Benjamin Bestgen: Sketching a legal system
What’s in a legal system? Benjamin Bestgen supplies the principal ingredients. See his last primer here.
Last week’s article ended with lawyer and author Christopher Brown’s suggestion that fantasy authors could do more to make law and legal systems an explicit focus point in their works.
This leads to an interesting question: how to dream up a legal system from scratch? Whether you are trying to develop one for a fictional work or do it in real life for a new country or city, many core considerations mirror the material covered in the undergraduate jurisprudence tutorials I used to teach in law school.
What does a legal system need?
There is a lot (!) written about worldbuilding for aspiring fantasy authors, including suggestions that touch on law. Our classic sources are also a great help: philosophers, jurists and other writers who already put combined millennia of thought into that very question.
But few people have the time, resources or inclination to spend years reading up on philosophy, politics and law if they wish to write a fantasy novel in need of a legal system. So maybe a crash-course in jurisprudence 101 provides initial inspiration on points to think about.
What is law?
At its most basic, it’s a set of behavioural and organisational norms which governs various societal interactions.
Law offers socially accepted, officially enforceable ways of doing things, such as engaging in commerce, marriage, war, immigration, employment, inheritance or dealing with property and ownership issues.
Law is a tool for the state to promote, deter, enforce and structure: equality and anti-discrimination laws promote the fair treatment of people in society, taxes tacitly encourage or discourage people’s spending decisions.
Criminal law puts the coercive power of the state against its subjects. It can be a tool for justice, upholding peace and order but also an instrument of oppression, atrocity and unjustifiable discrimination.
Law also provides its own framework for how it should be administered and what privileges, duties and restrictions are imposed on those making laws, dispensing justice and running institutions like public authorities, courts, guilds, clubs or corporations.
Status of law
A society under “the rule of law” subjects everybody to it and law rules supreme. Other societies reject that approach and enact different laws for different classes of people or decree certain people or institutions as above or outside the law. This may be by virtue of social rank, wealth, religious creed, education, race or other distinctive factors. God-like entities might also not be subject to laws of mere mortals.
Morality in law
Many laws have a moral component, indicating what is valued or abhorred in a society, reflecting social attitudes, preferences and prejudices.
Legal positivists will try to keep questions of law and morality separate. Law is made by people for people: a racist law that calls for the enslavement of all members of a certain group could be valid law for a positivist, assuming the correct formal procedures for making the law were followed. The law must then be upheld, no matter an individual lawyer’s personal moral objections.
Natural law theories understand law as arising from value principles inherent in human nature, some of which are fundamentally moral. Law and morality cannot be divorced from each other. An “unjust law” violating fundamental moral principles is not valid law. A natural law approach could permit or even demand resisting it.
Religion and law
Is the legal system secular or one with a theological underpinning (like Sharia Law or Catholic Canon Law, or the laws made by the God Emperor Leto II in the Dune universe?). A society may also have defined political philosophies as their value fundament for the legal system: think of Maoism in China or the fictional “Corpoism”, a corporatist, fascist value system in Sinclair Lewis’ novel It Can’t Happen Here.
Power to make laws
The source of law could be a god, monarch, parliament or ruling council. The source must enjoy sufficient legitimacy that its laws will be obeyed. There can be multiple sources too, governing different topics, sections of society or regions. How do they work together? Do they conflict? Are there uncertainties and how are they dealt with?
If the source of law dies or ceases to have power, how does succession work? In Brandon Sanderson’s Stormlight Archive, the country of Azir uses a bureaucratic system of essay writing and exams to pick qualified candidates, one of whom will be elected ruler by a council of advisors. In contrast, Alethkar’s rulers came into power through conquest and infighting between powerful warlords. As long as the ruling family managed to stay in power, the role of monarch was passed down family lines.
Laws are largely pointless if nobody can uphold and enforce them. Consider police, lawyers, juries, judges. What role could priests, mediators, citizen militia, travelling magistrates, tribal elders and the general public play? What powers do intelligence services, inquisitions, secret police forces have (if there are any)? How are law enforcement agents selected, trained, which duties and privileges do they have? How do courts and tribunals operate (if there are any)? What remedies and punishments are appropriate for deciding civil and criminal cases?
Questions of risk and perception of the legal system
How prone to corruption or abuse is the system? What checks and balances are in place to ensure law is applied as it should be? How is evidence gathered and dealt with? What is the purpose of a trial – is it to discover “the truth” of what really happened or only to make a decision based on what parties present? Is the legal system politically independent (separation of powers)? How are agents of the law paid (if at all) and socially regarded? What makes working in the legal realm attractive for people?
In Joe Abercrombie’s First Law, the banking house of Valint and Balk is a corrupt, corrosive force in the background of The Union, undermining its politics and fairness of laws. The Closed Council rules by expediency, not law and a new king of The Union is advised that the Closed Council’s job is not to put the world’s wrongs to right but to ensure that The Union benefits from them. Needless to say, trust in the fairness and proper functioning of the legal system is at a low point in The Union.
Law also governs social hierarchies and privileges
In Sanderson’s Stormlight Archive, Lighteyes rank above Darkeyes in Alethkar, with different privileges arising from your eye-colour. Some societies accept slavery and have rules governing the status of slaves. In others, only women are permitted to read, write and become scholars but are excluded from warfare.
How accessible is justice and for whom?
Is law mainly an instrument for the privileged few to cement their power over the lower classes or does it protect and enable the poor, the foreigners, the disabled and whatever other groups society has? For whom does law make life easier or harder and why?
How is the legal system funded? Do lawyers work in private practice for hire (and profit) or is there another system imaginable, where people needing legal services do not have to worry if they can even afford them?
Hopefully the above shows that even at a quick glance, there are many things we should consider when trying to design a legal system. Going back to basic “101” type questions every so often is also important when we think about the system we actually live in – there is plenty of room for improvement and with some thought, we hopefully get things right a bit more often.
Benjamin Bestgen is a solicitor and notary public (qualified in Scotland). He also holds a Master of Arts degree in philosophy and tutored in practical philosophy and jurisprudence at the Goethe Universität Frankfurt am Main and the University of Edinburgh.