Conflict of Laws, TROTWET, Uncategorized

The Power of TROTWET

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

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

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

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

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

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

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

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

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

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

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Conflict of Laws, Introduction To Voluntary Law (Book)

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

Balance of Tools

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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.

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Photo Credit to Gerwin Filius “Military Parade”

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

Under Creative Commons CC BY-NC-ND 2.0

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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.

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Photo Credit to Raymond Zoller

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

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Enforcement, Introduction To Voluntary Law (Book)

Enforcement of Judgments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ensuring That Judgments Are Just

quality control

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Conflict of Laws, Introduction To Voluntary Law (Book), Voluntary Law

Modularity and Conflicts Between Voluntary Laws

Califonia Codes
Modularity is a familiar feature of law, under whatever authority it is developed. Depending on the history and culture out of which law arises, it is conceived as being divided into different, non-overlapping subject areas. These subject areas are then codified, reflecting the cultural expectations out of which the law arises. The division into different subject areas is useful for efficient administration of justice, among other things. Legal specialties can evolve, and by the economic force of comparative advantage operating through division of labor, more efficiently resolve legal questions. Subject divisions are also used for political purposes, to enable favored entities to capture particular areas of law while leaving other areas open to greater competition. Although resistant to political capture, voluntary law shares a potential for modularity with other forms of law, and can also be divided into subject areas.

Were this all that could be said about modularity, it might be of relatively scant interest. Within the field of voluntary law, however, modularity looms large as a tool of importance for resolving legal conflicts. Voluntary law is capable of exploiting a much more finely-grained and sophisticated modularity than we are used to seeing in traditional legal systems, for new purposes. These purposes include efficient conflict resolution among arbitrarily large sets of conflicting laws. To illustrate, suppose a million different strains of voluntary law are in use by a billion different persons speaking a hundred different languages. That’s a lot of variety. In such an environment, a jurist might practice law for a lifetime without ever encountering a dispute involving exactly the same sets of laws.

How could a jurist manage to be expert in such a great variety of laws? Wouldn’t such a system be prohibitively inefficient and expensive? Not necessarily. It all depends on the information tools available. If the million different voluntary laws can be translated into a uniform logical language to create expressions that can be mapped onto a hierarchy of finely-grained subject areas, the process might go something like this: The claimant identifies the law on which the claim is based. The defendant identifies affirmative defenses. The jurist, assisted by automatic translation algorithms, translates the submitted laws into the uniform logical language. Once the submitted laws are translated, the jurist assisted by automatic mapping algorithms maps the laws into the subject area hierarchy. Broader, more general laws may map into more than one subject area category, and more particular laws into fewer areas, or into only one subject area. Using the subject area hierarchy, the jurist identifies the corresponding laws adopted by each of the adverse parties, and any earlier laws adopted by the parties in the same subject areas. If there are no corresponding laws found, the jurist may determine that one of the parties is an outlaw in the subject area and inform the parties that the case cannot proceed unless the parties agree on the law to be applied. If corresponding laws are found, the jurist applies a conflict of law analysis, for example TROTWET, to identify the applicable laws of the case.

What might cause a million different voluntary laws in a hundred different languages to be capable of translation into a uniform logical language? No special cause is needed; the capability is inherent in the semantic character of language itself. Some expressions may be more easily translated than others. Economic pressure would cause most laws to be expressed in a readily translatable form, because choosing such forms saves resources (e.g., money) without putting any constraints on what may be expressed. Providers of services for conveniently selecting and publishing adoption of voluntary laws would, under market pressure, offer services enabling virtually any law to be expressed in a form that can readily be translated and mapped onto a standard hierarchy of subject areas. If they did not, other providers would eventually replace them.

Some laws may include semantic content that is not found in other laws, which therefore cause the law to be mapped to a unique subject area. For example, the laws of Amazonian jungle tribes might include concepts with no equivalent meaning outside of the Amazon, such as laws relating to things or events that are peculiar to that river basin or culture. Laws that exist in a unique subject area cause every person not adopting the law to be an outlaw in the subject area. To avoid inadvertently falling into an outlaw status, a prudent traveler might prepare for a journey by researching unique subject areas that are predominate along the planned trail, and adopting suitable laws in those subject areas beforehand. In the alternative, a reasonable traveler, if unexpectedly sued under a unique law in a place where the unique law is customary, might agree to resolution of the dispute under the customary law instead of taking chances on extra-legal resolution in a strange location.
If a law in a unique subject area is not customary, a defendant sued under the odd law would have little incentive to agree to resolution under it, and might happily remain an outlaw in the odd subject area.

To use a rather silly example, suppose “Jester” adopts an odd law that any person found with more than a tenth gram of lint in their navel must pay a fine to the discoverer of the lint. He goes about the beach with a portable scale, discovering navel lint and serving notices of complaint to the bathers. No reasonable bather would bother responding to such a complaint, presuming Jester is alone or nearly alone in adopting what is truly an odd law. The reputation of an outlaw stings only when the subject area is customarily a subject of law. Depending on Jester’s law and actions, some might respond by suing him for something akin to malicious prosecution, invasion of privacy, or assault. Navel-gazers like Jester gain nothing but notoriety and increased risk of liability by complaining over legal oddities. However, to be socially fashionable, funny, or for other non-economic reasons, some might choose to respond to news of Jester’s odd exploits by proactively adopting their own laws on the subject of navel lint, for example, defensive laws expressing that no fines or other liability shall be assessed for navel lint, regardless of amount, or retributive laws assessing fines for examining the navels of others without express written permission. Given the ease with which voluntary laws can be adopted, and the character of wit at play, a degree of harmless frivolity should be expected to naturally arise. More significantly, as social consciousness evolves laws in subject areas initially thought to be odd may grow in popularity to become customary, and customary subject areas may grow to become odd.

It might be wondered whether a logical dilemma arises when a broadly-written law spanning several subject areas is asserted against a defendant (or conversely, a broadly-written affirmative defense is raised against a complainant) who holds more particular laws categorized in separate subcategories. Which of these more particular laws should the jurist select as the opposing law? There is actually no dilemma, assuming the jurist analyzes the case under TROTWET. If the complainant’s law is broader, the complaint must be decided under the particular subject area of defendant’s law that is most applicable to the facts of the case. Therefore the complainant’s broader law will apply only if it results in less liability than defendant’s law, under the facts of the case. Conversely, if the defendant’s law is broader, one of complainant’s laws that is applicable under the facts of the case will apply only if resulting in less liability than defendant’s law. If laws held by the same party in different subject areas are equally applicable to the case and result in exactly the same liability, it makes no difference which is applied. The same analysis applies for affirmative defenses, the only differences being that the most applicable one of complainant’s more particular laws will govern the choice of law when the complainant holds more particular laws, and as between complainant’s and defendant’s laws, the affirmative defense that results in the greatest liability for the defendant is the chosen law.

As illustrated by the foregoing, modularity in voluntary law provides the important function of enabling efficient conflict resolution among adopted laws of arbitrarily large diversity, guides development of law by motivating the development of standard subject area hierarchies and readily-translatable forms of expressing laws, and facilitates social experimentation both in defining new legal subject areas and phasing out archaic subject areas. It cannot be imagined beforehand what forms these evolving new aspects of voluntary law might take, in any but the vaguest form. It is hoped that these words will help others glimpse the potential for amazing new forms and expressions of law that will only faintly resemble the oppressive laws of the present day, and that will enable the light of justice to shine more brightly than possible ever before. Modularity has other uses in harmonizing with non-voluntary legal systems, which will be discussed later.

