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So Sue Me

skip.knox

toujours gai, archie
Moderator
I've been working on social relations among my elves, dwarves, etc., most recently thinking about what constitutes adulthood among the various races. One dividing line is that children cannot take an oath nor testify in court against their parents. And that brought me up against the whole question of how disputes get settled.

We have laws and courts, but it was not always thus. In many tribal societies, the "law" is known by the village elders, and there's little distinction between customs and laws. In the early Roman Republic laws were known but not recorded--they were simply the mores. It was something of a social revolution when the Laws of the Twelve Tables were recorded and placed on public view.

Even then, Rome did not have lawyers, quite. Judges long pre-date lawyers. In the Middle Ages, there was a whole class of legally authorized people called notaries who performed lots of legal functions but did not argue at court (they drew up contracts, for example, and witnessed agreements of all sorts).

So, my question to all you who have some legal background, especially in the history of law, what kinds of non-modern, non-Western law can you describe for us? Were there lawyers in Tokugawa Japan? In Imperial China? How about the Ghana Empire?

I'm just looking for something different for my dwarves and elves, and maybe even for orcs and trolls.
 

SMAndy85

Minstrel
I know a bit about early Japan law, but I am by no means an expert, nor did I actively study it. I am just a Japanophile that takes it a bit further than anime.

Very early Japan, we're talking 6th-8th century, was a meritocracy in terms of the legal system. Each public position was given a "rank" as to how important it was, and people were also given a rank for how prominent they were in the society. Your personal rank had to at least match the public position rank, or you couldn't do that job. There were 9 ranks, the lowest offering little in terms of rights.

There is little information regarding how this worked, since this was in the early days when writing in Japan was only just being assimilated from chinese.

There was also a caste system, essentially the citizenry were split into two castes, and those were further split. The lower caste was in virtual slavery.

Punishment back then was fairly harsh, ranging from caning to death, with imprisonment and exile in the middle. Imprisonment was for up to 3 years, and death was performed either by decapitation or hanging. It was based on chinese confucianism, so punishments scaled in what some might jokingly refer to as a logarithmic scale, or "wow, that escalated quickly.".

I plan on stealing exile as a punishment in the world I am creating. It's a tide-locked world, where exile would be to the hot side or the dark side of the planet. At least on the hot side, there's a long city that spans a land bridge to the nigh-uninhabitable lands of the sun.
 

Rkcapps

Sage
I don't know about the history of law but I can say there's a difference between American and Commonwealth laws in so far, member countries of the commonwealth are answerable to the Queen for High Court cases on appeal (although this is changing).

One thing I recall from my constitutional law classes is the Commonwealth system is different to the American system. Perhaps research the commonwealth system for ideas? I always found it fascinating how a man in Britain (in 1800s) got sent to Australia for stealing a loaf of bread.
 

Russ

Istar
I've been working on social relations among my elves, dwarves, etc., most recently thinking about what constitutes adulthood among the various races. One dividing line is that children cannot take an oath nor testify in court against their parents. And that brought me up against the whole question of how disputes get settled.

We have laws and courts, but it was not always thus. In many tribal societies, the "law" is known by the village elders, and there's little distinction between customs and laws. In the early Roman Republic laws were known but not recorded--they were simply the mores. It was something of a social revolution when the Laws of the Twelve Tables were recorded and placed on public view.

Even then, Rome did not have lawyers, quite. Judges long pre-date lawyers. In the Middle Ages, there was a whole class of legally authorized people called notaries who performed lots of legal functions but did not argue at court (they drew up contracts, for example, and witnessed agreements of all sorts).

So, my question to all you who have some legal background, especially in the history of law, what kinds of non-modern, non-Western law can you describe for us? Were there lawyers in Tokugawa Japan? In Imperial China? How about the Ghana Empire?

I'm just looking for something different for my dwarves and elves, and maybe even for orcs and trolls.

I am solid on the history of law, but unfortunately steeped in the Western tradition so I can't help you with your central question.

I do have a question though. IF there were no lawyers in Rome what was that Cicero guy doing at trial all the time?
 
I am solid on the history of law, but unfortunately steeped in the Western tradition so I can't help you with your central question.

I do have a question though. IF there were no lawyers in Rome what was that Cicero guy doing at trial all the time?

Looking for hookers and blow. In essence, being a proto-lawyer.
 

skip.knox

toujours gai, archie
Moderator
Cicero made his career arguing cases--Republican Rome did have courts. So did the Athenians. But these were more an assembly of citizens, before which any citizen could accuse and defend. Some were better at it than others, and those with money who were not good at it took to hiring others who were. The actual arguments are closer to oratory. Plus, there was essentially no case law, though Cicero does invoke precedent he does so more by way of appealing to models and admonitions rather than to specific previous cases and judgments. I know less about Athens, but they too had these assemblies--I think their "juries" consisted of 501 citizens.

