The Law is Complicated Because Reality is Complicated

Law

In response to my post about people who represent themselves Sami wrote:

@Xenocles: The trouble with the law being "simple" is that life isn't and people aren't. Complexity in law is not inherently bad.

For a very reductive example: Killing someone should surely be against the law. We depend on the social contract in part to prevent people from stabbing us if we tread on their toe by accident and suchlike.

However, "killing someone is murder and bad" is an over-simple law, because what about self-defence? Self-defence should be allowable, right? Well then how are you defining self-defence? What level of threat is justification, what manner of killing represents a fair demonstration of the principle of self-defence?

Exactly.

I tend to think about commercial law more, because there are so many more instances of such conflicts, and because the lack of drama in the topics makes it easier (I think) for people to wrap their heads around it and say "oh, yeah, I could imagine myself in such a lawsuit…on either side".

First, we need a law about renting real estate. Your hardcore natural righters will say "no we don't, we just need the freedom to contract". OK, either way, moving on.

So landlord X rents space Y to tenant Z, where tenant Z runs a small manufacturing facility.

Ten years later Z moves out.

Z did not re-roof the facility. Is he liable for damages? Clearly the facility is in worse condition than it originally was. But on the other hand, it's normal depreciation. The landlord has to be responsible for upkeep, right?

Well, maybe.

Let's assume that the contract even talked about this: it said the tenant is responsible for all "customary" upkeep. We still need someone to decide…and that decision should ideally be congruent with what was decided in the same court five years earlier about a case six blocks away.

So the court decides that tenants are not customarily responsible for re-roofing. But the tenant's machinery also cracked the concrete slab a bit. Is that reasonable? Did the fact that the landlord rented this out as "light manufacturing" imply anything about expected loads?

Can the landlord wait 30 years to file the lawsuit? Why / why not?

If we decide that the landlord can wait five years, and tenant / firm owner Z sells the firm to new owner N, can landlord X sue new owner N?

What if owner Z didn't disclose the potential possibility of a lawsuit? Does that change anything?

I could go on for hours.

Young libertarians who haven't seen how crufty and hairy the real world is often want to say "specify it in a contract!", but in the absence of an accreting law code, contracts might end up being 20,000 pages long…and those 20,000 pages could be used to harbor weird gotchas and surprises, so reviewing contracts would suddenly cost much much more than it does now. So it does make sense to keep the accumulated decisions outside the contract proper, in some other document.

A software engineer might call the accumulation of laws "a third party library".

As an ancap / voluntaryist (a) I'm in favor of competing third party software packages: I like a world where we have a choice of Microsoft, Macintosh, Android, Linux, etc. and would like to see the same in the law, and (b) I think that the law contains vast numbers of necessary complications, but it contains even vaster numbers of unnecessary complications, many of which work to the detriment of the average citizen, and I think that competing legal codes would help to resolve that in so far as there would be a selective / market pressure for rationalization and simplicity.

…but I do not assert that we should get rid of legal operating systems altogether and program every application "on the bare metal" without reference to the accumulated wisdom / headaches of the ages.

Last 5 posts by Clark

53 Comments

52 Comments

  1. Jim Salter  •  Nov 15, 2013 @5:30 am

    Having libraries of published peer reviewed freely available contracts would be EXCELLENT. "Do you want to rent the house out under the GNU residential leasing contract, the Apache, or the Creative Commons one?"

    What tends to happen now is you start out with some boilerplate of dubious vintage that is unmaintained and unloved – one of hundreds, or thousands, with no name to it or history of real review – and amend the shit out of it yourself, with or without a lawyer, and hope for the best. Which SUCKS.

    This kind of thing could be really helpful in employment contracts, NDAs, prenups, divorce agreements… you name it.

  2. Ken Mencher  •  Nov 15, 2013 @6:28 am

    If you have competing contract law frameworks, how do you handle the decision of which one to choose?

