How you handle crime and punishment in your fantasy world is an important aspect of creating a vibrant and real culture. The legal system you create should reflect how society views law generally, as well as the values of society.
This article provides a starting point for considerations of criminal law in your fantasy world.
The Source of Law
At the outset, you should decide where laws originate in your society. This is not necessarily limited to deciding which individuals or bodies make the law. Take it a step deeper. It is useful to examine two broad categories for the ultimate source of law – Divine Right and Natural Law.
In a society where lawmakers rule by Divine Right (or, in an Eastern-themed world, The Mandate of Heaven), the ultimate source of authority is that vested in the ruler by the supernatural. This authority may dwell in an individual, such as a king or a religious figure, or in an institution or body of lawmakers. Wherever the authority rests, those who wield it are not subject to any higher power on earth, but instead rule as an extension of the will of god. The law is what they say it is. They cannot be wrong.
Natural Law supposes that there exists a universal set of rights or laws that apply to members of society. A person may have these rights or be subject to the protections of natural law merely by virtue of being alive, or they may be granted by the divine, to be set aside by no man. In the latter case, the key distinction between Natural Law and Divine Right is that under Natural Law these rights and privileges cannot be altered by the pronouncements of those in authority. A king may be wrong, and may rule unjustly. The people can point to a higher authority.
In truth, many societies will develop some combination of the above. Knowing the philosophical starting point for your society can, however, add verisimilitude to your culture and world as you develop them.
Punishment
Having established that your society has laws, there must be some means of encouraging people to obey them. The punishments you choose to inflict on members of your society should also be a reflection of the society’s underlying philosophy toward criminal law. What is the goal of punishment? Justice for the victims? Retribution? Something else?
If justice for the victim is a primary concern, the laws of society may seek to make the victim “whole.” Generally, the easiest way for the law to attempt this is through fines levied against the criminal, or by seizing property or other valuables from the criminal and turning them over to the victim. In cases where the victim is badly hurt, or even killed, the idea of making the victim whole is ultimately a fiction, but the law will nevertheless tend to make monetary awards as the next best thing.
A society that values retribution will exact punishment on the criminal in proportion to the criminal’s own moral culpability. Thoughts of restoring the victim will be secondary. The idea is that the criminal has committed a moral wrong, and society has a corresponding moral obligation to exact punishment. Note that the retribution levied by society does not have to be rooted in malice or an obscene desire to see the criminal suffer (though it can be if you wish it). For example, the religious dictates of society may require that the culpable soul be punished, such that the retribution of society, up to and including death, is intended to save the soul of the criminal.
A utilitarian society will look to a punishment that achieves the greatest good for society as a whole. In any given instance, this may include making the victim whole or exacting punishment against the accused. Utilitarian justifications may be used to support brutal punishments, with the aim of deterring members of society generally from committing crimes, or at least the specific deterrence of the individual criminal. A thief whose hands have been removed will find it difficult to steal again, for example. The ultimate specific deterrence is death.
Again, most societies will employ some combination of the above, as competing philosophies and justifications for punishment war with one another. A society may, for example, value restitution to a victim while at the same time finding a moral imperative in the punishment of the accused. The framework above can help you think about punishment in your world.
Social Status and the Determination of Guilt
Another aspect of punishment relates to the social status of both the criminal and the victim. Keep in mind that nobles or those from the upper echelons of society will tend to receive a lesser punishment for crimes committed against a peasant. On the other hand, a peasant may receive a much more harsh punishment for a crime against a noble than he would had he committed that same crime against another peasant. Be cognizant of any marginalized groups in your society, and think about how their position in society might affect the punishment they receive, or the punishment of those who commit crimes against them.
Of course, punishment comes after a finding of guilt. How does your society determine the innocence or guilt of the accused? Perhaps there is a trial by judge or jury, or by a religious council. For a bit more excitement, you might employ trial by fire, water, or combat. These “trials” generally imply a religious judgment, where divine favor leads to the correct end result. Trial by fire or water may be suitable for the lower class, while trial by combat may be reserved for the upper echelons.
Exemplary Crimes
When developing your society, it is useful to have a general idea of the types of behaviors that are criminalized, and of the relative severity of various crimes. A list is provided below, divided into three broad categories: misdemeanors, felonies, and capital crimes. For any given fantasy society, these crimes may be more or less severe depending on the values of society and on other considerations mentioned above. Some of the crimes on the list below, particularly those related to morality (such as gambling or prostitution) may not even be criminal in your society.
Misdemeanors:
- Trespass
- Gambling
- Prostitution
- Petty theft
- Assault
- Disturbing the peace
- Public drunkenness or lewdness
- Selling shoddy or adulterated goods
Felonies:
- Riot
- Inciting riot
- Piracy
- Rape
- Destruction of property
- Theft
- Robbery
Capital Crimes:
- Murder
- Treason
- Bribery
- Counterfeiting
- Impersonating the king
The development of a detailed justice system is a massive undertaking. The information above is meant to provide a starting point only, and it is up to you to expand it from there. Think about what your society values, what they might criminalize, and how they might go about enforcing their laws. If you establish these things and then build your specific system of crimes and punishment on that framework, you’ll end up with a consistent and authentic justice system.
How is Justice Handled in Your World?
How is crime and punishment handled in your own fantasy world?
Are your gods visible and interactive? If so, how does their presence affect the laws and values of society?
And does the level of magic or technology influence things?
