Re: "Is the death penalty extropian?"
Thu, 26 Nov 1998 10:22:15 EST

In a message dated 98-11-25 18:16:49 EST, 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 softhearted 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 interPPL 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     <>----<>
	   Attorney  :::  Director, Extropy Institute  :::  Wilderness Guide   -or-
	           "Good ideas are not adopted automatically.  They must
	              be driven into practice with courageous impatience." 
                                    -- Admiral Hyman Rickover