Conflict of Laws, TROTWET, Uncategorized

The Power of TROTWET

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TROTWET has nothing to with trotting or wetness.  It stands for “The Rule Of The WEaker Tool,” and is a principle for resolving conflicts of laws in voluntary law societies.  It arises from the fundamental need to resolve conflicts between different laws, within societies in which  each person is granted the sovereign power and responsibility to make, adopt, and publish her own laws.  TROTWET provides a basis for determining which law should be applied in any given conflict in such societies, based principally on the laws adopted by each party, and (in some cases) the respective times the different laws were publicly adopted.

TROTWET or any other universal rule of conflict resolution is not required for voluntary law to function, but without universal rules for resolving conflicts between personally adopted laws, voluntary law societies will be segregated into isolated communities between which no voluntary law can operate.  It is a universal rule for resolving differences between laws that permits voluntary law societies to freely intermingle, and grow to displace the state.  TROTWET is perhaps the only non-arbitrary principle that provides fairly balanced incentives to all who make or adopt their own laws.  It is a principle for resolving conflicts between laws, which is designed to prevent any from being judged under a law harsher than their own, and to prevent any who adopt lesser penalties from exploiting the laws of those who have adopted more severe penalties.

TROTWET is applicable to at least four types of laws: positive laws that proscribe some remedy based on misconduct of another, affirmative defenses to positive laws, due process rules, and laws governing legitimacy of ownership claims.  The application of TROTWET differs based on the type of law being considered.  For positive laws, the weaker tool is that law which results in the lightest penalty imposed on the defendant.  The claimant wields the positive law, and the weaker tool is that which provides the least for the one that wields it.   For affirmative defenses, the weaker tool is that which results in the greatest penalties on the defendant, because it is the defendant that wields affirmative defenses.  For due process rules, the weaker tool is the set of process rules that is most burdensome for the claimant to follow.  For different laws brought to decide between claimants to the same property, the weaker tool is that which requires the most work, per unit of property, to establish the right of ownership.

Under voluntary law, each person has the right and responsibility to make and adopt their own laws, and lacks any power to impose any law on another.   TROTWET emerges naturally from this premise of voluntary law.  Absent some other voluntary arrangement between the parties to a legal conflict, it is necessary to choose the “weaker tool” to prevent one party from imposing harsher legal penalties on another, than the other person’s adopted law allows.  In other words, the “weaker tool” may be defined as that rule that prevents the impermissible imposition of non-adopted legal penalties on another, even if this would deprive claimants of the remedy that they are willing to accept for themselves.

Time enters the TROTWET analysis when a party to a conflict has changed their law in the past.  To the extent that time of the change creates any ambiguity regarding which of their laws is operative for the conflict at had, that ambiguity is construed against them.  The party that has changed will be held to the least favorable law of the laws they have adopted, in that case.

TROTWET supplies the power of a “virtuous circle” to the practice of voluntary law.  It ensures that weaker, less demanding laws are those that will be applied in any given conflict.  Laws that are too weak, however, deprive their adopters of reasonable legal remedies and leave them more susceptible to unpleasant extra-legal abuses.  Everybody, therefore, is supplied with motivation to choose laws that provide for the least onerous penalties that they can reasonably accept as both just and sufficiently deterring of anti-social conduct.  In addition, to reduce uncertainty over applicable law, many people will be motivated to adopt the most popular laws, so long as reasonably compatible with their deeply held beliefs about justice.  These social pressures should cause voluntary laws to coalesce, over time, into a relatively small and manageable number of strands.  This coalescing should, in turn, inspire confidence in voluntary law and encourage its adoption.

Weaker tool analysis is not without problems.  For example, in some proportion of cases, it will be difficult to reliably predict which law is the weaker tool.  One jurist may pick the first law, and another equally wise and well-regarded, the second.  Consider, however, that such uncertainty will arise only in cases wherein the penalties or burdens are comparable, and thus difficult to distinguish in magnitude.  The errors in either direction will therefore necessarily be minor, and the law of averages will bring highly accurate results on the whole.   TROTWET might also be criticized as allowing defendants to choose their subjectively favored penalties.  For example, wealthy people may favor monetary damages that they can pay with  relative ease, while the poor and destitute may prefer a period of indentured servitude in which they might learn a new skill.  How are these different preferences to be weighed, to determine the weaker tool? There can be no predetermined solution, for such determinations must lay in the hands of free and independent jurists.  Let the schemers tempt with crafty laws these free jurists, whose livelihoods depend on their reputations for justice, if they dare.

