Dependents, Introduction To Voluntary Law (Book), Voluntary Law

Abortion, Infanticide and Euthanasia Under Voluntary Law

Fetus3167352760_3d855afb16_z

I’ve proposed in a prior post that a neutral jurist determines a law to be imputed to a fetus or to an infant, just as in other cases. The jurist, naturally, does this job without the benefit of any words from the fetus or infant. The imputed law is based on the best available indirect evidence, including the adopted laws of the parties and the prevailing norms in the child’s community. Although the jurist exercises discretion in imputing law to the mute infant, she does so subject to the objective constraints of discoverable evidence. If a jurist rules against the weight of the evidence, she puts her own reputation at stake.

To say that abortion by the mother is always prohibited,  or conversely, is always permissible, is contrary to personal sovereignty at the heart of voluntary law. Any absolute rule on the legal status of a fetus would necessarily be based on either an arbitrary diktat of some ruler, or on a definition of “person” that falls outside of voluntary law’s foundational definition of personhood. A person is, according to voluntary law, a corporeal, mortal entity capable at some prior relevant time of language and legal discourse (among other things). Infants, fetuses, fertilized human cells, and the severely mentally disabled from birth fall into a special category that might be called “potential persons who have not yet (and may never) become capable of adopting and following their own laws, yet might become capable within their lifetimes.” For brevity, we may generally refer to such living beings as “dependent potential persons” or “dependent potentials,” as a general class including infants, young children and those born with severe mental disabilities. The fetus is a prime example of this class.

It might fairly be asked how imputing a law to a fetus that permits it to be killed without legal repercussions can ever be considered a voluntary choice of the fetus. As a living being, all fetuses (and zygotes and fertilized eggs) must be presumed to share the common instinct of all life: survival. Therefore to say that the fetus consents to its own self-destruction is to contradict its evident will to survive, and impose a law not of its own choosing. This argument is logical on its face, but consent should not be confused with legal consequences.  We may be sure that no fetus or infant ever consents to its own destruction, and do not need to pretend otherwise.  The question is what to do with those legally competent persons who, by some intentional or negligent act, have caused the life of the fetus to be taken away.  There is no particular logic that requires that all such intentional or negligent acts must have legal consequences.  On the contrary, both moral and economic considerations teach that sometimes the intentional killing of a fetus, however tragic, is morally justified, as when to preserve the life of the mother.   From an economic standpoint, preservation of life generally requires wholesale destruction of its own seeds. Nature teaches us this in many instances, for example with egg-laying animals that may lay dozens or hundreds of eggs, of which few survive to adulthood. Even mammalian species often bear litters, of which few survive under normal conditions. The economics of life dictate that not every individual can survive to adulthood, and in times of great scarcity, difficult choices must sometimes be made.

In the face of these moral and economic realities, no sustainable society can enforce laws in which every individual package of DNA capable of growing naturally or artificially into a person is owed a duty of nurture. If such laws were to be enforced, there could be no legal abandonment or disposal of inseminated eggs. Mothers could be held liable for the violation of rights of miscarried fetuses. No natural society could consistently observe such an absolute rule. Exceptions to the duty to nurture have always been be made for one reason or another, and would always be made in every conceivable society. It is commonplace in every human society for dependent potential persons to be neglected or actively suppressed in the interests of sustainability of the social order on which the as-yet unformed persons depend. So it should be evident that elevating the universal survival instinct to the status of a socially-recognized law cannot be consistently or fairly realized; in actuality it is impossible because of inevitable clashes between fecundity and scarcity. Customs, rules, and laws regarding treatment of infants and fetuses have historically varied with the times and circumstances.

On the other hand, civil society also depends on reciprocal respect for the sanctity of life, which is threatened when the rights of dependent potential persons to live are callously disregarded. The statist approach to this tension is to proclaim one rule concerning practices such as abortion, infanticide and euthanasia, however arbitrary or divisive, or unevenly enforced. The voluntary law approach is more granular, based on the individual social circumstances of the dependent potential person, and therefore not arbitrary or inviting of uneven enforcement. The task of the jurist is to identify the law that the dependent person would most likely adopt, were it in the position of a caretaker or guardian. Were the jurist to simply ask what law comports with the dependent potential person’s will to live, no practical answer is possible, as argued above. The only legal inquiry with a practical answer is, essentially, is “does the applicable law of the parties under TROTWET depart from the prevailing norms to such degree that some other law should be applied?” In other words, if the dependent potential person had grown up in the social context of its caretaker or guardian, what law would it have adopted?

In the case of a fetus and most infants, there is no closer person to the fetus than the mother. Absent extraordinary circumstances, the mother’s law should be the law applied, when harm to a fetus is litigated. If deference to the mother’s law prevails, legal remedies to prevent or penalize abortion will very seldom be recognized unless the mother’s law provides for it. In rare cases, a mother’s law might be disregarded or modified if contrary to clear community norms, objectively determined. For example, if mother who has adopted a permissible adoption law moves and lives as a long-term member of a community in which nearly everyone has adopted a law that penalizes abortion, she may naturally experience difficulty in finding a credible jurist willing to impute her law to her fetus. A competent jurist might find that had her fetus grown up in the community in which she has chosen to live, as an adult it would have chosen a different law. The mother would therefore be unwise to have an abortion there, as legal results would not be predictable. Conversely, if a mother adopting a law that penalizes abortion chooses to live as a long-term member of a community whose members recognize no penalty for abortion, and after some sufficient time willingly aborts her fetus, legal penalties are unlikely to be enforced.

The imputed law of a fetus does not come into play in the case of legal actions against a doctor who performs an abortion, or by such a doctor against any attacker bearing an anti-abortion motive. Such controversies are decided under the laws of the parties. The fetus will not generally be a party to actions by a non-family complainant, for reasons explained in the following paragraph. When the fetus is not itself a party, the law that might be imputed to the fetus is not relevant to a choice of law analysis in these cases. Hypothetical disputes between an abortion provider and a third party “defender of fetuses” have been considered in an earlier post.

Imputed fetal law will not commonly be at issue, because disputes in which a fetus is a party will be rare. Something akin to the notion of “standing” will naturally limit legal actions by unrelated third party guardians. That limit “akin to standing” is the natural limit on the right to receive damages on behalf of an injured potential dependent person. Damages for ordinary murder will normally (assuming most victims prefer it) be payable to the estate of the murdered, and from the estate to the heirs designated by the law of the victim. In the case of abortion, the closest next of kin and likely imputed heirs will usually be the parents, who can be trusted to not sue themselves for damages. An unrelated third person will not stand to receive damages: under any reasonable rule, what reason is there to reward a stranger for the misfortune of a fetus?

There are some cases in which a rightful claim to damages arising from abortion might be enforced. For example, one parent might sue another to prevent an abortion or collect damages for one performed. Imputation of fetal law might arise in special circumstances such as disputes between family members, as when a related-party guardian sues a mother for damages on behalf of an aborted fetus, or in the unusual case where an unrelated guardian learns of another’s intent to abort, sues for an injunction to prevent an abortion from being performed. For example, a person who has paid a surrogate mother might (or might not) have a legitimate interest in seeing a viable pregnancy carried to term. Such claimants might sometimes seek imputation of a law to the fetus if the mother’s law is unfavorable to their cause, and the context clearly supports the imputation of some other law.

Cases that arise after abortion are analogous to litigation on behalf of deceased victims. The parties to the action are the victim and whomever the guardian is seeking damages from, for example, from the mother or from a doctor who performed the abortion. Where suit is brought on behalf of the fetus by an heir or legally potential caretaker, the applicable law is that of the fetus only, which may be imputed based on the circumstances. TROTWET does not apply, when law is imputed to a dependent potential person, as explained in a previous post. The neutral jurist will ask: were the fetus in the position of the mother, what law would the fetus hold? Absent other evidence, usually this imputed law will be the law of the mother, provided the mother has not recently changed her law merely for convenience’s sake. However, if the mother’s law is a rare outlier in a place where nearly all other mothers do not freely permit abortion, and where the mother plans to reside indefinitely, a jurist might conclude that more likely than not, were the fetus to grow to become a parent, it would likewise recognize a prohibition on abortion. In these very rare cases, a guardian might, for example, obtain a ruling requiring that the mother give birth and either care for the child or give it up for adoption. If a legal action is filed post-abortion, damages might be paid to the guardian or to some designated fund, for example, to a charity that represents the rights of the unborn, or that finds homes for orphaned children. Actual outcomes are likely to be highly varied and tailored to the context at hand, based on the voluntary law applied.

For emotional issues such as abortion or euthanasia, it is possible that some jurists may always impute a fetal or infant’s law with consequences for performing an abortion or infanticide, while others might always find abortions or infanticides non-actionable if performed with the mother’s consent, subject perhaps to other conditions. The approach suggested for imputing a law to the fetus provides a way to distinguish between mere consistency by happenstance, and unacceptable bias. If a jurist always rules one way despite hearing cases with different mothers’ laws, absent extenuating circumstances the jurist is plainly biased. The credibility and livelihood of any jurist who hears a large number of abortion cases and consistently rules one way regardless of the evidence at hand would quickly be destroyed. Any rulings tainted by that jurist would be rendered unenforceable, in any community that values neutrality in due process of law.

It might be feared that communities in which juristic neutrality is not valued might come to exist. Suppose, for example, a community is intolerant of jurists who are unwilling to rule one way or another, in the sense that the rulings of any jurist who rules against community norms are practically unenforceable. Widespread enforcement bias might sometimes lead to results contrary to basic justice under voluntary law. However, absent concentration of capital and political power such as states enable, maintaining enforcement biases contrary to reason and justice over large areas for long periods of time will not be possible. If there is a sufficient market for justice of one flavor or another, providers will spring up to meet it.

It can fairly be asked whether providing jurists with the power to impute law to fetuses and other potential persons grants too much power to the jurist. Does relying on community standard bring back the state in another, more subtle guise? No, because there is no actual “standard” outside of a consensus between jurists of good reputation. In fact the opposite problem of disagreement between equally reputable jurists will be more commonplace. Such non-uniformity, if intractable despite good faith efforts, may be evidence that the supposed community standard is not clear enough to support a legal ruling. The potential person will therefore have its rights disposed of under the more usual tool of TROTWET applied to the laws of the parties, or not at all.

Suppose, for example, that the father of a fetus sues the mother for an injunction to prevent an abortion. A first jurist holds that community standards require the pregnancy to be carried to term, under the circumstances at hand. The mother appeals, bringing the case before a second jurist. The second jurist finds there is no community standard regarding abortion, and rules that under the mother’s law the abortion cannot be prevented. If the jurists are of similar reputation, enforcers willing to enforce the first jurist’s ruling will be hard or impossible to find. Reputable enforcers will not want to risk a claim of damages based on the second jurist’s ruling. Although the power to impute a law under limited circumstances grants discretion to a jurist, such discretion cannot be exercised absent a very compelling reason that would be clear to every reputable jurist available to hear the case. Thus, the power is merely a sort of check against loathsome conduct by caregivers, and cannot function as a tool for leveraging judicial influence beyond the constraints of personal sovereignty.

