedom of movement, too! And please, no lectures about private property when what happens is that even large continents with their common areas and stores and meeting places are barred at a drop of a hat.

To be sure, UDHR, written more than 50 years ago, doesn't fully meet the challenges of the modern world, and possibly even cyberpsace (how can everyone be "entitled" to an identity or a "race" in a world of anonymous, changing avatars?)

Yet Art. 19 (freedom of speech), Art. 20, 21 on freedom of assembly and elections and secret ballots and not being compelled to join a group -- these are all vital and relevant to SL surely.

Most important for SL purposes -- as there are many illiberal movements everywhere -- is Art. 30:

"Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein."

Already, Ashcroft is violating Art. 30 even as he feigns to concede some shaping role for UDHR. He's already talking about the need for "balancing" what works out "locally".

This is just a variation on the RL countries' arguments. There are always some to speak of special "Asian values." There's always "Russia's special path." There's always the U.S. "supreme superpower responsibility" or the French "force de frappe" or whatever it is -- everybody has a story for their own exceptionalism. The UDHR doesn't provide for exceptionalism. Art. 30 says no one can take any of these rights and trump others -- i.e. religious fanatics can't invoke freedom of religion to trump women's rights; free-speech extremists couldn't invoke Art. 19 to justify racist hate speech, etc.

Local ordnances in the U.S. as I've often explain in fact restrict the First Amendment for "time, place, and manner". But they don't restrict the content. Only a school or a place of employment could then restrict content.

When you invoke the UDHR, you are invoking universality and the rule of law and basic legal principles. You can easily have preambles to invoke these higher principles even as you seek to cope with a problem for Art. 17, "No one shall be arbitrarily deprived of his property" which is specific to SL, namely that if you don't seize the property of someone who has not paid you tier or rent, and offer it to the next person to pay immediately, you'll be unable to pay your own tier to LL.

[Ashcroft Burnham]

[quote="Flyingroc Chung":295t2lzf]If the UDHR applies via the common law, how is it not a source of law?[/quote:295t2lzf]

I don't think that you understand: it is not even clear what you mean by the UDHR "applying through" the common law. The point was that one would shape the common law in a way that happened to comply with the UDHR. One would not be able to argue in court, "The UDHR says this, therefore I must win", but one would be able to say, "Freedom of speech is desirable (incidentally, look at all the international treaties respecting it); what the other side are arguing is, essentially, for an unjustified restriction on freedom of speech, therefore that particular argument should not succeed". The judge would say, not, "The UDHR says [i:295t2lzf]this[/i:295t2lzf], therefore I have to give judgment for you", but, "The common law of the CDS values freedom of expression; in this case, what X is arguing is for a restriction on that freedom for which I can see no justification. I therefore find in favour of Y", or, indeed, "The common law of the CDS does indeed value freedom of expression, but, of course, such a freedom is not absolute. In this case, I am satisfied that the law is as Y argues it to be, for [i:295t2lzf]these[/i:295t2lzf] specific reasons".

[Ashcroft Burnham]

[quote="Beathan":2icrearf]Ash, how is it possible for the RA to pass statutes that implement the UDHR without exercising legislative judgment, interpreting the UDHR, which you have elsewhere argued against?[/quote:2icrearf]

No, I have elsewhere argued against the legislature interpreting law. The whole point that I am making is that the UDHR is not a source of law, but an important policy objective which the whole CDS is committed to implementing.

[quote:2icrearf]Further, how can the CDS government fill the duty imposed on it by the preamable of the CDS Constitution, to protect and uphold the UDHR, if the means of doing so, on your account, does not exist yet?[/quote:2icrearf]

The means of doing so do exist: the legislature can and does pass UDHR compliant legislation all the time (the SC would stop them if they tried to pass any non-compliant legislation); the courts can and will make UDHR-compliant common-law precedents; if the legislation disagrees that they are UDHR-compliant, it can pass a statute reversing the precedent to the extent that it is, in their view, so non-compliant.

[quote:2icrearf]The duty imposed in the preamble does not say, "uphold the UDHR insofar as the UDHR is protected by otherwise applicable CDS laws" -- it says "uphold the UDHR." That is an end of the story.[/quote:2icrearf]

Why do you think that upholding the UDHR entails treating the UDHR as legislation, rather than as a policy objective?

[quote:2icrearf]I also not that, elsewhere, you claim that Gywn has stated that the UDHR is not a basis for law in the CDS. [/quote:2icrearf]

"Basis of law" is not the same as "source of law". Gwyn tells me that she is planning to post on that topic soon, so you will have to wait.

[quote:2icrearf]This indicates that Gwyn, and the SC, recognize that the UDHR has Constitutional force in the CDS by its incorporation by reference into the Constitution through the preamble. This position is, I think, the correct one -- as well as being the position I see in SC decisions.[/quote:2icrearf]

The SC has the explicitly enumerated power in the constitution to veto Acts of the Representative Assembly for being UDHR non-compliant. As Gwyn has mentioned on previous posts in discussing the role of the SC, the SC has traditionally been a body that shapes policy. As far as its power to veto legislation for non-compliance with the UDHR is concerned, that is still the case.

[quote:2icrearf]I also note that you have not addressed my substantive analysis of the JA under the principles you articulated in your post on stability.[/quote:2icrearf]

That will come in time, although I notice that there are many posts of mine that you have failed to answer, too, such as the one in which I point out that building up rights through the common law rather than relying on a pre-written document is exactly what you advocated in relation to procedures on another thread, or the post in which I pointed out, when you were championing "testing" different procedures by having no clearly written rules of procedure was incapable of giving any of the procedures so tested a fair test.