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.

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