Coexistence, Introduction To Voluntary Law (Book)

For The Statist: Fear Not Voluntary Law

Military Parade

Recognizing that very few, if any, confirmed statists will read anything posted at this site, it might be wondered why there is a post addressing them.  One reason is to help you, the voluntarist, understand how gently you may be able to approach your statist neighbors regarding the experiment of voluntary law.  Essentially nothing is demanded of them except forbearance from operating in totalitarian modes of government.  Another reason is to convince you that there is nothing that fundamentally prevents the vigorous establishment of voluntary law societies in the world of today.

To the statist, voluntary law seems unfeasible because it lacks any claim of authority or exercise of superior power. In a word, it seems idealistic. The moral statist view may be summarized as one or both of: (a) a paternalistic belief that law should be developed by intellectually and morally superior elite, and not unenlightened folk who are aware only of serving their own narrow, short term desires, or (b) a pragmatic belief that enforcement of law requires the existence of a predominate police power in any given area. Because voluntary law is not directed to establishing either of these qualities, the statist believes that it cannot provide social order superior to statism.

Suppose, for the sake of argument, that the statist beliefs are true. More exactly, suppose that speculations and debates over the theoretical necessity of the state to an orderly society are not particularly fruitful, and it is desired to plead nolo contendere on these questions.   If you believe in a big, authoritarian state without any moral justification, you will not read this essay or visit this website. But perhaps you are a minarchist who suspects that a little bit of state power may be necessary, or perhaps you are agnostic on the question of the necessity of state. Either way, no attempt will be made to convert you here. For the purpose at hand, it is unnecessary and counterproductive to engage in debate over whether or not the existence of states is desirable or necessary. It is sufficient to accept that if there is a moral justification for the state, it must rest in some net benefit or good provided by the state to its subjects.

Debate on the question of the necessity of the state is a fruitless distraction, for the simple reason that the practice of voluntary law is, to state the obvious, entirely voluntary. Nobody will ever be forced to practice individual self-sovereignty, and much less so in any specific way advocated by this website. Those who are practicing voluntary law ask nothing of you but that you let them alone to try their experiment in personal self-sovereignty, without imposing conditions that doom the experiment from the start. The only relevant question for the statist is whether or to what extent the state should ban the practice of voluntary law. Here it will be argued unreservedly that those practicing voluntary law should be given the maximal possible freedom to operate, as a matter of good statecraft. That is not to admit that the state has a moral right to exist. Only that for those who believe it does, it would be a very bad idea to ban the essential practice of voluntary law, for both practical and moral reasons.

Voluntary law needs only a few essential human rights to operate, and all of these rights are often cited as justifications for states. The first essential right needed is freedom of speech. First of all, for voluntary law to become established, the state must tolerate teaching of the idea of personal self-sovereignty. It must not ban the teaching or promotion of voluntary law from its schools, parks, libraries, bookstores, prisons, homes, computer networks, or anywhere else writings and other recordings are distributed or viewed. It seems almost silly, at this writing in California, to consider that the state might ban the teaching of personal self-sovereignty. Yet one can image places where such a ban would be happily implemented: totalitarian North Korea, or strict theocratic states such as ISIS and perhaps less authoritarian places where little value is placed on free speech. If one believes that the killing or imprisonment of people for expressing a philosophical or religious idea is justified, this essay is not for you. On the contrary, it is hoped that the ideas of personal self-sovereignty will escape your attention until it is far too late to extinguish them by force.

Voluntary law also needs an environment wherein every member is free to voluntarily publish their own personal code of honor. Such right of publication is also firmly rooted in the right of free speech. Publication of personal codes of honor can hardly be banned without banning all private expression of ideas. A moral state cannot allow the statement of an idea, while banning its subjects from expressing a personal adoption of the idea, i.e., from saying “I believe . . .” The latter sort of expression falls not only under protections for freedom of speech, but also freedoms of religion and association. If anything, personal expressions of belief deserve higher protections than mere philosophical writings. Outside of totalitarian states wherein individuals have no rights at all, there is little doubt that the state should, and will, tolerate individual expression of person honor codes.

Once these two things are allowed, there is nothing to prevent the formation of voluntary law societies within non-totalitarian states. Such states need only concern themselves with identifying private activities of society members that fall under state regulation in some way, just as they would with any other subject. It is therefore pertinent to consider whether the state should ban any essential services that may further the implementation of voluntary law.

