Pursuant to the Charter and the Legislative Procedure Act, the Chair of the Assembly hereby gives notice of a retention vote to be held on March 15th within this Assembly for the following member(s) of the High Court:
This thread should be limited to discussion relating to the retention vote for the particular official(s) in the High Court, or relating to any mistakes in the list presented above.
LordNwahs
Chair of the Assembly
Honorable Justices:
To begin, I would like to acknowledge the commendable work each of you has been doing on the High Court. As it stands, I intend to vote in favor of retaining all of you. However, I would be very interested in hearing your perspectives on a few questions concerning our legal system and judicial interpretation.
First, I would like to hear your thoughts on judicial interpretation. Do you believe the Charter should be interpreted according to its original meaning (originalism), or do you see it as a living document whose meaning evolves as the region progresses? Additionally, do you advocate for strict constructionism, or do you believe that the meaning of specific Charter provisions should be interpreted in the context of the Charter as a whole (structuralism)?
More broadly, in statutory interpretation, do you favor a textualist approach, or do you lean toward purposivism?
Second, I would like to hear your views on the role of common law in our legal system. I recall that @KrisKringle previously expressed some skepticism regarding a certain plaintiffâs reliance on historical common law theories. However, our legal system is undeniably influenced by the common law tradition.
In your opinion, does the body of law historically developed by the English courts hold any precedential value in our system, or is our legal system âcommon lawâ only in the sense that it is primarily based on precedent? If you lean toward the former view, do you believe a reception statute is necessary?
Additionally, parties frequently cite case law from various IRL jurisdictions in their briefs. What, if any, value do you believe such case law holds within our legal system?
I hope to provide answers to any questions asked of me when I return from my work trip this coming Friday. I will be following debate until then, however.
If youâre looking for the short answer, then I lean towards originalism, structuralism, and textualism, but I think this is a case of putting round pegs in square holes. Definitionally, these terms seem to fit, but loosely and imperfectlyâand relying on these categories alone, weâd be misled into thinking that the square hole is, in fact, round.
Translating real-world interpretive approaches into our regional law is a delicate matter. Relying too heavily on real-world analogues may seem divorced from regional realities; ignoring them may seem to indicate intellectual hubris. In truth, I am sure that all of us are influenced to an extent by ideas about the judiciary first developed long before the South Pacific ever existed. We know that justices should be impartial, even if Article VII of the Charter, which establishes the High Court, does not say so explicitly. We know that justices should respect the separation of powers, even if Article VIII of the Charter, which concerns the separation of powers, does not use those exact words. We know these things because they are deeply ingrained in the very idea of what it means to wield âjudicial authority,â an idea that certainly did not originate within our regionâs borders.
That alone, however, does not mean that the categories we may use to distinguish jurisprudential approaches in real life will translate easily into our regional context. Half of our justices arenât from the United States, but thereâs a reason why the Wikipedia articles on âoriginalismâ or a âLiving Constitutionâ refer only to American law. Our Charter is not nearly as difficult to amend as the United States Constitution; as a consequence, even at just a strictly textual level, it has adapted more easily to changing circumstances. Likewise, our Charter is not nearly as old as the United States Constitution; as a consequence, there is far less of a difference between contemporary principles of government and those at the time it was drafted. In some cases, we encounter a provision that has not changed since 2016; in others, we encounter a provision that was only recently added. Maybe the moniker of âoriginalismâ is definitionally accurate when a justice looks to the original meaning of a provision adopted just a month ago, but it seems to me like it doesnât quite capture the deeper idea about judicial interpretation that it typically refers to in real life.
Itâs not even clear to me that our laws demand distinct approaches to constitutional and to statutory interpretation. In practice, constitutional laws are often not written in any different style or with any different concerns than general laws, and yet those constitutional laws are no more difficult to amend than the Charter itself. At times, the Assembly even adopts bills that amend some combination of the Charter, constitutional law, and general law. Why, then, is originalism applicable to constitutional interpretation but not statutory interpretation? Why is textualism applicable to statutory interpretation but not constitutional interpretation? I donât know that I would view these as separate boxes to tick.
