J is for Judicature
Tagen’s eyes narrowed, and for a moment she didn’t think he would let her escape from her story. But in the end, he said, “Our doctors have ways of determining whether or not mental defect is present, and our people are tested routinely in their youth. It is unlikely Traynor Polidori could have escaped detection for so long, but it does happen…although never more than once. Traynor Polidori would have been chemically corrected and fit with a monitoring device for a probationary period after his first victim. If no such mental defect were found, he would have been imprisoned…There is an option given for self-termination at any time.” Tagen shrugged. “Seldom employed at first, but I am told it becomes popular after forty years or so.”—Heat
* * *
“We have very few rules here,” Horuseps said. He did not raise his voice, but such was the quality of the silence that it carried out as effectively as if he had. Releasing Mara, he stepped up to face the crowd, and those in front bowed to him. He walked among them, touching the backs of their heads as he spoke, idly glancing this way and that, strolling. “And we take pains that there are no surprises. Our ways are not secret. Nor, I think, are they difficult to comprehend. There are only a few inviolate laws and they are very simple.”
He turned around, walked back through the crowd until he came out of it and stood before the Black Door. He faced them again, resting his hands on his shoulders, his expression severe. “The breaking of those laws is never to be tolerated.”—The Scholomance
* * *
Oy, another big word. This one means ‘the act of judging, the administration of justice in accordance with the law’. Why didn’t I just say ‘law’? Because that would have left me with J is for Jelly or Jazz, neither of which is an attractive prospect for an entire blog post.
So why didn’t I just say ‘Justice’? Because judicature, that’s why. Say it with me, slow: JU-di-ca-ture. Awesome. Use it to impress your friends! Now stop showing off and pay attention.
The first aspect to consider when thinking up a system of justice is who is entitled to it. In a perfect world, all people would be equally entitled to protection under the law, but I don’t live in a perfect world and I don’t very often write in one. Right here on Earth, in these enlightened times, justice is still denied certain people due to nationality, political affiliation, gender, sexual orientation, religion, race, color and creed. Injustice, prejudice and corruption make potent emotional tools when writing, provided you’re doing it for the right reasons. In fiction, it’s very popular for writers to blithely and pointlessly perpetuate the old werewolves-vs-vampires or elves-vs-dwarves hostilities for no better reason than just because another writer did it first. There are many great traditions in storytelling; thoughtless stereotyping is not one we have to carry forward.
Now let’s talk about judicature (love that word). Because this is supposedly a series on non-human world-building and not socio-political sciences, I promise to keep it short and use broad generalizations rather than make you read for hours about the Twelve Tables of ancient Roman law and how they pertain to our modern legal system.
Instead, I’ll talk/type/whatever about the concept of justice and the execution of the law as it was practiced at various inspiring (to me anyway) points in Earth’s history.
To begin with, let’s dispel the myth that the more primitive cultures practiced the most barbaric forms of law. We kill way more people per capita in the name of justice than most tribal societies and the reason is very simple: When you have a relatively small population, your survival depends upon every person contributing to the group in some way. No matter your grievance, you just can’t afford to kill people wily-nily. So although many white explorers wrote gory details of brutal executions for the most ridiculous ‘crimes,’ very little has been found to support their claims.
This is not to say that there were no executions. Particularly in cases involving war or accusations of witchcraft, people were indeed killed following very summary trials (usually a trial by ordeal, in which guilt or innocence is determined by subjecting the accused to painful injury or poison). Also, a certain amount of guilt by association is found in primitive societies. If a man is found worthy of the death penalty, often so are his wives and children.
However, these are extreme examples. By far, most disputes are settled merely by talking the matter out between the families of all concerned parties (bearing in mind that in small, insular societies, both parties may be related to the same central family, so it’s in everyone’s best interest to make peace). Those that aren’t are brought before the chief or a council of elders (or both) for a final verdict.
As we move on into the law of the ancient worlds, we see some striking changes. More and more, laws were written to favor the dominant religion of the empire and the leader of that empire quickly became God’s representative in the physical world, above all law. Although some ancient legal records claim the king/high priestess/grand poobah/whatever was subject to trial like any common man, the State owned the biggest army and ‘might makes right’ was the ultimate law of the land. If you want to see just how wildly unjust those ancient courts could be, I dare you to read up on law under the rule of the ancient Greeks. On the surface, some of their laws seem fair and punishments surprisingly lenient…but those would be the laws applying only to citizens. For the rest of the population—women, slaves and foreigners—the legal system was so harsh that we get the word ‘draconian’ from the name of the man who wrote them. The penalty for stealing bread? Death. The penalty for stealing a cabbage? Death by hounds. The ancient Romans turned the legal system into public entertainment with methods of execution playfully ranging from crucifixion to flaying alive to ravishment by rhinoceros.
Shortly after the fall of Rome, we see the rise of Feudal law, which was at its core less about religion than about property. Oh, the laws themselves were still mostly about God—an accusation of heresy was the best way to guarantee the death penalty, in fact—but feudalism introduced a chain of legal command. Landless serfs worked a vassal’s land in exchange for a tiny percentage of the crops grown; vassals took another percentage and passed the rest on to the lord; the lord held sovereignty over all his vassals’ land in the name of the king; the king bickered constantly with the church over how much he got to keep, but for the most part, it was a win/win situation for everyone. In times of poor harvest, the king got his cut regardless; if the lord came up short after that, well, shit rolls downhill. Vassals had few rights and serfs had virtually none. If a vassal felt himself abused by his lord, he could try to break the fief and pledge himself to another lord, but that was a really good way to get you and your whole family hanged for treason.
As the popularity of feudalism waned, lords took less and less of a direct hand in disputes, choosing instead to leave trials to juries. In medieval times, such juries were made up of people who knew the accused. There was no evidence presented at trial; jurors either knew the facts or had the duty to discover them (To the delight of historical murder mystery writers everywhere, jurors retained the freedom to investigate their cases until the 17th century). Trial by ordeal remained an important part of the justice system, particularly in heresy or witchcraft cases, but as the separation between Church and State widened, the burden of proof began to be more about facts than miracles.
Today, the legal system is arguably so heavily-mired in due process, evidentiary procedure and reasonable doubt that sometimes law and justice don’t seem to have anything to do with each other. And they don’t, really. Laws are concerned with rights in a legal sense; justice is more about rightness in a moral sense. And when local feeling favors the latter over the former, you get the dark side of justice—vigilantism. I would go so far as to say it has been the fear of vigilante justice more than the fear of crime which has created a need for a legitimate police force.
While, deep down, most of us understand the urge to take the law into our own hands and make the bad guys pay, we also understand why we shouldn’t and it’s not just because we look terrible in spandex. (Gosh, I want to put a picture here so bad…) Working outside the law to enforce the law is like working as a prostitute to promote virginity; it just doesn’t work. I have no doubt that the vigilantes see themselves as heroes in the moral right, but then, so does the Klu Klux Klan.
I borrowed a lot from each of these eras when I wrote about law and punishment in my books. Most of them are represented in their ideal form (the glasses don’t get much rosier than the feudal law practiced in Arcadia), but none of them are perfect. The most important factor to consider when integrating laws into your world is that even the best-intentioned of them were written, interpreted and enforced by men. Or women. Or giant space-faring jellyfish. Whatever, they’re fallible, is my point. You don’t have to set all your books inside some dystopian legal wasteland, but do beware of setting up a system that is presented as incapable of making mistakes.