Advice on Creating Governing Rules for Magic?

[Samantha England]

One of the major aspects of one of my writing projects is its criminal justice system, and while I have a vague idea of the governing laws of magic as set forth by the governing body of this city I am having trouble defining them. The setting is a Dark Fantasy medieval city on the verge of transitioning from the worlds medieval age to renaissance era, so very early forms of "police" and the governing body is a ruling council. What kind of governing laws of magic would make sense in this sort of setting? What resources can I look into?

 

[skip.knox]

This is so broad, maybe it would help to narrow it down a bit. How big a role with the system play in the story? Is it to be a police procedural, a courtroom drama?

What kind of magic are we talking about here? There are lots of directions possible; here are a couple for context. Maybe there are magics so powerful as to be dangerous to wield inside a city, or magics that violate social norms (e.g., raising the dead). So the rules would seek to place limits on extremes. OTOH, maybe it's more like guild regulations, with rules governing proper behavior, use of materials, or forbidding "unauthorized" use of magic.

It would be best to develop your rules in accordance with what the story needs, then see if research can add some depth to that. Because the literature on criminal justice systems is huge!

 

[Samantha England]

This is so broad, maybe it would help to narrow it down a bit. How big a role with the system play in the story? Is it to be a police procedural, a courtroom drama?

What kind of magic are we talking about here? There are lots of directions possible; here are a couple for context. Maybe there are magics so powerful as to be dangerous to wield inside a city, or magics that violate social norms (e.g., raising the dead). So the rules would seek to place limits on extremes. OTOH, maybe it's more like guild regulations, with rules governing proper behavior, use of materials, or forbidding "unauthorized" use of magic.

It would be best to develop your rules in accordance with what the story needs, then see if research can add some depth to that. Because the literature on criminal justice systems is huge!

The magic systems are essentially Elemental Magic (a very natural magic and is the first magic), Novenum Runes (runic magic), Conduit Magic (anti-magic), and a new magic called Crafter Magic (which is essentially steampunk magic). The city this takes place in is considered the birthplace of magic and has gone through a recent trauma with Conduit Magic (a lot of Conduit Mages were killed because of fear and hysteria) and Crafter Magic is in its infancy. My leading character is a Conduit Mage with the near-sacred Mantle of the Mage Hunter (a mix between a fugitive recovery agent, courtroom bailiff, and an executioner), and is uniquely involved in the criminal justice system I am working on designing as the Mage Hunter is only brought in when the crimes involve the use of magic (typically murder). The criminal justice system is a major factor of the trilogy and is something I want to have down before I start writing, and definitely want both police procedural (as there is a form of police called the Nightwatch that handle the non-magical crimes and the Mage Hunter also has rules to follow) and courtroom drama (as the Mage Hunter is present for sentencing).

Does this help?

 

[skip.knox]

There are some other folk around here with better legal background than I have, so I'll leave it to them to carry this further. On the courtroom side, though, you'll need to decide between an English or a continental style of proceeding. I oversimplify, but essentially trial by jury or trial by a panel of judges. There's also trial by an assembly of citizens, but that's more ancient Roman or Athenian.

Much of what goes into a police procedural derives from the necessity to prove guilt according to some rules of evidence. That's all pretty much modern. You'll probably wind up having to compromise between historical precedent and the dramatic needs of the story.

 

[Samantha England]

There are some other folk around here with better legal background than I have, so I'll leave it to them to carry this further. On the courtroom side, though, you'll need to decide between an English or a continental style of proceeding. I oversimplify, but essentially trial by jury or trial by a panel of judges. There's also trial by an assembly of citizens, but that's more ancient Roman or Athenian.

Much of what goes into a police procedural derives from the necessity to prove guilt according to some rules of evidence. That's all pretty much modern. You'll probably wind up having to compromise between historical precedent and the dramatic needs of the story.

Thank you for the help you have provided! This is leading me to start asking the right questions and pointing me in better research directions.

 

[Maker of Things Not Kings]

The setting is a Dark Fantasy medieval city on the verge of transitioning from the worlds medieval age to renaissance era

Also worth noting that, in those time periods, when it came to crime and punishment there were the extreme punishments for what we today would call rather minor offenses and how and why those came about in society.

Or there was England's "bloody code" of the 18th and 19th centuries which were, by all accounts, part of the class suppression where the number of crimes punishable by death rose dramatically and often related to what we would today call minor infractions relating to property crimes committed against the upper classes.

Always thought it might be interesting to see this play out in a world where magic has a class system bias and lower forms of mages are considered "peasants" regardless of their actual status and their crimes are treated far harsher than those of the more evolved elite.

 

[Darkfantasy]

Since this is a magical world you need to ask does magic play a part in the Law. For example is magic used as a type of forensic science? Are you basing the rules on today or 18th-19th century? Since this is an entirely made up place, your Laws can be as sophisticated as you like. Today we require true evidence of a crime but hundreds of years ago many people died through false allegations. In Britain sometime in 1612 a child called Jennet Device got her entire family killed for witchcraft.
Decide which period you want to use then begin to research it.
Decide is magic plays a part in your criminal system.

