Voluntary Law

Public Adoption, Individual Responsibility

Then the eyes of both of them opened, and they knew they were naked; so they sewed fig leaves together and made coverings for themselves. Genesis 3:7 (NET Bible). This aspect of the story of the fall might be interpreted as an allegory for the origin of state-imposed law as a sort of cover or justification for human behavior, which when viewed with open eyes, is undeniably shameful. Once humans were capable of distinguishing between good and evil, and hence capable of experiencing shame, they sought to justify naked aggression by cloaking it in the sanctity of authority, or authoritarian forms of law.

Little has changed since this development in human evolution. Follow any liberty-minded blog, social group, or media outlet and it won’t be long before grave and disturbing allegations emerge about unethical, morally obtuse and cruel conduct of government officials, police, judges, bureaucrats, lawyers, tax collectors, soldiers, and other lackeys of the state, both in the historical record and in the daily news. All too often, such allegations are true, or even a matter of official record.

All too often, the perpetrator of cruel and malicious deeds excuse themselves by saying “it’s the law.” Steal all a man’s possessions, and lock him in a cage for years for selling an illegal herb? “It’s the law.” Imprison a farmer for selling raw milk? “It’s the law.” Molest and thoroughly search every passenger of public conveyance, and seize any large quantities of cash discovered? “It’s the law.” Surveil and record every person in the land, without their knowledge or consent? “It’s for national security.” Sentence a whole people to slavery, and their culture to death? “The government said it couldn’t be avoided.” Pollute the genome of an entire planet? “It’s perfectly legal and patented.” Invade countries without provocation, killing and impoverishing millions in pursuit of geopolitical goals? “It’s a constitutional imperative.” So many laws, so much authority — and so much evil.

If the people who do such evil feel any pangs of conscience, they mollify themselves with the laws or state authority they feel bound to follow, no matter how immoral. No individual person feels any moral responsibility for the law itself, and very few have the power to influence its making. The law just happens, is controlled by those in power, must be obeyed, and excuses conduct that would otherwise be condemned.

Despite the dismal historical record of the state and its minions when it come to moral behavior, when challenged with the possibility of voluntary law, the reaction of some is to say “Who is to prevent people from adopting immoral, evil laws?” What a silly question!! The condemnation of one’s fellows! In a word, shame. Voluntary law strips away all the fig leaves and excuses of the law. It leaves individuals nothing which which to cover those most intimate moral choices which, if carelessly formed, might expose them to shame.

Voluntary law is made operational by individual, public adoption of law. Voluntary law is both public and personal by definition, at its most essential core. No person who claims to follow voluntary law can hide behind a law of a collective or higher authority. No collective or authority can adopt or impose laws; only individuals can, and only for their own selves. Any person who adopts voluntary law must do so openly. Every person must display their chosen law for all the world to see. And all who see it will know that the law is chosen voluntarily, without coercion or fraud. Each person must take care that their moral nakedness is not overly repellant to others.

If a voluntary law is evil, it is because the person has individually chosen evil, or has negligently chosen an evil law, or is morally obtuse. No person, therefore, will dare to adopt laws that are widely condemned by others. No person wishes to feel the sting of righteous condemnation from every person around them. To err is human, and temporary lapses to evil can be forgiven, if the evil is repented and its resultant harm compensated for. But a person who chooses a plainly evil law? Unless done by mistake, there is nothing to forgive. Such a person has simply chosen evil, and will rightly be condemned and avoided.

Under voluntary law, no employee of a collective can be excused by the law of a collective. No police action can be excused by the law of a state, no employee by the law of his employer. Each person agrees to be judged by the law they have voluntarily and personally adopted. Each person is individually responsible for the law they obey. It is not possible for wrongdoers to hide behind a duty or law imposed by a higher authority. There is no higher authority, except for ethics itself.

