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

Ensuring That Judgments Are Just

quality control

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

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

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

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

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

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

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

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

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

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

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

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

In voluntary law societies, judicial service providers are deprived of essentially coercive advantages over competing forums. There is no real advantage to be had in the provision of judicial services, other than a good reputation. People are initially skeptical of every adjudication forum, before its reputation is established, and of every untried jurist. Every juristic forum must build its own reputation, and none can exercise coercive power in doing so. Each forum can build its reputation in several ways. For example, by performing high quality services (e.g., prompt, courteous, and accurate) and by issuing high quality judgments or settlements that are seldom or never successfully the subject of malpractice or negligent enforcement claims. A jurist may also seek certification or approval from various consumer rating or certifying organizations. In turn, the certifying agencies must establish and protect their own reputations by not certifying or approving others without justification.

An adjudicating forum that either is unproven or has a reputation for issuing poor quality or biased judgments will find that its judgments are not easily respected. Judgments that are not easily respected will be much harder to enforce, if enforceable at all, because enforcers will fear liability arising from negligent enforcement of defective judgments. Therefore, the judgments of a jurist who lacks a proven reputation will be subjected to additional questioning by diligent enforcers, which raises costs for the claimant. Provided their laws allow, jurists can be held liable for issuing non-neutral or negligent judgments, and law enforcers can be held personally liable for enforcing judgments that they knew or should have known were of poor quality. Most neutral enforcers will therefore refuse to enforce any judgment that appears questionable or risky. Claimants may attempt to self-enforce shoddy judgments issued by sham judges under their own influence, but not without risking liability both for their enforcement actions, and for improperly influencing the judges.

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

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

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

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

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

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

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

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

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

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

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

Historical Commentary, Judicial Precedent, Voluntary Law

Honor, Not Laws

Honor Not Laws

Honor Not Laws

Some of my friends hope for a self-organizing society, where order prevails without territorial monopolies on the making or enforcement of law, and aim to achieve that self-organizing society by the art of persuasion, not of coercion. Tossed on a sea of statists, these who eschew coercion are apprehensive of giving anyone the power to make laws in any defined form. Once rules are written down, they fear, lawyers and courts will follow and subtly force their double-dealing systems of oppression on everyone. Ordinary people will once again be trod upon by an elite class hiding behind a wall of lawyers, and the law will be what it traditionally has been: an instrument to preserve and multiply the power of the powerful, among other things.

Fear not voluntary law, mates! Voluntary law is not what you suppose it to be. Voluntary law is perhaps the only legal system capable of avoiding the rise of an elite class served by legions of lawyers and lawmakers, all in the service of a violent, monopolistic state, which you so rightly fear. Your intuitive human sense against written codes of laws is a snare. It will inexorably lead to the very system of oppression that you fear. Such fears may be reasonable on pirate ships and the like, where the captain is the final arbiter of all disputes and does so only for a relatively small crew, but not for complex human societies comprised of millions of members, and not in view of the history of law.

Let us suppose, for argument’s sake, that it is best to not write down any rules, and let people work out their differences however seems best. What then to do when agreement cannot be reached on a just resolution? There are only two possibilities to resolve the dispute, plus the option of leaving it unresolved.

The first possibility is a contest of some sort. The parties in dispute engage in some arbitrary contest by which a resolution of the dispute is decided. Pistols at fifty paces, drawing lots, chess, poker, drive-by shooting, trial by water, trial by fire, whatever. The common thread is that the contest that ends the dispute has no predictable relationship to the dispute itself. Instead, the resolution is arbitrary. In the absence of any predetermined, non-random process for dispute resolution, there is no predictable cost or consequence to violating the person or property of others.

In the absence of social conventions enforcing a random process for dispute resolution by contest, contests will tend to their natural end point: the party with the greatest power always wins. Might makes right. This method of ending disputes cannot provide anything resembling justice. It can only allow power, by whatever means exercised, to work its will, or provide random outcomes. Even if a dispute resolution system in which disputes are resolved by the flip of a coin were better than what passes for justice today, does anybody seriously think that randomly-determined contests can be the basis of a justice system that promotes respect for the property and persons of others? Certainly not. Rules (written or not) are necessary for providing justice in human society. No real controversy surrounds this deduction. At issue is whether such rules should be written, or left unwritten.

