From: GBurch1@aol.com
Date: Thu Nov 26 1998 - 08:22:15 MST
In a message dated 98-11-25 18:16:49 EST, Dick.Gray@bull.com wrote:
> > In a world where private agreements handle
> > these matters you can be assured my contract will call for the
> > death of anyone who murders me.
>
> I suspect (and hope) that your death provision would be found null and void
> by most freemarket courts. There are things that can't legitimately be
> contracted for, including, especially, harmful effects on nonsignatory
> parties. (Right, Greg?)
To be technical, bilateral contracts impose negative effects on third parties
all the time; the only question is whether the third parties in turn have some
kind of recourse. As a matter of efficiency, even the fairest legal regime
will not necessarily provide recourse for every such "exported" cost. I assume
the post to which you were referring, though, was itself referring to what we
might call the canonical anarchist legal scheme, Friedman et al.'s proposal
for "privately produced law", or "PPLs". In such a scheme all law (or much
law) is a matter of contract, with individual parties subscribing to various
competing bodies of law. Conflicts between subscribers to different PPLs are
resolved by multilateral choice of law jurisprudence, either in the form of
meta-contracts (i.e. "treaties" or conventions) or through evolved common law
choice of law provisions applicable to the specific facts of the particular
controversy.
Let me describe a hypothetical example. Dick subscribes to PathosLaw, Inc., a
PPL which does not include a death penalty for murder. Brian subscribes to
ToughLaw, Inc., which does prescribe the death penalty for murder. If Dick
murders Jane (because he's fed up with all the insipid adventures she talks
him into in their primary reader work), and Jane is also a PathosLaw ("PL")
subscriber, the crime will be prosecuted completely within the strictures of
PL's criminal code and Dick will not be subject to the death penalty. If
Brian kills Jones (because he suspects Jones of being one of those soft-
hearted liberal types), and Jones is also a ToughLaw ("TL") subscriber, then
Brian's crime will be prosecuted under TL's criminal code and he will be
subject to the death penalty if convicted.
Now, what if Dick's and Brian's debate about the death penalty gets a little
heated and, in a fit of pique, Dick grabs Brian's Smith and Wesson "Equalizer"
Model 2082 particle beam pistol and settles the discussion once and for all?
The anarchists to whom I refer above will say that we have a classic "conflict
of laws" problem: Whose law should we apply?
First, a brief detour. Conflict of laws problems are nothing new. In fact,
they are as old as humanity: Each social group of humans has had at least
slightly different legal regimes. Conflicts between people governed
domestically by different legal regimes have always occurred. Courts have
always had to resolve such disputes and they are the stock in trade of
international litigators today. Interestingly, conflicts of law jurisprudence
is some of the most fertile for discovering just how people answer the
important question, "What is law?", because it requires courts to develop
and/or apply "meta-legal" principles that transcend local or particular law.
Conflict of law problems are resolved in the present day through the use of
three primary mechanisms: 1) bilateral treaties; 2) international (or
generally, inter-jurisdictional) conventions; and/or 3) domestic statutory and
common law, usually influenced by international customary or common law (which
may or may not be "codified" in what is called a "restatement" or compendium
of common law rules). Over time, common law principles have evolved that
generally tend to harmonize the conflict of law jurisprudence of various
jurisdictions. These include the locality of the dispute, "comity" (the
principle that the courts of one state should respect the authority of the
courts of other states), basic notions of procedural fairness or due process,
the smooth working of the international or interjurisdictional commercial and
legal systems and the "public policy" (read "basic law") of the domestic
jurisdiction. The resolution of any particular conflict of laws results from
a balancing of these factors. The more or less international or
interjurisdictional orientation of the jurisdiction being asked to decide the
dispute usually determines the weighting given to the various factors. Thus a
jurisdiction like the UK, which values international trade and comity very
highly, tends to give effect to foreign law more often, while an insular
jurisdiction like, say, North Korea, would be expected to give little effect
to foreign law.
Now, what of Dick's murder of Brian? PL and TL may well have a bilateral
treaty regarding application of the law of murder -- the equivalent of an
extradition treaty in today's international legal system. Subscribers to the
two legal regimes are held to have subscribed to this treaty. In the absence
of a treaty, there may be a multi-lateral "Convention on the Inter-PPL
Application of Criminal Laws", to which signatory PPL subscribers would also
held to be subscribers. In the absence of either of these two options, the
statutory or common law conflicts jurisprudence of the two PPLs will have to
work out the result. If TL calls for mandatory prosecution of murder in every
case regardless of context, while PL does not, the conflict may be resolved in
TL's favor, and Dick will be subject to the death penalty. The hard case
results if PL interprets this as an act of aggression against Dick and calls
for mandatory, armed protection of Dick. In the state-based system of law,
this would be resolved through the application of principles of
territoriality. In non-territorial private law systems, things could well get
messy, so messy that it is unlikely that PL and TL courts would allow such a
vacuum of law to develop.
More probably, a relatively uniform choice of law regime would develop (or the
system as a whole would likely break down pretty quickly). Perhaps an inter-
PPL tribunal would be called on to resolve the dispute: Because conflicts
problems would arise fairly often in such a system, it would be expedient for
PPLs to themselves subscribe to such a tribunal a priori (much as the federal
courts resolve many such disputes in the US federal system).
I imagine that context would be very important in the resolution of criminal
law conflicts in regimes of private law: If Dick murders Brian in Brian's
home, the result may well be that Brian's criminal law should govern the case,
for instance. Notice might also be important: If it was shown that Dick was
aware of the fact that Brian was a TL subscriber, he might be charged with
assent to governance by TL's criminal law.
All of this leads to speculation about how regimes of private law can develop
incrementally, since they have to be robust in the face of such hard cases
from the outset. But that's a subject for another discussion.
Oh, and BTW, I have to admit that I am very ambivalent about the question of
whether the death penalty is "extropian". I can say that I think the issue is
very context-sensitive. As administered in the U.S. today, the death penalty
does seem to be applied inconsistently, a bad thing for such a drastic
sanction. On the other hand, I disagree strongly with some of the comments
made in this thread about the ineffectiveness of deterrence: I think a more
systematically and fairly administered death penalty would indeed have a
deterrent effect.
Greg Burch <GBurch1@aol.com>----<burchg@liddellsapp.com>
Attorney ::: Director, Extropy Institute ::: Wilderness Guide
http://users.aol.com/gburch1 -or- http://members.aol.com/gburch1
"Good ideas are not adopted automatically. They must
be driven into practice with courageous impatience."
-- Admiral Hyman Rickover
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