What happens when the population is evil, or deluded? If there is no controversy in a law, and the law is voluntarily chosen by all to whom it is applied, what basis is there to call it evil? Perhaps what seems evil to some is merely different, an adaptation to a different environment that seems necessary to others who are differently situated. Perhaps such moral differences are a necessary feature of life in any sophisticated social system, and are better accommodated than denied. Nonetheless, there is a possibility that certain types of moral divisions, such as divisions over the rights of children or animals incapable of choosing a law for themselves, may inevitably lead to extra-legal enforcement. For example, a division between voluntary law societies that permit infanticide and those who prohibit it may lead to forms of individualized or collective coercion against people who have properly advertised a different moral preference. Such instances are at the margins of voluntary law, and a preliminary analysis is here. Such divisions may inevitably lead to tragic outcomes, but the outcomes under voluntary law would almost certainly be substantially less tragic than outcomes under statist law, in similar circumstances.

What about the truly intransigent? Surely there will always be a few suicidal or self-hating persons who will adopt odious laws with the intent to offend. Must these troglodytes be tolerated? If such people accept the principle that they cannot enforce their odious laws on others without voluntary consent, then what is the harm? The harm is only to the person who voluntarily adopts the odious law. And if such person does not accept the constraint that no law is enforceable unless previously voluntarily adopted by the person on whom enforced, we are no longer in the realm of voluntary law. We are instead in the realm of the present day, the realm of imposition of law by force, the realm of the state and the fall of humankind.

Under voluntary law, therefore, shame is an important moderating force on public adoption of law, and consequently, on private behavior. Shame forces widely condemned moral preferences out of the entire system. Another moderating force on adoption of law is reciprocity. Reciprocity accommodates what are regarded as morally defensible differences in choice of voluntary law. Reciprocity prevents people from using the voluntary law as a predatory tool, while allowing each to live as much as possible within the framework of their own moral choices. Between shame and reciprocity, self-governing voluntary law societies may be far more highly regulated and well ordered than anything possible under authoritarian systems of law.

Appeal

Appeals In Voluntary Law

Claimants or defendants will often be dissatisfied with outcomes of judicial proceedings, and seek to appeal. In statist systems, particularly common law systems recognizing binding judicial precedent, the primary purpose of appeal is to maintain consistency between rulings of lower courts. Appeal prevents renegade courts from creating precedent contrary to the will of the highest court. Correcting injustice is a secondary effect, and the dissatisfaction of litigants is merely a motive force.

The motivation and operation of appeal is completely different in voluntary law. Judicial precedent does not exist. Uniformity is maintained by the market forces that control the content of voluntary laws. To the extent the law contains ambiguities allowing for different results on similar facts, it is because the people see this ambiguity as a desirable thing. If people want more specificity, they are free to adopt more specific laws. Thus, there is no need for appeal to maintain consistency or develop judicial law. There is no higher court to enforce its will.

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

Another option, in cases where a decision includes a purportedly enforceable judgment, is for the losing party to convincingly show that the judgement is fatally defective and unenforceable, to any and every enforcement service hired to enforce it. Like jurists, enforcement service providers will generally be subject to malpractice liability. Admittedly, redress against or appeals to enforcers may be a less satisfactory option, because it may require repeating the showing to different enforcement services, and might be countered by hiring less reputable, more judgement-proof enforcers. Nonetheless, it will at least raise the cost of obtaining reputable enforcement services to enforce judgements, and may sometimes render judgements entirely unenforceable. Either way, such post-adjudication defense activity would create settlement pressure similar to that created by appeal under statist systems, and pressure for higher-quality juror decisions. In general, enforcer liability is an effective check against unjust judicial decisions, and one almost entirely lacking under statist systems.

To reduce risk of malpractice liability, groups of jurists may offer a system of appeal, or other quality control measure, as part of their services. Claimants selecting such service group might agree that judgment is not considered final until all appeals offered by their group are exhausted. Claimants might be willing to bring their business to service providers offering appeal (or perhaps a means of quality control generally accepted as more cost-effective than appeal) to reduce the risk of poor quality, unenforceable judgments.

Might claimants choose forums where no appeal is offered as part of the service, to avoid risk of reversal? Perhaps in some cases, but generally only when the claimant is quite confident of their claim, or the case is small. As noted in an earlier post, claimants might tend to select more reputable, comprehensive juror services for difficult or important cases, and cheaper, less comprehensive services for easy or less important cases. Statist systems offer similar options to the claimant, in the form of different general and limited (e.g., small claim) courts. Often, limited courts have corresponding limited or no right of appeal, even in statist systems.

