This is the next installment in a series where I design, with your help, a small, hypothetical new nation called Ascendia, based on small government, personal liberty, and free markets. Please read parts one, two, three, four, five, and six if you have not yet before reading this article so that you’re up to speed. Today I will lay out how Ascendia will handle its legal system.
Part 1: Loser-Pay Legal System
One of the most common questions/objections that people give when you describe a small government, free market, libertarian (or libertarianish) system is “Okay, but then how would you do X?”
Examples would be:
“If there was no environmental regulations, what would you do if someone polluted the river that flowed by your house?”
“If there’s no government regulation on food, how would you handle people getting hurt by eating bad food?”
“If there are no libel/slander laws, how would you handle someone badmouthing you in public with lies?”
“If there were no business regulations, how would you handle the guy who ripped you off?”
And so on.
The answer to all of these questions is: you would sue them.
The problem is as soon as you say that, people freak out. They freak out because the only context they have regarding “suing someone” is the horribly dysfunctional legal system the USA uses. They’ve never lived in any other system (or if they’re in somewhere like Europe or Canada with similar systems), so they have no basis for comparison between what a bad legal system looks like and a good one.
The USA is a country run by lawyers, literally, since 41% of Congress is made of up lawyers! [source] 80% of all lawyers in the world live in the USA. [source] The vast majority of all lawsuits in the world occur within the USA.
So yeah, if you live in a society run by lawyers, that society will be structured to benefit lawyers, not you.
Therefore, we live in a winner-pay legal system. This means that I can make up something bad about you, sue you, be wrong, cost you millions of dollars, destroy your reputation, and walk away with no consequences.
This is, of course, insane.
Terrible system for you. Great system for lawyers.
In a small government nation like Ascendia, we would need a fair, inexpensive, efficient legal system that the free market could use instead of relying on a myriad of laws from big mommy government to babysit us. Less laws and regulations means a more user-friendly legal system must be in place. If you have few laws/regulations and a horribly unfair legal system like the USA’s, that isn’t going to work, since people need a mechanism to defend their body and property.
Therefore, Ascendia would utilize a loser-pay legal system. This means that if I sue you and the court finds that I’m full of shit, I have to pay my legal fess, and 100% of the court fees and 100% of your legal fees and make restitution for you if the court time I made you incur pulled you away from your work, and thus your ability to earn income.
This means that I would have to be really, really sure that I was right before I sued you, screwed up your life, and clogged up the legal system. Which is exactly the way a legal system supposed to work.
This means several things:
- There would be no (or virtually no) frivolous lawsuits in Ascendia.
- There would be (comparatively) very little activity in the legal system in Ascendia since so few people were using it, meaning justice would be done swiftly, instead of slowly and expensively.
- People suing others would make damn sure to have all their ducks in a row and all of their information and evidence ready to go, since there would be strong motivation to do so (they don’t want to lose and pay all the legal fees).
Having a loser-pay legal system isn’t perfect. No system is. But it solves far more problems than it creates.
Part 2: Free Market Legal System
Loser-pay makes the system more swift and efficient, but we also need it to be inexpensive. Since big government won’t be babysitting people in the usual fashion, in Ascendia, we’d need a legal system that is available to anyone; not just the rich or upper middle class, but even the lower-class blue-collar worker.
That means Ascendia would embrace free market solutions within its legal system instead of mandating that everything (or most everything) be done via government. This would mean things like:
- Private mediators – Disputing parties could go to mediation to figure things out.
- Private arbitration – Disputing parties could sign a legally-enforceable document stating that Joe, a private arbiter, could decide who is right and who is wrong, and that both parties must abide by his findings.
- Private judges – These would be full-on private courts, similar to a private arbiter but with more features. They could be individual judges or panels of judges. (I like the three-judge panel idea, but that’s just one of many options Ascendia would allow.)
- Private juries – For those people who “don’t trust lawyers” or “don’t trust judges,” this would be an option as well.
