Introduction To Voluntary Law (Book), Public Interest Laws

Justice for the Poor

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Being founded in the ultimate egalitarian principle of personal self-sovereignty, voluntary law is better able to correct systematic imbalances and prevent injustice to the poor than any system of law or government based in privileges of property, or elite political status.   When the rich oppress the poor, voluntary law provides a sort of built-in remedy for the oppressed, as can be seen by analyzing the interests of the actors involved.  All oppression by the rich must be rooted in their property claims.  To resist oppression based in socially dysfunctional assertion of property rights, the poor have two useful tools.  First, the poor can bring claims seeking payment from the property of the wealthy.  The wealthier the defendant and the larger the potential award, the better the contingent-fee advocacy that can be hired.  Second, the poor can adopt laws that do not recognize the property claims of the wealthy or that provide superior property rights in cases where the poor hold the weaker property law.

For example, application of TROTWET to real property tends to create incentives for homesteading on fallow land that is not being diligently defended, as discussed previously in connection with property laws.  Large holders of unused land will have to recruit and reward a small army of defenders.  In the absence of a social utility enlivened by a moral purpose, the mere holding of empty land will in most cases not be worth the effort.  People will tend to claim parcels they actively use and patrol, or intend to use in the near future.  Exceptions to these limits might include nature preserves that are defended by environmentalists, who use the land lightly (e.g., for quiet recreation and observation of nature) and who are motivated by righteous zeal for environmental preservation.  The state would not be available to tax the poor and use the tax revenues to enforce the property claims of the wealthy.  The wealthy would have to enforce their own property claims, and the cost of doing so would tend to create a wealth equalizing effect by requiring them to employ the poor on mutually acceptable terms.  The poor would have no reason to hire themselves out for the defense of wealthy land claimants, unless the benefits of doing so outweighed the benefits of defending their own property claims.  It is not hard to see how such a legal regime would tend to lead to joint defense pacts on relatively egalitarian terms, to the extent that defense is needed at all.

Widespread adoption of voluntary law would place the poor in the strongest possible individual negotiating position with respect to wealthy property owners seeking to hire them for defending the owner’s property claims or for exploiting those claims to earn income.  Under voluntary law, there can be no imprisonment or other punishment inflicted on the poor except that which is permitted by the weakest law as between the law of a poor defendant and a wealthy claimant.  Moreover, whatever the sentence, its execution will have to be paid for by the wealthy claimant.

Yet another tool in the arsenal of equality is the rule against forced recognition of corporate or other collective entities.  This will make it harder for collectives to amass wealth to the disadvantage of individuals who do not recognize the legitimacy of the collective.  For example, when mass movements of the poor choose to occupy corporate properties, the poor can select the laws that they will adopt for their own defense.  Lobbying and influence peddling will have to be directed to its only proper outlet: the victims of the property claims that would be asserted.  There are no legislators or entrenched judiciaries to buy off.

When the poor oppress the poor, monetary damages to motivate justice may be less effective particularly in cases where the poor defendant lacks any reasonable capacity for earning income.  Statist systems fail particularly badly at this problem.  A poor criminal can be imprisoned, but this costs taxpayer money and does nothing to restore the harm done.  Meanwhile the imprisoned criminal receives often receives informal education in prison about how to survive as a criminal, and little or no instruction that enables prospering as a productive citizen.

Restitutionary justice will provide a better solution, by creating an economic incentive for reformation of the offender by a third party reformer.  The reformer contracts with the convicted defendant and with the injured victim.  The defendant agrees to work for the reformer in exchange for whatever terms can be agreed upon, with a portion of the defendant’s earnings paid to the victim. Once the debt has been repaid, the defendant has been rehabilitated.  Both the defendant and the one who rehabilitates earn honor for themselves, and are positioned to take advantage of future opportunities.

In voluntary law societies, there will be greater incentives for private aid to the unfortunate.  Those who give generously and successfully — meaning with gifts that do not make the recipient dependent, but that tend to lift them out out poverty into a self-sufficient state — will earn stellar reputations.  The reputation earned will provide very real economic repayment for the time, effort, and expense of helping others.  To name just a few benefits, the most effective charitable organizations will have the nature of an educational institute, which earns social power and prestige through its alumni.  To reap these dividends of prestige and social power, charitable groups and individuals will compete for opportunities to serve needy clients of all types.  Merely slothful people would make poor clients and would be less sought after.  Yet, where there is sufficient demand for poor clients, many of  those who by making themselves poor seek to live off the labor of others might be reformed, and taught the much more fulfilling rewards of a good reputation.  In voluntary society, private charity will operate without coercion or fear of unwanted liability for conduct or misfortunes of the unfortunate.  TROTWET will protect the well meaning and reasonable people on both sides of interactions between the poor and  those who would serve them.

Stateless social security can be provided by mutual aid societies, which can be ad hoc informal organizations, or more formally organized.  A self-perpetuating society nurtures both its young and its old; nurturing is a natural human trait that does not need to be enforced by a state.  Unhindered by state meddling, mutual aid societies can operate more efficiently and strike a fairer balance between the needs of the young, old, and sick and the working middle that sustains those weaker members.  Under voluntary law, this natural human impulse for nurturing and social structure is reinforced by the personal promises of those who join mutual aid compacts, making the fulfillment of their mutual promises a matter of personal honor and reputation.  We can be sure that every single infant who ever survived to adulthood was the beneficiary of at least one, and often several, mutual aid societies on the path to survival.  So too, we can be sure that a free people experiencing need will form mutual aid compacts to meet that need.  When doing so under an “empire” of voluntary law, we can see mutual aid societies that (unlike tribes and nations) will not seek to make war on competing societies, because of the mutual promises made from within each competing group to the greater host of humanity without.

Societies based in personal sovereignty will provide vastly more economic equality than is possible when sovereignty is based on claims over land or other natural resources.  Every person has only one inviolable dominion: their own person.  All other property arises from their own conscience and promises.  In such a society, durable poverty does not exist for any economically capable person, only temporary shortages of goods and services demanded.

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Introduction To Voluntary Law (Book), Voluntary Law

Rational Discrimination, Criminality and Shunning

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Criminal law is a creature of the state and does not exist as a separate category in voluntary law. Instead, there is a continuous gradient from good citizen to scoundrel, and the measure of the gradient varies from person to person. There can certainly be no crime against the state, because the system is stateless. Neither can there be any “crimes against the people” per se, although there can be conduct that, once proved by due process, earns the doer widespread opprobrium. Such people – those widely condemned or intensely distrusted — are the “convicted criminals” of voluntary law societies.

“Criminals” in a free society might include various classes of persons. For example, someone who does not voluntarily obey fair judgments of a voluntary law jurist, requiring coercion to be applied, might be regarded as a sort of criminal. This sort masquerades as a society member, but when faced with the necessity of complying with his own law, refuses to challenge the ruling on some reasonable legal or due process grounds, or to comply with the ruling to the best of his ability. Another sort might be one who voluntarily accepts and complies with valid rulings, but who has been convicted of conduct that so gravely impugns the person’s character, as to render the person untrustworthy, or morally repugnant. A third category of criminal might be one who holds to odious laws. All of these people are society members, but ones who at least temporarily are widely regarded with mistrust, disgust, or anger.

Voluntary law allows infinite avenues for redeeming, reforming, or acceptably tolerating all such criminals, eventually. Some criminals may be reformed and in time re-enter normal society, through various channels of reformation including but not limited to reform schools, indentured servitude camps, indentured apprenticeships, participation in mutual aid societies or guilds organized for the purpose of reputational reform, or other means. Some criminals may exist in a sub-society that is subject to certain limitations indefinitely, as if falling into a lower caste of society, while still being able to enjoy some of its benefits. Others may become outlaws and pass entirely out of the ambit of voluntary society, depriving themselves of all of its benefits and struggling for survival with the barest social protections.

Another class of “almost criminal” person might be one given over to vices of a victimless nature, such as various unsavory addictions, or needlessly cruel behavior to outlaws, or practices that are culturally condemned but not generally illegal. Exactly what sort of behavior falls in this category can vary with the times and circumstances. For example, a mild addiction to chewing coca leaves, or the keeping of pets, might be considered reprehensible in some places or times, and perfectly acceptable in others. To the extent the behavior is private and not actionable under voluntary law, there can be no legal liability or social consequences. Once the behavior become public there can be social consequences as with anything else done publicly, but there can be no legal liability without the consent of the person who engages in the behavior.

This legal protection does not mean that self-destructive conduct or other questionable forms of self-indulgence would thrive unopposed. On the contrary, any publicly discoverable behavior that is offensive to enough people may be “socially criminalized” in the sense that those who do it are shunned to some degree. In reaction to such shunning, others may elect to shun the shunners. It follows that any victimless conduct that is condemned by a substantial majority of people in some economic circle cannot be sustainably practiced there without support from a motivated minority. In the absence of one dominant power such as a nanny state defining what conduct is or is not protected, dramatically different cultures might arise in different circles. In essence, in voluntary law societies, shunning replaces voting as the primary means for enforcing particular moral preferences in particular circles.

Whether you not you find such possibilities disturbing, or stimulating, may depend to a large degree on your cultural conditioning. Many people today are accustomed to fairly uniform standards for acceptable behavior being enforced over wide areas. For example, at one time homosexuality was made illegal by states, making the lives of ordinary people who happened to prefer homosexuality difficult and dangerous. At later times, states made it illegal to shun homosexuals in private commercial transactions. Under either regime, some people were denied the ability to openly conduct themselves according to their moral and personal preferences. Many have not considered, or would consider it strange and unappealing, to construct a society in which courts will not enforce a uniform standard, enforcing instead nothing more than each person’s personal code of honor. Before voluntary law can become the dominant paradigm, these rather childish attitudes must fade, to be replaced by more sophisticated understandings of the natural merits and limits of self-sovereignty. The examples below illustrate some of these natural merits and limits.

These natural merits include discovery of other’s cultural and moral preferences, facilitating more targeted discovery of compatible friends, partners, customers, service providers, and other relationships. For example, people might adopt personal honor codes stating that they will not engage in promiscuous sex or hire the services of a sex worker while in a committed sexual relationship with another without the knowledge and consent of their partner; and should they violate this rule, their partner will have certain remedies. The benefit of doing this may include demonstrating one’s expectations and commitments to others, for the purpose of finding a mate or companion. Others may prefer silence on the question, or make a different commitment, or may deny any such commitment. Either way, for better or worse, others will know where they stand, and may use this information for any desired purpose.

For example, prostitutes might market themselves primarily to people who have openly indicated that safe, professional sex is allowable, and perhaps to a lesser degree to those who prefer silence on the question. They would focus their marketing both to reduce the cost of finding customers, and also to reduce the inherent relational risks associated with having sex with strangers, such as incurring the wrath of a mate or dealing with those who are unable to understand and accommodate the professional’s position in the transaction.

The ability to focus their marketing based on promise information would benefit both prostitutes and their likely customers. It would also benefit those not interested in paid sex, by sparing them from unwanted solicitations, among other things. Conversely, those who prefer monogamy might avoid looking for partners among those unwilling to adopt a compatible honor code, and would also be aided. Those who find sex work or promiscuity sufficiently offensive might even shun others who decline to adopt personal honor codes to their liking, while defenders of sex workers might offer discounts or other benefits to those holding prostitute-friendly codes.

