I’ve been away for a while, and starting to feel like I owe my cherished readers an explanation for the long pause in new posts. All is well with me, and the pause does not indicate any waning of enthusiasm for the principles written about here for the past few years. Besides the usual friffage of fascist toil and family life, I’ve been busier than usual with political activism. That is a topic for another day.
There been no lassitude. I’ve been busy finishing up my book, “An Introduction To Voluntary Law.” I’ve reorganized it, written more than a dozen new chapters, and edited some of the chapters already posted here. It’s coming together very nicely, and I hope will be ready for publishing early next year. Finishing the book is not just an arbitrary goal. It is a closing of the philosophical circle. There is a vision, an analysis, a plan – quite a bit more than I’ve already published here. My statement of introduction to a new type of law, and a new type of hope, is nearly complete.
Plans are in the works to set up a registered non-profit, to obtain funding for carrying the mission of the Voluntary Law Development Association to the next phase. The new entity will be a non-profit, public benefit educational institute for development of voluntary law, for instruction and certification of voluntary law society members for various roles, and for empirical research in the science and practice of voluntary law. Next year and beyond will be occupied with developing the resources, human and financial, for carrying out these missions.
The website vlda.org will be revamped too. With publication of the book, there will be less need to lay out the basic principles in detail on a website. The site will evolve more towards a news hub for the few people interested in my personal thoughts and doings in the area of voluntary law. While the purpose of vlda.org will diminish, the amount of online content and instruction in voluntary law will increase, under the new educational institute.
Among the colleges of the new Institute, a College of Social Engineering will begin its founding project: configuring the network tools that will enable the world’s first online social promise society. Every voluntary law is a social promise, and nothing more, and every social promise society will be a voluntary law society as I’ve been writing about here. We won’t call social promises “laws,” because people have forgotten what law is, and the term confuses hearts and minds. In the end, real and functioning social promise societies will teach people that social promises are the only laws worth following. And that only laws worth following are actually “laws.” A great deal of what people call the law today will be finally recognized and rejected as barbaric, destructive diktats.
All that explains the pause. See you on the other side.
It may seem fantastic that one day there will be no penalty for failure to pay taxes other than loss of reputation. Truly the idea does seem remote from reality. Maybe you can be convinced that it is only a hair’s breadth away.
The conversion of taxes to reputational morality payments that are entirely voluntary is closer than it seems. The modern version of investment financing for both charitable causes and business, that is, crowdfunding, has proved that social programs can be funded voluntarily. Crowdfunding differs from conventional fundraising only by being online, in some respects. But what a difference being online makes! Any interested donor can keep tabs on the progress of the fundraising from practically anywhere in the world. If the donor consents, the identity of the donor and the amount of the donation can also be published. Fundraising drives can become a very explicitly public event. The combination of receiving donations and publishing data about the donations is an excellent medium for cultivating reputations, so long as not corrupted by falsehood.
Promise making, a.k.a. personal adoption of law, is also a medium for growing reputation. By promise making, each person supplies the yardstick by which their honor can fairly be measured. The detailed shape of the yardstick already tells us a lot about the promisor’s expectations. But it tells us nothing about the promisor’s performance relative to that yardstick. Promise ledgers by themselves are necessary, but relatively empty of meaning. The real juicy meat is the promisor’s record of performance against their own yardstick. Information is publicly available from which a reliable assessment can be made of the extent to which promisors have fulfilled the promises they have made. The point is, the activity of public promise making and public promise keeping is a medium for reliably indicating reputation. The reputational information is like a credit score, but much more multi-dimensional.
Likewise, publicly advocating for certain social action, and then publicly donating money to the social causes you advocate or wish to support provides meaty reputational information. It allows you to put your money where your mouth is; or not, as you please. By your pattern of giving and not giving, you provide society with a profile of who you are, in the sense of what impels you to action. When the crowdfunding is operated as an open or partially open online system, the same reputational services that collect and dispense promise keeping histories can provide similar information about donation histories. That’s more meat on the bone.
When reputational information becomes meaty enough, it has a value by itself, largely non transferable. The value is that of reciprocal action. Think about it. If you are a large donor to many causes over a long period of time, when you are soliciting money for the cause that employs you, you are more likely to find support. Not only that, you will learn who reciprocates support, and you may use that information in deciding who to give to. If you have a great reputation, you will receives lots of support, employ many people in your social cause, and earn a respectable living for yourself. Having a great reputation in a network of donors is a very valuable asset, valuable in some ways beyond measure. Not everyone will have the greatest reputations, but everyone will recognize the value of a good one. Nearly everyone will put some energy into maintaining a donation profile that is respectable for their circumstances. Most of those who don’t donate will be in some sort of need, and eligible for being supported as needy clients, to be rehabilitated into productive members of society if possible. There may be a few Scrooges who just won’t understand, and will try to hide their true wealth and income to escape being considered overly selfish; but it is hard to see selfish attitudes lasting for long when the society depends heavily on giving, and most donations are transparent.
What has just been described in barest outline is an evenly rotating economy based on donating to social causes. Every imaginable social cause can be funded this way: collective defense, including military defense; environmental protection; social justice; care of the poor, sick, orphaned and helpless; rehabilitation of criminals; a national weather service; scientific research and exploration, and so forth. The list is endless. This new economy will do everything useful that the current system of taxation does, and will do it better, with much less waste and corruption; it will do more than we know or can presently imagine, besides. The social causes economy will resemble a traditional exchange economy, in which it is sometimes difficult to tell the difference between a social cause and a business concern. After a time, there will no longer be a meaningful distinction between causes and businesses. Every cause will do some business, and every business will be involved in a cause. In those future days, the accountants will glad that they no longer have to make difficult distinctions between tax-exempt donations and taxable income, both because there will no longer be any income tax, and because the new economy would have made those distinctions so difficult had income taxes managed to linger somehow.
That income taxes will not linger forever like every other government program seems fantastic, but again, it is only a hair’s breadth away. Only two things need to happen: first, the applicable legislature or voting public need to start gradually defunding programs, and requiring the applicable revenue agency to replace the funds from income taxes with financing obtained from voluntarily crowdfunded programs. Tax payers could easily be motivated to donate by granting dollar-for-dollar tax credits for every donation. The revenue agency would not need to manage the technical aspects of crowd funding. Crowdfunding might be managed instead by a community made up of professional crowdfunding system operators, and the users of the crowdfunding system, just as it is today. All the revenue agency has to do is keep an eye on things, keep ledgers and statistics, and report back to the legislature. After enough time, political activism, and rejiggering by the crowdfunded recipients, everything will be funded voluntarily, and income taxes will cease to exist.
The path is clear. It will not be politically easy, but mainly because it is natural to fear the unknown, and we can’t know exactly where the path will lead. Some sacred oxen will be gored, and everybody who now depends on the income tax system for income will have to find an alternative source of support. That is of course part of the beauty of this path: as the demand for labor in the tax system decreases, it will be offset quite closely by demand in the crowdfunding sector, and in all the new and revived sectors that the crowdfunding sector will motivate. Yet another benefit is that the social information that can be gleaned from the income tax system will not be lost, but it will be transformed into something more just and dignified. More will be discoverable from the crowdfunding system about who is up to what, and for what purpose, that was ever possible from the income tax system.
Wherever the path of voluntary law leads, we can be certain there will be no income taxes there. Voluntary society will see to that. Voluntary law must require it; income taxes and all other forms of coercion are not a rational option within the bounds of the voluntary law. All taxes will be replaced, inasmuch as serving some useful function, with voluntary crowdfunding.
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Photo by HM Revenue and Customs
Being founded in the ultimate egalitarian principle of personal self-sovereignty, voluntary law is better able to correct systematic imbalances and prevent injustice to the poor than any system of law or government based in privileges of property, or elite political status. When the rich oppress the poor, voluntary law provides a sort of built-in remedy for the oppressed, as can be seen by analyzing the interests of the actors involved. All oppression by the rich must be rooted in their property claims. To resist oppression based in socially dysfunctional assertion of property rights, the poor have two useful tools. First, the poor can bring claims seeking payment from the property of the wealthy. The wealthier the defendant and the larger the potential award, the better the contingent-fee advocacy that can be hired. Second, the poor can adopt laws that do not recognize the property claims of the wealthy or that provide superior property rights in cases where the poor hold the weaker property law.
For example, application of TROTWET to real property tends to create incentives for homesteading on fallow land that is not being diligently defended, as discussed previously in connection with property laws. Large holders of unused land will have to recruit and reward a small army of defenders. In the absence of a social utility enlivened by a moral purpose, the mere holding of empty land will in most cases not be worth the effort. People will tend to claim parcels they actively use and patrol, or intend to use in the near future. Exceptions to these limits might include nature preserves that are defended by environmentalists, who use the land lightly (e.g., for quiet recreation and observation of nature) and who are motivated by righteous zeal for environmental preservation. The state would not be available to tax the poor and use the tax revenues to enforce the property claims of the wealthy. The wealthy would have to enforce their own property claims, and the cost of doing so would tend to create a wealth equalizing effect by requiring them to employ the poor on mutually acceptable terms. The poor would have no reason to hire themselves out for the defense of wealthy land claimants, unless the benefits of doing so outweighed the benefits of defending their own property claims. It is not hard to see how such a legal regime would tend to lead to joint defense pacts on relatively egalitarian terms, to the extent that defense is needed at all.
Widespread adoption of voluntary law would place the poor in the strongest possible individual negotiating position with respect to wealthy property owners seeking to hire them for defending the owner’s property claims or for exploiting those claims to earn income. Under voluntary law, there can be no imprisonment or other punishment inflicted on the poor except that which is permitted by the weakest law as between the law of a poor defendant and a wealthy claimant. Moreover, whatever the sentence, its execution will have to be paid for by the wealthy claimant.
Yet another tool in the arsenal of equality is the rule against forced recognition of corporate or other collective entities. This will make it harder for collectives to amass wealth to the disadvantage of individuals who do not recognize the legitimacy of the collective. For example, when mass movements of the poor choose to occupy corporate properties, the poor can select the laws that they will adopt for their own defense. Lobbying and influence peddling will have to be directed to its only proper outlet: the victims of the property claims that would be asserted. There are no legislators or entrenched judiciaries to buy off.
