Introduction To Voluntary Law (Book), Reciprocity

Foundations – The Three Pillars


stargazing(tu)

By design, voluntary law rests on three conceptual pillars:

By placing law within the exclusive sovereign power and responsibility of the individual, on the concept of the person, or “personhood.”  By requiring that a person’s choice of law be voluntary, on the concept of freedom from coercion or fraud, or “voluntaryness.”  By making law effective and enforceable based on publication of a person’s choice of law, on the concept of “publication.”

These three pillars require a stable and logical construction.  Without that, voluntary law, once attacked by the skilled rhetorician, crumbles in a chaotic mess of contradictions almost as bad as what passes for law today.  So, although these core concepts may seem self-evident in everyday life, this chapter attempts to parse them out in sufficient detail so as to avoid meaningless contradictions.

No claim is made that the exact meanings of the three pillars are beyond dispute.  Quite the contrary.  Many interesting problems in voluntary law might arise out of differences of opinion over precisely where these meanings lie, in difficult cases.  Some of these problems will be introduced in more detail in later chapters.

Such potential differences of opinion do not make voluntary law any less practical or useful than other systems of law.  It is inescapable that every system of law, dealing as it must with the abstract notions and emotions of humans, involves differences in opinion about the most optimal legal principles, the best way to express such principles in law, and the correct interpretation of the law in different factual circumstances.  Voluntary law shares these characteristics, as it is also a creature of rhetoric.  One of the key purposes of voluntary law is to peacefully bridge such differences in opinion without the use of coercive force or fraud such as used in traditional legal systems.

Nonetheless, the qualities that distinguish voluntary law from imposed legal systems can be easily appreciated by any reasonable person.  These distinguishing qualities may be summarized as the three pillars described here.

I. Personhood

A. “Person” as a Qualified Actor Subject to Justice; Humanity and Personhood

Personhood is the door to voluntary law.  It is, by definition, that unique quality that both justifies and limits the sovereign power to make law.  Every entity that would make, enforce, and be subject to voluntary law must be a “person” according to some universally applicable, coherent, and ethically justified definition.  Personhood defines who (or what) can qualify as a sovereign power in a universal system voluntary law, purged of any unnecessary or arbitrary restrictions.  “Person” is used here in a narrow sense of “qualified legal actor,” which use should not be confused with different uses of “person” or “people” in other contexts.

For the sake of simplicity, we might simply define a person as any human being.  This definition works pretty well for most purposes, but is inadequate at the limits, considering foreseeable future circumstances of our species.  Moreover, defining a person merely as a “human being” obscures the basic reasons why laws should be placed within the exclusive sovereign power of the person.  Such an anthropocentric, essentially arbitrary  definition masks the ethical justification for granting the power to adopt and use voluntary law to, and only to, a specific class of entities.  Status as a member of a particular biological species cannot logically explain why only those individuals qualifying as “human” should possess the sovereign power to declare their own law, even if one ignores the problems of distinguishing what is human from what is not.

Besides the need for philosophical clarity, there are more mundane considerations for everyday application of voluntary law, which also justify a clear definition of personhood that does not depend on status as a human.  The ability to act voluntarily and to reason is not perfectly coincident with one’s status as a human.  Therefore a thing’s status as human or non-human cannot provide a rational basis for determining the eligibility to adopt and be held accountable to one’s own law.  Whether or not non-human persons exist, no human is capable of “acting as a person” all of the time.  Every human must frequently fall unconscious during sleep, and lose for a period of time any ability to perform voluntary acts or to reason.  Every human spends a significant fraction of life as something incapable of voluntary action or reason.  Some humans never in their life acquire this ability.  For status as a legal person, something different from mere status as a human must be required.

B. The Necessary Abilities of Personhood

Whether or not a person is human, action under law requires a set of mental abilities.  There are many mental abilities, but not all of are necessary for personhood under voluntary law.  For example, some people have photographic memory or other special abilities, but such abilities are not essential to the performance of a volitional act subject to justice, that is, a legally relevant act of free will.  Which leads us to a list of necessary abilities:

Apparent Free Will.  For legal if not philosophical purposes, apparent free will is the capacity to creatively construct an action regardless of external stimulus.  This includes the ability to choose between alternatives, but more than that, to create entirely new alternative sets of purposeful actions even when faced with the same stimuli.  It means that the actions of the actor are directed to some discernible purpose and are not entirely predictable, in an objectively observable fashion.

