>The major difference would be: impartiality, desire to find the truth, and to do justice – instead of winning at any cost, regardless of guilt or innocence.
Therein lies the first problem. Impartiality is assumed to be neutrality when nothing could be further from the case. <heh> The value of the dialectic, taken in judicial systems to an illogical extreme, is to balance sides against each other, not from an imaginary neural standpoint, but from a common sense understanding of reality that all judges are supposed to grasp. This concept is writ large in law as "reasonable man" and thereafter ignored.
>The bail system should be completely divorced from money – instead it should use the best judgment available to evaluate the danger the accused is posing to society if left at large.
The whole idea of bail is morally bankrupt. If you have enough information to know someone is a danger to society, that means they're presumed guilty and should be treated as such. If you don't, that means you're punishing according to criteria not related to the event in question. It's fundamentally unjust, even without regard to its practical application. Keeping someone in jail is a Punishment, not an administrative accident. Accusation is treated as guilt and to be frank, those adjudicated guilty are treated BETTER than those with the fraudulent assumption of innocence.
>Could this new social contract be corrupted? Of course it could. Human beings are very good at corrupting anything, given time. But it would work for a while, maybe long enough for people to develop a taste for sanity.
A social contact is only as good as it is explicit and consentual, neither of which is part of any society today.
>Do I seriously think that the proposed changes are possible?
>Not really.
We're Doomed!
>Scientists are also fighting with each other (in some environments, not in others) but the warfare is about personal ambition and not about scientific truth.
Now that's a psychological issue for society, not a philosophical one. It's ego to the core.
My reason for living, such as it is, centers on justice. Because i legitimately value justice i recognise Truth is a prerequisite for it. As a legitimate Disciple of Truth, i value actionable certainty. Anyone who does not value these things in that order is literally incapable of understanding or producing justice. Extended results and conditions may vary.
The adversarial “justice” system -- other options?
Re: The adversarial “justice” system -- other options?
>Let's [i]pretend[/i] we're satisfied with the body of laws we have at present - the law is not on trial; there is no disagreement over whether some act is criminal, whether someone suspected of committing it should be brought to justice; whether a convicted criminal should be condemned to punishment or correction, and by what means.
That's far too far already. The law is in actuality, often counter-productively to the intended goals and beyond that, often simply self-refuting. These aren't side issues and there's no relevant hypothetical that will be meaningful without accounting for them.
>Then, one component we should definitely keep is a jury. "Of his peers" is problematic - I certainly wouldn't like Conrad Black tried by house of Lords, or Bernie Madoff by a dozen money marketeers. For most trials, I'm content with a random selections of eligible citizens. On the whole, I'm content with the Canadian jury selection process (I haven't seen the US or British ones in operation.)
If the jury cannot meaningfully be of one's actual peers, what's the point? It's just tyranny of the majority with a smaller majority, chosen by others with their own self-interests involved - not just. And even assuming these imaginary peers are available, why do they get an assumption of non-ignorance? That's unwarranted.
>I'm generally satisfied with the magistrates, court clerks, recorders and legal researchers.
Cogs aren't the direct problem but they're still a big problem, it's the implicit and explicit support they provide by default.
>How about this? ... This one team would serve [i]all [/i] concerned in a case: police, accused, victim, litigants - even the grandmother who might get custody of a child if her son is sent to jail.
There are three interested parties in any matter of justice:
a) the wrongdoer, for whom justice is served by restitution
b) the victim(s), for whom justice is served by redress
c) society, for whom justice is served by rehabilitation.
Extending it to the grandmother is an unwarranted complication. Extending it to the police is an unwarranted bias. After the Right Answer is found, than the problem of implementation can be addressed with it's inherent pragmatic limitations.
That's far too far already. The law is in actuality, often counter-productively to the intended goals and beyond that, often simply self-refuting. These aren't side issues and there's no relevant hypothetical that will be meaningful without accounting for them.
>Then, one component we should definitely keep is a jury. "Of his peers" is problematic - I certainly wouldn't like Conrad Black tried by house of Lords, or Bernie Madoff by a dozen money marketeers. For most trials, I'm content with a random selections of eligible citizens. On the whole, I'm content with the Canadian jury selection process (I haven't seen the US or British ones in operation.)
If the jury cannot meaningfully be of one's actual peers, what's the point? It's just tyranny of the majority with a smaller majority, chosen by others with their own self-interests involved - not just. And even assuming these imaginary peers are available, why do they get an assumption of non-ignorance? That's unwarranted.
>I'm generally satisfied with the magistrates, court clerks, recorders and legal researchers.
Cogs aren't the direct problem but they're still a big problem, it's the implicit and explicit support they provide by default.
>How about this? ... This one team would serve [i]all [/i] concerned in a case: police, accused, victim, litigants - even the grandmother who might get custody of a child if her son is sent to jail.
There are three interested parties in any matter of justice:
a) the wrongdoer, for whom justice is served by restitution
b) the victim(s), for whom justice is served by redress
c) society, for whom justice is served by rehabilitation.