Finally, people may choose to adopt voluntary laws that require winning parties to submit to a re-hearing or appeal of a specified type, after a first judgment. Although such legally-granted rights of appeal will necessarily be limited by the principal of reciprocity, they will nonetheless apply in many circumstances.

So we can say with confidence that appeal, review, re-hearing, and other quality control measures for judicial process will be present in voluntary law societies, to the extent demanded by the free market.

Conflict of Laws

Unopposed Claims and Legitimacy of Judgments

A Claim With No Defendant

The conflict of law rules developed thus far depend mainly on the status of the parties as claimant (plaintiff) or defendant in determining which law to apply. Usually, this approach works. In every case, there is always somebody to request a judgment. So if “claim” is defined broadly as “a request for judgment,” there is always a claimant. And there is usually a defendant to oppose the claim.

However, some legal actions exist in which there is no person to oppose the claim. Some examples include declarative actions such as adoption, conservatorship, guardianship, emancipation of a minor; the probating of a decedent’s will; and claims to confer title over unclaimed property. Such claims may sometimes be opposed by someone other than the defendant; for example, a person acting in the the “public interest.” In other cases, no opposition exists. Absent some check, the ability to select the law applied in cases with no opposition would give claimants free rein. Also, if there is an opponent but no identifiable defendant, should the opponent automatically be regarded as the defendant for purposes of choice of law?

In authoritarian legal systems, it is the responsibility of the designated authority to ensure that unopposed claims are well-regulated, and if necessary, opposed by a representative of the state. In so regulating, state interest is paramount, typically followed by special interests and thirdly, public interest. Lacking any imposed authority to oppose claims, must adjudicating forums in voluntary law societies grant all unopposed claims?

Clearly not, in a superficial sense. If all unopposed claims must be granted, the adjudication would become a mere formality. As such it would be unnecessary, and like all unnecessary expenses in a free society, avoided. The more pertinent question is whether the forum must follow claimants’ law where no defendant exists. If all unopposed claims must be decided under claimant’s law, the adjudication still retains its judicial function. However, the law that is applied will nearly always comply with the claimant’s selfish interests, which will tend to multiply up to the limit of provoking opposition.

Under the concept of legitimacy, opposition to unjust claims can and should come from the judges themselves, to preserve their hard-earned reputations. In free systems such as voluntary law societies, judicial legitimacy must be earned, as there exists no authority to grant it. In contrast, legitimacy in authoritarian legal systems is sometimes conferred partly by politics, always at least partly by exercise of coercive power, and usually partly by a claim to moral authority. In other words, people grant legitimacy to judgments of government courts because of some mixture of (a) lack of effective power to oppose edicts of the courts; (b) widespread beliefs that the courts usually do the right thing, coupled with rational ignorance or acceptance of judicial misdeeds; and (c) an assumed consent of a majority or powerful minority of the people to the power of the courts. None of these factors applies in voluntary law societies, except (in a rather different sense) the last.

In voluntary law societies, people are initially skeptical of every adjudication forum, before its reputation is established. Every forum must build its own reputation, and none can exercise coercive power in doing so. Each forum can build its reputation in several ways. For example, by performing high quality services (e.g., prompt, courteous, and accurate) and by issuing high quality judgments or settlements that are seldom or never successfully appealed (more on appeal in a subsequent post). For further example, by issuing a lot of such high quality judgments and making a name for itself. It may perhaps seek certification or approval from various consumer rating or certifying organizations, which must first establish their own reputations by not certifying or approving others too easily. And so on.

An adjudicating forum that either is unproven or has a reputation for issuing poor quality or biased judgments will find that its judgments are not respected. And if its judgments are not respected, they will be much harder to enforce, if at all. Because under voluntary law, there is no sovereign immunity. Judges can be held liable for issuing non-neutral or negligent judgments, and law enforcers can be held personally liable for enforcing judgments that they knew or should have known were of poor quality. Most neutral enforcers will therefore refuse to enforce any judgment that appears questionable or risky. Claimants may attempt to self-enforce shoddy judgments issued by sham judges under their own influence, but not without risking liability both for their enforcement actions, and for improperly influencing the judges.

