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Open Source Law: An Introduction

Open Source Law: An Introduction

By: Jonathan Jaech

This essay may be reprinted and used freely without permission under the Creative Commons 3.0 Attribution License, with attribution to www.vlda.org or to the author.

Open source works great for software development, why not also for development of laws?  In open source software development, a self-organizing group of volunteer programmers develops an application cooperatively. This may include defining an application program interface through which independent programmers can extend the functionality of the core application by developing plug-in modules.  The resulting application and plug-ins are typically distributed for free, or for a nominal fee.  As the user base grows, more developers are attracted and extend the functionality of the program further.  Although the developers receive little or no fees for their programming services, a large and growing user base creates demand for the developers’ expert services such as, for example, training, consulting, or simply using the software for various purposes.  Thus, developers are incentivized to create useful software for free distribution.

A similar model might be used to build a database or “evolutionary canon” of laws for voluntary adoption by individuals.  A set of individuals that adopts the same law is defined as a community; no law is considered applicable to a person until voluntarily adopted by her.  In this way, dispersed communities of voluntaryists can form around alternative sets of laws published in the evolutionary canon, without any need for formal agreements or other pre-existing relationships between members of the community.  

Creating law around which communities subsequently form might be referred to as a “law first” model, as opposed to a traditional “community first” model in which the communities first form and the law develops afterwards.  While the “law first” and “community first” models can happily coexist, the “law first” model enjoys the advantage that laws cannot be imposed by an elite group of law makers.  By definition, in a law first, open source model, a person may adopt any law that is publicly expressed and not inconsistent with the core ethical principles of voluntarism, and no law that is not personally and voluntarily adopted by the person to whom it is applied is considered valid.  An elite can find no advantage in the law first model except what is achievable by non-coercive, honest persuasion.

Persons who cannot find a law to their liking in the evolutionary canon are free to write their own law and add it to the canon.  Disputes between persons belonging to the same community are handled by the law of the community.  Disputes between persons from different communities are handled by choosing or defining the applicable law according to a predefined “conflict of law” rule.  The conflict of law rule may be universally applicable to all communities, or particular to two or more specific communities. 

Conflict of law rules are an essential and potentially complex feature of voluntary law, deserving of more detailed treatment than can be provided in this brief introductory essay. A prototype universal conflict of law rule has recently been published at www.vlda.org, with commentary.  A system of economically sophisticated voluntary laws, logically connected by conflict of law rules, may support development of complex and economically powerful, interlinked communities of voluntaryists. 

Ethical laws are necessarily characterized by compliance with certain essential principles.  Each school will ensure that the law it publishes complies with the stated ethical principles of the school.  The Voluntary Law Development Association (www.vlda.org) adheres to the principles of non-aggression, equality under the law, and statelessness.  “Non-aggression” means that the use of coercion or fraud, except to the extent reasonably necessary to protect one’s person or property, gives rise to an actionable claim.  Equality under the law means that the definition of personhood and the outcome of any claim cannot be predicated on arbitrary personal attributes such as, for example, color of skin, sexual preference, gender, or genetic makeup. Statelessness means total independence from any institution that claims or exercises a monopoly over the provision, adjudication, or enforcement of law.  Socially transformative and many-branched legal systems may grow out of this single ethical seed.  

In a fundamental sense, statelessness is merely a specific aspect of the non-aggression principle.  However, in a less fundamental sense statelessness means enforcing a strict separation from statist institutions, even in those instances where the statist rule at issue does not directly offend the non-aggression principle.   Under the principle of statelessness, dispute resolution forums applying voluntary law will not hear or consider any claim or defense based on statist laws, any more than statist law courts would apply voluntary laws. Enforcement mechanisms would likewise be strictly separate.  This separateness enforces a choice on claimants: enforce your claim against other voluntary law society members using the mechanisms afforded by voluntary law, or bring your claim in a statist court and forfeit your reputation in all voluntary law societies that embrace the stateless ethic.  

These core ethical principles cannot be fundamentally contradicted without destroying the voluntary, globally applicable and radically transformative character of the law to be developed.  However, reasonable differences of opinion may exist at the margins, for example, over the precise definitions of “person,”  “property,” and other foundational concepts.  It should be possible to reconcile laws based on variations in the core ethical principles using conflict of law rules.  For example, a rule may specify that claims are generally limited to those possible under the law adopted by the defending party.  Such a rule may ensure that each person can enforce his morally preferred law against members of the same community, without being subject to claims based on more onerous law held by members of other communities. 

Many different “schools” or voluntary law development communities may form and publish systems of voluntary laws.  Such schools will find it to their advantage to avoid being isolated from competing schools, and may cooperate to develop universities of alternative legal schools in competition to produce laws of superior elegance and utility, while working out conflict of law solutions for as many scenarios as can be imagined.  At a minimum, to avoid isolation and resulting irrelevance, schools will want to harmonize the organization of their own legal offerings with others, so that users may customize their laws by selecting laws from different schools without worrying about the laws being in conflict with one another.  Just about the only requirement that should be laid on individuals customizing their own laws, apart from reasonable compliance with core ethical principles, is that whatever law an individual adopts be clearly defined and free of self-contradictory statements.  Individuals adopting a system of law that is self-contradictory should be held responsible for any resulting ambiguity.