I donât want to seem like Iâm ducking all of your questionsâthough if youâre interested in real-world analogues, maybe thatâs one. And I also donât want to suggest that I believe our jurisprudence should not be guided by some broader principles. To your point about textualism versus purposivism, I trust that my answers to the Judicial Selection Survey two years ago may be of some use:
But can real-world sources inform the spirit of regional law? In some of my opinionsâI believe this is probably what you mean when you say that amici âfrequentlyâ cite real-life case lawâI have cited dozens of real-world authorities. In others, I cited none. (I canât recall perfectly from memory, or discern easily from scanning the briefsâsuch is the value of footnoted citations!âbut I donât believe amici cited any either; I feel your view of real-world citations as being frequent might be skewed by some of our recent cases.) Where our law references but does not define an existing concept, I believe it is reasonable to look to the general understanding of that term. Just as a dictionary might contain the accepted meaning of a commonly used term, real-world case law might contain the accepted meaning of a legal term of art. But that is distinct from the wholesale incorporation of centuries of common law. For one, our community welcomes members from all across the (real) world; and admittedly, we speak the English language, but we certainly do not require our members to hail from jurisdictions steeped in English legal traditions. And for another, we should be a court for all South Pacificans. Every South Pacifican can read our laws. Every South Pacifican can read the Courtâs opinions. But can we really expect them to have read Blackstoneâs commentaries cover to cover? To know the judicial precedents of the dozens of countries where English is an official language? There are always boundaries to our laws, and there are times when the text seems to reach beyond those boundaries to some existing real-world concept. Taken to an extreme, we certainly donât maintain our own dictionary; a âmajorityâ in the South Pacific means the same thing as a âmajorityâ in the real world. But we need not reach beyond those boundaries when our laws have already sought to address the particular concerns or questions presented; and when we reach beyond those boundaries, we should remember that we are doing soâand that incorporating real-world ideas that the Assembly did not reasonably intend to refer to runs the risk of legislating from the bench.
In the case you allude to, and without addressing the merits, I think we should be wary of overbroad incorporation of common law on issues that our region has already legislated. For years, the Court has found its powers of judicial review under Article VII, Section 4 sufficient to review the actions of government officials, and its injunction powers under Article 9, Section 1 of the Judicial Act sufficient to compel action prior to an opinion that holds, for legal questions, the full force of law. That might be different if there was an argument presented that our laws incorporate a common law principleâbut as a general matter, if the Assembly has legislated a materially and substantially similar area of concern without evidence of incorporation, we should remember that the Assembly is the only legislative authority of the Coalition.
Thank you very much for your response, I truly appreciate it.
I think this is reasonable. However, if I may press you further, in a hypothetical scenario where a statute is ambiguous, would you favor a literal reading or one that considers legislative intent, provided that neither interpretation would be absurd or illogical?
I believe this is also a reasonable position to take. However, personally, I see some merit in incorporating common law principles, especially considering that our current statutes are silent on many issues that may arise, but I appreciate your perspective.
@Pronoun, where do I begin? 
I must say, I am truly impressed by your response. It is much more than I expected!
I am happy to hear!
Should I construe this as a thinly veiled jab at your colleague? /jk
I think you are absolutely right. Perhaps it was a bit silly of me to focus primarily on methods of American constitutional interpretation in my questions, but I thought it would serve as a useful starting point for the discussion. I appreciate that our Charter is far easier to amend than the Constitution, but I thinkâand as you alluded to at the endâeven within the context of TSP jurisprudence, originalism in its broader sense could be used to distinguish from a âliving Charterâ approach to judicial interpretation. I suppose one could argue, for example, that Charter provisions and other provisions of constitutional law should be interpreted in light of the fundamental principles underlying the Charter, evolving standards, or something similar.
I agree, they probably do not.
Not at all; I couldnât have expected a more thorough answer!
It probably is, as I have primarily been reading cases from the new forum rather than older ones. My general impression though is that the High Courtâs opinions have become more technical and increasingly reliant on real world citations. While this is not necessarily negative, it may be something to consider if the Court wishes to make the law more accessible.
Yes, this should be a requirement for citizenship. /s
Right, I agree, provided the Assembly did not infer them. This is why I see some benefit in codifying a reception statute that enshrines general common law principles as the rule of decision in our legal system.
I agree. If the Assembly passes a statute covering the same area of law, the statute would abrogate the common law.
Once again, thank you very much for your comprehensive answer. I donât believe my brief comments did it justice, but please know that I thoroughly enjoyed reading all of it. I am very impressed.
Once again, thank you @KrisKringle and @Pronoun for your responses. Rest assured, each of you has secured my âyesâ vote in the retention election. 
I look forward to reading it! 
If there are two possible interpretations then clearly a plain meaning approach is not sufficient to arrive at a final answer, so applying the mischief rule makes sense to me.
I am not well versed in common law beyond a superficial knowledge of concepts like stare decisis and the like -nor am I likely to invest any time in learning and applying any such concepts-, so applying my understanding of common sense to scenarios facing the High Court is the only external approach that I would employ.
My reasoning here is that this is still a game and while I enjoy interpreting laws that is only to the extent that itâs a fun intellectual exercise, not a job that should require me to gain a working understanding in real world law.