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Due Process, Introduction To Voluntary Law (Book), Voluntary Law

Due Process and Judgments

350px-Uncyclopedia_dispute_resolution
Due process is at the heart of any legal system. It is what differentiates the rule of law from the arbitrary exercise of power, requiring legal process as a precondition to all coercive actions to restore property, exact revenge or punish damnable behavior. Voluntary law shares this basic attribute with idealized statist legal systems. It differs from statist legal systems in how due process is defined. Lacking any central authority, definition of due process in voluntary law emerges out of the power and responsibility of each individual to publish their chosen law. Failures to apply due process are recognized by comparison to minimum standards that are defined by the participants in the voluntary system.

For most civil dispute resolution, and absent an undue amount of meddling by governments, due process is easy. As due process provided by government courts has often failed to meet public demands, for those litigants able to afford alternatives, numerous private organizations have sprung up to provide it. Such market-based arbitration services have created their own rules for due process, directed at resolving disputes using a form of legal process agreeable to their clients. At least for clients possessing comparable economic power in the market for arbitration services, such privately made and voluntarily accepted rules for legal process are deemed fair and efficient.

Disputants under voluntary law are no less free to select a particular resolution service or set of private rules in advance of a dispute arising, for example as part of a contract. In other cases, litigants may elect to submit non-contractual disputes to private process, for various reasons. Resources for private due process already exist in many places, which are capable of resolving disputes under voluntary law, and willing to do so, for a fee. Voluntary law members may make use of these existing resources. The rules under which a case is decided make no difference to a private arbitrator. The private judge is as happy to decide the case under the rules of Mickey Mouse as under California law. The California courts may treat a private judgment rendered under the law of Mickey Mouse differently from one purporting to comply with California law, or may regulate private judges, but these aspects concern coexistence with state law, and are subjects for a different chapter.

A bit of housekeeping: this book refers to a voluntary law judge (or in the broad sense, a panel of judges) as a “jurist,” and a state-regulated private judge (or panel of judges) as an “arbitrator.” These labels are a bit “arbitrary” – pardon the pun – and merely serve to make distinctions when necessary. There is nothing to prevent a jurist from also being an arbitrator, or an arbitrator from also being a jurist; but not always at the same time. In a thriving voluntary law ecosystem, a great many jurists will not be arbitrators; some may choose to be.

Jurists are by definition ruling only on the published choices of the litigants, outside of state-based laws, and may be assigned to different judicial tasks depending on the applicable due process rules. For example, some jurists may operate more like a common-law judge, overseeing courtroom procedure and leaving the development of evidence and legal theories to the competing parties or their advocates. Others may operate more like civil-law investigative judges. Still others may operate more as mediators or peacemakers. Some may resemble or act as members of a jury. There are no particular constraints beyond the choices and expectations of the participants and other stakeholders, economic factors in the marketplace for judicial services, and basic elements of due process. New and more efficient ways of fairly resolving disputes may be developed and flourish in the environment of freedom from central authority that voluntary law provides. On the other side of the coin, the lack of central authority and established laws governing due process creates risk at the early stages of voluntary law development that should be recognized and managed.

Whatever task they are performing, jurists operate under rules determined entirely by the community of voluntary law members whom the jurists serve, without deviating from voluntary law. Accordingly, a state or other authority can have no power to determine who may, or may not, act as a jurist, or what due process under voluntary law must consist of. When a jurist breaks voluntary law to comply with a state or other collectively-determined law, she is no longer acting as a jurist, but as an arbitrator. If the jurist is able to rule on a case while complying both with voluntary law and with applicable state laws, any distinction between arbitrator and jurist is without a difference.

When the defendant and claimant agree on the choice of jurist, and do not contest the propriety of the process used by the jurist to arrive at a judgment, due process is easy. The voluntary choices of competent litigants are simply respected, without question. Not every case will be so easy. Problems arise when the litigants do not agree on the selection of a jurist or legal process, either because of disagreement or some mental incompetency. This chapter suggests some solutions to these fundamental problems of jurisdiction, venue and conflict of due process rules, which are not inconsistent with the basic principles of voluntary law. Other problems arise when a litigant alleges that the jurist was not neutral, did not follow the agreed process or erred in application of the law, and therefore arrived at an improper judgment. These problems are treated in the next chapter on juristic quality and appeal. Some less fundamental aspects of due process, for example, justice for the poor and judgment on unopposed claims, are discussed in Chapter Six.

Due process in the context of voluntary law raises distinctly different issues than due process under territorial governments. Unlike territorial monopolies on governments, participants in voluntary law systems need not be unduly concerned with protection of litigants from the overwhelming monopoly power of the state. Instead of struggling over what the definitive, proper standard of due process should be for government, voluntary law societies must deal with the question of how to deal with conflicting standards for procedural due process, and members’ failure to specify a standard.

Much has been written about procedural due process under statist models. The present introduction can neither fairly cover that legal landscape, nor begin to fully develop the even richer possibilities under voluntary law. Within the more limited scope of this introduction, a list of procedural due process elements by a respected statist judge makes for a worthy comparison. Federal Judge Henry Friendly once provided such a list: a unbiased tribunal; a notice of proposed action and grounds asserted for it; an opportunity to present reasons why the proposed action should not be taken; the right to present evidence, including the right to call witnesses; the right to know opposing evidence; right to cross-examine opposing witnesses; the right to a decision based exclusively on the evidence presented; an opportunity to be represented by counsel; a record of the evidence presented, and written findings of fact and reasons for the decision, prepared by the tribunal; a right of appeal; and at least for criminal trials, a right of public attendance. Henry J. Friendly, “Some Kind of Hearing,” 123 U. Pa. L Rev. 1267, 1310-11 (1975). Whatever the merits of such lists, they depend on beliefs that state-organized tribunals acting on matters of state interest can be unbiased, and that a state monopoly over judicial process is either desirable or necessary.

That is, those who place trust in state sovereignty assume that the first item in the list – neutrality – can be provided by authority of the state, at least if made sufficiently responsive to public opinion. Statists therefore are prone to busy themselves with identifying and debating the factors that procedural due process entails, and which the state should purport to implement uniformly. Indeed it is not hard to think of other items to add to such a list, and debate the exact form such factors should take. For example, factors such as a right to a jury trial, statement of applicable law, a convenient forum, a source of law independent of the tribunal, might be added to Judge Friendly’s list, in some form or another. However long or detailed such a list becomes, in actual practice each item is tainted beyond repair by bias in the tribunal. If the tribunal is biased, all other factors become mere props in a theatrical display for providing an appearance of due process where it cannot possibly exist. Naturally, no mechanism is better suited for ensuring that bias is inserted into due process, than one in which all right and authority, including judicial authority, is centralized in a monopolistic actor. Such centralization and subjugation of judicial authority to a central power source guarantees that the judges thereby empowered will never rule against whatever source grants them their power. The more centralized state judicial power becomes, the less neutrality can possibly be exercised, and the more fruitless theoretical discussions of due process factors are rendered.

