Lüc da Schir
Senator for Benito
If Italy wins a Six Nations match I will join the Zouaves
Posts: 4,125
Talossan Since: 3-21-2012
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Post by Lüc da Schir on Dec 9, 2018 15:13:17 GMT -6
I'm not well versed in legalese, but do I understand correctly that the draft calls for the Judiciary to use "the Common Law of other Anglo-American legal systems", so effectively legal/judicial precedent of other (arbitrarily designed) countries, as a basis for their rulings?
That would also be a pretty big concern to me.
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Miestrâ Schivâ, UrN
Seneschal
the new Jim Hacker
Posts: 6,635
Talossan Since: 6-25-2004
Dame Since: 9-8-2012
Motto: Expulseascâ, reveneascâ
Baron Since: Feudal titles are for gimps
Duke Since: Feudal titles are for gimps
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Post by Miestrâ Schivâ, UrN on Dec 9, 2018 15:14:52 GMT -6
Every time I get a spare few minutes and look at a new section of this thing, I see another giant change that has been kept secret. This current Draft OrgLaw has been available for public comment - which it received a lot of - since March of this year, as a culmination of a process of drafting and redrafting stretching back to August last year. I note that - unlike other RUMP leaders - you didn't take part in this. Was it perhaps that you didn't care about V's draft until it became something formal? That's fair enough - but for you to be yelling, in your usual high-octane, supercilious, trolling way, that this current draft is somehow being snuck past you is impressively dishonest, even by your own standards.
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Miestrâ Schivâ, UrN
Seneschal
the new Jim Hacker
Posts: 6,635
Talossan Since: 6-25-2004
Dame Since: 9-8-2012
Motto: Expulseascâ, reveneascâ
Baron Since: Feudal titles are for gimps
Duke Since: Feudal titles are for gimps
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Post by Miestrâ Schivâ, UrN on Dec 9, 2018 15:16:17 GMT -6
I'm not well versed in legalese, but do I understand correctly that the draft calls for the Judiciary to use "the Common Law of other Anglo-American legal systems", so effectively legal/judicial precedent of other (arbitrarily designed) countries, as a basis for their rulings? That would also be a pretty big concern to me. How is it different from "generally acknowledged principles of Anglo-American law", as in the current model? I have suggested - and V has been sympathetic - in the past to moving to a European-style Civil Code system.
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Post by Sir Alexandreu Davinescu on Dec 9, 2018 16:43:27 GMT -6
Every time I get a spare few minutes and look at a new section of this thing, I see another giant change that has been kept secret. This current Draft OrgLaw has been available for public comment - which it received a lot of - since March of this year, as a culmination of a process of drafting and redrafting stretching back to August last year. I note that - unlike other RUMP leaders - you didn't take part in this. You are correct. It was a combination of not having very much time then and not thinking it would actually go anywhere (a guess for which there is good precedent... look at GV and Flip's constitutions, neither of which has gone anywhere!) Was it perhaps that you didn't care about V's draft until it became something formal? That's fair enough - but for you to be yelling, in your usual high-octane, supercilious, trolling way, that this current draft is somehow being snuck past you is impressively dishonest, even by your own standards. Yikes, no... so maybe this is confusing. See, originally the draft was proposed as being essentially a streamlining of our current system. That's right in the whereases, actually. I noted that a number of changes that had failed on their own merits were included, though, and cried foul. I asked for a list of these changes. Here is the post: talossa.proboards.com/post/160331/threadThe Seneschal said he would provide what he said was a list of all of them. The link is here: talossa.proboards.com/post/160368/threadSince then, almost every time I look at this thing I see more giant changes that aren't on that list. These are not minor things... allowing the judiciary to legislate is not small! And it keeps happening. I shouldn't have to cross-check every clause to catch them! It's getting to the point where only two possibilities can be true: You guys are being sneaky. You're embarrassed about some of these changes and don't think they will stand up to scrutiny, so you don't want to defend them. To avoid having to discuss them, you omitted mentioning them, in the hopes they would stay hidden. You guys still haven't closely read your own bill. I didn't propose this thing, and so I don't know every clause of it. It's very long and complicated, so I might not catch every big change on the first pass or second pass or tenth pass. But the people proposing it should know what they're proposing. If you didn't know you were advocating for the judiciary to write laws, and it is clear you did not, then why are we even doing this? You're literally 50% of the people defending this and you haven't read it! So which is it? You trying to sneak this stuff through, or do you not know your own bill?
