When people live together, sometimes serious problems arise, that is, someone has been wronged and want some sort of satisfaction. In small groups these could be solved on a case by case basis. It is not difficult to imagine that over time, the body of earlier solutions gave rise to a tradition of how to solve these problems. With the spread of writing, these traditions became codified onto law.
However, law is not necessarily about justice. It is a tool to an end. When wielded by the powerful, law is used to keep their advantages. Commoners can get better rights, but they have to fight to get and keep them. This fight is very dynamic, but the trajectory is usually to the advantage of one group. Conquerors may also use laws to break the conquered.
Law is tightly coupled with the ruling elite: They write the law to maintain their privileges. Note that different ruling groups may have different interests, which can have a profound effect on the law. An example could be the relationship between the king, the nobility, the religions and the magicians. Even in an autocratic monarchy, the king still has to consider the implications of making an enemy of the other powerful players. On top of that, the ruling groups may have further subdivisions. Two or more religious orders may fight for dominance (e.g. the New Gods and the Old Gods), and some members may have other interests, e.g. one group of nobles may want to be king whereas another wants to curtail royal power.
Often the law is defined by the ruling group, e.g. law in a theocracy may ban worship of other gods, but provide economic freedom, whereas an oligarchic council of high nobles may allow religious freedom, but ban free exchange of goods.
Settling legal twists
The most basic legal twist is that someone has been wronged and want satisfaction. Even with the most simple laws, people will still need some way to determine if an illegal activity has been committed and meter out compensation and/or punishment. The activities needed to go through the legal mechanisms will be called the legal framework in this post. Historically, the legal framework has changed many times and has had many different forms. It can be more or less codified and centralized.
Private and public law
Legal twists between individuals (or groups) are called private law. It is an individual that raises the case inside the legal framework against another individual. Classic examples are disagreements over contracts or torts. Public law regulates twists between government and individuals. Examples of public law could be treason or arson. Legal twists are raised either by individuals against the government or the other way around. Public law also implies that the government takes an interest into these cases and may investigate possible illegal activity. In private law, it is more often the parties that do the investigation, even though the government may require that the parties make relevant information available.
Which portions of the law are private or public depend very much on the society itself. Is there a government and how strong is it? And can an organization be a part in a legal twist, or will its members (or leaders) be responsible?
Might and right
In societies with a weak (or non-existent) central power, the notion of crime may not exist separately from the notion that someone has been wronged and want compensation. This means that if the wronged party is unable to claim compensation, e.g. due to being dead, no crime has been committed, unless someone else raises the case on behalf of the wronged party.
This is an advantage to the rich and powerful, as they can kill the weak and their family and take their land, and no one will lift a finger. If you ally with a lord, he or she may demand compensation. The lord would balance issues of making a competitor angry against making others sworn to him or her angry, as commoners may leave the service of a lord that does not protect them. However, the weak have little rights unless they have banded together to form some organization – which is likely to get a lot of enmity from the local lords.
In 11th century Iceland, they had an interesting alternative. As the wronged party, you could sell the right to demand compensation for the crime to a 3rd party who could pursue the case for you. While this holds some interesting prospects for role players it does not really solve the issue: What is to stop a powerful lord from threatening the wronged party into silence, or scare off a private investigator?
Without any central power metering out justice, your rights and safety is dependent on the might of your family, clan or ally and their ability and resolve in hunting down and punishing anyone doing wrong against you. If they do not, their group may be viewed as weak, leading to even more wrongs against the members of the group.
Sometimes the wronged party will meet with the wrongdoer to come to an agreement, with compensation to the wronged party. If an agreement cannot be reached, the result can be anything from ritualized combat to full-out war between the two parties. This blood feud can last very long, but can be ended by an agreement. There are often a lot of customs associated with blood feuds, as they tend to get out of hand, which is not to the advantage of either party.
We are extremely used to the idea of having a state as an integral part of our legal framework. However, it is possible to make a legal framework without a state. Traditional Somali Law (also called Xeer) is an example of this. Law is defined in terms of property, so settlements are intended to be compensate the wronged party rather than punishing the wrongdoer. As such, there is no law, just judges trying to figure out the best way to solve a dispute. Politicians and clergy are barred from interfering with the law or serving as judges.