On the other hand, if the tribunal is truly unbiased, wise in the understanding of applicable law, and seeking to do justice according to it, the tribunal may be trusted to flexibly adopt whatever due process tools serve the interests of the case. In the hands of a competent and neutral jurist, lists of due process factors are merely items in a flexible toolset for quality control. The particular tools in the toolset may vary from case to case, depending on the preferences of the parties. Voluntary law imposes no particular requirements on due process other than that a publicly discoverable set of rules is defined for just resolution of conflicting laws in the context of any arbitrary dispute, based principally on the content of the laws that are in conflict, and the times at which adopted by the parties to the dispute. This law of conflict resolution applies to differences in standards for procedural due process, just as with substantive rights. Similar balancing principles, such as TROTWET, may be called into service, to deal with cases where the parties adhere to different rules of procedural due process. These principles are subject to a special precondition: just adjudication in every instance requires a neutral jurist competent to apply the applicable substantive and procedural laws, and determine what the evidence shows. The jurist cannot be biased or arbitrary. The law must be applied in a neutral and reasonable manner, or it is no law at all.

Fortunately, voluntary law maximizes the chances that adjudication will be both neutral and competent, by denying particular grants of judicial authority to any person or collective. Instead, any person desiring to be recognized as a jurist must earn a reputation for neutrality and competence in the application of law, by serving the needs of litigants in an open market. This open market is highly regulated by its openness to all providers, lack of entrenched market positions, and transparency provided by sharing of reputational information among law enforcers and litigants. Jurists who are unable to settle disputes efficiently and render durable judicial opinions are quickly flushed out by and replaced by more competent jurists. By definition, voluntary law prohibits any capture of the market for legal services, and by enforcing competition in the market for juristic services provides a reasonable basis for assuming, in the general theoretical case, that a sufficient supply of neutral and competent jurists will be available.

Therefore, the main due process issues in voluntary law arise out of conflicts between due process rules of disputants, and cases wherein one or both disputants fail to adopt any cognizable due process rule. To solve these problems logically, the significance of personal adoption of rules for legal process, in a legal system lacking central authority to establish due process rules, must first be understood. Consistent with personal sovereignty and voluntariness, a person adopting a particular set of due process procedures is telling other users of voluntary law what minimum process she will follow when prosecuting her own claims, and what she will likewise accept as sufficient if exercised against her. She cannot dictate to another what process must be followed when prosecuting a claim against her. Such dictatorial powers would undermine voluntariness, as expressed by the principle of Defendant’s Law introduced in the preceding chapter. The question for conflict of due process scenarios therefore boils down to this: what is the significance of judgment rendered after some due process that is less than acceptable to the defendant? What are the risks to persons enforcing such judgments? What difference does it make if the defendant has cooperated in the hearing of a case according to due process rules other than her own, without expressly waiving objections to the process used?

First and foremost, how can a claimant avoid all the uncertainty and headaches posed by these questions? Quite easily. Simply follow the defendant’s choice of due process rules, if she has made one prior to initiation of the action. If she has not made any choice, and if she will not agree to a reasonable process of law for resolving the dispute at hand, follow a standard set of rules that are conventional for persons in the circumstances of the defendant, based on the advice of a neutral and respected jurist. Do either of these, and avoid serious challenges to the desired judgment on due process grounds.
The defendant cannot hold others to a higher standard than he holds himself. That’s an expression of the No-Hypocrisy principle. Therefore any person who expects to ever find himself in the position of claimant will take care not to adopt overly-onerous due process rules. Even if restrictive due process rules are later abandoned in favor of a more liberal, prosecution-friendly set of rules, any hint of opportunism in the change will taint the changeling’s reputation and right to use the more liberal rules. If there has been any detrimental reliance by a defendant on a claimant’s prior adoption of stricter due process rules, the claimant cannot justly exploit any benefit of the more liberal rules against a defendant. In the usual case, there is no such benefit to be had from one’s own rules when pursuing a claim anyway, because it is defendant’s due process rules that receive priority consideration.

Moreover, a claimant who ignores his own stated due process rules to prosecute a case against another with more liberal due process rules blatantly commits a foul of hypocrisy, which will render any resulting judgment unenforceable. The principle of No-Hypocrisy cannot be ignored for due process rules without throwing the dispute resolution system into imbalance. These imbalances include encouraging any who are likely to be claimants and unlikely to be defendants to adopt overly restrictive process rules, at little personal risk. The imbalances further include requiring different process rules to be followed in cases involving cross-complaints where the parties have adopted different rules. If the No-Hypocrisy principle is applied, both the complaint and the counter-complaint will be decided under the more restrictive set of process rules, in a sort of TROTWET outcome. If the No-Hypocrisy principle is not applied, the claim and counter-claim are made subject to different and perhaps even conflicting process rules, raising difficult if not insoluble complexities for jurists, parties, and anyone who must evaluate the validity of the resulting judgments. These imbalances should be avoided.

Application of the No-Hypocrisy principle to due process rules does, however, raise the question of who should pay for the incremental cost of following a claimant’s more demanding due process rules, in cases where the defendant has adopted laxer rules. The answer is clearly and justly the defendant, because it is the defendant in this situation who holds the power to waive the claimant’s process rules and allow use of a less rigorous process. The defendant will make such waivers when she perceives the waiver to be in her own best interest. For example, if the stakes are not too high and the risks of losing are considerable, she may waive application of the No-Hypocrisy principle and allow a less expensive process to be followed, to reduce her exposure to litigation costs. Conversely, if the stakes are high and the risk of loss uncertain, and she therefore chooses to hold the claimant to claimant’s own higher standard, it is just to hold her responsible for resulting costs, if she loses despite the more rigorous process.

Voluntary law, resting as it does on recognition of the person as the sole and exclusive moral justification for sovereignty, demands foremost consideration to restitution over other forms of justice. Although restitution is not necessarily the exclusive principle of justice in voluntary law, an injured claimant cannot be restored to her original state without it. Nor can one negligently accused recover his losses unless the burden of legal process is shifted to the losing claimant. If only for the purposes of the present chapter, it may be assumed that in the general case, the loser will pay the process costs. More thorough treatment of “loser pays” has been done elsewhere and its application within voluntary law deserves more detailed consideration than can be given in an introductory book. It is mentioned here as a general principle of restitutionary justice that comes into play when considering balancing of conflicting due process rules. It is not presently proposed as an unbendable rule for all cases, whether or not such status is deserved. On the contrary, cost-shifting rules such as “loser pays” are well within the voluntary power of each person to choose.

Faced with the costs of overly protective due process rules as outlined above, the only reasonable people who will adopt extremely protective due process rules are those who know, or firmly believe, that they will never need to bring an action against another, nor will ever lose a suit brought by another and thereby be responsible for the costs of suit. Such persons will either be those who, for spiritual reasons, renounce all legal process and material possessions; or those whose extra-legal powers are so great that they see no need to follow any legal process, ever. Both such classes of persons will be outlaws by nature, and will not bother with the niceties imposed within voluntary legal systems, least of all subscribing to elaborate defensive process rules.