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Post by Sir Alexandreu Davinescu on Dec 9, 2018 16:45:42 GMT -6
I'm not well versed in legalese, but do I understand correctly that the draft calls for the Judiciary to use "the Common Law of other Anglo-American legal systems", so effectively legal/judicial precedent of other (arbitrarily designed) countries, as a basis for their rulings? That would also be a pretty big concern to me. It is a pretty big change, yes. Right now the law provides for the use of common principles of law, such as "fruit of the poison tree," etc. This would direct the justice system to actually include common law rulings -- legislation from the bench -- into our system. It's not as big a deal as the sneaky new "hey now judges should do this" thing overall, but it's not good, either.
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Ian Plätschisch
Senator for Maritiimi-Maxhestic
Posts: 4,001
Talossan Since: 3-21-2015
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Post by Ian Plätschisch on Dec 9, 2018 21:04:27 GMT -6
The worry about "legislating from the bench" seems not to be well-supported from my review of the section. All it says is that the judiciary may interpret the law and that the interpretation will hold until the Ziu changes it. I fail to see how this is a significant change, since at the moment the UC can interpret laws, and will likely interpret the same law the same way until it is changed. Similarly, allowing for the adoption of Anglo-American common law is not much different from instructing the UC to "commonly accepted principles of Anglo-American law"; the purpose of common law is to fill in gaps in the legal code until they are addressed.
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Ian Plätschisch
Senator for Maritiimi-Maxhestic
Posts: 4,001
Talossan Since: 3-21-2015
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Post by Ian Plätschisch on Dec 9, 2018 21:06:14 GMT -6
FYI my last two final exams are on Tuesday, and after that, doing another edit of the draft will be my top priority.
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Post by Sir Alexandreu Davinescu on Dec 9, 2018 22:02:29 GMT -6
The worry about "legislating from the bench" seems not to be well-supported from my review of the section. All it says is that the judiciary may interpret the law and that the interpretation will hold until the Ziu changes it. I fail to see how this is a significant change, since at the moment the UC can interpret laws, and will likely interpret the same law the same way until it is changed. Similarly, allowing for the adoption of Anglo-American common law is not much different from instructing the UC to "commonly accepted principles of Anglo-American law"; the purpose of common law is to fill in gaps in the legal code until they are addressed. If there's no difference, can we change it back?
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Post by Sir Alexandreu Davinescu on Dec 9, 2018 22:04:05 GMT -6
FYI my last two final exams are on Tuesday, and after that, doing another edit of the draft will be my top priority. Is it just going to be you and me actually fixing the problems, with Luc proposing some amendments and Miestra chiming in occasionally to cast aspersions? Any prospect of actually getting the nation involved on some larger level? Or at least the rest of the government?
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Post by Sir Alexandreu Davinescu on Dec 12, 2018 15:59:10 GMT -6
Ok, well, I give up. More than a month spent waiting to improve an entire branch of the prospective government, not a single other person looking critically at the proposed new constitution... this just isn't being taken seriously. I'm not going to waste my time.
Good luck.
