Many Legal Issues in Silverberg’s A Time Of Changes

I read this book recently and reviewed it for my book review site. It is an amazing coming-of-age story about a young man who rebels against a repressive social system that prevents people from self actualization or becoming intimate with one another. Take a look at my review to get a flavor of the story if you have not read it before. From both a plot perspective and a social commentary perspective it is a masterpiece of SF and should not be missed. It is one of the strongest stories out there by an acknowledged master. Another thing that it has going for it is that it is chock-full of speculation on legal issues, many of which likely came from American culture at the time it was written in 1971.

To summarize: The world of Borthan was an Earth-clone colony world with a significant human population. The culture on Borthan was several thousand years old and was dominated by a religion-based set of rules called the Covenant. The Covenant basically proscribed the act of “self baring,” which meant that with two exceptions it was legally proscribed for one person to ever open up to another. Those exceptions were to “bondsiblings,” and clergy called “drainers,” upon whom for a price one could unload any secret or desire. The drainers were largely treated like toilets, within which all Borthans dumped whatever emotions, feelings, desires or secrets they did not want to carry around any longer.

One of the big issues in the narrative was the way that the Covenant came about. The Covenant came about as a negative reaction to a substance in the water of a certain pool that granted its consumers telepathy. The original colonists were so frightened by the powerful telepathic connection that they had with their fellow colonists that they enacted a code of behavior that denied them any semblance of the “gift” that the drug gave them. Over time the colonists built up a religious significance to the Covenant that served to strengthen it in the minds of their descendants. During the time of the book many of the Borthans had become somewhat cynical about religion (though none abandoned it), but not about the Covenant. The modern Borthan’s legacy was a religious law with an acknowledged religious source and a religiously defined punishment had essentially been transformed to become the civil law of the land. Such as it was, many of the Borthans accepted the Covenant almost as a function of their inherent nature, and never questioned it.

There has been quite a bit of debate throughout the history of the United States over the importance of the “natural law” to our system of rules and laws. They have actually been debating the importance of natural law since the ancient Greeks first described it. But despite the unnecessary thoughtfulness that philosophers such as Aristotle and Hobbes have put into the subject, suffice it to say that in modern parlance, and for our purposes here, the phrase “natural law” refers to that body of law that is so ingrained into our psyches that its expression is nothing more than a statement of common sense. That is, of course, me paraphrasing in my own unnecessarily thoughtful manner, but I hope you get the picture. Black’s Law Dictionary says the following about natural law:

(It) was intended to denote a system of rules and principles for the guidance of human conduct which, independently of enacted law or of the systems peculiar to any one people, might be discovered by the rational intelligence of man, and would be found to grow oft of and conform to his nature, meaning by that word his whole mental, moral, and physical constitution.

In our own western and American history we have taken these notions of fairness and rightness and codified them in a number of ways, starting mostly with religious doctrine and eye-for-an-eye-type of legal codes in ancient days, and today in the Constitution. What we have here in A Time of Changes is a departure from the accepted law of the land based not on man’s needs, but on one man’s needs. The transformation from need to law in Silverberg’s novel is no more mysterious than the method by which the commandment “thou shall not kill” morphed over time into the modern or common law murder statutes. But the questions that are left in one’s mind here are whether the Borthan’s supreme law of the land was really accomplishing the inherent needs recognized by the articulation of natural law. I certainly don’t think that it does. No system that prohibits intimate knowledge of another is tenable to me. Nevertheless Borthan ticked along nicely before Kinnall came along. Of course that is not what Silverberg was really writing about; to support that was not his point. On one hand this book was about a poor, dejected and out-of-place boy who fought the big, uncaring system, and on the other it’s also about a drug addict who caused all kinds of horrible collateral damage in his quest for his next fix. Kinnall is the tragic hero because he is the enlightened visionary whom everyone ignores, and who is branded as a criminal for his efforts to help others. The dichotomy is as old as the hills, and apparently is not going to fade from us soon.

Remember though, the list of crimes against Kinnall include illegal drug use, the religious crime of self-baring, and culpability for the death of his bondsister, Halum. There is quite a bit of ambiguity here though, because Halum used the drug voluntarily, but at the heart of the matter the death of someone other than Kinnall occurred, and that can be blamed on his illegal importation of the drug, and because he was thought to have influenced Halum’s decision to take the drug. This is actually a separate crime which our laws would strongly support. There is of course a strong moral counter-argument to the idea of punishing addicts rather than helping them. But how is Kinnall any different than Timothy Leary? So strange here though that Kinnall became a recidivist in order to promote the use of his drug, while Leary advanced psilocybin as a cure for recidivism. Although, what I just said is technically misdirection. Leary got into all kinds of trouble for advocating illegal drugs such as LSD, but his initial research with psilocybin was conducted before use or possession of that drug was criminalized, so in that sense Kinnall is a pretty close stand-in for Leary.