In a truly free society, shunning may be applied to a much wider array of behavior than the types of victimless conduct that states have outlawed at one time or another, such as forbidden sexual activity, use or sale of contraband, smuggling, blasphemy, criticism of the monarch or state, and so forth. Rather than being applied to old and familiar vices or activity detrimental to state monopoly power, in free societies shunning might tend to be used as a political tool when it is desired to change the behavior of ones’ neighbors. Also, shunning may take various forms other than refusing to do business altogether, such as for example the imposition of a premium price or embarrassing label.

For example, suppose the economic leaders in a particular circle decide that too many people are engaging in an undesirable behavior ‘X.’ The behavior ‘X’ can be just about anything that a group of people decide is undesirable; use your imagination. Likewise, the circle can be anything with effective control over a significant economic resource: a city, a guild of people who control the Internet, a cartel of underground medical providers, a union of sex workers, an ad hoc organization of online underground free market hosts, whatever. Suppose ‘X’ is the consumption of meat, and the circle is the city. The city leaders are morally committed vegetarians, include nearly all the restaurant owners, service providers, and utility providers in the city, and want to create disincentives for meat eating. They each adopt a personal honor code that commits them to not eat meat unless necessary for survival, and offer a 20% discount to anyone who adopts the same code. In effect, people who have not promised to eat meat would pay a 20% premium for doing business in that vegetarian city. But in the absence to monopoly power, they would not do so for long.

There are economic and political limits to widespread adoption of shunning. Whether or not price discrimination of this sort is effective will depend on environmental factors. In the absence of market power by those enforcing the price discrimination, it will not work. Even when a cartel is able to enforce price discrimination based on arbitrary personal profiles for a while, competitive pressures will tend to undermine it over time.

Simply put, too much shunning is bad for business, creates opportunities for competitors, and limits the shunner’s political influence. For example, if vegetarian shop owners in an area charge a premium to non-vegetarians, the price discrepancy attracts vegetarian customers while repelling meat eaters. Meat eaters will tend to shop elsewhere, so most of the shop owner’s customers will be vegetarian. Thus, the shop owner is seldom able to enjoy the benefits of receiving a 20% premium price. If there are many meat eaters in the area, competitors will move in to service them. The vegetarian shop owner will lose opportunities to interact with meat eaters and to influence them to become vegetarians. Shunning is not likely to be practiced for trivial reasons, because such shunning cannot be economically justified. Instead, shop owners are more likely to offer inducements, such as discounts on vegetables to any meat eater who promises to give up meat, in which the cost of the inducement comes with the possibility of an economic return.

There can be non-trivial, economically justified reasons for shunning, such as black market participants avoiding the buying or selling of goods involving undercover police or informants. In circles that are vulnerable to aggressive attack, promise network information may serve as a proxy for identifying high-risk transactions. People with promise profiles that indicate a greater transaction risk will be avoided. This type of shunning may become especially important whenever a breakdown of the state (e.g., hyper-inflation) restricts supply of good or services to people who lack alternative support systems, such as promise networks. It may also be important to people who for one reason or another cannot adopt the promise profiles that would make them acceptable to their desired type of merchant or customer. Promise profiles and associated reputations thus operate as a sort of behavioral credit score, permitting discrimination between sellers or buyers based on a rational assessment of risk associated with incompatibilities between promise profiles or past promise-keeping reputations. Promise and reputation information will facilitate shunning that does not violate the laws of economics.

Personal honor codes that excuse or require extreme shunning would create an unnecessary risk that those who hold them would be shunned for their own unbendable intolerance. People would not find it necessary or desirable to adopt such codes, because shunning could rarely or never be used as a positive legal claim or affirmative defense. Instead, most shunning would be done ad hoc and not in a systematic fashion, preserving flexibility. People would adapt their acts of shunning to the circumstances at hand, with utility taking precedence over consistency.

Imprisonment by the state is a form of shunning that most are familiar with today. Even though imprisonment is inflexible and clearly uneconomic in most cases, it continues in widespread practice because maintaining prison systems is politically expedient for those with the power to allocate tax money, with many unfortunate and unjust consequences. A majority of the electorate will need to believe that alternative forms of punishment are available and preferable to imprisonment of non-dangerous criminals, before such imprisonment will end.

Another form of state-run shunning is state-maintained registers of criminals, such as “sex-offender registries.” Such registries are “one size fits all,” with everyone on the list assumed to be dangerous, regardless of actual fact. Moreover, offender registries are often used to require third parties to shun the listed offenders. State-enforced offender registries violate the right of free association and personal sovereignty. A robust promise society will make special criminal registries obsolete, because reputation information that is available generally will be more detailed and accurate than can be provided by a list of offenders. In voluntary law societies, individuals choose for themselves whether or how to take the reputations of others into account in their dealings with them.

Open-source shunning by individuals is the closest thing to criminal punishment that a free society will impose on its members. Free and voluntary shunning will different dramatically from statist solutions, however. In a free society, shunning will be a useful and fluid tool that creates incentives for socially constructive behavior of all types. Shunning and inducements based on promise profiling may help move society towards freer, more ethical arrangements, by creating incentive for adoption of promise systems where such concepts were unknown. Even after voluntary society is predominate, shunning broadly defined may become the primary instrument motivating continuing social change in the face of evolving moral preferences.

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Death, Introduction To Voluntary Law (Book)

Death of the Law Maker

Old King Cole

In earlier posts, I’ve assumed that in determining liability for the death of a victim it is the victim’s law that should be applied, subject to the usual principles for choice of law.  We can rationalize this choice as essential to preserving reciprocity even in the case of mortal injuries, but it might be questioned whether the choice is truly justified.  In whatever form a deceased spirit exists, if it exists in any form at all, it is evidently not in the form of a corporeal natural person.  And unlike a disabled person, who might perhaps overcome his disability someday, the deceased once dead and decayed can never again assume the same identity and capabilities of her formerly living being.  So applying the law of a dead person violates the founding pillar of personhood.  It seems as if a choice must be made: either the founding pillar of personhood must be temporarily waived when a case touches on a dead person, the law of the dead must forever be enforced as if frozen in time, or all the law of the deceased must be immediately disregarded.  It is not immediately obvious which choice is wisest.  As shall be shown, it is not necessary to make any such choice.

There are two principal classes of legal action involving dead law makers.  The first class includes all claims for or against the dead person, arising out of circumstances preceding their death.  The most dramatic example is a claim for restitution or vengeance in the case of murder or negligent homicide.  Although these claims are not perfected until the victim dies, the claims nonetheless belong in this class because killing can only be inflicted on the living.  Yet this class also includes a multitude of less dramatic claims that were made by or against the dead person, or could have been made, prior to their death.  Just about any claim will do.  It is a not uncommon situation, traditionally handled in the West by maintaining the action by or against the estate of the deceased under State-made law.  Under voluntary law, it may be necessary to reconcile conflicting laws, and to that end, to consider whether or not the law of the deceased should be respected just as in life.

Causes of action in this class arise always during the life of the victim or of the wrongdoer.  Even murder does so arise during life, because it is impossible to kill one who is already dead.  As in every other case arising out of the past, the law is retrospective; it looks back in time.  In these cases, the law looks back to a time when all parties were alive.  Therefore, for purposes of determining the law to be applied, the death of the victim or of the one accused of wrong is of no consequence. The law of the deceased is applied as if they were alive.  To hold otherwise would be to make an exception to the general operation of the law, in view of arbitrary circumstances arising after the fact.  If justice is to be fair and not arbitrary, there is no choice to be made when judging events that occur before death.  The adoption of law made by the one who has died must be regarded as if she had not died, for rulings in this class of actions.

The second principal class of actions involving deceased law makers includes all claims that cannot begin to arise until after the law maker is dead.  This class includes claims of inheritance, and the disposition of wills, trusts and estates.  Although actions prior to death may be considered in judging these cases, for example, the execution of a will, such actions are not the cause of the action at hand.  The cause is simply the event of death itself.  Thus, justice does not require that the law of the deceased be applied as if he were alive.

Neither does justice require that the law of the deceased be ignored.  For example, the extent to which to consider the law of the deceased can be determined based only on the laws of the living, so there is no contradiction of foundational principals.  If a living party has adopted a law that gives meaning to instruments such as wills, or provides for rights of inheritance under the law of the one who has deceased, and the deceased had a compatible law, then there is no issue to be decided.  The law of the deceased will prevail. It may be that most people will adopt laws that respect the adopted law and wishes of the dead with respect to wills, trusts and the disposition of estates.  If not holding to such a law, then their own wishes are much less likely to be considered upon their death.  Also, without a continuance of an elderly or infirm person’s estate after death, others may be unwilling render services or lend to such persons.  A continuance of the deceased’s property interests until their debts are settled depends on a mutual recognition that the property interests can survive death for some period of time.

Others may have no real concern about the disposition of their property after death, and choose laws that seem more advantageous during life.  To these people, it might seem better to make claims on property of the deceased without being constrained by the laws or wishes of the deceased.  For example, such a person might hold to a law stating that all property rights cease immediately upon death, such that death itself acts as abandonment of any property held by the deceased at the time of death. This person would then be able to make a claim upon any property so “abandoned.”  Such a claim would have to compete with claims upon the deceased’s property by any others with contrary laws. If there are no opposing claims to the same property, the claim can be considered as if made upon abandoned property, considered elsewhere.

For example, consider a case in which a person dies with a will, or without a will but with a surviving spouse.  A stranger brings a claim for property formerly owned by the deceased, and the spouse opposes, claiming the property for himself either on the basis of the will or the deceased’s inheritance laws.  If the stranger has no nexus to the property she claims, she will lose under TROTWET to the surviving spouse, who has a nexus to the property by way of the will, by way of his relationship to the deceased, by way of actual use or labor associated with the property, or by any combination of the foregoing.

On the other hand, if the stranger bases her claim on some nexus to the property that runs deeper than the spouse’s, the stranger may prevail.  For example, suppose the stranger is not truly unfamiliar, and can prove she had an ongoing intimate relationship with the deceased, the property she is claiming was purchased by the deceased for her to reside in, and she did in fact reside there.  In such case, her claim to the property should succeed under a weaker tool analysis for property claims, because a neutral jurist should find that the claim of property she is asserting is based a law that requires a more stringent antecedent for the property claim than the law of the surviving spouse.  Win or lose, the stranger’s claim can be judged fairly without any need to assert the law or claims of a dead person against her.

On the other hand, if both the stranger and the spouse by their prior adoption of law recognize the will of the deceased, then the will of the deceased should be faithfully executed.  If the deceased’s will is valid only under the law of the spouse, but not under the law of the stranger, then the will is properly a factor in testing the prevailing law to be applied to the competing property claims, but does not control. The outcome will depend on whether the will plus the spouse’s antecedent nexus to the property is more, or less, stringent than the antecedent nexus of the stranger, as with any other dueling property claim.

Any law that grants rights to property on the basis of some relationship to a particular deceased person must, by logical necessity, recognize the preceding ownership claim of the deceased.  So even if the law of the deceased no longer exists to control such claims, it is therefore still accorded a certain indispensable respect in most disputes over succession, typically grounded in personal relationships.  For example, Clifford, the only first cousin of Richard, realized early in life that he was unlikely to ever be related to anybody more industrious or wealthier than Richard.  So Clifford adopted a law that provides for inheritance of all property by cousins, even if the deceased leaves a will.   Benjamin, Richard’s only son, adopted a similar law providing for inheritance by children.  Grace lovingly took care of Richard for many years, and Richard left all his property to Grace in his will.   Both Richard and Grace adopted a law providing that if a valid will exists, it controls the disposition of property after death.  As between Clifford, Benjamin and Grace, who holds the weakest property law?