When the poor oppress the poor, monetary damages to motivate justice may be less effective particularly in cases where the poor defendant lacks any reasonable capacity for earning income. Statist systems fail particularly badly at this problem. A poor criminal can be imprisoned, but this costs taxpayer money and does nothing to restore the harm done. Meanwhile the imprisoned criminal receives often receives informal education in prison about how to survive as a criminal, and little or no instruction that enables prospering as a productive citizen.
Restitutionary justice will provide a better solution, by creating an economic incentive for reformation of the offender by a third party reformer. The reformer contracts with the convicted defendant and with the injured victim. The defendant agrees to work for the reformer in exchange for whatever terms can be agreed upon, with a portion of the defendant’s earnings paid to the victim. Once the debt has been repaid, the defendant has been rehabilitated. Both the defendant and the one who rehabilitates earn honor for themselves, and are positioned to take advantage of future opportunities.
In voluntary law societies, there will be greater incentives for private aid to the unfortunate. Those who give generously and successfully — meaning with gifts that do not make the recipient dependent, but that tend to lift them out out poverty into a self-sufficient state — will earn stellar reputations. The reputation earned will provide very real economic repayment for the time, effort, and expense of helping others. To name just a few benefits, the most effective charitable organizations will have the nature of an educational institute, which earns social power and prestige through its alumni. To reap these dividends of prestige and social power, charitable groups and individuals will compete for opportunities to serve needy clients of all types. Merely slothful people would make poor clients and would be less sought after. Yet, where there is sufficient demand for poor clients, many of those who by making themselves poor seek to live off the labor of others might be reformed, and taught the much more fulfilling rewards of a good reputation. In voluntary society, private charity will operate without coercion or fear of unwanted liability for conduct or misfortunes of the unfortunate. TROTWET will protect the well meaning and reasonable people on both sides of interactions between the poor and those who would serve them.
Stateless social security can be provided by mutual aid societies, which can be ad hoc informal organizations, or more formally organized. A self-perpetuating society nurtures both its young and its old; nurturing is a natural human trait that does not need to be enforced by a state. Unhindered by state meddling, mutual aid societies can operate more efficiently and strike a fairer balance between the needs of the young, old, and sick and the working middle that sustains those weaker members. Under voluntary law, this natural human impulse for nurturing and social structure is reinforced by the personal promises of those who join mutual aid compacts, making the fulfillment of their mutual promises a matter of personal honor and reputation. We can be sure that every single infant who ever survived to adulthood was the beneficiary of at least one, and often several, mutual aid societies on the path to survival. So too, we can be sure that a free people experiencing need will form mutual aid compacts to meet that need. When doing so under an “empire” of voluntary law, we can see mutual aid societies that (unlike tribes and nations) will not seek to make war on competing societies, because of the mutual promises made from within each competing group to the greater host of humanity without.
Societies based in personal sovereignty will provide vastly more economic equality than is possible when sovereignty is based on claims over land or other natural resources. Every person has only one inviolable dominion: their own person. All other property arises from their own conscience and promises. In such a society, durable poverty does not exist for any economically capable person, only temporary shortages of goods and services demanded.
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Photo credit to Alex Proimos
Some Rights Reserved under Creative Commons
Criminal law is a creature of the state and does not exist as a separate category in voluntary law. Instead, there is a continuous gradient from good citizen to scoundrel, and the measure of the gradient varies from person to person. There can certainly be no crime against the state, because the system is stateless. Neither can there be any “crimes against the people” per se, although there can be conduct that, once proved by due process, earns the doer widespread opprobrium. Such people – those widely condemned or intensely distrusted — are the “convicted criminals” of voluntary law societies.
“Criminals” in a free society might include various classes of persons. For example, someone who does not voluntarily obey fair judgments of a voluntary law jurist, requiring coercion to be applied, might be regarded as a sort of criminal. This sort masquerades as a society member, but when faced with the necessity of complying with his own law, refuses to challenge the ruling on some reasonable legal or due process grounds, or to comply with the ruling to the best of his ability. Another sort might be one who voluntarily accepts and complies with valid rulings, but who has been convicted of conduct that so gravely impugns the person’s character, as to render the person untrustworthy, or morally repugnant. A third category of criminal might be one who holds to odious laws. All of these people are society members, but ones who at least temporarily are widely regarded with mistrust, disgust, or anger.
Voluntary law allows infinite avenues for redeeming, reforming, or acceptably tolerating all such criminals, eventually. Some criminals may be reformed and in time re-enter normal society, through various channels of reformation including but not limited to reform schools, indentured servitude camps, indentured apprenticeships, participation in mutual aid societies or guilds organized for the purpose of reputational reform, or other means. Some criminals may exist in a sub-society that is subject to certain limitations indefinitely, as if falling into a lower caste of society, while still being able to enjoy some of its benefits. Others may become outlaws and pass entirely out of the ambit of voluntary society, depriving themselves of all of its benefits and struggling for survival with the barest social protections.
Another class of “almost criminal” person might be one given over to vices of a victimless nature, such as various unsavory addictions, or needlessly cruel behavior to outlaws, or practices that are culturally condemned but not generally illegal. Exactly what sort of behavior falls in this category can vary with the times and circumstances. For example, a mild addiction to chewing coca leaves, or the keeping of pets, might be considered reprehensible in some places or times, and perfectly acceptable in others. To the extent the behavior is private and not actionable under voluntary law, there can be no legal liability or social consequences. Once the behavior become public there can be social consequences as with anything else done publicly, but there can be no legal liability without the consent of the person who engages in the behavior.
This legal protection does not mean that self-destructive conduct or other questionable forms of self-indulgence would thrive unopposed. On the contrary, any publicly discoverable behavior that is offensive to enough people may be “socially criminalized” in the sense that those who do it are shunned to some degree. In reaction to such shunning, others may elect to shun the shunners. It follows that any victimless conduct that is condemned by a substantial majority of people in some economic circle cannot be sustainably practiced there without support from a motivated minority. In the absence of one dominant power such as a nanny state defining what conduct is or is not protected, dramatically different cultures might arise in different circles. In essence, in voluntary law societies, shunning replaces voting as the primary means for enforcing particular moral preferences in particular circles.
Whether you not you find such possibilities disturbing, or stimulating, may depend to a large degree on your cultural conditioning. Many people today are accustomed to fairly uniform standards for acceptable behavior being enforced over wide areas. For example, at one time homosexuality was made illegal by states, making the lives of ordinary people who happened to prefer homosexuality difficult and dangerous. At later times, states made it illegal to shun homosexuals in private commercial transactions. Under either regime, some people were denied the ability to openly conduct themselves according to their moral and personal preferences. Many have not considered, or would consider it strange and unappealing, to construct a society in which courts will not enforce a uniform standard, enforcing instead nothing more than each person’s personal code of honor. Before voluntary law can become the dominant paradigm, these rather childish attitudes must fade, to be replaced by more sophisticated understandings of the natural merits and limits of self-sovereignty. The examples below illustrate some of these natural merits and limits.
These natural merits include discovery of other’s cultural and moral preferences, facilitating more targeted discovery of compatible friends, partners, customers, service providers, and other relationships. For example, people might adopt personal honor codes stating that they will not engage in promiscuous sex or hire the services of a sex worker while in a committed sexual relationship with another without the knowledge and consent of their partner; and should they violate this rule, their partner will have certain remedies. The benefit of doing this may include demonstrating one’s expectations and commitments to others, for the purpose of finding a mate or companion. Others may prefer silence on the question, or make a different commitment, or may deny any such commitment. Either way, for better or worse, others will know where they stand, and may use this information for any desired purpose.
For example, prostitutes might market themselves primarily to people who have openly indicated that safe, professional sex is allowable, and perhaps to a lesser degree to those who prefer silence on the question. They would focus their marketing both to reduce the cost of finding customers, and also to reduce the inherent relational risks associated with having sex with strangers, such as incurring the wrath of a mate or dealing with those who are unable to understand and accommodate the professional’s position in the transaction.
The ability to focus their marketing based on promise information would benefit both prostitutes and their likely customers. It would also benefit those not interested in paid sex, by sparing them from unwanted solicitations, among other things. Conversely, those who prefer monogamy might avoid looking for partners among those unwilling to adopt a compatible honor code, and would also be aided. Those who find sex work or promiscuity sufficiently offensive might even shun others who decline to adopt personal honor codes to their liking, while defenders of sex workers might offer discounts or other benefits to those holding prostitute-friendly codes.
In a truly free society, shunning may be applied to a much wider array of behavior than the types of victimless conduct that states have outlawed at one time or another, such as forbidden sexual activity, use or sale of contraband, smuggling, blasphemy, criticism of the monarch or state, and so forth. Rather than being applied to old and familiar vices or activity detrimental to state monopoly power, in free societies shunning might tend to be used as a political tool when it is desired to change the behavior of ones’ neighbors. Also, shunning may take various forms other than refusing to do business altogether, such as for example the imposition of a premium price or embarrassing label.
For example, suppose the economic leaders in a particular circle decide that too many people are engaging in an undesirable behavior ‘X.’ The behavior ‘X’ can be just about anything that a group of people decide is undesirable; use your imagination. Likewise, the circle can be anything with effective control over a significant economic resource: a city, a guild of people who control the Internet, a cartel of underground medical providers, a union of sex workers, an ad hoc organization of online underground free market hosts, whatever. Suppose ‘X’ is the consumption of meat, and the circle is the city. The city leaders are morally committed vegetarians, include nearly all the restaurant owners, service providers, and utility providers in the city, and want to create disincentives for meat eating. They each adopt a personal honor code that commits them to not eat meat unless necessary for survival, and offer a 20% discount to anyone who adopts the same code. In effect, people who have not promised to eat meat would pay a 20% premium for doing business in that vegetarian city. But in the absence to monopoly power, they would not do so for long.
There are economic and political limits to widespread adoption of shunning. Whether or not price discrimination of this sort is effective will depend on environmental factors. In the absence of market power by those enforcing the price discrimination, it will not work. Even when a cartel is able to enforce price discrimination based on arbitrary personal profiles for a while, competitive pressures will tend to undermine it over time.