While it cannot be predicted exactly how TROTWET will play out in every case, it can easily be learned by experiment.  The basic principles are simple enough for a 10-year-old child to understand and apply.  Such children can likewise easily understand the consequences of choosing penalties or processes that are either too trivial, or too onerous.  It will be those children who devise the laws of the future, who will amaze their parents with their creativity and justice.  Therein lies the true power of this unifying rule.

To read more about TROTWET, see this essay about TROTWET as applied to positive laws and affirmative defenses, and this essay about TROTWET as applied to laws for determining property rights and this essay about TROTWET as applied to due process rules.

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“That’s Wet” by Andreas Adelmann 
Some rights reserved under Creative Commons Attribution-NonCommercial-NoDerivs 2.0 Generic (CC BY-NC-ND 2.0)

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Conflict of Laws, Introduction To Voluntary Law (Book)

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

Balance of Tools

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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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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.

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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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Conflict of Laws

Unopposed Claims and Legitimacy of Judgments

Kristin with Rat Small

A Claim With No Defendant

The conflict of law rules developed thus far depend mainly on the status of the parties as claimant (plaintiff) or defendant in determining which law to apply.  Usually, this approach works.  In every case, there is always somebody to request a judgment.  So if “claim” is defined broadly as “a request for judgment,” there is always a claimant.  And there is usually a defendant to oppose the claim.

However, some legal actions exist in which there is no person to oppose the claim.  Some examples include declarative actions such as adoption, conservatorship, guardianship, emancipation of a minor; the probating of a decedent’s will; and claims to confer title over unclaimed property.  Such claims may sometimes be opposed by someone other than the defendant; for example, a person acting in the the “public interest.”  In other cases, no opposition exists.  Absent some check, the ability to select the law applied in cases with no opposition would give claimants free rein.  Also, if there is an opponent but no identifiable defendant, should the opponent automatically be regarded as the defendant for purposes of choice of law?

In authoritarian legal systems, it is the responsibility of the designated authority to ensure that unopposed claims are well-regulated, and if necessary, opposed by a representative of the state.  In so regulating, state interest is paramount, typically followed by special interests and thirdly, public interest.  Lacking any imposed authority to oppose claims, must adjudicating forums in voluntary law societies grant all unopposed claims?

Clearly not, in a superficial sense.  If all unopposed claims must be granted, the adjudication would become a mere formality.  As such it would be unnecessary, and like all unnecessary expenses in a free society, avoided.  The more pertinent question is whether the forum must follow claimants’ law where no defendant exists. If all unopposed claims must be decided under claimant’s law, the adjudication still retains its judicial function.  However, the law that is applied will nearly always comply with the claimant’s selfish interests, which will tend to multiply up to the limit of provoking opposition.

Under the concept of legitimacy, opposition to unjust claims can and should come from the judges themselves, to preserve their hard-earned reputations.  In free systems such as voluntary law societies, judicial legitimacy must be earned, as there exists no authority to grant it.  In contrast, legitimacy in authoritarian legal systems is sometimes conferred partly by politics, always at least partly by exercise of coercive power, and usually partly by a claim to moral authority.  In other words, people grant legitimacy to judgments of government courts because of some mixture of (a) lack of effective power to oppose edicts of the courts; (b)  widespread beliefs that the courts usually do the right thing, coupled with rational ignorance or acceptance of judicial misdeeds; and (c) an assumed consent of a majority or powerful minority of the people to the power of the courts.  None of these factors applies in voluntary law societies, except (in a rather different sense) the last.

In voluntary law societies, people are initially skeptical of every adjudication forum, before its reputation is established.  Every 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 appealed (more on appeal in a subsequent post).  For further example, by issuing a lot of such high quality judgments and making a name for itself.  It may perhaps seek certification or approval from various consumer rating or certifying organizations, which must first establish their own reputations by not certifying or approving others too easily.  And so on.

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 respected.   And if its judgments are not respected, they will be much harder to enforce, if at all.  Because under voluntary law, there is no sovereign immunity.  Judges 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.

In voluntary law systems, the ability to hold law enforcers and judges accountable for their actions creates tremendous pressure for adjudicating forums to only produce opinions that will be widely regarded as legitimate under fundamental principles of voluntary law (non-aggression, equality of persons, and reciprocity).  Legitimacy will be supplied directly by acting in accordance with widely adopted moral and legal principles.

