Foundations – The Three Pillars

By design, voluntary law rests on three conceptual pillars:

By placing law within the exclusive sovereign power and responsibility of the individual, on the concept of the person, or “personhood.” By requiring that a person’s choice of law be voluntary, on the concept of freedom from coercion or fraud, or “voluntaryness.” By making law effective and enforceable based on publication of a person’s choice of law, on the concept of “publication.”

These three pillars require a stable and logical construction. Without that, voluntary law, once attacked by the skilled rhetorician, crumbles in a chaotic mess of contradictions almost as bad as what passes for law today. So, although these core concepts may seem self-evident in everyday life, this chapter attempts to parse them out in sufficient detail so as to avoid meaningless contradictions.

No claim is made that the exact meanings of the three pillars are beyond dispute. Quite the contrary. Many interesting problems in voluntary law might arise out of differences of opinion over precisely where these meanings lie, in difficult cases. Some of these problems will be introduced in more detail in later chapters.

Such potential differences of opinion do not make voluntary law any less practical or useful than other systems of law. It is inescapable that every system of law, dealing as it must with the abstract notions and emotions of humans, involves differences in opinion about the most optimal legal principles, the best way to express such principles in law, and the correct interpretation of the law in different factual circumstances. Voluntary law shares these characteristics, as it is also a creature of rhetoric. One of the key purposes of voluntary law is to peacefully bridge such differences in opinion without the use of coercive force or fraud such as used in traditional legal systems.

Nonetheless, the qualities that distinguish voluntary law from imposed legal systems can be easily appreciated by any reasonable person. These distinguishing qualities may be summarized as the three pillars described here.

I. Personhood

A. “Person” as a Qualified Actor Subject to Justice; Humanity and Personhood

Personhood is the door to voluntary law. It is, by definition, that unique quality that both justifies and limits the sovereign power to make law. Every entity that would make, enforce, and be subject to voluntary law must be a “person” according to some universally applicable, coherent, and ethically justified definition. Personhood defines who (or what) can qualify as a sovereign power in a universal system voluntary law, purged of any unnecessary or arbitrary restrictions. “Person” is used here in a narrow sense of “qualified legal actor,” which use should not be confused with different uses of “person” or “people” in other contexts.

For the sake of simplicity, we might simply define a person as any human being. This definition works pretty well for most purposes, but is inadequate at the limits, considering foreseeable future circumstances of our species. Moreover, defining a person merely as a “human being” obscures the basic reasons why laws should be placed within the exclusive sovereign power of the person. Such an anthropocentric, essentially arbitrary definition masks the ethical justification for granting the power to adopt and use voluntary law to, and only to, a specific class of entities. Status as a member of a particular biological species cannot logically explain why only those individuals qualifying as “human” should possess the sovereign power to declare their own law, even if one ignores the problems of distinguishing what is human from what is not.

Besides the need for philosophical clarity, there are more mundane considerations for everyday application of voluntary law, which also justify a clear definition of personhood that does not depend on status as a human. The ability to act voluntarily and to reason is not perfectly coincident with one’s status as a human. Therefore a thing’s status as human or non-human cannot provide a rational basis for determining the eligibility to adopt and be held accountable to one’s own law. Whether or not non-human persons exist, no human is capable of “acting as a person” all of the time. Every human must frequently fall unconscious during sleep, and lose for a period of time any ability to perform voluntary acts or to reason. Every human spends a significant fraction of life as something incapable of voluntary action or reason. Some humans never in their life acquire this ability. For status as a legal person, something different from mere status as a human must be required.

B. The Necessary Abilities of Personhood

Whether or not a person is human, action under law requires a set of mental abilities. There are many mental abilities, but not all of are necessary for personhood under voluntary law. For example, some people have photographic memory or other special abilities, but such abilities are not essential to the performance of a volitional act subject to justice, that is, a legally relevant act of free will. Which leads us to a list of necessary abilities:

Apparent Free Will. For legal if not philosophical purposes, apparent free will is the capacity to creatively construct an action regardless of external stimulus. This includes the ability to choose between alternatives, but more than that, to create entirely new alternative sets of purposeful actions even when faced with the same stimuli. It means that the actions of the actor are directed to some discernible purpose and are not entirely predictable, in an objectively observable fashion.

At root, voluntary law exists to provide a code of justice, without imposing one person’s moral preferences or self-serving rules on another who consistently rejects them. Justice means fair retribution for harms caused by volitional acts or negligent failures to act. Justice is not concerned with “retribution” for acts of nature. An act or omission by a qualified actor is a logical prerequisite to justice and to application of any law, voluntary or otherwise. Something cannot be a person subject to justice, unless that something is capable of performing a volitional act. Apparent free will is a prerequisite not only for voluntary law, but for any system of justice.

We need not be concerned with the philosophical question of whether or not humans or other beings actually have free will, or merely appear to have free will due to imperfect knowledge of the incipient conditions of any given action. It is sufficient for all practical purposes that the being in question appears, to any reasonable and objective observer in the legal system, to have free will. If it is apparent that the being in question does not have free will, it is a sort of machine, incapable of voluntary action. Being apparently incapable of volition, it cannot participate in a justice system that requires it to make recognizably voluntary choices. Thus, apparent free will is a necessary ability.

Awareness of Self and Others. A being may have apparent free will, but may fail to recognize itself as independent of other selves. Infants and young children, and many animals, lack this mental ability. This disability may also be found in adults with certain mental illnesses or disabilities. Self-awareness is foundational to the ability to reason and speak, at least in humans, so this ability is seldom lacking in natural persons. However, machines are certainly capable of language, and yet lack any apparent sense of self-awareness. Without a sufficient level of self-awareness to recognize a social environment and one’s place in it, a being is not capable of governing its actions in a way that recognizes the rights and obligations of itself or others.

Language and Memory. A being must have an ability to communicate using symbols, and to access some form of record of past expressions of language. Without the ability to communicate using symbolic language and receive information from records of some kind (not necessarily written), an otherwise free and rational person is not able to engage in anything resembling compliance or enforcement of any code of justice.

Rationality. A being must be capable of thinking and acting rationally, or it must be disqualified from full and active participation in any code of justice, voluntary law included. A code of justice is essentially a logical plan or scheme for the administration of justice. A being incapable of consistently acting and thinking according to logic therefore cannot participate in an inherently logical plan. Human beings afflicted with some mental illnesses or disabilities of age or youth may have all of the other mental abilities and qualities of a person, and yet lack rationality. Such entities cannot be active participants in voluntary law, held to their irrational public statements. They may enjoy any protected status that the laws of their community affords them. Similarly, the law may protect virtually any other living or non-living being, without granting such beings the full status of a person capable of acting within the legal system.

A Desire For Justice. A desire for justice is a primitive but essential emotional capacity underlying voluntary law and all other justice systems. It may be assumed present in any natural person who possesses all of the other abilities of a legal actor, with the possible exception of someone in the grip of some rare mental illness. Everybody feels that some price should be paid for wrong doing, and recognizes, at least in theory, that others may expect them to pay recompense for their own wrong doing. Even the sociopath is capable of understanding justice at least “for me, but not for thee.”

It is conceptually possible, however, that an otherwise capable legal actor, perhaps of a non-human sort, might lack any emotion resembling a desire for justice. Such a being would lack any outrage or other emotional distaste over wrongs committed against them, and would find it incomprehensible that others felt anger or negative emotions when aggressed against. We might imagine a self-aware android with no sense of property and no fear of death. Such a being would have no use for a code of justice, and would lack a motive to adopt one.

