Limyaael

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10:11 am: The legal system, punishments, judgment, and "justice"
This is a questionnaire format more than anything else. I seem to be blocked on writing regular rants, so we’ll see how this works.



1) What are your laws like? Too often, laws just show up in fantasy to add a little convenience or inconvenience to a story. Thanks to a little-known law, for example, the protagonist can compete with her accuser in the kind of single magical combat she’s good at instead of having to argue with him. Or the protagonist is arrested because of a plainly ridiculous, vague, and obtuse law that doesn’t apply to what she actually did.

This is another case where it’s good to remember that other people beyond your protagonist exist, that her society was there before she was and will be there after she’s gone (unless she’s a goddess, I suppose, but I am exiling all the godly characters to the corner today). Those people need laws for their own benefit, whether the protagonist is present or not. They may, of course—probably will—have to live with unclear or vague ones, and will try to change whatever kind of legal system is present to their own advantage. But it should be as coherent a part of the background as the system of inheritance in the monarchy or the reasons that people own land.

So. What are the laws like? Who makes them? What assumptions of power do they make? (For example, the automatic idea is that the laws must favor the wealthy, but if a different class, such as mages, is privileged in your society, they probably have their own legal safeguards). How are they passed? How is that process vulnerable to corruption? What safeguards against corruption are set in place? Yes, of course they can probably be broken, but, once more, your legal system shouldn’t be a chaos where coherent sentences flourish only by accident. If it can’t present the appearance of authority—notice I did not say “justice”—no one else has a reason to listen to it.

2) Who deals with the law? Lawyers are not inevitable.

No, really.

It depends on the assumptions guiding your legal system. One of the American legal system’s is that law should be majestic and obscure and hard to understand, or it’s not law. To grasp the law, you need special training, in the language and in the consequences and in the cases that set a precedent. And just because you’re qualified to deal with one branch of law doesn’t mean you can deal with others. If you don’t believe me, ask a civil defense attorney about copyright law.

Now, an invented culture can have completely different assumptions about this, especially if it’s a smaller society than modern America’s (which most of them are) and money/profit is not at the core of the way it lives (totally possible). It could be religious law, with law shaped so as to please the deity and not offend. This may sound funny, but you are not the one about to be cooked by a lightning bolt. And if you think the Ten Commandments are an exception because they’re a universally applicable set of general human principles, look at the first four of them again.

Perhaps the invented culture puts peaceful emotional relationships among others at the core of its existence. That would make them extremely unlikely to have laws which would encourage discord instead of reconciliation. They might have professional negotiators instead of professional lawyers. They might pay a great deal of attention to how people behaved towards each other and what they thought. A dispute might be mostly talked about until it solved itself. Persuasive argument could still be a powerful tool of the legal system, but its audience would not be judge and jury.

(Actually, I’d like to see that, because many of the fantasy societies with a different legal system seem to prioritize discord and offense instead—i.e., blood feuds).

Consider how magic gets involved, as well. It never made sense to me that a society with a high number of telepaths and empaths wouldn’t utilize them in its legal system. Perhaps there are moral sanctions against doing so, but then why are there no moral sanctions against having telepaths read the thoughts of friends? And if an empath can read the irritation of her next-door neighbor when his day didn’t go well, wouldn’t she also be able to feel his pain and fear as he was murdered? That doesn’t mean she’d know who did it, but I find it strange that she wouldn’t be involved at all in the resulting investigation, if only to confirm that it was murder.

The single most difficult thing about integrating magic with the functioning of your legal system is to set limits that make sense. Think about it carefully, especially with mental magic.

3) How is magic used? This is yet another place where knowing the logic and principles behind your legal system will come in handy. Your readers might think a particular use of magic is immoral, but the society involved should not (or the discrepancies in its use should at least be justified. I think far too many fantasies rely on their own fantasy, that everyone in the world except the protagonists would be too crushed to do something about the most blatant corruption and lack of logic).

For example: Forensic murder magic is distrusted because it involves cutting off a piece of the corpse, and the dead person’s relatives are a bit skeevy about what exactly this mage is going to do with Our Bertie’s finger. Fair enough. But then why, later in the story, does the forensic mage show up with the valuable information in the nick of time? Did he find a corpse without relatives to object? Did he somehow hurry what we’ve been told is usually a long, delicate negotiation process? Sometimes it’s that, and sometimes there turns out to be a loophole so that something not thought to be possible with forensic magic is possible after all!

Yeah. And pepper your project with loopholes like that, and all that carefully crafted tension and worldbuilding you’ve done has gone to waste.

I’m all in favor of integrating magic into a fantasy world’s legal system; I think that if it was readily available, or even available but chancy, people would use it, and find ways to make it safer and more accurate. But using magic as a sword to cut the Gordian knot of legal complications is no more advisable than to suddenly declare that your heroine has accessed her inaccessible power to defeat the dark lord.

4) How just is the treatment given criminals? Perhaps not at all. But again, there will have to be some rhetoric to justify that, if only along the lines of, “People like this are too dumb to understand the legal system anyway,” or, “Since she’s a member of [insert X despised group of people here], she doesn’t deserve the treatment that we’d give one of our own citizens.”

Think about basing the rules on something that is not English common law or the Miranda rights. Again, it should make sense for the society. Perhaps the right to silence is irrelevant, because they have telepaths who can pull the truth out of your head anyway. Perhaps the wronged person or the wronged person’s friends and relatives have the right to beat up the accused, but only for a limited period of time. Perhaps the accused has the right to make a speech, granted because many of them are hysterical anyway and won’t be good speakers. Perhaps theological law has transformed into political and social law, so there are still odd exceptions built into normal legal conduct for the sake of gratifying the gods.

