I’ve been away for a while, and starting to feel like I owe my cherished readers an explanation for the long pause in new posts. All is well with me, and the pause does not indicate any waning of enthusiasm for the principles written about here for the past few years. Besides the usual friffage of fascist toil and family life, I’ve been busier than usual with political activism. That is a topic for another day.
There been no lassitude. I’ve been busy finishing up my book, “An Introduction To Voluntary Law.” I’ve reorganized it, written more than a dozen new chapters, and edited some of the chapters already posted here. It’s coming together very nicely, and I hope will be ready for publishing early next year. Finishing the book is not just an arbitrary goal. It is a closing of the philosophical circle. There is a vision, an analysis, a plan – quite a bit more than I’ve already published here. My statement of introduction to a new type of law, and a new type of hope, is nearly complete.
Plans are in the works to set up a registered non-profit, to obtain funding for carrying the mission of the Voluntary Law Development Association to the next phase. The new entity will be a non-profit, public benefit educational institute for development of voluntary law, for instruction and certification of voluntary law society members for various roles, and for empirical research in the science and practice of voluntary law. Next year and beyond will be occupied with developing the resources, human and financial, for carrying out these missions.
The website vlda.org will be revamped too. With publication of the book, there will be less need to lay out the basic principles in detail on a website. The site will evolve more towards a news hub for the few people interested in my personal thoughts and doings in the area of voluntary law. While the purpose of vlda.org will diminish, the amount of online content and instruction in voluntary law will increase, under the new educational institute.
Among the colleges of the new Institute, a College of Social Engineering will begin its founding project: configuring the network tools that will enable the world’s first online social promise society. Every voluntary law is a social promise, and nothing more, and every social promise society will be a voluntary law society as I’ve been writing about here. We won’t call social promises “laws,” because people have forgotten what law is, and the term confuses hearts and minds. In the end, real and functioning social promise societies will teach people that social promises are the only laws worth following. And that only laws worth following are actually “laws.” A great deal of what people call the law today will be finally recognized and rejected as barbaric, destructive diktats.
All that explains the pause. See you on the other side.
It may seem fantastic that one day there will be no penalty for failure to pay taxes other than loss of reputation. Truly the idea does seem remote from reality. Maybe you can be convinced that it is only a hair’s breadth away.
The conversion of taxes to reputational morality payments that are entirely voluntary is closer than it seems. The modern version of investment financing for both charitable causes and business, that is, crowdfunding, has proved that social programs can be funded voluntarily. Crowdfunding differs from conventional fundraising only by being online, in some respects. But what a difference being online makes! Any interested donor can keep tabs on the progress of the fundraising from practically anywhere in the world. If the donor consents, the identity of the donor and the amount of the donation can also be published. Fundraising drives can become a very explicitly public event. The combination of receiving donations and publishing data about the donations is an excellent medium for cultivating reputations, so long as not corrupted by falsehood.
Promise making, a.k.a. personal adoption of law, is also a medium for growing reputation. By promise making, each person supplies the yardstick by which their honor can fairly be measured. The detailed shape of the yardstick already tells us a lot about the promisor’s expectations. But it tells us nothing about the promisor’s performance relative to that yardstick. Promise ledgers by themselves are necessary, but relatively empty of meaning. The real juicy meat is the promisor’s record of performance against their own yardstick. Information is publicly available from which a reliable assessment can be made of the extent to which promisors have fulfilled the promises they have made. The point is, the activity of public promise making and public promise keeping is a medium for reliably indicating reputation. The reputational information is like a credit score, but much more multi-dimensional.
Likewise, publicly advocating for certain social action, and then publicly donating money to the social causes you advocate or wish to support provides meaty reputational information. It allows you to put your money where your mouth is; or not, as you please. By your pattern of giving and not giving, you provide society with a profile of who you are, in the sense of what impels you to action. When the crowdfunding is operated as an open or partially open online system, the same reputational services that collect and dispense promise keeping histories can provide similar information about donation histories. That’s more meat on the bone.
When reputational information becomes meaty enough, it has a value by itself, largely non transferable. The value is that of reciprocal action. Think about it. If you are a large donor to many causes over a long period of time, when you are soliciting money for the cause that employs you, you are more likely to find support. Not only that, you will learn who reciprocates support, and you may use that information in deciding who to give to. If you have a great reputation, you will receives lots of support, employ many people in your social cause, and earn a respectable living for yourself. Having a great reputation in a network of donors is a very valuable asset, valuable in some ways beyond measure. Not everyone will have the greatest reputations, but everyone will recognize the value of a good one. Nearly everyone will put some energy into maintaining a donation profile that is respectable for their circumstances. Most of those who don’t donate will be in some sort of need, and eligible for being supported as needy clients, to be rehabilitated into productive members of society if possible. There may be a few Scrooges who just won’t understand, and will try to hide their true wealth and income to escape being considered overly selfish; but it is hard to see selfish attitudes lasting for long when the society depends heavily on giving, and most donations are transparent.
