-Caveat Lector- from: http://www.zolatimes.com/V3.43/pageone.html Click Here: <A HREF="http://www.zolatimes.com/V3.43/pageone.html">Laissez Faire City Times - Volume 3 Issue 43</A> ----- November 8, 1999 - Volume 3, Issue 43 Editor & Chief: Emile Zola ----- Principles of Internet Law by Wolf DeVoon Folks who speculate about nontraditional legal systems generally have my blessing, however misguided their efforts. It is more important to talk about smashing the state, than it is to make sense. Lord knows, I've postponed the job of defining a laissez faire philosophy of law as long as possible (more than 20 years) because political innovation is a difficult, thankless task. It consists mainly of squinting at a blank, featureless landscape, strewn with dust and ashes, shrouded in the fog of a thousand hostile engagements. However, we're in a kind of emergency situation now, and the court of public opinion is threatening to hold me in contempt, unless I present my case. Internet law (or rather, the absence of laissez faire legal principles) has attracted the attention of territorial sovereigns and institutional scholars, most of whom are whistling the punch-drunk melody of fascism in three-part harmony. Worse: young, well-intentioned webslingers have filed an amicus brief, suggesting that Internet law is unnecessary and that non-coercive, voluntary arbitration could solve the problem of due process. In the second part of this document, I will rebut the arguments of opposing counsel (Joel P. Trachtman, Roderick T. Long). But to understand why their proposals are inadequate, we must initially consider basic principles and construct a theory of laissez faire jurisprudence from the bottom up. Part One - Constitutional Law THE IDEA OF LEGALITY I'll begin by quoting a paragraph from Government Is a Quack Faith-Healer, which identifies the context, necessity, and goal of due process: Ayn Rand had the right idea. The guiltiest of men are the natural oligarchs, who abdicated their leadership of an anarcho-capitalist revolution. Instead of giving Harry Truman the atomic bomb, it could have and should have been developed in a laboratory at Galt's Gulch. This is the moral meaning of inequality. When the men of brains collaborate with a mob of dullards, it's unfair to blame the resultant calamity on a crowd of pickpockets and cheerleaders. Sadly, a moral principle never reaches beyond itself. Its ethical arms are too short, extending no farther than one man's soul, one man's purpose and lifespan. We have to look elsewhere for political guidance, because the thing at issue is "a nation of laws and not of men." Whether the nation is defined by physical or anonymous digital territory, the constitution of its legal system cannot be deduced rationally from one person's moral purpose, however noble. I am a great admirer of morality. Frankly, I wish I had more of it—because I seldom know with certainty the consequences of my actions, and because every artist would gladly trade justice for money. In this, filmmakers are no different than dogs, hoping to eat and fuck without moral or political constraint (i.e., quit my day job tomorrow and spend $5 million of other people's money making an art movie that will flop at the box office). If you are uncomfortable with the expression "a nation of laws," feel free to substitute "a household of laws" or "a cyberspace of laws." The size of a court's jurisdiction is unimportant. What matters is that no man should be allowed to judge his own cause. The essence of due process is a legal (i.e., formalized and fair) proceeding in which one or more parties bring a case or controversy into open court, for the purpose of adjudication by impersonal law. The duty of a judge is similar to that of a medical doctor. He admits the evidence, conducts objective tests, and prescribes an appropriate legal remedy. Because no man should be allowed to judge his own cause, monarchy and other forms of arbitrary government yielded to liberal democracy. It was a substantial improvement in terms of due process. No longer could a king or baron dispose of his "subjects" unilaterally by whim or categorical privilege. And whatever else you may feel about the American Experiment, it gave the world an example of impersonal due process of law, mainly thanks to the U.S. Constitution, which created for the courts an independent jurisdiction, unrelated to legislation or executive order. Readers who are curious about the original intent of the U.S. Constitution should study Madison's Debates In The Federal Convention. While delegates fought each other stubbornly for two months in the summer of 1787, struggling toward a dissatisfying compromise with respect to representation, legislation, and state government powers, few questioned the wisdom of an independent judiciary, competent in their own right to define due process and to perform retail justice at every level