Special Commission on the Judiciary (bill as passed by RA)

[Ashcroft Burnham]

[quote="Beathan":136qzg1p]Ash --

Let's say I have nine cookies. I tell you that you can eat one or more of the first three and that you cannot eat any of the last three. What have I told you about the middle three? Nothing.

OK -- let's say I tell you "only eat one or more of the first three -- and do not eat any of the last three" -- what have I told you about the middle three. Nothing, except that you cannot eat them right now. Perhaps later, you can eat them, if something happens. Otherwise, it makes no sense to say you can't eat the last three. The middle three must be somehow different from the last three. The most reasonable thing to think is that they are not cookies you can eat now, and they are not cookies that you can never eat, so they must be cookies you maybe could eat at sometime if something happens.

This is how I see the silent gap between the SC's appellate jurisdiction under the Judiciary Act and the specifically prohibited appeals in the Judiciary Act. Some appeals (procedural appeals and default appeals when there is no appellate Court) are not expressly authorized by the Judiciary Act. They are also not expressly prohibited by the Judiciary Act. Therefore, they are contingently prohibited by the Judiciary Act, and the contingency is that the RA has to authorize them by a later Act if they are to be authorized. The RA has done so. Therfore, now they are authorized, and Constitutional.

The SC can now eat at least one or two of the middle cookies.

Beathan[/quote:136qzg1p]

I notice that you have now entirely stopped addressing my points about the explicit wording of the Act. Your biscuit metaphor tells us nothing about [i:136qzg1p]why[/i:136qzg1p] the precise langauge that I have outlined (and highlighted) above is correctly represented by that biscuit metaphor, rather than, for example, "You may only eat those biscuits that I say that you may eat. Without prejudice to the specificicity of the forgoing, you may not eat the last three biscuits. You may eat the first three".

[Beathan]

Ah Ash, but the Judiciary Act does not say, "You may only eat those biscuits that I say that you may eat. Without prejudice to the specificicity of the forgoing, you may not eat the last three biscuits. You may eat the first three". If you had, my position would not be justified by the Act.

Perhaps you should introduce a Bill to amend to Act as you describe. Until such a Bill is passed by the RA, the Judiciary Act does not say what you want it to say.

I also note, of my jurisdictional argument, that you assert that the power I am relying on is implied and therefore not expressed. This conflates two critically different kinds of implication. Some implications are logically implied by an expression. These are expressed along with the expression, and are inescapable. For instance, "I think" implies "I am." Other implications are not logically ordained. If my wife says with a particular tone, "You are wearing [i:2czk739g] that [/i:2czk739g] shirt" -she is implying that I have made a poor fashion choice. She is not just telling me something I already know -- which shirt I am wearing. She is expressing a personal preference that I do something other than I am doing, rather than expressing something necessarily true about the world.

This distinction is critical. We don't want our courts (or the SC) finding "soft" or contingent implications and changing the law as a matter of personal preference. However, surely we want our judges (and the SC) to have the logical and linguistic ability to see the necessary implications of things (of facts, of propositions) and to act and rule accordingly.

As a matter of law and ethics, ought necessarily implies can. We cannot tell the SC that it ought to resolve citizen disputes without necessarily implying, as a matter of logic, that it can. If the SC can, it has the power to. If it has the power to, the Judiciary Act let's it issue any orders, as a court, it deems reasonable and necessary to accomplish that end.

Beathan

[Oni Jiutai]

Fair enough. It was probably a fairly desperate lunge for common ground.

On to the syllogism!

[quote:24m8pm5v]The Judiciary Act gives the SC the authority "12. The Court of Scientific Council shall have the power to make such orders as is necessary for the exercise of the powers conferred upon it by this Constitution or any duly ratified Act of the Representative Assembly. "

One of the powers conferred upon the SC by the Constitution is to resolve "citizen disputes."[/quote:24m8pm5v]

I'm afraid I'm not yet convinced that that Article III goes beyond a description of the SC to granting them a power - particularly given that (a) the constitution goes on to describe the powers of the SC explicitly, under a section marked "Powers of the Scientific Council" and (b) makes other, again explicit, provisions for resolving disputes.

I also think that we hit problems in that, if the SC is sitting to resolve citizen disputes by making orders under Article III, Section 7, 12 then it is probably sitting as a court and so is restricted by the definition of its powers under Article III, Section 8 - which takes us full circle.

I suspect the counter argument to that is that the SC can sit to resolve disputes without sitting as a court. There might be merit in that line, but I think the language begins to creak a bit.