In voluntary law systems, the ability to hold law enforcers and judges accountable for their actions creates tremendous pressure for adjudicating forums to only produce opinions that will be widely regarded as legitimate under fundamental principles of voluntary law (non-aggression, equality of persons, and reciprocity). Legitimacy will be supplied directly by acting in accordance with widely adopted moral and legal principles.

Some judges and enforcers may refuse to hear disputes or enforce judgements, without waivers of liability from one or more parties. This possibility cannot resurrect anything remotely like sovereign immunity in a free and competitive marketplace for judicial and enforcement services, for several reasons. First, claimants and especially defendants will refuse to grant liability waivers unless the judge or enforcer has gained their confidence, either by having an excellent reputation, and/or by some other means. Second, competition for paying clients will put considerable pressure on those providing legal and enforcement services to provide suitable, insurable warranties as to the services provided. If the quality of services are not good, and the service providers rely on waivers to avoid liability for the costs of correcting their own mistakes, business will go elsewhere.

Let’s see how legitimacy solves the problem of dealing with unopposed claims. Take, for example, adoption. Knowing that it can be held liable for allowing an adoption that is not in the interests of the person being adopted to proceed, the adjudicating forum will investigate and refuse to render a judgment of adoption unless it found the request to be bona-fide and in the interests of the person being adopted. But under which law? After all, if there is no defendant, mustn’t the forum apply the law of the claimant, who might have adopted extremely lax standards for adoption? In their present form, the universal conflict of law rules do not permit the hearing of a claim without any identifiable defendant.

We consider then a couple of alternatives. First, if there is no defendant to the claim, judges of the adjudicating forum may be regarded as the defendant. They are, after all, the parties whose reputations are at stake, as well as being potentially liable for negligent judgments. This solution creates opportunities for forum shopping, subject to the constraints of legitimacy discussed above in that forum. Judges applying laws widely viewed as violating the fundamental principles of voluntary law will find issuing such opinions to be much to their own detriment. The constraints of legitimacy are powerful indeed. This judge-based approach has the advantage of allowing every case lacking a defendant to be tried under voluntary law, if only a willing judge can be found.

In the alternative, the forum may look to the interests of the person who is most likely to be harmed by the claim, and apply the law of that person. Consider, for example, an orphaned child. A general rule may provide that, in the case of a minor who has not adopted any law because not yet gaining rational capacity, the law of the mother or some other party will be imputed. It seems reasonable to look to the person most likely to be harmed, but this approach suffers from a few problems. For example, it may be impossible or difficult to determine the person most likely to be harmed, such as in the case of a claim to previously unclaimed property. In addition, even if such person can easily be identified, it may not be possible to determine that the person has ever adopted any voluntary law. Therefore, difficulties arise both in determining which law to apply, and the necessity of turning some claimants away when no adoption of voluntary law by any person with a stake in the outcome of the judgment can be identified.

In another alternative, if there is an opponent to the claim that is not acting in the interests of an identifiable defendant, the forum could apply the law of the opponent. This approach would not work in cases where no opponent steps forward. Also, it would invite meritless opposition by opponents seeking to extort settlements from claimants, regardless of the merits of the claim or the opposition. Merely predatory opponents are not restrained by any concern for maintaining legitimacy. Also, applying the opponent’s law would be similar to applying defendant’s law for affirmative defenses, violating reciprocity and facilitating predatory behavior.

For these reasons, the judge or judges appointed to render a judgment should apply their own adopted law, but only in the limited case of claims not made against any person for which (a) it is not possible to identify any single person most likely to be affected by the judgment on the claim, or (b) if such person can be reliably identified and is incapable of adopting or refusing a voluntary law (e.g., an infant), it is not possible to ascribe adoption of any voluntary law to the person by any reasonable means (e.g., no family can be found). It should be emphasized that this rule should not be applied when the claim is made against a specific non-disabled person who is unwilling to adopt any voluntary law. Under the non-aggression principle, such non-adopters must be beyond the reach of voluntary law, and have the status of outlaws so far as recourse to voluntary law forums is concerned.