of the new U.S. system. I am keenly aware of corruption among Federal and state judges. This does not diminish the effectiveness of due process. In fact, due process is the only thing that limits judicial corruption. Cases proceed in public. Parties have a right to be heard and to confront each other in court. Decisions are published. Much of the U.S. constitutional language, especially in the Bill of Rights, was a reaction to colonial experience. Habeas corpus. Speedy trial. No unreasonable searches and seizures. No billeting of soldiers in private homes. Freedom of assembly. The right to bear arms. Trial by jury. In a similar and natural way, many people suppose that our experience on the Internet (and its discernible potential to frustrate territorial sovereigns) should be the logical subject matter of laissez faire law. This is, unfortunately, wrong -- for the same reason that the Bill of Rights was constitutionally fatal to liberty in the United States. The framers knew that a laundry list of "rights" was a bad idea, because it reversed the notion of enumerated powers, and indeed history proved them correct. When you concretely define justice as a list of do's and don'ts, you implicitly deny the existence and validity of first principles. With enormous confidence, contemporary writers have declared that the state is a permanent institution, the most efficient means of producing "social goods" (public justice, air traffic control, world peace, etc). Any fair reading of U.S. constitutional history makes plain how this paradigm hardened. Enumerated powers gave way to Hamilton's doctrine of "implied powers," especially during the Civil War epoch. Fifty years later, the New Deal ring-fenced a half dozen "preferred freedoms" (free speech, equal protection of law), granting regulatory power over the entire economy to new Federal bureaucracies. Freedom got smaller and smaller, and the police power grew larger and larger, paradoxically because a nervous Virginia Assembly demanded a Bill of Rights in 1789. Everywhere you go in the U.S. nowadays (hospitals, prisons, bus stations, factories), you are immediately confronted by huge legal notices enumerating your "rights" and "responsibilities" as a patient, a prisoner, a passenger, or employee. What this amounts to in reality is a puff of anesthetic smoke that affords no due process, because all claims are decided by an administrative flunky of the Executive Branch when he or she feels like opening the mail. You are at least three administrative appeals and years away from pleading your case in a state or Federal court. Whatever we fashion in cyberspace, please, no Internet Bill of Rights. More importantly, we must cease to think of Internet law as an unique category of parties and mechanisms. At our peril, we must not repeat the error made by the colonial American founding fathers, hoping to curb specific abuses. It is a triviality that some cyberplayers will defraud the public, and it is dangero us to speak of voluntary arbitration and comment forums as "due process of law." Arbitration presupposes voluntary submission to court orders, without police power of enforcement. Comment forums are little better than slander, lacking rules of evidence, testimony in open court, cross-examination, and enforceable penalties for perjury. I can scarcely think of a worse mechanism of due process, than the "moral suasion" of a toothless, gossiping wall newspaper. The lesson of history is that law ought to be an impartial arbiter of justice, and that order consists of enforcing the law. In my view, this does not necessarily imply sovereignty, democracy, or a professional bar. Just as commercial law was evolved from business practices (bills of exchange, agency, bonds, holder in due course), criminal law can be evolved from our knowledge of human affairs, without reference to parens patriae. THE DUTY OF JURISDICTION Like all liberals and most libertarians, I am forced to quote Thomas Jefferson, because he did all the heavy lifting two centuries ago. Unlike my competitors, however, I know which epigram to recite and why it matters: The earth belongs in usufruct to the living; the dead can have neither power over it, nor right to it. Note the factual orientation here. The dead have no power to control anything. They have no right to obstruct decisions made by the living. Therefore, social settlements concluded in the past by people who are now deceased impose no obligation in the present. Presto—the right of revolution! It also means that the doctrine of stare decisis ("let judicial precedent stand") is basically rubbish. I appreciate that it is important to business people that law should be predictable and constant. However, it is more important to freedom that justice be understood as an evolving knowledge of truth and consequences. In Jefferson's time, the law of the land was monarchy. Without the right of