Conflict of Laws

Why So Much on Conflict of Laws?

Cart Before HorseVLDA has not even published a single substantive law, why is it so busy developing conflict of law rules?  Isn’t that putting the cart before the horse? Fair questions.  But one cannot understand voluntary law, if one does not understand the importance of plausible universal conflict of law principles to the basic premise of voluntary law.

Voluntary law is based on the premise that no law is legitimate unless previously voluntarily adopted by the person on whom it is enforced.  Because people by nature hold different moral preferences, often very deeply so, alternative laws and groups of people holding to different voluntary laws (i.e., different voluntary law societies) that are not separated from one another by territorial boundaries must coexist.  The accident of one’s location cannot be a controlling factor in determining the law to be applied.

In this environment, conflicts between people belonging to different voluntary law societies are inevitable.  Since there is no universal substantive law, there needs to be default conflict of law rules (also called “universal” rules) for selecting the law to be applied to inter-society conflicts, in the absence of any prior agreement on the matter.

The need for default conflict of law rules does not preclude members of different voluntary law societies from adopting a common set of conflict of law rules different from the default set.  Where all parties to a dispute have previously adopted the same conflict of law rules, there is no need to use the default set.  The need for a default set exists because there is no way to guarantee that all parties to a dispute will agree to use the same conflict of law rules.  In such cases, the default set provides the only option for resolving the dispute without forsaking voluntary law entirely.  The default set of conflict of law rules therefore needs to be neutral and sound enough to gain widespread if not universal acceptance as the rule of last resort for any person who would live according to voluntary law.

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

In the absence of default or previously agreed-to conflict of law rules, the options for resolving conflicts in which the parties cannot agree on the law to be applied are limited to extra-legal remedies or appeal to a non-voluntaryist authority.  Either of these options breaks the system, rendering voluntary law ineffective and inferior in this respect to authoritarian legal systems.

More fundamentally, a house divided against itself cannot stand.  Without generally accepted conflict of law principles, the pluralistic nature of voluntary law will lead to division.  Difficult disagreements will arise over which laws to apply in disputes between members of different voluntary law societies.  These differences may become every bit as bitter and divisive as political fights over moral preferences in statist institutions.

So it’s important to conceptualize practical and morally compelling conflict of law rules as a foundational issue.  Once the foundation has been laid, the focus will shift to building the matrix of voluntary law that will stand on the foundation, which consists of the core principles and the universal conflict of law rules already developed or now under development.

The VLDA does not want to invest in a system of voluntary laws that is vulnerable to divisive politics, or that is notably inferior to authoritarian systems in any respect.   Therefore it seeks to demonstrate, at the outset, that a system of voluntary laws can make use of a universal system of conflict of laws, without being exploited by evil doers or accidentally producing results that incentivize evil behaviors.  The goal is to satisfy reasonable expectations in disputes between people holding different moral preferences and different laws, based on the fundamental principle of reciprocity.  Results may be different from, and hopefully better than,  results from authoritarian legal systems.  All differences are illuminating.

The most difficult issues in universal conflict of laws for voluntary law societies have been discussed in sufficient detail to create confidence in the plausibility of VLDA’s mission.  There are only a few loose ends to wrap up, and then it will be on to the next job of constructing the matrix of laws.  Meanwhile, new and surprising things about voluntary law are being learned all along the way.

Conflict of Laws, Version Updates

Jurisdiction and Update to Conflict of Laws

Jonny has again updated the universal conflict of law rules.  The rules have been simplified, and hopefully improved.

First,the rules are updated to include the “No Hypocrisy” rule discussed in the immediately preceding posts.  This was done by adding a new last sentence to paragraph 3(a).  Please see the preceding posts for further discussion of the No Hypocrisy rule.

Second, all rules dealing with selection of law in cases where either of the defendant or plaintiff has not adopted a voluntary law are removed.  Such provisions are unnecessary, because the existence of a claim requires that the plaintiff has adopted a voluntary law.  Also, for the defendant, voluntary jurisdiction over the person requires that the defendant has either adopted a law prior to the claim arising, or will do so afterwards because she prefers to resolve the claim in a voluntary forum.  So it will always be possible to determine the laws that have been voluntarily adopted by plaintiff and defendant.  This is in essence a jurisdictional aspect of voluntary law.

Adoption by Choice, Erie PA

Adoption by Choice, Erie PA (Photo credit: hbimedialibrary)

Jurisdiction over a person in voluntary law is always voluntary.  It arises by the person adopting a voluntary law sometime prior to the adjudication of the claim.  After having agreed to appear, if the person has not already adopted a law pertinent to the case, she will certainly do so prior to the adjudication to influence the outcome of the process as much as possible.

Late (post-claim) adoptions of voluntary law may occur frequently in transitional societies including both voluntary law society members and non-members, when a member decides to bring a claim against a non-member.  To avoid being sued in a statist court, the defendant may join a voluntary law society by publicly adopting a published voluntary law.  At that point, the plaintiff must either proceed in the voluntary law forum and forsake any state-imposed remedy, or sacrifice his reputation as a voluntary law society member and become subject to liability under voluntary law for unnecessarily resorting to a statist court.