What has just been described in barest outline is an evenly rotating economy based on donating to social causes. Every imaginable social cause can be funded this way: collective defense, including military defense; environmental protection; social justice; care of the poor, sick, orphaned and helpless; rehabilitation of criminals; a national weather service; scientific research and exploration, and so forth. The list is endless. This new economy will do everything useful that the current system of taxation does, and will do it better, with much less waste and corruption; it will do more than we know or can presently imagine, besides. The social causes economy will resemble a traditional exchange economy, in which it is sometimes difficult to tell the difference between a social cause and a business concern. After a time, there will no longer be a meaningful distinction between causes and businesses. Every cause will do some business, and every business will be involved in a cause. In those future days, the accountants will glad that they no longer have to make difficult distinctions between tax-exempt donations and taxable income, both because there will no longer be any income tax, and because the new economy would have made those distinctions so difficult had income taxes managed to linger somehow.
That income taxes will not linger forever like every other government program seems fantastic, but again, it is only a hair’s breadth away. Only two things need to happen: first, the applicable legislature or voting public need to start gradually defunding programs, and requiring the applicable revenue agency to replace the funds from income taxes with financing obtained from voluntarily crowdfunded programs. Tax payers could easily be motivated to donate by granting dollar-for-dollar tax credits for every donation. The revenue agency would not need to manage the technical aspects of crowd funding. Crowdfunding might be managed instead by a community made up of professional crowdfunding system operators, and the users of the crowdfunding system, just as it is today. All the revenue agency has to do is keep an eye on things, keep ledgers and statistics, and report back to the legislature. After enough time, political activism, and rejiggering by the crowdfunded recipients, everything will be funded voluntarily, and income taxes will cease to exist.
The path is clear. It will not be politically easy, but mainly because it is natural to fear the unknown, and we can’t know exactly where the path will lead. Some sacred oxen will be gored, and everybody who now depends on the income tax system for income will have to find an alternative source of support. That is of course part of the beauty of this path: as the demand for labor in the tax system decreases, it will be offset quite closely by demand in the crowdfunding sector, and in all the new and revived sectors that the crowdfunding sector will motivate. Yet another benefit is that the social information that can be gleaned from the income tax system will not be lost, but it will be transformed into something more just and dignified. More will be discoverable from the crowdfunding system about who is up to what, and for what purpose, that was ever possible from the income tax system.
Wherever the path of voluntary law leads, we can be certain there will be no income taxes there. Voluntary society will see to that. Voluntary law must require it; income taxes and all other forms of coercion are not a rational option within the bounds of the voluntary law. All taxes will be replaced, inasmuch as serving some useful function, with voluntary crowdfunding.
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Photo by HM Revenue and Customs
Being founded in the ultimate egalitarian principle of personal self-sovereignty, voluntary law is better able to correct systematic imbalances and prevent injustice to the poor than any system of law or government based in privileges of property, or elite political status. When the rich oppress the poor, voluntary law provides a sort of built-in remedy for the oppressed, as can be seen by analyzing the interests of the actors involved. All oppression by the rich must be rooted in their property claims. To resist oppression based in socially dysfunctional assertion of property rights, the poor have two useful tools. First, the poor can bring claims seeking payment from the property of the wealthy. The wealthier the defendant and the larger the potential award, the better the contingent-fee advocacy that can be hired. Second, the poor can adopt laws that do not recognize the property claims of the wealthy or that provide superior property rights in cases where the poor hold the weaker property law.
For example, application of TROTWET to real property tends to create incentives for homesteading on fallow land that is not being diligently defended, as discussed previously in connection with property laws. Large holders of unused land will have to recruit and reward a small army of defenders. In the absence of a social utility enlivened by a moral purpose, the mere holding of empty land will in most cases not be worth the effort. People will tend to claim parcels they actively use and patrol, or intend to use in the near future. Exceptions to these limits might include nature preserves that are defended by environmentalists, who use the land lightly (e.g., for quiet recreation and observation of nature) and who are motivated by righteous zeal for environmental preservation. The state would not be available to tax the poor and use the tax revenues to enforce the property claims of the wealthy. The wealthy would have to enforce their own property claims, and the cost of doing so would tend to create a wealth equalizing effect by requiring them to employ the poor on mutually acceptable terms. The poor would have no reason to hire themselves out for the defense of wealthy land claimants, unless the benefits of doing so outweighed the benefits of defending their own property claims. It is not hard to see how such a legal regime would tend to lead to joint defense pacts on relatively egalitarian terms, to the extent that defense is needed at all.