    Would you need to consult with multiple legal scholars to determine which one is best for you in every situation? (considering I have contracts for cell phone, land line, rental property, electricity, gas service, water, sewer, plus every thing I own has some form of limited warranty protection…)

    I can't imagine going to a store and having to read not only spec sheets, but warranty forms for all the different blu ray players, then consulting with a legal scholar to determine which one suits my requirements…

    Having a single unified legal code means I don't have to worry about all that…I can compare offerings based on the offering itself…not the legal terms it comes attached with.

  3. NL7  •  Nov 15, 2013 @6:39 am

    The alternative to relying on an existing body of law when signing a contract is that a contract must be dozens or hundreds of pages longer. But if the contract calls on that body of law (or is required by the local gendarmes to call on the local body of law), then it doesn't have to include as many definitions or scenarios.

    Failure to acknowledge any rules outside the contract will generally be to the detriment of the wronged party. People will not trust contracts or arbitration systems that fail to protect their interests in a reasonable way. Alternatively, far longer contracts would make for less understandable agreements that take longer to negotiate. There's a good chance that people would eschew contracts and resort to more primitive dispute resolution, say posting a bond or using escrow, or just requiring lots of prepayments and deposits – all of which would limit the reach of startups, young people, and poor people.

    So people would just naturally start relying on preexisting bodies of law, unless someone used force to stop them. It provides recourse in case of a wrong, without the wronged party needing to already hold a deposit.

  4. BTCG  •  Nov 15, 2013 @6:40 am

    The biggest problem with complication, either necessary or unnecessary, is that the average person/tenant/owner cannot possibly keep up with it all. The law should, of nothing else, be knowable (or is it 'cognizable') Common sense is not a reliable guide.

    Sure, the answer is 'consult a lawyer'. But then the law has evolved into a perpetual lawyer employment service. As the complications increase, the requirement to consult a lawyer increase. But that lawyer will have to perform more research, so the consultation itself becomes both more necessary and more expensive. There is zero pressure from the bar to ease the complications. The public view of the legal profession plummets. A vicious circle ensues.

    What is the answer? Certainly not adding more complexity by competing legal codes! The choice of a 'legal operating system' exists already. It's called moving into a different jurisdiction/county/state/nation.

  5. NL7  •  Nov 15, 2013 @6:41 am

    Ken Mencher: you can have a choice of law or arbitration clause, which most contracts already contain (typically, choosing which state law will apply and one choosing which arbitrator will be used). The contract just needs a single sentence that adequately identifies it.

  6. NL7  •  Nov 15, 2013 @6:45 am

    BTCG: That problem is easier to solve with competing private legal codes. Some codes could be evolving common law processes, with precedent, while others eschew all precedent in favor of written civil codes. Some codes could be updated over the years, while others refuse to update. These codes could even be offered by the same providers, who provide "support" for multiple code versions the way software providers give support to multiple software product versions.

    If somebody wants to know the law and know it won't change, they can even just say "Bob's Legal Code, as it stood January 1, 1970, without any of the subsequent amendments."

    This is far better than forcing people to move. Especially a landlord who may hold an apartment building that's terribly hard to move. Why should there only be one choice of law for each town?

    It also doesn't make sense that all contracts must be interpreted according to the whims of local city council members or state legislators. There's no particular reason those people are qualified to write the rules for renter law, agricultural law, and merchant law within their jurisdiction. Better that those rules are written by experts and then selected by individuals and entities.

  7. TJIC  •  Nov 15, 2013 @7:15 am

    @NL7

    > BTCG: That problem is easier to solve with competing private legal codes.

    I'm actually working on the fifth draft of a science fiction novel with strong ancap / polycentric law themes and it touches on this topic.

    Hopefully the Popehat authors will be willing to give it a plug when it's live.

  8. Gabriel  •  Nov 15, 2013 @7:23 am

    From a libertarian idealism standpoint, the idea of competing, private "code libraries" of standard contractual terms appeals to me greatly. However, from a realism standpoint: how much work does a renter do today to research rental law in the jurisdiction he's considering, before he signs a contract? Typically none. In libertopia, is that likely to change? No. Which means that a landlord could specify "This contract relies on Joe's Egregiously Unfair Landlord-Favoring Contract Law" and unless the renter were particularly alert he'd have no recourse whatsoever when the landlord stops by at 3AM to eat whatever is in the refrigerator.

