Against DWIM Meta-Law

Smart capable personal assistants can be very useful. You give them vague and inconsistent instructions, and they “do what I mean” (DWIM), fixing your mistakes. If you empower them to control your interactions, you need less fear mistakes messing up your interactions.

But one thing a DWIM personal assistant can’t help you so much with is your choice of assistants. If assistants were empowered to use DWIM on your choice to fire them, they might tend to decide you didn’t really mean to fire them. So if you are to have an effective choice of assistants, and thus effective competition among potential assistants, then those same assistants can’t protect you much from possible mistakes in your meta-choices regarding assistants. They can protect you from other choices, but not that choice.

The same applies to letting people choose what city or nation to live in. When people live in a nation then that national government can use regulation to protect them from making many mistakes. For example, it can limit their legally available options of products, services, and contracts. But if people are to have an effective choice to change governments by changing regions, then such governments can’t use regulation much to protect people from mistakes regarding region choice. After all, a government authorized to declare your plan to move away from it to be a mistake can stop you from rejecting it.

Similarly we can elect politicians who pass laws to protect us from many mistakes. But if we are to have an effective choice of politicians to represent us, then they can’t protect us much from bad choices of politicians to represent us. We can’t let our current elected leaders much regulate who we can elect to replace them, if we are to be able to actually replace them.

I’ve long been intrigued by the idea of private law, wherein people can stay in the same place but contract with different legal systems, which then set the rules regarding their legal interactions with others. Such rules might in effect change the laws of tort, crime, marriage, etc. that people live under. And so such competition between private laws might push the law to evolve toward more efficient laws.

One of the things that legal systems tend to do is to protect people from mistakes. For example, contract law won’t enforce contracts it sees as mistakes, and it fills in contract holes it sees resulting from laziness. Law is often DWIM law. Which can be great when you trust your law to choose well. But if one is to have an effective choice of private law, and real competition for that role, then one’s current law shouldn’t be able to overrule one’s choice of a new law. Instead, one’s choice of a private legal system, like one’s choice of nation, needs to be a simple clear choice where one is not much protected from mistakes.

Today we don’t in fact have such private law, because our standard legal system won’t enforce contracts we sign that declare our intent to use different legal systems. To achieve private law, we’d need to change this key feature of our standard legal system.

Your choice to change nations, either for temporary travel or for permanent moves, can be a big mistake. It might result from temporary mood fluctuations, or from misunderstandings about the old nation or the new. Nevertheless we have little regulation of such choices. Instead individuals are mostly fully exposes to their possible mistakes. For example, while Europe is heavily regulated in general, European teens today can decide to go join ISIS, even when many others greatly regret such choices. We disapprove of nations that prevent people from leaving because that cuts competition between nations to serve people.

Similarly, if we want completion between legal systems without forcing people to move, we’ll have to change our law to accept our not protecting people from bad choices of legal systems. There will have to be a simple clear act by which one chooses a law, a choice not much subject to legal review and reversal. We’d want to encourage people to take such choices seriously, but then to accept the choices they make. Freedom of choice requires a freedom to make mistakes. For big choices, those can be big mistakes.

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  • bluebuckeye04

    Is this a brief for courts to stop overriding mandatory arbitration agreements? If so, it’s not very persuasive. Such agreements only tend to arise in situations where an entity with collective bargaining power (i.e., a corporation) faces a host of individual consumers or workers, who are each presented with a “private law” agreement on a take-it-or-leave-it basis.

    Any consumer “choice” in such a situation is illusory, and the consumers are in fact much better off with a DWIM judge or court overriding their individual agreements with the corporate entity.

    • Arbitration agreements are much smaller scope choices than the private law choices envisioned here. Yet if we aren’t allowed to pick the former, we may well also not be allowed to pick the later.

      • bluebuckeye04

        Would you support a prophylactic rule to ensure that such an opt-out choice is truly free? I’m envisioning something like a requirement that both immediate parties to the agreement have actual negotiating authority. E.g., a court would need to find that the rank-and-file Comcast guy has the real (not solely theoretical) ability to waive the company’s arbitration agreement in order to close a marginal sale.

        Or is it your view that the existing legal system shouldn’t have the power to review beyond the “four corners” of a purported private law agreement? – on the theory that it will be impermissibly biased in favor of its own authority?
        The two options seem to me to be different, and potentially conflicting, flavors of “freedom”.

      • I despair of making sense of this “actual negotiating authority” requirement.

      • I think he’s just suggesting that the rule not be applied to contracts of adhesion.

      • Ken Arromdee

        In that article, Robin brings up a contract with Haliburton where she was raped and the contract required that she settle it with arbitration. I thinki that counts as a contract of adhesion, although Robin was vague about whether he thinks that contract should be considered legal in his ideal world.

