The conflict of law rules developed thus far depend mainly on the status of the parties as claimant (plaintiff) or defendant in determining which law to apply. Usually, this approach works. In every case, there is always somebody to request a judgment. So if “claim” is defined broadly as “a request for judgment,” there is always a claimant. And there is usually a defendant to oppose the claim.
However, some legal actions exist in which there is no person to oppose the claim. Some examples include declarative actions such as adoption, conservatorship, guardianship, emancipation of a minor; the probating of a decedent’s will; and claims to confer title over unclaimed property. Such claims may sometimes be opposed by someone other than the defendant; for example, a person acting in the the “public interest.” In other cases, no opposition exists. Absent some check, the ability to select the law applied in cases with no opposition would give claimants free rein. Also, if there is an opponent but no identifiable defendant, should the opponent automatically be regarded as the defendant for purposes of choice of law?
In authoritarian legal systems, it is the responsibility of the designated authority to ensure that unopposed claims are well-regulated, and if necessary, opposed by a representative of the state. In so regulating, state interest is paramount, typically followed by special interests and thirdly, public interest. Lacking any imposed authority to oppose claims, must adjudicating forums in voluntary law societies grant all unopposed claims?
Clearly not, in a superficial sense. If all unopposed claims must be granted, the adjudication would become a mere formality. As such it would be unnecessary, and like all unnecessary expenses in a free society, avoided. The more pertinent question is whether the forum must follow claimants’ law where no defendant exists. If all unopposed claims must be decided under claimant’s law, the adjudication still retains its judicial function. However, the law that is applied will nearly always comply with the claimant’s selfish interests, which will tend to multiply up to the limit of provoking opposition.
Under the concept of legitimacy, opposition to unjust claims can and should come from the judges themselves, to preserve their hard-earned reputations. In free systems such as voluntary law societies, judicial legitimacy must be earned, as there exists no authority to grant it. In contrast, legitimacy in authoritarian legal systems is sometimes conferred partly by politics, always at least partly by exercise of coercive power, and usually partly by a claim to moral authority. In other words, people grant legitimacy to judgments of government courts because of some mixture of (a) lack of effective power to oppose edicts of the courts; (b) widespread beliefs that the courts usually do the right thing, coupled with rational ignorance or acceptance of judicial misdeeds; and (c) an assumed consent of a majority or powerful minority of the people to the power of the courts. None of these factors applies in voluntary law societies, except (in a rather different sense) the last.
In voluntary law societies, people are initially skeptical of every adjudication forum, before its reputation is established. Every forum must build its own reputation, and none can exercise coercive power in doing so. Each forum can build its reputation in several ways. For example, by performing high quality services (e.g., prompt, courteous, and accurate) and by issuing high quality judgments or settlements that are seldom or never successfully appealed (more on appeal in a subsequent post). For further example, by issuing a lot of such high quality judgments and making a name for itself. It may perhaps seek certification or approval from various consumer rating or certifying organizations, which must first establish their own reputations by not certifying or approving others too easily. And so on.
An adjudicating forum that either is unproven or has a reputation for issuing poor quality or biased judgments will find that its judgments are not respected. And if its judgments are not respected, they will be much harder to enforce, if at all. Because under voluntary law, there is no sovereign immunity. Judges can be held liable for issuing non-neutral or negligent judgments, and law enforcers can be held personally liable for enforcing judgments that they knew or should have known were of poor quality. Most neutral enforcers will therefore refuse to enforce any judgment that appears questionable or risky. Claimants may attempt to self-enforce shoddy judgments issued by sham judges under their own influence, but not without risking liability both for their enforcement actions, and for improperly influencing the judges.
In voluntary law systems, the ability to hold law enforcers and judges accountable for their actions creates tremendous pressure for adjudicating forums to only produce opinions that will be widely regarded as legitimate under fundamental principles of voluntary law (non-aggression, equality of persons, and reciprocity). Legitimacy will be supplied directly by acting in accordance with widely adopted moral and legal principles.
Some judges and enforcers may refuse to hear disputes or enforce judgements, without waivers of liability from one or more parties. This possibility cannot resurrect anything remotely like sovereign immunity in a free and competitive marketplace for judicial and enforcement services, for several reasons. First, claimants and especially defendants will refuse to grant liability waivers unless the judge or enforcer has gained their confidence, either by having an excellent reputation, and/or by some other means. Second, competition for paying clients will put considerable pressure on those providing legal and enforcement services to provide suitable, insurable warranties as to the services provided. If the quality of services are not good, and the service providers rely on waivers to avoid liability for the costs of correcting their own mistakes, business will go elsewhere.
Let’s see how legitimacy solves the problem of dealing with unopposed claims. Take, for example, adoption. Knowing that it can be held liable for allowing an adoption that is not in the interests of the person being adopted to proceed, the adjudicating forum will investigate and refuse to render a judgment of adoption unless it found the request to be bona-fide and in the interests of the person being adopted. But under which law? After all, if there is no defendant, mustn’t the forum apply the law of the claimant, who might have adopted extremely lax standards for adoption? In their present form, the universal conflict of law rules do not permit the hearing of a claim without any identifiable defendant.
