Chilean miners: That far down, who decides what's law? - Macleans.ca

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

Even NASA sees it as a case study in isolation

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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.