revolution, the Declaration of Independence was logically impossible. This is the meaning of legal process—to discover justice by examining the claims of live litigants, instead of blindly applying the doctrines of dead authorities. We call it "due process" when nothing is hidden: justice must be done on the record, with reasons given for every procedural and substantive decision. It is certainly the case that different judges will perceive justice differently, and that a potential exists for conflict among multiple courts. The appellate system offers a workable solution. And the tradition of comity requires judges to respect (or at least, take notice of) the law in other jurisdictions. But long before anyone can arrange for judicial conferences or review of reversible error, we must solve the problem of original jurisdiction. Let's suppose that you are head of a household. Kid A punches Kid B in the nose, hard enough to require a documented visit to the doctor. You are de facto jurist for your own family. A cause of action is lodged by your wife, representing Kid B, whom she says was minding his own business when Kid A punched him. Due process requires a hearing in the living room. The complainant is sworn to tell the truth under penalty of appropriate sanctions for perjury (no TV for a week, if proved guilty of fibbing or exaggerating). Sure enough, he looks as innocent as a wounded lamb. But on cross-examination by a neighbor lady, representing the defendant, it's revealed that Kid B called Kid A a "dumbshit" and laughed at him. This amounted to fighting words, a legally cogent defense. From the sofa, you interrogate everybody and end up believing that both kids are idiots. Case dismissed, with a warning about seeing either of them in your living room court ever again, because it pisses you off to have to deal with juvenile delinquents. Jurisdiction in your own home is undeniable, if you have children. They are going to squabble. You will have to settle disputes and enforce the law from time to time. No one else is competent to do it. But what about breach of contract, torts, nuisances, and criminal wrongs in the larger community? Nothing is substantially different. Neighbor A punches Neighbor B in the nose, and offers the same defense. The parties end up in your living room because you're a lawyer, and your wife arrested both of them with the family shotgun, locking them in separate closets until you got home from a hard day at your law office downtown. This time, however, the whole thing is done on the record, and your nitwit neighbors are released on their own recognizance, promising to return on Saturday afternoon for a hearing. You issue a preliminary restraining order to both of them, to stay clear of each other until Saturday. At the hearing Saturday, each party is represented by counsel. Defendant wants a jury trial, so the whole thing is postponed again, jurors are selected, etc. Finally it comes to trial, and the jury decide that Neighbor A is guilty of aggravated battery. His defense of "fighting words" is rejected, because Neighbor B is a mild-mannered accountant who denied saying anything about the defendant's sister. They also reject the theory that Neighbor A was maliciously harmed by Neighbor B's refusal to lend him money. Being a thoughtful judge, you decide that the matter of criminal punishment in this case should not be burdensome to the innocent, so you order the bailiff (a particularly ferocious neighbor who, thankfully, is an officer of the court instead of a bully) to punch Neighbor A in the nose in retribution on behalf of Neighbor B and the public good, and you further order the guilty defendant to pay court costs, since he demanded a jury trial. The official nose-punching takes place in public, so that other neighborhood nitwits see the penalty for criminal conduct. Case closed. While I appreciate that you might have ruled differently in the above criminal case, or that you perhaps object as a matter of principle to any form of coercive third-party government, I assure you that due process and public trial make more sense than do-nothing passivity. It is negligent malpractice for a doctor to withhold treatment from an individual patient or from the community at large, simply because he didn't feel like doing anything. The essential and defining purposes of medical practice are to save life and to ameliorate suffering. The essential and defining purposes of legal practice are to defend the innocent and to ameliorate wrongful acts. Call it a duty, to ourselves and others. As you perhaps may already know from reading some of my other essays on government, I am not a big fan of "duty." Jefferson's right of revolution specifically exempts you from any and all responsibility imposed by tradition, legislation, or peer pressure. At this juncture, we are not talking about your right to do nothing. We are instead discussing the