Why legal procedure is central to politics

"Political power comes out of the barrel of a gun," Mao Zedong infamously said. This was true in the civil wars Mao fought and was too often true in the lawless way he oppressed his people. It is generally true in the anarchy of international relations, and would be true for individuals if they lived without law. People of practically all political stripes agree that the problem of force is one of the most important political problems, and I suspect most would agree with me that it is the most important problem. It is also the central problem addressed by the law.

We can start to understand both law and politics by understanding a bit of the highly evolved common law in a situation that lies close to anarchy: the obligatory gunfight in the old Western movies. With my habitual lawyerly habit of "issue spotting," I've noticed how the good guys in these old Westerns almost always, if often barely, follow the common law of self-defense. The white hat waits until the villain reaches for and grabs his gun -- showing intent to shoot -- before he grabs his. This heroic habit illustrates one of the great summaries of the substance of the common law -- namely "thou shalt not initiate force" -- or, in a more peaceful setting, fraud. If one had to summarize the substantive parts of the common law into one sentence, that would be it -- "thou shalt not initiate force or fraud."

This is not to say that one can logically deduce all important parts of law or politics from such a principle -- a common mistake of ideologists. One can no more deduce the content of the law from simple principles than one can deduce the specific sequence of an animal's genetic code from any few simple rules. Both, in mathematical terms, have an irreducible Kolmogorov complexity and any of these kinds of summaries are quite lossy. But it does turn out that almost all of the substantive common law operates in close proximity to that libertarian principle.

There are some other good ways to summarize the common law. "The right to be left alone" is a good brief description of our rights under criminal, tort, and property law -- in other words these are generally systems of negative rights rather than of positive rights to compel another person's affirmative effort. Since we often don't really want to be left alone we also have contract law, which generally operates according to the principle of "keep your promises", inheritance law, "respect a dying man's wishes, and if you don't know them he meant to leave his wealth to his family," and so on.

Back to our movie: let's say we come into the theater just as our hero is firing his gun. He has already drawn his gun while the villain is still bumbling around. Our hero shoots first and our villain crumples to the ground. If we didn't know this was an old Western, where the hero always draws faster despite drawing second, a reasonable guess would be that our killer was able to shoot first because he drew first, and is thus a murderer.

Only in full context do we see the initiation of force and a response to it. In isolation, the response to force is often indistinguishable from the initiation of force. We often can't know for sure whether an act of coercion is an unlawful initiation of force or a lawful response to it until we've seen the entire film (and in modern Hollywood, not even then, though I digress). Or, to change metaphors and introduce a bit legalese, we often don't have probable cause to believe someone has initiated force until we've assembled some pieces of the puzzle. Learning to some even greater degree -- clear and convincing evidence in some private cases and beyond a reasonable doubt in criminal cases -- who initiated force requires even more pieces.

Furthermore, to achieve justice -- to deter, to exact retribution, to make whole the victim, or to heal the sick criminal, whichever one or more of these we take to be the goal of justice -- we must almost always respond to force with force. Taken in isolation that response will itself look like an initiation of force. Furthermore, to gather the evidence we need in most cases to achieve sufficient high levels of confidence -- whether balance of the probabilities, clear and convincing evidence, or beyond a reasonable doubt -- we often have to initiate force with third parties -- to compel them to hand over goods, to let us search their property, or to testify. If politics could be deduced this might be called the Central Theorem of Politics -- we can't properly respond to a global initiation of force without local initiations of force.

Again keeping in mind that we are leaving out many important exceptions and details, we might summarize good legal procedure -- and more abstractly, the way a good political system should respond to force -- as follows:

(1) An initiation of force might have occurred

(2) Learn enough, without responding with force of our own, until we have probable cause to believe an initiation of force has occurred.

(3) Respond with our own force in order to arrest the persons, valuables, and evidence involved, and engage in the trial(s) and other procedures necessary to convince those most highly knowledgeable about the case, and if it is important enough the world generally, that an initiation of force indeed occurred.

(I'm neglecting, of course, the controversial issue of preventing force by initiating force -- in the international context by invading Iraq to prevent supposed weapons of mass destruction, in the individual context by capturing a terrorist before they've actually committed an act of terror. This is dangerous territory that goes beyond the general responsive workings of legal procedure, and will be hopefully a topic I address another day).

In Hollywood our hero has a quick eye and thereby instantly achieves probable cause that our villain has reached for his gun and is threatening to fire. In reality, the evidence is usually far more dispersed and we must be far more careful, lest our supposed response to force actually be an initiation of force.

Since force is the central problem of politics, a political system, whether proposed or real, that cannot distinguish an initiation of force from a proper response to force -- that cannot distinguish an arrest of a person from a kidnapping, an arrest of goods from theft, and so on -- is worth less than the paper it's written on. And if it merely waves its hands and invokes the magic of "the government" or "the market" to solve all such problems, it is extremely lame -- and quite at odds with how our highly evolved common law legal procedures actually work. The common law does not, as the law of self-defense suggests, necessarily require "the government" for a legally forceful response to force. But neither, as we shall now see, do its legal procedures operate in any way resembling the laws of economics in a voluntary market.

Recall our Central Theorem of Politics -- we can't properly respond to a global initiation of force without a local initiation of force. We could deduce, if law could be deduced, that legal procedure thus might be full of local initiations of force -- and in fact it is. Legal procedure, in sharp contrast to good substantive law, does not involve merely negative rights "to be left alone," but in addition is full of positive rights. It is full of procedures for interfering with persons and property, both with the defendant who might have initiated force and with some third parties who are not accused of initiating force. The right to sue, for example -- necessary for the enforcement of any private substantive right -- is a bundle of positive rights that usually includes the right to compel a jury to sit and the right to compel witnesses as well as a right to compel the the alleged initiator in various ways. Proper response to the initiation of force would be extremely and quite unreasonably hobbled without these coercive mechanisms, these positive rights of legal procedure. And unless the disputing parties have arranged things ahead of time, the exercise of jurisdiction by our "responder to force," the court, is involuntary for at least one of them. Often the responder has to be backed by some kind of police force, or an extreme cases even an army, if justice is to be achieved. It is preventing the abuse of all this power -- including figuring out ways to minimize the power without overly reducing our ability to resond to force -- that is the central problem of politics.

