[DEFEATED] No Penalty Without Law

[Scow Creek]

Did I miss the resolution that prohibits nations from passing NEW laws somehow? If I did, those gnomes are doing a really shitty job, I must say....

And therein lies the fatal element of this resolution that its supporters are doing semantic gymnastics to avoid: at it's heart, it is an embrace of civil law over common law and an expectation that nations will 'pass laws.'

The irony is that while you want to blame Police States for opposing this, we are in fact one of the most libertarian states n the WA, with no police or standing military. So perhaps you might want to think again about your perspective...

[Sciongrad]

And therein lies the fatal element of this resolution that its supporters are doing semantic gymnastics to avoid: at it's heart, it is an embrace of civil law over common law and an expectation that nations will 'pass laws.'

Stipulates that neither member nations, nor political subdivisions thereof, may arrest, detain, prosecute, or punish by law any individual unless they have committed a crime that is specifically illegal according to ... judicial precedents, or guidelines with the force of law;

"How does this embrace civil law?"

[Chester Pearson]

And therein lies the fatal element of this resolution that its supporters are doing semantic gymnastics to avoid: at it's heart, it is an embrace of civil law over common law and an expectation that nations will 'pass laws.'

So don't pass laws then. No one is forcing you to. Last time I checked, civil law, and criminal law were two different things, but I guess that just must be my "selective" reading that is all the rage these days....

What is so hard to understand about this? If person A does not break any laws currently on the books, they cannot be prosecuted for it? I mean really it is fairly common sense, unless common sense is also at a premium now days? What the hell does common law have to do with it? Common law is ON THE BOOKS, unless it is just made up on the fly in you nation, in which case you have far bigger problems to worry about....

[Scow Creek]

Stipulates that neither member nations, nor political subdivisions thereof, may arrest, detain, prosecute, or punish by law any individual unless they have committed a crime that is specifically illegal according to ... judicial precedents, or guidelines with the force of law;

"How does this embrace civil law...?"

Precedents: In other words, one may act based on judicial PRECEDENT (ie, what has gone BEFORE), but it inherently prohibits EXPANSIONS, CHANGES, or NEW APPLICATIONS of common law because it would not be "pre-sedent," ie, formerly set.

To give you an example, a Judicial Precedent may hold, say, that one may not pour Toxin X into a pond because of the degrading effect it has on Fish.

Contrary any law on point, if someone pours Toxin Y into a pond with NO effect on fish whatsoever, but it *does* have an effect on freshwater mollusks, your reliance on (1) written statute and (2) Judicial Precedent (meaning decided PREVIOUSLY), binds the hands of the criminal justice system from an action against Polluter "Y."

Is that Clear?

[Chester Pearson]

Stipulates that neither member nations, nor political subdivisions thereof, may arrest, detain, prosecute, or punish by law any individual unless they have committed a crime that is specifically illegal according to ... judicial precedents, or guidelines with the force of law;

"How does this embrace civil law...?"

Precedents: In other words, one may act based on judicial PRECEDENT (ie, what has gone BEFORE), but it inherently prohibits EXPANSIONS, CHANGES, or NEW APPLICATIONS of common law because it would not be "pre-sedent," ie, formerly set.

To give you an example, a Judicial Precedent may hold, say, that one may not pour Toxin X into a pond because of the degrading effect it has on Fish.

Contrary any law on point, if someone pours Toxin Y into a pond with NO effect on fish whatsoever, but it *does* have an effect on freshwater mollusks, your reliance on (1) written statute and (2) Judicial Precedent (meaning decided PREVIOUSLY), binds the hands of the criminal justice system from an action against Polluter "Y."

Is that Clear?

OOC: And in what country exactly would the government be permitted to prosecute upon those grounds? In pretty much every nation where I have studied their criminal system, if the law isn't on the books, then it is not permitted to be "implied" as you are suggesting. Why would this be any different here?

What you are effectively arguing is National Sovereignty. While that is fully permitted in debates, it is usually customary to make that intention known, rather that hiding behind a thin veil of hypothetical situations, which have absolutely no basis in NationStates.

[Point Breeze]

OOC: I'm not saying this again, so read closely. This resolution does not require written statutes. Judicial precedent is a perfectly acceptable basis of criminal punishment under this resolution. The reason this is failing right now is not because 2/3 of the World Assembly have no reading comprehension skills but rather because Europeia has stacked against due to a possible flaw regarding detainment. In case you missed that, judicial precedent (or anything else with the force of law, for that matter), can be used as a basis of criminal punishment, including your Common Law Doctrine of Trespass-to-Society. Are we good?