    I suspect that a real ancap zealot will start talking about private certifying bodies like Underwriter's Labs which would allow consumers to look for a "Fred's Consumer Protection Office says this is OK!" stamp before buying/signing anything, and I can imagine a world in which that solution works well, but I can also imagine a world where this whole thing leads to horrible abuses and I don't see that world as any less plausible.

  9. ALeapAtTheWheel  •  Nov 15, 2013 @8:12 am

    >A software engineer might call the accumulation of laws "a third party library".

    Right, and a software engineer might also look at the cruft of precedent and determine that the problem isn't that there's a lot of cruft, but that the system lacks code review to make sure the years of cruft don't stray from the design docs (aka the constitution). I'm looking at you, immunity to 1983 lawsuits, switchblade and silencer bans, and pretty much every 4th amendment decision since Nixon noticed hippies don't vote Nixon.

    Note: Court decisions are to bug fixes as nothing is to code review.

  10. Stormy Dragon  •  Nov 15, 2013 @8:13 am

    As an ancap / voluntaryist (a) I'm in favor of competing third party software packages

    This works great in situations like contract law where people intentionally enter into a transaction with each other, but it doesn't explain what happens in situations where it is unintentional. If you hit me with your car, who's "third party package" determines the rules for liability?

  11. WhangoTango  •  Nov 15, 2013 @8:19 am

    "in the absence of an accreting law code, contracts might end up being 20,000 pages long"

    But relying on law doesn't mean that those 20,000 pages go away; it just means that they go into the law books (and a record of legal precedent). The complexity of contractual agreements is not eliminated by off-loading some of it to laws.

    And you're also putting the strong right arm of the law behind those contract terms which are defined as "legal" rather than "contractual". If I've got a contractual term that says I can't play loud music, and I disagree with my landlord over whether my music was too loud, then we can go to court and each argue our case. If the law says I can't play loud music, then my landlord calls the cops and I go to jail.

  12. WhangoTango  •  Nov 15, 2013 @8:22 am

    "If you hit me with your car, who's "third party package" determines the rules for liability?"

    And this *is* a case where the law might step in and say "to be licensed, you must carry insurance with third-party coverage, because the nature of a vehicle accident inherently prevents prior negotiation over contract terms, unlike a voluntary transaction."

  13. Xenocles  •  Nov 15, 2013 @8:23 am

    Since this was in part a response to my original comment, may as well include it. It was a response to Ken, whom I'll let speak for himself if he chooses.

    "Well, why not? I will be held accountable to the law regardless of my understanding of it. Morally speaking it seems like it ought to be simple enough to understand."

    It's an old engineering and scientific principle that a theory or design should be as simple as possible, but not too simple. I was not proposing a naive simplicity. I am aware of complexity. The matters that require legislation also require some nuance that complicates things beyond simple statements like "Do not kill." But in an age where we have thousands of pages of law, and thousands of additional pages of regulations that implement those laws, you can't possibly tell me we're at Saint-Exupery's point of nothing left to remove.

    In fact, complexity is a great reason not to make so many laws. The world is complex enough without adding to that complexity artificially, especially when the people proposing to interfere with a system top-down don't really understand the system.

  14. Alex  •  Nov 15, 2013 @8:45 am

    Between the rise of arbitration and the ubiquity of choice-of-law and choice-of-forum clauses, I would argue that the legal industry emulates the sort of "competing codes" discussed here to a significant extent, particularly with respect to contracts. I'd point to a few factors that complicate the issue:

    First, while choice-of-law clauses in many contracts are generally enforceable, parties are still choosing between codes generated by a sovereign somewhere, and to the extent that these sovereigns are "competing" to create codes of law, their incentives won't necessarily match those of the contracting parties. This is further complicated by differing legal rules concerning the "portability" of various types of law. A corporation registered in Delaware will generally be subject to Delaware corporate law for its internal affairs no matter where it operates, but a lease drawn on a property in New York cannot elect to use Montana landlord-tenant law.

