What is Metalaw?

According to Dr. Ernst Fasan, Metalaw is “the entire sum of legal rules regulating relationships between different races in the universe.” Metalaw is the “first and basic ‘law’ between races” providing the ground rules for a relationship if and when we establish communication with or encounter another intelligent race in the universe. Dr. Fasan envisioned these rules as governing both human conduct and that of extraterrestrial races so as to avoid mutually harmful activities.

A Brief Introduction to Metalaw

by Adam Chase Korbitz

Andrew Haley, Ernst Fasan and the Origins of Metalaw

Metalaw is a legal concept closely related to the scientific Search for Extraterrestrial Intelligence (SETI).  First conceived by pioneering space lawyer Andrew G. Haley in 1956 -- four years before astronomer Frank Drake conducted the first true SETI experiment, Project Ozma -- Metalaw was the term Haley coined to refer to fundamental legal precepts of theoretically universal application to all intelligences, human and extraterrestrial.

In 1956, Haley published an article entitled “Space Law and Metalaw – A Synoptic View,” in which Haley first proposed his “Interstellar Golden Rule”:  Do unto others as they would have you do unto them.  Haley rejected the traditional formulation of the Golden Rule as articulated by philosophers through the ages (from Confucius to Aristotle to Rabbi Hillel and Jesus to Abdullah Ansari) because, Haley said, in Metalaw “we deal with all frames of existence – with sapient beings different in kind. We must do unto others in different frames of reference . . . To treat others as we would desire to be treated might well mean their destruction. We must treat them as they desire to be treated.”  According to Haley, we can project only one principle of human law onto our possible future relations with ETI: “the stark concept of absolute equity.”

Haley's presented his paper at the International Astronautical Congress in Rome in September 1956, which was covered in the October 1, 1956 issue of Time.  In addition, Haley's presentation of a similar paper a few months later was covered in the December 29 issue of The New Yorker the same year.  In this article, Haley explicitly claims, "It's something else to imagine laws suitable for beings that are themselves scarcely imaginable.  The word I've coined for such a body of laws is 'metalaw,' which I define as 'the law governing the rights of intelligent beings of different natures and existing in an indefinite number of different frameworks of natural laws.' "

Haley developed his ideas somewhat further in various papers and a 1963 book (Space Law and Government) published prior to his death in 1966.  For example, Haley proposed various derivations from his Interstellar Golden Rule, including, “In establishing spatial relationships, no force of any kind may be used.”  However, significant elaboration of Haley's ideas did not take place until the publication in 1970 of what remains the seminal metalegal work, Relations with Alien Intelligences:  The Scientific Basis of Metalaw, written by Dr. Ernst Fasan.

In Relations with Alien Intelligences, Ernst Fasan said Metalaw is “the entire sum of legal rules regulating relationships between different races in the universe.” Metalaw is the “first and basic ‘law’ between races” providing the “ground rules” for a relationship if and when we establish communication with or encounter another intelligent race in the universe. Dr. Fasan envisioned these rules as governing both human conduct and that of extraterrestrial races so as to avoid mutually harmful activities.

In Relations with Alien Intelligences, Fasan set forth what he asserted were five essential characteristics of “sentient” beings:

1. Life, in the sense of influencing the environment.
2. Intelligence, involving self-realization, free will, and “realization of the basic ideas of good and evil.”
3. Detectability by humans.
4. Three-dimensionality, or existence or activity with three-dimensional space.
5. At least a rudimentary will to live.

Building on Haley's initial work and extrapolating from the above five characteristics, Fasan in Relations with Alien Intelligences proposed the following rank order of metalegal principles, listed from strongest to weakest:

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 intelligent 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.

In later papers published in the 1990s that more directly related Metalaw to SETI, Fasan distilled a simpler 3-prong formula from the above principles. That formula involves:

1. A prohibition on damaging the other race.
2. The right of a race to self-defense.
3. The right to adequate living space.

