Tanstaafl

What do a libertarian society and its laws look like? Thoughts on Robert Heinlein’s The Moon Is a Harsh Mistress

I have recently ― and, needless to say, very belatedly, for a self-proclaimed science-fiction fan ― read Robert Heinlein’s The Moon Is a Harsh Mistress. I had been put off of Heinlein by Isaac Asimov’s somewhat harsh take on him in his memoir, I. Asimov, just as I’ve been forever put off Sartre by Boris Vian’s portrayal of him as Jean-Sol Partre. No regrets so far as Sartre is concerned, but I am glad I got over my aversion to Heinlein. The Moon Is a Harsh Mistress is an interesting book. Interesting enough, from a legal perspective, that I think it deserves a post here.

In a nutshell, the story is a retelling of the American Revolution, but set on the Moon, a.k.a. Luna, in 2075-76. The lunar population is oppressed by the Authority that supposedly runs the place on behalf of the Earth’s governing “Federated Nations”, but is mostly content to just plunder it by banning free trade and underpaying for the sole export ― grain (hydroponically grown) ― and overcharging for imports. Otherwise, the “Loonies”, most of whom are either transported convicts ― some actual criminals, others political undesirables ― or descendants of convicts, are largely left to their own devices, and become resentful of the Authority’s interference and exploitation. When the Authority tries to put an end to low-level grumbling, things quickly get out of control. Thanks to their courage, self-reliance, and the good fortune of having a fearsomely brilliant self-aware computer (I suppose we would now say AI) on their side, the rebels prevail, though not without considerable loss in the end.

The interest of such a book is, of course, primarily in its representation of a society very different from ours. (I am deliberately echoing the title of David Friedman’s Legal Systems Very Different from Ours, to which I will return.) The difference has little to do with technology ― indeed, on that front, The Moon Is a Harsh Mistress is just one of the many examples of science fiction Golden Age’s writers’ utter failure to anticipate the advances in computing and telecommunications that have occurred in the last 35 or so years. Heinlein’s Luna is a place of fixed (should one say moonline?) phones! What does make it different from 1960s and 2020s, Earth is its having had to adapt to an unforgiving environment, the virtual impossibility for its inhabitants to return “Earthside” where they are crushed by gravity, their lack and suspicion of organized government, and the sex imbalance that one might expect in a penal colony.

Heinlein’s lunar society is a libertarian one, and it is very odd, and unsettling in some ways ― seemingly high prevalence of illiteracy and very early marriages among others. In other ways, though, it is far ahead not only of the time of the book’s publication (1966) but even of ours, especially in its absolute intolerance of what we today might refer to as #MeToo abuses ― touching a woman without her consent, in however minor a fashion, might get a male Loonie “eliminated” at the nearest airlock. (The ready acceptance of the death penalty is another unsettling aspect of the place.) And while Heinlein’s vocabulary sometimes is antiquated, and he does fall into some annoying tropes more in tune with his times than ours, there is no question that his Loonies also have no time for, and indeed no concept of, racial bigotry ― though I suspect that they’d have no time for latter-day progressive identity politics too.

One might wonder, of course, whether Heinlein’s social prognostication is any more lucid than the technological sort. Perhaps a more or less anarchical society with a sex ratio severely out of whack will actually be a hell hole, not the creative and resilient if also deeply weird kind of place The Moon Is a Harsh Mistress depicts. But you know what? People with more conventional views get their fairy tales told to them by gaggles of politicians at every election campaign. If that has a value, then so does libertarian science-fiction. At least, we’re not about to get a Prime Minister Heinlein imposing his views on the rest of us just because we hated him a little less than the other guy. And the fundamental maxim of lunar libertarianism ― there ain’t no such thing as a free lunch, or tanstaafl for short ― is something that we would all do we well to keep in mind.

Still, I do want to pick a fight with Heinlein on one thing: his views of law and perhaps adjudication. The latter, like most everything else in Luna, is done privately, and often as a matter of improvisation. A citizen is simply asked to “go judge” and accepts, for a fee of course ― tanstaafl ― paid equally by both parties to the dispute. A few make this something like a part-time occupation, but there is no professional judiciary, just as there are no lawyers. And there are no laws. The protagonist speaks derisively of

an earthowrm [who] expects to find a law, a printed law, for every circumstance. Even have laws for private matters such as contracts. Really. If a man’s word isn’t any good, who would contract with him? Doesn’t he have reputation?

