Enforcement, Introduction To Voluntary Law (Book)

Enforcement of Judgments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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