Taijitu
Government of Taijitu => The Ecclesia => Proposals and Discussion => Topic started by: Gulliver on January 04, 2016, 04:11:24 PM
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I think recent events have shown we really need some formal mechanism for interpreting the law and constitution, i.e. a judiciary. That said, I am unsure what shape it should take. I am wary of having justices who sit around most of the time doing nothing, only being called upon in the occasional exceptional case. But we also want people making decisions like this to be somewhat impartial and knowledgeable.
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I am unsure if impartiality is attainable but agree that some form of judicial system is necessary.
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You sure about a judiciary? The admins do a very good judge dredd deal.
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You sure about a judiciary? The admins do a very good judge dredd deal.
:thumbsup:
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I don't have a problem with appointing judges/justices/lawspeakers (or whatever we call them) that have little to do until a case appears. We could even give the justices some other more mundane duty (like keeping laws updated, or appointing clerks to do that for them because they are lazy and don't want to do it).
Alternately, we could come up with a mechanism by which the other branches can deal with the issue and not bother with a judiciary at all. Is there really a need to have one? What issues have come up that could not be adequately resolved by the rest of the government?
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You sure about a judiciary? The admins do a very good judge dredd deal.
I AM DA LAW!!!
But eh, I don't really see a need for it, myself. Just another branch of government for people to exploit and become entangled with the agendas of others as well as outside interests.
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I don't have a problem with appointing judges/justices/lawspeakers (or whatever we call them) that have little to do until a case appears. We could even give the justices some other more mundane duty (like keeping laws updated, or appointing clerks to do that for them because they are lazy and don't want to do it).
Alternately, we could come up with a mechanism by which the other branches can deal with the issue and not bother with a judiciary at all. Is there really a need to have one? What issues have come up that could not be adequately resolved by the rest of the government?
We've had Citizen-Mediator and it has never been used.
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The Citizen-Mediator was for inter personal disputes as I understood it, not criminal or constitutional ones.
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The Citizen-Mediator was for inter personal disputes as I understood it, not criminal or constitutional ones.
in the end they are all personal.
And our history of dealing with this crap is deplorable, there is no sense of justice, there has been things done for shts and giggles that all admins were fine with it. In the end they are personal.
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Having the same scholars responsible for archiving the law interpret it as well, as Wast suggests, could be workable. Perhaps it could be framed in such a way that people have the realistic expectation that this is not a full time position, but something they can be called upon to do in exceptional cases, like jury duty. Perhaps a reserve group of respected jurors considered knowledgeable about the law and reasonably level-headed? Though that then begs the question of how they would be selected.
EDIT: We could have lay judges (https://en.wikipedia.org/wiki/Lay_judge) appointed on a case-by-case basis, expanding on the Citizen-Mediator idea, though whether it's adversarial or inquisitional is an important question.
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I suggest having the Ecclesia serve as the judiciary should the need arise (think House of Lords serving as the top court in the UK until relatively recently). The Ecclesia could choose a "Chief Justice" from among its ranks for each case it hears.
This would fill the need for a judiciary without bloating the government.
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The Massachusetts General Court (https://en.wikipedia.org/wiki/Massachusetts_General_Court) also used to be a judicial court of appeals.
I can see it working with criminal cases, since you could require a super-majority to convict. For constitutional review however, if two sides claim different interpretations, how do you choose between the two? The only thing that guarantees an outcome either way is a majority, and allowing a simple majority to circumvent the constitution without having to amend it by a super-majority is a problem.
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The simplest course of action is to leave these matters to the Ecclesia and accept that there might be an intractable constitutional dispute. We can establish some rules for the Ecclesia handling criminal cases and leave it at that.
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I suppose one could require a two-thirds majority either way to decide a constitutional dispute, or a two-thirds majority to overturn a law or executive action. I do want there to be some mechanism for resolving such disputes, however, so that a rogue government official can be checked by clear, legal means rather than arbitrary founder or administrator intervention.
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In theory a Delegate or other official violating the constitution should be removed from office for doing so, which the Ecclesia can do.
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This is true, so that solves that problem. Do we care about the Ecclesia itself trying to do something unconstitutional? It could pass a law, for example, which contravenes the bill of rights by a simple majority.