All of these would be available, driving costs down as these private entities competed to give the best service (i.e. the most impartial and objective decisions). There would be online versions of all of these as well, driving down the costs even more. You could do the equivalent of “suing” someone (really going to mediation or arbitration) for just a few hundred bucks or less.
Who would enforce these decisions? The free market would enforce some, the government others. For example, if someone was found guilty of bank fraud, this info would be instantly transmitted to all banks in Ascendia, and most or all of these banks would freeze this guy’s assets and make sure he didn’t open any more accounts without extra verifications. In the internet age, there are hundreds of scenarios like this where you don’t need government to enforce any legal decisions at all.
In those cases where the free market really can’t do anything, the governments of the Free Cities would step in and enforce things, particularly things relating to location-dependent issues like pollution, real estate, and so on. For those very few things that the Free Cites and the free market couldn’t enforce, the federal government would enforce those.
Part 3: Civil Law
There would only be two laws in Ascendia regarding civil law (civil law meaning when a private citizen or company sues another private citizen or company; the government going after a citizen is called criminal law). Here they are:
- Do not violate anyone’s body or property (without their permission).
- Do whatever you promise to do in writing.
That’s it. Any judge, arbiter, or jury would simply have to determine “Did this person violate the other person’s body or property?” or “Did this person, who promised to do X in writing, actually do it, or violate it?”
That’s it! Very simple. It’s a simple yes-or-no answer. Very different from the myriad of stupid laws and parameters normal juries have to deal with today. Again, since the USA is run by lawyers, they make sure everything is really complicated so lawyers can make more money.
Part 4: Criminal Law
Criminal law would be handled more or less the same as it is in most other countries, though with the modification above. There would be much less activity in the criminal law system in Ascendia since there would be so few laws. In terms of your own day-to-day life, there would be essentially zero federal laws and only a few basic laws from your local Free City (if any!). Smoke all the weed in your home as you want. Marry anyone you want. Start a business any way you want, and hire or fire anyone you want whenever you want… but if you use false advertising and rip off your customers, get ready for a bunch of lawsuits. On freeways, drive any car you want, built any way you want, drive as fast as you want, and wear your seat belt or not… but if you crash into anyone and/or hurt anyone, your ass will be liable and you’ll be in deep shit.
The core concept of criminal law in Ascendia would be: We won’t punish you before you commit a crime (that’s what laws and regulations do). Instead, we will only punish you after you commit a crime. So you’d better not commit any crimes or hurt anyone.
For punishing verified guilty criminals, Ascendia would use self-sufficient private prisons. (Not the corporatist private prisons the USA uses. NO!) These free market prisons would force prisoners to actually work out in the fields and farm their own food, knit their own clothing, and so on, providing for their own needs instead of forcing taxpayers to do it. No sitting around watching cable TV for criminal prison inmates; you’ll be working in the fields or in a textile shop 8 hours a day just like everyone else.
The death penalty would be illegal (since Ascendia wouldn’t want big government to have that kind of power over its citizens) and DNA evidence would be required to convict for any serious crimes like murder or physical assault.
That’s about it! In the next installment, I’ll cover Ascendia’s health care and welfare systems (if any)!
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MoChnk
Posted at 06:26 am, 27th May 2018If I had not grown up in Germany which doesn’t have a speed limit I would probably think it’s insane to not have a speed limit.
But from life long first hand experience I know it’s very safe.
This is a good example for me to double-check my own bias in other areas.
Jp
Posted at 09:16 am, 27th May 2018What about illegal immigration?
Caleb Jones
Posted at 09:38 am, 27th May 2018You just encapsulated a statement that about 90% of the human race doesn’t understand. Well done.
That’s a big topic that I will handle separately in an upcoming article.
Shura
Posted at 11:59 am, 27th May 2018I guess this makes part 7, not 6!
Jack Outside the Box
Posted at 02:35 pm, 27th May 2018Whoa, whoa, whoa! Let’s back up!
What if I slander you by calling you a pedophile or something? Did I violate your body or property? No!
Did I break a promise to you that I made in writing? No! So, you’re saying you couldn’t sue me for reputational damage?