Based on on these principles, at the end of Relations with Alien Intelligences, Fasan proposed the following hypothetical scenario of our first contact with an advanced technological civilization (assuming both we and the extraterrestrial intelligence can established a language we can both understand):

"We shall not harm you!"
"We shall not permit you to harm us."
"If harm is done unwittingly, we shall restore your integrity as fully as we can."
"We regard both you and ourselves as equals, neither you nor we are superior, neither you nor we are inferior."
"If we promise something, we shall keep our word; if you promise something, please do the same."
"We have the will to live; we realize and appreciate that you do as well."
"We need three dimensional living space; we realize that you have the same need.  Therefore we shall not impair your space; please do not impair ours."
"We intend to develop our race; but we recognize that for you the existence of your race has preference over our development.  However, we expect you to take the same attitude with regard to us."
"If we can help you in any way, please tell us.  It is an ethical principle for us to extend help to you."

"Metalaw" and Its Use in Popular Culture

While the term Metalaw and the concept it represents are both today rather obscure, the term did enter the popular parlance of the day rather quickly in the 1950s, only to fade gradually into the fog of history.

In Have Space Suit -- Will Travel, a 1958 story by the great science fiction author Robert Heinlein and published two years after Haley's 1956 paper, one of the characters mentions space law and "meta-law":

“Russell, I heard on your tape that you plan to study engineering - with a view to space.”
“Yes, sir.  I mean, ‘Yes, Mr. Secretary’.”
“Have you considered studying law?  Many young engineers want to go to space - not many lawyers.  But the Law goes everywhere.  A man skilled in space law and meta-law would be in a strong position.”
“Why not both?”  suggested Peewee’s Daddy.  ”I deplore this modern overspecialization.”
“That’s an idea,” agreed Mr. van Duivendijk.  "He could then write his own terms.”
Heinlein may have known or corresponded with Haley, or he may  have read about Haley's work.

Early Criticism of Metalaw

Previous authors have criticized the metalegal principles proposed by Haley and Fasan for various reasons.  Haley based his metalegal precepts primarily on Kant’s Categorical Imperative and on an approach to legal science and jurisprudence known as “natural law theory.” In jurisprudence, “natural law theory” refers generally to the view that links law to morality and proposes that just laws are immanent in nature and independent of the lawgiver, waiting to be discovered or found (as opposed to created by humans), usually by means of reason alone.[1]

In this respect, several commentators have noted that Haley’s formulation of Metalaw depends heavily upon subjective or relative (and therefore inadequate) concepts of “good” and “bad.”[2]   In response to Haley’s assertion that to treat others as we would desire to be treated might well mean the destruction of the other (the alien), critics have noted that there is no guarantee that other civilizations would abide by this same rule.[3]

The most pointed criticisms of Metalaw as formulated first by Haley (and later by Fasan) have been leveled by those critical of Metalaw’s reliance on Kant and the natural law theory of jurisprudence.  Dr. Fasan quotes Kant approvingly in Relations with Alien Intelligences:  “ . . . moral principles are not based upon that which is typical of human nature, but must exist a priori of themselves, namely on principles from which can be deduced practical rules for every intelligent nature, and thus for the human one as well.” (Relations with Alien Intelligences, p. 31). Fasan explicitly stated, “When, therefore, we discuss legal rules, valid for every intelligent race and its members, we must start with those principles which are deducible by and from pure reason.” (Relations with Alien Intelligences, p. 52).

It is clear the metalegal precepts Haley and Fasan proposed are squarely rooted in natural law theory and flow from Kant’s Categorical Imperative in a largely deductive manner rather than being drawn empirically from actual human legal institutions in an inductive fashion. Despite this, Haley acknowledged the obvious anthropocentric limits of natural law theory but could not ultimately divorce Metalaw from this intellectual construct. This failure led former Smithsonian general counsel George Robinson to note that the cultural concept of rules or law is itself anthropocentric.[4]

Robinson urged space lawyers, when engaging in metalegal research, to adopt an empirical approach similar to that used by cultural anthropologists. Robinson proposed an empirical analysis of Metalaw by studying human values formed with respect to totally alien concepts and potential situations, in particular “in all bio-ecological and cultural regimes wherein categories of relationships occur and may be distinguished.”[5] 

[1] G.S. Robinson, Ecological foundations of Haley‟s Metalaw, Journal of the British Interplanetary Society 22 (1969) 266-274.
[2] F. Lyall, P.B. Larsen, Space Law: A Treatise, Ashgate Publishing Company, Burlington VT, 2009.
[3] G.H. Reynolds, International space law: Into the Twenty-First Century, Vanderbilt Journal of Transnational Law 25 (1992) 225-255.
[4] G.S. Robinson, note 1, supra.
[5] G.S. Robinson, note 1, supra.