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RE: Where and Why Blockchains and Law Intersect by personz

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Viewing a response to: @modprobe/where-and-why-blockchains-and-law-intersect

· @personz · (edited)
$1.75
Constitutions are not law, rather they define the fundamental principles (in the moral / ethical sense), conditions which _constitute_ a community, and how members of that community relate to each other and their rights and commitments. It also specifies how laws are to be made but itself contains no laws. In general they are hard to change, whereas laws are much easier to change. This is an issue I saw also with @dantheman 's recent constitution, which I presume this article is at least partially in response to.

The only way for it to be interpreted as law is if it is not a constitution and is actually something like "ground rules". Again, the constitution is intended to lay out the principles which then constrain which rules can be made.

Your redefinition of law is very strange I have to say. I know you qualified your artistic license many times, but still.

In particular this assertion

> So the origin of all Law is the individual, who defines his own. 

For law to have any meaning at all it is between people in a community. The origin of law is social. That pretty much sets me up against the entirety of your system here.

I'll also say that I find the reliance on proof from first principles to be confounding. The sandbox world you have imagined has no practical application possible, except perhaps allowing someone to sit on a very high horse and declare their own actions "legal" because Law as they recognize it is derived completely from themselves. It's nonsense.

---

You have a logical miscalculation here:

> Furthermore, the right of all individuals to engage in contracts of private association, which is what such a constitution is, is recognized under international law, thus compelling all nations which claim to follow international law to recognize the legitimacy of this private association. Furthermore, if the state argues that it's laws compel some change in blockchain state (i.e. a legally mandated hard-fork), it will be unable to enforce this on the real blockchain, since the real blockchain defines its own lawful jurisdiction, distinct from the state's, and in the blockchain's jurisdiction, the state law does not exist. Thus no state agent may apply the state's mandated change to the blockchain without violating blockchain law, which state courts are compelled by international law to uphold, because in order to modify the blockchain, the state agent was required to sign a transaction, which signs the blockchain constitution.

> Thus by embedding a constitution in the blockchain, it creates a lawful jurisdiction removed from, and not subject to, the laws of any state, and the states are compelled under international law to respect that lawful jurisdiction. [...]

Laws (or legal codes in your terminology) of the land can only be superseded by contracts in some cases, and these are often just waving rights which can explicitly _be_ waved. Some rights however cannot be waved, for example you cannot contract yourself as a slave to someone, not even with your consent. You can "contract" for someone to kill you in some states but only within the highly regulated system of Physician Aid in Dying. Even though many people believe ending one's own life is one's own prerogative, it's illegal and no contract can make it legal.

In your argument I think you must be talking about freedom of association, which is guaranteed not only by international law but all modern democracies own laws. This does not extend to contracts however, which are governed by different laws. It is very euphemistic to say that people coming together enacts a contract.

A blockchain cannot, by this fraudulent slight of hand, define a jurisdiction. Again, the laws of the land supersede it.

Just to clarify, I do not necessarily support this framework, but it's the reality of _now_ and worth looking at plainly. You cannot use the defence here of your own "Law" definition because you are claiming that government would be forced to recognize this sequence. They would not.

I take the time to say all this because there _is_ a strength to blockchains and this is not it. The strength is that it is completely impractical for the government to attempt to control a blockchain because they would have to firstly have a majority of the nodes (depending on the consensus algorithm) within their own borders, and then forcefully take control of these nodes and perform a coordinated hardfork. I can't imagine this being done  by any other means than physical force, like actually breaking down the door etc. There are no legal means for them to decree a "legally mandated hard-fork", and if they were to invent this it would simply destroy that chain.

Blockchains are designed to resist this by making nodes relatively easy to set up and run, and encouraging an international network.

> Thus there is an ironclad lawful argument that no action on the blockchain can possibly violate a state's law, and no penalty assigned under state law can be applied to the blockchain. Beware, however, that states are known for using laws to accomplish their own ends, and ignoring them otherwise. These states are fundamentally lawless institutions, so a lawful argument alone is no guarantee of safety.

This argument is not ironclad in any sense. Once you have evoked international law and appeal to state / national law, your own idea of Law cannot interact and the idea of the state being compelled by "blockchain law" does not hold.

---

Also I would like to read this:

> I can describe British Common Law using this framework; if that would be interesting to readers, let me know in the comments

Mainly because I cannot imagine how you could do it and would be really interested to see it and perhaps be proven wrong.

---

Also complete side note, I saw the pictures from your recent accident and hope you are recovering well. All the best. 🙂

---

Edit: I forgot to say, easier in the piece you were talking about whether or not someone can be held to the laws of a jurisdiction when they don't know them. This is called [Ignorantia juris non excusat](https://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat) and is pretty established. I know you're going for a redefinition here but there's an argument for this holding regardless.