What about lying under oath, or obstructing justice by lying to a cop?
Caleb Jones
Posted at 02:43 pm, 27th May 2018Fixed.
Incorrect. If I can show you damaged my income because people don’t want to do business with me (or hire me, etc) because of your slander, then you have indeed damaged my property, and I have a legal case against you, to which you owe me restitution.
Each individual court would handle that based on their own rules. Most, of course, would harshly penalize anyone lying in court or during a deposition.
Each city would have their own laws about that.
Dave from Oz
Posted at 03:35 pm, 27th May 2018Family law? This one always trips libertarians up, because the relationship between parent and child is not a contractual one. They don’t have a framework to deal with it.
Félix
Posted at 08:14 pm, 27th May 2018Lets say a blue collar worker sues a big company because the food they sold him made him sick. Given that he’s got way less resources than said corporation, how can you guarantee that the private courts would actually stay impartial, instead of just taking the big company’s money and siding with them, thereby making the poor guy (who just lost the case) pay? I realize that there are no perfect systems, but these kind of scenarios really intrigue me.
Caleb Jones
Posted at 10:34 pm, 27th May 2018But I do:
http://www.blackdragonblog.com/2013/10/20/child-support-the-solution/
http://www.blackdragonblog.com/2015/02/22/marriage-work-free-society/
It would be a free market, meaning that poor guy would have many different options to choose from. Some private courts/arbiters would indeed be bought by big corporations, but some would not. Some would actually (likely) specialize in poor guys suing big corporations (likely ones run by left-wingers). There would even be non-profit courts that would take his case.
The problem is that we all view the word via corporatist (USA, Japan) or socialist (Canada, Australia, Europe) solutions, where there aren’t very many options, and where big government or big corporatist corporations run everything. True free market capitalism, on the other hand, provides many options, many of which you are unfamiliar with, or is at least more likely to.
Jack Outside the Box
Posted at 01:53 am, 28th May 2018What if I don’t damage your property or money, but only your social reputation via my slander, thus causing your family to abandon you or your friends leave you?
Our current laws against slander in America cover that, but it seems like you wouldn’t because it doesn’t fit into your two laws.
Also, would you have more laws that cover protecting children? Would there be age restrictions for certain things that are legal for adults? Or would you just give all legal authority to the parents and let them sort it out?
Trudodyr
Posted at 05:12 am, 28th May 2018I agree with you overall about government controlling too many things they don’t have to, but the no speed limit thing in Germany is only on the highway. Would you also be in support of not having a speed limit even in the cities?
One more question – in some earlier instalment you mentioned that police would be handled locally by free cities. What if someone gets murdered somewhere outside the city? Who investigates that and what rights does the institution have? What court handles that?
Caleb Jones
Posted at 10:45 am, 28th May 2018Severe emotional distress could and probably would be considered damage to person. Emphasis on the word “severe.”
As always, all that stuff would be determined by each city. Different cities would have different views on all of those things, and you would simply move to the city that most reflected your value system.
There would be zero social laws at the federal level.
Personally, yes, but that’s not how Ascendia would handle it. Each city would have their own speed limit laws.
Correct.
There would effectively be zero government outside of any city boundaries (with the exception of very few federal laws, like military protection at the borders, etc). People who lived out there would band together to form co-ops, or their own small town(s), or would have to defend themselves, or use private security services. If you didn’t want to live like that, you would choose to live within the city limits, pay that city’s taxes, and be under that city’s police protection.
The point is that citizens of Ascendia would have something no other citizen of any country current has: a choice.
Trudodyr
Posted at 08:31 am, 29th May 2018That does sound a bit too much like the wild west to me. I am not sure if I would like to fear possible mugging, kidnapping or murder every time I travel from one city to another. You could say that I face the possibility of these things also now, but the bad guys know that they would be chased down by law enforcement if they did it on organised and large scale level. But maybe that’s just the weak and numbed version of me speaking, since we live in such a safe world all our lives that it is easy to scare us. I will have to think about it.