Simply put, too much shunning is bad for business, creates opportunities for competitors, and limits the shunner’s political influence. For example, if vegetarian shop owners in an area charge a premium to non-vegetarians, the price discrepancy attracts vegetarian customers while repelling meat eaters. Meat eaters will tend to shop elsewhere, so most of the shop owner’s customers will be vegetarian. Thus, the shop owner is seldom able to enjoy the benefits of receiving a 20% premium price. If there are many meat eaters in the area, competitors will move in to service them. The vegetarian shop owner will lose opportunities to interact with meat eaters and to influence them to become vegetarians. Shunning is not likely to be practiced for trivial reasons, because such shunning cannot be economically justified. Instead, shop owners are more likely to offer inducements, such as discounts on vegetables to any meat eater who promises to give up meat, in which the cost of the inducement comes with the possibility of an economic return.
There can be non-trivial, economically justified reasons for shunning, such as black market participants avoiding the buying or selling of goods involving undercover police or informants. In circles that are vulnerable to aggressive attack, promise network information may serve as a proxy for identifying high-risk transactions. People with promise profiles that indicate a greater transaction risk will be avoided. This type of shunning may become especially important whenever a breakdown of the state (e.g., hyper-inflation) restricts supply of good or services to people who lack alternative support systems, such as promise networks. It may also be important to people who for one reason or another cannot adopt the promise profiles that would make them acceptable to their desired type of merchant or customer. Promise profiles and associated reputations thus operate as a sort of behavioral credit score, permitting discrimination between sellers or buyers based on a rational assessment of risk associated with incompatibilities between promise profiles or past promise-keeping reputations. Promise and reputation information will facilitate shunning that does not violate the laws of economics.
Personal honor codes that excuse or require extreme shunning would create an unnecessary risk that those who hold them would be shunned for their own unbendable intolerance. People would not find it necessary or desirable to adopt such codes, because shunning could rarely or never be used as a positive legal claim or affirmative defense. Instead, most shunning would be done ad hoc and not in a systematic fashion, preserving flexibility. People would adapt their acts of shunning to the circumstances at hand, with utility taking precedence over consistency.
Imprisonment by the state is a form of shunning that most are familiar with today. Even though imprisonment is inflexible and clearly uneconomic in most cases, it continues in widespread practice because maintaining prison systems is politically expedient for those with the power to allocate tax money, with many unfortunate and unjust consequences. A majority of the electorate will need to believe that alternative forms of punishment are available and preferable to imprisonment of non-dangerous criminals, before such imprisonment will end.
Another form of state-run shunning is state-maintained registers of criminals, such as “sex-offender registries.” Such registries are “one size fits all,” with everyone on the list assumed to be dangerous, regardless of actual fact. Moreover, offender registries are often used to require third parties to shun the listed offenders. State-enforced offender registries violate the right of free association and personal sovereignty. A robust promise society will make special criminal registries obsolete, because reputation information that is available generally will be more detailed and accurate than can be provided by a list of offenders. In voluntary law societies, individuals choose for themselves whether or how to take the reputations of others into account in their dealings with them.
Open-source shunning by individuals is the closest thing to criminal punishment that a free society will impose on its members. Free and voluntary shunning will different dramatically from statist solutions, however. In a free society, shunning will be a useful and fluid tool that creates incentives for socially constructive behavior of all types. Shunning and inducements based on promise profiling may help move society towards freer, more ethical arrangements, by creating incentive for adoption of promise systems where such concepts were unknown. Even after voluntary society is predominate, shunning broadly defined may become the primary instrument motivating continuing social change in the face of evolving moral preferences.
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Photo Credit to Chris Yarzab
Some rights reserved under Creative Commons
Attribution 2.0 Generic
In earlier posts, I’ve assumed that in determining liability for the death of a victim it is the victim’s law that should be applied, subject to the usual principles for choice of law. We can rationalize this choice as essential to preserving reciprocity even in the case of mortal injuries, but it might be questioned whether the choice is truly justified. In whatever form a deceased spirit exists, if it exists in any form at all, it is evidently not in the form of a corporeal natural person. And unlike a disabled person, who might perhaps overcome his disability someday, the deceased once dead and decayed can never again assume the same identity and capabilities of her formerly living being. So applying the law of a dead person violates the founding pillar of personhood. It seems as if a choice must be made: either the founding pillar of personhood must be temporarily waived when a case touches on a dead person, the law of the dead must forever be enforced as if frozen in time, or all the law of the deceased must be immediately disregarded. It is not immediately obvious which choice is wisest. As shall be shown, it is not necessary to make any such choice.
There are two principal classes of legal action involving dead law makers. The first class includes all claims for or against the dead person, arising out of circumstances preceding their death. The most dramatic example is a claim for restitution or vengeance in the case of murder or negligent homicide. Although these claims are not perfected until the victim dies, the claims nonetheless belong in this class because killing can only be inflicted on the living. Yet this class also includes a multitude of less dramatic claims that were made by or against the dead person, or could have been made, prior to their death. Just about any claim will do. It is a not uncommon situation, traditionally handled in the West by maintaining the action by or against the estate of the deceased under State-made law. Under voluntary law, it may be necessary to reconcile conflicting laws, and to that end, to consider whether or not the law of the deceased should be respected just as in life.
Causes of action in this class arise always during the life of the victim or of the wrongdoer. Even murder does so arise during life, because it is impossible to kill one who is already dead. As in every other case arising out of the past, the law is retrospective; it looks back in time. In these cases, the law looks back to a time when all parties were alive. Therefore, for purposes of determining the law to be applied, the death of the victim or of the one accused of wrong is of no consequence. The law of the deceased is applied as if they were alive. To hold otherwise would be to make an exception to the general operation of the law, in view of arbitrary circumstances arising after the fact. If justice is to be fair and not arbitrary, there is no choice to be made when judging events that occur before death. The adoption of law made by the one who has died must be regarded as if she had not died, for rulings in this class of actions.
The second principal class of actions involving deceased law makers includes all claims that cannot begin to arise until after the law maker is dead. This class includes claims of inheritance, and the disposition of wills, trusts and estates. Although actions prior to death may be considered in judging these cases, for example, the execution of a will, such actions are not the cause of the action at hand. The cause is simply the event of death itself. Thus, justice does not require that the law of the deceased be applied as if he were alive.
Neither does justice require that the law of the deceased be ignored. For example, the extent to which to consider the law of the deceased can be determined based only on the laws of the living, so there is no contradiction of foundational principals. If a living party has adopted a law that gives meaning to instruments such as wills, or provides for rights of inheritance under the law of the one who has deceased, and the deceased had a compatible law, then there is no issue to be decided. The law of the deceased will prevail. It may be that most people will adopt laws that respect the adopted law and wishes of the dead with respect to wills, trusts and the disposition of estates. If not holding to such a law, then their own wishes are much less likely to be considered upon their death. Also, without a continuance of an elderly or infirm person’s estate after death, others may be unwilling render services or lend to such persons. A continuance of the deceased’s property interests until their debts are settled depends on a mutual recognition that the property interests can survive death for some period of time.
Others may have no real concern about the disposition of their property after death, and choose laws that seem more advantageous during life. To these people, it might seem better to make claims on property of the deceased without being constrained by the laws or wishes of the deceased. For example, such a person might hold to a law stating that all property rights cease immediately upon death, such that death itself acts as abandonment of any property held by the deceased at the time of death. This person would then be able to make a claim upon any property so “abandoned.” Such a claim would have to compete with claims upon the deceased’s property by any others with contrary laws. If there are no opposing claims to the same property, the claim can be considered as if made upon abandoned property, considered elsewhere.
For example, consider a case in which a person dies with a will, or without a will but with a surviving spouse. A stranger brings a claim for property formerly owned by the deceased, and the spouse opposes, claiming the property for himself either on the basis of the will or the deceased’s inheritance laws. If the stranger has no nexus to the property she claims, she will lose under TROTWET to the surviving spouse, who has a nexus to the property by way of the will, by way of his relationship to the deceased, by way of actual use or labor associated with the property, or by any combination of the foregoing.
On the other hand, if the stranger bases her claim on some nexus to the property that runs deeper than the spouse’s, the stranger may prevail. For example, suppose the stranger is not truly unfamiliar, and can prove she had an ongoing intimate relationship with the deceased, the property she is claiming was purchased by the deceased for her to reside in, and she did in fact reside there. In such case, her claim to the property should succeed under a weaker tool analysis for property claims, because a neutral jurist should find that the claim of property she is asserting is based a law that requires a more stringent antecedent for the property claim than the law of the surviving spouse. Win or lose, the stranger’s claim can be judged fairly without any need to assert the law or claims of a dead person against her.
On the other hand, if both the stranger and the spouse by their prior adoption of law recognize the will of the deceased, then the will of the deceased should be faithfully executed. If the deceased’s will is valid only under the law of the spouse, but not under the law of the stranger, then the will is properly a factor in testing the prevailing law to be applied to the competing property claims, but does not control. The outcome will depend on whether the will plus the spouse’s antecedent nexus to the property is more, or less, stringent than the antecedent nexus of the stranger, as with any other dueling property claim.
Any law that grants rights to property on the basis of some relationship to a particular deceased person must, by logical necessity, recognize the preceding ownership claim of the deceased. So even if the law of the deceased no longer exists to control such claims, it is therefore still accorded a certain indispensable respect in most disputes over succession, typically grounded in personal relationships. For example, Clifford, the only first cousin of Richard, realized early in life that he was unlikely to ever be related to anybody more industrious or wealthier than Richard. So Clifford adopted a law that provides for inheritance of all property by cousins, even if the deceased leaves a will. Benjamin, Richard’s only son, adopted a similar law providing for inheritance by children. Grace lovingly took care of Richard for many years, and Richard left all his property to Grace in his will. Both Richard and Grace adopted a law providing that if a valid will exists, it controls the disposition of property after death. As between Clifford, Benjamin and Grace, who holds the weakest property law?
We can compare the parties’ respective antecedent bases for their property claims:
Clifford: relationship of first cousins;
Benjamin: will of the deceased + child relationship;
Grace: will of the deceased + years of labor + long-term caregiver relationship.
Grace’s law is probably the weakest and is therefore likely to prevail; but even if Benjamin’s law is deemed weaker, Richard’s will is executed either way: Grace receives all of the property at issue. Clifford’s law is merely opportunistic and would be enforced only in the absence of any less frivolous claims.