On the other hand, the voluntary law member who adopts overly non-protective due process rules is taking on risk with no commensurate benefit. Imagine, for example, a standard that appoints the claimant as sole jurist and requires submission by all defendants who cannot prove the falsity of the claim by verified video records. Such a person is declaring “open hunting season” on himself, at least by anyone with similarly lax process rules. In return, the only benefit received is the ability to pursue similarly litigious people in a sort of feeding frenzy. There may be a few people who enjoy this sort of high-adrenaline existence. If such people exist, their adoption of very loose standards will keep them well occupied litigating against each other. Their loose rules will provide them no benefit when bringing a claim or defending against a claim by another with more reasonable rules, under the principle of Defendant’s Rule.

There is, however, a great benefit to a person for adopting process rules that are efficient as well as just. Doing so will enable the person to waive more restrictive process when in the position of defendant it is prudent to do so, to avoid exposure to excessive litigation costs. Meanwhile, the efficient process is also available when pursuing a claim against others with similarly sensible rules. Care needs to be taken that justice is not sacrificed to efficiency, but voluntary systems will reward selection of just and efficient process rules, and allow development and discovery of such process rules through an environment of unrestricted innovation. This innovation will undoubtedly limit the ability of legal service providers to generate unnecessary fees. Such an outcome would be an unmitigated good. Economic and “game theory” pressures will tend to drive most people to adopt process rules that are believed just and efficient. These rules may be fairly sophisticated, and allow for different processes to be used for different types of cases – in a sort of analogy to distinctions between civil and criminal procedure in statist legal systems.

Selection of a jurist and forum for resolution of a dispute are aspects of due process rules. Voluntary law members will be discouraged from specifying overly narrow conditions for selection of a jurist and forum, lest they be held to those conditions when pursuing others, under the No-Hypocrisy rule. A further disincentive is provided by the same social pressures applicable to public adoption of substantive laws: members will not want to mark themselves as overly difficult to deal with. Overly lax requirements will likewise be avoided, for the same reasons as overly lax process rules. Exactly which requirements should apply to jurist and forum selection are unknown, and are free to develop and evolve under the same pressures favoring fairness and efficiency as other due process rules. Nonetheless, it is interesting to contemplate what transpires when claimant and defendant cannot agree on a selection of jurist or forum, whether or not the disagreement is reasonable. There are two basic situations: first, the claimant selects a jurist or forum that does not reasonably comply with the applicable process rules. A competent jurist will not willingly accept the case under such conditions, as it would sully the jurist’s reputation to render a judgment that is facially invalid. Second, the claimant selects a jurist or forum that does reasonably comply with the applicable process rules, and the defendant unreasonably objects. In the second case, a competent jurist will dispose of unreasonable objections, and preserve the validity of the process. In the first case, it may sometimes happen that no jurist or forum is available to hear a case. In such cases, the claimant may publish the claim and wait for the market to provide a suitable jurist and venue. There can be little doubt that current and prospective legal service providers would monitor published claims carefully, and rush to satisfy any substantial market demands.

Despite market pressure towards juristic economy, conflicts between process rules may nonetheless arise in the “great middle” between conflicting parties with different cultural or practical beliefs about what constitutes fair and efficient justice. The task of evaluating different process rules may therefore not infrequently fall to a voluntary law jurist. If defendant and claimant cannot otherwise agree on a set of due process rules to follow, the jurist must examine the different rules brought by each, and determine which of these is the more burdensome to claimant and more protective of defendant.

In many cases, protective burden may be directly correlated to economic cost. For example, three jurists are more protective than one, and about three times more expensive. Proof beyond a reasonable doubt is more protective than preponderance of the evidence, and more expensive to prove. Lengthy and complex discovery rules are more protective, and also more expensive. It is difficult to think of more protective practical rules that are less expensive than laxer counterparts. Consider some impractical counter-examples: suppose one rule states that three jurists be used, all of whom must be unpaid volunteers, and the conflicting rule requires only one jurist and is silent regarding payment. In that case, the rule specifying one jurist is less burdensome, even if payment is made, because the example as stated does not require that the jurist under the second rule be paid. Supposing the second rule requires a minimum payment to the jurist, the answer is less clear.

These are the sorts of questions that may be analyzed and argued by professors in the law schools of the future, if voluntary law is ever adopted in a widespread manner. Entire schools of thought may develop to resolve these questions. Or not; perhaps these problems in practice will be few and readily solved, due to social and economic pressures for adoption of reasonable due process rules, a tendency for parties in conflict to agree on ad hoc process rules in most cases, or for other reasons. Nonetheless, the basic approach of adding up and comparing the total economic costs of different due process rules has an appealing simplicity and practicality that may encourage its use to resolve conflicts in process rules. Detailed approaches can and perhaps should wait for actual cases, before being developed much further. Conflict of process rules is peculiar to voluntary law, and there are few or no close analogs in traditional systems, which consistently apply the process of the forum claiming jurisdiction over the dispute. Therefore, new approaches will need to be developed to satisfy the demands of voluntary law.

Having considered an overall scheme for resolving conflicts between process rules in some detail, let us revisit the questions posed earlier in the chapter. What is the significance of judgment rendered after some due process that is less than acceptable to the defendant? Under the rule of Defendant’s Law, such judgments are not valid, presuming that “less than acceptable” means “not compliant with defendant’s publicly adopted process rules.” What are the risks to persons enforcing such judgments? If the non-compliance is or should have been apparent to the enforcer, the enforcer will be liable for negligently or maliciously enforcing a facially invalid judgment. What difference does it make if the defendant has cooperated in the hearing of a case according to due process rules other than her own, without expressly waiving objections to the process used? If the defendant has had an opportunity to object to the process followed, and has not raised any objection, this might or might not be considered as equivalent to express waiver, depending on local juristic customs or the stated voluntary law of the defendant. If the customs or stated laws clearly require an express waiver of defendant’s process rules, the claimant who proceeds without obtaining such waiver does so at his own peril.

What about failures to adopt any due process rule?  If the defendant has neglected to specify any due process standard, it is much more difficult for her to reasonably complain about being subjected to a legal process not too her liking.  If both parties have neglected to adopt any due process rules, they will have to agree on a process for resolving the dispute at hand, or forgo access to a legal resolution.  Virtually everybody will adopt default process rules, once these realities are understood.  There is no reason not to.  If the failure is due to some mental disability, this is a special case.  Treatment of mentally disabled people is discussed in Chapter Six, but the solution lies along the lines of delegating legislative power for the disabled person to an advocate, such as a parent, spouse, guardian, or partner, capable of adopting an appropriate law on the disabled person’s behalf.

To summarize, the power to accept or reject due process rules remains within the sovereign power and responsibility of each person, under voluntary law. Expert jurists may sometimes develop and promote due process rules, and may even require their customers to accept their rules as a condition of hire in particular cases. Nonetheless, due process law remains within each individual’s sovereign power. This power, exercised in a decentralized unencumbered free exchange of laws and legal services, may be expected to lead to development of more just and efficient processes for administration of justice.

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Conflict of Laws, Introduction To Voluntary Law (Book), Voluntary Law

Resolving Conflicts Between Voluntary Laws

Weaker tool 3

People by nature hold different moral and cultural preferences, often very deeply so.  In a system that enforces the principle that no law is legitimate unless previously voluntarily adopted by the person on whom it is enforced, people holding to different voluntary laws therefore must coexist.  These people are not separated from one another by territorial boundaries.  Conflicts between people holding to different laws are  inevitable, in such systems.  If two persons cannot agree on the law to apply in a particular case, or a way to settle disagreement on the applicable law, they are foreclosed from access to the law.  Generally accepted “default” conflict of law rules are fundamentally useful, in the absence of any particular agreement on the matter.  This chapter discusses some of the possibilities and advocates for one approach to resolving conflicts believed to be optimal in both moral and practical senses.