    Second, some would argue that more choice always favors the party with more bargaining power. It's been a while since I read it, but I'm pretty sure that according to the Kindle license agreement I "signed," I'd have to go to a county court in Washington state to bring an action for breach. If I don't like it, there are competing products, but it wouldn't surprise me to find they all have similarly burdensome choice-of-forum clauses in their license agreements, so it's effectively "take-it-or-leave-it."

    I would expect that choice-of-law in its current form does more good than harm, at least to the extent that the harm it enables is less egregious than what would exist in its absence. I wonder if there is a better way to align the incentives between the bargainers and those who write the codes. Delaware, the de facto corporate capital of the U.S., derives substantial revenue from corporate registrations. Would a licensing fee system work for other areas of law/private code?

  15. Dion starfire  •  Nov 15, 2013 @9:52 am

    @Clark I'd been wondering how Libertarians reconcile their ideals with history (when there has little or no law). Thanks for answering that, if only in passing.

    I still think libertarianism (as I understand it) is a total pipe dream, but the ideals do have value as a societal pressure, and … diversity.

  16. cpast  •  Nov 15, 2013 @9:57 am

    @WhangoTango:

    But in that case, the 20,000 pages are fixed and apply to all contracts. The longer the contract you give me, the easier it is for you to hide terms so I'm unlikely to notice. If there's a default that applies in the absence of specific terms, then it's a lot easier for me to learn the default once and not worry about it again, letting me focus on differences.

  17. Deathpony  •  Nov 15, 2013 @10:40 am

    As Alex has pointed out, this already happens in a myriad of ways. There are reasons that there are binding arbitration or choice of law clauses in many contracts.

    It's pretty common to forum shop. It's pretty common for plaintiffs to plead multiple causes of action in a claim based on different legal frameworks covering the same conduct.

    The kicker is, I doubt as a libertarian you would actually like the consequences of these things, or the way they operate in real life which is usually another element to be exploited by powerful parties who are serial participants in legal dispute (be that banks, big companies, powerful individuals) against average Joe.

    The reality of law is that choice usually works in favour of the powerful, not in favour of the average consumer.

    Also, history suggests that your expectation that choice in legal "software" leads to greater efficiency and less complication is flawed. It has tended to generate more complexity and cost instead, and the evolutionary response has been rationalisation by merger rather than parallel improvement driven by competition. See for example the separate histories of Equity and Common Law and their subsequent merging.

  18. mud man  •  Nov 15, 2013 @10:45 am

    What I like about soccer reffing. "I saw what you did, you know what you did, and that's a free kick going the other way." "Unfair advantage" and a rule book you can read all of after dinner. At the youth level, that was; high level competition screws up everything.

    Grace works better than Law.

  19. WhangoTango  •  Nov 15, 2013 @10:56 am

    " in that case, the 20,000 pages are fixed and apply to all contracts. The longer the contract you give me, the easier it is for you to hide terms so I'm unlikely to notice. "

    The contention in the original post was, to paraphrase, "20,000 pages? That's *way* too many words for anyone to read."

  20. jdgalt  •  Nov 15, 2013 @11:25 am

    @BTCG: The law should, of nothing else, be knowable (or is it 'cognizable') Common sense is not a reliable guide.

    Exactly. The Romans tried to achieve this by requiring all law to be published, a principle known as the Rule of Law. But when statutes mostly don't mean what they say, even in lawyerese, and precedents usually can't be found at all except in Shepardized databases that only lawyers have access to, then for the rest of us the Rule of Law is in effect repealed and "the law" once again means any bureaucrat's whim.

    @mud man: Grace works better if the referee is competent and wants a graceful outcome, but that does not happen in real-world systems of law, because the jobs of legislator and judge (and administrative law jobs that carry similar powers to deny permission) attract malicious people (or at least people whose notion of "progress" is the opposite of the common sense one).

