The Talossan Law Repatriation (Crimes Repugnant to Talossanity) Bill

[Miestră Schivă, UrN]

WHEREAS the 31st Cosa chose to deal with the lack of Talossan law against "murder, rape, robbery" and other serious crimes against the person by incorporating the laws of the State of Wisconsin into Talossan law, where indigenous Talossan law does not contradict them;

AND WHEREAS the 35th Cosa amended this to specify only certain sections of the Wisconsin Statutes, which currently comprise sections A.1-4 of El Lexhatx;

AND WHEREAS this means that a thorough knowledge of Talossan law necessarily requires a knowledge of Wisconsin law;

AND WHEREAS Wisconsin law has never in fact been used to punish infamous crimes committed by Talossan citizens, such as statutory rape;

AND WHEREAS the practice of Talossan law and jurisprudence should be open to all Talossans, not just those who are already professional lawyers;

AND WHEREAS the only way Wisconsin law has been used in Talossa is by trained practitioners of United States law introducing Wisconsin precedent into their Talossan legal briefs, giving those trained in United States law an unfair advantage over those who are only trained in Talossan law;

AND WHEREAS we should find a different way to achieve the original intent of the measure, which was to make infamous crimes against the person a crime under Talossan law;

AND WHEREAS the basic principles of what is moral, right and good under Talossan law are already contained in our Covenant of Rights and Freedoms;

AND WHEREAS previous versions of the Organic Law specified "generally accepted principles of Anglo-American law" as a foundation for Talossan law, but this has been removed;

AND WHEREAS it is wise to re-establish some legislative basis for Talossan juridical practice;


BE IT ENACTED by the Ziu that sections A.1-4 of El Lexhatx are replaced in their entirety by the following:

1. The basis of all Talossan law and jurisprudence are the principles contained in the Covenant of Rights and Freedoms.

2. Where Talossan statute law is silent, Talossan courts shall make decisions in accordance with Talossan juridical precedent. Judges may also use precedent from other legal systems with which they are familiar to guide their decisions, though such precedent shall not be binding.

3. Behaviour by any Talossan citizen which is repugnant to the principles contained in the Covenant of Rights and Freedoms is an offence, and Courts may apply any punishment authorised by Organic and statute law to those convicted of such behaviour, in strict proportion to the severity of the offence and the presence or absence of any mitigating circumstances.

4. For repugnant behaviour as described above which takes place outside Talossa, conviction by a credible judicial authority in another jurisdiction shall count as prima facie evidence.

[GV]

+1

This also, by implication at least, addresses what would need to be done should extra-Talossan crimes be tried in a Talossan court of law.  Well-done on this.

[Baron Alexandreu Davinescu]

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.

[Miestră Schivă, UrN]

Let's try that again.

===
WHEREAS the 31st Cosa chose to deal with the lack of Talossan law against "murder, rape, robbery" and other serious crimes against the person by incorporating the laws of the State of Wisconsin into Talossan law, where indigenous Talossan law does not contradict them;

AND WHEREAS the 35th Cosa amended this to specify only certain sections of the Wisconsin Statutes, which currently comprise sections A.1-4 of El Lexhatx;

AND WHEREAS this means that a thorough knowledge of Talossan law necessarily requires a knowledge of Wisconsin law;

AND WHEREAS Wisconsin law has never in fact been used to punish infamous crimes committed by Talossan citizens, such as statutory rape;

AND WHEREAS the practice of Talossan law and jurisprudence should be open to all Talossans, not just those who are already professional lawyers;

AND WHEREAS the only way Wisconsin law has been used in Talossa is by trained practitioners of United States law introducing Wisconsin precedent into their Talossan legal briefs, giving those trained in United States law an unfair advantage over those who are only trained in Talossan law;

AND WHEREAS we should find a different way to achieve the original intent of the measure, which was to make infamous crimes against the person a crime under Talossan law;

AND WHEREAS the basic principles of what is moral, right and good under Talossan law are already contained in our Covenant of Rights and Freedoms;

AND WHEREAS previous versions of the Organic Law specified "generally accepted principles of Anglo-American law" as a foundation for Talossan law, but this has been removed;

AND WHEREAS it is wise to re-establish some legislative basis for Talossan juridical practice;


BE IT ENACTED by the Ziu that:

1.  Sections A.1-4 and A.7-8 of El Lexhatx are repealed in their entirety.

2. Sections A.1-3 of El Lexhatx shall henceforth read as follows:

1. The basis of all Talossan law and jurisprudence is the principles contained in the Covenant of Rights and Freedoms.

2. Where Talossan statute law is silent, Talossan courts shall make decisions in accordance with Talossan juridical precedent. Judges may also use precedent from other legal systems with which they are familiar to guide their decisions, though such precedent shall not be binding.