Consider changing the treatment depending on the crime and the amount of evidence, too. Murder can earn a harsher handling than stealing a loaf of bread, and murder where the suspect was caught in the act doubly so. And connect the treatment of individuals to larger patterns in the society. What kinds of people are victim and criminal, and what is the normal attitude towards them? If women have a low status in the fantasy society, rape may not be considered a crime against the woman at all, but only a crime against another man’s property. Or a noble’s son may find himself in a sticky position because he stabbed a young woman he assumed was a lower-class prostitute, despised by most of the people he knows, but it turns out that she’s the emperor’s cousin. Or a city of pale-skinned people might be negotiating a delicate truce with a darker nomadic tribe for their goods, and so a boy’s throwing stones at a nomad child and breaking his skull happened at just the wrong time, while if it took place a month previous no one in the city would have cared.

5) Who has the right to inflict punishment? If your legal system is set up very differently from the US/Western European one, judges are not inevitable either. Or juries. There may be a magistrate who decides on the punishment in reference to laws already on the books, without bothering to call for a jury. Judgment may be left up to the gods, to the victim or her relatives, to someone entirely outside the conflict who is deemed more impartial, or to a mage who is considered the servant of justice. (Something like the last happens in Diane Duane’s Stealing the Elf-King’s Roses, though it’s not done particularly well). The amount of interference that outside parties who are not said judge have in the process may be great—the ability to give bribes to ensure a certain outcome, for example—or severely limited.

As with the other adjustments you’ll make to your created legal system, this depends a great deal on what your society values. Impartiality is at the core of what supposedly makes a good judge for us, but within another culture’s rules, it might be the favor of the gods, or sympathy for the victim, or being the daughter of a long and distinguished lineage of women who have always made favorable judgments in the past. Decide, or look at, what you’ve established as having value in other aspects of your society and why, and enact it here.

6) What are the punishments like? Execution, or the threat of execution, is fairly common in most fantasies that involve the legal system, but there are plenty of reasons to avoid it (strong murder taboos, a concern for what will happen to those who see it, concern for pain, the religious consequences of killing another person, lack of anyone who can perform the necessary kind of death, and so on), so here are some others:

Exile
Shunning/ostracism
Maiming, such as removal of a finger or a hand or an eye
Indentured servitude or slavery (which can be along a continuum with indentured servitude or entirely different from it)
Payment of a fine (possible in animals or land as well as money)
Imprisonment
Removal of what made the crime possible in the first place (if a theft happened because a woman needed money to fix the leaking roof of her house, the people she stole it from might think that pulling down the house would solve the problem)
Loss of privileges (such as the freedom to move wherever one likes; a criminal might have to stay inside or just outside the boundaries of the town)
Parole, or forms of it (such as being required to report to a magistrate or religious leader every few days on one’s movements)
Restriction of interactions with other people (maybe a condemned criminal can still speak to adults but not children, lest he corrupt them)
The wearing of an identifying marker (The Scarlet Letter)
Death at a distance (exposure, or casting someone out into a desert with little water and no clothing)
A risky task (“Hunt down this other escaped criminal who’s much more violent than you are and bring her back, and we may forgive you”)
Humiliation (such as public abasement to the victim)

Why use these? To vary the legal system, and also to posit a society in which execution is not the punishment for everything. (If it were, then once again you run the risk of creating a legal system that no one but the very protected can justify and which should have been attacked and/or toppled long before now).



Comments

From:[info]merditha
Date:September 30th, 2007 08:15 pm (UTC)
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There is also the issue to address of how people think of "the law", on a gut level. Do they think of it as "the law", as an abstract set of rules that are then applied to real life, something outside and identifiable and tangible, or is it simply "the way things are done"? If your group of people is especially small, it might well be the latter, rather than the former, because the momentum of the-way-things-are-always-done carries forwards.
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From:[info]limyaael
Date:October 1st, 2007 07:55 pm (UTC)
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Yes. I think many fantasy authors make a mistake in treating small societies exactly like large ones, so that there's an elaborate trial, with jurors and witnesses and everything, in a village or tribe that only has about fifty people. Frankly, if there are only fifty people, I doubt they could find twelve jurors who are a) adult and b) could spare the time to sit on a jury and deliberate for days. It works out much better with a larger population.
From:(Anonymous)
Date:October 1st, 2007 01:20 am (UTC)
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Look at history. Read things like the law codes of Ugarit, which makes one realize that the Deuteronomic law of the Old Testament was a model of egalitarianism and enlightenment for its Age.

In theory, law are the rules a society comes up with and enforces for the sake of order and prosperity. In reality, the laws tend to be the rules those in power come up with and enforce for the sake of order and prosperity. At various times in history, those in power have figured out that if those not in power have some legal recourse for grievances, they're less likely to violently overthrow those in power.

dragoness-e@livejourna.com
You'll see very oppressive laws when the guys in charge are badly outnumbered by the oppressed and feel obliged to use draconian methods to keep them under control. Roman slave laws got a lot more restrictive after Spartacus's rebellion.

Or the protagonist is arrested because of a plainly ridiculous, vague, and obtuse law that doesn’t apply to what she actually did.

This happens in the Real World when you have an obsolete law that is no longer relevant, so no one actually enforces it, but it's still on the books. Then it gets used to persecute someone the guy with the lawbook doesn't like... (c.f. various state laws against Sodomy)
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From:[info]limyaael
Date:October 1st, 2007 07:57 pm (UTC)
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At various times in history, those in power have figured out that if those not in power have some legal recourse for grievances, they're less likely to violently overthrow those in power.

Exactly. But we rarely see that; most of the time it's just the powerful abusing the law so outrageously that I'm astonished there's not been a revolt. The people would probably figure they have nothing to lose by fighting, at this point.

