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DaveKuzminski
04-04-2005, 07:39 PM
One of the things I like to show in stories is how the law might operate in other cultures, be those in the future or in a fantasy setting. I don't mean necessarily the laws against murder and theft, though those might be different in some interesting way, but rather how other societies might handle law suits.

For instance, our current system is poorly set up for the purpose of protecting those who need it the most. In other words, you can't get justice if you can't afford a lawyer or find one willing to work on a contingency since that means winning. That puts rich individuals and businesses ahead of the game when it comes to shoddy products and such. For the most part, our current society relies upon class actions, which are actually a rather recent innovation, and boycott of a product or business when the cost of the defective product is below the expense of an attorney. Mind you, this is not always the case, but it is largely how it appears.

Anyway, I'm working on a story that is basically a culture emerging from a horrible downfall of the previous civilization. So, a culture equivalent to ours is now in a medieval state of technology. They know of some advances in technology that can be achieved once they reacquire the knowledge and skills. Likewise, they know what those can create socially, so they're trying to create a new legal system that will better protect those who most need it.

So, any ideas?

If you share any, I have no problem with others using those same ideas in their own stories. Who knows? We might come up with workable ideas that others might later adopt in real life. ;)

preyer
04-04-2005, 08:13 PM
i have absolutely zero faith in our 'justice' system, and little more in our 'legal' system. currently, i've advocated for several years now more of the florida legal system's viewpoint that plaintiff and defendant share in the damages if appropriate, as opposed to it being an all-or-nothing situation. i simply can't think of anything more fair than that.

it sounds as if what your story is aiming for is rather like a tribal justice system. what that really entails is waaay beyond my layman's anthropological scope (but it sounds like fun to toss around some ideals anyway, heh heh). basically, it seems as if your new civilization has an opportunity to create a better system from scratch, keeping what worked from the old system and discarding what didn't work. so, is it a tribal situation or a nationwide and widely enforcable new way of doing things? i think that's at the very core of what laws will take effect. for example, if you don't have a police and investigative force to find out the truth of certain crimes, obviously the judgements passed down will be based on circumstantial evidence and/or eyewitness testimony. i think that's a very important consideration.

when you're building a new society, at what point does it start to create a standard set of laws? is it one of the first things a group sets about to accomplish beyond a generic band of basic agreements?

well, damnit, i've got to suddenly go right in the middle of this. will return later. :)

mommie4a
04-04-2005, 08:24 PM
Would one solution be to educate everyone, like we do with math and reading, on the laws themselves - then everyone would speak for themself. There'd be no prohibition or bias against people who represent themselves, and the profit motive would be completely eliminated. You'd get remuneration only in the amount the court system determines you are owed (in the case of corporate or monetary-based crimes or civil wrongdoings).

Just thinking off the top of my head but has some interesting potential. Level the playing field kind of idea, eliminate advantages.

Medievalist
04-04-2005, 08:43 PM
Look at other historical forms of law, that are not derived from the Roman code of laws--as most of the law in Western Europe and North America are, with a dollop of canon law,

Old Testatment law is one source; but for Dave's purposes, I'd suggest looking at German Folk Law, or the Irish Brehon laws. Both these are well documented, but holler if you want sources or more information.

Non-Roman law systems tend to favor the concept of personal honor, and personal worth and identity is based largely on one's personal honor. The public punishes honor infringement with shame.

For example; in early Germanic law, a person's worth was measurable in terms of goods, gold or other kinds of 'stuff.' If you kill a man, you owe his kin wer-geld, the man-price. If you do not pay it, his kin have the right, even the duty, to come after you. You are also likely to be declared outlaw, if you do not pay, and thus would have no kin-right, or wer-geld of your own.

DaveKuzminski
04-04-2005, 09:31 PM
Ah, in one culture where a new law system is formulating because of a few minor advances, honor has been a keystone of their justice system. Except for those who oppose apprehension and might be killed in the process, their system provides for exile into the wilderness only if the offense is deemed serious enough. Otherwise, shame and minor beatings have been the primary punishments. Generally, the threat of banishment into a wilderness that is truly wild and requires protective barriers around each city is a sufficient deterrent.

Additionally, law enforcement is primarily administered by the merchants. Within the culture, all jobs are closed entry, though the guilds tend to work with each other when one finds itself in need of more people and another possesses too many. Then they would trade people through negotiations for better terms on contracts and such. This, of course, provided me with additional points of conflict and contention.

At the same time, it is a culture that has carefully excluded religion from its laws because the downfall of the previous technologically advanced civilization was caused by a deep religious rift where one faction was willing to kill itself in order to destroy all the others. Religion is considered personal and private, though there are signs that might be breaking down.

At the same time, there are other cultures that are deeply religious or have mixed religion with government along with harsher penalties. These are obviously in conflict with this loose alliance of city states composed of merchants and traders, though one other culture is allied with the city states. Several others lean in its favor because they've suffered attacks from the major antagonist.

Terra Aeterna
04-05-2005, 05:03 AM
I've been thinking a lot about law and religion, as it is a major part of the story I'm writing now. Personally I'd like to be a humanist and think that laws could be developed on some universal but not superstitious code. It seems like historically most laws are based in religion, so I'm wondering if it's possible to separate the two.

