Historical Commentary, Introduction To Voluntary Law (Book)

Just A Bit Of Reflection

Just A Bit Of Relection

Just A Bit Of Reflection

This essay compares voluntary law with what has been done or proposed before, pointing out sundry similarities and distinctions. No attempt is made to provide a historical treatise of any kind.

Sometimes people who are newly considering voluntary law will classify it as “just like” something that has existed before. “Oh it is just like the law merchant” some might exclaim. Or, “it is just like” any number of private law institutions, such as Canon Law or Jewish Law, “just like” British common law, Keltic traditions, or various tribal forms, or “just like” some specific past or postulated future form of anarchy. In a way, they are right! Voluntary law grows out of and shares attributes with various legal systems that arose out of voluntary (or partially voluntary) communities. It also resembles at least one contemplated future form of social organization: anarcho-capitalism. But voluntary law should not be confused with these prior institutions or ideas, and is distinctive in its own ways.

Alexander II

There are of course an overwhelming number of historical examples of voluntary communities forming and establishing their own dispute resolution or justice systems. Many of these examples are related to various religious or moral systems. Many others relate to guilds or professions. Still others relate to particular causes, interests or pursuits. Some are purely pragmatic, such as brigands, gangs, and mafias, and do not eschew aggression to serve their ends. Others seek to implement less aggressive forms of social organization, whether for pragmatic, philosophical, or for both purposes. Whatever their nature or purpose, most such voluntary societies have managed to coexist within the dominion of legal systems established by nations or empires; a minority have sought to exclude use of any other legal system; some have sought dominion over others; some were in fact examples of nascent territorial governments. So numerous and well-known are the examples, that it is unnecessary to identify any specifically here.

A useful distinction may be made between an empire, nation, territorial government or tribe, any one of which confers membership by accident of birth or subjugates by conquest, and a voluntary society that requires some intentional action on the part of the member as a precondition of membership, and does not impose membership on any unwilling person. As it relates to the genesis of justice systems within societies, this distinction is not of foremost importance. Nations and various voluntary societies are alike in how their justice systems evolve: first a community forms, and as the community grows and becomes better defined, a justice system is developed; after becoming customary, the system is by diktat or in all practical effect imposed on all the community’s members. Every community member either lives with the justice system, with all its warts and wrinkles, or leaves the community. No individual member of the community is permitted to define her own law. Law making for the community is monopolistic. There is only one authoritative source of law for each community, once the justice system is entrenched.

Discourse With Natives

Discourse With Natives

In contrast, the genesis of justice systems in a voluntary law society is different: first laws are defined; then they are adopted and published by individuals, only then can communities be formed once two or more people have adopted and published compatible laws. The community persists for so long as the two or more people do not revoke their prior adoptions. In other words, a voluntary law society consists by definition of that set of people who have personally adopted compatible laws, regardless of whether or not each of the people have any relationships with each other or even know of one another’s existence. There is no monopoly on law making. Instead, there are as many potential sources of law as there are people in the community. The community does not exist except by adoption of compatible laws. Community coalesces around compatible laws, instead of laws coalescing from authority structures of existing communities. Laws are compatible either by being the same, or being reconcilable by a mutually accepted set of principles, such as TROTWET.

Constitution of Athens

Constitution of Athens

Constitutions, bylaws, and sets of moral (e.g., religious) precepts provide examples of preceding laws, which are sometimes defined prior to organization an associated group. A nation or voluntary association may adopt founding organizational documents before it is deemed to have formed. Such organizational documents set up a structure and process for further rulemaking by some subset of the association that is formed, for example, by its elected officers or by some process that often ultimately depends on electoral majorities. Republics and democracies are examples. Corporations and other collective associations provide other examples. Although constitutional republics and democracies may be preceded by organizational documents, they make territorial and temporal claims of sovereignty that sweep in subjects who never agreed to the original founding documents or to the layers of law added afterwards. Any resemblance to voluntary law is faint indeed. Except for a handful of “founders,” the sovereignty of the state extends to vastly more people than have affirmatively assented to its constitution.

Moreover, while citizens sometime swear to uphold the constitution of a state, such acts do not amount to statements of personal principle, generally speaking. More often than not, the oath is required as a condition for access to some office, agency, or license offered by the state. If the ritual oath is refused, the opportunity that it accompanies is lost. Whether or not one has taken the ritual oaths has no bearing on any person’s fundamental rights or responsibilities under the law of the state to which the oath is sworn. Instead, such oaths are ritual acts that accompany and solemnize the assumption of state office or license. In contrast, under voluntary law the act of public adoption is the primary, if not sole, determinant of the declarant’s legal rights and responsibilities.

Florida's 37th Governor

Florida’s 37th Governor

Another example of antecedent declaration may be found in corporate founding documents, which come before formation of state-recognized organizations. The founding documents inform members of the structure of the organization, but are also a requirement of an external legal system. For example, a California corporation cannot be defined without adopting a bylaw that is consistent with California law. By organizing under the law of a state, the entity effectively adopts the corporate law of the state it forms in, for resolutions of disputes between its various members. While the association of stakeholders that is centered on corporate entities is normally entirely voluntary, the scope of the bylaws is limited to matters that affect the body as a whole, such as its proper purpose, its manner of government, rights and responsibilities of members, shareholders, or other stakeholders, and other organizational matters. Corporate bylaws are of limited scope, and are deemed binding on the organization as a whole and its offices, instead of being personally applicable. Corporate bylaws provide only a very dim analogy to voluntary law.

Membership organizations with dispute resolution systems provide a closer analogy to voluntary law. Voluntary trading groups like time banks, online auction or trading groups, cooperatives, fraternal organizations, labor unions, churches and other religious congregations, and many other types of voluntary organizations provide some form of dispute resolution rules, often accompanied by a code of conduct. Indeed, depending on their organizational rules, membership groups may blend smoothly into voluntary law and coexist with it, as has been noted above.Odd Fellows

Some voluntary associations aspire to provide a full range of legal services for their members. One recent example is BitNation. BitNation is distinctive for its reliance on decentralized blockchain technology to meet the communication needs of its membership. It is also unusual for advertising itself as an alternative to the territorial nation-state. As of this writing, members of BitNation agree to use “British Common Law” to resolve disputes among themselves. It is unclear what this will mean in practice, for example, what forms of British Common Law are acceptable, and what sort of due process is required in different circumstances. It is nonetheless a step in the direction of voluntary law, and may lead to development of technologies that enable formation of truly voluntary law societies in the future. It may itself evolve into implementing voluntary law by at least two pathways. For example, were BitNation to recognize the principle of personal sovereignty and join a consortium of “bit nations” each with its own distinct law and with a sort of “inter-bit-national” law that recognized basic principles of voluntary law and provided conflict of law rules, the consortium and each of its members would be a voluntary law society. In an alternative, BitNation might adopt principles of voluntary law and allow its own members to express and be judged by their own various personal honor codes or laws. Currently, however, BitNation has only one authoritative source of law, albeit vaguely defined.

Previous voluntary membership groups lack any recognition of personal sovereign power to make and adopt one’s own law, without being expelled from the membership society. Uniquely under voluntary law, retaining the benefit of the community does not require that any person be judged by the law of another, so long as a set of rules for resolving conflicts of law are agreed to.
Other distinctions with voluntary law may include the limitation of membership in the group to a set of specially qualified persons. In contrast, membership in voluntary law society is equally available to all persons who possess the philosophical attributes of a person able to make and follow laws. Voluntary law draws the boundaries within which the benefits of community can be enjoyed as broadly as logically possible, and is scalable to a society of practically limitless size. Another distinction may include a limited scope of dispute resolution. For example, Robert’s Rules provides a process for resolving disputes over conduct at a meeting, or malfeasance towards the organization. Few membership organizations enforce rules beyond the scope of the limited purpose of the group. In contrast, because the ultimate sovereignty is personal, voluntary law places no limits or requirements on the law, beyond the three pillars. It can be as comprehensive or as limited as each person desires.

Voluntary law society does not easily or naturally arise from a state of nature. Empirically this is true; voluntary law has never managed to evolve straight from nature and has never been practiced on a large scale. Arguably, it has been practiced in some unspoken ways in families and small communities, to some extent; but it is not remarkable unless and until it can be extended to large societies of strangers. Scaling up will require things like legal registries and reputational networks based on compliance with self-adopted laws. These niceties – such as records of personal laws and neutral reputation networks — cannot easily be developed where every day involves a struggle for survival. Institutions such as reliable record keeping systems and a sense of equality are not “natural”; they have evolved and become more prevalent as the idea of the state has evolved from one resting on the power and property of a monarch, to technological socialist democracies and republics that rest on some theory of public benefit. Although pervasive in their regulation of human affairs and relentless in preservation of their own power, these more modern forms of the state generally acknowledge basic human rights such as freedom of speech and thought, equality of persons, and the right of free association. It is within an established framework of basic rights and a sufficient information infrastructure that institutions of voluntary law, such as publication and adoption of law and reliable reputational records, can take root and grow. Capital surpluses and leisure time that exist in some state-governed territories may also facilitate experimentation with new forms of self-governance. Voluntary law is not so much an enemy of the state as it is an evolved descendant of it, with the potential to replace monopolistic territorial governance, if found useful by adequate numbers of people.

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Empire Builders

It is sometimes difficult for people to imagine that a generally well-ordered society can exist with diverse and conflicting laws, despite the well-known examples that exist even today. This skepticism is not logically justified. Nations, states, and provinces often enact conflicting laws, and the law to be applied in cases involving people from different jurisdictions, or places subjected to overlapping claims of authority, is not always clear. A well-established branch of law exists for the purpose of sorting out such conflicts of law, and it is not hard to find a lawyer or judge aware of basic principles involved. In the world of territorial governments, conflict of law principles rest firmly on underlying principles of territoriality. There are other systematic ways of resolving legal conflicts without relying on territorial boundaries, however. A large portion of this book is dedicated to explaining one such system, TROTWET. Existing conflict of law systems show that a single unitary set of laws is not a prerequisite for a well-ordered society operating under due process of law.

Czar's Borderland Pirate

Czar’s Borderland Pirate

Many communities are not formally organized, but observe customs and basic principles that preserve basic order and make malfeasance punishable. Such communities might be called “organic anarchies.” There are many documented historical examples of organic anarchies, usually in frontier areas: the sixteenth century Anglo-Scottish borderlands; nineteenth century North American so-called “Wild West;” as well as many tribal areas in Southeast Asia, the Amazon, and Africa, to name a few. In these frontier areas far from the reach of kings, republics and empires that tend to form in richer agricultural areas, legal customs develop organically. In some cases, judges or tribunals develop to resolve disputes according to established custom. These organic anarchies are precursors to a state – not as matter of logical necessity, but as an empirical fact of history. Everywhere (or nearly everywhere) such conditions have prevailed, the dispute resolution processes of the frontier have eventually been assimilated into a state of one kind or another. It may be that such anarchies can persist in remote places indefinitely, and counter-examples of backwards evolution from a state to anarchy may perhaps be found. But even if lawless frontiers re-emerge in areas previously ruled by states, the anarchy will persist for only so long as the conditions that prevent the emergence of a state prevail.

It may be debated whether the social criteria that give rise to the state are mainly psychological, or rest on economic factors. Some say government as we know it is merely mass psychology at work, as argued in The Most Dangerous Superstition by Larkin Rose, or as used to advance the story in the fiction of And Then There Were None by Eric Frank Russell. Others argue that the idea of the state arose out of the rise of capital surpluses, for some fundamentally economic reason. Regardless, the laws and customs of even anarchistic frontier areas are based on territorial boundaries, however loosely defined. If one resides in such areas, one will be subject to the prevailing customs, regardless of one’s views on their morality or sagacity. There is no personal sovereignty over law making, in such societies. Thus, frontier anarchies are also distinct from voluntary law.

Hypnotized Hen

Hypnotized Hen

Looking more to the present, movements that resemble voluntary law are easier to spot. One such movement is the development of standard copyright licenses by the nonprofit organization “Creative Commons.” People who wish to license their copyrightable content for use without payment of a royalty, subject to certain conditions such as attribution, may do so by referring to one of the standard licenses published by Creative Commons or any competing license, for example a “copyleft” license. Such references to standard licenses resemble an adoption of law under voluntary law. However, there are some differences: a copyleft license is form of contract, and for all present-day copyleft licenses, the underlying law is that of a state. Copyleft provides no stateless alternative for resolution of disputes arising under its licenses.

Voluntary law was inspired by anarcho-capitalism, so it is no surprise that it resembles anarcho-capitalism in many respects. For example, one form of anarcho-capitalism written of by Pete Sisco, “contractual republics,” emphasizes the right of any two people to specify every condition of an agreement between them, including defining a code of law under which the agreement must be interpreted. Essentially, this is freedom of contract as we know it today, but untethered from regulation by a state. Under anarcho-capitalism, without universal respect for the same property rights, there is no legal basis for resolving competing claims. For example, competing claims between hunter-gatherers who do not recognize titled forms of land ownership and farmers who rely on a system of land titles cannot be resolved except by force, with one or the other view prevailing. Accordingly, being generally peaceful people who wish to avoid violent conflict, anarcho-capitalists will argue passionately about the most optimal or best property rights rules to follow. In contrast to anarcho-capitalism, voluntary law rejects any universal notion of property beyond self-sovereignty, instead relying on equality of persons, personal sovereignty, and publication of each person’s personal code of honor as the basis for society. Conflicts are legally resolvable even when the parties do not recognize the same property rights.

Berkman Addressing the Anarchists July 11, 1914

Berkman Addressing the Anarchists July 11, 1914

Like anarcho-capitalist societies, contractual republics would rely on a universally applied property rights regime. The citizens of each contractual republic, by virtue of holding to the same common agreement, will naturally hold to the same view of property rights. Different contractual republics may recognize different property rights, but there is no legal mechanism for resolving disputes arising out of fundamental disagreements over property rights, or other legal conflicts. Also, contractual republics use a different mechanism for defining laws: agreement of at least two people instead of independent public adoption. Hence, changing one’s law entails a sort of breach of contract in every case. Contractual republics might therefore be somewhat less adaptable in their ability to adjust laws to suit changing conditions and beliefs, than voluntary law societies.

Equivalent results may be realized by contractual republics and voluntary law societies, under some conditions. For example, results may be very similar where at least two conditions are satisfied: first, where everybody holds to the same definitions of property rights; and second, where the system of cooperating contractual republics is sufficiently diverse to provide a life-sustaining republic for every firmly-held minority viewpoint on legal rights and obligations. Where these conditions are met, contractual republics and voluntary law societies may converge on the same outcomes. In every other case, they may be expected to diverge substantially, and every other case might be the norm. It is doubtful whether these two conditions can ever be met, in reality. Much more could be said about differences and similarities between voluntary law and various forms of anarcho-capitalism, but this introduction will not endeavor to say it all.11222227364_22be3d2ca8_z

Voluntary organizations for developing standards, codes and rules are well known in many contexts. Open-source application development groups and technical standards committees provide some examples. It might be said that open-source software developers have blazed a trail for “open-source” voluntary law development. There are many similarities between open-source code development and voluntary law development. In both cases:

• The “code” is open for contribution from anyone who can write useful, reliable code.
• Community leaders review contributions and publish standard versions, but non-standard versions or “forks” are not prohibited.
• Individuals produce and use customized variants and add-ons.
• Community acceptance and network effects determine the adoption rate of any given version, variant, or add-on.
• Community activity creates an eco-system that supports economic transactions around freely distributed codes.

288px-Opensource.svg_12The very well-tested open-source model is ripe for adaption to development of voluntary laws. The success of the open source movement has proven that code writers can be incentivized to produce complex, useful code for reasons other than direct payment for code-writing services. Thus, there is reason to hope that the voluntary law model may likewise be economically feasible. Besides these similarities, there are some differences to consider. For example:

• Voluntary law development adapts to changes in normative preferences, and less so to changes in technology and aesthetic preferences as in open-source coding.
• There is diminishing incentive for continual development as the law matures, in contrast to technological development that often feeds more technological development.
• Harmonization between legal systems is a critical concern for most legal communities, while software communities are more self-focused.
• Software programming requires special technical knowledge that most people lack, but any thoughtful person can write a law.
• Successful laws must accommodate and bridge disparate normative preferences, unlike computer programs.
• Voluntary laws tend toward simplicity and stability the longer development proceeds, in contrast to software that tends to grow and become more feature-laden.