At root, voluntary law exists to provide a code of justice, without imposing one person’s moral preferences or self-serving rules on another who consistently rejects them.  Justice means fair retribution for harms caused by volitional acts or negligent failures to act.  Justice is not concerned with “retribution” for acts of nature.  An act or omission by a qualified actor is a logical prerequisite to justice and to application of any law, voluntary or otherwise.  Something cannot be a person subject to justice, unless that something is capable of performing a volitional act.  Apparent free will is a prerequisite not only for voluntary law, but for any system of justice.

We need not be concerned with the philosophical question of whether or not humans or other beings actually have free will, or merely appear to have free will due to imperfect knowledge of the incipient conditions of any given action. It is sufficient for all practical purposes that the being in question appears, to any reasonable and objective observer in the legal system, to have free will.  If it is apparent that the being in question does not have free will, it is a sort of machine, incapable of voluntary action.  Being apparently incapable of volition, it cannot participate in a justice system that requires it to make recognizably voluntary choices.  Thus, apparent free will is a necessary ability.

Awareness of Self and Others. A being may have apparent free will, but may fail to recognize itself as independent of other selves.  Infants and young children, and many animals, lack this mental ability.  This disability may also be found in adults with certain mental illnesses or disabilities.  Self-awareness is foundational to the ability to reason and speak, at least in humans, so this ability is seldom lacking in natural persons.  However, machines are certainly capable of language, and yet lack any apparent sense of self-awareness.   Without a sufficient level of self-awareness to recognize a social environment and one’s place in it, a being is not capable of governing its actions in a way that recognizes the rights and obligations of itself or others.

Language and Memory.  A being must have an ability to communicate using symbols, and to access some form of record of past expressions of language.  Without the ability to communicate using symbolic language and receive information from records of some kind (not necessarily written), an otherwise free and rational person is not able to engage in anything resembling compliance or enforcement of any code of justice.

Rationality.  A being must be capable of thinking and acting rationally, or it must be disqualified from full and active participation in any code of justice, voluntary law included.  A code of justice is essentially a logical plan or scheme for the administration of justice.  A being incapable of consistently acting and thinking according to logic therefore cannot participate in an inherently logical plan.  Human beings afflicted with some mental illnesses or disabilities of age or youth may have all of the other mental abilities and qualities of a person, and yet lack rationality.  Such entities cannot be active participants in voluntary law, held to their irrational public statements.  They may enjoy any protected status that the laws of their community affords them.  Similarly, the law may protect virtually any other living or non-living being, without granting such beings the full status of a person capable of acting within the legal system.

A Desire For Justice.  A desire for justice is a primitive but essential emotional capacity underlying voluntary law and all other justice systems.  It may be assumed present in any natural person who possesses all of the other abilities of a legal actor, with the possible exception of someone in the grip of some rare mental illness.  Everybody feels that some price should be paid for wrong doing, and recognizes, at least in theory, that others may expect them to pay recompense for their own wrong doing.   Even the sociopath is capable of understanding justice at least “for me, but not for thee.”

It is conceptually possible, however, that an otherwise capable legal actor, perhaps of a non-human sort, might lack any emotion resembling a desire for justice.  Such a being would lack any outrage or other emotional distaste over wrongs committed against them, and would find it incomprehensible that others felt anger or negative emotions when aggressed against.  We might imagine a self-aware android with no sense of property and no fear of death.  Such a being would have no use for a code of justice, and would lack a motive to adopt one.

While the lack of this emotional capacity may be mainly theoretical, it is still worth recognizing that the thirst for justice is the essential motive force energizing all justice systems, voluntary law included. That is not to say that one cannot be motivated to participate in voluntary law by other desires, including some that may primarily be rooted in self-interest. Rather, the logic of a self-imposed code of justice cannot be understood without the capacity to feel the thirst for justice, which like all emotions is impossible to imagine by those who can never feel it.

 C. The Necessary Disabilities of Personhood – Corporeality and Mortality

Corporeality.  Humans all over the world  have long believed in spirits, ghosts, gods and other forms of  disembodied minds.  Whether or how such beliefs have a basis in reality, consider the theoretical possibility of a disembodied mind.  Such a mind might have all of the mental abilities identified above as essential for the “personhood” of a legal actor, yet lack any constraint to a specific physical body.  We might distinguish a mind that is capable of being transformed from one physical body to another, but is incapable of existing except as some ordered collection of atoms and/or other matter; such a mind may be on the road to transcending matter but is still dependent on possession of a physical body.  In contrast, a disembodied mind is one that maintains an identity, a power to act in the material world, and sense of self, but exists as pure energy or as an abstraction.