We can compare the parties’ respective antecedent bases for their property claims:
Clifford:   relationship of first cousins;
Benjamin:    will of the deceased + child relationship;
Grace:   will of the deceased + years of labor + long-term caregiver relationship.

Grace’s law is probably the weakest and is therefore likely to prevail; but even if Benjamin’s law is deemed weaker, Richard’s will is executed either way: Grace receives all of the property at issue.  Clifford’s law is merely opportunistic and would be enforced only in the absence of any less frivolous claims.

With some types of property left behind after death, wills and familial relationships will carry less weight.  Consider, for example, a claim by a nature preserve over certain truffle grounds owned by a deceased truffle gatherer named Trudy.  Trudy left the truffle grounds in a nearly pristine state, and only used it for harvesting certain rare truffles that grew there naturally, for her personal enjoyment.   The nature preserve is a collective organization that holds title to various tracts of pristine land using methods as described earlier.  Suppose, for simplicity, that the preserve makes its claim in the name of one of its member agents, Amy.  Amy’s intent is to hold the land for the benefit of the preserve, as a habitat for certain rare animals and plants. Trudy did not leave any survivors who ever made any use of the truffle grounds, and left it by will to her partner Tran, whose law respects the will of the deceased.  Tran did not enjoy truffle hunting, and planned to sell the truffle grounds by auction of the International Truffle Association.  She needed the proceeds to fund her retirement.  If Amy’s law does not respect wills of the deceased, there may be some uncertainty as to whose claim is stronger.  A skilled jurist will exploit the uncertainty to assist the Amy and Tran to negotiate a settlement.  For example, a settlement under which Tran sells the truffle hunting rights subject to a preservation easement in favor of the preserve via its designated agent Amy would meet the needs of both claimants.  If the parties refuse to settle, they will have to live with whatever ruling the jurist decides.  In close cases, rational disputants will settle.

As happens under present systems, some people may leave their property to a trust, which is a form of fictional entity.  As any other fictional entity, the extent to which it is recognized and respected will depend on the laws of those who interact with its property.  Since these laws cannot confidently be predicted in voluntary law societies, fictional trusts will not be commonly used.  Instead, property may be given in trust to natural persons, who are charged with the duty of acting as trustee of the property under a contract with the grantor.  If the grantor dies, the trust may be enforced against the trustee by a third party beneficiary or surviving parties to the trust agreement.  If there are no beneficiaries or survivors, the trust dissolves at the discretion of the trustee.

Death, as it is known today, is usually irreversible; exceptions may exists in fleeting cases such as when people “die” on the operating table but are revived before brain death sets in.  Future technological development may change this present reality.  After all, heads and entire bodies are sometime frozen, in hopes of later revival. There may come a time when the dead are not beyond hope of revival under conditions that are presently beyond hope.  If such a time comes, those awaiting revival may be treated under the law as simply disabled for an indefinite period of time.  If this period of time stretches or more than a few year, difficulties with this approach may arise, resolution of which may be left to a time in which the difficulties actually arise.  The underlying tension is between a law of the indefinitely disabled, which is frozen and cannot adapt to changing circumstances, and the adaptable law of the living.

The death of the voluntary lawgiver may seem to thrust us into unfamiliar territory.  We are accustomed to considering only one law controlling the disposition of property after death.  Yet, the differences in fact are not as radical as it may seem, due to other balancing principles such as TROTWET.  Discounting the law of the dead may seem superficially troubling, but in the majority of cases will bring about results similar to those provided by widely applied rules of inheritance known today, as illustrated by the foregoing examples.  In some cases, death will bring more flexibility for just resolution of conflicting claims than is possible under a monolithic legal system.   Applying the law of the living to the property of the dead has the great advantage of freeing the living from constraints imposed by those who cannot breathe life in their flesh ever again, or adapt to changed circumstances confronting the living.

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Image from page 343 of “St. Nicholas [serial]” (1873)
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Fictional Entities, Future of Voluntary Law, Introduction To Voluntary Law (Book)

Fictional Entities

Headless Sightings by Krocky Meshkin

Legally recognized fictional entities, as we know them today, are creations of state laws. These entities exist in two basic forms: personal and collective. Personal fictional entities are alter-egos of a natural person. For example, a business owner may provide a fictional identity for one or more businesses she owns and controls. Each business may be given a separate name, bank accounts, and financial records. Depending on the status of registration of the fictional entity with state authorities and its compliance with state regulation, the owner or owners of the fictional entity may be protected from liability for non-criminal acts attributed to the fictional entity. When the fictional entity has more than one owner, it is a collective entity.

In general, fictional entities can be justified for their supposedly socially beneficial purposes, including (for example) encouraging passive investment in collective enterprises, development of business enterprises as transferable assets, providing collective redress for harms committed by agents of the collective, and many other purposes. This post does not concern state-created fictional entities, and therefore will not spend words considering the merits or detriments of such beasts. The topic at hand is recognition and treatment of fictional entities under voluntary law. Debating the merits of generic collective entities under voluntary law is pointless for any political purpose, because nobody will be forced to recognize a form of collective against their will. We might expect, however, that the merits of particular collectives or legal forms for collectives might be hotly debated in voluntary law societies.

Fundamentally, in a stateless legal system based on personal sovereignty, the legal effect of the fictional entity depends on its recognition under the laws of each person encountering it. With its characteristic infinite adaptability, voluntary law can provide for recognition of any form of fictional entity, and any rules for treatment of such entities. Recognition cannot be forced on those who do not hold to those laws under which the recognition is granted. However, social pressure to recognize certain forms of fictional entities may arise. For example, laws enabling socially adept collectives will tend to be favored, creating social pressure for recognition of those laws. Indeed, we might think of states as the result of a sometimes violently aggressive social process for recognition of a fictional collective entity: namely, the state in its various forms. But under voluntary law, social pressure is rooted in personal sovereignty and non-aggression, whereas state-sanctioned pressure is aggressive by nature of being rooted in the concept of state sovereignty over a territory.

Given that social pressure for recognizing collective entities can arise under voluntary law, what forms of voluntary law will provide for the most vigorous forms of collectives, capable of encouraging widespread adoption of those forms? Will it be the corporate form, similar to that recognized by states? Only time will tell, but there are reasons to think that the prevalent form will differ from statist corporate laws in some fundamental respects, most obviously in matters of taxation or tolls, determination of liability for corporate action, and assertion of collective property rights. In other respects, collectives operating solely within voluntary law societies might (or might not) resemble corporations and other collectives based in state law. For example, such entities may have officers, employees, and shareholders, and shares of some types of collectives might be traded in open markets similar to stock exchanges. Or not; these collectives can be organized in any useful way that a group of people is capable of agreeing to.

Before speculating about the future of collective entities, some fundamental matters need to be considered. Personal sovereignty of natural persons is at the root of voluntary law. By definition, a fictional entity is not a natural person, and thus, cannot possess the sovereign power to make its own law. Any system in which a fictional entity is granted lawmaking power as if it were a natural person falls squarely outside of the bounds of voluntary law, by definition. The grant of lawmaking power to fictional entities is well-known in other systems, including all systems that rest primarily on dominion over a territory (empires, republics, democracies, city-states, etc.). States are themselves the premier example of such fictional entities, abrogating for themselves the power to make law in a territory. But no fictional entity can ever possess the legal status of a natural person under voluntary law, by definition. Every natural person can have but one natural identity.

Some natural persons may, nonetheless, prefer to adopt different identities for different purposes, even within voluntary law societies. For example, different identities may be desired for convenience in dealing with disparate groups of people, or because the presence of split personalities in the same person makes the maintenance of a single identity impractical.

Let us presume that different identities can, in some cases, be adopted and used legitimately without fraud. Whatever the motivation for adopting the different identities, each of the multiple identities is necessarily tied to the same natural person. Because we have assumed a lack of fraud, it follows that whenever a dispute involving the natural person arises, the multiple identities and the respective laws adopted by those entities will be known to all parties involved. If the natural person has adopted conflicting laws, under TROTWET the least advantageous one of these laws will be the one used for resolution of the dispute at hand. Any other approach would allow disputants to pick and choose from alternative laws to apply to different disputes, turning voluntary law into a useless game of words. If voluntary law is to have any social utility, the rule of “weakest law” for each natural person (or something like it) must be enforced. This means that although a person may adopt any number of laws and identities, only the weakest one of their adopted laws will be considered in the circumstances of any particular dispute. Each person can be allowed only one controlling law, in any given circumstance — unless, of course, all parties to a dispute consent to the application of some law other than the one determined to be the weakest.

When a fictional entity is merely an alter ego of a single natural person, TROTWET works well as the prevailing rule and should suffice for regulatory purposes. However, many collective entities exist that are not under the control of a single person, being regulated by some structure of rights distributed among members or shareholders, for example. Collective fictional entities cannot be equated to natural persons, so how could they have legal status under voluntary law? There are infinite possibilities, limited only by the imagination of any two or more natural people who adopt their own laws, and the jurists who may mediate disputes between such persons. That said, even at this early stage, certain general possibilities are clear.

One possibility is recognition by contract. Suppose a natural person “Steve” organizes a collective “Peach” to develop and sell quantum computers and subspace communicators. The rights and responsibilities of “Peach” can be defined by contract between any two or more persons, and may vary depending on context. For example, two people who have adopted a compatible form of contract law can execute an enforceable written agreement in which one person is an officer of the fictional entity “Peach” and the other is a stakeholder of one type or another, for example, an independent contractor, investor, supplier, or customer. Both the officer and the stakeholder agree to treat “Peach” as if it were a person in the event of any dispute arising under the agreement. Naturally, the agreement will also include a choice of law clause to eliminate uncertainty by the law under which the agreement will be interpreted, and other provisions for dispute resolution. The choice of law may also specify a form of governance for the entity. Thus, for purposes of disputes arising under the agreement, and only for such purposes, the entity “Peach” can readily be accorded a status that is equivalent to that of person by those who have voluntarily agreed to do so. If the contract somehow lacks a choice of law provision, its legal effect can be evaluated under TROTWET, based on the laws of the natural persons who have executed it.

Another possibility is recognition of fictional entities by adoption of law. This may be used instead of, or in conjunction with, recognition by contract. Such voluntary laws may take various forms. For example, a law may state that the natural person adopting the law will recognize the legal status of any fictional entity that is currently certified as complying with a specified set of standards for personal and/or collective fictional entities. The law may also specify the certifying agency, or a class of acceptable certifying agencies. There is nothing to prevent a voluntary law from referencing a state law regarding fictional entities. For example, a person is not prohibited from adopting a law that recognizes all legal entities in good standing with the California Secretary of State, for purposes of the person who adopts the law only. It might sometimes be convenient for people to adopt laws that grant recognition to state-created entities. Such recognition enables the entity to resolve disputes with the grantor under voluntary law. Under some circumstances (e.g. in societies gradually transitioning to voluntary law), state-sanctioned entities might be eager to receive such recognition, for example to increase their customer base and avoid unnecessarily expensive legal process, without running afoul of state requirements for collective entities.

