Chilean miners: That far down, who decides what’s law?

Even NASA sees it as a case study in isolation

Ivan Alvarado/Reuters

Reflecting on his trips down a Lancashire coal mine, George Orwell wrote that aside from the lack of fire, “most of the things one imagines in hell are there—heat, noise, confusion, darkness, foul air, and above all, unbearably cramped space.” If Orwell found a few days in a coal mine just this side of hell, imagine what it must be like for the 33 Chilean miners who have been trapped 700 m underground since the main shaft of the San Jose gold and silver mine collapsed on Aug. 5.

When the miners were finally discovered on Aug. 22, rescuers quickly realized that it could take as many as four months to bore a hole wide enough to pull the men out. As a result, a great deal of attention has been paid to the urgent need to secure not only the miners’ physical well-being, but also their mental health. In addition to the food and water being sent down through the four-inch-wide boreholes, rescuers are sending down movies and games, notes from friends and families, and instructions for sanity-preserving measures such as the need to establish a clear night-and-day cycle.

Horrific as the situation is, it is also an opportunity to study the effects of isolation and confinement on small groups of humans. With visions of a Mars mission dancing in their heads, NASA has sent a team of experts to the mine site, to both advise and observe. They might also consider sending in some political theorists and legal philosophers, because while the ability of the miners to cope with their circumstances is of huge interest, there is an additional problem that no one is talking about: if things go badly underground, if there is conflict, violence, and even death, what legal regime should apply? Are the men even living under Chilean law anymore?

What is striking about the situation in Chile is how much it resembles one of the most famous thought experiments in the philosophy of law, known as “The Case of the Speluncean Explorers.” Written by the Harvard law professor Lon Fuller and published in 1949, the paper explores the fictional case of five men who embarked on the exploration of a system of caves in a country known as the Commonwealth of Newgarth. When a landslide covers the entrance and traps the men, they sit down to await rescue.

It is 20 days before contact is finally made with the men, who are then told that it will take another 10 days to dig them out. Already on the brink of starvation, the trapped explorers break off contact with their rescuers and enter into a private pact: they will throw dice, with the loser to be killed and eaten by the other four. After they are rescued and have recovered in hospital, the four survivors are indicted for murder. The judge finds them guilty under the law, and pronounces the mandatory sentence of death by hanging.

Their case is appealed to the Supreme Court of Newgarth, and the bulk of Fuller’s paper consists of the differing opinions presented by the five sitting judges. Four hold that the law forbidding murder clearly applies, but the most challenging argument comes from a fifth judge (named “Foster”), who says the law is inapplicable, since the trapped explorers were in fact no longer living under the established laws of Newgarth when they killed and ate their companion. Rather, he said, they found themselves thrust out of civilized society and into a state of nature.

Foster argues that what underpins the unity of a legal order is the principle of territoriality: it is only feasible to impose a single legal system on a group of people if they are forced to coexist in society with one another. Cut off from the outside world by a curtain of solid rock, the explorers were effectively thrown from Newgarth society. Their agreed pact, to throw dice and accept the consequences, was “a new charter of government appropriate to the situation in which they found themselves.”

The parallels between this fictional case and the Chilean miners are not exact. The most important factor is that the miners are receiving food from the outside world, so the grim prospect of cannibalism should not arise. But that does not change the fact that the trapped miners are living in what amounts to a mini society of their own. All sorts of problems could arise in such a cramped space, from disputes over the allocation of food and medical supplies to rules over respect for privacy to procedures for dealing with crimes like theft or assault. If sovereignty is defined by the ability to exercise a monopoly over the use of force, then whatever legal authority currently exists in the San Jose mine, it is not the Chilean government.

Should something criminal happen down there, it would be fascinating to see a Chilean defence lawyer make Foster’s argument.

Most of the miners remain upbeat, but there are ominous signs. Some of the men are already depressed, and a few refused to appear in a video the miners made. They will almost certainly have other problems, which is why officials were careful not to send down any games that might spark conflict. In the 1980s, the Soviet Union banned cosmonauts from playing chess in space after a Soviet researcher at an Antarctic station killed a colleague with an axe, after losing at chess.

It is only going to get worse as the weeks drag on, and the miners are going to have to come up with a set of rules and procedures for allocating scarce resources, resolving grievances, and dealing with deviant behaviour. What they need, in short, is a system of laws. As the 33 unfortunate Chilean miners will soon realize, even hell needs a government.




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Chilean miners: That far down, who decides what’s law?

  1. I`ve read reports about the miners saying that it is important that they have assigned duties, specified meal times, exercise time etc.
    This is all well and good but if there is no sense of order, of a democratic means of making decisions, then the monotony of repetetive days will bring on chaos.

    They may not have been political animals above ground but it is important that they have a system to make decisions for the well-being of the group, now that they are underground. Leadership is vital. If there is not one clear-cut, obviously capable leader, then there should be a group of three that are voted on to oversee things.

    • Yes, a Triumvirate is always just what is called for!

      • Whatever works—one strong leader with a group of three between him and the remaining miners seems like the best set-up.
        I know it may seem too materialistic to propose that the miners should receive monetary compensation for their time in the mine, however, if they knew that they were going to receive a considerable payment for every day they were trapped, it would make their time there seem more worthwhile.
        There does not have to be any talk about life insurance for family members at this time but it could be understood that any monies owing to the miners would go to family members immediately.
        —Anything that will give the miners some peace of mind should be done.

    • Luckily for the miners, they already have a strong leader: their team lead who established and controlled strong rationing of their supplies, which was responsible for their "against the odds" survival up to the time of discovery.