The reference to trial by combat or trial by ordeal is certainly usable. lt would fit well for my orcs. Trolls are sort of less well-organized orcs (in social terms), so I could use it for them as well.

And thanks to SMAndy85 for the Japan stuff. Not for law, but those nine rigid levels fits nicely with some other hierarchical notions I had for my orcs. The correlation between one's social status and public office is a great idea. For fantasy. Perfectly awful for real societies! Among other things, I can envision correlation between social status and the use of varying levels of magic.

Also, tangentially, using magic in the courtroom could have possibilities, couldn't it?
 

Addison

Auror
My step-mother is a professor in law. She's unreachable at the moment but, form my time with her and lessons in history and general reading there were many ways different cultures settled disputes and such. I forget which culture did which but I recall; Some cultures had an elder/most respected member (usually male) of an accused person's family speak for the person and testify on their behalf. If at any point the person was found guilty then their entire family would be dis-honored and both the guilty person and the elder would be punished in some way by the prosecuting family.

Other cultures had the elder member of each family as a kind of council who deliberated on cases.

Finally the more deity based cultures did a trial by god sort of thing. An accused would be sent in the forest, jungle, desert whatever for X days (or into a storm or roiling ocean) and if they survived they were innocent. If not, they were guilty.

Hope this helps. Happy Writing!
 

skip.knox

toujours gai, archie
Moderator
That does help, Addison. More information is always good. Of course, your answers raise more questions. :) When the accused is sent into the forest, who does the sending? When the elder speaks for the accused, to whom are they speaking? For in law, there is the accusation (the arrest), the judge (and/or jury), and the executioner (sentence and punishment).
 

ThinkerX

Myth Weaver
Not a legal expert by any means, but I did sort of address this with the goblins of my world(s).

The goblins are biologically different than humans: hatched in batches of three to thirty from leathery eggs laid by females that account for less than 1% of the population. Yet, the desire to reproduce is strong within the males, prompting them to strive for dominance within their packs, and setting the various packs against each other.

Each goblin within a pack knows his rank in the pecking order, and is often referred to by the rank: 'Pack-Fifth.' Casual homicide to weed out the packs weakest members (or sometimes the stronger ones) is socially acceptable. Like individuals, packs are ranked by function, number, and competence. Strife between packs, though, is generally forbidden, as it weakens society overall. Warrior packs act as a sort of brutal 'police' while others vie with one another for function based status (metal working, pottery, that sort of thing). A council or congress of the more prominent packs settles disputes among the lower ranked packs.
 

C. A. Stanley

Minstrel
I know this suggestion comes from the most distasteful of inspirations, but could you build a system based on the so-called 'laws' of terrorists? I specifically have ISIS in mind.

Most 'crimes' are punishable by death, and said death comes in a variety of 'creative' forms? Burning, crushing, etc. depending on who is issuing the punishment, and how they are feeling at the time? A legal system that is both brutal and varied could certainly have significant impact upon the society in which it exists. Maybe throw in some flexibility/instability of law which means people are never sure whether they are breaking it or not, keeping them constantly on edge.

If the laws show signs of instability, you could also have the scenario where all citizens are able to enforce the law (no particular 'legal class' so to speak). If this is a particularly uncivilised society, this could fit nicely. Maybe I am showing bias against orcs here, but I always visualise them as savages, who would have no structured legal system. I suppose it could work in any culture that prizes violence and brutality.

My mind went a little off thread, but hopefully there's something usable in there.
 

skip.knox

toujours gai, archie
Moderator
I'm not sure you're describing laws, C. A. Stanley. ISIS follows sharia law, which is formal and detailed. What you describe are punishments, which is only one part of the law. I don't have any problem with letting my orcs and trolls practice brutal punishments. One advantage to branding, whipping, exile, execution, is that the punishment is done with quickly. No jails. Once you start incarcerating, expenses really shoot up. In the Middle Ages, at least, jails were mainly for nobility because to let them free meant they could raise opposition and to execute them would be to make a mortal enemy of the family. So long as the noble was incarcerated, he could be used as a bargaining chip.

As for uncertainty before the law, that condition obtained during the early Republic. The aristocrats knew the law and were also the judges. The plebs not surprisingly didn't much care to be put before courts without knowing the letter of the law. There was a kerfluffle that resulted in ten laws, with two added the next year. These were inscribed on tablets that were placed I think in the Forum. Anyway in public where all could read them. We still have those laws, as reported to us by Livy. So, there is precedent for the law being murky or even secretive.
 
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