origins of jurisdiction and the sworn duty of lawyers and judges. Just as an agent promises to faithfully obey the instructions of his principal, and a principal is bound by the actions of his faithful agent, lawyers voluntarily assume a duty of care and confidentiality when they undertake to legally represent a client. Judges assume a larger duty of care, without the protection and flexibility of secrecy, when they are appointed to the bench as "lawyer for the community." It takes a special type of person to command the confidence of the public in any capacity—especially as a guardian of law and order. I am not referring here to extant terrestrial governments, but rather to the prospect of a laissez faire jurisdiction, based on earned respect and diligence. Benjamin Franklin devised a pretty good procedure for the selection of judges, during the Constitutional Convention in 1787. It's a pity that he wasn't taken seriously. He suggested that lawyers should elect judges, because they will almost certainly choose the most successful and most reputable of their number, in order to divide his lucrative law practice among themselves. Whatever method is chosen for the selection of law judges, and however their jurisdictions and appellate hierarchy may be organized, it is a first principle of justice that no man should judge his own cause. If the judge has any personal interest in a case, or a personal relationship with any of the parties, it is plain error if he fails to recuse himself. I know that this doesn't solve all the problems of public justice (e.g., racial discrimination, corruption, law enforcement), but we won't go far wrong by upholding two fundamental principles: (1) It is the duty of a judge to hear all of the relevant evidence and legal arguments in a case and to afford all interested parties an opportunity to testify on the record in open court; and (2) It is the responsibility of a judge to decide every case on the facts in evidence and the merits of legal argument offered by competent counsel, without undue reliance on precedent, disregarding passion or prejudice, in the interests of justice. How well this works in practice depends on who the judges are. If we accept Franklin's method of appointment, the competence and fairness of judges will depend on who the lawyers are. Since lawyers cannot practice without clients, ultimately, the most economically successful merchants, bankers, and skilled professionals will determine who practices law and who doesn't. Nobody in his right mind wants a dumbshit con artist to represent him. The American Experiment began with lawyers, none of whom were elected to office or appointed by George III. They read the law in two or three volumes of legal commentaries and a handful of reported decisions. Like Abraham Lincoln, who practiced law a century later, the colonial American bar was guided by reason and practicality. They wrote the Declaration of Independence in consultation with businessmen, bankers, and clergy—and pledged their lives, their fortunes, and their sacred honor to the defense of simple equity. We can do no less, if liberty is to be preserved for ourselves and our innocent posterity. THE FORCE OF LAW Sounds like a contradiction in terms, doesn't it?—laissez faire law and order— especially since a fair translation of the French phrase is: "Let us alone!" It is particularly hard to swallow the notion of law enforcement, if you believe that coercion is the root of all evil and that voluntary intercourse is a categorical moral imperative (a Platonic-Kantian thing-in-itself). Nor am I willing to split hairs and accept John Hospers' thesis that the altruistic coercion of children and incompetent senior citizens is permissible, for their own good. I want this debate to be as straight up and down as possible. Either coercion is wrong, or it ain't. I say it ain't. Let's put this on a sensible basis. Force is good. I like force. I wish I had more of it at my disposal, and that I was able to wave a battalion or two at my enemies. (Government Is a Quack Faith- Healer) I hope you understand that there is a contest in life between the good guys and the bad guys. The decision to kill, albeit terrible and irreversible, is not the most important question. Who to kill, when to kill, and why are major premises. Dagny Taggart walked up to a guard and shot him dead, knowing nothing about his guilt or innocence, believing only that (maybe) he posed a threat to Galt's freedom and safety. Francisco shot a couple dozen steelworkers because he thought Hank Rearden was deserving of life, at any price, including war. I am not now arguing the law of assault, which justifies preemptive action if you have reasonable cause to believe that your life or the life of another is in peril. Rather, I am suggesting that force is a natural and necessary part of life. We kill insects and animals every day, round the clock, in