No, we are not. Your position is self-righteous and arrogant.

Furthermore, your approach TIES THE HANDS of the Judiciary to EXISTING precedent, and prohibits extensions and changes as society evolves.

If Europeia stacking against it has worked to defeat it, fine. But I can tell you that 3/4 of the XKI have voted against it as well, and for the same common-law based reasons as I've articulated.

Your judges are perfectly capable of making reasonable assumptions that dont rely on legislature when establishing new precedent. How do you think common law has evolved to the point it has (OOC) today?

[Sciongrad]

Stipulates that neither member nations, nor political subdivisions thereof, may arrest, detain, prosecute, or punish by law any individual unless they have committed a crime that is specifically illegal according to ... judicial precedents, or guidelines with the force of law;

"How does this embrace civil law...?"

Precedents: In other words, one may act based on judicial PRECEDENT (ie, what has gone BEFORE), but it inherently prohibits EXPANSIONS, CHANGES, or NEW APPLICATIONS of common law because it would not be "pre-sedent," ie, formerly set.

To give you an example, a Judicial Precedent may hold, say, that one may not pour Toxin X into a pond because of the degrading effect it has on Fish.

Contrary any law on point, if someone pours Toxin Y into a pond with NO effect on fish whatsoever, but it *does* have an effect on freshwater mollusks, your reliance on (1) written statute and (2) Judicial Precedent (meaning decided PREVIOUSLY), binds the hands of the criminal justice system from an action against Polluter "Y."

Is that Clear?

"The text does not preclude the addition of new precedent. New interpretations of laws and older precedent are perfectly permissible and are examples of other guidelines with the force of law as well. You seem to be under the impression that the resolution requires member nations to defer exactly to previous precedent (i.e. rulings must be identical to old ones) - this is not true. A new ruling based on precedent or statute is perfectly legitimate. For example, if a court has ruled previously that pouring toxin x into a lake is illegal, then another court can easily rule that pouring toxin y is illegal because precedent exists that suggests such an action should be illegal, therefore, the action would be illegal according to precedent. However, if no precedent, statute, or guideline suggests that pouring toxins into a lake (or similar situations that could reasonably used as a basis for precedent) exists, then obviously no new ruling could be formed on the issue without something else with the force of law to base it on."

[Lalaki]

Did I miss the resolution that prohibits nations from passing NEW laws somehow? If I did, those gnomes are doing a really shitty job, I must say....

And therein lies the fatal element of this resolution that its supporters are doing semantic gymnastics to avoid: at it's heart, it is an embrace of civil law over common law and an expectation that nations will 'pass laws.'

The irony is that while you want to blame Police States for opposing this, we are in fact one of the most libertarian states n the WA, with no police or standing military. So perhaps you might want to think again about your perspective...

1. Defines "customary law" as a code of conduct that is seen as appropriate within a particular setting and is considered de facto law by relevant authorities but is not officially recognized through statute, judicial precedent, or other such guidelines with the force of law;

3. Stipulates that neither member nations, nor political subdivisions thereof, may arrest, detain, prosecute, or punish by law any individual unless they have committed a crime that is specifically illegal according to international law or a relevant member nation's established statutory laws, judicial precedents, or guidelines with the force of law;

[Trygg]

However, if no precedent, statute, or guideline suggests that pouring toxins into a lake (or similar situations that could reasonably used as a basis for precedent) exists, then obviously no new ruling could be formed on the issue."

So no new law could be passed to rectify the situation, even in the event of adverse effects? I'm sorry, but if this proposition prohibits the creation of new laws seeking to modify legal protocol in accordance to specific crimes committed, then my vote is and will be no.

[Sciongrad]

However, if no precedent, statute, or guideline suggests that pouring toxins into a lake (or similar situations that could reasonably used as a basis for precedent) exists, then obviously no new ruling could be formed on the issue."

So no new law could be passed to rectify the situation, even in the event of adverse effects? I'm sorry, but if this proposition prohibits the creation of new laws seeking to modify legal protocol in accordance to specific crimes committed, then my vote is and will be no.

"No, it doesn't do that either. Entirely new laws can be passed under this resolution."

[Mundiferrum]

And finally, contrary to Ambassador Hale's concerns, if there's a law against public drunkenness, and the same law authorizes police/sheriffs to detain drunks until they're sober, that would be covered too, right?