This requirement of personhood — that the capable mind be incorporated in a physical body — does not lack practical application.  Far from it!  There is at least one type of incorporeal “person” recognized by most modern legal systems: the corporate or collective person, and other fictional entities.  Corporations and other collectives are deemed capable of acting in the material world and to possess the mental capabilities of a person, and not without reason.  If a natural person and a group of persons organized as a corporation were put into separate black boxes and asked a series of questions, absent direct admissions it may not be possible to tell which box contained the corporation, and which the natural person.  And yet, the corporation itself is nothing more than a fiction or abstract idea in the minds of natural persons.

Collectives and other fictional persons can coexist with natural persons under voluntary law, and benefit their members in various ways, but cannot be regarded as on an equal footing as natural persons.  But why is this?  Why shouldn’t fictional persons be permitted the same legal status as natural persons, in a system based on the sovereignty of the individual?  Does not the question answer itself?  A system of law based on the sovereignty of the individual must deny sovereignty to other entities, fictional or not, that imperil that core sovereignty.

One of the characteristics of voluntary law is reciprocity: every qualified legal actor is in essentially the same circumstance as every other.  If collectives and other fictional persons are granted equal legal status, than reciprocity is lost; some legal actors are burdened by the disability of corporeality and mortality, while others are not.   A fictional entity cannot, in any justice system founded in individual sovereignty and equality under the law, possess all the rights and powers of real, corporeal persons dependent on physical bodies. 

Legal systems in which sovereignty is granted to fictional persons that claim to themselves the right of monopoly on the use of defensive or restitutionary force in a territory are, by definition, statist.  Such is the legal landscape of today.  Were this territorial right of monopoly to be abolished and the right of corporate personhood retained, it would be doubtful whether any improvement had been made.  A sort of corporatist world would remain, in which collectives hold superior bargaining rights over the individual, in every legal claim.  There would remain a legal advantage to bigness, and so the individual would still be dominated by the collective.  Little or no improvement over statism would be made.

Incorporeal entities may develop their own systems of justice for use among themselves, but unlike voluntary law such systems cannot rest on individual sovereignty as a theoretical basis. Corporations, trusts, estates and other fictional constructs may still be recognized in voluntary law as fictions of legal significance, but not as equivalent to natural persons. Fictional entities have no need to participate in a system of justice designed for persons limited to physical bodies, and natural persons cannot admit them as equal players without imperiling practical exercise of their own sovereignty. Voluntary law as presently proposed therefore excludes them from status as persons, by design. That is not to say that other justice systems, even those that include elements of voluntary power, cannot grant personhood to collectives or other fictions. Such systems can and do certainly exist, but rest on some foundation other than personal sovereignty and are therefore not “voluntary law” systems. Further treatment of collectives and other fictions within voluntary law is taken up in a later chapter.

Mortality.  Just as corporeality imposes limits on matter occupied by a legally qualified actor, mortality imposes limits on the time of life, on the period of time that an entity is capable of acting as a legal person.  Immortal beings cannot be “persons” capable of acting in voluntary law, for similar reasons as non-corporeal persons.  An immortal person cannot suffer loss of life, and cannot participate as an equally situated actor with mortals in a system of justice.

Admittedly, this limitation is more economic than philosophical. Mortals have a finite amount of time to live, and a life to lose, imposing a constraint on them that does not exist for immortal beings. When performing any action, for example bringing a legal claim against another, a mortal necessarily sacrifices the possibility of other actions that it might do instead. An immortal being does not face this scarcity of time. Whatever it cannot do now, it can always do later. If an entity cannot die, what needs does it truly have, and what penalty could deter it from predatory conduct? For example, fifty years of toil and slavery to pay for murder is a much heavier burden for a mortal expected to live seventy or even a hundred years, than for an immortal that cannot die.

Immortality is not a practical bar to personhood in voluntary law, separate and apart from corporeality. There is no proof that any immortal being exists, apart from incorporeal fictions such as nations and corporations that may be sustained by belief for indefinite periods of time, but are not truly immortal. A voluntary law system designed for immortal natural persons is conceptually possible, but not a system with practical application in the world we know. The complexities such a system would encounter can and should be avoided. It is therefore assumed that all persons participating in voluntary law are mortal, as well as corporeal.

II. Voluntaryness

For one’s adoption of law to be valid and enforceable,  the act of adopting the law must be  voluntary  by the person on whom the law would be enforced.  “Voluntary” means  conscious acceptance, with knowledge of the nature of the thing assented to, free of coercion and fraud.

A.  Conscious Acceptance.

 “Knowledge of the nature of the act or transaction involved” or similar requirement is a well-recognized attribute for an act of free will.  See, for example, the California Penal Code at 261.1.  The actor must be conscious of the nature of the act performed, or it is not a voluntary act.   You cannot sleepwalk your way into being bound by voluntary law, or accidentally find yourself there.

