[b:sd4qr9sa][u:sd4qr9sa]On enforcability[/b:sd4qr9sa][/u:sd4qr9sa]
In my recent post [url=http://forums.neufreistadt.info/viewtop ... 5:sd4qr9sa]on civil soceity[/url:sd4qr9sa], I indicated that I should post further on enforcability. I do so here.
[b:sd4qr9sa]Enforcement of what?[/b:sd4qr9sa]
There are essentially two distinct kinds of enforcement that we need to be able to perform in order to function as a stable civil soceity. The first is enforcement against the individual, and the second is enforcement against the state.
Each of those two categories can be broken down into subcategories. Enforcement against the individual can be against the individual by other individuals, or by the state, or against citizens or non-citizens. Enforcement against the state can either be by individuals (and either citizens or non-citizen individuals), or other organs of state (or even, possibly, eventually, other states).
What is being enforced, of course, is our law, both public (as in constitutional law, administrative law: those elements of law that relate to the state) and private (as in contract law, land law, harassment, etc. - those elements of law that relate to relationships between individuals).
[b:sd4qr9sa]Why enforce?[/b:sd4qr9sa]
An essential part of a democratic civil soceity is the [i:sd4qr9sa]rule of law[/i:sd4qr9sa]. The rule of law is the principle that an abstract system of rules interpreted by impartial judges following standardised procedures in which all those affected have an opportunity to make representations is the ultimate determiner of how a government's coercive powers are used, rather than that determination being left to the absolute command of a person. That is what Aristotle meant when he wrote, "[i:sd4qr9sa]We do not permit a man to rule, but the law[/i:sd4qr9sa]".
But for the law to rule, it must have power to compel. Ideally, people would always obey the law for no other reason than that it is the law, quite aside from the question of enforcement, but, alas, people do not always behave that way (although people often [i:sd4qr9sa]do[/i:sd4qr9sa] obey the law even when they know that there is little or no chance of getting caught breaking it because they believe that it would be wrong to commit an unlawful act because it is unlawful - a cohesive civil society should help to foster that sort of attitude). Nevertheless, if people can flout the law with impunity, then, where, at least, there is any real possibility of people doing so, the law has no force. Since our aim, as discussed in the civil soceity thread, is to create a community in which law and order, and the rule of law, prevails, there must be ways of enforcing our laws, and preventing people from disobeying them. The lack of enforcement would result in [i:sd4qr9sa]instability[/i:sd4qr9sa], because the actions of a few choosing not to obey the law would have the effect of reducing the extent to which our institutions are capable of doing what they purport to do. It also frustrates whatever aim that the law that is being violated was intended to serve.
As far as enforcement against the state is concerned, there is a further important reason in favour of effective enforcement, and that is that, without it, the powers exercisable by the state machinary would effectively go unchecked by the legal process: the checks that our constitution puts in place on the accumulation of power would be ineffective, and power would be allowed to accumulate to dangerous levels in the hands of a few.
[b:sd4qr9sa]What is enforcement?[/b:sd4qr9sa]
Enforceability does not entail a system whereby it is absolutely impossible to break the law, nor even one in which every offender will be caught and punished at all. It means no more than that there is a very real deterrant and disincentive to those who might seek to do wrong from doing so. It may not be effective all the time, but, if it is effective at least some of the time, there is at least a degree of enforcability. Enforcability is a matter of degree, so it is possible to have more or less of it. In SecondLife, we have less enforcability than a real-world state, but more than a real-world social club, for instance. We cannot do anything like as severe as put people in prison, but we can do something more severe than merely eject people from a club.
Ultimately, enforceability is the capability to make at least some people who would not be inclined to obey the law obey it whether they like it or not, or, failing that, render the outcome that the law seeks to achieve without any input or co-operation from the rogue individual at all.
[b:sd4qr9sa]How to enforce?[/b:sd4qr9sa]
The answer is different in respect of enforcement against the state, as opposed to individuals, and against citizens, as opposed to non-citizens.
