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Messages - C. M. Siervicül

Pages: [1] 2 3
1
Wittenberg / Re: May 2021 General Election Polling Station
« on: June 01, 2021, 06:59:55 PM »
Part 3: Cosa
DIEN - The Independent Monarchist

Part 5: Referendum
55RZ5 - Per
55RZ22 - Aus
55RZ23 - Per

2
Because I had no idea - until you told me - that these sections of the Wisconsin Code had anything to do with "harassment, perjury, bribery or counterfeiting" - and no way of knowing apart from making a guess and doing a Google search. This is hilarious, because the Regent is complaining about "people not knowing what's against the law", where the status quo is you have to look up the laws of a completely different country right now to know what's against the law in Talossa, and you don't mind that, because you're used to finding out such information. I'm not. No-one else is (except perhaps other lawyers).
At least there is something to look up, which is explicitly identified in the law. It can be improved (and I’ve made specific suggestions how to do do), but it’s still better than not even have anything to look up for those who are motivated to do so.

3
Yes, because those are the only situations in which Section A3 applies.
Right, so why does the rest of the bill say what it does?

... oh, I get it. You think that the sections A1-2 will entitle prosecutors to just "make up" crimes to take people to Court for. That's a very novel interpretation which I would never have thought of.
Well, that’s what I’ve been saying all along. In my initial comment on the bill I tried to set aside A.3 and focus on the problems created by repealing the existing criminal code (which seems unnecessary to the purpose of A.3).

If you want those removed, please answer quickly: should Talossa be a civil law jurisidiction, where the courts cannot rule at all where statute law is silent? If not, what should be the basis of our common law?
Really, what we see today are mostly hybrid systems to one degree or another. Sir Alexandreu mentioned “interstitial common law” in a previous post, and that’s where I think the common law is strongest. Filling in the gaps, addressing procedural issues, providing precedent about how codified law should be interpreted. But I think the basic elements of crimes and their penalties should be codified in statute. As I mentioned earlier, most common law jurisdictions have either abrogated common law crimes or “frozen” them so that new ones cannot be created by the courts.

4
I'm amazed that you think giving the State the administrative ability to take away citizenship is less oppressive than giving the CpI the discretion to decide - upon a formal complaint - whether someone has violated the Covenants and to evoke a discretionary punishment which may be far less than banishment.

It seems that you’re focused on situations where a citizen who has already been through a full-fledged criminal prosecution and is literally sitting in an actual brick-and-mortar prison for a term of many years, and is facing potential loss of Talossan citizenship on top of that, and the question is whether they should go through a simple administrative process or a criminal trial (where guilt is essentially presumed anyways) before losing Talossan citizenship. I’m focused on situations where a citizen thinks he or she is abiding by the law to the best of his or her ability and the question is whether they should be put through a trial and risk losing their citizenship at all. For your citizen, the additional process and consequence they’re facing from Talossa is a drop in the ocean compared to the process and consequences that they have already faced and that we can’t do anything about. For my citizen, the threat of prosecution and loss of citizenship in Talossa is everything.

So no, I don’t think an administrative process that results in loss of Talossan citizenship is much of an incremental burden for the citizen who is already sitting in prison for 25 years after a trial with due process (and if they didn’t get due process, loss of Talossan citizenship is the least of their problems, and we can add safeguards to the process mitigate that risk) and conviction of a crime that was defined in advance by law (because they hopefully live in a jurisdiction that—unlike Talossa if this bill passes—believes in the principle of legality). On the other hand, I think putting a citizen in jeopardy of loss of Talossan citizenship for a “crime” that is not defined by any law and of which the citizen had no prior notice is kind of a big deal. And yes, the actual punishment may well be less than banishment, but that’s still on top of the prosecution itself, and starting from a baseline of zero (whereas with your citizen we’re talking about starting from a baseline of a macronational prosecution and several years of incarceration). 

