Civilization and the Rule of Law

We’ve talked about how the Star Trek-Star Wars divide reflects preferences for a more lawful or more chaotic world; how F&SF stories often show us a defense of civilization against chaos; and how civilization makes science possible and rests in turn on human technology.  But both order and technology can be oppressive.  The missing element is the rule of law.

Universal Laws

It’s a crucial element of right governance that there are rules applying to everyone, as opposed to the arbitrary wishes of a dictator, who can make decisions based on favoritism, political preferences, or personal relationships.  The Wikipedia article describes rule of law as “the legal principle that law should govern a nation, as opposed to being governed by decisions of individual government officials.”

Rule of Law pyramid

(Rule of Law Institute of Australia)

As we saw in The Good King, the concept of the rule of law goes back at least to Aristotle.  It became a central principle of the American founders via the English tradition of John Locke.  “Rule of law implies that every citizen is subject to the law, including lawmakers themselves” (Wikipedia again).  It is thus in tension with kingship, where rule is almost by definition arbitrary and personal.  But one can have mixed cases—kings who are bound by certain laws, as in the British constitutional monarchy.

Without the rule of law, we depend on the good behavior of those who have power of some sort—physical, military, economic.  We slide toward the “war of each against all,” where might makes right and the vulnerable are the pawns of the strong.  Autocracy soon follows, as people look for any means to find safety from those who are powerful but unscrupulous.  Hence the quotation from John Christian Falkenberg, which I’ve used before:  “The rule of law is the essence of freedom.”  (Jerry Pournelle, Prince of Mercenaries (New York:  Baen 1989), ch. 21, p. 254.)  Strength itself, a good thing, is only safe under laws.

Test Cases

It’s easy to miss the importance of the rule of law.  We’re typically born into a society with better or worse laws, and criticize them from the inside.  It’s less common to find ourselves in straits where lawfulness as such has collapsed.  Regrettably, sizable numbers of people are exposed to such conditions in the world today.  But many of us are fortunate enough not to see them ourselves.  As always, fantasy and science fiction provide useful “virtual laboratories” for examining the possibilities.

Tunnel in the Sky (audiobook) coverA classic SF case is where a group thrown into a “state of nature” attempts to set up a lawful society.  For example, in Heinlein’s Tunnel in the Sky (1955), students from a high-school class on survival techniques are given a final exam in which they are dropped onto an unspecified planet to survive for up to ten days.  When an astronomical accident leaves them stranded, they need to organize for the long term.  Rod Walker, the hero, becomes the leader-by-default of a growing group of young people.  The tension between this informal leadership and the question of forming an actual constitution—complete with committees, regulations, and power politics—makes up a central theme of the story.

David Brin’s post-apocalyptic novel The Postman (1985), later made into a 1997 movie with Kevin Costner, illustrates the power of civil order, the unstated practices of a culture, as recalling—and perhaps fostering—the rule of law.  The hero, a wanderer who happens to have appropriated a dead postman’s uniform and mail sack, presents himself as a mail carrier for the “Restored United States of America” to gain shelter in one of the isolated fortress-towns, ruled by petty tyrants, that remain.  His desperate imposture snowballs into a spreading movement in which people begin to believe in this fiction, and this belief puts them on the road toward rebuilding civilization.  The result is a sort of field-test not only of civil order and government, but of what Plato famously imagined as the “noble lie.”The Postman movie poster

Last time, I cited Niven & Pournelle’s Lucifer’s Hammer (1977), where a small community headed by a United States Senator hopes to serve as a nucleus for reconstructing civilization after a comet strike.  We see at the end the strong pull of personal rule or kingship:  as the Senator lies dying, the future of the community will be determined by which of the competing characters gains the personal trust and endorsement of the people—and the hand of the Senator’s daughter, a situation in which she herself recognizes the resurfacing of an atavistic criterion for rule.  Unstated, but perhaps implicit, is the nebulous idea that deciding in favor of scientific progress may also mean an eventual movement back toward an ideal of rule by laws, not by inherited power.

Seeking a Balance

The “laboratory” of F&SF is full of subversions, variations, and elaborations on the rule of law.  In particular, we should note the counter-trend previously discussed as “chaotic good.”  Laws can be stifling as well as liberating.