> The rationale of the doctrine is that if ignorance were an excuse, a person charged with criminal offenses or a subject of a civil lawsuit would merely claim that one was unaware of the law in question to avoid liability, even if that person really does know what the law in question is. Thus, the law imputes knowledge of all laws to all persons within the jurisdiction no matter how transiently. Even though it would be impossible, even for someone with substantial legal training, to be aware of every law in operation in every aspect of a state's activities, this is the price paid to ensure that willful blindness cannot become the basis of exculpation. Thus, it is well settled that persons engaged in any undertakings outside what is common for a normal person, such as running a nuclear power plant, will make themselves aware of the laws necessary to engage in that undertaking. If they do not, they cannot complain if they incur liability.
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@modprobe · (edited)
$0.05
You did not fully understand me, but I don't know if anyone will. This is part of a mental context that I've been working on for years, and it's impossible to find one specific place to start explaining it.

There are a couple points where I can nudge you closer to understanding my meaning, though:

> For law to have any meaning at all it is between people in a community. The origin of law is social.

Yes, for law to *have any meaning*, it must be shared context, understood by multiple people. That's what I said. But the *origin* of law is *not* social. There is no such object in the universe as 'society' -- society is an abstraction, an umbrella term we made up to make it easier to think and talk about groups of people. Thus society can't _do_ or _make_ anything; the idea that society does or makes things is just an abstraction, generalizing away the details of the individuals interacting within that society to do or create the things.

So when I talk about Law, I am talking about the origin; I'm talking about where the thing you call law comes from. And for something as fundamental as law, isn't it important to understand where it comes from? :-)

As to your commentary on ignorance of the law... Here's our disconnect. From your quote:

> Thus, the law imputes knowledge of all laws to all persons within the jurisdiction no matter how transiently.

The disconnect is at *within the jurisdiction.* You (and Wikipedia) assume all people to be within some jurisdiction already, which is perhaps their mindset, but it is not natural, and certainly not necessary, and for the purposes of deep, thorough understanding, not ideal. People consent to the rules of whatever other jurisdictions they consent to be in, and those rules may say whatever about their interactions with a constitutional blockchain; however, the blockchain and its data are a separate jurisdiction, and do not follow (by law) the whims of any particular state.

Once again, I understand that states will frequently spin some legal sorcery bullshit at you to claim a lawful right to aggress against you, but unless you consent to be in their jurisdiction (in which case, why complain? It's what you asked for. Play stupid games, win stupid prizes), then that's all nonsense because they don't own you, and you didn't harm them. They can hurt you anyways, and that's base thuggery, and it sucks, and the fact that it was unlawful doesn't make it hurt less. So plan your behavior accordingly. :-)

> The sandbox world you have imagined has no practical application possible, except perhaps allowing someone to sit on a very high horse and declare their own actions "legal" because Law as they recognize it is derived completely from themselves. It's nonsense.

The beginning of wisdom is calling things by their proper names. Thuggery and lawlessness are thuggery and lawlessness, regardless of whether the thug wields a badge or a gavel or any other talismans, and regardless of whether he can confuse you with legal incantations. When you understand the origin of law, you understand that these trappings do not legitimize the behavior in the least, they only trick people into submission.
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@personz ·
$0.79
I had these specific contentions, which I'll go further into:

1. Constitutions are not law, they constrain law
2. The origin of law is social
3. Where you have invoked international law, you are being inconsistent in using your definition of law with theirs - they are incompatible. Your argument cannot work on principle because of this.

The first point we'll let go as you didn't address it.

To the second, I'll add some detail. I did not say that society makes laws, I said that the origin of law is social. That is, there is no reason to create law without society, or in other words, without relationships between people. And where two or more people live, there is some society. I think we basically agree on this. But probably not this: **Laws codify the boundaries of those relationships.**

For example it is generally accepted (right?) that we feel biologically compelled to take care of our children, due to a combination of instincts and feelings / emotions. Further to that we are _taught_ that we should take care of children and how we should do it, both implicitly and explicitly. Further again is that this relationship of care giving is exactly codified and importantly _enforced_ by law.

These laws in particular are based around the way things are and guarding against the way things also are but we decide they should not be, because of the obvious harm caused. It's accepted that there is some minimum standard below which we are neglecting them at best, or abusing them at worst, and this is written into law. It doesn't matter if you accept it or not, it will be applied to you.

