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.