With some types of property left behind after death, wills and familial relationships will carry less weight. Consider, for example, a claim by a nature preserve over certain truffle grounds owned by a deceased truffle gatherer named Trudy. Trudy left the truffle grounds in a nearly pristine state, and only used it for harvesting certain rare truffles that grew there naturally, for her personal enjoyment. The nature preserve is a collective organization that holds title to various tracts of pristine land using methods as described earlier. Suppose, for simplicity, that the preserve makes its claim in the name of one of its member agents, Amy. Amy’s intent is to hold the land for the benefit of the preserve, as a habitat for certain rare animals and plants. Trudy did not leave any survivors who ever made any use of the truffle grounds, and left it by will to her partner Tran, whose law respects the will of the deceased. Tran did not enjoy truffle hunting, and planned to sell the truffle grounds by auction of the International Truffle Association. She needed the proceeds to fund her retirement. If Amy’s law does not respect wills of the deceased, there may be some uncertainty as to whose claim is stronger. A skilled jurist will exploit the uncertainty to assist the Amy and Tran to negotiate a settlement. For example, a settlement under which Tran sells the truffle hunting rights subject to a preservation easement in favor of the preserve via its designated agent Amy would meet the needs of both claimants. If the parties refuse to settle, they will have to live with whatever ruling the jurist decides. In close cases, rational disputants will settle.
As happens under present systems, some people may leave their property to a trust, which is a form of fictional entity. As any other fictional entity, the extent to which it is recognized and respected will depend on the laws of those who interact with its property. Since these laws cannot confidently be predicted in voluntary law societies, fictional trusts will not be commonly used. Instead, property may be given in trust to natural persons, who are charged with the duty of acting as trustee of the property under a contract with the grantor. If the grantor dies, the trust may be enforced against the trustee by a third party beneficiary or surviving parties to the trust agreement. If there are no beneficiaries or survivors, the trust dissolves at the discretion of the trustee.
Death, as it is known today, is usually irreversible; exceptions may exists in fleeting cases such as when people “die” on the operating table but are revived before brain death sets in. Future technological development may change this present reality. After all, heads and entire bodies are sometime frozen, in hopes of later revival. There may come a time when the dead are not beyond hope of revival under conditions that are presently beyond hope. If such a time comes, those awaiting revival may be treated under the law as simply disabled for an indefinite period of time. If this period of time stretches or more than a few year, difficulties with this approach may arise, resolution of which may be left to a time in which the difficulties actually arise. The underlying tension is between a law of the indefinitely disabled, which is frozen and cannot adapt to changing circumstances, and the adaptable law of the living.
The death of the voluntary lawgiver may seem to thrust us into unfamiliar territory. We are accustomed to considering only one law controlling the disposition of property after death. Yet, the differences in fact are not as radical as it may seem, due to other balancing principles such as TROTWET. Discounting the law of the dead may seem superficially troubling, but in the majority of cases will bring about results similar to those provided by widely applied rules of inheritance known today, as illustrated by the foregoing examples. In some cases, death will bring more flexibility for just resolution of conflicting claims than is possible under a monolithic legal system. Applying the law of the living to the property of the dead has the great advantage of freeing the living from constraints imposed by those who cannot breathe life in their flesh ever again, or adapt to changed circumstances confronting the living.
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Image from page 343 of “St. Nicholas [serial]” (1873)
via the Internet Archive Book Images photostream on Flickr
Determining which party is initiating force is a fundamental (but not insurmountable) problem with political theory based on non-initiation of aggression. “Voluntary prior consent” to the right being enforced may be one of the better ways to approach the problem.
For example, suppose that Aperson voluntarily assents to the proposition that murderers should be imprisoned by a community policing collective (CPC), and further voluntarily joins this entity, which taxes its members. If she refuses to pay her taxes while positioning herself to receive services that the CPC provides only to its members, she commits the aggression of theft of services. Likewise, if she murders someone and then refuses to submit to imprisonment once proven guilty, her refusal to accept the punishment she deemed just adds to her aggression of murder.
On the other hand, if Beeperson has not voluntarily joined the CPC, it would not be aggression on his part to refuse to pay CPC taxes presuming he did not willfully to seek to benefit from CPC services without mutually agreed payment. Likewise unless he had voluntarily assented to imprisonment by the CPC for murdering one of its members, if he murders someone he does not add to his murderous aggression by refusing to be imprisoned by the CPC for it.
When a CPC claims a monopoly on the use of force in a territory, no one is allowed the choice to voluntarily exist and trade with inhabitants in a particular territory without submitting to all of the extant monopoly’s rules and demands. Therefore even if Aperson thinks she has voluntarily agreed to follow all of the reigning monopoly’s rules and demands, her “choice” is indistinguishable from the “choice” of a slave on a plantation to not be “uppity.” There can be no voluntary compliance without real choice, because voluntary means to choose without being coerced. Real choice means non-coerced choice, and eliminating coercion requires allowing the one who chooses freedom of action without existentially adverse consequences.
The foregoing implies that there is something special about the right to exist in an area and to trade freely while doing so. These freedoms can be recognized as fundamental human rights without denying the possibility of trespass or other special situations that might restrain trade at certain times or circumstances. While this is a topic that deserves further treatment, suffice it to say for now that any U.S. government that denied the fundamental right to life, liberty and the pursuit of happiness would be in opposition to its founding documents, and in that sense illegitimate.
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Photo Credit to Darren Johnson
Some rights reserved under Creative Commons License (CC BY-NC-ND 2.0)
All beings that are corporeal, mortal and possess the necessary abilities described earlier are sovereign persons under voluntary law. This is fundamental. The necessary abilities are: apparent free will, awareness of self and others (sentience), rationality, language and memory, and a desire for justice, or if you prefer, just society. Possessing “advanced technology” is not a required ability, although helpful. This site has earlier discussed exceptions that might be made to impart status as a sovereign person, for dependents (e.g., infants and children) and fictional entities (e.g., collectives). Status for potential persons follows from the desire for justice, as these are individuals with the potential capacity to acquire all the necessary attributes of a person within their lifetimes, and are thus deserve equal status as members of society to be perfected at real future times. Another class of exceptions that expands what may be considered a “person” is for fictional entities, for which status can be conferred by voluntary agreement of the parties.
Every individual animal belongs to a species that generally lacks at least one of the necessary abilities. But individual exceptions do exist. For example, individual apes have demonstrated the ability to use symbols (e.g., sign language) to discuss abstract concepts (e.g., love, sadness). If a member of a non-human species uncharacteristically acquires all the abilities, it has graduated to personhood. An intelligent, technologically advanced alien of a biological sort would probably qualify, unless it had no desire for justice that includes persons of alien species. In that case, it would be an alien outlaw.
Controversies may arise over individuals who demonstrate abilities that are not characteristically found in their species. Are such individuals legal persons? If an individual animal is able to demonstrate that it possesses all of the abilities required of legal persons, it would certainly qualify. If it comes close but not quite all the way, it might be regarded as a special case, and perhaps treated in a manner similar to dependents. If a species (human or otherwise) characteristically demonstrates the necessary abilities, then its minor members would be accorded the status of potential persons. Independent jurists would make determinations in regarding qualifications for legal personhood in individual cases. If the case is difficult, controversial, or ground-breaking, the jurist’s opinion will not be respected by those with the power to enforce, unless the jurist is extraordinarily influential, and/or the time is ripe for social change.
Animals more generally might be accorded protected status and enjoy rights, without being recognized as persons competent to adopt their own laws. Animals are not persons in a society of sovereign persons, but can enjoy any protections granted by society members. Their status in voluntary law depends on the adopted laws of persons. When these laws differ, which is applied? How does TROTWET apply to laws protecting animals? It depends on the right asserted and the remedy. Animal rights might be analyzed like property laws, evaluating the “strength” of antecedent conditions for a claim of right, and the “strength” of the exclusionary that is sought to be exercised.
Consider, for example, the example of Alice and Bill: Bill’s law gives him the right to kill every rattlesnake, and a claim for compensation against anyone who hinders him from doing so. Alice’s law states that rattlesnakes shall not be killed, unless necessary for immediate self-defense, and that whoever kills a rattlesnake without proper justification shall pay a $1000 fine to a designated Rattlesnake Defense Fund, for each rattlesnake destroyed. Suppose Bill goes about trying to kill rattlesnakes, and Alice hinders the hunt as best she can, without hurting Bill or trespassing on any of his personal property. Despite her intervention, Bill manages to kill a few snakes. Alice sues Bill for $1000 per snake. Bill countersues for hindrance damages. Which law is weaker? And do the rattlesnakes have any say in the matter?
Suppose Alice claims a property interest in every living rattlesnake, no matter where found. Bill exercises his right to kill rattlesnakes only where they threaten his economic interests, for example, on the grounds of his amusement park. Under those facts, if Alice hinders Bill who is hunting only within the boundary of his amusement park, Bill’s law should be considered weaker for having more stringent antecedent conditions, because the right to kill rattlesnakes is allied with a duty to build and maintain an amusement park on which the snakes must be found. If Alice sues Bill for $1000 per snake killed on the grounds of Bill’s amusement park, she would receive nothing. If Bill sues Alice for hindering his snake hunting limited to the amusement park grounds, he might be awarded his actual damages if Alice has adopted a law allowing it. If Alice has no anti-hindrance law, she is an outlaw on the topic of snake-hunting hindering, so Bill would also receive no award of damages.
Suppose, however, that Alice is able to prove that Bill’s hunting is endangering survival of a rare species of rattlesnake. Further, suppose that her law only provides for an award of damages where the snake that is killed in a member of an endangered species. Under these facts, a jurist may hold that Alice’s law is weaker, and should prevail. Bill’s law, if allowed to operate, would potentially deprive the world of a species of rattlesnake, merely for the benefit of an amusement park. That could be considered more exclusionary, because it is in effect a claim of right over an entire naturally-existing species, and because extinction is permanent. Therefore, Alice might be awarded damages or other relief for the snakes in that limited case, depending on the specifics of the laws at play and the prevailing attitudes among reputable jurists. It is not difficult to imagine the most reputable and influential jurists adopting such views.