To avoid uncertainty regarding choice of law, personal recognition of a class of fictional entities could, and probably would, be accompanied by a choice of law provision. For example, a person’s law might limit recognition to entities that agree to settle disputes under some particular statement of voluntary law. Without such a clause in the voluntary law that provided recognition to the fictional entity, the recognition would be meaningless. Status as a person within voluntary law society requires, by definition, that the person has adopted a law applicable to the dispute at hand. Fictional entities cannot adopt laws, not being natural persons. Therefore, to be accorded legal status under voluntary law, the applicable law of the fictional entity must be defined by each natural person who chooses to recognize that entity. When a dispute between the fictional entity and a voluntary law society member arises, the fictional entity could agree to resolve the dispute according to the society member’s law. If that option was not acceptable, and it could not negotiate some other settlement of the matter, the fictional collective entity could forgo legal recognition under voluntary law in the matter. This would essentially remove any “corporate shield” erected to protect the property of the entity’s members. In general, the legal rights of collective fictional entities under voluntary law are subject to the laws of those they come in dispute with, without any restraint from operation of TROTWET.

Naturally, some voluntary law society members would choose to not recognize collective entities. Others, unrestrained by TROTWET, might recognize collective entities subject to unacceptably onerous liability laws. Therefore, it is inevitable that certain collective entities would not be recognized under voluntary law, even if voluntary law is widely adopted. This would have consequences for members or agents of the collective who possess reputations under voluntary law. To preserve those reputations, such persons might need to subject themselves to legal process under voluntary law even in cases where they are not directly responsible for the underlying harm. It will therefore often be necessary to determine whether or not, and to what extent, particular members of a collective are liable for harms committed by other members of the same collective.

If the collective is not legally recognized, the voluntary law to be applied by the jurist must boil down to determining the law applicable between the claimant and defendant, as two natural persons who have both adopted voluntary law. Whether or not a member of a collective is responsible for actions of another member therefore becomes a function of the member’s law and that of the person bringing the claim, under conflict of law rules such as TROTWET. Each member of the collective is free to choose his own law regarding “agency,” meaning the circumstances when one becomes legally responsible for the actions of another. Each can limit liability for actions by other members of the collective by adopting a suitable law regarding agency. But limitations that are too severe will likewise severely limit ability of those who hold to the limitations to recover from others. To provide reasonable recourse from harm by collectives, conspiracies or other agencies, most people will therefore adopt laws that permit “joint and several” recovery for harms against each and every member of a group of people (including both principals and their agents) that have caused the harm. “Joint and several” means that each person in any way responsible for the harm can be held fully accountable to pay for the entire harm. Without laws providing for joint and several liability, it would be trivial for collectives and conspiracies to exercise coercion without effective recourse.

For example, suppose a collective “Evil, Inc.” wishes to harm another while shielding all of its principals from liability under voluntary law. Each of Evil, Inc.’s principals (e.g., controlling shareholders and officers) could renounce joint and several liability, such as by limiting liability to direct actions only. Then, Evil, Inc. could hire a special agent (who could be an outlaw, or a society member with lax laws) to perform the heinous deeds desired by the principals, for example, dumping hazardous waste to avoid costs of proper disposal. Under TROTWET, principals of Evil, Inc. who did not personally direct the agent could not be held accountable for the actions of the special agent under voluntary law, even if they had tacitly approved the action. Actions for recovery would be limited to proportional recovery from the agents and their direct supervisors, one or all of which might be outlaws, or relatively poor; thus would legal redress be frustrated. A small fraction of the legal damages might be paid, if at all; while the beneficiaries of Evil’s conduct would not suffer any legal consequences. However, these beneficiaries would not enjoy tranquility for long. If the harm was serious enough, another collective such as “Revenge, Inc.”, will step in to exact revenge. Principals with overly lax laws regarding liability for actions of their agents will make tempting victims for the same treatment by others. For example, the executives of Evil, Inc. might find hazardous waste being dumped on their own properties by agents of Revenge. Thus, to avoid being victimized by the agents of their adversaries, principals would adopt reasonable laws regarding agency liability. Such laws could take various different forms, but would generally make principals jointly and severally liable for actions of agents made to further the principal’s interests. The agents would of course also be liable for their actions, and to protect themselves might demand indemnity from the principals, before accepting their offer of employment. Thus, liability for collective or other agency action can naturally be imbued by social pressure and enforcement of principles against hypocrisy, such as TROTWET, just as can liability for any other anti-social or destructive behavior.

Property can be held in the name of a collective entity, with the legal effect depending on the law of the person making a claim on the property. If the claimant recognizes the collective entity, and if this recognition is not contested by any representative of the entity, then the property can be used to satisfy a judgment under voluntary law, or as the basis for a counter claim by the entity. If the claimant does not recognize the entity or its recognition is not accepted, then the property can be reached only indirectly as an asset of a member of the collective, and cannot be used as the basis for a counter claim. For example, if Ted does not recognize PollutCo, and PollutCo’s agents and officers do Ted some harm, Ted can sue the agents and officers if they hold to voluntary law. If Ted wins a judgment, it can be satisfied from the assets of the agents and officers named in the suit. However the jurist may consider the money held in the name of PollutCo to be effectively owned by the defendants, because PollutCo is merely an unrecognized fiction in the case at hand. So if the employees and officers do not pay, the jurist may order that a lien be attached to the PollutCo’s accounts until the judgment is satisfied. This lien would not, of course be recorded in state records or enforced by state sheriffs, if a state exists and has registered PollutCo. It would be recorded by a private recorder of voluntary law liens, and enforced by a contingent-fee peace officer, a.k.a a “bounty hunter.”

Conversely, PolluteCo cannot make voluntary law claims against anyone that does not recognize it as a legal entity, because it has no inherent status under voluntary law except as a fiction. For example, it cannot assert property rights against those who do not recognize it as a legal entity. Accordingly, PolluteCo might protect property by appointing a natural agent (or agents) to hold it in trust for the benefit of PolluteCo. Each of these agents would, by contract and/or adoption of law, recognize PolluteCo as a legal entity and grant it certain rights related to the property, under a license or other agreement. Each of the agents would also adopt a form of property law that that is perceived as mutually beneficial by the pertinent executive of PolluteCo and by the agent. All legal enforcement of PolluteCo’s property rights would be done by the applicable agent, under that agent’s chosen voluntary law. The benefit of any judgements received would flow to PolluteCo by virtue of the trust agreement with the agent.

Just as natural persons can recognize fictional entities, can fictional entities recognize each other under a sort of quasi-voluntary law? Not without being under a legal system other than voluntary law. Law making by fictional entities belongs to another class of legal systems that includes law making by territorial-based fictional entities (namely states), and law making by property-based fictional entities (for example, by private defense/justice collectives under anarcho-capitalism). It may be convenient for fictional entities to deal with one another as if each were a sovereign natural person or subject to some higher authority that governs collective entities only.  Therefore, even in a society otherwise wholly under voluntary law, we may expect disparate classes of legal systems to co-exist for indefinitely long periods of time. In a state of healthy coexistence, each legal system would be restricted to its natural and proper domain: voluntary law to legal issues involving one or more natural persons, and fictional law to issues exclusively involving fictional entities. Laws from one system might influence laws in another, but would not be directly applicable in alien domains.  Laws covering fictional collectives might fall into two general classes: collective-voluntary law, in which each collective is sovereign and adopts its own laws effective against other collectives under a conflict-of-laws regime such as TROTWET, and collective-delegated law, in which associations of collective entities delegate sovereignty over law making for the entire association to a special collective.

Modern corporate governments, such as the United States, may be precursors of collective-delegated systems compatible with voluntary law society.  If the United States were to recognize personal sovereignty as supreme, and rewrite its laws to govern participating collective entities only, it could persist indefinitely with voluntary law and collective-voluntary law systems, without any tension or clash between competing areas of sovereignty.  Naturally, that is a big “if.”  Yet, if the mass of its citizenry were willing to govern themselves as individual sovereigns, there can be little doubt that institutions of the old empire such as remained useful for organizing collective entities would seek to play the role of sovereign over the collective fictions that remained outside the sphere of voluntary law.  If these vestigial agencies hold to the non-aggression principle (as would likely be the case if they recognized the supremacy of personal sovereignty and most individuals practiced voluntary law) they will compete for this sovereign role against more loosely-organized communities of fictional entities organized under a collective-voluntary law system.     It may be that some social functions requiring collective laws are better served by one  class of collective law or the other, so perhaps both classes could co-exist.      This coexistence of voluntary law,  collective-voluntary law, and collective-delegated law will be able to accommodate highly complex legal and social situations no doubt worthy of an entire branch of study, while always preserving the sovereignty of the individual against that of the collective.  Individuals would be safely beyond the reach of coercive collective power, but collective social power would not be extinguished.  Legal process would come in two fundamental flavors: individual versus individual, and collective versus collective.  This blog focuses mainly on voluntary law, which is concerned principally with processes exclusively involving individual sovereigns.

Nonetheless, legal process between an individual and a collective could also occur under voluntary law, by mutual consent.  Whenever a voluntary law society member decides to recognize a fictional entity by adoption of law, whether or not the fictional entity is also recognized by a state or by some other legal system by and for fictional legal entities, there is a possibility of an individual versus collective process. For the recognition of the collective to have practical effect, it must be agreed to by a managing principal of the fictional entity, either by preexisting agreement or by agreement at the time a dispute arises. Such an agreement may be made whenever the voluntary law member and the managing principal of the fictional entity both believe the agreement confers some advantage. For example, the managing principal might believe that participation in voluntary law provides improved public relations and more efficient legal process. A voluntary law member might also benefit from the more efficient legal process, and might believe that the voluntary law provides more just and socially beneficial outcomes than possible under state law. To a state regulator of fictional entities, voluntary law appears as merely another tool for dispute resolution, akin to private mediation and arbitration. The use of voluntary law by collective entities might find political opposition from state-licensed lawyers or other government-assisted legal cartels threatened by private dispute resolution beyond the reach of their monopolies. Such resistance would merely reflect political opposition to changes in the status quo, and not any fundamental shortcoming in dispute resolution under voluntary law. If voluntary law is to become widespread, it will certainly be accommodated by collective entities of all types, both state-recognized and not.

Accommodation of voluntary law by collective entities will depend on recognition of the collective entity by each individual of the multitudes who will practice voluntary law. Just as in other areas, social pressure can be brought to bear on collectives by the individual choices of society members in their adoption of law. It is impossible to predict exactly how collective entities might evolve, or what they might become, under this social pressure. For now, we can foresee some exciting possibilities, such as corporations and cooperatives competing for recognition from individual society members by developing and promoting more sensible and popular laws. The most successful collectives would attract the most members and supporters, and would thrive, displacing older forms based on political coercion. We can foresee systems for social cooperation in which equal rights, individual liberty, efficient division of labor, and complex massive collective projects can all thrive together, without any coercive taxation or regulation. We can foresee many diverse types of collective organizations coexisting and enabling very different lifestyles to be lived, side by side. We can foresee the end of wasteful paperwork and legal machinations to avoid paying taxes or to comply with regulations motivated by powerful special interests. We can foresee the end of cartels, corporate welfare, and other special privileges that enable the few to claim ownership or control over the many, by gradual abolition of the monopoly at the root of those evils.

Insisting on the sole sovereignty of the natural person will not disable collective entities, or banish them from voluntary societies. Quite the contrary. It is this true democracy, this rule by every person over herself under law published to all, which will free the collective to take on amazing new forms and accomplish unimaginably great and more perfectly moral things.