So when it comes to A.3 we’re talking about cases where the choice is between a lengthy prison term and loss of Talossan citizenship or just a lengthy prison term, whereas when it comes to the repeal of the criminal code we’re talking about cases where the choice is between prosecution and no prosecution. That can mean prosecution where there ought to be no prosecution (because prosecutors are encouraged to prosecute offenses that would not have been enacted by the legislature) or no prosecution where there ought to be prosecution (if the Cort declines the invitation to create a criminal common law under the 7th Covenant). So you’ll really be rolling the dice between anarchy and arbitrary prosecution. And it’s unnecessary if you’re really concerned primarily about non-Talossan crimes. You could enact something like A.3 without repealing the existing criminal code for Talossan crimes, so I think this bill is throwing the baby out with the bath water.

Conversely, if your fear is rogue prosecutions, not rogue convictions, might I suggest that limits on prosecutorial power would be the answer? I suggested elsewhere a "grand jury", but no-one bit on that one.
Yes, I think the principle of legality is a great limit on prosecutorial power: have crimes and their elements defined up front, so if prosecutors try to charge someone with something that isn’t even a crime there can be a procedure to have the charges quickly dismissed as legally insufficient. And that also makes it easier to identify cases of malicious prosecution and sanction prosecutors who bring frivolous charges. A grand jury is a fine idea in principle, but it would be a lot more practical if we had a much larger active population. Any solution that requires multiple additional bodies means taking away from anything else we would like to see get done in Talossa (legal reform projects, language stuff, other cultural endeavours, etc.).

Let's go back to why we are doing this. It is not just because it is unseemly to have written another jurisdiction's laws wholesale into our own. It is because one of our own citizens is doing time for statutory rape, and that section of the law did not give Talossa's State or courts any options to disassociate ourselves from this charater and his crimes. I don't see how your suggested amendments (reasonable on the surface) would do so; mine would.
Why we’re doing what, specifically? How does a general repeal of the criminal code achieve the purpose you’re talking about? Why not leave the criminal code in place for Talossan crimes and separately enact a mechanism (whether a new crime or something else) to deal with the issue of non-Talossan crimes that you’re talking about? I don’t see how one is necessary, or even helpful, for accomplishing the other.

I think we’ve been talking past each other to an extent. I think the primary purpose of Talossan criminal law should be to address Talossan crimes: crimes committed in Talossa, or against Talossans, or against the Talossan state. If a Talossan citizen is also a Texan and assaults someone in Texas, Texas will deal with it (and is best suited to). If a Talossan counterfeits Talossan coins or stamps, or commits perjury in a Talossan forum, or tries to bribe a Talossan official, or engages in online harassment of another citizen (which we had a prosecution for back in ‘06), only Talossa is likely to care (or at least to care nearly as much as we do). Why repeal our existing laws criminalizing forgery, perjury, bribery, and online harassment in order to deal with that Texan crime that can be handled with a separate law? My suggestions are aimed at making better Talossan law for Talossan crimes. How to respond to non-Talossan crimes committed by Talossans should be a separate issue.

5
I understand the patriotic impulse to “domesticate” Talossan law, but scrapping the criminal code in favour of an indigenous common law (that does not yet exist) is not the way to do it. While a mature system of common law has much to commend itself, starting a new system of common law from scratch is a recipe for chaos. English common law arose more or less out of necessity, in a time when Parliament met rarely and mostly for the purpose of granting funds to the crown. There is a reason most common law jurisdictions (US federal courts, most US states, the UK, Canada, Australia, New Zealand, South Africa, etc.) have come to reject the judicial creation of new common law crimes. Crimes and penalties should be defined by the representatives of the people, and the people should be able to know in advance what actions are subject to criminal penalty. I would have thought these would be generally accepted as basic principles of justice these days.