Suppose that in addition to killing rattlesnakes, Bill is a sadist who enjoys torturing all animals, especially cute and furry ones. He does not recognize any laws that forbid or punish such abuse. Such situations can be analogized to child abuse; however, there are obvious differences. First, in the general case the abused, mute animal can never qualify as a legal person under voluntary law. Accordingly, a jurist will usually be unable to credibly impute a law to the animal as an individual. Second, with animals, the perception of abuse can vary greatly; what seems abusive to one may seem justified or permissible to another, depending on each person’s scale of values. Consider, for example, the different perceptions of vegans and meat-eaters. Voluntary law does not provide a means for uniformly enforcing one law regarding animal rights over a diverse population. It does, however, easily permit discovery of each person’s personal laws regarding animal rights. Therefore, where a great majority of people favor basic animal rights of a sort, the social pressure to adopt conforming laws on animal rights of that sort should be generally effective. In Bill’s case, evidence that Bill enjoys torturing animals coupled with his refusal to adopt a reasonable law protecting animal rights would devastate his amusement park business, once generally known.
Suppose that the rattlesnakes turn out to be an alien species that includes individuals able to prove that the species generally possesses all the necessary abilities of personhood under voluntary law. Such individuals could then sue Bill for alien rattlesnake persons he has killed, under the applicable law against murder, which is determined as always by TROTWET.
Doubt may sometimes arise in the case of alien or artificial persons. For example, some jurists may doubt that an alien or android demonstrates a necessary ability, for example, a desire for justice. Others may feel that such beings lack a necessary disability, such as corporeality or mortality. For example, the legal status of an artificial intelligence that emerges from a computer network would be controversial. Is such an entity corporeal, or mortal? It is difficult to say. Such controversies would be decided by the voluntary law jurists of the future, and the opinions of these jurists would be enforceable only to the extent found credible by those who would enforce such opinions.
Consider an example of how this might play out: Libby the Jurist recognizes Andy the Android as a natural person. Connor does not. Andy sues Connor, and selects Libby to hear the case. Connor argues that the case is void ab initio because Andy is not a qualified person. There are different outcomes possible. Libby may recognize a bona fide controversy on a fundamental due process question (namely, Andy’s status under voluntary law) and decline to make a ruling on the substance of the case, frustrating Andy. In the alternative, Libby may make a substantive ruling despite the due process issue, which may or may not frustrate Connor or Andy. If the substantive ruling is favorable to Connor, Andy may argue that the ruling is unenforceable because Connor did not recognize the authority of Libby to decide the case under voluntary law. Therefore, if Connor can determine beforehand that the voluntary laws at play in the case favor his position, he would be wise to waive his objections to Andy’s personage strictly “as an accommodation” to Andy in the case at hand, and not for all cases generally. However, unless Andy is engaged in a sort of political campaign to more generally establish his legal standing in a community, he will not bring a losing case against Connor. It may be expected that if Andy sues Connor, the laws probably favor Andy. Thus, Andy may be left with a judgment by Libby against Connor, which Connor disputes on the basis that Andy is not a qualified legal person. As in every other case, the value of Libby’s judgment will depend on her reputation as a jurist, and the ecosystem of enforcers available to enforce it. For example, if a majority of the adjacent society recognizes that androids like Andy are natural persons, Libby’s judgment will readily be enforceable. Conversely, if her judgment opposes the prevailing views, it will be difficult or impossible to find anyone to enforce it, unless perhaps she is very highly respected as a jurist generally, or has made a very compelling record in the particular case at hand.
Controversies over fundamental questions such as an individual’s status as a natural person, or the presumption of personhood that is attached to members of particular species, must always be resolved by voluntary law jurists. There is nobody else that can do the job; nobody else who determines legal questions for parties in disagreement over a question. It is important to realize that jurists have no elite power to rule on legal questions, because there is no bar to anyone being a jurist beyond each person’s ability to do a credible job and develop a reputation for competency and good service. Accordingly, when fundamental controversies arise, schisms will inevitably follow, assuming that controversy in fundamental matters cannot be avoided entirely, for all time, in any non-coercive system. People who live under voluntary law will manage such schisms by carefully choosing who they do commerce with, where they reside, how they contract, and by many other such precautionary and extra-legal devices.
Voluntary law enables tolerance and freedom to cope with schisms over fundamental matters of conscience, rather than to attempting to forcibly impose one viewpoint on all. It also reveals the moral values of all, enabling great but not dictatorial social pressure to be applied on any moral question, in proportion to the moral preferences of society members. There is no reason to suppose that a voluntary law society would provide less protection for animals, aliens, or others of questionable personhood than is possible in statist societies. On the contrary, a society founded on principles of non-aggression and consideration for the rights and sovereignty of others is likely to provide an overall much greater degree of protection for society members and for the living things that interact with them than is possible in authoritarian societies. This protection will arise from the inherently respectful moral preferences of those who will form such voluntary societies.
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Photo “Dear Peanut” Credit To Emily P.
Some Rights Reserved (Photo) under Creative Commons
Attribution-NonCommercial-NoDerivs 2.0 Generic (CC BY-NC-ND 2.0)
Legally recognized fictional entities, as we know them today, are creations of state laws. These entities exist in two basic forms: personal and collective. Personal fictional entities are alter-egos of a natural person. For example, a business owner may provide a fictional identity for one or more businesses she owns and controls. Each business may be given a separate name, bank accounts, and financial records. Depending on the status of registration of the fictional entity with state authorities and its compliance with state regulation, the owner or owners of the fictional entity may be protected from liability for non-criminal acts attributed to the fictional entity. When the fictional entity has more than one owner, it is a collective entity.
In general, fictional entities can be justified for their supposedly socially beneficial purposes, including (for example) encouraging passive investment in collective enterprises, development of business enterprises as transferable assets, providing collective redress for harms committed by agents of the collective, and many other purposes. This post does not concern state-created fictional entities, and therefore will not spend words considering the merits or detriments of such beasts. The topic at hand is recognition and treatment of fictional entities under voluntary law. Debating the merits of generic collective entities under voluntary law is pointless for any political purpose, because nobody will be forced to recognize a form of collective against their will. We might expect, however, that the merits of particular collectives or legal forms for collectives might be hotly debated in voluntary law societies.
Fundamentally, in a stateless legal system based on personal sovereignty, the legal effect of the fictional entity depends on its recognition under the laws of each person encountering it. With its characteristic infinite adaptability, voluntary law can provide for recognition of any form of fictional entity, and any rules for treatment of such entities. Recognition cannot be forced on those who do not hold to those laws under which the recognition is granted. However, social pressure to recognize certain forms of fictional entities may arise. For example, laws enabling socially adept collectives will tend to be favored, creating social pressure for recognition of those laws. Indeed, we might think of states as the result of a sometimes violently aggressive social process for recognition of a fictional collective entity: namely, the state in its various forms. But under voluntary law, social pressure is rooted in personal sovereignty and non-aggression, whereas state-sanctioned pressure is aggressive by nature of being rooted in the concept of state sovereignty over a territory.
Given that social pressure for recognizing collective entities can arise under voluntary law, what forms of voluntary law will provide for the most vigorous forms of collectives, capable of encouraging widespread adoption of those forms? Will it be the corporate form, similar to that recognized by states? Only time will tell, but there are reasons to think that the prevalent form will differ from statist corporate laws in some fundamental respects, most obviously in matters of taxation or tolls, determination of liability for corporate action, and assertion of collective property rights. In other respects, collectives operating solely within voluntary law societies might (or might not) resemble corporations and other collectives based in state law. For example, such entities may have officers, employees, and shareholders, and shares of some types of collectives might be traded in open markets similar to stock exchanges. Or not; these collectives can be organized in any useful way that a group of people is capable of agreeing to.
Before speculating about the future of collective entities, some fundamental matters need to be considered. Personal sovereignty of natural persons is at the root of voluntary law. By definition, a fictional entity is not a natural person, and thus, cannot possess the sovereign power to make its own law. Any system in which a fictional entity is granted lawmaking power as if it were a natural person falls squarely outside of the bounds of voluntary law, by definition. The grant of lawmaking power to fictional entities is well-known in other systems, including all systems that rest primarily on dominion over a territory (empires, republics, democracies, city-states, etc.). States are themselves the premier example of such fictional entities, abrogating for themselves the power to make law in a territory. But no fictional entity can ever possess the legal status of a natural person under voluntary law, by definition. Every natural person can have but one natural identity.
Some natural persons may, nonetheless, prefer to adopt different identities for different purposes, even within voluntary law societies. For example, different identities may be desired for convenience in dealing with disparate groups of people, or because the presence of split personalities in the same person makes the maintenance of a single identity impractical.
Let us presume that different identities can, in some cases, be adopted and used legitimately without fraud. Whatever the motivation for adopting the different identities, each of the multiple identities is necessarily tied to the same natural person. Because we have assumed a lack of fraud, it follows that whenever a dispute involving the natural person arises, the multiple identities and the respective laws adopted by those entities will be known to all parties involved. If the natural person has adopted conflicting laws, under TROTWET the least advantageous one of these laws will be the one used for resolution of the dispute at hand. Any other approach would allow disputants to pick and choose from alternative laws to apply to different disputes, turning voluntary law into a useless game of words. If voluntary law is to have any social utility, the rule of “weakest law” for each natural person (or something like it) must be enforced. This means that although a person may adopt any number of laws and identities, only the weakest one of their adopted laws will be considered in the circumstances of any particular dispute. Each person can be allowed only one controlling law, in any given circumstance — unless, of course, all parties to a dispute consent to the application of some law other than the one determined to be the weakest.
When a fictional entity is merely an alter ego of a single natural person, TROTWET works well as the prevailing rule and should suffice for regulatory purposes. However, many collective entities exist that are not under the control of a single person, being regulated by some structure of rights distributed among members or shareholders, for example. Collective fictional entities cannot be equated to natural persons, so how could they have legal status under voluntary law? There are infinite possibilities, limited only by the imagination of any two or more natural people who adopt their own laws, and the jurists who may mediate disputes between such persons. That said, even at this early stage, certain general possibilities are clear.