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Photo “Headless Sightings Exhibit V” Credit To Krocky Meshkin

Some Rights Reserved (Photo) under Creative Commons

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Dependents, Introduction To Voluntary Law (Book), Voluntary Law

Abortion, Infanticide and Euthanasia Under Voluntary Law

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I’ve proposed in a prior post that a neutral jurist determines a law to be imputed to a fetus or to an infant, just as in other cases. The jurist, naturally, does this job without the benefit of any words from the fetus or infant. The imputed law is based on the best available indirect evidence, including the adopted laws of the parties and the prevailing norms in the child’s community. Although the jurist exercises discretion in imputing law to the mute infant, she does so subject to the objective constraints of discoverable evidence. If a jurist rules against the weight of the evidence, she puts her own reputation at stake.

To say that abortion by the mother is always prohibited,  or conversely, is always permissible, is contrary to personal sovereignty at the heart of voluntary law. Any absolute rule on the legal status of a fetus would necessarily be based on either an arbitrary diktat of some ruler, or on a definition of “person” that falls outside of voluntary law’s foundational definition of personhood. A person is, according to voluntary law, a corporeal, mortal entity capable at some prior relevant time of language and legal discourse (among other things). Infants, fetuses, fertilized human cells, and the severely mentally disabled from birth fall into a special category that might be called “potential persons who have not yet (and may never) become capable of adopting and following their own laws, yet might become capable within their lifetimes.” For brevity, we may generally refer to such living beings as “dependent potential persons” or “dependent potentials,” as a general class including infants, young children and those born with severe mental disabilities. The fetus is a prime example of this class.

It might fairly be asked how imputing a law to a fetus that permits it to be killed without legal repercussions can ever be considered a voluntary choice of the fetus. As a living being, all fetuses (and zygotes and fertilized eggs) must be presumed to share the common instinct of all life: survival. Therefore to say that the fetus consents to its own self-destruction is to contradict its evident will to survive, and impose a law not of its own choosing. This argument is logical on its face, but consent should not be confused with legal consequences.  We may be sure that no fetus or infant ever consents to its own destruction, and do not need to pretend otherwise.  The question is what to do with those legally competent persons who, by some intentional or negligent act, have caused the life of the fetus to be taken away.  There is no particular logic that requires that all such intentional or negligent acts must have legal consequences.  On the contrary, both moral and economic considerations teach that sometimes the intentional killing of a fetus, however tragic, is morally justified, as when to preserve the life of the mother.   From an economic standpoint, preservation of life generally requires wholesale destruction of its own seeds. Nature teaches us this in many instances, for example with egg-laying animals that may lay dozens or hundreds of eggs, of which few survive to adulthood. Even mammalian species often bear litters, of which few survive under normal conditions. The economics of life dictate that not every individual can survive to adulthood, and in times of great scarcity, difficult choices must sometimes be made.

In the face of these moral and economic realities, no sustainable society can enforce laws in which every individual package of DNA capable of growing naturally or artificially into a person is owed a duty of nurture. If such laws were to be enforced, there could be no legal abandonment or disposal of inseminated eggs. Mothers could be held liable for the violation of rights of miscarried fetuses. No natural society could consistently observe such an absolute rule. Exceptions to the duty to nurture have always been be made for one reason or another, and would always be made in every conceivable society. It is commonplace in every human society for dependent potential persons to be neglected or actively suppressed in the interests of sustainability of the social order on which the as-yet unformed persons depend. So it should be evident that elevating the universal survival instinct to the status of a socially-recognized law cannot be consistently or fairly realized; in actuality it is impossible because of inevitable clashes between fecundity and scarcity. Customs, rules, and laws regarding treatment of infants and fetuses have historically varied with the times and circumstances.

On the other hand, civil society also depends on reciprocal respect for the sanctity of life, which is threatened when the rights of dependent potential persons to live are callously disregarded. The statist approach to this tension is to proclaim one rule concerning practices such as abortion, infanticide and euthanasia, however arbitrary or divisive, or unevenly enforced. The voluntary law approach is more granular, based on the individual social circumstances of the dependent potential person, and therefore not arbitrary or inviting of uneven enforcement. The task of the jurist is to identify the law that the dependent person would most likely adopt, were it in the position of a caretaker or guardian. Were the jurist to simply ask what law comports with the dependent potential person’s will to live, no practical answer is possible, as argued above. The only legal inquiry with a practical answer is, essentially, is “does the applicable law of the parties under TROTWET depart from the prevailing norms to such degree that some other law should be applied?” In other words, if the dependent potential person had grown up in the social context of its caretaker or guardian, what law would it have adopted?

In the case of a fetus and most infants, there is no closer person to the fetus than the mother. Absent extraordinary circumstances, the mother’s law should be the law applied, when harm to a fetus is litigated. If deference to the mother’s law prevails, legal remedies to prevent or penalize abortion will very seldom be recognized unless the mother’s law provides for it. In rare cases, a mother’s law might be disregarded or modified if contrary to clear community norms, objectively determined. For example, if mother who has adopted a permissible adoption law moves and lives as a long-term member of a community in which nearly everyone has adopted a law that penalizes abortion, she may naturally experience difficulty in finding a credible jurist willing to impute her law to her fetus. A competent jurist might find that had her fetus grown up in the community in which she has chosen to live, as an adult it would have chosen a different law. The mother would therefore be unwise to have an abortion there, as legal results would not be predictable. Conversely, if a mother adopting a law that penalizes abortion chooses to live as a long-term member of a community whose members recognize no penalty for abortion, and after some sufficient time willingly aborts her fetus, legal penalties are unlikely to be enforced.

The imputed law of a fetus does not come into play in the case of legal actions against a doctor who performs an abortion, or by such a doctor against any attacker bearing an anti-abortion motive. Such controversies are decided under the laws of the parties. The fetus will not generally be a party to actions by a non-family complainant, for reasons explained in the following paragraph. When the fetus is not itself a party, the law that might be imputed to the fetus is not relevant to a choice of law analysis in these cases. Hypothetical disputes between an abortion provider and a third party “defender of fetuses” have been considered in an earlier post.

Imputed fetal law will not commonly be at issue, because disputes in which a fetus is a party will be rare. Something akin to the notion of “standing” will naturally limit legal actions by unrelated third party guardians. That limit “akin to standing” is the natural limit on the right to receive damages on behalf of an injured potential dependent person. Damages for ordinary murder will normally (assuming most victims prefer it) be payable to the estate of the murdered, and from the estate to the heirs designated by the law of the victim. In the case of abortion, the closest next of kin and likely imputed heirs will usually be the parents, who can be trusted to not sue themselves for damages. An unrelated third person will not stand to receive damages: under any reasonable rule, what reason is there to reward a stranger for the misfortune of a fetus?

There are some cases in which a rightful claim to damages arising from abortion might be enforced. For example, one parent might sue another to prevent an abortion or collect damages for one performed. Imputation of fetal law might arise in special circumstances such as disputes between family members, as when a related-party guardian sues a mother for damages on behalf of an aborted fetus, or in the unusual case where an unrelated guardian learns of another’s intent to abort, sues for an injunction to prevent an abortion from being performed. For example, a person who has paid a surrogate mother might (or might not) have a legitimate interest in seeing a viable pregnancy carried to term. Such claimants might sometimes seek imputation of a law to the fetus if the mother’s law is unfavorable to their cause, and the context clearly supports the imputation of some other law.

Cases that arise after abortion are analogous to litigation on behalf of deceased victims. The parties to the action are the victim and whomever the guardian is seeking damages from, for example, from the mother or from a doctor who performed the abortion. Where suit is brought on behalf of the fetus by an heir or legally potential caretaker, the applicable law is that of the fetus only, which may be imputed based on the circumstances. TROTWET does not apply, when law is imputed to a dependent potential person, as explained in a previous post. The neutral jurist will ask: were the fetus in the position of the mother, what law would the fetus hold? Absent other evidence, usually this imputed law will be the law of the mother, provided the mother has not recently changed her law merely for convenience’s sake. However, if the mother’s law is a rare outlier in a place where nearly all other mothers do not freely permit abortion, and where the mother plans to reside indefinitely, a jurist might conclude that more likely than not, were the fetus to grow to become a parent, it would likewise recognize a prohibition on abortion. In these very rare cases, a guardian might, for example, obtain a ruling requiring that the mother give birth and either care for the child or give it up for adoption. If a legal action is filed post-abortion, damages might be paid to the guardian or to some designated fund, for example, to a charity that represents the rights of the unborn, or that finds homes for orphaned children. Actual outcomes are likely to be highly varied and tailored to the context at hand, based on the voluntary law applied.

For emotional issues such as abortion or euthanasia, it is possible that some jurists may always impute a fetal or infant’s law with consequences for performing an abortion or infanticide, while others might always find abortions or infanticides non-actionable if performed with the mother’s consent, subject perhaps to other conditions. The approach suggested for imputing a law to the fetus provides a way to distinguish between mere consistency by happenstance, and unacceptable bias. If a jurist always rules one way despite hearing cases with different mothers’ laws, absent extenuating circumstances the jurist is plainly biased. The credibility and livelihood of any jurist who hears a large number of abortion cases and consistently rules one way regardless of the evidence at hand would quickly be destroyed. Any rulings tainted by that jurist would be rendered unenforceable, in any community that values neutrality in due process of law.

It might be feared that communities in which juristic neutrality is not valued might come to exist. Suppose, for example, a community is intolerant of jurists who are unwilling to rule one way or another, in the sense that the rulings of any jurist who rules against community norms are practically unenforceable. Widespread enforcement bias might sometimes lead to results contrary to basic justice under voluntary law. However, absent concentration of capital and political power such as states enable, maintaining enforcement biases contrary to reason and justice over large areas for long periods of time will not be possible. If there is a sufficient market for justice of one flavor or another, providers will spring up to meet it.

It can fairly be asked whether providing jurists with the power to impute law to fetuses and other potential persons grants too much power to the jurist. Does relying on community standard bring back the state in another, more subtle guise? No, because there is no actual “standard” outside of a consensus between jurists of good reputation. In fact the opposite problem of disagreement between equally reputable jurists will be more commonplace. Such non-uniformity, if intractable despite good faith efforts, may be evidence that the supposed community standard is not clear enough to support a legal ruling. The potential person will therefore have its rights disposed of under the more usual tool of TROTWET applied to the laws of the parties, or not at all.

Suppose, for example, that the father of a fetus sues the mother for an injunction to prevent an abortion. A first jurist holds that community standards require the pregnancy to be carried to term, under the circumstances at hand. The mother appeals, bringing the case before a second jurist. The second jurist finds there is no community standard regarding abortion, and rules that under the mother’s law the abortion cannot be prevented. If the jurists are of similar reputation, enforcers willing to enforce the first jurist’s ruling will be hard or impossible to find. Reputable enforcers will not want to risk a claim of damages based on the second jurist’s ruling. Although the power to impute a law under limited circumstances grants discretion to a jurist, such discretion cannot be exercised absent a very compelling reason that would be clear to every reputable jurist available to hear the case. Thus, the power is merely a sort of check against loathsome conduct by caregivers, and cannot function as a tool for leveraging judicial influence beyond the constraints of personal sovereignty.

Once a child is born, the adopted laws of other parties to litigation may be given greater weight, as the infant is no longer dependent solely on the mother for survival. In any event, controversies over abortion are no longer possible, once the baby is born. Although repugnant to most modern cultures, infanticide is not unknown in present or historical societies, especially of infants born with severe genetic defects. The legal questions under voluntary law are not much different than abortion, with the important difference that the infant is capable of surviving independently without care for a considerable period of time. Social norms would provide to an abandoned infant a law requiring some reasonable duty to provide care, even if parents abandoning an infant somehow lacked such a law. The standard of what is “reasonable” under the circumstances will vary based on context. For example, what is reasonable in New York City or Omaha may differ from what is reasonable in isolated, resource constrained societies, for example, aboriginal Amazonians or a small colony on the moon. Infant abandonment has been considered in the previous post.

