Mercury 6(March-April 1977):15-17
(Author’s personal note: This was my second-written, but first-published, article.)
Note: This web version is derived from an earlier draft of the paper and may possibly differ in some substantial aspects from the final published paper.
Xenology and Metalaw
The vast majority of those members of the scientific community who have seriously considered the problem believe that life exists on other planets. If, as some have suggested, there are literally hundreds of millions of human-habitable planets in our Milky Way galaxy alone, then the probability that intelligent extraterrestrials (ETs) have evolved elsewhere is extremely high.
A conference of astronomers and other scientists at the Byurakan Astrophysical Observatory (USSR) in September, 1971, arrived at the following conclusion regarding intelligences on other worlds:
The practical and philosophical significance of a successful contact with an extraterrestrial civilization would be so enormous as to justify the expenditure of substantial efforts... The technological and scientific resources of our planet are already large enough to permit us to begin investigations directed towards the search for extraterrestrial intelligence... For the first time in human history, it has become possible to make serious and detailed experimental investigations of this fundamental and important problem. 
Thus has CETI (Communication with Extraterrestrial Intelligence) become one of the fastest moving fields in xenology* today. Other well-developed subdisciplines of xenology include abiogenesis (origin of life research), astrogenic environment theory (habitable zones around stars, general planetology, etc.), and experimental exobiology (the Viking lander biology instrument packages).
Another fascinating xenological topic is a little-known discipline called metalaw. This term, coined  in 1956 by Andrew G. Haley (the world’s first space lawyer), refers to the study and development of a workable system of laws that can be applied to all our relations with alien intelligences. It is easy to see the immense significance of this.
In a galaxy so vast as ours in time and space, we are likely to meet extraterrestrial cultures at many different stages of development. However, the general view is that we are most likely to encounter races which are either much more advanced, or far less advanced, than we. This raises several very fundamental questions.
If we are the contacted race, how do we treat our visitors? Are they conquering villains, or saints bearing gifts? What rights and responsibilities should we require of them while on Earth, or in our solar system? Are their mistakes to be punished, excused for ignorance, or should they have the immunity of diplomats? Who makes these decisions?
If we are the “superior” race in a contact situation, what are our duties to the otherworlders? Should we avoid interference as much as possible so as not to damage their culture? Or should we undertake a form of direct governmental administration of their affairs, and help them scale the rocky heights of “civilization”? Are we trustees, educators, or partners? Friends or colonizers?
Each party in this prospective exchange clearly has a responsibility to the other. It is the task of metalaw, in part, to articulate these responsibilities in terms of presumed universals of justice common to all.
Is it really true that the discovery of superior beings could cause a civilization to topple? Pointing to “the sorry history of contact between advanced and backward technological civilizations” on planet Earth, astronomer Carl Sagan has suggested that there may be a kind of natural selection among societies. Only the fittest can survive. Those societies with inferior technology have invariably collapsed when confronted with a more advanced technical culture. If this is indeed the case, Sagan queries, “should we not keep quiet?” 
Dr. W.H. McNeill, a well-known American historian, points out that if first contact takes place4 in a form in which humankind is free to selectively accept or reject it (as we choose) there may well be no drastic effects. Speaking from an historical perspective, however, McNeill admits that if we have no choice in the matter, especially as in the case of direct physical confrontation, then “the end of human civilization as we have known it would become an expected consequence.” 
It is certainly true that the less advanced culture involved in the contact may be subject to peculiar cultural pathologies. New Guinea cargo cults are a familiar example of this: After extensive contact with Western culture and artifacts, native islanders developed a conviction that spiritual entities would deliver large cargoes of technological goods into the hands of “believers.” Other examples of such pathological belief systems abound, including the Peyote Cults and the Ghost Dance of certain American Indians.
But to suggest that first contact will necessarily terminate a culture, that dominance or submission are the only alternatives, is to deny the immense complexity of the problem. Trade, war, quarantine or blockade, abject indifference, negotiation and treaty, evangelism, integration and homogenization are just a few of the myriad possibilities. The destinies of the two races will merge, for better or worse. And the interests of both partners will best be served if a metalegal order can be established to help regulate this interaction.
It is informative to observe the present state of metalaw in contemporary Earthly law – to see how far we still have to go – before delving into metalegal theories of how races ought to behave. (To simplify matters, I will consider here only American law.)
Legal Rights of Extraterrestrials
When there are few problems demanding immediate resolution, there is usually little law on the subject. Not surprisingly, there has been virtually no discussion of the status and rights of a visitor to our planet, precisely because the problem has never arisen. There are, so to speak, no legal precedents. But as the law stands in the United States today, what would be the legal rights of extraterrestrial visitors to Earth?