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Ian Plätschisch
Senator for Maritiimi-Maxhestic
Posts: 4,001
Talossan Since: 3-21-2015
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Post by Ian Plätschisch on Dec 12, 2018 17:51:00 GMT -6
Ok, well, I give up. More than a month spent waiting to improve an entire branch of the prospective government, not a single other person looking critically at the proposed new constitution... this just isn't being taken seriously. I'm not going to waste my time. Good luck. As promised, a new draft, taking into account some of your suggestions, is nearly complete. You are raising many points and it is hard for me to remember them all. Can you propose amendments to fix each problem you see individually? That way it would be easier to keep track of and debate them all. To the extent that you have already done this, thank you.
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Post by Viteu Marcianüs on Dec 12, 2018 18:04:08 GMT -6
I'm not well versed in legalese, but do I understand correctly that the draft calls for the Judiciary to use "the Common Law of other Anglo-American legal systems", so effectively legal/judicial precedent of other (arbitrarily designed) countries, as a basis for their rulings? That would also be a pretty big concern to me. The current draft reads this way. The common law is the Court's ability to recognize uncodified law that is binding. Under stare decisis, the court wont overturn settled law unless there's a good reason. The Court of last resort sets binding precedent on all lower courts. But a lower court can identify a new cause of action or remedy equiry where strict application of the law causes injustice. This allows for robust law that doesn't require the Legislature to always fix. But, common law is almost always subserviant to the legislature (this is different than judicial review). That is, the legislature can reverse a court (again, this doesnt apply to judicial review). Common law works best when Courts write thorough decisions to explain reasoning, and where lower/sister courts rely on that precedent In many Civil Law countries, the legislature mustfix inequity in the law. Talossa has, arguably, acted as a de facto civil law state considering our inactive judiciary. The courts apply the statute as written, and prior application is persuasive not binding (not applying to judicial review with Constitutional Courts). Stare decisis does not exist butjurisprudence constante, which is not as binding. In Mexico,for example, it takes five Supreme Court decisions for something to be binding on the lower courts. But this system is great for short decisions. The issue, I think, is how to balance the two. I think a hybrid might work - the UC has the power of judicial review and its decisions are binding under stare decisis, allowing it to recognize the common law, but inferior courts are restricted to statutory law and their decisions are only persuasive. Thoughts?
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Post by Viteu Marcianüs on Dec 12, 2018 18:12:47 GMT -6
Lüc da Schir , my comment above was based on a converation I had with Glüc da Dhi . Sorry for the confusion. The "lüc" threw me off. I'm actually fine with removing the anglo-american langauge. This should really be considered for judicial review of fundamental rights, not how we interpret our own statutes. The otherside though is thay we may need to look to other countries for procedure where Talossan law is lacking. I'm completely supportive of removing the "anglo-american" shackles here.
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Miestrâ Schivâ, UrN
Seneschal
the new Jim Hacker
Posts: 6,635
Talossan Since: 6-25-2004
Dame Since: 9-8-2012
Motto: Expulseascâ, reveneascâ
Baron Since: Feudal titles are for gimps
Duke Since: Feudal titles are for gimps
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Post by Miestrâ Schivâ, UrN on Dec 12, 2018 19:05:30 GMT -6
Ok, well, I give up. More than a month spent waiting to improve an entire branch of the prospective government, not a single other person looking critically at the proposed new constitution... this just isn't being taken seriously. I'm not going to waste my time. Good luck. Ha ha, is it a coincidence that AD "gives up" just at the time that V returns to active service and can answer his increasingly hyperbolic complaints about possibly imaginary loopholes?
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Miestrâ Schivâ, UrN
Seneschal
the new Jim Hacker
Posts: 6,635
Talossan Since: 6-25-2004
Dame Since: 9-8-2012
Motto: Expulseascâ, reveneascâ
Baron Since: Feudal titles are for gimps
Duke Since: Feudal titles are for gimps
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Post by Miestrâ Schivâ, UrN on Dec 15, 2018 16:37:50 GMT -6
Also: AD gave up on the relaunch of Berich't Talossán - for which he had received state funding - to, he said, entirely devote himself to sabotaging helping with the New OrgLaw process.
Now that he's "given up", maybe we'll get BT back after all?
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