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”