CDfM Episode #5 How Law Will Develop on Mars: an introduction

Welcome to Civilisation Design for Mars.

This time we look at how law will develop on Mars.

I’m designing a legal and ethical framework for a civilisation on our alternate planet as we become multi-planetary. This channel documents controversial and notable topics encountered along the way. All policies discussed are intended for Mars, not earth.

Today: Looking critically at how law will develop on Mars.

Why do we have law on earth? Does Mars have law? How will it develop? What will Mars’ legal status be when the new civilisation starts? We look at these and other issues in this introduction to law on Mars.

Earth law

Much law on earth has been created by two private parties, people or companies, experiencing a problem in the course of real life, not being able to sort it out between themselves, and eventually having to go to an accepted authority - like a judge - to weigh up both arguments and make a decision about who was likely right in this situation and why. This is roughly how case law is made. Many of the things we take for granted - for example, that I can buy something from you because I make an offer, you accept it and this is now a contract - are things that were fought over, agreed and noted in law a long time ago.

We also have another kind of law. Legislation. This comes about when governments, looking at their countries top down, think there’s something in general that should change. For example, governments may decide that buying alcohol should only be legally possible after a certain age.

These two forms - case law and legislation - are the primary forms of law. However, there are other sources of material - legal decisions taken in other countries and legal writing - which can be referred to as potentially persuasive in creating new law.

The thing about law is this: law is an attempt by humans to express the current acceptable or unacceptable behaviour in a society as it is now and moving forward. Making law does not discover fixed rules of human society that hold true in all time and space, because there are not any. Instead, law expresses judgements which reflect and state the rightness of something in a given society in that moment. Law can change and it is only as relevant as problems are experienced, presented, and decisions relating to these problems are considered and enforced.

Does Mars need law?

Where nothing goes wrong and everyone agrees on everything, there is no further need for law. Whilst it is nice enough to imagine a place where nothing goes wrong, we have not ever experienced a civilisation like this and we are unlikely to in the future.

As soon as the first dispute arises on Mars, where more than one party feels they are in the right, we need a relevant structure for considering the two sides and making the decision about who was right, critically, so that everyone can move on.

Does Mars have law?

The 1967 agreement called the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies covers Mars too. It governs the activities of earth nations and citizens in space. It’s unclear exactly what the application to private companies is in most cases. Applied to Mars it states nations cannot appropriate Mars for their own use or occupation, all uses of Mars should be peaceful, no one can station weapons of mass destruction there, earth nations are responsible for anyone who goes that goes there from their state, earth nations are responsible for damage they cause and harmful contamination should be avoided on Mars.

There are also agreements and conventions for how nations, research missions and astronauts act in space. These are not specific to Mars, but they can act as guide for how missions have run in the past. Some of these conventions are codified in writing and others are agreed behaviours that have grown out of missions. There is a notable culture in legal space behaviours. For example, national partners working together on the International Space Station, ISS, agree to waive the right to claim damages against each other.

This culture of non-litigious collaboration between companies and nations could act as a basis to inform an approach to the Mars colonisation mission. It is also possible that such conventions for collaborative scientific research in space do not remain the culture of the private companies going to Mars through choice or impracticality.

Whilst there isn’t specific Mars law yet, earth law will be a persuasive reference for future decisions relating to Mars disputes. However, the context for any case will be critical. Given the environment, atmosphere and physicality of Mars are so different to earth, these factors may well be critical to whether earth law is relevant to any given case.

How will the Mars legal system develop?

Mars law is not one unchanging thing. The requirement for new Mars law will, at the latest, arise at the rate that new kinds of disputes occur that require a decision to be able to move forward. Essentially, Mars law will develop with us as we interact with the planet.

Private and employment contracts

In practice, earth law will “stick” to companies and astronauts through private commercial and employment contracts formed on earth initially. Private contracts formed on earth will attempt to foresee and account for the aims and problems that could arise in each phase of the Mars mission. In the worst case, astronauts could die, suffer long term illness on return to earth or be stranded and die in space. The mission as a whole could fail based on mistakes between subcontractors. Whilst the context is Mars, these risks are found on earth too and are governable by existing private law and compensation systems.

Phased approach to a system of law on Mars

Given the Mars civilisation mission will be planned and executed in phases, we can plan a rough legal environment within which companies and individuals can expect to work for each phase too.

A statement of intention for each phase, most likely coming from SpaceX, will state without being binding, a set of rough ground rules for companies, astronauts and eventually citizens can expect to work, live and act within.

Phases one and two: arrival and survival

Phases one and two will have the lowest level of legal infrastructure on Mars: only the existing space conventions, private employment and commercial law governing the relationship between SpaceX and the astronauts to begin with.

As the phases of work move on, and an atmospheric environment is created which lowers the risk to human life, this is when phases three and four of civilisation design and build can begin.

The longer humans are on Mars, and the lower the risk to humans being there, the complexity of human social and commercial activity will increase. Existence on Mars will take a marked increase in complexity in phase three. As the complexity of activity on Mars increases over the phases, so will the requirement for Mars case law as mistakes, problems and disputes necessarily arise and require resolution in order for the mission to carry on. This could well be decided by earth courts.

Phase four: immigration from earth

Before Mars can invite non-expert immigrants from earth arrive, Mars will need to have defined what it is, as well as having a system which can determine who can be a citizen of Mars and who cannot. A constitution will describe citizens’ rights and responsibilities as well as provide a structure for what happens when things go wrong between individuals and or companies.

Mars’ legal status

Earth is a relatively stable, complex civilisation. Leaning on earth’s systems of law in the early phases of work on the Mars mission is critical. In the meantime, a minimum legal structure for phases one and two built on private contracts, employment law and space conventions exists to support Mars. As our interactions on Mars grow in complexity with each phase of work, the question about defining the legal status of Mars will become more important.

Mars could become equivalent to a sovereign nation on earth alongside, say, the USA and China. Once there is a system for humans to survive on Mars and work begins to plan and build the civilisation, that may be the point at which Mars becomes a new legal entity on par, not with other nations, but with planet earth.

Next time we look at a phased approach to civilisation design for Mars. That’s all for this episode. Please subscribe, share your thoughts in the comments and thanks for listening to civilisation design for Mars.

Copyright 2022 S J A Giblin