Voluntary law without any universal conflict of law principles is feasible, but would restrict operation of each law to a single society of people who have adopted the same law.  The power of voluntary law to expand beyond the narrow scope of traditional private law and eventually displace current collective monopoly forms of governance depends in large part on widespread understanding and acceptance of universal (or “nearly universal”) principles for resolving differences between the voluntary laws brought by parties to a dispute.

In addition to conflicts between voluntary laws, conflicts may also arise between voluntary law and state laws.  The former type – voluntary law conflicts – are capable of being resolved entirely within voluntary legal systems.  The latter type concerns coexistence with state systems, which is a different subject entirely and treated in a different chapter.

In a legal system with no territorial authorities, wherein each person is free to choose her own law,  is it possible for rules resolving differences between laws to exist that both prevent the imposition of laws on those who reject them, and do not undermine justice?  This can be approached as a problem of game theory.  Superficially, it might seem that no fair solution could exist.  The possibility for unresolved conflicts of law is a stumbling block that might prevent many from considering voluntary law as a viable legal system.  But it takes just a little thought to see that the conflict problem in voluntary law can be solved by logical consideration of personal incentives in the context of social behavior.  It just requires thinking about law in ways that most people are not accustomed to.

The inquiry into a suitable solution begins with the  standard of justice.  Justice requires reciprocity, meaning that each are judged under the same measure as each would judge others. That whatsoever a person metes out, is meted back.  The opposite of reciprocity is hypocrisy.  Hypocrisy exists whenever people would apply different rules to the conduct of others than they would apply to their own.  Hypocrisy undermines justice.  If everybody follows the same law, which is always applied with perfect justice and uniformity, hypocrisy cannot exist.  Under an authoritarian system, it can be pretended that the same law is imposed on all. This is a logical solution to hypocrisy, although horribly idealistic and impractical. Those in power are never subject to the same laws they impose on others, either openly by making laws that will never be applied to themselves, or secretly by corruption. In a system of voluntary law societies, the fiction and fantasy of equal justice under one standard law is rejected.

Instead, members of voluntary law societies will sometimes face the dilemma of choosing the law to apply in a dispute between persons who hold to conflicting laws, without consideration of any overriding territorial authority contrary to the published voluntary choices of the parties. Under the basic principle of voluntaryism, we must generally apply the defendant’s law to prevent the defendant from being judged by a law she did not adopt.  This might be called the principle of “Defendant’s Law.”  The claimant has no right to expect that others must follow his law, but only that the defendant should follow the law that she has openly adopted.  The requirement to apply the defendant’s law opens the door to opportunistic adoption of law in pursuit of hypocritical ends, by overly clever prospective defendants.  For example, a person who owns no property of a certain type may refuse to recognize property of such type held by others, up until the person acquires such property, and which time the person adopts a law respecting the property type.

To disincentivize opportunistic adoption of law by persons set on reaping a harvest of hypocrisy, defendant’s rule can be tweaked to impose the most severe law — the “Law of Greatest Liability” — adopted by the defendant at any time since just before the legal complaint at issue first arose.  Defendant’s “choice” should not be based on an opportunistic selection made with a particular claim in mind. Instead, the choice should be determined by which law or laws the defendant has adopted at any time since just before the earliest event giving rise to the claim, or since some other earlier time.   For example, a person who changes their law to recognize a new class of property or other rights that the person previously trampled on might open herself up to claims based on the new law for her past conduct back as far as the applicable statute of limitations reached.  If so, anyone planning to change their adoption to recognize a new class of rights would take care to avoid infringing those rights for a sufficient period of time before such change.

These two principles, combined as “Defendant’s Law of Greatest Liability” rule are a serviceable start.  This rule creates disincentives for opportunistic adoption of lenient laws to escape liability for planned evil deeds.  Some potential for unfairness or abuse remains, however.   Under this rule, persons adopting more severe laws are vulnerable to being sued by those who have made themselves invulnerable, or less vulnerable, by adopting less severe laws.  Allowing claimants to hold others to more severe standards than they hold themselves would create too much pressure for all to adopt laws of minimal or no liability.  If all did so, the usefulness of the law for proscribing appropriate remedies for wrongs would be undermined, and the law’s ability to provide incentives for legal settlement instead of extra-legal direct retribution would be destroyed.

To avoid this outcome, claimants may be barred from enforcing any law of greater liability than the claimant has adopted. This might be called a “No-Hypocrisy” rule.  Such a rule would prevent people from reaping the benefits of a law that they themselves do not recognize. The No-Hypocrisy rule holds, in other words, that if (and only if) the “Defendant’s Law of Greatest Liability” results in greater liability than the “Claimant’s Law of Least Liability,” then the dispute must be decided under the “Claimant’s Law of Least Liability.”

Generally speaking, applying the “Defendant’s Law of Greatest Liability” and “No-Hypocrisy” rules together is almost logically equivalent to simply applying the law of least liability between plaintiff and defendant in any given circumstance, but not exactly so. For if the plaintiff’s “law of least liability” results in greater liability than the defendant’s “law of greatest liability,” then the defendant is held to the law of greatest liability adopted by defendant during the relevant time period, which may result in greater liability than some less severe law adopted by defendant during the relevant time. Nonetheless, except for the foregoing circumstance, it will usually be the case that the least severe law held by claimant or defendant during the relevant time period will be the law applied.

It is therefore convenient if not completely accurate to refer to this system for resolving differences between laws as the “Rule of The Weakest Tool.”  Each party to a dispute may bring “offensive” weapons, that is, laws that entitle the party to some form of legal relief, sometimes called “positive laws.”  The claimant brings a claim based on some law adopted by the claimant, and the defendant will either have some some law covering the same issues, or will not recognize the legal right claimed by the other party entirely.    Each party to the dispute may bring “defensive weapons,” sometimes called “affirmative defenses,” that provide exceptions to positive laws.  Under the Rule of the Weakest Tool, the jurist examines the positive laws and affirmative defenses brought to the conflict’s “weapons pool,” excluding all but defendant’s strongest positive law, claimant’s weakest positive law, defendant’s weakest affirmative defense, and claimant’s strongest affirmative defense from the pool.  In many cases, the parties will not bring multiple weapons of the same type to a conflict.  In such simpler, more typical cases, the jurist’s job is easier.  There is less or nothing at all to exclude from the pool, which simply contains the applicable laws from each party.

For positive law, the weaker law is the one that, when applied to the facts of the case, would result in the lesser liability for the defendant.  For affirmative defenses, the weaker law is the one that results in greater liability for the defendant;  that is, the weaker defensive law is the weaker shield.  From the case’s “weapons pool” the jurist selects the weakest positive law, and the weakest affirmative defense, as the law of the case.  Where the weaker of two laws is unclear at the outset of a case, the case may be tried under both laws and the weaker law identified after liability under both laws have been calculated.