The Moon is a Harsh Mistress coverHeinlein’s The Moon Is A Harsh Mistress (1966) imagines how the “rational anarchy” of a lunar prison colony is mobilized to throw off autocratic rule.  The healthy chaos of the libertarian Loonies is hardly utopian, but the story does make it seem appealing.  Interestingly, Heinlein returned to this setting with a kind of critique twenty years later in The Cat Who Walks Through Walls (1985), where the post-revolution lunar anarchy seems much less benign, seen from an outsider’s perspective.

While fantasy seems to concern itself with this issue much less than science fiction, consider the region called the “Free Commots” in Lloyd Alexander’s Chronicles of Prydain.  When protagonist Taran visits this area in the fourth book (Taran Wanderer), he finds a society of independent villages, where the most prominent citizens are master-craftspeople.  They neither have nor need a lord to organize them.  The Commots contrast favorably to the feudal or wilderness regions through which Taran travels.  A kind of anarchic democracy, as an ideal, thus sneaks into what otherwise seems to be a traditional aristocratic high fantasy.Taran Wanderer book cover

One way of managing the tension between a government of laws and a culture of liberty is the principle of subsidiarity:  the notion that matters should be governed or controlled at the lowest possible organizational level where they can be properly handled.  It’s frequently illustrated in G.K. Chesterton’s ardent defenses of localism.  In The Napoleon of Notting Hill (1904), extreme localism is played for laughs—“half fun and full earnest,” to borrow Andrew Greeley’s phrase.  The more mature Tales of the Long Bow (1924), which might qualify as a sort of proto-steampunk story, treats the idea more seriously, in the form of an oddly high-tech (for 1924) revolt of local liberty against overweening and arbitrary national rule.

The Fragility of Civilization

When we grow up taking for granted the rule of law, we can fail to see how vulnerable it is—along with the civilization that it reflects and makes possible.

“The Establishment,” as they used to say in the 1960s, seems vast and invulnerable.  When we’re trying to make a change, it seems insuperable, so rigid that nothing can be done about it.  But this is an illusion.  The structure of civilization, good and bad, is fragile.  It’s easier than we think to throw away the rule of law, so painfully constructed (as Rod Walker found), in favor of shortcuts or easy answers to our problems.

One thing F&SF have brought us is a better sense of this vulnerability.  The spate of post-apocalyptic tales in recent years—zombie apocalypses, worldwide disasters, future dystopias like The Hunger Games, going all the way back to the nuclear-war stories of the 1950s—do help us appreciate that our civilization can go away.

But that collapse doesn’t require a disaster.  Civilization, and the rule of law, can erode gradually, insidiously, as in the “Long Night” stories we talked about earlier.

Historically, the Sixties counterculture fostered anarchists who felt “the Establishment” was invulnerable.  Often with the best of intentions, they did more to undermine civil order than they expected.  Those who now see no better aim than breaking up the structures of democratic government and civil life—whether from the side of government, or from the grass roots—also fray the fabric of civilization.  The extrapolations of science fiction and fantasy illustrate why eroding the rule of law should not be taken lightly.

Near the bottom of David Brin’s Web home page, he places the following:

I am a member of a civilization

It’s good that we have a rambunctious society, filled with opinionated individualists. Serenity is nice, but serenity alone never brought progress. Hermits don’t solve problems. The adversarial process helps us to improve as individuals and as a culture. Criticism is the only known antidote to error — elites shunned it and spread ruin across history. We do each other a favor (though not always appreciated) by helping find each others’ mistakes.

And yet — we’d all be happier, better off and more resilient if each of us were to now and then say:

“I am a member of a civilization.” (IAAMOAC)

Step back from anger. Study how awful our ancestors had it, yet they struggled to get you here. Repay them by appreciating the civilization you inherited.

It’s incumbent on all of us to cherish and defend the rule of law.  Give up civilization lightly, and we may not have the choice again.

Advertisements

The Good King

I began to wonder some years back about the curious preference for monarchy in futuristic settings.  In the world at large, monarchies have been retreating in favor of republics and democracies, at least in theory, since 1776.  Why are SF writers so fond of equipping future societies with kings, emperors, and aristocracies?