Some judges and enforcers may refuse to hear disputes or enforce judgements, without waivers of liability from one or more parties.  This possibility cannot resurrect anything remotely like sovereign immunity in a free and competitive marketplace for judicial and enforcement services, for several reasons.  First, claimants and especially defendants will refuse to grant liability waivers unless the judge or enforcer has gained their confidence, either by having an excellent reputation, and/or by some other means.  Second, competition for paying clients will put considerable pressure on those providing legal and enforcement services to provide suitable, insurable warranties as to the services provided.  If the quality of services are not good, and the service providers rely on waivers to avoid liability for the costs of correcting their own mistakes, business will go elsewhere.

Let’s see how legitimacy solves the problem of dealing with unopposed claims.  Take, for example, adoption.  Knowing that it can be held liable for allowing an adoption that is not in the interests of the person being adopted to proceed, the adjudicating forum will investigate  and refuse to render a judgment of adoption unless it found the request to be bona-fide and in the interests of the person being adopted.  But under which law?  After all, if there is no defendant, mustn’t the forum apply the law of the claimant, who might have adopted extremely lax standards for adoption?  In their present form, the universal conflict of law rules do not permit the hearing of a claim without any identifiable defendant.

We consider then a couple of alternatives.  First, if there is no defendant to the claim, judges of the adjudicating forum may be regarded as the defendant.  They are, after all, the parties whose reputations are at stake, as well as being potentially liable for negligent judgments.  This solution creates opportunities for forum shopping, subject to the constraints of legitimacy discussed above in that forum.  Judges applying laws widely viewed as violating the fundamental principles of voluntary law will find issuing such opinions to be much to their own detriment.  The constraints of legitimacy are powerful indeed.  This judge-based approach has the advantage of allowing every case lacking a defendant to be tried under voluntary law, if only a willing judge can be found.

In the alternative, the forum may look to the interests of the person who is most likely to be harmed by the claim, and apply the law of that person.  Consider, for example, an orphaned child.  A general rule may provide that, in the case of a minor who has not adopted any law because not yet gaining rational capacity, the law of the mother or some other party will be imputed.  It seems reasonable to look to the person most likely to be harmed, but this approach suffers from a few problems.  For example, it may be impossible or difficult to determine the person most likely to be harmed, such as in the case of a claim to previously unclaimed property.  In addition, even if such person can easily be identified, it may not be possible to determine that the person has ever adopted any voluntary law.  Therefore, difficulties arise both in determining which law to apply, and the necessity of turning some claimants away when no adoption of voluntary law by any person with a stake in the outcome of the judgment can be identified.

In another alternative, if there is an opponent to the claim that is not acting in the interests of an identifiable defendant, the forum could apply the law of the opponent.  This approach would not work in cases where no opponent steps forward.  Also, it would invite meritless opposition by opponents seeking to extort settlements from claimants, regardless of the merits of the claim or the opposition.  Merely predatory opponents are not restrained by any concern for maintaining legitimacy.  Also, applying the opponent’s law would be similar to applying defendant’s law for affirmative defenses, violating reciprocity and facilitating predatory behavior.

For these reasons, the judge or judges appointed to render a judgment should apply their own adopted law, but only in the limited case of claims not made against any person for which (a) it is not possible to identify any single person most likely to be affected by the judgment on the claim, or (b) if such person can be reliably identified and is incapable of adopting or refusing a voluntary law (e.g., an infant), it is not possible to ascribe adoption of any voluntary law to the person by any reasonable means (e.g., no family can be found).  It should be emphasized that this rule should not be applied when the claim is made against a specific non-disabled person who is unwilling to adopt any voluntary law.  Under the non-aggression principle, such non-adopters must be beyond the reach of voluntary law, and have the status of outlaws so far as recourse to voluntary law forums is concerned.

Let’s see how the judge-adopted rule would play out in another example:  A space miner wants to bring a claim for title to an unclaimed asteroid in a voluntary law forum.  The miner faces a choice.  The claim may be heard by Respectable Justice, who enforces rather strict requirements on asteroid claims, including proof of first discovery and use, and a diligent search for competing claims turning up empty.   Or, the claim may be heard by Dubious Justice, whose service motto is “No unopposed claim too audacious to grant!”  If the miner selects Dubious Justice, the claim is certain to be granted quickly and cheaply, but the resulting judgment will be invalid if there is any later challenge to first discovery or use.  If the miner selects Respectable Justice, the claim will require more time and money to obtain, but once granted is unlikely to be challenged due to Respectable’s reputation for diligence and fairness, and use of a law with more demanding requirements.