I am currently worldbuilding the Drow society. They have a semi-theocratic state with a firm belief that one’s body does not belong to one self, but to the community. Their society is divided by “qualification” and “dynasties”. Each integrated individual belongs to a dynasty, which itself belongs to a corporation. Their justice system is divided into three groups: the religious, the corporal and the criminal. The criminal justice treats all affairs of public, non-religious interest such as theft, murder, infanticide, treason, emblazonment of public property, destruction of public property or rebellion. They are the only tribunal able to doll out punishments such as judicial slavery, judicial torture, fines or the death penalty (usually followed by a public dissection and the corpse is then given for “public works”). Religious matters such as heresy or blasphemy are ordered by the religious tribunals that are legally not allowed to doll out anything more severe than public flagellation and temporary slavery. The corporal tribunals are a “clan” tribunal charged with punishing things such as professional failures, non-compliance of manufacturing norms, corruption, juvenile delinquency, incest and public lewdness and drunkenness’. They can order punishments such as floggings and public humiliation.
The goal of punishment in such a society is to show that an individual is no longer trustworthy to dispose of themselves and thus much be stripped of their rights. After all, if you let someone to borrow your belonging and they break it, you would no longer let them do so, right? In short, Drow society punishes to secure it’s “property”.
Drow society has an Inquisitorial judicial system.
This reminded of Harry Potter and the unforgivable curses. While there were other crimes that could be committed within that world, those four were heinous. As well, they would be considered a heinous crime in our world too. I feel like J.K. Rowling touched on the a basic sense of humanity, no matter what or who you are, with that.
@Robert MacAnthony That’s true; we see it through the lens of our current society. I truly have difficulty understanding the concept of an infallible leader–even someone like the Pope.
I just started reading the first book in the Mistborn trilogy, which touches on this idea somewhat. If the leader truly is infallible and part of their God, are the perceived evils actually good and the well-intentioned rebellion actually evil?
I love it when a fantasy writer sets this sort of thing different from today’s society. Often this is used as a subtle statement and that adds to the provocation of the storyline for me. It takes talent to set something up like this that is utterly foreign to the reader, yet make it completely believable.
I’ve often found it interesting to learn about the backgrounds of people who write crime and punishment types of books. Often they have a legal background they draw upon to help them work through and unravel the intricacies of the plot. I’m not sure I could write in this genre without extensive training.
@Kristiana It is an interesting area of writing. I’ve taught Criminal Law and took the usual law school courses in Criminal Law and Criminal Procedure. Of course, there are plenty of people who know a lot more about this than I do. The good thing is that even a small amount of framework, considering just the issues outlines in the article, can have a positive impact on developing a fantasy society. For most writers, it won’t be necessary to do any kind of detailed development of law and justice in the Fantasy world, but understanding how some basic principles operate in the world can be quite helpful.
Very interesting. I really hadn’t thought about law and justice in relation to a novel. I guess, when I look back, all fantasy novels do have a system of laws as a framework of the society. Nice article.
@SeanDavid Thanks, SeanDavid. The extent to which a system of laws will impact a story depends on the story itself, of course, but even if you’re not going to have those issues in the story itself, I feel that having an understanding of the society’s philosophical approach to such things can still be useful in developing other aspects of the world and how people think and behave. I’m glad you liked the article!
Thank you for a thorough and thought-provoking article. I haven’t dealt too much with questions of law and justice yet in my writing but now I have a lot to reference when I do.
The thought of a ruler whose justice can never be wrong gives me the willies!
@Lyrie Yes, I think that would worry most people in modern societies. We tend to place a great deal of value on innate rights, and most of us operate from the perspective that government and leaders can be wrong (and often are, in the view of many). The idea that no right or law exists separate and apart from the pronouncements of the sovereign, and that the sovereign can therefore never be wrong, is no longer as common as it once was. The primary example I can think of in today’s world is not a government, but resides in the religious realm. For example, my understanding of Catholicism is that the Pope cannot be wrong when speaking ex cathedra on issues of faith (it is a bit more complicated than that, though, and apparently not all Catholics subscribe to the theory).
Good article. My whole work starts at a trial but I’ve yet to flesh out all the laws (I’ve just pointed out the ones that are necessary to the trial at hand). Though in my world it’s pretty much “eye for eye”. If you’ve murdered (and are found guilty) – then you are put to death. If you are caught stealing whatever the monatary value you’ve stolen you have to give back (plus what you stole). Basically – whatever crime you commited, is then commited on you. In rare cases, people can act as a beneficiary (in the event of theft) or take on the punishment of death (if it it means the innocent party goes free.) My world is really big on “a life for life” and all “favors collect debts”.
@Meg_the_Healer I’m glad you liked the article, Meg. The eye-for-an-eye, and life-for-life views tends to be associated with retributivism, though I see no reason that is necessarily has to be. I’m interested in the idea of taking on a punishment so an innocent party goes free. If the party is innocent, what need to the society fulfill with the punishment? Or is taking on the punishment of another meant to establish innocence (or at least the opinion on the part of the person taking the punishment that the accused is innocent)?
interesting one idea i have is law worshiped and fewsaredc like religion think meevil judge dredd kind of deal
@writeshiek33 The idea of law as religion is interesting, writeshiek. Interesting questions arise if the deity is actually interactive in the world. Say, for example, there is a Goddess of Law and Justice, and she actually appears in the mortal world, handing down her decrees as to the law. This raises interesting questions from a natural law perspective, particularly if you are dealing with monotheism or even a single, unified pantheon.
Can there be a natural law that supercedes the will of a monotheistic deity who created the world and everything in it? I think of Ivan, in Dostoevsky’s “The Brothers Karamazov,” who certainly felt that even if god existed, there was some moral absolute that exited independently and above god, leading Ivan to state that he was “returning his ticket.”
I like your idea of incorporation law and religion.
Hmm… very informative and definitely makes you stop and think about the way you’ve structured your society in a fantasy genre. Excellent post!
@Mel Chesley I’m glad you liked it. I think the topic provides many interesting possibilities for a fantasy world, and it is not a subject writers always think about. Thanks for your kind words.