For Your Enjoyment, Part 6: Law and order for justice systems

I’m running low on topics that can effectively be addressed in these “focus on cross-cultural trends” articles. I’ve got this one, then nobility, then travel, then I’m out. I’m open to moving on to For Your Enchantment, which will revisit these topics with magic and monsters added in, but I’d be fine with returning to cover any other requests that I think would make a good post.

Today we’ll be looking at everything associated with law: legal systems, enforcement, courts, and sentences. In some areas, it’s difficult to define features that separate premodern from modern societies. When this happens, we’ll just talk about more general theory that will hopefully help you as worldbuilders.

The usual conditions apply: I’ll by trying to hold to things that are true across most premodern civilizations, so there’s a lot of variation to account for. Fantasy magic and cosmology changes a lot, though less than you’d expect for this topic. The usual “most fantasy is early modern” also affects less here. Finally, if my unfortunate European- and Mediterranean-heavy education shows here, please let me know and point me to places to learn.

Legal Systems

• The phrase “legal system” describes the basic philosophy behind a government’s laws. There are two main families used to classify modern legal systems. These don’t map to premodern cultures perfectly, but they can still help worldbuilders to think about how laws might work in their societies.
• The first family is civil law, also called statutory law. In this system, all laws are defined by a legislative body or other authority. You might expect this to be the only possibility, but there are others.
• The second is common law. In a common law system, past judicial decisions can have just as much weight as legislative laws. This is the system that is used in America; it’s why landmark court cases like Roe v. Wade still have so much power. When there is no judicial precedent, courts must fall back on traditional written laws.
• There are lots of variations. An extreme version of common law is customary law, where instead of relying on previous cases, judges use established traditions or cultural norms. Customary law systems are only possible in small, relatively simple societies like independent villages. The amount of wiggle room is too great for complex cultures to handle.
• Similarly, an extreme case for civil law is something I would call autocratic law, though that’s not an established term. In today’s civil law systems, laws are created by a legislative body—usually elected. In autocratic systems, these laws come from a single person. This is often the head of the government, such as a monarch, but other systems have regional or local laws made by a local authority (for a while, Roman praetors served this role). This is another one that gets more difficult as a state gets larger. Eventually, leaders have to delegate legislative power, though they may reserve the right to veto.
• Another special case is religious law. Religious law can layer over the systems we’ve discussed. A detailed work of scripture can serve as the basis for civil law, while spiritual authorities can be relied on for common, customary, or autocratic systems.
• Aside from legal systems, one useful distinction is between civil and criminal law. Criminal law deals with actions that harm society itself, while civil law (not to be confused with civil legal systems) deals with actions that harm specific people. Individuals will go to court to look for justice concerning civil laws, while the government itself will prosecute people that violate criminal law. Murder is criminal, slander is civil.
• Even in modern times, the line between these categories can be hazy. Many premodern societies didn’t make the distinction at all. Several Greek city-states, for example, considered almost all law to be civil. Even in extreme cases, such as murder, the government wouldn’t seek seek justice on its own unless the victims’ families specifically sought redress. If no one acted on the victim’s behalf, the murderer could easily go unpunished. The benefit of this system is that the government doesn’t have to invest many resources in unearthing crimes; your citizens will bring any relevant violations to your attention. The obvious downside is that a lot of crime will fall through the cracks.
• I haven’t seen any societies that went to the other extreme—making all laws criminal instead of civil. I can’t see it being practical, or even possible. Citizens wouldn’t be able to pursue litigation on their own; it would all be up to the government. The state would have to develop extensive surveillance programs to find violations. This is almost certainly beyond the capabilities of real-world premodern societies. If anyone knows of a culture that I’m not aware of, I’d love to know.

Enforcement

• Professional police forces are relatively rare in premodern societies. They represent a significant investment of resources and manpower. Because of this, there were two cheaper types of enforcers that were explored first.
• The first enforcer type was the citizens themselves. In very simple societies, residents could often deal with criminals on their own. I mentioned one interesting example in the first article on premodern societies. Villages in several medieval cultures had something called the “hue and call.” If anyone was in distress (usually from an assailant), they would give a special shout—we don’t know what it sounded like. Everyone who heard one of these shouts was socially and legally obligated to drop what they were doing and come to help.
• The second enforcer type was off-duty soldiers. We’ve already mentioned that standing armies were very rare. One way that governments could offset the expense of a professional army was to have the soldiers perform additional services when not actively fighting. Law enforcement was an excellent option, since the combat training professional soldiers had would help them be more effective. Infrastructure construction and maintenance were other popular options for employing off-duty soldiers.
• Only when other options had been exhausted would governments resort to a dedicated police force. The first areas to get proper police would be high-security locations like temples and governmental residences.
• Non-citizen enforcers could have a very interesting toolkit. Ancient Egyptian enforcers supplemented trained dogs with trained monkeys, though I don’t know what those were used for. Swords were more common than spears, since they can more easily be carried around and used in closer quarters.
• One thing to note is that purpose-built jails were very uncommon. Again, they were a significant investment. Imprisonment as punishment was rare, since feeding and housing criminals at the government’s expense is only the sort of thing modern states can afford. One of the only times imprisonment was used was to confine offenders before their trial. Even then, jails usually weren’t separate buildings, but were repurposed portions of existing ones, like the cellar of a castle.