We consider then a couple of alternatives. First, if there is no defendant to the claim, judges of the adjudicating forum may be regarded as the defendant. They are, after all, the parties whose reputations are at stake, as well as being potentially liable for negligent judgments. This solution creates opportunities for forum shopping, subject to the constraints of legitimacy discussed above in that forum. Judges applying laws widely viewed as violating the fundamental principles of voluntary law will find issuing such opinions to be much to their own detriment. The constraints of legitimacy are powerful indeed. This judge-based approach has the advantage of allowing every case lacking a defendant to be tried under voluntary law, if only a willing judge can be found.
In the alternative, the forum may look to the interests of the person who is most likely to be harmed by the claim, and apply the law of that person. Consider, for example, an orphaned child. A general rule may provide that, in the case of a minor who has not adopted any law because not yet gaining rational capacity, the law of the mother or some other party will be imputed. It seems reasonable to look to the person most likely to be harmed, but this approach suffers from a few problems. For example, it may be impossible or difficult to determine the person most likely to be harmed, such as in the case of a claim to previously unclaimed property. In addition, even if such person can easily be identified, it may not be possible to determine that the person has ever adopted any voluntary law. Therefore, difficulties arise both in determining which law to apply, and the necessity of turning some claimants away when no adoption of voluntary law by any person with a stake in the outcome of the judgment can be identified.
In another alternative, if there is an opponent to the claim that is not acting in the interests of an identifiable defendant, the forum could apply the law of the opponent. This approach would not work in cases where no opponent steps forward. Also, it would invite meritless opposition by opponents seeking to extort settlements from claimants, regardless of the merits of the claim or the opposition. Merely predatory opponents are not restrained by any concern for maintaining legitimacy. Also, applying the opponent’s law would be similar to applying defendant’s law for affirmative defenses, violating reciprocity and facilitating predatory behavior.
For these reasons, the judge or judges appointed to render a judgment should apply their own adopted law, but only in the limited case of claims not made against any person for which (a) it is not possible to identify any single person most likely to be affected by the judgment on the claim, or (b) if such person can be reliably identified and is incapable of adopting or refusing a voluntary law (e.g., an infant), it is not possible to ascribe adoption of any voluntary law to the person by any reasonable means (e.g., no family can be found). It should be emphasized that this rule should not be applied when the claim is made against a specific non-disabled person who is unwilling to adopt any voluntary law. Under the non-aggression principle, such non-adopters must be beyond the reach of voluntary law, and have the status of outlaws so far as recourse to voluntary law forums is concerned.
Let’s see how the judge-adopted rule would play out in another example: A space miner wants to bring a claim for title to an unclaimed asteroid in a voluntary law forum. The miner faces a choice. The claim may be heard by Respectable Justice, who enforces rather strict requirements on asteroid claims, including proof of first discovery and use, and a diligent search for competing claims turning up empty. Or, the claim may be heard by Dubious Justice, whose service motto is “No unopposed claim too audacious to grant!” If the miner selects Dubious Justice, the claim is certain to be granted quickly and cheaply, but the resulting judgment will be invalid if there is any later challenge to first discovery or use. If the miner selects Respectable Justice, the claim will require more time and money to obtain, but once granted is unlikely to be challenged due to Respectable’s reputation for diligence and fairness, and use of a law with more demanding requirements.
So which Justice will the miner choose? If the miner is very confident in the legitimacy of the claim, Dubious Justice might be a rational choice because of its greater efficiency, in the absence of any significant risk that the judgment will be challenged. If the miner is aware of competing claims or other legal challenges, it would be rational to select Respectable Justice, so that the matter is settled once and for all, and the investment in mining the asteroid can proceed without undue risk. Actually, if the miner is funded by third party investors or lenders, or purchases insurance for any risk related to the claim of title on the asteroid, such parties may require the miner to use Respectable anyway, just to avoid any cloud on the veracity of the miner’s title.
So it is apparent that the need for an appropriate level of legitimacy imposes a discipline on claimants to select an appropriate forum for the matter at hand, without depriving claimants of cheap and fast judgments in easy cases. There’s nothing at all wrong with cheap and easy justice for easy cases; in fact, it is greatly to be preferred to expensive and slow. Applying the law of the judge is beneficial in these types of cases, where there is no identifiable defendant. The claimant can pick an appropriate forum based on the level of risk involved, and the judge can manage the risks of hearing the case by adopting and applying appropriate laws, among other things.
What if the case is decided by a panel of judges? Then the panel may apply any law that has been adopted by at least one member of the panel. This can be left as a matter of agreement between the panel members.
Why require the judge to have adopted the law that is applied? To provide predictability for claimants in selection of forums. In any event, the market would impel judges to advertise which law will be applied in cases for which no defendant exists. Where the law pertains to claims lacking any defendant, there is little or no detriment to the judge in adopting a law that is advertised, because such law cannot be enforced against the judge personally. Therefore, instead of making conflict of law rules more complex by introducing the new concept of “advertising a law,” it is expedient to keep these rules simple by specifying the adopted law of a judge as the law to be applied in cases lacking an identifiable defendant.