This happens in the Real World when you have an obsolete law that is no longer relevant, so no one actually enforces it, but it's still on the books.

Yes, but the key phrase in my complaint is "plainly ridiculous." If the heroine's opponents are going to go to the trouble of applying an outdated law to take up her time, they should be smart enough that they're not selecting something that's self-evidently dumb.
From:[info]dsgood
Date:October 2nd, 2007 04:51 am (UTC)
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Note that in the real world, taking advantage of an obsolete law doesn't always work out well. Example: A Hudson Valley landowner realized that a bunch of farmers owed him feudal dues -- which were way overdue. (This was after NYState had already passed a law to abolish feudalism. And feudalism had never taken hold in that area.)

The result: the Tin Horn Rebellion, during which farmers and their allies disguised themselves as Indians to fight back against this kind of crap. Indirect results included part of the impetus for forming the Anti-Masonic Party (whose first and only Presidential candidate was a Mason....)

Oh -- and a law was passed against disguising oneself as an Indian. Which was used in New York City (through the 1960s, I think) to arrest gay men who wore makeup.
From:[info]kutsuwamushi
Date:October 1st, 2007 05:55 am (UTC)
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This would be a pretty good post for [info]fantasywriters!

Think about it carefully, especially with mental magic.

I think some authors are intimidated by the consequences of mental magic when it comes to the law, and try to avoid it with justifications that seem kind of flimsy. But if you think about it, even if you know the facts of a crime that occured, there can still be many other questions to settle, such as what a just punishment would be. (According to that society's rules.) If you need a trial you can have one.

I used to have telepaths in my cheesy urban fantasy verse, but they got in the way of everyone being confused about what was going on, so I got rid of them.
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From:[info]limyaael
Date:October 1st, 2007 07:59 pm (UTC)
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I'd like to see what kind of limitations could be introduced on mental magic. Distance, or passage of time dimming the impressions, or a question of reliability (maybe retrocognition is as hard to trust as precognition, for whatever reason), or sheer difficulty to translate (despite having used it myself, I don't think someone with telemetry could actually get perfect impressions of other humans from objects; how objects "perceive" humans is obviously going to be different from how humans do). But too often, just as with the god who has to be omniscient or powerless, the assumption seems to be that mental magic is perfectly clear or perfectly wayward.
From:[info]itrytowritewell
Date:October 21st, 2007 05:19 am (UTC)
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I'd like to see what kind of limitations could be introduced on mental magic.

Maybe the mage feels whatever emotions the people around him feel. So, if the mage is talking to a friend, and an angry person walks by, the mage gets angry at his friend. It would cause the mage to have mood swings, which would drive away people. So, that mage would have a pretty bad social life.
From:(Anonymous)
Date:October 4th, 2009 02:44 am (UTC)
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Apologies for coming along years late, but here's the limitations I use for telepathy when it comes to gathering evidence and such: the telepath can only see what the victim is able to remember. Memories aren't usually very high fidelity, and they tend to focus on a few objects, so a witness to a murder may only be able to remember that the murderer was wearing a red shirt and was tall. They work wonders as lie detectors, with the caveat that they can only detect conscious lies (if a person has managed to completely convince (him/her)self of an alternate version of what really happened, then that's what a telepath will see as truth.
From:(Anonymous)
Date:October 1st, 2007 03:17 pm (UTC)
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The real reason an author might want to be careful with things like mind-reading is that it will short-circuit a lot of plots, often in non-obvious ways. This is why I tend to stick to low magic settings.

As for religious laws there's another reason, beyond offending the gods, that certain acts may be illegal. Blasphemy, refusing to participate in certain rituals, violating taboos, don't just offend the gods. They are also an offence against the community itself.

Think about how many people feel about flag burning, defacing national monuments, or what have you. Given an age where the state and church is not separate, indeed a temple is a civic monument as much as a religious one. So refusing to honour the gods would be akin to flag burning; e.g. not a good idea if you're a stranger.

That said travellers are actually less likely to get in trouble for violating religious law, than they are for more secular laws. The reason is that if everyone around you is a polytheist, odds are you'll be willing to honour strange foreign gods when you're abroad; after all, what's the harm? So you'll sacrifice a chicken if the locals ask you to, and everything is fine.

Moreover if a town, or area, has a particularly bizarre custom odds are you'll know about it before you get there. People like to talk, especially if they have a story like, "Yeah they'll cut off your left pinkie if you squint at the image of Bokbok on fridays."

Meanwhile customs, tariffs, and assorted legislation is far more likely to get you in trouble. In Rome it was forbidden to carry knives, or to drive carts during the day. Adventurers may not want to drive carts, but they may, accidentally or not, carry their weapons.

In some area processions have absolute right of way, that's generally a no brainer. most people would figure "Okay lots of priests, weird statues, okay better not block their path." Secular or less obvious equivalents may be far more dangerous. In Venice, the heads of state may also have absolute right of way, often with severe penalties for getting in their way. So if your heroes, even accidentally or briefly, block the path of some dignitary they could be in serious trouble. Not just from the law, but also from the powerful dignitary, who may be very upset that someone tries to interfere with his ancient rights.

How about a slap, or a punch in the face? What is the proper response to that? To many fantasy heroes that is a challenge to a duel, or a great and grievous wrong that need to be avenged.

Let's talk about the original Happy Slapper (http://en.wikipedia.org/wiki/Happy_slapping) Lucius Veratius (no there's nothing new under the sun) who liked to go around slapping other Roman citizens. Back in his day the penalty for this was a fine to 25 as, and to make sure he could avoid any bothersome consequences he had a slave walk behind him with a purse, so he could pay the fine on the spot.