Widespread adoption of voluntary law would place the poor in the strongest possible individual negotiating position with respect to wealthy property owners seeking to hire them for defending the owner’s property claims or for exploiting those claims to earn income. Under voluntary law, there can be no imprisonment or other punishment inflicted on the poor except that which is permitted by the weakest law as between the law of a poor defendant and a wealthy claimant. Moreover, whatever the sentence, its execution will have to be paid for by the wealthy claimant.
Yet another tool in the arsenal of equality is the rule against forced recognition of corporate or other collective entities. This will make it harder for collectives to amass wealth to the disadvantage of individuals who do not recognize the legitimacy of the collective. For example, when mass movements of the poor choose to occupy corporate properties, the poor can select the laws that they will adopt for their own defense. Lobbying and influence peddling will have to be directed to its only proper outlet: the victims of the property claims that would be asserted. There are no legislators or entrenched judiciaries to buy off.
When the poor oppress the poor, monetary damages to motivate justice may be less effective particularly in cases where the poor defendant lacks any reasonable capacity for earning income. Statist systems fail particularly badly at this problem. A poor criminal can be imprisoned, but this costs taxpayer money and does nothing to restore the harm done. Meanwhile the imprisoned criminal receives often receives informal education in prison about how to survive as a criminal, and little or no instruction that enables prospering as a productive citizen.
Restitutionary justice will provide a better solution, by creating an economic incentive for reformation of the offender by a third party reformer. The reformer contracts with the convicted defendant and with the injured victim. The defendant agrees to work for the reformer in exchange for whatever terms can be agreed upon, with a portion of the defendant’s earnings paid to the victim. Once the debt has been repaid, the defendant has been rehabilitated. Both the defendant and the one who rehabilitates earn honor for themselves, and are positioned to take advantage of future opportunities.
In voluntary law societies, there will be greater incentives for private aid to the unfortunate. Those who give generously and successfully — meaning with gifts that do not make the recipient dependent, but that tend to lift them out out poverty into a self-sufficient state — will earn stellar reputations. The reputation earned will provide very real economic repayment for the time, effort, and expense of helping others. To name just a few benefits, the most effective charitable organizations will have the nature of an educational institute, which earns social power and prestige through its alumni. To reap these dividends of prestige and social power, charitable groups and individuals will compete for opportunities to serve needy clients of all types. Merely slothful people would make poor clients and would be less sought after. Yet, where there is sufficient demand for poor clients, many of those who by making themselves poor seek to live off the labor of others might be reformed, and taught the much more fulfilling rewards of a good reputation. In voluntary society, private charity will operate without coercion or fear of unwanted liability for conduct or misfortunes of the unfortunate. TROTWET will protect the well meaning and reasonable people on both sides of interactions between the poor and those who would serve them.
Stateless social security can be provided by mutual aid societies, which can be ad hoc informal organizations, or more formally organized. A self-perpetuating society nurtures both its young and its old; nurturing is a natural human trait that does not need to be enforced by a state. Unhindered by state meddling, mutual aid societies can operate more efficiently and strike a fairer balance between the needs of the young, old, and sick and the working middle that sustains those weaker members. Under voluntary law, this natural human impulse for nurturing and social structure is reinforced by the personal promises of those who join mutual aid compacts, making the fulfillment of their mutual promises a matter of personal honor and reputation. We can be sure that every single infant who ever survived to adulthood was the beneficiary of at least one, and often several, mutual aid societies on the path to survival. So too, we can be sure that a free people experiencing need will form mutual aid compacts to meet that need. When doing so under an “empire” of voluntary law, we can see mutual aid societies that (unlike tribes and nations) will not seek to make war on competing societies, because of the mutual promises made from within each competing group to the greater host of humanity without.
Societies based in personal sovereignty will provide vastly more economic equality than is possible when sovereignty is based on claims over land or other natural resources. Every person has only one inviolable dominion: their own person. All other property arises from their own conscience and promises. In such a society, durable poverty does not exist for any economically capable person, only temporary shortages of goods and services demanded.
