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Author Topic: Committee of Legal Reforms  (Read 208 times)

Offline Miestră Schivă, UrN

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Re: Committee of Legal Reforms
« Reply #15 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:

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

So clearly KR1 was thinking of the kind of crimes of gross moral turpitude that I. Canún is currently doing time for. This was further amended (at Sir Cresti's proposal) by 35RZ21. The list of those sections of the Wisconsin Code "dynamically included" in our law are:

Quote
    Chapters 240-243 Fraudulent Conveyances and Contracts
    Chapters 401-411 Uniform Commercial Code
    Chapters 421-429 Wisconsin Consumer Act
    Chapters 700-710 Property
    Chapters 938-951 Criminal Code
    Chapter 961 Controlled Substances

I suppose we could go through Old Witt's debates to find out exactly why Sir Cresti thought these sections should apply to Talossa. But I maintain the following:

  • putting Wisconsin law into Talossan law means that Talossan judges and lawyers have to be familiar with Wisconsin case and statute law to really know our law, which is ridiculous and puts the Talossan law out of reach for any but US-trained lawyers (like Cresti, lol)
  • no case of "murder, rape or robbery" has ever been tried under these law in Talossan court
  • I believe that the only time these sections were invoked was when Cresti relied on Wisconsin court decisions as precedent in Talossan court - see above

These sections need to be repealed. Talossan law should be indigenous. But what will they be replaced with? That's what we're discussing.

A point I've made which seems to have been ignored is that Talossa's current common law system already allows courts a lot of discretion to hear cases on matters not referred to by statute. So if we adopted a set of "Principles of the Common Law of Talossa", Courts could base their decisions on those rather than on the "Anglo-American" precedent enshrined by the previous OrgLaw. But if the idea of judges ruling on matters not specifically referred to by statute is a problem, then we should switch to a Civil Law code post haste, which removes judicial discretion over matters not in statute. The Regent seems upset by something which is the status quo.


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Offline Sir Alexandreu Davinescu

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Re: Committee of Legal Reforms
« Reply #16 on: January 12, 2021, 01:48:24 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:

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

So clearly KR1 was thinking of the kind of crimes of gross moral turpitude that I. Canún is currently doing time for. This was further amended (at Sir Cresti's proposal) by 35RZ21. The list of those sections of the Wisconsin Code "dynamically included" in our law are:

Quote
    Chapters 240-243 Fraudulent Conveyances and Contracts
    Chapters 401-411 Uniform Commercial Code
    Chapters 421-429 Wisconsin Consumer Act
    Chapters 700-710 Property
    Chapters 938-951 Criminal Code
    Chapter 961 Controlled Substances

I suppose we could go through Old Witt's debates to find out exactly why Sir Cresti thought these sections should apply to Talossa. But I maintain the following:

  • putting Wisconsin law into Talossan law means that Talossan judges and lawyers have to be familiar with Wisconsin case and statute law to really know our law, which is ridiculous and puts the Talossan law out of reach for any but US-trained lawyers (like Cresti, lol)
  • no case of "murder, rape or robbery" has ever been tried under these law in Talossan court
  • I believe that the only time these sections were invoked was when Cresti relied on Wisconsin court decisions as precedent in Talossan court - see above

These sections need to be repealed. Talossan law should be indigenous. But what will they be replaced with? That's what we're discussing.

A point I've made which seems to have been ignored is that Talossa's current common law system already allows courts a lot of discretion to hear cases on matters not referred to by statute. So if we adopted a set of "Principles of the Common Law of Talossa", Courts could base their decisions on those rather than on the "Anglo-American" precedent enshrined by the previous OrgLaw. But if the idea of judges ruling on matters not specifically referred to by statute is a problem, then we should switch to a Civil Law code post haste, which removes judicial discretion over matters not in statute. The Regent seems upset by something which is the status quo.
I'm not upset, but I also would note that you are mistaken about a few things. Multiple times, people have been charged or nearly charged with crimes under those legal codes. It hasn't happened a lot, but it has happened. It just isn't very equitable.