3. A Talossan citizen who is convicted in another jurisdiction, by a credible judicial authority, of an offence incurring penal servitude which is repugnant to the values expressed in the Covenant of Rights and Freedoms, shall be guilty of the crime of "repugnant behaviour bringing Talossa into disrepute", and be liable to a punishment of severity in strict proportion to the severity of the said offence.

3. The sections of Title A of El Lexhatx shall be subsequently renumbered consecutively.

[C. M. Siervicül]

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."

[Miestră Schivă, UrN]

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?

[Baron Alexandreu Davinescu]

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.

[Miestră Schivă, UrN]

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.

Sources, please. "My government"?

[Baron Alexandreu Davinescu]

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...

All right, time for some archeology. Wisconsin law was written into our law (at the proposal of KR1) by 31RZ14, which reads in part:

WHEREAS 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?

[Miestră Schivă, UrN]

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.

[Baron Alexandreu Davinescu]

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!

[Miestră Schivă, UrN]

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.

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."

.

Stare decisis is, in fact, the process by which the common law felonies emerged, on the basis of the commonly-held social mores of 11th century England. "Sodomy" and "mayhem" did not originate in statute, although it would be funny if they did.

This is not a semantic question. It's a broader question of whether Talossa is to be a common-law or a civil-law jurisdiction. Hitherto we have been a common-law one, precisely one in which "new crimes" historically emerged from judicial decisions - or, to be precise, judicial decisions codified existing community mores. The Organic Law formally mandated "Anglo-American" precedent, but that's gone now; what I am attempting here is to establish an indigenous Talossan Common Law tradition, based primarily on the Covenants.

There is a good argument to switch from this to a Civil Law jurisdiction in which only statute law has any effect; but pick one. Stare decisis literally historically has meant that judges make law, including new crimes, until overruled by statute. The only good reason not to prefer a Civil Law solution is the time and effort it would take to design an indigenous criminal code.

[Baron Alexandreu Davinescu]

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.

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 :)

This 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.

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.

[Miestră Schivă, UrN]

Certainly, hitherto, Talossan jurisprudence has copied United States judicial practice. As you previously and correctly stated:

Yes, the modern court system has been bent inexorably towards the court system with which most of the judges in office have been familiar.

And it is precisely this that I seek to replace with either a fully indigenous Talossan common law; or an indigenous Civil Law system. I see this as patriotism. What is the point of being Talossa if we are going to act like the Big Neighbour, or to assume that the way the Big Neighbour does things should be our way. It also removes the unfair advantage that trained US legal professionals have in a system which operates as a "toy version" of the system they spend their livelihoods in.

Once again I reiterate: I am taking option A only because option B would be far more work. A secondary motive is that an indigenous Common Law system would preserve the principle of stare decisis, which seems very popular with conservative Talossans; a Civil Code system would have no need for that and every judge could use their individual discretion in every case.

[Baron Alexandreu Davinescu]

Certainly, hitherto, Talossan jurisprudence has copied United States judicial practice. As you previously and correctly stated:

Yes, the modern court system has been bent inexorably towards the court system with which most of the judges in office have been familiar.

And it is precisely this that I seek to replace with either a fully indigenous Talossan common law; or an indigenous Civil Law system. I see this as patriotism. What is the point of being Talossa if we are going to act like the Big Neighbour, or to assume that the way the Big Neighbour does things should be our way. It also removes the unfair advantage that trained US legal professionals have in a system which operates as a "toy version" of the system they spend their livelihoods in.

Once again I reiterate: I am taking option A only because option B would be far more work.

Yes, I believe I already said that we share the common goal of a fully indigenous Talossan law?  But that goal is only a mooncast shadow when compared to the roaring sun of "people shouldn't have to guess at what might be a crime."