    The whole reason for having written law is so that the public can rely on a stable, knowable, and fair set of rules and not have to seek anyone's permission before proceeding with our business. The system is broken to the extent it fails or refuses to foster that ability.

  21. melK  •  Nov 15, 2013 @12:04 pm

    @ken, @ALeapAtTheWheel: One further similarity of "the law" to "third party libraries"… In both cases, there's autoupdating going on. And sometimes the new libraries (laws/precedents) are incompatible with the software (contracts) you were relying upon.

    Good luck with that.

  22. Kevin  •  Nov 15, 2013 @12:12 pm

    @Jim Salter

    Having libraries of published peer reviewed freely available contracts would be EXCELLENT. "Do you want to rent the house out under the GNU residential leasing contract, the Apache, or the Creative Commons one?"

    I agree wholeheartedly, and in fact I wrote a blog post proposing exactly this (In the long-long-ago, on a blog that no longer exists)…. however, this isn't really what Clark is talking about here. The open source contracts idea is analogous to third party libraries – which is a great idea IMO, but Clark is talking about more than that – he's talking about multiple competing systems of law, i.e. not just a variety of different kinds of contracts, but a variety of different systems under which those contracts are interpreted and enforced.

    In other words, the idea is more analogous to multiple operating systems running under a hypervisor, rather than just multiple libraries available for linking.

    I find the idea very appealing, but it seems to have a lot of unanswered questions about how it could be made to work IRL. Admittedly, I haven't read up on polycentric law much, but it seems like under a pure ancap/voluntaryist system, there's always going to be a fundamental problem of who gets to run the hypervisor? Who gets to sit at ring 0?

    This is essentially the Moldbuggian objection to anarcho-capitalism, rephrased through systems-software analogy. And although I find his "just restore the Stuarts and install them into ring 0" solution highly unappealing, I've never been quite able to work out a satisfying answer of my own.

  23. Anton Sherwood  •  Nov 15, 2013 @12:23 pm

    I'm wondering what examples Dion starfire has in mind from/of "history (when there has little or no law)."

    (Is this like that Japanese grammatical particle that's written は ha but pronounced わ wa?)

  24. James Pollock  •  Nov 15, 2013 @2:32 pm

    "If you have competing contract law frameworks, how do you handle the decision of which one to choose?"

    With a choice-of-law clause. We have this now.

  25. Jonathan Gladstone  •  Nov 15, 2013 @2:44 pm

    How does "choice of law" work? Who gets to choose which law is enforced, and how, and in which courts, and when? In some legal codes it's not illegal for a man to beat his wife. In some codes it's not recognized as possible for a man to rape his wife. In some codes a wife can't get a divorce at all – only the husband can grant it. In some codes, self-defence doesn't have to be proportionate to the threat proffered.

    IANAL, but I think I can see how this might work for contract law. It's harder to imagine for civil and criminal law.

  26. mud man  •  Nov 15, 2013 @2:47 pm

    jdgalt:

    a stable, knowable, and fair set of rules

    So, how's that working out for you?

    the system is broken

    You have said so yourself.

  27. Anton Sherwood  •  Nov 15, 2013 @3:07 pm

    A marriage is a contract, is it not?

  28. Pie Face  •  Nov 15, 2013 @3:31 pm

    Sure, but it's not always between the married parties.

  29. En Passant  •  Nov 15, 2013 @4:37 pm

    Clark wrote in OP:

    …but I do not assert that we should get rid of legal operating systems altogether and program every application "on the bare metal" without reference to the accumulated wisdom / headaches of the ages.

    I think a significant bit of that wisdom and headache appears in the Tao Te Ching. From Chapter 57 (emphasis mine):

    Rule a nation with justice.
    Wage war with surprise moves.
    Become master of the universe without striving.
    How do I know that this is so?
    Because of this!