Ideological purists can whine all they want about the supposed injustices of the coercion inherent in legal procedure, but "thou shalt not initiate force" is merely a useful summary of the substantive common law and in no way provides a useful summary of the procedural common law, much less a principle for its operation. The job of legal procedure -- and of good politics generally -- is to respond to initiation of force with its own local initiations of force in order to achieve justice: to punish the initiator of force and to provide restitution to his victim. Whatever form this response might take -- whether a nation-state making war or enforcing law through its courts, or parties who have previously agreed resolving their dispute through a private court, or a shopping mall security guard arresting a shoplifter, or our quick-draw Western hero -- whatever form response to force may take, it is crucial that law carefully defines the proper ways for making such responeses and that we put limits on these methods to prevent abuses. It's also crucial to realize that any princples by which we might do so will tend to be very different than those of the substantive law being enforced.

Microkernel government

Here are some considerations that went into the design of Juristopia. The overall goal of Juristopia is to improve the most important functions of government (especially defense and the abatement of public nuisances) while preventing the corruption, oppression, war, genocide, and other abuses that have so often come with police powers and taxation. Those evils have been particularly prone to occur when those powers are bundled into a locus of sovereignty, a la the personal totalitarianism of the Justinian Code, Bodin, and Hobbes or the parliamentary totalitarianism of Bagehot. These traditions of legal procedure, assuming political relationships are a matter of delegation rather than of property, have given us almost all of the worst in Western history: the Caesars, the Tsars, Napoleon, the Kaisers, the communist dictators, Mussolini, Franco, and Hitler among others -- based on the profoundly false and destructive assumption, derived from the legal procedure of the Roman Empire, that there must be "one person" who is "responsible" for all politics and law -- a person or (for Bagehot) small organization sitting at the top of a vast pyramid of principal-agent, usually boss-employee, relationships.

Although it discards totalitarian political structure and legal procedure, our proposed form of government is based on historically proven legal mechanisms. With the clarity of legal procedure it avoids the vague nonsense that often passes for political philosophy. Much of the political structure of Juristopia is based on highly evolved common law mechanisms such as property and contract, but these are used in the same basic manner as in the common law, rather than as misleading analogies or mere labels. Nor is there any hand-waving about how "the market" will magically produce efficient law. An efficient market is an outcome, not a cause, of good law. Some kinds of legal competition are good and some are pathological: Juristopia encourages the former and strongly discourages the latter.

Juristopia borrows from a number of historical political and legal systems, ranging from the modern constitutional administrative state to the monarcho-franchise system of late medieval England. Important design themes of Juristopia include separation and decentralization of powers. Its central design theme is the replacement of most delegation relationships (i.e. principle-agent or boss-employee) in politics with property and peer contract relationships. In its radical unbundling of power it satisfies many of the ideals of green libertarianism, minarchism and even anarcho-capitalism, yet it retains and even enhances the valuable functionality of modern government, such as environmental protection and defense. It strongly encourages the healthy legal competition that occurs before any dispute has arisen, such as choice of law and choice of forum, but severely discourages the unhealthy forum shopping that occurs after an injury has already taken place. It thus provides both default jurisdictions and the ability of parties to opt out of them, for future disputes between themselves, by contract.

The main innovations of Juristopia are (1) to revive a kind of jurisdiction that was once a strong bulwark against totalitarianism, namely jurisdictions held as property rather than by delegation, and (2) to combine these with the recently more common bulwarks against totalitarianism, especially separation of powers and a Bill of Rights defining limits on the exercise of franchise powers against individuals.

The result might be called, to borrow some computer science lingo, a microkernel government. A microkernel in a computer is a small program that contains only the most essential functions needed to manage a large number of other programs called "servers" that are conceptually independent of each other. Similarly, our governmental microkernel provides only the miniminum procedural functionality needed to handle franchises, a wide variety of which in turn handle the substantive law. Many of the advantages listed by Wikipedia for microkernel programs point up analogous advantages of microkernel government:

* "security: it is more secure as more operations are done in user mode than in kernel mode" -- similarly, the failure of one governmental function is much less likely to spill over into other functions or to cause general political failure. And since a small franchise requires fewer powers than a large government, any abuses of its powers are likely to be far less severe.

* "reliability: a simpler kernel design and functionality typically results in a more reliable operating system" -- similarly, the compartmentalization produced by property rather than delegation relationships increases the reliability of each function.

* "flexibility: new features can be added and unnecessary ones can be removed. This makes it suitable for both large and small systems" -- similarly, to add or remove a governmental function requires merely defining and funding a new franchise, or for a jury to defund it.

* "portability: most of the processor-specific code is in the microkernel, which makes it easier to port the kernel to a new platform" -- similarly, our new form of government can be applied in a wide variety of contexts -- as a new commercial jurisdiction, as the basis for an online game, or to augment or replace a traditional government.

As a final note, although decentralization is a key feature, this decentralization is generally one of subject matter rather than territory. Territory is far less important in Juristopia than it is in most of today's governments. Its federalism and localism takes the form of unbundling jurisdiction by subject matter rather than by territory. It is expected that franchises will operate over large territories and even globally. The physical boundaries of its jurisdiction will depend on its function and won't necessarily bear any relationship to the boundaries of other franchises. Indeed, Juristopia goes much farther than most forms of government in unbundling territory from government, thereby reducing the legal transaction costs of operating in multiple territories and increasing the healthy forms of legal competition.

(BTW, please let me know which spelling you prefer: :-)

Juristopia

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.
javascript:void(0)
Publish Post
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.

