Overview, Public Interest Laws, Voluntary Law

Protection of the Environment And Other Social Action


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Photo Credit to Karen Dorsett


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

Conflict of Laws, TROTWET, Uncategorized

The Power of TROTWET


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

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

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

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

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

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

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

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

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

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

Conflict of Laws, Introduction To Voluntary Law (Book)

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

Balance of Tools

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Coexistence, Introduction To Voluntary Law (Book)

For The Statist: Fear Not Voluntary Law


Military Parade

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

Photo Credit to Gerwin Filius “Military Parade”


Under Creative Commons CC BY-NC-ND 2.0

Historical Commentary, Introduction To Voluntary Law (Book)

Just A Bit Of Reflection

Just A Bit Of Relection

Just A Bit Of Reflection

This essay compares voluntary law with what has been done or proposed before, pointing out sundry similarities and distinctions. No attempt is made to provide a historical treatise of any kind.

Sometimes people who are newly considering voluntary law will classify it as “just like” something that has existed before. “Oh it is just like the law merchant” some might exclaim. Or, “it is just like” any number of private law institutions, such as Canon Law or Jewish Law, “just like” British common law, Keltic traditions, or various tribal forms, or “just like” some specific past or postulated future form of anarchy. In a way, they are right! Voluntary law grows out of and shares attributes with various legal systems that arose out of voluntary (or partially voluntary) communities. It also resembles at least one contemplated future form of social organization: anarcho-capitalism. But voluntary law should not be confused with these prior institutions or ideas, and is distinctive in its own ways.

Alexander II

There are of course an overwhelming number of historical examples of voluntary communities forming and establishing their own dispute resolution or justice systems. Many of these examples are related to various religious or moral systems. Many others relate to guilds or professions. Still others relate to particular causes, interests or pursuits. Some are purely pragmatic, such as brigands, gangs, and mafias, and do not eschew aggression to serve their ends. Others seek to implement less aggressive forms of social organization, whether for pragmatic, philosophical, or for both purposes. Whatever their nature or purpose, most such voluntary societies have managed to coexist within the dominion of legal systems established by nations or empires; a minority have sought to exclude use of any other legal system; some have sought dominion over others; some were in fact examples of nascent territorial governments. So numerous and well-known are the examples, that it is unnecessary to identify any specifically here.

A useful distinction may be made between an empire, nation, territorial government or tribe, any one of which confers membership by accident of birth or subjugates by conquest, and a voluntary society that requires some intentional action on the part of the member as a precondition of membership, and does not impose membership on any unwilling person. As it relates to the genesis of justice systems within societies, this distinction is not of foremost importance. Nations and various voluntary societies are alike in how their justice systems evolve: first a community forms, and as the community grows and becomes better defined, a justice system is developed; after becoming customary, the system is by diktat or in all practical effect imposed on all the community’s members. Every community member either lives with the justice system, with all its warts and wrinkles, or leaves the community. No individual member of the community is permitted to define her own law. Law making for the community is monopolistic. There is only one authoritative source of law for each community, once the justice system is entrenched.

Discourse With Natives

Discourse With Natives

In contrast, the genesis of justice systems in a voluntary law society is different: first laws are defined; then they are adopted and published by individuals, only then can communities be formed once two or more people have adopted and published compatible laws. The community persists for so long as the two or more people do not revoke their prior adoptions. In other words, a voluntary law society consists by definition of that set of people who have personally adopted compatible laws, regardless of whether or not each of the people have any relationships with each other or even know of one another’s existence. There is no monopoly on law making. Instead, there are as many potential sources of law as there are people in the community. The community does not exist except by adoption of compatible laws. Community coalesces around compatible laws, instead of laws coalescing from authority structures of existing communities. Laws are compatible either by being the same, or being reconcilable by a mutually accepted set of principles, such as TROTWET.

