Designing A New Nation – Part 7 – Legal System

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-By Caleb Jones

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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