The Free Origins of Law
“Customary law,” the general pattern of behavior in human societies, has been in existence for thousands of years. The assumptions of honesty and making good on promises have been a natural part of voluntary exchange since the first written records. In fact, the most common manuscripts of archaeology and the ancient world consist of legal transactions and records of ownership. Legal systems at various periods of history built upon this “invisible code,” such as the Code of Hummarabi, Mosaic Law, the Five Punishments of China, and others. Despite substantial differences, all legal systems generally contain the same basic goals: protect property and deal with injustice. Society can’t exist without such mechanisms.
Unfortunately, the development of political authority emerged in lock-step with the development of law as the default mechanism for fulfilling this role – despite the regular success of privately-owned security and court systems. Eventually, through various periods of legitimization (e.g., through religion – “divine right of kings,” through perceived economic benefit, etc.), it became an unquestionable dogma that law and order could not even exist without the state. This was an ironic conclusion, indeed, as law and order existed (both logically and chronologically) prior to any political system in the first place.
Nevertheless, it became clear in the Western world that the state (regardless of form) should still be limited because of the risks involved. Any entity with the right to initiate force against another was bound to abuse this right for personal gain. As a whole, unrestrained political institutions would naturally default to the slaveries of ancient chieftains (e.g., pharoahs), and therefore make matters worse instead of better for the people. The Magna Carta (1215 CE) became an icon of this conscious effort to limit political power, though this effort has ancient roots in the Israeli tradition of limiting royal power (Deut. 17).
The Rise and Fall of the American Experiment
Restraints on political power increased to an all-time high with the American experiment – but it too, inevitably declined.
The general legal system of the Western world (i.e., Europe, U.S., and Canada) originated from British “common law” as far back as the 1300s, roughly after the (failed) efforts at limiting the government by the Magna Carta. This legal system culminated in the work of Sir William Blackstone (1723-1780), author of the monumental Commentaries on the Laws of England. This work largely functioned as the platform for the American colonies. During this period, individuals in both America and Britain experienced some of the greatest freedom and economic prosperity in human history. (The freedoms of Americans were famously recounted by de Tocqueville). Businesses were relatively free, individuals “unregulated,” and the environment protected against new problems from industrialism (since pollution was rightly considered a violation of property rights). Private police and private courts were common and fully-functional alongside the “official” channels of legal bodies (e.g., Parliament and Congress).
However, a catastrophic shift occurred in the late 1800s when Parliament/Federal government began to encroach on the authority of the courts, and ultimately eradicate the possibility of private legal and court systems. (This shift is largely documented in Horwitz’s two-volume The Transformation of American Law (Oxford), and is helpfully supplemented by Murray Rothbard’s four-volume narrative, Conceived in Liberty (1975).) Through a series of legislation and court decisions, the relative sovereignty of the individual was compromised at the hand of new government agencies and regulations. Crony-capitalism took hold, as large businesses began to systematically pay-off government to make laws in their favor. By the time FDR implemented the “New Deal,” the world had changed considerably under “Progressivism” and other epic projections of the “Enlightenment” project.
The 20th century witnessed perhaps the largest expansion of government power in the West since the Roman Republic’s decline into the Roman Empire.
The Current Scene
Today, a hundred years later in the 21st century, the lack of freedom in the “free” Western world has become notorious. The U.S. has fallen to (at most) 17th in national freedom. It is illegal to build a house, sell hotdogs on one’s own lawn, drive a car, and rent a bedroom to guests without a permit. There exists more pages of federal criminal law and regulation than is possible for any human being to read. The forced strip-searches, police-brutalities, communications surveillance, and unwarranted bombing of innocent women and children (“collateral damage”) around the globe serve as a public spectacle, remarkably reminiscent of humanity’s darkest hours in the socialist experiments of the 20th century.
Combined with central-banks (a new global elite class that owns governments) and a brave new world of drone swarms, exhaustive global surveillance, and ever-increasing government monopolies of weapons, there is virtually no limit to the amount of property-rights infringement that can occur. Replacing the vacuum created from atheistic Modernism, the state actively pursues the closest approximations possible to divine omniscience, omnipresence, and omnipotence.
Cryptocurrency as a Model
The solution to centralizations of power is always the diffusion and decentralization of power. But, how is that achieved? Through many ways. The contemporary experiment of distributed-ledger cryptocurrency serves as a vivid example.
Distributed ledger and blockchain technologies operate on decentralized instead of centralized networks. There is no hierarchy of authority – such as a central bank, king, or otherwise that makes violence-backed decrees. Peer-to-peer transactions can happen efficiently, safely, and effectively without any intermediaries. The laws and regulations of the network are determined by the contributors themselves.
Thus, cryptocurrency exists on a decentralized network of voluntary participants who decide the protocol for the network. If no one wants to be part of the project, they don’t have to be. Everyone who is part of the network agrees to be bound under its limitations and conditions by mutual consent. Those who dissent can create their own network entirely, or secede with the main network and branch off in a “hard-fork.”
The Creative Common Law Project
Creative Common Law works in generally the same fashion. It is comprised of a network of participants (“members”) that agree to be bound by its rules (CCL). Conflicts are resolved by CCL Adjudicators which give orders to CCL Enforcers (also rights-protection agencies). Any member of the network is free to participate in these roles or not. But all members voluntarily agree to CCL.
For more on how CCL works, see “The Vision.”