Conflict of Laws, Introduction To Voluntary Law (Book)

A “Weaker Tool” Basis For Discerning The Strongest Property Law


Balance of Tools

Resolving conflicts of law in voluntary law society may lead to the introduction of a legal quality that is at once both strange and familiar: “stringency” of antecedent conditions for property claims, for the purpose of determining which of conflicting property laws is the “weaker tool.” It might be compared and contrasted to testing the validity of property claims.  Validity of property claims is a familiar quality in present-day legal systems, related to whether or not the claimant has satisfied proscribed antecedent conditions for making a property claim. Validity remains a factor in voluntary law as well, because it will remain necessary to determine that a claimant has satisfied applicable antecedent conditions.  In some cases, however, the voluntary law jurist will face the additional burden of determining which set of conditions to the property claim is weaker, in cases where conflicting property laws with different antecedent conditions are at play. The more “stringent” the condition, the “weaker” the rule is, by inverse proportion. The weaker the rule, the more likely it is to be applied.

Stringency is a measure of the personal difficulty with which a property claim may be initially established over a resource. Stringency is not dependent on whether or not the resource is unowned, or subject to property claims by others; its magnitude is assessed in the same way for original claims and for claims made by adverse possession. Stringency relates purely to what actions are required by a person in connection with the resource to be claimed, and the length of time such actions must be performed, to establish a valid claim.  Stringency cannot be used to compel anyone to recognize a type of property that they have not chosen to recognize voluntarily.  Stringency is an objective measure that must logically exclude any consideration of difficulties associated with transfers of ownership, or else it would be impossible to make valid gifts of property. More fundamentally, it would be impossible to evaluate stringency of the condition based on the law itself, as every antecedent condition, and hence every property claim, would require an inquiry into the price paid to obtain from a previous owner. Nor can stringency depend on the subjective emotional state of the first person to establish a property claim. To be useful as a legal standard, stringency must be an objectively determinable standard that depends on the difficulty of first establishing a claim, by the first person to make the claim based on the law in question.

Stringency may be thought of a linear scale extending from zero to infinity. At the zero end of the scale is the claim of a person over her own body. The body precedes formation of the legal person; once the legal person emerges from the organized system of matter making up the body, the person is not required to take any action to make a claim of ownership over that system of matter. Ownership of the body by the person is automatic, because in a natural sense the body “owns” the person residing in it, who utterly depends on the body for existence. Although the stringency of the condition for the person is zero (and hence, the law of self-ownership in a TROTWET analysis is infinitely strong), no other person depends to a greater degree on another’s body, and hence no other person can have a more valid claim over another’s body. Self-sovereignty as the foundation for voluntary law must be exempt from application of TROTWET.  At the infinite end of the stringency spectrum are tasks that cannot be completed no matter how long or energetically they are carried out, such as landing on a planet that is moving away faster than it is possible to travel toward it. In between zero and infinity lies the universe of things over which a person may make a claim of property.

Stringency is objective, but not purely quantitative. It may have quantitative aspects, such as time, space, mass, or quantity of information. In general, the longer, more continuously, more repetitiously, or rapidly a particular task must be carried out to establish ownership, the more stringent the condition. The smaller the volume of space, the amount of mass, or quantity of information over which the claim extends per “unit of action,” the more stringent the condition. The more causally related the task is to a beneficial use of the resource claimed, and the more beneficial the use, the more stringent the condition.  A task is, to be clear, a type of intentional act directed at an objective.  Finally, all intentional action is personal by definition, and can only be performed by the corporeal body of a person. Action can of course have effects beyond the body, but action itself is merely corporeal. In addition, the action must be objectively verifiable, so it can be proven to have occurred. Although thought may be a form of action, it is not, absent some outward expression, objectively verifiable.

Stringency may be evaluated objectively based on the foregoing principles, and used to determine the “weaker tool” as between competing claims to the same property, based purely in the conflicting property laws of the parties and without regard for the strength of remedies attached to violations of the property right. In other words, a stringency analysis can be used to determine, when two or more people who have adopted conflicting property laws claiming the same property, which law is to be applied for purposes of determining who is the more legitimate owner.  Stringency is not relevant to determining the remedy to be applied for a violation of the property right.  For selecting the remedy, regular TROTWET analysis can be used to identify the law with the weakest remedies.  Some examples will be helpful to illustrate stringency analyses in operation.