This jurisdictional rule allowing late adoption of voluntary law facilitates expansion of voluntary law societies.  Once dispute resolution services of competitive quality become available, non-adopters of voluntary laws will naturally be drawn into voluntary law society membership to take advantage of the unique and beneficial qualities of voluntary law for defendants, like the ability to control which law is applied in a dispute resolution and lower process costs due to free competition in dispute resolution services.

Some short-sighted persons may craftily adopt and renounce voluntary law for opportunistic reasons.   Such persons may sometimes escape liability under voluntary law, but will quickly destroy their reputations and currency in voluntary law societies.  They will be few and transitory.

Conflict of Laws

The No-Hypocrisy Rule

It is self evident that equal treatment under the law requires an absence of hypocrisy.  Equal treatment requires that each are judged under the same measure as each would judge others.  That whatsoever a person metes out, is meted back.

Cain and Abel. Byzantine mosaic i =n Monreale

Cain and Abel. Byzantine mosaic i =n Monreale (Photo credit: Wikipedia)

Under an authoritarian system, the same law can be imposed on all, and the fiction of equal application promoted.  This is a logical solution, although horribly idealistic and impractical.    Those in power are never subject to the same laws they impose on others, either openly by holding an elite status, or secretly by  corruption.  In a system of voluntary law societies, such fictional solutions are unnecessary and impossible.

Instead, we have the dilemma of choosing the law to apply in a dispute between persons who hold to conflicting laws.  Under the basic principle of voluntaryism, we must generally apply the defendant’s law.  To disincentivize opportunistic adoption of law by persons set on evil deeds, this rule can be tweaked to impose the most severe law — the “law of greatest liability” — adopted by the defendant at any time since just before the legal complaint at issue first arose.  So far so good, but some unfairness is evident under this rule, in that persons adopting more severe laws are vulnerable to being sued by those who have made themselves invulnerable, or less vulnerable, by adopting less severe laws.  Such a system might create too much pressure for all to adopt laws of minimal or no liability, and thereby undermine the usefulness of the law for proscribing appropriate remedies for wrongs, and providing incentives for legal settlement instead of extra-legal direct retribution.

To avoid this outcome, plaintiffs should be barred from enforcing any law of greater liability than the plaintiff has himself adopted.  This is the “No-Hypocrisy” rule mentioned in the previous post.  In other words, if (and only if) the defendant’s “law of greatest liability” results in greater liability than the plaintiff’s “law of least liability,” then the dispute must be decided under the plaintiff’s “law of least liability.”

Generally speaking, applying the Defendant’s  Law and No-Hypocrisy rules together is almost logically equivalent to simply applying the law of least liability between plaintiff and defendant in any given circumstance, but not exactly so.  For if the plaintiff’s “law of least liability” results in greater liability than the defendant’s “law of greatest liability,” then the defendant is held to the law of greatest liability adopted by defendant during the relevant time period, which may result in greater liability than some less severe law adopted by defendant during the relevant time.  Nonetheless, except for the foregoing circumstance, it will usually be the case that the least severe law held by plaintiff or defendant during the relevant time period will be the law applied.  Thus, all parties have an incentive to adopt sufficiently severe laws to afford themselves reasonable remedies, and to provide an incentive for those they have wronged to seek legal remedies instead of extra-legal remedies.

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

Such would be true, unless by some extraordinary means Cain is immune from being murdered.  Acquiring such immunity for a public adopter of a law permitting murder without punishment, such as Cain, may be presumed impossible without the intervention of a state, at least for the moment.  The topic — here called the “Impossibility Problem” of the “Reciprocity Principle” — has already been touched upon and deserves further consideration.  At least in a universe of mortal persons, the Impossibility Problem arises in the context of property claims but not, in any practical sense, in the context of claims for bodily or personal harms.

It bears repeating, although it is not the main point of this post, that application of the Defendant’s  Law and No-Hypocrisy rules for resolving conflicts of law among voluntary law societies will generally have an leveling effect in the area of property rights, due to pressure from the Impossibility Problem.  Voluntary law may be expected to push property rights to the very minimum of what the vast majority of people deem acceptable.  And that minimum will tend to lie at the maximum of what the vast majority of people can realistically hope to own.

Thus, unlike capitalist society as practiced in the 19th century, it will be impossible under voluntary law for durable classes divided between property owners and non-owners to arise.  Whenever great inequities arise, those who lack any realistic hope of acquiring a specific class of property will adjust by adopting laws that do not recognize the elitist property claims of others.  Under the defendant’s rule, the elitist property claims will thereby be rendered practically unenforceable.

None of this requires insurance companies or quasi-governmental dispute resolution organizations to make or enforce laws on a less well-capitalized general public.  Instead, under voluntary law, the general public imposes its preferences in laws and legal claims on anyone who would provide legal, enforcement, or insurance services.  The legal preferences of the people  are what determine the environment in which legal service providers, insurers, and police must operate.  Voluntary law truly returns the power to determine laws to the general public, and frustrates at every turn rule by elites.