A refusal by the defendant to recognize the positive right claimed by the claimant will negate that right entirely, assuming that the refusal complies with “Defendant’s Law of Greatest Liability” and with the requirements for effective adoption of voluntary law.  The refusal need not be expressly stated.  It may be inferred from a silence of sufficient clarity on the right in question.  For example, a statement that no property right can be attached to information of any kind is as effective as a law that recognizes rights to tangible property only and is completely silent on all other types of property right, when it comes to negation of intellectual property law claims.

Under the Rule of the Weakest Tool, all parties have an incentive to adopt sufficiently severe laws to afford themselves reasonable remedies for infringement of the rights they care about.  When people adopt laws that provide for reasonable penalties, they provide an incentive for those they have wronged to seek legal remedies instead of extra-legal remedies.  Having stated the rule, some examples will help illustrate its operation.

Suppose, for example, that Cain adopts a law in which there is little or no penalty for murder, and then murders Abel (who, like all of his family, has adopted a law with severe penalties for murder).  In such case, Abel’s family can legally find no justice or satisfaction under Cain’s law. They may, however, extra-legally murder Cain in retribution, without putting themselves at any greater risk of legal liability than Cain. Anyone bringing a legal action on behalf of the slain Cain would be limited to the “law of least liability” adopted by Cain during the relevant period, which is the time from just before Cain murdered Abel until Cain was himself murdered by Abel’s avengers. It’s quite easy to see why Cain could not rationally expect that adopting an overly lenient law would be of any personal benefit in securing his own safety and happiness.

Such would be true, unless by some extraordinary means Cain is immune from being murdered. Acquiring such immunity may be presumed impossible without the intervention of a state or similar evil.  When an aggressor is practically immune to retribution (for example, by being “judgment proof”), the “impossibility problem” is at work.   The impossibility problem primarily comes up in the context of property claims but not, in any practical sense, in the context of claims for bodily or personal harms.  Impossibility of retribution may be a problem even for personal safety, where state or state-like (e.g., organized crime) powers grant practical immunity from extra-legal retribution.  But this is a problem caused by state aggression; it is essentially a problem of dealing with outlaws, and is not a problem between people who follow the principles of voluntary law.

The more interesting problem that exists more squarely within the context of voluntary law is that of differing property rights.  In this area, voluntary law provides new and flexible solutions to age-old problems rooted in property claims. The impossibility problem is a present reality for claims based solely in property rights, for the simple reason that not everybody holds the same types of property. While virtually everybody has personal property of some kind, some may own no real property (e.g., land), or no “intellectual property.” Consider, for example, the case of copyright. Creators of books and so forth might prefer the ability to make claims against those who copy their works without permission.  Some consumers of creative content, on the other hand, might generally favor no such penalties for copying the works of others. Under the principle of reciprocity, there is no way for a content creator to enforce a copyright claim against someone who refuses to adopt copyright law.  The prior chapter pointed out how the publication requirement nonetheless provides the content creator with certain protections from those who refuse copyright laws, because voluntary law society members who reject copyright laws must identify themselves. Whether that outcome is good or bad, it provides an example of the impossibility problem at work.

What about people who reject all real property claims, even personal property claims?  Again, the publication requirement provides a check against insincere adoption of property laws.  Suppose Willy the Wanderer adopts a law that rejects all real and personal property laws.  Such a person is inviting theft – actually, such person does not recognize theft as a possibility.  Willy therefore cannot be charged with trespass or theft, but neither can obtain protection of the law for any belongings that others may desire, and will be left only with things that nobody else wants.  If you do not want Willy sleeping in your house, lock the door — he will be unable to acquire the tools to break and enter.  If you find him sleeping in your unlocked garage, he cannot be charged with an offense under voluntary law.  You might have to lure him out with the promise of a hot meal, and then secure the garage, if you please.  If he defends his possession of the garage with force, he is breaking his own law, and if he threatens you in the process it may well excuse you from bodily harm to Willy caused by your actions in self-defense.  If you evict him from the garage with force, you will be responsible only to the extent you have physically harmed his person in the process, without justifiable excuse.  Is this balance of rights and obligations such a bad outcome?  Does it not leave legal room for the the homeless to exist in the undefended spaces, with their personal dignity intact?  Is it not in large part how the humane parts of the world work, anyway?  This extreme hypothetical is actually fairly easy.  Few people would go to the extreme of Willy the Wanderer in their choice of law, but the small minority who did would be free to wander at the risk only of their personal property.  And most sensible wanderers would respect personal property rights, at least.

The best law to be applied when an affirmative defense is raised is not quite so clear. Should the defendant be allowed to raise all the affirmative defenses allowed under the defendant’s law? Or should the defendant be limited to those affirmative defenses that are permitted under claimant’s law? As formulated above,the Rule of The Weaker Tool deprives defendants of their chosen affirmative defense, limiting them to the claimant’s affirmative defense if it is weaker than theirs.  This apparent deprivation of the defendant’s voluntarily adopted law is not what it seems.  The following example illustrates why.

First, a little background. An affirmative defense is like an excuse that excuses defendants from responsibility for their actions. For example, self-defense or defense of others can be an affirmative defense to battery or murder. Necessity can be an affirmative defense to trespass. Many other affirmative defenses are possible.

Affirmative defenses may be distinguished from positive laws on the basis of which party has control and responsibility for choosing and proving the elements of the action at hand. If the claimant is required to select and prove that all requirements are satisfied, the action is a claim under positive law. If this responsibility is on the person defending to escape liability for the claim, the action is an affirmative defense.  It is evident that the distinction is procedural, suggesting this exact distinction may not always apply depending on the chosen procedural rules.  Nonetheless, it should be fairly clear in almost every case whether or not a law is being used offensively as a basis for a claim, or to defend against the claim of another.  The incentives will be the same regardless of hair-splitting over how best to arrive at the proper classification.

Which law should determine the affirmative defenses to a claim, claimant’s or defendant’s? Let’s start with a couple of counter-examples based on the same rule as for positive laws: we shall suppose, for the sake of illustration, that defendant’s affirmative defense applies, unless applying claimant’s affirmative defense would result in less liability for defendant. Let’s see how this approach plays out in a couple of scenarios.

Scenario A: Fanatic, who has adopted a law stating that any harm committed to prevent an imminent abortion is justified defense of others, hides in an abortion clinic and injures Sawzall, an abortion doctor, just as Dr. Sawzall is about to perform an abortion. The doctor seeks a legal remedy for the attack, and had previously adopted a law that does not recognize the defense of a fetus in cases where an abortion is elected by the mother. Fanatic raises his intended defense under the rule of defendant’s law  for affirmative defenses, and the doctor is unable to recover for his injuries.

Scenario B: Luckless owns no property of significant value and adopts a law permitting poverty as an affirmative defense against continuing trespass. He then takes up residence in Rich Brother’s spare vacation house. Rich, of course, has adopted a law that does not recognize poverty as an affirmative defense to trespass but does recognize defense of property as an affirmative defense against claims based on coercive removal. Rich Brother cannot legally evict or obtain any damages from Luckless, who successfully raises poverty as affirmative defense to the claim of trespass. This is so, even if Luckless recognizes Rich Brother’s underlying property claims. Under Luckless’ rule, poverty is a complete defense depriving the property owner of any legal remedy for the trespass.

