A recent discussion has inspired me to articulate my own design for better government, long simmering in the back of my head and in various scribbles. My focus is on the "action end" of government where disputes are resolved and laws enforced, namely what in modern democratic systems we call the judicial and executive branches. Indeed except for the Articles of Incorporation, which is the constitution of Juristopia, its laws evolve mostly by the common law method of precedent. Subsidiary organizations are free to pass bylaws if they wish, as long as they do not contravene Juristopia's own Articles of Incorporation or disobey an Order of the Extraordinary Court. There is very narrow legislative role for the Board of Franchisors which will be stated below. The main democratic element is juries, which play an important role in limiting the exercise of governmental powers.
To simplify discussions of political power and rebellion, let's posit a system of magic Rings of Power, a la Tolkien. However, there is no master One Ring. (Tolkien surely had the correct answer for such a totalitarian power: it must be destroyed at all costs). Instead these are Rings of Discontempt that operate as follows:
(1) There are N Rings, where N is odd, say 9. Any Ring in the possession of an individual who possesses another Ring has no power (that includes the first Ring possessed -- the second renders the first impotent -- so that there is a strong disincentive to accumulate Rings).
(2) To operate the ring, a quorum of holders of the Rings, called the Court of Extraordinary Justices, touch their Rings together and prouounce the unique name of an individual to be punished for Contempt of Court, and pronounce a punishment.
(3) The quorum of joined Rings can administer the following magical punishments to the named person at any range:
(a) imprisonment in a magical jail for any specified number of time, requiring the aid of no human jailers
(b) instant and painless death
(4) The Rings confer on their wearers complete invulnerability to any kind of violence.
There is no other magic of any sort in Juristopia.
Like the Catholic College of Cardinals, the Extraordinary Justices choose their own successors. Board of Franchsisor members also choose their own successors, but have no Rings. Combined with the magical Rings, self-succession allows the Extraordinary Court to avoid the two main sources of political bias and pressure from other branches of government they now face: from their initial appointments by other branches, and by the ultimate ability of an executive branch to ignore a court order that it despises. An executive officer who refuses to execute a Court order is punished with Contempt of Court; the Rings insure that no rebellion against such punishment is possible.
The Articles of Incorporation state that the Court of Extraordinary Justices exercises only a very narrow jurisdiction, called the Extraordinary Jurisdiction. All Ordinary Jurisdiction, and all armed forces and police powers besides the Rings, are auctioned off to the highest bidder as franchises.
Franchises are property rights to exercise certain narrowly defined governmental powers, subject to limitations on the monopolistic fees or taxes they may charge, determined by juries selected by lottery from the feepayers or taxpayers.
A number of general kinds of franchises are specified by the Articles: public nuisance suppression, fraud suppression, armed forces, police forces, and common law courts are the five main categories of franchises, but there is a vast variety of possible jurisdictional "boundaries" for franchises within each category, and ownership of franchises may be bundled within or across boundaries in a dizzying variety of ways. The franchise market can thus assemble bundles that best persuade juries of feepayers to maximize fees. Each franchise collects its own monopoly fees from all persons within its territory; no franchise may charge fees that are more than what a jury considers "reasonable", including a reasonable profit. The general franchises stated in the Articles can be subdivided and narrowed, but not expanded, by the Board of Franchisors, which can pass bylaws that specify the subject matter and personal jurisdiction and territorial boundaries of each franchise. Some franchises are executive (similar to government agencies), and some are judicial (courts). The Board, like the Court, selects its own successors.
The Articles of Incorporation state that Juristopia Corporation itself does not have shareholders and may not earn a profit. Its only officers are members of the Board and Court, and the salaries of these are limited to salaries deemed "reasonable" by juries chosen by lottery from among Juristopia' taxpayers, as are its overall budget and the fees (taxes) it may charge within the territory of Juristopia. Its officers and employees may legally only engage in the business of Extraordinary Jurisdiction (Court) and writing initial franchise deeds (Board) -- they are are forbidden from engaging in ordinary business or Ordinary Jurisdiction.
All Justices and Board members must be eunuchs (if male) or artificially or naturally postmenstrual and sterile (if female), may own no amount or kind of property that a jury deems "unreasonable", must dispose of any properties that will create an imminent conflict of interest, and must recuse themselves from any legislation or cases that create a conflict of interest. They may not reproduce themselves in any fashion. The purpose of all this is to minimize potential biases, conflicts of interests, and motivations to use the Rings to expand power. (A digital protocol would be ideal if human judgment were not required to render verdicts and define new franchises).
The Articles state that all the jurisdictions and armed powers shall be auctioned off to the highest bidder as franchises. There would, for example, be Army, Navy, and Air Forces franchises empowered to charge a reasonable fee to the entire island for their services. There would be some public nuisance suppression franchises: for example there could be an air pollution franchise, allowing the franchise owner to regulate all pollution in Juristopia, similar to the U.S. EPA today. These franchises might be further unbundled into the particulates franchise, the sulfur dioxide franchise, the carbon dioxide franchise, etc. -- or alternatively the car tailpipe franchise, the electric plant emissions franchise, etc. These franchises would be allowed to auction off tradeable emission rights, or altenatively to charge emission fees. To the extent franchises are monopolies, or coercive, or both, the fees they can charge are limited to what are "reasonable" fees as determined by juries.
The Articles restrict the Extraordinary Court's jurisdiction to appeals in certain narrow (extraordinary) areas: choice of law and forum clauses, cases involving the property rights of franchises, and cases involving violations of a Bill of Rights, which would also be part of of the Articles. The Bill of Rights states a number of individual procedural rights, such as right to trial by juries, the right of juries chosen by a lottery of taxpayers to decide whether any taxes or franchise fees are reasonable, limits on search, seizure, and arrest, and so on that must be respected by any entity exercising a judicial or police power.
All Ordinary Jurisdictions are auctioned off to the highest bidder and can be freely traded. Among the Articles of Incorporation would be a strong requirement that Choice of Forum and Choice of Law clauses in contracts be enforced in a way much broader than current U.S. practice (e.g. allowing all torts of any kind between the two parties to be included in the scope of choice, overriding any franchise jurisdictions).
In the expanded form I propose, these will allow pairs of persons (individual or corporate) to opt out of the franchise that would otherwise have jurisdiction over future cases between them. This introduces a substantial degree of competition between franchises, and one might be able to assemble an AC-style system of insurance/protection companies from such clauses.
Under the Articles there are no Chief Justices, Presidents, or other lead executive officers that have special constitutional powers. Any Commander-in-Chief of the Armed Forces is optional and would be chosen by the various armed frachises themselves, as they may agree. The Court and Board are free to elect nominal leaders for administrative purposes if they wish.
The biggest open problem in Juristopia is how to stop the Extraordinary Court from cleverly interpreting the Articles of Incorporation to usurp the Ordinary Jurisdictions that properly belong to the franchises. Or from just using its control of the Rings to blatantly violate the Articles and enforce martial law and slavery for its own grand benefit and everbody else's pauperization, once enough people have settled on the island with high exit costs. A possible solution might include giving Extraordinary Juries, selected by lottery for each decision, their own set of Contempt of Jury Rings to enforce jury restrictions on the Court and Board.
I have also neglected powers to make and enforce treaties with other governments. Since such treaties typical assume external sovereignty, the very low degree of internal sovereignty in Juristopia, which is otherwise a very good feature, may pose an interesting problem for treaties.
(N.B.: I crudely described a previous version of Juristopia here).
UPDATE: spelling change.