Debunking civics class mythologies

There are a number of modern mythologies that severely disturb our ability to think clearly about law and politics. They encourage lawlessness by sowing confusion about the law. You may have learned them from high school civics class, or from newspapers, or from your friends. Indeed, almost all of us take them for granted, even though they are as fuzzy and false as the tooth fairy. These statements and phrases are legally meaningless and politically muddle-headed, but people often utter them as if they were as obvious as the sun in the sky.

(1) "...the government..." -- But there is no such thing as the government outside of a totalitarian government like Stalinist Russia. (Actually, even Stalinist Russia was divided into Republics). In the U.S. we have a federal government, state governments, counties, cities, transit districts, and so on. Mall security can arrest shoplifters and in many states the resident of a house can legally shoot burglars. None of these have arbitrary power, although people often think or act as if states or the federal government or the President himself do or should. This phraseology is related to the totalitarian doctrine of internal sovereignty. Besides federalism and separation of powers, another historical way to avoid this totalitarianism was jurisdiction as property. A related myth I hear comes from my fellow American civilians whose commutes are too long. They have drunk too deeply of the talk radio kool-aid and call President Bush "our Commander-in-Chief." If you check the U.S. Constitution, you will see that President Bush is Commander-in-Chief of the U.S. armed forces only. This phrase, with "the government", may reflect overuse of a biological instinct to think we live in one tribe and follow a single tribal alpha male.

(2) "We have a social contract." -- But the principle behind much law of contract formation, such as the Statute of Frauds, is that any contracts involving momentous things, like real property, should be carefully considered and consented to by each person bound -- the rationale behind requiring that the important parts of real estate contracts be initialed and the entirety signed. Politics is pretty important, so -- where did I sign? Where did I initial my approval for the income tax, zoning laws, and our military adventures? There is also the only slightly more plausible fiction of a claiming that jurisdiction is a voluntary relationship as a matter of constructive contract or restitution which I debunk here. Lysander Spooner also long ago debunked social contract theory. Governments do indeed have the legal authority to tax, to make and enforce laws, and so on, but this authority is certainly not derived from any sort of contract with those they rule. Furthermore, citizens generally have no legal rights whatsoever to be protected by any government from any sort of violence (except, sometimes, violence by that government itself), even though that has been said to be the main purpose of government. To the extent government might be justified in common law terms, property and corporate law are much more realistic starting points. (Note that the full form of this phrase usually involves the abominable combination of two mythologies: "We have a social contract with the government.")

(3) "It's the will of the people" -- But who are "the people"? By what magical group mind and group mouth do they express their "will"? This is another phrase that is legally meaningless and politically muddle-headed. There are a number of related nonsense-phrases, e.g. "the consent of the governed", used as a justification for enforcing oppressive laws on the many persons who did not consent.

So why follow the law, besides the obvious utilitarian considerations like not wanting to be punished? We should follow the law for the same reasons our ribosomes follow our genetic code. Both law and the genetic code are inherited information that we need first to survive, then to thrive. They are both often highly evolved, with highly improbable functions that are often difficult or impossible to understand. Laws are blueprints providing the basic structure for social interactions, just as genes code for the interactions between cells and even some of the basic interactions between individuals. To the extent political nonsense-phrases interfere with a clear understanding of the law and law enforcement, they destroy what many millenia of cultural evolution has built.

(This post was proximately inspired by discussions I have been having with one Mencius Moldbug here, here, and here).

Two guest posters and a fun new blog

Unenumerated welcomes two guest bloggers for this summer. Mark Miller is a computer scientist who has been involved in the Xanadu hypertext project (a precursor of the Web), agoric computing projects, the E programming language, and much else. Jon Roland is an expert on the U.S. Constitution and related legal topics.

If you love Unenumerated, have some good ideas, and would like to guest blog this summer, please let me know.

The fun new blog involves Mencius Moldbug and the political idea he calls "formalism", which bears some resemblance to the idea of property in everything.

Towards a digital and private common law

There is a problem in what name to give the topic of this post. Perhaps the best name is "digital private law," but this might invoke in the mind of the reader laws passed by politicians to regulate private computers, and that is practically the opposite of the meaning intended. Instead, our topic is digital code that augments or even replaces the functions of traditional private law: contracts, property, torts, etc. -- i.e. almost any law that is traditionally settled in a private lawsuit rather than by a criminal prosecution. Since most of the inspiration so far has come from the English legal tradition, it might also be called "digital common law." Or we might simply call it "smart law" in parallel with coinages like "smart weapons" and "smart contracts." Or "law in a box" or "law on your lap." Mark Miller has captured the spirit, with perhaps some utopian exaggeration, with his slogan, "computer security is the future of law." Lawrence Lessig has colorfully called such digital code "west coast code" (drafted by hackers in Silicon Valley and Seattle) in contrast to "east coast code" (drafted by lawyers in Washington, D.C.) This short-shrifts the many talented east coast computer programmers and west coast lawyers, not to mention all overseas lawyers and programmers. But it helps to clarify my topic by noting that it corresponds to Lessig's "west coast code."

Digital private law is also private law in the sense that contracts, property deeds, wills, and so on are private law. In contrast to statutes, regulations, and judicial precedents, they are drafted by private persons rather than politicians or government bureaucrats. Of course, governments could also draft digital code for private use (either voluntary or compulsory), but in the absence of a strong need for a trusted third party to enforce the rules -- which digital security codes can greatly reduce -- there will be much less need for this than there is for governments to operate courts, police forces, armed forces and the like to enforce traditional law and beat up on plenty of innocent people in the process. Digital private law replaces, where appropriate, the threat of violence, and both the flexibility and corruptibility of human judgment, with the utterly peaceful and predictable -- but at times naive, adhesive, strict, and harsh -- operation of digital code.