The result is the same as if Luckless had adopted a law that does not recognize rights in excess real property. Under the Rule of The Weakest Tool, Rich’s trespass claim would fail because his property right in the vacation home would not be recognized as valid under Luckless’s law. Either way, Rich has no legal remedy. Rich’s only option, apart from tolerating Luckless, is to physically remove Luckless extra-legally and plead the affirmative defense of defense of property in case Luckless brings a claim for damages based on the removal action. Rich can use any method he likes to carry out the extra-legal eviction, supposing he has adopted a law in which defense of property is a complete defense to any claim of excess force. So if Rich Brother shoots Luckless in both legs and throws him out the third-floor window, tough luck for Luckless. If Luckless were to sue for the violent removal, Rich Brother would obtain the benefit of both his positive property law and his affirmative defense, and escape all liability.

The foregoing examples illustrate the problem of impossible problem at work, working obvious injustice and incentivizing predatory behavior. Fanatic will never perform an abortion and therefore has no concern about the fetal defense excuse ever being raised against a claim he might make. Luckless owns no property and likewise has no reason not to adopt poverty as an affirmative defense to claims based in property; conversely, Rich has no reason not to adopt defense of property as an absolute affirmative defense.

For comparison, let’s see how the Rule of The Weaker Tool plays out in another scenario involving affirmative defenses.

Scenario C: Assume Defender, who has adopted a law stating that any harm committed to prevent abusive injury to a child is justified defense of others, becomes aware that Abuser has imprisoned Abuser’s own children and is beating them bloody every day. Defendant executes a daring rescue, freeing the children, but unavoidably injuring Abuser and destroying part of his home in the process. Abuser seeks a legal remedy for the attack, having long adopted a law that does not recognize defense of others as an affirmative defense, in cases where person being defended against is a parent of those being defended. Under the Rule of The Weaker Tool applied to affirmative defenses, Defender therefore cannot raise his intended defense, and must compensate Abuser for his injuries and property damage. Meanwhile, assuming Defender recognizes the affirmative defense of self-defense, Defender cannot recover from Abuser for any injuries inflicted by Abuser in reasonable self-defense.

This may not seem to be a very satisfactory result, but is not at all as bad as it seems. The hypothetical intentionally portrayed Abuser as unsympathetic to play with the reader’s emotions, to encourage clarity of thought. What if Defender mutilated everybody who so much as raised their voice to their children? Applying claimant’s rule of affirmative defense simply creates incentives for Defender to exercise care while rescuing children. Abuser may not deserve to be treated with care, but that is not the point. The point is that a legal system that permits Defender to effectively appoint herself judge, jury and executioner upon the general public will create an unbalanced and hazardous society.  The law should certainly not prohibit Defender from her meritorious deeds in defense of others, but should also provide her with incentives to act with care while doing what she perceives as good.

Of course, Abuser cannot claim a right to abuse anyone including his own children against their will under voluntary law, because such a law would clearly violate the principles of personhood and voluntaryness.  Abuser may therefore be held fully liable under claims brought on behalf of his freed children. The issue is limited to whether Abuser may exploit the Impossibility Problem to deprive Defender of her affirmative defense, when she seeks to defend Abuser’s children.

Suppose the Rule of The Weaker Tool still applies, and the tables are turned: Abuser attacks to defend Defender’s children (assuming Defender has become an abuser). Shall voluntary law permit Abuser to gain the benefit of Defender’s affirmative defense? The No-Hypocrisy Rule would say no. Because Abuser has adopted a law that would result in greater liability, Abuser cannot receive the benefit of Defender’s affirmative defense that would result in less liability, if sued by Defender.  Abuser must be judged under the same affirmative defense that he would permit for those he makes claims against, unless doing so would permit the claimant to enjoy greater benefits than afforded by claimant’s own law on affirmative defense.  In other words, when raising an affirmative defense, defendant must do so under claimant’s law, unless defendant’s own law provides a weaker affirmative defense than claimant’s.

These examples illustrate how reciprocity, without hypocrisy, creates incentives for people to adopt laws of affirmative defenses that will not deprive them of a similar defense if ever needed.  They illustrate the benefits of the Law of The Weaker Tool applied for affirmative defenses as well as positive laws, with the meaning of “weaker tool” suitably adjusted. This should prevent injustice and predation in personal injury cases, where impossibility of reciprocity is not a problem.

In property cases, where impossibility of reciprocity is a common problem, the effects of the proposed rule should be examined. To that end, it is helpful to revisit Scenario ‘B’ discussed above: Luckless versus Rich Brother. Under the Rule of The Weaker Tool, if Rich Brother sues Luckless, who recognizes Rich Brother’s property right to his spare home but has adopted poverty as an affirmative defense, Luckless is limited to Rich Brother’s affirmative defenses which do not include poverty. Rich Brother can therefore obtain an order to legally evict Luckless from his vacation home.

However, if Luckless has adopted a positive law that does not recognize any property interest in, say, any home not resided in for at least 50% of the time in any given year, Rich Brother will lose unless he resides in the home for at least half of the time. Supposing Rich Brother loses on positive law and decides to evict Luckless extra-legally by drugging Luckless and transporting him 1000 miles away while drugged (and then changing all the locks on the vacation home). If Luckless subsequently sues Rich Brother for kidnapping and coercive drugging, Rich Brother will be unable to raise his affirmative defense based on defense of property, assuming Luckless does not recognize defense of property as an affirmative defense to kidnapping. So Luckless will be able to recover appropriate penalties from Rich Brother for his brutish method of removal. Next time, Rich Brother will be more clever about how he gets Luckless to leave.

Unlike claims that are controlled by claimants, the defendants are in control of affirmative defenses.  Thus, the Impossibility Problem coupled with applying Defendant’s Law for affirmative defenses would create incentives for using extra-legal remedies, without any risk of legal liability. This is problematic, to say the least. The power to select one’s own affirmative defenses cannot be allowed to create incentives for extra-legal remedies. If voluntary law creates incentives for extra-legal remedies, it will quickly lose legitimacy and cease to exist.

The foregoing contrasting examples illustrate how the Rule of The Weaker Tool creates incentives for reasonable behavior.  In the first hypothetical, Rich Brother could not evict Luckless even if both Rich Brother and Luckless had adopted laws recognizing property rights in vacation homes, because Luckless was entitled to his affirmative defense of property. Conversely, if Luckless had adopted a law that did not recognize Rich Brother’s positive property rights, Rich Brother would have had no incentive to perform the extra-legal eviction in a reasonable manner, because Rich would be entitled to his affirmative defense based in defense of property. The power to select one’s own affirmative defenses should not create incentives for extra-legal remedies or predatory conduct.

Let us consider some more examples of property law conflict resolved under the Rule of The Weaker Tool.  Suppose one person (Lysander) adopts a law that adverse possession requires open and unchallenged use for a continuous period of three years. Another person (Murray) adopts a law requiring only one year of open and unchallenged use. Murray openly squats unchallenged on Lysander’s land for 2 years, at which time Lysander sues to evict Murray. Murray countersues to claim Lysander’s title.  Applying the Rule of The Weaker Tool to Lysander’s claim, Lysander wins, because adverse possession is an affirmative defense.  Murray is therefore not entitled to his affirmative defense and must use Lysander’s more stringent standard, under which his adverse possession is not long enough to be effective.  However, even if adverse possession could be advanced as a positive law by Murray, he also could not gain title under the the Rule of The Weaker Tool.  Applying the Rule of The Weaker Tool to Murray’s claim, Lysander wins either way. Therefore, Lysander can legally evict Murray if Murray is relying solely on his affirmative defense of adverse possession, and Murray cannot obtain Lysander’s title. If Murray wishes to challenge Lysander’s title, he must find a different basis for doing so.