Yes, the modern court system has been bent inexorably towards the court system with which most of the judges in office have been familiar. It's not quite as open-season as you think, though!
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Offline Miestră Schivă, UrN

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Re: Committee of Legal Reforms
« Reply #17 on: January 12, 2021, 02:12:46 PM »
Let's focus on the point here. What shall we replace El Lex A:1-4 with?

- a full replacement Talossan legal code? Far too much work.
- would the Regent's special prosecutor system work fully to replace these sections? And how? Can we have a hypothetical example, eg: what would a "special prosecutor" have done in the I. Canún case?
- do we need extra "principles" to guide the Courts in these "special prosecutor" cases outwith those currently in the Covenants?

There is a much broader question I've raised of whether our current "quasi common law system" is adequate for our purposes - and indeed what is the statutory basis for it since the reference to Anglo-American principles was taken out of the OrgLaw. (Are we to assume that Talossa inherited the common law on 26/12/79?) The alternative would be to resort to Civil Law, i.e. precedent no longer has value and where there's no statute the Court can't rule.
« Last Edit: January 12, 2021, 02:15:24 PM by Miestră Schivă, UrN »

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Offline Sir Alexandreu Davinescu

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Re: Committee of Legal Reforms
« Reply #18 on: January 12, 2021, 04:17:04 PM »
Let's focus on the point here. What shall we replace El Lex A:1-4 with?

- a full replacement Talossan legal code? Far too much work.
- would the Regent's special prosecutor system work fully to replace these sections? And how? Can we have a hypothetical example, eg: what would a "special prosecutor" have done in the I. Canún case?
- do we need extra "principles" to guide the Courts in these "special prosecutor" cases outwith those currently in the Covenants?

There is a much broader question I've raised of whether our current "quasi common law system" is adequate for our purposes - and indeed what is the statutory basis for it since the reference to Anglo-American principles was taken out of the OrgLaw. (Are we to assume that Talossa inherited the common law on 26/12/79?) The alternative would be to resort to Civil Law, i.e. precedent no longer has value and where there's no statute the Court can't rule.
I agree, the discussion should stay focused on the actual question at hand about how and if we incorporate other countries legalities into our own.

I will pose a couple of hypotheticals to assist.

A. A person is convicted of a minor crime like petty theft in their local jurisdiction, but is also widely disliked by people in power. Who and how do we decide whether or not to apply consequences here, by whatever mechanism the Ziu designs?

B. A person is convicted of a very serious crime like large-scale embezzlement, but not a crime that is immediately inflammatory to a lot of folks. Do they suffer consequences here?

C. A person is convicted of a very serious crime that is abhorrent to everyone, like spousal abuse. Do they suffer consequences here?

D. A person is accused of a very serious crime that is abbhorent to everyone, like spousal abuse. Do they suffer consequences here?

E. A person is convicted of a crime that is controversially illegal in some places but not others, such as obtaining an abortion. Who and how do we decide whether or not they suffer consequences here?

Any reform made by the Ziu must be able to handle each of these situations without endangering the liberties of our people.
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Revolution is an art that I pursue rather than a goal I expect to achieve. ― Robert Heinlein

Offline Miestră Schivă, UrN

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Re: Committee of Legal Reforms
« Reply #19 on: January 12, 2021, 04:59:51 PM »
My answer is that the Talossan state should be empowered to intervene only when someone has, to the satisfaction of the prosecuting authority, committed a crime repugnant to Talossan principles of law and justice, as represented chiefly in the Covenant of Rights and Freedoms.

Let's take the Sixth Covenant:

Quote
Liberty consists of any action which is not detrimental to others, and no right herein enumerated, or elsewhere recognised by the Cosa, shall extend to anyone engaged in activities which injure, endanger, risk or compromise the physical health, privacy, or tranquility of other persons through the pretended exercise of said right.