None of these differences make voluntary law less economically feasible or less likely than open-source software development. On the contrary, the anticipated tendency for voluntarily selected legal codes to stabilize and simplify, and the lack of need for special technical skills, suggests that the long term economic costs of code development for voluntary law will be much less than for open-source code development. Conceivably, well-developed and diverse sets of voluntary laws can be developed for the entire world, and translated into numerous languages, for much less than the combined total of open source projects active today; perhaps even for less than a single large international open-source coding project. The reason it has not happened is because people do not believe that writing and publishing personal codes of honor has any useful value. The thought of everybody picking their own law is too new and too strange of a concept. Very few people have ever considered the possibility, and few that do think it a useful idea. But once voluntary law has been convincingly demonstrated, and its utility is proven, voluntary law can be adopted very rapidly. The economic barriers to widespread adoption are practically nil.Coding Freedom

No prior system makes personal sovereignty the basis for law making, assigning all authority and responsibility to the individual. Whatever each person chooses is their own law, to be applied to their own conduct. This is not a boast made on behalf of voluntary law. It is a check on your reading comprehension. At most, prior voluntary associations require voluntary delegation of law making power to some subset of the association, e.g., a majority of members, a committee, a founder, or group of elders. Voluntary law is revolutionary in that aspect of declaring each person sovereign over herself, and only herself. In another aspect, voluntary law is evolutionary and firmly rooted in the past. It freely permits and will make use of rules and methods for dispute resolution and due process of law that have proven useful through the ages, while making use of newer developments such as open-source coding and encrypted public registries such as block chain (Bitcoin) technology. It is new, but not that different.

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Coexistence, Introduction To Voluntary Law (Book)

Coexistence With Other Legal Systems

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Voluntary law is based on the most granular possible social unit: the person. As such, voluntary legal systems are uniquely suitable for co-existing with competing legal systems, while being uniquely difficult to eradicate. There is no head to cut off. Nor does the person who adopts a voluntary law require any action from any person who chooses not to participate. Those who choose to participate must place their reputations at stake, but only within the society defined by voluntary law.

Voluntary law reaches only persons who are voluntarily within its society of laws. Outside of that society, anything whatsoever may exist: a republic; a democracy; an empire; a petty dictatorship; a socialist paradise; a fascist totalitarian state; lawless anarchy, a prison; a school; a plantation of slaves; a land of the free; a spiritual paradise that needs no laws; or hell itself. Voluntary law societies can co-exist with all these other things. The only essential requirement for the voluntary law society to exist is for two or more people to comply with its essential principles in their dealing with one another. Coexistence with non-voluntary forms of society and law, or with states of nature is potentially complex. Only a few of the more salient issues and aspects are touched on here, as is appropriate at this early stage, before anyone is using voluntary law on a large scale.

A principal aspect of coexistence concerns the modularity of voluntary rules. One is not necessarily entirely within, or entirely outside of, voluntary law society. One can be within voluntary law society for one set of rules, while being an outlaw with respect to other sets. Examples of this modularity at work have been provided earlier. Adopting voluntary law for limited purposes might leave fellow society members without recourse under voluntary law for forms of aggression outside of the applicable law’s reach. Such limits are inherent in voluntary law, and many examples have already been discussed. The compensating principle, as has also been discussed, is that whatever actions of a person that are not actionable under that person’s voluntary law are publicly known to other society members. A person with unreasonable laws may thereby be avoided and shamed.

If conflict regarding an excluded topic of law arises under unavoidable circumstances, the people involved are no worse off than if neither had adopted any voluntary law. For example, suppose a couple has adopted compatible voluntary laws in the area of family law. One of the couple has not adopted any voluntary laws providing remedies for breach of contract, nor any more general principle that is applicable. In these circumstances, neither one of the couple can bring a contract claim against the other. If a breach of contract occurs between them, they can either settle it outside of voluntary law, agree on a law to be applied for purposes of the dispute, or leave it unresolved. Selecting any of these three alternatives will not damage their reputations as society members. In contrast, if a dispute involving family law arises, and one fails to comply with the applicable voluntary law to resolve the matter, that person’s reputation will be at risk.

Modularity may be subject to hierarchical relationships within the structure of voluntary law. For example, a prudent person might adopt a rule providing for damages in case of all acts of violence, coercion or fraud, without adopting specific rules in some areas. This will inform others that the person is reasonable, without losing flexibility in specific areas.  General principles such as non-aggression will unavoidably come into conflict with laws imposed by some external source. Even narrower rules may sometimes similarly conflict with external rules. Coexistence therefore entails understanding how such conflicts may be treated under voluntary law.

Nearly every person who exists on Earth is accustomed to being made subject to a plethora of rules imposed by non-voluntary means. So far as voluntary law is concerned, all such rules are merely the proclamations of outlaws; and insofar as voluntary law extends can provide neither the basis for a claim nor a defense against one, without the consent of all parties involved. One cannot make one’s voluntary law identical to a state law by an act of adoption, because states by definition do not require the consent of every person who will be made subject to their laws. A so-called state that requires prior personal, non-coerced consent to every law written is no longer a state, but some kind of voluntary organization. It might even be a voluntary law society. The point is that personal adoption of the law of a state or any other non-voluntary law involves a logical contradiction, and is by definition a mere nullity, an act having no meaning whatsoever. That is not to say that substantive aspect of state laws cannot be borrowed from written precedents and adapted for voluntary purposes. This is to be expected, especially for rules based on old traditions sensitive to human needs. Any involuntary reach of such rules is negated entirely, as soon as the rules are adopted as voluntary laws.

A society member may belong to different voluntary communities that hold to different or even contradictory laws. Such contradictions may be treated as any other rule of outlaws, or publicly adopted within the framework of voluntary law. If conflicting rules are adopted as voluntary laws, the adopter should be careful to limit the scope of at least one of the sets of laws to members of the community in question. Otherwise, it will not be clear which law to apply in any given conflict. Consistent with principles discussed earlier, justice will require that any ambiguity will be construed against the adopter. In practice, this will result in the principle of TROTWET being applied whenever it is unclear which law has been adopted. Unfavorable ambiguity may be avoided by adopting the law only for members of a particular community, presuming it is possible to determine who the members of that particular community are. Even in that case, it may be desirable to specify a general law to apply in cases that do not involve any member of the community, lest some unfavorable law of the community be applied generally. Moreover, the person who adopts the law of a particular voluntary community, if not limited to a concrete text of certain date, is essentially appointing the community as his legislature. Such appointments are always unnecessarily risky, as has been discussed earlier. For these and similar reasons, prudent people might generally avoid adopting conflicting laws of different communities as their voluntary law, or delegating the power of adopting their law to communities that might act unpredictably.

Such caution will not leave the prudent society member without options. Instead, the member may preserve her personal sovereignty while participating fully in communities holding to conflicting rules, by participating in such communities as an outlaw. In other words, the prudent person might agree to abide by laws made in traditional ways by various communities (e.g., clubs, religious organizations, political parties, etc.) but regard these traditional community laws as being outside of their own voluntary law. Similarly, a person might comply with laws or diktats of a coercive government or criminal gang as a matter of expedience, without making compliance a requirement of their own voluntary law.

To avoid conflicts with voluntary law that dealings with outlaws might engender, the society member might agree to waive her rights under voluntary law, to the extent contradicted by the community rules, in exchange to corresponding waivers from all other members of the community. Making this sort of waiver outside of voluntary law insulates the society member from unintended consequences of accepting laws not under her personal control, and may become a popular option for reducing risks of membership in diverse communities. If the outside community does not include any other voluntary law members (i.e., all are outlaws), the waiver is without any meaning, because voluntary law provides no rights against outlaws anyway. In such circumstances, it is likely that no request for waivers would be made. Conversely, if some outlaw community or collective is requesting that a society member waive voluntary law for some limited purpose, this is a sign that voluntary law is alive and well. Such waiver requests indicate that the outlaw community includes among its members other voluntary law members, who fear liability that might otherwise accrue were no waivers given. Waiver requests increase the leverage and influence of voluntary law societies, and are an indication of expanding membership.

As noted, communities consisting entirely of outlaws have no need for waivers and will not request them. Such will be the relationship between the state and any voluntary law societies, at the outset. Outlaws affiliated with the state will make demands of society members, and society members will be unable to make any offsetting claims against the outlaws under voluntary law. Whatever actions the member takes to cope with such demands are entirely outside the province of voluntary law. Thus, no suggestions need be made here. People already cope with such demands, and may continue to do so as they see fit, whether or not they are members of any voluntary law society. But if a member of an outlaw organization is a voluntary law society member, such person may be subject to claims under voluntary law for their actions, even if the action is permitted or required by the law of the outlaw organization. Rule of outlaws cannot directly control outcomes of proceedings under voluntary law, but may influence outcomes in ways that will be discussed below.

Outlaws may ban the adoption of voluntary laws, but such bans obviously have no legal significance within voluntary law. Bans may discourage some from adopting voluntary laws, for those afraid to resist bans against expressing personal codes of honor. Such bans are nakedly totalitarian, however, and directly contrary to state laws protecting free speech. Therefore it may be expected that repression of voluntary law societies would take other, less obviously objectionable forms.

For example, tax collectors may declare that enforcement of voluntary laws requiring privacy in commercial transactions is illegal under state law. This might be enforced, for example, by the tax collector bringing some state-law charge against a voluntary law society member for bringing a claim against another society member based on breach of transactional privacy arising from a report of a private transaction to the tax collector. Such enforcement action by the tax collector would penalize or even criminalize private indemnity agreements. This may seem outlandish, but there is a tangible risk that certain outlaws may try to criminalize privacy or other obligations under voluntary law as instruments of some sort of criminal conspiracy, or on some other basis.

Other examples can easily be imagined, where state actors would certainly bring criminal charges for actions permitted under voluntary law. For example, a death sentence pronounced and executed with utmost probity under voluntary law would be sure to invite criminal charges against many involved, under the law of many states today. Every powerful state can be expected to defend what it claims as its exclusive authority. It is inevitable that some actions that are perfectly legal under voluntary law would subject society members to liability under the law of outlaws. Such persecution by outlaws will vary according to the circumstances under which the voluntary law society exists. Persecution is an external environmental factor, not an inherent aspect of voluntary law itself. Like any other external factor, voluntary law societies are free to adapt to predictable outlawry by adopting laws to deal with it such as make sense under the circumstances.

In a thriving ecosystem of voluntary law, solutions will no doubt be found that are not foreseeable or perhaps even conceivable today. Nonetheless, some productive approaches are not hard to foresee. Every positive duty under voluntary law lies primarily on the person adopting it, so any person who wishes to avoid liability under some state law may adopt a law that excuses compliance with the diktats of outlaws if reasonably necessary for a substantial defensive purpose. For example, an officer of a state agency might adopt a law that excuses herself from liability for lawful conduct under such-and-such agency rules. There are two ways to write such rules, as positive laws or as affirmative defenses. If written as positive law, the limit will exclude the officer from bringing claims against those who do her harm by conduct that that is required under the same external rules. If written as an affirmative defense, the limit will not be effective against a claimant who does not have a corresponding equally strong or stronger shield, under TROTWET.

Accordingly, most such limits would be written as positive laws, if possible.   Is it possible? Consider a voluntary law that authorizes a claim for theft, unless the theft was done in compliance with state law. Is the “unless done in compliance with state law” an affirmative defense, or part of the positive law? Such questions will be decided, if ever, by the voluntary law jurists of the future. To aid them, it is suggested that the distinction be made based on whether or not the rule authorizes a positive claim, even if subject to a limiting circumstance (e.g. that the theft not be in compliance with state law). Under that approach, the example given above is a positive law. Conversely, if every limiting circumstance is treated as an affirmative defense, limits could never be used for protection against those who disavowed them. Some who do not need compliance exceptions might not disavow them, for various reasons. For example, a society member may wish to signal compliance to lessen the risk of state-initiated persecution, to encourage others to adopt voluntary laws, out of admiration for the state rules, to enable use of the limit in claim proceedings, to shift the burden of proof for affirmative defense to the defendant, or for some other reason. It is impossible to predict what balances might be struck. Nonetheless, if every compliance exception were regarded as an affirmative defense, this might tend to discourage adoption of voluntary laws by some. Persons who need the comfort of a limit and are willing to accept it for their own claims, might not dare to adopt the underlying claim as law. This might create unnecessary disincentives for adoption of voluntary laws.

Some may find limits and exceptions based on external rules distasteful, but at least the officers who adopt them are being honest and open about the limits of their liability under voluntary law. Those who do not approve may refuse to do business with them. If a great many people find limits as adopted by our hypothetical officer repugnant, those who adopt such limits will face real pressure to discard them, or lessen their reach.

Moreover, although a limit on liability based on some external set of rules might seem less than satisfactory to somebody who suffers at the officer’s hands, it at least makes the question of compliance with the external rules subject to adjudication in a voluntary law forum. A society member who believes she has suffered harm at the hands of the officer due to actions outside the cited external rules may bring her claim under voluntary law. There the claimant may obtain a different result than could be obtained in the courts of the state. The claimant need only prove the underlying harm (e.g., theft or imprisonment) and that it was not executed in compliance with the applicable external rule. If possible to raise as an affirmative defense, the compliance would be the defendant’s burden to prove. Limits and exceptions based on external laws, like waivers, would be a sign that the scope and influence of voluntary law is increasing. Such limits and exceptions would create tangible incentives for good behavior by the agents or subjects of the state who adopt them. Adoption of such limits and exceptions as voluntary laws would serve to bring compliance with the external laws on which the limits or exceptions are based under the purview of voluntary law, where the processes and precedents of the state courts are not binding.

Bans and prohibitions might be written the other way. For example, a voluntary law might provide that its adopter may bring any proper claim, regardless of whether the underlying actions were required by an external law. In other words, a society member may disavow defenses based on external requirements. However, one member cannot write another’s law. Thus, a rule of “no theft, no exceptions” cannot trump a rule of “no theft, unless authorized by state law” held by another. Analyzed as positive laws, under TROTWET and all other things being equal, the “no theft, unless authorized by state law” is the weaker tool. Thus, the one holding the “no exceptions” rule could not enforce it against the person who preferred an exception. If all other things were not equal, for example if the “no theft, unless authorized by state law” called for heavier penalties, it would still be the weaker tool if applying the other rule results in less liability under the facts of the case. Determination of the weaker tool should always be done in light of the facts at hand.

If “no exceptions” and “unless authorized by state law” are analyzed as affirmative defenses, under TROTWET it might seem that “no exceptions” is the weaker shield and should be applied. However, “no exceptions” is not a shield; it provides no defense. Instead, it is the negation of a shield. It should therefore be disregarded. This leaves no shield. As between a shield and no shield, no shield is weaker. Therefore a simple “no theft” rule with no affirmative defense deprives one who holds to “authorized by state law” as an affirmative defense, as noted a few paragraphs earlier.

Many laws would always be accompanied by an affirmative defense. For example, self-defense might usually be recognized as an affirmative defense to murder. So it might not be unusual to see a law such as “no murder, except if necessary for self-defense” facing a law such as “no murder, except if necessary for self-defense or authorized by the state.” The latter law might be held by executioners working for the state, for example. If a society member holding the first law brings a claim of murder against the executioner (who surprisingly, is also a society member) for a state-authorized execution, the claim prevails only if the exceptions are analyzed as affirmative defenses. As written above, both appear as affirmative defenses. If the second law is written as “no murder that is not authorized by the state, unless necessary for self-defense,” the exception to state authority might be regarded as part of the positive law. To provide greater certainty on the issue of positive law vs. affirmative defenses, the executioner could adopt different types of claims based on death of a victim. For example, the executioner might adopt both “murder without authorization of state law” and “murder with authorization of state law.” The executioner might then adopt much lighter penalties for the latter offense. Both of these claims are clearly positive laws, but only the latter could be proved against the executioner for an execution authorized by state law. Making the latter claim would not place any great burden of proof on the claimant. The executioner would surely stipulate that the execution was authorized by state law, to avoid the charge with heavier penalties.