While the lack of this emotional capacity may be mainly theoretical, it is still worth recognizing that the thirst for justice is the essential motive force energizing all justice systems, voluntary law included. That is not to say that one cannot be motivated to participate in voluntary law by other desires, including some that may primarily be rooted in self-interest. Rather, the logic of a self-imposed code of justice cannot be understood without the capacity to feel the thirst for justice, which like all emotions is impossible to imagine by those who can never feel it.

C. The Necessary Disabilities of Personhood – Corporeality and Mortality

Corporeality. Humans all over the world have long believed in spirits, ghosts, gods and other forms of disembodied minds. Whether or how such beliefs have a basis in reality, consider the theoretical possibility of a disembodied mind. Such a mind might have all of the mental abilities identified above as essential for the “personhood” of a legal actor, yet lack any constraint to a specific physical body. We might distinguish a mind that is capable of being transformed from one physical body to another, but is incapable of existing except as some ordered collection of atoms and/or other matter; such a mind may be on the road to transcending matter but is still dependent on possession of a physical body. In contrast, a disembodied mind is one that maintains an identity, a power to act in the material world, and sense of self, but exists as pure energy or as an abstraction.

This requirement of personhood — that the capable mind be incorporated in a physical body — does not lack practical application. Far from it! There is at least one type of incorporeal “person” recognized by most modern legal systems: the corporate or collective person, and other fictional entities. Corporations and other collectives are deemed capable of acting in the material world and to possess the mental capabilities of a person, and not without reason. If a natural person and a group of persons organized as a corporation were put into separate black boxes and asked a series of questions, absent direct admissions it may not be possible to tell which box contained the corporation, and which the natural person. And yet, the corporation itself is nothing more than a fiction or abstract idea in the minds of natural persons.

Collectives and other fictional persons can coexist with natural persons under voluntary law, and benefit their members in various ways, but cannot be regarded as on an equal footing as natural persons. But why is this? Why shouldn’t fictional persons be permitted the same legal status as natural persons, in a system based on the sovereignty of the individual? Does not the question answer itself? A system of law based on the sovereignty of the individual must deny sovereignty to other entities, fictional or not, that imperil that core sovereignty.

One of the characteristics of voluntary law is reciprocity: every qualified legal actor is in essentially the same circumstance as every other. If collectives and other fictional persons are granted equal legal status, than reciprocity is lost; some legal actors are burdened by the disability of corporeality and mortality, while others are not. A fictional entity cannot, in any justice system founded in individual sovereignty and equality under the law, possess all the rights and powers of real, corporeal persons dependent on physical bodies.

Legal systems in which sovereignty is granted to fictional persons that claim to themselves the right of monopoly on the use of defensive or restitutionary force in a territory are, by definition, statist. Such is the legal landscape of today. Were this territorial right of monopoly to be abolished and the right of corporate personhood retained, it would be doubtful whether any improvement had been made. A sort of corporatist world would remain, in which collectives hold superior bargaining rights over the individual, in every legal claim. There would remain a legal advantage to bigness, and so the individual would still be dominated by the collective. Little or no improvement over statism would be made.

Incorporeal entities may develop their own systems of justice for use among themselves, but unlike voluntary law such systems cannot rest on individual sovereignty as a theoretical basis. Corporations, trusts, estates and other fictional constructs may still be recognized in voluntary law as fictions of legal significance, but not as equivalent to natural persons. Fictional entities have no need to participate in a system of justice designed for persons limited to physical bodies, and natural persons cannot admit them as equal players without imperiling practical exercise of their own sovereignty. Voluntary law as presently proposed therefore excludes them from status as persons, by design. That is not to say that other justice systems, even those that include elements of voluntary power, cannot grant personhood to collectives or other fictions. Such systems can and do certainly exist, but rest on some foundation other than personal sovereignty and are therefore not “voluntary law” systems. Further treatment of collectives and other fictions within voluntary law is taken up in a later chapter.

Mortality. Just as corporeality imposes limits on matter occupied by a legally qualified actor, mortality imposes limits on the time of life, on the period of time that an entity is capable of acting as a legal person. Immortal beings cannot be “persons” capable of acting in voluntary law, for similar reasons as non-corporeal persons. An immortal person cannot suffer loss of life, and cannot participate as an equally situated actor with mortals in a system of justice.

Admittedly, this limitation is more economic than philosophical. Mortals have a finite amount of time to live, and a life to lose, imposing a constraint on them that does not exist for immortal beings. When performing any action, for example bringing a legal claim against another, a mortal necessarily sacrifices the possibility of other actions that it might do instead. An immortal being does not face this scarcity of time. Whatever it cannot do now, it can always do later. If an entity cannot die, what needs does it truly have, and what penalty could deter it from predatory conduct? For example, fifty years of toil and slavery to pay for murder is a much heavier burden for a mortal expected to live seventy or even a hundred years, than for an immortal that cannot die.

Immortality is not a practical bar to personhood in voluntary law, separate and apart from corporeality. There is no proof that any immortal being exists, apart from incorporeal fictions such as nations and corporations that may be sustained by belief for indefinite periods of time, but are not truly immortal. A voluntary law system designed for immortal natural persons is conceptually possible, but not a system with practical application in the world we know. The complexities such a system would encounter can and should be avoided. It is therefore assumed that all persons participating in voluntary law are mortal, as well as corporeal.

II. Voluntaryness

For one’s adoption of law to be valid and enforceable, the act of adopting the law must be voluntary by the person on whom the law would be enforced. “Voluntary” means conscious acceptance, with knowledge of the nature of the thing assented to, free of coercion and fraud.

A. Conscious Acceptance.

“Knowledge of the nature of the act or transaction involved” or similar requirement is a well-recognized attribute for an act of free will. See, for example, the California Penal Code at 261.1. The actor must be conscious of the nature of the act performed, or it is not a voluntary act. You cannot sleepwalk your way into being bound by voluntary law, or accidentally find yourself there.

In ordinary circumstances, in which a person’s publication of an act of adoption meets the criteria spelled out below, it would be difficult to prove that a person adopting a law lacked conscious acceptance of it. Absent evidence of coercion or fraud inducing the personal adoption of a law, it would reasonably be presumed that any person adopting a particular law had done so after a fair opportunity to read and consider it. This presumption could be overcome by proving the adopter suffered from some mental disability that deprived her of awareness of the nature of her act of adoption, or that there had been some coercion or fraud causing the adoption. Such exceptions would certainly occur, but might be relatively rare. More commonly, publication might be challenged as defective.

That is not to say that a valid adoption of voluntary law requires knowledge of every detail of the law being adopted, on the part of the person adopting. It is sufficient that the adopter know that the law may include details he is not aware of, and that he is not forcibly deprived or defrauded of the opportunity to study the applicable law to the desired degree before adopting it. Not everybody wants to be a legal scholar, or even to spend time reading a simple set of laws pertaining to circumstances that are not of current interest. Many may reasonably adopt more detailed laws based on the recommendations of trusted “political” leaders.