In ordinary circumstances, in which a person’s publication of an act of adoption meets the criteria spelled out below, it would be difficult to prove that a person adopting a law lacked conscious acceptance of it.  Absent evidence of coercion or fraud inducing the personal adoption of a law, it would reasonably be presumed that any person adopting a particular law had done so after a fair opportunity to read and consider it.  This presumption could be overcome by proving the adopter suffered from some mental disability that deprived her of awareness of the nature of her act of adoption, or that there had been some coercion or fraud causing the adoption.  Such exceptions would certainly occur, but might be relatively rare.  More commonly, publication might be challenged as defective.

That is not to say that a valid adoption of voluntary law requires knowledge of every detail of the law being adopted, on the part of the person adopting.  It is sufficient that the adopter know that the law may include details he is not aware of, and that he is not forcibly deprived or defrauded of the opportunity to study the applicable law to the desired degree before adopting it.  Not everybody wants to be a legal scholar, or even to spend time reading a simple set of laws pertaining to circumstances that are not of current interest.  Many may reasonably adopt more detailed laws based on the recommendations of trusted “political” leaders.

Taking this a step further, a person may delegate to another or to a group of persons the power to make laws that she will automatically adopt as the new laws are published in final form.  Such a delegation of power may be a matter of convenience for the person granting the power, based on a trust in the relative good intentions and judgment of the legislator(s).   Such appointments might, if many people each appoint the same legislature, resemble territorial legislatures, with a critical distinction being that a voluntary legislature has no power to adopt laws for any person who does not personally grant this power.  In addition, the person granting the power retains the power to retract it at any time.  The appointment of a legislature may be accomplished by a voluntary publication of an act of adoption, in which the law being adopted is subject to change under the control of an identified legislator or group of legislators.  Such appointment may similarly be retracted for any reason.

In practice, there would be few reasons for competent persons to appoint a legislature.  Perhaps a person expecting to be out of touch for a long time might make such an appointment as to her estate, so that questions of voluntary law touching on her estate might, in her long absence, be decided under suitable provisions adopted by the trusted legislator(s).  If the person is not out of touch, there would be no reason to grant such power.  Such appointments are contrary to one of the main advantages of voluntary law: stability of law, with full control over modifications retained in the sovereign person.  In the ordinary course, legislative specialists might draft laws, but such drafts would not be enforceable unless and until voluntarily adopted by a person.

In special circumstances, conscious acceptance of an act of adoption might be inferred or imputed in the interests of justice.  For example, an orphaned minor child or mentally disabled person might be deemed to have adopted a voluntary law, depending on the context.  In the spirit of “the Sabbath was made for man, and not man for the Sabbath,” adoption of law is likewise meant to serve society, not to bind it with chains that hinder indisputable justice from being done.  Exceptions to a general requirement for conscious awareness of adoption might evolve as customs in different legal communities, and would rest on specific criteria justifying an exception to the general rule.  The general rule must, however, remain: no person may claim the benefit of or be charged with the duty to follow a law that the person has not voluntarily adopted.

 B. Freedom From Coercion And Fraud

Coercion means force or the threat of force, intentionally directed at the person or at another that the person cares about. One cannot be coerced in a legal sense by non-persons incapable of an act of will, for example by acts of nature, even if fear of dire consequences impels action. The waste howling wilderness may impel one to hard labor, but coercion requires a purposeful act to bring about the fear in another. Similarly, fraud means intentionally providing false information or withholding information that is objectively material to the action at issue. All of this is within conventional Western standards for assessing voluntary actions. Nothing unusual is added or taken away.

Fear may be a motive for adoption of voluntary law, without any coercion that taints the adoption.  Suppose a space faring adventurer builds a craft and launches for Titan, one of Saturn’s moons.  On the way, her craft suffers an accidental misfortune and she must choose between safe harbor at a human-colonized asteroid or drifting through space with no hope of rescue while her life-support systems fail.  All of the asteroid’s inhabitants have adopted a voluntary law within a certain family of laws, and refuse to transact with or render services to anyone who has not adopted a compatible strain of law.  Every person controlling a point of entry offers the same choice: adopt a strain of voluntary law acceptable to this community, or we will not open the gates.  Having no hope of survival outside of the gates, the adventurer makes a public adoption of law that she would not have otherwise made.  Has she been coerced? No, because the persons who control the gates of the asteroid community have done nothing to put the adventurer in the predicament in which she finds herself.  The opposite conclusion is reached if we change the hypothetical just a little.  Suppose an inhabitant of the asteroid detects the passing spacecraft and dispatches an intelligent robot to disable it, knowing that this will force the traveler to seek refuge at the asteroid.  Resulting actions taken by the traveler to recover are tainted by coercion, whether or not the traveler is aware she has been the victim of an intentional attack, unless she knowingly waives such objections.  Such a waiver must be possible, to enable the traveler the option to choose the voluntary law, if despite knowing the evil deeds that led her to it she finds it preferable.  It would be unfair to deprive her of this choice because of the evil actions of others.