So how about that? Have your character walk down the road, minding his own business, when all of a sudden a man appears, slaps them, and has a slave give them 25 copper coins. That would be original if nothing else.

Moreover once the fine was paid that was that, there was no point in taking him to trial, or involve a jury, because he'd paid the penalty in advance. Wise men shrugged, considered him a weirdo, and went on their way.

Later on the law was revoked, in part due to Lucius Veratius' behaviour.

P.S. I've written a three part article on How to make Pagan beliefs more than Christianity with more gods (http://the-norseman.livejournal.com/3150.html) if you're interested in how culture and religion interacted you might enjoy it.
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From:[info]limyaael
Date:October 1st, 2007 08:02 pm (UTC)
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I enjoy the challenge of working with high-magic systems and making them work. Thought-through, it really should involve no more difficulty than SF has plotting around/with high technology. It's unquestioned assumptions that tend to drive things like, "Well, obviously telepathy is perfect." Why should it be?

The reason is that if everyone around you is a polytheist, odds are you'll be willing to honour strange foreign gods when you're abroad; after all, what's the harm?

Er, well, if the stranger is a sincere believer in his own gods, or if she's a monotheist, they might object to honoring other gods. Maybe they wouldn't do it loudly- I get that part of what you're saying- but this question seems to assume that the protagonists in a fantasy story never take religion seriously. Same thing applies to bizarre customs; they might not seem bizarre to the villages around them, so no one might think to warn a stranger.

I like your other suggestions. Thanks for making them.
From:[info]ex_norseman766
Date:October 1st, 2007 11:56 pm (UTC)
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The reason is that if everyone around you is a polytheist, odds are you'll be willing to honour strange foreign gods when you're abroad; after all, what's the harm?

Er, well, if the stranger is a sincere believer in his own gods, or if she's a monotheist, they might object to honoring other gods. Maybe they wouldn't do it loudly- I get that part of what you're saying- but this question seems to assume that the protagonists in a fantasy story never take religion seriously.
Actually I assume that the protagonists take their religion dead seriously. However there are very few religions that demand exclusive worship, and they are pretty much all monotheist. Thus a devout follower of the Norse gods, or the Greco-Roman gods, or the Celtic gods, or the Russian gods, wouldn't see anything wrong about offering a sacrifice to someone else's gods.

Let's talk monotheists now, there's a reason that the Jews were considered bizarre, but they were protected by how ancient their customs were. Christians on the other hand were a new religion, and they refused to honour the Emperor and the Imperial gods! Both refused to do what everyone else, regardless of culture or creed would do.

Part I of my article series deals with this precise subject. Part II is also relevant, but not directly so.

What I go on about there is the tendency to see Pagan religions as Christianity with more gods, and I think that's offensive to both Christianity and paganism. It's also somewhat misplaced when it comes to pre-Christian religions.
Same thing applies to bizarre customs; they might not seem bizarre to the villages around them, so no one might think to warn a stranger.
This is true, but I've seen very few examples of that sort of thing in genuine travel accounts. The ancient world, and the medieval world, was actually fairly close knit. As you begin to travel to a place you begin hearing rumours about it, you begin seeing how customs slowly change, and if you're at all clever you pay attention.

Obviously inattentive travellers, or travellers who have gotten lost in a storm, or fallen out of a castle in the sky, maybe have some serious difficulties. The same goes for people travelling into the boonies; not only won't the locals think to warn them, but there aren't any other travellers to fill them in.
From:[info]l-clausewitz.livejournal.com
Date:October 1st, 2007 04:43 pm (UTC)
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Point #2 reminds me of something--reconciliation, in fact, was (and often still is) the primary objective of legal/judicial institutions in cultures that lack an impersonal judicial bureaucracy. The Afghan jirga is an important example--its proceedings are meant to reconcile the victim's family with the wrongdoers' family; the verdicts do not always involve punishment or win-lose decisions, and when there is any punishment at all it must be agreed upon by both of the parties involved to make sure that there are no hard feelings. Of course, this highly conciliatory and peaceful legal system exists precisely because the only major alternative is either a blood feud or an open war between the clans. Which is quite funny--if we look at other tribal societies where blood feuds are regarded as a viable means of obtaining justice, there's almost always a highly preferred alternative in the form of conciliatory justice administered through tribal/clan councils.

Even in societies with a strong legal bureaucracy, conciliation may still be considered to be a commendable achievement that trumps the application of ordinary legal procedures. Just look at the way King Solomon reconciled a farmer and a shepherd whose sheeps had strayed into the farmer's land and eaten the crop. Better still, look at the Chinese books of precedents and note how many of the most highly praised precedents involve the judge or the magistrate reinterpreting the law in order to apply a more conciliatory solution.

So yes, reconciliation is a horribly under-utilized legal solution for fantasy settings, but I'd add that it's especially appropriate for settings where the only available alternative is a violent one.
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From:[info]limyaael
Date:October 1st, 2007 08:04 pm (UTC)
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Ha, I did not know any actual legal systems like that existed! Obviously, I haven't studied enough non-Western history, and what little I know of ancient history tended to focus on those cultures that did have fairly elaborate systems of law, such as the Romans, or seemed to thrive on blood feuds.

So yes, reconciliation is a horribly under-utilized legal solution for fantasy settings, but I'd add that it's especially appropriate for settings where the only available alternative is a violent one.

Thank you; that's well-phrased. I suppose it might not be used more often just because so many fantasy settings assume that violence is a horrible thing when it's used against the protagonist and his friends, but it's a perfectly justifiable thing for the protagonist to apply.
From:[info]merditha
Date:October 2nd, 2007 01:49 am (UTC)
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There are several modifications to the Canadian justice system in aboriginal communities along those lines, actually - iirc, the term is something like "circle justice".