[Beathan]

Oni --

I agree that the Judiciary Act gets us into a lot of byzantine and circular logical problems. That is why I want to repeal the Act.

That said, I don't know how we can talk about what an institution is without talking about what it does. If the SC is, by definition, an institution that resolves citizen disputes, then surely it can resolve citizen disputes. If a mountainclimber is someone who climbs mountains, then surely mountains are climbable and mountainclimbers can climb them. To say otherwise is just to say, "mountainclimbers don't exist." However, as a matter of fact, the SC does exist -- so we don't get stuck with this counterfactual.

(Can anyone tell that in addition to a law degree I also have a degree in hard-core analytical philosophy? That probably, even more than my being a lawyer, makes me a difficult person.)

(As an aside, I am reminded of an old philosophy joke. "To be is to do" -- Plato. "To do is to be" -- Aristotle. "Do Be Do Be Do Be Do" -- Sinatra.)

Beathan

[Ashcroft Burnham]

[quote="Beathan":1lj5xofl]Ah Ash, but the Judiciary Act does not say, "You may only eat those biscuits that I say that you may eat. Without prejudice to the specificicity of the forgoing, you may not eat the last three biscuits. You may eat the first three". If you had, my position would not be justified by the Act.[/quote:1lj5xofl]

What we are debating is precisely whether it does hold that position. Your biscuit metaphor post merely asserted that it did not.

[quote:1lj5xofl]I also note, of my jurisdictional argument, that you assert that the power I am relying on is implied and therefore not expressed. This conflates two critically different kinds of implication. Some implications are logically implied by an expression. These are expressed along with the expression, and are inescapable. For instance, "I think" implies "I am." Other implications are not logically ordained. If my wife says with a particular tone, "You are wearing [i:1lj5xofl] that [/i:1lj5xofl] shirt" -she is implying that I have made a poor fashion choice. She is not just telling me something I already know -- which shirt I am wearing. She is expressing a personal preference that I do something other than I am doing, rather than expressing something necessarily true about the world.[/quote:1lj5xofl]

It is easier to think of your two meanings of "imply" by calling the first one "entail" instead. "I think" [i:1lj5xofl]entails[/i:1lj5xofl], rather than merely implies (in the lesser sense), "I am". "[url=http://www.tfd.com/entail:1lj5xofl]Entail[/url:1lj5xofl]" means, [i:1lj5xofl]inter alia[/i:1lj5xofl]:

[quote="The Free Dictionary":1lj5xofl]To have, impose, or require as a necessary accompaniment or consequence.[/quote:1lj5xofl]

The important word is "necessary". "I am" [i:1lj5xofl]necessarily[/i:1lj5xofl] follows from "I think": it is logically impossible for "I am" not to be the consequence of "I think".

"Imply", in the lesser sense, conversely, means, " To express or indicate indirectly". ([url=http://www.tfd.com/imply:1lj5xofl]The Free Dictionary[/url:1lj5xofl] also lists "imply" as a synonym of "entail", but it seems clear that you mean to disintangle "imply" as "entail" and "imply" as "to express or indicate directly"). "You are wearing [i:1lj5xofl] that [/i:1lj5xofl] shirt" does not mean that it is logically impossible that one has made a good fashion choice: it merely indirectly indicates that one has made a bad one.

Turning to the construction in question, you claim that "To resolve citizen disputes" implies "to resolve all citizen disputes". I do not agree that it does in [i:1lj5xofl]either[/i:1lj5xofl] sense (because implication by indirect expression requires examining the context, and the context is an Act that expressly provides for a professional judiciary that deals with all but a very limited number of citizen disputes), but, even if it did imply such a meaning by indirect indication, it certainly does not entail it. That the Council should have the power to resolve [i:1lj5xofl]all[/i:1lj5xofl] citizen disputes is not a logically necessary consequence of a description of the function as "to resolve citizen disputes", any more than the fact that a washing machine's function is to wash clothes entails a logically necessary consequence that a washing machine's function is to wash [i:1lj5xofl]all[/i:1lj5xofl] clothes (some clothes are too delicate, others need to be dry-cleaned. In our jurisdiction, most of our clothes are dry-cleaned by our new professional dry-cleaners called the Courts of Common Jurisdiction). That the functions of body X are to "resolve citizen disputes" does not logically preclude the proposition that there are some citizen disputes that body X may not resolve, just as that a the function of a washing machine is to wash clothes does not logically preclude the proposition that there are some clothes that a washing machine may not wash.