The legal framework is based on clans, determined by paternal ancestry. When someone is wronged, he or she can contact his or her elder, who will gather the elders of the clans involved, investigate the case and hear the parties state their case. They can decide on a verdict, but the parties are not required to follow it (though their clans can try to force them). If this fails, the wronged party and clan are entitled to impose compensation by force. Clans are obligated to defend their kin, but not to attack their opponents, giving a strong incentive to find a settlement. If the wrongdoer is unable to pay the compensation, it is the responsibility of his or her family and clan to pay. Thus, it is in the best interest of the clan to make all their members behave, and may impose additional limitations on the freedom of the wrongdoer.
There are a number of issues with Xeer: Individual rights can be sacrificed for communal stability, women are not allowed to speak, travelers may find themselves with limited protection and it requires that the clans are reasonably even matched in terms of power.
As a society becomes more and more centralized, as does its legal framework. The place where one bring complaints, hear complaints and resolve the issues may be under government control. Judges, juries, investigators, advocates and so on may be public officials – or may not exist at all.
In some societies, the local official representative of the state – the magistrate – took on the role of mayor, investigator, jury and judge. In case of legal twists, the wronged party could alert the magistrate (or a subordinate) of the situation. The magistrate could investigate, come to a conclusion and pass judgment. As can be seen, this magistrate had a lot of local power, and justice would depend on the diligence, honesty and wit of the magistrate.
In traditional China, such a system did exist. The power of the magistrate was somewhat curtailed by requiring that a sentence of a certain severity should be heard at a higher court, with death penalty requiring the approval of the Emperor. As no-one could be convicted of a crime that they had not confessed to committing, it was quite common to use torture against suspects to extract a confession. However, witnesses could also be subject to torture if the magistrate felt like it. Indeed, many people preferred to solve their disputes themselves as courts could be dangerous and painful for all involved.
Another feature of traditional Chinese law is the integration of class into punishments: Doing wrong against someone above you would increase your punishment, but if you did it against someone below you, it would reduce your punishment. If you were related to the Emperor, you could even escape punishment.
At face value, divine law is written by a possibly singular God, and assumed to be as perfect and immutable as the divine writer. This can be true in your world, but the real world begs to differ. Writing law is hard, especially when you have to take changing conditions and the specific situation into account. Thus, both Islamic and Jewish law had provisions to resolve ambiguities. In Jewish law, the truth would be with the majority of the available scholars, whereas Islamic law accepted a good guess.
Even though the law is set and unchangeable, it is open to interpretation that can be very different from the written word. For instance, according to the Torah, a child that defies his or her parents must be punished by stoning. Not only is this rule extremely cruel, it could also doom a people to extinction given that most children at some point would defy their parents. Ancient Jewish scholars (and, presumably, regular Jews as well) held a similar view, and used a flimsy argument to avoid enforcing the rule. They argued that a child below the age of 13 could not be responsible, and that at the age of 13, the child could have reached sexual maturity and become a parent and, hence, no longer be a child.
Given that law is divine, one would also expect that the justice system would be independent of the state and controlled by legal scholars and the clergy. However, the legal scholars could also serve as advisers to the judges. The judge and the enforcers of judgments could be appointed and paid by the ruler, giving the ruler a hand in the application of the divine law.
Note that divine law can also contain moral codes, hygiene, diet, prayer, common courtesy, and other cultural traits.
Multiple legal systems
Some legal systems allow for multiple legal systems, co-existing in parallel. For instance, in Islamic law there are four schools of law, and in the Ottoman Empire different communities were allowed to police themselves.
As long as the legal twists involve members of the community itself, this system seems reasonably simple. But what happens if one of the parties want to use another court? Or if the twist is between different communities? Which court would be used? If one court comes to a decision, can it be “appealed” to another? As you see, this provides ample possibilities for intrigues.
A religious and/or ethnic minority may want to keep their own laws and customs in areas dominated by other religions or ethnic groups. Partly to maintain their own traditions, but also to keep their group together. In some instances they may be able to get special considerations from the law, e.g. the Amish in modern day USA.
It may also be possible to get the authorities to delegate its power to the communal authorities. An example is how Christian and Muslim rulers allowed Jewish communities to police themselves, provided they paid taxes and kept the peace. Naturally, it follows that the minority is no longer ruled by the same laws as the majority.
