This is a questionnaire format more than anything else. I seem to be blocked on writing regular rants, so we’ll see how this works.
1) What are your laws like?
Too often, laws just show up in fantasy to add a little convenience or inconvenience to a story. Thanks to a little-known law, for example, the protagonist can compete with her accuser in the kind of single magical combat she’s good at instead of having to argue with him. Or the protagonist is arrested because of a plainly ridiculous, vague, and obtuse law that doesn’t apply to what she actually did.
This is another case where it’s good to remember that other people beyond your protagonist exist, that her society was there before she was and will be there after she’s gone (unless she’s a goddess, I suppose, but I am exiling all the godly characters to the corner today). Those people need laws for their own benefit, whether the protagonist is present or not. They may, of course—probably will—have to live with unclear or vague ones, and will try to change whatever kind of legal system is present to their own advantage. But it should be as coherent a part of the background as the system of inheritance in the monarchy or the reasons that people own land.
So. What are the laws like? Who makes them? What assumptions of power do they make? (For example, the automatic idea is that the laws must favor the wealthy, but if a different class, such as mages, is privileged in your society, they probably have their own legal safeguards). How are they passed? How is that process vulnerable to corruption? What safeguards against corruption are set in place? Yes, of course they can probably be broken, but, once more, your legal system shouldn’t be a chaos where coherent sentences flourish only by accident. If it can’t present the appearance of authority—notice I did not say “justice”—no one else has a reason to listen to it.
2) Who deals with the law?
Lawyers are not inevitable.
It depends on the assumptions guiding your legal system. One of the American legal system’s is that law should be majestic and obscure and hard to understand, or it’s not law. To grasp the law, you need special training, in the language and in the consequences and in the cases that set a precedent. And just because you’re qualified to deal with one branch of law doesn’t mean you can deal with others. If you don’t believe me, ask a civil defense attorney about copyright law.
Now, an invented culture can have completely different assumptions about this, especially if it’s a smaller society than modern America’s (which most of them are) and money/profit is not at the core of the way it lives (totally possible). It could be religious law, with law shaped so as to please the deity and not offend. This may sound funny, but you are not the one about to be cooked by a lightning bolt. And if you think the Ten Commandments are an exception because they’re a universally applicable set of general human principles, look at the first four of them again.
Perhaps the invented culture puts peaceful emotional relationships among others at the core of its existence. That would make them extremely unlikely to have laws which would encourage discord instead of reconciliation. They might have professional negotiators instead of professional lawyers. They might pay a great deal of attention to how people behaved towards each other and what they thought. A dispute might be mostly talked about until it solved itself. Persuasive argument could still be a powerful tool of the legal system, but its audience would not be judge and jury.
(Actually, I’d like to see that, because many of the fantasy societies with a different legal system seem to prioritize discord and offense instead—i.e., blood feuds).
Consider how magic gets involved, as well. It never made sense to me that a society with a high number of telepaths and empaths wouldn’t utilize them in its legal system. Perhaps there are moral sanctions against doing so, but then why are there no moral sanctions against having telepaths read the thoughts of friends? And if an empath can read the irritation of her next-door neighbor when his day didn’t go well, wouldn’t she also be able to feel his pain and fear as he was murdered? That doesn’t mean she’d know who did it, but I find it strange that she wouldn’t be involved at all in the resulting investigation, if only to confirm that it was murder.
The single most difficult thing about integrating magic with the functioning of your legal system is to set limits that make sense. Think about it carefully, especially with mental magic.
3) How is magic used?
This is yet another place where knowing the logic and principles behind your legal system will come in handy. Your readers might think a particular use of magic is immoral, but the society involved should not (or the discrepancies in its use should at least be justified. I think far too many fantasies rely on their own fantasy, that everyone in the world except the protagonists would be too crushed to do something about the most blatant corruption and lack of logic).
For example: Forensic murder magic is distrusted because it involves cutting off a piece of the corpse, and the dead person’s relatives are a bit skeevy about what exactly this mage is going to do with Our Bertie’s finger. Fair enough. But then why, later in the story, does the forensic mage show up with the valuable information in the nick of time? Did he find a corpse without relatives to object? Did he somehow hurry what we’ve been told is usually a long, delicate negotiation process? Sometimes it’s that, and sometimes there turns out to be a loophole so that something not thought to be possible with forensic magic is possible after all!
Yeah. And pepper your project with loopholes like that, and all that carefully crafted tension and worldbuilding you’ve done has gone to waste.