Taking this a step further, a person may delegate to another or to a group of persons the power to make laws that she will automatically adopt as the new laws are published in final form. Such a delegation of power may be a matter of convenience for the person granting the power, based on a trust in the relative good intentions and judgment of the legislator(s). Such appointments might, if many people each appoint the same legislature, resemble territorial legislatures, with a critical distinction being that a voluntary legislature has no power to adopt laws for any person who does not personally grant this power. In addition, the person granting the power retains the power to retract it at any time. The appointment of a legislature may be accomplished by a voluntary publication of an act of adoption, in which the law being adopted is subject to change under the control of an identified legislator or group of legislators. Such appointment may similarly be retracted for any reason.

In practice, there would be few reasons for competent persons to appoint a legislature. Perhaps a person expecting to be out of touch for a long time might make such an appointment as to her estate, so that questions of voluntary law touching on her estate might, in her long absence, be decided under suitable provisions adopted by the trusted legislator(s). If the person is not out of touch, there would be no reason to grant such power. Such appointments are contrary to one of the main advantages of voluntary law: stability of law, with full control over modifications retained in the sovereign person. In the ordinary course, legislative specialists might draft laws, but such drafts would not be enforceable unless and until voluntarily adopted by a person.

In special circumstances, conscious acceptance of an act of adoption might be inferred or imputed in the interests of justice. For example, an orphaned minor child or mentally disabled person might be deemed to have adopted a voluntary law, depending on the context. In the spirit of “the Sabbath was made for man, and not man for the Sabbath,” adoption of law is likewise meant to serve society, not to bind it with chains that hinder indisputable justice from being done. Exceptions to a general requirement for conscious awareness of adoption might evolve as customs in different legal communities, and would rest on specific criteria justifying an exception to the general rule. The general rule must, however, remain: no person may claim the benefit of or be charged with the duty to follow a law that the person has not voluntarily adopted.

B. Freedom From Coercion And Fraud

Coercion means force or the threat of force, intentionally directed at the person or at another that the person cares about. One cannot be coerced in a legal sense by non-persons incapable of an act of will, for example by acts of nature, even if fear of dire consequences impels action. The waste howling wilderness may impel one to hard labor, but coercion requires a purposeful act to bring about the fear in another. Similarly, fraud means intentionally providing false information or withholding information that is objectively material to the action at issue. All of this is within conventional Western standards for assessing voluntary actions. Nothing unusual is added or taken away.

Fear may be a motive for adoption of voluntary law, without any coercion that taints the adoption. Suppose a space faring adventurer builds a craft and launches for Titan, one of Saturn’s moons. On the way, her craft suffers an accidental misfortune and she must choose between safe harbor at a human-colonized asteroid or drifting through space with no hope of rescue while her life-support systems fail. All of the asteroid’s inhabitants have adopted a voluntary law within a certain family of laws, and refuse to transact with or render services to anyone who has not adopted a compatible strain of law. Every person controlling a point of entry offers the same choice: adopt a strain of voluntary law acceptable to this community, or we will not open the gates. Having no hope of survival outside of the gates, the adventurer makes a public adoption of law that she would not have otherwise made. Has she been coerced? No, because the persons who control the gates of the asteroid community have done nothing to put the adventurer in the predicament in which she finds herself. The opposite conclusion is reached if we change the hypothetical just a little. Suppose an inhabitant of the asteroid detects the passing spacecraft and dispatches an intelligent robot to disable it, knowing that this will force the traveler to seek refuge at the asteroid. Resulting actions taken by the traveler to recover are tainted by coercion, whether or not the traveler is aware she has been the victim of an intentional attack, unless she knowingly waives such objections. Such a waiver must be possible, to enable the traveler the option to choose the voluntary law, if despite knowing the evil deeds that led her to it she finds it preferable. It would be unfair to deprive her of this choice because of the evil actions of others.

Regarding fraud, the space faring hypothetical may serve as well. Suppose that the adventurer requests navigational guidance from the asteroid colony. Nobody in the colony answers the request, and the traveler receives either silence or an affirmative refusal to provide information, along the lines of “I will not answer.” As a result, the traveler’s craft encounters a debris field commonly known to the inhabitants of the asteroid and suffers its mishap. Has fraud or aggression occurred? No, because no one purported to offer advice or assistance. Suppose, however, that the question is: “is my trajectory clear?” And the answer is: “I don’t know,” or “”yes.” If the person answering is actually aware or should be aware of the debris field ahead and answers in a way that causes the traveler to reasonably underestimate the risk of encountering danger, the answer is either negligent or fraudulent. If the answer is fraudulent, a form of aggression has occurred that may taint a later adoption of voluntary law by the traveler in the same way as coercion, depending on the causal chain linking the fraud to the later adoption of law. As in the case of coercion, the traveler preserves the option to excuse the fraud once it is discovered, and adopt or confirm adoption of the voluntary law. If the answer is merely negligent, then the outcome will depend on how the voluntary law at issue treats the issue of negligence, assuming the traveler elects to adopt that voluntary law rather than perish. Presumably, life on an asteroid in the vacuum of space would be rather dangerous and dependent on diligence of the community, so one might expect the negligence standards to be correspondingly high.

It is perfectly acceptable for a person to feel pressure to adopt voluntary law, to gain access to some desired product or service. In fact, it is hoped that voluntary law would spread among the masses by this social pressure. For example, if a person or group of persons develops new therapies for diseases and life extension technologies, and refuses to provide them to anyone who is not a voluntary law member, there is no coercion on the person adopting the law. However, if a person consciously disadvantages another, for example by working to addict them to some powerful drug or to place them in a position of dependence on a critical resource, and then forcibly controls access to that drug or resource, coercion is at work. Where adoption of law is coerced, the adoption is not valid.

The distinction between coerced adoption and voluntary adoption may be somewhat fuzzy or controversial at times, without making the distinction any less meaningful. Theories based in territorial sovereign powers (statism) provide an example of fuzzy boundaries, although in a different context. For example, does imposing a particular set of laws on everyone within a set of territorial boundaries necessarily result in coercive imposition of law? Although this questions arises only under a statist legal systems, it is illuminating to consider how voluntary law handles the problem differently from statism. Arguably, if within a statist paradigm a person may freely leave the territory where a particular law is enforced on all the inhabitants, the person has in a sense made a voluntary choice to follow state law so long as she remains. On the other hand, as the available alternatives to remaining in the territory become progressively less feasible or less free, the extent to which the choice is voluntary diminishes accordingly. There may be no clear bright line distinguishing the voluntary maintaining of residence within a territory and being practically forced to stay there. It must be admitted, however, that to the extent that the process of leaving a jurisdiction entails cost to the refugee, some degree of force has been applied to him.

The lack of a bright line between where a territorially imposed law becomes involuntary would create issues for conventional theories of state sovereignty, if voluntaryness were of any concern to such theories. It does not, however, apply to laws based in personal sovereignty, and a simple example illustrates why that is so. Suppose a person, let us call him “Monarch,” has a valid property claim to a territory under a particular system of voluntary law. May such Monarch require, as a condition of entry to his property, that anyone who enters the territory adopt a particular voluntary law? The answer is clearly no, because such a condition presupposes that the “Immigrant” person who would enter the territory over which Monarch claims sovereignty has already recognized the voluntary law under which the claim of sovereignty exists. Unless and until the Immigrant voluntarily accepts it, the claim of property cannot be enforced against him.

