Conflict of Laws, Reciprocity

Affirmative Defenses: The Difficult Choice

The Essence of Reciprocity in Voluntary Law

The Essence of Reciprocity in Voluntary Law

Choosing the law to be applied when an affirmative defense is raised creates a difficult choice.  Should the defendant be allowed to raise all the affirmative defenses allowed under the defendant’s law?  Or should the defendant be limited to those affirmative defenses that are permitted under claimant’s law?

First, a little background.   For those who don’t know, an affirmative defense is like an excuse that excuses defendants from responsibility for their actions.  For example, self-defense or defense of others can be an affirmative defense to battery or murder.  Necessity can be an affirmative defense to trespass.  Many other affirmative defenses are possible.

Affirmative defenses can be distinguished from positive laws on the basis of which party has control and responsibility for choosing and proving the elements of the action at hand.  If the claimant is required to select and prove that all requirements are satisfied, the action is a claim under positive law.  If this responsibility is on the person defending to escape liability for the claim, the action is an affirmative defense.

Which law should determine the affirmative defenses to a claim, claimant’s or defendant’s?  Let’s start with the same rule as for positive laws: defendant’s law resulting in the greatest liability applies, unless applying claimant’s law would result in less liability.  Let’s see how this approach plays out in a couple of scenarios:

Scenario A: Fanatic, who has adopted a law stating that any harm committed to prevent an imminent abortion is justified defense of others, hides in an abortion clinic and injures Sawzall, an abortion doctor, just as Dr. Sawzall is about to perform an abortion.  The doctor seeks a legal remedy for the attack, and had previously adopted a law that does not recognize the defense of a fetus in cases where an abortion is elected by the mother.  Fanatic raises his intended defense under the rule of defendant’s law of greatest liability for affirmative defenses, and the doctor is unable to recover for his injuries.

Scenario B: Luckless owns no property of significant value and adopts a law permitting poverty as an affirmative defense against continuing trespass.  He then takes up residence in Rich Brother’s spare vacation house.  Rich, of course, has adopted a law that does not recognize poverty as an affirmative defense to trespass but does recognize defense of property as a defense against claims based on coercive removal.  Rich Brother cannot evict or obtain any damages from Luckless, who successfully raises poverty as affirmative defense to the claim of trespass.   This is so, even if Luckless recognizes Rich Brother’s underlying property claims.  Under Luckless’ rule, poverty is a complete defense depriving the property owner of any legal remedy for the trespass.

The result is the same as if Luckless had adopted a law that does not recognize rights in excess real property.  Under defendant’s selection of law for positive claims, Rich’s trespass claim would fail because his property right in the vacation home is not recognized as valid under Luckless’s law.    Either way, Rich has no legal remedy.  Rich’s only option, apart from tolerating Luckless, is to physically remove Luckless extra-legally and plead the affirmative defense of defense of property in case Luckless brings a claim for damages based on the removal action.  Rich can use any method he likes to carry out the extra-legal eviction, because he has adopted a law in which defense of property is a complete defense to any claim of excess force.  So if Rich Brother shoots Luckless in both legs and throws him out the third-floor window, tough luck for Luckless.  If Luckless were to sue for the violent removal, Rich Brother would obtain the benefit of both his positive property law and his affirmative defense, and escape all liability.

The foregoing examples illustrate the impossibility problem at work.  Fanatic will never perform an abortion and therefore has no concern about the fetal defense excuse ever being raised against a claim he might make.  Luckless owns no property and likewise has no reason not to adopt poverty as an affirmative defense to claims based in property; conversely, Rich has no reason not to adopt defense of property as an affirmative defense.

Unlike claims that are controlled by claimants, the defendants are in control of affirmative defenses.  Thus, the impossibility of reciprocity problem coupled with defendant’s rule of affirmative defenses creates incentives for using extra-legal remedies for perceived but legal wrongs, without any risk of legal liability.  This is problematic, to say the least.  The power to select one’s own affirmative defenses cannot be allowed to create incentives for extra-legal remedies.  If voluntary law creates incentives for extra-legal remedies, it will quickly lose legitimacy and cease to exist.