Caleb Jones
Posted at 09:47 am, 29th May 2018As I said, then you would live in a city and not worry about it. Problem solved.
Trudodyr
Posted at 11:31 am, 29th May 2018Sure, but there are business trips, friend/family visits, holidays etc. One can of course limit this to the minimum, but it seems a bit too restrictive.
My thinking goes like this: You can now just get into your car and drive from Seattle to Portland and the thought whether some armed militia vehicle stops you, takes all your stuff and kills you does not even cross your mind. This is not the case for two cities in Africa (depends on the state), parts of South America, some mid-eastern countries etc, where the life in cities is relatively safe but outside is quite dangerous. Would you want to travel in those countries by car? You can go to these countries now and choose not to, because you have no interest there (and as you said, the citizens of Ascendia would have the same choice within their country, which is fine). But assume that your family members lived in different parts of the country and you also wanted to make business in other cities – how would you go about that?
I can see that having some federal police is financial (and therefore tax) burden, but I think that for this particular thing I would prefer to have it. Moreover it would make it a bit easier for people to start farms and other businesses outside the city (they would of course have pay for guarding it themselves), since having a government agency going after you all over the country after you have killed a farmer and his family is a good reason not to do it in the first place. Compare this to the situation when if someone manages to fight through the farmer’s defence and kill him then he is basically free to walk away or even just keep his farm, since it is outside the city and there is no police there.
In your setting there would probably emerge private companies which would be paid for guarding roads, pipelines, farms etc. But what if I hire a company to take over a piece of land controlled by some other company? Then you have basically a small war going on – two groups of trained and armed people fighting for land and resources. At some point either one big private company would control the whole land or people would get tired of all the mess and violence and demand having a universal national ‘company’ just to have peace – in both cases you basically have a single entity, which you can call federal police.
Caleb Jones
Posted at 01:01 pm, 29th May 2018Yes, freeways connecting cities is the one complicated part of this. Here are the solutions:
1. You’re assuming that all the land between the cities would be a Mad Max-like bloodbath. It would not be. In a first-world, prosperous, western-like society, 95% of humans are nice, non-violent people who don’t want to hurt anyone (you can’t compare that to places like Africa, which are authoritarian, repressed shityholes). The 5% who are left would have to deal with the heavily armed 95% (since there would be no gun laws). So the non-city land would be much, much more peaceful than you think.
2. Cities could go in 50/50 on freeways connecting them, which would include security. The cities have a strong incentive for people to feel safe driving on their freeways to and from each city.
3. Private security applies as well, as you mentioned.
There would indeed be federal laws country-wide enforcing property rights. Once you owned some land, it would be legally yours and no one could come take it. This would be done to encourage investment (including foreign investment).
Trudodyr
Posted at 02:05 pm, 29th May 2018I may of course be totally wrong about it. I am not claiming it would necessarily be like that, just considering/discussing the possibility and its implications. I am just operating with the assumption that if someone can make something bad and get profit out of it and it is not explicitly prohibited and enforced then people will just do it (they do it even if it is enforced, but generally less). But you are probably right – if some group of bad guys started making trouble even outside the cities people would get organised and get rid of them.
What agency would enforce it and how? What rights would it have? This is essentially my problem – I buy a piece of land and build a farm there. If someone comes and kicks me out of there then I can call the government to resolve it. But if someone just kills me and leaves then the government won’t give a shit? If there is a country-wide organisation enforcing property rights, I would also like to have one catching murderers. Or do you have some other way (without some federal organisation) of enforcing the property law in mind?
(I do see the problem with a federal organisation chasing murderers – someone later comes and says “we should also be chasing rapists and robbers” and later it will be also thieves etc and it is not clear when this stops. I admit that I don’t really know where the line should be or how to handle it.)
Alex
Posted at 07:08 pm, 29th May 2018A few considerations/questions:
loser-pay: I see a discouragement in suing people/companies richer than oneself. Even if I was totally 100% sure, I would still hesitate in suing a multimillionaire/billionaire person/company since this “I have to pay 100% of the court fees and 100% of your legal fees and make restitution for you if the court time I made you incur pulled you away from your work, and thus your ability to earn income“. Instead I would make pay these things based on how much evident the truth was.