Other cases that touch on the legal rights of dependent potential persons may include abuse, euthanasia, competing caregivers, probate and right to inherit, and actions by or against a legal estate of the dependent potential person. To determine what law to apply, the jurist first determines whether or not the legal interests of the dependent potential person are at the heart of the case. Essentially, the jurist determines whether a claim based on harm to the dependent person, or a claim for or against a property interest of the dependent potential person is at stake. If so, the jurist first determines and imputes a voluntary law to the dependent potential person, and then applies the imputed law. If no such claim is at stake, the jurist applies TROTWET to laws of the parties. Thus, the dependent potential is a party in cases of abuse, infanticide, euthanasia, or the infant’s property rights.

The potential person is not necessarily a party in cases of competing caregivers (e.g., a custody dispute), absent an allegation of abuse. Therefore TROTWET applied between the competing caregivers determines the outcome. The weaker law in a custody dispute is like antecedent basis in property law: the law with the most stringent antecedents to a claim of custody wins. The jurist may evaluate stringency based on some community standard. For example, suppose a father’s law states that sole custody should be awarded to the parent most capable of providing economic support, whereas the mother’s law states that custody should be awarded to the parent who spends the most time personally caring for the child. We can hope that such disputes would be very unlikely because all responsible parents will adopt mutually agreeable laws providing for shared custody in the best interests of a child, before parenting a child together. Nonetheless, some children are conceived and borne without due forethought, and just such children are more likely than others to become subjects of custody disputes.

How is a jurist to determine the weakest of competing custody laws? Which antecedent is more “stringent”: providing economic support, or providing personal care? The child needs both types of support, and both require roughly equivalent measures of exertion. If both parents have demonstrated support for the welfare of the child, a sage jurist might declare a “tie” and help the dueling parents work out a shared custody arrangement. If one of the parents has been negligent, it little matters which law is applied, because under either law, the custody will be awarded to the sole supportive parent. Where the custodial claim is spurious, it might easily be recognized as such with or without application of a comparative principle such as TROTWET. A wise jurist does not seek perfect compliance to any idealized mathematical model for applying voluntary law, “stringency” included, nor seek to play logical games for their own sake. Instead, the wise jurist seeks to do justice within a framework that respects the personal sovereignties of the parties and of the dependent potential person involved in the dispute more than rules imposed from the outside. Concepts such as “stringency” are suggested here as guides to realizing underlying principles of justice in specific circumstances, and not as infallible laws applicable in all circumstances. Where these concepts provide no clear answer, or provide a clearly unjust answer, the ruling should be made on the basis of more pertinent and illuminating criteria.

The case of euthanasia of a once-capable dependent differs from the case of the dependent potential person. The case of a mercy killing would be judged under the applicable law of the one killed, as with any other case involving two parties. It will be almost guaranteed, however, that the person performing the killing will have adopted a law that permits assisted suicide or perhaps mercy killing in limited conditions. For example, killing a person with the permission of the caretaker, or by the caretaker, of a chronically uncommunicative dependent in a medically incurable state with an extremely low chance of recovery, might not be regarding as a cause for any action. For TROTWET to excuse such mercy killing, it will be important that the rule is written as positive law and not as an affirmative defense, as has been noted.

A person opposed to mercy-killing should therefore appoint a caretaker who is also opposed to mercy killing, to avoid a hastened but merciful demise. But what if the killer’s law does not require the consent of the dependent’s chosen caretaker? Such a person would be unnecessarily inviting legal action by offended caretakers. Mercy killers operating without consent would not normally exist, because it would be more expedient for them to pursue the occupation of mercy killing with caretakers’ consents to avoid legal and extra-legal risks.

Supposing, however that the mercy killer has an uncanny knack for selecting suitable victims against caretakers’ wishes, would there be any legal recourse? The bold mercy killer would inevitably face charges of ordinary murder from angry caretakers.  If the killer had failed to adopt a law against ordinary murder, he would quickly wind up dead at the hands of an aggrieved caretaker. Unless, of course, every one of the caretakers lacked any basis for showing that the killer had acted beyond the authority of his own reasonable mercy-killing law. In which case, the killer’s aptitude for selecting suitable victims would be uncanny indeed.

What if the mercy killer acts under an unreasonable mercy-killing law? Such a killer faces several risks. For one, a jurist might hold that the unreasonable mercy-killing defense is an affirmative defense, which will not be applied under TROTWET. Second, by publicly adopting an odious law, the killer shows himself to be a monster, losing friends and making enemies. Finally, the killer risks being mercy-killed unreasonably by any other person, if his law is deemed to be a positive law, under principles of TROTWET as have previously been explained.

Intertwined voluntary law societies obviously cannot and should not be expected to provide one uniform resolution to divisive and difficult social issues. These societies will instead permit experimentation, transparency and above all, acceptance of conflicting beliefs on difficult moral and legal questions that fit within its foundational limits. Abortion, infanticide and euthanasia provide examples of such difficult questions, which are fully capable of resolution within voluntary frameworks. In the case of the laws to be applied when harms to dependent potential persons are litigated, voluntary law provides a framework for dispute resolution that is both considerate of the practical realities of sustainable societies, and deeply rooted in respect for the life and self-sovereignty of every society member, present and potential. Voluntary law can do this without contradicting the essential meaning of a “person” as one who is capable of acting intentionally and deliberately with knowledge of articulated laws governing social conduct.

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Dependents, Introduction To Voluntary Law (Book)

Children and Other Dependents

Different voluntary laws are in some sense “compatible” when consistent with the three pillars as defined earlier: personhood, voluntariness, and publication.  A logical system for resolving conflict of laws follows by rational deduction from these core principles.  There may be incompatible systems of voluntary law; for example, those that use an incompatible definition of person.   Here a distinction must be made: systems that define personhood based on some arbitrary characteristic (for example, color of skin, language, eye color, beliefs, etc.) are not systems deserving of interest.  They may arise and exist as backwards curiosities, but will not thrive in the face of universal definitions of personhood that rest on the corporeality of the individual, possession of a moral sense, and the capacity to understand, adopt, and follow rules governing resolution of conflicting rights or claims on a reasoned basis.  There may exist debate about these fundamental prerequisites to personhood, and when they apply.  Some issues of such debate were touched upon in an earlier chapter.  Interesting real-world problems do arise, however, over treatment of “temporary” non-persons, such as minors or mentally disabled persons, treatment of collective entities, animal rights.  More exotic questions such as artificial or alien life may deserve a little attention as future possibilities.

Speaking of fetuses, infants, children, or others incapable of looking after themselves, when is intervention justified in a caretaker-dependent relationship? What law should be applied to justify intervention, when the subject is incapable of adopting her own law?  An ancillary question concerns what actions are justified when no legally responsible caretaker can be found for such a person.  If every dependent person (or potential person) has an uncontested caretaker, who treats the dependent in a manner consistent with prevailing customs, legal controversies do not arise.  Legal questions can arise chiefly when dependents are abandoned, are the subject of caretaker disputes, or are treated in a way that those willing to take defensive measures regard as abusive.

For purposes of voluntary law, we may divide dependency questions into two essential classifications: those in which the dependent was at least at some relevant time capable of functioning as a legal person, and those in which the dependent has never acted as a person in the legal sense and is reasonably regarded as lacking the capacity to do so for all relevant times.  There may be, of course, controversy or doubt as to which class a person belongs to, or gradation along a spectrum from incapacity to capacity.  Nonetheless, exploration of the legal middle ground depends from the opposite classifications that define its boundaries.   We shall explore how voluntary law might work in the gray, intermediate zone between clear legal capacity and clear incapacity, after first considering how dependency works in the end conditions.

“Relevant times” means those times relevant to the legal question at hand.  For example, in considering the validity of a power of attorney, the relevant time is that time when the power was granted.  At some time afterwards, the grantor may be completely incapacitated (e.g., may be suffering from a severe brain disorder).  The subsequent lack of capacity may not be relevant to the validity of the power, depending on its terms.  For further example, the relevant time for an aborted fetus is the time up until abortion and death of the fetus.

A dependent relationship between two legally capable persons may take the form of a contract or agreement, a grant of power, a temporary agency or rendering of assistance or other circumstances in which one legally capable person depends on the actions of another.  These relationships are easy to analyze.  In a wholly voluntary law society, any controversies arising out of such dependencies are treated under the laws adopted by the participants, using some rational system for resolving conflicts of law, such as TROTWET.  The capacity of a person to act in the adoption of law may be an issue in certain cases, just as is it conventionally for purposes of contracts, criminal intent, testamentary capacity, and in other cases.  There are many different possible factual scenarios.  For example, a dependent who previously adopted a first law ‘A’ and later ‘B’ might have the adoption of either ‘A’ or ‘B’ challenged.  If there is sufficient evidence that the adoption was not made intentionally by the dependent while being in a mentally capable state, the adoption of law might be nullified by judicial action.  For example, a later adoption of law ‘B’ might be nullified and the dependent’s law therefore might be considered to be ‘A’ and only ‘A’.  If the adoption of law ‘A’ is also nullified, the dependent may fall into the status of a dependent outlaw, similar to a child who has never adopted any law.  Treatment of dependent outlaws will be considered below.

First, however, consider the possibility of conflicts between the law of a non-outlaw dependent and the law of another person who acts as a caregiver.  Such conflicts may come into play, for example, when the caregiver brings an action to spend assets belonging to the dependent for the dependent’s care, or for a declaration of property interest in the dependent’s estate.  Conversely, another acting as a guardian under the dependent’s law might bring an action to recover damages from a negligent or abusive caregiver, or to seek termination of the caregiver relationship.  In the sense used in this essay, a “guardian” should be understood as nothing more than a self-appointed  legal representative who asserts the dependent’s law on behalf of a dependent.  A “guardian” is not appointed by any jurist, and has no special powers to act on behalf of the dependent.  In bringing a case before a jurist, the guardian bears the risk that the jurist will not interpret the applicable law in a way that favors the guardian, just as any other litigant.

Consider the result if the property claim or asset request is permitted under the caregiver’s law but not under the dependent’s, or vice-versa.  In either case the claim will fail, under TROTWET.  Naturally, this will create a shortage of payment for continuing care, if the dependent has not previously executed an agreement permitting the caregiver to spend the dependent’s property for the dependent’s care.  Unless some legal action can be taken, a dependent who is incapacitated and unable to act on his own behalf will be deprived of the benefit of his own property.  On the other hand, if the dependent’s law clearly preserves the estate to the detriment of continued care in the situation at hand, the jurist cannot assume that the dependent would prefer that the estate be wasted for continued care and not be inherited by an heir.  In these cases, the legal effect of adopting a clear law on the question would be similar to the granting of a “durable power of attorney” or a “do not resuscitate” order, under the law of many U.S. states and other places.  No person should be required to waste their estate on extraordinary care for the last days of life.