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Photo credit to Alex Proimos
Some Rights Reserved under Creative Commons
Criminal law is a creature of the state and does not exist as a separate category in voluntary law. Instead, there is a continuous gradient from good citizen to scoundrel, and the measure of the gradient varies from person to person. There can certainly be no crime against the state, because the system is stateless. Neither can there be any “crimes against the people” per se, although there can be conduct that, once proved by due process, earns the doer widespread opprobrium. Such people – those widely condemned or intensely distrusted — are the “convicted criminals” of voluntary law societies.
“Criminals” in a free society might include various classes of persons. For example, someone who does not voluntarily obey fair judgments of a voluntary law jurist, requiring coercion to be applied, might be regarded as a sort of criminal. This sort masquerades as a society member, but when faced with the necessity of complying with his own law, refuses to challenge the ruling on some reasonable legal or due process grounds, or to comply with the ruling to the best of his ability. Another sort might be one who voluntarily accepts and complies with valid rulings, but who has been convicted of conduct that so gravely impugns the person’s character, as to render the person untrustworthy, or morally repugnant. A third category of criminal might be one who holds to odious laws. All of these people are society members, but ones who at least temporarily are widely regarded with mistrust, disgust, or anger.
Voluntary law allows infinite avenues for redeeming, reforming, or acceptably tolerating all such criminals, eventually. Some criminals may be reformed and in time re-enter normal society, through various channels of reformation including but not limited to reform schools, indentured servitude camps, indentured apprenticeships, participation in mutual aid societies or guilds organized for the purpose of reputational reform, or other means. Some criminals may exist in a sub-society that is subject to certain limitations indefinitely, as if falling into a lower caste of society, while still being able to enjoy some of its benefits. Others may become outlaws and pass entirely out of the ambit of voluntary society, depriving themselves of all of its benefits and struggling for survival with the barest social protections.
Another class of “almost criminal” person might be one given over to vices of a victimless nature, such as various unsavory addictions, or needlessly cruel behavior to outlaws, or practices that are culturally condemned but not generally illegal. Exactly what sort of behavior falls in this category can vary with the times and circumstances. For example, a mild addiction to chewing coca leaves, or the keeping of pets, might be considered reprehensible in some places or times, and perfectly acceptable in others. To the extent the behavior is private and not actionable under voluntary law, there can be no legal liability or social consequences. Once the behavior become public there can be social consequences as with anything else done publicly, but there can be no legal liability without the consent of the person who engages in the behavior.
This legal protection does not mean that self-destructive conduct or other questionable forms of self-indulgence would thrive unopposed. On the contrary, any publicly discoverable behavior that is offensive to enough people may be “socially criminalized” in the sense that those who do it are shunned to some degree. In reaction to such shunning, others may elect to shun the shunners. It follows that any victimless conduct that is condemned by a substantial majority of people in some economic circle cannot be sustainably practiced there without support from a motivated minority. In the absence of one dominant power such as a nanny state defining what conduct is or is not protected, dramatically different cultures might arise in different circles. In essence, in voluntary law societies, shunning replaces voting as the primary means for enforcing particular moral preferences in particular circles.
Whether you not you find such possibilities disturbing, or stimulating, may depend to a large degree on your cultural conditioning. Many people today are accustomed to fairly uniform standards for acceptable behavior being enforced over wide areas. For example, at one time homosexuality was made illegal by states, making the lives of ordinary people who happened to prefer homosexuality difficult and dangerous. At later times, states made it illegal to shun homosexuals in private commercial transactions. Under either regime, some people were denied the ability to openly conduct themselves according to their moral and personal preferences. Many have not considered, or would consider it strange and unappealing, to construct a society in which courts will not enforce a uniform standard, enforcing instead nothing more than each person’s personal code of honor. Before voluntary law can become the dominant paradigm, these rather childish attitudes must fade, to be replaced by more sophisticated understandings of the natural merits and limits of self-sovereignty. The examples below illustrate some of these natural merits and limits.
These natural merits include discovery of other’s cultural and moral preferences, facilitating more targeted discovery of compatible friends, partners, customers, service providers, and other relationships. For example, people might adopt personal honor codes stating that they will not engage in promiscuous sex or hire the services of a sex worker while in a committed sexual relationship with another without the knowledge and consent of their partner; and should they violate this rule, their partner will have certain remedies. The benefit of doing this may include demonstrating one’s expectations and commitments to others, for the purpose of finding a mate or companion. Others may prefer silence on the question, or make a different commitment, or may deny any such commitment. Either way, for better or worse, others will know where they stand, and may use this information for any desired purpose.
For example, prostitutes might market themselves primarily to people who have openly indicated that safe, professional sex is allowable, and perhaps to a lesser degree to those who prefer silence on the question. They would focus their marketing both to reduce the cost of finding customers, and also to reduce the inherent relational risks associated with having sex with strangers, such as incurring the wrath of a mate or dealing with those who are unable to understand and accommodate the professional’s position in the transaction.