 

[Night Gardener]

Laws are only as enforceable as the will and ability to enforce them.

As a society, if you do not allocate resources to enforce laws and the punitive measures to uphold the perception of justice in a prescribed social order, you do not actually have effectual law and order. It helps to convince citizens that participating in a social order with a system of justice will ultimately be in their best interests. But, if actions do not match the sales pitch, so to speak, almost everything goes underground and unreported.

It doesn't matter what the laws are intended to govern. If you don't have police and citizens invested in reporting crimes, you won't really need a criminal justice system. As it is, the State usually invests in the police and justice system through the taxation of the citizens, but they are only as effective as the people are willing to participate in.

If you live in a Surveillance State, the will of the people to report on themselves is mitigated.

If you are searching for an example of what I'm talking about, look to U.S. Prohibition on Alcohol Consumption and Production. Yes, there were laws on the books. Yes, the state tried to enforce them. But, the law was so unpopular with the people that nobody bothered to take it very seriously. It was observed, but more as a total nuisance to work around. So, while the laws existed, were they really effective? Nope.

So, when thinking about laws and a penal code and justice system for the use of magic, I'd advise you to think about it in terms of what restrictions would actually be enforceable because the citizens would actively want to keep laws enforceable. The easy concepts would be (violent) crimes against people and property. Maybe, crimes against the State. After that, Prohibitions might get a little more difficult to enforce. Especially if your system requires a Burden of Proof to be met to establish guilt or innocence.

How then would there be "proof" of magic? That's what I would focus on first. If all magic is prohibited, there would have to be a means to prove the use of it that could hold up to scrutiny. If some types of magic are prohibited, establish "why" (back to crimes against persons and property) . Then, there would need to be a way to identify the type of prohibited magic AND trace it back conclusively to the person from which it originated.

So, 2 major institutions need to be prerequisite: 1. the agency to raise and collect taxes ( which is probably the earliest form of law enforcement anyway ) and then 2. to use those funds to payroll the police to enforce the laws for civilians.

Now, what justice systems you want to model from historically will be up to you based on the world you want to create... How many rights to you want to grant an individual in the penal system while determining innocence or guilt? A lot of justice systems were based on torture to determine guilt, or solicit confessions. Do they believe in divine interference and interpretations while pursuing the
" truth " of a person's criminal actions?

You can dabble with deductive reasoning and forensic sciences. It's really up to you.

Designing a court system, as skip.knox mentioned, will a person be judged by a panel of jurors? How are they selected? Are there any lawyers or advocates for the accused? Are they presided over by a judge, or a panel of judges? Who ( the state or the indivudual accused ) ultimately has the meet what burden of proof?

Designing your WIP's legal system will also highlight the core values of your culture, so it helps to clearly understand that context as you write. If the State is oppressive of its people, that says something. If the State represents a ruling class, and not many others, how do the majority feel about that? Or, are laws a bottom-to-top representation, where citizens have a great deal of influence on the law? Is the law based on religious text or on secular concensus?

And the ultimate question to consider: by what authority is your justice system derived? Who gives the power, the right, to judge and prosecute an individual? Is it from the divine, imparted to a select few (monarch, a church, etc.) or is it derived from the collective consent of the governed?

 

[FifthView]

A few things come to mind for me when I consider how societies regulate themselves. Some of this may seem "meta" or deep in the weeds of theory, heh, but here goes.

First, I've been a fan of Nietzsche's explanation of how criminal justice systems evolved, although now I work from memory, may have cherry-picked only some of his basic ideas, and may have developed my own based on those—in ways that take things further than he did! Basically, there was a "before" and an "after."

Before

Once, people not only had to seek justice (or revenge) on their own—but they did, willy-nilly. If Bob was murdered, his family and friends would seek retribution or recompense directly by hunting down and punishing the culprit. The same would go for theft and all manner of perceived slights, damages, wrongs.

Unfortunately, victimhood is often in the eye of the beholder. If Bob's family killed Mary in retribution, then Mary's family might kill Bob's brother in retribution, and so on and on. If these are large families, the killing can go on for some time (not to mention what happens when friends and the allies of families join in.) You can see from this how things like long-lasting family vendettas/feuds might take shape.

But even if the individuals involved don't have backing from large groups of family members and friends, their efforts to punish perceived wrongdoers can spill over to other areas of society. All of this "Before" stuff still happens today; you can read the current news and see it. If John takes retribution upon his boss, this could have an effect on the company his boss runs; if it's just a matter of road rage, traffic could be blocked for hours. That sort of thing.