If rulers do not want to delegate their authority, the minority group is in a predicament. How can they maintain their group and culture without upsetting the people around them? One option is to build a very closely knit community with little contact to the outside world, making it difficult for members of the community to leave or even to live outside the community. This makes punishments of exile or partial exclusion a very powerful way to crush a misbehaving individual, and will usually not be illegal. One example of this is the Roma in modern day Europe.
Designing the legal framework
By now, it should be clear that creating the law and legal framework is hard. You can start out with an existing framework. Some old and ancient legal codes are short and simple enough that (with annotations) they can serve as starting points for the code of laws and how trials are run.
However, when designing a legal framework, you also need to take context into account. How did the code of laws come about and what are they intended to achieve? When the Normans invaded Britain, they enacted a legal framework intended to subjugate the newly conquered locals and establish the Norman supremacy. As noted earlier, rulers typically build the legal framework so it works to their advantage, though it is not always in-your-face explicit. It is also quite common for the legal framework to give an appearance of being just and equal to all, regardless of wealth.
When using it in game, you need to know the legal mechanisms, so let’s take a look at those.
Once the crime has been committed, what do you do? The first step could be to tell someone, but who? This could be whomever is near (neighbors, inn patrons, fellow travelers) and/or some official (the magistrate, police, an elder). There could be rules governing this that could have significant impact down the road, e.g. in 11th century Iceland, if you killed someone, you had to declare the killing to the world quite fast afterwards if you wanted it to be seen as an accident. If you did not declare it, it would be assumed that you had planned to kill the victim, resulting in a much harsher punishment. There could be rules requiring that some log of the incident is written and archived. It could even be used as evidence in an upcoming trial. It is also quite possible officials are not involved before you have gathered enough evidence to figure out who did the crime and, possibly, win a trial.
In modern times there are a lot of rules specifying how evidence can be collected legally so it can be used in a trial. The reason is simple: Once the individual has rights that the police is not allowed to breach, powerful measures must be put in place to force the police to respect those rights.
When gathering evidence, one would often need to speak to a witness or investigate a private location. Witnesses may or may not want to talk, and sometimes someone with authority over the witness (e.g. a family member) may want to keep investigators away. Similar, the owner (or caretaker) of a private location may not want to allow investigators to trample all over. Are there any legal way (court orders) to overcome those obstacles? And what happens to evidence gathered without consent and legal backing? Not to mention the investigators that broke the law?
There can also be differences between the weight of different forms of evidence, e.g. a statement from a witness could carry more weight than forensic evidence, or some witnesses could be viewed as more trustworthy than others.
Some legal frameworks have a dedicated group of officials to investigate crimes. In ancient China, the magistrates were responsible for investigating crimes, and Rome had a group of quaesitors that investigated and prosecuted capital crimes. Running your own investigation may be encouraged, in a legal gray zone or illegal. Official investigators may be angered by private investigators … or may appreciate the help.
During the trial, the evidence is presented, guilt and punishment is decided and declared to the world. Some legal frameworks require all evidence be submitted prior to the start of the trial, to allow the participants to prepare their case. In others the trial may be part of the evidence gathering. Trials are often heavily codified in the legal framework. Sometimes each party are allowed to present their case once, sometimes parties are allowed to react to the presentation of the other parties. It may not be allowed to cross examine witnesses.
There could also be issues with getting witnesses or suspects to attend the trial. Today, witnesses are served subpoenas to get them to attend. It could also be declared publicly that so-and-so should appear at the courthouse at a certain time, maybe with some sort of punishment for not coming. Or the plaintiff could physically force the defendant to court.
As a trial involved a lot of people spending a lot of time, trials are costly. Depending on your legal framework this expense could be paid by taxes, by the guilty party, by the party pressing charges or some other configuration.
There may be one or more judges at a trial. Depending on your system, they can run the trial, decide guilt, pronounce punishment and more. Their selection is also of importance, as it indicates where they owe their allegiance. In Rome judges in public law was agreed upon by the parties of the trial, and just had to be a male Roman citizen. He ruled on the case, and could ask for legal advice (but could ignore it). If he did not feel confident judging the case, he could also refuse to give a ruling. (Note that capital cases were run before the People’s Assembly.) The judge could also be appointed by the ruler, found by drawing lots or something different entirely.