A better example: -assume I hurt you and given the circumstances, without suing me you can’t get enough data to make me judge guilty but even suing me you might not get data satisfactory enough. What do you do?
Civil Law: A thought. I’m not an expert but, even though I instinctively agree it would cover most things (but not family, inheritance in case of missing contract), there might be a reason if all over history laws are more complex.
Criminal Law: “Marry anyone you want“. And the laws about married couples and/or cohabiting couples? There would be any? Also, what you mean with the part about dna? It is already extensively used.
“Start a business any way you want“: what do you mean? What can’t you do now? (I know little about these things)
“false advertising“: actually I haven’t seen many clearly false advertinsing (especially from medium/big companies). Usually they’re true but misleading. What if I tell you that inhalation of hydric acid cause death, even in small quantities? I’m telling the truth… . The same kind of reasoning (and quibbles, interpretations of words) can be applied to “Do whatever you promise to do in writing” (a potential problem in the loser-pay system). You should need a language as formal as math.
Alex
Posted at 07:58 pm, 29th May 2018Regarding the private judges, juries, …, I’m not sure to have understood but why not using one of these entities for each party involved in the lawsuit? Also what’s exactly the difference between full private courts and the actual ones?
What do you mean with cars “built any way you want”?
About the speed limit in freeways I might agree (joking but not so much: the comment of the guy in Germany is that: a comment of a guy in Germany. Try Turkey). About the speed limit in cities (or any other traffic code): is there one in some places? 🙂
About the intercities lands: why can’t the city police have influence over the lands around their city? Eventually with a state police to coordinate intercities affairs.
Extra: what about scientific reaserch?
Caleb Jones
Posted at 09:09 pm, 29th May 2018There would be a very basic federal court system, and you could sue anyone who trespassed or aggressed against your property, using the systems I already described in the article above.
That’s correct. That’s why you would need to A) defend yourself using any weapons you like, B) use private security, or C) as I’ve said twice now, live in a city if you don’t want that kind of responsibility. The only farmers like the ones you’re describing would be the ones who would prefer that kind of autonomy and risk. Clearly you would not be in that category, so you would have nothing to worry about.
Yep, that’s one possible flaw in the system. It’s still far better than the system we have now.
Hire a private investigator to get that data. Such people would be very common in a society like this, driving costs down.
None at the federal level. Each city could pass their own laws about this. Read my comment above to Jack.
Good. I’m just saying it would be required for convincing of major violent crimes.
Try starting a radio station business. Or your own bank. Try starting a business and only hiring people of your own race. And so on. No, you can’t start a business any way you want right now. We don’t live in a free country.
Then it’s fine. And if that slanders/libels some other company, they can sue you and the arbiter, judge, or jury can decide if it was false advertising or not.
Correct, just like legalese today.
That’s entirely possible and would be allowed.
More features, more expensive, more in-depth procedures, etc. There would be “full courts” and “budget courts” and everything in-between.
The auto manufacturing industry is heavily regulated in Europe and in most states in the USA. They are forced to adhere to all kinds of emissions regulations, safety regulations, and so on.
Each city would determine their own speed limits, if any. Outside the cities, no.
Because they don’t have jurisdiction outside of the city limits, just like police now.
Cities could indeed coordinate with other police forces in other cities, and probably would.
That is not a government function, nor should be. That’s a function of the free market. (Though the military would have an R&D budget of some kind.)
Alex
Posted at 01:04 pm, 30th May 2018If I stab you with a knife, the private investigator can’t put his hands on my body and my stuff (e.g. for eventual blood traces, which, by the way, might not be not enough) so how do you get your hands on, for example, the knife?
As I said Instead I would make pay these things based on how much evident the truth was
hence in this case you would probably not pay in case of defeat.
