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.

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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.