Quote from: Miestră Schivă, UrN on March 24, 2021, 05:15:01 PM

Quote from: Sir Alexandreu Davinescu on March 24, 2021, 04:46:34 PM
I think that one of the two of us is confused about stare decisis. My understanding is that this is a principle which establishes that precedent should largely govern the decisions of a court. If courts have followed and established principal or rule for deciding a particular set of matters, a judge should continue to do so absent compelling reason. I have never understood it to mean that a judge could, for example, declare new crimes on the basis of existing principles.

Quote from: Wikipedia on "Common Law"The first definition of "common law" given in Black's Law Dictionary, 10th edition, 2014, is "The body of law derived from judicial decisions, rather than from statutes or constitutions... arising from the traditional and inherent authority of courts to define what the law is, even in the absence of an underlying statute or regulation."

I think that some of what you clipped out when quoting is actually helpful :)

QuoteThis first connotation can be further differentiated into:

(a) general common law
arising from the traditional and inherent authority of courts to define what the law is, even in the absence of an underlying statute or regulation. Examples include most criminal law and procedural law before the 20th century, and even today, most contract law and the law of torts.
(b) interstitial common law
court decisions that analyze, interpret and determine the fine boundaries and distinctions in law promulgated by other bodies. This body of common law, sometimes called "interstitial common law", includes judicial interpretation of the Constitution, of legislative statutes, and of agency regulations, and the application of law to specific facts.

Quote from: Miestră Schivă, UrN on March 24, 2021, 05:15:01 PM
Stare decisis literally historically has meant that judges make law, including new crimes, until overruled by statute.

Would you please provide an example of a Talossa judge inventing a new crime and punishing someone for it?  I am always eager to learn.

Beyond that, to be clear, I think you are wrong.  As far as I understand it, stare decisis is a legal principle which states only that it should generally be the policy of a judge to abide by precedent in interpreting the law.  Believing in the principle of stare decisis does not mean that I think it is a good idea for a judge to be able to invent new laws from whole cloth, and the specific language and extremely long-lasting policy of the Talossan judiciary has never interpreted it that way.  There's some wiggle room here, since even the idea of what is "law" is kind of fuzzy.  I mean, the courts have traditionally given enormous deference to participants in any proceeding in terms of scheduling, and an expectation of long deadlines and great leniency has become so enshrined that it could be argued that it represents a kind of law which supplements the written law, eg that interstitial common law which makes it possible for statutes to be open to some flexible interpretation.  What is a "reasonable chance of obtaining a conviction?"  Well, the corts fill in the details there, and other corts are generally expected to abide by previous decisions (eg stare decesis).  Common law!

But barring one exception that you personally found outrageous, judges have not invented new laws in Talossa, but rather interpreted them.  This is because the Talossan legal tradition is overwhelmingly influenced by the American tradition.  If you glance over the rulings handed down, you will find that almost every decision is guided by an attempt to interpret the existing statutory or Organic law whenever possible, making rules and sorting through ambiguities with the goal of getting it exactly clear what the law might be.

It is the duty of every component of a good legal system, whenever possible, to make the law clear to citizens.  Whenever the legality of an action is unclear, that's a failing of the system.  Often it's unavoidable, since no legislator or judge can anticipate every permutation of every situation.  But the goal should always be clarity.  No citizen should wonder whether or not something is a crime.

Quote from: Miestră Schivă, UrN on March 24, 2021, 04:36:40 PM
And Cresti wrote 35RZ21, which actually effectively did the job of incorporating Wisconsin law into our law, because 31RZ14 was ineffective due to KR1's legal ignorance (there is no "civil code" of Wisconsin).

Speaking of legal ignorance, the cry of "we must know exactly what our laws are" is incompatible with the principles of the Common Law, of which I know that the Regent is a supporter because he insists on stare decisis. Stare decisis is the principle of "judge-made law", that the law is as much in old Cort decisions as it is in statute.

The alternative is a Civil Code, whereby only what is written in positive statute is a crime, and if it's not in positive statute law no Court can rule on it. That is also a good option, and I encourage someone to write up a bill enshrining it; but if Talossans prefer to stick to Common Law principle, my bill does fine.

Yes, I think that Sir Cresti helped clean up the language and fix about a thousand statutes in his time. It's pretty amazing.

I think that one of the two of us is confused about stare decisis. My understanding is that this is a principle which establishes that precedent should largely govern the decisions of a court. If courts have followed and established principal or rule for deciding a particular set of matters, a judge should continue to do so absent compelling reason. I have never understood it to mean that a judge could, for example, declare new crimes on the basis of existing principles.