    The more laws and restrictions there are,
    The poorer people become.
    The sharper men's weapons,
    The more trouble in the land.
    The more ingenious and clever men are,
    The more strange things happen.
    The more rules and regulations,
    The more thieves and robbers.

    Therefore the sage says:
    I take no action and people are reformed.
    I enjoy peace and people become honest.
    I do nothing and people become rich.
    I have no desires and people return to the good and simple life.

  30. Marconi Darwin  •  Nov 15, 2013 @5:15 pm

    @Kevin

    In other words, the idea is more analogous to multiple operating systems running under a hypervisor, rather than just multiple libraries available for linking.

    Even if the issue of who gets to be hypervisor is satisfied (somehow) you still have Hypervisor Law that decides which virtual machine gets how much of the physical resources. At which point one of the virtual machines might as well be that law.

  31. James Pollock  •  Nov 16, 2013 @4:08 am

    "IANAL, but I think I can see how this might work for contract law. It's harder to imagine for civil and criminal law."

    Which part of "we have this now" confused you?
    The "choice of law" clause is a standard part of writing contracts. It's covered in the 1L contracts class… you don't even have to take the commercial contracts class to learn about how it works.

    "Who gets to choose which law is enforced, and how, and in which courts, and when?"

    These are parts of the contract, so whoever writes the contract gets to pick, and the other party agrees to these along with all the other terms of the contract.

    "In some legal codes it's not illegal for a man to beat his wife. In some codes it's not recognized as possible for a man to rape his wife. In some codes a wife can't get a divorce at all"

    Were I to be asked (for some reason, I usually am not), I would recommend against a woman agreeing to a marriage contract where such codes apply.

  32. James Pollock  •  Nov 16, 2013 @4:14 am

    The law should, of nothing else, be knowable (or is it 'cognizable') Common sense is not a reliable guide.
    Sure, the answer is 'consult a lawyer'. But then the law has evolved into a perpetual lawyer employment service.

    The vast majority of persons are able to carry out their lives without ever requiring the services of a lawyer, and of the rest, most will rarely require any professional services.

    This situation is no different from any other field that requires special knowledge. "Automobile mechanic", "computer tech support", and "plumber" are all similar… you should be able to get by without a specialist for most uses of the field of endeavor (driving, computing, showering) but if you need a specialist, you need a specialist.

  33. James Pollock  •  Nov 16, 2013 @4:18 am

    "If you hit me with your car, who's "third party package" determines the rules for liability?"

    It's clearly posted on the bumper.

  34. James Pollock  •  Nov 16, 2013 @4:31 am

    "If I've got a contractual term that says I can't play loud music, and I disagree with my landlord over whether my music was too loud, then we can go to court and each argue our case. If the law says I can't play loud music, then my landlord calls the cops and I go to jail."

    Either way, you're a person who breaks your contracts and therefore worthy of little respect or sympathy.

    It's hardly better to remove the police from the equation; you just get the landlord putting in a standard clause that he reserves the right to use armed goons to enforce the contract. When the police show at the door, you have a chance to end the situation with a negotiation… turn down the music, and they'll go way and leave you alone. When the landlord's armed goons show up because your party's too loud, you aren't going to get off with a warning.

  35. GuestPoster  •  Nov 16, 2013 @8:14 am

    You know, I occasionally want to reply to Clark's anti-government posts with 'how can a lawyer, whose entire job depends upon a government making laws, want government to dissolve?' And… this post shows that it was wise to hold my tongue, and that the intelligent seeming guy whose politics I vehemently tend to disagree with ain't stupid.

    THAT being said: do we not have competing 'third party law' packages? If you don't like your neighborhood ordinances, you can move to a new neighborhood. If you don't like your town, you can move to a new one. Same with city, state, etc. If you don't like your country's laws, you can change THAT, too – all the way from one end (too little freedom, North Korea), to the other (maximum freedom, Somalia or Haiti). Almost every country has a way to get in, especially if you already live in the US and have a decent job and can afford the process.

    And if you hate ALL of that: the US is lucky in the sheer amount of not-yet-claimed wilderness available. There's still plenty of ability to pack up, hike into the woods, and never come out, living free of any and all laws by simply avoiding the society that those laws built.