"Seemed" to thrive on blood-feuds is kind of the key term, though - even the ancient and various Germanic law codes were massively focused on at least trying to avoid the feuds. We studied a couple in my mediaeval history class. It's where "weregild" came from - you paid in accordance with your crime, particularly in terms of murder. And if you couldn't, you had to sell stuff until you could. And if you still couldn't, you called on your family. And if they couldn't/wouldn't, you called on your friends. And then showed up at the Thing (the name of the gathering) for something like three consecutive gatherings. And basically if, at that point, you STILL couldn't pay, the relatives got to kill you.

However, at that point, everyone else had completely given up any right to avenge you, by hanging you out to dry when you were asking for help. So theoretically, the blood-feud stopped there.

Which leads me to my second caution: just because there's a wonderfully reconciliative system of justice set up . . . .don't assume it works all, or even most, of the time.
From:[info]l-clausewitz.livejournal.com
Date:October 3rd, 2007 07:56 pm (UTC)
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It's a paradoxical situation, really. If the peaceful solution always worked, then it wouldn't have existed. It existed (and was considered necessary) precisely because it could fail, and because the consequences of its failure was almost guaranteed to be quite bloody.
From:[info]ex_norseman766
Date:October 2nd, 2007 12:22 am (UTC)
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To some degree the same was true of the Old Norse legal system.

The interesting thing about the Norse system is that almost all offences were private matters. Except perhaps taking care of a tyrant, or hunting down outlaws. If someone killed a member of your family, that was a private matter between your family and the family of the murderer.

Since it's all a private matter a bloodfeud could be solved when both parties came together, and recounted what wrongs they'd suffered. Then they'd weigh them up against each other, the side that had suffered the most wrongs would get some reparations, and then the matter was settled. In other words it was much like striking a bargain.

Often friends or neighbours would come together and force two quarrelling sides to work things out. After all no one is served if two families are having a big feud, especially if you got friends on both sides.

You could also take things to the Ting, or the courts, but that was seen as a very hostile act. Generally you'd try to settle things by yourself. However taking someone to court could be used to force the other side to work things out in private.

At the Ting you'd be judged by a jury of 12 men, or two or three times that number in some cases. Generally the most powerful family would win. Bribery, calling in old favours, and so forth were all perfectly acceptable methods.

The really interesting thing is that even if there's a judgement against you, it's still a private matter. Even if you're outlawed you can still make a deal with the people you wronged, and then everything is fine again.

P.S. I got much that here but that webpage is in Norwegian. Indeed a lot of stuff on the Vikings is written in one of the Scandinavian languages.
From:(Anonymous)
Date:October 4th, 2007 04:18 am (UTC)
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Another system worth looking at is the Biblical "cities of refuge". Israel at the time was structured much like the Norse culture you're describing: each family or clan was self-governing. It was expected that the family of a murder victim would seek revenge. However, murder had a precise definition (malice was required, though specific intent to kill wasn't) and conviction required the testimony of two witnesses under oath. This is obviously hard to enforce when the "sentence" is being decided and carried out by the enraged relatives of the victim.

Unlike all the other clans, which had received actual territories, the priestly families (the Levites) just received cities scattered throughout the holdings of the other clans. Some of these were designated as "cities of refuge", and someone falsely accused of murder could flee to one of these cities for protection. The avenger could then come to the city and present charges to the priests, who would conduct a trial. Since the Levites were an entirely separate lineage from everyone else, they were fairly impartial in clan disputes.

If the accused was found guilty, he'd be handed over for execution; otherwise, he would stay in the city of refuge, in protective custody, until the death of the current high priest. This gave the victim's family time to cool off so they wouldn't do anything stupid.
From:(Anonymous)
Date:June 28th, 2013 11:15 pm (UTC)
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From:[info]cyote
Date:October 1st, 2007 11:53 pm (UTC)

Magic and Law

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How a society views magic depends upon the society because magic is only one aspect of a society.

Biblically, in ancient Israel, it was not tolerated. "Thou shalt not suffer a witch to live." Witches with inborn magic or learned ritual had an advantage over everyone else. They died. Period. End of sentence.

Ancient Greece allowed the use of public magic. The Sibyl, the Oracle at Delphi, are two examples. Not great ones because, hey, these folks were possessed by the gods. Still, it was an uncommon trait seen as magic that served the public good.

The Navajo defined a witch by their generosity and intent. If someone was wealthy, yet shared their wealth with clan and society, they were just a really great guy. Let them be stingy or miserly and they were a witch and witches died.

Consider how strength is viewed in the society. After all, magic is a kind of strength. If everyone has more or less the same magic abilities, then there will ways to bring offenders into line. They may have their magic limited by tying their hands or gagging them so incantations are nto possible. Their magic may be drained by the Magic Police.

If, however, magic is an uncommon trait, then magicians are in hot water. Consider the example of the American West. If Liberty Valance was the fastest gun and meanest snake in the grass, and went about proving it, then someone would put a bullet in Liberty's back. There's no need to call in a faster gun. Same with magicians.

"Someone just put an arrow through the heart of Harforce the Mage!"

"Really? A round of drinks on the house, barkeep. I'd like to shake that bowman's hand."

The point is that magicians who use their magic as a foot up on everyone else are usually not tolerated and die miserably. Those who have a beneficial role are included in the society.