Extending it to the grandmother is an unwarranted complication. Extending it to the police is an unwarranted bias. After the Right Answer is found, than the problem of implementation can be addressed with it's inherent pragmatic limitations.
open-market socialist justice
Society must guarantee equality of sufficiency to everyone. After that, when there is a conflict of interests, it should always favor those who have the greatest need. If need is not at stake they can choose their own system of justice, let it be, duel, whatever, as long as it's legit consentual. I'd like to be a private judge. All businesses are non-profits, BTW. The profit motive is immoral. Let's have some real open-market socialist justice competition.
Re: The adversarial “justice” system -- other options?
>In a big, heterogeneous, federated nation-state, law is never going to be simple; the work of courts is never going to be easy.
Then a big heterogeneous, federated nation-state is fundamentally unjust. Law must be simple to be relevant and legitimate; accessible to all. It must also be minimal to be efficient, and to maximize freedom. Is that enough?
>In a case of constitutional ambiguity, it's not a problem of adversarialism or winning; it's a problem of interpretation and the logistics of application. Legislatures and courts will always have a lag-time between their decisions, whether there are two or more (police, appeals courts, insurance companies, escrow, injunctions) sides, whether they are represented separately, or en classe. That's just a feature of complexity.
That's a feature of unnecessary complexity, and an admonishment of any system that can't keep it's own house clean.
>In litigation between two equal parties, I have no objection to adversarial legal proceedings: after all, they[i] are [/i]adversaries.
Between a large corporation and a single wronged employee, or a landlord and one tenant, even though they are adversaries, it doesn't work at all well because they are unequal. That's why they have class action suits. The biggest problem with those is that discovery is a long and difficult process (the more litigants, the more depositions and cross-checks, etc.) and sifting through such a mountain of information can take years - by which time, half the complainants will have died without compensation. This kind problem is harder to solve.... so I suggest[i] preventing [/i]it, instead, with good government regulation and a good complaint board to deal with individual infractions as they happen.
Each sort of legal issue can be dealt-with on its own terms and probably improved, but not all types would benefit from removing the confrontational approach, or the goal of a clear victory.
Any system that has a scale difference of 100x the individual can never be fair. Society must always prioritize the individual. The good of the collective is the good of everyone in it, not the majority. Do you want the majority of your organs working well?
>It's appropriate in the particular instance of criminal law to remove confrontation, because this, above all, is a matter of the citizen vs the machinery of the state. That is not an economic issue: it's a moral and psychological one. The government exists to protect [i]all[/i] citizens - it's not supposed to be the enemy of some in order to befriend others; it's not supposed to take up sides. It's supposed to keep peace and order among all the people; it's supposed to mete out justice impartially.
The most important thing in justice is to make emotions subservient to reason. You can account for emotions rationally but not the other way around.
Then a big heterogeneous, federated nation-state is fundamentally unjust. Law must be simple to be relevant and legitimate; accessible to all. It must also be minimal to be efficient, and to maximize freedom. Is that enough?
>In a case of constitutional ambiguity, it's not a problem of adversarialism or winning; it's a problem of interpretation and the logistics of application. Legislatures and courts will always have a lag-time between their decisions, whether there are two or more (police, appeals courts, insurance companies, escrow, injunctions) sides, whether they are represented separately, or en classe. That's just a feature of complexity.
That's a feature of unnecessary complexity, and an admonishment of any system that can't keep it's own house clean.
>In litigation between two equal parties, I have no objection to adversarial legal proceedings: after all, they[i] are [/i]adversaries.
Between a large corporation and a single wronged employee, or a landlord and one tenant, even though they are adversaries, it doesn't work at all well because they are unequal. That's why they have class action suits. The biggest problem with those is that discovery is a long and difficult process (the more litigants, the more depositions and cross-checks, etc.) and sifting through such a mountain of information can take years - by which time, half the complainants will have died without compensation. This kind problem is harder to solve.... so I suggest[i] preventing [/i]it, instead, with good government regulation and a good complaint board to deal with individual infractions as they happen.
Each sort of legal issue can be dealt-with on its own terms and probably improved, but not all types would benefit from removing the confrontational approach, or the goal of a clear victory.
Any system that has a scale difference of 100x the individual can never be fair. Society must always prioritize the individual. The good of the collective is the good of everyone in it, not the majority. Do you want the majority of your organs working well?
>It's appropriate in the particular instance of criminal law to remove confrontation, because this, above all, is a matter of the citizen vs the machinery of the state. That is not an economic issue: it's a moral and psychological one. The government exists to protect [i]all[/i] citizens - it's not supposed to be the enemy of some in order to befriend others; it's not supposed to take up sides. It's supposed to keep peace and order among all the people; it's supposed to mete out justice impartially.
The most important thing in justice is to make emotions subservient to reason. You can account for emotions rationally but not the other way around.
Re: The adversarial “justice” system -- other options?
The defense counsel in a criminal case is very nearly an unlimited advocate. He may, and often should, try to bring the jury to believe the opposite of what he knows to be the truth. There are some limitations. He cannot ethically put in evidence he knows to be fraudulent or induce, encourage, or abet witnesses in giving testimony he knows to be false. It is, however, ethically permissible to make a prosecution witness that he knows to be telling the truth seem, in the eyes of the jury, to be an abject liar.
