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I've been researching the origins of my world's legal system. I'm trying to develop it over time in a somewhat logical and organic manner and I've come to realise that I don't yet have a clear idea of the starting point of my cultures legal system.

In trying to research examples I have managed to seperate my scenario into different yet related examples.

  • A civilian cruiseship crashes into a deserted island or is stranded adrift at sea.
  • A civilian spaceliner crashlands onto a deserted planet or is stranded adrift in space.

Rescue will take weeks/months. It is not expected to be immediate. The captain and trained crew initially took control during the initial emergency (as expected). What happens after the initial emergency is over...

What law applies to the crew and civilian survivors during this extended emergency period?

  • Law of the ship's country or planet of registration?
  • International Maritime Law?
  • Martial-like Law?
  • Some sort of Colonial-like law?

Question - Is this something that one could expect to have already been codified into Law or is it something that each disaster situation will deal with uniquely: the survivors and crew (and author) have to figure it out for themselves?

Notes for Answers:

  • The time period of these scenarios is near future, using past- and current-day precedent to base the legal system on.

  • Answers can use either sea/space scenario or both. I believe the scenarios are similar enough to avoid being too broad, and by combining them into one question it allows space answers to build on historical examples rather than pure opinion based speculation into the future.

  • If the answer is "it depends" (which I truly don't mind), the answer that explains the major legal variables/issues at play would be accepted.

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    $\begingroup$ If I understand your question correctly, you are asking about the real world and want to use the same logic for space stuff? There is a law SE. While I don't think that this is off topic here, if I were you, I would ask there first because of the expertise they have $\endgroup$ – Raditz_35 Aug 8 '18 at 13:26
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    $\begingroup$ This question is not about building a legal system, but rather about applying current legal system. Therefore I am voting to close this question as it should be migrated to Law.SE $\endgroup$ – Pavel Janicek Aug 8 '18 at 13:38
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    $\begingroup$ This is just what I would do. I understand if you trust the community with this one and don't mind it. But if you give it a shot over there, you should of course edit out the fictional parts and focus on the real world stuff, I think they don't like it very much if you ask them about made-up space law $\endgroup$ – Raditz_35 Aug 8 '18 at 13:42
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    $\begingroup$ @PavelJanicek I understand your logic. Personally I don't agree :) Just wondering, you do know you can flag to migrate and not vtc? :) $\endgroup$ – EveryBitHelps Aug 8 '18 at 13:47
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    $\begingroup$ @PavelJanicek, Real world questions are on-topic. $\endgroup$ – JBH Aug 8 '18 at 19:32
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It depends

It depends on what jurisdiction is in play.

Jurisdiction is the practical authority granted to a legal body to administer justice within a defined field of responsibility, e.g., Michigan tax law. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels; e.g. the court has jurisdiction to apply federal law.

Colloquially it is used to refer to the geographical area to which such authority applies, e.g. the court has jurisdiction over all of Colorado. The legal term refers only to the granted authority, not to a geographical area.

Jurisdiction draws its substance from international law, conflict of laws, constitutional law, and the powers of the executive and legislative branches of government to allocate resources to best serve the needs of society.

On Earth, jurisdiction is seldom a major issue because national borders make this a fairly trivial issue. It becomes trickier when outside national borders, like on a ship at sea or in an aircraft. But usually there are agreements between nations that sort this kind of thing out. And in any case the enforcers of each jurisdiction are always "close" at hand, i.e. they can physically catch up with the vessel in question and start exercising their authority.

Out in space, or on another planet, this is a whole lot more... tenuous. Let us look at that definition again:

Jurisdiction is the practical authority granted to a legal body...

Well if you do not have any people in authority with you, then the legal body has no practical authority. And if people choose to ignore those that have been appointed officers of that legal body, they there is also no "practical authority".

So it depends on a couple things. Jurisdiction depends on...

  1. The good will and the compliance of the subjects of this jurisdiction. If the subjects decide to ignore the jurisdiction, there is not a whole lot that can be done other than to try to force people to comply.
  2. That someone has been appointed an officer of the legal body in question, and that this officer has survived the journey and — not to be forgotten — is still keen on holding the office

If points 1 and 2 have been discarded and are not in play, what happens then?

Well, either anarchy and complete lawlessness. Or people will bootstrap a new society, starting from first principles, forming a constitution, coming to a consensus, and then continuing from there with their own jurisdiction.

