[WikiEN-l] BADSITES ArbCom case about to close

[fredbaud at waterwiki.info]

-----Original Message-----
From: John Lee [mailto:johnleemk at gmail.com]
Sent: Wednesday, October 17, 2007 09:01 AM
To: 'English Wikipedia'
Subject: Re: [WikiEN-l] BADSITES ArbCom case about to close

On 10/17/07, charles.r.matthews at ntlworld.com <
charles.r.matthews at ntlworld.com> wrote:
>
> "John Lee" wrote
>
> > And judges don't make law. Let's be honest, Charles - judges say they
> don't
> > make law, the arbcom says it doesn't make policy. In reality, both do.
> It's
> > just that the law isn't codified as a separate law - it is enshrined in
> the
> > precedent set.
>
> AC cases are one-offs. They really are. They are supposed to fix up
> situations by a mixture of equity and safeguarding the Wikipedia mission.
> There is no precedent set by a remedy. Principles are pieces of reasoning
> drawing on written policy and other things, and are mainly there to connect
> general understandings with the bottom line.


Policy is set by consensus, not by edict. It just so happens that there is
usually consensus - or an attempt to form consensus - around certain arbcom
edicts, in which case the arbcom has clearly (but probably unintentionally)
set policy.

>If this were not so, the Supreme Court of the US would
> > probably not be as powerful as it is today, and we wouldn't even have
> this
> > case (after all, proponents of BADSITES-ish policies often cite a
> particular
> > arbcom case when arguing their point).
>
> I'm not American so I don't think along the same lines at all. Judge-made
> law can be incorporated into legislation, or swept away by it.


Absolutely. But the common law is built entirely around judge-made
decisions, so that's an even more clear-cut example of judge-made
legislation. I think there are actually good parallels here because just as
Parliament can either incorporate the common law into statute law or reject
it, the community can incorporate Arbcom interpretations of policy as
binding policy themselves. The Arbcom has made policy; it's not policy that
necessarily sticks (as I said above, some edicts are more widely-adopted
than others), but it's still policy laid down by the Arbcom which the
community decides to accept or reject.

Johnleemk
_______________________________________________

Not exactly, but close enough. However, our decisions do not bind either us or the community except as to the particular issue decided. That is the exact opposite of the role of precedent in common law. There is this though, to the extent a decision is founded on principles, revisiting the issue with similar facts will produce a similar result.

Fred