Constitution of Athens

Constitution of Athens

Constitutions, bylaws, and sets of moral (e.g., religious) precepts provide examples of preceding laws, which are sometimes defined prior to organization an associated group. A nation or voluntary association may adopt founding organizational documents before it is deemed to have formed. Such organizational documents set up a structure and process for further rulemaking by some subset of the association that is formed, for example, by its elected officers or by some process that often ultimately depends on electoral majorities. Republics and democracies are examples. Corporations and other collective associations provide other examples. Although constitutional republics and democracies may be preceded by organizational documents, they make territorial and temporal claims of sovereignty that sweep in subjects who never agreed to the original founding documents or to the layers of law added afterwards. Any resemblance to voluntary law is faint indeed. Except for a handful of “founders,” the sovereignty of the state extends to vastly more people than have affirmatively assented to its constitution.

Moreover, while citizens sometime swear to uphold the constitution of a state, such acts do not amount to statements of personal principle, generally speaking. More often than not, the oath is required as a condition for access to some office, agency, or license offered by the state. If the ritual oath is refused, the opportunity that it accompanies is lost. Whether or not one has taken the ritual oaths has no bearing on any person’s fundamental rights or responsibilities under the law of the state to which the oath is sworn. Instead, such oaths are ritual acts that accompany and solemnize the assumption of state office or license. In contrast, under voluntary law the act of public adoption is the primary, if not sole, determinant of the declarant’s legal rights and responsibilities.

Florida's 37th Governor

Florida’s 37th Governor

Another example of antecedent declaration may be found in corporate founding documents, which come before formation of state-recognized organizations. The founding documents inform members of the structure of the organization, but are also a requirement of an external legal system. For example, a California corporation cannot be defined without adopting a bylaw that is consistent with California law. By organizing under the law of a state, the entity effectively adopts the corporate law of the state it forms in, for resolutions of disputes between its various members. While the association of stakeholders that is centered on corporate entities is normally entirely voluntary, the scope of the bylaws is limited to matters that affect the body as a whole, such as its proper purpose, its manner of government, rights and responsibilities of members, shareholders, or other stakeholders, and other organizational matters. Corporate bylaws are of limited scope, and are deemed binding on the organization as a whole and its offices, instead of being personally applicable. Corporate bylaws provide only a very dim analogy to voluntary law.

Membership organizations with dispute resolution systems provide a closer analogy to voluntary law. Voluntary trading groups like time banks, online auction or trading groups, cooperatives, fraternal organizations, labor unions, churches and other religious congregations, and many other types of voluntary organizations provide some form of dispute resolution rules, often accompanied by a code of conduct. Indeed, depending on their organizational rules, membership groups may blend smoothly into voluntary law and coexist with it, as has been noted above.Odd Fellows

Some voluntary associations aspire to provide a full range of legal services for their members. One recent example is BitNation. BitNation is distinctive for its reliance on decentralized blockchain technology to meet the communication needs of its membership. It is also unusual for advertising itself as an alternative to the territorial nation-state. As of this writing, members of BitNation agree to use “British Common Law” to resolve disputes among themselves. It is unclear what this will mean in practice, for example, what forms of British Common Law are acceptable, and what sort of due process is required in different circumstances. It is nonetheless a step in the direction of voluntary law, and may lead to development of technologies that enable formation of truly voluntary law societies in the future. It may itself evolve into implementing voluntary law by at least two pathways. For example, were BitNation to recognize the principle of personal sovereignty and join a consortium of “bit nations” each with its own distinct law and with a sort of “inter-bit-national” law that recognized basic principles of voluntary law and provided conflict of law rules, the consortium and each of its members would be a voluntary law society. In an alternative, BitNation might adopt principles of voluntary law and allow its own members to express and be judged by their own various personal honor codes or laws. Currently, however, BitNation has only one authoritative source of law, albeit vaguely defined.

