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.


2 thoughts on “The No-Hypocrisy Rule

  1. Pingback: Affirmative Defenses: The Difficult Choice | Voluntary Law Development Association

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