In case of action by a legal guardian under the dependent’s law against a caregiver, consider what happens if the recovery is permitted by the law of the dependent but not the caregiver, or vice-versa.  In either case, the recovery is not permitted.  Such an outcome can easily be guarded against before the disability arises, either by appropriate adoption of law or appropriate selection of a caregiver or class of caregiver, by the future dependent.  For example, the dependent’s law might provide that no person can be regarded as the dependent’s appointed caregiver whose law does not adhere to specified minimum standards for caregivers.  Thus, a person acting as an invalid caregiver would be vulnerable to claims of a general nature, e.g., trespass or assault, for care of a non-emergency nature.

Finally, we consider the treatment of dependent outlaws, of which the largest but not exclusive class consists of children.  Dependency of a legally incapable outlaw on a legally capable society member raises various possibilities for determination of law.  One possibility is to treat the relationship wholly under the law of the legally capable person, while treating the legally incapable person as an outlaw like any other.   Under this approach, the poor dependent person in the relationship would be deprived legal recourse for abortions, infanticides, child abuse, euthanasia, kidnappings, and all manner of horrors heaped upon her.  She would be treated under voluntary law as if she had consciously chosen to be an outlaw, despite lacking ability to escape by adopting a law.  Such an approach would create incentives for abuses against children and other dependents.  It is not worthy of serious consideration.

Another possibility is to apply the law of the caregiver, as if it were also adopted by the dependent.  This is the nearest choice.  Nearest perhaps, but applying the law of the caregiver to the rights of the dependent invites abuse by unscrupulous caregivers.  At the same time, abuse is no less likely if a third person with some interest in the outcome of a dispute is empowered to craft the law governing the relationship between the caregiver and the dependent outlaw.   For example, a rational parent would prefer to have no legal obligations to his children, and would be content to perform the duties of parenting under purely moral obligations such as felt by the parent’s conscience.  Conversely, a rational person in the business of child protection (without state intervention, of course) would recognize the essential need for a standard of legal protection of children, to enable the activity of child protection to be legally recognized.  Both classes of persons are capable of abuses, as well as good deeds.

There is really only one solution consistent with equal rights under natural law: to presume the child is person of good conscience who would not adopt a law against her self-interest, if she were capable of adopting any law.  The alternative, to regard the child or other dependent as entitled to no more rights than the property of the caregiver until emancipation, is contrary to nature: children are plainly not equivalent to livestock, being of the same kind as those who care for them.  Children are the fabric of future society, destined (with luck) to become equal participants in a society based on personal sovereignty and adoption of law.  Livestock and other animals incapable of language do not share the destiny of children, and belong to a different class of being.  In a system of law based on personal sovereignty, it is inconceivable that any child or immature person could be regarded as nothing more than the property of another.  That is not to say that the relationship between a caregiver and a child cannot resemble a bilateral property interest, in some respects.  Such a resemblance is indeed possible, as we shall see.

The question at hand is which law to apply to a dispute involving the rights of a child, when parties in conflict disagree about the law to be applied.  There will always be some conflict between persons in such disputes, because a dependent (not emancipated) child will be incapable of bringing her own case.  Put another way, a person of any age capable of bringing his own case, if it is truly his own without any legal claim of dependence on another, deserves to be regarded as a person with all the rights and responsibilities of self-sovereignty.

Conflicts touching directly on dependent children will often take the form of custodial disputes between estranged parents or relatives, and less frequently, allegations of parental abuse by child protection agencies, whether in the person of interested family members or neighbors, or as organized benevolent societies.  Other cases may involve a dispute between the child and an adult.  For example, the property rights of the child may be at play, or damages for an alleged wrong committed by or against a dependent child.   We shall consider the first class of disputes first.

Assessing the weaker tool is based on comparing the burdens that a law places on the sovereign parties to a dispute.  The underlying principle is that one cannot impose legal burdens on another that are not consented to, and that one would not accept for oneself, if the tables were turned.   However, this principle does not hold when the object of the claim revolves around the rights of a dependent person who has not selected any of the laws to be assessed.  If there is to be a weaker law selected, the analysis must not fail to consider the perspective of the dependent person, who has brought no claim.

Lacking any adopted law from the perspective of the dependent, if the dependent is to be regarded as a person, the jurist is compelled to consider what law a reasonable person in the circumstances of the dependent would adopt regarding the disposition of her rights, knowing that all the burdens and responsibilities of that same law would be applied to her if she were to someday become a parent.  This imaginary law cannot be fabricated from nothing; it must be supported by credible evidence and be developed objectively by a neutral, unbiased jurist.  It must not be standardized or imposed by some authority on community norms.  On the contrary, the law that is imputed by the child must be reasonable, contextually appropriate and customized to the child’s individual circumstances, as determined by an independent, neutral and unbiased jurist.

Such an imaginary law might resemble norms of the community to which the child and her family belong.  It might also bear a resemblance to the laws held by the disputants in the case.  Finally, the stated preferences of the dependent child and her siblings, if she or they are capable of expressing any, cannot be ignored in the determination of such an imaginary law, provided that the preferences are drawn out in a balanced and unbiased way by a neutral counselor, or estimated in some objective way from statements of similarly situated persons (e.g., siblings or fellow travelers).  For each person chooses law that fits their psychological preferences and is compatible with the community in which they are raised, and will raise their own children.  When a dependent outlaw is incapable of choosing his own law, a jurist must do it for him, from the perspective of the dependent.  Such a job will never be perfectly accurate, but nonetheless the justice of such estimations can be measured against standards such as suggested above, which is all that any law can do.

For example, circumcision may be considered conventional and desirable in some communities, and merely abusive in another.  Suppose a pair of parents circumcise their child for cultural or religious reasons.  Suppose that a grandparent who considers circumcision to be a grave form of child abuse unless medically necessary sues for guardianship of the child.  Assignment of caretaker responsibility for circumcision is clearly justified under the law of the grandparent, but not recognized by the law of the parents.  We might be tempted to recognize the law of the parents as the weaker tool, because it provides no remedy (change of guardianship) for the conduct complained of.  But what if a severer form of trauma had been complained of? Can we really accept an absence of any legal remedy for caretaker abuse?  Justice requires vision from the perspective of the child, so that the law that places the least burden on the child is the weaker tool. That would leave us wondering how to determine the “least burden,” in a circumstance without any lawmaker and thus, no justification for applying the weaker tool in the first place.  More simply, we cannot rely on the natural balancing of interest normally provided by the Rule Of The WEaker Tool in an action that directly impinges on the dependent outlaw, because the consequences of holding a weak tool do not fall on the law maker, but on someone else – the child, who holds to no law.

Accordingly, the jurist must identify the law that the child or other dependent outlaw would most likely choose were it capable of reasoning through the benefits and burdens involved.  This is a high degree of discretion, but a jurist who cannot reason persuasively and fairly in accord with the sensibilities of those who come to judgment will not be long in business.  Suppose the child lived in a community where circumcision was considered to be as ugly and depraved as most today would consider cutting off of noses and ears, the parents who circumcise their child would likely suffer some penalty, such as paying for reconstructive surgery and loss of, or restrictions on, their caretaker status.  Conversely, if the child’s community feels that circumcision is a desirable mark of honor or social belonging, there would be no remedy despite the opposition of the grandparents.

How can a jurist determine a law to be imputed to a fetus, or to an infant?  Just as in other cases; except that statements of these dependents cannot be taken into account, because they are incapable of speech.  Therefore the imputed law is mainly based on prevailing norms in the child’s community and the adopted laws of the persons at issue.  In the case of a fetus, there is plainly no closer person to the fetus than the mother, so the laws of the mother cannot be lightly disregarded, and will likely prevail in the vast majority of cases.

What if a community believed it necessary to sacrifice children to some god or demon?  If this were a community standard, must a jurist enforce it?  This is a nonsensical question.  A group of people who sacrificed children to the gods would not be a voluntary law society; it would be a group of outlaws who deny voluntary cooperation and use irrational fear and violence to oppress less privileged classes.  Such outlaws would not submit to the jurisdiction of a voluntary law jurist, and the question would never arise.  Nonetheless, somewhere between child sacrifice and circumcision lies a spectrum of parental behavior about with reasonable people might vehemently disagree.  Corporeal punishment provides a good example: to some, corporeal punishment is an inexcusable crime, no matter how implemented; to others, is it a useful if not necessary means of discipline. When disputes arise about corporeal punishment of a child, a voluntary law jurist will weigh the three factors of community norms, interested caretaker beliefs, and dependent statements (perhaps among other reasonable factors) to determine the limits of corporeal punishment in particular cases, and what remedies to apply when the limits are exceeded, as if crafting the law that the dependent would craft for herself if she could.  The judgment would be tailored to the individual circumstances of each case, including the underlying conduct, identities, and laws of the parties, community norms at the time, the age and statements of the defendants, and so forth.

The respect to which the judgment would be given would depend mainly, as always, on the strength of good reputation of the jurist, and the thoroughness and neutrality with which the record indicates that the case has been examined.  Results would not be perfectly consistent (nor have perfectly consistent results ever been achieved by any system of justice), but on the whole would tend towards greater justice than is possible when imposing a uniform rule on controversial questions.  Voluntary law permits diverse and conflicting opinions to coexist, with pressure towards uniformity coming mainly from the grassroots.  It is not an instrument for imposing uniformity against opposition.  Anyone publicly holding to a controversial law, however, will do so at the risk of her relationships with her community.  There can be social pressure to conform, but no aggressive coercion requiring it.

If a law is imputed by a jurist to a dependent person, is that law then subject to moderation under TROTWET or other conflict resolution principle?  Generally, the answer is no, assuming that the dependent is not a party to the action.  Most actions involving dependents, except those in which the dependent is close to capable status (e.g., is a teenager) will be brought by a guardian against a caregiver.  Suppose, for example, a guardian’s law provided for payment of the guardian’s reasonable expenses by the caregiver, if corporeal punishment by a caregiver is found to be abusive.  Suppose that the caregiver’s law provides no such remedy, even in the event of abuse.  If there were no dependent involved no damages would be assessed, but the caregiver would be vulnerable to attacks motived by vengeance as has been explained previously.  Because the controversy revolves around the rights of the dependent outlaw, TROTWET does not apply.  If the jurist determines that the dependent’s law requires payment by the caregiver for the guardian’s protective services, that will be the law applied.

The case of the intermediate-capable dependent is answered by the solution to the pure dependent:  the statements of the dependent are given more weight in judicial determination of its law, as the dependent approaches the full capabilities of independent personhood.  The teenager has more rights and responsibilities than the toddler.  The other factors diminish in importance.  Once the full capacity is personhood is reached, the jurist no longer determines the person’s law; the jurist merely reads and interprets what the person has adopted.  Determination of capacity in the intermediate zone works like a sliding scale.  These determinations may not always be exactly correct, but neither will they be far from a just result, and results in aggregate should tend towards justice.

A fully capable person may be recognized by the absence of any claim of dependency on another.  If a precocious youngster is able to articulate and understand his own law, but not to support himself by his own wits and labor, he is not fully capable.  His abilities and statements will be given weight, but to the full weight afforded to a voluntary law adopted by a capable and independent person.

If voluntary law can be imputed to the dependents of voluntary law society members, can voluntary laws also be imputed to the children or other dependents of outlaws?  In a philosophical sense, yes.  But in a practical sense, generally not.  Regimes outside of voluntary law will have their own rules governing dependent persons, or will be lawless.  In either case, there is no basis for bringing any adult person involved with the dependent unto a voluntary law forum.  If an abandoned child of an outlaw somehow comes before a voluntary law forum, and a society member appears as an interested caretaker, the justifications for providing the dependent with the benefit of voluntary law are as valid as for the child of any society member.  It is permissible to make provisions for the dependent within voluntary law, where the society of outlaws has broken down.  It is equally valid to return the dependent to the society of outlaws, if there is no caretaker willing to bear the risk of caring for a dependent of outlaws.