Is there any universal morality, even within a culture? Or is it always relative? If it's relative, I'd think that the developing law would tend to favor those in power, help maintain the status quo and back up the ruling government. If it's based on some "universal" code, I think the philosophy for that code (if not the religion) would have to be well presented and portrayed as being important to the average person.

Thinking and posting at the same time. Hopefully I'm making sense. :)

DaveKuzminski
04-05-2005, 05:13 AM
Terra Aeterna, I quite agree with your suggestion that there are strong reasons to maintain the status quo in laws. That's the kind of backdrop that I'm looking at as two of the cultures collide, both good, and have to reach compromises in order to maintain their alliance. Alone, each could be picked off by one of the main aggressors. Since one culture is merchant-based and the other is labor-based, they have no choice but to reach some sort of mutual agreement where neither feels like a loser. Part of my problem is coming up with something practical and realistic enough that readers might believe it works.

whitehound
04-05-2005, 03:15 PM
In Britain state-funded lawyers are provided for people below a certain income, and they are generally very good and effective lawyers, not bottom-of-the-barrel scrapings. But I don't think you can get legal aid for something like sueing someone for libel, so there's still a degree of inequality - and anyway I think we need to get away from the adversarial system altogether.

Afaik in France the legal system is non-adversarial, and tries simply to uncover the truth rather than being a cock-fight between two legal teams. However you would still need stringent controls to ensure that the investigation was both competent and fair to all parties (not always the case in France!).

Anyone interested in the Brehon law can learn a lot about it by reading the Sister Fidelma mysteries by Peter Tremayne. The writing style is a bit pedestrian IMO, but Peter Tremayne is a pen-name for top Celtic scholar Peter Berresford Ellis, and the books are full of interesting and accurate historical detail.

There are only two problems with Brehon law that I can see. One is that it places higher value on the death or injury of a rich person than a poor one: the other is that it depends on the criminal being rational. Systems of fines etc. don't take account of addictive rapists and serial killers who can't be controlled by appealing to their rational self-interest. But there was some sort of provision for dealng with the floridly mad, and perhaps this could be extended to the criminally insane.

DaveKuzminski
04-05-2005, 04:55 PM
Not having done any intensive research into it, but I came across an article about Arabic law that explained how it treated all offenses as a type of theft. I found it quite logical and hope to use something of that sort in what I'm working up. Still, the biggest problem is in creating a system where the developers are already aware of past inequities and are trying not to doom their system by repeating the past mistakes of an earlier culture when it comes to giving both sides equal representation regardless of their financial means.

I've been wondering lately whether it would be reasonable to have each pick the other's attorney. Of course, that could also present huge problems, but it would limit the costs to what the least affluent party to the conflict could afford and prevent a rich party from overwhelming the other side with a powerhouse.

Medievalist
04-05-2005, 09:01 PM
Anyone interested in the Brehon law can learn a lot about it by reading the Sister Fidelma mysteries by Peter Tremayne. The writing style is a bit pedestrian IMO, but Peter Tremayne is a pen-name for top Celtic scholar Peter Berresford Ellis, and the books are full of interesting and accurate historical detail.

I started not to respond to this, but I can tell I'll feel guilty if I don't--and this is not a negative reflection at all regarding Whitehound, who was being helpful and thoughtful.

I know the Tremayne books are popular, and yes, Ellis has also published in Celtic studies, but he's not at all well respected by other Celticists, nor is he reliable. You can't possibly do serious work in early Celtic studies without knowing Old and Middle Irish--Ellis doesn't and thus he gets things horribly horribly wrong. Most of the early material is not readily available if you are not conversant with medieval Irish as well as Latin.


There are only two problems with Brehon law that I can see. One is that it places higher value on the death or injury of a rich person than a poor one: the other is that it depends on the criminal being rational. Systems of fines etc. don't take account of addictive rapists and serial killers who can't be controlled by appealing to their rational self-interest. But there was some sort of provision for dealng with the floridly mad, and perhaps this could be extended to the criminally insane.

There are extensive measures regarding the insane, as perpatrator and as victim in early Irish law texts. There's even a subset of surety law, one of the prime components of early Indo-European law in general, present even in Hittite law codes, as well as Irish, and Welsh medieval law. If anyone is curious, a good starting place is Fergus Kelly A Guide to Early Irish Law, a general overview in English with pointers to more information. Kelly is one of the leading scholars regarding Early Irish Law, and the Guide is quite readable.

preyer
04-06-2005, 01:06 AM
one of the basic issues i see with developing a new system of laws is the lawyers representing their sides. naturally, someone with far greater debating skills is going to convince people they're right, even if he's not. especially in defense cases, i think, where the onus is to prove the defendant's guilt. (interesting to note: england, perhaps great britain, not sure on that, doesn't have varying degrees of manslaughter like we in the U.S. do.) obviously, an uneducated farmer is not going to be able to defend himself from someone heavily schooled in the science/art/scam/whatever of practicing 'law.' clearly, not everyone is capable of representing themselves (even in small claims court where you can't have lawyers, you can still consult with one).

so, i think you're going to have to have certain levels of cases being heard or tried to varying extents, like we now. bear in mind, too, there's such thing as arbitration. for me, it's far too simplistic to have the same court stylings for who owns what pig vs. this guy killed eight people, what do we do with him?

of all these systems, were you falsely accused of killing someone, which system would you prefer? conversely, if you *did* kill someone, which system would you go in for? given the laws are the same, can it be plausible that the accused be offered the choice which court system he can go with?