As an alternative, a conflict of law rule that applies claimant’s law might be considered; to avoid opportunism by claimants this should be “claimant’s law of least liability,” the logical converse to “defendant’s law of greatest liability.”  Let’s see how this plays out in the next scenario.

Scenario C: Assume Defender, who has adopted a law stating that any harm committed to prevent abusive injury to a child is justified defense of others, becomes aware that Abuser has imprisoned Abuser’s own children and is beating them bloody every day.  Defendant executes a daring rescue, freeing the children, but unavoidably injuring Abuser and destroying part of his home in the process.  Abuser seeks a legal remedy for the attack, having long adopted a law that does not recognize defense of others as an affirmative defense, in cases where person being defended against is the father of those being defended.  Under the rule of claimant’s law of least liability for affirmative defenses, Defender therefore cannot raise his intended defense, and must compensate Abuser for his injuries and property damage.  Meanwhile, assuming Defender recognizes the affirmative defense of self-defense, Defender cannot recover from Abuser for any injuries inflicted by Abuser in self-defense.

This may not seem to be a very satisfactory result, but is not at all as bad as it seems.  The hypothetical intentionally portrayed Abuser as unsympathetic to play with the reader’s emotions, to encourage clarity of thought.  What if Defender mutilated everybody who so much as raised their voice to their children?   Applying claimant’s rule of affirmative defense simply creates incentives for Defender to exercise care while rescuing children.  Abuser may not deserve to be treated with care, but that is not the point.  The point is that Defender cannot be permitted to effectively appoint herself judge, jury and executioner upon the general public, and must act with care even while performing meritorious deeds.

We may assume that under voluntary law, Abuser cannot claim a right to abuse anyone including his own children (such a law clearly violates the non-aggression principle and equality of persons), and may be held fully liable under claims brought on behalf of his freed children.  The issue is limited to whether Abuser may exploit the impossibility of reciprocity problem to deprive Defender of any affirmative defense based on defense of others for defending Abuser’s own children.  Suppose this result is permitted, and the tables are turned: Abuser attacks to defend Defender’s children (assuming Defender has become an abuser).  Shall voluntary law permit Abuser to gain the benefit of Defender’s affirmative defense?

The no-hypocrisy rule would say no.   Because Abuser has adopted a law that would result in greater liability, Abuser cannot receive the benefit of Defender’s affirmative defense that would result in less liability, if sued by Defender.  Abuser must be judged under the same affirmative defense that he would permit for those he makes claims against, but only if applying his own law of affirmative defense would result in greater liability than applying claimant’s law.  In other words, when raising an affirmative defense, defendant must do so under claimant’s law, unless defendant’s own law provides a weaker affirmative defense than claimant’s.

These examples illustrate how reciprocity and no-hypocrisy create incentives for people to adopt laws of affirmative defenses that will not deprive them of a similar defense if ever needed.  This should prevent injustice in personal injury cases where impossibility of reciprocity is not a problem.  In property case, where impossibility of reciprocity is a common problem, the effects of the proposed rule should be examined.

Let us revisit Scenario ‘B’ discussed above, Luckless versus Rich Brother.  Under the proposed rule of “claimant’s affirmative defense of least liability, unless resulting in less liability than defendant’s affirmative defense of greatest liability,” if Rich Brother sues Luckless, who recognizes Rich Brother’s property right to his spare home but has adopted poverty as an affirmative defense, Luckless is limited to Rich Brother’s affirmative defenses which do not include poverty.  Rich Brother can therefore obtain an order to legally evict Luckless from his vacation home.