OOC: Yes, this is a point I want to reiterate. I've said this on other forums, but I'll repeat it: this resolution has no impact on substantive due process (whether or not the content of the law is just or fair). You can still criminalize whatever you want and detain individuals for almost anything as long. All that is required is that member nations have relevant, publicly promulgated laws on the topic. In other words, if roaming around the streets in a drunken stupor, avoiding conscription, violating quarantine isolation orders, etc. are illegal, then you can still detain the individuals. This only prevents you from detaining individuals lawlessly.

3. Stipulates that neither member nations, nor political subdivisions thereof, may arrest, detain, prosecute, or punish by law any individual unless they have committed a crime that is specifically illegal according to international law or a relevant member nation's established statutory laws, judicial precedents, or guidelines with the force of law;

The highlighted part is still the biggest problem, though. Kids who have to be taken in by state agencies for being abused are, by the resolution, technically excluded from being arrested because they haven't exactly committed a crime that is specifically illegal; same goes for people who are directly being quarantined (but not necessarily violating quarantine orders; that is, if the government doesn't tell them to quarantine themselves, but instead merely arrests them outright).
But I believe you already clarified that you will, er, clarify those points in your next draft. I suggest an additional two things for your next draft:
First, make the provisions on common law in-your-face, since a lot of the members in this assembly don't seem to get how common law works.
Second, since this seems to be more on customary law being something actionable than just "no penalties without law", I suggest changing the title to that, erm, effect (On Customary Law, perhaps?).

And yes, many of us here share your mild frustration.

Your sarcasm detector needs rewiring.

Hmm, let me see if this thinBANG! Dammit! Another revolver? Why do I keep falling for that!

[Lexicor]

I see no issue with this.

In most Libertarian states the criminal justice system is based around the idea of Polycentric Law, in which you have competing providers of legal services [courts] in a given area, which allows the avoidance of a state monopoly on the criminal justice/prosecution/legal precedents. Now given that Libertarian states seek to minimize the power of the state as much as possible, due to the ideological construct that human liberty is the highest human end, and that government seeks to limit human liberty, Libertarians also often support the idea of common law.

Common law is what occurs in the absence of hierarchy and a monopolization of the criminal justice system. A pragmatic set of laws are established within a community often based on the principle that one should not "initiate aggression" against one another. This leads to common law establishing continuous legal precedents, i.e: as disputes arise over resources, trade etc.. and are resolved through negotiation and are set informally as precedent for future disputes. As Common Law =/= Civil Law, nations that practice Common law or Polycentric Law in their criminal justice systems would remain largely unaffected, as it is already established in 99.9% of libertarian states with polycentric or common law that you cannot punish an individual based on something that does not violate the principle of non-aggression, but more practically that you cannot punish someone for something that is not illegal. For similar reasons, there are no libertarian states that employ the practice of Ex Post Facto [based on a lack of precedent in law, an individual that cannot be retroactively punished] as long as the "crime" did not violate the principle of non aggression. The WA already banned Ex Post Facto Laws. This would be along the same legal lines

Example: Joe and Bob own properties adjacent to each other and have a dispute over a patch of land. The courts in their polycentric town rule that Joe has rightful ownership of the disputed patch of land, due to the fact that Joe maintained and improved the patch of land since he established his farm next to Bob. Bob, who previously lay claim to the land however, is not punished for violating Joe's property because their was no legal precedent that stated otherwise. Likewise Bob cannot be punished by Joe, since at the time Bob did not know the property would end up belonging to Joe. Now after the precedent is set by court A, Bob can appeal to court B for a second opinion. The legal precedent has been "set" but is under dispute by a party in the case.

Based on all of these precedents, within Lexicor and in Libertarian/Anarchic nations alike we shall vote firmly for this resolution and hope all nations that value human freedom do the same.

OOC: Sorry if the text is long/boring. I thought I would try and explain a little to the supposed "libertarian states" on this thread why it was silly to oppose this based on the grounds of "MUH COMMON LAW!"

[Jakuso]

If this proposal was to control what can be punished under customary law then I suppose our opinion at the Yakusan Foreign Ministry would be quite different on this proposal.

The biggest IntFed statement in the history of NationStates right here folks!!!

OOC: As I was once asked before, please refrain from posting pictures that are irrelevant on this topic.
And sorry for the late response.

What I said there was if this proposal existed not to get rid of customary law but to control what can be punished under it then that would be different. If it existed to prevent people being arrested under customary law for whistling whilst walking down the pavement then we would have a different approach to it.

[Scow Creek]

"The text does not preclude the addition of new precedent.

"New Precedent?" Is that like, Up Down? Black White? Led Zeppelin?

The proposed Resolution prohibits arrest based on law that is not written. A "New Precedent" would not be antecedently 'written.' Therefore, it DOES preclude new precedent. This is semantic gymnastics.