After

As societies became more complex, this kind of behavior caused all sorts of problems for anyone who would rule over people. The state (or its representatives) suffered from the effects of people taking matters into their own hands. My last example above hints at this. Long-lasting feuds, riots, etc., can upset the functioning of the rulers and the society in ways that negatively affect the rulers and people who are otherwise remote from that personal feud. Economies can suffer if things spiral too far out of control. Heck, defenses can be weakened. Infrastructure can be destroyed.

So, the state stepped in. Now, instead of Bob's family killing Mary in retribution, the state would kill Mary after sentencing her for murder. If the state kills Mary, then how can Mary's family go after Bob's family in retribution for her death? Nietzsche's thinking, in his theory, was that states developed criminal justice systems precisely to end the willy-nilly interpersonal conflicts that had crippled communities before the state stepped in. The state interceded to throw off the blame game. In a way, the state claimed for itself the status of victim of these crimes; and, as such, it had the right to punish or seek retribution. Eventually, the general populace could also see itself as victim, insofar as various crimes began to be considered crimes against the society, not only against individuals or the state.*

Before-After**

I would note that these "Before" and "After" are largely conceptual, for understanding the basic concepts. State enforcement of laws, or at least state punishment for rule-breaking, can be found going back millennia, and interpersonal retribution (as with much current crime) continues to exist. But also, one can look at these as a continuum that does, indeed, largely follow a historical arc. To what level did the state enforce its laws? What indeed was written in the legal code, at least as punishable by the state? Who or What was the state? Who were considered victims by the state, and who weren't?

One can see that some early states might well have punished criminals that it felt harmed it but have turned a blind eye to other activities we might now consider criminal. For instance, if a bishop were murdered, the state might punish the murderer, but if some peasant were killed in a back alley, the state might not have invested much time in finding and punishing the culprit. And if the state wouldn't seek justice, the peasant's family might. OTOH, some early states might have been open to petitions by peasantry (or their benefactors) for justice. There is a cost-benefit calculation, for both the common people and the rulers, and these factors can range widely.

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*A corollary: The state would often need to assert its control by making its control evident, and this in turn would reinforce the idea or feeling that the society as a whole had been victim of a crime.

Nietzsche spent some time on the issue of punishment, at one point writing, "Without cruelty there is no festival: thus the longest and most ancient part of human history teaches — and in punishment there is so much that is festive!" He thought our impulse to punish was base; but on the other hand, he noted the historical prevalence of public punishment as a form of "festival" that benefited not only the state but the populace's feeling that some divine justice might exist.

Celebratory festivals often included interludes of violent public punishment of those who had offended....offended the state, individuals, gods, etc. And, the people would throng to it.

But I don't want to dwell on this so much here, except to say that faith in the government's ability to right wrongs—thus, limiting the impulse for personal schemes of vendetta—requires, if such faith is to continue, the public display of the government doing this work effectively.

This isn't to say that a lack of faith in the government's ability to right wrongs will always quickly weaken a state. If the state is quite powerful, it may do what it wants regardless of the populace's view of its role in crime and punishment, i.e. regardless of whether individuals perceive an ability to petition the state for justice.

**Often, for a metaphorical understanding of this Before-After, I think about Shakespeare's Romeo and Juliet. To me, it seems like a good dividing line. There is a Prince of Verona, and the populace generally acknowledge his power; but, there is also a long-standing feud between families. The youth in those families give the Prince less consideration than the patriarchs and matriarchs of those families give to the Prince; but even the elders are not always conscientious in this regard and may be swept up in the family feud. The feeling is that the families pretty much do their own thing, sometimes looking over their shoulders, and that much in Verona happens outside the Prince's view.

_______________

One other thing, related to the above considerations. Every society will have horizontal and vertical controls. Vertical is top-down, hierarchical, generally centralized; in this case, the state's role in enforcing rules/laws. (State can be anything from king/dictator to feudal lord in his own domain.) Horizontal is person-to-person and group-to-group enforcement of rules, typically involving social norms, mores, taboos, and the like, not involving the state.

These can overlap. In particular, the state can form its laws and practice enforcement informed by general views and expectations held within that society, and individuals and groups within that society can have their views of social norms informed by the state's rules, laws, pronouncements, and so forth, acting upon those. In theory, democracy may be an effort to better align the vertical and horizontal controls—but only in theory, heh. In practice, they are often out of alignment.

As top-down enforcement weakens, or becomes spotty, the horizontal forces will tend to have more control/sway. Again, though, this is a continuum.

Determining the operation of a justice system in a fantasy state is a fascinating process—but for me, the horizontal forces are even more interesting. In fact, sometimes the state's role becomes interesting precisely for the way it must interact with and accommodate the horizontal forces, or else for the way it must reflect the realities of horizontal forces.

By "horizontal forces" I don't mean necessarily overt punishment (like Bob's family killing Mary) but things like public shaming, ostracism, boycotts (or the choice to buy from this person rather than that person), biases that shape activity and interrelations, religious doctrine that can affect all these, etc.