One possibility is recognition by contract. Suppose a natural person “Steve” organizes a collective “Peach” to develop and sell quantum computers and subspace communicators. The rights and responsibilities of “Peach” can be defined by contract between any two or more persons, and may vary depending on context. For example, two people who have adopted a compatible form of contract law can execute an enforceable written agreement in which one person is an officer of the fictional entity “Peach” and the other is a stakeholder of one type or another, for example, an independent contractor, investor, supplier, or customer. Both the officer and the stakeholder agree to treat “Peach” as if it were a person in the event of any dispute arising under the agreement. Naturally, the agreement will also include a choice of law clause to eliminate uncertainty by the law under which the agreement will be interpreted, and other provisions for dispute resolution. The choice of law may also specify a form of governance for the entity. Thus, for purposes of disputes arising under the agreement, and only for such purposes, the entity “Peach” can readily be accorded a status that is equivalent to that of person by those who have voluntarily agreed to do so. If the contract somehow lacks a choice of law provision, its legal effect can be evaluated under TROTWET, based on the laws of the natural persons who have executed it.
Another possibility is recognition of fictional entities by adoption of law. This may be used instead of, or in conjunction with, recognition by contract. Such voluntary laws may take various forms. For example, a law may state that the natural person adopting the law will recognize the legal status of any fictional entity that is currently certified as complying with a specified set of standards for personal and/or collective fictional entities. The law may also specify the certifying agency, or a class of acceptable certifying agencies. There is nothing to prevent a voluntary law from referencing a state law regarding fictional entities. For example, a person is not prohibited from adopting a law that recognizes all legal entities in good standing with the California Secretary of State, for purposes of the person who adopts the law only. It might sometimes be convenient for people to adopt laws that grant recognition to state-created entities. Such recognition enables the entity to resolve disputes with the grantor under voluntary law. Under some circumstances (e.g. in societies gradually transitioning to voluntary law), state-sanctioned entities might be eager to receive such recognition, for example to increase their customer base and avoid unnecessarily expensive legal process, without running afoul of state requirements for collective entities.
To avoid uncertainty regarding choice of law, personal recognition of a class of fictional entities could, and probably would, be accompanied by a choice of law provision. For example, a person’s law might limit recognition to entities that agree to settle disputes under some particular statement of voluntary law. Without such a clause in the voluntary law that provided recognition to the fictional entity, the recognition would be meaningless. Status as a person within voluntary law society requires, by definition, that the person has adopted a law applicable to the dispute at hand. Fictional entities cannot adopt laws, not being natural persons. Therefore, to be accorded legal status under voluntary law, the applicable law of the fictional entity must be defined by each natural person who chooses to recognize that entity. When a dispute between the fictional entity and a voluntary law society member arises, the fictional entity could agree to resolve the dispute according to the society member’s law. If that option was not acceptable, and it could not negotiate some other settlement of the matter, the fictional collective entity could forgo legal recognition under voluntary law in the matter. This would essentially remove any “corporate shield” erected to protect the property of the entity’s members. In general, the legal rights of collective fictional entities under voluntary law are subject to the laws of those they come in dispute with, without any restraint from operation of TROTWET.
Naturally, some voluntary law society members would choose to not recognize collective entities. Others, unrestrained by TROTWET, might recognize collective entities subject to unacceptably onerous liability laws. Therefore, it is inevitable that certain collective entities would not be recognized under voluntary law, even if voluntary law is widely adopted. This would have consequences for members or agents of the collective who possess reputations under voluntary law. To preserve those reputations, such persons might need to subject themselves to legal process under voluntary law even in cases where they are not directly responsible for the underlying harm. It will therefore often be necessary to determine whether or not, and to what extent, particular members of a collective are liable for harms committed by other members of the same collective.
If the collective is not legally recognized, the voluntary law to be applied by the jurist must boil down to determining the law applicable between the claimant and defendant, as two natural persons who have both adopted voluntary law. Whether or not a member of a collective is responsible for actions of another member therefore becomes a function of the member’s law and that of the person bringing the claim, under conflict of law rules such as TROTWET. Each member of the collective is free to choose his own law regarding “agency,” meaning the circumstances when one becomes legally responsible for the actions of another. Each can limit liability for actions by other members of the collective by adopting a suitable law regarding agency. But limitations that are too severe will likewise severely limit ability of those who hold to the limitations to recover from others. To provide reasonable recourse from harm by collectives, conspiracies or other agencies, most people will therefore adopt laws that permit “joint and several” recovery for harms against each and every member of a group of people (including both principals and their agents) that have caused the harm. “Joint and several” means that each person in any way responsible for the harm can be held fully accountable to pay for the entire harm. Without laws providing for joint and several liability, it would be trivial for collectives and conspiracies to exercise coercion without effective recourse.
For example, suppose a collective “Evil, Inc.” wishes to harm another while shielding all of its principals from liability under voluntary law. Each of Evil, Inc.’s principals (e.g., controlling shareholders and officers) could renounce joint and several liability, such as by limiting liability to direct actions only. Then, Evil, Inc. could hire a special agent (who could be an outlaw, or a society member with lax laws) to perform the heinous deeds desired by the principals, for example, dumping hazardous waste to avoid costs of proper disposal. Under TROTWET, principals of Evil, Inc. who did not personally direct the agent could not be held accountable for the actions of the special agent under voluntary law, even if they had tacitly approved the action. Actions for recovery would be limited to proportional recovery from the agents and their direct supervisors, one or all of which might be outlaws, or relatively poor; thus would legal redress be frustrated. A small fraction of the legal damages might be paid, if at all; while the beneficiaries of Evil’s conduct would not suffer any legal consequences. However, these beneficiaries would not enjoy tranquility for long. If the harm was serious enough, another collective such as “Revenge, Inc.”, will step in to exact revenge. Principals with overly lax laws regarding liability for actions of their agents will make tempting victims for the same treatment by others. For example, the executives of Evil, Inc. might find hazardous waste being dumped on their own properties by agents of Revenge. Thus, to avoid being victimized by the agents of their adversaries, principals would adopt reasonable laws regarding agency liability. Such laws could take various different forms, but would generally make principals jointly and severally liable for actions of agents made to further the principal’s interests. The agents would of course also be liable for their actions, and to protect themselves might demand indemnity from the principals, before accepting their offer of employment. Thus, liability for collective or other agency action can naturally be imbued by social pressure and enforcement of principles against hypocrisy, such as TROTWET, just as can liability for any other anti-social or destructive behavior.
Property can be held in the name of a collective entity, with the legal effect depending on the law of the person making a claim on the property. If the claimant recognizes the collective entity, and if this recognition is not contested by any representative of the entity, then the property can be used to satisfy a judgment under voluntary law, or as the basis for a counter claim by the entity. If the claimant does not recognize the entity or its recognition is not accepted, then the property can be reached only indirectly as an asset of a member of the collective, and cannot be used as the basis for a counter claim. For example, if Ted does not recognize PollutCo, and PollutCo’s agents and officers do Ted some harm, Ted can sue the agents and officers if they hold to voluntary law. If Ted wins a judgment, it can be satisfied from the assets of the agents and officers named in the suit. However the jurist may consider the money held in the name of PollutCo to be effectively owned by the defendants, because PollutCo is merely an unrecognized fiction in the case at hand. So if the employees and officers do not pay, the jurist may order that a lien be attached to the PollutCo’s accounts until the judgment is satisfied. This lien would not, of course be recorded in state records or enforced by state sheriffs, if a state exists and has registered PollutCo. It would be recorded by a private recorder of voluntary law liens, and enforced by a contingent-fee peace officer, a.k.a a “bounty hunter.”
Conversely, PolluteCo cannot make voluntary law claims against anyone that does not recognize it as a legal entity, because it has no inherent status under voluntary law except as a fiction. For example, it cannot assert property rights against those who do not recognize it as a legal entity. Accordingly, PolluteCo might protect property by appointing a natural agent (or agents) to hold it in trust for the benefit of PolluteCo. Each of these agents would, by contract and/or adoption of law, recognize PolluteCo as a legal entity and grant it certain rights related to the property, under a license or other agreement. Each of the agents would also adopt a form of property law that that is perceived as mutually beneficial by the pertinent executive of PolluteCo and by the agent. All legal enforcement of PolluteCo’s property rights would be done by the applicable agent, under that agent’s chosen voluntary law. The benefit of any judgements received would flow to PolluteCo by virtue of the trust agreement with the agent.
Just as natural persons can recognize fictional entities, can fictional entities recognize each other under a sort of quasi-voluntary law? Not without being under a legal system other than voluntary law. Law making by fictional entities belongs to another class of legal systems that includes law making by territorial-based fictional entities (namely states), and law making by property-based fictional entities (for example, by private defense/justice collectives under anarcho-capitalism). It may be convenient for fictional entities to deal with one another as if each were a sovereign natural person or subject to some higher authority that governs collective entities only. Therefore, even in a society otherwise wholly under voluntary law, we may expect disparate classes of legal systems to co-exist for indefinitely long periods of time. In a state of healthy coexistence, each legal system would be restricted to its natural and proper domain: voluntary law to legal issues involving one or more natural persons, and fictional law to issues exclusively involving fictional entities. Laws from one system might influence laws in another, but would not be directly applicable in alien domains. Laws covering fictional collectives might fall into two general classes: collective-voluntary law, in which each collective is sovereign and adopts its own laws effective against other collectives under a conflict-of-laws regime such as TROTWET, and collective-delegated law, in which associations of collective entities delegate sovereignty over law making for the entire association to a special collective.
Modern corporate governments, such as the United States, may be precursors of collective-delegated systems compatible with voluntary law society. If the United States were to recognize personal sovereignty as supreme, and rewrite its laws to govern participating collective entities only, it could persist indefinitely with voluntary law and collective-voluntary law systems, without any tension or clash between competing areas of sovereignty. Naturally, that is a big “if.” Yet, if the mass of its citizenry were willing to govern themselves as individual sovereigns, there can be little doubt that institutions of the old empire such as remained useful for organizing collective entities would seek to play the role of sovereign over the collective fictions that remained outside the sphere of voluntary law. If these vestigial agencies hold to the non-aggression principle (as would likely be the case if they recognized the supremacy of personal sovereignty and most individuals practiced voluntary law) they will compete for this sovereign role against more loosely-organized communities of fictional entities organized under a collective-voluntary law system. It may be that some social functions requiring collective laws are better served by one class of collective law or the other, so perhaps both classes could co-exist. This coexistence of voluntary law, collective-voluntary law, and collective-delegated law will be able to accommodate highly complex legal and social situations no doubt worthy of an entire branch of study, while always preserving the sovereignty of the individual against that of the collective. Individuals would be safely beyond the reach of coercive collective power, but collective social power would not be extinguished. Legal process would come in two fundamental flavors: individual versus individual, and collective versus collective. This blog focuses mainly on voluntary law, which is concerned principally with processes exclusively involving individual sovereigns.