One of the things laws in a social context also do is protect those who break the law from punishment which is out of proportion or against the principles of the society. Justice is taken out of the hands of the general public and into the hands of the agents of the state. So if you abuse a child you cannot then be decapitated, your house burned down and your entrails sent to your relatives. Perhaps this is too much protection, but that's part of the idea of it.

This idea of law, as prescriptive, is explicitly antithetical to your view:

> Second, "Law," as I use the term, is not prescriptive, it is descriptive. It does not define how people should act; rather, it describes how they agree to act. Law is a description of the interactions of human beings. [...] All of this [communicative] context which is understood and accepted between a group of people is referred to as the law between that group of people.

Law may be descriptive, but is always prescriptive, by the fact that there are consequences to not following it. They are two sides of the same coin, given that there actually _are_ consequences.

Where law comes from is not the individual. It is a collaboration between individuals. If laws are not generally reflective of the views of the populous, they will often not be followed. Law and the idea of law has been inherited from our ancestors of the ancient past and in this way it is social too, and not reinvented every generation by every individual. We do not have a record of a civilization without socially defined and originated law.

What this implies is that your definition is extremely individualistic. You mention the community but I hazard that your views are more in line with individualist anarchism, and the idea that community coercion on the individual is never acceptable.

---

On point 3, at its core, I read that you believe jurisdiction requires _your individual consent_. The same argument can be made with respect to any system of power, that if those who are "subject" to it do not consent then it has no power. This has been mythologized by the movie The Matrix for example, where when Neo finally gets how to free his mind, it's just not obeying the rules. It's a powerful image.

However it rests on the premise that the only thing making us subject to these things are ourselves. This is also a common theme in political activism as it inevitably strikes you "what if we all just didn't do what we're told?" Again, compelling.

The reason why we cannot simply think ourselves out of oppression though is that it is physical, so resistance requires either escaping influence, by distance or hiding, or mass coordinated action. Sure, this _starts_ with thinking, but requires action, and in the later case also communication, agreement, etc. An individual cannot wish away the power of the state nor the jurisdictions that it defines.

The idea comes to us, well jurisdictions are just agreed areas. True. They are "made up" the same way anything between people is, by agreement. The question is always, **what happens if I don't recognize this? What power do they have over me?** Often it is the real power which makes the "imaginary" agreements real. Bullets, battons, water cannons, prisons, property seizure, etc. are all real. Other things are less real, such as restraining orders, contracts, etc., but they are always backed up by force.

There are many current serious conflicts over jurisdiction, i.e. territory. The Kurds come to mind, the Palestinians, Catalonians, and I've even met Texan separatists. In general these are ultimately disputed using violence.

There are lots of "micronations" which are not recognized by established states but many of them are nations _de facto_ because of a lack of opposition or assertion of control of the territory of the micronation. I would say that this is tacit recognition, or as good as it. Violence is rare in these cases. For example, the [Republic of Molossia](https://en.wikipedia.org/wiki/Republic_of_Molossia), in Nevada, is not recognized by the US and so is and isn't a nation, but the Molossians do consider it a nation. I wonder do they pay taxes to the US? That's usually where these things get to and would be one of the tests of nationhood.

So, a blockchain could be a new jurisdiction, in a completely new way, I'll give you that. But your argument to say how a country would be _forced to recognize it under international law_ is incorrect. However what does it mean for it to be a jurisdiction? One cannot live in the blockchain (yet? until we can download ourselves 😉).

---

I agree, the application of law can come down to "base thuggery", i.e. force. _Justitia_ (Lady Justice) has scales in one hand but a sword in the other. The idea is that we will want the thug on our side when we are wronged, and protection from it when we are righteous. We all live with this conflict. I think your exercize here has been to try to resolve that conflict.

> The beginning of wisdom is calling things by their proper names. Thuggery and lawlessness are thuggery and lawlessness, regardless of whether the thug wields a badge or a gavel or any other talismans, and regardless of whether he can confuse you with legal incantations.

I can agree with this. Though I disagree with your redefinition of "law", that the state has power and is often thuggish is true. However saying this is lawlessness is to miss the point. They are just _bad laws_ if they result in thuggishness. You do not object to laws as such, and I have shown that there is no meaning to say one has one's own laws, so this follows. I stated before I think many accept using thuggery when it suits them and I believe this is one of the reasons why these laws survive.

The laws or "legal incantations" may be reprehensible to you, but your argument in the piece did not directly attack this nor explore it. I would be interested in reading that if you were to write it.

> When you understand the origin of law, you understand that these trappings do not legitimize the behavior in the least, they only trick people into submission.

To be clear, you have not laid out the origin of law, but a completely alternative idea of it. That people are tricked into accepting terrible laws is a different issue, one worthy of attention in my view.
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