    So, it really seems like there's plenty of third-party alternatives out there.

  36. Kevin  •  Nov 16, 2013 @8:52 am

    @GuestPoster

    So, it really seems like there's plenty of third-party alternatives out there.

    No, there really aren't, at least not at present. You cite two examples, both bogus. Moving out to the wilderness off the grid doesn't allow you to "live free of any and all laws" unless you're going full-on survivalist, hunter-gatherer style, 100% self-sufficient. But if you want to start a business? Or hell, even just purchase anything from anyone else? Yeah, you're back to being governed by the law of the jurisdiction.

    And the whole "if you hate government so much, why don't you just move to Somalia?" meme is a piece of statist herp derp that really just needs to die in a fire. It wasn't clever the first time someone said it, and it certainly isn't clever the billionth time. Contrary to statist belief, Somalia is not in a state of "anarchy". Just because it doesn't have a functioning centralized, western-style government doesn't mean it doesn't have any government – it just means it's governed by traditional, clan-based systems. These days, much of the country is governed by Sharia, which is pretty much as big-government anti-libertarian as it gets.

  37. David  •  Nov 16, 2013 @9:29 am

    You know, I occasionally want to reply to Clark's anti-government posts with 'how can a lawyer, whose entire job depends upon a government making laws, want government to dissolve?'

    @GuestPoster, Clark has said that he is not a lawyer. I'm also not a lawyer. We are law groupies.

  38. James Hazard  •  Nov 16, 2013 @9:33 am

    Amazing to stumble on this from AboveTheLaw. I've prototyped the system Clark describes. He's right. Contracts, yes. Torts, no. A good deal of litigation and permitting, yes. See it at beta.commonaccord.org, some posts about it at commonaccord.wordpress.com.

  39. Anton Sherwood  •  Nov 16, 2013 @1:44 pm

    GuestPoster, where in these United States are the vast tracts of unclaimed wilderness where one can, say, build a house that won't be knocked down the day Big Brother becomes aware of it?

    James Hazard forgot to put in the prefix:
    http://beta.commonaccord.org/
    http://commonaccord.wordpress.com/

  40. JTM  •  Nov 16, 2013 @3:09 pm

    @David "We are law groupies."

    That conjures images of throngs of middle-aged, professional men on the courthouse steps, screaming and shrieking in a state of near ecstasy as their favorite litigators emerge (with some incidents of fainting and/or underwear-throwing).

  41. James Pollock  •  Nov 16, 2013 @3:59 pm

    where in these United States are the vast tracts of unclaimed wilderness where one can, say, build a house that won't be knocked down the day Big Brother becomes aware of it?

    Apples and oranges. Guestposter didn't say you could live free of laws you disapprove of just by moving to the wilderness, Guestposter said that you could live free of laws you disapprove of by moving to the wilderness and avoiding other people.

    There ARE people who live in this manner. No, they can't build houses that won't be seized and razed by the man, but if they leave before the man gets there, they can avoid the man's law. People live this way right inside the city limits of Portland, OR, which features a vast wilderness, Forest Park, which houses an unknown number of persons who live in the park in various campsites (some with substantial buildings, most probably without.)

  42. David  •  Nov 16, 2013 @7:01 pm

    @JTM Isn't that Paul Clement just dreamy?

  43. JTM  •  Nov 17, 2013 @4:31 am

    @David "Isn't that Paul Clement just dreamy?"

    He makes my heart go pitter-pat,
    When he gets in a legal spat.
    My throat is raw from screaming praise,
    As he begins to state his case.
    My makeup runs, my clothes are rent,
    As he concludes his argument.
    The Judge's decision, made so soon,
    my passions fell me in a swoon.
    When I awake, he's won his case,
    And I the loser, tear-streaked face.
    Angelic lawyer, esteemed, elite.
    Why must I keep 300 feet?