It is perfectly logical that a body one of whose functions is "to resolve citizen disputes" should have the power to resolve some disputes but not others. Therefore, when you write:

[quote:1lj5xofl]This distinction is critical. We don't want out courts finding implications and changing the law as a matter of personal preference. However, surely we want our judges (and the SC) to have the logical and linguistic ability to see the necessary implications of things (of facts, of propositions) and to act and rule accordingl,[/quote:1lj5xofl]

you miss the point, because it is [i:1lj5xofl]not[/i:1lj5xofl] a logical necessity of the description of the function of the Council that it has the power to resolve [i:1lj5xofl]all[/i:1lj5xofl] citizen disputes. Indeed, it is not a logical necessity that that description is anything more than a descriptive preamble that does not confer upon the Council any powers at all, merely explains what the body does. Upon what basis do you claim that [i:1lj5xofl]that[/i:1lj5xofl] is logically impossible?

[quote:1lj5xofl]As a matter of law and ethics, ought necessarily implies can. We cannot tell the SC that it ought to resolve citizen disputes without necessarily implying, as a matter of logic, that it can. If the SC can, it has the power to. If it has the power to, the Judiciary Act let's it issues any orders, as a court, it deems reasonable and necessary to accomplish that end.[/quote:1lj5xofl]

That argument would only make sense if I (and everyone else) were arguing that the Scientific Council had no power to resolve any citizen disptues at all. That is not so. The argument is that the Council does have the power to resolve citizen disputes: those expressly stipulated in the text of the constitution, being impeachment hearings and appeals on the specified limited grounds. Your point, therefore, aside from erecting another straw man, again begs the question of why it is that you claim that the passage "to resolve citizen disputes" logically precludes the conclusion that it may resolve some citizen disputes, and not others, those others being left to a different body, our professional judiciary.

[Ashcroft Burnham]

[quote="Beathan":1qn8dpdp]I agree that the Judiciary Act gets us into a lot of byzantine and circular logical problems. That is why I want to repeal the Act.[/quote:1qn8dpdp]

Your arguments use circular logic: if the Act is construed properly, there are no such problems.

[Beathan]

Ash --

I agree that by "necessarily implies" I mean "entails". That is, I mean follows as a matter of logical implication. So we understand each other.

That said, I am not saying that "resolve citizen disputes" entails "resolve all citizen disputes." Rather, I think it entails that the SC has the power to resolve some citizen dispute. From that, I note that this means the SC has this power. The Judiciary Act gives it wide authority, as a court, to issue orders in accord with its power. Therefore, my argument follows.

Could the SC restrict itself? Yes. Should it do so? No. Is it Constitutionally obligated to do so? No.

Perhaps, rather than "all citizen disputes" I should qualify the SC's power and duty as the power to resolve those disputes a citizen asks the SC to resolve -- and that it has the power, as a court, to do whatever it deems necessary and proper to do so. This still leads to my conclusion that the SC has concurrent trial court jurisdiction, with the Judiciary, over citizen disputes. However, this is good policy, not good logic.

The logic is:

The SC ought to resolve some citizen dispute.

This means, "There exists in some possible world some citizen dispute such that if that citizen dispute presented to the SC, the SC can and should resolve it as a matter of its Contitutional obligation."

Thus, the SC, by definition, can resolve some possible citizen dispute if that dispute is presented to it.

Thus, the SC has the power to resolve some citizen dispute, and this power is a Constitutional matter.

Under the Judiciary Act, if the SC has a Constitutional Power, it can, sitting as a court, issue any order necessary and appropriate to carry out the power.

Therefore, the SC, sitting as a court, can issue any order necessary and appropriate to decide the proper citizen dispute presented to it.

Thus, the SC, as a Court, can and should hear trials this citizen dispute if it is asked to do so by a citizen.

I have tried to find a logical flaw in this proof. I have not. Perhaps I a missing something. So far no one has shown me that I am.

However, I acknowledge that this logic does not tell us anything about the dispute -- or whether there are also disputes that the SC should not hear. This is a policy judgment. In this regard, I note only that the Constitution says that the SC has the "community service" obligation of resolving "citizen disputes" -- which implies that it has this obligation in general. In such case, as a policy matter, I think we can say that the SC ought to resolve any and all citizens disputes a citizens asks it to resolve.

Beathan

[Ashcroft Burnham]

[quote="Beathan":1vwregqr]I agree that by "necessarily implies" I mean "entails". That is, I mean follows as a matter of logical implication. So we understand each other.

That said, I am not saying that "resolve citizen disputes" entails "resolve all citizen disputes." Rather, I think it entails, has the power to resolve some citizen dispute. From that, I note that this means the SC has this power. The Judiciary Act gives it wide authority, as a court, to issue orders in accord with its power. Therefore, my argument follows.