However, if Luckless has adopted a positive law that does not recognize any property interest in, say, any home not resided in for at least 50% of the time in any given year, Rich Brother will lose unless he resides in the home for at least half of the time.  Supposing Rich Brother loses on positive law and decides to evict Luckless extra-legally by drugging Luckless and transporting him 1000 miles away while drugged (and then changing all the locks on the vacation home).  If Luckless subsequently sues Rich Brother for kidnapping and coercive drugging, Rich Brother will be unable to raise his affirmative defense based on defense of property, assuming Luckless does not recognize defense of property as an affirmative defense to kidnapping.  So Luckless will be able to recover appropriate penalties from Rich Brother for his brutish method of removal.   Next time, Rich Brother will be more clever about how he gets Luckless to leave.

It’s rather apparent that second rule creates more incentives for reasonable behavior than the first, in which defendants were permitted to use their own rules of affirmative defense.  In that first hypothetical, Rich Brother could not evict Luckless even if both Rich Brother and Luckless had adopted laws recognizing property rights in vacation homes.  Conversely, if Luckless had adopted a law that did not recognize Rich Brother’s positive property rights, Rich Brother would have had no incentive to perform the extra-legal eviction in a reasonable manner.  The power to select one’s own affirmative defenses should not create incentives for extra-legal remedies.

Read the comic at the header, it summarizes all of the above quite succinctly.   Jonny’s Conflicts of Laws has been updated accordingly.

Advertisements
Standard
Nullification

Nullifying the Need For Nullification

There’s a lot of talk these days about jury nullification, state nullification of federal laws, and so forth.  Several very fine organizations are getting the word out about nullification to the victims of government schools and others who have never been instructed in nullification as an important safeguard against tyranny.  Click the images below for links to a couple of examples.

10th Amendment Center

10th Amendment Center

FIJA

Fully Informed Jury Association

These and similar efforts are praiseworthy.  Nullification, whether by juries, provinces, localities, or individuals,  functions to loosen the oppression laid on the people by the corporatist tyranny that permeates the world today, and awaken the slumbering serfs of statism to their power and potential as free human beings.

All that said, we advocate for an evolution and quickening of human consciousness that would obviate forever any need for nullification as commonly understood today.  All that is needed is acceptance of the principle that no law can be legitimate, except by previous adoption of the person on whom it is enforced. In societies where this principle is observed, all enforcement is limited to laws that have been voluntarily adopted by the parties involved.  There is no imposed authority left to nullify.  All such imposed authority should be rejected as illegitimate.

As a more general concept, nullification underlies and facilitates voluntary law.  In a fully developed voluntary law society, there is nothing left to nullify except for evil actions of the occasional errant individual who foolishly attempts to reinstate tyranny by seeking to subvert voluntarily adopted obligations and relations based in non-aggression and equality of persons.  In a fully developed world based in voluntary law, nullification operates by excluding evil doers from the right to transact with members of voluntary law societies, by operation of voluntary institutions that publicize individual reputations.  Nullification is exercised continuously by individual rejection of evil deeds and unrepentant evil doers.

Those who love liberty and their fellow human beings should be working to to make nullification by anyone other than the individual a relic of earlier times, by imagining and enabling social systems that empower individuals and voluntary collectives, and de-legitimize and disempower coercive institutions.   May the dark age of today, in which most mistakenly believed the exercise of coercive authority in human society to be either a necessary evil or divinely ordained, come to be taught as part of the history of human errors.  We should not forget, as useful as the concept of nullification is, its exercise by juries and other involuntary collectives has utility only in the context of authoritarian legal systems.  By our thoughts, talents and actions such systems will one day be abolished, and with it the need for nullification by juries or involuntary collectives.

Brothers and sisters, just understand your status as human beings.  No other human can ethically rule over you.  That right and responsibility is yours alone.  Help build a world in which free people nullify and extinguish tyranny wherever it surfaces, before it can ever darken the world again.