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We could separate the role of constitutional court from the role of criminal justice, maybe?
Have a roster of people the Ecclesia trusts to make impartial and rational decisions as constitutional scholars, and randomly pick from them when a constitutional question is formally raised??
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We definitely should - I think the criminal issue is settled (by having the Ecclesia handle it). I like the idea of having a pool of legal 'scholars' that can be called upon, but is it a good idea to leave constitutional questions to random chance? That might be frustrating. Is it any better than just having a set panel of (potential) judges?
In the interest of getting something done, I'm inclined to just go with this idea and see how it turns out - to work out some of the details and build a proposal.
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I suppose we could just have the whole panel of scholars review every question, with unavailable scholars effectively abstaining.
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We could do that, but I would rather not have a large, variable-size panel reviewing cases (the pool of judges would have to be somewhat large because of availability, conflict of interest etc.). So I feel like I need to have concrete numbers to get a better sense of how this can work.
Perhaps something like 3 scholars to review a case, requiring two out of three votes [or unanimous agreement?] to resolve a question; chosen randomly from the pool of scholars (of which there would be at least 5) if more than the needed number volunteer.
Or if randomness is too much, have 5 scholars review the case and have those with a conflict of interest recuse themselves (hopefully leaving 3?).
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I'd prefer five scholars but otherwise say this is worthwhile to pursue.
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Would we permit preemptory challenges (https://en.wikipedia.org/wiki/Preemptory_challenge) for the selection of jurors?
If we're going to have scholars/lay judges/jurors, would it be appropriate to also use them for criminal cases (though convicting by a super-majority in the Ecclesia is also feasible)?
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Would we permit preemptory challenges (https://en.wikipedia.org/wiki/Preemptory_challenge) for the selection of jurors?
I'm personally against such but I imagine many would be in favor of this.
If we're going to have scholars/lay judges/jurors, would it be appropriate to also use them for criminal cases (though convicting by a super-majority in the Ecclesia is also feasible)?
I'd say it would be best to remove criminal cases from mob justice, so yes use the scholars for criminal cases as well should they arise.
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Peremptory challenges won't work with a small region, unless we allow maybe one per side (we'd need a very large pool of jurors).
I like having the Ecclesia convict by a supermajority in criminal trials - my preference would be to have scholars assembled to rule on a case as infrequently as possible.
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Peremptory challenges won't work with a small region, unless we allow maybe one per side (we'd need a very large pool of jurors).
I like having the Ecclesia convict by a supermajority in criminal trials - my preference would be to have scholars assembled to rule on a case as infrequently as possible.
I mean really how frequent are our criminal cases anyhow?
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Very infrequent, thankfully.
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That's true. My concern was that the judicial system would have to be a bit more complicated if it is to manage both criminal and constitutional challenges , but maybe that isn't a problem.
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Since to date the only constitutional conflicts we've had are with the executive, and as Eluvatar has pointed out there already exist measures for dealing with those, it may be more expedient to continue without judicial review of the legislature itself and focus on establishing a functional criminal code and procedures for the Ecclesia trying cases.
Some questions that immediately spring to mind for me are:
- How is the person responsible for conducting the flow of a trial selected?
- Is this an adversarial or an inquisitorial system?
- Can anyone make criminal charges or can only the government do so?
I'm unsure about the first one. For the second I feel adversarial is most appropriate, while for the third I am also unsure but leaning towards the government prosecuting. Someone with more experience in NationStates jurisprudence might have a better sense of these things.
As a final note, perhaps we should look into reestablishing the Taijitu Bar (the legal kind, not the kind that serves drinks) in lieu of the scholars proposal if we still feel we need some expertise on these matters for representation and adhering procedure.
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How is the person responsible for conducting the flow of a trial selected?[/list]
A simple vote would suffice, I would think? If no one wishes to do it than the Citizen-Initiator/Speaker could do it.
Is this an adversarial or an inquisitorial system?
My preference would be for an inquisitorial system.
Can anyone make criminal charges or can only the government do so?
I would support any citizen being able make criminal charges. There's no reason to suspect that every case would be heard. Some could be dismissed for lack of evidence/frivolity.