Star Kingdoms

We can pass lightly over the old-time, pulp-type stories where royal rule is merely part of the local color:  Burroughs’ A Princess of Mars (1912), Edmond Hamilton’s The Star Kings (1949), E.E. Smith’s The Skylark of Space (1928) with its Osnomian royal families.  Here, like flashing swords and exotic costumes, monarchy is simply part of a deliberately anachronistic setting.  Similarly in high fantasy, where aristocracy comes naturally in the typical pseudo-medieval milieu.

But we see royal or aristocratic governments in more modern stories too.  Asimov’s Foundation stories are centered around a Galactic Empire.  (Since that series was based on Gibbons’ The History of the Decline and Fall of the Roman Empire, an Empire was inevitable.)  Similarly in Star Wars, which draws heavily on Asimov.  Jerry Pournelle’s CoDominium future history has a First and a Second “Empire of Man.”  David Weber’s heroine Honor Harrington serves the “Star Kingdom of Manticore” (later “Star Empire”), modeled closely on England around 1810.  Lois McMaster Bujold’s Vorkosigan Saga contains a number of polities with different forms of government, but many of the stories focus on Barrayar, which has an Emperor.  Anne McCaffrey’s popular Pern series has no monarch, but has two parallel aristocracies (the feudal Holders and the meritocratic dragonriders).  It got to the point where I began to feel a decided preference for avoiding monarchical or imperial governments in SF storytelling.

The Lure of Kingship

Aragorn with crownThere’s something that attracts us in royalty—or we wouldn’t see so much of it.  I encountered this puzzlement directly.  As a kid reading The Lord of the Rings, I was as moved as anyone by the return of the true King.  I asked myself why.  If I don’t even approve of kingship in theory, why am I cheering for Aragorn?

The reasons we’re drawn to monarchy seem to include—

  • Kings are colorful. (So are princesses.)
  • Stability
  • Personal loyalty
  • Individual agency

The first point is obvious, but the others are worth examining.

Stability

It’s been pointed out that even in a constitutional government, a monarch provides a symbolic continuity that may help to hold a nation together.  British prime ministers may come and go, but Queen Elizabeth is always there.  (Literally, at least within my lifetime.)  This gives some plausibility to the idea of a future society’s returning to monarchy.

Something like this stabilizing function is behind commoner Kevin Renner’s half-embarrassed harangue to Captain Rod Blaine, future Marquis of Crucis, in Niven & Pournelle’s The Mote in God’s Eye:  “maybe back home we’re not so thick on Imperialism as you are in the Capital, but part of that’s because we trust you aristocrats to run the show.  We do our part, and we expect you characters with all the privileges to do yours!”  (ch. 40)

Unfortunately, relying on the noblesse oblige of the aristocrats doesn’t always work out well.  It depends on who they are.  For every Imperial Britain, there’s a North Korea.  When the hereditary succession breaks down, you get a War of the Roses or Game of Thrones.

Too much depends on getting the right monarch.  By the law of averages, it doesn’t take long before you get a bad ruler, whether by inheritance or by “right of conquest”—and you’re up the well-known creek.

Personal Loyalty

Personal loyalty appeals to us more strongly than loyalty to an institution.  One can pledge allegiance to a state—but even the American Pledge of Allegiance starts with a symbol:  the flag, and then “the Republic for which it stands.”  Loyalty to an individual moves us more easily.

This kind of loyalty doesn’t have to be to a monarch.  Niven & Pournelle’s Oath of Fealty explores how loyalty among, and to, a trusted group of managers can form a stronger bond than the mere institutional connections of a typical modern bureaucracy.  One can be faithful to family (the root of the hereditary element in kingship), to friends, or even an institution or a people.  But it’s easiest with an individual.  This loyalty is the basis for the stability factor above.

Individual Agency

The vast machinery of modern government sometimes seems to operate entirely in the abstract, without real people involved.  “Washington said today . . .”

In fact it’s always people who are acting.  But it’s easier to visualize this when you have a single person to focus on.  “When Grant advanced toward Richmond . . .”  In the extreme case, we have the ruler who claims to embody the state in his own person:  “L’état, c’est moi” (attributed to Louis XIV, the “Sun King” of France).