It has always been a hard, uphill battle to secure full rights even for various classes of Homo sapiens. Blacks, women, children and Jews were long denied elementary rights of life and liberty that most of us now take for granted. In each of these cases, the humans in question were considered not as legal persons, but as mere property – due no more rights than trees , machines , or animals .
Furthermore, the most fundamental rights of life and liberty in the U.S. are granted under Constitutional provisions that speak of the rights of persons. All “persons” physically present within the borders of the United States are protected by the Bill of Rights. The most important question, then, is whether the ET visitor would qualify as a person or merely as an animal under our laws .
The accepted legal definition of an animal is “a living being, not a human, endowed with the power of voluntary motion.” Since the alien would presumably fulfill both of these conditions, a rebuttable presumption of animalhood necessarily arises. The ET would be classified a legal animal, by default. Whether or not he would be considered an animal of “base nature” (a household pet) or a “wild animal” (no evidence of ownership existing) is certainly debatable.
This preliminary result is both annoying and perplexing. How can a well-meaning visitor from another world have no better standing than a stray cat? The reason is really quite simple. After thousands of years of industrious lawmaking, man has not defined exactly what he means by “man.” We have failed to agree; worse, we have failed to specifically address the question: What are we? What is the primary distinguishing characteristic between persons and all other entities?
Some would myopically argue that the essence of a person is his membership in the genetic species H. sapiens. But this seems unduly restrictive. The sounder view looks to the qualities and capabilities of the organism, such as its intelligence. Of course, it is difficult to decide precisely what is meant by “intelligence.” Do we look for the ability to fashion tools or to transmit culture? Ability to symbol or use language? Ability to learn from experience?
These sticky questions aside, would intelligence alone be enough to qualify one for personhood? Dolphins and other animals display remarkably high intellects, and do not qualify as persons. Yet viable fetuses and insane people are viewed as legal persons, although their “intelligence” may be negligible or nonexistent. Nor can the possession of high technology (e.g., starships) necessarily establish either intelligence or personhood. A race of antlike group-mind creatures could develop a technology without any single member possessing independent intelligence.
Dr. Roland Puccetti, Professor of Philosophy at the University of Singapore, has proposed that we equate “legal persons” with “moral persons” . Hence, if we discover that aliens can take a moral attitude or are capable of making moral-ethical judgements (whether or not we agree with them!), they should be admitted to the ranks of personhood.
Another test was suggested by the French writer Jean Bruller in 1953 . His idea was that self-awareness, the realization by the being that it is separate from its surroundings, is the one real difference between humans and other animals. Wild beasts, Bruller asserted, have no consciousness of their individuality; man, on the other hand, is the only animal capable of perceiving the self. The Bruller Test, then, would require that the ET demonstrate some form of self-awareness before he could receive the protection of our laws.
Both the Puccetti Test and the Bruller Test leave much to be desired. It might be difficult to agree when and if a display of moral choice or self-awareness had been observed in the creature’s behavior. Our present legal conceptions of the rights that aliens can and should have in our society, and by extension the rights we ought to enjoy under their laws, are sadly underdeveloped. It is this legal vacuum which the emerging science of metalaw seeks to fill.
Astropolitics and Metalaw
The history of human expansion has been a sordid tale of subjugation, colonization and exploitation. The Europeans were notorious in this regard. Natives of foreign lands were sent back to the Continent to be placed on display as if mere zoo animals – even though they differed in appearance only slightly from the explorers. Our early settlers in this country displaced the Indians similarly, imposing upon them our way of life and our system of government (to a large degree). And the technologically advanced nations weren’t the only ones to expand by means of ruthless incursion and expulsion of indigenous races. The Aborigines ran out the Tasmanians, the Malays routed the Sakai, the Bantus expelled the Hottentots.... The tally of human aggression is virtually endless.
It becomes clear that a constant in human social evolution has been the need and desire for security against foreign invaders. It is reasonable to draw the conclusion that any extraterrestrial civilization will have walked the long road from the barbaric feral state to culture and laws, as have we. A primary requirement of all extraterrestrial races may therefore be physical security (and thus one principle which would underlie their interaction).
Another suggested basis for metalegal relations that has gained wide currency is the so-called Principle of Noninterference. The gist of this idea is that we leave other cultures entirely alone – let them evolve naturally, with no help or interference from outsiders.
If cultural integrity is to be strictly maintained, the inferior race must be totally isolated. Yet the mere knowledge that an advanced race existed would probably be enough to “interfere” with the normal development of a society. Must we therefore insist that extraterrestrial civilizations remain in total ignorance of each other? At what point do we decide that an “inferior” culture has sufficiently matured such that it can stand the shock of contact with a “superior” one? Is cultural quarantine really desirable?