Pace my colleague the Opposition Leader, it is true that Talossan authorities cannot throw us in prison, but they can throw us out of Talossa, and just being prosecuted in a Talossan court (even unsuccessfully) can be burdensome and traumatic. As a (rather disgraceful) saying among some American police goes, “you can beat the rap, but you can’t beat the ride.” That is, arrest/indictment/prosecution can be forms of punishment, or at least harassment, in themselves. And we must keep in mind that Talossa is a uniquely voluntary society, dependent on people freely choosing to do things they find enjoyable in their spare time, but the court system is one of the few ways we attempt to involuntarily impose potentially significant burdens on people as the price of being Talossan. For these reasons, it is imperative that criminal offenses be narrowly and clearly defined. Citizens should be able to know how they can avoid being hauled into court (at least if they don’t want to be), and the ability of government prosecutors to creatively multiply the number of prosecutions should be constrained as much as possible.

If we want to domesticate the areas of law that we currently borrow from Wisconsin, I would start by trimming the list of the chapters of Wisconsin statutes that is included in Lexh. A.1. Maybe cut it down to chapters 939-951 (Criminal Code), exclusive of chapters 949 and 950. That would leave non-criminal law (e.g. commercial and contract law) to the courts to develop a body of common law (less dangerous than criminal law), and then we could go through the remaining 10 chapters one (or a few) at a time to determine to what extent we should selectively retain, replace, or repeal them. Whatever we do retain from those remaining chapters could be incorporated verbatim in el Lexhatx rather than by reference.

Regarding the proposed A.3, I think the Regent raises legitimate objections, but I’m frankly less concerned about that because if someone has committed a serious crime outside of Talossa, the other jurisdiction’s courts will be far more competent to try the issues than any Talossan court could, and the consequences in the citizen’s jurisdiction of residence will be far more significant than any consequences in Talossa. The potential consequences of a repeal of the Talossan criminal code are much more significant for the rest of us. That being said, my preference would be an administrative process that would denaturalise Talossans who have dual nationality and are incarcerated for a significant term in their state of residence, but that would probably require an OrgLaw amendment.

6
The Lobby / Re: Regent's Address to the Ziu
« on: March 27, 2021, 06:26:03 PM »
As far as I can tell, you don't like eliminating the current criminal code stuff and replacing it with vague and contradictory principles left to the whim of the legal system, and I have the same concerns.  I guess our objections are different in the sense that you focused on the elimination and I focused on the replacement, but I have to admit I don't understand this particular semantic focus.
I’m just trying to explain what I meant when I said we need “something along the lines of” the proposed A.3. Our criminal code only addresses crimes over which Talossa has jurisdiction. This bill does what I see as two very different things: it scraps the laws that define Talossan crimes, and also makes provision for dealing with citizens who have committed non-Talossan crimes. I agree that the second objective is a legitimate issue that we should address in some way, though I do take exception to the specifics of the proposal.

7
The Lobby / Re: Regent's Address to the Ziu
« on: March 27, 2021, 06:00:08 PM »
Hahahahaha, this is exactly the opposite of what your offsider Cresti said, which was that we needed something like that section, but he objected strenuously to the first two sections  ;D
Well, we are different people with independent thoughts. :)

Respectfully, I think you are confused, D:na Seneschal.  When I say that I object to the "third provision," I refer to the new A.3 being proposed in the second part of this law.
Actually, Dame Miestra was correct, at least with respect to the part of the Bill I was talking about. Of course, when I said “something along the lines of section 3,” I didn’t mean “section 3 exactly.” What I see as the essential point of the proposed new A.3 is a way to address people who commit heinous crimes outside of Talossa that are not prosecutable within Talossa, an issue for which our current laws make no provision. That’s an entirely different focus from the rest of the bill, which throws out our current criminal code and effectively replaces it with nothing. I do think we need a way to respond to problems like former citizen Canun.

If we have a citizen who turns out to be a child molester or human trafficker or mass shooter or something, we should have a way to keep them from dragging the whole country down if word of their association with Talossa were to get out. I do think any such provision should be more narrowly targeted and have more safeguards than the proposed A.3, and may very well require an OrgLaw amendment (and possibly even an amendment to the Covenants).

8
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?

