Judicial Policy discussion and high-level proposals

I would like to discuss motivation for and propose a general policy outline for handling accusations, trial, and general conduct of ENS contributors (especially Directors, etc.).

Motivation
Having been asked to speak and vote publicly on the termination of an ENS Director in ENS Proposal 6.1, I have felt the situation lacked formal tools or processes. I was ready to face important and controversial votes, but naively I did not foresee this sort of tribunal by delegate vote.

It seems significant to ask delegates to vote on personal conduct including speech if we do not first agree on what a good framework for personal conduct is.

As a delegate, my own perspective relies heavily on empathy and forming a measured opinion. It is crucial to identify and respect the rights of the accused.

I found the following scenarios helpful to consider:

  • How would I expect to be treated facing accusation?
  • What if the accusations were worse, difficult to verify, nuanced, or generally more controversial?
  • What if there was criminal action?

Hypothetical scenarios pushed to their limits are good tools for forming opinions. Generally speaking, I was not able to find answers to these questions before voting publicly on the issue.

Questions tend to lead to more questions. Process-oriented questions include:

  • What policies were violated by the accused?
  • How would a modern democracy have handled it?
  • How and where would speech be conducted?
  • How long would it have taken to reach a decision?
  • What processes were lacking?

I am a First Principles thinker. That means my solution pathway is basically:

  1. Breakdown the big problem into small, specific problems
  2. Find solutions to the specific problems
  3. Design an integrated, overarching solution

I do not feel I’m a well-studied historian, philosopher, or civics person, but I do feel like I can contribute to the problem-solving process. I also find that thinking critically about definitions leads to insights.

I would encourage the ENS DAO to lead the way on governance, both the good and the ugly. This means identifying systems of governance which are lacking, and working both proactively and reactively to invent comparable, decentralized systems for ENS governance.

Lack of Judicial structure in DAO

It is very popular to criticize token-based governance, and less popular to provide detailed alternatives. I’m trying to balance the two myself.

Broadly speaking, I would say DAOs and ENS DAO specifically have reasonable tools for Legislation (proposals, ENS Constitution, etc.) and Executive function (elections, working groups).

DAOs can elect leaders to take executive action and anyone can write and propose a rule. But rules and leaders are only as effective as they are accountable.

DAOs, including ENS, lack judicial structure.

We need to solve this by reflecting on what we’ve experienced, and coming up with some proposed procedures. If we lead by example, the rest of the ecosystem will build on our work.

It is not just ENS dealing with this. We have seen other billion-dollar protocols vote to remove leaders (Wonderland DAO vote to remove Sifu, etc.). Let’s zoom out and address the larger problems.

So what does justice look like for a DAO?

Law and Due Process

Law is “a system of rules created and enforced through social or governmental institutions to regulate behavior” (Wikipedia)

Due Process is “a course of legal proceedings according to rules and principles that have been established in a system of jurisprudence for the enforcement and protection of private rights.” (Britannica)

These definitions, I feel, fit our situation quite well. But they also inform us significantly of what we lack.

For one, I feel we lack a clear “system of rules” despite the fact we DO have clear enforcement through “social or governmental institutions”.

Specifically, while we have the ENS Constitution—a set of binding rules that determine what governance actions are legitimate for the DAO to take—, we do not have a clearly defined system of rules for personal behavior.

Justice without rules is not justice.

Code of Conduct

A code of conduct is “a set of rules outlining the norms, rules, and responsibilities or proper practices of an individual party or an organization.”

It would seem to me that if people are proposing to terminate ENS Directorship based on personal conduct, then we should also be able to agree on a Code of Conduct. This would hopefully improve the structure and rationale behind future Social Proposals with similar purpose.

I’m not going to go so far as to propose the actual text of a Code of Conduct today, but I do feel a system of rules for personal behavior is a necessary prerequisite for accusations about personal conduct.

A Code of Conduct, if it exists, should probably:

  • Be as limited as possible in scope
  • Not be retroactive
  • Cover Directors, Working Group members (who else?)
  • Not cover delegates (permissionless)

I am still researching the best way to write the text, and mostly looking right now at yes/no whether something like this should exist.