Regarding fraud, the space faring hypothetical may serve as well.  Suppose that the adventurer requests navigational guidance from the asteroid colony.  Nobody in the colony answers the request, and the traveler receives either silence or an  affirmative refusal to provide information, along the lines of “I will not answer.”  As a result, the traveler’s craft encounters a debris field commonly known to the inhabitants of the asteroid and  suffers its mishap. Has fraud or aggression occurred?  No, because no one purported to offer advice or assistance.  Suppose, however, that the question is: “is my trajectory clear?” And the answer is: “I don’t know,” or “”yes.”  If the person answering is actually aware or should be aware of the debris field ahead and answers in a way that causes the traveler to reasonably underestimate the risk of encountering danger, the answer is either negligent or fraudulent.  If the answer is fraudulent, a form of aggression has occurred that may taint a later adoption of voluntary law by the traveler in the same way as coercion, depending on the causal chain linking the fraud to the later adoption of law.  As in the case of coercion, the traveler preserves the option to excuse the fraud once it is discovered, and adopt or confirm adoption of the voluntary law.   If the answer is merely negligent, then the outcome will depend on how the voluntary law at issue treats the issue of negligence, assuming the traveler elects to adopt that voluntary law rather than perish.  Presumably, life on an asteroid in the vacuum of space would be rather dangerous and dependent on diligence of the community, so one might expect the negligence standards to be correspondingly high.

It is perfectly acceptable for a person to feel pressure to adopt voluntary law, to gain access to some desired product or service.  In fact, it is hoped that voluntary law would spread among the masses by this social pressure.  For example, if a person or group of persons develops new therapies for diseases and life extension technologies, and refuses to provide them to anyone who is not a voluntary law member, there is no coercion on the person adopting the law.  However, if a person consciously disadvantages another, for example by working to addict them to some powerful drug or to place them in a position of dependence on a critical resource, and then forcibly controls access to that drug or resource, coercion is at work.  Where adoption of law is coerced, the adoption is not valid.

The distinction between coerced adoption and voluntary adoption may be somewhat fuzzy or controversial at times, without making the distinction any less meaningful.  Theories based in territorial sovereign powers (statism) provide an example of fuzzy boundaries, although in a different context.  For example, does imposing a particular set of laws on everyone within a set of territorial boundaries necessarily result in coercive imposition of law?  Although this questions arises only under a statist legal systems, it is illuminating to consider how voluntary law handles the problem differently from statism.  Arguably, if within a statist paradigm a person may freely leave the territory where a particular law is enforced on all the inhabitants, the person has in a sense made a voluntary choice to follow state law so long as she remains.  On the other hand, as the available alternatives to remaining in the territory become progressively less feasible or less free, the extent to which the choice is voluntary diminishes accordingly.  There may be no clear bright line distinguishing the voluntary maintaining of residence within a territory and being practically forced to stay there.  It must be admitted, however, that to the extent that the process of leaving a jurisdiction entails cost to the refugee, some degree of force has been applied to him.

The lack of a bright line between where a territorially imposed law becomes involuntary would create issues for conventional theories of state sovereignty, if voluntaryness were of any concern to such theories.  It does not, however, apply to laws based in personal sovereignty, and a simple example illustrates why that is so.  Suppose a person, let us call him “Monarch,” has a valid property claim to a territory under a particular system of voluntary law.  May such Monarch require, as a condition of entry to his property, that anyone who enters the territory adopt a particular voluntary law?  The answer is clearly no, because such a condition presupposes that the “Immigrant” person who would enter the territory over which Monarch claims sovereignty has already recognized the voluntary law under which the claim of sovereignty exists.  Unless and until the Immigrant voluntarily accepts it, the claim of property cannot be enforced against him.