Once a child is born, the adopted laws of other parties to litigation may be given greater weight, as the infant is no longer dependent solely on the mother for survival. In any event, controversies over abortion are no longer possible, once the baby is born. Although repugnant to most modern cultures, infanticide is not unknown in present or historical societies, especially of infants born with severe genetic defects. The legal questions under voluntary law are not much different than abortion, with the important difference that the infant is capable of surviving independently without care for a considerable period of time. Social norms would provide to an abandoned infant a law requiring some reasonable duty to provide care, even if parents abandoning an infant somehow lacked such a law. The standard of what is “reasonable” under the circumstances will vary based on context. For example, what is reasonable in New York City or Omaha may differ from what is reasonable in isolated, resource constrained societies, for example, aboriginal Amazonians or a small colony on the moon. Infant abandonment has been considered in the previous post.

Other cases that touch on the legal rights of dependent potential persons may include abuse, euthanasia, competing caregivers, probate and right to inherit, and actions by or against a legal estate of the dependent potential person. To determine what law to apply, the jurist first determines whether or not the legal interests of the dependent potential person are at the heart of the case. Essentially, the jurist determines whether a claim based on harm to the dependent person, or a claim for or against a property interest of the dependent potential person is at stake. If so, the jurist first determines and imputes a voluntary law to the dependent potential person, and then applies the imputed law. If no such claim is at stake, the jurist applies TROTWET to laws of the parties. Thus, the dependent potential is a party in cases of abuse, infanticide, euthanasia, or the infant’s property rights.

The potential person is not necessarily a party in cases of competing caregivers (e.g., a custody dispute), absent an allegation of abuse. Therefore TROTWET applied between the competing caregivers determines the outcome. The weaker law in a custody dispute is like antecedent basis in property law: the law with the most stringent antecedents to a claim of custody wins. The jurist may evaluate stringency based on some community standard. For example, suppose a father’s law states that sole custody should be awarded to the parent most capable of providing economic support, whereas the mother’s law states that custody should be awarded to the parent who spends the most time personally caring for the child. We can hope that such disputes would be very unlikely because all responsible parents will adopt mutually agreeable laws providing for shared custody in the best interests of a child, before parenting a child together. Nonetheless, some children are conceived and borne without due forethought, and just such children are more likely than others to become subjects of custody disputes.

How is a jurist to determine the weakest of competing custody laws? Which antecedent is more “stringent”: providing economic support, or providing personal care? The child needs both types of support, and both require roughly equivalent measures of exertion. If both parents have demonstrated support for the welfare of the child, a sage jurist might declare a “tie” and help the dueling parents work out a shared custody arrangement. If one of the parents has been negligent, it little matters which law is applied, because under either law, the custody will be awarded to the sole supportive parent. Where the custodial claim is spurious, it might easily be recognized as such with or without application of a comparative principle such as TROTWET. A wise jurist does not seek perfect compliance to any idealized mathematical model for applying voluntary law, “stringency” included, nor seek to play logical games for their own sake. Instead, the wise jurist seeks to do justice within a framework that respects the personal sovereignties of the parties and of the dependent potential person involved in the dispute more than rules imposed from the outside. Concepts such as “stringency” are suggested here as guides to realizing underlying principles of justice in specific circumstances, and not as infallible laws applicable in all circumstances. Where these concepts provide no clear answer, or provide a clearly unjust answer, the ruling should be made on the basis of more pertinent and illuminating criteria.

The case of euthanasia of a once-capable dependent differs from the case of the dependent potential person. The case of a mercy killing would be judged under the applicable law of the one killed, as with any other case involving two parties. It will be almost guaranteed, however, that the person performing the killing will have adopted a law that permits assisted suicide or perhaps mercy killing in limited conditions. For example, killing a person with the permission of the caretaker, or by the caretaker, of a chronically uncommunicative dependent in a medically incurable state with an extremely low chance of recovery, might not be regarding as a cause for any action. For TROTWET to excuse such mercy killing, it will be important that the rule is written as positive law and not as an affirmative defense, as has been noted.

A person opposed to mercy-killing should therefore appoint a caretaker who is also opposed to mercy killing, to avoid a hastened but merciful demise. But what if the killer’s law does not require the consent of the dependent’s chosen caretaker? Such a person would be unnecessarily inviting legal action by offended caretakers. Mercy killers operating without consent would not normally exist, because it would be more expedient for them to pursue the occupation of mercy killing with caretakers’ consents to avoid legal and extra-legal risks.

Supposing, however that the mercy killer has an uncanny knack for selecting suitable victims against caretakers’ wishes, would there be any legal recourse? The bold mercy killer would inevitably face charges of ordinary murder from angry caretakers.  If the killer had failed to adopt a law against ordinary murder, he would quickly wind up dead at the hands of an aggrieved caretaker. Unless, of course, every one of the caretakers lacked any basis for showing that the killer had acted beyond the authority of his own reasonable mercy-killing law. In which case, the killer’s aptitude for selecting suitable victims would be uncanny indeed.

What if the mercy killer acts under an unreasonable mercy-killing law? Such a killer faces several risks. For one, a jurist might hold that the unreasonable mercy-killing defense is an affirmative defense, which will not be applied under TROTWET. Second, by publicly adopting an odious law, the killer shows himself to be a monster, losing friends and making enemies. Finally, the killer risks being mercy-killed unreasonably by any other person, if his law is deemed to be a positive law, under principles of TROTWET as have previously been explained.

Intertwined voluntary law societies obviously cannot and should not be expected to provide one uniform resolution to divisive and difficult social issues. These societies will instead permit experimentation, transparency and above all, acceptance of conflicting beliefs on difficult moral and legal questions that fit within its foundational limits. Abortion, infanticide and euthanasia provide examples of such difficult questions, which are fully capable of resolution within voluntary frameworks. In the case of the laws to be applied when harms to dependent potential persons are litigated, voluntary law provides a framework for dispute resolution that is both considerate of the practical realities of sustainable societies, and deeply rooted in respect for the life and self-sovereignty of every society member, present and potential. Voluntary law can do this without contradicting the essential meaning of a “person” as one who is capable of acting intentionally and deliberately with knowledge of articulated laws governing social conduct.

* * *

Photo credit to Suparna Sinha

Some rights reserved under Creative Commons License

Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0)

Standard
Dependents, Introduction To Voluntary Law (Book)

Children and Other Dependents

Different voluntary laws are in some sense “compatible” when consistent with the three pillars as defined earlier: personhood, voluntariness, and publication.  A logical system for resolving conflict of laws follows by rational deduction from these core principles.  There may be incompatible systems of voluntary law; for example, those that use an incompatible definition of person.   Here a distinction must be made: systems that define personhood based on some arbitrary characteristic (for example, color of skin, language, eye color, beliefs, etc.) are not systems deserving of interest.  They may arise and exist as backwards curiosities, but will not thrive in the face of universal definitions of personhood that rest on the corporeality of the individual, possession of a moral sense, and the capacity to understand, adopt, and follow rules governing resolution of conflicting rights or claims on a reasoned basis.  There may exist debate about these fundamental prerequisites to personhood, and when they apply.  Some issues of such debate were touched upon in an earlier chapter.  Interesting real-world problems do arise, however, over treatment of “temporary” non-persons, such as minors or mentally disabled persons, treatment of collective entities, animal rights.  More exotic questions such as artificial or alien life may deserve a little attention as future possibilities.

Speaking of fetuses, infants, children, or others incapable of looking after themselves, when is intervention justified in a caretaker-dependent relationship? What law should be applied to justify intervention, when the subject is incapable of adopting her own law?  An ancillary question concerns what actions are justified when no legally responsible caretaker can be found for such a person.  If every dependent person (or potential person) has an uncontested caretaker, who treats the dependent in a manner consistent with prevailing customs, legal controversies do not arise.  Legal questions can arise chiefly when dependents are abandoned, are the subject of caretaker disputes, or are treated in a way that those willing to take defensive measures regard as abusive.

For purposes of voluntary law, we may divide dependency questions into two essential classifications: those in which the dependent was at least at some relevant time capable of functioning as a legal person, and those in which the dependent has never acted as a person in the legal sense and is reasonably regarded as lacking the capacity to do so for all relevant times.  There may be, of course, controversy or doubt as to which class a person belongs to, or gradation along a spectrum from incapacity to capacity.  Nonetheless, exploration of the legal middle ground depends from the opposite classifications that define its boundaries.   We shall explore how voluntary law might work in the gray, intermediate zone between clear legal capacity and clear incapacity, after first considering how dependency works in the end conditions.

“Relevant times” means those times relevant to the legal question at hand.  For example, in considering the validity of a power of attorney, the relevant time is that time when the power was granted.  At some time afterwards, the grantor may be completely incapacitated (e.g., may be suffering from a severe brain disorder).  The subsequent lack of capacity may not be relevant to the validity of the power, depending on its terms.  For further example, the relevant time for an aborted fetus is the time up until abortion and death of the fetus.

A dependent relationship between two legally capable persons may take the form of a contract or agreement, a grant of power, a temporary agency or rendering of assistance or other circumstances in which one legally capable person depends on the actions of another.  These relationships are easy to analyze.  In a wholly voluntary law society, any controversies arising out of such dependencies are treated under the laws adopted by the participants, using some rational system for resolving conflicts of law, such as TROTWET.  The capacity of a person to act in the adoption of law may be an issue in certain cases, just as is it conventionally for purposes of contracts, criminal intent, testamentary capacity, and in other cases.  There are many different possible factual scenarios.  For example, a dependent who previously adopted a first law ‘A’ and later ‘B’ might have the adoption of either ‘A’ or ‘B’ challenged.  If there is sufficient evidence that the adoption was not made intentionally by the dependent while being in a mentally capable state, the adoption of law might be nullified by judicial action.  For example, a later adoption of law ‘B’ might be nullified and the dependent’s law therefore might be considered to be ‘A’ and only ‘A’.  If the adoption of law ‘A’ is also nullified, the dependent may fall into the status of a dependent outlaw, similar to a child who has never adopted any law.  Treatment of dependent outlaws will be considered below.

First, however, consider the possibility of conflicts between the law of a non-outlaw dependent and the law of another person who acts as a caregiver.  Such conflicts may come into play, for example, when the caregiver brings an action to spend assets belonging to the dependent for the dependent’s care, or for a declaration of property interest in the dependent’s estate.  Conversely, another acting as a guardian under the dependent’s law might bring an action to recover damages from a negligent or abusive caregiver, or to seek termination of the caregiver relationship.  In the sense used in this essay, a “guardian” should be understood as nothing more than a self-appointed  legal representative who asserts the dependent’s law on behalf of a dependent.  A “guardian” is not appointed by any jurist, and has no special powers to act on behalf of the dependent.  In bringing a case before a jurist, the guardian bears the risk that the jurist will not interpret the applicable law in a way that favors the guardian, just as any other litigant.

Consider the result if the property claim or asset request is permitted under the caregiver’s law but not under the dependent’s, or vice-versa.  In either case the claim will fail, under TROTWET.  Naturally, this will create a shortage of payment for continuing care, if the dependent has not previously executed an agreement permitting the caregiver to spend the dependent’s property for the dependent’s care.  Unless some legal action can be taken, a dependent who is incapacitated and unable to act on his own behalf will be deprived of the benefit of his own property.  On the other hand, if the dependent’s law clearly preserves the estate to the detriment of continued care in the situation at hand, the jurist cannot assume that the dependent would prefer that the estate be wasted for continued care and not be inherited by an heir.  In these cases, the legal effect of adopting a clear law on the question would be similar to the granting of a “durable power of attorney” or a “do not resuscitate” order, under the law of many U.S. states and other places.  No person should be required to waste their estate on extraordinary care for the last days of life.