In a fascinating 2008 essay, Jo Walton quotes Bujold on political themes in SF:  “In fact, if romances are fantasies of love, and mysteries are fantasies of justice, I would now describe much SF as fantasies of political agency.”  A science fiction character is frequently involved in effecting a revolution, facing down a potential dictator, or establishing a new order—exercising autonomous power.  Walton links this notion of political agency to the fact that SF illustrates change:  “SF is the literature of changing the world.”  The world-changers can be outsiders, or they can be the rulers themselves—as in a number of the examples above.

It’s not surprising that we’re attracted to characters who act outside the normal rules.  We (especially Americans, perhaps) are fond of the idea that good people can act in ways that are untrammeled by the usual conventions.  I’ve already mentioned Robin Hood.  And the whole concept of the superhero—the uniquely powerful vigilante who can be relied on to act for the good—is powered by this attraction.

But this idealization of individual initiative is also dangerous.  Too much depends on getting the right hero—or the right monarch.  It can only work if the independent agent is seriously and reliably good:  virtuous, in the classical sense of virtue as a well-directed “habit” or fixed character trait.  Even then, we may be reluctant to give any hero unlimited power.  Too much is at stake if it goes wrong.

The Rule of Law

Our admiration for the powerful ruler is always in tension with our dedication to the rule of law:  “a government of laws, not of men,” in the well-known phrase attributed to John Adams.  We can see this as far back as Aristotle:  “law should rule rather than any single one of the citizens.  And following this same line of reasoning . . . even if it is better that certain persons rule, these persons should be appointed as guardians of the laws and as their servants.”  (Politics book III, ch. 16, 1287a)

No human being can be trusted with absolute authority.  This is the kernel of truth in the aphorism that “power tends to corrupt and absolute power corrupts absolutely.”  But we can’t get along without entrusting some power to someone.  When we do, it had better be someone who’s as trustworthy as possible.

The Ideal of the Good King

Thus the true king must be a virtuous person—a person of real excellence.  This is the ideal of an Aragorn or a King Arthur, whose return we’re moved to applaud (even against our better judgment).  (It should be obvious that the same principles apply to the good queen—or emperor, empress, princess, prince:  the leader we follow.  But I’ll continue using “king” for simplicity’s sake.)

What virtues do we look for in a good monarch—aside from the obvious ones of justice, wisdom, courage, self-control?

If the ruler or rulers are going to be “servants of the laws,” they require humility.  A king who serves the law can’t claim to be its master.  Arrogance and hubris are fatal flaws in a ruler.  For example, we should always beware of the leader who claims he can do everything himself and is unable to work with others.

The good king is also selfless—seeking the common good of the people, not his own.  Self-aggrandizement is another fatal flaw.

In effect, what we’re looking for is a ruler who doesn’t want to rule:  a king who believes in the sovereignty and the excellence of common people.

Aragorn defers to FrodoIt’s significant that Aragorn, our model of the good king, is introduced in LotR as “Strider,” a scruffy stranger smoking in a corner of a common inn.  Even when he’s crowned in victory, he remembers to exalt the humble.  The movie has him tell the four hobbits, “You kneel to no one.”  Tolkien’s text is more ceremonious:  “And then to Sam’s surprise and utter confusion he bowed his knee before them; and taking them by the hand . . . he led them to the throne, and setting them upon it, he turned . . . and spoke, so that his voice rang over all the host, crying:  ‘Praise them with great praise!’”  (Book VI, ch. 4, p. 232)

We see the same essential humility and selflessness in other admirable leaders, kings or not:  Taran in the Chronicles of Prydain, and the revolutionary princess in Lloyd Alexander’s Westmark trilogy; Niven & Pournelle’s Rod Blaine; Jack Ryan in Tom Clancy’s novels; “Dev” Logan, head of Omnitopia Inc. in Diane Duane’s Omnitopia Dawn—the unpretentious opposite of the “imperial CEO.”  America was fortunate enough to have such an example in the pivotal position of first President, George Washington.

The Alternative

At the other end of the spectrum, the most dangerous person to trust is an unprincipled and unscrupulous autocrat—someone convinced of his personal superiority and infallibility.  Giving power to an individual who has no interest in serving the common good, but only in self-aggrandizement, puts a nation in subjection to a Putin, a Mussolini, a Kim Jong-un.