These hypotheticals lead to a few basic conclusions. Perhaps foremost is the observation that voluntary law can be practiced in conjunction with external legal systems, without sacrificing the independence of the voluntary legal system or breaking its underlying principles. In some cases, society members might adopt rules of voluntary organizations for limited or general purposes, but more frequently, rules of voluntary organizations would likely lie outside the scope of voluntary law. Rules of non-voluntary organizations must lie outside of voluntary law, by definition.   Even those under bondage to a non-voluntary authority may participate in voluntary law under terms that lessen conflicts between the demands of their bondage and that of their voluntary law. Those under bondage would seek to build exceptions for acts required by their bondage into their positive laws. Exceptions cast as affirmative defenses, however, would be useless except against claimants who also adopt them. Either way, such exceptions would bring compliance with state law under the purview of the voluntary legal system, in some cases. The converse is not true.   Any person not in bondage would have little reason to adopt laws that condemn exceptions to voluntary laws based on state authority. Free people are better served by simpler laws.

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Photo Credit to Raymond Zoller

Some rights reserved under a Creative Commons Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0) License

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Enforcement, Introduction To Voluntary Law (Book)

Enforcement of Judgments

“Enforcement,” broadly speaking, means the act of compelling compliance or obedience to some law, rule, or obligation. In voluntary law, just enforcement means compelling a person to comply with their own law, subject to due process of law. It means carrying out the sentence that the defendant has already declared appropriate for the proven offense, and nothing more. There are no predetermined limits how enforcement of a valid judgment may be accomplished. Any effective technique that is not contrary to the defendant’s law can be used. There is no central enforcement authority to control enforcers, or to protect them from claims of malpractice.

The lack of central enforcement authority does not mean that there are no practical limits on how law may be enforced. On the contrary, because enforcement powers are not vested in a privileged class and may be exercised by any willing person, the radical democracy of free communities operating according to principles of voluntary law will develop ruthlessly efficient mechanisms for preventing socially unacceptable forms of enforcement, while enabling the swiftest possible justice in almost every case.

To prove this point, little more is needed than observing that for enforcement to be legitimate under voluntary law, it must by definition comply with the voluntary law of the person enforced against. If an enforcement action breaks the applicable voluntary law, either a remedy exists under voluntary law for improper enforcement, or the transgression is the act of an outlaw who claims no protection under voluntary law. Socially unacceptable enforcement will be widely condemned, and against the law of most people. Widely condemned forms of enforcement can be used without consequences under voluntary law only against those who by their choice of law have made no objection to them, or against outlaws.

To bolster the point, it may be observed that voluntary law requires a significant community of persons to be effective and enforceable. Absent any such community, voluntary law and its enforcement are merely rules without practical significance. Enforceability of voluntary law is not a static value, but increases with the size and influence of the community voluntarily subscribing to it. If a sufficiently significant community exists, provable non-compliance with voluntary law in the obtaining or enforcement of a judgment, whether by claimants, defendants, jurists, or enforcers will have consequences. Such noncompliance is tantamount to hypocrisy, to a refusal to comply with one’s own chosen law. Status as a hypocrite or fool is uniquely fatal to personal reputation. In severe or pervasive cases, the offender will be ostracized and deprived of opportunities to do any business with community members from a position of trust. Deprivation of reputation will truly sting.

There is no need to wonder how voluntary law will operate in the absence of community in which everyone’s personal reputation matters. Community is a precondition to operation of voluntary law, just as opposing teams, a ball, and a playing field are preconditions to operation of the game of football. Accordingly, it must always be assumed that enforcement of voluntary law occurs in a community of persons who adhere to voluntary law and are generally aware of how the law is being broken and enforced. In short, it must be assumed that reputation matters.

In view of the necessary assumption, it follows that enforcement must be performed in compliance with a valid judgment of a neutral jurist, or the act may cause the enforcer to be liable to the person enforced against. In essence, enforcement is an aspect of due process. So long as an enforcer follows the applicable due process rules and faithfully executes the judgment, performance of the service enhances her reputation and protects her from liability. If she ignores due process requirements, she puts herself at risk of a claim for damages and loss of reputation. Any person subject to voluntary law will therefore be well motivated to check that the judgment they have been asked to enforce is validly obtained and granted. In addition, such enforcer will be careful to exercise compulsion only to the extent permissible by the applicable voluntary law. For example, if the applicable substantive law does not permit a death penalty, the enforcer is not permitted to kill, nor would any valid judgment require an execution.

If an outlaw is hired to enforce a judgment, the outlaw has no enforceable liability under voluntary law, whether or not the judgment is valid. Instead, liability falls to the society member who has hired the outlaw. In addition, action may be taken against the outlaw outside of voluntary law. For example, suppose a claimant obtains a money judgment but the defendant lives in a place where a state government claims a monopoly on the power to place liens or levy accounts. The defendant refuses to pay the judgment regardless of the claimant’s entreaties, takes no steps to have the judgment overturned, and displays no concern about loss of reputation. As it happens, the jurist who hears the case is also a state-licensed arbitrator, and arranges the voluntary law judgment in a form that complies with state requirements for an arbitral award. The claimant therefore registers the award and obtains a state-enforceable judgment. She enforces the judgment by recording a lien against real property held by the defendant. If the recordation of the lien violates voluntary law, recourse under voluntary law is against the claimant who recorded it, not against the state for facilitating the recordation of the lien. Similarly, if the claimant hires an ordinary thug who is not a society member to beat up the defendant for non-payment of the judgment, there is no recourse against the thug under voluntary law, and only against the claimant who directed the thug to do violence. Other recourse may be taken against the state or against the thuggish outlaw, outside the province of voluntary law.

These examples illustrate why, at least for serious cases, most claimants will chose to hire professional enforcement help from a fellow society member. A professional enforcer will be more familiar with the applicable rules and better prepared to defend against malpractice claims. More importantly, the employment of a society member to handle the enforcement will shield the claimant from most enforcement liability, save perhaps for negligent hiring of an incompetent enforcer.

A professional enforcement system comprised of voluntary law society members can be funded by the offenders. To enable such funding, most offenses will carry a monetary penalty of some kind in restoration of the injury, even if some other penalty is also applicable. Whatever the form of penalty assessed, reasonable costs of obtaining a judgment and enforcing it may be added to the judgment. The amount of reasonable costs may be estimated in view of prevailing market conditions for cases of the type at hand, and assessed proactively or retrospectively by the jurist. Essentially, the offender may be required to pay for the police, the judge, and the lawyers on both sides. Although competent professional services are seldom cheap, costs should be more competitive than in monopoly systems.

Voluntary law therefore in no way disadvantages the poor claimant. On the contrary, a claim-funded open enforcement system creates incentives for vigorous enforcement against wealthy society members in proportion to the magnitude of their offense. It might seem, however, to advantage the poor defendant, and create incentives for poverty. Who would deign to enforce a judgment against somebody with no money, and no property? To the extent this is true, it is no worse than civil remedies in any other justice system. Instead, a social benefit is provided in that no class of taxpayers exists to be forced to pay for enforcement of costly criminal penalties against poor defendants, such as bare imprisonment.

There is no real distinction between criminal and civil law under voluntary law, which provides no state or other privileged lawmaker to discriminate between criminal and non-criminal harms by diktat. Instead, “crime” in voluntary law societies might come to refer to irrational, wanton acts of destruction, or merely to intentional harms; or the term may fall out of use entirely. For the most heinous crimes, provided the defendant’s law allows a penalty of death or bodily injury, we may expect enforcement to be funded if not carried out by the claimant’s family and friends, or perhaps by sadists who relish the opportunity for legally sanctioned hunting of humans. Prolonged criminal penalties such as imprisonment, however, would be lacking. It is not possible under voluntary law to tax your neighbors to fund a prison for those who have wronged you, based on some theory of social benefit. Community-funded prisons are not forbidden, so long as the funding is voluntarily obtained, but there are good reasons to think such prisons would almost never exist in any form that resembles prisons as we know them today. Prisons are not generally economical. It is more economical to simply exclude outlaws and persons of irredeemably ill repute from the benefits of community.

For imprisonment to exist under voluntary law it must be permitted by the defendant’s law. What poor defendant would adopt a law with such penalties? Poor people would certainly adopt voluntary law to the extent they desired to do commerce with society members, but absent such incentives they would be outlaws. If outlaws, they may be imprisoned by any person with the power and desire to do so, although exclusion would be the more usual remedy. If by adopting a voluntary law that provides for monetary payment instead of imprisonment a poor person can avoid the threat of prison or exclusion, there is no reason not to adopt a reasonable law. Nor would a poor person chose a law with no penalties. By virtue of poverty, a poor person stands to gain more from penalties than to lose, and would not want to forfeit opportunities to recover if wronged by someone wealthy. Therefore poor persons who are rational and aware, or merely well-counselled, would chose reasonable laws allowing for monetary judgments for most ordinary offenses, perhaps in reasonable proportion to wealth or earning capacity.

In a robust and diverse voluntary law society, some members might adopt laws that essentially allow them a lifestyle as transient opportunistic thieves, within specified limits. For example, such persons may adopt laws that permit the taking of surplus, unattended or discarded food or clothing without penalty, and camping in empty spaces, so long as done without violence, in the absence of a reasonable alternative under the circumstances, and not in excess of personal necessity. Even more affluent persons may adopt such laws, as a sort of fallback position in case of sudden unexpected penury, even if temporary. Legalized thievery beyond basic personal necessities will not generally exist, because such rules will serve no useful purpose for the thief. Adopting law that provides no penalty for theft in general would announce the thief’s vile intentions to the community, and make it much harder for the thief to retain possession of, or obtain any benefit from, his stolen property. A professional thief will more likely try to play the role of a principled outlaw (e.g., a servant of the state only), hoping to fool some of the people some of the time.

Judgments against impoverished society members would not be without value. A poor person unable to pay a judgment would suffer damage to their reputation. If the poor person values their reputation and desires to be a productive member of society, this creates a sort of profit opportunity for any intermediary who is able to arrange an earn-out. Prisons would be replaced by intermediaries who are able to supervise and motivate the earning of income without violating the law of the convicts under their supervision. The convicts would pay a percentage to their victims and another percentage to intermediaries, until earning out the debt. A poor member of a voluntary law society finding themselves on the losing side of a claim has essentially two options: agree to some sort of earn-out, or sacrifice her reputation indefinitely. Naturally reputation must have considerable value to the defendant, or the debt will go unpaid. As noted above, it must be assumed that reputation matters, or voluntary law becomes unenforceable.

There will be contexts where reputation matters much and contexts where reputation is of little concern. This fact does not make voluntary law societies any less valid than other legal systems. State-based enforcement to any just degree also depends on preconditions, such as non-corrupt and well-funded judicial and enforcement systems, which are often absent. Moreover, it might be questioned whether merely punitive systems that do not tend to repair the harm done by the perpetrator or enable their rehabilitation are consistent with justice at all.

The question for those who would promote voluntary law and make its enforcement possible is simple: how to make reputation matter more, and in more contexts. It should be apparent that there are many possible answers to this question, many of which may be implemented gradually. A few specific strategies will be suggested later. For now, suffice it to say that critical precursors for development of reputation-based enforcement systems include the development of a community (or communities) that have effective control over desired resources, and a robust record-keeping system tied to secure personal identities. Neither of these precursors is out of reach. In fact, private reputation and identity tracking systems are already commonplace in narrow contexts such as creditworthiness, online selling, and social groups. When developed fully and extended to general applicability, a reputation-based system will more efficiently and justly deter pathological conduct than the blunt instruments of imprisonment or threat of execution. The essence of law enforcement is a system for discovery and development of personal reputation within a community, and voluntary law is designed to facilitate this essence.

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Photo from Nicholas Raymond at freestock.ca, under a Creative Commons Attribution 3.0 Unported License

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Appeal, Introduction To Voluntary Law (Book), Judicial Precedent, Voluntary Law

Ensuring That Judgments Are Just

quality control

Standards for deciding whether or not jurists have done their job well and fairly are matters to be judged under the applicable rules of due process, which may be determined as outlined in this previous post. Despite knowing the applicable due process standard in particular cases, claimants or defendants are often dissatisfied with outcomes of judicial proceedings, for various reasons. Whether or not a rehearing, appeal, or some other adjustment process is available will vary in different circumstances under voluntary law. There are different ways to ensure judicial quality, and appeal is not necessarily the best. Certainly appeal is not the most efficient conceivable process. In the ideal case, all competently-rendered and just judgments would be enforced without unnecessary delay. Mechanisms for delaying enforcement, challenging judgments, and if necessary nullifying or modifying them should ideally be selectively available only in cases where there is a high risk of injustice. Where the risk of injustice is low, delays and challenges serve little purpose. If the marketplace is robust, inefficient administration of justice will successfully be avoided.

In statist systems, particularly common law systems recognizing binding judicial precedent, appeals are the primary mechanism for reversals of judgments. Such appeals function to maintain consistency between rulings of lower courts. The threat of being overruled on appeal prevents renegade courts from ruling contrary to the will of the highest court. Correcting injustice in particular cases is a secondary effect, and the dissatisfaction of litigants is merely a motive force, from the courts’ perspective. The statist court enjoys a monopoly on the provision of judicial services, which lessens its motives for caring about whether justice is done in particular cases. Instead, the statist court must be primarily concerned with avoiding giving offense to politically powerful players. Such powerful players might threaten funding for the court, instigate impeachment proceedings against judges, or (where judges are elected) fund the political campaigns of competing judges, for example. Hierarchical appeals courts exist for the benefit of the judicial system, and not for the benefit of litigants.

The motivation and operation of appeal is completely different in voluntary law. Judicial precedent does not exist. Voluntary law fills the gap left by the loss of judicial precedent, by empowering each person, and only each person, to define applicable law. Uniformity is maintained by the market forces that control the content of voluntary laws; that is, by action of individual choices made by each voluntary law member in the adoption of law. To the extent voluntary law contains ambiguities allowing for different results on similar facts, if ambiguities with real consequences persist it can only be because the people see such ambiguities as a desirable thing. If people want more specificity, they are free to adopt more specific laws. If a law is undesirably vague or indefinite, there will be public demand for more specific, definite laws. Poor or unworkable laws will be “upgraded” on an individual basis, as legal writers propose revisions which gradually grow in influence by individual adoption. Such upgrades may resemble software upgrades in today’s world, but with less pressure on users to upgrade and no single programmer in charge. Voluntary law is not licensed from some legal provider; each member “owns” their own adopted law in the public domain. Thus, there is no need for appeal to a higher court to maintain consistency or resolve ambiguities in law. Instead, the choices of each voluntary law member are respected, and each member has the power to guard against ambiguities as they see fit. There is no hierarchy of judicial power to serve.

The loss of binding judicial precedent doesn’t mean there can’t be influence, and reputation, and persuasive precedents. Such voluntary things will thrive and illuminate justice in voluntary law. The only authority will be what is most reasonable, durable, and true, in the context of the laws the disputants have bound themselves to. Clearly defective judgments will be unenforceable. Merely questionable ones will be subject to challenge at the point of enforcement, or before.

Under voluntary law, as in anarcho-capitalist legal systems, quality is enforced by voluntary exchange in a market for legal services that is highly regulated by prohibition of monopoly power. In the free market, it is reputation that matters most. Voluntary law, however, differs from anarchistic systems that permit law making by collective entities, and therefore exchange territorial democratic monopolies for vertically integrated collectives (e.g., corporations or cooperatives) that may resemble states without political boundaries. These collectives are sometimes described as “security agencies” with effective law-making power over the clients who voluntarily choose to use their services. Bundling of legal, insurance and enforcement services may be expected to occur under anarcho-capitalism as “traditionally” conceived, because of the economic advantages of power. For example, it might be supposed that ability of an anarcho-capitalist security agency to compete would rest heavily on its power to enforce its judicial decisions. A system of competing security agencies might reduce or eliminate bureaucratic inefficiencies of statist legal systems, but do little to provide justice for the poor or to provide separation between law making, judicial, and enforcement powers.