Consider, for example, conditions for a claim over vacant land. Alice’s law states that any person who performs 100 sit-ups within an hour on a piece of vacant land establishes ownership over a 100 meter radius of the spot where the sit-ups were performed. Bill’s law states that any person who walks entirely around a perimeter of the same plot of vacant land at least once per day, for thirty continuous days, owns all the vacant land within the perimeter. Cindy’s law states that a person who builds a house on vacant land and sleeps in the house for every night for a year owns the house, the land it sits on, and any land adjoining the house that is cultivated by hand-held, manually powered tools operated personally by the claimant on which a harvest of at least one cabbage (or energy equivalent) per square foot of land is reaped by the owner in the homestead year. Doug’s law is the same as Cindy’s, except that it requires performing the actions after building the house for three consecutive years. Edward’s law is the same as Doug’s, but allows the cultivation to be performed by any sort of tractor and tools, so long as personally operated by the owner. Frank’s law states that any vacant land enclosed by a barbed-wire fence of at least three continuous strands on poles four feet high belongs to the person who builds the fence. Georges’ law is the same as Frank’s but specifies a stone wall at least one foot wide and three foot high.

If any two of Alice, Bill, Cindy, Doug, Edward, Frank or George disagree about ownership of the same parcel of land, how should a jurist determine which antecedent conditions should be applied? For simplicity of example, consider that the conditions apply only in the case of vacant land, and no pre-existing ownership claims by any voluntary law member exist. Also assume that all of the parties’ laws agree about documentary conditions such as registering the property claim in a public registry, and there are no disputes over proper notice of the property claim. In other words, assume all other conditions are equal.

Supposing all seven different property laws were at play, a jurist might rank them as follows, from most stringent (weakest tool) to least stringent:

1. Doug: Hand labor for cultivation and harvest is required on over the entire land surface claimed, plus the house must be built and resided in. All of this labor is closely related to the utility of the land for sustenance, and involves work performed directly on the land itself. Moreover Doug’s law requires the labor to continue for the longest amount of time before ownership is established.

2, 3. Cindy or Edward: Does Cindy’s requirement of manual cultivation by hand tools outweigh Edward’s longer time requirement? Which is easier per unit area, farming cabbages for one year using hand tools and manual labor only, or farming for three years using modern farm equipment? To answer this question, a jurist might admit evidence on the amount of personal labor required to cultivate and grow cabbages per unit of land, by hand versus by modern machinery. If modern machinery reduced the amount of labor needed by more than 2/3, the jurist might decide that Cindy’s law contained more stringent conditions, because it required more labor in one year than Edward’s law did in three. Other factors might include the extra two years of residency required by Edward’s law, plus the greater capital cost of machinery as compared to hand tools. How a jurist would consider such other factors in a stringency balance is, to say the least, uncertain. The outcome would depend on the circumstances and quality of the parties’ respective advocacy and no attempt to predict a certain outcome in the absence of an actual disagreement is particularly useful. Nonetheless, it might seem unfair to consider the capital cost of tools as closely related to ownership of land. Although the cost of tools is certainly closely related to ownership of the tools themselves, it is at least one step removed from ownership of land to which the tool is applied. Therefore a jurist might assign a relatively low weight to the use of expensive tools.

4. George: Building a stone wall around vacant land does not have a lot to do with the utility of vacant land, but at least it involves erecting a structure on a geometrically significant part of it.

5. Frank: It is easier to build a barbed-wire fence than a stone wall.

6. Bill: It is easier to walk around a plot of land for thirty days than to build a barbed-wire fence around it.

7. Alice: 100 sit-ups is a relatively trivial task, and has no real nexus to the surrounding 100 meters of land.

To the extent that any of the property claims of these seven overlap, the most stringent condition applicable to the area in dispute would be the one applied to determine the first rightful owner. Doug would not necessarily be deemed the rightful owner. Instead, the first person to fulfill the conditions specified by Doug’s law would be the rightful owner. What happens next would depend on who the claimant is. For example, if Doug is bringing a claim against Bill to prevent him from walking through his land, whether or not Doug is entitled to the remedy he seeks will also depend on the respective exclusionary privileges of the different laws. If, for example, Bill’s law does not recognize a right to exclude others from walking across open farms or fields, Doug will not be able to obtain any legal remedy to prevent him from doing so. Neither could Bill prevent Doug from walking across Bill’s farm lands.