Digital private law, smart contracts, and the like are metaphors (using traditional legal code as a model for digital code), but they are also much more than metaphors -- such code can augment and increasingly, in some cases, will come to replace traditional legal code. They take the form of network protocols inspired by legal metaphors and implementing some of the functions that law has or could serve.

Smart contracts allow a new freedom of contract that is no longer possible, if it ever was, with traditional law. Secure property titles will allow more secure and more fine-grained recording and transfer of property rights, while RFIDs are enhancing and proplets will further enhance the protection of those rights. In general, digital security protocols, especially advanced cryptography, allow radically enhanced or utterly new kinds of security that were impossible and unthinkable, and indeed seem quite magical, from the perspective of traditional law and paper security. The raw power of computer to crunch numbers, combined with artful new ways to draw preferences from users and represent them digitally, may also overcome the mental transaction cost barrier to very complex terms and very fine-grained transactions, opening up a potentially large new economic space now crudely occupied by resource allocation algorithms.

Besides digital security and user interface design, the theory of digital private law involves much economics, not coincidentally of the law-and-economics kind -- ideas drawn from this area such as transaction costs, value measurement costs, the low-cost avoider, and so on loom large in thinking about these protocols.

I have thought of and sketched many digital protocols which demonstrate some of these new possibilities. Often I have taken protocols from advanced cryptography that were naively described in narrow terms (e.g. "digital cash") and described them in their full potential generality as substitutes for traditional commercial forms (e.g. "digital bearer instruments"). Sometimes I have described some utterly new possibilities (e.g. confidential auditing). Here are some of the highlights, roughly categorized by the area of law the protocols draw inspiration from -- which also contain the functions of law they intend to serve:

Property law
"Secure Property Titles with Owner Authority"
"Proplets"

Contract Law
"The Idea of Smart Contracts"
"Smart Contracts Reduce Mental Transaction Costs"
"Smart Contracts Expand Credit Opportunities"
"From Vending Machines to Smart Contracts"
"Scarce Objects and Market Translators"

Banking and Payment Systems
"Contracts with Bearer"
"Bit Gold"
"Micropayments Redux"
"Combine Tipping with Aggregators"

Tort law
"Robot Law"

Corporate Law
"Confidential Auditing"
"Patterns of Integrity"

I've also written on some general theoretical considerations:
"Security and the Burden of Lawsuit" -- how computer security augments and interacts with traditional law
"Wet Code and Dry" -- On the strong distinctions, as well as similarities, between traditional legal code and digital code
"Things as Authorities" -- Digital private law will inherent the often authoritative nature of technology in human relationships
"Multiparty Secure Computation" -- a very powerful and general protocol that can provide radically new privacy functions enabling confidential bid auctions, confidential auditing, etc.

Even all this is just the tip of the iceberg.

Combine tipping with aggregators

TipIt proposes to include a content aggregation feature showing the best-tipped pieces of content, since a tip is more credible than your typical content vote on an aggregator like digg or reddit. This suggests to me an even bigger idea: to provide similar incentives for Internet tipping as we have for tipping at a dinner out -- to make it an expected social practice -- combine tipping with content aggregators like reddit or digg or socializing services like facebook with features as described below.

With content we don't know how much it's worth until we've already consumed it (a classic measurement problem). A tip would solve this problem, but a tip is a social thing and requires more than just a payment.

If I were doing TipIt I'd change the design in four ways. First, I'd add generosity signal features that inform one's friends or fellow tippers as well as the tipee about the tip. This could be in the form of aggregator "karma" points that name and ranks the most generous tippers. This would be like the "karma" points which people who add content to a social aggregator compete for, but it signals far more -- it signals that one is a generous tipper as well as a generous contributor of reccomendations. There are a variety of other ways (home or facebook pages, e-mail, etc.) that generosity signals might similarly be sent within a social circle.

Secondly, I'd add it to an existing aggregator rather than starting a whole new service from scratch.

Third, I'd add some extra security (cryptography, natch :-)

Fourth, I wouldn't try to aggregate "microtips." I think these will have the same kinds of problems that micropayments have. Instead, I'd make the tips nice round numbers in increments of 50 cents or a dollar. That makes it simple for people to keep track of their own tips and their friend's tips.

So here's how it might work:

Your client software (perhaps just a web page script) pays the tip (using an already existing system like PayPal) to the content provider, perhaps via the aggregator, and publishes a cryptographic proof that you made the tip. The aggregator verifies the proof (if it's not the payment intermediary it does this by cross-checking with the tipee), registers the vote, and shows that you made the tip. This signals to others both that the content is appreciated, that you are a generous tipper (thus transporting the social incentive to tip from dining out to the Internet), that you have good taste, and that you put your money where your digg vote is.

Optionally, it could publish a bit of HTML code on the tipper's own blog or home page, that links to the aggregator and shows how much a person has tipped. It could send out e-mails to the tipper's friends recommending the content and, along the way, informing the friends of the generosity of the tip.

If content tipping on the Internet will work at all -- and given the measurement problem of content it would be very nice if it would work - I think it's much more likely to work well if done in a social fashion like this.

Micropayments redux

Clay Shirky describes how micropayments proponent Scott McCloud seems to have thrown in the towel, and he points to my old micropayments paper. A few comments on Shirky's excellent description of the micropayments problem and on my old paper may be in order.

When I wrote that paper I thought of micropayments as payments of a granularity smaller than the 1 cent granularity of traditional prices, or very close to it. My prediction was that the granularity of payments on the Internet would be somewhat higher than traditional price granularity. This was in a response to the fascinating Digital Silk Road/Agorics idea that you could buy and sell IP packet transmission, memory space, and the like at unprecedentedly low granularities like a thousandth of a cent. There is basically no important computational transaction cost barrier to such payments, but I described mental transaction cost barriers that still have not been surmounted. The efforts of micropayment engineers focusing on computational rather than mental transaction costs were and are misguided.