Basing police powers on the power to enforce claims exacerbates the privileges of the powerful, turns “might” into “right,” and incentivizes concentrations of police power. The minarchist reasons that monopolization of police power is inevitable, and that it is therefore preferable to subject police powers to democratic process than to permit them to operate solely under a property-rights regime. The anarchist reasons that whether or not monopolization of police power is inevitable, it is at least worth giving free-market policing a try. The anarchist will justify the experiment with reasons why a robust free market will suppress development of monopoly power. The state socialist believes that every market based on property rights is rigged in favor of holders of capital, and therefore state intervention is necessary to prevent markets from becoming instruments of oppression. State socialists and minarchists represent different varieties of statists. Anarcho-capitalists are sometimes called “propertarians” because they place faith in systems based on private property.

In contrast, voluntary law might be classed as a left-libertarian approach, or neutral position, because it neither justifies or forbids property rights, except for forbidding any person from owning another. Voluntary law prevents inequities in property distribution from subverting administration of justice, by empowering rich and poor alike to declare and be held responsible to their own individually chosen law. No entity holds law making power, except the individual natural person. Law-making by collective entities such as states, insurance companies or cooperatives, is not recognized. To the extent members of collectives follow a common voluntary law, such law is given effect only by the express adoption of such law by each individual member. In systems reserving the power to make laws to the individual, juristic service providers who welcome clients with a range of differing voluntary laws will enjoy a distinct competitive advantage over those who restrict their services to ruling on a single set of laws. Thus, to the extent legal cooperatives and collectives exist under voluntary law, their existence will depend primarily on economic efficiency, and they will render services under a diverse array of laws determined only by the individual preferences of their customers.

Voluntary law also creates greater separation between enforcement and judicial powers than can be obtained under statist or anarcho-capitalist models. This separation is critical to maintaining the quality of judicial determinations. The separation is created not by diktat, but by each claimant’s demand for neutrality of the judicial forum, without which a durable and respectable judgment cannot be had. The enforcer who benefits by enforcing her own judgments cannot possibly be neutral. That some benefit exists is demonstrated by the enforcer’s willingness to enforce; every person may be assumed to generally avoid acting contrary to self-interest. Thus, performance of enforcement necessarily poisons the neutrality of all judgments.

In statist legal monopolies, separation of judicial and enforcement powers cannot exist to the same degree. The state cannot provide any truly independent alternative legal forum in which to challenge the neutrality of state judicial powers, which have become systematically enmeshed and entangled with the enforcers of their judgments and the legislators who craft their laws. In fact, the more systematic the entanglement becomes, the more likely it is to escape notice and foster acceptance of judgments colored thereby. Systematic entanglements protecting and legitimatizing loss of neutrality by courts and police are well-known in statist systems. These take the form, for example, of sovereign or qualified immunity rules that render state prosecutors, judges and police immune from most charges arising from non-neutral exercise of their supposed powers. Even if such immunities did not exist, claimants usually lack recourse to any independent and non-neutral forum in which to try charges of non-neutrality or other incompetence.

In any other anarchistic system that grants law making power to collective entities, by comparison, there are economic advantages to be had from vertical integration. Free-lance law makers, judges and enforcers cannot as effectively attract customers because their laws, judgments, and enforcement actions are less likely to be effective than those provided by integrated service providers whose branches actively cooperate with one another. If, despite the theorizing of minarchists it is indeed possible for competing “security agencies” to coexist and compete for customers, such agencies will resemble states in every aspect but the claim of monopoly over a particular territory. All will depend on relationships with preferred enforcers and law makers in the same collective family. As such, all will hesitate before condemning judgments of competing agencies on the basis of such entanglements.

Why so much comparing to different politico-legal systems, under the topic of appeal and quality of judgments? Because it is not obvious that the germ of voluntary law results in a system that differs so fundamentally from what has been tried or posited before. There is no inherent right of appeal in voluntary law, because there is no need. Basing the law-making power solely in the individual eliminates all collective power to make laws, and provides competitive advantages to jurists capable of ruling for diverse parties holding diverse laws. Such jurists depend almost entirely on their reputation for their livelihood, and will act vigorously to protect public perception of their neutrality. Under a reputational system, neither disputants nor jurists will ignore bias in jurists who ally themselves too closely with particular enforcers. Any enforcement agency allied too closely with the jurist who has rendered the judgment that it seeks to enforce will quickly face a claim by the losing disputant. Such disputant will bring the claim before a jurist who is demonstrably neutral with respect to the enforcement agency.

Moreover, a security agency as a collective has no power to adopt voluntary law. Claims based in bias will therefore be brought against the individual jurists and enforcers responsible for the allegedly biased judgment, or its negligent enforcement. Pursuant to TROTWET, such claims will in the usual case be based on the voluntary laws of individual jurists and enforcers involved, or sometimes on the weaker tools of the claimants. There is no sovereign immunity. If such jurists or enforcers have adopted voluntary laws that deny reasonable claims based in biased provision of judicial services or negligent enforcement, they have publicly declared themselves unfit, and will not receive the business in the first place. Neither will collectives whose members include such unfit providers receive any business. When each member of a collective is held to her own law, the role of the collective as a legal shield for its members is destroyed. Instead, the collective is restricted to its proper use of efficient resource and risk sharing.

In voluntary law societies, judicial service providers are deprived of essentially coercive advantages over competing forums. There is no real advantage to be had in the provision of judicial services, other than a good reputation. People are initially skeptical of every adjudication forum, before its reputation is established, and of every untried jurist. Every juristic 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 the subject of malpractice or negligent enforcement claims. A jurist may also seek certification or approval from various consumer rating or certifying organizations. In turn, the certifying agencies must establish and protect their own reputations by not certifying or approving others without justification.

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 easily respected. Judgments that are not easily respected will be much harder to enforce, if enforceable at all, because enforcers will fear liability arising from negligent enforcement of defective judgments. Therefore, the judgments of a jurist who lacks a proven reputation will be subjected to additional questioning by diligent enforcers, which raises costs for the claimant. Provided their laws allow, jurists 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.

Voluntary law does not leave the dissatisfied party without options, in the case of an incorrect or unenforceable judicial decision. A dissatisfied party’s most fundamental option is to sue the jurist for malpractice. Most jurists would, under market pressure, adopt laws permitting such claims. Requirements for proving judicial malpractice might vary, but in the presence of free and open competition between judicial service providers, such requirements cannot be overly onerous. Reasonable standards might require the claimant to prove a failure of the jurist to comply with a professional standard of care, and consequential damages. The market would determine such requirements, as with all other rules in voluntary law.

Another option, in cases where a decision includes a purportedly enforceable judgment, is for the losing party to convincingly show that the judgment is fatally defective and unenforceable, to any and every enforcement service hired to enforce it. In cases where a losing defendant is facing immediate enforcement, enforcement may, in effect, be stayed by filing a malpractice claim against the jurist who rendered the judgment. This will put would-be enforcers on notice that the judgment is disputed, and reputable enforcers will wait to see how the challenge plays out before risking malpractice liability themselves. Like jurists, enforcement service providers will generally be subject to malpractice liability, but for negligent enforcement of a facially defective judgment, and not for the judgment itself. Redress against enforcers might require repeating the showing to different enforcement services if a public malpractice claim is not made against the jurist, and might be countered by hiring less reputable, more judgment-proof enforcers. Nonetheless, it will at least raise the cost of obtaining reputable enforcement services to enforce judgments, and may sometimes render judgments entirely unenforceable. Either way, such post-adjudication defense activity would create settlement pressure similar to that created by appeal under statist systems, and pressure for higher-quality juror decisions. In general, enforcer liability is an effective check against unjust judicial decisions, and one almost entirely lacking under statist systems.

Could a losing litigant endlessly forestall enforcement by endlessly suing jurists who repeatedly rule against him? In theory, yes; but in practice, customs such as “loser pays” and reputation scoring make this type of behavior self-defeating in most cases. Each subsequent loss would diminish the chances of eventual success and become increasingly costly. Lengthy sequences of “malpractice appeals” might be reserved for more desperate cases in which penalties are irreversible (e.g., a death sentence) and there is a real hope of additional evidence favoring acquittal coming forth later on in the process. In these rare cases, stalling by any means would be justifiable. However, where new evidence of innocence is to be presented, there is no claim of malpractice to bring. Instead, the relief lies in a retrial of the original claim, in light of the new evidence. Retrials for new evidence would accordingly be a commonly afforded right, and asserting a judgment in the face of new evidence rendering the judgment unjust would itself create a legal claim against the one unjustly asserting it. Laws permitting such claims would be adopted by most people as a matter of self interest and social pressure.

A losing defendant seeking to weasel out of a judgment might instead consider finding a sleazy, judgment-proof jurist to hold the original jurist guilty of malpractice. The difficulty with this approach is the decidedly short supply of jurists who are both sleazy and judgment-proof enough to rule unjustly, and credible enough to provide an enforceable judgment. In the vast majority of cases the sleazy malpractice judgment would be of little real value; being given little credit by anyone, it would not prevent the original judgment from being enforced against the losing defendant.

Under voluntary law, will malpractice liability become so great as to practically choke off the market for juristic or enforcement services? There is, after all, something unique about litigation as a service, at least as it is known today. At or before the conclusion of almost every case, there is at least one highly dissatisfied party. At least in the United States of America, all too often all parties are highly dissatisfied, angry at the lawyers and judges involved, and ready to lash out. What would prevent such realities from malpractice claims in almost every case? This question is empirical, and actual results would vary based on many factors, for example, the cultural and sociological environment in which voluntary law is adopted. But there are reasons to think that the emotional experience of the parties under voluntary law would be vastly different and more satisfactory than what many experience under state laws, and malpractice claims would be the exception, not the rule. First, nobody could be sued under a law they did not previously personally adopt for themselves. Obviously, defendants would have much less reason to be dissatisfied with the law being applied, as it would be in their power to avoid undesirable laws. Second, jurists would not be immune from malpractice liability. Immunity is an affirmative defense, and would therefore generally not be available under TROTWET. In addition, competition with other jurists would tend to lessen availability of limits on malpractice liability under positive laws, which could otherwise apply. Therefore, jurists would take pains to as much as possible see that all parties are reasonably satisfied. If it became necessary to rule against a party in the interests of justice, for example by excluding evidence that a party wished to bring in, the jurist would be more likely to explain to the injured party why the ruling was necessary and obtain at least grudging acceptance of it. Third, jurists would be more active in promoting settlements, out of which malpractice liability would be less likely to arise. Fourth, if malpractice nonetheless became an unduly large systematic problem for all jurists, jurists as a group would adopt more restrictive liability laws, lessening their exposure as a group. Fifth, jurists would not be barred from forming associations or other collectives for promoting standards and reducing malpractice risks they face as a group. Sixth, competition for customers would in general tend to increase customer satisfaction, as can be seen in every free market regulated mainly by competitive pressure.

In addition, to reduce risk of malpractice liability, groups of jurists may offer a system of “appeal,” or other quality control measure, as part of their services. Claimants selecting such service group might agree that judgment is not considered final until all appeals or other quality control measures offered by their group are exhausted. Claimants might be willing to bring their business to service providers offering appeal or other means of quality control to reduce the risk of poor quality, unenforceable judgments. Other than appealing a decision to a new jurist or panel of jurists, quality control measures may include, for example, services such as random audits of juror performance, quality ratings, customer service ratings, and other measures. Competing service providers may be expected to develop innovative and cost-effective ways to rapidly resolve disputes over the quality of their judgments and enhance their own reputations as neutral, fair and competent jurists.
Might claimants choose forums where no appeal or other quality control is offered as part of the service, to avoid risk of reversal of an initial decision, or just to reduce expenses? Certainly, but generally in proportion to the confidence of the claimant in her claim, or inversely in proportion to the size of the claim. Claimants might tend to select more reputable, comprehensive juror services for difficult or important cases, and cheaper, less comprehensive services for easy or less important cases. Statist systems offer similar options to the claimant, in the form of different general and limited (e.g., small claim) courts. Often, limited courts have corresponding limited or no right of appeal, even in statist systems.

Claimants might be tempted to hire claimant-biased jurists who have adopted laws that do not recognize any malpractice liability. Such claimants might expect a ruling in their favor, and wish to deny the defendant the benefit of an opportunity to sue for judicial malpractice for bias. Defendants may avoid such tactics by adopting due process rules that require the jurist to adopt reasonable malpractice standards. Under Defendant’s Rule, defendants may thereby render facially invalid any judgment from a jurist lacking reasonable recourse, putting all reasonable enforcers on notice that the judgment is unenforceable as violating defendant’s due process rule. In response, the claimant might hire enforcers who disavow all malpractice liability, either by adoption of contrary voluntary laws, or by being outlaws. These enforcers would have little reason to care about the validity of the judgment, as they could not be sued for enforcing it.

In cases where negligent jurists and enforcers place themselves beyond reach of malpractice claims, the defendant’s legal recourse would be primarily against the claimant. Such claimant, having already ignored defendant’s due process rights, would not be entitled to any more protective due process than he has afforded to the defendant, and would be legally responsible for negligent enforcement of those he hired. Such a claimant might have adopted a law that does not recognize any liability for improper enforcement or other abuse of process. Such claimants would be publicly declaring themselves miscreants, although putting themselves out of legal reach.

As in the example of Cain, who adopted a law with insignificant penalties for murder, the defense against such miscreants is to extra-legally do unto them what they would do unto others. For example, the predatory claimant who denies all liability for abuse of process makes himself a target, under TROTWET, for abuse of process at the hands of the same jurists he would use against others. Those who would abuse process against him would do so without risk of legal liability and at no loss to their own reputations, as they would rightly be perceived as merely punishing a predator. Likewise, jurists or enforcers who hide behind voluntary laws denying liability for malpractice would make themselves targets for negligent judgments or enforcement by others, and their punishers would not need to risk legal liability or tarnish their more sterling reputations.

On the other hand, if jurists or enforcers have placed themselves beyond legal reach by purporting to rule on or enforce voluntary laws while being outlaws themselves, the defendant may take any desired extra-legal retribution against them, without any fear of liability under voluntary law. In considering this possibility, put out of your mind the idea of an outlaw as a ruffian or bandit. An outlaw may be a perfectly honorable person who merely chooses not to operate under voluntary law at all, and instead operates exclusively under some other legal system, for example, state law. Suppose, for example, that an arbitrator who is not a jurist nonetheless renders a judgment under voluntary law that has been voluntarily submitted to her. Recourse against a defective job by the arbitrator would be limited to actions available under the applicable state law. A judge appointed by the state (such judge being another species of outlaw under voluntary law) cannot hear a case under voluntary law, because such cases must be decided using processes and rules that are entirely unrecognized by, and alien to, the state and all state law. Recourse would be had under the law of outlaws.

Finally, people may choose to adopt voluntary due process laws that require winning parties to submit to a re-hearing or appeal of a specified type, after a first judgment. Although such legally-granted rights of appeal, as other due process rules, will necessarily be limited by the Defendant’s Rule and No Hypocrisy Rule explained in the previous chapter on due process, they might sometimes apply. Like other quality control measured, the extent to which due process requirements for appeal would be adopted cannot be predicted, and may vary with time, place, and changes in personal preferences.  Whatever the particular outcomes, it can be said with confidence that appeal, review, re-hearing, malpractice claims, stays of enforcement and other quality control measures for judicial process will be present in voluntary law societies, to the extent demanded by their markets, free of influence from any collective possessing a power to make laws or provide a legal shield to jurists or enforcers.

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Conflict of Laws, Introduction To Voluntary Law (Book), Voluntary Law

Modularity and Conflicts Between Voluntary Laws

Califonia Codes
Modularity is a familiar feature of law, under whatever authority it is developed. Depending on the history and culture out of which law arises, it is conceived as being divided into different, non-overlapping subject areas. These subject areas are then codified, reflecting the cultural expectations out of which the law arises. The division into different subject areas is useful for efficient administration of justice, among other things. Legal specialties can evolve, and by the economic force of comparative advantage operating through division of labor, more efficiently resolve legal questions. Subject divisions are also used for political purposes, to enable favored entities to capture particular areas of law while leaving other areas open to greater competition. Although resistant to political capture, voluntary law shares a potential for modularity with other forms of law, and can also be divided into subject areas.