From:(Anonymous)
Date:October 2nd, 2007 12:12 am (UTC)
(Link)
This came at just the right time; I've been going through your rants and tagging those that could be used to help me with a political fantasy I've been giving some thought to and was just at the point of considering the workings of the legal system. So thanks, you've given me a lot to mull over and pointed out some obvious issues I'd overlooked, mainly that of the apparent lack of telepaths my world has despite magic being common amongst its people. I agree that telepathy wouldn't be a guaranteed solution to figuring out 'who did it' since memory is troublesome at best; two people can witness the same event and swear they saw completely different things- it doesn't mean they're lying, they just recall it differently so it would be interesting to see what a telepath would make of that :)
This message brought to you by sophinee@livejournal.com
From:(Anonymous)
Date:October 2nd, 2007 05:02 am (UTC)

Say, Limmy...

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Is there any chance we could get a rant on using the fossil record to add some variety to a fantasy world's fauna?

Several good authors already do this to some degree or another (Harry Turtledove, China Mieville, and Alan Dean Foster, just off the top of my head.)

It's a pleasant change of pace from the traditional stereotypes: Dragons, horses, cows/sheep/pigs, wolves, and not much else. Maybe one or two of the big cats if you're lucky.

Whereas if you draw on the fossil record, you've got 300 million years of assorted species available, in all kinds of shapes, sizes, and environmental niches.

An example: I'm writing a short story about an expedition to a newly discovered continent, where the dominant fauna is large reptiles, with mammal-like reptiles (which I have yet to see in any other work of fantasy) from 5-18 feet long occupying the various "major predator" niches.
From:[info]sinande
Date:October 3rd, 2007 12:38 am (UTC)

Re: Say, Limmy...

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Damn you (no, actually LOVE you for bringing this up), that's just what I'm doing right now. An island continent split off for millions of years, stuck with therapsids and dinosaurs and early birds and all that stuff. A couple of them will be sentient (one from the bird and one from the therapsid side, according to plans). And of course there will be the late arrivals (humans first, then a few thousand years later elves... hehe, elves who have the best ships in the world) who can mess things up really thoroughly.

(Yeah, I'm marching towards a BSc in Biology or Evolutionary Biology right now.)

It's still in the early stages, though. I think the idea itself is only a few months, perhaps a year old. So no stories for you yet, unfortunately.

(by the way, you get billions, not 300 million, of years, though the first 3 of them aren't that interesting fantasy-wise (more potential for sci-fi, I think)... but look at the Burgess Shale. THERE are some weird critters.
From:(Anonymous)
Date:October 10th, 2007 09:12 pm (UTC)

Re: Say, Limmy...

(Link)
Eh, that's pretty close to my idea (I've got a short story in progress), but not enough that we're unknowingly riffing off each other.

For starters, I like my way of cutting off the continents better (something like a magically-imposed barrier), and I'm not using dinosaurs in my story. Strictly Mid-Late Permian.

Marine reptiles stuck around in the land that wasn't cut off, though, while the new one doesn't have any marine life above fish and a few small mesosaurs (and China Mieville's already used the concept of surviving Dinicthys/Dunkleosteus, so I'm not inclined to recycle it and have any major marine predators past sharks.)

Although we're both using therapsids. That could be a problem. Hmm...what branches of the group are you working with?

I've also got an idea kicking around for a couple centuries down the line, when the colonists' homeland finds itself facing problems from a different barrier collapsing and putting the nation-state face-to-face with a species evolved from their world's variant of Phorusrhacos.
From:[info]sinande
Date:October 10th, 2007 09:23 pm (UTC)

Re: Say, Limmy...

(Link)
Since I don't think I'll ever get published, you needn't fear my therapsids :)

Anyway, I'm not yet sure about any of the details except for the one sentient bird race for whose sake I put the whole new continent there in the first place. It's all pretty vague as of now.

There's possibly going to be a serious mixing of real-world ages, since there's the early bird thing I made up, and I'm absolutely in love with gorgonopsids... but hey, I'm not obliged to copy real earth history as it is, so long as I make up a believable alternative XD
From:(Anonymous)
Date:October 12th, 2007 01:15 am (UTC)

Re: Say, Limmy...

(Link)
"I'm absolutely in love with gorgonopsids..."

Isn't everyone? Writing superb apex predators like those, even from a human point of view, is lots of fun. Especially when they're hungry. Same goes for their distant cousins, the anteosaurs. One of those (a very old, very large Titanophoneus potens) presents a serious initial problem in my story.

Also, out of curiosity, are you using Inostrancevia, Gorgonops, or (most likely) a completely made-up group of the genus?

P.S. Don't think "I'll never get published." Tons of people get published. Just takes time, effort (one of my creative writing teachers claimed to have wallpapered a room with the rejection slips he received), and an interesting premise (which you certainly have.)
From:(Anonymous)
Date:October 3rd, 2007 04:07 am (UTC)

Re: Say, Limmy...

(Link)
After having recently watched walking with beasts I am thoroughly loving the idea of creating some new fantastic creatures myself XD
From:[info]sinande
Date:October 3rd, 2007 07:59 pm (UTC)

Re: Say, Limmy...

(Link)
Bet you can't make anything more fantastic than Opabinia :D

Hmm, I should watch WWB some time. I've seen WWDinosaurs and Monsters, it's really a shame I never took the time to watch the third *eyerolls*
[User Picture]
From:[info]khajidu
Date:October 3rd, 2007 08:10 pm (UTC)

Re: Say, Limmy...

(Link)
Opabinia is made of ultimate WIN !!!
Hallucigenia is, too.
From:[info]sinande
Date:October 3rd, 2007 08:03 pm (UTC)

Re: Say, Limmy...