But this is a semantic argument. Accordingly, it's pointless. Can we just establish as a principal of this discussion that we would all like to have a system of government and set of laws which allows every citizen to know what is a crime or not? That specific guarantee is in the Covenants, so I didn't think this was controversial!

Quote from: Miestră Schivă, UrN on March 24, 2021, 03:07:38 PM
Am I right or wrong in my recollection that it was your idea to write the Wisconsin Code into our own laws in the first place?

Well, according to you...

Quote from: Miestră Schivă, UrN on January 12, 2021, 01:43:01 PM
All right, time for some archeology. Wisconsin law was written into our law (at the proposal of KR1) by 31RZ14, which reads in part:

QuoteWHEREAS under Talossan law, there are no actual, legal prohibitions against murder, rape, robbery, or any other crimes...

Also, I honestly think this process would be improved if we stopped trying to skip steps and first agreed on the principles involved, which I think is possible! I think we all agree that we would prefer that our laws be indigenous. Surely we can all also agree that they must be specific, so citizens know exactly what is against the law and what isn't?

Quote from: Miestră Schivă, UrN on March 24, 2021, 03:07:38 PM
Am I right or wrong in my recollection that it was your idea to write the Wisconsin Code into our own laws in the first place? And am I right or wrong that the Wisconsin Code has never been used to punish a crime in Talossa, but on the other hand that you personally have relied on Wisconsin legal briefs in your representations before the Corts?

You're mistaken.  Off the top of my head, I know that a citizen was convicted and punished for a violation of §947.0125, and I found in a few minutes where your Government brought charges under §939.10, §939.30, §939.31, §946.10, §946.61, and §943.70, as well as relying on Wisconsin judicial precedent in the same and other cases.  Other convictions on other provisions in Wisconsin law have been prosecuted and convicted in the past by prosecutors, as well.

Acting as appointed Regent to His Majesty King John, I am honoured to receive these presentations.  I will consult with His Majesty directly about whether he intends to revive the junior order of knighthood, l'Urderi del Bicoloreu, which is currently dormant.

A date for the ceremony will be set by the end of this month.

Quote from: Béneditsch Ardpresteir on February 10, 2021, 08:53:17 PM
Wow!

One used to get ID Cards earlier?

I used to send them to any citizen who requested one.

I have some concerns.

As discussed in the thread for the committee on legal reforms, the Covenant of Rights and Freedoms has never been interpreted as a set of potentially criminal restrictions on individual behavior.  The Seneschal's theory is fundamentally that the Sixth Covenant effectively criminalizes all behavior that can be convincingly argued as "activities which injure, endanger, risk or compromise the physical health, privacy, or tranquility of other persons."  She has cited other covenants as the basis for other possible criminal prosecutions, but they're actually irrelevant in the light of this interpretation, since this view is amazingly broad and nonspecific.

Any behavior or speech could potentially be a crime under this interpretation.  Even something specifically authorized by law could potentially be a crime, in fact, since the Sixth Covenant overrides every statute, every other provision of the Organic Law, and every other covenant!

It was never the intent of the Covenant of Rights and Freedoms to be read in this way, since this interpretation doesn't make sense just on a first pass through them.  I mean, what would be the point of the Seventh Covenant?  If it's literally meaningless -- since actually anything can be a crime -- why bother including it?

Further, there's a reason that the Seventh Covenant does exist: if any activity is a crime once the Government decides that it might be, then it opens the door to ruinous corruption and abuse of power.  It costs the Government nothing but a little time to prosecute an offender, and they risk nothing.  If the Avocat-Xheneral or Seneschal decide they dislike you, then they simply need to identify something you did (or failed to do) at some point in your entire life as activity that plausibly offended the serenity of someone else.  If the prosecution fails, they've still cost you time and inflicted stress on you.  They can always try again, whenever they wish.  And maybe they'll get lucky and get you convicted!

Obviously, neither our current Avocat-Xheneral nor our current Seneschal would let their personal grudges influence their behavior.  But not all future officials might be so calm and virtuous.

It's worth noting, incidentally, that this interpretation would also conflict with other important covenants than just the Seventh.  Take the Eighth Covenant, for example.  Is euthanasia against the law?  Well, the Ziu isn't allowed to write a statute which makes it a crime to end the life of another human being, but that would be irrelevant: euthanasia would certainly be "compromis[ing] the physical health" of another person, and "no right herein enumerated" in the Covenant can protect such activity.

I urge that this approach be abandoned and a little more thought applied to this problem, which remains an important one.

If one side views an outcome as an indefinite compromise, and the other views the outcome as an interim concession, only one of them can actually be correct.

Quote from: Marcel Eðo Pairescu Tafial on February 09, 2021, 06:26:08 PM
if federal power is too centralised (not sure what that means in Talossan terms), maybe it would be in order to empower the provinces somehow instead of propping up a monarch for life to do the meaningful counterbalance.