Previous voluntary membership groups lack any recognition of personal sovereign power to make and adopt one’s own law, without being expelled from the membership society. Uniquely under voluntary law, retaining the benefit of the community does not require that any person be judged by the law of another, so long as a set of rules for resolving conflicts of law are agreed to.
Other distinctions with voluntary law may include the limitation of membership in the group to a set of specially qualified persons. In contrast, membership in voluntary law society is equally available to all persons who possess the philosophical attributes of a person able to make and follow laws. Voluntary law draws the boundaries within which the benefits of community can be enjoyed as broadly as logically possible, and is scalable to a society of practically limitless size. Another distinction may include a limited scope of dispute resolution. For example, Robert’s Rules provides a process for resolving disputes over conduct at a meeting, or malfeasance towards the organization. Few membership organizations enforce rules beyond the scope of the limited purpose of the group. In contrast, because the ultimate sovereignty is personal, voluntary law places no limits or requirements on the law, beyond the three pillars. It can be as comprehensive or as limited as each person desires.

Voluntary law society does not easily or naturally arise from a state of nature. Empirically this is true; voluntary law has never managed to evolve straight from nature and has never been practiced on a large scale. Arguably, it has been practiced in some unspoken ways in families and small communities, to some extent; but it is not remarkable unless and until it can be extended to large societies of strangers. Scaling up will require things like legal registries and reputational networks based on compliance with self-adopted laws. These niceties – such as records of personal laws and neutral reputation networks — cannot easily be developed where every day involves a struggle for survival. Institutions such as reliable record keeping systems and a sense of equality are not “natural”; they have evolved and become more prevalent as the idea of the state has evolved from one resting on the power and property of a monarch, to technological socialist democracies and republics that rest on some theory of public benefit. Although pervasive in their regulation of human affairs and relentless in preservation of their own power, these more modern forms of the state generally acknowledge basic human rights such as freedom of speech and thought, equality of persons, and the right of free association. It is within an established framework of basic rights and a sufficient information infrastructure that institutions of voluntary law, such as publication and adoption of law and reliable reputational records, can take root and grow. Capital surpluses and leisure time that exist in some state-governed territories may also facilitate experimentation with new forms of self-governance. Voluntary law is not so much an enemy of the state as it is an evolved descendant of it, with the potential to replace monopolistic territorial governance, if found useful by adequate numbers of people.


Empire Builders

It is sometimes difficult for people to imagine that a generally well-ordered society can exist with diverse and conflicting laws, despite the well-known examples that exist even today. This skepticism is not logically justified. Nations, states, and provinces often enact conflicting laws, and the law to be applied in cases involving people from different jurisdictions, or places subjected to overlapping claims of authority, is not always clear. A well-established branch of law exists for the purpose of sorting out such conflicts of law, and it is not hard to find a lawyer or judge aware of basic principles involved. In the world of territorial governments, conflict of law principles rest firmly on underlying principles of territoriality. There are other systematic ways of resolving legal conflicts without relying on territorial boundaries, however. A large portion of this book is dedicated to explaining one such system, TROTWET. Existing conflict of law systems show that a single unitary set of laws is not a prerequisite for a well-ordered society operating under due process of law.

Czar's Borderland Pirate

Czar’s Borderland Pirate

Many communities are not formally organized, but observe customs and basic principles that preserve basic order and make malfeasance punishable. Such communities might be called “organic anarchies.” There are many documented historical examples of organic anarchies, usually in frontier areas: the sixteenth century Anglo-Scottish borderlands; nineteenth century North American so-called “Wild West;” as well as many tribal areas in Southeast Asia, the Amazon, and Africa, to name a few. In these frontier areas far from the reach of kings, republics and empires that tend to form in richer agricultural areas, legal customs develop organically. In some cases, judges or tribunals develop to resolve disputes according to established custom. These organic anarchies are precursors to a state – not as matter of logical necessity, but as an empirical fact of history. Everywhere (or nearly everywhere) such conditions have prevailed, the dispute resolution processes of the frontier have eventually been assimilated into a state of one kind or another. It may be that such anarchies can persist in remote places indefinitely, and counter-examples of backwards evolution from a state to anarchy may perhaps be found. But even if lawless frontiers re-emerge in areas previously ruled by states, the anarchy will persist for only so long as the conditions that prevent the emergence of a state prevail.