Providing dependent outlaws with the protection of an imputed personal law might sometimes create a relationship of mutual servitude between a caregiver and a dependent.  The caregiver might be deemed to owe a legal duty of care to the dependent, while the dependent may owe a duty of obedience to the caregiver.  Such obligations, however, will rarely if ever be involuntary, so long as the caregiver’s sincerely held choice of law is given its due weight in the analysis determining the law to be applied.  Voluntary servitude does not offend classical libertarian principles.  Voluntary law, however, may provide a means for guardians to legally enforce obligations of care under circumstances when the caregiver seeks to renounce obligations that he or she has previously undertaken.  Likewise, legal enforcement of the duty to obey may be exercised in the case of dependents who wish to receive the benefits of the caregiver’s duty of care.  If a dependent is able to emancipate himself or herself from a caregiver, she is always free to do so, consistent with classical libertarian principles.  However, a caregiver who by adoption of law has undertaken a duty of care to a dependent child can be legally required to honor that duty until the time of emancipation.

Promissory estoppel as known in the common law of contracts may exist when the promises of a person create detrimental reliance by another.  This concept may be extended to “promises” implied by publicly adopting a law. Suppose, by example, that a prospective father adopts a law under which he recognizes a legal obligation to support any natural offspring or adopted child until the age of eighteen or until emancipated, whichever is earlier.  While holding to this law he attracts a mate, who bears him a son.  Suppose the father then renounces his earlier law and adopts a new law without any legal obligations for child support.  If it can be shown that the mother relied on his law providing for an obligation of support in deciding to mate with him, the father may be said to be estopped from escaping the duty he had previously proclaimed openly.  Under voluntary law, the analysis can be directly based on the relevant time for the applicable law; there is no need to make a specific finding of estoppel, although it may be implied under such facts.   The relevant time for choice of law can be found to be the time that the son is conceived, because all the obligations of the father arise from the act of inseminating the mother under conditions in which he held to a law that obligated him to child support.  So long as the mother held and holds to a law obligating her also to child support, she has a legally enforceable claim for child support against the father.  If the mother hypocritically disclaims support obligations, she cannot claim more from the father than she is willing to provide herself.

Thus, when both parents acknowledge an obligation of support, voluntary law may provide similar but hopefully more efficient and individually tailored outcomes than we are accustomed to under some state-imposed family laws.  When one or both parent have by adoption of law disclaimed child support obligations at the time a child is conceived, voluntary law will provide a different outcome.  If one parent only has adopted support obligations while the other has disclaimed (or has not adopted) such obligations, the parent without obligations cannot enforce obligations against the other parent.  A guardian may step in to enforce the dependent’s rights against the supporting parent only, under the dependent’s imputed law.  In such case support would be paid in trust to the dependent only, not to the other parent.  Naturally, any person considering parenting a child would be prudent to investigate the law of the other parent before proceeding to conception.

If both parents disclaim or do not acknowledge support obligations at the time of conception, can a guardian of a dependent child legally enforce support obligations on the child’s behalf?   It will depend on the circumstances, but in general the answer is no.  But neither will any parent be able to prevent the guardian from intervening and assuming caretaker status.  Under an imputed law analysis, no rational person in a state of dependency would accept any claim or duty of obedience to a person who disclaims all duties of support.  Thus, if both parents disclaim support from before conception, they will not have any legal right to assume the exclusionary privileges of a caretaker with respect to the child, unless they adopt the attendant obligations of child support in a timely manner.  If imputing law to a child has any consistent result, it is certainly this: there can be no parental rights where there are no acknowledged parental obligations.

The extent of those obligations may vary based on voluntary law.  Nothing requires an absolute obligation of support, regardless of consequences.  For example, the parent’s law may provide that they are not legally required to sacrifice their survival for the survival of the child, or to do without basic comforts or medical care to provide every possible opportunity to the child.  Elegant expression of such limits may be left to the unlimited creativity of the writers of voluntary law.  Perhaps some will be inspired by the ancient Golden Rule, and provide that the duty of care owed by the caregiver to the dependent, or the parent to the child, is equal to caregiver’s duty to care for herself, neither greater nor less.

Being without legally enforceable support obligations to a helpless dependent does not equate to no obligations at all.  Nearly everyone’s law will include some duty of care to helpless persons.  For example, if a person faints suddenly in the middle of the road, most would recognize a legal duty of others to exercise due care to avoid running them over.  These principles are well known in tort law, sometimes expressed as a duty to not create an unreasonable risk to others. While some may disclaim such basic social obligations, they would be foolish to do so, both because it would greatly harm their reputations, and put them at greater risk of harm from others.  In the case of the helpless infant or child, such widely recognized duties would ensure that the parents locate a willing caretaker for the child before abandoning it, at least under normal circumstances in which some willing caretaker can reasonably be found.  Since there is no legal penalty for abandoning a child so long as a willing and capable caretaker can be found, the parents would not fear legal repercussions, and could openly seek a caretaker to assume responsibility.  In normal times, willing caretakers could easily be found.   Under circumstances of extreme stress, such as during widespread prolonged famine or military attack, legal duties of support have little meaning anyway, and difficult choices must be made.

When the dependent outlaw commits some harm against another, what is the law applied?  For this particular class of problems, there will be little controversy in selecting the weakest law from law of the caregiver and the law of the injured person, using a TROTWET analysis.  In most cases, the laws at play will call for restorative damages that the caregiver in the dependent relationship would be liable for anyway.  Few would disclaim such liability, lest they also lose timely recourse for harms committed by the children of others.  However, if the prevailing law does disclaim liability for the caregiver, liability for damages would fall to the child, under the law of the child as determined by the jurist.  Collection of the liability could be postponed until the child is reasonably able to earn money for paying a judgment.  The child would be eager to repay its debts, if it wished to participate as a reputable member of the larger society.  The child would find it difficult to establish a good reputation without showing that it has paid, or is in process of repaying, for debts arising from its own misconduct.  In the case of the most serious offenses, for example, murder, the fate of the child will depend on the findings of the jurist and the three principal factors previously discussed: community norms, the involved persons adopted laws, and the perspective of the dependent.  The child may receive a lighter penalty for her dependent status, or not: the outcome will depend on the context of the case.

In the case of abandoned dependents, a similar analysis applies.  The imputed laws of the dependent are paramount, and the role of the jurist in identifying the law to be imputed is magnified.  Capable parties in such action will be those with an interest in the welfare of the dependent, and any accused of shirking their responsibilities.  There will always be at least one party acting as a guardian, or the matter will not appear before a jurist.  If there is no parent or family member interested and able to take on the obligations of a caregiver, this role will be assigned to a friend of the family or even to a stranger, based on the determination of the jurist.  In any prosperous society, there will be intense competition for caregiver roles of young, non-disabled children, because of the social security afforded by the caregiver-dependent relationship.  In the absence of the state, one’s prosperity and security in old age may come to depend on one’s social status, of which membership in a large extended family will be an important part.

Even older dependents or disabled dependents will not lack options, which may be better that what can be provided by state central planning.  Older children without caregivers will arrive in such a condition by a diverse array of events, for example, a long period of undiscovered abuse by a caregiver, a rare tragedy wiping out the child’s family, or misconduct on the part of the dependent causing them to be abandoned.  Likewise, disabled children will suffer from diverse disabilities.  The point being that there are no “one size fits all” solutions to these unfortunate situations and each case needs to be considered on its own merits.

Consider some of the various possibilities.  In the case of disabled dependents whose caregivers lack the financial means, but not the will, to care for the disabled dependent to the extent the law imputed to the defendant requires, contributions for support can be solicited from various charitable sources.  Such charitable sources would certainly exist in a voluntary law society, in which a good reputation is more desirable than gold.  Some such sources would be involved in research for curing or coping with the disabled conditions, and others would support such care out of their general charitable mission.  If the caregivers lack both the means and the will to provide care, the situation would be much the same, with the exception that caregiver privileges could be assigned to another person.

In the case of a rare tragedy wiping out a dependent’s caregivers, new caregivers could easily be found.  Such stranded dependents are nearly as desirable as young children, and in some cases more desirable, because they may have a record of prior good conduct that reduces the inherent risk of accepting responsibility for a dependent.  In a voluntary law society, slight needs come with slight responsibilities, and every good deed enhances the reputation of the giver.  Many would find themselves blessed to provide care for such unfortunates.

The older dependent with a record of misconduct would face the least favorable options from the short-term perspective of the dependent, but even these options would be better than can be provided by a state under centralized political authority.  With a young offender, there is a greater chance of rehabilitation than an older person.  In a free society, markets will exist to meet the natural demand for managing troubled teens in a way that produces positive outcomes.  The most difficult teens are often the brightest and most energetic, and institutions with effective programs would produce their share of illustrious alumni.  Most of these alumni superstars would support the institutions that helped them in their time of need.  Not only so, many wealthy parents with difficult teenagers would pay dearly to send their children to such institutions.  These institutions for human development of troubled youth would compete to take in troubled youths who lack caregivers of means, because doing so enhances their reputations for success as well as for compassion, and adds to the talent pool for development of successful, motivated alumni.

Where caregivers of means are available, a jurist may require them to send the dependent to an institution, and to pay the institution’s tuition charges, per the law imputed to the dependent.  Caregivers may ignore a jurist’s ruling without fear that their child will be kidnapped by the institution, with rare exceptions when safety of the community requires that a violent youth be deprived of freedom for a while even against the caregiver’s wishes.  In most cases, however, the caregiver will consent to temporary incarceration of a youth with a record of harming others, to manage liability for the harm that the dependent youth may do to others in the future, and for the youth’s own protection.  If the jurist is of good reputation, and the dependent decides of her own will to attend the institution, the caregiver will receive an invoice for the tuition that cannot ignored without damaging caregiver’s credit rating or creating a risk of collection action.  On the other hand, if the caregiver forcibly prevents the dependent from attending the institution, the caregiver will be liable for any resulting damages that accrue to the dependent, or that the dependent inflicts on others, during the remainder of its dependency.  Accordingly, whenever a guardian has sued for an order admitting a dependent to an institution for restoring the reputation of a youth, diligent caregivers will work assiduously with the jurist to identify a solution that complies with the law imputed to the dependent and is mutually satisfactory for all people involved in the controversy, if possible.  Jurists in these cases would likely come to resemble family counsellors possessing a degree of social power to motivate cooperation from the family members appearing before them.

The principle of imputed laws for dependent outlaws can be applied to treatment of abortion, infanticide, and euthanasia under voluntary law.  These subjects will be considered in a following post.

It may not take a village to raise a child, but the environment in which a dependent is raised, including its “village,” may become a factor in the determination of the laws that should be applied to achieve justice in the dependent’s case.  The call for objective determination of the law of the dependent arises naturally from the bedrock of personal sovereignty.  This determination will require the insights of neutral, informed, compassionate and wise jurists.  Caregivers are generally the most important pillars of their dependent’s community, but in no case are they to be considered tyrants over their dependents, lest the core principle of personal sovereignty for every person be subverted.

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Overview, Public Interest Laws, Voluntary Law

Protection of the Environment And Other Social Action

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Photo Credit to Karen Dorsett

https://www.flickr.com/photos/biggertree/

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

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