In addition, the Fourth Covenant enshrines a right to personal property. I would prefer language that would enable the State to investigate "behaviour outside of Talossa which contradicts the Covenants and which would tend to bring Talossa into disrepute in the eyes of non-Talossans who share our values as expressed in the Covenants"; and that specifies the difference between felony and misdemeanour crimes under this law. You would have to convince the Court (a) that you did the deed "on the balance of probabilities"; and (b) that the deed was something that people of similar values to Talossa would be repulsed and thus Talossa doesn't want to be associated with.

To deal with your examples:

PETTY THEFT: violation of the Fourth Covenant right to property. Should be liable for a misdemeanour charge, only if the Cort is satisfied that it's of the kind that brings Talossa into disrepute.

EMBEZZLEMENT: felony violation of the Fourth Covenant and brings Talossa into disrepute. More chance of a conviction and a serious punishment.

DOMESTIC VIOLENCE: felony violation of the Sixth Covenant and brings Talossa into disrepute. More chance of a conviction and a serious punishment.

ACCUSATION OF DOMESTIC VIOLENCE: Let's specify that conviction by a macronational court should be only considered prima facie evidence of bad behaviour; a State prosecutor (or the Cort) could look at the sentencing authority and go "kangaroo court under a dictatorship, not touching that". Or, alternatively, if someone gets off a rape/spousal abuse case because of a misogynist judge or jury, the Court would still be enabled to use the "balance of probabilities based on the evidence" test. The "bringing Talossa into disrepute" test would also come into action, for example, if it were a famous trial and a lot of people saw a rapist getting off because the courts are misogynist.

ABORTION: guaranteed right under the Eight Covenant. No crime.

OTHER CRIME THAT'S A PROBLEM IN SOME JURISDICTIONS AND NOT OTHERS (eg. drug offences / a woman not covering her hair in Iran / agitating against oppressive regimes): None of these are behaviours contradicted by the Covenants, and some are actually supported by them. No crime.

The "bringing Talossa into disrepute" test might be very important for discussing any penalties under law. A larger punishment (banishment) might be necessary if someone did a foul deed and they're unrepentant; if they fess up and convince the Court that they're going to do whatever macronational time they have to and otherwise pay their debt to society, they might just get a civil disability. If Talossa can deal with its own "trash" with both mercy and justice, people doing crimes are less likely to bring us into disrepute.

Do we want to bring in a grand jury system, i.e. a jury of Talossans would have to look at the State's evidence for prosecution under this law before it can be accepted by the Cort? We must also ask: are there any crimes not covered by the Covenants that we would want our State to be able to prosecute?
« Last Edit: January 12, 2021, 05:15:41 PM by Miestră Schivă, UrN »

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Offline Miestră Schivă, UrN

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Re: Committee of Legal Reforms
« Reply #20 on: January 12, 2021, 05:20:03 PM »
I'm thinking of a historical case, KR1 attempting to frame Sir Tamorán dàl Nava for domestic violence. If we adopted my schema, KR1 would have to have proved that Sir Tamorán had both:

a) on the balance of probabilities, "injured, endangered, risked or compromised the physical health, privacy, or tranquility of another person" (Sixth Covenant);

b) that this behaviour would tend to bring Talossa into disrepute.

Based on the evidence that KR1 could have brought up (a restraining order brought by his ex, if I remember right), there's no way Sir Tamorán could have been convicted. That said, would we have needed a further safeguard against malicious prosecution? I mentioned a grand jury before, but - say - imagine 7 Talossan citizens were picked at random and KR1 had to convince 4 of them to let him take the case to the Cort. Would that be sufficient safeguard? Or - as tends to happen in cults and fascist movements - would 4 Talossans be prepared to swear that black was white if KR1 told them to? Open question.

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Offline Sir Alexandreu Davinescu

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Re: Committee of Legal Reforms
« Reply #21 on: January 12, 2021, 10:35:24 PM »
PETTY THEFT: violation of the Fourth Covenant right to property. Should be liable for a misdemeanour charge, only if the Cort is satisfied that it's of the kind that brings Talossa into disrepute.

EMBEZZLEMENT: felony violation of the Fourth Covenant and brings Talossa into disrepute. More chance of a conviction and a serious punishment.

DOMESTIC VIOLENCE: felony violation of the Sixth Covenant and brings Talossa into disrepute. More chance of a conviction and a serious punishment.

