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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Conflict of Laws, Introduction To Voluntary Law (Book)

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

Balance of Tools

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Historical Commentary, Introduction To Voluntary Law (Book)

Just A Bit Of Reflection

Just A Bit Of Relection

Just A Bit Of Reflection

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

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

Alexander II

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

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

Discourse With Natives

Discourse With Natives

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

Constitution of Athens

Constitution of Athens

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

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

Florida's 37th Governor

Florida’s 37th Governor

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

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

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

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

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

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Empire Builders

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

Czar's Borderland Pirate

Czar’s Borderland Pirate

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

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

Hypnotized Hen

Hypnotized Hen

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

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

Berkman Addressing the Anarchists July 11, 1914

Berkman Addressing the Anarchists July 11, 1914

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

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

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

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

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

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

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

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

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Conflict of Laws

Why So Much on Conflict of Laws?

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

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

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

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

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

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

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

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

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

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

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Historical Commentary

Community Exclusion as Criminal Penalty

Geronimo (Goyathlay, 1820–1909), a Chiricahua ...

Geronimo (Goyathlay, 1820–1909), a Chiricahua Apache; full-length, kneeling with rifle , 1887 (Photo credit: Wikipedia)

“The Apaches had no prisons as white men have.  Instead of sending their criminals into prison they sent them out of their tribe.” – Geronimo’s Story of His Life, edited by S.M. Barrett.

Geronimo’s Story provides another example of community exclusion as a traditional criminal penalty.  Similar exclusionary penalties might be effective  in nascent voluntary law societies, if not in entirely stateless populations including multiple co-existing voluntary law societies.  One of the outcomes of exclusionary penalties is the tendency for outlaws to band together and form their own “tribe.”  Geronimo noted that “the life of an outlaw Indian was a hard lot, and their bands never became very large; besides, these bands frequently provoked the wrath of the tribe and secured their own destruction.”  This outcome was in an area where the Apache tribes predominated and there were few opportunities for outlaw Apaches.  The crimes that made an Apache susceptible to banishment were not at all like modern crimes: “If an Apache had allowed his aged parents to suffer for food or shelter, if he had neglected or abused the sick, if he had profaned our religion, or had been unfaithful, he might be banished from the tribe.”  Id.

Members of voluntary law societies would be free to select the penalties imposed for various types of lawbreaking.  It is expected that most societies would favor restitutionary and exclusionary penalties, because  institutionalization would increase the costs of law enforcement services in societies that rely on it besides being generally counterproductive if not inhumane in most cases.  However, a restitutionary system could use self-funded institutionalization via indentured servitude in extreme cases.  For a more detailed treatment, see “The Structure of Liberty” by Randy Barnett, among others.

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