Suppose, however, that the Immigrant has adopted a different voluntary law, under which Monarch’s claim is valid. May Monarch require that members of other voluntary law societies under which the claim of property is valid adopt a different law as a condition of entry? Certainly yes, because the recognition of Monarch’s right to control access to his claim is already voluntarily made. Consider, however that this situation is unlikely to occur in practice, because any immigrant who recognizes Monarch’s property claim is less likely to pose a threat to it, and in fact is helpful for defense of it. Monarch will be more concerned about protecting the property claim against immigrants who do not recognize it. If Monarch feels it is necessary to apply a uniform standard of law within his property, he may merely require persons entering the property to agree that the standard will apply to actions and events occurring on the property. It is not necessary that entrants be required to adopt a particular law for other purposes falling outside of the boundaries of the property. Nor could such a requirement be enforced once the person had left the property. Therefore, it would be pointless to subject visitors to such demands, and which would be avoided by rational actors.

Clash of property laws is an interesting topic in voluntary law and a stumbling block for some, which will be treated in more detail later. For present purposes suffice it to recognize that voluntary law does not permit imposition of a law on another, based on any claim of territorial sovereignty. Voluntary law permits no sovereign but that of the person, and sovereignty over adoption of law does not exist where a person is not free to voluntarily choose the law of his liking.

III. Publication

The third pillar – publication – might be called the responsibility to declare one’s choice of law. Law is always expressed in some public form prior to being applicable to a set of facts, or else it is not “law.” State sovereign systems rely on written legal codes, without which there can be no rule of law in complex societies of strangers. In voluntary law, writing also serves this purpose, enabling a non-arbitrary rule of law. It serves a second purpose as well. It strips each person naked, as it were, exposing their own freely chosen preferences of law. If the individual is the only sovereign, the individual must also accept the responsibility to make known what law she would follow. Under voluntary law, the law of another can provide no moral cloak or reasonable excuse for any person’s evil actions.

By definition, a person’s voluntary adoption of law is not effective or enforceable until a record of the adoption is published. There are four essential requirements for publication of a record of adoption: accurate identification of the person making the adoption and time when made, unambiguous identification of a complete statement of law, means for authenticating the record of adoption, and sufficient accessibility of these records.

A. Identification of the Person and Time of Adoption

A record of adoption must necessarily identify the person making the adoption, and provide some means of authenticating the identification that is made. This is logically required because the adoption of law applies only to the person making it. Without such person being positively identified, the adoption can have no effect.

An act of adoption is necessarily an event, and occurs at a definite time. In the general case, an adoption can only be effective after it is made. The applicability of any given voluntary law therefore depends on its time of adoption. This time may be made a part of the record of adoption, and generally would be.

The certainty carried by a personal identification and time stamp varies. This is a question of evidence, often reliant on the reliability of the record keeper. Reliable records would include objectively verifiable indicia of the person, and of the purported time of adoption. There are many ways to solve this problem, and the necessary means may vary depending on the social conditions pertaining to the adoption. For example, an open and active member of a vibrant voluntary law society whose members dwell in close proximity may be in little need of formal records of adoption. There would be many witnesses to attest that the person has held to a particular law from such-and-such time. In a less homogenous, more scattered community, the members of which mainly deal with each other without personal contact, reliable technical solutions may be needed to fulfill this function.

Most likely such technical solutions would take the form of some sort of electronic registry. But no particular form of registry is required, and adoption records might be held in knowledge structures that fall outside of the meaning of “registry.” There is no central authority with which a voluntary law adopter must “register” her choice. The adopter may use any desired form of publication that can be authenticated. She might use skywriting, for example, but may find that this limits the publication to a particular area and time, and is difficult to authenticate. Most adopters would use a registration service of some kind, centralized or decentralized, that has a reputation for credibility and can efficiently authenticate its records if ever called into question. Free people will provide efficient and effective solutions, in time.

B. A Complete Statement of Law

The law that is adopted must be unambiguously identified in its entirety. This does not mean that the law that is identified must spell out every conceivable legal rule in detail. Such a requirement would obviously be impossible. It means only that the entire law that the person is adopting must be particularly identified and must be logically applicable, without endless self-references or self-negation. That is, the law must be logically coherent and free of self-contradiction. For example, a person cannot adopt a law that negates voluntary law, such as the law of a state. Conversely, the person cannot claim to have adopted any law that is not identified by an act of adoption, logical nullities such as “I adopt ‘A’ and ‘not A’,” or self-referential nonsense such as “any law that I adopt.” A person may not adopt a law by vague references, such as, for example, “British Common Law,” assuming there is no defienite set of laws commonly accepted to define “British Common Law.” Although the term has meaning in the context of legal history, it is not a definite statement of law. To make a complete statement of law, the law itself must be stated, or an unambiguous reference made to a particular writing.

A complete statement of law may be quite simple. For example, person might adopt, as his entire code of law “Thou shalt not aggress, except in self-defense.” Such a person is willing to leave to another to determine what this might mean in the context of a claim under voluntary law. Most will prefer more particularity in their statement of law. In fact, voluntary law is unlikely to gain much popularity until fairly particular and concise codes of law consistent with the principles of voluntary law are written, publicly available, and have passed review by respected thinkers. Such codes will need to offer choices to accommodate different moral preferences, and will need to be purged of rules that are designed to operate only in the context of a state.

A statement of law might be amended at a later time. For example, Mr. Taciturn who adopted the law “Thou shalt not aggress, except in self-defense” as his entire law might amend this later to add more particular rules. If so, his later statement will confirm his earlier adoption and then identify whatever additional law is being adopted. The fact that an earlier statement is added to does not support an inference that the earlier statement lacked completeness. If a second adoption of law is made without confirming an earlier adoption, the law stated in the second adoption may be considered to replace the first. It is conceivable, however, that a jurist may find evidence to support a different conclusion, depending on the circumstances.

The consequences of a failure to make a complete statement of law may vary. In the worst cases, the act of adoption is disregarded entirely, placing the person who performed the act in the same position as an outlaw. In intermediate cases, ambiguities introduced by vague or self-contradictory statements are construed against the person who adopted the law, placing the risk of poorly-written law on the person who adopts it. In the lightest cases, deficiencies in the law are repaired by the adopter before any damage is done, and any prior harm from the original act of adoption is excused by counter-parties or considered de minimus by every jurist who encounters it, making embarrassment the primary consequence. To avoid the risks of suffering such consequences, voluntary law adopters will take care to avoid adopting incoherent, overly vague, self-contradictory, or other forms of defective laws. For most people, this means sticking to proven voluntary laws generally recognized by jurists and actually used to resolve disputes. Others are free to experiment with unproven forms, but at their own risk.

C. Sufficient Accessibility

The record of person, time, and law needs to be accessible to others, or it cannot create any basis for a legal decision or enforcement. But how much accessibility is sufficient to make a voluntary law enforceable? It depends.

Complete public accessibility creates moral pressure and enables the law to progress to higher forms under influence of political pressure, exerted through abstractions such as admiration, fashion, fear, and shame. It may be desirable for social progress, but is publication freely available to all strictly necessary? After all, a person might wish to keep their choice of laws secret, divulging only in confidence to chosen parties or if necessary to serve purposes of litigation or other legal process (e.g., marriage, inheritance, etc.). A more private system would have certain disadvantages, but would provide greater privacy, and protect people from unwanted political pressure or from persecution by ideological enemies. Some might find a degree of privacy preferable to the greater transparency of an entirely unprotected publication system. Others may be unable to make any use of voluntary law, without some control over who can discover that they are members. In either case, accessibility requires, at minimum, publication of each person’s law at least to all others to whom the benefits afforded by the voluntary law at issue would be demanded, before the adoption can be effective.