The number of judges could depend on the case: Petty cases could only require one judge, whereas complicated or very serious cases could require many judges. It can even be dependent on the type of court, e.g. in the US most trials have one judge, but the Supreme Court has 9 judges, voting on right or wrong. It is quite common that the authority of the judge is reflected in the legal procedures, e.g. “All rise” or by giving the judge an elevated position in the court room.
Most people do not have an advanced knowledge of law. So, when someone is going to trial, it can be an advantage to consult a knowledgeable person. Or even better: To hire that person to advocate your case. The advocate may also have strong rhetorical skills, improving the chances of a successful trial. Thus, it is possible to get around ones short comings. On the other hand, it also means that the more money at your disposal, the better an advocate can you get, making it harder for a less well-off person to win a trial. Some legal systems allow parties to hire representatives, others do not. Others allow parties legal consulting and reading of prepared statements.
One interesting way to get around some of these issues was carried out by Genghis Khan: Make the text of the law secret, while the contents were known.
Trial by jury
Rather than letting one person review the body of evidence and make a verdict of guilt, one could let many people (a jury) hear the evidence and make the verdict. This has the advantage that it is harder to bribe or threaten many people, and that the verdict is not as dependent on the whims and experiences of the judge. One disadvantage is that the jury may be impressionable by a good orator.
Jury members can be selected from a number of criteria. For instance, in 13th century Denmark the “truthmen” had to be wealthy men of good reputation, in ancient Athens they just had to be citizens (and given that there was a small pay, some consider it some sort of welfare), and in our time it is encouraged that they reflect the people of the local area (even though there is a tendency towards white, middle aged, well off males). Today, jurors are selected on a case by case basis, whereas in 13th century Denmark they were permanent official appointments.
The size of a jury can also have impact: In ancient Athens there could be 200-1500 jury members, whereas modern juries usually comprise some 12-15 members. Participation in a jury could also be an annoyance: You have to spend your productive time listening to some case rather than managing your business. Indeed, there could be fine involved in not showing up for jury duty.
Some legal systems require the verdict of the jury to be unanimous, where others accept majority. In the latter case, a non-unanimous verdict can have strings attached, e.g. maybe the harshest punishments cannot be used or a number of reputable men can swear an oath that the decision of the jury was wrong.
The role of the jury could also be to serve as witnesses to the trial, e.g. that it is being carried out in accordance with the law, or to advise the judge. Sometimes, the jury could be a board of judges.
Trial by ordeal
Rather than going through a (possibly expensive) trial, the parties could go through an ordeal to ascertain truth. These ordeals could be quite painful or even lethal. The justification is that the gods would protect the innocent party and hurt the guilty. As long as everyone believed in that, the innocent would be ready to take the ordeal, whereas the guilty party would be scared of doing that. It was also possible to rig the ordeal in favor of whoever was believed to be innocent … or had earned favor with the person(s) administering the ordeal.
A magical world might both make this more and less believable. Gods could be real, but on the other hand, magic makes it easier for a 3rd party to rig the ordeal.
In many legal systems, oaths play a crucial role. In theory, if someone swore a holy oath, it would be extremely serious for the relationship between the person and the divine. Lying could land you a nasty curse, an eternity in Hell or both!
For instance, in Jewish law, when insufficient evidence was available, it was possible to demand that your adversary swear an oath that his claim is true. If the adversary did not, you would win the case, regardless of other proof. However, if the adversary did take the oath, the judge could require that you did as well. And if you refused, you would lose the case. Not everyone were allowed to swear, e.g. if you are a woman, not religious enough or a known liar.
In a magical world, truthsayers could use magic to establish if a statement was true, or they could make you incapable of lying. Note the difference: In the first case, it is the, possibly corrupt, truthsayer who makes the call, whereas in the other, it is the witness that states the truth, though maybe selectively. There could also be a roll (e.g. Will against Will) involved, so it could still be possible for a witness to tell a lie. Either way, juries and judges would have to consider the truthfulness of the truthsayer when applying weight to the sworn statement.
Rather than having someone detained by the authorities, some legal systems allow the person to go free against some assurances that the person will return to face the trial. This could be money or even taking over liability for whatever crime the detained person is suspect of. The arguments for allowing bail is that it is expensive to keep someone incarcerated, it is uncomfortable to be incarcerated and the business of the jailed and possibly innocent person may suffer. One would not want frivolous law suits to be used to drive a rival out of business.