(Link)
Actually, you could also play around with plants a lot... This summer I went to a plant science summer school, and the ice-breaker group exercise we had was to design plants for various man-made environments. You can't imagine how much fun we had XD Aphrodisiac-producing flowers that rely on people sticking their noses inside them for reproduction... and that was one of the less wild ideas.
From:[info]otakukeith
Date:October 3rd, 2007 03:28 am (UTC)
(Link)
Perhaps the invented culture puts peaceful emotional relationships among others at the core of its existence. (snip)

I like the idea in this paragraph because it's the first concrete basis I can think of for a "chaotic good" (in D&D terminology) society. I've never been able to think how you could keep everyone happy if the government kept changing their mind about things instead of having written laws. But if the purpose of the legal system was to sort out conflicts to all parties' satisfaction, then you could avoid having to stick to any kind of letter of law.

Off-topic, could you possibly request a free JournalFen account for me? I'd like to be able to post on Fandom Wank etc., and also have a look at any stuff you've posted on your account there.
[User Picture]
From:[info]limyaael
Date:October 7th, 2007 12:23 am (UTC)
(Link)
Yeah. As various people pointed out above, that wouldn't work every time, but having a different core assumption would affect law as much as having a different core assumption for business (say, not to make profit but to serve the community) would affect that.

Sure, I can get you a JF account. I'll need:

Your preferred name
An alternate name (they want this just in case)
Your e-mail address
An age statement that you're 18 or over

You can e-mail this to me if you'd rather do that instead of posting it here.
From:[info]tobiascrazy
Date:October 3rd, 2007 07:59 am (UTC)
(Link)
I find myself suddenly, oddly fascinated with the idea of a cannabilistic culture. In this hypothetical culture, the idea is that when you die, you are cooked and eaten by your fellows, and through this you continue to provide aid to your clan(or village or whatever - that's not important) even after your death. Thus your spirit is merged into the broader village spirit. This is idealised.

The relevance is this: if you were to break a law(or perhaps just a really important one), the punishment wouldn't be that you're killed and eaten. It would be that when you die, nobody would eat you. You would not provide the necessary posthumous aid to your clan, or however you want to word that, and thus your spirit would, rather than joining together with the greater spirit of your clan which contains the spirits of all those who have ever been a part of the clan - your parents and their parents, et cetera, and where your lovers and your children will inevitably go, your spirit will instead be forever isolated from that.

...I'm inspired.
From:(Anonymous)
Date:October 3rd, 2007 12:16 pm (UTC)
(Link)
Actually, that's what my Black Flight does- after capturing and killing a small group of Golds wandering in their territory, the just leave the bodies there to rot instead of eating them- pretty much desecrating the bodies, from their point of view. :D
From:(Anonymous)
Date:October 8th, 2007 04:36 pm (UTC)
(Link)
I've encountered an interesting concept in a fantasy I've read recently (In Russian, roughly titled "and so the pendulum has moved") - a person to be punished was branded with a sign that signified that anyone and everyone in the particular area had the right to kill them whenever they please. This would be pretty unpleasant, I'd think.
From:[info]mythusmage
Date:October 14th, 2007 10:03 am (UTC)
(Link)
In other words, outlawed. With the status irrevocable.
From:[info]mythusmage
Date:October 14th, 2007 11:19 am (UTC)

[Example] Unicorn Orc Justice

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The Unicorn Orcs are nomadic herdsmen living on the Unicorn Plains. Their ancestors were humans with an injection (of sorts) of wolf DNA (long story). Because of their lifestyle they don't have the resources to imprison miscreants, so they use various other methods instead. This comment is a look at Unicorn Orc justice.

1. What Are the Laws Like?

Aimed primarily at keeping the peace. Between individuals, families, clans, tribes, and nations. The basic philosophy is, unless you have cause. If you can show cause for your actions, then you have not committed a crime. If you don't have a valid cause, a good reason for what you did, then punishment is applied.

Yes, in Unicorn Orc law it is possible to show cause for theft. The victim constantly boasts about some possession and annoys the heck out of people about it, it is possible for one to steal that item and justify it by the victim's annoying boasting. Unicorn Orcs do boast, but they tend not to be obnoxious about it.

2. Who Deals With the Law

In most cases clan chiefs or their designated representatives will deal with the matter. In those cases where the matter involves people from different clans a neutral clan will be asked to adjudicate matters. Quite often matters between different families will be handled by the respective families as a private matter. Or the two families may ask a third, neutral family to mediate.

On rare occasion tribal or even national leaders may be called upon to handle matters. The Unicorn Orc confederacy's leadership is enlisted only in the most extreme cases.

By and large crime and punishment is handled in family, in clan, in tribe, or in nation.

3. How is Magic Used

To gather information. What happened? Who's responsible and how?

Testimony is given under an enchantment. This enchantment only allows making statements that are factually true. Anyone on either side of a dispute can ask questions of the witness, but usually a single interlocutioner will be assigned to the task. It is up to him as to which questions will be asked, and often crucial questions will not be asked because he, the interlocutor, didn't like them.

Outside of testifying information magic is used to gather evidence, or to evaluate such evidence as has been gained. Divination, necromancy, shamanism, mysticism are all used. Other types of magic have been used on occasion.

4. How Just is the Treatment Given Prisoners

Unless the crime is particularly heinous, and the perpetrator's family/clan etc. has disowned him, lenient. Even for murder. Even if the accused is convicted there is always the chance his family/clan etc. could petition for damages because of the prisoner's treatment. In some cases the prisoner may have all charges dismissed because of his treatment, and charges brought against his captors.

When the crime is particularly outrageous, and the prisoner's family has essentially turned their backs on him, the usual outcome is often, "Hacked to tiny little bits while trying to escape staked down spread eagled naked beneath the blazing noon day Sun." In such cases the finding is often, "Bet he won't do that again."