The ability to focus their marketing based on promise information would benefit both prostitutes and their likely customers. It would also benefit those not interested in paid sex, by sparing them from unwanted solicitations, among other things. Conversely, those who prefer monogamy might avoid looking for partners among those unwilling to adopt a compatible honor code, and would also be aided. Those who find sex work or promiscuity sufficiently offensive might even shun others who decline to adopt personal honor codes to their liking, while defenders of sex workers might offer discounts or other benefits to those holding prostitute-friendly codes.
In a truly free society, shunning may be applied to a much wider array of behavior than the types of victimless conduct that states have outlawed at one time or another, such as forbidden sexual activity, use or sale of contraband, smuggling, blasphemy, criticism of the monarch or state, and so forth. Rather than being applied to old and familiar vices or activity detrimental to state monopoly power, in free societies shunning might tend to be used as a political tool when it is desired to change the behavior of ones’ neighbors. Also, shunning may take various forms other than refusing to do business altogether, such as for example the imposition of a premium price or embarrassing label.
For example, suppose the economic leaders in a particular circle decide that too many people are engaging in an undesirable behavior ‘X.’ The behavior ‘X’ can be just about anything that a group of people decide is undesirable; use your imagination. Likewise, the circle can be anything with effective control over a significant economic resource: a city, a guild of people who control the Internet, a cartel of underground medical providers, a union of sex workers, an ad hoc organization of online underground free market hosts, whatever. Suppose ‘X’ is the consumption of meat, and the circle is the city. The city leaders are morally committed vegetarians, include nearly all the restaurant owners, service providers, and utility providers in the city, and want to create disincentives for meat eating. They each adopt a personal honor code that commits them to not eat meat unless necessary for survival, and offer a 20% discount to anyone who adopts the same code. In effect, people who have not promised to eat meat would pay a 20% premium for doing business in that vegetarian city. But in the absence to monopoly power, they would not do so for long.
There are economic and political limits to widespread adoption of shunning. Whether or not price discrimination of this sort is effective will depend on environmental factors. In the absence of market power by those enforcing the price discrimination, it will not work. Even when a cartel is able to enforce price discrimination based on arbitrary personal profiles for a while, competitive pressures will tend to undermine it over time.
Simply put, too much shunning is bad for business, creates opportunities for competitors, and limits the shunner’s political influence. For example, if vegetarian shop owners in an area charge a premium to non-vegetarians, the price discrepancy attracts vegetarian customers while repelling meat eaters. Meat eaters will tend to shop elsewhere, so most of the shop owner’s customers will be vegetarian. Thus, the shop owner is seldom able to enjoy the benefits of receiving a 20% premium price. If there are many meat eaters in the area, competitors will move in to service them. The vegetarian shop owner will lose opportunities to interact with meat eaters and to influence them to become vegetarians. Shunning is not likely to be practiced for trivial reasons, because such shunning cannot be economically justified. Instead, shop owners are more likely to offer inducements, such as discounts on vegetables to any meat eater who promises to give up meat, in which the cost of the inducement comes with the possibility of an economic return.
There can be non-trivial, economically justified reasons for shunning, such as black market participants avoiding the buying or selling of goods involving undercover police or informants. In circles that are vulnerable to aggressive attack, promise network information may serve as a proxy for identifying high-risk transactions. People with promise profiles that indicate a greater transaction risk will be avoided. This type of shunning may become especially important whenever a breakdown of the state (e.g., hyper-inflation) restricts supply of good or services to people who lack alternative support systems, such as promise networks. It may also be important to people who for one reason or another cannot adopt the promise profiles that would make them acceptable to their desired type of merchant or customer. Promise profiles and associated reputations thus operate as a sort of behavioral credit score, permitting discrimination between sellers or buyers based on a rational assessment of risk associated with incompatibilities between promise profiles or past promise-keeping reputations. Promise and reputation information will facilitate shunning that does not violate the laws of economics.
Personal honor codes that excuse or require extreme shunning would create an unnecessary risk that those who hold them would be shunned for their own unbendable intolerance. People would not find it necessary or desirable to adopt such codes, because shunning could rarely or never be used as a positive legal claim or affirmative defense. Instead, most shunning would be done ad hoc and not in a systematic fashion, preserving flexibility. People would adapt their acts of shunning to the circumstances at hand, with utility taking precedence over consistency.