The fact that it's considered permissable, under cloak of justice, to attempt to cause a person more suffering than necessary, regardless of guilt, proves beyond a reasonable doubt that the system is morally reprehensible.
>Prosecutors are advocates bound by some important restrictions. New prosecutors are always told that their job is not to get convictions, but to do justice. Any experienced prosecutor will have dismissed cases when she found that the evidence didn’t support conviction.
A prosecutor must have a higher degree of confidence in the truthfulness of a witness than would a defense counsel before putting the witness on the stand. An ethical prosecutor does not make a defense witness appear to be lying if the prosecutor believes that the witness in fact is telling the truth. (The prosecutor’s time line would be easier if the jury didn’t believe the witness that the defendant got to the party by 9 pm, but the witness is probably telling the truth, and the prosecutor will just have to show that it is possible to get across town in the time that leaves.)
It is still an adversarial process, but a modified and asymmetrical one. In a contract case, it is symmetrical.
You seem to have forgotten the part about how none of that is how it literally every fucking works.
>Most participants are less pessimistic than the general public about the right people getting convicted and the right ones acquitted in the criminal trial system. Even those juries that seem to reach their verdict by an odd route usually arrive at the right destination. It happens that utterly innocent people are convicted by juries, but it does not happen statistically often.
Your presumption that if they've actually broken the law that means they did something they should be punished for or that the state has the legitimacy to hold court are both unwarranted.
>The very poor are usually defended by very competent, if always overworked, public defenders. (It is those not quite poor enough to qualify for a public defender who have the weakest representation in many parts of the United States.)
You say that as though those competent but overworked public defenders are in any sense sufficient. They are not.
>The poor can rarely expect to come out well in a contract case against a big company.
*The poor can never expect to come out well in any case of any kind anywhere, even if they brought it.
>For a criminal trial, the thing of greatest concern is that the innocent are not convicted.
Never practiced, no longer preached.
The fact that it's considered permissable, under cloak of justice, to attempt to cause a person more suffering than necessary, regardless of guilt, proves beyond a reasonable doubt that the system is morally reprehensible.
>Prosecutors are advocates bound by some important restrictions. New prosecutors are always told that their job is not to get convictions, but to do justice. Any experienced prosecutor will have dismissed cases when she found that the evidence didn’t support conviction.
A prosecutor must have a higher degree of confidence in the truthfulness of a witness than would a defense counsel before putting the witness on the stand. An ethical prosecutor does not make a defense witness appear to be lying if the prosecutor believes that the witness in fact is telling the truth. (The prosecutor’s time line would be easier if the jury didn’t believe the witness that the defendant got to the party by 9 pm, but the witness is probably telling the truth, and the prosecutor will just have to show that it is possible to get across town in the time that leaves.)
It is still an adversarial process, but a modified and asymmetrical one. In a contract case, it is symmetrical.
You seem to have forgotten the part about how none of that is how it literally every fucking works.
>Most participants are less pessimistic than the general public about the right people getting convicted and the right ones acquitted in the criminal trial system. Even those juries that seem to reach their verdict by an odd route usually arrive at the right destination. It happens that utterly innocent people are convicted by juries, but it does not happen statistically often.
Your presumption that if they've actually broken the law that means they did something they should be punished for or that the state has the legitimacy to hold court are both unwarranted.
>The very poor are usually defended by very competent, if always overworked, public defenders. (It is those not quite poor enough to qualify for a public defender who have the weakest representation in many parts of the United States.)
You say that as though those competent but overworked public defenders are in any sense sufficient. They are not.
>The poor can rarely expect to come out well in a contract case against a big company.
*The poor can never expect to come out well in any case of any kind anywhere, even if they brought it.
>For a criminal trial, the thing of greatest concern is that the innocent are not convicted.
Never practiced, no longer preached.
Re: The adversarial “justice” system -- other options?
[quote="Hobbes' Choice" post_id=204072 time=1432018554 user_id=9491]
Gosh, I agree.
Except that there is far more to Darwinism than that. What you are talking about is laisez-faire "survival of the fittest" capitalism. Darwin also talked about intra-group, and intra species co-operation, as well as competition.
Modern corporate capitalism engineers unfair trades, restrictive import strategies, insider trading, monopololies... All sorts of dirty tricks which pay no respect for the land and resources it uses, as it can move on and wreck another ecosystem with consequence.
At least if a species gets too big it is forced to reduce in size.
[/quote]
Taken to its logical extreme, capitalism will have a price tag on every serialized molecule of air.
Gosh, I agree.
Except that there is far more to Darwinism than that. What you are talking about is laisez-faire "survival of the fittest" capitalism. Darwin also talked about intra-group, and intra species co-operation, as well as competition.
Modern corporate capitalism engineers unfair trades, restrictive import strategies, insider trading, monopololies... All sorts of dirty tricks which pay no respect for the land and resources it uses, as it can move on and wreck another ecosystem with consequence.
At least if a species gets too big it is forced to reduce in size.
[/quote]
Taken to its logical extreme, capitalism will have a price tag on every serialized molecule of air.