Not quite right. The law that adopted the “civil and criminal code of the State of Wisconsin” (or “criminal and civil,” I can’t recall the precise formulation off the top of my head) as Talossan law predated me. The immediate problem I saw, and tried to address with my bill, is that it was unclear which portions of the Wisconsin statutes these words were intended to comprehend. So my bill identified specific titles of the Wisconsin statutes that would apply to Talossa, with the intent of making things clearer and more definite than they were before.

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 wrong on the first point, as Sir Alexandreu pointed out. I certainly have cited to Wisconsin case law, as I would encourage anyone to do. I’ve never used any resources that aren’t available to anyone—particularly Google Scholar and Google Books.

We could do a lot to point people to relevant resources and provide research tips. At least the status quo provides guideposts to relevant sources of authority. I think you’re mistaken in believing the situation would be improved by trading the status quo for a free-for-all where all the rules are made up as we go. When there are no clear standards set forth in the law, a clever lawyer can argue that any standard ought to apply.

I think there are some arguments for retaining Wisconsin-based criminal laws, but those are probably better discussed in the other thread (which I regret not having seen before now). But like I said before, I don’t feel too strongly about that. What’s critical, in my opinion, is that criminal offenses and their penalties be clearly set forth in the law. This 1) makes it possible for citizens to know what conduct is prohibited and 2) circumscribes the discretion of government prosecutors. Consider Sir Thomas More’s advice to William Roper.

 

9
While something along the lines of section 3 of this bill is sorely needed, I have grave concerns about the remainder of this bill.

If the idea is to replace the entirety of our current criminal code with prosecutions based directly on the Covenant of Rights and Freedoms, I don’t see how that’s a viable solution. I’m not aware of any other country that allows direct criminal prosecutions for violating similarly broad statements of constitutional principles as are contained in, say, the Sixth Covenant.  If such a broad criminal law were to be enacted in the United States, it would be struck down as a violation of due process, as the US Constitution’s due process protections have been held to require that criminal offenses must be defined with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. A similar rule is applied under Article 7 section 1 of the European Convention on Human Rights, which embodies the principles of nullum crimen sine lege (there can be no crime without law) nulla poena sine lege (there can be no punishment without law). This is consonant with the rule of lenity: the traditional principle of legal construction that penal statutes should be strictly construed, with doubts resolved in favour of criminal defendants.

If we pass this and it is struck down as unenforceable due to concerns such as those described above, we will then have no criminal code and no way to punish criminal acts within Talossa. Even if it isn’t struck down, I don’t see how a more vague, unpredictable, and arbitrary system of criminal law is an improvement. If the Sixth Covenant were held to establish valid offenses under the Seventh Covenant, for example, it would seemingly criminalize all of tort law (i.e., every tort would also be a crime), and potentially also criminalize near torts under an “endangerment” theory. I’m not strongly opposed to breaking our dependence on Wisconsin law, but I do think it’s imperative that we do it right and not “on the cheap.”

10
The Hopper / Re: The Due Process Reversion Amendment
« on: March 23, 2021, 10:38:34 PM »
I like this, but are there typos in the first (“deprived of life, liberty, or property”) and next to last (“subjected to cruel and unusual punishment”) sentences of the proposed language?

11
The Cosa / Re: 55th Cosa 3rd Clark Voting and Discussion thread
« on: March 21, 2021, 06:51:50 PM »
I vote per on RZ19 and RZ20, and non on the VoC.

12
The Cosa / Re: 55th Cosa 3rd Clark Voting and Discussion thread
« on: February 21, 2021, 05:43:19 PM »
I vote per on RZ18, non on the VoC.

13
Wittenberg / Re: VOTING: The Ranked Choice Constitutional Referendum
« on: January 25, 2021, 06:33:08 PM »
I vote as follows:

1: Option 3
2: Option 4
3: Option 2

14
Wittenberg / Re: Oraclâ No. 85: 22 January 2021
« on: January 25, 2021, 06:29:34 PM »
Welcome back! May the next issue not be so long in coming!

15
The Cosa / Re: 55th Cosa 3rd Clark Voting and Discussion thread
« on: January 21, 2021, 03:55:59 PM »
I vote “per” on RZ17, and “contra” on the VOC.

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