What if a claimant relies on the actions of robots under his control, or paid agents? Jurists who understand the root of voluntary law in personal sovereignty would limit stringency assessments to personal actions of the owner. Actions of a paid agent would accrue to the benefit of the agent. If the agent successfully establishes a property claim, the agent might convey the associated property right to his employer. Since stringency requires personal action, a person who hires employees risks destroying the validity of his property claim, and the more employees hired to establish a claim over the same natural resource, the more uncertain the outcome would be. If a person is unable to perform the labor needed to establish a property claim, under a stringency regime the person is best served by hiring a single reliable agent to establish the claim, under a contractual obligation to convey the property to his employer once earned.

If the claimant’s law allows for extending the reach of his action using machinery (robotic or otherwise), he risks diluting the stringency of his antecedent conditions in exactly the manner of Edward discussed above. Application of stringency under TROTWET tends to preserve the natural law basis of property in voluntary law societies, by favoring personal action directed towards extracting the utility of the natural resource over which competing claims are directed. Seniority is not a factor in stringency analysis, enabling latecomers to supersede earlier claims if left alone to labor on undefended property. Thus, stringency might provide results analogous to state laws providing for adverse possession, in some circumstances. Claims over unused and undefended resources will always be less stringent than claims over resources in active use and regularly patrolled.

Stringency is not limited to real property or other natural resource claims. It might conceivably arise in other contexts as well. For example, when assessing competing claims to intellectual property, conception, originality, inventiveness, creation, publication, production, use, sale, and other acts are all factors that might be considered in assessing relative stringency of competing claims to a particular intangible asset. Those who disfavor intellectual property might put their preferences into effect, by adopting laws with relatively high stringencies and no or low penalties, and vice-versa. With respect to personal property, stringency might become a factor in disputes between different people involved in manufacturing the same product. To assess the relative degrees of ownership of a finished product, the most stringent standard for establishing ownership among the parties in dispute would be applied. Nonetheless, stringency is expected to be most importance in relation to claims over real property and other natural resources, over which competing original claims over the same property are more likely to occur. Competing original claims are less likely over personal or intangible properties, which owe their existences to corresponding acts of labor. The acts that create personal or intangible properties will always provide the most stringent basis for related property claims, with disagreements arising primarily out of factual questions such as who performed the creative acts or was granted ownership of the creations by contract.

Natural resources exist independently of any acts performed by persons. Thus, a natural law basis is needed for assessing competing claims based on conflicting laws over such resources. Stringency analysis provides a basis for choosing the law that governs original claims over natural resources, in a manner analogous to TROTWET in the context of positive law claims and affirmative defenses. Indeed, stringency may be viewed as an expression of the same principle of conflict resolution – the law of the weaker tool – in the specific context of conflicting laws for establishing ownership over preexisting resources.

The requirement of “stringency” resembles the natural law basis for property, which roots all property rights in self-ownership of the body and the products of one’s own bodily labor.  Stringency, however, is not itself property law, and does not define what property is.    Instead, stringency testing is proposed strictly as a conflict of law principle between competing property claims over the same subject, for that subset of cases wherein those making the competing claims hold to different property laws.  Being merely a principle for resolving conflicts of law, it cannot be used to impose uniform antecedents for property claims on all members of society.  Instead, it operates on the same ethical principles as natural property law to check the assertion of more expansive property claims against less expansive claims legitimized by more stringent requirements for antecedent labor.  As such, it allows for nearly unlimited variety in the definition of private property within voluntary law societies, while governing competition between different property laws within those societies according to very old and well-established natural law principles.

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3 thoughts on “A “Weaker Tool” Basis For Discerning The Strongest Property Law

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