The second possibility for dispute resolution without written rules is to submit the matter for resolution to a mutually acceptable judge, who will try the controversy and render a decision that is not based on any written rules. Robert Heinlein described something of this sort in his novel, The Moon Is A Harsh Mistress. Each judge applies her own standards, which can be either arbitrary or consistent with the judge’s past decisions and/or community norms.   If arbitrary, the effect is no different than a contest of the random sort. If consistent, the decision must be an expression of an unwritten rule. If a rule is unwritten, it can and will also be written, as the number of community members grows and its economy becomes more sophisticated. Thus, an unwritten judge-based system tends, through the process of scaling up to large communities, to become a system of judge-made written law.

In fact, law making by judges is at the root of many legal systems today. Civil law in Europe traces back to ancient Roman law, which was in its early days entirely defined by competing jurists. Common law in England and its former domains traces back to rules defined by various judges, albeit only those supported by the reigning monarch or other lord. According to the Book of Judges, ancient Israel was ruled entirely by judges until adopting monarchy. No doubt many other historical or mythical examples could be found.

A pattern can be discerned in this human behavior: First, rule making, as an aspect of dispute resolution, is naturally left to those most expert at it (the judges). The most popular judges rule according to community norms. As the community evolves and grows, independent judging diminishes and is replaced by judicial collectives that enforce standards, introduce written rules, and suppress competition.   Later, war-making entities (monarchies, states, republics, empires, etc.) bring existing judicial collectives or independent judges into submission, incorporate them into their war-making apparatus, and often take from them part or all of their rule-making power. So a call for a judge-based system without written rules is, at essence, a call to turn the evolutionary wheel of human society back to its origins.

There is reason to be suspicious of such calls. One cannot go home again; de-evolution of societies and species may occur in reaction to the collapse of their sustaining ecologies, but do not amount to progress. Instead, de-evolution merely sets the stage for what has occurred before to be repeated. History has proven that judge-based systems always evolve, with growth of the communities they serve, into state-sponsored and controlled legal systems such as are known and despised all too well today. Instead of re-inventing ancient judicial systems, the rational alternative is to invent and build rule-based systems that are not susceptible to subversion by states.

Experts in rule-making are useful as are experts in any other activity, but is not necessary to give legal experts the power to impose the rules they write on others. Let them write as many rules as they like, but let each individual decide whether or not to adopt any written rule. Make the adoption of rules within the sovereign power of the individual, and only the individual, as a moral foundation of society. Wrest the judicial and legislative branches out of the obscenity of empire, and give the exclusive power to adopt laws to that unit of society that can never be collectivized: the self-sovereign individual. By all means deny judges, insurance companies, governments and all other persons and entities, the power to impose laws on others without consent.

But note this: laws within the sovereign power of the individual must be discoverable by others in advance of their application, or such laws are without meaning or practical application. Thus, laws within the exclusive sovereign power of the individual must be expressed in written form. The written law should therefore not be feared. It should be embraced. It is only the imposition of law (written or not) without prior consent that is rightly to be feared and abhorred. An oppressor may wield the sword, but that does not make sharp edges any less of a useful and necessary tool for many peaceful activities.

A society organized on the moral principal of self-sovereignty in the area of law making has never existed before. Arguably, it has never been technically feasible, until now. Now it is. Advances in computing and communications technology have placed it within reach, perhaps for the first time in human history.

Not only so, states and empires as they exist today have formed many crevices and niches within which the seed of legal self-sovereignty can take root and grow. Voluntary law can exist today without much controversy in many places, and coexist for a time with older, less enlightened systems. To those who scorn self-sovereignty as a pale and impractical dream, it is either a meaningless fantasy or merely another system of civil dispute resolution to fit within a statist framework. Let statists be statists. Voluntary legal systems, once functional, will provide services and teach moral principles in spite of ignorance and scorn. Once enough people understand how a self-organized legal system based on the moral principal of self-sovereignty can work, older systems will inevitably be discarded as barbaric and immoral. This genie will not be put back in the bottle.

It is not a time to be hesitant. It is high time to leap aboard the vessel of self-sovereign voluntary law, sail it to new legal shores, and discover what new world awaits.

Judicial Precedent

Kill the Precedent

Daily Anarchist

A reader sent a link to this article by Davi Barker.  It reinforces a point in Voluntary Law (although Davi doesn’t call it that) that there can be no binding precedent in a system of voluntary dispute resolution.  You can read the article for yourself: Kill The Precedent

Voluntary law fills the gap left by the loss of judicial precedent, by permitting each to define their own law.  So if a law is undesirably vague or indefinite, there will be public demand for more specific, definite laws.  Poor or unworkable laws will be “upgraded” on an individual basis, as legal writers propose revisions which gradually grow in influence by individual adoption.  Sort of like how software upgrades are handled, but with less pressure on users to upgrade and no single programmer in charge.  Because you won’t license your law from some legal provider — you will “own” it in the public domain.

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