Do note that this particular question will have been asked by people that send out these expeditions. It will also have been asked by those that go out on these expeditions, since their survival may very well depend on it. Technical skills are quite easy to learn, but getting along with other people when "lost" in space is the key to surviving and not getting screwed. Everyone knows that if you lose cohesion, there will be lots of trouble. And everyone also knows there will be opportunists, so there may very well be those that decide to just do their own thing, and not caring who they trample on in the process (or maybe even enjoying it way too much).

So "Bootstrapping Protocol" is very likely to be part of the training that these explorers / colonists get before setting out.

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    $\begingroup$ Excellent thanks. This gives me something to work on for discovered planets and claimed by some legal entity, as well as creating some lawlessness on the undiscovered and unclaimed planets. I have several isolated groups of survivors and this allows me to have some more civil and law abiding and others just an angry mess at the incompetent 3rd officer in charge. $\endgroup$ – EveryBitHelps Aug 8 '18 at 13:58
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    $\begingroup$ @EveryBitHelps Do note that this particular question will have been asked by people that send out these expeditions, and those that go out on these expeditions, and — in particular — those that intend to exploit the opportunity, and — even more so — those that intend to keep the former under control. So a "Bootstrapping Protocol" may very well be part of the training that these explorers / colonisers get before setting out. Technical skills and education is all easy to learn, but getting along with other people when "lost" in space is the key to surviving and not getting screwed. $\endgroup$ – MichaelK Aug 8 '18 at 14:04
  • $\begingroup$ @EveryBitHelps Added that comment to the post. $\endgroup$ – MichaelK Aug 8 '18 at 14:08
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    $\begingroup$ Welldone on making the distinction that space explorers (at least in the earlier days, or in the furthest borders) are likely to have special training and a behavioral code and enforcement means exactly for such cases - their survival during routine travel depends on it, more so during an emergency. $\endgroup$ – G0BLiN Aug 8 '18 at 16:24
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    $\begingroup$ @MichaelK, that's the plan! Find a consistent starting point and follow all the different story-routes over time. $\endgroup$ – EveryBitHelps Aug 8 '18 at 20:25
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You are writing a story, right?

There is the law, which probably grants sweeping authority to the ship's captain for the duration of the emergency. The authority probably covers passengers and crew who have left the ship in the emergency, e.g. in a lifeboat.

  • Precedents from present day shipping don't quite fit because there are no unclaimed islands to maroon them. It will be more like the law that applied to an East Indiaman on the months-long voyage.
  • There might be laws and precedents what the captain can do. He can probably arrest somebody for trial by the legitimate authorities. He probably cannot sentence a mutineer to prison or death.
  • If the starship is expected to be out of communication for a long time, and if it has a large population, the previous bullet point might not hold strictly. There would be a procedure to investigate and punish petty crime. Major cases might still be reserved for planetary courts.

When the passengers and crew realize that rescue is a long time away, the old order will start to crumble. A passenger or crewmember might refuse orders to plant crops, or to share the harvest. "What are you gonna do? Lock me up? You can't feed me any worse than now and I'd be out of this glop."

Somebody, either the captain or a new power group, is going to usurp the judicial power, along with legislative and executive. This will be a mixture of convincing the involuntary colonists that they must hang together, and force to enforce compliance.

When they are finally rescued, somebody is going to sue the captain for false imprisonment and a host of other crimes. Either there are already precedents for this, or it will be the trial of the century. If the captain is an ethical character, the unclear legal situation will weigh heavily on his or her mind. Does the duty to protect the entire crew include a right/duty to punish individual troublemakers?