  44. Brad Warbiany  •  Nov 18, 2013 @8:18 am

    In one specific case, we already do have competing third party legal packages — corporate law.

    Corporations are not "federal", they are state creations. Have you ever wondered why so many corporations are established in Delaware, even for companies which aren't HQ'd or have significant operations in Delaware? It's because Delaware's corporate law is well-established and predictable.

    Nevada is improving and catching up, but apparently there are still some weird things in their law that are concerning.

    California, where I live and where my employer is HQ'd? Only a moron would incorporate there (which is why my employer is incorporated in Delaware)…

  45. WhangoTango  •  Nov 18, 2013 @9:26 am

    "It's hardly better to remove the police from the equation; you just get the landlord putting in a standard clause that he reserves the right to use armed goons to enforce the contract. When the police show at the door, you have a chance to end the situation with a negotiation… turn down the music, and they'll go way and leave you alone. When the landlord's armed goons show up because your party's too loud, you aren't going to get off with a warning."

    Except that I can see the bit about "armed goons" in the contract and decide that I don't want to live in that particular apartment complex. And if the armed goons get too excited and beat me until I'm brain-damaged, shoot my dog, torch the apartment, then at least my executors can file a lawsuit against them. The cops can kill the hell out of me and walk away with nothing more than a paid vacation.

  46. Jimmy  •  Nov 18, 2013 @3:18 pm

    Odd how crime was lower and people had more respect for the law back when it was simple.

    Tacitus said it best:
    The more corrupt the state, the more numerous the laws.

  47. Simon_Jester  •  Nov 18, 2013 @11:42 pm

    I'm not sure that last is actually true- to take an example, Victorian London had very serious crime problems despite having a relatively simple legal code and very… "work or die" approach to welfare. Telling people "do not steal, it's that simple" only works if they have an alternative, you see.

    Victorian London also had problems with things that would be crimes today, but were not then, like knowingly designing your workplace in ways that routinely killed employees. If the "crime rate" was lower, that might well be part of the reason- a huge amount of what would get people arrested today flew right under the radar, because in that society the people who made the laws were prepared to put up with a lot of bad things happening to poor people.

    Personally, I think that trying to make all law systems co-equal is bound to run into several problems. The obvious one is that various major players in society will try to set themselves up a position of privilege (literally a word for "private law"), by attempting to standardize on a code of law that favors them in their own industry. If you think that's impractical, think about how Microsoft has us all very much forced to put up with things like the vagaries of the .doc format, whether we like it or not…

  48. Burst  •  Nov 19, 2013 @2:25 pm

    @clark
    This does seem strongly at odds with the assertion that there should be no government. How would you envision a society without formal government, but with consistently enforced laws?

  49. James Pollock  •  Nov 20, 2013 @3:48 am

    "Except that I can see the bit about "armed goons" in the contract and decide that I don't want to live in that particular apartment complex."

    Oops, they ALL have that clause.

    "And if the armed goons get too excited and beat me until I'm brain-damaged, shoot my dog, torch the apartment, then at least my executors can file a lawsuit against them."

    Summary judgment for the defendant, because the plaintiff's attorney can't read where it says in the contract that the defendant may use "any means" to enforce the terms of the contract. Shouldn't have resisted, and this wouldn't have happened.

    Imperial Rome had no police force. Was it more just and fair with regards to the administration of justice within its jurisdiction?

  50. lee  •  Nov 22, 2013 @4:39 pm

    Competing legal codes sounds like an interesting concept, and I'm not sure exactly how it would work (would be something like expanding choice of law clauses in contracts to apply to other areas of law?)

    Could you at some point write a post with a few more general ideas about it? (or is there other material online or offline that people discuss it?).

    Thanks

  51. Anton Sherwood  •  Nov 22, 2013 @5:29 pm

    One good place to look is David D. Friedman's book The Machinery of Freedom. (Some chapters are online but not the most relevant one, chapter 29.)

  52. Jack  •  Nov 23, 2013 @11:29 pm

    Victorian London had very serious crime problem? That's ridiculous and idiotic.

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