History shows that's probably a pretty bad idea, since focus is so overwhelmingly on national politics that provincial politics seldom goes anywhere and there are usually -- not just often, but usually as a matter of course -- multiple provinces that are utterly silent because there's only one or perhaps two active people.  We could consolidate them to try to change that, of course, but then we're also making it much less likely that they will meaningfully diverge from the national results (since they already usually don't very much).  It's also possible that giving them more power will somehow inspire more activity, but they already each command 1/8th of the Senate individually and have a ton of latitude to do things (all power not explicitly vested in the Ziu or Government is theirs), and that hasn't changed much about the activity level for most provinces.  When they are active, they are usually historically dominated by one or two people, as well, who are themselves typically very active in national politics.

Quote from: Marcel Eðo Pairescu Tafial on February 09, 2021, 06:26:08 PM
Firstly, you've already said that the Talossan Monarch is elected, which by that logic would mean he already is a partisan prize. The fact that this symbolically and governmentally important post is only up for grabs once every few decades (I refuse to believe that anyone would actually hold on to the office for life) instead of once every seven years doesnt make it less of a prize, quite the opposite, that's just my personal opinion though.

That hasn't proven to be the case.  That may change, but we also need to again look at history: every single political party which existed when His Majesty was elected is gone.  Almost every single person active in politics at that time is no longer active.  The oldest political party now existing dates back to 2015, only six years ago.  Talossan politics just tends to move in smaller timeframes these days, because so many political parties lean heavily on the energies of just one or two people.  That might change someday, but the Seneschal just gave a big speech about how it's still true for her party, at the least.

Yes, I expect that the election of a new king someday will have some sort of partisan pressures, and I don't think there's any way to avoid that with elections in a nation with partisan elections.  But we can minimize it and also hope that infrequency lends some majesty to the process to help forestall it.

Quote from: Marcel Eðo Pairescu Tafial on February 09, 2021, 06:26:08 PM
Secondly, did you know that the Federal President of Germany is elected by federal and state legislatures and still manages to be a non-partisan figurehead? The office is so apolitical and inoffensive that you only ever get reminded of its existence when the incumbent manages to find himself implicated in a scandal of gargantuan proportions. Which is to say once in a lifetime or so. How's that for an idea?

I didn't know that!  I didn't even know that the President of Germany had significant power to wield in a way that made the office a meaningful part of sustaining the system of governance, I'm ashamed to say.  And I know other examples have been raised that are similar.  I'm not saying it's impossible for any country to have a nonpartisan empowered monarch who is regularly elected, but I will say that Talossa is very different from most countries.  I'd be interested to explain specifically how, if the topic is one you'd like to unpack, but for now this post is probably long enough.

Quote from: Marcel Eðo Pairescu Tafial on February 09, 2021, 05:43:18 PM

Quote from: Sir Alexandreu Davinescu on February 09, 2021, 05:32:05 PM

Quote from: GV on February 08, 2021, 05:23:00 PMWhy can't we have the benefits of election along with the tradition of monarchy, Alexander?  What's wrong with that?

Probably the same reason you can't have hot ice cream.

Behold, hot ice cream.

I actually edited that metaphor almost immediately, since I reflected (as the father of three) that I have watched kids eat ice cream soup multiple times.  But looking at the link...

"An elective monarchy is a monarchy ruled by an elected monarch, in contrast to a hereditary monarchy in which the office is automatically passed down as a family inheritance."

His Majesty King John was elected.  His successor will also be elected.  So this seems to describe what we have.  ;)

But more seriously, this is just semantics -- just arguing over labels.  We can call any office the "king," if we so choose, but that's not what we're really arguing over.  We could decide that we'd start calling the Archivist the second king, for example.  It wouldn't mean that we had a king in any way that would be meaningful in terms of governmental continuity.  I'm prepared to argue semantics, but it seems wildly beside the point and tedious.

Like, why can't we have a king who is elected every month and can be dismissed by the town dogcatcher?  There's no reason why not!  There's nothing magical about the word, if we want to use it in a weird way, and we could pass that law immediately.  We can call such an office or any other the "monarchy," but that's sort of sidestepping any actual discussion of the merits.  Such a role would not be above partisan politics, it couldn't act as a meaningful counterweight to the increasingly centralized power of the Seneschal, etc.

Having a monarch has both tangible symbolic and tangible governmental benefits.  The value of the former will be somewhat eroded if the office becomes a partisan prize, since we already vote ourselves all kinds of awards and postnominals.  The value of the latter will be drastically eroded in the same circumstance.