Imprisonment by the state is a form of shunning that most are familiar with today. Even though imprisonment is inflexible and clearly uneconomic in most cases, it continues in widespread practice because maintaining prison systems is politically expedient for those with the power to allocate tax money, with many unfortunate and unjust consequences. A majority of the electorate will need to believe that alternative forms of punishment are available and preferable to imprisonment of non-dangerous criminals, before such imprisonment will end.
Another form of state-run shunning is state-maintained registers of criminals, such as “sex-offender registries.” Such registries are “one size fits all,” with everyone on the list assumed to be dangerous, regardless of actual fact. Moreover, offender registries are often used to require third parties to shun the listed offenders. State-enforced offender registries violate the right of free association and personal sovereignty. A robust promise society will make special criminal registries obsolete, because reputation information that is available generally will be more detailed and accurate than can be provided by a list of offenders. In voluntary law societies, individuals choose for themselves whether or how to take the reputations of others into account in their dealings with them.
Open-source shunning by individuals is the closest thing to criminal punishment that a free society will impose on its members. Free and voluntary shunning will different dramatically from statist solutions, however. In a free society, shunning will be a useful and fluid tool that creates incentives for socially constructive behavior of all types. Shunning and inducements based on promise profiling may help move society towards freer, more ethical arrangements, by creating incentive for adoption of promise systems where such concepts were unknown. Even after voluntary society is predominate, shunning broadly defined may become the primary instrument motivating continuing social change in the face of evolving moral preferences.
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Photo Credit to Chris Yarzab
Some rights reserved under Creative Commons
Attribution 2.0 Generic
In earlier posts, I’ve assumed that in determining liability for the death of a victim it is the victim’s law that should be applied, subject to the usual principles for choice of law. We can rationalize this choice as essential to preserving reciprocity even in the case of mortal injuries, but it might be questioned whether the choice is truly justified. In whatever form a deceased spirit exists, if it exists in any form at all, it is evidently not in the form of a corporeal natural person. And unlike a disabled person, who might perhaps overcome his disability someday, the deceased once dead and decayed can never again assume the same identity and capabilities of her formerly living being. So applying the law of a dead person violates the founding pillar of personhood. It seems as if a choice must be made: either the founding pillar of personhood must be temporarily waived when a case touches on a dead person, the law of the dead must forever be enforced as if frozen in time, or all the law of the deceased must be immediately disregarded. It is not immediately obvious which choice is wisest. As shall be shown, it is not necessary to make any such choice.
There are two principal classes of legal action involving dead law makers. The first class includes all claims for or against the dead person, arising out of circumstances preceding their death. The most dramatic example is a claim for restitution or vengeance in the case of murder or negligent homicide. Although these claims are not perfected until the victim dies, the claims nonetheless belong in this class because killing can only be inflicted on the living. Yet this class also includes a multitude of less dramatic claims that were made by or against the dead person, or could have been made, prior to their death. Just about any claim will do. It is a not uncommon situation, traditionally handled in the West by maintaining the action by or against the estate of the deceased under State-made law. Under voluntary law, it may be necessary to reconcile conflicting laws, and to that end, to consider whether or not the law of the deceased should be respected just as in life.
Causes of action in this class arise always during the life of the victim or of the wrongdoer. Even murder does so arise during life, because it is impossible to kill one who is already dead. As in every other case arising out of the past, the law is retrospective; it looks back in time. In these cases, the law looks back to a time when all parties were alive. Therefore, for purposes of determining the law to be applied, the death of the victim or of the one accused of wrong is of no consequence. The law of the deceased is applied as if they were alive. To hold otherwise would be to make an exception to the general operation of the law, in view of arbitrary circumstances arising after the fact. If justice is to be fair and not arbitrary, there is no choice to be made when judging events that occur before death. The adoption of law made by the one who has died must be regarded as if she had not died, for rulings in this class of actions.
The second principal class of actions involving deceased law makers includes all claims that cannot begin to arise until after the law maker is dead. This class includes claims of inheritance, and the disposition of wills, trusts and estates. Although actions prior to death may be considered in judging these cases, for example, the execution of a will, such actions are not the cause of the action at hand. The cause is simply the event of death itself. Thus, justice does not require that the law of the deceased be applied as if he were alive.
Neither does justice require that the law of the deceased be ignored. For example, the extent to which to consider the law of the deceased can be determined based only on the laws of the living, so there is no contradiction of foundational principals. If a living party has adopted a law that gives meaning to instruments such as wills, or provides for rights of inheritance under the law of the one who has deceased, and the deceased had a compatible law, then there is no issue to be decided. The law of the deceased will prevail. It may be that most people will adopt laws that respect the adopted law and wishes of the dead with respect to wills, trusts and the disposition of estates. If not holding to such a law, then their own wishes are much less likely to be considered upon their death. Also, without a continuance of an elderly or infirm person’s estate after death, others may be unwilling render services or lend to such persons. A continuance of the deceased’s property interests until their debts are settled depends on a mutual recognition that the property interests can survive death for some period of time.