I’m all in favor of integrating magic into a fantasy world’s legal system; I think that if it was readily available, or even available but chancy, people would use it, and find ways to make it safer and more accurate. But using magic as a sword to cut the Gordian knot of legal complications is no more advisable than to suddenly declare that your heroine has accessed her inaccessible power to defeat the dark lord.
4) How just is the treatment given criminals?
Perhaps not at all. But again, there will have to be some rhetoric to justify that, if only along the lines of, “People like this are too dumb to understand the legal system anyway,” or, “Since she’s a member of [insert X despised group of people here], she doesn’t deserve the treatment that we’d give one of our own citizens.”
Think about basing the rules on something that is not English common law or the Miranda rights. Again, it should make sense for the society. Perhaps the right to silence is irrelevant, because they have telepaths who can pull the truth out of your head anyway. Perhaps the wronged person or the wronged person’s friends and relatives have the right to beat up the accused, but only for a limited period of time. Perhaps the accused has the right to make a speech, granted because many of them are hysterical anyway and won’t be good speakers. Perhaps theological law has transformed into political and social law, so there are still odd exceptions built into normal legal conduct for the sake of gratifying the gods.
Consider changing the treatment depending on the crime and the amount of evidence, too. Murder can earn a harsher handling than stealing a loaf of bread, and murder where the suspect was caught in the act doubly so. And connect the treatment of individuals to larger patterns in the society. What kinds of people are victim and criminal, and what is the normal attitude towards them? If women have a low status in the fantasy society, rape may not be considered a crime against the woman at all, but only a crime against another man’s property. Or a noble’s son may find himself in a sticky position because he stabbed a young woman he assumed was a lower-class prostitute, despised by most of the people he knows, but it turns out that she’s the emperor’s cousin. Or a city of pale-skinned people might be negotiating a delicate truce with a darker nomadic tribe for their goods, and so a boy’s throwing stones at a nomad child and breaking his skull happened at just the wrong time, while if it took place a month previous no one in the city would have cared.
5) Who has the right to inflict punishment?
If your legal system is set up very differently from the US/Western European one, judges are not inevitable either. Or juries. There may be a magistrate who decides on the punishment in reference to laws already on the books, without bothering to call for a jury. Judgment may be left up to the gods, to the victim or her relatives, to someone entirely outside the conflict who is deemed more impartial, or to a mage who is considered the servant of justice. (Something like the last happens in Diane Duane’s Stealing the Elf-King’s Roses, though it’s not done particularly well). The amount of interference that outside parties who are not said judge have in the process may be great—the ability to give bribes to ensure a certain outcome, for example—or severely limited.
As with the other adjustments you’ll make to your created legal system, this depends a great deal on what your society values. Impartiality is at the core of what supposedly makes a good judge for us, but within another culture’s rules, it might be the favor of the gods, or sympathy for the victim, or being the daughter of a long and distinguished lineage of women who have always made favorable judgments in the past. Decide, or look at, what you’ve established as having value in other aspects of your society and why, and enact it here.
6) What are the punishments like?
Execution, or the threat of execution, is fairly common in most fantasies that involve the legal system, but there are plenty of reasons to avoid it (strong murder taboos, a concern for what will happen to those who see it, concern for pain, the religious consequences of killing another person, lack of anyone who can perform the necessary kind of death, and so on), so here are some others:
- Maiming, such as removal of a finger or a hand or an eye
- Indentured servitude or slavery (which can be along a continuum with indentured servitude or entirely different from it)
- Payment of a fine (possible in animals or land as well as money)
- Removal of what made the crime possible in the first place (if a theft happened because a woman needed money to fix the leaking roof of her house, the people she stole it from might think that pulling down the house would solve the problem)
- Loss of privileges (such as the freedom to move wherever one likes; a criminal might have to stay inside or just outside the boundaries of the town)
- Parole, or forms of it (such as being required to report to a magistrate or religious leader every few days on one’s movements)
- Restriction of interactions with other people (maybe a condemned criminal can still speak to adults but not children, lest he corrupt them)
- The wearing of an identifying marker (The Scarlet Letter)
- Death at a distance (exposure, or casting someone out into a desert with little water and no clothing)
- A risky task (“Hunt down this other escaped criminal who’s much more violent than you are and bring her back, and we may forgive you”)
- Humiliation (such as public abasement to the victim)
Why use these? To vary the legal system, and also to posit a society in which execution is not the punishment for everything. (If it were, then once again you run the risk of creating a legal system that no one but the very protected can justify and which should have been attacked and/or toppled long before now).