So when the Post Office raises postage rates by 1 cent, or charges a few cents more for one class of mail than another, that's very close to what I thought of as a micropayment and is what I was predicting would be very hard (not impossible) to do productively on the Internet. But when iTunes sells a song for a dollar, regardless of how popular the song is, that's a price granularity that is sufficiently high to overcome mental transaction costs. Nowadays many people call even a dollar a "micropayment" because it's smaller than your typical credit card payment, and this muddles the issue. Paypal and some services like iTunes have shown that there's at least a significant niche market below typical minimum credit card payment, but it hasn't shown that micropayments of the kind I talked about are feasible.

I don't claim that price granularities of near 1 cent or below will never make economic sense on the Internet, but they do require a sophisticated attention to preference revelation and mental transaction costs that so far has generally been lacking. Something like micropayments, or at least low-granularity accounting, is happening on the advertising payment end rather than the consumer payment end. The business of selling eyeballs wholesale is much better able to automate the sophisticated accounting and auditing that is required for such schemes to work. Some proxy measures for eyeballs, e.g. based on "hits", have proven to be feasible when computers rather than humans can reliably do the counting at any granularity below thousands. Arguably some online games have also achieved low price granularities, although here payments are part of the entertainment value of the game (as in traditional games like Monopoly(tm)) rather than just a necessary transaction cost.

The extent to which iTunes and the like can compete with free content is another issue which Shirky describes well. This competition interacts with price granularity insofar as the mental transaction costs put a floor on content prices and competition from free content (artists seeking fame rather than money) puts a ceiling on content prices. Shirky plausibly argues that there is little or (ultimately) no room in between this floor and ceiling leaving little and perhaps ultimately no significant market for online content funded directly by the consumer.

Here are a couple more aspects of micropayments and price granularity I have long believed but I'm not sure I've sufficiently made clear:

(1) As more low-wealth people get on the Internet, price granularity will naturally fall as such consumers are generally willing to put more effort and attention into shopping per money saved. Much of the reason price granularity has been higher on the Internet is because its users have higher than average wealth. However, unlike point (2) below this effect is not very large and won't by itself get us below traditional price granularities.

(2) Where the mental transaction/preference revelation problem can be solved for high-wealth consumers at 1 cent granularity for a particular kind of Internet transaction, there is nothing magical about 1 cent, and it might well be easy to further reduce price granularity to a thousandth or a millionth of a cent. In that sense I'm a big fan of the agorics approach -- since "micropayments" has been taken to include much larger payments perhaps we could call them "nanopayments" -- and I hope I haven't overly discouraged people from looking at these fascinating and potentially quite lucrative and revolutionary possibilities.

Patent double whammy: Supreme Court smacks down Federal Circuit

Today was the probably biggest day in patent law since the passage of the 1952 Patent Act. By a unanimous (9-0) vote, the U.S. Supreme Court overruled decades of Federal Circuit holdings in the most controversial area of patent law, obviousness. And by a 7-1 vote, it ringingly re-affirmed the doctrine that U.S. legal language should be construed to not encroach on foreign jurisdictions unless it expressly does so -- implicitly criticizing the Federal Circuit's failure to respect foreign patent jurisdictions and reversing it outright in the area of software export.

You'd think that engineers, who make the vast majority of inventions, would be the most enthusiastic supporters of our patent system. But most engineers find our patent system problematic, and by far their greatest objection is the plague of trivial patents. This is largely governed by the statutory language forbidding "obvious" patents. This is a notoriously ambiguous word that gives rise to a notoriously subjective area of law. In an effort to provide clarity, the Federal Circuit in recent decades went beyond old Supreme Court precedent and set up a requirement that the patent challenger must show a "teaching, motivation, or suggestion" in the prior art to combine the patent claim's elements in order to show that a patent claim was obvious. It was not enough that common sense or the vast majority of engineers in the field found the patent to be trivial. The Federal Circuit's doctrine thus gave rise to a a flood of trival patents in exchange for achieving some objectivity and clarity. Today in KSR v. Teleflex, the Court rejected this tradeoff and argued that subjectivity ("common sense") should also be used to find patents obvious -- that the Federal Circuit's "teaching, suggestion, or motivation" requirement was far too strict. Instead, the Court held that common sense arguments could be made.

The Court also specifically held in KSR that instead of just looking at obviousness in the context of the problem the problem the patentee was trying to solve, "any need or problem known in the field or endeavor at the time of invention and addressed by the patent can provide a reason for combining the elements in the manner claimed." This provides a much needed expansion of the power to prove a patent obvious without decreasing the clarity or objectivity of the test. Along the same lines, the relevant prior art need not solve the same kind of problem -- the obviousness analysis should include elements from prior art even where that art solved different problems from those addressed by the current patent. Whether the changes to the prior art produce result that could be predicted by your typical engineer in the field (in patent parlance, a "person of ordinary skill in the art" or POSITA) is also strongly relevant -- if the function that results from changing or combining elements from the prior art is predictable by our POSITA, given what is already known about how those elements work individually, the claimed change to or combination of those elements is probably obvious. Unlike the "common sense" approach, the any-purpose and predictable-function tests are quite objective and clear, and I hope the Federal Circuit strongly and fully adheres to them in future obviousness cases.

I'm proud to observe that two of the professors whose patent classes I enjoyed the most, Professor Robert Brauneis and Professor John Duffy, helped KSR make its case for a broader and stronger obviousness standard that should become one of the strongest precedents ever set in U.S. patent law.

Also today in Microsoft v. ATT, the Court came out very strongly for the doctrine that, unless there is express language in U.S. statutes covering extraterritorial acts, U.S. patent law should be construed to not cover them. Seven Justices came out strongly in favor of strict construction in this sense, with only one dissent. Microsoft also holds that mere software instructions do not constitute "components" of patented products: only their specific physical instantiations do. The statutory language makes it an act of infringement to export "components" of patented products overseas that can be easily assembled into a product which if manufactured, sold, or used in the U.S. would infringe the U.S. patent.