Others may have no real concern about the disposition of their property after death, and choose laws that seem more advantageous during life. To these people, it might seem better to make claims on property of the deceased without being constrained by the laws or wishes of the deceased. For example, such a person might hold to a law stating that all property rights cease immediately upon death, such that death itself acts as abandonment of any property held by the deceased at the time of death. This person would then be able to make a claim upon any property so “abandoned.” Such a claim would have to compete with claims upon the deceased’s property by any others with contrary laws. If there are no opposing claims to the same property, the claim can be considered as if made upon abandoned property, considered elsewhere.
For example, consider a case in which a person dies with a will, or without a will but with a surviving spouse. A stranger brings a claim for property formerly owned by the deceased, and the spouse opposes, claiming the property for himself either on the basis of the will or the deceased’s inheritance laws. If the stranger has no nexus to the property she claims, she will lose under TROTWET to the surviving spouse, who has a nexus to the property by way of the will, by way of his relationship to the deceased, by way of actual use or labor associated with the property, or by any combination of the foregoing.
On the other hand, if the stranger bases her claim on some nexus to the property that runs deeper than the spouse’s, the stranger may prevail. For example, suppose the stranger is not truly unfamiliar, and can prove she had an ongoing intimate relationship with the deceased, the property she is claiming was purchased by the deceased for her to reside in, and she did in fact reside there. In such case, her claim to the property should succeed under a weaker tool analysis for property claims, because a neutral jurist should find that the claim of property she is asserting is based a law that requires a more stringent antecedent for the property claim than the law of the surviving spouse. Win or lose, the stranger’s claim can be judged fairly without any need to assert the law or claims of a dead person against her.
On the other hand, if both the stranger and the spouse by their prior adoption of law recognize the will of the deceased, then the will of the deceased should be faithfully executed. If the deceased’s will is valid only under the law of the spouse, but not under the law of the stranger, then the will is properly a factor in testing the prevailing law to be applied to the competing property claims, but does not control. The outcome will depend on whether the will plus the spouse’s antecedent nexus to the property is more, or less, stringent than the antecedent nexus of the stranger, as with any other dueling property claim.
Any law that grants rights to property on the basis of some relationship to a particular deceased person must, by logical necessity, recognize the preceding ownership claim of the deceased. So even if the law of the deceased no longer exists to control such claims, it is therefore still accorded a certain indispensable respect in most disputes over succession, typically grounded in personal relationships. For example, Clifford, the only first cousin of Richard, realized early in life that he was unlikely to ever be related to anybody more industrious or wealthier than Richard. So Clifford adopted a law that provides for inheritance of all property by cousins, even if the deceased leaves a will. Benjamin, Richard’s only son, adopted a similar law providing for inheritance by children. Grace lovingly took care of Richard for many years, and Richard left all his property to Grace in his will. Both Richard and Grace adopted a law providing that if a valid will exists, it controls the disposition of property after death. As between Clifford, Benjamin and Grace, who holds the weakest property law?
We can compare the parties’ respective antecedent bases for their property claims:
Clifford: relationship of first cousins;
Benjamin: will of the deceased + child relationship;
Grace: will of the deceased + years of labor + long-term caregiver relationship.
Grace’s law is probably the weakest and is therefore likely to prevail; but even if Benjamin’s law is deemed weaker, Richard’s will is executed either way: Grace receives all of the property at issue. Clifford’s law is merely opportunistic and would be enforced only in the absence of any less frivolous claims.
With some types of property left behind after death, wills and familial relationships will carry less weight. Consider, for example, a claim by a nature preserve over certain truffle grounds owned by a deceased truffle gatherer named Trudy. Trudy left the truffle grounds in a nearly pristine state, and only used it for harvesting certain rare truffles that grew there naturally, for her personal enjoyment. The nature preserve is a collective organization that holds title to various tracts of pristine land using methods as described earlier. Suppose, for simplicity, that the preserve makes its claim in the name of one of its member agents, Amy. Amy’s intent is to hold the land for the benefit of the preserve, as a habitat for certain rare animals and plants. Trudy did not leave any survivors who ever made any use of the truffle grounds, and left it by will to her partner Tran, whose law respects the will of the deceased. Tran did not enjoy truffle hunting, and planned to sell the truffle grounds by auction of the International Truffle Association. She needed the proceeds to fund her retirement. If Amy’s law does not respect wills of the deceased, there may be some uncertainty as to whose claim is stronger. A skilled jurist will exploit the uncertainty to assist the Amy and Tran to negotiate a settlement. For example, a settlement under which Tran sells the truffle hunting rights subject to a preservation easement in favor of the preserve via its designated agent Amy would meet the needs of both claimants. If the parties refuse to settle, they will have to live with whatever ruling the jurist decides. In close cases, rational disputants will settle.