Consider also that Kinnall was quite a bit younger than Leary when they each committed their crimes. Kinnall’s crimes were essentially forgiven, even though its use led directly to the death by suicide of one who was not ready for the experience. This was almost certainly because of Kinnall’s royal blood, but it also could have been because he was a youth. As a general matter of public policy society tends to be somewhat forgiving when it comes to crimes committed by the young. There are a wide variety of reasons for this. Often it’s because we wish to avoid imprisoning youths at the most crucial point in their development, and hope to prevent careless youths from becoming hardened criminals. Sometimes its because we rationalize the act and conclude that youth is incapable of the state of mind, or mens rea, necessary to commit a crime. Other times it is because we want the young to take risks so that when (and if) they grow older so that they will be wiser and have more experience with success and failure. But here I think it was because of a combination of his age and his royal connections. And because of that, it was only when Kinnall openly committed his crime again with the knowledge that he could put others at risk for great bodily harm or death that the full force of the law was brought down onto him.

Being as it is very hard to dismiss one’s analytical self from one’s moral self, my personal opinion is that Kinnall did not get a fair break. True, Halum died, but Halum made a choice, and as enthusiastic as Kinnall was about telepathic sharing, he made the conscious decision to keep the drug from Halum for a long time because he did not want to shock her by allowing her to see first hand how deeply he loved her. In the end it was Halum’s personal choice to take the drug, so I don’t see how Kinnall could possibly be directly responsible for her death. In our system the only homicide charge that could apply is second degree manslaughter, which requires a conscious disregard for a known risk to occur. Kinnall had taken the drug with dozens of people and never was an adverse reaction had. Most of those people selected themselves though, and probably felt as trapped as Kinnall by the Covenant. Halum did not share those feelings of bondage and probably took the drug out of curiosity and with the highest trust for Kinnall’s word that she would be fine. Still, her death was not Kinnall’s fault and he cannot be held culpable for it. Despite the fact that the only remaining civil crime then was a victimless one, as was the religious crime, I think that he was given a severe penalty on a pretext: The authorities took the position that the drug was likely to cause that harm again, even though it was unlikely to do so. Then based upon moral outrage that arose from the breach of the Covenant, they punished him severely for the death.

Silverberg’s text is still full of other issues that I have not commented on here. They include:

• The proscriptions on marriage to a bondsiblings, and the fact that bonsiblings existed in teh first place and were provided for each individual before birth implicate Family Law;

• Government Structure was an important aspect of Silverberg’s world building here. The land was ruled by a group of seven leaders, the most powerful of which was called the Septarch. The day-to-day operations of society, which in our world are handled by the executive, mayor, or president, were handled by an office called the Justiciary, which was more court-oriented in structure and outlook;

• The threatened action against Kinnall implicated Criminal Procedure and Penology.

• In the climax of the book one of the drainers became a witness against Kinnall, after Kinnall confessed his trip abroad to get more of the drug, his use of it, and his lust for Halum, his bondsister. Local rules would have prevented that clergyman from actually testifying against Kinnall, so the Justiciary had to go out and find an independent witness. They did this by finding one of Kinnall’s favorite prostitutes, and they got her name from the clergyman; apparently Kinnall and his drainer had spoken about more than the drug. In our system of Evidence Law there would exist sufficient grounds to preclude the prostitute’s testimony, unless the prosecutor had an actual independent basis – meaning independent from the drainer – to have found her. There is also an interesting aspect of Contract Law here. On Borthan nobody really trusted anybody else (how ironic for a society that is premised upon a “covenant,” right?). How could they trust one another if they were prohibited from ever getting to know one another? To keep society flowing along a strong tradition of civil contracting had developed. Silverberg did not give enough in his descriptions of this for me to analyze the elements of a contract – offer, acceptance, consideration – but the fact is that drainers entered into contracts with their clients. The drainer here violated his contract by bearing witness against Kinnall. The prostitute even had a written contract with Kinnall. I wondered quite a bit what the implications of breach of those contracts were, but they were minor characters and Silverberg did not get into that.