every nation of the world. We routinely tell our children and employees what to do, threatening a variety of punishments if they disobey or don't work hard enough to please us. The recurring human predicament is how much force to use? I'd much rather entrust the job of coercion to a laissez faire judge and jury, sworn to impartial due process, rather than let folks kill each other whenever they felt like it. No man should judge his own cause. Crime detection and law enforcement (execution of court orders) are necessary and desirable extensions of impartial due process -- not because they serve "the greatest good of the greatest number," but rather to even the odds of judicial success. No criminal has ever volunteered to turn himself in, show up in court, endure whatever punishment the law provides, and quit being a bad guy. Trust me. I met 2,000 bad guys in prison. Not one of them went to court voluntarily. If you agree with me that the decision to kill is a terrible one, perhaps you'll support my argument for a female judiciary. See Bad Cop No Donut. However, regardless of which sex adjudicates or enforces the law, their actions must be governed by something other than a personal grudge. The enforcement of law and order is a skilled trade, no different than cleaning toilets for a living. Often, it's hard to tell them apart—because cops do the dirty work of investigating horror and tragedy. Janitors have it relatively easy, in my opinion. If there's blood on the floor, they call the cops. BLOOD ON THE INTERNET It has been asserted (wrongly) that the Internet lacks any means of violence or coercion, and that cyberspace is a virtual environment which only vaguely and remotely intersects "meatspace." If either of those Third Wave assumptions was true, I'd pack up my law books and go home. Just as a telephone can be used to deliver a threat, or to plan a terrorist attack, the transmission of digital ones and zeroes is not inherently benign. Whatever power and productivity you imagine the Internet will bestow upon mankind, there is an equal and opposite threat of evil lurking on the web. Encryption and anonymity merely raise the stakes. Criminals become twice as hard to catch. You can be murdered in your bathtub by a stolen password (literally murdered in "meatspace," if you installed home automation or an alarm system). While everyone else has been jabbering about the security of cyberspace bank accounts and digital cash, I've been thinking about your physical security at home. If the world economy takes a tumble in transition from Second Wave to Third Wave regimes, it will anoint a few cyber-rich and curse many cyber-poor. Without a doubt, some blood is going to be spilled in meatspace as a consequence. Moreover, your desktop box and browser are targets for vandals, competitors, and disgruntled employees. Everything in cyberspace is ultimately physical, ultimately someone's property, a battlefield contest between good guys and bad guys. As pleased as I was to hear that ABC-TV's website was defaced by juvenile delinquents recently, it bodes dark tidings for the Third Wave. In a worst case scenario, with sufficient social chaos, the Third Wave could very well become another Third Reich, intolerant of "communist" hackers. Conditions today are not much different than pre-Hitler Germany, if you consider how many bushels of euros or Siberian petrodollars it takes to buy a loaf of worthless Yahoo. If it's true that encrypted cybercash and anonymous trading enterprises are coming soon to a post-industrial economy near you, don't you think that maybe the terrestrial sovereigns might get a wee bit pissed off? After all, it means losing some (maybe a lot) of their tax revenue. Where is the Third Wave militia, to stop FinCEN and the FBI from attacking your meatspace life and liberty? Are you prepared to defend yourself, if shit comes to holler?—or would you rather have a laissez faire circuit court declare that it is laissez faire constitutional to raise a laissez faire army to defend cyberspace? If that same court finds that someone betrayed the Third Wave militia, are you going to object to capital punishment? Is it possible that a business rival could "frame" you and make it look like you're a cybermole who's working for the bad guys? If so, rejoice. Laissez faire judges don't kill people or seize their assets without due process. Accusations of treason are considered extremely serious (automatic jury trial and appellate review in case of conviction). Any breach in the custody of evidence or criminal procedure is ample ground for dismissal, and there's no double jeopardy. You can't be tried twice for the same treason. I realize that this implies a laissez faire "government," capable of collecting our own version of "taxes." At the moment, I'd rather not discuss financial details. My general theory in opposition to Robert Nozick is that a strong laissez