In case of action by a legal guardian under the dependent’s law against a caregiver, consider what happens if the recovery is permitted by the law of the dependent but not the caregiver, or vice-versa.  In either case, the recovery is not permitted.  Such an outcome can easily be guarded against before the disability arises, either by appropriate adoption of law or appropriate selection of a caregiver or class of caregiver, by the future dependent.  For example, the dependent’s law might provide that no person can be regarded as the dependent’s appointed caregiver whose law does not adhere to specified minimum standards for caregivers.  Thus, a person acting as an invalid caregiver would be vulnerable to claims of a general nature, e.g., trespass or assault, for care of a non-emergency nature.

Finally, we consider the treatment of dependent outlaws, of which the largest but not exclusive class consists of children.  Dependency of a legally incapable outlaw on a legally capable society member raises various possibilities for determination of law.  One possibility is to treat the relationship wholly under the law of the legally capable person, while treating the legally incapable person as an outlaw like any other.   Under this approach, the poor dependent person in the relationship would be deprived legal recourse for abortions, infanticides, child abuse, euthanasia, kidnappings, and all manner of horrors heaped upon her.  She would be treated under voluntary law as if she had consciously chosen to be an outlaw, despite lacking ability to escape by adopting a law.  Such an approach would create incentives for abuses against children and other dependents.  It is not worthy of serious consideration.

Another possibility is to apply the law of the caregiver, as if it were also adopted by the dependent.  This is the nearest choice.  Nearest perhaps, but applying the law of the caregiver to the rights of the dependent invites abuse by unscrupulous caregivers.  At the same time, abuse is no less likely if a third person with some interest in the outcome of a dispute is empowered to craft the law governing the relationship between the caregiver and the dependent outlaw.   For example, a rational parent would prefer to have no legal obligations to his children, and would be content to perform the duties of parenting under purely moral obligations such as felt by the parent’s conscience.  Conversely, a rational person in the business of child protection (without state intervention, of course) would recognize the essential need for a standard of legal protection of children, to enable the activity of child protection to be legally recognized.  Both classes of persons are capable of abuses, as well as good deeds.

There is really only one solution consistent with equal rights under natural law: to presume the child is person of good conscience who would not adopt a law against her self-interest, if she were capable of adopting any law.  The alternative, to regard the child or other dependent as entitled to no more rights than the property of the caregiver until emancipation, is contrary to nature: children are plainly not equivalent to livestock, being of the same kind as those who care for them.  Children are the fabric of future society, destined (with luck) to become equal participants in a society based on personal sovereignty and adoption of law.  Livestock and other animals incapable of language do not share the destiny of children, and belong to a different class of being.  In a system of law based on personal sovereignty, it is inconceivable that any child or immature person could be regarded as nothing more than the property of another.  That is not to say that the relationship between a caregiver and a child cannot resemble a bilateral property interest, in some respects.  Such a resemblance is indeed possible, as we shall see.

The question at hand is which law to apply to a dispute involving the rights of a child, when parties in conflict disagree about the law to be applied.  There will always be some conflict between persons in such disputes, because a dependent (not emancipated) child will be incapable of bringing her own case.  Put another way, a person of any age capable of bringing his own case, if it is truly his own without any legal claim of dependence on another, deserves to be regarded as a person with all the rights and responsibilities of self-sovereignty.

Conflicts touching directly on dependent children will often take the form of custodial disputes between estranged parents or relatives, and less frequently, allegations of parental abuse by child protection agencies, whether in the person of interested family members or neighbors, or as organized benevolent societies.  Other cases may involve a dispute between the child and an adult.  For example, the property rights of the child may be at play, or damages for an alleged wrong committed by or against a dependent child.   We shall consider the first class of disputes first.

Assessing the weaker tool is based on comparing the burdens that a law places on the sovereign parties to a dispute.  The underlying principle is that one cannot impose legal burdens on another that are not consented to, and that one would not accept for oneself, if the tables were turned.   However, this principle does not hold when the object of the claim revolves around the rights of a dependent person who has not selected any of the laws to be assessed.  If there is to be a weaker law selected, the analysis must not fail to consider the perspective of the dependent person, who has brought no claim.

Lacking any adopted law from the perspective of the dependent, if the dependent is to be regarded as a person, the jurist is compelled to consider what law a reasonable person in the circumstances of the dependent would adopt regarding the disposition of her rights, knowing that all the burdens and responsibilities of that same law would be applied to her if she were to someday become a parent.  This imaginary law cannot be fabricated from nothing; it must be supported by credible evidence and be developed objectively by a neutral, unbiased jurist.  It must not be standardized or imposed by some authority on community norms.  On the contrary, the law that is imputed by the child must be reasonable, contextually appropriate and customized to the child’s individual circumstances, as determined by an independent, neutral and unbiased jurist.

Such an imaginary law might resemble norms of the community to which the child and her family belong.  It might also bear a resemblance to the laws held by the disputants in the case.  Finally, the stated preferences of the dependent child and her siblings, if she or they are capable of expressing any, cannot be ignored in the determination of such an imaginary law, provided that the preferences are drawn out in a balanced and unbiased way by a neutral counselor, or estimated in some objective way from statements of similarly situated persons (e.g., siblings or fellow travelers).  For each person chooses law that fits their psychological preferences and is compatible with the community in which they are raised, and will raise their own children.  When a dependent outlaw is incapable of choosing his own law, a jurist must do it for him, from the perspective of the dependent.  Such a job will never be perfectly accurate, but nonetheless the justice of such estimations can be measured against standards such as suggested above, which is all that any law can do.

For example, circumcision may be considered conventional and desirable in some communities, and merely abusive in another.  Suppose a pair of parents circumcise their child for cultural or religious reasons.  Suppose that a grandparent who considers circumcision to be a grave form of child abuse unless medically necessary sues for guardianship of the child.  Assignment of caretaker responsibility for circumcision is clearly justified under the law of the grandparent, but not recognized by the law of the parents.  We might be tempted to recognize the law of the parents as the weaker tool, because it provides no remedy (change of guardianship) for the conduct complained of.  But what if a severer form of trauma had been complained of? Can we really accept an absence of any legal remedy for caretaker abuse?  Justice requires vision from the perspective of the child, so that the law that places the least burden on the child is the weaker tool. That would leave us wondering how to determine the “least burden,” in a circumstance without any lawmaker and thus, no justification for applying the weaker tool in the first place.  More simply, we cannot rely on the natural balancing of interest normally provided by the Rule Of The WEaker Tool in an action that directly impinges on the dependent outlaw, because the consequences of holding a weak tool do not fall on the law maker, but on someone else – the child, who holds to no law.

Accordingly, the jurist must identify the law that the child or other dependent outlaw would most likely choose were it capable of reasoning through the benefits and burdens involved.  This is a high degree of discretion, but a jurist who cannot reason persuasively and fairly in accord with the sensibilities of those who come to judgment will not be long in business.  Suppose the child lived in a community where circumcision was considered to be as ugly and depraved as most today would consider cutting off of noses and ears, the parents who circumcise their child would likely suffer some penalty, such as paying for reconstructive surgery and loss of, or restrictions on, their caretaker status.  Conversely, if the child’s community feels that circumcision is a desirable mark of honor or social belonging, there would be no remedy despite the opposition of the grandparents.

How can a jurist determine a law to be imputed to a fetus, or to an infant?  Just as in other cases; except that statements of these dependents cannot be taken into account, because they are incapable of speech.  Therefore the imputed law is mainly based on prevailing norms in the child’s community and the adopted laws of the persons at issue.  In the case of a fetus, there is plainly no closer person to the fetus than the mother, so the laws of the mother cannot be lightly disregarded, and will likely prevail in the vast majority of cases.

What if a community believed it necessary to sacrifice children to some god or demon?  If this were a community standard, must a jurist enforce it?  This is a nonsensical question.  A group of people who sacrificed children to the gods would not be a voluntary law society; it would be a group of outlaws who deny voluntary cooperation and use irrational fear and violence to oppress less privileged classes.  Such outlaws would not submit to the jurisdiction of a voluntary law jurist, and the question would never arise.  Nonetheless, somewhere between child sacrifice and circumcision lies a spectrum of parental behavior about with reasonable people might vehemently disagree.  Corporeal punishment provides a good example: to some, corporeal punishment is an inexcusable crime, no matter how implemented; to others, is it a useful if not necessary means of discipline. When disputes arise about corporeal punishment of a child, a voluntary law jurist will weigh the three factors of community norms, interested caretaker beliefs, and dependent statements (perhaps among other reasonable factors) to determine the limits of corporeal punishment in particular cases, and what remedies to apply when the limits are exceeded, as if crafting the law that the dependent would craft for herself if she could.  The judgment would be tailored to the individual circumstances of each case, including the underlying conduct, identities, and laws of the parties, community norms at the time, the age and statements of the defendants, and so forth.

The respect to which the judgment would be given would depend mainly, as always, on the strength of good reputation of the jurist, and the thoroughness and neutrality with which the record indicates that the case has been examined.  Results would not be perfectly consistent (nor have perfectly consistent results ever been achieved by any system of justice), but on the whole would tend towards greater justice than is possible when imposing a uniform rule on controversial questions.  Voluntary law permits diverse and conflicting opinions to coexist, with pressure towards uniformity coming mainly from the grassroots.  It is not an instrument for imposing uniformity against opposition.  Anyone publicly holding to a controversial law, however, will do so at the risk of her relationships with her community.  There can be social pressure to conform, but no aggressive coercion requiring it.

If a law is imputed by a jurist to a dependent person, is that law then subject to moderation under TROTWET or other conflict resolution principle?  Generally, the answer is no, assuming that the dependent is not a party to the action.  Most actions involving dependents, except those in which the dependent is close to capable status (e.g., is a teenager) will be brought by a guardian against a caregiver.  Suppose, for example, a guardian’s law provided for payment of the guardian’s reasonable expenses by the caregiver, if corporeal punishment by a caregiver is found to be abusive.  Suppose that the caregiver’s law provides no such remedy, even in the event of abuse.  If there were no dependent involved no damages would be assessed, but the caregiver would be vulnerable to attacks motived by vengeance as has been explained previously.  Because the controversy revolves around the rights of the dependent outlaw, TROTWET does not apply.  If the jurist determines that the dependent’s law requires payment by the caregiver for the guardian’s protective services, that will be the law applied.

The case of the intermediate-capable dependent is answered by the solution to the pure dependent:  the statements of the dependent are given more weight in judicial determination of its law, as the dependent approaches the full capabilities of independent personhood.  The teenager has more rights and responsibilities than the toddler.  The other factors diminish in importance.  Once the full capacity is personhood is reached, the jurist no longer determines the person’s law; the jurist merely reads and interprets what the person has adopted.  Determination of capacity in the intermediate zone works like a sliding scale.  These determinations may not always be exactly correct, but neither will they be far from a just result, and results in aggregate should tend towards justice.

A fully capable person may be recognized by the absence of any claim of dependency on another.  If a precocious youngster is able to articulate and understand his own law, but not to support himself by his own wits and labor, he is not fully capable.  His abilities and statements will be given weight, but to the full weight afforded to a voluntary law adopted by a capable and independent person.

If voluntary law can be imputed to the dependents of voluntary law society members, can voluntary laws also be imputed to the children or other dependents of outlaws?  In a philosophical sense, yes.  But in a practical sense, generally not.  Regimes outside of voluntary law will have their own rules governing dependent persons, or will be lawless.  In either case, there is no basis for bringing any adult person involved with the dependent unto a voluntary law forum.  If an abandoned child of an outlaw somehow comes before a voluntary law forum, and a society member appears as an interested caretaker, the justifications for providing the dependent with the benefit of voluntary law are as valid as for the child of any society member.  It is permissible to make provisions for the dependent within voluntary law, where the society of outlaws has broken down.  It is equally valid to return the dependent to the society of outlaws, if there is no caretaker willing to bear the risk of caring for a dependent of outlaws.