Standard
Conflict of Laws, Reciprocity

A Bit More On Why So Much

A central issue was neglected in the last post, relating to why conflict of law rules are of such importance and concern in the development of voluntary law.  Conflict of law is critical in voluntary law systems, because voluntary law systems are the only legal systems that permit each participant to choose their own law, guided by their own moral preferences and self interests.icrecreamwithcherry

One of the most fundamental questions concerning voluntary law is whether a system permitting self-selection of law can provide equivalent or superior justice to systems that impose laws through the exercise of power by an elite class of persons, a.k.a. statist legal systems.  In statist legal systems, although many laws are imposed in the self-interest of a governing elite and those who support them, some portion of the laws are imposed in the public interest.  Even a slave master may enforce rules forbidding the slaves from mistreating one another.   Statist systems must deal with the problem of limiting corruption of the law caused by self-interest of elite law makers, but are not faced with the problem of harmonizing self-selected laws because they do not permit such laws to exist.

The limiting principles on self-adoption of law in voluntary law systems are non-aggression, equality of persons, and reciprocity.  The primary purpose of conflict of law rules are to implement reciprocity so as to optimize fairness and stability of the system as a whole.  While each person can select their own law guided by their individual self interest, the general principle of reciprocity provides that when bringing a claim or raising an affirmative defense, each person is limited by the selection of law of the other party.

Despite the importance of the reciprocity principle, it should not be forgotten that the core voluntary law principles of non-aggression and equality of persons are also limiting principles on enforceability of self-selected law.  These core principles deserve expression in the form of a rule, and more attention to be paid in a later post.

Standard
Conflict of Laws

Why So Much on Conflict of Laws?

Cart Before HorseVLDA has not even published a single substantive law, why is it so busy developing conflict of law rules?  Isn’t that putting the cart before the horse? Fair questions.  But one cannot understand voluntary law, if one does not understand the importance of plausible universal conflict of law principles to the basic premise of voluntary law.

Voluntary law is based on the premise that no law is legitimate unless previously voluntarily adopted by the person on whom it is enforced.  Because people by nature hold different moral preferences, often very deeply so, alternative laws and groups of people holding to different voluntary laws (i.e., different voluntary law societies) that are not separated from one another by territorial boundaries must coexist.  The accident of one’s location cannot be a controlling factor in determining the law to be applied.

In this environment, conflicts between people belonging to different voluntary law societies are inevitable.  Since there is no universal substantive law, there needs to be default conflict of law rules (also called “universal” rules) for selecting the law to be applied to inter-society conflicts, in the absence of any prior agreement on the matter.

The need for default conflict of law rules does not preclude members of different voluntary law societies from adopting a common set of conflict of law rules different from the default set.  Where all parties to a dispute have previously adopted the same conflict of law rules, there is no need to use the default set.  The need for a default set exists because there is no way to guarantee that all parties to a dispute will agree to use the same conflict of law rules.  In such cases, the default set provides the only option for resolving the dispute without forsaking voluntary law entirely.  The default set of conflict of law rules therefore needs to be neutral and sound enough to gain widespread if not universal acceptance as the rule of last resort for any person who would live according to voluntary law.

Variations in the default set can be tolerated without too badly undermining voluntary law systems, to the extent such variations are confined to boundaries that are discernible and not easily disregarded.  For example, dispute resolution services located on the Moon might apply different conflict of law rules than similar services on Earth.  Such differences could exist without injecting an intolerable amount of uncertainty into inter-personal relations, so long as constraints on travel between the Moon and Earth (a) make it easy for Moon people to avoid contact with Earth people, and vice-versa, and (b) make the probable forum for resolving disputes between Moon people and Earth people, in any particular circumstance, fairly predictable.  Without a substantial degree of separation between adjudication forums that apply different default conflict of law rules, the practical effect of adopting a particular set of laws may become much less predictable, undermining incentives for adopting voluntary laws.

In the absence of default or previously agreed-to conflict of law rules, the options for resolving conflicts in which the parties cannot agree on the law to be applied are limited to extra-legal remedies or appeal to a non-voluntaryist authority.  Either of these options breaks the system, rendering voluntary law ineffective and inferior in this respect to authoritarian legal systems.

More fundamentally, a house divided against itself cannot stand.  Without generally accepted conflict of law principles, the pluralistic nature of voluntary law will lead to division.  Difficult disagreements will arise over which laws to apply in disputes between members of different voluntary law societies.  These differences may become every bit as bitter and divisive as political fights over moral preferences in statist institutions.

