1419 words.
For Siwale TNL
Disclaimer: I know that some of the trials I reference in this article took place when TNP law looked very different. Before people dismiss what I say by saying “the court/law is different now so that does not apply” please understand I am not looking at how well the laws are framed or administered but rather the philosophical underpinning of our legal system.
Also please note that this article relates mainly to criminal trials, not requests for review.
'To be human is to affirm one's humanity by recognizing the humanity of others and, on that basis, establish respectful human relations with them.' Hunhist Maxim
The judicial system in TNP has had a rocky history. For many years the kindest thing that could be said about it was that it was dysfunctional. Many hours of crafting rules and legislation have gone in to making the system work, and what we have now in TNP is probably the best that we can achieve given the jurisprudence that underlies it. Of course, as part of an online game the TNP court faces this paradox: the better it works the less fun it is to participate in and watch. There is a spectrum between shambolic and stiflingly dull. I leave it to you to decide where you think the current TNP court is on that spectrum.
All this tinkering has left the underlying framework of the system intact. But I have believed for a number of years that the fundamental problem in the TNP court system is not the detail or execution of the law, but the western philosophical basis of it. In this article I would like to explain how I see the problem, and what I would suggest as a solution.
In TNP the court is essentially based on a western adversarial model. It is about establishing innocence and guilt and apportioning punishment. It excludes people who are not seen as having “standing” and draws heavily on western (largely American) legal codes. This has been the case ever since the first formal TNP courts were established.
It is easy to see why this happened. Most TNP players have grown up under such systems, many are attracted to NS because they have an interest in or have studied law. Many have used NS courts as a safe zone in which to hone skills that they hope might be used in a real-life legal or political career.
So what is wrong with it?
I do not think what is wrong is that people do not take it seriously, or that our laws are poor. Rather, I think this whole system is ill-suited to a game like ours. Here’s why.
1. TNP trials are actually rarely about guilt or innocence
TNP is a small world, and we pretty much know the innocence or guilt of most defendants who comes to trial. Rather the trial becomes about proving innocence or guilt under the law. That leads to absurdities where a defendant (I am looking at you, JAL) can be manifestly as guilty as sin, and everyone can know it, but they cannot be proven guilty because the law or the court is inadequate.
So our trials are not really about the innocence of the defendant, as they are in real life, but more about the adequacy of our law. Often it is the criminal code that is put under trial, not the defendant. This is shown by the times that we have passed legislation or a court review to close a loophole in the law after a trial.
2. An adversarial system requires meaningful punishment to be taken seriously
Realistically, what can we do to one another? If we ban someone they either wait it out or move to another region. TNP is not so very special that many of us would lose much sleep over this. Even then, TNP has shied away from imposing the most harsh sentences on convicted criminals.
It is hard to take trials seriously, or expend much effort on them, when the consequences are trivial. Therefore people either refuse to participate in trials or take the piss – a pattern we have seen many times in TNP. Several times I have been defence counsel in a trial and my client has just not bothered with the whole proceedings.
3. Real life courts work in a very different setting
The basis of our court system, Western law, is complicated, technical and requires professional input for even the simplest cases; hence the saying “the man who represents himself has a fool for a client.” Attempting to replicate this in TNP means that our laws have numerous grey areas, loopholes and the like. It also leads to a number of mistrials and justices going inactive because of the effort involved in a meaningless exercise.
4. Regions are about community, and an adversarial court does not help build community
This gets to the heart of this article. You can approach courts in TNP in two ways: Either you role-play them as a piss take (as McM and I did once), which undermines the system; or you can take them seriously (Flemingovia vs Grosseschnauzer) which almost always causes a break down in relationships, and often results in people leaving the region or the game.
So think to yourself for a minute. TNP is more like a village than a nation. So what if our justice system was modelled on village councils rather than the High Court? What if we abandoned a western, adversarial court system and looked at other forms of jurisprudence?