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    $\begingroup$ You might also explore the ethics of exile as a punishment in this situation. On the one hand, on an unknown island/alien world, exile might be certain death. On the other hand, "he wouldn't cooperate with us, so we didn't cooperate with him" might be more persuasive than "he wouldn't cooperate, so we shot him". $\endgroup$ – Cadence Aug 8 '18 at 16:56
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    $\begingroup$ @Cadence, if it is the duty of the captain to bring all passengers to safety, then exile as punishment would be abdicating this duty. And a small, unplanned colony on an untamed world will need every human. $\endgroup$ – o.m. Aug 8 '18 at 17:09
  • $\begingroup$ The base commander of a British base in the Antarctic (today, in this world) is sworn in as a magistrate precisely so he can try someone for crimes (it may not be possible to reach a base for several months). $\endgroup$ – Martin Bonner Aug 8 '18 at 17:11
  • $\begingroup$ @MartinBonner, I wonder if this would be done just in case for every ship captain. And also if the real-world magistrate-and-commander would need outside permission to use these powers, or if he can act without communications. $\endgroup$ – o.m. Aug 8 '18 at 17:15
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    $\begingroup$ @EveryBitHelps, I expect that the law would give the captain the necessary powers for a non-shipwreck situation, and that the shipwreck situation is a very special case that is not well covered. For example: "The captain can order a suspect detained until he can be handed over to competent authority. This detention is not intended as a punishment, and the suspect has a right to standard meals, access to the entertainment systems, one hour a day in the gym, and full pay and bonuses." That rule works well for a few weeks, protecting the innocent from tyrannical captains, not for years. $\endgroup$ – o.m. Aug 9 '18 at 15:25
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In the end, the law depends upon force alone, and what people are willing to enforce, and what people are willing to tolerate being enforced upon them.

The details do not matter; you have the equivalent of either monarchy / dictatorship (one ruler determines the law, the ruler's minions, in return for a share of spoils, enforces the ruler's dictates); or you have collective law; the people agree to rules and agree to take the risk of enforcing them upon all.

If people do not agree to the law, they can revolt (violently, or by disobedience, or surreptitiously), or run away and strike out on their own, or submit to it out of fear of the enforcers.

In the end, the power of the people physically exceeds the power of their rulers and could overwhelm them, even in modern countries like the USA or China. There are far more civilian adults than the army or all the politicians. However, revolt would generally entail a great loss of lives, and that prevents most people from joining a revolt; it takes an awful lot before most people would rather risk death than continue in their current life.

They are more likely to try and escape or run away, or find ways to break the laws without being detected (e.g. an underground economy to escape taxation, or drug culture, or surreptitious prostitution, or surreptitious sex culture where homosexual or other sexual practices are illegal).

In civilized countries, we use proxies for the collective law enforcement; paying volunteers (police) to take the risks for the rest of us and enforce law, and rely on politicians (elected or not) to set fair laws that make sense.

In your proposed scenario, I'd expect a debate among the ruled over whether laws apply to them or not; and I'd expect the captain to try and assert effective dictatorship of being in charge. That would probably be accepted if it were fair and everybody was getting enough food, shelter, medical care, etc. When resources run short, I'd expect a pretty quick revolt, in principled debate to start, followed by violence if that failed. Presumably lives are at stake.

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There's two old ideas that you could hark back to:

  • Ship Law; the idea that the rules and regulations that govern ships in space can be extended to planetary settings and used as the basis of a code of laws, this does tend to end up looking more than a bit like a military dictatorship.

  • The other idea is what Andre Norton referred to as a "lifeboat code" pre-arranged codes of conduct that are used to set up governance in the event that a ship's crew, and any passengers, are stranded, these are any shape the author wants them to be.

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  • $\begingroup$ Lifeboat code sounds like what I've been thinking of developing. Have a set of emergency laws and then over time survivors can modify it as necessary (by vote or force as the story goes) into a fully working legal framework. $\endgroup$ – EveryBitHelps Aug 8 '18 at 14:22
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    $\begingroup$ @EveryBitHelps From memory, Andre only uses the idea in a couple of books neither of which do a real deep dive on it, lifeboat code is supposed to be a fully fledged set of laws from the outset, there may be parts of the code that don't fit the particular circumstances of the situation, and there's a lot of literary ground to be made from examining such misfits, but they're a full set of laws. $\endgroup$ – Ash Aug 8 '18 at 14:49
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You're overthinking this

The laws on a ship of any kind where the captain/commanding officer is anticipated to act with autonomy during the voyage always operates under the maritime law of the country whose flag is flown by the ship. It doesn't matter if the ship is military (wherein a naval subset of maritime law is applied) or civilian (wherein a civilian subset of maritime law is applied).

International maritime law has no affect on what the individuals do on their ship. International maritime law is a legal structure that allows nations to resolve disputes when national interests are involved. It would have some claim on individuals stranded on an island claimed by a nation not the flag flown by the ship. In other words, if a Netherlands cruise ship is stranded on one of the U.S. Virgin Islands, the maritime law of the Netherlands operates on the ship, U.S. law operates on the island. International maritime law resolves disputes in procedure and punishment.