For example, suppose Murray adopted a law that did not recognize any property claim to fallow land plots of one acre or more, that have gone unused for five years or longer.  Lysander claims hundreds of acres of land, all wild and unused.  Murray fences off five acres within Lysander’s claim and cultivates a farm, basing his right to do so on the positive right of property recognized by his law.  Lysander takes notice and sues Murray for eviction.  Lysander’s claim fails under the Rule of The Weakest Tool, because under Murray’s positive property law, Lysander does not have a legitimate claim to the land Murray has improved.  Conversely, if Murray sues Lysander for title, Murray’s claim fails under the Rule of The Weaker Tool, because Lysander’s property law is weaker with respect to the property claim that Murray would enforce.  That is, Lysander’s law is the weaker tool in the second context, because it results in less damage to Lysander property claim.  Lysander therefore cannot legally evict Murray, but neither can Murray gain title that is superior to Lysander’s.  Just as illustrated by some of the examples involving Rich Brother and Luckless, differences in substantive real property laws can result in stalemates wherein one party cannot legally evict and the other cannot gain superior title.  Murray nonetheless retains an inferior claim which may be recognized so long as the five acres he has fenced off do not go unused for more than five continuous years.

Such stalemates are a feature of voluntary law, not a bug.  Although stalemates might sometime cause inconvenience, in the main they embody an organic balancing between inordinately large or inappropriate property claims by an elite few and the natural property rights expectations of the masses.  Conflicts such as Lysander and Murray experienced do not happen in a vacuum.  Such conflicts occur in a social context with different numbers of people adopting laws on different wavelengths of the property rights spectrum.  The reasonableness of one’s stated position on property law will be judged within prevailing community attitudes, which although allowing for variation and ways of relieving tension between conflicting laws, will render outlying positions practically unenforceable.  To illustrate, suppose Lysander appoints himself as sole supreme emperor and owner of the universe.  By publicly adopting such a law, Lysander has accomplished nothing more than announce to the world that he is a fool not to be regarded seriously.  He has adopted a law that by the Rule of The Weaker Tool renders unenforceable in every conceivable instance.  The more grandiose a claim under voluntary law, the less enforceable it is.

These examples illustrate a foreseeable side effect of voluntary law, including among other things the Publication requirement and conflict resolution such as the Rule of The Weakest Tool: a leveling of property rights or other rights claimed under law, due to pressure from the Impossibility Problem. Voluntary law under the Rule of The Weakest Tool, if widely adopted, may be expected to push enforceable property rights close to a minimum of what the vast majority of people deem acceptable. That minimum will tend to lie at the maximum of what the vast majority of people can realistically hope to own. It will become impossible under voluntary law for durable classes divided between property owners and non-owners to arise. Whenever great inequities arise, those who lack any realistic hope of acquiring a specific class of property will adapt by adopting laws that do not recognize the impossibly remote property claims of the elite. Under the defendant’s rule, the elitist property claims will thereby be rendered practically unenforceable.

These examples only scratch the surface.  Conflict of law is a complex and interesting area of voluntary law, with limitless possibilities flowing from simple principles under different circumstances.  Some issues have not been addressed above, for example problems with determining the “weaker” tool when the remedies afforded by different laws are different in kind, i.e., of different types that are difficult to compare.  Detailed discussion of such more advanced topics may be left for the future.  The great jurists will be those able to cut through all the complexities of the different laws brought, and consistently do evident justice that respects and balances the respective choices of the parties.  Rules such as the The Weaker Tool are not meant to be the final word, or to foreclose all debate on the question of just conflict resolution.  The Rule of the Weaker Tool may, however, represent an idealized optimal solution to the problem of finding a fair and stable balance between the rights of claimant and defendant, within the confines of solutions that are not based on politically-drawn territorial boundaries and other impositions of laws without consideration for the personal choices of each party.

Must the alternatives to resolving conflict of laws be limited to a choice of either defendant’s law or plaintiff’s law? What about some combination of plaintiff’s and defendant’s law, or choosing a third law?  Other conceivable solutions, for example averaging of damages from different laws or random selection, would plainly fail to provide the same incentives for decent and reasonable behavior afforded by the rather straightforward Rule of The Weaker Tool.  Certainly, parties to a particular dispute are always free to agree on some other way to resolve differences between laws they have adopted.  In addition,  the possibility of universal conflict of law rules does not preclude members of different voluntary law societies from adopting a common set of conflict of law rules different from the universal set. Where all parties to a dispute have previously adopted the same conflict of law rules, there is no need to use the universal set.  If all parties to a dispute cannot agree to use the same conflict of law rules, the universal set provides the only option for resolving the dispute without forsaking voluntary law entirely.  The universal set of conflict of law rules therefore needs to be neutral, fair and workable enough to gain widespread acceptance as the conflict resolution rule of last resort for any person who would live according to voluntary law.

Variations in the universal set can be tolerated without too badly undermining voluntary law systems, to the extent such variations are confined to boundaries that are discernible and not easily disregarded. For example, dispute resolution services located on the Moon might apply different conflict of law rules than similar services on Earth. Such differences could exist without injecting an intolerable amount of uncertainty into inter-personal relations, so long as constraints on travel between the Moon and Earth (a) make it easy for Moon people to avoid contact with Earth people, and vice-versa, and (b) make the probable forum for resolving disputes between Moon people and Earth people, in any particular circumstance, fairly predictable. Without a substantial degree of separation between adjudication forums that apply different default conflict of law rules, the practical effect of adopting a particular set of voluntary laws may become much less predictable, undermining incentives for adopting them.

In the absence of any conflict of law rules, the options for resolving conflicts in which the parties cannot agree on the law to be applied are limited to extra-legal remedies or appeal to a non-voluntaryist authority. Either of these options breaks the system, rendering voluntary law ineffective and inferior in this respect to authoritarian legal systems.  More fundamentally, a house divided against itself cannot stand. Without generally accepted conflict of law principles, the decentralized, atomistic nature of voluntary law will lead to division.  Difficult disagreements will arise over which laws to apply in disputes between members of different voluntary law societies.  These differences may become every bit as bitter and divisive as political fights over moral preferences in statist institutions, and will tend to drive people with different beliefs apart instead of encouraging peaceful acceptance and commerce despite differences in world views.  Only time will tell if or how universal conflict of laws will evolve in voluntary law, but one possibility is for majority communities of voluntary law societies to emerge holding to their own “almost-universal” conflict of law principals, with minority voluntary law societies either using minority conflict resolution rules, or isolated without any consensus conflict rules.

At this nascent stage, nothing seems better suited for resolving conflicts between personally adopted laws than the Rule of The Weaker Tool.  Nor is there any room for serious doubt.  This Rule, if widely understood and adopted, is capable of facilitating commerce and mutual respect between people of different beliefs, without requiring that any person bow to authority higher than their own sincere moral lights.  THAT is a most remarkable invention.

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