faire security agency will emerge, no different than the Sons of Liberty in 1775. They had plenty of financial problems, too—but it didn't stop them from declaring political independence and eventually kicking George III's butt. PROPERTY RIGHTS, WRONGS, AND REMEDIES A laissez faire constitution shouldn't try to do too much, especially if we can incorporate a body of law that works just fine (probate, family law, equity, etc). However, as I indicated in previous writing, I think we need to redefine the common law term "property." Although it is personally unpleasant for me to quarrel with my learned friends and colleagues, in meatspace reality there are no immortal, impersonal entities (no corporations, no trusts). All that exists are flesh and blood people, and if property is to have an understandable legal definition, it must refer to existential concretes, rather than fictitious ghosts. It is my fervent hope that laissez faire law and order will proceed without legislators or elected officials. The last thing we need is another sovereign, to obfuscate the standing of real, individual men, women, and children. Human controversies are hard enough to adjudicate, without endlessly multiplying the number of "legal persons" who can bring suit and hold property. Nor am I convinced that property is uniquely personal in any fundamental sense. Please note that this topic is so subtle to my mind that it is impossible to explain quickly what the previous sentence implies. I will write an article about property law in the near future. For now, please accept my word for it that I am not an advocate of socialism, although the remainder of this paragraph indicates that I am sympathetic to the plight of children. When millions are starving, it seems bizarre to me that someone else acquired their right to survive, by virtue of his power to share or refuse to share a storehouse of food (or agricultural land, or machinery, or electricity). Possession of property is a solemn mission. Most property today is directly or indirectly controlled by fictitious territorial "sovereigns" and tribal warlords. The goal of laissez faire civil justice, I believe, is to shred as many these unearned property deeds as possible and to cease wasting energy on legal fictions. Furthermore, it's time to junk Roman contract law. The domestic dispute of Rea rden v Rearden in Atlas Shrugged proves that no "pound of flesh" covenant can be or ought to be enforced against a living individual. The only thing a person owns outright is his or her liberty. Often, we make bad bargains. Laissez faire courts cannot remedy someone's vanity. We make promises that can't be kept. Laissez faire courts cannot compel performance of a folly. The best we can do is to draw the line at murder and slavery, brutality and degradation—and if commercial agreements seem patently onerous, laissez faire judges might interpret the intent of rapacious litigants to be a crime against humanity. I don't wish to speak for my brother and sister jurists, who will hear the facts of each case and determine what seems fair and equitable. But I doubt very much that any laissez faire judge will agree to further empower an absentee mortgage arbitrageur at the expense of indigent children. If this seems confusing, it should not. Courts are not operated by robots. A judge is first of all a human being, no different than you or I. His authority flows from the respect and confidence of the community—and I would be willing to bet that most communities are populated by decent and compassionate human beings. Take away the evil of "nation-state" sovereignty, and you'll find that few men and women are cruel to one another. Yes, there will be torts and nuisances to settle. A few cases might go all the way to jury trial. I am not arguing that due process should evaporate, if Citizen A wrecks Citizen B's septic tank. But the Internet is no one's property. Possession of a password is as close as you'll ever get to owning a fraction of its social total. If you are a fraudulent cyberbanker, or a racketeer, the court could issue a bench warrant for your arrest—or do nothing—depending on the judge's view of responsibility. In my opinion, the right to life is contingent. I feel very little compassion for chumps, especially overfed burghers who presume that they can use the courts to force a scam artist to honor some ridiculous, pie-in-the-sky promise. The whole of my empathy is reserved for those who have nothing and for whom life is a struggle. See Brooks v Taggart (in Atlas Shrugged). Money damages do not remedy loss of life, or the disfigurement of a child, or the pain and suffering caused by negligence. Because the right to life is contingent on responsibility, I am inclined to uphold the principle of caveat emptor and to let competition reward good conduct. It is a difficult burden of proof, to adduce that someone was tricked and cheated, or