Against any individual except for the estate owner, we have the power of banishment. That applies to an avatar and not a human, and it is always possible to create alternative accounts. For non-citizens, the only disincentive to do this is the amount of time and effort that it takes to create a new account. That time and effort is not huge, but not wholly trivial. A casual griefer may well find it easier to go and grief somewhere else than repetatively create new accounts and be banned here. A non-citizen who has a real grudge against us might be able to come back repeatedly with different alternative accounts and cause problems, but, fortunately, we have not had that occurring yet. That is a problem, however, common to all of SecondLife, and does not pose a sufficient threat to stability by itself to render our systems pointless or unworkable, especially since the motivation for a person to be so persistent in relation to our relatively low-traffic and remote sims is likely to be lacking.
Against a citizen, who, at present at least, is a citizen by virtue of owning land in the CDS, there is another aspect to banishment: a person who is banished cannot make any use of any land that he or she holds in the CDS. Indeed, banishment will in many cases (except where very short) allow the CDS permanently to forfeit any land that the person holds in the CDS. Financially, that is not by itself a huge loss: a typical house in Neufreistadt costs about the same as a good lunch' to buy, and about the same as a cup of coffee to rent each month. Nonetheless, people come to our community and buy land for a reason. If a person is prepared to part with a given number of Linden dollars for a piece of land, that land must be worth [i:sd4qr9sa]more[/i:sd4qr9sa] to the person than the number of Linden dollars with which that person is parting, otherwise he or she would not part with the money, as there would be no incentive to do so. Preventing a person from continuing to have access to our community is capable of being quite a drastic step as far as that person is concerned, especially for people who have a great deal invested (whether financially, socially, culturally, or artistically) in the CDS. If one thinks how one would feel if one were told that one would never be allowed to participate in the CDS again, one might get an idea of how effective that the ultimate threat of banishment really is. People put a great deal of work into our community, and to banish a person from our community is at least capable of being most unpleasant for that person.
With franchulates, the principles are largely the same: a person who buys land does it for a reason, and because he or she thinks that the land will be worth more to her or him than the amount of money that he or she is prepared to pay for it. If one buys something, and then spends a great deal of time and effort making something of it, one has a strong incentive to keep what one has spent time and effort both choosing and then making one's own, and that is all without the added (potentially considerable) value that business goodwill brings.
The degree of enforcability will, of course, not be constant in every case. Some people, especially those who have not been here long, may have very little attachment to their land, especially if they have not spent a great deal of time customising it, and have little or no business goodwill attached to it. Some people, conversely, may be deeply invovled in the community, and have spent an enormous amount of time perfecting her or his land. Most people fall somewhere in between. Nevertheless, with the capability to banish people, and remove their land, we do have a significant degree of enforcability, even if it is not perfect.
Some people have suggested allowing people to be citizens without owning any land, but by depositing an amount in escrow (or a "bond") with a CDS registered bank, on the premise that enforcement will take place by a combination of banishment and denying the person in question access to the escrowed sum/bond. This problem has three difficulties: (1) money is always less valuable to a person than an asset that he or she has personalised and put time and effort into creating, as well as the potential for there to be highly valuable business goodwill attached to some peices of land; (2) the prospect of [i:sd4qr9sa]losing[/i:sd4qr9sa] the bond is so far from being truly adverse as to be very unlikely to discourage anybody from doing anything; and (3) allowing people to be citizens without acquiring land means that citizenship is not associated with a distinctive CDS territory, which is itself a valuable thing to promote, both in terms of enforcement specifically, and civil soceity generally.
Taking each in turn, as I have already explained, if a person pays L$1,000 for a plot of land (or anything else), it is because that plot of land (or anything else) is worth [i:sd4qr9sa]more[/i:sd4qr9sa] to her or him than keeping the L$1,000 is. If you were to pay L$1,000 for a piece of land, and then spend time setting it up exactly as you like, what would you prefer: to keep your land, or to lose your land, but get L$1,000 in return? Looking at it another way, if a person in a reasonably well-paid job (as many of the people in SL are) pays L$1,000 for a piece of land, and then spends a total of four or five hours working on the land to get it to her or his liking, the time value of that person's work on the land is likely vastly to exceed the purcahse price of that land, or its rental cost. It is a universally unpleasant experience to lose what one has spent time and effort creating, unpleasant enough that the prospect of it can act as an effective deterrant to breaking our laws.