Let’s see how the judge-adopted rule would play out in another example: A space miner wants to bring a claim for title to an unclaimed asteroid in a voluntary law forum. The miner faces a choice. The claim may be heard by Respectable Justice, who enforces rather strict requirements on asteroid claims, including proof of first discovery and use, and a diligent search for competing claims turning up empty. Or, the claim may be heard by Dubious Justice, whose service motto is “No unopposed claim too audacious to grant!” If the miner selects Dubious Justice, the claim is certain to be granted quickly and cheaply, but the resulting judgment will be invalid if there is any later challenge to first discovery or use. If the miner selects Respectable Justice, the claim will require more time and money to obtain, but once granted is unlikely to be challenged due to Respectable’s reputation for diligence and fairness, and use of a law with more demanding requirements.

So which Justice will the miner choose? If the miner is very confident in the legitimacy of the claim, Dubious Justice might be a rational choice because of its greater efficiency, in the absence of any significant risk that the judgment will be challenged. If the miner is aware of competing claims or other legal challenges, it would be rational to select Respectable Justice, so that the matter is settled once and for all, and the investment in mining the asteroid can proceed without undue risk. Actually, if the miner is funded by third party investors or lenders, or purchases insurance for any risk related to the claim of title on the asteroid, such parties may require the miner to use Respectable anyway, just to avoid any cloud on the veracity of the miner’s title.

So it is apparent that the need for an appropriate level of legitimacy imposes a discipline on claimants to select an appropriate forum for the matter at hand, without depriving claimants of cheap and fast judgments in easy cases. There’s nothing at all wrong with cheap and easy justice for easy cases; in fact, it is greatly to be preferred to expensive and slow. Applying the law of the judge is beneficial in these types of cases, where there is no identifiable defendant. The claimant can pick an appropriate forum based on the level of risk involved, and the judge can manage the risks of hearing the case by adopting and applying appropriate laws, among other things.

What if the case is decided by a panel of judges? Then the panel may apply any law that has been adopted by at least one member of the panel. This can be left as a matter of agreement between the panel members.

Why require the judge to have adopted the law that is applied? To provide predictability for claimants in selection of forums. In any event, the market would impel judges to advertise which law will be applied in cases for which no defendant exists. Where the law pertains to claims lacking any defendant, there is little or no detriment to the judge in adopting a law that is advertised, because such law cannot be enforced against the judge personally. Therefore, instead of making conflict of law rules more complex by introducing the new concept of “advertising a law,” it is expedient to keep these rules simple by specifying the adopted law of a judge as the law to be applied in cases lacking an identifiable defendant.

Conflict of Laws, Reciprocity

Affirmative Defenses: The Difficult Choice

The Essence of Reciprocity in Voluntary Law

Choosing the law to be applied when an affirmative defense is raised creates a difficult choice. Should the defendant be allowed to raise all the affirmative defenses allowed under the defendant’s law? Or should the defendant be limited to those affirmative defenses that are permitted under claimant’s law?

First, a little background. For those who don’t know, an affirmative defense is like an excuse that excuses defendants from responsibility for their actions. For example, self-defense or defense of others can be an affirmative defense to battery or murder. Necessity can be an affirmative defense to trespass. Many other affirmative defenses are possible.

Affirmative defenses can be distinguished from positive laws on the basis of which party has control and responsibility for choosing and proving the elements of the action at hand. If the claimant is required to select and prove that all requirements are satisfied, the action is a claim under positive law. If this responsibility is on the person defending to escape liability for the claim, the action is an affirmative defense.

Which law should determine the affirmative defenses to a claim, claimant’s or defendant’s? Let’s start with the same rule as for positive laws: defendant’s law resulting in the greatest liability applies, unless applying claimant’s law would result in less liability. Let’s see how this approach plays out in a couple of scenarios:

Scenario A: Fanatic, who has adopted a law stating that any harm committed to prevent an imminent abortion is justified defense of others, hides in an abortion clinic and injures Sawzall, an abortion doctor, just as Dr. Sawzall is about to perform an abortion. The doctor seeks a legal remedy for the attack, and had previously adopted a law that does not recognize the defense of a fetus in cases where an abortion is elected by the mother. Fanatic raises his intended defense under the rule of defendant’s law of greatest liability for affirmative defenses, and the doctor is unable to recover for his injuries.