Suppose, however, that the Immigrant has adopted a different voluntary law, under which Monarch’s claim is valid.  May Monarch require that members of other voluntary law societies under which the claim of property is valid adopt a different law as a condition of entry?  Certainly yes, because the recognition of Monarch’s right to control access to his claim is already voluntarily made.  Consider, however that this situation is unlikely to occur in practice, because any immigrant who recognizes Monarch’s  property claim is less likely to pose a threat to it, and in fact is helpful for defense of it.  Monarch will be more concerned about protecting the property  claim against immigrants who do not recognize it.  If Monarch feels it is necessary to apply a uniform standard of law within his property, he may merely require persons entering the property to agree that the standard will apply to actions and events occurring on  the property.  It is not necessary that entrants be required to adopt a particular law for other purposes falling outside of the boundaries of the property.  Nor could such a requirement be enforced once the person had left the property.  Therefore, it would be pointless to subject visitors to such demands, and which would be avoided by rational actors.

Clash of property laws is an interesting topic in voluntary law and a stumbling block for some, which will be treated in more detail later.   For present purposes suffice it to recognize that voluntary law does not permit imposition of a law on another, based on any claim of territorial sovereignty.  Voluntary law permits no sovereign but that of the person, and sovereignty over adoption of law does not exist where a person is not free to voluntarily choose the law of his liking.

III. Publication

The third pillar – publication – might be called the responsibility to declare one’s choice of law.  Law is always expressed in some public form prior to being applicable to a set of facts, or else it is not “law.”  State sovereign systems rely on written legal codes, without which there can be no rule of law in complex societies of strangers.  In voluntary law, writing also serves this purpose, enabling a non-arbitrary rule of law.  It serves a second purpose as well.   It strips each person naked, as it were, exposing their own freely chosen preferences of law.  If the individual is the only sovereign, the individual must also accept the responsibility to make known what law she would follow.  Under voluntary law, the law of another can provide no moral cloak or reasonable excuse for any person’s evil actions.

By definition, a person’s voluntary adoption of law is not effective or enforceable until a record of the adoption is published. There are four essential requirements for publication of a record of adoption: accurate identification of the person making the adoption and time when made, unambiguous identification of a complete statement of law, means for authenticating the record of adoption, and sufficient accessibility of these records.

A. Identification of the Person and Time of Adoption

A record of adoption must necessarily identify the person making the adoption, and provide some means of authenticating the identification that is made.  This is logically required because the adoption of law applies only to the person making it.  Without such person being positively identified, the adoption can have no effect.

An act of  adoption is necessarily an event, and occurs at a definite time.  In the general case, an adoption can only be effective after it is made.  The applicability of any given voluntary law therefore depends on its time of adoption.  This time may be made a part of the record of adoption, and generally would be.

The certainty carried by a personal identification and time stamp varies.  This is a question of evidence, often reliant on the reliability of the record keeper.  Reliable records would include objectively verifiable indicia of the person, and of the purported time of adoption.  There are many ways to solve this problem, and the necessary means may vary depending on the social conditions pertaining to the adoption.  For example, an open and active member of a vibrant voluntary law society whose members dwell in close proximity may be in little need of formal records of adoption.  There would be many witnesses to attest that the person has held to a particular law from such-and-such time.  In a less homogenous, more scattered community, the members of which mainly deal with each other without personal contact, reliable technical solutions may be needed to fulfill this function.

Most likely such technical solutions would take the form of some sort of electronic registry.  But no particular form of registry is required, and adoption records might be held in knowledge structures that fall outside of the meaning of “registry.”  There is no central authority with which a voluntary law adopter must “register” her choice.  The adopter may use any desired form of publication that can be authenticated.  She might use skywriting, for example, but may find that this limits the publication to a particular area and time, and is difficult to authenticate.  Most adopters would use a registration service of some kind, centralized or decentralized, that has a reputation for credibility and can efficiently authenticate its records if ever called into question.  Free people will provide efficient and effective solutions, in time.

B. A Complete Statement of Law

The law that is adopted must be unambiguously identified in its entirety.  This does not mean that the law that is identified must spell out every conceivable legal rule in detail.  Such a requirement would obviously be impossible.  It means only that the entire law that the person is adopting must be particularly identified and must be logically applicable, without endless self-references or self-negation.  That is, the law must be logically coherent and free of self-contradiction.  For example, a person cannot adopt a law that negates voluntary law, such as the law of a state.  Conversely, the person cannot claim to have adopted any law that is not identified by an act of adoption, logical nullities such as “I adopt ‘A’ and ‘not A’,” or self-referential nonsense such as “any law that I adopt.”  A person may not adopt a law by vague references, such as, for example, “British Common Law,”  assuming there is no defienite set of laws commonly accepted to define “British Common Law.”  Although the term has meaning in the context of legal history, it is not a definite statement of law.  To make a complete statement of law, the law itself must be stated, or an unambiguous reference made to a particular writing.