The antithesis of the good king is the tyrant, who, however innocently he may start out, figures in our stories mainly as the oppressor to be overthrown.  It’s much better, if possible, to intercept such a potentially ruinous ruler before the tyranny comes into effect:  Senator Palpatine before he becomes Emperor, Nehemiah Scudder before he wins his first election.  Allowing the tyrant to gain power may make for good stories, but it generates very bad politics.

If we must have strong leaders, then in real life as well as in stories, character is key—and hubris is deadly.

The Internet Strikes Back

Occasionally, science fiction can’t avoid being shaped by actual facts.  Usually these are scientific facts, but sometimes economic, social, and even legal factors play a role.  It’s illuminating to look at the recent court decision on “network neutrality,” or “Internet open access,” from a science fictioneer’s point of view.

The question of “net neutrality,” or whether Internet service providers (ISPs) such as telecommunications and cable companies can control what people send and receive over the Internet, has been in play since at least 1998.  The Internet first became accessible to the general public by dial-up service over the public switched telephone network in the mid-1990s (who can remember the once-familiar sound of a dial-up modem connecting?).  Since the telephone system was a common carrier like a railroad or the Postal Service, required to carry anyone’s traffic as long as it didn’t harm the network, there was initially no question of the carriers’ controlling anyone’s Internet communications.  But when people began shifting to “broadband” Internet service over cable systems, which had not traditionally been treated as common carriers, new questions arose.

The Federal Communications Commission (FCC) tried three times to establish some kind of rules of the road that would prevent ISPs from blocking or altering people’s Internet communications.  Third time lucky:  on June 14, 2016, the U.S. Circuit Court of Appeals for D.C. upheld the FCC’s 2015 “Open Internet Order.”  The decision was published as United States Telecom Association v. FCC, __ F. 3d ___ (D.C. Cir. June 14, 2016) (USTA).

 

The ISPs like to frame the dispute in terms of the FCC’s “regulating the Internet.”  Actually, it’s almost the reverse.  All the FCC rules do is prevent the ISPs from regulating the Internet—from controlling what individual users can see on the Web and what they say in messages.  It would be more accurate to say that FCC is setting up rules that foster a free market.  This is why the technology industry, except for carriers and their proxies, is generally in favor of net neutrality.

Like many other tech-driven changes explored in science fiction, our ability to use the Internet has far-reaching consequences.  The court observed:  “Over the past two decades, this content has transformed nearly every aspect of our lives, from profound actions like choosing a leader, building a career, and falling in love to more quotidian ones like hailing a cab and watching a movie.”  (p. 26)

This particular change wasn’t often investigated by SF.  You can find early depictions of something like the Internet.  Characters in James H. Schmitz’s 1960s-1970s Federation of the Hub stories use a network presciently dubbed the “ComWeb,” both to communicate and to access information, as one commentator remarked, “on ‘Internet time.’”  The cyberpunk genre deals with world-wide networks—but I don’t recall a story where the neutrality issue played a role.  (On the other hand, I haven’t read all that much cyberpunk.)  Some stories show the Internet “waking up”—Internet as artificial intelligence:  for instance, Spider Robinson’s “Solace” in Callahan’s Legacy, “Webmind” in Robert J. Sawyer’s Wake.  But that’s another matter entirely.  In most of these stories, the network is just there; control over it by the ISPs isn’t an issue.

But, like a science fiction thought-experiment, the net neutrality controversy shows some of the qualities a modern society needs in a communications system.  For example—

  • Transmission integrity—trustworthiness.  If the system arbitrarily changes the information passing through it, it won’t be very useful either for trade or for speech.  As the USTA court said:  “the Commission explained that ‘[u]sers rely on broadband Internet access service to transmit “information of the user’s choosing,” “between or among points specified by the user,”’ without changing the form or content of that information.  2015 Open Internet Order, 30 FCC Rcd. at 5761 ¶ 361 (quoting 47 U.S.C. § 153(50)).”
  • Universality (which implies affordability).  This was a key feature of the original telephone monopoly—the “social contract” under which the Bell System was allowed a legislative monopoly in return for providing universal service at regulated rates.

Much of the battle over net neutrality revolves around visions of the kind of alternate futures that might result from different legal regimes.  The FCC’s rules, which act to clear a space for free action and competition, are designed to ward off certain kinds of problems that could develop in such alternate futures.