Courts

• It’s easiest to look at courts by covering modern judicial systems and then discussing how premodern systems were different. Again, the two contributing factors for the differences are less complexity and fewer resources.
• There are a few ways that modern courts can vary. One of the easiest is how the trial itself is conducted. There are two main methods: the adversarial procedure and the inquisitorial procedure.
• The adversarial method is what we’re familiar with in America. Representatives for the plaintiff and defendant essentially argue with each other while the judge acts as referee. The main benefit to this system is that there is theoretically a balance of presented evidence and arguments. Judge and jury remain impartial through the entire process, only rendering judgement at the end of the proceedings.
• The inquisitorial method places much more power in the hands of the judge. Instead of being a passive recipient of information, the judge actively calls witnesses, asks questions, and seeks evidence. They act kind of like an in-court detective. Lawyers serve a less prominent role in these courts, mostly serving as expert intermediaries for the participants. The inquisitorial system was invented in direct response to the adversarial one. Instead of waiting for people to report crimes, judges (inquisitors) would seek them out on their own. If I’m honest, it seems like this system would be prone to abuse and false convictions, but my lack of familiarity with it might be to blame.
• In modern courts, most common law systems have adversarial courts while civil legal systems have inquisitorial courts. As far as I can tell, this is due to cultural history rather than practical considerations. I would say that worldbuilders could mix these systems without worry about realism.
• There are also variations in how court systems are organized. In most modern judicial systems, criminal and civil cases are tried in separate courts (though this is one area of bureaucracy that could be ignored for less complex societies). With criminal cases, the government or citizenry is represented by a state representative called a prosecutor.
• In most systems, there’s a kind of “pre-trial trial” where officials can determine whether a full trial is necessary. There are lots of names for this—inquests, grand juries, etc.
• Now we can look at how premodern societies cope with fewer bureaucratic resources and exploit legal simplicity. One way is how evidence was gathered. In order to elicit confessions, many governments regularly used torture, unaware of how consistently it produces false testimonies. In addition, many groups used trials by combat or ordeal (subjecting the defendant to dangerous conditions to see if they survive) to see if the culture’s god(s) were on the defendant’s side.
• One way to deal with legal cases without stressing the bureaucracy too much is to officially sanction nongovernmental courts—sometimes called “popular courts.” For example, guilds were often permitted to hold trials for their own members (at least in commercial issues), and ancient Indian offenders were tried first by courts organized by their families. Official courts would only be used in criminal cases, or if there was an appeal of the decision of a popular court.
• Another way to deal with caseloads without overly stressing governmental systems was to use itinerant courts. Judges, along with all relevant support staff, would travel from town to town. In each settlement, they would hear all the cases that had been collected since their last visit, render judgement, and move on. This was used when there wasn’t too much demand for judicial services, but popular courts couldn’t be trusted for whatever reason.
• There is one last modern institution that can be done away with if laws aren’t too complicated: lawyers. If almost everyone understands the laws in question, such as in customary legal systems, then it’s perfectly reasonable for parties in a case to speak for themselves. Professional lawyers are only needed when laypeople can’t reasonably be expected to

Sentences

• There are three main philosophies behind sentences of guilty parties: retaliation, restitution, and rehabilitation. These lend themselves to very different punishments.
• Retaliation-based sentences focus on punishing the criminal. Flogging and mutilation would fall under this heading, as well as most “eye for an eye” laws. Fines or confiscation of property are also common. In premodern societies, slavery is also frequently seen. The ultimate retaliation sentence is execution, and is more common in premodern cultures—though some cultures specifically forbade it. Social shunning and banishment are also options.
• Restitution-based sentences focus on compensation for the victim. This is frequently financial, though some ancient cultures would make the perpetrator the slave of the victim for a period of time. Smaller governments or clever judges might be able to think of some clever ways for criminals to right their wrongs.
• Finally, rehabilitation-based sentences focus on reforming the criminal to ensure they’re less likely to offend again. This is a very recent philosophy—I haven’t been able to find any premodern polities that based their sentences off of this theory. Rehabilitation sentences often use therapy, training, and employment to reform offenders.
• Once again, the boundaries here are vague and subjective. Many sentences can serve multiple purposes as listed here. Several things that give restitution also provide retaliation—if the offender is forced to pay the victim, for example.
• We mentioned in the Enforcement section that jails were very rarely used for punishments. There was one exception: debtors’ prisons. If someone was sentenced to a fine they weren’t able to pay, they would be sent to special jails where they would provide forced labor until their debts were worked off. This system was obviously susceptible to abuse. If a government needed workers, they could just heavily fine a bunch of poor people, condemning them to years of servitude.

And there you go! Let me know if you have feedback on this article or suggestions for future ones.