A healthy voluntary law society requires a number of essential services. One of the more fundamental services is a registry of members and their adopted laws. Bitcoin and other cryptocurrencies have now proven that public financial registries – even in an area that would otherwise be jealously protected by state laws – cannot practically be banned. So laws against registries are unlikely to be enforceable. Moreover, voluntary law registries do not relate to finances or financial transactions, and are not implicated by laws regulating a state’s permitted private financial registries. Instead, voluntary law registries are more like social networks such as dating sites, multiplayer gaming sites, Facebook, and similar databases where users can share personal information. Accordingly, even centralized registries both should, and will, escape extraordinary regulations, and will be free to operate outside of the few areas governed by totalitarian governments.

Similarly, reputation-checking services should likewise have the right to exist in most areas, subject to state laws governing privacy and defamation. Since reputation checking databases can be limited to publicly-available information and exist to collate truthful, factual data, regulations regarding privacy and defamation should be manageable by well-run services. For example, administrators of such databases may offer perquisites to members who give express consent to certain information being maintained in the public reputation checking database. A moral statist can have little real objection to such services, which should be protected by basic human rights of freedom of speech and association.

Another essential service is neutral dispute resolution services (e.g., arbitration) based on personal honor codes. This is no different than conventional arbitration in one respect, dealing with private resolution of civil disputes outside of state courts. Such arbitration is well established in most of the world. Only the question of licensing and the effect of arbitral awards are at issue.

Private dispute resolution under voluntary law is quite different in another respect: such arbitration does not necessarily purport to involve the law of a state at all. Hence, in the eyes of the state, what is at issue is not “law,” but a sort of game of honor played by game rules. Any involvement of state law is incidental to the game played. For example, it may be possible that the facts under which a claim arises under voluntary law would also support a claim under state law. If the underlying claim is civil in nature, the state has no reason to oppose private dispute resolution, whatever the rules applied, so long as the outcome is mutually respected.

Voluntary dispute resolution based on personal honor codes might be compared to traditions such as “handshake” or unwritten agreements. If parties to such agreements choose to honor them, such activity falls outside of state regulation, and it may refuse to hear civil claims based on unwritten agreements in its courts.  Similarly, the state need not (and would not) recognize the “honor code game” as having any legal significance in its own courts, and in many cases no state recognition will be solicited. In the cases where state recognition of an award is desired, it may easily be obtained by agreement of the parties.  If the parties respect the voluntary judgment, the state need never know of its existence in the first place. At most, it may see evidence that some transaction has occurred, such as a change in ownership of titles, or evidence of some payment being made. The state would have no reason to inquire into the motivations for such transactions, any more than with any other economic transaction that comes to its attention.

It is when parties do not respect the voluntary law process that difficulties may arise. For so long as the state and voluntary law societies coexist, there is always a possibility that a party dissatisfied with his prospects under voluntary law will seek to have the matter adjudicated under state law. This reality is not a reason to oppose resolution of disputes under voluntary law. It is a simply an outcome that can be expected to occur in some percentage of cases. The adjudication under state law will not be recognized under voluntary law without the consent of all involved parties. Conversely, judgments under voluntary law will not be recognized under state law, without the consent of all parties. There is a nearly perfect symmetry in this arrangement.

The symmetry is broken in at least one case: one’s reputation under voluntary law is harmed by disregarding voluntary law process in circumstances when it should apply, in favor of pursuing a claim under state law against another member without that member’s consent.   In contrast, a failure to pursue a civil claim under state law in favor of a claim under voluntary law will, in the ordinary case, not create any detriment to reputation, even for the pure statist. The only detriment is an eventual extinguishing of the state law claim under the applicable statute of limitations, or the like. By this asymmetry, voluntary law forums may come to be used for some disputes even by people who are not voluntary law members, because of greater judicial efficiency.