Nonetheless, legal process between an individual and a collective could also occur under voluntary law, by mutual consent. Whenever a voluntary law society member decides to recognize a fictional entity by adoption of law, whether or not the fictional entity is also recognized by a state or by some other legal system by and for fictional legal entities, there is a possibility of an individual versus collective process. For the recognition of the collective to have practical effect, it must be agreed to by a managing principal of the fictional entity, either by preexisting agreement or by agreement at the time a dispute arises. Such an agreement may be made whenever the voluntary law member and the managing principal of the fictional entity both believe the agreement confers some advantage. For example, the managing principal might believe that participation in voluntary law provides improved public relations and more efficient legal process. A voluntary law member might also benefit from the more efficient legal process, and might believe that the voluntary law provides more just and socially beneficial outcomes than possible under state law. To a state regulator of fictional entities, voluntary law appears as merely another tool for dispute resolution, akin to private mediation and arbitration. The use of voluntary law by collective entities might find political opposition from state-licensed lawyers or other government-assisted legal cartels threatened by private dispute resolution beyond the reach of their monopolies. Such resistance would merely reflect political opposition to changes in the status quo, and not any fundamental shortcoming in dispute resolution under voluntary law. If voluntary law is to become widespread, it will certainly be accommodated by collective entities of all types, both state-recognized and not.
Accommodation of voluntary law by collective entities will depend on recognition of the collective entity by each individual of the multitudes who will practice voluntary law. Just as in other areas, social pressure can be brought to bear on collectives by the individual choices of society members in their adoption of law. It is impossible to predict exactly how collective entities might evolve, or what they might become, under this social pressure. For now, we can foresee some exciting possibilities, such as corporations and cooperatives competing for recognition from individual society members by developing and promoting more sensible and popular laws. The most successful collectives would attract the most members and supporters, and would thrive, displacing older forms based on political coercion. We can foresee systems for social cooperation in which equal rights, individual liberty, efficient division of labor, and complex massive collective projects can all thrive together, without any coercive taxation or regulation. We can foresee many diverse types of collective organizations coexisting and enabling very different lifestyles to be lived, side by side. We can foresee the end of wasteful paperwork and legal machinations to avoid paying taxes or to comply with regulations motivated by powerful special interests. We can foresee the end of cartels, corporate welfare, and other special privileges that enable the few to claim ownership or control over the many, by gradual abolition of the monopoly at the root of those evils.
Insisting on the sole sovereignty of the natural person will not disable collective entities, or banish them from voluntary societies. Quite the contrary. It is this true democracy, this rule by every person over herself under law published to all, which will free the collective to take on amazing new forms and accomplish unimaginably great and more perfectly moral things.
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Photo “Headless Sightings Exhibit V” Credit To Krocky Meshkin
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I’ve proposed in a prior post that a neutral jurist determines a law to be imputed to a fetus or to an infant, just as in other cases. The jurist, naturally, does this job without the benefit of any words from the fetus or infant. The imputed law is based on the best available indirect evidence, including the adopted laws of the parties and the prevailing norms in the child’s community. Although the jurist exercises discretion in imputing law to the mute infant, she does so subject to the objective constraints of discoverable evidence. If a jurist rules against the weight of the evidence, she puts her own reputation at stake.
To say that abortion by the mother is always prohibited, or conversely, is always permissible, is contrary to personal sovereignty at the heart of voluntary law. Any absolute rule on the legal status of a fetus would necessarily be based on either an arbitrary diktat of some ruler, or on a definition of “person” that falls outside of voluntary law’s foundational definition of personhood. A person is, according to voluntary law, a corporeal, mortal entity capable at some prior relevant time of language and legal discourse (among other things). Infants, fetuses, fertilized human cells, and the severely mentally disabled from birth fall into a special category that might be called “potential persons who have not yet (and may never) become capable of adopting and following their own laws, yet might become capable within their lifetimes.” For brevity, we may generally refer to such living beings as “dependent potential persons” or “dependent potentials,” as a general class including infants, young children and those born with severe mental disabilities. The fetus is a prime example of this class.
It might fairly be asked how imputing a law to a fetus that permits it to be killed without legal repercussions can ever be considered a voluntary choice of the fetus. As a living being, all fetuses (and zygotes and fertilized eggs) must be presumed to share the common instinct of all life: survival. Therefore to say that the fetus consents to its own self-destruction is to contradict its evident will to survive, and impose a law not of its own choosing. This argument is logical on its face, but consent should not be confused with legal consequences. We may be sure that no fetus or infant ever consents to its own destruction, and do not need to pretend otherwise. The question is what to do with those legally competent persons who, by some intentional or negligent act, have caused the life of the fetus to be taken away. There is no particular logic that requires that all such intentional or negligent acts must have legal consequences. On the contrary, both moral and economic considerations teach that sometimes the intentional killing of a fetus, however tragic, is morally justified, as when to preserve the life of the mother. From an economic standpoint, preservation of life generally requires wholesale destruction of its own seeds. Nature teaches us this in many instances, for example with egg-laying animals that may lay dozens or hundreds of eggs, of which few survive to adulthood. Even mammalian species often bear litters, of which few survive under normal conditions. The economics of life dictate that not every individual can survive to adulthood, and in times of great scarcity, difficult choices must sometimes be made.
In the face of these moral and economic realities, no sustainable society can enforce laws in which every individual package of DNA capable of growing naturally or artificially into a person is owed a duty of nurture. If such laws were to be enforced, there could be no legal abandonment or disposal of inseminated eggs. Mothers could be held liable for the violation of rights of miscarried fetuses. No natural society could consistently observe such an absolute rule. Exceptions to the duty to nurture have always been be made for one reason or another, and would always be made in every conceivable society. It is commonplace in every human society for dependent potential persons to be neglected or actively suppressed in the interests of sustainability of the social order on which the as-yet unformed persons depend. So it should be evident that elevating the universal survival instinct to the status of a socially-recognized law cannot be consistently or fairly realized; in actuality it is impossible because of inevitable clashes between fecundity and scarcity. Customs, rules, and laws regarding treatment of infants and fetuses have historically varied with the times and circumstances.
On the other hand, civil society also depends on reciprocal respect for the sanctity of life, which is threatened when the rights of dependent potential persons to live are callously disregarded. The statist approach to this tension is to proclaim one rule concerning practices such as abortion, infanticide and euthanasia, however arbitrary or divisive, or unevenly enforced. The voluntary law approach is more granular, based on the individual social circumstances of the dependent potential person, and therefore not arbitrary or inviting of uneven enforcement. The task of the jurist is to identify the law that the dependent person would most likely adopt, were it in the position of a caretaker or guardian. Were the jurist to simply ask what law comports with the dependent potential person’s will to live, no practical answer is possible, as argued above. The only legal inquiry with a practical answer is, essentially, is “does the applicable law of the parties under TROTWET depart from the prevailing norms to such degree that some other law should be applied?” In other words, if the dependent potential person had grown up in the social context of its caretaker or guardian, what law would it have adopted?
In the case of a fetus and most infants, there is no closer person to the fetus than the mother. Absent extraordinary circumstances, the mother’s law should be the law applied, when harm to a fetus is litigated. If deference to the mother’s law prevails, legal remedies to prevent or penalize abortion will very seldom be recognized unless the mother’s law provides for it. In rare cases, a mother’s law might be disregarded or modified if contrary to clear community norms, objectively determined. For example, if mother who has adopted a permissible adoption law moves and lives as a long-term member of a community in which nearly everyone has adopted a law that penalizes abortion, she may naturally experience difficulty in finding a credible jurist willing to impute her law to her fetus. A competent jurist might find that had her fetus grown up in the community in which she has chosen to live, as an adult it would have chosen a different law. The mother would therefore be unwise to have an abortion there, as legal results would not be predictable. Conversely, if a mother adopting a law that penalizes abortion chooses to live as a long-term member of a community whose members recognize no penalty for abortion, and after some sufficient time willingly aborts her fetus, legal penalties are unlikely to be enforced.
The imputed law of a fetus does not come into play in the case of legal actions against a doctor who performs an abortion, or by such a doctor against any attacker bearing an anti-abortion motive. Such controversies are decided under the laws of the parties. The fetus will not generally be a party to actions by a non-family complainant, for reasons explained in the following paragraph. When the fetus is not itself a party, the law that might be imputed to the fetus is not relevant to a choice of law analysis in these cases. Hypothetical disputes between an abortion provider and a third party “defender of fetuses” have been considered in an earlier post.
Imputed fetal law will not commonly be at issue, because disputes in which a fetus is a party will be rare. Something akin to the notion of “standing” will naturally limit legal actions by unrelated third party guardians. That limit “akin to standing” is the natural limit on the right to receive damages on behalf of an injured potential dependent person. Damages for ordinary murder will normally (assuming most victims prefer it) be payable to the estate of the murdered, and from the estate to the heirs designated by the law of the victim. In the case of abortion, the closest next of kin and likely imputed heirs will usually be the parents, who can be trusted to not sue themselves for damages. An unrelated third person will not stand to receive damages: under any reasonable rule, what reason is there to reward a stranger for the misfortune of a fetus?
There are some cases in which a rightful claim to damages arising from abortion might be enforced. For example, one parent might sue another to prevent an abortion or collect damages for one performed. Imputation of fetal law might arise in special circumstances such as disputes between family members, as when a related-party guardian sues a mother for damages on behalf of an aborted fetus, or in the unusual case where an unrelated guardian learns of another’s intent to abort, sues for an injunction to prevent an abortion from being performed. For example, a person who has paid a surrogate mother might (or might not) have a legitimate interest in seeing a viable pregnancy carried to term. Such claimants might sometimes seek imputation of a law to the fetus if the mother’s law is unfavorable to their cause, and the context clearly supports the imputation of some other law.
