The Individualist Manifesto jury system
Trevor Watkins 30/7/24
The Individualist Manifesto suggests a jury system for resolving disputes and grey areas within a community. This is probably the most contentious of the 4 components in the manifesto, so I am writing this article to help explain and clarify this issue.
Job 5:7 says that “Man is born to trouble as surely as the sparks fly upward”. Things fall apart. Conflicts always arise. In the past conflicts were resolved by the king, or through warfare. Nowadays they are resolved by courts and judges appointed by politicians in government. This critical function has been moved beyond the control of the individuals involved in the dispute. When other avenues such as compensation and apology have failed, I suggest that conflicts between individuals should be judged by other individuals using the tried and trusted jury system.
How will it work?One individual or group declares to another individual or group that a dispute exists.
Being good individualists, the disputants mutually agree to settle the dispute using the jury system proposed in the Individualist Manifesto, to minimise conflict and costs.
Jury duty is voluntary. Commonly members of the jury will be selected by the disputants.
The size and composition of the jury must be consented to by both parties to the dispute. If agreement on a jury cannot be reached in a reasonable time (7 days, for example), both sides select six jurors, and a foreman with a casting vote is chosen by random lottery of the jury members.
Because it is a matter of chance as to which side obtains the casting vote on the jury, it will be important for both sides to select jurors committed to acting on the merits of the case, rather than jurors blindly supporting the side which appointed them.
The members of the jury alone determine the rules for the hearing.
They may be guided by well-established rules of legal procedure and evidence, but they are not bound by it.
They may appoint a judge or judges to guide them.
They may invite or allow lawyers to represent the parties.
They may allow witnesses, cross-examine them, conduct investigations, seek the opinion of experts, or do whatever is required to reach a decision.
Jury decisions are made by a simple majority vote.
They will be funded equally by the parties to the dispute during the hearing, but may finally decide on any allocation of costs they see fit.
Any jury decision may be appealed to another jury until one side or the other has 3 identical decisions in its favour. Thereafter the jury decision becomes binding upon both parties to the dispute, and is added to the set of legal precedents for that community which defines their common law.
I believe that a class of professional, impartial jurors will arise whose primary asset will be their reputation for fair decisions. This class of jurors will provide the pool from which most parties to a dispute will make their jury selection.
Juries will be local and decentralised. Bad decisions will have immediate consequences visible to the community
Because they are local, a jury will reflect the standards and customs of the community in which it is based.
Conflict and costs will be reduced.
Access to justice will not be denied because of wealth or position.
Endless expensive delays will be reduced
By participating directly in the justice system, citizens exercise their freedoms and duties in a tangible manner.
There's the risk of local biases influencing decisions, which could undermine the libertarian ideal of impartial and fair justice. Each side selects its own jurors, which should minimise this.
The potential for injustice always exists even in the best systems, as the New York judiciary currently illustrates.
The Individualst Manifesto and the HarmConsentRule constitute the legal framework within which the jury operates. This may not be acceptable to all.
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From, Martin Vlietstra
First of all, who am I. I worked with Trevor in the 1970's and in 1978 relocated to the United Kingdom. Trevor and I have kept in touch since then.
The United Kingdom has an arbitration system in place. Arbiters are appointed jointly by parties in dispute and are usually experts in the field. For example, if the dispute involves an IT system, the President of the British Computer Society (BCS) is empowered to appoint arbiters who are accredited by the BCS and who will establish the facts - "Did the software supplied comply with what was contracted?" A BCS-appointed arbiter will seldom award damages, though once the facts have been clarified, any damages will quickly be determined by reference to Common Law.
In my view, Stephen rightly identifies that any dispute settlement system should work first and foremost in the free market situation. In any market, there are a number of parties - the buyer and the seller (who do not necessarily know each other) and most importantly of all the regulator (who identifies what can be bought and sold in the market and how the product is packaged and how it is delivered and how it is paid for). Having a regulator in a free market improves transparency - if I am negotiating with you, does my price include government taxes or not? When is payment required? How is the product delivered? For the record, in the 1970's I sold peaches on the Johannesburg fruit and vegetable market (via an agent) and more recently I have worked on IT systems in both the London and Frankfurt financial industries.
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Regarding the "need" of a regulator in the free market, the moment a market is subjected to any form of state applied regulation it is no longer free.
In a genuine free market, if there is a demand for parties that will ascertain " ... what can be bought and sold in the market and how the product is packaged and how it is delivered and how it is paid for” then service providers in this field will naturally arise to meet the demand without any need for a state imposed regulator.
Whether these parties are called “regulators” or whatever, their name will arise and shape itself in the free market to fit the demand … without any form of government intervention.
