Limyaael

Previous Entry Add to Memories Tell a Friend Next Entry
10:11 am: The legal system, punishments, judgment, and "justice"

Comments

From:[info]l-clausewitz.livejournal.com
Date:October 1st, 2007 12:43 pm (UTC)
(Link)
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.
[User Picture]
From:[info]limyaael
Date:October 1st, 2007 04:04 pm (UTC)
(Link)
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 1st, 2007 09:49 pm (UTC)
(Link)
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 03:56 pm (UTC)
(Link)
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 1st, 2007 08:22 pm (UTC)
(Link)
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 12:18 am (UTC)
(Link)
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 07:15 pm (UTC)
(Link)
Thanks so much for sharing this! My mom has to hire a personal injury lawyer (http://www.zaylaw.com), so I have been trying to find as much information on the law and court systems as I can! I will definitely pass this message along to her!
Powered by InsaneJournal