Indeed, one of the arguments that has been put forward, purportedly in favour of allowing people to become citizens without holding land, is that allowing people to become citizens by depositing only a money escrow will encourage more people to become citizens. The assumption behind that argument has always been that people would be more willing to face the prospect of losing a money escrow than they would at the prospect of losing land. That, of course, is actually an argument [i:sd4qr9sa]against[/i:sd4qr9sa] allowing people to be citizens without holding land, as the underlying premise on which the argument is based entails that there is less enforcability when people stand to lose only money. One can look at it another way: suppose that you were emigrating to a foreign country, and, on arrival in customs, you were told that you could choose whether or not you coudl be sent to prison if you did something wrong, what would you choose? However, how would anybody like to live in a soceity in which a significant number of people were not able to be sent to prison, no matter how grave a crime that they committed?
The second point is quite simple - I have made it before, and nobody has ever found fault in it. It is that, if a citizen pays a bond to be held into escrow, then there is only one eventuality in which that citizen will see that bond again: if he or she leaves the CDS on good terms. However, very few citizens will join the CDS planning to leave it later. Most will see the bond as a joining fee that they never expect to see again. Whilst they are citizens, they are not getting any use out of the bond: it is held by a CDS bank somewhere and they cannot touch it. It is different with land, of course: the whole reason that a person pays to have land is because he or she is getting a benefit out of having it. If we can forfeit a person's land, we can take something away from a person from which he or she is constantly deriving a benefit. If we can only forfeit an escrow, we can only take away something that the person in all probabilty did not expect to get back, at least for the foreseeable future. A person or organisation might easily operate on the basis that he, she or it will act as he, she or it pleases, regardless of our laws, simultaneously enjoy the benefits of being a citizen/citizens while it lasts, and, if the wrongdoing goes undetected, continue indefinitely to be a citizen/citizens, or, if an adverse court order is made, ignore it, and carry on as if nothing had happened. A business trading on CDS territory, of course, would not be able to carry on as if nothing had happened if we can enforce by forfeiture and banishment because the business premises could be taken away. The regular customers would know that something was up. Losing a few thousand Linden dollars may well be nothing to a business. Losing business premises, even if they only cost a few thousand Linden dollars, can be significantly detrimental to operations.
On the third point, it is a good thing to have a distinctive CDS territory because it is a good thing to have a clearly defined geographical area in which we can guarantee (in so far as any government can guarantee it) that our laws will be observed, and that only those who have not been proven to have, or have admitted, committing serious violations of our laws will be permitted to enter. If one is doing business [i:sd4qr9sa]on CDS territory[/i:sd4qr9sa], one can be assured about the credentials of the business in a way in which one cannot if one is doing business with an organisation some of whose members are, and some of whose members may not be, citizens of the CDS on private land held exclusively by some of those individuals. In creating a civil soceity, and in promoting ourselves, it is a very great advantage to be able to claim in respect of as much land as possible, "This is CDS territory. Our law prevails here. Come to CDS territory if you want to be in a place that is run democratically, in which there is as much law and order as one could possibly have in SecondLife, and where the rule of law is upheld". We cannot do that merely by being a members' club, nor should we ever seek to lessen our ambition to become a nation, and turn it into the wholly inferior ambition to become a mere members' club with a couple of little islands for the members to play on.
Two further notes on enforcability against individuals. First, much has been written about the "landless citizen". It has been brought to my attention recently that there are two possible interpretations of this phrase. The first is as described above, a person who has no legal interest in any CDS land who is only a citizen by virtue of a bond held in a CDS bank. The second is quite different: it seems that some people refer to a "landless" person as a person who rents land from another private citizen, so, if A held land under the CDS, and rented that land out to B, C, and D, B, C, and D would be "landless citizens" according to that usage. The arguments that I have made above do not apply to that wider notion of landlessness. Whether a person owns land directly from the CDS, or rents it from another CDS citizen (provided that the land rented is CDS territory), the principle remains the same: if we ban the person, which we can do, he or she will not be able to access her or his land no matter what the landlord does, and the effect is the same. Indeed, if any compliance on the part of the landlord was needed, we could simply order the landlord to co-operate, on pain of banishment and forfeiture her or himself.
