I write a lot of legal plots into my books – I seem to prefer characters going through due process (albeit warped by power relationships, bias, greed and so on), and my plots vary from the prosecution of a murderer to the pursuit of characters by the police and venal local magistrates. I am a law student between academic gigs (just sent off another application for PhD funding for next year) and so I guess my books reflect my interest in the law.
Also in my gaslamp pseudo-Victorian setting, with a more powerful bureaucracy, more advanced communications (telegraph and railway) and characters who have lived much of their life in town, escape is a less attractive proposition than it might be, say, in the average mediaeval fantasy where the response to pursuit by a constable of the watch seems to be jump on your horse and get the heck out of Rivendell.
There’s also the option of prison rather than execution. Mediaeval justice was very cut-and-dried, but by the 19th century, prisons held petty criminals and people got released. Conditions weren’t great, but at least people came out alive once reformers had got rid of the probability that someone would, e.g. succumb to typhus, once called ‘gaol-fever’ in reference to its spread within the prisons in existence up until the late 1700s/early 1800s (transportation was one response to a reduction in the actual numbers of people executed for minor crimes; the Bloody Code did make an inordinate number of crimes punishable by death, but juries were notorious for reclassifying felonies as misdemeanours to save a prisoner’s life – even by absurdity, such as revaluing the theft of 30 shillings as a value just below the felony threshold). So when Robert Jordan has two characters arrested by the Whitecloaks and taken to Caemlyn to face the gibbet, he has to have them rescued to avoid almost certain death. In more modern settings, in contrast, despite the obvious problem of propertied men passing judgement on the unpropertied, there’s a distinct possibility for a fair trial.
I’ve seen a number of sci-fi programmes (Blake’s 7 springs to mind) which have conjured up alternative legal systems based on technology we don’t have access to IRL, and so there’s also the possibility for a fantasy society to have a completely fantastic justice system, utilising divination and other magical tools.
In my case, magic was specifically barred from being a defence or prosecution, mainly because of a spate of witch-hunting several hundred years prior to the main story, and I recently formalised this explicitly in my books: magic could not be used as a reason to prosecute someone: i.e. sorcery and witchcraft were made legal and no-one could be brought before a court charged with putting a hex on someone that led to their injury, but in exchange, it also could not be used as a defence unless there were a reasonable number of eye-witnesses that saw a magical act. Additionally, the dead cannot testify without a medium present in court, so to protect a defendant or plaintiff from the interests of the shaman getting in the way, this evidence is disallowed.
In The Black Magician series, Trudi Canavan, however, had a complicated system of mind-reading the accuser to determine the truth of their complaints and seeing the situation through their eyes in order to determine whether or not the magicians subject to this system even had a case worth bringing. It works well with her various bullying plots where Sonea, her heroine, is subject to some real cruelty because of her humble background, and it’s how one of the magicians also finds out about another wizard’s misdeeds.
I wondered, I guess, who here has thought much about the subject and can answer these questions.
- Who are your judiciary? Is it all left to the monarch, or has the system spawned justices of the peace (in England, originally the king’s representatives when he was busy with the Crusades), or a formal magistracy?
- What is the process? Are there lawyers? Is the judge an inquisitor (as in continental European legal systems) or are they an arbiter between adversarial sides? Is there common law, or a fully codified index? (I don’t want to go into too much detail, because I’d be here all night, but my characters have a textbook which not only details the judicial system, which is a common law system, but also gives landowners specific rights over their peasants which a few characters insist on interpreting on various whims such as which serve the plot).
- What magical tools do the characters have at their disposal? How is magic taken account of during the process? Does it make justice more objective (such as in Feist/Wurts’ Daughter of the Empire) or is magic too subjective or rare to work properly in a judicial context?
- Is there any legal pluralism? (e.g. where different sections of society are tried in different ways. In the real world, mediaeval clergy had certain benefits which were gradually rolled out to the ordinary people through a few mutations in the law, and then gradually rescinded until complete abolition at some point in the 1700s; also, Russian peasants were subject to a specific country legal system, separate from urban courts, which held them to moral as well as legal standards of behaviour. They could also be flogged until relatively recently – the early 20c IIRC. I used this sort of thing in some of my later books, but am currently trying to establish it in the early books just to make sure it doesn’t look like an insane ass-pull in order to torture my MC in new and interesting ways later on.)
- What is punishment like? How do you stop the law from killing off your MC or POV characters? Or do you, like GRRM, follow through on a punishment involving death every so often so that readers don’t get too complacent regarding the survival of the characters you write about?
- Do the characters stand their ground when under threat of arrest, and try to prove their innocence through wit or technicality, or do they flee, knowing that justice is broken?
- Speaking of which, is justice dispensed by a wise judiciary trying to uphold fairness in the face of noble opposition, or a corrupt establishment propping up other interests? I actually decided that my setting was coming out of a spell of comparatively liberal views into a more hardline, conservative or even proto-fascist system. So the judges are fairly anxious to be merciful, but the juries and prosecution tend towards the vicious. The magistrates actually recovered the right to enact corporal punishment on the peasants, after it falling into disuse for a while, and with growing unrest want it to be extended to urban workers who rebel against the system – this is not too dissimilar to what happened in Russia, and we all know how that ended; in fact, it’s a plausible reason why discontent could well lead to outright and successful revolution, which was always a sticking point for me in the early stages of developing the storyline.
Crow's Nest 