In more tribal societies the basis of law is less about guilt and punishment and more about restoring community and reconciling broken relationships. Sharia law in the Muslim world works on this basis, as do the tribal courts based on Ubantu in South Africa or hunhuism in Zimbabwe. In Papua New Guinea, village courts based on traditional custom has had much more success in bringing peace to warring Enga tribes than the post-colonial government courts.
After all, why do we need courts? Has fear of the courts kept us free from tyranny these past few years? I do not think so. Have it been the court that has stopped our delegates from overstepping the Bill of Rights? Nope. Why not scrap the current court, charge the Security Council with keeping a check on the Delegates use of power, and have the SC bring a recall to the Regional Assembly if necessary.
And what if , for disputes between citizens, we had simpler hearings with the objective of arbitration and restoring ubantu or hunhu in the region (google is your friend if you do not understand this philosophy)
In TNP in 2012 I introduced as alternative to the dysfunctional constitutional court called the Fiqh, loosely based on Sharia courts.
It gave as an alternative to the hidebound TNP courts a simple hearing, presided over by respected figures.
All those coming to the Fiqh would agree up front to be bound by the findings of the Fiqh.
As in Ubantu hearings, there would be simple process of accusation and rebuttal or counter-argument. There would be no extended debate.
Those presiding would be expected to use common sense rather than a written legal code.
It was as simple as I could make it, and for those cases brought to it, it worked admirably. Far simpler and better than the constitutional court. Because the object is restoration, in general people went away from the Fiqh happy, and continuing to be a part of the region.
My big mistake was that I wrapped the Fiqh up in Flemingovian mysticism, which meant that from the outset many people did not take it seriously, and brought frivolous cases. I placed it in the world of roleplay, so I cannot complain that people treated it as such. If I could have my time over again I would take it out of that sphere. Perhaps I should have introduced it as a secular adjunct to the judicial court? The problem was, in 2012 I could not find others who understood and agreed with the philosophy behind the Fiqh and the need for a court that aimed for reconciliation rather than justice.
I still maintain that it is a much better way to do courts in a game like Nationstates. Maybe one day there will be a region that reads these words and is imaginative enough to give it a go.
For Siwale TNL
How we Dispense Justice in Nationstates: Thinking Outside the Box
Disclaimer: I know that some of the trials I reference in this article took place when TNP law looked very different. Before people dismiss what I say by saying “the court/law is different now so that does not apply” please understand I am not looking at how well the laws are framed or administered but rather the philosophical underpinning of our legal system.
Also please note that this article relates mainly to criminal trials, not requests for review.
'To be human is to affirm one's humanity by recognizing the humanity of others and, on that basis, establish respectful human relations with them.' Hunhist Maxim
The judicial system in TNP has had a rocky history. For many years the kindest thing that could be said about it was that it was dysfunctional. Many hours of crafting rules and legislation have gone in to making the system work, and what we have now in TNP is probably the best that we can achieve given the jurisprudence that underlies it. Of course, as part of an online game the TNP court faces this paradox: the better it works the less fun it is to participate in and watch. There is a spectrum between shambolic and stiflingly dull. I leave it to you to decide where you think the current TNP court is on that spectrum.
All this tinkering has left the underlying framework of the system intact. But I have believed for a number of years that the fundamental problem in the TNP court system is not the detail or execution of the law, but the western philosophical basis of it. In this article I would like to explain how I see the problem, and what I would suggest as a solution.
In TNP the court is essentially based on a western adversarial model. It is about establishing innocence and guilt and apportioning punishment. It excludes people who are not seen as having “standing” and draws heavily on western (largely American) legal codes. This has been the case ever since the first formal TNP courts were established.
It is easy to see why this happened. Most TNP players have grown up under such systems, many are attracted to NS because they have an interest in or have studied law. Many have used NS courts as a safe zone in which to hone skills that they hope might be used in a real-life legal or political career.
So what is wrong with it?
I do not think what is wrong is that people do not take it seriously, or that our laws are poor. Rather, I think this whole system is ill-suited to a game like ours. Here’s why.