  • Private law seems to be in conflict with the idea of common law, which in purest form is predicated on (slowly changing) social norms being the ultimate driver of law. By this I mean consensus on common law is a social phenomena which would falter under multiple potentially conflicting private systems. So as a discovery mechanism this seems a great idea, and gets us out of the narrow limits of DWIM law. Great! But I can’t see it working well if common law is the underlying basis. Humans innate tribal tendencies seem difficult to reconcile with having that deep an out into norms/conventions of other tribes. Society could splinter. Maybe at a meta-level if the private law idea were the norm itself, then I guess it could work. Which is what you seem to be saying.

    Not sure if you’ve addressed or have a link showing how private law works for/with/against common law. If so that would be interesting and helpful to see. Thanks.

    • The idea is to discover what laws individuals are willing to choose and pay for. That just isn’t the same as discovering pre-existing shared social norms. I’m not clear why I would want the later over the former.

  • Frederic Bush

    I wouldn’t want to have to read 30 pages of software update boilerplate to see if I was selling myself into slavery under Sealand law.

    • Hanson deals with this problem in his “private law” link.

  • Meta-laws limiting choice of law have little to do with preventing mistakes. Casting it in this light keeps you from confronting the real reasons. One is limiting the effects of unequal bargaining power. Another is the inefficiency (and potential inaccuracy) involved in judges having to learn different sets of laws.

  • Lord

    Religious denominations have different laws and we can decide which ones to belong to and follow and which to leave but that doesn’t require civil law to accept people can’t leave once entered. While there is a range for such law which generally falls under communes or less kindly, cults, it has little use when it comes to dealing between people of different communities, and even less when most interactions are between those of different communities. No one else is going to be interested in dealing with yours unless it is a large, powerful, or close knit one they want to deal with or join. These are often incompatible with democracy.which does require a common basis.

    • Lord

      Which leads me to suspect your interest is not your own law, which is as common as any club or organization, but the means of forcing others not under your law to deal with you under your law, the privilege of the powerful, but why would anyone want to unless you were indeed powerful. All you must do is become powerful. No shortcuts for that though.

  • David Condon

    Aren’t international companies allowed to specify in the contract which country will arbitrate any disputes? The same if contracting with someone from another country?

  • Frederic Bush

    Historically religious groups are the power users of private law. People often decide that they wish to leave a religious group. But if the religious group has them sign some kind of bonkers contract when they join the group, and our government will enforce that contract, that might be quite difficult. And people would be perfectly willing to make some sort of costly public declaration upon joining a new church. Should that be fine?

    • But if the religious group has them sign some kind of bonkers contract when they join the group, and our government will enforce that contract, that might be quite difficult.

      Would the government enforce a contract for indentured servitude if the individuals chose to opt out of the 13th Amendment?

      But is Robin necessarily committed to allowing people to opt out of any law? Is the only reason for outlawing indentured servitude to protect people from their own mistakes? No – slavery was abolished in part because it was a competitive threat to free labor.

  • JW Ogden

    I think this related. I was thinking the other day that to solve the problem that sales taxes put in-state businesses at a disadvantage, the states could offer a fraud protection service to all people who make their out of state purchases using states payment system that collects the sales tax. It would be in keeping with Government helping citizens avoiding mistakes. It is arguably part of what you get when you buy local in the states are of regulation.

  • free_agent

    It’s hard to make private law work because for it to apply, all the people involved have to be subject to the same private law.

    Traditionally, this could be applied to family law, with family law differing based on one’s religion or ethnicity. But that only works because each religion or ethnicity was endogamous.

    The one modern application I know of is the arbitration clauses in contracts. But in most cases, those are adhesion contracts, and the clause is optimized by one side to minimize its liability. That’s not a good example to argue that private law should be used more.

  • Michael v

    Can we formulate that concept without using the idea of ‘we’? What’s an individualist to do?

    • Lord

      Individuals don’t need law which is almost entirely interpersonal.

  • Daublin

    Private law seems to happen in practice, and indeed maybe it should happen more frequently.

    Stop a moment and consider. How many times in our lives have we each consulted a third-party referee to decide about some conflict we’re having with someone? Now how many of those third-party referees were officers of the judicial system?

    Arbitration has already been mentioned.

    I don’t know if it’s technical “arbitration”, but note that many of the details of divorce agreements are often brokered through a third party.

    Two other broad examples are the bylaws of a club, and the official rules of a sport. In both cases, even if you go to court, the court is going to defer heavily to the private laws you implicitly agreed on by becoming a member of the club or a participant in the sport.

  • free_agent

    To a degree any employer or educational institution has a sort of private law. Generally the stiffest punishment they can hand out is banishment from the community, but they’ve got wide latitude in setting the rules. One notable example has been the current Dept. of Education pressuring private colleges to adopt a lower standard of proof for determination of sex crimes.

  • Adam Long

    In addition to arbitration agreements (already mentioned) another example (albeit rudimentary) of private law in practice are covenants in homeowners’ associations. But Robin, I take your point that these are nowhere near the scope of what you have in mind when you say “private law”