You said I was overthinking this, please get to the point...

There are three kinds of law involved in your scenario:

1) The law of the nation whose flag is flown by the ship. This would include corporate ships as, on Earth, no ship flies without a national affiliation (OK, one type of ship does... they're called Pirates).

2) The law of the nation claiming the planet the ship is stranded on or the region of space it is stranded in. This certainly applies to anyone foolish enough to step outside the ship.

3) Treaties are important because law does not bind by its simple existence. If the Zurenians don't recognize Terran law and you had the misfortune of breaking down in Zurenian space, the Zurenians will do what they please, which includes enslaving the ship's population or imposing punishment on ship population. This is what we'd call "international maritime law," which isn't a body of law so much as it is a series of treaties that embody rules for resolving disputes over jurisdiction, claim, and punishment when two (or more) opposing bodies of law collide.

A word about developing law

Laws are only useful when laws can be enforced. A colony ship had better have agreed to what laws they intend to abide by long before they launched because it's completely unreasonable to believe a group of people can conjure up a decent set of laws when they're beating off wild Haruuga beasts or dying from the remarkably mild bite of that purple fuzzy caterpillar thing over there. And it gets really complicated when you meet these short skirt-wearing dudes covered in grey mud who patiently pantomine the fact that you're six weeks late with the rent and you suddenly wonder if it would be easier to ask for permission to commit genocide or forgiveness.

If your universe has so many colonists, such accesible tech, and so many empty planets, that people really can buy their own ship and colonize their own planet without governing influence, then they really need to worry about law first. However, most likely, organized governments will control the colonization process to (a) guarantee they have influence over the laws and trade and (b) collect fees (have you ever heard of a government that doesn't collect fees?).

Keep in mind that governments are created to enforce law and governments are quickly addicted to the habit of doing so. It's difficult to believe colonists would be allowed to develop their own legal system before declaring or being allowed to declare independence from the colony-sanctioning-government. Thus, my point about the three types of law, above.

Finally, a word about those pesky pirates

Do you remember when I said laws are only useful when they can be enforced? Pirates exist where law is difficult to enforce. Even among a group of reasoning beings — scientists and philosophers the lot — if there's no way to enforce the laws you brought with you the dude able to wield the biggest stick will inevitably (and I mean that, inevitably) begin changing the laws. We see that happening with established governments world-wide on Earth today, where individuals and/or groups shout down, bully, threaten, etc., to get laws changed. Sometimes it's for the best, sometimes for the worst, and that's always from someone's point of view. U.S. citizens usually look on our revolutionary war as a great thing. I'm not convinced British subjects agree. I've met Canadians who wish the U.S. would get on with paying them to absorb their country. Other Canadians who would bust a vein screaming over the very thought. And French Canadians who wish both of the above would just set Quebec free already.

My point is, laws are complicated to enforce when it's "easy." Pirates exist when it's not. Generally speaking, people tend to follow the laws they were raised with — but never forget there's a little pirate in everyone's soul, and whether you're later labeled "pirate" or "privateer" depends very much on people's points of view and who wins in the end.

Law... you gotta love it....

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  • $\begingroup$ Some excellent points. Just want to point out that this was a "cruiseliner" not a colony ship. So those pesky preliminary plans where never handled before they embarked on the trip. Everything you wrote is still helpful though. I've always found the difference between pirates and privateers morbidly hilarious! One minute you running from the authorities, next you are the authorities and then you running from them again! $\endgroup$ – EveryBitHelps Aug 8 '18 at 20:23
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One essential thing to determine first is whether all of the survivors are part of the same group and willing to work together as a society. People self-organize into groups at the levels of family, clan, tribe, nation, empire, etc. Each of these may choose to govern itself. If you're talking about a cruise ship hitting an island, the geography might be small enough that the survivors all have to form one group. On a deserted planet though, you could have people spreading out and forming multiple polities. Are the crew a random hodgepodge of passengers unacquainted with each other, or do they belong to a tight-knit group?

I could imagine that on a deserted planet, you might have different subgroups organized by nationality, or religion, or political philosophy, splitting up and moving into different valleys. In that case, each group might form its own constitution while it's hiking to its new encampment; sort of like the Mayflower Compact.

On the other hand, if all the survivors stay together for some reason, they probably will defer to the ship's captain and the constitution will be developed in a more reactive way, answering each new question as it comes up.

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