Archive for December, 2011


Libertarian Law: Thinking About Arbitration
by DataPacRat


Special/Attribute to L. Neil Smith’s The Libertarian Enterprise

“Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add “within the limits of the law” because law is often but the tyrant’s will, and always so when it violates the rights of the individual.”
—Thomas Jefferson

I’m still thinking, slowly but surely, through what is required to maximize my (and by extension, everyone else’s) liberty. Two facets of the news have recently come to my attention.

One is that after having spent some time subscribed to the National Police Misconduct NewsFeed, my last remaining vestiges of hope in the police as protectors of the innocent have fallen by the wayside. The essential foundation of the rule of law is that all people have the law applied to them equally; however, if a police officer violates my rights, there would seem to be, in practice, no way for me to get redress.

They can buy a ‘tip’ from a known liar about such things, paying him in drugs. They can raid a completely different home than the one in their warrant, terrorizing you even if you’re completely innocent. They can shoot your obviously harmless dog that is running /away/ and poses no actual threat. They can give conflicting orders and require you to obey all of them, and use force against you when you fail to comply with the impossible. They can torture the residents, even to death. They can plant evidence. They can seize (‘steal’) property from anyone who comes into their power, and not return it. If any video of such activities exists, and they get their hands on it, it will mysteriously disappear… and if anything happens other than an internal investigation clearing all officers involved, it is the exception, not the rule.

(Oh, yes—in case you haven’t been watching the news lately, Harper is currently negotiating a new border treaty which will allow squads of American police to operate on Canadian territory, as long as they can claim that at least one Canadian officer was technically in charge of them at the time, meaning that whatever differences may exist between American and Canadian police will soon no longer matter.)

In short, it seems to be an entirely reasonable view that we civilians are effectively under the thumb of a military occupying power—and thus that, wherever possible, we should try to conduct our business without getting the powers-that-be involved at all.

The other facet is that in spite of whatever political disagreements I may have with the Occupy movement, at least one aspect of how they’re trying to put their money where their mouth is should appeal even to ElNeil: in their General Assemblies, they aim for a practice of “one man, one veto”. Any participant who wishes to block a proposal, can. Which leads to a whole host of difficulties, of course, but somehow, they seem to be figuring out how to deal with them.

The former facet has led me to the thought that, whenever possible, liberty-preferring citizens should try to resolve their differences among themselves, rather than through the current official legal system… including preferring going through some form of binding arbitration process rather than the courts.

However, any such arbitration process requires that the participants at least agree to the overall framework, the rules that will apply, even if they end up disagreeing with the outcome. And this seems to be the sticky point. Even full-fledged libertarians who base their political views on entirely rational bases can have some rather fundamental disagreements about certain important aspects. For example, ElNeil and I have fairly wildly diverging viewpoints on copyright—he sees it as a property right about as fundamental as being able to own a knife, while I see it as a government-granted temporary monopoly. It is entirely possible that I might perform an act which ElNeil considers a violation of his rights, which he would want to seek redress for; but unless the two of us are able to come to some agreement about what rules an arbitrator would follow, neither of us would have any signficant incentive to agree to be bound by arbitration we know we wouldn’t win…

…other than the relatively abstract benefits of being able to participate in a dispute-resolution system which avoids the involvement of the occupying powers-that-be.

One approach to solving this would be for each of us to try convincing the other of the logical and rational foundations of our viewpoints. (For example, I have a handy reference demonstrating that the maximum benefit comes from copyright durations of 14 years or less, especially pages 26-29, and could probably be convinced by ElNeil to agree to respect copyrights of that duration.)

But what if such agreement can’t be reached? As in the Occupy movement, any individual involved can veto any arbitration rule they don’t want enforced on them. I’m not entirely sure what a good answer to this problem will be; but after spending a good bit of time thinking hard about it, I have a fairly strong suspicion that at least part of the answer can involve people announcing, beforehand, what standards of behaviour they want to be held to. To let other people know what actions they do not want others committing against them, and thus what actions against they wish to be held accountable for themselves, should they perform them. A sort of cross between a personal legal code, a declaration of principles of honor, and a statement of casus belli. I’ve already published “DataPacRat’s Draft for a Libertarian Compact”—such an announcement would be similar, only going into more detail, enough so that an arbitrator would be able to read it and apply it against the announcer, should a dispute arise. It might also be useful to include additional details such as standards of evidence, nature of recompense, and what should be done when someone has provided very strong evidence from their behaviour that they are likely to infringe on someone’s rights in the future, how to deal with later revised versions—most of the various things a government-provided legal code covers beyond listing actual criminal acts.

If such announcements are made, with at least implicit agreements to accept arbitration that abides by such standards, then that would seem to go a long way to solving the problems of non-governmental arbitration. Not necessarily all of them, but until such time as a full solution is found, a partial solution seems better than none.

I’m currently working up a draft of such an announcement for myself. I’d like to get the first version as good as I can before publicly releasing it, in order to allow as many like-minded libertarians as possible to be able to use it as a base for any similar announcements they wish to make for themselves. If you would like to offer any input, you may, as always, reach me at

Thank you for your time.