Were this all that could be said about modularity, it might be of relatively scant interest. Within the field of voluntary law, however, modularity looms large as a tool of importance for resolving legal conflicts. Voluntary law is capable of exploiting a much more finely-grained and sophisticated modularity than we are used to seeing in traditional legal systems, for new purposes. These purposes include efficient conflict resolution among arbitrarily large sets of conflicting laws. To illustrate, suppose a million different strains of voluntary law are in use by a billion different persons speaking a hundred different languages. That’s a lot of variety. In such an environment, a jurist might practice law for a lifetime without ever encountering a dispute involving exactly the same sets of laws.

How could a jurist manage to be expert in such a great variety of laws? Wouldn’t such a system be prohibitively inefficient and expensive? Not necessarily. It all depends on the information tools available. If the million different voluntary laws can be translated into a uniform logical language to create expressions that can be mapped onto a hierarchy of finely-grained subject areas, the process might go something like this: The claimant identifies the law on which the claim is based. The defendant identifies affirmative defenses. The jurist, assisted by automatic translation algorithms, translates the submitted laws into the uniform logical language. Once the submitted laws are translated, the jurist assisted by automatic mapping algorithms maps the laws into the subject area hierarchy. Broader, more general laws may map into more than one subject area category, and more particular laws into fewer areas, or into only one subject area. Using the subject area hierarchy, the jurist identifies the corresponding laws adopted by each of the adverse parties, and any earlier laws adopted by the parties in the same subject areas. If there are no corresponding laws found, the jurist may determine that one of the parties is an outlaw in the subject area and inform the parties that the case cannot proceed unless the parties agree on the law to be applied. If corresponding laws are found, the jurist applies a conflict of law analysis, for example TROTWET, to identify the applicable laws of the case.

What might cause a million different voluntary laws in a hundred different languages to be capable of translation into a uniform logical language? No special cause is needed; the capability is inherent in the semantic character of language itself. Some expressions may be more easily translated than others. Economic pressure would cause most laws to be expressed in a readily translatable form, because choosing such forms saves resources (e.g., money) without putting any constraints on what may be expressed. Providers of services for conveniently selecting and publishing adoption of voluntary laws would, under market pressure, offer services enabling virtually any law to be expressed in a form that can readily be translated and mapped onto a standard hierarchy of subject areas. If they did not, other providers would eventually replace them.

Some laws may include semantic content that is not found in other laws, which therefore cause the law to be mapped to a unique subject area. For example, the laws of Amazonian jungle tribes might include concepts with no equivalent meaning outside of the Amazon, such as laws relating to things or events that are peculiar to that river basin or culture. Laws that exist in a unique subject area cause every person not adopting the law to be an outlaw in the subject area. To avoid inadvertently falling into an outlaw status, a prudent traveler might prepare for a journey by researching unique subject areas that are predominate along the planned trail, and adopting suitable laws in those subject areas beforehand. In the alternative, a reasonable traveler, if unexpectedly sued under a unique law in a place where the unique law is customary, might agree to resolution of the dispute under the customary law instead of taking chances on extra-legal resolution in a strange location.
If a law in a unique subject area is not customary, a defendant sued under the odd law would have little incentive to agree to resolution under it, and might happily remain an outlaw in the odd subject area.

To use a rather silly example, suppose “Jester” adopts an odd law that any person found with more than a tenth gram of lint in their navel must pay a fine to the discoverer of the lint. He goes about the beach with a portable scale, discovering navel lint and serving notices of complaint to the bathers. No reasonable bather would bother responding to such a complaint, presuming Jester is alone or nearly alone in adopting what is truly an odd law. The reputation of an outlaw stings only when the subject area is customarily a subject of law. Depending on Jester’s law and actions, some might respond by suing him for something akin to malicious prosecution, invasion of privacy, or assault. Navel-gazers like Jester gain nothing but notoriety and increased risk of liability by complaining over legal oddities. However, to be socially fashionable, funny, or for other non-economic reasons, some might choose to respond to news of Jester’s odd exploits by proactively adopting their own laws on the subject of navel lint, for example, defensive laws expressing that no fines or other liability shall be assessed for navel lint, regardless of amount, or retributive laws assessing fines for examining the navels of others without express written permission. Given the ease with which voluntary laws can be adopted, and the character of wit at play, a degree of harmless frivolity should be expected to naturally arise. More significantly, as social consciousness evolves laws in subject areas initially thought to be odd may grow in popularity to become customary, and customary subject areas may grow to become odd.

It might be wondered whether a logical dilemma arises when a broadly-written law spanning several subject areas is asserted against a defendant (or conversely, a broadly-written affirmative defense is raised against a complainant) who holds more particular laws categorized in separate subcategories. Which of these more particular laws should the jurist select as the opposing law? There is actually no dilemma, assuming the jurist analyzes the case under TROTWET. If the complainant’s law is broader, the complaint must be decided under the particular subject area of defendant’s law that is most applicable to the facts of the case. Therefore the complainant’s broader law will apply only if it results in less liability than defendant’s law, under the facts of the case. Conversely, if the defendant’s law is broader, one of complainant’s laws that is applicable under the facts of the case will apply only if resulting in less liability than defendant’s law. If laws held by the same party in different subject areas are equally applicable to the case and result in exactly the same liability, it makes no difference which is applied. The same analysis applies for affirmative defenses, the only differences being that the most applicable one of complainant’s more particular laws will govern the choice of law when the complainant holds more particular laws, and as between complainant’s and defendant’s laws, the affirmative defense that results in the greatest liability for the defendant is the chosen law.

As illustrated by the foregoing, modularity in voluntary law provides the important function of enabling efficient conflict resolution among adopted laws of arbitrarily large diversity, guides development of law by motivating the development of standard subject area hierarchies and readily-translatable forms of expressing laws, and facilitates social experimentation both in defining new legal subject areas and phasing out archaic subject areas. It cannot be imagined beforehand what forms these evolving new aspects of voluntary law might take, in any but the vaguest form. It is hoped that these words will help others glimpse the potential for amazing new forms and expressions of law that will only faintly resemble the oppressive laws of the present day, and that will enable the light of justice to shine more brightly than possible ever before. Modularity has other uses in harmonizing with non-voluntary legal systems, which will be discussed later.

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Due Process, Introduction To Voluntary Law (Book), Voluntary Law

Due Process and Judgments

350px-Uncyclopedia_dispute_resolution
Due process is at the heart of any legal system. It is what differentiates the rule of law from the arbitrary exercise of power, requiring legal process as a precondition to all coercive actions to restore property, exact revenge or punish damnable behavior. Voluntary law shares this basic attribute with idealized statist legal systems. It differs from statist legal systems in how due process is defined. Lacking any central authority, definition of due process in voluntary law emerges out of the power and responsibility of each individual to publish their chosen law. Failures to apply due process are recognized by comparison to minimum standards that are defined by the participants in the voluntary system.

For most civil dispute resolution, and absent an undue amount of meddling by governments, due process is easy. As due process provided by government courts has often failed to meet public demands, for those litigants able to afford alternatives, numerous private organizations have sprung up to provide it. Such market-based arbitration services have created their own rules for due process, directed at resolving disputes using a form of legal process agreeable to their clients. At least for clients possessing comparable economic power in the market for arbitration services, such privately made and voluntarily accepted rules for legal process are deemed fair and efficient.

Disputants under voluntary law are no less free to select a particular resolution service or set of private rules in advance of a dispute arising, for example as part of a contract. In other cases, litigants may elect to submit non-contractual disputes to private process, for various reasons. Resources for private due process already exist in many places, which are capable of resolving disputes under voluntary law, and willing to do so, for a fee. Voluntary law members may make use of these existing resources. The rules under which a case is decided make no difference to a private arbitrator. The private judge is as happy to decide the case under the rules of Mickey Mouse as under California law. The California courts may treat a private judgment rendered under the law of Mickey Mouse differently from one purporting to comply with California law, or may regulate private judges, but these aspects concern coexistence with state law, and are subjects for a different chapter.

A bit of housekeeping: this book refers to a voluntary law judge (or in the broad sense, a panel of judges) as a “jurist,” and a state-regulated private judge (or panel of judges) as an “arbitrator.” These labels are a bit “arbitrary” – pardon the pun – and merely serve to make distinctions when necessary. There is nothing to prevent a jurist from also being an arbitrator, or an arbitrator from also being a jurist; but not always at the same time. In a thriving voluntary law ecosystem, a great many jurists will not be arbitrators; some may choose to be.

Jurists are by definition ruling only on the published choices of the litigants, outside of state-based laws, and may be assigned to different judicial tasks depending on the applicable due process rules. For example, some jurists may operate more like a common-law judge, overseeing courtroom procedure and leaving the development of evidence and legal theories to the competing parties or their advocates. Others may operate more like civil-law investigative judges. Still others may operate more as mediators or peacemakers. Some may resemble or act as members of a jury. There are no particular constraints beyond the choices and expectations of the participants and other stakeholders, economic factors in the marketplace for judicial services, and basic elements of due process. New and more efficient ways of fairly resolving disputes may be developed and flourish in the environment of freedom from central authority that voluntary law provides. On the other side of the coin, the lack of central authority and established laws governing due process creates risk at the early stages of voluntary law development that should be recognized and managed.

Whatever task they are performing, jurists operate under rules determined entirely by the community of voluntary law members whom the jurists serve, without deviating from voluntary law. Accordingly, a state or other authority can have no power to determine who may, or may not, act as a jurist, or what due process under voluntary law must consist of. When a jurist breaks voluntary law to comply with a state or other collectively-determined law, she is no longer acting as a jurist, but as an arbitrator. If the jurist is able to rule on a case while complying both with voluntary law and with applicable state laws, any distinction between arbitrator and jurist is without a difference.

When the defendant and claimant agree on the choice of jurist, and do not contest the propriety of the process used by the jurist to arrive at a judgment, due process is easy. The voluntary choices of competent litigants are simply respected, without question. Not every case will be so easy. Problems arise when the litigants do not agree on the selection of a jurist or legal process, either because of disagreement or some mental incompetency. This chapter suggests some solutions to these fundamental problems of jurisdiction, venue and conflict of due process rules, which are not inconsistent with the basic principles of voluntary law. Other problems arise when a litigant alleges that the jurist was not neutral, did not follow the agreed process or erred in application of the law, and therefore arrived at an improper judgment. These problems are treated in the next chapter on juristic quality and appeal. Some less fundamental aspects of due process, for example, justice for the poor and judgment on unopposed claims, are discussed in Chapter Six.

Due process in the context of voluntary law raises distinctly different issues than due process under territorial governments. Unlike territorial monopolies on governments, participants in voluntary law systems need not be unduly concerned with protection of litigants from the overwhelming monopoly power of the state. Instead of struggling over what the definitive, proper standard of due process should be for government, voluntary law societies must deal with the question of how to deal with conflicting standards for procedural due process, and members’ failure to specify a standard.

Much has been written about procedural due process under statist models. The present introduction can neither fairly cover that legal landscape, nor begin to fully develop the even richer possibilities under voluntary law. Within the more limited scope of this introduction, a list of procedural due process elements by a respected statist judge makes for a worthy comparison. Federal Judge Henry Friendly once provided such a list: a unbiased tribunal; a notice of proposed action and grounds asserted for it; an opportunity to present reasons why the proposed action should not be taken; the right to present evidence, including the right to call witnesses; the right to know opposing evidence; right to cross-examine opposing witnesses; the right to a decision based exclusively on the evidence presented; an opportunity to be represented by counsel; a record of the evidence presented, and written findings of fact and reasons for the decision, prepared by the tribunal; a right of appeal; and at least for criminal trials, a right of public attendance. Henry J. Friendly, “Some Kind of Hearing,” 123 U. Pa. L Rev. 1267, 1310-11 (1975). Whatever the merits of such lists, they depend on beliefs that state-organized tribunals acting on matters of state interest can be unbiased, and that a state monopoly over judicial process is either desirable or necessary.

That is, those who place trust in state sovereignty assume that the first item in the list – neutrality – can be provided by authority of the state, at least if made sufficiently responsive to public opinion. Statists therefore are prone to busy themselves with identifying and debating the factors that procedural due process entails, and which the state should purport to implement uniformly. Indeed it is not hard to think of other items to add to such a list, and debate the exact form such factors should take. For example, factors such as a right to a jury trial, statement of applicable law, a convenient forum, a source of law independent of the tribunal, might be added to Judge Friendly’s list, in some form or another. However long or detailed such a list becomes, in actual practice each item is tainted beyond repair by bias in the tribunal. If the tribunal is biased, all other factors become mere props in a theatrical display for providing an appearance of due process where it cannot possibly exist. Naturally, no mechanism is better suited for ensuring that bias is inserted into due process, than one in which all right and authority, including judicial authority, is centralized in a monopolistic actor. Such centralization and subjugation of judicial authority to a central power source guarantees that the judges thereby empowered will never rule against whatever source grants them their power. The more centralized state judicial power becomes, the less neutrality can possibly be exercised, and the more fruitless theoretical discussions of due process factors are rendered.

On the other hand, if the tribunal is truly unbiased, wise in the understanding of applicable law, and seeking to do justice according to it, the tribunal may be trusted to flexibly adopt whatever due process tools serve the interests of the case. In the hands of a competent and neutral jurist, lists of due process factors are merely items in a flexible toolset for quality control. The particular tools in the toolset may vary from case to case, depending on the preferences of the parties. Voluntary law imposes no particular requirements on due process other than that a publicly discoverable set of rules is defined for just resolution of conflicting laws in the context of any arbitrary dispute, based principally on the content of the laws that are in conflict, and the times at which adopted by the parties to the dispute. This law of conflict resolution applies to differences in standards for procedural due process, just as with substantive rights. Similar balancing principles, such as TROTWET, may be called into service, to deal with cases where the parties adhere to different rules of procedural due process. These principles are subject to a special precondition: just adjudication in every instance requires a neutral jurist competent to apply the applicable substantive and procedural laws, and determine what the evidence shows. The jurist cannot be biased or arbitrary. The law must be applied in a neutral and reasonable manner, or it is no law at all.

Fortunately, voluntary law maximizes the chances that adjudication will be both neutral and competent, by denying particular grants of judicial authority to any person or collective. Instead, any person desiring to be recognized as a jurist must earn a reputation for neutrality and competence in the application of law, by serving the needs of litigants in an open market. This open market is highly regulated by its openness to all providers, lack of entrenched market positions, and transparency provided by sharing of reputational information among law enforcers and litigants. Jurists who are unable to settle disputes efficiently and render durable judicial opinions are quickly flushed out by and replaced by more competent jurists. By definition, voluntary law prohibits any capture of the market for legal services, and by enforcing competition in the market for juristic services provides a reasonable basis for assuming, in the general theoretical case, that a sufficient supply of neutral and competent jurists will be available.

Therefore, the main due process issues in voluntary law arise out of conflicts between due process rules of disputants, and cases wherein one or both disputants fail to adopt any cognizable due process rule. To solve these problems logically, the significance of personal adoption of rules for legal process, in a legal system lacking central authority to establish due process rules, must first be understood. Consistent with personal sovereignty and voluntariness, a person adopting a particular set of due process procedures is telling other users of voluntary law what minimum process she will follow when prosecuting her own claims, and what she will likewise accept as sufficient if exercised against her. She cannot dictate to another what process must be followed when prosecuting a claim against her. Such dictatorial powers would undermine voluntariness, as expressed by the principle of Defendant’s Law introduced in the preceding chapter. The question for conflict of due process scenarios therefore boils down to this: what is the significance of judgment rendered after some due process that is less than acceptable to the defendant? What are the risks to persons enforcing such judgments? What difference does it make if the defendant has cooperated in the hearing of a case according to due process rules other than her own, without expressly waiving objections to the process used?