Iâll broadly refer and align to the answers my fellow Justices provided. To me specifically, the Charter and the constitutional laws, and even regular laws/resolutions, should be interpreted based on their plain meaning, and when a question of meaning or intent arises, I return to the source thread (drafting thread) to find out the intent behind that particular phrasing for guidance.
The Charter and the constitutional laws, and even regular laws/resolutions all go into the decision process when making an opinion/ruling. The Charter is given the highest weight, followed by the constitutional laws, followed by general laws, and resolutions. If a contradiction is found, then I look to what the highest law says.
Putting these two quotes together⌠Echoing my fellow justices, I am generally wary of including real-world case law in our cases because this is a game! We have had over twenty years to develop situations and laws that require our court system to interpret and create our own case law to guide courts. This does not mean I flat-out oppose or will not include real-world case law in an opinion, but if I do, it is because I need to convey a point that our in-game case law hasnât had a chance to confront yet.
I look forward to any further questions the Assembly may have.
Thank you for your response, it is much appreciated! 
Once again, I would like to thank all the justices for taking the time to answer my questions. @Belschaft has yet to respond, but the other justices have provided valuable input on your approach to judicial interpretation. I thoroughly enjoyed reading your responses, and your answers have provided me and other legislators with valuable insight into your perspectives on the law and methods of judicial interpretation. I will cast my vote in favor of retaining each one of you.
Pursuant to the requirement of Charter Section IV.(4), which mandates that this vote be called by the Chair of the Assembly or their designee on March 15, we are now at vote!
Apologies for not answering sooner @Erstavik, Iâve had a busy week at work.
When I first served as a Justice in NationStates at the start of the last decade I made lotâs of references to real life judicial theory and common law precedent, but over the years Iâve come to a far simpler concept of the role of an NS judge, which Kris has made some reference to.
Whilst some of us may have real life experience, interest or expertise in both criminal law and legislative interpretation at the end of the day TSP is a community of amateurs playing a complicated game of nomic. Holding our laws - the communities agreed rules of fair play - to real world standards is going to end in absurdity, stupidity and gridlock.
So we shouldnât.
The role of an NS Judge is to be an impartial umpire and apply common sense, simple decisions on whether or not people have been playing by the rules.
Judicial standards and procedures in NS need to be lower than in real life, because we do not have the expertise or powers of a real world court. We cannot issue subpoenas or authorise search warrants. Criminal complainants donât have the resources of the police or prosecutors.
Thatâs why the the legal standard in TSP is the civil âsubstantially more likely than notâ rather than the criminal âbeyond reasonable doubtâ - proving the later is almost impossible, and devious players (myself included) can and will use that to get blatantly guilty people off the charges. I refer anyone sceptical of this to TNPâs success rate at convicting rouge Delegates.
So despite being able to abuse that, I got the legal standard changed in TSP to limit my ability to cause mischief.
Jury trials also donât work in NationStates. They become a way for the defence to grandstand, delay, obfuscate, cause mischief (and oh, so so much glorious and subversive mischief) and just generally fuck up the system.
Again, I refer you to TNPâs success rate at convicting rouge Delegates.
So I got that changed as well, which is why we now have an inquisitional judicial system rather than an adversarial one.
When it comes to judicial interpretation, real world standards, rules and theories donât apply. Iâm not going to refer to textualism, originalism, the golden rule or make any references to real world case law â though if you dig through the archives to find my application for the current version of the court I did at the time, but that was largely to make my own opinions sound clever and authoritative. I could have referenced a whole bunch of theories and precedents to justify the total opposite just as effectively.
My approach is simple:
Which is basically a restatement of the English model of statutory interpretation, which I said I wasnât going to refer to but I nevertheless consider the best model. Iâm biassed and I know it, but Lord Wensleygale was a genius.
As a Judge my job is to be an impartial arbiter of the rules as our community established, regardless of my own views, objectives, schemes and varied subversive desires for mischief making. Iâve spent the best part of the last fifteen years doing that, and by and large I think Iâve done it well.
Iâve never been convicted of a crime in TSP or any other region (despite my best efforts) because I play by the rules we all collectively established.
Iâm a weaselly sophist, who will filibuster as much as I can if needs be and would gerrymander if I could get away with it. But I do everything I do within the rules and believe in fair play, and hold everyone else to the same standard.
I think that makes me a decent justice for TSP, and hopefully you do to.
@Belschaft 
(Minute 01:59 is best place to start)
Classic, old school Belschaft. That takes me back.
They were fun times.
Who says we canât plan devious stuff this September. >_>