So it’s important to conceptualize practical and morally compelling conflict of law rules as a foundational issue.  Once the foundation has been laid, the focus will shift to building the matrix of voluntary law that will stand on the foundation, which consists of the core principles and the universal conflict of law rules already developed or now under development.

The VLDA does not want to invest in a system of voluntary laws that is vulnerable to divisive politics, or that is notably inferior to authoritarian systems in any respect.   Therefore it seeks to demonstrate, at the outset, that a system of voluntary laws can make use of a universal system of conflict of laws, without being exploited by evil doers or accidentally producing results that incentivize evil behaviors.  The goal is to satisfy reasonable expectations in disputes between people holding different moral preferences and different laws, based on the fundamental principle of reciprocity.  Results may be different from, and hopefully better than,  results from authoritarian legal systems.  All differences are illuminating.

The most difficult issues in universal conflict of laws for voluntary law societies have been discussed in sufficient detail to create confidence in the plausibility of VLDA’s mission.  There are only a few loose ends to wrap up, and then it will be on to the next job of constructing the matrix of laws.  Meanwhile, new and surprising things about voluntary law are being learned all along the way.

Standard
Conflict of Laws, Version Updates

Jurisdiction and Update to Conflict of Laws

Jonny has again updated the universal conflict of law rules.  The rules have been simplified, and hopefully improved.

First,the rules are updated to include the “No Hypocrisy” rule discussed in the immediately preceding posts.  This was done by adding a new last sentence to paragraph 3(a).  Please see the preceding posts for further discussion of the No Hypocrisy rule.

Second, all rules dealing with selection of law in cases where either of the defendant or plaintiff has not adopted a voluntary law are removed.  Such provisions are unnecessary, because the existence of a claim requires that the plaintiff has adopted a voluntary law.  Also, for the defendant, voluntary jurisdiction over the person requires that the defendant has either adopted a law prior to the claim arising, or will do so afterwards because she prefers to resolve the claim in a voluntary forum.  So it will always be possible to determine the laws that have been voluntarily adopted by plaintiff and defendant.  This is in essence a jurisdictional aspect of voluntary law.

Adoption by Choice, Erie PA

Adoption by Choice, Erie PA (Photo credit: hbimedialibrary)

Jurisdiction over a person in voluntary law is always voluntary.  It arises by the person adopting a voluntary law sometime prior to the adjudication of the claim.  After having agreed to appear, if the person has not already adopted a law pertinent to the case, she will certainly do so prior to the adjudication to influence the outcome of the process as much as possible.

Late (post-claim) adoptions of voluntary law may occur frequently in transitional societies including both voluntary law society members and non-members, when a member decides to bring a claim against a non-member.  To avoid being sued in a statist court, the defendant may join a voluntary law society by publicly adopting a published voluntary law.  At that point, the plaintiff must either proceed in the voluntary law forum and forsake any state-imposed remedy, or sacrifice his reputation as a voluntary law society member and become subject to liability under voluntary law for unnecessarily resorting to a statist court.

This jurisdictional rule allowing late adoption of voluntary law facilitates expansion of voluntary law societies.  Once dispute resolution services of competitive quality become available, non-adopters of voluntary laws will naturally be drawn into voluntary law society membership to take advantage of the unique and beneficial qualities of voluntary law for defendants, like the ability to control which law is applied in a dispute resolution and lower process costs due to free competition in dispute resolution services.

Some short-sighted persons may craftily adopt and renounce voluntary law for opportunistic reasons.   Such persons may sometimes escape liability under voluntary law, but will quickly destroy their reputations and currency in voluntary law societies.  They will be few and transitory.

Standard
Conflict of Laws

The No-Hypocrisy Rule

It is self evident that equal treatment under the law requires an absence of hypocrisy.  Equal treatment requires that each are judged under the same measure as each would judge others.  That whatsoever a person metes out, is meted back.