First and foremost, how can a claimant avoid all the uncertainty and headaches posed by these questions? Quite easily. Simply follow the defendant’s choice of due process rules, if she has made one prior to initiation of the action. If she has not made any choice, and if she will not agree to a reasonable process of law for resolving the dispute at hand, follow a standard set of rules that are conventional for persons in the circumstances of the defendant, based on the advice of a neutral and respected jurist. Do either of these, and avoid serious challenges to the desired judgment on due process grounds.
The defendant cannot hold others to a higher standard than he holds himself. That’s an expression of the No-Hypocrisy principle. Therefore any person who expects to ever find himself in the position of claimant will take care not to adopt overly-onerous due process rules. Even if restrictive due process rules are later abandoned in favor of a more liberal, prosecution-friendly set of rules, any hint of opportunism in the change will taint the changeling’s reputation and right to use the more liberal rules. If there has been any detrimental reliance by a defendant on a claimant’s prior adoption of stricter due process rules, the claimant cannot justly exploit any benefit of the more liberal rules against a defendant. In the usual case, there is no such benefit to be had from one’s own rules when pursuing a claim anyway, because it is defendant’s due process rules that receive priority consideration.

Moreover, a claimant who ignores his own stated due process rules to prosecute a case against another with more liberal due process rules blatantly commits a foul of hypocrisy, which will render any resulting judgment unenforceable. The principle of No-Hypocrisy cannot be ignored for due process rules without throwing the dispute resolution system into imbalance. These imbalances include encouraging any who are likely to be claimants and unlikely to be defendants to adopt overly restrictive process rules, at little personal risk. The imbalances further include requiring different process rules to be followed in cases involving cross-complaints where the parties have adopted different rules. If the No-Hypocrisy principle is applied, both the complaint and the counter-complaint will be decided under the more restrictive set of process rules, in a sort of TROTWET outcome. If the No-Hypocrisy principle is not applied, the claim and counter-claim are made subject to different and perhaps even conflicting process rules, raising difficult if not insoluble complexities for jurists, parties, and anyone who must evaluate the validity of the resulting judgments. These imbalances should be avoided.

Application of the No-Hypocrisy principle to due process rules does, however, raise the question of who should pay for the incremental cost of following a claimant’s more demanding due process rules, in cases where the defendant has adopted laxer rules. The answer is clearly and justly the defendant, because it is the defendant in this situation who holds the power to waive the claimant’s process rules and allow use of a less rigorous process. The defendant will make such waivers when she perceives the waiver to be in her own best interest. For example, if the stakes are not too high and the risks of losing are considerable, she may waive application of the No-Hypocrisy principle and allow a less expensive process to be followed, to reduce her exposure to litigation costs. Conversely, if the stakes are high and the risk of loss uncertain, and she therefore chooses to hold the claimant to claimant’s own higher standard, it is just to hold her responsible for resulting costs, if she loses despite the more rigorous process.

Voluntary law, resting as it does on recognition of the person as the sole and exclusive moral justification for sovereignty, demands foremost consideration to restitution over other forms of justice. Although restitution is not necessarily the exclusive principle of justice in voluntary law, an injured claimant cannot be restored to her original state without it. Nor can one negligently accused recover his losses unless the burden of legal process is shifted to the losing claimant. If only for the purposes of the present chapter, it may be assumed that in the general case, the loser will pay the process costs. More thorough treatment of “loser pays” has been done elsewhere and its application within voluntary law deserves more detailed consideration than can be given in an introductory book. It is mentioned here as a general principle of restitutionary justice that comes into play when considering balancing of conflicting due process rules. It is not presently proposed as an unbendable rule for all cases, whether or not such status is deserved. On the contrary, cost-shifting rules such as “loser pays” are well within the voluntary power of each person to choose.

Faced with the costs of overly protective due process rules as outlined above, the only reasonable people who will adopt extremely protective due process rules are those who know, or firmly believe, that they will never need to bring an action against another, nor will ever lose a suit brought by another and thereby be responsible for the costs of suit. Such persons will either be those who, for spiritual reasons, renounce all legal process and material possessions; or those whose extra-legal powers are so great that they see no need to follow any legal process, ever. Both such classes of persons will be outlaws by nature, and will not bother with the niceties imposed within voluntary legal systems, least of all subscribing to elaborate defensive process rules.

On the other hand, the voluntary law member who adopts overly non-protective due process rules is taking on risk with no commensurate benefit. Imagine, for example, a standard that appoints the claimant as sole jurist and requires submission by all defendants who cannot prove the falsity of the claim by verified video records. Such a person is declaring “open hunting season” on himself, at least by anyone with similarly lax process rules. In return, the only benefit received is the ability to pursue similarly litigious people in a sort of feeding frenzy. There may be a few people who enjoy this sort of high-adrenaline existence. If such people exist, their adoption of very loose standards will keep them well occupied litigating against each other. Their loose rules will provide them no benefit when bringing a claim or defending against a claim by another with more reasonable rules, under the principle of Defendant’s Rule.

There is, however, a great benefit to a person for adopting process rules that are efficient as well as just. Doing so will enable the person to waive more restrictive process when in the position of defendant it is prudent to do so, to avoid exposure to excessive litigation costs. Meanwhile, the efficient process is also available when pursuing a claim against others with similarly sensible rules. Care needs to be taken that justice is not sacrificed to efficiency, but voluntary systems will reward selection of just and efficient process rules, and allow development and discovery of such process rules through an environment of unrestricted innovation. This innovation will undoubtedly limit the ability of legal service providers to generate unnecessary fees. Such an outcome would be an unmitigated good. Economic and “game theory” pressures will tend to drive most people to adopt process rules that are believed just and efficient. These rules may be fairly sophisticated, and allow for different processes to be used for different types of cases – in a sort of analogy to distinctions between civil and criminal procedure in statist legal systems.

Selection of a jurist and forum for resolution of a dispute are aspects of due process rules. Voluntary law members will be discouraged from specifying overly narrow conditions for selection of a jurist and forum, lest they be held to those conditions when pursuing others, under the No-Hypocrisy rule. A further disincentive is provided by the same social pressures applicable to public adoption of substantive laws: members will not want to mark themselves as overly difficult to deal with. Overly lax requirements will likewise be avoided, for the same reasons as overly lax process rules. Exactly which requirements should apply to jurist and forum selection are unknown, and are free to develop and evolve under the same pressures favoring fairness and efficiency as other due process rules. Nonetheless, it is interesting to contemplate what transpires when claimant and defendant cannot agree on a selection of jurist or forum, whether or not the disagreement is reasonable. There are two basic situations: first, the claimant selects a jurist or forum that does not reasonably comply with the applicable process rules. A competent jurist will not willingly accept the case under such conditions, as it would sully the jurist’s reputation to render a judgment that is facially invalid. Second, the claimant selects a jurist or forum that does reasonably comply with the applicable process rules, and the defendant unreasonably objects. In the second case, a competent jurist will dispose of unreasonable objections, and preserve the validity of the process. In the first case, it may sometimes happen that no jurist or forum is available to hear a case. In such cases, the claimant may publish the claim and wait for the market to provide a suitable jurist and venue. There can be little doubt that current and prospective legal service providers would monitor published claims carefully, and rush to satisfy any substantial market demands.

Despite market pressure towards juristic economy, conflicts between process rules may nonetheless arise in the “great middle” between conflicting parties with different cultural or practical beliefs about what constitutes fair and efficient justice. The task of evaluating different process rules may therefore not infrequently fall to a voluntary law jurist. If defendant and claimant cannot otherwise agree on a set of due process rules to follow, the jurist must examine the different rules brought by each, and determine which of these is the more burdensome to claimant and more protective of defendant.

In many cases, protective burden may be directly correlated to economic cost. For example, three jurists are more protective than one, and about three times more expensive. Proof beyond a reasonable doubt is more protective than preponderance of the evidence, and more expensive to prove. Lengthy and complex discovery rules are more protective, and also more expensive. It is difficult to think of more protective practical rules that are less expensive than laxer counterparts. Consider some impractical counter-examples: suppose one rule states that three jurists be used, all of whom must be unpaid volunteers, and the conflicting rule requires only one jurist and is silent regarding payment. In that case, the rule specifying one jurist is less burdensome, even if payment is made, because the example as stated does not require that the jurist under the second rule be paid. Supposing the second rule requires a minimum payment to the jurist, the answer is less clear.

These are the sorts of questions that may be analyzed and argued by professors in the law schools of the future, if voluntary law is ever adopted in a widespread manner. Entire schools of thought may develop to resolve these questions. Or not; perhaps these problems in practice will be few and readily solved, due to social and economic pressures for adoption of reasonable due process rules, a tendency for parties in conflict to agree on ad hoc process rules in most cases, or for other reasons. Nonetheless, the basic approach of adding up and comparing the total economic costs of different due process rules has an appealing simplicity and practicality that may encourage its use to resolve conflicts in process rules. Detailed approaches can and perhaps should wait for actual cases, before being developed much further. Conflict of process rules is peculiar to voluntary law, and there are few or no close analogs in traditional systems, which consistently apply the process of the forum claiming jurisdiction over the dispute. Therefore, new approaches will need to be developed to satisfy the demands of voluntary law.

Having considered an overall scheme for resolving conflicts between process rules in some detail, let us revisit the questions posed earlier in the chapter. What is the significance of judgment rendered after some due process that is less than acceptable to the defendant? Under the rule of Defendant’s Law, such judgments are not valid, presuming that “less than acceptable” means “not compliant with defendant’s publicly adopted process rules.” What are the risks to persons enforcing such judgments? If the non-compliance is or should have been apparent to the enforcer, the enforcer will be liable for negligently or maliciously enforcing a facially invalid judgment. What difference does it make if the defendant has cooperated in the hearing of a case according to due process rules other than her own, without expressly waiving objections to the process used? If the defendant has had an opportunity to object to the process followed, and has not raised any objection, this might or might not be considered as equivalent to express waiver, depending on local juristic customs or the stated voluntary law of the defendant. If the customs or stated laws clearly require an express waiver of defendant’s process rules, the claimant who proceeds without obtaining such waiver does so at his own peril.

What about failures to adopt any due process rule?  If the defendant has neglected to specify any due process standard, it is much more difficult for her to reasonably complain about being subjected to a legal process not too her liking.  If both parties have neglected to adopt any due process rules, they will have to agree on a process for resolving the dispute at hand, or forgo access to a legal resolution.  Virtually everybody will adopt default process rules, once these realities are understood.  There is no reason not to.  If the failure is due to some mental disability, this is a special case.  Treatment of mentally disabled people is discussed in Chapter Six, but the solution lies along the lines of delegating legislative power for the disabled person to an advocate, such as a parent, spouse, guardian, or partner, capable of adopting an appropriate law on the disabled person’s behalf.

To summarize, the power to accept or reject due process rules remains within the sovereign power and responsibility of each person, under voluntary law. Expert jurists may sometimes develop and promote due process rules, and may even require their customers to accept their rules as a condition of hire in particular cases. Nonetheless, due process law remains within each individual’s sovereign power. This power, exercised in a decentralized unencumbered free exchange of laws and legal services, may be expected to lead to development of more just and efficient processes for administration of justice.

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Conflict of Laws, Introduction To Voluntary Law (Book), Voluntary Law

Resolving Conflicts Between Voluntary Laws

Weaker tool 3

People by nature hold different moral and cultural preferences, often very deeply so.  In a system that enforces the principle that no law is legitimate unless previously voluntarily adopted by the person on whom it is enforced, people holding to different voluntary laws therefore must coexist.  These people are not separated from one another by territorial boundaries.  Conflicts between people holding to different laws are  inevitable, in such systems.  If two persons cannot agree on the law to apply in a particular case, or a way to settle disagreement on the applicable law, they are foreclosed from access to the law.  Generally accepted “default” conflict of law rules are fundamentally useful, in the absence of any particular agreement on the matter.  This chapter discusses some of the possibilities and advocates for one approach to resolving conflicts believed to be optimal in both moral and practical senses.

Voluntary law without any universal conflict of law principles is feasible, but would restrict operation of each law to a single society of people who have adopted the same law.  The power of voluntary law to expand beyond the narrow scope of traditional private law and eventually displace current collective monopoly forms of governance depends in large part on widespread understanding and acceptance of universal (or “nearly universal”) principles for resolving differences between the voluntary laws brought by parties to a dispute.

In addition to conflicts between voluntary laws, conflicts may also arise between voluntary law and state laws.  The former type – voluntary law conflicts – are capable of being resolved entirely within voluntary legal systems.  The latter type concerns coexistence with state systems, which is a different subject entirely and treated in a different chapter.

In a legal system with no territorial authorities, wherein each person is free to choose her own law,  is it possible for rules resolving differences between laws to exist that both prevent the imposition of laws on those who reject them, and do not undermine justice?  This can be approached as a problem of game theory.  Superficially, it might seem that no fair solution could exist.  The possibility for unresolved conflicts of law is a stumbling block that might prevent many from considering voluntary law as a viable legal system.  But it takes just a little thought to see that the conflict problem in voluntary law can be solved by logical consideration of personal incentives in the context of social behavior.  It just requires thinking about law in ways that most people are not accustomed to.

The inquiry into a suitable solution begins with the  standard of justice.  Justice requires reciprocity, meaning that each are judged under the same measure as each would judge others. That whatsoever a person metes out, is meted back.  The opposite of reciprocity is hypocrisy.  Hypocrisy exists whenever people would apply different rules to the conduct of others than they would apply to their own.  Hypocrisy undermines justice.  If everybody follows the same law, which is always applied with perfect justice and uniformity, hypocrisy cannot exist.  Under an authoritarian system, it can be pretended that the same law is imposed on all. This is a logical solution to hypocrisy, although horribly idealistic and impractical. Those in power are never subject to the same laws they impose on others, either openly by making laws that will never be applied to themselves, or secretly by corruption. In a system of voluntary law societies, the fiction and fantasy of equal justice under one standard law is rejected.

Instead, members of voluntary law societies will sometimes face the dilemma of choosing the law to apply in a dispute between persons who hold to conflicting laws, without consideration of any overriding territorial authority contrary to the published voluntary choices of the parties. Under the basic principle of voluntaryism, we must generally apply the defendant’s law to prevent the defendant from being judged by a law she did not adopt.  This might be called the principle of “Defendant’s Law.”  The claimant has no right to expect that others must follow his law, but only that the defendant should follow the law that she has openly adopted.  The requirement to apply the defendant’s law opens the door to opportunistic adoption of law in pursuit of hypocritical ends, by overly clever prospective defendants.  For example, a person who owns no property of a certain type may refuse to recognize property of such type held by others, up until the person acquires such property, and which time the person adopts a law respecting the property type.

To disincentivize opportunistic adoption of law by persons set on reaping a harvest of hypocrisy, defendant’s rule can be tweaked to impose the most severe law — the “Law of Greatest Liability” — adopted by the defendant at any time since just before the legal complaint at issue first arose.  Defendant’s “choice” should not be based on an opportunistic selection made with a particular claim in mind. Instead, the choice should be determined by which law or laws the defendant has adopted at any time since just before the earliest event giving rise to the claim, or since some other earlier time.   For example, a person who changes their law to recognize a new class of property or other rights that the person previously trampled on might open herself up to claims based on the new law for her past conduct back as far as the applicable statute of limitations reached.  If so, anyone planning to change their adoption to recognize a new class of rights would take care to avoid infringing those rights for a sufficient period of time before such change.

These two principles, combined as “Defendant’s Law of Greatest Liability” rule are a serviceable start.  This rule creates disincentives for opportunistic adoption of lenient laws to escape liability for planned evil deeds.  Some potential for unfairness or abuse remains, however.   Under this rule, persons adopting more severe laws are vulnerable to being sued by those who have made themselves invulnerable, or less vulnerable, by adopting less severe laws.  Allowing claimants to hold others to more severe standards than they hold themselves would create too much pressure for all to adopt laws of minimal or no liability.  If all did so, the usefulness of the law for proscribing appropriate remedies for wrongs would be undermined, and the law’s ability to provide incentives for legal settlement instead of extra-legal direct retribution would be destroyed.

To avoid this outcome, claimants may be barred from enforcing any law of greater liability than the claimant has adopted. This might be called a “No-Hypocrisy” rule.  Such a rule would prevent people from reaping the benefits of a law that they themselves do not recognize. The No-Hypocrisy rule holds, in other words, that if (and only if) the “Defendant’s Law of Greatest Liability” results in greater liability than the “Claimant’s Law of Least Liability,” then the dispute must be decided under the “Claimant’s Law of Least Liability.”