Every person falls into one of three general classifications in relation to voluntary law: voluntary law member, non-member, or unknown. By nature, most classified as “unknowns” would be non-members, choosing not to participate or living in ignorance of voluntary law. Those few members who did not openly publish their membership status would run a risk of being denied access to the benefits of voluntary law, although in some cases the presence of ideological persecution might require some sort of secret or hidden registry. The publication requirement is flexible enough to accommodate such exigencies. In the absence of persecution or other unusual circumstances, most voluntary law adopters would make their choice of law public as soon as possible, for several reasons. Perhaps the most important reasons being the need to establish the right to make a claim and to protect against litigation under state laws or extra-legal enforcement outside of voluntary law. Non-adopters have no right to bring a claim against adopters, and cannot back-date the act of adoption to create liability. Conversely, and perhaps more importantly, a non-adopter cannot insist that an adopter prosecute her claim under voluntary law. If a person cannot prove that she adopted her law prior to the time the claim arose, she loses all of the defensive leverage she might otherwise have been entitled to, and is placed in the position of an outlaw.

For example, suppose Xavier is a member of a voluntary law society that does not recognize copyright as property, and runs a business cracking copy protection schemes. Zyla is a movie producer, and member of a voluntary law society that recognizes copyright. She investigates Xavier’s business and determines that he is liable to her for copyright infringement under her own voluntary law, or under U.S. law. If she is unable to find any public record that Xavier was a member of a voluntary law society at the time he performed his infringing acts, she is free to sue him under U.S. law. Conversely, if Xavier had published his adoption of copyright-less law pursuant to voluntary law, Zyla could not sue him under U.S. law or take extra-legal enforcement action without risking a claim by Xavier under voluntary law, and loss of her reputation as somebody who does not abide by voluntary law principles. However, by virtue of the prior publication she would have already identified Xavier as a copyright risk and someone against whom to use strict technological and legal methods to prevent from gaining access to her protected content.

There is a third possibility as well. Suppose Xavier lives in a territory ruled by evil or morally obtuse politicians who imprison anybody who dares publicly adopt any voluntary law. Xavier therefore has a legitimate reason to secretly register his declaration of self-sovereignty. Or perhaps he just wishes to avoid junk mail. For whatever reason, he registers his adoption of law in an encrypted public registry only, protected by a cryptographic key that he controls. Whomever Xavier provides the key to can verify that he has adopted a particular set of laws on a particular date. If he is threatened with enforcement by Zyla, he can provide her with his key. This will create an obligation for her to proceed under voluntary law and not by some other means, providing a means for proving that he has adopted a particular voluntary law before performing the acts that gave rise to a claim. Conversely, before doing business with Xavier, Zyla can request any private key and refuse to do business unless he provides it. If she has no prior dealings with Xavier and has not received his key, she can identify him as a legal risk and avoid him. If she is damaged by his activities despite exercising due care, she is no worse off than if she had been able to discover his adoption of voluntary law in an unencrypted registry. It is only Xavier who is disadvantaged by his secrecy, because other voluntary law society members including those who share his skepticism of copyrights will be unable to identify him as a fellow society member without access to his key. This may be expected to limit his business opportunities significantly.

Let us vary the hypothetical one more time. Suppose Xavier first publicly registers as an adopter of voluntary law #1 that respects copyright, and initiates a customer relationship with Zyla, receiving access to her protected content. At a later date, Xavier registers an adoption of voluntary law #2 that does not respect copyright, in an encrypted register only. Perhaps he has a legitimate reason for doing so, or perhaps not. Either way, he must take care to avoid using the earlier registration to mislead others into actions that they would not otherwise perform. As a practical matter, this requires providing notice to anyone transacting with him on the basis of the earlier registration, or risking liability for claims based in fraud or negligent failure to inform. If Zyla first accepted Xavier as a customer while he was registered as a copyright respecter, and continues to do so after Xaxier secretly registers as a copyright non-respecter, it is likely that Xavier will be unable to take advantage of his secret registration for defensive purposes.

The precise reasons for this can be complex or fairly simple, depending differences between Zyla’s law and Xavier’s voluntary law #2. If Xavier is a decent sort of person and his secret change of law was done in good faith, voluntary law #2 will make him liable for his negligence or fraud in neglecting to timely inform Zyla of his change in status. If Xavier is a scheming sort who did not make the change in good faith, he might have selected a voluntary law #2 that excuses him from liability for the types of negligence or fraud he intends to commit. In such case, he is subject to a number of adverse consequences, the reasons for which will be clearer once the chapter on conflict of laws is digested. First, he will not be able to recover from others who victimize him by the kind of fraud he intends to commit on others. Second, once Zyla brings a claim and discovers his scheming ways, his evil tendencies will be public information and his reputation destroyed. Third, a judge may rule against him anyway, reasoning, perhaps, that if Xavier thinks fraud should carry no penalty, the court may as well commit a “fraud” on Xavier by ignoring his choice of law. Under voluntary law, openly engaging in predatory behavior will not go unpunished.

The foregoing examples should illustrate, among other things, why most adopters of voluntary law will publish their choice of law in the most public reasonably feasible way. Limiting public access to information about one’s choice of law, for example using an encrypted registry, will generally only be done when exigent circumstances requires. In either case, a reliable record of each person’s adoption of law must be accessible to all parties to a dispute, before the dispute can be resolved under voluntary law.

***

The three pillars — personhood, voluntaryness, and publication — serve as guideposts demarcating voluntary law from other legal systems. Whatever falls outside of voluntary law is foreign to it, and thereby excluded from recognition as law within voluntary law procedures. The foregoing discussion should make the analytical basis for discerning voluntary law from other laws quite clear. Disputes may arise over what the available evidence shows in specific cases. Resolving such disputes fairly is one of the principal functions that voluntary law is designed to do, as will be apparent in later chapters.

Historical Commentary, Judicial Precedent, Voluntary Law

Honor, Not Laws

Honor Not Laws

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Introduction To Voluntary Law (Book), Voluntary Law

The Nut

A Brilliant Dawn

Some of my subsequent posts will form a rough draft of a book (tract?) I intend to write. Maybe titled “An Introduction To Voluntary Law.” Or perhaps “A Friendly Introduction To Voluntary Law.” To be followed, hopefully, by “A Children’s Guide to Voluntary Law.”

The Introduction may be titled “The Nut.”

You may find this book a little nutty. It may expose you to ideas that, at first glance, seem immensely impractical, if not completely impossible. To ideas that seem utterly useless in the world that we live in today. And to add insult to injury, to ideas that are speculative, and not the least bit scholarly or laden with footnotes. In a word, nutty. Nutty, and not without considerable risk, like running in front of a pack of raging bulls, clad only in a pink tutu, while inebriated by a fragrant Spanish sherry. If you don’t like nutty, put this book down until you are in mood for nutty.

This book is a nutty in another sense. Like an acorn is nutty, by including within it the essence of the oak tree. Given the necessary conditions, and the passage of time, the acorn sprouts, extends leaves and roots, extracts energy from the sun and directs the energy and matter it absorbs into the structure of an oak tree. You may find that the ideas in this book are a bit like that acorn. But instead of growing in soil, these ideas may, given the proper conditions, grow in your mind. Fed by your life energy and experience, these ideas may grow into massive and surprising forms, transforming your world view and the reality you experience. As these ideas spread from mind to mind, a towering forest may gradually arise, forever transforming your world.