P.S. maybe the problem you cite is mostly in the U.S. I have a few acquaintances who work in various legal systems (not lawyers) and this problem is not so big (when the answer is “a simple yes-or-no answer” the resolution is quite fast).
I heard this only about U.S. I don’t know about Scandinavia.
I don’t know if you understood but hydric acid is water (H2O). I was citing the dhmo hoax.
I ‘ve not been clear: I agree with the use of legalese (I was a mathematician so I like it) but in a loser-pay system this is a problem since, even with the use of very formal non-ambiguous language, you can’t be sure that something will not screw everything (e.g. for 2000 years ca. smart people worked on the 5th euclid’s postulate, then someone throwed it away and invented new geometries or for an example closer to the topic, incompleteness theorems)
Yeah, but what’s the difference between private full courts and present ‘public’ full court? That you have to pay for the court?
By the way, things similar to the ones you described do not already exist? For example, signing an agreement does not involve only the lawyers of the parties and a third figure as a witness?
Ah, Okay. With “built any way you want” I thought something Mad Max style.
Anyway, I’m at least a bit skeptical in letting them do whatever they want.
This was a joke about the traffic in some places where a small mountain road is treated like an highway 🙂
Anyway, speaking seriously, I don’t think a no speed limit policy would be a good idea. At most, a recommended velocity.
I have doubts how well would take care of certain parts of research but now I don’t want to talk about this
Caleb Jones
Posted at 01:55 pm, 30th May 2018You can keep drilling down into weird scenarios and keep asking “but what if this???” questions forever, and I’m not interested in having that kind of conversation. My system is flawed, but not nearly as bad as the systems we currently use.
It’s worse in Scandinavia.
I answered that in the above article.
You have to pay for all the courts. Which would be easy since you’d be paying such low taxes.
Sure, that would be allowed too, but most people aren’t going to want a Mad Max car.
I can tell. I would stay in Scandinavia if I was you.
Alex
Posted at 02:28 pm, 30th May 2018I don’t live in Scandinavia nor I have ever been there. I just mentioned it for obvious reasons.
The example of the knife is not at all a weird scenario. This is the point. And I also mentioned a possible solution but you haven’t answered.
About the courts, I wanted to be sure.
Janus
Posted at 10:29 am, 15th June 2018Hi. I’m one of those lawyers who supposedly runs the world. I have a few qualms with your analysis.
At least in my state, commercial cases are already on a loser-pay system. I just got finished defending an incredibly frivolous commercial case. The plaintiff’s key witness sunk their case at deposition, and they still took it to trial. The whole thing took over 2 years and cost my client over $50,000. We’re not going to get that money paid back for at least another few months. We’re expecting an appeal. The loser-pay system does not eliminate frivolous lawsuits any more than mandatory minimums deter crime. I think, at least, you’re not accounting for human folly, or frivolous lawsuits brought or defended by judgment-proof litigants who have nothing to lose.
We also already have private mediators, arbitrators–and yes–even judges (not many people know about that one). In fact, I don’t think we even have public mediators.
Granted, we definitely have a lot of statutory law and regulations, particularly federal, that were written purely to scratch someone’s back (definitely not a nationwide secret society of litigators, though). On a small scale, you can see in this comment thread why our laws are always expanding and becoming more nuanced. You started with like two rules, and see how the body of law is already growing based on “what if”s? That’s been going on in the US for a few hundred years, and that’s why we have a large body of law.
My point is, I don’t think you appreciate the practical realities based on human nature that shaped the legal system we have today. You’re trying to design what you perceive to be a simple, logical system in a world populated by illogical people and filled with infinite nuance.
Caleb Jones
Posted at 11:24 am, 15th June 2018I didn’t say lawyers run the world. I said most of the US congress is made up of lawyers. Thus, lawyers run the USA, not the world.
But then you say…
So… yeah.
I never said it would. I said it would be an improvement. There is no such thing as a perfect system.
Correct. There is no perfect system. What I’m suggesting is an improvement over the bullshit we have now, not a perfect system. You don’t chuck a less-bad system because it’s not perfect.