Secondly, it must always be borne in mind that forfeiture and banishment are [i:sd4qr9sa]ultimate[/i:sd4qr9sa], coercive punishments, and the threat of them could be used to enforce lesser punishments, such as payment of a fine - after all, the success of a legal system is often invresely proportionate to its willingness to use its most draconian punishment.
As regards enforcability against the state, in many respects, it is quite simple: the power of all offials other than the treasurer and estate owner are soeley dependant on the co-operation of others (principally, but not only, the treasurer and estate owner), and enforcement, therefore, of, for example, a legislative veto is in our system, like any other government in the world, merely by everybody not acting as if the legislation is in force when it is not. The courts, in particular, are important in this respect, which is why it is important to have an independent judiciary, and, in respect of the Courts of Common Jurisdiction's powers under the constitution, appeal to the Court of Scientific Council.
The other issue with enforcability agasint the state is enforcement against the treasurer or estate owner. As far as the perception of us by outsiders is concerned, this is the greatest problem, although, perhaps paradoxically, because Sudane has always been very reliable, and shows no signs of going mad or otherwise becoming corrupt, the actual liklihood of needing to enforce against the EO/treasurer is very low. Whilst, therefore, this is unlikely to be a practical problem for us at least as long as we have Sudane, there might come a day when Sudane is no longer able to devote the time to being a treasurer/EO, and, even if that does not happen, it is not good PR for us to be in the position of not being able, in the most unlikely event that the need should arise, to enforce against the treasurer/estate owner. Pelanor had some very interesting ideas about how to achieve this, which I hope that he will re-post here. As things stand at present, however, we must rely on the co-operation of the treasurer/estate owner in order to continue to function, and, whilst, because the overwhelming probability is that Sudane will continue to be loyal and dilligent in her duties, that is not a threat to stability, it is a PR issue (and potentially a real issue if Sudane is no longer able to continue in that post for any reason), and is worth addressing.
On enforcability against the state, the recent proposal to devolve estate ownership to local communities is seriously flawed, because it means that the only enforcement that the central CDS government will have over those local communities is relying on the co-operation of the EO in those local communities, whose loyalty is far more likley to lie locally than nationally (unlike a national EO as we presently have). So, if any conflict were to arise between a local community and the CDS on the national level, with a local EO, the local community would be able to win by default. The CDS would, in effect, become a members' club, and the rule of law would be virtually lost. The estate owner should be a person (such as Sudane), with the least possible motivation to fail to follow the orders of the government for political reasons.
Finally, on secession: some have suggested that it would be a good idea to allow franchulates to secede from the CDS, and take the franchulate land with them. This is a bad idea because it would enable a franchualte holder, for example, to secede in anticipation of an adverse result in litigation, and therefore enable her or him to retain land that would otherwise be forfeit. People should, of course, be free to [i:sd4qr9sa]leave[/i:sd4qr9sa] the CDS, as they are now, but that needs to be confined to being a process of [i:sd4qr9sa]emigration[/i:sd4qr9sa], rather than secession, whereby the people sell their CDS land, and, by so doing, render thsemelves no longer CDS citizens. The land will remain CDS territory, but can then be sold to other people interested in holding land in the CDS. Only if the land cannot be sold in that way, and financial conerns are pressing, should it then be sold out of the ownership of the CDS, for example, at a land auction. Allowing secession provides far too strong an incentive for fractionation, and we have had problems enough with fractionation as it is. We should certainly not incentivise a process which results in our territory getting smaller.
[b:sd4qr9sa]Conclusion[/b:sd4qr9sa]
Enforcability is key to a civil soceity that is inhabited by anybody in respect of whom there is at least a small but non-trivial chance will not obey its laws. That is almost certainly so for any society comprised of humans, so enforceability is needed for the CDS to function properly. I hope that I have explained why our present model of enforcement has the capability to work well, and why two other models that have been suggested recently are capable of rendering our enforcement impotent, and therefore severely undermining our capability to achieve our goal as genetor of civil society in SecondLife.