If these claims seem grandiose it’s because they are grandiose. But show this book some tolerance! The ideas it contains are between a rock and a hard place, so to speak. These ideas are either truly nutty in the sense of being crazily useless, or are a nut of transformative philosophical and social change. There is very little territory in between.

If you have read this far, you are either in the mood for something nutty, or are intentionally exposing your mind to the risk of transformative change. All the while recklessly casting away any sensible apprehension over exposure to unproven grandiosity. Are you sure you would not rather be in your garage, working on a free energy machine? That might be a more productive use of your time. Please be extremely careful to spend your time doing something productive during your brief and transient life, and by all means be aware of the risk that reading this book may just make you a little nutty, too.

The warnings are out of the way. Let’s get to the business at hand.

If you think you have heard the term “voluntary law” before, you may be mistaken. This is not a phrase used with any commonly-accepted meaning. On the contrary, the phrase brings together two words that are not meant to coexist. “Voluntary” does not ordinarily pair with “law.” It is a sort of contradiction of terms. A crafty invention meant to convey a meaning that we are not conditioned to understand. We are conditioned to think of law as something imposed by a higher or more powerful authority on the rest of us, whether that authority be old traditions, gods, priests, monarchs, legislatures, electoral majorities, judges or special committees. Putting “law” together with “voluntary” enables us to consider voluntary arrangements as more than just things that exist subject to imposed laws. Not only that, but to realize at least one way in which voluntary arrangements are capable of peacefully expanding beyond imposed legal frameworks, and after sufficient social evolution has occurred, displacing such frameworks altogether.

If you must have a touchstone, think of natural law. But voluntary law is not natural law. Voluntary law is any system of dispute resolution, characterized by:

No claim against another is legally enforceable unless the claim is permitted by a rule that has been voluntarily adopted, and not superseded by later adoption of a conflicting rule, by each defendant prior to the time when the events giving rise to the claim occurred.
The identity of any person who has adopted a rule of voluntary law, the rules each such person has adopted, and the time when each such rule is adopted, is recorded and such record is publicly discoverable.
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.

Mark this page. This simple definition can be unfolded in surprising and complex ways. Although this book will only wade in the shallows, enough complexity may be encountered within these pages to make it helpful to refer to this definition from time to time. The definition can be expressed differently, but its essence will not be changed.

Underpinning this system of voluntary law is a moral precept that rejects the imposition of any substantive law on any person, without their prior knowledge and consent. Under this new moral precept, forcibly imposed forms of law are condemned as barbaric and evil by nature, if not always in effect. That which is traditionally viewed as a necessary evil is shown to be merely evil, and in time, unnecessary.

Voluntary law systems may evolve toward higher forms or more robust expressions of natural law. Such is conjecture. It’s not a provable thesis, because the perfect composition of “natural law” is not discoverable by experiment. If we define natural law as that law most consistent with the thriving of productive communities and most equitable distribution of the productivity resulting from such thriving, then perhaps voluntary law is better able to achieve such ends than the traditional forms that oppress us today. It seems highly unlikely to be worse, once widely understood and adopted.

The definition of voluntary law rests on a few key concepts. “Person” is a critical concept. Also “voluntary.” Later chapters will delve more deeply into consideration of these terms. Non-aggression is “baked in” to the system of voluntary law, by way of the limitation to voluntary action. Those who adhere to the non-aggression principle as a basis for political order will find much to like about voluntary law.

Those who emphasize individual civil rights and fear too much accumulation of private property in the hands of a few can also find much to like about voluntary law. Traditional property rights are not an essential characteristic of voluntary law. Property rights beyond self-sovereignty are optional, not essential.

Instead of imposing concepts of property rights beyond self-sovereignty, voluntary law allows for different definitions of what property rights are, and how they are formed, within extremely broad limits wrapped up in the word “person.” Its essential characteristic of voluntaryness requires that each person owns and is sovereign over themselves. The more remote from that core sovereignty a concept of property is, the more its existence as property will depend on voluntary, individual acceptance by each person making up the masses of society.

Whether or not, or under what conditions, a thing can be owned, and what rights accompany ownership is not predetermined within voluntary law. Property rights arise by interaction between different definitions of property voluntarily adopted by different persons. These different property rights cannot be enforced in any manner consistent with voluntary law without reciprocal acceptance by each person upon whom the asserted property right would be enforced. Property that confers an unfair degree of forcible control over the lives of others cannot be amassed in such a system.

So voluntary law cannot honestly be placed on the left, or right of the modern political spectrum. It avoids the left-right paradigm altogether, and transcends it. No person can be forced into a community and thereby made subject to laws that are contrary to her moral lights or preferences such as she consistently and reciprocally will apply. Each person is free to join a different community, or to build her own if none to her liking exist. No person can force a definition of property on another, who consistently and fairly operates in ignorance and/or refusal of such definition.

And that’s the nut of it.

Judicial Precedent

Kill the Precedent

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

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

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

Voluntary Law

Public Adoption, Individual Responsibility

Then the eyes of both of them opened, and they knew they were naked; so they sewed fig leaves together and made coverings for themselves. Genesis 3:7 (NET Bible). This aspect of the story of the fall might be interpreted as an allegory for the origin of state-imposed law as a sort of cover or justification for human behavior, which when viewed with open eyes, is undeniably shameful. Once humans were capable of distinguishing between good and evil, and hence capable of experiencing shame, they sought to justify naked aggression by cloaking it in the sanctity of authority, or authoritarian forms of law.

Little has changed since this development in human evolution. Follow any liberty-minded blog, social group, or media outlet and it won’t be long before grave and disturbing allegations emerge about unethical, morally obtuse and cruel conduct of government officials, police, judges, bureaucrats, lawyers, tax collectors, soldiers, and other lackeys of the state, both in the historical record and in the daily news. All too often, such allegations are true, or even a matter of official record.

All too often, the perpetrator of cruel and malicious deeds excuse themselves by saying “it’s the law.” Steal all a man’s possessions, and lock him in a cage for years for selling an illegal herb? “It’s the law.” Imprison a farmer for selling raw milk? “It’s the law.” Molest and thoroughly search every passenger of public conveyance, and seize any large quantities of cash discovered? “It’s the law.” Surveil and record every person in the land, without their knowledge or consent? “It’s for national security.” Sentence a whole people to slavery, and their culture to death? “The government said it couldn’t be avoided.” Pollute the genome of an entire planet? “It’s perfectly legal and patented.” Invade countries without provocation, killing and impoverishing millions in pursuit of geopolitical goals? “It’s a constitutional imperative.” So many laws, so much authority — and so much evil.

If the people who do such evil feel any pangs of conscience, they mollify themselves with the laws or state authority they feel bound to follow, no matter how immoral. No individual person feels any moral responsibility for the law itself, and very few have the power to influence its making. The law just happens, is controlled by those in power, must be obeyed, and excuses conduct that would otherwise be condemned.

Despite the dismal historical record of the state and its minions when it come to moral behavior, when challenged with the possibility of voluntary law, the reaction of some is to say “Who is to prevent people from adopting immoral, evil laws?” What a silly question!! The condemnation of one’s fellows! In a word, shame. Voluntary law strips away all the fig leaves and excuses of the law. It leaves individuals nothing which which to cover those most intimate moral choices which, if carelessly formed, might expose them to shame.