He adds that, instead of “printed laws”, Loonies

[h]ave customs [that] aren’t written and aren’t enforced ― or could say they are self-enforcing because are simply way things have to be, conditions being what they are. Could say our customs are natural laws because are way people have to behave to stay alive.

(Note that the lack of articles and pronouns in the quotations isn’t a typo or an accident: the Loonies’ English has a bit of a Russian accent. I wonder if non-Russian speakers will find it annoying, but it is mostly well done and I was rather impressed.)

Heinlein’s protagonist has a good understanding of natural law: see, for example, Randy Barnett’s explanation of natural law as a set of principles such that “[i]f we want persons to be able to pursue happiness while living in society with each other, then they had best adopt and respect a social structure that reflects these principles”. (657; emphasis removed) But he doesn’t seem to understand something that actual natural lawyers have always recognized: the natural law principles aren’t enough. To be useful, at least in a large-scale society, they need to be implemented and given relatively specific shape, which is what “printed”, or at least positive, laws are for. Natural law principles might lead us to the conclusion that we must make up for the losses we negligently cause, but not necessarily tell us what counts as negligent, or how to assess the compensation. Reputation can work to secure the performance of contracts among people who know one another, but it is of less help when we deal with strangers, nor does it necessarily assist us in figuring out what to do about a bargain that has been upended by a change of circumstances.

All that is not to say that the laws must necessarily be the work of a legislature or some other centralized, governmental institution. Perhaps, but that case must be made separately. As Bastiat pointed out in The Law, it is wrong to think that if something is not provided by the state it will not be provided at all, and this may well be as much of a mistake in relation to laws themselves as to other things. Perhaps laws can be efficiently supplied by institutions involved in a competitive marketplace ― indeed, it might not be too much of a stretch to say that the early development of the common law by royal courts competing with other kinds of courts looked a bit like that, though to be sure it wasn’t exactly a free market.

Conversely, though, thinking that there ought to be no state, or a minimal state, or a state that doesn’t seek to monopolize the law, doesn’t mean that one can do without laws ― or without lawyers and professional judges. Even among those of the “legal systems very different from ours” Professor Friedman describes that are not state-based, many rely on professionals for adjudication and sometimes legal representation. It is tempting to think, as Heinlein’s protagonist seems to think, that lawyers and professional judges are only a drain on society, but they ― like all other specialists ― are only a manifestation of the division of labour. If laws are necessary, and they are, and complicated, and they are too, then it is more efficient to let them be handled by people who specialize in this. On this point, Heinlein, or at least his character, fails to apply their own cardinal rule: one cannot have the benefits of a sophisticated legal system without some inconvenience: tanstaafl.

This critique notwithstanding, I do think that The Moon Is a Harsh Mistress is an interesting and worthwhile attempt to think through the working of a libertarian society and its (inevitable?) conflict with a statist neighbour. It might come short in dealing with any number of specific aspects of these problems, but the attempt is hardly less valuable despite this. So let me conclude by quoting the appeal of another of the principal characters to the lunar constitutional convention ― it is one that we would do well to take seriously in our own thinking about constitutions:

[I]n writing your constitution let me invite attention to the wonderful virtues of the negative! Accentuate the negative! Let your document be studded with things the government is forever forbidden to do. No conscript armies … no interference however slight with freedom of press, or speech, or travel, or assembly, or of religion, or of instruction, or communication, or occupation … no involuntary taxation. … What I fear most are affirmative actions of sober and well-intentioned men, granting to government powers to do something that appears to need doing.

In Memoriam, Boris Strugatsky

Boris Strugatsky died on Monday in Saint-Petersburg, aged 79. The Guardian has an obituary which conveys something of his and his brother Arkady’s importance to Russian culture. The Strugatsky brothers are―are, since the books remain―among my favourite writers. I want to say something about them here. I have sometimes mentioned science-fiction on this blog, especially here and here, though not always seriously. But the Strugatskys were masters of philosophical science-fiction, who did some very serious thinking on political (and also moral) philosophy, so as you will see, I am not straying off-topic and writing about them.