So which Justice will the miner choose?  If the miner is very confident in the legitimacy of the claim, Dubious Justice might be a rational choice because of its greater efficiency, in the absence of any significant risk that the judgment will be challenged.   If the miner is aware of competing claims or other legal challenges, it would be rational to select Respectable Justice, so that the matter is settled once and for all, and the investment in mining the asteroid can proceed without undue risk.  Actually, if the miner is funded by third party investors or lenders, or purchases insurance for any risk related to the claim of title on the asteroid, such parties may require the miner to use Respectable anyway, just to avoid any cloud on the veracity of the miner’s title.

So it is apparent that the need for an appropriate level of legitimacy imposes a discipline on claimants to select an appropriate forum for the matter at hand, without depriving claimants of cheap and fast judgments in easy cases.  There’s nothing at all wrong with cheap and easy justice for easy cases; in fact, it is greatly to be preferred to expensive and slow.  Applying the law of the judge is beneficial in these types of cases, where there is no identifiable defendant.  The claimant can pick an appropriate forum based on the level of risk involved, and the judge can manage the risks of hearing the case by adopting and applying appropriate laws, among other things.

What if the case is decided by a panel of judges?  Then the panel may apply any law that has been adopted by at least one member of the panel.   This can be left as a matter of agreement between the panel members.

Why require the judge to have adopted the law that is applied? To provide predictability for claimants in selection of forums.  In any event, the market would impel judges to advertise which law will be applied in cases for which no defendant exists.  Where the law pertains to claims lacking any defendant, there is little or no detriment to the judge in adopting a law that is advertised, because such law cannot be enforced against the judge personally.  Therefore, instead of making conflict of law rules more complex by introducing the new concept of “advertising a law,” it is expedient to keep these rules simple by specifying the adopted law of a judge as the law to be applied in cases lacking an identifiable defendant.

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Conflict of Laws, Reciprocity

Affirmative Defenses: The Difficult Choice

The Essence of Reciprocity in Voluntary Law

The Essence of Reciprocity in Voluntary Law

Choosing the law to be applied when an affirmative defense is raised creates a difficult choice.  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?

First, a little background.   For those who don’t know, 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 can 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.

Which law should determine the affirmative defenses to a claim, claimant’s or defendant’s?  Let’s start with the same rule as for positive laws: defendant’s law resulting in the greatest liability applies, unless applying claimant’s law would result in less liability.  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 of greatest liability 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 a defense against claims based on coercive removal.  Rich Brother cannot 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 defendant’s selection of law for positive claims, Rich’s trespass claim would fail because his property right in the vacation home is not 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, because 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 impossibility problem at work.  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 affirmative defense.

Unlike claims that are controlled by claimants, the defendants are in control of affirmative defenses.  Thus, the impossibility of reciprocity problem coupled with defendant’s rule of affirmative defenses creates incentives for using extra-legal remedies for perceived but legal wrongs, 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.

As an alternative, a conflict of law rule that applies claimant’s law might be considered; to avoid opportunism by claimants this should be “claimant’s law of least liability,” the logical converse to “defendant’s law of greatest liability.”  Let’s see how this plays out in the next scenario.

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 the father of those being defended.  Under the rule of claimant’s law of least liability for 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 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 Defender cannot be permitted to effectively appoint herself judge, jury and executioner upon the general public, and must act with care even while performing meritorious deeds.

We may assume that under voluntary law, Abuser cannot claim a right to abuse anyone including his own children (such a law clearly violates the non-aggression principle and equality of persons), and may be held fully liable under claims brought on behalf of his freed children.  The issue is limited to whether Abuser may exploit the impossibility of reciprocity problem to deprive Defender of any affirmative defense based on defense of others for defending Abuser’s own children.  Suppose this result is permitted, 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, but only if applying his own law of affirmative defense would result in greater liability than applying claimant’s law.  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 and no-hypocrisy create incentives for people to adopt laws of affirmative defenses that will not deprive them of a similar defense if ever needed.  This should prevent injustice in personal injury cases where impossibility of reciprocity is not a problem.  In property case, where impossibility of reciprocity is a common problem, the effects of the proposed rule should be examined.

Let us revisit Scenario ‘B’ discussed above, Luckless versus Rich Brother.  Under the proposed rule of “claimant’s affirmative defense of least liability, unless resulting in less liability than defendant’s affirmative defense of greatest liability,” 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.

It’s rather apparent that second rule creates more incentives for reasonable behavior than the first, in which defendants were permitted to use their own rules of affirmative defense.  In that first hypothetical, Rich Brother could not evict Luckless even if both Rich Brother and Luckless had adopted laws recognizing property rights in vacation homes.  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.  The power to select one’s own affirmative defenses should not create incentives for extra-legal remedies.

Read the comic at the header, it summarizes all of the above quite succinctly.   Jonny’s Conflicts of Laws has been updated accordingly.

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