Voluntary law is made operational by individual, public adoption of law. Voluntary law is both public and personal by definition, at its most essential core. No person who claims to follow voluntary law can hide behind a law of a collective or higher authority. No collective or authority can adopt or impose laws; only individuals can, and only for their own selves. Any person who adopts voluntary law must do so openly. Every person must display their chosen law for all the world to see. And all who see it will know that the law is chosen voluntarily, without coercion or fraud. Each person must take care that their moral nakedness is not overly repellant to others.

If a voluntary law is evil, it is because the person has individually chosen evil, or has negligently chosen an evil law, or is morally obtuse. No person, therefore, will dare to adopt laws that are widely condemned by others. No person wishes to feel the sting of righteous condemnation from every person around them. To err is human, and temporary lapses to evil can be forgiven, if the evil is repented and its resultant harm compensated for. But a person who chooses a plainly evil law? Unless done by mistake, there is nothing to forgive. Such a person has simply chosen evil, and will rightly be condemned and avoided.

Under voluntary law, no employee of a collective can be excused by the law of a collective. No police action can be excused by the law of a state, no employee by the law of his employer. Each person agrees to be judged by the law they have voluntarily and personally adopted. Each person is individually responsible for the law they obey. It is not possible for wrongdoers to hide behind a duty or law imposed by a higher authority. There is no higher authority, except for ethics itself.

What happens when the population is evil, or deluded? If there is no controversy in a law, and the law is voluntarily chosen by all to whom it is applied, what basis is there to call it evil? Perhaps what seems evil to some is merely different, an adaptation to a different environment that seems necessary to others who are differently situated. Perhaps such moral differences are a necessary feature of life in any sophisticated social system, and are better accommodated than denied. Nonetheless, there is a possibility that certain types of moral divisions, such as divisions over the rights of children or animals incapable of choosing a law for themselves, may inevitably lead to extra-legal enforcement. For example, a division between voluntary law societies that permit infanticide and those who prohibit it may lead to forms of individualized or collective coercion against people who have properly advertised a different moral preference. Such instances are at the margins of voluntary law, and a preliminary analysis is here. Such divisions may inevitably lead to tragic outcomes, but the outcomes under voluntary law would almost certainly be substantially less tragic than outcomes under statist law, in similar circumstances.

What about the truly intransigent? Surely there will always be a few suicidal or self-hating persons who will adopt odious laws with the intent to offend. Must these troglodytes be tolerated? If such people accept the principle that they cannot enforce their odious laws on others without voluntary consent, then what is the harm? The harm is only to the person who voluntarily adopts the odious law. And if such person does not accept the constraint that no law is enforceable unless previously voluntarily adopted by the person on whom enforced, we are no longer in the realm of voluntary law. We are instead in the realm of the present day, the realm of imposition of law by force, the realm of the state and the fall of humankind.

Under voluntary law, therefore, shame is an important moderating force on public adoption of law, and consequently, on private behavior. Shame forces widely condemned moral preferences out of the entire system. Another moderating force on adoption of law is reciprocity. Reciprocity accommodates what are regarded as morally defensible differences in choice of voluntary law. Reciprocity prevents people from using the voluntary law as a predatory tool, while allowing each to live as much as possible within the framework of their own moral choices. Between shame and reciprocity, self-governing voluntary law societies may be far more highly regulated and well ordered than anything possible under authoritarian systems of law.

Appeal

Appeals In Voluntary Law

Claimants or defendants will often be dissatisfied with outcomes of judicial proceedings, and seek to appeal. In statist systems, particularly common law systems recognizing binding judicial precedent, the primary purpose of appeal is to maintain consistency between rulings of lower courts. Appeal prevents renegade courts from creating precedent contrary to the will of the highest court. Correcting injustice is a secondary effect, and the dissatisfaction of litigants is merely a motive force.

The motivation and operation of appeal is completely different in voluntary law. Judicial precedent does not exist. Uniformity is maintained by the market forces that control the content of voluntary laws. To the extent the law contains ambiguities allowing for different results on similar facts, it is because the people see this ambiguity as a desirable thing. If people want more specificity, they are free to adopt more specific laws. Thus, there is no need for appeal to maintain consistency or develop judicial law. There is no higher court to enforce its will.

Voluntary law does not leave the dissatisfied party without options, however,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 judgement is fatally defective and unenforceable, to any and every enforcement service hired to enforce it. Like jurists, enforcement service providers will generally be subject to malpractice liability. Admittedly, redress against or appeals to enforcers may be a less satisfactory option, because it may require repeating the showing to different enforcement services, and might be countered by hiring less reputable, more judgement-proof enforcers. Nonetheless, it will at least raise the cost of obtaining reputable enforcement services to enforce judgements, and may sometimes render judgements 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.

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 offered by their group are exhausted. Claimants might be willing to bring their business to service providers offering appeal (or perhaps a means of quality control generally accepted as more cost-effective than appeal) to reduce the risk of poor quality, unenforceable judgments.

Might claimants choose forums where no appeal is offered as part of the service, to avoid risk of reversal? Perhaps in some cases, but generally only when the claimant is quite confident of their claim, or the case is small. As noted in an earlier post, 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.

Finally, people may choose to adopt voluntary 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 will necessarily be limited by the principal of reciprocity, they will nonetheless apply in many circumstances.

So we can say with confidence that appeal, review, re-hearing, and other quality control measures for judicial process will be present in voluntary law societies, to the extent demanded by the free market.

Conflict of Laws

Unopposed Claims and Legitimacy of Judgments

A Claim With No Defendant

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

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

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

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

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

In voluntary law societies, people are initially skeptical of every adjudication forum, before its reputation is established. Every forum must build its own reputation, and none can exercise coercive power in doing so. Each forum can build its reputation in several ways. For example, by performing high quality services (e.g., prompt, courteous, and accurate) and by issuing high quality judgments or settlements that are seldom or never successfully appealed (more on appeal in a subsequent post). For further example, by issuing a lot of such high quality judgments and making a name for itself. It may perhaps seek certification or approval from various consumer rating or certifying organizations, which must first establish their own reputations by not certifying or approving others too easily. And so on.

An adjudicating forum that either is unproven or has a reputation for issuing poor quality or biased judgments will find that its judgments are not respected. And if its judgments are not respected, they will be much harder to enforce, if at all. Because under voluntary law, there is no sovereign immunity. Judges can be held liable for issuing non-neutral or negligent judgments, and law enforcers can be held personally liable for enforcing judgments that they knew or should have known were of poor quality. Most neutral enforcers will therefore refuse to enforce any judgment that appears questionable or risky. Claimants may attempt to self-enforce shoddy judgments issued by sham judges under their own influence, but not without risking liability both for their enforcement actions, and for improperly influencing the judges.

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

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

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

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

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

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

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

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

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

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

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

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

Conflict of Laws, Reciprocity

Affirmative Defenses: The Difficult Choice

The Essence of Reciprocity in Voluntary Law

Choosing the law to be applied when an affirmative defense is raised creates a difficult choice. Should the defendant be allowed to raise all the affirmative defenses allowed under the defendant’s law? Or should the defendant be limited to those affirmative defenses that are permitted under claimant’s law?

First, a little background. For those who don’t know, an affirmative defense is like an excuse that excuses defendants from responsibility for their actions. For example, self-defense or defense of others can be an affirmative defense to battery or murder. Necessity can be an affirmative defense to trespass. Many other affirmative defenses are possible.

