=============================== CFJ 3890 ===============================
To follow R217, judges SHOULD use "game custom, common sense, past
judgements, and consideration of the best interests of the game"
as a strict checklist when interpreting inconsistencies in the
Called by G.: 17 Nov 2020 02:18:10
Assigned to Aris: 17 Nov 2020 02:18:10
Motion to extend filed: 23 Nov 2020 08:25:20
Judged FALSE by Aris: 30 Nov 2020 20:23:01
Judge Aris's Arguments:
Rule 217 is one of our most vital rules. It tells us how to go
about what may be the most Agoran of all activities: interpreting the rules.
Sadly, interpretation of this rule, which underpins the interpretation
of all others, has recently gone astray.
The problem lies in the first paragraph of the rule, which I shall quote:
"When interpreting and applying the rules, the text of the rules
takes precedence. Where the text is silent, inconsistent, or unclear,
it is to be augmented by game custom, common sense, past
judgements, and consideration of the best interests of the game."
This rule is clear enough in the base case. We are to start with the text,
and use that alone unless it is "silent, inconsistent, or unclear".
But if it is, what happens? We are to augment the test with four other
elements, often referred to as the four factors. The question is how
this augmentation should proceed. Currently, a standard means of
conducting that augmentation is to apply *all* of the factors. After all,
the rule says we should augment the rule text with those factors. Surely
that means to use all of the factors?
As G. pointed out in eir commentary on a recent related proposal, this mode
of interpretation is relatively new. While the text regarding factors
was in the rule in some form since 1993, and in near its current form since
1996, the habit of listing all of the factors in the adjudication of
a case is recent. And, as nix points out in eir commentary on the same
proposal, this form of interpretation doesn't particularly make sense.
E gives the sample text "where roads are potentially dangerous or confusing,
they are to be augmented by signs, lights, and crossing guards". Clearly,
this means that the roads are to augmented by whichever tools are appropriate,
not that all of them are to be used in every case.
If we are not to use the factors like a checklist, how are we to use them?
Allow me to provide a metaphor.
Judicial interpretation is like assembling pieces of wood. Sometimes the
pieces will just slot together nicely, but when they don't, you can pull
out your trusty toolbox, containing a hammer and a saw, among
other tools. Then, you use whichever tools are best to finish the job.
There's no expectation that you list out all of the tools and say
"the saw is inapplicable; the hammer is the relevant tool for
this job." You could, I suppose, but it would be a bit weird.
Moreover, by listing out all of them, you may feel pressure to use all
of the tools that you *can* use, regardless of whether it's a tool you
*should* use in this case.
A judge is a craftsman — two judges are unlikely to write the same
opinion, even if they come to the same conclusion. Accordingly, judges
should, to interpret the rules correctly, use the tools that in their
artisanal judgement are the best fit. The tools they have are
actually surprisingly broad. For a start, they're given the text
itself — all means of interpretation that consider only the text, rather
than outside factors, are fair game. If they need to consider
outside information, they are given a broad range to choose from
— they are given knowledge of the game's past and more specifically of
the interpretations of prior judges, they are given the natural instincts of
a person, which are known as common sense, and they are given the
explicit license to consider the best answer to the question from a
The broader understanding of Rule 217 opens up more ways to interpret
the same text. That's a good thing. There are situations where
one or two of the tools are clearly more appropriate than the others. Where
there is no obvious way to solve a given problem, judges are free to apply
their own life experience in producing unique answers, as long as their
reasoning is not so idiosyncratic that it will not be accepted by others.
If judges do err, the rules provide ways to overturn their decisions.
I rule FALSE.