Providing dependent outlaws with the protection of an imputed personal law might sometimes create a relationship of mutual servitude between a caregiver and a dependent.  The caregiver might be deemed to owe a legal duty of care to the dependent, while the dependent may owe a duty of obedience to the caregiver.  Such obligations, however, will rarely if ever be involuntary, so long as the caregiver’s sincerely held choice of law is given its due weight in the analysis determining the law to be applied.  Voluntary servitude does not offend classical libertarian principles.  Voluntary law, however, may provide a means for guardians to legally enforce obligations of care under circumstances when the caregiver seeks to renounce obligations that he or she has previously undertaken.  Likewise, legal enforcement of the duty to obey may be exercised in the case of dependents who wish to receive the benefits of the caregiver’s duty of care.  If a dependent is able to emancipate himself or herself from a caregiver, she is always free to do so, consistent with classical libertarian principles.  However, a caregiver who by adoption of law has undertaken a duty of care to a dependent child can be legally required to honor that duty until the time of emancipation.

Promissory estoppel as known in the common law of contracts may exist when the promises of a person create detrimental reliance by another.  This concept may be extended to “promises” implied by publicly adopting a law. Suppose, by example, that a prospective father adopts a law under which he recognizes a legal obligation to support any natural offspring or adopted child until the age of eighteen or until emancipated, whichever is earlier.  While holding to this law he attracts a mate, who bears him a son.  Suppose the father then renounces his earlier law and adopts a new law without any legal obligations for child support.  If it can be shown that the mother relied on his law providing for an obligation of support in deciding to mate with him, the father may be said to be estopped from escaping the duty he had previously proclaimed openly.  Under voluntary law, the analysis can be directly based on the relevant time for the applicable law; there is no need to make a specific finding of estoppel, although it may be implied under such facts.   The relevant time for choice of law can be found to be the time that the son is conceived, because all the obligations of the father arise from the act of inseminating the mother under conditions in which he held to a law that obligated him to child support.  So long as the mother held and holds to a law obligating her also to child support, she has a legally enforceable claim for child support against the father.  If the mother hypocritically disclaims support obligations, she cannot claim more from the father than she is willing to provide herself.

Thus, when both parents acknowledge an obligation of support, voluntary law may provide similar but hopefully more efficient and individually tailored outcomes than we are accustomed to under some state-imposed family laws.  When one or both parent have by adoption of law disclaimed child support obligations at the time a child is conceived, voluntary law will provide a different outcome.  If one parent only has adopted support obligations while the other has disclaimed (or has not adopted) such obligations, the parent without obligations cannot enforce obligations against the other parent.  A guardian may step in to enforce the dependent’s rights against the supporting parent only, under the dependent’s imputed law.  In such case support would be paid in trust to the dependent only, not to the other parent.  Naturally, any person considering parenting a child would be prudent to investigate the law of the other parent before proceeding to conception.

If both parents disclaim or do not acknowledge support obligations at the time of conception, can a guardian of a dependent child legally enforce support obligations on the child’s behalf?   It will depend on the circumstances, but in general the answer is no.  But neither will any parent be able to prevent the guardian from intervening and assuming caretaker status.  Under an imputed law analysis, no rational person in a state of dependency would accept any claim or duty of obedience to a person who disclaims all duties of support.  Thus, if both parents disclaim support from before conception, they will not have any legal right to assume the exclusionary privileges of a caretaker with respect to the child, unless they adopt the attendant obligations of child support in a timely manner.  If imputing law to a child has any consistent result, it is certainly this: there can be no parental rights where there are no acknowledged parental obligations.

The extent of those obligations may vary based on voluntary law.  Nothing requires an absolute obligation of support, regardless of consequences.  For example, the parent’s law may provide that they are not legally required to sacrifice their survival for the survival of the child, or to do without basic comforts or medical care to provide every possible opportunity to the child.  Elegant expression of such limits may be left to the unlimited creativity of the writers of voluntary law.  Perhaps some will be inspired by the ancient Golden Rule, and provide that the duty of care owed by the caregiver to the dependent, or the parent to the child, is equal to caregiver’s duty to care for herself, neither greater nor less.

Being without legally enforceable support obligations to a helpless dependent does not equate to no obligations at all.  Nearly everyone’s law will include some duty of care to helpless persons.  For example, if a person faints suddenly in the middle of the road, most would recognize a legal duty of others to exercise due care to avoid running them over.  These principles are well known in tort law, sometimes expressed as a duty to not create an unreasonable risk to others. While some may disclaim such basic social obligations, they would be foolish to do so, both because it would greatly harm their reputations, and put them at greater risk of harm from others.  In the case of the helpless infant or child, such widely recognized duties would ensure that the parents locate a willing caretaker for the child before abandoning it, at least under normal circumstances in which some willing caretaker can reasonably be found.  Since there is no legal penalty for abandoning a child so long as a willing and capable caretaker can be found, the parents would not fear legal repercussions, and could openly seek a caretaker to assume responsibility.  In normal times, willing caretakers could easily be found.   Under circumstances of extreme stress, such as during widespread prolonged famine or military attack, legal duties of support have little meaning anyway, and difficult choices must be made.

When the dependent outlaw commits some harm against another, what is the law applied?  For this particular class of problems, there will be little controversy in selecting the weakest law from law of the caregiver and the law of the injured person, using a TROTWET analysis.  In most cases, the laws at play will call for restorative damages that the caregiver in the dependent relationship would be liable for anyway.  Few would disclaim such liability, lest they also lose timely recourse for harms committed by the children of others.  However, if the prevailing law does disclaim liability for the caregiver, liability for damages would fall to the child, under the law of the child as determined by the jurist.  Collection of the liability could be postponed until the child is reasonably able to earn money for paying a judgment.  The child would be eager to repay its debts, if it wished to participate as a reputable member of the larger society.  The child would find it difficult to establish a good reputation without showing that it has paid, or is in process of repaying, for debts arising from its own misconduct.  In the case of the most serious offenses, for example, murder, the fate of the child will depend on the findings of the jurist and the three principal factors previously discussed: community norms, the involved persons adopted laws, and the perspective of the dependent.  The child may receive a lighter penalty for her dependent status, or not: the outcome will depend on the context of the case.

In the case of abandoned dependents, a similar analysis applies.  The imputed laws of the dependent are paramount, and the role of the jurist in identifying the law to be imputed is magnified.  Capable parties in such action will be those with an interest in the welfare of the dependent, and any accused of shirking their responsibilities.  There will always be at least one party acting as a guardian, or the matter will not appear before a jurist.  If there is no parent or family member interested and able to take on the obligations of a caregiver, this role will be assigned to a friend of the family or even to a stranger, based on the determination of the jurist.  In any prosperous society, there will be intense competition for caregiver roles of young, non-disabled children, because of the social security afforded by the caregiver-dependent relationship.  In the absence of the state, one’s prosperity and security in old age may come to depend on one’s social status, of which membership in a large extended family will be an important part.

Even older dependents or disabled dependents will not lack options, which may be better that what can be provided by state central planning.  Older children without caregivers will arrive in such a condition by a diverse array of events, for example, a long period of undiscovered abuse by a caregiver, a rare tragedy wiping out the child’s family, or misconduct on the part of the dependent causing them to be abandoned.  Likewise, disabled children will suffer from diverse disabilities.  The point being that there are no “one size fits all” solutions to these unfortunate situations and each case needs to be considered on its own merits.

Consider some of the various possibilities.  In the case of disabled dependents whose caregivers lack the financial means, but not the will, to care for the disabled dependent to the extent the law imputed to the defendant requires, contributions for support can be solicited from various charitable sources.  Such charitable sources would certainly exist in a voluntary law society, in which a good reputation is more desirable than gold.  Some such sources would be involved in research for curing or coping with the disabled conditions, and others would support such care out of their general charitable mission.  If the caregivers lack both the means and the will to provide care, the situation would be much the same, with the exception that caregiver privileges could be assigned to another person.

In the case of a rare tragedy wiping out a dependent’s caregivers, new caregivers could easily be found.  Such stranded dependents are nearly as desirable as young children, and in some cases more desirable, because they may have a record of prior good conduct that reduces the inherent risk of accepting responsibility for a dependent.  In a voluntary law society, slight needs come with slight responsibilities, and every good deed enhances the reputation of the giver.  Many would find themselves blessed to provide care for such unfortunates.

The older dependent with a record of misconduct would face the least favorable options from the short-term perspective of the dependent, but even these options would be better than can be provided by a state under centralized political authority.  With a young offender, there is a greater chance of rehabilitation than an older person.  In a free society, markets will exist to meet the natural demand for managing troubled teens in a way that produces positive outcomes.  The most difficult teens are often the brightest and most energetic, and institutions with effective programs would produce their share of illustrious alumni.  Most of these alumni superstars would support the institutions that helped them in their time of need.  Not only so, many wealthy parents with difficult teenagers would pay dearly to send their children to such institutions.  These institutions for human development of troubled youth would compete to take in troubled youths who lack caregivers of means, because doing so enhances their reputations for success as well as for compassion, and adds to the talent pool for development of successful, motivated alumni.

Where caregivers of means are available, a jurist may require them to send the dependent to an institution, and to pay the institution’s tuition charges, per the law imputed to the dependent.  Caregivers may ignore a jurist’s ruling without fear that their child will be kidnapped by the institution, with rare exceptions when safety of the community requires that a violent youth be deprived of freedom for a while even against the caregiver’s wishes.  In most cases, however, the caregiver will consent to temporary incarceration of a youth with a record of harming others, to manage liability for the harm that the dependent youth may do to others in the future, and for the youth’s own protection.  If the jurist is of good reputation, and the dependent decides of her own will to attend the institution, the caregiver will receive an invoice for the tuition that cannot ignored without damaging caregiver’s credit rating or creating a risk of collection action.  On the other hand, if the caregiver forcibly prevents the dependent from attending the institution, the caregiver will be liable for any resulting damages that accrue to the dependent, or that the dependent inflicts on others, during the remainder of its dependency.  Accordingly, whenever a guardian has sued for an order admitting a dependent to an institution for restoring the reputation of a youth, diligent caregivers will work assiduously with the jurist to identify a solution that complies with the law imputed to the dependent and is mutually satisfactory for all people involved in the controversy, if possible.  Jurists in these cases would likely come to resemble family counsellors possessing a degree of social power to motivate cooperation from the family members appearing before them.

The principle of imputed laws for dependent outlaws can be applied to treatment of abortion, infanticide, and euthanasia under voluntary law.  These subjects will be considered in a following post.

It may not take a village to raise a child, but the environment in which a dependent is raised, including its “village,” may become a factor in the determination of the laws that should be applied to achieve justice in the dependent’s case.  The call for objective determination of the law of the dependent arises naturally from the bedrock of personal sovereignty.  This determination will require the insights of neutral, informed, compassionate and wise jurists.  Caregivers are generally the most important pillars of their dependent’s community, but in no case are they to be considered tyrants over their dependents, lest the core principle of personal sovereignty for every person be subverted.