Microsoft Windows had already been held to violate AT&T's patent when copied, sold or used in the U.S. When Microsoft snail-mailed a master disk of Windows code overseas, and when it sent Windows code overseas over the Internet, the Federal Circuit held that these acts constituted exporting "component(s)" of Windows and thus was also an infringement. Seven Justices disagreed with the Federal Circuit but differed a bit on just what constitutes a "component". Justices Ginsburg, Kennedy, Scalia, and Souter argued that a specific copy of code instantiated on the specific disk to be installed in the target computer is a component. Justices Alito, Breyer and Thomas disagreed, opining that only software when running on a computer constituted a component -- even the code residing on the specific disk to be installed into a specific computer does not. Only, surprisingly, Justice Stevens dissented that the export of a master disk in this case in itself constituted exporting "the functional equivalent of a warehouse of components" and thus a "component" under the statutory language. I agree with Stevens that software is more analogous to a player piano roll than to the notes on a sheet of music to which the plurality compared it, although I disagree with his conclusion. In the case of a player piano roll and software the human mediated in their execution is trivial -- simply starting up the machine so that the instructions can be copied from the roll or disk and executed on the machine, whereas the blueprints and sheets of music cited by the majority are human- but not machine-interpreted design documents.

A 19th century player piano ready to play the instructions on its paper roll.

Stevens is right about the analogy, but he misses the point correctly emphasized by the majority -- that statutes are to be construed narrowly to avoid encroaching on extraterritorial jurisdiction. This doctrine argues strongly for not assuming that Congress meant "component" to include anything more than physical parts -- it does not include mere instructions even when those instructions can be automatically executed and constitute the practical entirety of the invention. The majority also pointed out an important policy consideration that Congress probably did not consider: that it might be impossible for the exporter of software to control subsequent overseas acts of copying and use that constitute infringement, and thereby problematic to hold said exporter liable for it, whereas in the case of physical parts the degree of infringement is strictly limited by the number of parts exported.

The Court's ringing restatement of the doctrine that U.S. statutory law be construed to not encroach on extraterritorial jurisdictions could have implications in a number of areas such as the Federal Circuit's holding that foreign sales will not be recognized under the first sale exhaustion rule and cases where the patent's components, for example network nodes, reside in several countries, rather than in a single country. In Jazz Photo the Federal Circuit held that it would act as if sales that occurred outside the U.S. simply didn't occur -- rather like holding that your purchase of a car in Canada cannot be recognized in the U.S., so that you have no right to complain if it is stolen. In the infamous Blackberry case, it held that, because one of the components of RIM's network and RIM's Blackberry wireless e-mail users were located in the U.S., RIM infringed the U.S. patent, even though most of the functionality that violated the patent was located at a relay station and server farm in Canada. The patent challenger in that case had the same option the Court said AT&T had in this case -- to get a Canadian patent and protect its rights in Canada. Instead, it obtained only a U.S. patent and used that patent successfully in the Federal Circuit to attack foreign activities more properly addressed under Canadian jurisdiction. There are many other cases where the Federal Circuit has short-shrifted foreign patent jurisdiction and I hope today's ringing call to respect these jurisdictions will be heeded by the Federal Circuit and that it will thus revisit many of its relevant holdings.

Chief Justice Roberts, a great fan of achieving unanimity in order to boost the authority of the Court, was able to create unanimity here in a barely disguised effort to teach the Federal Circuit that it, and not the Federal Circuit, is the Supreme Court in patent law as elsewhere. The Federal Circuit hears the vast majority of patent appeals and for decades it has acted as the de facto supreme court of patents. In those rare cases where the real Supreme Court spoke on patents the Federal Circuit often construed its holdings quite narrowly and continued on much as before. Roberts' ability to create unanimity in KSR and near unanimity in Microsoft will hopefully go a long way towards persuading the Federal Circuit to more closely and fully follow Supreme Court precedents in the patent field.

I'll probably have much more to say about these two landmark cases in the future.

Here are the full opinions:

KSR v. Teleflex
Microsoft v. AT&T

Here are some relevant old blog posts of mine:

On KSR v. Teleflex
On the Blackberry transnational infringement case
On the first sale exhaustion rule

The trouble with science

Science has revolutionized life since at least the age of exploration, through the industrial revolution, and to an unprecedented degree in the 20th century. Science generally, and physics in particular, got a vast boost in credibility and in government funding following the ability of physicists to develop weapons of unprecedented power in the Manhattan Project. Scientists and their engineering brethren also developed modern electronics, sent men and machines into the cosmos, and much else that would have seemed like miracles and prophecy in prior centuries. Sciences such as psychology and evolutionary theories of behavior have at least potentially revolutionaized our understanding of ourselves. Now we have a large number of self-styled "social sciences" that attempt to understand social behavior and societies through scientific methods. Instead of priests prophecying and invoking miraculous thunderbolts through mumbo-jumbo, our modern scientific priesthood helps create real technology and tells us what to think about social systems and political options by what seems to most people (and even to most scientists outside the particular specialty in question) equally mystical mumbo-jumbo.

This scientific elite is supposed to be all quite different from the priesthoods of old because it is supposed to adhere to scientific methods rather than superstition and dogma. The scientific method developed from several sources, but one that is particularly interesting is the law of evidence in medieval and Renaissance Continental Europe. In English law, issues of fact were (and are) determined by a jury and the law of evidence is all about the general biases of juries and thus what lawyers are and are not allowed to present as evidence to them -- the basic rule to overcome juror bias being that the relevance and integrity of the information must outweigh its potential to prejudice the jurors. But in the neo-Roman law that dominated the Continent from the Late Middle Ages to this day, juries were rare and judges determined issues of fact as well as law. Thus there developed in Continental law elaborate doctrines about how judges were supposed to weigh factual evidence.