Scenario B: Luckless owns no property of significant value and adopts a law permitting poverty as an affirmative defense against continuing trespass. He then takes up residence in Rich Brother’s spare vacation house. Rich, of course, has adopted a law that does not recognize poverty as an affirmative defense to trespass but does recognize defense of property as a defense against claims based on coercive removal. Rich Brother cannot evict or obtain any damages from Luckless, who successfully raises poverty as affirmative defense to the claim of trespass. This is so, even if Luckless recognizes Rich Brother’s underlying property claims. Under Luckless’ rule, poverty is a complete defense depriving the property owner of any legal remedy for the trespass.

The result is the same as if Luckless had adopted a law that does not recognize rights in excess real property. Under defendant’s selection of law for positive claims, Rich’s trespass claim would fail because his property right in the vacation home is not recognized as valid under Luckless’s law. Either way, Rich has no legal remedy. Rich’s only option, apart from tolerating Luckless, is to physically remove Luckless extra-legally and plead the affirmative defense of defense of property in case Luckless brings a claim for damages based on the removal action. Rich can use any method he likes to carry out the extra-legal eviction, because he has adopted a law in which defense of property is a complete defense to any claim of excess force. So if Rich Brother shoots Luckless in both legs and throws him out the third-floor window, tough luck for Luckless. If Luckless were to sue for the violent removal, Rich Brother would obtain the benefit of both his positive property law and his affirmative defense, and escape all liability.

The foregoing examples illustrate the impossibility problem at work. Fanatic will never perform an abortion and therefore has no concern about the fetal defense excuse ever being raised against a claim he might make. Luckless owns no property and likewise has no reason not to adopt poverty as an affirmative defense to claims based in property; conversely, Rich has no reason not to adopt defense of property as an affirmative defense.

Unlike claims that are controlled by claimants, the defendants are in control of affirmative defenses. Thus, the impossibility of reciprocity problem coupled with defendant’s rule of affirmative defenses creates incentives for using extra-legal remedies for perceived but legal wrongs, without any risk of legal liability. This is problematic, to say the least. The power to select one’s own affirmative defenses cannot be allowed to create incentives for extra-legal remedies. If voluntary law creates incentives for extra-legal remedies, it will quickly lose legitimacy and cease to exist.

As an alternative, a conflict of law rule that applies claimant’s law might be considered; to avoid opportunism by claimants this should be “claimant’s law of least liability,” the logical converse to “defendant’s law of greatest liability.” Let’s see how this plays out in the next scenario.

Scenario C: Assume Defender, who has adopted a law stating that any harm committed to prevent abusive injury to a child is justified defense of others, becomes aware that Abuser has imprisoned Abuser’s own children and is beating them bloody every day. Defendant executes a daring rescue, freeing the children, but unavoidably injuring Abuser and destroying part of his home in the process. Abuser seeks a legal remedy for the attack, having long adopted a law that does not recognize defense of others as an affirmative defense, in cases where person being defended against is the father of those being defended. Under the rule of claimant’s law of least liability for affirmative defenses, Defender therefore cannot raise his intended defense, and must compensate Abuser for his injuries and property damage. Meanwhile, assuming Defender recognizes the affirmative defense of self-defense, Defender cannot recover from Abuser for any injuries inflicted by Abuser in self-defense.

This may not seem to be a very satisfactory result, but is not at all as bad as it seems. The hypothetical intentionally portrayed Abuser as unsympathetic to play with the reader’s emotions, to encourage clarity of thought. What if Defender mutilated everybody who so much as raised their voice to their children? Applying claimant’s rule of affirmative defense simply creates incentives for Defender to exercise care while rescuing children. Abuser may not deserve to be treated with care, but that is not the point. The point is that Defender cannot be permitted to effectively appoint herself judge, jury and executioner upon the general public, and must act with care even while performing meritorious deeds.