Standard
Overview, Public Interest Laws, Voluntary Law

Protection of the Environment And Other Social Action

3266937065_447fa952f0_z

Under a statist model, general sovereignty and ownership over a territory is granted to some entity charged with governing the territory in a so-called “public interest.”  The degree of environmental protection provided by the statist model will depend on various factors, both political and practical.  Historically, this model leads to the suppression of selected uses of resources in favor of uses preferred by politically advantaged interests.  As a guardian of the environment, whether from the point of view of preserving sustainable ecosystems or preserving public resources (e.g., clean air, water, food stocks), the state may have sometimes played a positive role, but on the whole its record is rather dismal.  The state will almost always choose to subsidize or enable industries that increase its power and reward its patrons. The development of nuclear weapons, fission power, and dominance of the military-industrial complex over environmental interests whenever a state is stressed militarily (and often at other times) provide a few examples.

Certainly, the concept of property claims over land can also play an important role in environmental protection.  Environmental resources can be preserved by private property to any extent desired by the property owners capable of defending their property interests.  Rational owners will generally prefer to preserve their lands to the extent preservation does not deprive them of the benefits of ownership.  However, price competition among sellers of goods of all types can lead to widespread disregard for long-term environmental sustainability or other adverse impacts on neighboring or public resources, in pursuit of short-term reductions in production costs.  This so-called “socialization of costs” is a problem with free market capitalism that is often used to justify state intervention.  Purely private property regimes similarly can lead to unchecked exploitation of any resources unprotected by a private property claim, as in the “tragedy of the commons” examples.

Respected earlier thinkers in the area of self-organized society, for example Murray Rothbard, looked mainly to enforcement of property rights by individuals or private collectives for environmental protection.  Among other things, such writers have recognized that if the general public favors environmental protection, so will a majority of property owners, assuming that property rights over land are not concentrated in the hands of a few.  This majority of property owners can then freely choose to exercise their property rights for the purpose of preservation.  Property-based approaches to environmental protection are better described elsewhere, and need not be repeated in detail here. We shall consider instead how environmental protection might work in a voluntary law society, where the legal basis for property rights over everything except the self are individually determined.  Public or corporate ownership are not possible under voluntary law, because individuals are the only recognized legal entities.  There are only two basic forms of ownership: individual ownership or joint ownership.  A third category can be added: “no ownership,” covering resources over which no enforceable ownership claim exists.

Enforcement of private property rights as a means of environmental preservation is perfectly consistent with voluntary law, so long as all participants hold a uniform view of property rights.  Property-based approaches falling under the label of anarcho-capitalism, such as proposed by Dr. Rothbard, depend on a consistent definition of property rights within any particular society.  Establishing such consistency, even among small groups of anarcho-capitalists, has proven elusive. Despite much theorizing and debate, no overwhelming consensus regarding the origin, scope and validity of various types of property rights has emerged.  Voluntary law avoids social divisions over property rights, by making all property subject to each person’s right of ownership and full sovereignty over herself.  Each society member has the right to decide the nature of property rights they will respect, so long as they publicly adopt a coherent definition of such rights.  Generally observed conflict of law principles, such as TROTWET, must be used to resolve conflicting laws regarding property rights, to enable this legal system based in self-sovereignty to function.

It follows that a consistent basis for determining the weaker tool regarding property rights is required.  Specific examples have been provided earlier, and from these examples certain general principles for identifying the weaker property claim have been extracted.  The weaker property claim is that which results in the least onerous penalty for the action (e.g., trespass or conversion) that gives rise to the claim, and in the event of conflicting property claims over the same subject, requires the most stringent antecedent basis.  All property rights have two essential components: (1) an antecedent condition, coupled to (2) an exclusionary privilege to something, conferred on the person who satisfies the antecedent condition.  There are thus four possibilities for conflicts between property claims between any two persons ‘A’ and ‘B’:

  1. When PA ≠ PB & CA = CB, the lesser of PA & PB is enforceable (wherein ‘PA’   signifies A’s Exclusionary Privilege;  ‘CA’ signifies A’s Antecedent Condition;  ‘PB’ signifies B’s Exclusionary Privilege; and ‘CB’ signifies B’s Antecedent Condition).
  2. When PA > PB & CA ≠ CB, only PB is enforceable, and only if the person seeking PB has satisfied the most stringent of CA & CB.
  3. When PA < PB & CA ≠ CB, only PA is enforceable, and only if the person seeking PA has satisfied the most stringent of CA & CB.
  4. When PA = PB & CA ≠ CB, either PA & PB is enforceable by the person who has satisfied the most stringent of CA & CB

Consider, for example, two society members who have both satisfied the same antecedent condition to a claim over a parcel of land, but claim different exclusionary privileges.   Mike claims the right to extract minerals only, and desires to strip-mine the land.   Nosh claims all surface rights, and desires to keep the land as an ecological preserve.  From a perspective focused only on the parties Mike and Nosh, Mike’s exclusionary claim is weaker than Nosh’s, because Mike would not exclude anyone from the land, including Nosh, for purposes other than extracting minerals.  Nosh, in contrast, would exclude every use that conflicts with the ecological preserve.  Accordingly, if Nosh is to legally exclude Mike from strip mining the parcel, she must be the rightful owner under the property rights law, as between her and Mike, with most stringent antecedent conditions.  In addition, she must obtain a ruling from a reputable jurist either based on Mike’s exclusionary rule, or based on a legal finding that Mike’s rule as applied is more exclusionary and her rule is “weaker.”  The latter finding may provide legal protection for the reserve even in the absence of a superior ownership claim.

From a public benefit, natural resource perspective, Nosh’s exclusionary claim may be regarded as weaker than Mike’s, depending on how Mike will mine the minerals.  Assuming that strip-mining will destroy the utility of the land for most other purposes, but maintaining it as an ecological preserve will destroy nothing, strip-mining is more exclusionary, in actual effect.  A property claim that deprives other people of the benefits provided by a resource, by irreplaceably depleting or destroying the resource without providing offsetting benefits, might be considered the stronger tool in a TROTWET analysis.  A jurist might permit Mike to mine without being considered an aggressor against Nosh, only to the extent that he does not substantially interfere with the ability of Nosh to maintain most of the land in a preserved state.

For example, if the strip-mining is limited to a small, uncritical part of the Nosh’s property claim, presuming the conflicting property claims are both valid and overlap in area, a jurist might rule that the uses can coexist.  Conversely, the jurist might find that habitat to be destroyed is too critical to be permitted, and place certain limits on the mining activity to prevent substantial damage to the condition of Nosh’s land.  The example illustrates how conflict of law principles, namely TROTWET, can be used to reconcile conflicting claims over natural resources, in cases where overlapping real property claims exist and are both valid.     Equally valid real property claims that overlap in area are not the only context in which environmental issues can arise.  On the contrary, most environmental law issues under voluntary law will probably arise in different legal contexts.

These other legal contexts include conflicts between land uses and neighboring rights; compensation for damages to adjacent people or properties; and regulation of activities that harm the natural environment in general (e.g., “global warming” or “over-fishing”).  These will be considered in turn.

When property rights are defined by personal adoption, neighboring rights must be analyzed differently than under state-defined law.  Property can be conceptualized as a bundle of rights, and legal conflicts can occur when neighbors do not observe exactly the same bundles in their neighboring claims.  Such conflicts can be fairly trivial or quite significant.  To provide a trivial example, suppose Jose and Randall are neighbors in a residential area comprised of small plots of land.  Jose believes his property rights entitle him to keep a rooster; he needs to awake early every day anyway and the rooster reminds him of home.  Randall works late into the evening and needs to sleep in the morning; he believes his property right entitles him to quiet in the morning.  There is no state law that can reconcile conflicts of this nature between neighbors, to the satisfaction of both.  Either Randall will impose his need for quiet on Jose, or Jose will impose his need for a rooster on Randall.  States often handle these sorts of conflicts using zoning regulation.  Roosters are allowed in some zones (e.g., agricultural zones) and not in others (e.g., residential zones).  Hence, in theory, both Randall and Jose can find satisfaction by moving to an area that is zoned for their desired use, although in practice this may be difficult or impractical in many instances.

Voluntary law can provide a regulatory system that provides the benefits of zoning, but in a much more fine-grained and flexible way.  One of the pillars of voluntary law is public adoption, which provides notice to others.  Hence, before moving into an area populated by voluntary law society members, every migrant to the neighborhood has an opportunity to learn the codes of conduct observed by their future neighbors.  A diligent and considerate migrant will consider the property laws adopted by his neighbors before choosing a neighborhood to move into.  Buyers may also refuse to sell anyone with incompatible property laws, by agreement with one another or by individual volition.  In this way, neighborhoods may naturally segregate themselves and realize shared expectations for their respective “zones”, without any need for central planning or political influence beyond the immediate neighborhood.

In a society based on reputation, reputation is more valuable than anything else.  In a truly stateless, voluntary law society, there would be significant disincentives to developing a reputation as a bad neighbor.  Also, it would be easy enough for almost everyone to find a neighborhood to their liking, because like-minded people will not be hard to find when public registries of legal preferences are available.  If one prefers to live in an animal-friendly neighborhood, these neighborhoods would be easy enough to find in every urban area, and could not be banned by the whims of municipal politicians.  In most places, there would be no need to sacrifice one’s reputation as a good neighbor to live as one pleases.  Thus, most people would choose their neighborhoods based on the publicly adopted laws of the residents there; “zones” with various preferences would arise naturally and evolve flexibly, and peace would on the whole be preserved.  Borders between neighborhoods of different types would naturally tend to form around barriers such as rivers, highways, roads, parks, commercial zones, buffer neighborhoods, or any other features creating adequate separation or legal buffers.  To a degree, this natural self-segregation and separation can be observed in many large cities despite uniform zoning, even today.  Voluntary law would simply allow this natural process to occur more robustly, engendering a great deal of vibrant and harmonious diversity in urban neighborhoods.

Naturally, some conflicts between neighbors holding different codes of conduct will inevitably occur; some buyers and sellers will disregard the adopted laws prevalent in a neighborhood.   Because of the flexibility of voluntary law, such negligence or callous disregard for the preferences of one’s neighbors will be swiftly penalized.  For example, suppose Jose with his crowing rooster moves into a neighborhood of people such as Randall, who in anticipation of this possibility might have enacted a law that enables immediate mitigation of any persistent noise occurring between certain hours, retaliatory noise-making, or some other creative disincentive for the legally obtuse.  If Jose does not voluntarily manage to silence his rooster at the proper times, he is likely to find his rooster kidnapped and moved, if not killed, penetrating noise beamed into his property during his sleeping hours, or claims for damages brought by his neighbors, or some other consequence.

Consider how a voluntary law jurist might analyze claims around such self-help measures against bad neighbors.  Suppose, for example, Randall removes Jose’s rooster when no one is home and places it in an animal shelter, and the shelter requires Jose to pay a fee if he desires to retrieve it.  Randall’s law permits this remedy against noisy nuisances, but under Jose’s law it is a violation of his property rights in the rooster as well as a trespass on his land.  If Randall’s law admits the same property rights as Jose’s while permitting nuisance abatement as an affirmative defense, then Randall will lose.  As analyzed previously, under TROWET the stronger affirmative defense will not be applied.  However, if Randall’s “bundle of rights” in his property law expressly excludes the right of ownership of noisy animals on residential land of less than a certain extent, then his will be the weaker positive law, and Jose’s property claim will fail.  Jose’s trespass claim will succeed, but if Randall extracted the rooster without any other damage to Randall’s property, and without violating any other right recognized by Randall, Jose’s claim for damages will either be minimal or non-existent.