Quote from: GV on February 08, 2021, 05:23:00 PM
What if I as a Senator decided to go incommunicado?

Well, the senator for Atatürk was last online in April of 2020.  He last posted a month before that.  The senators for Cézembre and Maricopa will often let a month go by between communicating here on Witt.  Typically, in fact, we acknowledge that people will often not be engaged with Talossa for long periods, even if they hold high office, and we let it slide unless it's gotten pretty seriously in the way (ie usually only when it comes to the Seneschal or Secretary of State).  In the case of His Majesty, he acted to ensure that things got done (95% of the rubber-stamp variety, since the monarch has relatively few responsibilities these days) by appointing a regent.  This seems like it should have been fine with you, since you personally suggested he do that in September, GV.

Quote from: GV on February 08, 2021, 05:23:00 PMBut monarchist Talossa wants a monarchy with power.  Fine.  Does this mean an endless string of unelected monarchs with power, then?  Is that what the conservative Talossa of 2005-present wants?

That's phrased in a weird way, but yes.  I'd prefer that Talossa not "end" and that it be ruled by a monarch with significant enough power to form a stabilizing counterweight to the vicissitudes of tide and time.  I'd note that the hereditary monarchy was already eliminated, though, as you are aware and as others have mentioned.

Quote from: GV on February 08, 2021, 05:23:00 PMThe 2017 Organic Law makes it very difficult to throw out a bad monarch.

In what way?  It can be done the same as any other constitutional reform.  And there were five of those on just the last ballot.  If the Ziu really wanted to remove His Majesty and replace him, it could already be done far too easily, in my personal opinion.  Is there some other obstacle of which I am unaware?

Quote from: GV on February 08, 2021, 05:23:00 PMWith an elected monarchy, we throw the bum (not John) out straightaway.

Not John?  This bill would indeed immediately depose His Majesty King John, actually.  You and the rest of the Ziu, the heads of provinces, and the CpI would all be immediately responsible for electing a new king, with V presiding over the proceedings.  Totaling up those numbers, it actually looks like the Free Democrats would be able to pretty easily just decide amongst themselves who they want to make the new monarch.  I can imagine a pretty short list of people who you guys might pick, in fact, s:reu ;)

Quote from: GV on February 08, 2021, 05:23:00 PMWhy can't we have the benefits of election along with the tradition of monarchy, Alexander?  What's wrong with that?

You're describing a French-style presidency, with a term of seven years instead of five.  The office immediately becomes political and partisan (cf above).

It would be an abrogation of my duty as Regent, appointed to act in His Majesty's stead in his absence, if I failed to warn that I could not in good faith approve a bill which would eject His Majesty from the throne immediately, and which would further adopt a drastic new change in government on the basis of a 1.5% majority in a midterm referendum.  I feel very strongly that King John would certainly veto any bill which dethroned him, and accordingly I will veto such a bill in his name, if put to it.

Quote from: Miestră Schivă, UrN on February 01, 2021, 04:07:59 PM

QuoteGenerally speaking, the Covenants are understood as a list of rights that citizens enjoy and upon which the Government cannot infringe.

No, that's just how you understand them, presumably on the analogy of the US Bill of Rights. But the Preamble states that "The Covenant of Rights and Freedoms guarantees the rights and freedoms set out in them to all Talossan citizens". It positively grants rights rather than negatively prevents infringements upon them.

The U.S. Bill of Rights was explicitly the model for the Covenants, and a great deal of the language is identical, and the Covenants have been generally understood as a guarantee against action against your rights.  This is clear when we look at the Tenth Covenant, which says that "[a]nyone whose rights and freedoms, as guaranteed by these Covenants, have been infringed or denied may appeal to a court of competent jurisdiction to obtain such redress of grievances as the court considers appropriate and just in the circumstances."  Neither here nor anywhere else are there provisions for the criminalization of such infringements.  If the Ziu passes a law restricting someone's religious liberty, then no one can prosecute the people who voted in favor in the Ziu imprisoned for their "crime" of passing a law that violated the Covenants, for example.

Ah, I missed that before.  But I don't quite see this, still.  What in the Fourth Covenant provides a "right to property" or criminalizes embezzlement?  What in the Sixth Covenant criminalizes domestic violence?

Generally speaking, the Covenants are understood as a list of rights that citizens enjoy and upon which the Government cannot infringe.  The Ziu couldn't pass a law which would allow the A-X to read someone's correspondence, for example, unless that law required a warrant first.  But the Fourth Covenant protection against searches without a warrant doesn't extend to anyone else.  If I ran a mail service and told everyone I would be reading their mail if they used it, no one could sue me under the Fourth Covenant.

Could you give me an example of some crimes that violate the Covenants?  Maybe I'm not understanding what you mean by that.