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 principle 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.