wrongfully injured, through no fault of his own. An infant may be exempt from this burden, because he knows so little about the world. But not an adult. McDonalds can stop printing notices on their coffee cups, announcing that "Hot coffee is hot." I'm an old-fashioned sort of guy. I believe in the code of Hammurabi—an eye for an eye. Left to my own notion of justice, I would impose some pretty barbaric remedies for medical malpractice and vehicular bodily injury. Perhaps this will inspire out-of-court settlements. But finally, it's up to the plaintiff's attorney to ask for a remedy and the jury to decide what to award. Judges play a small but significant role in tort cases, preserving a sense of fair play and decorum during what must of necessity be a tedious and grisly reiteration of a tragedy that no sane person can contemplate with much pleasure. Part 2 - Reply to Arguments of Opposing Counsel International law is the sculptor's tool in the hand of world history, constantly shaping and reshaping the state and other institutions. Of course, the state is also shaped and re-shaped by its own law -- by domestic law. It is in this sense that international law and domestic law are joined in a single project of social design. -- Joel P. Trachtman It often amazes me how scholars can trot out Hegelian claptrap, as if there were nothing else to say about humanity or justice. And it is embarrassing to have to point out what's wrong with this picture. "World history" is an imperfect record of achievements and errors made by individual men and women—millions of them—not one, huge Immortal Entity on Autopilot driving human affairs. Professor Trachtman made his ridiculous claim about "a single project of social design" in a recent essay on Internet law1 and concluded that Far from being the friend of free speech, the Internet may be the ideal mechanism for supervision of speech. Thus, cyberspace may hold the potential to be a diabolical tool of totalitarian control, allowing the state finally the technological means to keep track of what its citizens are saying, reading, buying and, through computer analysis of large amounts of information, thinking. Thus, while the Internet may, as Perritt says, indeed be a powerful engine of open government, it may also be a powerful vehicle of the closed society, providing finally the technological means to attack individuals' heretofore private lives. In your dreams, professor. Pretty Good Privacy2 was only a symbolic gesture, like the Boston Tea Party, in celebration of cyber-independence. No doubt the United States will try to impose something akin to a Stamp Tax on websites—and that's when the real battle will begin in earnest. For all of its mighty computer power, the NSA today is no differently constituted than the Royal Navy was in 1775. They have a chain of command. They cannot concentrate their power everywhere at once (Russia, Mexico, New York City, Istanbul). We are insurgents. We are everywhere and mirrored behind every tree. What Trachtman and others mystically proclaimed to be "world history" was in fact the stop-start, timid exercise of human reason. The Dark Ages were dark because fear and destitution were encouraged by the Church (a forerunner of the NSA). We don't intend to buy it this time. The purpose of the legislative function is to determine the rules that will govern the process of adjudication. Legislation tells the judicial function how to adjudicate. The legislative process may be distinct from the judicial process, as when a legislature passes laws and the courts subsequently apply them; or the two processes may coincide, as when a common-law body of legislation arises through a series of judicial precedents. -- Roderick T. Long3 Four sentences, four incorrect premises. The purpose of the legislative function is to express the will of a mob, the lowest common denominator, and a gang of glad-handing shamans. I want nothing to do with them. All you get from the masses is Neilsen ratings and beer commercials, McDonalds and the NFL. The catalog of disasters in American legislation is so thick with cupidity that I refuse to discuss it. No one tells judges how to adjudicate, not even in the creaky, cantankerous U.S. legal system. The rules of evidence and legal procedure were written by judges and judicial conferences—not legislators. Politicians don't get the time of day from the U.S. Supreme Court, because the judiciary are a separate branch of government with an independent, co-equal public duty. Since Chief Justice John Marshall's decision in Marbury v Madison, two hundred years ago, courts have had the power to void unconstitutional legislation. The legislative process is distinct from the judicial, only insofar as laissez faire judges allow it to proceed at all. We don't intend to repeat the tragedy of the U.S. democracy. American jurisprudence went haywire during the Civil War and never