Cases that arise after abortion are analogous to litigation on behalf of deceased victims. The parties to the action are the victim and whomever the guardian is seeking damages from, for example, from the mother or from a doctor who performed the abortion. Where suit is brought on behalf of the fetus by an heir or legally potential caretaker, the applicable law is that of the fetus only, which may be imputed based on the circumstances. TROTWET does not apply, when law is imputed to a dependent potential person, as explained in a previous post. The neutral jurist will ask: were the fetus in the position of the mother, what law would the fetus hold? Absent other evidence, usually this imputed law will be the law of the mother, provided the mother has not recently changed her law merely for convenience’s sake. However, if the mother’s law is a rare outlier in a place where nearly all other mothers do not freely permit abortion, and where the mother plans to reside indefinitely, a jurist might conclude that more likely than not, were the fetus to grow to become a parent, it would likewise recognize a prohibition on abortion. In these very rare cases, a guardian might, for example, obtain a ruling requiring that the mother give birth and either care for the child or give it up for adoption. If a legal action is filed post-abortion, damages might be paid to the guardian or to some designated fund, for example, to a charity that represents the rights of the unborn, or that finds homes for orphaned children. Actual outcomes are likely to be highly varied and tailored to the context at hand, based on the voluntary law applied.
For emotional issues such as abortion or euthanasia, it is possible that some jurists may always impute a fetal or infant’s law with consequences for performing an abortion or infanticide, while others might always find abortions or infanticides non-actionable if performed with the mother’s consent, subject perhaps to other conditions. The approach suggested for imputing a law to the fetus provides a way to distinguish between mere consistency by happenstance, and unacceptable bias. If a jurist always rules one way despite hearing cases with different mothers’ laws, absent extenuating circumstances the jurist is plainly biased. The credibility and livelihood of any jurist who hears a large number of abortion cases and consistently rules one way regardless of the evidence at hand would quickly be destroyed. Any rulings tainted by that jurist would be rendered unenforceable, in any community that values neutrality in due process of law.
It might be feared that communities in which juristic neutrality is not valued might come to exist. Suppose, for example, a community is intolerant of jurists who are unwilling to rule one way or another, in the sense that the rulings of any jurist who rules against community norms are practically unenforceable. Widespread enforcement bias might sometimes lead to results contrary to basic justice under voluntary law. However, absent concentration of capital and political power such as states enable, maintaining enforcement biases contrary to reason and justice over large areas for long periods of time will not be possible. If there is a sufficient market for justice of one flavor or another, providers will spring up to meet it.
It can fairly be asked whether providing jurists with the power to impute law to fetuses and other potential persons grants too much power to the jurist. Does relying on community standard bring back the state in another, more subtle guise? No, because there is no actual “standard” outside of a consensus between jurists of good reputation. In fact the opposite problem of disagreement between equally reputable jurists will be more commonplace. Such non-uniformity, if intractable despite good faith efforts, may be evidence that the supposed community standard is not clear enough to support a legal ruling. The potential person will therefore have its rights disposed of under the more usual tool of TROTWET applied to the laws of the parties, or not at all.
Suppose, for example, that the father of a fetus sues the mother for an injunction to prevent an abortion. A first jurist holds that community standards require the pregnancy to be carried to term, under the circumstances at hand. The mother appeals, bringing the case before a second jurist. The second jurist finds there is no community standard regarding abortion, and rules that under the mother’s law the abortion cannot be prevented. If the jurists are of similar reputation, enforcers willing to enforce the first jurist’s ruling will be hard or impossible to find. Reputable enforcers will not want to risk a claim of damages based on the second jurist’s ruling. Although the power to impute a law under limited circumstances grants discretion to a jurist, such discretion cannot be exercised absent a very compelling reason that would be clear to every reputable jurist available to hear the case. Thus, the power is merely a sort of check against loathsome conduct by caregivers, and cannot function as a tool for leveraging judicial influence beyond the constraints of personal sovereignty.
Once a child is born, the adopted laws of other parties to litigation may be given greater weight, as the infant is no longer dependent solely on the mother for survival. In any event, controversies over abortion are no longer possible, once the baby is born. Although repugnant to most modern cultures, infanticide is not unknown in present or historical societies, especially of infants born with severe genetic defects. The legal questions under voluntary law are not much different than abortion, with the important difference that the infant is capable of surviving independently without care for a considerable period of time. Social norms would provide to an abandoned infant a law requiring some reasonable duty to provide care, even if parents abandoning an infant somehow lacked such a law. The standard of what is “reasonable” under the circumstances will vary based on context. For example, what is reasonable in New York City or Omaha may differ from what is reasonable in isolated, resource constrained societies, for example, aboriginal Amazonians or a small colony on the moon. Infant abandonment has been considered in the previous post.
Other cases that touch on the legal rights of dependent potential persons may include abuse, euthanasia, competing caregivers, probate and right to inherit, and actions by or against a legal estate of the dependent potential person. To determine what law to apply, the jurist first determines whether or not the legal interests of the dependent potential person are at the heart of the case. Essentially, the jurist determines whether a claim based on harm to the dependent person, or a claim for or against a property interest of the dependent potential person is at stake. If so, the jurist first determines and imputes a voluntary law to the dependent potential person, and then applies the imputed law. If no such claim is at stake, the jurist applies TROTWET to laws of the parties. Thus, the dependent potential is a party in cases of abuse, infanticide, euthanasia, or the infant’s property rights.
The potential person is not necessarily a party in cases of competing caregivers (e.g., a custody dispute), absent an allegation of abuse. Therefore TROTWET applied between the competing caregivers determines the outcome. The weaker law in a custody dispute is like antecedent basis in property law: the law with the most stringent antecedents to a claim of custody wins. The jurist may evaluate stringency based on some community standard. For example, suppose a father’s law states that sole custody should be awarded to the parent most capable of providing economic support, whereas the mother’s law states that custody should be awarded to the parent who spends the most time personally caring for the child. We can hope that such disputes would be very unlikely because all responsible parents will adopt mutually agreeable laws providing for shared custody in the best interests of a child, before parenting a child together. Nonetheless, some children are conceived and borne without due forethought, and just such children are more likely than others to become subjects of custody disputes.
How is a jurist to determine the weakest of competing custody laws? Which antecedent is more “stringent”: providing economic support, or providing personal care? The child needs both types of support, and both require roughly equivalent measures of exertion. If both parents have demonstrated support for the welfare of the child, a sage jurist might declare a “tie” and help the dueling parents work out a shared custody arrangement. If one of the parents has been negligent, it little matters which law is applied, because under either law, the custody will be awarded to the sole supportive parent. Where the custodial claim is spurious, it might easily be recognized as such with or without application of a comparative principle such as TROTWET. A wise jurist does not seek perfect compliance to any idealized mathematical model for applying voluntary law, “stringency” included, nor seek to play logical games for their own sake. Instead, the wise jurist seeks to do justice within a framework that respects the personal sovereignties of the parties and of the dependent potential person involved in the dispute more than rules imposed from the outside. Concepts such as “stringency” are suggested here as guides to realizing underlying principles of justice in specific circumstances, and not as infallible laws applicable in all circumstances. Where these concepts provide no clear answer, or provide a clearly unjust answer, the ruling should be made on the basis of more pertinent and illuminating criteria.
The case of euthanasia of a once-capable dependent differs from the case of the dependent potential person. The case of a mercy killing would be judged under the applicable law of the one killed, as with any other case involving two parties. It will be almost guaranteed, however, that the person performing the killing will have adopted a law that permits assisted suicide or perhaps mercy killing in limited conditions. For example, killing a person with the permission of the caretaker, or by the caretaker, of a chronically uncommunicative dependent in a medically incurable state with an extremely low chance of recovery, might not be regarding as a cause for any action. For TROTWET to excuse such mercy killing, it will be important that the rule is written as positive law and not as an affirmative defense, as has been noted.
A person opposed to mercy-killing should therefore appoint a caretaker who is also opposed to mercy killing, to avoid a hastened but merciful demise. But what if the killer’s law does not require the consent of the dependent’s chosen caretaker? Such a person would be unnecessarily inviting legal action by offended caretakers. Mercy killers operating without consent would not normally exist, because it would be more expedient for them to pursue the occupation of mercy killing with caretakers’ consents to avoid legal and extra-legal risks.
Supposing, however that the mercy killer has an uncanny knack for selecting suitable victims against caretakers’ wishes, would there be any legal recourse? The bold mercy killer would inevitably face charges of ordinary murder from angry caretakers. If the killer had failed to adopt a law against ordinary murder, he would quickly wind up dead at the hands of an aggrieved caretaker. Unless, of course, every one of the caretakers lacked any basis for showing that the killer had acted beyond the authority of his own reasonable mercy-killing law. In which case, the killer’s aptitude for selecting suitable victims would be uncanny indeed.
What if the mercy killer acts under an unreasonable mercy-killing law? Such a killer faces several risks. For one, a jurist might hold that the unreasonable mercy-killing defense is an affirmative defense, which will not be applied under TROTWET. Second, by publicly adopting an odious law, the killer shows himself to be a monster, losing friends and making enemies. Finally, the killer risks being mercy-killed unreasonably by any other person, if his law is deemed to be a positive law, under principles of TROTWET as have previously been explained.
Intertwined voluntary law societies obviously cannot and should not be expected to provide one uniform resolution to divisive and difficult social issues. These societies will instead permit experimentation, transparency and above all, acceptance of conflicting beliefs on difficult moral and legal questions that fit within its foundational limits. Abortion, infanticide and euthanasia provide examples of such difficult questions, which are fully capable of resolution within voluntary frameworks. In the case of the laws to be applied when harms to dependent potential persons are litigated, voluntary law provides a framework for dispute resolution that is both considerate of the practical realities of sustainable societies, and deeply rooted in respect for the life and self-sovereignty of every society member, present and potential. Voluntary law can do this without contradicting the essential meaning of a “person” as one who is capable of acting intentionally and deliberately with knowledge of articulated laws governing social conduct.
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Photo credit to Suparna Sinha
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