Generally speaking, applying the “Defendant’s Law of Greatest Liability” and “No-Hypocrisy” rules together is almost logically equivalent to simply applying the law of least liability between plaintiff and defendant in any given circumstance, but not exactly so. For if the plaintiff’s “law of least liability” results in greater liability than the defendant’s “law of greatest liability,” then the defendant is held to the law of greatest liability adopted by defendant during the relevant time period, which may result in greater liability than some less severe law adopted by defendant during the relevant time. Nonetheless, except for the foregoing circumstance, it will usually be the case that the least severe law held by claimant or defendant during the relevant time period will be the law applied.

It is therefore convenient if not completely accurate to refer to this system for resolving differences between laws as the “Rule of The Weakest Tool.”  Each party to a dispute may bring “offensive” weapons, that is, laws that entitle the party to some form of legal relief, sometimes called “positive laws.”  The claimant brings a claim based on some law adopted by the claimant, and the defendant will either have some some law covering the same issues, or will not recognize the legal right claimed by the other party entirely.    Each party to the dispute may bring “defensive weapons,” sometimes called “affirmative defenses,” that provide exceptions to positive laws.  Under the Rule of the Weakest Tool, the jurist examines the positive laws and affirmative defenses brought to the conflict’s “weapons pool,” excluding all but defendant’s strongest positive law, claimant’s weakest positive law, defendant’s weakest affirmative defense, and claimant’s strongest affirmative defense from the pool.  In many cases, the parties will not bring multiple weapons of the same type to a conflict.  In such simpler, more typical cases, the jurist’s job is easier.  There is less or nothing at all to exclude from the pool, which simply contains the applicable laws from each party.

For positive law, the weaker law is the one that, when applied to the facts of the case, would result in the lesser liability for the defendant.  For affirmative defenses, the weaker law is the one that results in greater liability for the defendant;  that is, the weaker defensive law is the weaker shield.  From the case’s “weapons pool” the jurist selects the weakest positive law, and the weakest affirmative defense, as the law of the case.  Where the weaker of two laws is unclear at the outset of a case, the case may be tried under both laws and the weaker law identified after liability under both laws have been calculated.

A refusal by the defendant to recognize the positive right claimed by the claimant will negate that right entirely, assuming that the refusal complies with “Defendant’s Law of Greatest Liability” and with the requirements for effective adoption of voluntary law.  The refusal need not be expressly stated.  It may be inferred from a silence of sufficient clarity on the right in question.  For example, a statement that no property right can be attached to information of any kind is as effective as a law that recognizes rights to tangible property only and is completely silent on all other types of property right, when it comes to negation of intellectual property law claims.

Under the Rule of the Weakest Tool, all parties have an incentive to adopt sufficiently severe laws to afford themselves reasonable remedies for infringement of the rights they care about.  When people adopt laws that provide for reasonable penalties, they provide an incentive for those they have wronged to seek legal remedies instead of extra-legal remedies.  Having stated the rule, some examples will help illustrate its operation.

Suppose, for example, that Cain adopts a law in which there is little or no penalty for murder, and then murders Abel (who, like all of his family, has adopted a law with severe penalties for murder).  In such case, Abel’s family can legally find no justice or satisfaction under Cain’s law. They may, however, extra-legally murder Cain in retribution, without putting themselves at any greater risk of legal liability than Cain. Anyone bringing a legal action on behalf of the slain Cain would be limited to the “law of least liability” adopted by Cain during the relevant period, which is the time from just before Cain murdered Abel until Cain was himself murdered by Abel’s avengers. It’s quite easy to see why Cain could not rationally expect that adopting an overly lenient law would be of any personal benefit in securing his own safety and happiness.

Such would be true, unless by some extraordinary means Cain is immune from being murdered. Acquiring such immunity may be presumed impossible without the intervention of a state or similar evil.  When an aggressor is practically immune to retribution (for example, by being “judgment proof”), the “impossibility problem” is at work.   The impossibility problem primarily comes up in the context of property claims but not, in any practical sense, in the context of claims for bodily or personal harms.  Impossibility of retribution may be a problem even for personal safety, where state or state-like (e.g., organized crime) powers grant practical immunity from extra-legal retribution.  But this is a problem caused by state aggression; it is essentially a problem of dealing with outlaws, and is not a problem between people who follow the principles of voluntary law.

The more interesting problem that exists more squarely within the context of voluntary law is that of differing property rights.  In this area, voluntary law provides new and flexible solutions to age-old problems rooted in property claims. The impossibility problem is a present reality for claims based solely in property rights, for the simple reason that not everybody holds the same types of property. While virtually everybody has personal property of some kind, some may own no real property (e.g., land), or no “intellectual property.” Consider, for example, the case of copyright. Creators of books and so forth might prefer the ability to make claims against those who copy their works without permission.  Some consumers of creative content, on the other hand, might generally favor no such penalties for copying the works of others. Under the principle of reciprocity, there is no way for a content creator to enforce a copyright claim against someone who refuses to adopt copyright law.  The prior chapter pointed out how the publication requirement nonetheless provides the content creator with certain protections from those who refuse copyright laws, because voluntary law society members who reject copyright laws must identify themselves. Whether that outcome is good or bad, it provides an example of the impossibility problem at work.

What about people who reject all real property claims, even personal property claims?  Again, the publication requirement provides a check against insincere adoption of property laws.  Suppose Willy the Wanderer adopts a law that rejects all real and personal property laws.  Such a person is inviting theft – actually, such person does not recognize theft as a possibility.  Willy therefore cannot be charged with trespass or theft, but neither can obtain protection of the law for any belongings that others may desire, and will be left only with things that nobody else wants.  If you do not want Willy sleeping in your house, lock the door — he will be unable to acquire the tools to break and enter.  If you find him sleeping in your unlocked garage, he cannot be charged with an offense under voluntary law.  You might have to lure him out with the promise of a hot meal, and then secure the garage, if you please.  If he defends his possession of the garage with force, he is breaking his own law, and if he threatens you in the process it may well excuse you from bodily harm to Willy caused by your actions in self-defense.  If you evict him from the garage with force, you will be responsible only to the extent you have physically harmed his person in the process, without justifiable excuse.  Is this balance of rights and obligations such a bad outcome?  Does it not leave legal room for the the homeless to exist in the undefended spaces, with their personal dignity intact?  Is it not in large part how the humane parts of the world work, anyway?  This extreme hypothetical is actually fairly easy.  Few people would go to the extreme of Willy the Wanderer in their choice of law, but the small minority who did would be free to wander at the risk only of their personal property.  And most sensible wanderers would respect personal property rights, at least.

The best law to be applied when an affirmative defense is raised is not quite so clear. 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? As formulated above,the Rule of The Weaker Tool deprives defendants of their chosen affirmative defense, limiting them to the claimant’s affirmative defense if it is weaker than theirs.  This apparent deprivation of the defendant’s voluntarily adopted law is not what it seems.  The following example illustrates why.

First, a little background. 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 may 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.  It is evident that the distinction is procedural, suggesting this exact distinction may not always apply depending on the chosen procedural rules.  Nonetheless, it should be fairly clear in almost every case whether or not a law is being used offensively as a basis for a claim, or to defend against the claim of another.  The incentives will be the same regardless of hair-splitting over how best to arrive at the proper classification.

Which law should determine the affirmative defenses to a claim, claimant’s or defendant’s? Let’s start with a couple of counter-examples based on the same rule as for positive laws: we shall suppose, for the sake of illustration, that defendant’s affirmative defense applies, unless applying claimant’s affirmative defense would result in less liability for defendant. 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  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 an affirmative defense against claims based on coercive removal. Rich Brother cannot legally 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 the Rule of The Weakest Tool, Rich’s trespass claim would fail because his property right in the vacation home would not be 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, supposing 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 problem of impossible problem at work, working obvious injustice and incentivizing predatory behavior. 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 absolute affirmative defense.

For comparison, let’s see how the Rule of The Weaker Tool plays out in another scenario involving affirmative defenses.

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 a parent of those being defended. Under the Rule of The Weaker Tool applied to 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 reasonable 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 a legal system that permits Defender to effectively appoint herself judge, jury and executioner upon the general public will create an unbalanced and hazardous society.  The law should certainly not prohibit Defender from her meritorious deeds in defense of others, but should also provide her with incentives to act with care while doing what she perceives as good.

Of course, Abuser cannot claim a right to abuse anyone including his own children against their will under voluntary law, because such a law would clearly violate the principles of personhood and voluntaryness.  Abuser may therefore be held fully liable under claims brought on behalf of his freed children. The issue is limited to whether Abuser may exploit the Impossibility Problem to deprive Defender of her affirmative defense, when she seeks to defend Abuser’s children.

Suppose the Rule of The Weaker Tool still applies, 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, unless doing so would permit the claimant to enjoy greater benefits than afforded by claimant’s own law on affirmative defense.  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, without hypocrisy, creates incentives for people to adopt laws of affirmative defenses that will not deprive them of a similar defense if ever needed.  They illustrate the benefits of the Law of The Weaker Tool applied for affirmative defenses as well as positive laws, with the meaning of “weaker tool” suitably adjusted. This should prevent injustice and predation in personal injury cases, where impossibility of reciprocity is not a problem.

In property cases, where impossibility of reciprocity is a common problem, the effects of the proposed rule should be examined. To that end, it is helpful to revisit Scenario ‘B’ discussed above: Luckless versus Rich Brother. Under the Rule of The Weaker Tool, 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.

Unlike claims that are controlled by claimants, the defendants are in control of affirmative defenses.  Thus, the Impossibility Problem coupled with applying Defendant’s Law for affirmative defenses would create incentives for using extra-legal remedies, 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.

The foregoing contrasting examples illustrate how the Rule of The Weaker Tool creates incentives for reasonable behavior.  In the first hypothetical, Rich Brother could not evict Luckless even if both Rich Brother and Luckless had adopted laws recognizing property rights in vacation homes, because Luckless was entitled to his affirmative defense of property. 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, because Rich would be entitled to his affirmative defense based in defense of property. The power to select one’s own affirmative defenses should not create incentives for extra-legal remedies or predatory conduct.

Let us consider some more examples of property law conflict resolved under the Rule of The Weaker Tool.  Suppose one person (Lysander) adopts a law that adverse possession requires open and unchallenged use for a continuous period of three years. Another person (Murray) adopts a law requiring only one year of open and unchallenged use. Murray openly squats unchallenged on Lysander’s land for 2 years, at which time Lysander sues to evict Murray. Murray countersues to claim Lysander’s title.  Applying the Rule of The Weaker Tool to Lysander’s claim, Lysander wins, because adverse possession is an affirmative defense.  Murray is therefore not entitled to his affirmative defense and must use Lysander’s more stringent standard, under which his adverse possession is not long enough to be effective.  However, even if adverse possession could be advanced as a positive law by Murray, he also could not gain title under the the Rule of The Weaker Tool.  Applying the Rule of The Weaker Tool to Murray’s claim, Lysander wins either way. Therefore, Lysander can legally evict Murray if Murray is relying solely on his affirmative defense of adverse possession, and Murray cannot obtain Lysander’s title. If Murray wishes to challenge Lysander’s title, he must find a different basis for doing so.

For example, suppose Murray adopted a law that did not recognize any property claim to fallow land plots of one acre or more, that have gone unused for five years or longer.  Lysander claims hundreds of acres of land, all wild and unused.  Murray fences off five acres within Lysander’s claim and cultivates a farm, basing his right to do so on the positive right of property recognized by his law.  Lysander takes notice and sues Murray for eviction.  Lysander’s claim fails under the Rule of The Weakest Tool, because under Murray’s positive property law, Lysander does not have a legitimate claim to the land Murray has improved.  Conversely, if Murray sues Lysander for title, Murray’s claim fails under the Rule of The Weaker Tool, because Lysander’s property law is weaker with respect to the property claim that Murray would enforce.  That is, Lysander’s law is the weaker tool in the second context, because it results in less damage to Lysander property claim.  Lysander therefore cannot legally evict Murray, but neither can Murray gain title that is superior to Lysander’s.  Just as illustrated by some of the examples involving Rich Brother and Luckless, differences in substantive real property laws can result in stalemates wherein one party cannot legally evict and the other cannot gain superior title.  Murray nonetheless retains an inferior claim which may be recognized so long as the five acres he has fenced off do not go unused for more than five continuous years.

Such stalemates are a feature of voluntary law, not a bug.  Although stalemates might sometime cause inconvenience, in the main they embody an organic balancing between inordinately large or inappropriate property claims by an elite few and the natural property rights expectations of the masses.  Conflicts such as Lysander and Murray experienced do not happen in a vacuum.  Such conflicts occur in a social context with different numbers of people adopting laws on different wavelengths of the property rights spectrum.  The reasonableness of one’s stated position on property law will be judged within prevailing community attitudes, which although allowing for variation and ways of relieving tension between conflicting laws, will render outlying positions practically unenforceable.  To illustrate, suppose Lysander appoints himself as sole supreme emperor and owner of the universe.  By publicly adopting such a law, Lysander has accomplished nothing more than announce to the world that he is a fool not to be regarded seriously.  He has adopted a law that by the Rule of The Weaker Tool renders unenforceable in every conceivable instance.  The more grandiose a claim under voluntary law, the less enforceable it is.

These examples illustrate a foreseeable side effect of voluntary law, including among other things the Publication requirement and conflict resolution such as the Rule of The Weakest Tool: a leveling of property rights or other rights claimed under law, due to pressure from the Impossibility Problem. Voluntary law under the Rule of The Weakest Tool, if widely adopted, may be expected to push enforceable property rights close to a minimum of what the vast majority of people deem acceptable. That minimum will tend to lie at the maximum of what the vast majority of people can realistically hope to own. It will become impossible under voluntary law for durable classes divided between property owners and non-owners to arise. Whenever great inequities arise, those who lack any realistic hope of acquiring a specific class of property will adapt by adopting laws that do not recognize the impossibly remote property claims of the elite. Under the defendant’s rule, the elitist property claims will thereby be rendered practically unenforceable.

These examples only scratch the surface.  Conflict of law is a complex and interesting area of voluntary law, with limitless possibilities flowing from simple principles under different circumstances.  Some issues have not been addressed above, for example problems with determining the “weaker” tool when the remedies afforded by different laws are different in kind, i.e., of different types that are difficult to compare.  Detailed discussion of such more advanced topics may be left for the future.  The great jurists will be those able to cut through all the complexities of the different laws brought, and consistently do evident justice that respects and balances the respective choices of the parties.  Rules such as the The Weaker Tool are not meant to be the final word, or to foreclose all debate on the question of just conflict resolution.  The Rule of the Weaker Tool may, however, represent an idealized optimal solution to the problem of finding a fair and stable balance between the rights of claimant and defendant, within the confines of solutions that are not based on politically-drawn territorial boundaries and other impositions of laws without consideration for the personal choices of each party.

Must the alternatives to resolving conflict of laws be limited to a choice of either defendant’s law or plaintiff’s law? What about some combination of plaintiff’s and defendant’s law, or choosing a third law?  Other conceivable solutions, for example averaging of damages from different laws or random selection, would plainly fail to provide the same incentives for decent and reasonable behavior afforded by the rather straightforward Rule of The Weaker Tool.  Certainly, parties to a particular dispute are always free to agree on some other way to resolve differences between laws they have adopted.  In addition,  the possibility of universal 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 universal set. Where all parties to a dispute have previously adopted the same conflict of law rules, there is no need to use the universal set.  If all parties to a dispute cannot agree to use the same conflict of law rules, the universal set provides the only option for resolving the dispute without forsaking voluntary law entirely.  The universal set of conflict of law rules therefore needs to be neutral, fair and workable enough to gain widespread acceptance as the conflict resolution rule of last resort for any person who would live according to voluntary law.

Variations in the universal 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 voluntary laws may become much less predictable, undermining incentives for adopting them.

In the absence of any 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 decentralized, atomistic 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, and will tend to drive people with different beliefs apart instead of encouraging peaceful acceptance and commerce despite differences in world views.  Only time will tell if or how universal conflict of laws will evolve in voluntary law, but one possibility is for majority communities of voluntary law societies to emerge holding to their own “almost-universal” conflict of law principals, with minority voluntary law societies either using minority conflict resolution rules, or isolated without any consensus conflict rules.