As happens under present systems, some people may leave their property to a trust, which is a form of fictional entity. As any other fictional entity, the extent to which it is recognized and respected will depend on the laws of those who interact with its property. Since these laws cannot confidently be predicted in voluntary law societies, fictional trusts will not be commonly used. Instead, property may be given in trust to natural persons, who are charged with the duty of acting as trustee of the property under a contract with the grantor. If the grantor dies, the trust may be enforced against the trustee by a third party beneficiary or surviving parties to the trust agreement. If there are no beneficiaries or survivors, the trust dissolves at the discretion of the trustee.
Death, as it is known today, is usually irreversible; exceptions may exists in fleeting cases such as when people “die” on the operating table but are revived before brain death sets in. Future technological development may change this present reality. After all, heads and entire bodies are sometime frozen, in hopes of later revival. There may come a time when the dead are not beyond hope of revival under conditions that are presently beyond hope. If such a time comes, those awaiting revival may be treated under the law as simply disabled for an indefinite period of time. If this period of time stretches or more than a few year, difficulties with this approach may arise, resolution of which may be left to a time in which the difficulties actually arise. The underlying tension is between a law of the indefinitely disabled, which is frozen and cannot adapt to changing circumstances, and the adaptable law of the living.
The death of the voluntary lawgiver may seem to thrust us into unfamiliar territory. We are accustomed to considering only one law controlling the disposition of property after death. Yet, the differences in fact are not as radical as it may seem, due to other balancing principles such as TROTWET. Discounting the law of the dead may seem superficially troubling, but in the majority of cases will bring about results similar to those provided by widely applied rules of inheritance known today, as illustrated by the foregoing examples. In some cases, death will bring more flexibility for just resolution of conflicting claims than is possible under a monolithic legal system. Applying the law of the living to the property of the dead has the great advantage of freeing the living from constraints imposed by those who cannot breathe life in their flesh ever again, or adapt to changed circumstances confronting the living.
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Image from page 343 of “St. Nicholas [serial]” (1873)
via the Internet Archive Book Images photostream on Flickr
Determining which party is initiating force is a fundamental (but not insurmountable) problem with political theory based on non-initiation of aggression. “Voluntary prior consent” to the right being enforced may be one of the better ways to approach the problem.
For example, suppose that Aperson voluntarily assents to the proposition that murderers should be imprisoned by a community policing collective (CPC), and further voluntarily joins this entity, which taxes its members. If she refuses to pay her taxes while positioning herself to receive services that the CPC provides only to its members, she commits the aggression of theft of services. Likewise, if she murders someone and then refuses to submit to imprisonment once proven guilty, her refusal to accept the punishment she deemed just adds to her aggression of murder.
On the other hand, if Beeperson has not voluntarily joined the CPC, it would not be aggression on his part to refuse to pay CPC taxes presuming he did not willfully to seek to benefit from CPC services without mutually agreed payment. Likewise unless he had voluntarily assented to imprisonment by the CPC for murdering one of its members, if he murders someone he does not add to his murderous aggression by refusing to be imprisoned by the CPC for it.
When a CPC claims a monopoly on the use of force in a territory, no one is allowed the choice to voluntarily exist and trade with inhabitants in a particular territory without submitting to all of the extant monopoly’s rules and demands. Therefore even if Aperson thinks she has voluntarily agreed to follow all of the reigning monopoly’s rules and demands, her “choice” is indistinguishable from the “choice” of a slave on a plantation to not be “uppity.” There can be no voluntary compliance without real choice, because voluntary means to choose without being coerced. Real choice means non-coerced choice, and eliminating coercion requires allowing the one who chooses freedom of action without existentially adverse consequences.
The foregoing implies that there is something special about the right to exist in an area and to trade freely while doing so. These freedoms can be recognized as fundamental human rights without denying the possibility of trespass or other special situations that might restrain trade at certain times or circumstances. While this is a topic that deserves further treatment, suffice it to say for now that any U.S. government that denied the fundamental right to life, liberty and the pursuit of happiness would be in opposition to its founding documents, and in that sense illegitimate.
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Photo Credit to Darren Johnson
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