Тег: Contract

Explain the difference between common law and civil law jurisdictions?

anonymous question

This is roughly like asking what the difference is between equality and a jury trial. The first is a principle. The second is an institution. Between them is a cause-and-effect relationship.

NAP is the non-aggression principle, stating that no one has the right to use aggressive violence with impunity. Contractual jurisdictions are an institution for conflict resolution based on adherence to the NAP.

The point of contractual jurisdictions is that one subject enters into an agreement with another subject stating that they are subject to their jurisdiction. The agreement also specifies what limitations this jurisdiction has.
The existence of a contract between the court and the subject is a mandatory condition that ensures compliance with the NAP, since under the contract, the subject agrees to execute the court’s decision or agrees that they will be forced to execute it. Without such prior consent, an attempt to force a convicted person to execute a court decision becomes a violation of the non-aggression principle.

The most elementary example of a contractual jurisdiction is an arbitration court. Two parties to a conflict enter into a contract with a court to resolve one specific conflict, pledging to execute the court’s decision regardless of what it may be. An arbitration court provides the highest possible degree of fairness in conflict resolution, but is poorly suited for cases of extreme bitterness between parties, as well as situations where the parties are barely acquainted and simply cannot find a single person whom both parties trust.

In cases where a pure arbitration court is difficult, intermediaries begin to step in. I entrust the settlement of my conflict to someone I have chosen as my representative, and after some effort, they provide me with a result: here the opponent is ready to make such-and-such a concession, here it makes sense for me to make a concession, I can also count on such-and-such compensation, but I must pay such-and-such for the mediation. I agree to this, and a settlement occurs. Or I disagree and negotiations continue.

The more stable a society is, the more likely it is that such mediation contracts will become more long-term and the results of their activity more predictable. People generally love to generalize and average things out to save effort and not worry about minor details.
Thus arises what is usually meant by the words “contractual jurisdictions,” although this is only a specific case of them: a system in which practically everyone is bound by a permanent contract with one jurisdiction or another, and it is that jurisdiction that handles all their conflicts, whether they bring claims against others or others bring claims against them. A contractual jurisdiction can be freely changed, but this will likely happen no more often than people change mobile operators today.

To a certain approximation, such a judicial system existed in Iceland during the Age of Sagas, that is, in the period of the absence of a state, when jurisdiction, along with priestly functions, was carried out by the so-called godi, and a landowner could enter one godord or another or move to a different one.

For the geeks, I can even provide a link with a description of this legal system.

Modern Icelandic godi are more like role-playing games, but imitation institutions sometimes wake up

Among our libertarians, there is much talk and many jokes about contract slavery. However, how is this possible from the point of view of libertarianism? After all, I cannot transfer my will, body, and mind to anyone—they belong only to me, and regardless of my desire, I will not be able to conclude a slave contract. Or can I?

anonymous question

I dislike lapsing into academicism, which is why I try to attract experts who aren’t prone to it. Regarding contract slavery, I recommend reading LJ-user Artyom Zheleznov under the tags slavery, slave ownership, and slave trade.

The guy positions himself not only as a theorist but also as a practitioner in this industry, which gives his delivery an additional freshness.

I’ll provide a mix of his points and my own thoughts.

Let’s define a slave as a subject coerced into a particular activity, and a slave owner as the person or organization that is the ultimate beneficiary of the slave’s forced activity. I should note that coercion to labor specifically is not the defining characteristic of slavery—it is enough, for example, that a slave is forced to live where specified, eat what is given, and follow a routine imposed by the slave owner. Similarly, whether the slave owner derives profit from the slave is not fundamental. A slave can be loss-making and yet still be in slavery.

In the modern world, private slave ownership seems to be permitted only in Morocco, while state slavery, conversely, is legalized everywhere. A person becomes a slave by entering prison, a conscript army, or an orphanage. Whether an Australian citizen, obliged to come and vote in elections, is considered a slave is a debatable question. I would rather define this as a labor obligation that can be bought off.

What is the difference between slavery and wage labor? A slave, by default, has no right to negotiate the amount of their remuneration with the slave owner, nor do they have the right to unilaterally terminate the relationship.

Now, let’s move on to contract slavery. This is a type of slavery that arises as a result of concluding a contract, that is, voluntarily. Thus, at the moment the deal is struck, each party believes they are gaining more than they are losing.

For example, Irish people fleeing famine to the United States in the 19th century could not afford the trip, so they sold themselves into slavery. In the States, they were bought by some private individual, and under the contract, the slaves were obliged to work for them for an agreed term. You will agree that such a model was beneficial for all participants of the deal. The emigrant bought their life and a ticket at the cost of a temporary limitation of freedom. The captain received money only if he delivered the indentured slave to the other shore. The slave owner received cheap labor, which would pay off only if the slave remained capable of working for the entire term specified in the contract.

I will note that voluntary slavery does not mean the sale of the body, mind, and will, even if the contract is lifelong rather than term-limited; this is precisely why it does not contradict libertarian principles. Contract slavery simply means coercion to perform activities at the request of the slave owner, in accordance with the contract. Retaining freedom of will, a slave can always deem further existence in slavery unacceptable and begin to sabotage the master’s instructions and take actions toward their own liberation. If they can convince the master to enter into a new deal—where, on one hand, the condition is liberation, and on the other, some benefit unattainable under the current slave contract—then obtaining freedom is entirely realistic.

The most innocent variety of slavery is erotic games between a dominant and a submissive. By contract, the submissive may be coerced by the dominant into anything, but the contract can be terminated or suspended at the will of either party.

The most disgusting variety of slavery is, of course, state slavery. Slaves come to the state for free; the state does not care about profit and is not interested in the preservation of the slaves—and therefore there is no cruelty that it could not easily exhibit toward them while remaining completely unpunished.