Could the SC restrict itself? Yes. Should it do so? No. Is it Constitutionally obligated to do so? No.[/quote:1vwregqr]

I am not arguing that the Scientific Council has a choice as to whether to restrict itself, and it ought exercise that choice in favour of restricting itself. I am arguing that the constitution gives it no choice when it provides:

[quote:1vwregqr]1. The Scientific Council, when sitting as a court, may hear and determine an appeal from any superior Court of Common Jurisdiction (or any inferior Court of Common Jurisdiction if no superior Court of Common Jurisdiction will entertain an appeal on the matter), and either uphold or overturn the decision (or any part thereof) from which the appeal is made, but only on the grounds both that the Court of Common Jurisdiction from which the appeal is sought: –

(a) acted in the proceedings out of which the appeal arises outside its jurisdiction as conferred by the text of this Constitution; and

(b) that, by so doing, whether wholly or in part, incorrectly determined any issue in dispute between any parties to those proceedings (including any question of law necessary to resolve such a dispute).

2. Without prejudice to the specificity of the foregoing, the Scientific Council when sitting as a court shall not in any circumstances have the power to determine any appeal from any Court of Common Jurisdiction only on any or all of the following grounds: –

(a) that the Court of Common Jurisdiction reached the wrong conclusion on any question of fact;

(b) that the Court of Common Jurisdiction wrongly interpreted or applied the common law of the Confederation of Democratic Simulators (except the common law with respect to the jurisdiction of the Courts of Common Jurisdiction);

(c) that the Court of Common Jurisdiction wrongly interpreted or applied any duly ratified Act of the Representative Assembly (except where the Court of Common Jurisdiction expressly purports to disapply any Act of the Representative Assembly); or

(d) that the Court of Common Jurisdiction wrongly interpreted, applied, or disapplied any regulation (or similar) made by any person or body deriving its power to do so from the Representative Assembly, or any person or body who, in turn, derives her, his or its power to do so from the Representative Assembly,

nor shall any of those grounds have any bearing on the outcome of any appeal from any Court of Common Jurisdiction to the Court of Scientific Council.[/quote:1vwregqr]

[quote:1vwregqr]Perhaps, rather than "all citizen disputes" I should qualify the SC's power and duty as the power to resolve those disputes a citizen asks the SC to resolve -- and that it has the power, as a court, to do whatever it deems necessary and proper to do so. This still leads to my conclusion that the SC has concurrent trial court jurisdiction, with the Judiciary, over citizen disputes.[/quote:1vwregqr]

A power "To resolve those disputes that citizens ask it to resolve" is no more a logically necessary consequence of a body whose function is "to resolve citizen disputes" as is a power "to resolve all citizen disputes". Why should it be?

[Beathan]

Ash --

I was completing the logical analysis in my post as you wrote your response. I think I have addressed your issues.

Again, I note that the passage you quote is expressly subject to the SC's court power, whatever that court power is, so it tells us nothing about what the SC's court power is. To assert otherwise is to beg the question.

Beathan

[Ashcroft Burnham]

[quote="Beathan":xudjwcz1]Ash --

I was completing the logical analysis in my post as you wrote your response. I think I have addressed your issues.[/quote:xudjwcz1]

You would. That doesn't mean that you have.

[Ashcroft Burnham]

[quote="Beathan":2yvz5ziq]The logic is:

The SC ought to resolve some citizen dispute.

This means, "There exists in some possible world some citizen dispute such that if that citizen dispute presented to the SC, the SC can and should resolve it as a matter of its Contitutional obligation[/quote:2yvz5ziq]

[i:2yvz5ziq]Why[/i:2yvz5ziq] does it mean that, rather than "The Scientific Council has the power to resolve those disputes that the other parts of the constitution expressly state that it has the power to resolve", or even, "This is a description of what the Scientific Council is for: its powers are set out elsewhere"?

[Beathan]

Ash wrote [quote:1irgq672]Why does it mean that, rather than "The Scientific Council has the power to resolve those disputes that the other parts of the constitution expressly state that it has the power to resolve", or even, "This is a description of what the Scientific Council is for: its powers are set out elsewhere"?[/quote:1irgq672]

Because it doesn't say the first thing, and because "ought implies can" defeats the Ashcroftian answer to the second question.

Beathan

[Ashcroft Burnham]

[quote="Beathan":1bp452l1]Because it doesn't say the first thing, and because "ought implies can" defeats the Ashcroftian answer to the second question.[/quote:1bp452l1]

I have dealt with this point in detail above.