In the law-first model, common-law notions of judge-made law do not exist.  Judge-made law is nothing other than law imposed without consent, and is therefore invalid.  That said, legal reasoning used to reach a decision based on a particular set of facts may be considered a persuasive but not controlling factor in subsequent decisions, depending on the reputation of the decision maker.  Likewise, published amendments to the law are not effective for, or against, any person who has not specifically and personally adopted the amended law.  These qualities suggest that voluntary law is likely to be considerably more stable than statist law, because each amendment splits the community.  Voluntary law will not be adopted by large numbers of people until it is sufficiently mature to have developed claims, remedies and defenses at a level of specificity that a large number of users are comfortable with. Put another way, voluntary law may be expected to develop relatively rapidly (given adequate resources) with few adopters until it hits a “sweet spot” of generally-preferred ambiguity and elegance.  After that point, the adoptive community swells rapidly and further development of the law may generally be limited to adjusting for seismic shifts in community circumstances or preferences.

The speed at which voluntary law can be developed and the power of the resulting law is entirely dependent on the quality of the human resources committed.  Early in the development process, financial needs are trivial and easily met.  Less easy to secure are the interest and participation of the greatest minds now working in the area of anarchist or libertarian social philosophy, law, and economics.  The author is well aware of his own limited abilities, and is only promoting the VLDA because he could not find anyone else doing something similar.  Will some of the notable libertarian social philosophers of our generation contribute any of their energies directly to this effort, or parallel efforts?  Signs point to yes, but it is too early to know for sure.  Whether or not any of the respected thought leaders will directly participate, the success of voluntary law development will depend mainly on the passion, dedication, and writing abilities of the young.  It is their future livelihoods and prosperity that are most at stake.  Whatever your age, if you have read this far and share any of the passion and vision expressed in this essay, consider this a call to action.  Simply send an email to info@vlda.org with a little information about yourself and how you’d like to contribute, and I’ll be in touch.  Or just provide your thoughtful comments at www.vlda.org, send in your own laws for posting there, or post your laws elsewhere and send us a link.

The VLDA and similar efforts needs legal writers (anyone capable of good legal writing, regardless of state certification), commentators, critics, website developers and administrators, promoters, translators, resource managers, and executive board members.  The VLDA is not (as of now) actually an association, incorporated or unincorporated, of any kind. It has no income, does not accept monetary contributions, and maintains no roster of membership. The VLDA is not a service provider, and does not aspire to be.  The VLDA aspires to be a grassroots, curated community of writers and reviewers, not unlike a wiki.  If that can be achieved, greater things may follow.

Among the great things that may follow is the flourishing of various independent voluntary law service providers, servicing the needs of communities that form around voluntary laws. Such services may include, for example, hosts of dispute resolution services, investigators, jurors and judges of various types, record-keeping services and registries, enforcement services, reputation certification services, advocates, counselors, and other service providers not yet imagined.  As high quality services are more dependent on expertise, ethics, efficiency and customer service than on great concentrations of tangible capital, small and nimble service providers may out-compete highly capitalized and vertically integrated companies.   With luck and perseverance, a rich eco-system of competitive service providers may arise that, free of state restrictions, far surpasses the rather pitiful achievements of statist legal systems in bringing a higher degree of justice to human relations.     

If stateless society is ever to triumph over the state, it will be via the development of superior economic power by distributed communities with sophisticated trading relationships and stable alternative legal systems, coupled with the inevitable decline of social institutions based on the coercive power of social elites. The evolutionary canon of voluntary law has the potential to negate social divisions, by accommodating a wide variety of non-sociopathic moral preferences, instead of imposing one moral preference on everyone.  The resulting social unity minimize waste and social disruption caused by political battles over the right to impose one moral preference on others, not to mention squabbling over plunder.  Meanwhile, a market-driven level of specificity and sophistication of voluntary law should facilitate complex transactions between diverse communities, enabling high degrees of labor specialization.  Coupled with disruptive technologies such as crypto-currency, crypto-identity, and other breakthroughs, networks of voluntary law societies operating under economically efficient principles for allocation of scarce resources should develop superior technologies capable of being secured against violent expropriation by states and their antiquated wealth-destroying institutions.  Thus, individuals will be attracted to voluntary law societies to enjoy access to a quality of life, services, and technologies as these things become of increasingly poorer quality for the subjects of state.  Once a certain tipping point is reached, the momentum towards statelessness may become unstoppable.

To the skeptics of liberty, such visions are merely impractical dreams of a far distant or unachievable world.  Voluntary law development may therefore seem to be merely an academic exercise, albeit one hopefully directed to a practical and socially beneficial goal.  Whatever the outcome of this exercise, it is nonetheless worthy of our energies; it is an experiment directed towards demonstrating the venerable truths that the pen is mightier than the sword, and just words can change...
 
Jonathan Jaech is part of The Voluntary Law Development Association, which is dedicated to building, maintaining, and growing a detailed system of alternative laws designed for voluntary adoption by individuals, using community-based development models similar to those used for open-source software.  Rather than imposing laws by political fiat or concentrating capital, VLDA aims to distribute law-making power to the very atom of society: the individual.  By concurring in the selection of preferred laws, individuals coalesce into communities, here called “voluntary law societies” (VLSs).  This radical grass-roots approach to law entails numerous complexities and issues that VLDA aims to bring to light and develop solutions for, as part of laying  groundwork for a more equitable, free, and peaceful future society. Visit their webpage at VLDA.Org

 
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