A complete statement of law may be quite simple.  For example, person might adopt, as his entire code of law “Thou shalt not aggress, except in self-defense.”  Such a person is willing to leave to another to determine what this might mean in the context of a claim under voluntary law.  Most will prefer more particularity in their statement of law.  In fact, voluntary law is unlikely to gain much popularity until fairly particular and concise codes of law consistent with the principles of voluntary law are written, publicly available, and have passed review by respected thinkers.  Such codes will need to offer choices to accommodate different moral preferences, and will need to be purged of rules that are designed to operate only in the context of a state.

A statement of law might be amended at a later time.  For example, Mr. Taciturn who adopted the law “Thou shalt not aggress, except in self-defense” as his entire law might amend this later to add more particular rules.  If so, his later statement will confirm his earlier adoption and then identify whatever additional law is being adopted.  The fact that an earlier statement is added to does not support an inference that the earlier statement lacked completeness.  If a second adoption of law is made without confirming an earlier adoption, the law stated in the second adoption may be considered to replace the first.  It is conceivable, however, that a jurist may find evidence to support a different conclusion, depending on the circumstances.

The consequences of a failure to make a complete statement of law may vary.  In the worst cases, the act of adoption is disregarded entirely, placing the person who performed the act in the same position as an outlaw.  In intermediate cases, ambiguities introduced by vague or self-contradictory statements are construed against the person who adopted the law, placing the risk of poorly-written law on the person who adopts it.  In the lightest cases, deficiencies in the law are repaired by the adopter before any damage is done, and any prior harm from the original act of adoption is excused by counter-parties or  considered de minimus by every jurist who encounters it, making embarrassment the primary consequence.  To avoid the risks of suffering such consequences, voluntary law adopters will take care to avoid adopting incoherent, overly vague,  self-contradictory, or other forms of defective laws.  For most people, this means sticking to proven voluntary laws generally recognized by jurists and actually used to resolve disputes.  Others are free to experiment with unproven forms, but at their own risk.

C. Sufficient Accessibility

The record of person, time, and law needs to be accessible to others, or it cannot create any basis for a legal decision or enforcement.  But how much accessibility is sufficient to make a voluntary law enforceable?  It depends.

Complete public accessibility creates moral pressure and enables the law to progress to higher forms under influence of political pressure, exerted through abstractions such as admiration, fashion, fear, and shame.  It may be desirable for social progress, but is publication freely available to all strictly necessary?  After all, a person might wish to keep their choice of laws secret, divulging only in confidence to chosen parties or if necessary to serve purposes of litigation or other legal process (e.g., marriage, inheritance, etc.).  A more private system would have certain disadvantages, but would provide greater privacy, and protect people from unwanted political pressure or from persecution by ideological enemies.  Some might find a degree of privacy preferable to the greater transparency of an entirely unprotected publication system.  Others may be unable to make any use of voluntary law, without some control over who can discover that they are members.  In either case, accessibility requires, at minimum, publication of each person’s law at least to all others to whom the benefits afforded by the voluntary law at issue would be demanded, before the adoption can be effective.

Every person falls into one of three general classifications in relation to voluntary law: voluntary law member, non-member, or unknown.  By nature, most classified as “unknowns” would be non-members, choosing not to participate or living in ignorance of voluntary law.  Those few members who did not openly publish their membership status would run a risk of being denied access to the benefits of voluntary law, although in some cases the presence of ideological persecution might require some sort of secret or hidden registry.  The publication requirement is flexible enough to accommodate such exigencies.  In the absence of persecution or other unusual circumstances, most voluntary law adopters would make their choice of law public as soon as possible, for several reasons.  Perhaps the most important reasons being the need to establish the right to make a claim and to protect against litigation under state laws or extra-legal enforcement outside of voluntary law.  Non-adopters have no right to bring a claim against adopters, and cannot back-date the act of adoption to create liability.  Conversely, and perhaps more importantly, a non-adopter cannot insist that an adopter prosecute her claim under voluntary law.  If a person cannot prove that she adopted her law prior to the time the claim arose, she loses all of the defensive leverage she might otherwise have been entitled to, and is placed in the position of an outlaw.

For example, suppose Xavier is a member of a voluntary law society that does not recognize copyright as property, and runs a business cracking copy protection schemes.  Zyla is a movie producer, and member of a voluntary law society that recognizes copyright.  She investigates Xavier’s business and determines that he is liable to her for copyright infringement under her own voluntary law, or under U.S. law.  If she is unable to find any public record that Xavier was a member of a voluntary law society at the time he performed his infringing acts, she is free to sue him under U.S. law.  Conversely, if Xavier had published his adoption of copyright-less law pursuant to voluntary law, Zyla could not sue him under U.S. law or take extra-legal enforcement action without risking a claim by Xavier under voluntary law, and loss of her reputation as somebody who does not abide by voluntary law principles.  However, by virtue of the prior publication she would have already identified Xavier as a copyright risk and someone against whom to use strict technological and legal methods to prevent from gaining access to her protected content.