    • In his book "The Survivor: An Anatomy of Life in the Death Camps" Terrence Des Pres documents how, even in the most inhumane of circumstances, humans evenutally organize themselves into mutally beneficial 'societies' which are based on mutual aid.

      However, and I believe this is where humans in adversity get into trouble with established law, Des Pres wrote that in order for groups to do this in extreme circumstances they must simultaneously severely punish those who operate outside those systems of moral order. He describes how a version of "bread law" spontaneously arose in every camp he researched, whereby certain transgressions (theft of food which could easily lead to the death of the person being robbed) were punished by actions which would generally result in the death of the thief. This was an action we might view as immoral, but was in truth necessary for the survival of the group. Hopefully with a steady supply of food, water and "diversions", this threat has been removed, and the group can humanely 'manage' and 'contain' any emotional problems that arise in vulnerable members.

    • hi

  2. Just thank God that bleeding heart journalistic produce is not being beamed down to them. Else they would spend their quiet time developing a keen sense of how wronged they have been – not a useful stance to take when in survival mode. Give it a break, people, and let these men figure it out themselves. They will. As miners, they know all about mutual support.
    (PS one does despise do-gooders and other meddlers).

    • that case a fascinating examination of the differing opinions on whether an action, which in normal circumstances would clearly be a "moral wrong," can become "justifiable" (and "morally right") in certain circumstances, or whether those circumstances simply mitigate judgment making the actions "excusable" (but still "morally wrong"). Similar historically-based thought experiments include the examination of whether allied strategic bombing in WWII was a war crime, and over the use of torture in a so-called "ticking time bomb" terrorism threat.

  3. It should be no surprise that the state would tend to react with prejudice against those who would form their own social contracts, even in such extreme circumstances; Hobbes' Leviathan and all of that.

  4. A Lord of the Flies situation is inevitable.

    • my Gawd, aren't we erudite.

    • No, it isn't.

      This situation brings to mind Viktor Frankl's description of how people behaved in Auschwitz – refuting Freud's claim that under adversity everyone resorts to violence ("the one unstilled urge"):
      "Thank heaven Simund Freud was spared knowing the concentration camps from the inside. His subjects
      lay on a couch designed in the plush style of Victorian culture, not in the filth of Auschwitz. THERE,
      the "individual differences" did NOT blur but, on the contrary, people became more different;
      people unmasked themselves, both the swine and the saints."

    • Inevitable? Please.

      This situation will dis-prove the pessimistic view of human nature that is propagated by "Lord of the Flies", "Blindness" and other similarly dystopian explorations, most of which are predicated on the philosophy of Hobbes.

      That the miners will require some type of rudimentary system of governance is inevitable; that it will necessarily collapse into self-destroying violence is not.

    • Well…you've been proven wrong monkey man.

  5. This situation is fascinating, yet I think the fact that the miners are still in contact with the Chilean state and society is critical. The state cannot right now directly enforce its will on the miners, but they are still in a position to threaten to do so and carry out those threats. The miners do not know exactly when they will be rescued but they will be rescued and they will one day (relatively) soon be back in Chilean society proper. If some kind of violence does start to occur in the mine, Chilean authorities can easily say that there will be consequences for those actions when they are back on the surface. This type of communication alone keeps the miners tied to Chilean law and social contract – though I fully admit it is a highly unique and complicated situation.

    Of course there are probably degrees of sovereignty. If a miner is murdered by the other, I think the Chilean state would still have the legitimacy to try the murderer when the miners are rescued. But as for more immediate and less dire situations – such as the allocation of food – authorities on the surface can probably have little control.

    However, I think that for a government of the miners to be completely separate and legitimate they would need to be out of contact with the surface and have no guarantee of their rescue.

  6. "but there are ominous signs. Some of the men are already depressed, and a few of the men refused to appear in a video the miners made."

    What I find interesting is how we can so easily jump to the conclusion that refusing to appear in a video, or even depression (which is a completely normal response, btw), are "ominous signs". A quick look at case histories of people who snap or make trouble would point out that one is not a prerequisite for the other. The guy waving happily for the camera is just as likely as his camera shy co-worker to be the one who goes off the rails.

    Some thing for depression. The following article provides an interesting perspective on how depression, rather than being a pathology, may actually be adaptive: http://www.scientificamerican.com/article.cfm?id=

  7. Goodness…don't mistake these men based on North American standards of mental health or individual preservation. There's tends to be a strong sense of honour and principle in South American middle class society. Sure there will be frustration and friction but I predict they endure their time underground with a sense of responsibility and a strong moral compass.

    • And as I predicted…united, relatively healthy and alive as well.

  8. The questions raised have already been answered.

    "This is where we eat, this is where we pray, this is where we put our waste. This is where we built a space for one of us who can't breathe well. AND THIS IS THE ROOM WHERE WE ALL MAKE DECISIONS. (emphasis added.)

    The mine owners send down spoiled peaches; the miners send them back. The government censors their mail and restricts their knowledge of the rescue; the miners demand transparency.

    Don't believe NASA, don't believe the mine owners, don't believe the Chile government. Believe the miners.

    The future of humanity is buried below ground in Chile.

  9. I could not help but think of a (not so?) loose parallel: The passengers of United Flight 93.

    Thrust in an isolated environment and presented with a formidable challenge: leadership quickly emerged; a decision was made based on as much information as could be obtained in bewildering and terrifying circumstances; that decision, it was reported, was based on a vote quickly held; and sufficient courage was summoned by enough participants to prosecute the decision in an attempt at self-preservation and at protecting their fellow citizens. The general militia of Flight 93 reported for duty, and served well.

  10. I read it.

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