We may assume that under voluntary law, Abuser cannot claim a right to abuse anyone including his own children (such a law clearly violates the non-aggression principle and equality of persons), and may be held fully liable under claims brought on behalf of his freed children. The issue is limited to whether Abuser may exploit the impossibility of reciprocity problem to deprive Defender of any affirmative defense based on defense of others for defending Abuser’s own children. Suppose this result is permitted, and the tables are turned: Abuser attacks to defend Defender’s children (assuming Defender has become an abuser). Shall voluntary law permit Abuser to gain the benefit of Defender’s affirmative defense?

The no-hypocrisy rule would say no. Because Abuser has adopted a law that would result in greater liability, Abuser cannot receive the benefit of Defender’s affirmative defense that would result in less liability, if sued by Defender. Abuser must be judged under the same affirmative defense that he would permit for those he makes claims against, but only if applying his own law of affirmative defense would result in greater liability than applying claimant’s law. In other words, when raising an affirmative defense, defendant must do so under claimant’s law, unless defendant’s own law provides a weaker affirmative defense than claimant’s.

These examples illustrate how reciprocity and no-hypocrisy create incentives for people to adopt laws of affirmative defenses that will not deprive them of a similar defense if ever needed. This should prevent injustice in personal injury cases where impossibility of reciprocity is not a problem. In property case, where impossibility of reciprocity is a common problem, the effects of the proposed rule should be examined.

Let us revisit Scenario ‘B’ discussed above, Luckless versus Rich Brother. Under the proposed rule of “claimant’s affirmative defense of least liability, unless resulting in less liability than defendant’s affirmative defense of greatest liability,” if Rich Brother sues Luckless, who recognizes Rich Brother’s property right to his spare home but has adopted poverty as an affirmative defense, Luckless is limited to Rich Brother’s affirmative defenses which do not include poverty. Rich Brother can therefore obtain an order to legally evict Luckless from his vacation home.

However, if Luckless has adopted a positive law that does not recognize any property interest in, say, any home not resided in for at least 50% of the time in any given year, Rich Brother will lose unless he resides in the home for at least half of the time. Supposing Rich Brother loses on positive law and decides to evict Luckless extra-legally by drugging Luckless and transporting him 1000 miles away while drugged (and then changing all the locks on the vacation home). If Luckless subsequently sues Rich Brother for kidnapping and coercive drugging, Rich Brother will be unable to raise his affirmative defense based on defense of property, assuming Luckless does not recognize defense of property as an affirmative defense to kidnapping. So Luckless will be able to recover appropriate penalties from Rich Brother for his brutish method of removal. Next time, Rich Brother will be more clever about how he gets Luckless to leave.

It’s rather apparent that second rule creates more incentives for reasonable behavior than the first, in which defendants were permitted to use their own rules of affirmative defense. In that first hypothetical, Rich Brother could not evict Luckless even if both Rich Brother and Luckless had adopted laws recognizing property rights in vacation homes. Conversely, if Luckless had adopted a law that did not recognize Rich Brother’s positive property rights, Rich Brother would have had no incentive to perform the extra-legal eviction in a reasonable manner. The power to select one’s own affirmative defenses should not create incentives for extra-legal remedies.

Read the comic at the header, it summarizes all of the above quite succinctly. Jonny’s Conflicts of Laws has been updated accordingly.

Nullification

Nullifying the Need For Nullification

There’s a lot of talk these days about jury nullification, state nullification of federal laws, and so forth. Several very fine organizations are getting the word out about nullification to the victims of government schools and others who have never been instructed in nullification as an important safeguard against tyranny. Click the images below for links to a couple of examples.

10th Amendment Center

Fully Informed Jury Association

These and similar efforts are praiseworthy. Nullification, whether by juries, provinces, localities, or individuals, functions to loosen the oppression laid on the people by the corporatist tyranny that permeates the world today, and awaken the slumbering serfs of statism to their power and potential as free human beings.

All that said, we advocate for an evolution and quickening of human consciousness that would obviate forever any need for nullification as commonly understood today. All that is needed is acceptance of the principle that no law can be legitimate, except by previous adoption of the person on whom it is enforced. In societies where this principle is observed, all enforcement is limited to laws that have been voluntarily adopted by the parties involved. There is no imposed authority left to nullify. All such imposed authority should be rejected as illegitimate.

