Philosophically, we emulate the common law as it developed in England, spread out to nations everywhere, came to America, and is now extended to outer space. This migration of the ancient idea of common law runs parallel to the recognized and established regime of international space law as maintained by the United Nations and its space faring member nations.
There is no intent nor legal capacity to replace treaty law. Instead, the idea is to supplement it with workable and equitable solutions to every day space settlement problems. The International Space Treaty Regime is valuable and dominant. However, it leaves a large void in the space venue as to commercial, residential, and societal matters, such as property law, contract law, tort law, and criminal law. There was none.
How common law was extended by us into outer space deserves more. The highlights of this journey are summarized below in 10 easy steps:
u 1200 a.d. the concept of a commoner’s legal regime that operated under and separate from the king’s regime in England became acceptable, so long as the king did not object; the king had no competing remedy for the person; and the result fit into a traditional concept of fairness, soon called “equitable remedies.”
v 1350 a.d. the trust estate was created by the Church Court when land owners failed to return from church sponsored crusades. Wills were not recognized in the King’s Court so the deceased landowner’s written directions to his next best friend, (such as to deed his castle from him to the next best friend and, at his death or failure to return from the crusade, for that friend to further convey to his eldest son), were unenforceable at law. The Church Court had no problem. It called the next best friend the legal owner subject to a trust estate for the benefit of the son, the equitable owner.
w1400 a.d. and later the Church Court extended this idea by creating lease hold estates to protect the tenancy of serfs loyal to the eldest son. Then, it created the easement estate to protect ingress and egress for the son and his serfs. Eventually, it created the mortgage estate so the son could borrow money by pledging his trust estate to a lender, the mortgager, who became a contingent beneficiary of a trustee who was also the beneficiary of another trust impressed on his father’s next best friends many years ago. (Don’t worry if this appears complex).
x 1500 a.d. saw the common law feature contract law as an extension of tort law called “trespass on the case,” i.e. breaching a promise was analogous to trampling on your neighbor’s property rights in a “chose in action,” i.e. a floating right (not yet vested), to receive a “thing.” Similarly, a common law of crimes emerged out of a “writ system” whereby the sheriff received directions in writing from the church, the governor, and occasionally from a landowner.
y 1600s saw this system incorporated into the English legal system as a body of law known as the “Court of Equity” law. The dominance of the ruler’s law was demonstrated early on: Shelly’s Case, QB circa 1620 a.d., demonstrated how the common law would defer to the recognized legal system by bending or adjusting to it.
The King’s Court applied its new found Court of Equity laws to modify a trust. It decreed “The Rule in Shelly’s Case,” that a beneficiary’s estate in a trust at common law could not last longer than “21 years plus a life in being.” In this case the original next best friend trustee had died and his heir died and his heir died so the current trustee claimed that his legal title was clouded far beyond the remedial purposes of protecting the original landowner’s eldest son. In fact, it had now surped the King’s law of deeds by lasting far too long and making ownership a burden rather than a benefit.
Once the combined court of law and equity acted to limit the life of Shelly’s estate, all trusts were changed equally, as a matter of law. No problem.
z 1700s witnessed a migration of common law to many nations, notably to America and India. England had abandoned its claim to jurisdiction over the high seas and the property law of trusts, leases, easements, and mortgages had become popular in commerce. A “cut off date” was selected by each jurisdiction.
{ 1850 a.d.: U.S. Congress enacted legislation to extend the common law from America to its extra territorial courts. This included courts on board vessels at sea. Maritime law applied to ships at sea but that proved inadequate because maritime law often referred to applications of the law of the flag of the ship. That, in turn, begged questions of equity versus legal interpretations regarding which laws of which states of the United States should be applied. For example, Maritime law said the captain should perform marriages (and funerals) at sea. However, it did not recognize common law marriages nor state what to do to marry two people by ceremony. Many state legislatures had different rules and some had not yet adopted the common law at all. The 1850 a.d. extension by Congress cured these legal problems.
| 1900s: States of the USA codified common law by legislative enactment in almost all important areas, such as property, contracts, and torts. Then they typically abandoned common law except as a basis in the court system to effect common law remedies or to interpret what the statutes meant, thus referring to the history of common law, including the elaborate “writ system.” Later the writ system was abandoned in favor of specific statutes.
} 2001 a.d.: United Societies in Space extended the common law into outer space as part of its Constitutional Convention from August 4, 2000, to August 4, 2001, creating the “Regency of United Societies in Space” The convention was noticed to all U.N. offices, all U.N. delegations, and to all space agencies. No objections were received. NASA appointed an observer, Diana Hoyt. Since 1994, the U.N. maintained an observer, Beatrice Lacoste, UN-EPA, and U.N. news correspondent, Nairobi, Kenya.
~ 2001 TO 2101 a.d.: The Regency legislature and supreme court will extend and bend this rich tradition into a body of law that may be called “Astro Common Law” to supplement the valuable but often inert space treaty law, so long as no objection, amendment, or sanction is decreed by treaty for the benefit of Humankind, our focus and our beneficiary.
The legal foundation for our entities is the TRUST. We view managers as trustees of a common law governmental trust. The Regency also incorporates the concept of the British temporary regency used to govern during the minority or incapacity of the prince or reigning royalty.
Consistent with the Outer Space Treaty of 1967, the agreed beneficiary is Humankind and all of its nations on Earth. A transition is contemplated whereby the eventual primary beneficiary will be human settlers in outer space. That transition should be executed without conflicts of interest.
Added into USIS space governance principles are those substantive characteristics of government set forth in the U.N. Charter of 1945 at Chapter 11 in respect to “territories not yet ready for the full measure of self governance.” Procedural safeguards are mimicked by maintenance of a Regency Advisory Committee and an USIS Corps of Observers. We see space as a territory with separate jurisdiction from Earth Nations and a place with distinct venues, such as low Earth orbit; high orbits and Lagrange Points; the Moon; Mars; asteroid belt; gas planets; and cycler orbits.
One of our projects is to help develop cyclers proposed by Dr. Buzz Aldrin and a team of specialists from Purdue University and coordinated by the Sharespace Foundation, Inc. We hope to be part of a whole world leading edge permanent space habitat project. Nations are solicited to join into this citizen led and privately financed project.