It may be debated whether the social criteria that give rise to the state are mainly psychological, or rest on economic factors. Some say government as we know it is merely mass psychology at work, as argued in The Most Dangerous Superstition by Larkin Rose, or as used to advance the story in the fiction of And Then There Were None by Eric Frank Russell. Others argue that the idea of the state arose out of the rise of capital surpluses, for some fundamentally economic reason. Regardless, the laws and customs of even anarchistic frontier areas are based on territorial boundaries, however loosely defined. If one resides in such areas, one will be subject to the prevailing customs, regardless of one’s views on their morality or sagacity. There is no personal sovereignty over law making, in such societies. Thus, frontier anarchies are also distinct from voluntary law.

Hypnotized Hen

Hypnotized Hen

Looking more to the present, movements that resemble voluntary law are easier to spot. One such movement is the development of standard copyright licenses by the nonprofit organization “Creative Commons.” People who wish to license their copyrightable content for use without payment of a royalty, subject to certain conditions such as attribution, may do so by referring to one of the standard licenses published by Creative Commons or any competing license, for example a “copyleft” license. Such references to standard licenses resemble an adoption of law under voluntary law. However, there are some differences: a copyleft license is form of contract, and for all present-day copyleft licenses, the underlying law is that of a state. Copyleft provides no stateless alternative for resolution of disputes arising under its licenses.

Voluntary law was inspired by anarcho-capitalism, so it is no surprise that it resembles anarcho-capitalism in many respects. For example, one form of anarcho-capitalism written of by Pete Sisco, “contractual republics,” emphasizes the right of any two people to specify every condition of an agreement between them, including defining a code of law under which the agreement must be interpreted. Essentially, this is freedom of contract as we know it today, but untethered from regulation by a state. Under anarcho-capitalism, without universal respect for the same property rights, there is no legal basis for resolving competing claims. For example, competing claims between hunter-gatherers who do not recognize titled forms of land ownership and farmers who rely on a system of land titles cannot be resolved except by force, with one or the other view prevailing. Accordingly, being generally peaceful people who wish to avoid violent conflict, anarcho-capitalists will argue passionately about the most optimal or best property rights rules to follow. In contrast to anarcho-capitalism, voluntary law rejects any universal notion of property beyond self-sovereignty, instead relying on equality of persons, personal sovereignty, and publication of each person’s personal code of honor as the basis for society. Conflicts are legally resolvable even when the parties do not recognize the same property rights.

Berkman Addressing the Anarchists July 11, 1914

Berkman Addressing the Anarchists July 11, 1914

Like anarcho-capitalist societies, contractual republics would rely on a universally applied property rights regime. The citizens of each contractual republic, by virtue of holding to the same common agreement, will naturally hold to the same view of property rights. Different contractual republics may recognize different property rights, but there is no legal mechanism for resolving disputes arising out of fundamental disagreements over property rights, or other legal conflicts. Also, contractual republics use a different mechanism for defining laws: agreement of at least two people instead of independent public adoption. Hence, changing one’s law entails a sort of breach of contract in every case. Contractual republics might therefore be somewhat less adaptable in their ability to adjust laws to suit changing conditions and beliefs, than voluntary law societies.