The exact manner of retaliatory self-help that is most prudently applied will depend on the various voluntary laws at play under the particular circumstances.  In a vibrant voluntary law society, self-help experts will doubtless exist who are expert in handling neighbor conflicts over nuisances or other uses contrary to recognized property rights in an area, with minimal cost and risk.  Such self-help experts will be funded by Jose’s neighbors who are sufficiently annoyed by his rooster or concerned about degradation of neighborhood standards.  Jose will quickly discover that, being surrounded by motivated neighbors willing to mount an active defense of neighborhood standards and able to hire a competent professional to assist them, he is far better off moving to a neighborhood where roosters are allowed, rather than being a bad neighbor in Randall’s neighborhood.  Likewise, Randal would find it difficult and expensive to wage a lonely campaign for morning quiet in a neighborhood dominated by residents who keep animals in their yards.  Were he to have blundered into such a noisy neighborhood, he would be incentivized to move to a neighborhood where morning quiet is highly valued.

Dealing with a few noisy animals or similar trivialities can easily be dealt with by self-segregation and self-help, but what about more substantial transgressions of neighbor rights?  Some types of uses are not easily amenable to self-help, and legal solutions may provide more peaceful and lasting resolutions.  In the progressive-authoritarian view, overwhelming state power is needed to resolve substantial conflicts between land uses.  What are these more substantial transgressions of neighbor rights?  Noisome and well-defended business or industrial uses, and diversion, depletion, or destruction of common natural resources summarizes the categories fairly well.

Some of these transgressions can be mitigated by more robust notions of private property that would doubtless exist in a self-organized, decentralized society.  For example, suppose Jose decided to run a 24-hour tavern and brothel, or a smelly biodiesel refinery, on his property in Randall’s neighborhood of quietude.  If Jose’s property is surrounded by neighbors seeking to enforce quiet and clean air, they will exercise their private property rights and common interest in quiet to erect impediments to unwanted commerce.  For example, they might erect a security fence around the neighborhood and prevent people or supplies from reaching Jose’s business by land.  He would have to fly everything in, putting his business at a great competitive disadvantage.   Beyond transportation difficulties, Jose will have to enact security measures to defend against self-help and nuisance abatement measures such as he experienced when keeping his rooster.   This would further increase his costs.  In short, only a fool would attempt to run a business that offended the clearly declared preferences and customs of the overwhelming majority of his neighbors.

Jose will also be subject to risk of having to pay compensatory damages, if any of his activities impinge on neighboring properties.  He may try to avoid such risk by adopting extremely weak laws, but this is a dangerous game to play, because the more egregious the environmental assaults his laws would excuse, the more likely is he to be subject to those very assaults, which by his own laws can be freely meted out to him without penalty.  Suppose, for example, Jose decides to earn a living by running a hazardous waste dump in Randall’s neighborhood.  To cut costs he does not secure the waste carefully, and it leaks or migrates into neighboring properties.  If Jose’s laws do not provide a reasonable remedy, he will quickly find his own wastes will be deposited on his own place of residence, or if necessary, on his person.  In the extreme, lawless egregious polluters would acquire a reputation like one who condones murder, and will receive practically the same treatment.  Such instances would be very rare.  More common would be instances of simple negligence or unfortunate accident causing pollution of neighboring property, where the land owner lacks the ability to remedy the situation or make his neighbors whole, even if he is willing enough.  Such situations are no different in kind than any other misfortune.  The land can be sold and such terms of partial repayment as are permissible under the applicable “weaker” laws worked out, to pay the debt.  If a willing buyer can be found who is capable and willing to clean up the mess, fine.  If not, it will fall to the neighbors to deal with the situation as best they can.  This can include appealing for help to the broader community, in ways such as described below.   In a truly free and prosperous society, diverse and effective help would certainly be found, because preserving clean air and water is in everyone’s best interest.

Government regulatory activity is often justified by protection of the environment.  Often, the justification is debatable or dubious.  Even when the justification is well-supported by evidence and the solution aptly tailored to the problem, the government action inevitably privileges some special interest that has lobbied for the exercise of power.  Hence the power tends to multiply beyond appropriate uses, and too often transforms into a blunt instrument of doubtful utility except to the minority special interests that are privileged by its exercise.

In a stateless voluntary law society, in addition to defenses provided by self-help and more robust notions of private property, effective social pressure can be brought to bear to resolve substantial transgressions of neighbor rights, without the need for state power.  It should be appreciated that an entirely stateless voluntary law society is not likely to exist anytime soon, although voluntary programs towards solving environmental and other social problems are already in widespread use.  As far as can be seen from 2015, substantial conflicts between land uses and commercial activities are likely to continue to involve state agencies, for the foreseeable future.

The scenarios conjectured below are beyond the foreseeable future, when nearly everyone has adopted voluntary law and no state exists.  The state will in its role as a guardian of “commonwealth” resources be replaced by decentralized political institutions that are much less prone to undue influence by special interests, much nimbler in action, more pervasive in effect, and much better able to grapple with private collectives (such as we know today as “corporations” are entirely a creation of the state) without risk of capture and control.  We may speculate about forms such new political institutions might take, but it should be appreciated that such possibilities will necessarily be limited to rather vague outlines as is appropriate for the imagining of a far distant future.  The exercise is rather like imagining the form of a flying machine before the first airplane has been built or flown.

Political institutions arise from political pressures, and as much if not more than any other society, voluntary law societies provide effective pathways via which political movements can form and engender the effective exercise of political power.  The body politic is formed not by the imprecise and oppressive methods of voting and majority rule, or by the diktats of ruling elites, but by individual, public adoption of law.  When new problems are recognized that are amenable to solution by social action, individuals can begin to devise, adopt and promote the adoption of laws that will bring about a desired social action.  As evidence in favor of news laws and the desirability of the social action grow, the movement gains momentum, and more people adopt the new laws.  The more effective, sensible and just the new laws are, the more quickly they will be adopted.  After a point, any person who refuses to adopt the new laws stands to lose their reputation as an upright, socially conscious member of the community.

To illustrate the general principle at work remedying diffused forms of environmental harm, consider the adoption of new technology intended to benefit the community as a whole.  Suppose, for example, air pollution from automobiles or any other dispersed source is a recognized problem in a community.  For the sake of example, assume that there is little direct pressure on polluters, because there are a great many very small sources of the pollution, each of which contributes an insignificantly small fraction to the overall problem.  Nonetheless, astute individuals recognize the problem and develop a technological solution, for example a catalytic converter or cleaner burning engine.  However, the new technology adds to the cost of automobiles, and provides only social benefits with no real benefit to individual consumers, so there is no economic incentive for manufacturers of automobiles to adopt it.  Social action is required for the new, cleaner technology is to be adopted.

There is an economic incentive for those who will be profiting from the sale of the new technology to promote it.  Such people, the entrepreneurial innovators, therefore will cooperate to ignite a political movement.  They will promote the social benefits of the new technology, and educate the most enlightened and respected community leaders about it.  They will defend their proposals for implementing the new technology against skeptics and detractors.  They will enlist skilled and respected jurists to craft laws, if appropriate, designed to encourage implementation of the technology.  And once all the necessary groundwork has been laid, they will launch a public relations campaign to persuade members of the general public to take some desired action, which in many instances may include adopting a new law.  The new law may take any effective form.  It might take the forms of a mandate enforced by a penalty, similar to environmental regulations as we know them today.  Or it may take some more sophisticated form that is more appropriate or effective in a voluntary law society.   For example, individuals may adopt a law that provides that if they purchase a new automobile after such-and-such a date that emits more than a specified amount of pollution per unit of use, they will pay a fine to an environmental defense organization of their choice.  Once manufacturers see that a market majority has adopted the law, they will begin to phase in the new technology, knowing that demand for the old technology will diminish after the date, while the manufacturers who are the first to meet the increasing demand for the new technology will be better positioned to reap the greatest profits, and gain market share.

This sort of consumer mass movement to adopt new voluntary laws can be used to mitigate any diversion, depletion, or destruction of common natural resources that is ultimately driven (as most such activity is) by mass consumer demand.  It does not matter whether the source of the injustice is diffuse, or limited to a few actors; a single polluting industrial plant can just as easily be displaced by a cleaner source, as can any number of pollution sources.  So long as substantial demand for “certified clean” supplies of whatever the polluting industry is producing exists, economic pressure can be brought to bear.   Individual commitments by consumers to change their consumption habits or pay fines to fund defensive or mitigation efforts can create economic incentives for any feasible change, or the preservation of any resource widely believed to be in the public interest.  It does not matter whether a small minority refuses to adopt new, more socially conscious laws, when the source of the problem is mass demand.  Substantial reduction in demand for the more harmful alternative will often be enough, and can be aided by various social pressures exercised by the majority against the minority of hold-outs, such as widespread, voluntary denial of access to services to anyone who has not adopted a popular law.  The more serious the perceived problem and the more certain the socially preferred solution, the stronger such political pressure is likely to be.

Conversely, questionable or easily attacked solutions will receive little support.  Even meritorious solutions to social problems may go unresolved.  If consumers in an area do not care about pollution, destruction or depletion of irreplaceable natural resources, or other social harms, they cannot be forced to change their behavior by a minority that disproves of their conduct.  Voluntary law is not a vehicle for rule by elites.  Voluntarily adopted laws must have widespread appeal, to have widespread impact.  Yet if voluntary law were ever to become widespread, it would necessarily be preceded by a general prosperity, security and stability that enabled the infrastructure needed to support voluntary law to develop, and the profound social and moral transformation that underlays it to peacefully unfold.  It seems impossible that voluntary law societies would develop where bare survival is a ceaseless struggle and poverty is the norm.  Therefore, imagining a future world of voluntary law means imagining a generally prosperous world, in which, absent extremely rare massive natural calamities, the majority of people are not overly distracted about their future security.  As in every prosperous society, values shift in favor of long-term goals and preserving social order, as people are less worried about meeting their immediate needs.  In such a society, there is likely to be debate about the merits of different long-term goals and the best ways to achieve them, but blatant disregard for obvious social and environmental problems would be highly irrational and unlikely to be sustained.  The vast majority of people would care about preserving social order and a sustainable basis for that order to continue.

Political movements for voluntary adoption of law by a substantial majority of consumers, effective as they might be, will not solve every social or environmental problem.  Consider, for example, the threatened extinction of the rhinoceros caused by fervent and probably irrational demand for rhinoceros horn by a very small minority of consumers.  Such minorities may persist in pockets of the world, beyond the reach of political pressures defending rhinoceros populations, and oblivious to the long-term consequences of extinction in favor of short-term gain.  Traditional states have reacted to conserve certain species by banning trade or importation of related contraband, such as rhinoceros horns or products.  Such trade bans, however, have not been very effective.  In the case of the rhinoceros, trade bans have been dismally ineffective.  Instead of reducing incentives for poaching, the bans have greatly increased the profits associated with poaching and smuggling horn, increasing economic incentives for the trade.  Meanwhile, the bans have prevented the open introduction of less ecologically damaging alternatives to displace demand for genuine or wild horn.  Political pressure in a voluntary law society could scarcely do a worse job.

Voluntary law, on the contrary, provides a more effective lever than international bans on trade for political change: social pressure on every individual to declare her position on every social question of widespread interest, whether good, bad or indifferent.  To use the rhinoceros example, consumers of rhinoceros horn must either hide their consumption of horn, or publicly adopt laws that do not recognize any penalties for commerce or consumption of products from rhinoceroses.  If they violate their own adopted laws without paying appropriate penalties, they risk exposure as hypocrites and liars, and legal claims can be pursued against them in a manner analogous to present-day criminal laws.  Conversely, if their adopted laws do not provide any protection for rhinoceroses, all those who value rhinoceroses can easily discover their lack of concern, and refuse to transact with them.  Open resistance to predominate cultural values cannot easily persist except within a sub-culture that provides support for the resisters.