As a more general concept, nullification underlies and facilitates voluntary law. In a fully developed voluntary law society, there is nothing left to nullify except for evil actions of the occasional errant individual who foolishly attempts to reinstate tyranny by seeking to subvert voluntarily adopted obligations and relations based in non-aggression and equality of persons. In a fully developed world based in voluntary law, nullification operates by excluding evil doers from the right to transact with members of voluntary law societies, by operation of voluntary institutions that publicize individual reputations. Nullification is exercised continuously by individual rejection of evil deeds and unrepentant evil doers.

Those who love liberty and their fellow human beings should be working to to make nullification by anyone other than the individual a relic of earlier times, by imagining and enabling social systems that empower individuals and voluntary collectives, and de-legitimize and disempower coercive institutions. May the dark age of today, in which most mistakenly believed the exercise of coercive authority in human society to be either a necessary evil or divinely ordained, come to be taught as part of the history of human errors. We should not forget, as useful as the concept of nullification is, its exercise by juries and other involuntary collectives has utility only in the context of authoritarian legal systems. By our thoughts, talents and actions such systems will one day be abolished, and with it the need for nullification by juries or involuntary collectives.

Brothers and sisters, just understand your status as human beings. No other human can ethically rule over you. That right and responsibility is yours alone. Help build a world in which free people nullify and extinguish tyranny wherever it surfaces, before it can ever darken the world again.

Conflict of Laws, Reciprocity

A Bit More On Why So Much

A central issue was neglected in the last post, relating to why conflict of law rules are of such importance and concern in the development of voluntary law. Conflict of law is critical in voluntary law systems, because voluntary law systems are the only legal systems that permit each participant to choose their own law, guided by their own moral preferences and self interests.

One of the most fundamental questions concerning voluntary law is whether a system permitting self-selection of law can provide equivalent or superior justice to systems that impose laws through the exercise of power by an elite class of persons, a.k.a. statist legal systems. In statist legal systems, although many laws are imposed in the self-interest of a governing elite and those who support them, some portion of the laws are imposed in the public interest. Even a slave master may enforce rules forbidding the slaves from mistreating one another. Statist systems must deal with the problem of limiting corruption of the law caused by self-interest of elite law makers, but are not faced with the problem of harmonizing self-selected laws because they do not permit such laws to exist.

The limiting principles on self-adoption of law in voluntary law systems are non-aggression, equality of persons, and reciprocity. The primary purpose of conflict of law rules are to implement reciprocity so as to optimize fairness and stability of the system as a whole. While each person can select their own law guided by their individual self interest, the general principle of reciprocity provides that when bringing a claim or raising an affirmative defense, each person is limited by the selection of law of the other party.

Despite the importance of the reciprocity principle, it should not be forgotten that the core voluntary law principles of non-aggression and equality of persons are also limiting principles on enforceability of self-selected law. These core principles deserve expression in the form of a rule, and more attention to be paid in a later post.

Conflict of Laws

Why So Much on Conflict of Laws?

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

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

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

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

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

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

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

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

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

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

Conflict of Laws, Version Updates

Jurisdiction and Update to Conflict of Laws

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

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

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

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

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

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

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

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

Conflict of Laws

The No-Hypocrisy Rule

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

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

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

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

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

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

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

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

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

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

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

	Harley on Practical Notes For Practical…
	Jonny J., Esq. on Rational Discrimination, Crimi…
	Bianca Baker on New Speaking Engagements
	Maricica S on Rational Discrimination, Crimi…
	A Promising Chaos \|… on The Power of TROTWET

Voluntary Law Development Association

Just Words Can Change The World

Tag Archives: voluntary law

Public Adoption, Individual Responsibility

Appeals In Voluntary Law

Unopposed Claims and Legitimacy of Judgments

Affirmative Defenses: The Difficult Choice

Nullifying the Need For Nullification

A Bit More On Why So Much

Why So Much on Conflict of Laws?

Jurisdiction and Update to Conflict of Laws

The No-Hypocrisy Rule