At this nascent stage, nothing seems better suited for resolving conflicts between personally adopted laws than the Rule of The Weaker Tool.  Nor is there any room for serious doubt.  This Rule, if widely understood and adopted, is capable of facilitating commerce and mutual respect between people of different beliefs, without requiring that any person bow to authority higher than their own sincere moral lights.  THAT is a most remarkable invention.

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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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Future of Voluntary Law, Introduction To Voluntary Law (Book)

Practical Notes For Practical Folks

PracticalNotes

If you’ve read “The Nut” or other parts of this book and find it a bit impractical, you might be more of a practical sort than a philosophical sort of person.  This book is not written for practical folks, because voluntary law is not yet a practical reality.  It is still in a very early development stage, and may remain in development for a great many years.  In fact, it may never be developed; only time will tell.  Many thousands if not millions of person-hours of human labor will be necessary to bring voluntary law into the mainstream, fully developed and ready for widespread use by practical people.

This introductory book wrestles with fundamental moral and economic questions raised by restructuring of society and law based on principles of individual sovereignty and equality.  It’s about the unglamorous work of digging the foundations for a new social order.  It is a book for dreamers and peaceful revolutionaries. It is written for the most impractical of all people: those who believe that is possible to engineer fundamental changes in how human society is organized, using tools of purely non-coercive persuasion.  It’s written for nutty people.  Most people are not nutty, most of the time.  But everybody can be a little nutty, at least once in a while.

If you are one of those usually-not-nutty people, this chapter is for you.  It will suggest a few practical things for you to think about.  After that, you can put this book down, at least until you are “in the mood for nutty.”  Not everybody has the time or inclination to change the world, but at least after reading this chapter, you will have a sense of some of the practical goals that the dreamers and revolutionaries aim to achieve.  If you think those goals are worthwhile, perhaps you will make your own practical contribution to making them a reality, without worrying too much about all the philosophical stuff.  Nobody can really know how far any of these ideas will go, but one of the neat aspects of voluntary law is its power to have a positive impact on human society, even if only practiced in the most limited possible way.

Once put into practice, the concepts in this book will provide practical products and services to improve the quality of all human life.  For instance, the problem-solving club —  another name for a voluntary law society. Imagine you can join a club that provides you with big discounts on your insurance and legal bills.  Membership in the club not only saves you a lot of money; it also makes resolution of serious disputes with other club members much faster.  For example, complex divorces and business disputes are handled in a matter of weeks instead of years, for a small fraction of the cost of a lawsuit.  Now imagine that membership in the club is free.  To join, all you have to do is to agree that you will resolve all your disputes with other members of the club according to a relatively simple, easy-to-understand rule book that can never be changed without your consent, and make your agreement a matter of public record.  You can quit the club anytime you wish, but then you will lose all of the benefits of membership.  Imagine the club is very large and influential, yet has no dues, no officers, and is designed so that it cannot be owned or controlled by anyone.

Because membership and status of members in the club is a matter of public record, being a member of a club also provides you with access to a reliable “friend-finder” service.  Imagine you can find other members of your club in every city, all over the world, using a free computer search.  Imagine that you can also see a “reputation score” for every member of the club, based on how well the member has maintained her reputation as a trustworthy member of the club who faithfully follows the club’s rulebook.  Perhaps you get reputation information by paying a small fee to a reputation service, or perhaps by using a free advertising-supported reputation service.  Imagine that you can use the freely available membership information and reputation services to find new friends, customers and service providers around the world.  Imagine that by building a reputation as a good and faithful club member, you can attract customers for your business and be successful, regardless of what university you went to or who you have political connections to.  Imagine that new customers seek you out as a fellow club member, or as a member of a respected neighbor club, and having a good reputation as a club member is as good as gold.

Imagine that there was not just one club for you to choose to join, but many different clubs, together making up a sort of spontaneous, decentralized “freedom tree.”  All of the clubs run the same basic way; they each just have a different rule book for resolving disputes.  Some of the clubs have very well-known rule books and millions of members, others have rule books that although publicly available to everybody are not widely read, and have far fewer members.  Some clubs have not changed their rule book in a great many years; other clubs change their rules from time to time, causing splits in their membership because not all members choose to follow the new rules.  Imagine that your children or grandchildren can learn about the major clubs and the differences in their rules before they are twelve years old, and can rely on the information they learn as a child about the major branches of the “freedom tree”  throughout their lives, because the club rule books do not need frequent updating.  Imagine that the rule books of all the major clubs are accurately translated into every major world language.  Imagine that you are free to change club membership as your views or life situation changes, or to start a new club by creating a variation on an existing rulebook.  If you are really talented and dedicated, imagine you can write a whole new rulebook for a new club.

The spread of problem-solving clubs can create a new basis for toleration of different viewpoints, both inside of political boundaries, and across them.  Imagine that the members of all of these problem-solving clubs recognize and respect the legitimacy  of members of other clubs, in a manner similar to how citizens of nations respect citizens of other nations.  Imagine that widely accepted, fair rules exist for resolving disputes between members of different clubs, based primarily on the rule books adopted by the people in the dispute and the time at which they joined the clubs.  Imagine that people of different religions and beliefs use these rules to live consistently within their own beliefs while tolerating and doing business, if they choose, with members of other clubs that hold to different beliefs.

Since club rules are determined by individual selection, the rules tend to be quite stable and quite succinct.  Contrast that to other forms of government, where new rules, regulations and laws are continually passed and imposed on the populace.  The stability and succinctness of club rules makes it easier to assess the legal risks of various transactions between members of the same club, and even between members of different clubs.  Imagine that this stability and clarity leads to the development of expert legal systems that are available online.  Imagine that for answers to legal questions concerning club members, you can consult an automated legal oracle regarding your legal rights and obligations, and avoid the need to hire an expensive lawyer.

Imagine that the problem solving clubs become so popular and effective,that virtually   everybody eventually joins one.  Imagine that when this happens, wars between nations and terrorism become politically infeasible,  because so many politicians,  soldiers and civil military contractors are club members and do not want to ruin their reputations by killing or injuring other club members without justification.  Imagine that when people realize that war is no longer possible, governments of the world evolve into voluntary, fee-for-service organizations serving the general public.

These are some of the practical services that voluntary law may bring about for you or your descendants.  All of them are about making your life experience richer, deeper, safer, and more prosperous.  All of them are aimed at enabling and protecting your personal empowerment within a community of equally empowered persons.  All of them will make you happier and better off, without making anyone else worse off.  Perhaps only some of these things are possible.  Of course, the more distant, pie-in-the-sky outcomes do not need to become a reality to make voluntary law worth investing in now. Such outcomes are conceptually possible, but are not inevitable. Even if voluntary law does not become widely adopted enough to provide the greatest possible benefits, it can still provide benefits for a minority of people who choose to invest in it.

Another point:  this is not an academic book.  Like an engineering plan, this book straddles the practical and the theoretical; it is both plan and propaganda for social engineering.  Although a great debt is owed to the academics who have written volumes about economics, non-aggression, anarchy and law, and so forth – great academics and visionaries like Lysander Spooner, Benjamin Tucker, Ludwig Von Mises, Murray Rothbard, and many, many others, little or no time is spent tracing the historical development of the concepts underlying this book.  No claim is made to originality, except for this one thing: the particular definition of voluntary law advanced in these pages, and the application of that blueprint as an invitation to begin building another, non-exclusive piece of the coming social order.

Changes in human society depend both on new technical capabilities and new ideas about what is humanely possible.  Consider, for example, the development of the airplane.  Human flight required both technical advancement in engines, and development of engineering concepts of the airfoil, making lift and drag quantifiable and predictable based on the characteristics of an airfoil and airspeed.  It required both advances in enabling technologies, and new ways of thinking about flight.  Similarly, the development of voluntary laws rests on advancement in wireless communications and computing technology, and new ways of thinking about law.

A better analogy to voluntary law may lie the development of open-source public registries, pioneered by Satoshi Nakamoto in the release of the Bitcoin application.  This technology enabled the development of voluntary, decentralized trading networks centered around exchange of a stable electronic currency, by making it infeasible for governments to disrupt the public registry.  Cryptocurrencies such as Bitcoin represent but one application of block chain technology.  Already, this technology is being applied in ingenious ways in other applications harnessing the power of decentralized voluntary networks.  One such application, released in 2014, goes by the name of Bitnation, and is directed towards dispute resolution services within a voluntary network.  Presently, Bitnation uses existing state-made laws, but is fully compatible with using stateless, voluntary laws.  When such laws become available and are of acceptable quality, it is likely that networks such as Bitnation will make use of them.

Social networks like Bitnation are focused on providing an infrastructure for providing dispute resolution, enforcement and insurance services based on any law chosen by disputants.  This book is concerned with a more foundational aspect — development of new and superior laws for the voluntary networks of tomorrow.  As you read this book, you may come to understand why new laws are necessary, or at least, highly beneficial to voluntary dispute-resolution networks.  You may come to understand why it is that existing laws, developed by and for state-based legal systems, are not optimal or even appropriate for dispute resolution in voluntary societies.  And you may come to be persuaded that rules for dispute resolution within voluntary law societies need to have certain essential qualities to form a basis for coherent, workable laws within a voluntary framework.

New social orders require robust and coherent conceptual foundations.  This book is directed at building up those foundations, by engaging you in a dialog about the nature of law in human society.   It is hoped that positive engagement with this dialog will lead to a growing agreement about foundational concepts underlying law for voluntary networks.  Such agreement will, in turn, lead to the development of conceptually sound rule books, which can be published and promoted as practical tools for providing dispute resolution services within voluntary networks.  As these tools are adopted for use in existing and new service infrastructures, voluntary law will in time become a practical and widespread reality capable of providing the practical benefits that are spoken of, and more.  Onward!

 

 

 

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Introduction To Voluntary Law (Book), Voluntary Law

The Nut

A Brilliant Dawn

A Brilliant Dawn

Some of my subsequent posts will form a rough draft of a book (tract?) I intend to write.  Maybe titled “An Introduction To Voluntary Law.”  Or perhaps “A Friendly Introduction To Voluntary Law.”  To be followed, hopefully, by “A Children’s Guide to Voluntary Law.”

The Introduction may be titled “The Nut.”

You may find this book a little nutty.  It may expose you to ideas that, at first glance, seem immensely impractical, if not completely impossible.  To ideas that seem utterly useless in the world that we live in today.  And to add insult to injury, to ideas that are speculative, and not the least bit scholarly or laden with footnotes.  In a word, nutty.  Nutty, and not without considerable risk, like running in front of a pack of raging bulls, clad only in a pink tutu, while inebriated by a fragrant Spanish sherry.  If you don’t like nutty, put this book down until you are in mood for nutty.

This book is a nutty in another sense.  Like an acorn is nutty, by including within it the essence of the oak tree.  Given the necessary conditions, and the passage of time, the acorn sprouts, extends leaves and roots, extracts energy from the sun and directs the energy and matter it absorbs into the structure of an oak tree.  You may find that the ideas in this book are a bit like that acorn.  But instead of growing in soil, these ideas may, given the proper conditions, grow in your mind.  Fed by your life energy and experience, these ideas may grow into massive and surprising forms, transforming your world view and the reality you experience.  As these ideas spread from mind to mind, a towering forest may gradually arise, forever transforming your world.

If these claims seem grandiose it’s because they are grandiose.  But show this book some tolerance!  The ideas it contains are between a rock and a hard place, so to speak.  These ideas are either truly nutty in the sense of being crazily useless, or are a nut of transformative philosophical and social change.  There is very little territory in between.

If you have read this far, you are either in the mood for something nutty, or are intentionally exposing your mind to the risk of transformative change.  All the while recklessly casting away any sensible apprehension over exposure to unproven grandiosity.  Are you sure you would not rather be in your garage, working on a free energy machine?  That might be a more productive use of your time.  Please be extremely careful to spend your time doing something productive during your brief and transient life, and by all means be aware of the risk that reading this book may just make you a little nutty, too.

The warnings are out of the way.  Let’s get to the business at hand.

If you think you have heard the term “voluntary law” before, you may be mistaken.  This is not a phrase used with any commonly-accepted meaning.  On the contrary, the phrase brings together two words that are not meant to coexist.  “Voluntary” does not ordinarily pair with “law.”  It is a sort of contradiction of terms.  A crafty invention meant to convey a meaning that we are not conditioned to understand.  We are conditioned to think of law as something imposed by a higher or more powerful authority on the rest of us, whether that authority be old traditions, gods, priests, monarchs, legislatures, electoral majorities, judges or special committees.  Putting “law” together with “voluntary” enables us to consider voluntary arrangements as more than just things that exist subject to imposed laws.  Not only that, but to realize at least one way in which voluntary arrangements are capable of peacefully expanding beyond imposed legal frameworks, and after sufficient social evolution has occurred, displacing such frameworks altogether.

If you must have a touchstone, think of natural law.  But voluntary law is not natural law.  Voluntary law is any system of dispute resolution, characterized by:

  1. No claim against another is legally enforceable unless the claim is permitted by a rule that has been voluntarily adopted, and not superseded by later adoption of a conflicting rule, by each defendant prior to the time when the events giving rise to the claim occurred.
  2. The identity of any person who has adopted a rule of voluntary law, the rules each such person has adopted, and the time when each such rule is adopted, is recorded and such record is publicly discoverable.
  3. A publicly discoverable set of rules is defined for just resolution of conflicting laws in the context of any arbitrary dispute, based principally on the content of the laws that are in conflict, and the times at which adopted by the parties to the dispute.

Mark this page. This simple definition can be unfolded in surprising and complex ways.  Although this book will only wade in the shallows, enough complexity may be encountered within these pages to make it helpful to refer to this definition from time to time.  The definition can be expressed differently, but its essence will not be changed.

Underpinning this system of voluntary law is a moral precept that rejects the imposition of any substantive law on any person, without their prior knowledge and consent.  Under this new moral precept, forcibly imposed forms of law are condemned as barbaric and evil by nature, if not always in effect.  That which is traditionally viewed as a necessary evil is shown to be merely evil, and in time, unnecessary.

Voluntary law systems may evolve toward higher forms or more robust expressions of natural law.  Such is conjecture.  It’s not a provable thesis, because the perfect composition of “natural law” is not discoverable by experiment.  If we define natural law as that law most consistent with the thriving of productive communities and most equitable distribution of the productivity resulting from such thriving, then perhaps voluntary law is better able to achieve such ends than the traditional forms that oppress us today.  It seems highly unlikely to be worse, once widely understood and adopted.

The definition of voluntary law rests on a few key concepts.  “Person” is a critical concept.  Also “voluntary.”  Later chapters will delve more deeply into consideration of these terms.  Non-aggression is “baked in” to the system of voluntary law, by way of the limitation to voluntary action.  Those who adhere to the non-aggression principle as a basis for political order will find much to like about voluntary law.

Those who emphasize individual civil rights and fear too much accumulation of private property in the hands of a few can also find much to like about voluntary law.  Traditional property rights are not an essential characteristic of voluntary law.  Property rights beyond self-sovereignty are optional, not essential.

Instead of imposing concepts of property rights beyond self-sovereignty, voluntary law allows for different definitions of what property rights are, and how they are formed, within extremely broad limits wrapped up in the word “person.”  Its essential characteristic of voluntaryness requires that each person owns and is sovereign over themselves.  The more remote from that core sovereignty a concept of property is, the more its existence as property will depend on voluntary, individual acceptance by each person making up the masses of society.

Whether or not, or under what conditions, a thing can be owned, and what rights accompany ownership is not predetermined within voluntary law.  Property rights arise by interaction between different definitions of property voluntarily adopted by different persons.  These different property rights cannot be enforced in any manner consistent with voluntary law without reciprocal acceptance by each person upon whom the asserted property right would be enforced.  Property that confers an unfair degree of forcible control over the lives of others cannot be amassed in such a system.

So voluntary law cannot honestly be placed on the left, or right of the modern political spectrum.  It avoids the left-right paradigm altogether, and transcends it.  No person can be forced into a community and thereby made subject to laws that are contrary to her moral lights or preferences such as she consistently and reciprocally will apply.  Each person is free to join a different community, or to build her own if none to her liking exist.  No person can force a definition of property on another, who consistently and fairly operates in ignorance and/or refusal of such definition.

And that’s the nut of it.

 

 

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