| ENVOYS OF MANKIND A Declaration of First Principles for the Governance of Space Societies George S. Robinson & Harold M. White, Jr. Gene Roddenberry (Prologue) Washington, DC: Smithsonian Institution Press, 1986 |
Rating: 4.0 High |
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| ISBN-13 978-0-87474-820-8 | ||||
| ISBN 0-87474-820-8 | 292pp. | HC | $? | |
The modern tendency in legislatures is to enact what the authors call anticipatory codes. (A better term in my opinion would be prescriptive law as opposed to descriptive. At bottom, the conflict between these approaches harks back to that between statist and dynamist approaches to life, as elucidated by Virginia Postrel in The Future and its Enemies.) The prime example relevant to this discussion is what is commonly called the Outer Space Treaty. In order to forestall "land rushes" and the resulting territorial conflicts, the Outer Space Treaty simply invalidates any property rights on celestial bodies.
Common law, by contrast, operates on a case-by-case basis. But let the authors describe it (pages 158-9):
The common law developed in England during the two hundred years following the Norman Conquest of A.D. 1066. Yet its roots were even deeper in history. The genesis of common law can actually be traced to the remotest fringes of the Roman Empire, to a region of Germany now known as the state of Schleswig-Holstein. Here on the shores of the North Sea lived a collection of primitive tribes, the Angles, Saxons and Jutes, who practiced a form of government that anthropologists think may have been characteristic of many hunting-and-gathering peoples. When these tribes emigrated from their homelands to the inviting meads of Roman Britain, their ancient traditions of folk assembly and local government went with them. |
Common law was, and often still is, considered discovered law. The judge does not just create the law or simply adjust it to particular situations. He also, in a sense, finds the underlying law, the just and ethical solution, which is derived in the light of each particular set of facts or each individual situation. This has led some attorneys of the civil law tradition to assert that the common law is "the law nobody knows" because it is not neatly and precisely spelled out in anticipatory statute books or administrative edicts. It is laid in a mosaic, case by case, through years of published court decisions. Common law is still largely the latent, undiscovered law, awaiting the discovery of further elements of the ideal state of justice. |
Perhaps this is why many who have been schooled in the deductive and empirical traditions of civil law think it necessary to spell out, early on, a comprehensive law of outer space in order to preserve public order, prevent militarization, and ensure equitable sharing of the available resources. These are all laudable goals, of course, but anticipatory codes often tend to be rigid, unresponsive, and quickly outdated. This seems particularly likely in a rapidly changing environment. While there may be a need for codes to guarantee the observance of human rights and to lay ground rules in case of international conflict, there will be a particular need for organic, indigenous systems for use in the governance of people in space — by people in space. |
There will be a need for self-determination in space, for the right of indigenous inhabitants to develop their own approaches to justice and right reason on the basis of their own unique circumstances. Thus, we should be extremely careful in our initial legal constructions not to preempt the ultimate rights of spacekind. We must not impose our view of what has not yet happened on a group of people who do not yet exist, at least in the eyes of the law. |
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