Proposal #1: A limited code of conduct

I propose that we write and adopt a Code of Conduct for the above reasons.

Due Process

Mob justice is a symptom of incompetent justice.

It is our duty to establish better systems of justice.

Once a Code of Conduct is established, it likewise makes sense to establish more formalized procedures for the sort of emergent public trial we witnessed.

Successful democracies have clear rights laid out for the accused and there are procedural buffers in place to allow for discovery, defense, and measured decision making. If we have elections and voting to grant executive power, then we need equally clear rules over removal of said power.

The rules should balance the rights of the accused against the law of the land. It is not clear to me that the emergent process met all the generally accepted practices for due process.

Again, if people are proposing to terminate ENS Directorship based on accusations, then I feel we should have more clearly documented rights of the accused; another way to say this is that we should establish written rules and procedures for tribunal.

Both sides of any accusation would benefit from a more clearly established set of written rules and less on social expectations.

Proposal #2: A due process procedure

I propose that we write and adopt a set of rights for the accused and a due process procedure for justice.

I am still researching what this would look like as a piece of text.

There are some specific points which I think proper due process would meet. I am aware of at least one person working on a proposal along the lines of (1) but I want to lay out several ideas which I think all need to be included to start to look like a modern democratic justice procedure.

These points should include:

  1. Minimum length of time between accusation and removal vote period
  2. Maximum length of time between accusation and removal vote period
  3. Allow for accused to speak publicly
  4. Not required to speak publicly on short notice
  5. Clear definition of what counts as public speech (social media, written/voice, etc.)

These points may also include:

  1. Require more than majority vote for removal

Conclusion
DAOs have good tools for executive function and legislation, but lack processes and norms for justice.

A good executive and legislature relies on a balanced justice system, especially long term over many decades.

Two specific proposals for ENS are to

  1. Establish a Code of Conduct to guide personal behavior
  2. Establish rights of the accused and a due process procedure for justice

This post is written fairly high-level because that’s where I do my best thinking.

I’m hoping we can discuss some of the high-level ideas here, and pursue specific actions/draft text on future threads.

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Speaking on this point alone - a code of conduct has been in the works already. It has been drafted with major help from @estmcmxci, as well as myself and the rest of the community WG. It’s nearly done. (Suggested Code of Conduct for ENS DAO - HackMD)

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To Recap:

  1. Values are important, which are being proposed as “Codes”.
  2. Most will want to contribute Codes, so we will wan to limit them.
  3. These Codes would cover Directors, Working Group members, etc.
  4. Many proposed Codes “may conflict” with each other (directly, or indirectly).
  5. These Codes will likely include “legal” Codes,
    …written or unwritten, (based on IDK which jurisdictions).

I am also wondering about potential conflicts btwn:

  1. the Mission/Vision/Values of ENS (The “Decentralized” Protocol),
    …which I think is to keep ENS as an immutable/censorship resistant naming protocol; and
  2. the Values/Codes of Human Builders/Users, (which will conflict with the Mission/Vision/Values of ENS, to remain decentralized, immutable, & censorship resistant).

As the traditional cypherpunks and crypto kids know, there are many vectors to attack open blockchain and Web3-based cryptographic systems.

As is often said, decentralization is a spectrum, with many parts that involve people, process, and infrastructure (and each is a vector to attack).

Question:
How do we balance 1. the needs of the protocol to remain neutral, while 2. allowing everyone to keep the personal/unalienable freedoms, with 3. the valid feelings of humans?

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The Codes should not conflict with each other, as long as we keep them to actionable conduct and avoid the imposition of moral values.

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Use this if you find it of utility: On the nature of DAOs and their projection on Electoral & Corporate structures

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Perhaps, you should join us lawyers. :rofl:

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I might go mad. I won’t join but I will keep a track for sure. Never trust a lawyer, especially three :laughing:

Please note I am moving this thread into the Meta-Governance > DAO-Governance category. This category will house all of the conversations related to governance processes and structures within the ENS DAO.