While voluntary law provides for toleration of such sub-cultures, it simultaneously makes them easily identifiable and thus, subject to a sort of precise negotiating pressure that is absent when sub-cultures hide behind larger political units.  For example, although it is known that much demand for rhinoceros horn arises from within Vietnam, such consumers are no doubt in a small minority even there.  When nations impose sanctions on Vietnam in an effort to encourage a “crack down” on users there by the Vietnamese national government, such sanctions harm diplomatic relations in unintended and unforeseen ways, and penalize a great many people who have nothing to do with the problem.  Thus, sanctions tend to be overly broad, and ineffective in targeting bad behavior.  In contrast, if most consumers of rhinoceros horn belonged to an easily identified sub-culture, which by definition excluded anyone opposed to consumption of rhinoceros horn, this subculture could be targeted and addressed in very precise ways, on a thousand different fronts, by decentralized and independently operating opponents of the trade in horn.

Many of these independently operating defenders of the rhinoceros would employ different means to the end.  Some may employ shunning.  Others may employ providing alternatives to displace demand for horn.  Others may employ educational and propaganda measures.  Others may provide or support defensive force in rhinoceros preserves, defensive subversion of markets with counterfeits, and other methods to frustrate hunting and deprive traders in horn of profits.  Confronted with this army of determined, intelligent and compassionate opponents of their consumption habits, who are constrained only by their own freely adopted laws in the development of diverse remedies and defensive measures, we might expect the problem to be subdued much more rapidly and humanely than is possible by the blunt instruments of government power, and limited imaginations of a few bureaucrats or politicians.  Whatever the exact form of solutions, there are reasons to believe that widely-condemned activity by minorities would be more effectively and humanely suppressed under voluntary law, than in the world of today.

Exhaustion of natural resources of the sort driven by irrational consumer demands for articles such as rhinoceros horn may be more easily solved than environmentally destructive behavior driven by economic necessity.  Even in the generally prosperous world in which voluntary law might evolve, substantial minorities of impoverished persons, or at least less economically advantaged persons, would still exist.  Those who are less well-off may seek to improve their economic status by making property claims of one sort or another over resources that are held by the majority to be reserved for the public domain.

Consider, for example, the problems of protecting wildlife or nature preserves from exploitation for mineral or organic resources, or aquatic resources from overfishing.  If the exploitation is industrial in scale, with the aim of producing products destined for mass markets, widely abhorred forms of environmental depletion or destruction can be prevented by the sort of consumer mass movements already described: consumers may voluntarily declare that they will, subject to fines paid to environmental defense funds, abstain from consuming products produced by socially unacceptable means.  However, if the exploitation is driven by bare economic survival, we might wonder whether such social pressures would be effective.  Would a starving fisherman really care if few people will buy his fish out of concern for the environmental impact of the catch?  He will not care, if he needs the fish to feed himself or his family.  Such a person is motivated by the survival instinct, not by seeking greater profits.

Nonetheless, it is not difficult to image how the power of consumer mass movements can be directed to prevent and mitigate even the micro-deprivations of the poor.  In a world in which capital derived from consumer mass movements can be focused anywhere without barriers imposed by national or local governments, environmental defense agencies would compete for the funds supplied by popular mass movements to focus effective solutions on the most critical problems.  For example, defense agencies may hire rangers to patrol the most sensitive wild areas and disrupt ecologically damaging activity, while directing the poor who are causing damage to more sustainable forms of survival, though means such as education coupled with subsidizing temporary means of support.   Persuasion will be the primary tool, because both sides of the confrontation – the defense agencies and the poor exploiters of the environment – will be protected by their chosen voluntary laws.  In addition, because both sides would be on an equal rights footing by the universal elevation of personal sovereignty all other rights, persuasion will nearly always provide more cost-effective solutions than coercion.  Environmental defense agencies will compete to devise and implement the cleverest, most cost-effective means of protection, knowing that their reputation and profits will be commensurate with their degree of success.

Consider again, for example, the case of the starving fisherman.  This poverty-stricken fellow will be astute enough to have adopted a law that provides for his right to fish irrespective of whatever environmental damage his fishing may cause.  Therefore he cannot be bodily prevented from fishing, such as by kidnapping, imprisonment, or murder.  Assuming all persons employed in environmental defense work respect basic property rights, his fishing equipment cannot be seized either, without giving rise to a claim for compensation.

Although one approach is to simply seize his equipment and pay any required compensation, such an approach would likely be unnecessarily risky in most cases, for many reasons, not the least being the risk of bodily harm to the taker or defender of the equipment.  Second, the economic value of the seized equipment cannot be recovered without placing it into the stream of commerce, where it is likely to be used in the same undesired way.  Also, payment of compensation to the fisherman enables him to purchase replacement equipment and go back to the only business he knows.  Funds used for confiscation activities are better put to work in a positive, persuasive way.  For example, environmental defense funds may be used for funding educational measures regarding sustainable fishing, providing incentive payments to fisherman for participating in educational programs, hiring the best as conservation rangers and educators, and subsidizing activities known to promote sustainable use of local resources.

“What’s your law” is very effective way to promote change through grass-roots popular movements for any social cause.  Such movements will not always be the most enlightened or optimal, being still subject to popular delusions.  However, grass-roots movements based on delusions can and will be successfully resisted by principled, rational people, who under voluntary law cannot be forced to comply with deluded notions of others.  Populations may still be manipulated by special interests, but not as easily as influencing a state legislature to pass a law.  For example, suppose a vaccine manufacturer wished to create demand for a vaccine.  It might seek to influence operators of public facilities (e.g., schools, hotels, restaurants, entertainment venues, etc.) to deny service to any person who cannot certify that they have been inoculated with the vaccine.  Supposing some percentage of operators institute the practice of examining customers regarding their vaccinations, whether or not this becomes widespread will depend on the degree to which the public sees the vaccination as necessary.  To the extent a segment of the population perceives and can persuasively defend a position that social pressure is overly onerous, a backlash will eventually arise to resist the unjustified pressure.

Social pressure under voluntary law won’t provide perfect, fool proof solutions to social problems, including environmental problems.  It will, however, expose the fools and profiteers more quickly, and deprive them of the cloak of authority.   Unconstrained by anything but reason, perception, and the constraints of personal sovereignty,  social pressure under voluntary law may be expected to address and resolve every problem that is amenable to resolution by social action much more nimbly, flexibly, and in the end, more justly than authoritarian approaches.

* * *

Photo Credit to Karen Dorsett

https://www.flickr.com/photos/biggertree/

Some rights reserved under Creative Commons Attribution-NoDerivs 2.0 Generic (CC BY-ND 2.0)

Standard
Conflict of Laws, TROTWET, Uncategorized

The Power of TROTWET

2238509835_bd7eddeecc_b

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.

* * *

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

Standard
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.

Standard
Coexistence, Introduction To Voluntary Law (Book)

For The Statist: Fear Not Voluntary Law

https://www.flickr.com/photos/gerwinfilius/15371877608/

Military Parade

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

Photo Credit to Gerwin Filius “Military Parade”

https://www.flickr.com/photos/gerwinfilius/15371877608/

Under Creative Commons CC BY-NC-ND 2.0

Standard
Coexistence, Introduction To Voluntary Law (Book)

Coexistence With Other Legal Systems

catsandcrows
Voluntary law is based on the most granular possible social unit: the person. As such, voluntary legal systems are uniquely suitable for co-existing with competing legal systems, while being uniquely difficult to eradicate. There is no head to cut off. Nor does the person who adopts a voluntary law require any action from any person who chooses not to participate. Those who choose to participate must place their reputations at stake, but only within the society defined by voluntary law.

Voluntary law reaches only persons who are voluntarily within its society of laws. Outside of that society, anything whatsoever may exist: a republic; a democracy; an empire; a petty dictatorship; a socialist paradise; a fascist totalitarian state; lawless anarchy, a prison; a school; a plantation of slaves; a land of the free; a spiritual paradise that needs no laws; or hell itself. Voluntary law societies can co-exist with all these other things. The only essential requirement for the voluntary law society to exist is for two or more people to comply with its essential principles in their dealing with one another. Coexistence with non-voluntary forms of society and law, or with states of nature is potentially complex. Only a few of the more salient issues and aspects are touched on here, as is appropriate at this early stage, before anyone is using voluntary law on a large scale.

A principal aspect of coexistence concerns the modularity of voluntary rules. One is not necessarily entirely within, or entirely outside of, voluntary law society. One can be within voluntary law society for one set of rules, while being an outlaw with respect to other sets. Examples of this modularity at work have been provided earlier. Adopting voluntary law for limited purposes might leave fellow society members without recourse under voluntary law for forms of aggression outside of the applicable law’s reach. Such limits are inherent in voluntary law, and many examples have already been discussed. The compensating principle, as has also been discussed, is that whatever actions of a person that are not actionable under that person’s voluntary law are publicly known to other society members. A person with unreasonable laws may thereby be avoided and shamed.

If conflict regarding an excluded topic of law arises under unavoidable circumstances, the people involved are no worse off than if neither had adopted any voluntary law. For example, suppose a couple has adopted compatible voluntary laws in the area of family law. One of the couple has not adopted any voluntary laws providing remedies for breach of contract, nor any more general principle that is applicable. In these circumstances, neither one of the couple can bring a contract claim against the other. If a breach of contract occurs between them, they can either settle it outside of voluntary law, agree on a law to be applied for purposes of the dispute, or leave it unresolved. Selecting any of these three alternatives will not damage their reputations as society members. In contrast, if a dispute involving family law arises, and one fails to comply with the applicable voluntary law to resolve the matter, that person’s reputation will be at risk.

Modularity may be subject to hierarchical relationships within the structure of voluntary law. For example, a prudent person might adopt a rule providing for damages in case of all acts of violence, coercion or fraud, without adopting specific rules in some areas. This will inform others that the person is reasonable, without losing flexibility in specific areas.  General principles such as non-aggression will unavoidably come into conflict with laws imposed by some external source. Even narrower rules may sometimes similarly conflict with external rules. Coexistence therefore entails understanding how such conflicts may be treated under voluntary law.

Nearly every person who exists on Earth is accustomed to being made subject to a plethora of rules imposed by non-voluntary means. So far as voluntary law is concerned, all such rules are merely the proclamations of outlaws; and insofar as voluntary law extends can provide neither the basis for a claim nor a defense against one, without the consent of all parties involved. One cannot make one’s voluntary law identical to a state law by an act of adoption, because states by definition do not require the consent of every person who will be made subject to their laws. A so-called state that requires prior personal, non-coerced consent to every law written is no longer a state, but some kind of voluntary organization. It might even be a voluntary law society. The point is that personal adoption of the law of a state or any other non-voluntary law involves a logical contradiction, and is by definition a mere nullity, an act having no meaning whatsoever. That is not to say that substantive aspect of state laws cannot be borrowed from written precedents and adapted for voluntary purposes. This is to be expected, especially for rules based on old traditions sensitive to human needs. Any involuntary reach of such rules is negated entirely, as soon as the rules are adopted as voluntary laws.