Cain and Abel. Byzantine mosaic i =n Monreale

Cain and Abel. Byzantine mosaic i =n Monreale (Photo credit: Wikipedia)

Under an authoritarian system, the same law can be imposed on all, and the fiction of equal application promoted.  This is a logical solution, although horribly idealistic and impractical.    Those in power are never subject to the same laws they impose on others, either openly by holding an elite status, or secretly by  corruption.  In a system of voluntary law societies, such fictional solutions are unnecessary and impossible.

Instead, we have the dilemma of choosing the law to apply in a dispute between persons who hold to conflicting laws.  Under the basic principle of voluntaryism, we must generally apply the defendant’s law.  To disincentivize opportunistic adoption of law by persons set on evil deeds, this rule can be tweaked to impose the most severe law — the “law of greatest liability” — adopted by the defendant at any time since just before the legal complaint at issue first arose.  So far so good, but some unfairness is evident under this rule, in that persons adopting more severe laws are vulnerable to being sued by those who have made themselves invulnerable, or less vulnerable, by adopting less severe laws.  Such a system might create too much pressure for all to adopt laws of minimal or no liability, and thereby undermine the usefulness of the law for proscribing appropriate remedies for wrongs, and providing incentives for legal settlement instead of extra-legal direct retribution.

To avoid this outcome, plaintiffs should be barred from enforcing any law of greater liability than the plaintiff has himself adopted.  This is the “No-Hypocrisy” rule mentioned in the previous post.  In other words, if (and only if) the defendant’s “law of greatest liability” results in greater liability than the plaintiff’s “law of least liability,” then the dispute must be decided under the plaintiff’s “law of least liability.”

Generally speaking, applying the Defendant’s  Law and No-Hypocrisy rules together is almost logically equivalent to simply applying the law of least liability between plaintiff and defendant in any given circumstance, but not exactly so.  For if the plaintiff’s “law of least liability” results in greater liability than the defendant’s “law of greatest liability,” then the defendant is held to the law of greatest liability adopted by defendant during the relevant time period, which may result in greater liability than some less severe law adopted by defendant during the relevant time.  Nonetheless, except for the foregoing circumstance, it will usually be the case that the least severe law held by plaintiff or defendant during the relevant time period will be the law applied.  Thus, all parties have an incentive to adopt sufficiently severe laws to afford themselves reasonable remedies, and to provide an incentive for those they have wronged to seek legal remedies instead of extra-legal remedies.

For example, if Cain adopts a law in which there is little or no penalty for murder, and then murders Abel (who, like all of his family, has adopted a law with severe penalties for murder) then Abel’s family can legally find no justice or satisfaction under Cain’s law.  They may, however, extra-legally murder Cain in retribution, without putting themselves at any greater risk of legal liability than Cain.  Anyone bringing a legal action on behalf of the slain Cain would be limited to the “law of least liability” adopted by Cain during the relevant period, which is the time from just before Cain murdered Abel until Cain was himself murdered by Abel’s avengers.  It’s quite easy to see why Cain could not rationally expect that adopting an overly lenient law would be of any personal benefit in securing his own safety and happiness.

Such would be true, unless by some extraordinary means Cain is immune from being murdered.  Acquiring such immunity for a public adopter of a law permitting murder without punishment, such as Cain, may be presumed impossible without the intervention of a state, at least for the moment.  The topic — here called the “Impossibility Problem” of the “Reciprocity Principle” — has already been touched upon and deserves further consideration.  At least in a universe of mortal persons, the Impossibility Problem arises in the context of property claims but not, in any practical sense, in the context of claims for bodily or personal harms.

It bears repeating, although it is not the main point of this post, that application of the Defendant’s  Law and No-Hypocrisy rules for resolving conflicts of law among voluntary law societies will generally have an leveling effect in the area of property rights, due to pressure from the Impossibility Problem.  Voluntary law may be expected to push property rights to the very minimum of what the vast majority of people deem acceptable.  And that minimum will tend to lie at the maximum of what the vast majority of people can realistically hope to own.