ACCUSATION OF DOMESTIC VIOLENCE: Let's specify that conviction by a macronational court should be only considered prima facie evidence of bad behaviour; a State prosecutor (or the Cort) could look at the sentencing authority and go "kangaroo court under a dictatorship, not touching that". Or, alternatively, if someone gets off a rape/spousal abuse case because of a misogynist judge or jury, the Court would still be enabled to use the "balance of probabilities based on the evidence" test. The "bringing Talossa into disrepute" test would also come into action, for example, if it were a famous trial and a lot of people saw a rapist getting off because the courts are misogynist.

Here's where the rubber hits the road, though, doesn't it?  Under this proposal, the scope of Talossan prosecution seems as though it would -- in your view -- encompass all potential convictions or accusations or even exonerations, serious or no, as a basis for potential prosecution.  So if we were to end up someplace in this neighborhood -- which I'm not opposing -- there would need to be a whole trial and things really get messy.  If we're trying someone on the basis of an accusation of spousal abuse, for example, the Talossan in question would have due process rights that a Talossan court probably couldn't exercise in any real way.

Because of those things, I'd suggest the most practical way forward is to view and treat the matter as a question of accepting another country's judicial proceedings as acceptable in the eyes of our own Organic requirements.  In other words, I don't think it's feasible to really fairly design any process that can act on the basis of another country's accusations: only convictions should be an acceptable basis for review by our courts.
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Offline Miestră Schivă, UrN

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Re: Committee of Legal Reforms
« Reply #22 on: January 13, 2021, 01:17:47 AM »
I don't think it's feasible to really fairly design any process that can act on the basis of another country's accusations: only convictions should be an acceptable basis for review by our courts.

I can understand the logic of this position, though I'm not 100% convinced. Is there no act outside Talossa that a Talossan could do which would be, not illegal, but (a) repugnant to the Covenants, and (b) brings Talossa into disrepute, and that we might want to impose sanctions on? We couldn't decide to censure a Talossan who - oh, let's say - spread legal but repulsive hate speech outside Talossa?

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Offline Sir Alexandreu Davinescu

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Re: Committee of Legal Reforms
« Reply #23 on: January 13, 2021, 11:50:51 AM »
I don't think it's feasible to really fairly design any process that can act on the basis of another country's accusations: only convictions should be an acceptable basis for review by our courts.

I can understand the logic of this position, though I'm not 100% convinced. Is there no act outside Talossa that a Talossan could do which would be, not illegal, but (a) repugnant to the Covenants, and (b) brings Talossa into disrepute, and that we might want to impose sanctions on? We couldn't decide to censure a Talossan who - oh, let's say - spread legal but repulsive hate speech outside Talossa?
I'm sure there are all sorts of things that fall into those categories, either justly or unjustly! But that's the danger, isn't it? We can't punish people without due process, including a trial. Plus, the covenants are mostly guarantees against the power of the government, not specific crimes or even principles around which you could construct the basis for a criminal charge. If I told my daughter that she couldn't get an abortion, I couldn't be prosecuted for that, I don't think. Instead, it would just be a mechanism by which she could sue to get an abortion anyway, without my consent.

It might be possible to come up with a process that will ensure due process while also allowing for the prosecution of things that aren't crimes under our laws but which we don't like, but I can't even begin to imagine such a thing.
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Offline Miestră Schivă, UrN

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Re: Committee of Legal Reforms
« Reply #24 on: January 13, 2021, 02:51:30 PM »
Okay. If we accept the formulation that "the State can prosecute if someone is criminally convicted in a macronational court for a crime repugnant to our Covenant of Rights and Freedoms, and which would bring Talossa into disrepute in the eyes of those who share those values"; and also that a conviction is necessary but not sufficient (the Court has to decide that the verdict was "safe", i.e. the given court was credible and not a kangaroo court of a dictatorship)...

... is that enough that we can remove El Lex A.1-4?
« Last Edit: January 13, 2021, 02:55:55 PM by Miestră Schivă, UrN »

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