A society member may belong to different voluntary communities that hold to different or even contradictory laws. Such contradictions may be treated as any other rule of outlaws, or publicly adopted within the framework of voluntary law. If conflicting rules are adopted as voluntary laws, the adopter should be careful to limit the scope of at least one of the sets of laws to members of the community in question. Otherwise, it will not be clear which law to apply in any given conflict. Consistent with principles discussed earlier, justice will require that any ambiguity will be construed against the adopter. In practice, this will result in the principle of TROTWET being applied whenever it is unclear which law has been adopted. Unfavorable ambiguity may be avoided by adopting the law only for members of a particular community, presuming it is possible to determine who the members of that particular community are. Even in that case, it may be desirable to specify a general law to apply in cases that do not involve any member of the community, lest some unfavorable law of the community be applied generally. Moreover, the person who adopts the law of a particular voluntary community, if not limited to a concrete text of certain date, is essentially appointing the community as his legislature. Such appointments are always unnecessarily risky, as has been discussed earlier. For these and similar reasons, prudent people might generally avoid adopting conflicting laws of different communities as their voluntary law, or delegating the power of adopting their law to communities that might act unpredictably.

Such caution will not leave the prudent society member without options. Instead, the member may preserve her personal sovereignty while participating fully in communities holding to conflicting rules, by participating in such communities as an outlaw. In other words, the prudent person might agree to abide by laws made in traditional ways by various communities (e.g., clubs, religious organizations, political parties, etc.) but regard these traditional community laws as being outside of their own voluntary law. Similarly, a person might comply with laws or diktats of a coercive government or criminal gang as a matter of expedience, without making compliance a requirement of their own voluntary law.

To avoid conflicts with voluntary law that dealings with outlaws might engender, the society member might agree to waive her rights under voluntary law, to the extent contradicted by the community rules, in exchange to corresponding waivers from all other members of the community. Making this sort of waiver outside of voluntary law insulates the society member from unintended consequences of accepting laws not under her personal control, and may become a popular option for reducing risks of membership in diverse communities. If the outside community does not include any other voluntary law members (i.e., all are outlaws), the waiver is without any meaning, because voluntary law provides no rights against outlaws anyway. In such circumstances, it is likely that no request for waivers would be made. Conversely, if some outlaw community or collective is requesting that a society member waive voluntary law for some limited purpose, this is a sign that voluntary law is alive and well. Such waiver requests indicate that the outlaw community includes among its members other voluntary law members, who fear liability that might otherwise accrue were no waivers given. Waiver requests increase the leverage and influence of voluntary law societies, and are an indication of expanding membership.

As noted, communities consisting entirely of outlaws have no need for waivers and will not request them. Such will be the relationship between the state and any voluntary law societies, at the outset. Outlaws affiliated with the state will make demands of society members, and society members will be unable to make any offsetting claims against the outlaws under voluntary law. Whatever actions the member takes to cope with such demands are entirely outside the province of voluntary law. Thus, no suggestions need be made here. People already cope with such demands, and may continue to do so as they see fit, whether or not they are members of any voluntary law society. But if a member of an outlaw organization is a voluntary law society member, such person may be subject to claims under voluntary law for their actions, even if the action is permitted or required by the law of the outlaw organization. Rule of outlaws cannot directly control outcomes of proceedings under voluntary law, but may influence outcomes in ways that will be discussed below.

Outlaws may ban the adoption of voluntary laws, but such bans obviously have no legal significance within voluntary law. Bans may discourage some from adopting voluntary laws, for those afraid to resist bans against expressing personal codes of honor. Such bans are nakedly totalitarian, however, and directly contrary to state laws protecting free speech. Therefore it may be expected that repression of voluntary law societies would take other, less obviously objectionable forms.

For example, tax collectors may declare that enforcement of voluntary laws requiring privacy in commercial transactions is illegal under state law. This might be enforced, for example, by the tax collector bringing some state-law charge against a voluntary law society member for bringing a claim against another society member based on breach of transactional privacy arising from a report of a private transaction to the tax collector. Such enforcement action by the tax collector would penalize or even criminalize private indemnity agreements. This may seem outlandish, but there is a tangible risk that certain outlaws may try to criminalize privacy or other obligations under voluntary law as instruments of some sort of criminal conspiracy, or on some other basis.

Other examples can easily be imagined, where state actors would certainly bring criminal charges for actions permitted under voluntary law. For example, a death sentence pronounced and executed with utmost probity under voluntary law would be sure to invite criminal charges against many involved, under the law of many states today. Every powerful state can be expected to defend what it claims as its exclusive authority. It is inevitable that some actions that are perfectly legal under voluntary law would subject society members to liability under the law of outlaws. Such persecution by outlaws will vary according to the circumstances under which the voluntary law society exists. Persecution is an external environmental factor, not an inherent aspect of voluntary law itself. Like any other external factor, voluntary law societies are free to adapt to predictable outlawry by adopting laws to deal with it such as make sense under the circumstances.

In a thriving ecosystem of voluntary law, solutions will no doubt be found that are not foreseeable or perhaps even conceivable today. Nonetheless, some productive approaches are not hard to foresee. Every positive duty under voluntary law lies primarily on the person adopting it, so any person who wishes to avoid liability under some state law may adopt a law that excuses compliance with the diktats of outlaws if reasonably necessary for a substantial defensive purpose. For example, an officer of a state agency might adopt a law that excuses herself from liability for lawful conduct under such-and-such agency rules. There are two ways to write such rules, as positive laws or as affirmative defenses. If written as positive law, the limit will exclude the officer from bringing claims against those who do her harm by conduct that that is required under the same external rules. If written as an affirmative defense, the limit will not be effective against a claimant who does not have a corresponding equally strong or stronger shield, under TROTWET.

Accordingly, most such limits would be written as positive laws, if possible.   Is it possible? Consider a voluntary law that authorizes a claim for theft, unless the theft was done in compliance with state law. Is the “unless done in compliance with state law” an affirmative defense, or part of the positive law? Such questions will be decided, if ever, by the voluntary law jurists of the future. To aid them, it is suggested that the distinction be made based on whether or not the rule authorizes a positive claim, even if subject to a limiting circumstance (e.g. that the theft not be in compliance with state law). Under that approach, the example given above is a positive law. Conversely, if every limiting circumstance is treated as an affirmative defense, limits could never be used for protection against those who disavowed them. Some who do not need compliance exceptions might not disavow them, for various reasons. For example, a society member may wish to signal compliance to lessen the risk of state-initiated persecution, to encourage others to adopt voluntary laws, out of admiration for the state rules, to enable use of the limit in claim proceedings, to shift the burden of proof for affirmative defense to the defendant, or for some other reason. It is impossible to predict what balances might be struck. Nonetheless, if every compliance exception were regarded as an affirmative defense, this might tend to discourage adoption of voluntary laws by some. Persons who need the comfort of a limit and are willing to accept it for their own claims, might not dare to adopt the underlying claim as law. This might create unnecessary disincentives for adoption of voluntary laws.

Some may find limits and exceptions based on external rules distasteful, but at least the officers who adopt them are being honest and open about the limits of their liability under voluntary law. Those who do not approve may refuse to do business with them. If a great many people find limits as adopted by our hypothetical officer repugnant, those who adopt such limits will face real pressure to discard them, or lessen their reach.

Moreover, although a limit on liability based on some external set of rules might seem less than satisfactory to somebody who suffers at the officer’s hands, it at least makes the question of compliance with the external rules subject to adjudication in a voluntary law forum. A society member who believes she has suffered harm at the hands of the officer due to actions outside the cited external rules may bring her claim under voluntary law. There the claimant may obtain a different result than could be obtained in the courts of the state. The claimant need only prove the underlying harm (e.g., theft or imprisonment) and that it was not executed in compliance with the applicable external rule. If possible to raise as an affirmative defense, the compliance would be the defendant’s burden to prove. Limits and exceptions based on external laws, like waivers, would be a sign that the scope and influence of voluntary law is increasing. Such limits and exceptions would create tangible incentives for good behavior by the agents or subjects of the state who adopt them. Adoption of such limits and exceptions as voluntary laws would serve to bring compliance with the external laws on which the limits or exceptions are based under the purview of voluntary law, where the processes and precedents of the state courts are not binding.

Bans and prohibitions might be written the other way. For example, a voluntary law might provide that its adopter may bring any proper claim, regardless of whether the underlying actions were required by an external law. In other words, a society member may disavow defenses based on external requirements. However, one member cannot write another’s law. Thus, a rule of “no theft, no exceptions” cannot trump a rule of “no theft, unless authorized by state law” held by another. Analyzed as positive laws, under TROTWET and all other things being equal, the “no theft, unless authorized by state law” is the weaker tool. Thus, the one holding the “no exceptions” rule could not enforce it against the person who preferred an exception. If all other things were not equal, for example if the “no theft, unless authorized by state law” called for heavier penalties, it would still be the weaker tool if applying the other rule results in less liability under the facts of the case. Determination of the weaker tool should always be done in light of the facts at hand.

If “no exceptions” and “unless authorized by state law” are analyzed as affirmative defenses, under TROTWET it might seem that “no exceptions” is the weaker shield and should be applied. However, “no exceptions” is not a shield; it provides no defense. Instead, it is the negation of a shield. It should therefore be disregarded. This leaves no shield. As between a shield and no shield, no shield is weaker. Therefore a simple “no theft” rule with no affirmative defense deprives one who holds to “authorized by state law” as an affirmative defense, as noted a few paragraphs earlier.

Many laws would always be accompanied by an affirmative defense. For example, self-defense might usually be recognized as an affirmative defense to murder. So it might not be unusual to see a law such as “no murder, except if necessary for self-defense” facing a law such as “no murder, except if necessary for self-defense or authorized by the state.” The latter law might be held by executioners working for the state, for example. If a society member holding the first law brings a claim of murder against the executioner (who surprisingly, is also a society member) for a state-authorized execution, the claim prevails only if the exceptions are analyzed as affirmative defenses. As written above, both appear as affirmative defenses. If the second law is written as “no murder that is not authorized by the state, unless necessary for self-defense,” the exception to state authority might be regarded as part of the positive law. To provide greater certainty on the issue of positive law vs. affirmative defenses, the executioner could adopt different types of claims based on death of a victim. For example, the executioner might adopt both “murder without authorization of state law” and “murder with authorization of state law.” The executioner might then adopt much lighter penalties for the latter offense. Both of these claims are clearly positive laws, but only the latter could be proved against the executioner for an execution authorized by state law. Making the latter claim would not place any great burden of proof on the claimant. The executioner would surely stipulate that the execution was authorized by state law, to avoid the charge with heavier penalties.

These hypotheticals lead to a few basic conclusions. Perhaps foremost is the observation that voluntary law can be practiced in conjunction with external legal systems, without sacrificing the independence of the voluntary legal system or breaking its underlying principles. In some cases, society members might adopt rules of voluntary organizations for limited or general purposes, but more frequently, rules of voluntary organizations would likely lie outside the scope of voluntary law. Rules of non-voluntary organizations must lie outside of voluntary law, by definition.   Even those under bondage to a non-voluntary authority may participate in voluntary law under terms that lessen conflicts between the demands of their bondage and that of their voluntary law. Those under bondage would seek to build exceptions for acts required by their bondage into their positive laws. Exceptions cast as affirmative defenses, however, would be useless except against claimants who also adopt them. Either way, such exceptions would bring compliance with state law under the purview of the voluntary legal system, in some cases. The converse is not true.   Any person not in bondage would have little reason to adopt laws that condemn exceptions to voluntary laws based on state authority. Free people are better served by simpler laws.

* * *

Photo Credit to Raymond Zoller

Some rights reserved under a Creative Commons Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0) License

Standard