If the underlying claim implicates state criminal law, the state may be expected to entangle itself with the voluntary process. For example, public employees of the state will guard their exclusive claims to criminal jurisdiction that provide the basis for their continuing compensation. However, in practice, claimants will not bring voluntary law claims in jurisdictions that create a significant risk of state criminal prosecution for themselves or for any participant. Such claims would be brought in safe jurisdictions, or not at all. Consider, for example, the pronouncement of a judgment of death or involuntary servitude by a voluntary law jurist. In some states, such a pronouncement may be regarded as criminal incitement.  In addition, if the jurist is aware of and withholds information concerning a state law crime from state police, the state may regard the jurist as an accessory after the fact. Thus, if such a judgment were obtained, it would be from a jurist who for one reason or another does not fear enforcement of the criminal law. Likewise, judgments in disputes involving contracts illegal under state law will be carried out by jurists who have by one way or another protected themselves against criminal enforcement for hearing such disputes or pronouncing judgment on them. Whether or not state laws do, or should, make the pronouncement of such sentences or the hearing of such cases illegal is a complex question, highly fact-specific, and beyond the scope of this essay.

Competent jurists operating in view of the state would certainly be well-educated as to which activities are considered criminal or illegal in the places where they operate, or risk being quickly and rudely put out of business.  We might suppose some jurists will find ways to operate out of the state’s view, but doing so successfully will depend on the degree to which their clientele can be trusted to not expose them to state persecution.  For example, a jurist might endeavor to operate an online judicial service through a secure site, maintaining dual, carefully separated identities for purposes of the state and voluntary law society.  Parties appearing before such a jurist might never know the identity by which the person is known to the state.  In general, dealing through online identities creates interesting problems related to the rights of fictional persons, in any case in which there is no verifiable one-to-one correspondence between an online identity and a natural person.  It has already been posited that fictional persons have no right of self-sovereignty and therefore cannot sue under voluntary law.  Further consideration to practical arrangements will be given later.

State involvement in enforcement of arbitral awards based on personal honor codes will be a matter generally left to the parties of a dispute. It may be available by consent of the parties, as in any other dispute. Of course, states would not recognize judgments under voluntary law as having any legal effect, without some action taken to legalize them. Such recognition will neither be needed nor wanted by anyone in general. To the extent state recognition of a voluntary law judgment is desired and possible in specific cases, such legalization can be arranged by contracting in a manner consistent with both personal honor codes and the law of the state in which the contract would be enforced.

However widespread publicly adopted personal honor codes become, adoption of a particular code will not provide any affirmative defense to a violation of state civil or criminal law. This is self-evident. Recognition of voluntary law by the state is neither necessary, nor expected, nor wanted. Voluntary law is not “law” in the sense of a diktat of a state, and has nothing to do with the laws imposed by force, any more than the rules of the Game of Monopoly do.

What does all this mean?  Simply that political and social conditions necessary to enable the development and practice voluntary law already exist in most of the developed “free” world.  All that is asked of a statist is to restrain the state from totalitarianism, to allow private associations to exist, and to respect a reasonable degree of personal privacy and free speech rights.  Few statists will have any disagreement with observing such restraint, and those that do cannot be blamed if voluntary law fails to attract members and real economic activity.

If you are a philosophical statist advocating for the state on moral or empirical grounds, you should not be opposed to experimentation regarding alternative ways to provide more just and orderly societies. One of the objectives of voluntary law is to prove, by experiment, that social order based in the self-sovereignty can provide enough benefits to justify its existence, with or without coexisting with any order imposed by dominion and authority. In order to allow this experiment to proceed, the possibility of both success and failure must be allowed. If all such experimentation is simply banned, the philosophical statist loses any empirical, scientific justification for her position. On the other hand, tolerating experiments in voluntary law in a mode of coexisting with states may provide the statist with evidence for proving, that in the end, statist solutions may be a better answer to the problem of providing a just society, given the limits of the human condition. In the case of the state, failure means being supplanted by a stable, stateless solution of proven superiority, however long that takes. The experiment may take centuries to complete, during which states and voluntary societies must coexist. In fact, voluntary societies have nearly always coexisted with states to one degree or another. It hardly takes great toleration to admit another type of voluntary society, and one that makes very light demands of the state, at that.

You statists do not have to believe that voluntary law is an experiment likely to succeed, or one in which you will choose to participate. You need only be gracious enough to allow that voluntary law societies should be permitted to exist to the extent they can, just as any other voluntary activity between consenting adults that does not put others at risk of harm. Fear not; there is nothing for you to fear from widespread institution of voluntary law, or of any other social institution operating on the principles of openness, voluntariness, peace and honor.

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Photo Credit to Gerwin Filius “Military Parade”

Under Creative Commons CC BY-NC-ND 2.0

Coexistence, Introduction To Voluntary Law (Book)

Coexistence With Other Legal Systems

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