Conflict of Laws, TROTWET, Uncategorized

The Power of TROTWET

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

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

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

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

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

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

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

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

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

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

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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.

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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.

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Coexistence, Introduction To Voluntary Law (Book)

Coexistence With Other Legal Systems

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Photo Credit to Raymond Zoller

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

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Enforcement, Introduction To Voluntary Law (Book)

Enforcement of Judgments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ensuring That Judgments Are Just

quality control

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Modularity and Conflicts Between Voluntary Laws

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

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

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

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

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

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

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

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

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

Due Process and Judgments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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