recovered, which is why I detest the law school theory of "positive law" (i.e., the legislated will of the sovereign state). Common law is emphatically not legislation. It is the settled understanding of mankind, which amounts to two propositions, reminiscent of my childhood. I was the eldest of five boys. I can still hear my mother shouting at us from the kitchen window: "Don't kill each other, and argue quietly!" CONCLUDING REMARKS I am probably unsuited to a judgeship. I have no patience for anyone who says that the law is an ass, or that balloon drops at a political convention are more important than reason. I don't want to hear a single syllable about the "practical necessity" of a democratic, sovereign state—without or without international New World Order treaties and junkets. To hell with corporate sovereigns. All the legislative cantons (virtual or otherwise) mean nothing in terms of due process, when a man's life and liberty hang in the balance. This is indeed the mission of a judiciary, however constituted—to assess the guilt or innocence of an accused; to weigh the conflicting claims of plaintiffs and defendants, petitioners and respondents. The court is a powerful institution in historic terms, able to compel the production of evidence and to impose or release anyone from punishment. It can restrain action, penalize actors, take property, and imprison those who refuse to answer questions. Judges routinely pierce the veil of corporate and official anonymity, holding natural persons—not fictitious trademarks—responsible for civil and criminal wrongs. The concept of "wrong" is fundamental to the administration of justice. It's not an ethical term, but a logical and judicial one, implied by due process. No man should judge his own cause (True or false, right or wrong?) If false, courts would not exist; you'd have a right to conduct your affairs any way you please. If it's true, that no man should judge his own cause, then judicial procedures must be objective and fair. Anything less would be wrong as a matter of legal principle. Whether you conceive laissez faire justice as a temple, high on a mountaintop, where robed jurists parade ceremonially every autumn—or a single barefoot lawyer, attempting to reason with two nitwits who hate each other—the goal of adjudication is to separate passion from the factual evidence and prejudice from the public good. I don't think it matters how big a jurisdiction is. What matters is that law should exist, wherever people want to live in freedom for longer than twenty minutes. For law is the thin blue line that shelters peaceful private life, punishes evil, and strives remorselessly to defend the innocent. With many innocent to serve, and many nitwits to educate, it seems certain that laissez faire lawyers will be among the first Internet professionals to actually earn a living in cyberspace. No doubt we will be scorned and ridiculed. But our traditional role will be welcome again, when it comes time to declare political independence and human equality as a matter of principle, as Jefferson and Lincoln, Franklin and Madison did with quill and ink. It is to them we owe our knowledge of right and wrong, our hope of justice and pleasant intercourse. It is to them we owe our digital thanks :-) As a postscript, I append a quotation from Atlas Shrugged. Mr. Mowen of Amalgamated Switch & Signal is complaining about the exodus of taxpayers and productive citizens from Connecticut—highly predictive of our future under laissez faire law and the cyberspace it will govern. Be prepared for many, many "compassionate conservatives" to echo Mowen's disdain of a free society: I don't see it. It's a backward, primitive, unenlightened place. They don't even have a modern government. It's the worst government in any state. The laziest. It does nothing—outside of keeping law courts and a police department. NOTES 1. "Cyberspace, Sovereignty, Jurisdiction and Modernism" (June 1998) by Joel P. Trachtman, associate professor of international law, Fletcher School of Law and Diplomacy. Written for the Indiana University School of Law "Symposium on the Internet and the Sovereign State: The Role and Impact of Cyberspace on National and Global Governance." 2. See http://www.pgpi.com 3. "Options for the Body Politic" (Sept 1995) by Roderick T. Long, assistant professor of philosophy, University of North Carolina at Chapel Hill. ------------------------------------------------------------------------ Wolf DeVoon is the author of "Government is a Quack Faith Healer" and many other articles. He may be reached at [EMAIL PROTECTED] -30- from The Laissez Faire City Times, Vol 3, No 43, November 8, 1999 ----- Published by Laissez Faire City Netcasting Group, Inc. Copyright 1998 - Trademark Registered with LFC Public Registrar All Rights Reserved ----- Aloha, He'Ping, Om, Shalom, Salaam. 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