Though they wrote about many things, from satires on bureaucracy such as The Tale of the Troika to meditations on life, the universe, and everything such as Definitely Maybe (the Russian title of which translates as A Billion Years before the End of the World) and Roadside Picnic, perhaps their most famous novel (and the only one that seems easily accessible on Amazon, including on Kindle), which was made into the movie Stalker by Tarkovsky. But one of their recurrent themes was intervention by one civilization into the affairs of another. This, obviously, is political philosophy, and very topical too, given the events of the last couple of years in Libya, Syria, and elsewhere (and so many other places before).

One virtue of the Strugatskys’ oeuvre is that they look at intervention, and ask the question of its permissibility, from many different angles. They look at representatives of an advanced, benevolent civilization (the Earth’s, as they dream it in some not very distant future) thrust by choice or accident in the midst of repression and despair of a dictatorship, in Hard to Be a God and Prisoners of Power (the Russian title translates as The Inhabited Island). They look at a representative of a civilization apparently mired in misery and war who is brought to the advanced and benevolent―and to him, incomprehensible and hostile―Earth, in The Kid from Hell. And then they look at the representatives of the Earth’s advanced and benevolent civilization, used to hurrying progress of those less fortunate than their own, confronting first the possibility and then the certitude of an even more advanced civilization apparently trying to hurry the progress of their own, in Beetle in the Anthill and The Time Wanderers (the Russian title translates as The Waves Extinguish the Wind).

Another virtue of the Strugatskys’ reflection on this topic is that they leave the reader free to work out answers for him- or herself. Their books are ambiguous―frustratingly so sometimes, but it is good frustration. If there is one thing about which they had no doubts, it is the importance of thinking for oneself. They were content to ask questions―brutally difficult questions―and did not seek to impose answers.

Their books are good reads―sometimes haunting, sometimes vivid, full of appreciation for the mystery of the universe. Sometimes hilarious, though the humour is often sardonic. If you prefer getting your philosophy in the shape of good literature rather than dry disquisitions, do try to read them. As Goethe’s Mephistopheles pointed out, Grau, teurer Freund, ist alle Theorie/Und Grün des Lebens gold’ner Baum―all theory, my friend, is grey, and green the golden tree of life.

Life will be a little more grey though, without the Strugatskys.

A Person Yoda Is?

In today’s Legal Theory Lexicon entry on “Persons and Personhood”, Larry Solum suggests that if

an intelligent alien species were to arrive on Earth … [and] the members of the aliens displayed evidence of human-like intelligence and could communicate with us (e.g. were able to master a human natural language, such as English), then we might be tempted to treat members of this species as morally and/or legally entitled to the same rights as humans.

He also gives the example of “Chewbacca and Yoda in the Star Wars movies. Neither Chewbacca nor Yoda is a member of the species homo sapiens, yet both are treated as the moral and legal equivalents of humans in the Star Wars universe.”

As it happens, the issue whether aliens able to communicate with us should be entitled to legal personality has in fact been raised in a Canadian Court. In the case of Joly v. Pelletier, [1999] O.J. No. 1728 (QL), Justice Epstein of the Superior Court of Ontario granted the defendants’ motion to dismiss on the ground that the plaintiff, who claimed that he was not a human being but rather a Martian whose DNA test results were being tampered with by the CIA, Bill Clinton, and sundry others, was not a person, and therefore not capable of being a “plaintiff” within the meaning of Ontario’s Rules of Civil Procedure!

For what it’s worth, I think that Professor Solum is right, and Justice Epstein, rather too formalistic, albeit quite amusing. But this raises further questions. If an individual intelligent alien is a person, what about collective intelligences, whether made up of insects (as in Isaac Asimov’s short story “Hallucination“) or bacteria (as in Asimov’s novel Nemesis)? What about a collective artificial intelligence (as in Stanislaw Lem’s novel The Invincible)? And perhaps most importantly: could any alien crazy enough to turn up on Earth these days be considered intelligent?