There is a third possibility as well.  Suppose Xavier lives in a territory ruled by evil or morally obtuse politicians who imprison anybody who dares publicly adopt any voluntary law.  Xavier therefore has a legitimate reason to secretly register his declaration of self-sovereignty.  Or perhaps he just wishes to avoid junk mail.  For whatever reason, he registers his adoption of law in an encrypted public registry only, protected by a cryptographic key that he controls.  Whomever Xavier provides the key to can verify that he has adopted a particular set of laws on a particular date.  If he is threatened with enforcement by Zyla, he can provide her with his key.  This will create an obligation for her to proceed under voluntary law and not by some other means, providing a means for proving that he has adopted a particular voluntary law before performing the acts that gave rise to a claim.  Conversely, before doing business with Xavier, Zyla can request any private key and refuse to do business unless he provides it.  If she has no prior dealings with Xavier and has not received his key, she can identify him as a legal risk and avoid him.  If she is damaged by his activities despite exercising due care, she is no worse off than if she had been able to discover his adoption of voluntary law in an unencrypted registry.  It is only Xavier who is disadvantaged by his secrecy, because other voluntary law society members including those who share his skepticism of copyrights will be unable to identify him as a fellow society member without access to his key.  This may be expected to limit his business opportunities significantly.

Let us vary the hypothetical one more time.  Suppose Xavier first publicly registers as an adopter of voluntary law #1 that respects copyright, and initiates a customer relationship with Zyla, receiving access to her protected content.  At a later date, Xavier registers an adoption of voluntary law #2 that does not respect copyright, in an encrypted register only.  Perhaps he has a legitimate reason for doing so, or perhaps not.  Either way, he must take care to avoid using the earlier registration to mislead others into actions that they would not otherwise perform.  As a practical matter, this requires providing notice to anyone transacting with him on the basis of the earlier registration, or risking liability for claims based in fraud or negligent failure to inform.  If Zyla first accepted Xavier as a customer while he was registered as a copyright respecter, and continues to do so after Xaxier secretly registers as a copyright non-respecter, it is likely that Xavier will be unable to take advantage of his secret registration for defensive purposes.

The precise reasons for this can be complex or fairly simple, depending differences between Zyla’s law and Xavier’s voluntary law #2.  If Xavier is a decent sort of person and his secret change of law was done in good faith, voluntary law #2 will make him liable for his negligence or fraud in neglecting to timely inform Zyla of his change in status.  If Xavier is a scheming sort who did not make the change in good faith, he might have selected a voluntary law #2 that excuses him from liability for the types of negligence or fraud he intends to commit.  In such case, he is subject to a number of adverse consequences, the reasons for which will be clearer once the chapter on conflict of laws is digested.  First, he will not be able to recover from others who victimize him by the kind of fraud he intends to commit on others.  Second, once Zyla brings a claim and discovers his scheming ways, his evil tendencies will be public information and his reputation destroyed.  Third, a judge may rule against him anyway, reasoning, perhaps, that if Xavier thinks fraud should carry no penalty, the court may as well commit a “fraud” on Xavier by ignoring his choice of law.  Under voluntary law, openly engaging in predatory behavior will not go unpunished.

The foregoing examples should illustrate, among other things, why most adopters of voluntary law will publish their choice of law in the most public reasonably feasible way.  Limiting public access to information about one’s choice of law, for example using an encrypted registry, will generally only be done when exigent circumstances requires.  In either case, a reliable record of each person’s adoption of law must be accessible to all parties to a dispute, before the dispute can be resolved under voluntary law.

***

The three pillars — personhood, voluntaryness, and publication — serve as guideposts demarcating voluntary law from other legal systems.  Whatever falls outside of voluntary law is foreign to it, and thereby excluded from recognition as law within voluntary law procedures.  The foregoing discussion should make the analytical basis for discerning voluntary law from other laws quite clear.  Disputes may arise over what the available evidence shows in specific cases.  Resolving such disputes fairly is one of the principal functions that voluntary law is designed to do, as will be apparent in later chapters.

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2 thoughts on “Foundations – The Three Pillars

  1. Pingback: Children and Other Dependents | Voluntary Law Development Association

  2. Pingback: Death of the Law Maker | Voluntary Law Development Association

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