A third suggestion is that we simply apply the Golden Rule in our dealings with ETs. Under this theory, we should treat aliens as we would wish to be treated ourselves, and behave towards them as we would wish them to behave toward us. At first blush, this seems eminently reasonable.
But the late Andrew G. Haley pointed out the fallacy of this approach as far back as 1956, at the Seventh International Astronautical Conference in Rome . The traditional Golden Rule is starkly anthropocentric; that is, it reflects the subjective needs and wishes of humans. As Haley observed, were we to treat the aliens as we desire to be treated, it could well cause their serious injury or even destruction. Instead, we should ascertain how the ETs themselves wish to be treated, and act accordingly.
Haley proposed the following as the Great Rule of Metalaw [2, 11]: Do unto others as they would have you do unto them. That is, we should treat aliens as they want to be treated, not as we think they ought to be treated. This is a very simple means to ensure both the safety and the equality of interstellar partners.
However, in practice the Great Rule would be as difficult to apply as the concepts of noninterference and physical security. If we are to ascertain the desires of the other party, we must interact with them to a certain degree – and this may cause sociocultural damage. We still are left with the problem of developing nonconflicting, serviceable metalegal rules.
A major step toward this goal has been achieved by the Austrian jurist and legal writer, Ernst Fasan. Dr. Fasan has evolved a sophisticated, self-consistent set of eleven basic metalaws , applicable to all sentient beings in the universe.
The philosophical underpinning is the Categorical Imperative, first elaborated by the 18th century German philosopher Immanuel Kant. The thrust of the Imperative, which holds for any rational being, is that no activity be undertaken unless it would be valid “as a principle of general legislation.” If a particular course of action will lead to contradiction or a generally destructive result, it is proscribed by the Imperative. For example, if one contemplates murder, he asks: ‘Would it be desirable for everyone to murder?” It clearly is not, since acceptance of murder as a general rule would result in the murderer’s own death, an inherent contradiction.
Using the Categorical Imperative and a few very basic assumptions, Dr. Fasan derives eleven fundamental metalaws of presumably universal validity. They are, in descending order of importance, as follows:
(1) No partner of Metalaw may demand an impossibility.
(2) No rule of Metalaw must be complied with when compliance would result in the practical suicide of the obligated race.
(3) All intelligence races of the universe have in principle equal rights and values.
(4) Every partner of Metalaw has the right of self-determination.
(5) Any act which causes harm to another race must be avoided.
(6) Every race is entitled to its own living space.
(7) Every race has the right to defend itself against any harmful act performed by another race.
(8) The principle of preserving one race has priority over the development of another race.
(9) In case of damage, the damager must restore the integrity of the damaged party.
(10) Metalegal agreements and treaties must be kept.
(11) To help the other race by one’s own activities is not a legal but a basic ethical principle.
Fasan’s metalaws are the beginning of a new era of metalegal development. Such principles of conduct may soon become a matter of survival; our thinking must be guided by metalegal precepts in astropolitical contexts.
When intelligent extraterrestrial life is discovered, mankind must be prepared, for in all of human history there will be but one first contact.
1. Carl Sagan, ed., Communication with Extraterrestrial Intelligence (CETI). The MIT Press, Cambridge, Mass., 1973, pp. 353-354.
2. Andrew G. Haley; “Space Law and Metalaw – A Synoptic View.” Rome: Associazione Italiana Razzi, Proceedings of the Seventh International Astronautical Congress, 1956.
3. Carl Sagan; The Cosmic Connection. Doubleday and Company, Inc., N.Y., 1973, p. 215.
4. Carl Sagan, ed., Communication with Extraterrestrial Intelligence (CETI). The MIT Press, Cambridge, Mass., 1973, p. 345.
5. Christopher D. Stone; Should Trees Have Standing? Toward Legal Rights for Natural Objects. Los Altos, California: William Kaufmann, Inc., 1974.
6. Robert A. Freitas Jr., “The Legal Rights of Robots.” Student Lawyer 13(January 1985):54-56.
7. Peter Singer; Animal Liberation: A New Ethics for Our Treatment of Animals. Random House, Inc., N. Y., 1975.
8. Robert A. Freitas Jr.; “The Legal Rights of Extraterrestrials.” Analog Science Fiction / Science Fact 97(April, 1977):54-67.
9. Roland Puccetti; Persons – A Study of Possible Moral Agents in the Universe. London: Macmillan and Company, Ltd., London, 1968.
10. Jean Bruller; You Shall Know Them. Little, Brown and Company, Ltd., London, 1968.
11. Andrew G. Haley; Space Law and Government. New York: Appleton-Century-Crofts, 1963.
12. Ernst Fasan; Relations with Alien Intelligences. Berlin-Verlag, 1970.