5. Who Has the Right to Inflict Punishment?

The victim's family for the most part. Unless the judge (whoever he may be) has knowledge the family intends to inflict an outrageous punishment. In which case the clan/tribe etc. will decide an what is going to happen. This decision taken during a meeting of the clan/tribe etc. council, or an equivalent body. The miscreant himself may suggest a punishment, which he will have to go through if it is accepted.

(continued)
From:[info]mythusmage
Date:October 14th, 2007 11:22 am (UTC)

Re: [Example] Unicorn Orc Justice

(Link)
(continued from above)

6. What Are the Punishments Like?

Restitution is popular. Usually returning the item stolen or paying its value if it is not returnable, plus an additional amount to make the thief think about stealing things again.

Bound service is also used. The criminal working for the victim or the victim's family for a period of time. In some cases the perp has been forced to wed the victim's widow to take her husband's place. More often than one would think this means a life of utter misery for the perpetrator.

Mutilation in any form is not used. That is an effective death sentence in Unicorn Orc society given their environment and their way of life.

Ostracizing is used, as is outlawing. Neither is permanent, and usually lasts but a season or a year. Outlawing means that one can deal with the outlaw as one wishes. Ostracizing means that one has nothing to do with the subject, unless on has authorization from family/clan etc. Most often authorization is given so that gifts of basic necessities may be given to the individual being punished. As an alternative one can drop an item of clothing or food near the convict, and declare that one is discarding the item. The convict then has the right to take that item for his own. Many ostracized convicts carry around a "discard bowl" for that purpose.

Death is only for specific purposes. Most of the time restitution, bound service, or outlawing is applied instead. It is customary to pay the convict's family some form of restitution for his death, in order to prevent vendettas and feuds.

Because of orc psychology exile is almost never used. An exiled orc tends to go into a deep depression and becomes suicidal. More often than not a suicidal orc is also a homicidal orc. On rare occasion exile may be used on a Unicorn Orc, but only when it is known that he has friends outside Unicorn Orc lands who are willing to adopt him as one of their own. Thus the rare Unicorn Orc has found himself becoming a member of a goblin, halfling, wolf-folk, human, elven, or even dwarven family and often starts to think of himself as such.

7. Could You Sum Up, Please?

Unicorn Orc law is meant to keep the peace between families etc. On occasion permission is given for a family feud or clan war to take place when justice is not possible for some reason. Tribal and national wars are possible, but have happened rarely in Unicorn Orc history. When conflicts occur between families etc. they are most often done surreptitiously. Skirmishes out on the plains or between hunting parties. Such as known as Shadow Feuds, and fatalities during such are very often reported as hunting accidents. It is due to these hunting accidents that lions, wolves, and even antelope have gained a fearsome reputation as archers, spearmen, and even swordsmen in Unicorn Orc folktales. When this sort of thing is starting to get out of hand, an animal of the type said to have done the deed will be captured, tried, and then punished if convicted. After which both sides in the Shadow Feud are strongly advised to chill lest they both find themselves the targets of an internal clan/tribal etc. vendetta.

And that is a look at how the Unicorn Orcs handle crime and punishment.
From:[info]slimshadowen
Date:November 3rd, 2007 04:47 am (UTC)

A thought on #3.

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In D&D, there's a spell called zone of truth. It forces anyone within the zone to tell the truth. Pretty useful in a courtroom, right?

Then I took a look, and noticed someone with sufficiently strong willpower could overcome it, that all affected by it were aware of it, and that it's a divine spell that only clerics and paladins can cast. So it naturally has its limitations.

And then I thought, "Well, what if it's contingent on a swearing-in?"

"Do you swear to tell the truth, the whole truth, and nothing but the truth, so help you [Tyr, god of justice]?" "No. I don't worship [Tyr]." So they have to find a priest of the appropriate clergy to swear him in. Gods help you if he's a follower of Baenvar Wildwanderer, the gnomish god of trickery and pranks...

What if a priest of the god of justice began to notice that the courts were more interested in satisfying the letter of the law, rather than its spirit (i.e. justice)? He might start claiming he's cast the spell, and psychosomatically everyone believes it, as why would he lie? But when someone is accused of some crime, and it would be a huge miscarriage of justice even if it were legally sound, and he told this person and his witnesses he could lie freely...
From:(Anonymous)
Date:November 17th, 2007 08:29 pm (UTC)
(Link)
Hm.

I have a legal system going in a world where people believe very strongly in place gods. A noble's lands, a town's boundaries, and a city's districts are determined by the "realm" of the place god. Justice is carried out through the lense of going against/taking privileges from the place god.

My main character is the lord of an area where the place goddess is a river goddess. People are married with permission of the goddess, they are expected to sacrifice to the goddess, and so on and so forth. If someone, say, commits murder, it's seen as taking something that belongs to the goddess-- the victim's life-- and recompense must be made. It's up to the lord/lady to decide what exactly the recompense will be. Perhaps the offender will be killed in the name of the goddess. In another place, where the god/goddess connected to farming and the earth, the murderer might be forced to give up their land and possessions and spend the rest of their life tending to the earth by providing free labor for any farmer who asks. Etc.

Rape is seen as an offense against the god/goddess's sanctity over marriage and couplings. Since everything in the area protected by the god/goddess belongs to them, theft is seen as removing what the god/ess has seen fit to give to his/her subjects. (Oftentimes, the object that's stolen is given up as a sacrifice to the god/ess to appease them. The victims of theft should have taken better care of the gifts of the god/ess.)

The scale and type of punishment depends a lot on the specific god/ess of that place, and then on the character of the noble in charge.
From:(Anonymous)
Date:November 17th, 2007 08:30 pm (UTC)
(Link)
...and this is me replying two months later.

*feels silly*

I'm tarrinthetree on livejournal, anyways.
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