Many Renaissance and Baroque era scientists, such as Galileo, Liebniz, and Pascal, had legal training and this Continental law of evidence was reflected in their methods. Most other early scientists had been exposed to law-derived doctrines simply by attending universities many of whose doctrines derived from the original universities which were essentially law schools. Soon, however, the scientific community was independently evolving its own cultural norms from this starting point. The ideal was to seek the truth. Experiment became the sine quo non of scientific credibility, along with mathmetical rigor and important applications in navigation, engineering, and medicine. Scientific funding came from a variety of sources; when governments funded scientists they were expected to solve important problems such as those raised by navigation of the seas, not merely to theorize. After the Englightenment governments started to separate themselves from the social dogmas of their day -- religions -- by making secularizing government and allowing freedom of religion.

Today a wide variety of important political issues are dominated by ideas from scienitific communities (or at least communities that style themselves as scientific): economists, climate scientists, and many others. But there is no separation of science from government. Like the state-sponsored religions of yore, most modern scientists derive both their education and their ongoing livelihood from government funding of the theories with which they are taught and on which they work.

The old state-sponsored religions, and the resulting ideas about politics and society, were funded by governments. Not surprisingly, as such governments took over religion it became sacreligious to criticize the importance of government generally and often specific governmental institutions in particular. Under the nationalizers of dogma such as Henry VIII, who nationalized the lands and priests of the Catholic Church in England, "render under Caeasar" became more important than "render under God." Despite the advantages of better funding these state-sponsored sects have been in decline ever since governments stopped otherwise suppressing their competitors. The state sponsored churches mostly taught uncritical worship of authority whereas their private competitors added much more spiritual value to their adherent's lives.

The simplest science is physics. In some sense all other sciences are just a variety of complex models of what happens when various kinds of complex physical systems interact. Physics itself is the simple core of science. Thus physics has been hailed as the "hardest" of the "hard sciences" -- sciences where evidence trumps bias and the truth always outs sooner or later, usually sooner, despite the biases of the individuals or institutions involved. Hard scientists will often admit that the use of the scientific method in "soft sciences" such as economics and other intersubjective areas can be problematic and subject to great bias. If any science can rise above self-serving biases and efficiently search for the truth, it should be physics.

But the recent history of physics casts some rather disturbing shadows on the integrity of even this hardest of sciences. Lee Smolin in The Trouble with Physics lays out a picture of an unprecedented group of geniuses, the string theorists, who have wasted the last twenty years, largely at taxpayer's expense, basically producing nothing except a vast number of highly obscure but, in certain senses, quite elegant theories. The number of possible string theories is so vast that string theory can, like "intelligent design," explain anything -- it is unfalsifiable. It is "not even wrong," to take Wolfgang Pauli's phrase about an earlier unfalsifiable theory of his era. String theory's main rivals over the last two decades are not much better. Theoretical physics for the last twenty years has mostly not been science at all, but rather has been a large group of geniuses working on their own cabalistic variety of sudoku puzzles at taxpayer expense in the name of science.

If this is the state of physics -- if even the hardest of sciences can be taken over by a thousand-strong cabal of geniuses who produce nothing of value except wonderful-sounding untestable theories whose main success has been in garnering their community more of our tax dollars -- what hope do we have that government-funded climate scientists, economists, and others purporting to do science in areas far more complex or subjective than physics are actually producing relatively unbiased truths? If we took a poll of theoretical physicists, they might well have (up until quite recently) reached a remarkable degree of "consensus" on the truth of string theory -- just as global warming scientists have reached a "consensus" on global warming and (it is implied) on the various bits of the speculative nonsense surrounding global warming. Does such consensus mean us lay people should automatically believe this consensus of experts? Or should we demand more? Shouldn't we rather, when deciding on which theories or predictions of climate science or economics to believe, act like a Continental judge or a common-law jury and demand to actually see the evidence and weigh it for ourselves? Shouldn't we demand to hear from the defense as well as from the prosecution? Experiment, multiple points of view, and critical analysis are, after all, the real scientific method -- as opposed to the ancient religious method of uncritically trusting a single hierarchy of experts.

Today's ideas about politics and society -- "scientific theories" if you agree with them, "dogmas" if you don't -- are funded by the very governmental entities that stand to benefit from increased government power. Just as it was taboo under Henry VIII to "deny" the authority of either Christ or the King, it has now become taboo in many of these modern intellectual communities to "deny" a variety of scientific theories that are now supposed to be "beyond debate," not just things like the basic idea of global warming caused at least in part by anthropogenic carbon dioxide(which this author finds sound and quite probable, but nevertheless believes should remain like all true scientific theories open to further inquiry and debate) but also the variety of extreme speculations that have grown up around it (regarding the severity of storms, projections of droughts, floods, etc., most of which are pseudoscientific nonsense).

I'm hardly the only person who recognizes this problem with science. Indeed, the opinion expressed above is quite mild compared to an increasing number of conservatives who are coming to reject big chunks of good science along with the bad -- not just the many florid speculations surrounding global warming, but global warming itself, evolution, and other products of the expert priesthood that threaten long-established (and often, ironically, highly evolved) beliefs. Conservatives, and more than a few libertarians, feel that modern science is becoming increasingly dominated by government funding and thus becoming dominated by the interests of government in gaining more dominance over our lives. With opposing ideas increasingly unable to access to this research and education funding themselves, the easiest way for those opposed to increasing state power to effectuate their beliefs is to reject the theories of the scientific communities that promote this power.

This, and not sheer cave-man irrationality, is why many conservatives are increasingly throwing out the baby with the bathwater and rejecting science generally. Both trends -- the increased government dominance over science and the increasing rejection of science generally by those who oppose increased government controls which scientists increasingly promote -- are disturbing and dangerous. Science, once a method of weighing evidence that called for the opinions of both prosecution and defense, is increangly being dominated by the prosecution.