Equivalent results may be realized by contractual republics and voluntary law societies, under some conditions. For example, results may be very similar where at least two conditions are satisfied: first, where everybody holds to the same definitions of property rights; and second, where the system of cooperating contractual republics is sufficiently diverse to provide a life-sustaining republic for every firmly-held minority viewpoint on legal rights and obligations. Where these conditions are met, contractual republics and voluntary law societies may converge on the same outcomes. In every other case, they may be expected to diverge substantially, and every other case might be the norm. It is doubtful whether these two conditions can ever be met, in reality. Much more could be said about differences and similarities between voluntary law and various forms of anarcho-capitalism, but this introduction will not endeavor to say it all.11222227364_22be3d2ca8_z

Voluntary organizations for developing standards, codes and rules are well known in many contexts. Open-source application development groups and technical standards committees provide some examples. It might be said that open-source software developers have blazed a trail for “open-source” voluntary law development. There are many similarities between open-source code development and voluntary law development. In both cases:

• The “code” is open for contribution from anyone who can write useful, reliable code.
• Community leaders review contributions and publish standard versions, but non-standard versions or “forks” are not prohibited.
• Individuals produce and use customized variants and add-ons.
• Community acceptance and network effects determine the adoption rate of any given version, variant, or add-on.
• Community activity creates an eco-system that supports economic transactions around freely distributed codes.

288px-Opensource.svg_12The very well-tested open-source model is ripe for adaption to development of voluntary laws. The success of the open source movement has proven that code writers can be incentivized to produce complex, useful code for reasons other than direct payment for code-writing services. Thus, there is reason to hope that the voluntary law model may likewise be economically feasible. Besides these similarities, there are some differences to consider. For example:

• Voluntary law development adapts to changes in normative preferences, and less so to changes in technology and aesthetic preferences as in open-source coding.
• There is diminishing incentive for continual development as the law matures, in contrast to technological development that often feeds more technological development.
• Harmonization between legal systems is a critical concern for most legal communities, while software communities are more self-focused.
• Software programming requires special technical knowledge that most people lack, but any thoughtful person can write a law.
• Successful laws must accommodate and bridge disparate normative preferences, unlike computer programs.
• Voluntary laws tend toward simplicity and stability the longer development proceeds, in contrast to software that tends to grow and become more feature-laden.

None of these differences make voluntary law less economically feasible or less likely than open-source software development. On the contrary, the anticipated tendency for voluntarily selected legal codes to stabilize and simplify, and the lack of need for special technical skills, suggests that the long term economic costs of code development for voluntary law will be much less than for open-source code development. Conceivably, well-developed and diverse sets of voluntary laws can be developed for the entire world, and translated into numerous languages, for much less than the combined total of open source projects active today; perhaps even for less than a single large international open-source coding project. The reason it has not happened is because people do not believe that writing and publishing personal codes of honor has any useful value. The thought of everybody picking their own law is too new and too strange of a concept. Very few people have ever considered the possibility, and few that do think it a useful idea. But once voluntary law has been convincingly demonstrated, and its utility is proven, voluntary law can be adopted very rapidly. The economic barriers to widespread adoption are practically nil.Coding Freedom

No prior system makes personal sovereignty the basis for law making, assigning all authority and responsibility to the individual. Whatever each person chooses is their own law, to be applied to their own conduct. This is not a boast made on behalf of voluntary law. It is a check on your reading comprehension. At most, prior voluntary associations require voluntary delegation of law making power to some subset of the association, e.g., a majority of members, a committee, a founder, or group of elders. Voluntary law is revolutionary in that aspect of declaring each person sovereign over herself, and only herself. In another aspect, voluntary law is evolutionary and firmly rooted in the past. It freely permits and will make use of rules and methods for dispute resolution and due process of law that have proven useful through the ages, while making use of newer developments such as open-source coding and encrypted public registries such as block chain (Bitcoin) technology. It is new, but not that different.

Coexistence, Introduction To Voluntary Law (Book)

Coexistence With Other Legal Systems

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Photo Credit to Raymond Zoller

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

Enforcement, Introduction To Voluntary Law (Book)

Enforcement of Judgments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ensuring That Judgments Are Just

quality control

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Modularity and Conflicts Between Voluntary Laws

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

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

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

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

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

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

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

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