1. TNP trials are actually rarely about guilt or innocence
TNP is a small world, and we pretty much know the innocence or guilt of most defendants who comes to trial. Rather the trial becomes about proving innocence or guilt under the law. That leads to absurdities where a defendant (I am looking at you, JAL) can be manifestly as guilty as sin, and everyone can know it, but they cannot be proven guilty because the law or the court is inadequate.
So our trials are not really about the innocence of the defendant, as they are in real life, but more about the adequacy of our law. Often it is the criminal code that is put under trial, not the defendant. This is shown by the times that we have passed legislation or a court review to close a loophole in the law after a trial.
2. An adversarial system requires meaningful punishment to be taken seriously
Realistically, what can we do to one another? If we ban someone they either wait it out or move to another region. TNP is not so very special that many of us would lose much sleep over this. Even then, TNP has shied away from imposing the most harsh sentences on convicted criminals.
It is hard to take trials seriously, or expend much effort on them, when the consequences are trivial. Therefore people either refuse to participate in trials or take the piss – a pattern we have seen many times in TNP. Several times I have been defence counsel in a trial and my client has just not bothered with the whole proceedings.
3. Real life courts work in a very different setting
The basis of our court system, Western law, is complicated, technical and requires professional input for even the simplest cases; hence the saying “the man who represents himself has a fool for a client.” Attempting to replicate this in TNP means that our laws have numerous grey areas, loopholes and the like. It also leads to a number of mistrials and justices going inactive because of the effort involved in a meaningless exercise.
4. Regions are about community, and an adversarial court does not help build community
This gets to the heart of this article. You can approach courts in TNP in two ways: Either you role-play them as a piss take (as McM and I did once), which undermines the system; or you can take them seriously (Flemingovia vs Grosseschnauzer) which almost always causes a break down in relationships, and often results in people leaving the region or the game.
So think to yourself for a minute. TNP is more like a village than a nation. So what if our justice system was modelled on village councils rather than the High Court? What if we abandoned a western, adversarial court system and looked at other forms of jurisprudence?
In more tribal societies the basis of law is less about guilt and punishment and more about restoring community and reconciling broken relationships. Sharia law in the Muslim world works on this basis, as do the tribal courts based on Ubantu in South Africa or hunhuism in Zimbabwe. In Papua New Guinea, village courts based on traditional custom has had much more success in bringing peace to warring Enga tribes than the post-colonial government courts.
After all, why do we need courts? Has fear of the courts kept us free from tyranny these past few years? I do not think so. Have it been the court that has stopped our delegates from overstepping the Bill of Rights? Nope. Why not scrap the current court, charge the Security Council with keeping a check on the Delegates use of power, and have the SC bring a recall to the Regional Assembly if necessary.
And what if , for disputes between citizens, we had simpler hearings with the objective of arbitration and restoring ubantu or hunhu in the region (google is your friend if you do not understand this philosophy)
In TNP in 2012 I introduced as alternative to the dysfunctional constitutional court called the Fiqh, loosely based on Sharia courts.
It gave as an alternative to the hidebound TNP courts a simple hearing, presided over by respected figures.
All those coming to the Fiqh would agree up front to be bound by the findings of the Fiqh.
As in Ubantu hearings, there would be simple process of accusation and rebuttal or counter-argument. There would be no extended debate.
Those presiding would be expected to use common sense rather than a written legal code.
It was as simple as I could make it, and for those cases brought to it, it worked admirably. Far simpler and better than the constitutional court. Because the object is restoration, in general people went away from the Fiqh happy, and continuing to be a part of the region.
My big mistake was that I wrapped the Fiqh up in Flemingovian mysticism, which meant that from the outset many people did not take it seriously, and brought frivolous cases. I placed it in the world of roleplay, so I cannot complain that people treated it as such. If I could have my time over again I would take it out of that sphere. Perhaps I should have introduced it as a secular adjunct to the judicial court? The problem was, in 2012 I could not find others who understood and agreed with the philosophy behind the Fiqh and the need for a court that aimed for reconciliation rather than justice.
I still maintain that it is a much better way to do courts in a game like Nationstates. Maybe one day there will be a region that reads these words and is imaginative enough to give it a go.