First among those problems is the economic dominance that can be gained through gatekeeper control of communications.  A cabal of ISPs that controlled all communications could prevent entry by competitors; “pick winners and losers,” deciding which new companies and products would succeed; and siphon off the profits from such new and innovative enterprises, right down to the level where a company that relies on communications can barely break even.  Thus, although the ISPs fully recover the network’s costs from end users’ payments (Americans pay more for lower speeds than in many developed countries), they also seek to be paid by the “edge providers” whose Web sites we visit, not only for those companies’ own Internet connections but also for the pure privilege of reaching the ISPs’ subscribers—in other words, to be paid three times for the same network.

In a free market, it’s essential to have a common medium in which trade can take place.  We analogize the Internet to the streets and roads of our transportation system; but if someone owned the only road leading to your home, and could bar certain traffic at will (including mail delivery), they’d have you over a barrel.

We do see examples of this kind of economic dominance by a few organizations in SF stories, though not usually in the communications realm.  In Dune, when the Spacing Guild joins the alliance against the Atreides family, the game is up—the Guild has a monopoly on interstellar travel.  In Heinlein’s Friday, the Shipstone company controls (stored) energy—and in Heinlein’s much more concise short story “Let There Be Light,” we see how entrenched interests can prevent disruptive innovation.  In a similar way, a cartel that controlled communications—without neutrality requirements—in our information-centric society could establish an economic oligarchy.  There are some fascinating stories to be written there . . .

It’s an illusion to think that in the absence of all regulation, we would have free independent individuals trading with each other on an equal basis.  What we’d have is warlords fighting over slices of a steadily shrinking pie.  One of the functions of the rule of law is to create a space in which a free market can exist—to establish the preconditions for free interaction by all economic players.  This is true of enforceable contract law in trade (just as similar principles require enforceable traffic laws on the roads).  A novel example of how legal protections create reliable conditions for trade is the notion of setting up well-policed areas where people who buy and sell online can meet to exchange their goods, without having to fear being robbed—an “Exchange Zone for Online Purchases.”

To gain the advantages of the Internet’s “flat distribution model,” in which even a small business can buy and sell worldwide without having to make major capital investments, one must be able to communicate freely and inexpensively.  The USTA court noted that “[a]ccording to the Commission [FCC], such rules encourage broadband deployment because they ‘preserve and facilitate the “virtuous circle” of innovation that has driven the explosive growth of the Internet.’”  (p. 17, citing Verizon, 740 F.3d at 628)

But we also use the Internet to create pathways for speech—a central First Amendment interest.

Some ISPs—Verizon in an earlier case, Alamo Broadband in the USTA proceeding—have argued that their own First Amendment rights forbid any imposition of net neutrality rules.  Their position is that on the networks they control, they are the “speakers”—and they cannot be compelled (as a common carrier) to transmit any speech they don’t want to carry.  In other words, when you use your Verizon Internet account to read the latest article by your favorite columnist, it isn’t the columnist whose speech is protected by law:  it’s Verizon’s.  And when you e-mail your best friend your opinions on the upcoming election, it isn’t you speaking—it’s Verizon who can exercise “editorial control” over how your message comes out at the other end.  According to this argument, if you wrote “I love Obama” (or Trump, or Sanders, or Hitler), the ISP could substitute “I hate . . .”  It’s their speech.

Fortunately, the USTA court declined to accept this argument.  If the ISPs had prevailed, the results would have been ironic.  It would have been imperative to build a government-owned network at once, one that people could use to communicate without interference—because governments are forbidden by the First Amendment from controlling people’s speech.  And by the same token, the ISPs would have been forced to police every Web site they delivered to subscribers, from pornography to political opinions—since they would be the speakers.

This scenario sounds as absurd as some science-fictional extrapolations.  But in a world where tyrannies around the globe are doing their best to exercise exactly such speech control by acting as Internet gatekeepers, it’s not hard to imagine ISPs doing the same thing.  And it’s hard to say which would be worse.

 

In sum, the FCC and the court have taken the right path in this case.  The alternatives could make extremely interesting ideas for stories.  But unlike the thought-experiments of SF, this is a real-life experiment, with actual consequences.  It’s important that we get it right.