Affirmative defenses can be distinguished from positive laws on the basis of which party has control and responsibility for choosing and proving the elements of the action at hand. If the claimant is required to select and prove that all requirements are satisfied, the action is a claim under positive law. If this responsibility is on the person defending to escape liability for the claim, the action is an affirmative defense.

Which law should determine the affirmative defenses to a claim, claimant’s or defendant’s? Let’s start with the same rule as for positive laws: defendant’s law resulting in the greatest liability applies, unless applying claimant’s law would result in less liability. Let’s see how this approach plays out in a couple of scenarios:

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

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

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

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

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

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

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

This may not seem to be a very satisfactory result, but is not at all as bad as it seems. The hypothetical intentionally portrayed Abuser as unsympathetic to play with the reader’s emotions, to encourage clarity of thought. What if Defender mutilated everybody who so much as raised their voice to their children? Applying claimant’s rule of affirmative defense simply creates incentives for Defender to exercise care while rescuing children. Abuser may not deserve to be treated with care, but that is not the point. The point is that Defender cannot be permitted to effectively appoint herself judge, jury and executioner upon the general public, and must act with care even while performing meritorious deeds.

We may assume that under voluntary law, Abuser cannot claim a right to abuse anyone including his own children (such a law clearly violates the non-aggression principle and equality of persons), and may be held fully liable under claims brought on behalf of his freed children. The issue is limited to whether Abuser may exploit the impossibility of reciprocity problem to deprive Defender of any affirmative defense based on defense of others for defending Abuser’s own children. Suppose this result is permitted, and the tables are turned: Abuser attacks to defend Defender’s children (assuming Defender has become an abuser). Shall voluntary law permit Abuser to gain the benefit of Defender’s affirmative defense?

The no-hypocrisy rule would say no. Because Abuser has adopted a law that would result in greater liability, Abuser cannot receive the benefit of Defender’s affirmative defense that would result in less liability, if sued by Defender. Abuser must be judged under the same affirmative defense that he would permit for those he makes claims against, but only if applying his own law of affirmative defense would result in greater liability than applying claimant’s law. In other words, when raising an affirmative defense, defendant must do so under claimant’s law, unless defendant’s own law provides a weaker affirmative defense than claimant’s.

These examples illustrate how reciprocity and no-hypocrisy create incentives for people to adopt laws of affirmative defenses that will not deprive them of a similar defense if ever needed. This should prevent injustice in personal injury cases where impossibility of reciprocity is not a problem. In property case, where impossibility of reciprocity is a common problem, the effects of the proposed rule should be examined.

Let us revisit Scenario ‘B’ discussed above, Luckless versus Rich Brother. Under the proposed rule of “claimant’s affirmative defense of least liability, unless resulting in less liability than defendant’s affirmative defense of greatest liability,” if Rich Brother sues Luckless, who recognizes Rich Brother’s property right to his spare home but has adopted poverty as an affirmative defense, Luckless is limited to Rich Brother’s affirmative defenses which do not include poverty. Rich Brother can therefore obtain an order to legally evict Luckless from his vacation home.

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

It’s rather apparent that second rule creates more incentives for reasonable behavior than the first, in which defendants were permitted to use their own rules of affirmative defense. In that first hypothetical, Rich Brother could not evict Luckless even if both Rich Brother and Luckless had adopted laws recognizing property rights in vacation homes. Conversely, if Luckless had adopted a law that did not recognize Rich Brother’s positive property rights, Rich Brother would have had no incentive to perform the extra-legal eviction in a reasonable manner. The power to select one’s own affirmative defenses should not create incentives for extra-legal remedies.

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

Nullification

Nullifying the Need For Nullification

There’s a lot of talk these days about jury nullification, state nullification of federal laws, and so forth. Several very fine organizations are getting the word out about nullification to the victims of government schools and others who have never been instructed in nullification as an important safeguard against tyranny. Click the images below for links to a couple of examples.

10th Amendment Center

Fully Informed Jury Association

These and similar efforts are praiseworthy. Nullification, whether by juries, provinces, localities, or individuals, functions to loosen the oppression laid on the people by the corporatist tyranny that permeates the world today, and awaken the slumbering serfs of statism to their power and potential as free human beings.

All that said, we advocate for an evolution and quickening of human consciousness that would obviate forever any need for nullification as commonly understood today. All that is needed is acceptance of the principle that no law can be legitimate, except by previous adoption of the person on whom it is enforced. In societies where this principle is observed, all enforcement is limited to laws that have been voluntarily adopted by the parties involved. There is no imposed authority left to nullify. All such imposed authority should be rejected as illegitimate.

As a more general concept, nullification underlies and facilitates voluntary law. In a fully developed voluntary law society, there is nothing left to nullify except for evil actions of the occasional errant individual who foolishly attempts to reinstate tyranny by seeking to subvert voluntarily adopted obligations and relations based in non-aggression and equality of persons. In a fully developed world based in voluntary law, nullification operates by excluding evil doers from the right to transact with members of voluntary law societies, by operation of voluntary institutions that publicize individual reputations. Nullification is exercised continuously by individual rejection of evil deeds and unrepentant evil doers.

Those who love liberty and their fellow human beings should be working to to make nullification by anyone other than the individual a relic of earlier times, by imagining and enabling social systems that empower individuals and voluntary collectives, and de-legitimize and disempower coercive institutions. May the dark age of today, in which most mistakenly believed the exercise of coercive authority in human society to be either a necessary evil or divinely ordained, come to be taught as part of the history of human errors. We should not forget, as useful as the concept of nullification is, its exercise by juries and other involuntary collectives has utility only in the context of authoritarian legal systems. By our thoughts, talents and actions such systems will one day be abolished, and with it the need for nullification by juries or involuntary collectives.

Brothers and sisters, just understand your status as human beings. No other human can ethically rule over you. That right and responsibility is yours alone. Help build a world in which free people nullify and extinguish tyranny wherever it surfaces, before it can ever darken the world again.

Conflict of Laws, Reciprocity

A Bit More On Why So Much

A central issue was neglected in the last post, relating to why conflict of law rules are of such importance and concern in the development of voluntary law. Conflict of law is critical in voluntary law systems, because voluntary law systems are the only legal systems that permit each participant to choose their own law, guided by their own moral preferences and self interests.

One of the most fundamental questions concerning voluntary law is whether a system permitting self-selection of law can provide equivalent or superior justice to systems that impose laws through the exercise of power by an elite class of persons, a.k.a. statist legal systems. In statist legal systems, although many laws are imposed in the self-interest of a governing elite and those who support them, some portion of the laws are imposed in the public interest. Even a slave master may enforce rules forbidding the slaves from mistreating one another. Statist systems must deal with the problem of limiting corruption of the law caused by self-interest of elite law makers, but are not faced with the problem of harmonizing self-selected laws because they do not permit such laws to exist.

The limiting principles on self-adoption of law in voluntary law systems are non-aggression, equality of persons, and reciprocity. The primary purpose of conflict of law rules are to implement reciprocity so as to optimize fairness and stability of the system as a whole. While each person can select their own law guided by their individual self interest, the general principle of reciprocity provides that when bringing a claim or raising an affirmative defense, each person is limited by the selection of law of the other party.

Despite the importance of the reciprocity principle, it should not be forgotten that the core voluntary law principles of non-aggression and equality of persons are also limiting principles on enforceability of self-selected law. These core principles deserve expression in the form of a rule, and more attention to be paid in a later post.

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