One of the common themes in the Ares Project universe is the problems that result from the lack of a government on Mars – or, to be more broad-minded about it, the lack of formalized mechanisms for resolving disputes, something traditionally handled by government.
The Mars Development Agency is a non-governmental organization, and while some characters see it as a provisional government, it’s authority and powers are strictly limited in scope and degree by the Mars Charter. It was established primarily to run the land claim registry system and to build and operate essential infrastructure in support of settlement activities. As a number of characters have pointed out, MDA has no army or police force through which it can exercise a force monopoly – a fact the stories provisionally titled “True Crime” and “The Olympian Race” explore in some detail. Its power lies in its ability to screw over the commercial settlements that get out of line by cutting off their interplanetary communications and cargo shipments via Phobos, pressuring the (in some cases vital) concessions at Port Lowell to charge astronomical prices or not do business with them at all, and in the case of settlements whose land claims have not yet vested, taking away their provisional claim and thereby undermining their business by scaring off their investors. The settlements are left to work out their own rules for resolving disputes, and when this fails to litigate through their agents on Earth.
After reading the draft of “True Crime”, one of our reviewers noticed similarities in certain elements of the story’s background to David Friedman’s contractual/market-based alternative for rights enforcement – something quite unexpected, as neither Carl nor I had heard of David Friedman. In a nutshell, the concept is that individuals contract with a rights enforcement agency to represent them in disputes with others – think of it like having an insurance policy where the insurance company protects your rights. In the event of a dispute, your agency and the other party’s agency contract with an impartial third-party arbitrator to settle the matter. Along the way, a form of law evolves out of (among other things) what the agencies are willing to go to bat for you over under what circumstances, and the track records of agencies in accepting the rulings of arbitrators and of arbitrators in how they make rulings.
I like the concept, given that it could emerge naturally in a clean-sheet society with no government in the familiar sense, made up of people most of whom have joined it through a contract (the standard 5-year employment contract covering the cost of transport to Mars), who live in communities that are essentially company towns where conduct is subject to rules laid down in the employment contracts, and where relations outside the town are subject to the terms of commercial contracts. (I can’t see this ever emerging in an existing society and displacing an extant government.)
One question that I haven’t resolved is, unfortunately, something at the core of “True Crime”: what do you do when someone murders someone? No one in their right mind is going to contract with a rights enforcement agency that would countenance the death penalty, however unlikely they are to engage in a capital offense. I’m betting this is a plus for those libertarians who would consider this arrangement, given their philosophical opposition to capital punishment: in order to get any business, a rights enforcement agency would have to state in its contract and in negotiations to select an arbitrator that it will not accept execution, torture, or other extreme penalties. If one did not, they would get few if any clients, and their willingness to let them be killed would be rendered moot by the unwillingness of other agencies and arbitrators in this regard.
That still leaves the question of how murder (for example) would be punished under a contract-based society like this. The obvious alternatives are imprisonment, servitude, and restitution. Mars doesn’t have the resources for literal prisons (barring an unlikely rate of crime that makes private prisons paid for by the “losing” agencies economically viable). That leaves servitude and restitution, which in practice may amount to the same thing – indenturing the killer to work for the victim’s settlement for some period of time, for example, or adding the dead man’s remaining contract to that of his killer (payable to the victim’s settlement) as restitution.
But as with many bright libertarian ideas, it treats the problem in purely economic terms, ignoring the moral and societal aspects. Is simply paying what is in effect a weregild adequate punishment for murder? How would one ensure the establishment of social norms beyond simple payment of money, so as to ensure that one can’t simply murder as many people as one can afford? I suspect that anyone running into this more than once would render themselves ‘uninsurable’, i.e.: unable to find any agency to protect their rights, and thus ironically in the vulnerable position of the outlaw in Commonwealth Iceland instead of being able to murder at will. Given time to look further into this, I suspect answers to most such objections can be found in medieval systems of tribal or thing law.