Paradoxically many pro “free market” economists stop short of being pro free market and fall back on the government to regulate the market.
Just a little bit here and a little bit there of intervention … but the moment that happens there will be immediately someone who benefits thanks to the intervention and others who do not.
The initial genuine free market system then starts degrading into a regulated market system that will increasingly favour some over many others.
Relating back to the jury discourse, arbitration is such a service that can and does arise naturally, contracting parties can agree on how disputes will be resolved.
However, any mutually trusted party that is willing to perform arbitration would be able to do so in a genuine free market. There may be formal professionals selling their arbitration services or informal mutually trusted ones ... the free market will provide.
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" It is not the water in the fields that brings true development, rather, it is water in the eyes, or compassion for fellow beings, that brings about real development. "
—Anna Hazare
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I disagree.
State regulation can often simplify things without compromising the fundamental tenant of a free market – namely that price is determined by supply and demand only. Consider for example a government regulation that all weights and measures used in the market shall comply with certain regulations. If these regulations are sufficiently wide, then they will aid transparency – it the buyer and seller agree a price per unit weight, then provided that the scales meet the government regulations, there is no need for the parties to verify the scales as part of the deal – the government has already done that. If I am buying eggs and the government has decreed what is meant by “large”, “medium” or “small” eggs, again both buyer and seller have an agreed yardstick against which they can base their agreement.
Again, the regulator might specify how bargains are to be paid for. If it is cash, do I hand my cash over to the seller (which means that he has the added problem of carrying a large amount of cash around with him), or does he give me a chit, I settle at the cash desk and he then hands the product over to me.
Finally, the regulator should provide a means of settling disputes. This is one of the reasons why he might specify what units of weight and measure should be used – he can verify the scales which were used were just scales. In passing, may I mention the state of affairs in France in 1789 – each nobleman, each businessman, each trader had the right to nominate the units of measure that he was using – the king’s measures only applied to debts (taxes) owed to the king. There were over half a million different weights and measures. One of the consequences was that when the Revolution broke out on 14 July 1789, one of the areas of concern that was addressed was that of weights and measures – the result was the metric system. If I buy a kilogram of apples today, I will get the same weight as if I bought a kilogram in 1799 (when the first prototype kilogram was put to use).
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From, Martin Vlietstra
First of all, who am I. I worked with Trevor in the 1970's and in 1978 relocated to the United Kingdom. Trevor and I have kept in touch since then.
The United Kingdom has an arbitration system in place. Arbiters are appointed jointly by parties in dispute and are usually experts in the field. For example, if the dispute involves an IT system, the President of the British Computer Society (BCS) is empowered to appoint arbiters who are accredited by the BCS and who will establish the facts - "Did the software supplied comply with what was contracted?" A BCS-appointed arbiter will seldom award damages, though once the facts have been clarified, any damages will quickly be determined by reference to Common Law.
In my view, Stephen rightly identifies that any dispute settlement system should work first and foremost in the free market situation. In any market, there are a number of parties - the buyer and the seller (who do not necessarily know each other) and most importantly of all the regulator (who identifies what can be bought and sold in the market and how the product is packaged and how it is delivered and how it is paid for). Having a regulator in a free market improves transparency - if I am negotiating with you, does my price include government taxes or not? When is payment required? How is the product delivered?
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Trevor seems to be suggesting one way in which the market may provide justice / arbitration... and maybe the market would do it that way, but maybe it would not. Only trying will tell.
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Hi Trevor, Thank you for your greetings.
You might recall that when we were working together in the 1970's, I was doing a part-time BCom at UNISA which I never completed. One of the modules that I did pass was Commercial Law I. In that course I learnt that one of the important aspects of any contract is that there should be a built-in mechanism to resolve disputes. I also learned that certain types of contract were always void (ie the courts would never enforce them - such contracts generally involved committing illegal activities), some contracts were voidable (especially those contracted by a minor which could be unilaterally revoked) while others would be enforced by the law should one of the parties request the courts to do so.
Contract Law also provides default solutions for many situations that might not be built into a contract. As an example, if A accepts an offer from B by post and after he posts the acceptance, but before B receives the acceptance, A drops down dead, can B demand that A's heirs honour the contract or not (and vice-versa)? In many decent contracts, such a situation is dealt with by the simple clause "This contract is to be interpreted under English Law" and legal precedents will be consulted.