We need a return to science with a diversity of funding and thus a diversity of biases. This is much more important to the health of science than the absolute level of funding of science. Reducing government funding of science would thus increase the quality of science -- by making the biases of scientific communities more balanced and thus more likely to cancel each other out, just as the biases of the defense generally cancel out the biases of the prosecution. Where government does fund science, it should demand strict compliance to the basic evidentiary principles of science, such as falsifiability. All government-funded theorists should be required to design experiments that can be conducted relatively inexpensively and in the near future, that would strongly tend to verify or falsify their proposed theories. More speculative theories -- such as those that rely on unobserved or worse, unobservable entities -- simply should not be funded by governments. There are a wide variety of private entities that are happy to fund such speculations; this variety of funding sources is more important to reducing bias the further one gets away from strictly controlled experiment. Any time government funds science we should ask, does the utility of the potential discoveries and the integrity of the scientific methods being used -- their ability to find the truth even in the face of high institutional bias -- outweigh the potential for the funding by one dominant source to prejudice the opinions of the fund recipients?

Science has benefited our lives in incalculable ways for many centuries. Increasingly we inform our political decisions with the discoveries and theories of science. As sciences ranging from climatology to economics play an increasing role modern politics, this task of building a wall of separation between government and science -- or at least not allowing states to sponsor particular scientific theories at the expense of others with comparable weights of evidence, and not allowing states to fund some biased speculations at the expense of others -- is one of our most important and urgent tasks. If we are to remain living in democracies we voters must learn once again to weigh some of the evidence for ourselves, even if this means we gain our understanding through the lossy communications of popularizers. It does not work to trust a theory, no matter how scientific it may sound, based on a "consensus" or "lack of debate" among experts who mostly derive their funding from a single biased source. We democratic jurors must demand to hear from the defense -- really from a variety of parties whose biases largely cancel each other out -- rather than from just the prosection. We must redesign our scientific institutions to minimize the biases that come from a single dominant source of funding if we are to achieve good solutions to our important problems -- solutions that are not dominated by the biases of that dominant entity.

The nature of suicide terrorism

Here is a good book review of Robert A. Pape's Dying to Win: The Strategic Logic of Suicide Terrorism. Pape has done extensive research on suicide bombers and concluded that the main motivation is not poverty or religion but nationalism. (Note that Pape and I are using "nation" to refer to supra-tribal ethnic groups which share at least a common language and common political ambition to run its own government, not necessarily to existing or historical states). Pape shows that suicide terrorism springs from perceived or actual occupations of one national group by a different and democratically governed one: Sri Lanka and India of Tamil regions (the Tamil Tigers), perceived Western proxy governments of Sunni Arab countries (Al Qaeda), a Shiite government allied to the U.S. invaders of Sunni areas in Iraq (Sunni insurgency), Israel of the Palestinian occupied territories (Hamas), etc. The strategic logic (as I liberally interpret Pape's theory) is that the suicide bombers credibly signal policymakers in democratic governments that the the national group cares far more about the conflict than the occupiers do -- and therefore are willing to sacrifice far more and make life far more difficult for occupiers. Pape points out that (at the time of writing of the book) the most suicide bombers came not from Al Quaeda or any other arguably religious terrorist group, but from the Marxist-Leninist (and thus atheist) Tamil Tigers. It can of course be argued that Marxism itself is a kind of religion, but at least Paper debunks the shallow idea that afterlife promises a la the "seventy virgins" are a necessary motivation for suicidal terrorism. I'd add that suicide terrorism grows from cultures that de-emphasize individualism -- thus the lack of, for example, ethnically European suicide bombers, but the historical existence of Middle Eastern and Japanese suicide fighters which Pape describes. We individualists have not been able to understand suicide bombers; they just seemed inexplicably crazy. Pape's analysis is an excellent antidote to this ignorance.

The movie "Jesus Camp" shows a fundamentalist Christain group trying to inculcate in their children the idea that Christians should also be willing to make extreme sacrifices in the cause of Christian crusade against Islam. If the West insists on occupying non-individualist national groups (for example most of the nations subscribing to Islam or Marxism), something like this indeed probably is necessary to be successful. But Christianity, with its emphasis on the individual soul, and the rest of the Western tradition is far too individualist for this (and for other reasons, which far outweigh the terrorist problem, this is a very good thing).

The lesson for Western foreign policy? (1) don't occupy non-individualist regions -- the costs will be far more expensive then we can imagine -- although you'd think we would have already learned this from the Vietnam and current Iraqi experiences; and (2) if you already are in such an occupation, the basic choices of remaining or leaving are both very expensive -- the former because it continues to motivate extreme nationalist ire, and the latter because it encourages national groups elsewhere by showing that suicide terrorism succeeds in its objectives. It's like paying off a kidnapper, which frees the current hostages but makes future kidnappings more likely. Withdrawing from occupation removes a current source of ire but shows national groups elsewhere that suicide terrorism is the best way to achieve the objectives of otherwise powerless nationalities.

This Hobson's choice reinforces why a decision to occupy is so expensive in the first place. We are no longer in a situation in which it's our literate and culturally unified armed forces against their illiterate and culturally and politically divided tribe, as during the era of colonization. Instead it's our literate and unified nations against their literate and unified nations, the only big differences being our mere superiority on a traditional battlefield and their much higher motivation and collectivism, and thus their much higher willingness to sacrifice individuals for the cause of the large national group. Occupation of national regions that have not yet been thoroughly Westernized (or are not otherwise individualistic) is no longer a politically viable use of force in our world. If we wish to convert collectivist nations to Western democracy, individualism, Christianity, or whatever else we'd like to teach them, our best strategy is to just use our dominant Western economy and media to be, as Reagan put it, a "Shining City on a Hill". That's how we brought down the Marxist and nuclear-armed Soviet Union. Focus on defending our own freedoms instead of trying to impose them, set a good example, and let the collectivists peacefully come to realize the advantages of individualism.