Magic could be used to enforce that a person would be unable to leave an area, or to help find or even conjure the person. This could profoundly change the notion of bail: Why would a third party need to provide money or assurances, if the suspect could just be conjured?
Some legal systems allow usage of torture to extract information or a confession from an uncooperative or possibly lying source. Aside from being cruel and horrible, torture also yields extremely unreliable information. As the pain becomes unbearable, the person under torture will say anything to get the pain to stop, if only for a moment. Finding heads and tails in the ravings of the torture victim is quite tricky. Even in legal systems that allow torture, judges and jury members are likely to be aware of this and view the “evidence” with suspicion.
In the real world, torture is mostly a means to incite fear in a population; a tool to keep the people subjugated.
The trial is usually concluded by a declaration of guilt and, possibly, a punishment for the guilty party. Depending on the punishment and legal framework, this punishment may be carried out at once, at a later date, by the authorities or by the winning party. Punishments where the defendant is maimed or executed are typically carried out by the authorities (maybe at a cost), whereas it could be up to the winning party to get compensation from the guilty party. If the guilty party will not (or cannot) pay, one option is to go to the home of the guilty party with a group of respectable people and take valuables from the estate of the guilty party.
Prison is quite common in our time, but it is quite expensive. Not only is a healthy person kept from working, that person also needs something to eat and lodgings. This bill could be paid by taxes … or by any citizen, say, the wronged party. Naturally, if the wronged party cannot pay, the guilty party would walk free. Some of the expense can be recouped by forcing inmates to hard labor. However, their labor has low productivity, and a significant number of guards is needed. Prior to the widespread use of prisons, alternatives could be to sell them outright as slaves or indentured servants, which could have some of the same issues mentioned above.
Punishments can serve multiple objectives: To give the wronged party some sort of satisfaction and/or compensation, to punish the wrongdoer, to scare other potential wrongdoers from crime and to help the convicted criminal out of a life of crime. Different legal frameworks may emphasis some or all of these, with various weights. Note that attempts to scare potential wrongdoers usually only work on planned crime, and also depend on the odds of getting caught.
Inequality before the law
Most legal frameworks have some kind of justification or ideology behind them that claims that it is just, or at least attempting to be so. While the real description of the goals may differ, it is quite common that the rich and powerful have the advantage. Depending on the society in question, law is also used to keep the current state of affairs. So, inequality before the law can be implicit, e.g. through the ability to purchase legal representation, or explicit, e.g. through laws that state that some have jurisdiction over others.
A common example could be that women are not allowed to speak at a trial. Another could be that relative class, caste or ethnicity factors into how punishment is metered. Some consider the head of the household to be its ruler, and has the power to punish (and maybe even kill) others in the household. An example of a legal system where the class divide is integrated is the Brehon Laws. Each person had an honor quantified in an honor-price that basically stated their legal value. It limited which legal actions one could take and allowed witnesses to “over swear” witnesses with lower honor-price. Indeed, the introduction to one law book stated that everyone being equal was a problem to the world!
The inequalities have a clear tendency to follow from the general ideology of the society, so an absolutist society may give explicit powers to the head of the household, and a free society may try to hide the inequality by making them implicit.
Gaming the system
When designing a legal framework, it is an interesting test to see if there is a way to game the system, that is, for a person to (mis)use it to his or her own advantage. For instance, in 18th century England, anyone could prosecute a crime, and if it resulted in a conviction, the prosecutor got a bounty. This created a situation where unscrupulous people conspired to frame innocent people on non-existing crimes to collect the bounty. As this issue became clear, the legal framework tried to patch that particular issue.
Another example could be an organization that is structured in a certain way to limit liability for a given crime to a small subset of its lower ranking members. This could be done by hiring subcontractors to do some work (e.g. purchase a large number of plots or produce some goods), without having any responsibility for how the job is carried out (e.g. bullying the current owners into selling or use slave labor).
Magic could also be used to cover up a crime or shift blame. An example could be to use illusions to make witnesses finger the wrong person, or cause witnesses to forget what they saw. In the court room itself, magic could be used to manipulate anyone in the court room or to detect unauthorized use of magic. The latter raises the question of the incorruptibility (and skill) of the magic user trying to detect use of magic.
Such issues could provide a number of adventures for a gaming group, e.g. to help the victim of such a conspiracy or to expose the trick to the public.