Under English Law, many "default" situations can be over-ridden by the contract, but the courts will often take into consideration the negotiating power of the parties concerned when asked to over-ride a clause. English Law will usually uphold any decision reached by a reasonable arbitration system - a classic example being the concept of Sharia mortgages. As you might be aware, Moslems are not permitted to charge interest on loans. If a Sharia-compliant bank makes a loan so that a borrower can buy a house, the bank becomes a joint owner of the house, and the borrower buys rents the part of the house that the bank owns and slowly buys fractions of the house from the bank. If the borrower dies and the house is sold, the bank then takes a portion of the proceeds of the sale equal to the fraction that they still own. Not only would such a process be upheld by the English courts, but the British tax office has modified its tax laws so that transfer tax on such loans is only paid once in line with non-Sharia loans.
I trust that this will help put into perspective what you are saying about jury systems for resolving disputes. In England, the courts would probably uphold a decision made by such a jury provided that it can be shown that if one party was much stronger than the other, that the process was equitable.
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Hi Stephen,
I have had two instances where I have had to go to law – both connected with people owning me money and refusing to pay. In the first (in 1994), the client made me a scapegoat for a project that had gone wrong and the agency concerned refused to pay me fees in lieu of notice. They were obviously giving me the run-around for about three months until I instituted a claim through the (English) small claims court. When the summons landed on their desk, they paid me within 24 hours. The second instance (in 2009) a client who was in financial difficulties owed me a sum of money in excess of the small claims court limit. I suspected that the tax office would be declaring him bankrupt (in which case they take precedence over all other claimants), so I engaged a solicitor (lawyer) to ensure that I got my money before the tax office moved in.
I have had a third instance when I had an interaction with the law – I was on the jury for a case of attempted rape. In the event I ended up as foreman.
I have of course engaged a solicitor when buying and selling a house (the norm in the UK), to assist in drawing up my will and when dealing with my late in-laws affairs (I was the executor in both their estates and their solicitor held their wills).
Martin
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I was not aware of anything like that when I was paying off my house.
However, under English Law, a debt is automatically cancelled if the lender does nothing about it for 7 years. A number of years ago, a neighbour wanted to buy a small piece of land from me. I decided that the hassle of registering the land transfer was too much, so I entered into an agreement whereby he rented the land from me for 12 years at a rate of £1 per annum (often known as a "peppercorn rent). In this way, as long as I collected the £1 annually and gave him a receipt, there was never any dispute as to the ownership of the land.
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If the lawyers are doing their job properly, then there should not be any problems. I have never bought or sold property in South Africa, but having spoken to my brother , I know that there is a big difference between property transfers in the UK compared to RSA. In the UK, the idea is that if I am buying a new property and selling an old property, both transactions take place at the same time.
At the moment that the agreement is “completed” (the official jargon in the UK), money that I owe on the loan for my old house will be repaid (using money from the buyer) and any additional or alternative loan that I might need for my new house will be made available to my solicitor. Before this happens, the buyer's solicitor checks the official records and make sure that nobody has a loan secured against the property that his client is buying, or if they do, that the loan will be discharged when the property transfer takes place. He also checks on behalf of his client that the buyer has available funds to pay for the property. I never actually see any of the money that is changing hands until a few days after "the dust has settled", when any outstanding debts are settled up. It is not uncommon for there to be six or even more people linked up in a chain, all discharging their obligations simultaneously and part of the solicitor’s task is to ensure that everybody “exchanges contracts” (ie becomes committed to their part of the exchange) at the same time and that they are able to fulfil their part of the bargain. “Rents of occupation” which I believe are used in South Africa are not used in the UK.
There are so many small points where I could be tripped up such as the seller has a second mortgage that I did not know about or the buyer not having enough money to buy my old property which is why I use a solicitor (who has a professional indemnity insurance).
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What else did the lawyer do for you? Did he ensure that all the deeds were in order and that no-one would take the house off you because the previous owner had not paid off his loan? Did you even know whether he had a second loan secured against the house? If a deposit changed hand when the contract was signed who would look after the deposit? If the deal fell through due to a problem on the part of the seller (for example the house burning down), would the buyer get his deposit back? These are all things that the lawyer should look after for you.
A few years ago, my wife and I put our house up for sale but failed to find a buyer. Part of the contract with the agency stated that if we exchanged contract with anybody who the agency had shown around within two years of taking the house off the market, the agency was due a commission. In my view, two years was ridiculous, but I said nothing knowing that the courts would not enforce such a clause. In the event, they did not even send me a list of the viewers they had shown around.
Coming back to Trevor’s suggestion of private contracts, I would not like to draw up a contract which takes into account all of these eventualities. The CNA template (WH Smith template in the UK) still needs to have the various appendices defining exactly which property was changing hands and cataloguing any liens against that property. It might also need special clauses specific to that property.
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