[Scow Creek]

OOC: And in what country exactly would the government be permitted to prosecute upon those grounds? In pretty much every nation where I have studied their criminal system, if the law isn't on the books, then it is not permitted to be "implied" as you are suggesting. Why would this be any different here?

What you are effectively arguing is National Sovereignty. While that is fully permitted in debates, it is usually customary to make that intention known, rather that hiding behind a thin veil of hypothetical situations, which have absolutely no basis in NationStates.

1) To answer your question - in MY NATION.

2) Yes, I am arguing National Sovereignty. I have argued from the START that because of the effect on Common Law, on which so much of my nation is based, it would be disruptive to our entire legal code. I stated this in my first few posts.

Article VI Sec 3. of the Constitution of the Kingdom of Scow Creek: "In all cases where Common Law and Statutory or Administrative law conflict, Common Law shall take precedence, excepting where the Assembly has enacted a specific Common Law Override Provision as part of a statute. The Common Law Doctrine of Trespass-to-Community shall not be subject to any Override Provision, and the Judiciary is given authority to resolve such cases in law and/or equity, regardless of the relief sought for in legal pleadings."

We also have VERY strong rights for the accused - including a prohibition of ex post facto laws and a prohiibiton of victimless crimes - so the idea that this resolution is only being opposed by police states is unfounded.

3) Who made you King of Nation States, to decide what is 'hiding,' and what is 'permitted,' and further, what my intentions are?

4) One of you argues that the Resolution does NOT do what it says I claim it does, and you just argued above that it DOES do that, but there is no nation that *You* (all genuflect! Hail!) have studied that should have a problem with it.

Defeat is Imminent by a huge margin because you're all getting nasty and possessive of an intrusive, poorly-crafted resolution.

[Asrtotzka]

Nadieshda Komvorovska, Ambassador of Asrtotzka, takes the stand and, with serious rictus, says:

"Honourable Ambassadors:

Our constitution circumscribe the criminal purposes (article 35) and the competence of the Judiciary Branch to judge them (article 36), the equality before the Law (article 50), the obligation of obeying the Law (article 65) and the obligation of reporting a Law breaking (article 68). As usual, our legal system tries to clearly set out all situations and borders between the legal and the illegal. Of course, not all circumstances can be detailed by law, so we strongly support our legislation on customary law. For example, as always has happened, no body can be judged by actions committed when they were not illegal.

We strongly thinks that GAR #62, #67 and #79 fit and complement our common law, by emphasising the rights we provide to our detained and accused. So, all of these provisions provide our People a strong legal framework to ensure the legality of prosecutions.

The resolution we are voting is riddled with good intentions. And that is all. All of supporters of this resolution argue that common law is protected despite the clause three, thanks to the expressions judicial precedent, or other such guidelines with the force of law. But sometimes we find an illegal action that is not regulated in any precedent or law, but common sense and customary law let our judges to prosecute the infractor. If this resolution is passed, my People and many other nations shall be prevented to use the customary law in new cases, forcing us to enact written laws to specify explicitly new illegal behaviors. If not, our prosecuted shall allege that we do not keep this resolution, with the result, at best cases, of judicial proceedings being stretched on with continuous appeals, or the acquittal of guilty in the worst cases.

Think of that. My People will be forced to reform their Constitution and enact heaps of new laws. Tons of bureaucracy to formally adapt a legislation that, nowadays, works fine. How could I explain to my People that they should stop claiming better life conditions, more civil rights and a lot of other just demands only because the World Assembly obliges them to adapt their legislation to a sort of legal bureaucracy that shall not provide any improvement on their lives?

Unfortunately, this resolution does not bring us any new proposal. As we do not want to increase congestion on courts and even less liberate guilty delinquents, we are going to support our legislation on the current legal framework and will say NO to this resolution.

Thank to all of you.

Glory to Asrtotzka".

[Point Breeze]

OK, since nobody heard me the first time...

[quote="Point Breeze";p="21281492"]Nothing in the act restricts the discretion of Judges or other legal officials unless the citizen before them has committed a crime not specifically codified. In fact, clause 2 seems to be a statement in favor of precedent and common law.

The man with his pregnant wife running the stop sign could still be prosecuted or fined or what have you, as prosecuting those who run stop signs would have judicial precedent.