Thus, unlike capitalist society as practiced in the 19th century, it will be impossible under voluntary law for durable classes divided between property owners and non-owners to arise.  Whenever great inequities arise, those who lack any realistic hope of acquiring a specific class of property will adjust by adopting laws that do not recognize the elitist property claims of others.  Under the defendant’s rule, the elitist property claims will thereby be rendered practically unenforceable.

None of this requires insurance companies or quasi-governmental dispute resolution organizations to make or enforce laws on a less well-capitalized general public.  Instead, under voluntary law, the general public imposes its preferences in laws and legal claims on anyone who would provide legal, enforcement, or insurance services.  The legal preferences of the people  are what determine the environment in which legal service providers, insurers, and police must operate.  Voluntary law truly returns the power to determine laws to the general public, and frustrates at every turn rule by elites.

Standard
Conflict of Laws

How Voluntary Law Beats Marxism/Leninism

The title of this post is thinking ahead and overreaching, of course.  But it is not entirely without reason.

It is postulated in the preceding post that the reciprocity principlereciprocity8 might create social pressure for property laws of minimal reach.  It is too early to firmly draw this conclusion, but the thought deserves more explanation than earlier provided.

If conflict of law principles prefer application of the defendant’s law, this enables persons who themselves lack a class of property and any reasonable prospect of obtaining it to adopt laws that do not recognize the class of property at issue.  For example, suppose writers adopt copyright laws while consumers adopt copy-freely laws.  Under the conflict rule of defendant’s law, a writer could be sued for copyright infringement by a consumer, but a consumer could not be sued for copyright infringement by a writer.  To avoid this injustice, writers would choose copy-freely laws and find some other way to earn money from their craft, other than demanding post-publication royalties.  Therefore, the social pressure exerted by a large class of consumers adopting copy-freely laws (and thereby giving up the possibility of receiving royalties) would tend to cause writers to do the same, albeit reluctantly.

It does not take too much thought to understand that the same result would apply to every class of property rights in a system of voluntary law societies that applies the defendant’s preference in choice of law, wherever there exists a large class of people with little hope of obtaining and exercising the class of rights at issue.  Therefore, the property rights that would tend to evolve and be maintained would be those that are universally enjoyed and hoped for.  It would be impossible for a class of entitled persons to hold peculiar property rights, either in kind or in degree, and thereby extract rent from less privileged classes, as occurs in statist societies.  It would be impossible to enforce elitist property rights against a much larger class having no hope of enjoying the same, because the less privileged class would simply adopt laws that do not recognize the property right at issue, thus creating pressure for the elite class to do the same.

This leveling pressure could be mitigated by tweaking conflict of law rules, for example by refusing to enforce a claim based on defendant’s law, whenever the plaintiff’s law would result in a lesser penalty than defendant’s law.  This might be called the no-hypocrisy rule in choice of law.  The no-hypocrisy  rule may provide a desirable amount of friction against the leveling pressure exerted by the rule of defendant’s preference in slighter cases of imbalance, without stopping the pressure in more extreme cases.  The writer believes, but cannot currently prove, that eliminating the defendant’s rule entirely would break the fundamental principle of voluntary law selection.  Perhaps systems such as averaging or random selection could also be regarded as voluntary in nature; generally applying plaintiff’s law probably must be regarded as breaking the voluntary nature of the system.  All of this needs further development.

Yet we are beginning to see a truly marvelous and unexpected result of starting with the basic principles of voluntary law: a solution to the problem of entrenched property classes that so befuddled Marx and his followers, and led to so much death, destruction, and wasted lives in the 20th century.  Voluntary Law holds the promise of making the holding of elite property interests impossible through the simple, peaceful, and statelessly democratic process of recognizing no law but that which is voluntarily adopted, and generally applying defendant’s rule to conflicts of laws.

This is a very bold claim to make, and may perhaps be disproved.  If you think the claim is wrong, please do try and show why.

Standard