@Jakuso if the Yakusan courts have prosecuted a murderer before, then there would be judicial precedent, and Yakus would be in compliance if they were still arresting murderers even though there's no statute on the books.[/quote]

[Bears Armed]

Yes, our nations could make everything "illegal" and thereby subject to the resolution in question

Except for the fact that the CoCR requires you to treat everybody equally under the law, so that if you made everything illegal you'd have to charge and [eventually] prosecute everybody and then everything there -- especially the legal system -- would grind to a halt? I think that that fails the 'reasonable nation' test...

[Asrtotzka]

OK, since nobody heard me the first time...

Nothing in the act restricts the discretion of Judges or other legal officials unless the citizen before them has committed a crime not specifically codified. In fact, clause 2 seems to be a statement in favor of precedent and common law.

The man with his pregnant wife running the stop sign could still be prosecuted or fined or what have you, as prosecuting those who run stop signs would have judicial precedent.

Nadieshda Komvorovska stands up and says loudly, almost shouting:

"This Ambassador has heard you perfectly. On my exposition I explained that the problem is in absence of judicial precedent due to a new kind of delinquency not yet encoded, but judgeable by customary law. What if then? Customary law has been working fine, why suddenly it is not useful? "

[Scow Creek]

Nadieshda Komvorovska stands up and says loudly, almost shouting:

"This Ambassador has heard you perfectly. On my exposition I explained that the problem is in absence of judicial precedent due to a new kind of delinquency not yet encoded, but judgeable by customary law. What if then? Customary law has been working fine, why suddenly it is not useful? "

Thank you, Ambassador. There appears to be a curious perspective among the resolution's supporters that opposition to this Resolution is tantamount to ignorance or deafness. It has not apparently occurred to them that one could oppose this on its merits...

[Sciongrad]

"The text does not preclude the addition of new precedent.

"New Precedent?" Is that like, Up Down? Black White?

"No, it's not quite like that. If you're too obtuse to understand that new interpretations of the law can be formed and thus serve as future precedent, then I have no intent to continue this debate."

The proposed Resolution prohibits arrest based on law that is not written. A "New Precedent" would not be antecedently 'written.' Therefore, it DOES preclude new precedent. This is semantic gymnastics.

"Statute is not the only basis of criminal punishment that this resolution recognizes. New rulings based on precedent are permitted, and such new rulings can obviously serve as precedent for future rulings. So long as the basis for new precedent exists, then new precedent can be formed."

But sometimes we find an illegal action that is not regulated in any precedent or law, but common sense and customary law let our judges to prosecute the infractor.

"With all due respect, your Excellency, this is the type of behavior that this resolution seeks to prevent. If the crime was not previously illegal, the individual should not be prosecuted."

[Scow Creek]

"No, it's not quite like that. If you're too obtuse to understand that new interpretations of the law can be formed and thus serve as future precedent, then I have no intent to continue this debate.".

Using YOUR words, Sciongrad....if it is a "new interpretation" that is not codified somewhere, then it is impermissible under the Resolution. It can never become a "future" precedent, because it can not be established anew the First Time without statutory authority.

The obtuseness, honey, falls squarely through the hole in your own logic.

[Sciongrad]

"No, it's not quite like that. If you're too obtuse to understand that new interpretations of the law can be formed and thus serve as future precedent, then I have no intent to continue this debate.".

Using YOUR words, Sciongrad....if it is a "new interpretation" that is not codified somewhere, then it is impermissible under the Resolution. It can never become a "future" precedent, because it can not be established anew the First Time without statutory authority.

OOC: But rulings don't have to be based solely on statute. Rulings can be based on precedent, and the ruling itself can be used as precedent in the future. That's how stare decisis works. Rulings based on nothing - by which I mean neither statute, precedent, nor other guidelines with the force of law - are obviously not permissible.

[Asrtotzka]

"With all due respect, your Excellency, this is the type of behavior that this resolution seeks to prevent. If the crime was not previously illegal, the individual should not be prosecuted."

After the speech of Sciongrad's representative, Mrs Komvorovska makes a phone call, after two minutes hunges up the mobile phone and answers :

"I have just phone our First Secretary, The Excellent Jorji Costava [Mrs Komvorovska keeps silent while making a simple reverence] and He is now writing a decree to create the Ministry of Bureaucracy, whose function shall be receive and keep all administrative procedures while our People's Administration enacts all written laws that shall be needed in case this resolution is passed.

We hope that our People shall not starve or dying for curable diseases while this provisional situation remains.

Glory to Asrtotzka!".

[Jakuso]

Defeat is Imminent by a huge margin because you're all getting nasty and possessive of an intrusive, poorly-crafted resolution.

Agreed. Getting rid of a country's right to arrest and charge people for murder under common law is NOT the duty of the WA. And unfortunately some ambassadors in this chamber don't quite see that.