Law & Enforcement in Imaginary Realms:
Part I: The Source of Law

by M. Joseph Young

In which the author looks at how the origins of our laws define our societies, whether fictional or real

Every culture which has been examined to date has had some kind of law and some kind of government.  That might have been little more than "the chief decides what we do", but whenever two or more intelligent beings have tried to live together, there have been rules to govern their relationships:  Law.

Most of us run our role playing games with very little consideration of the laws and governments which form the background of our worlds.  We can play for years with it mattering little more than "there's a constable on the corner", or "that's against the law here". Then suddenly the characters become involved in a way which brings the full force of the law into play, and we as referees discover that we have no idea how our legal system works.  Worse, we often make decisions which are illogical, or which, if followed through, create results which are entirely incompatible with the world we envision.

Part of the challenge to the referee is that players are independent, and may do anything at all.  But can they make or change the law?  Have they the right to enforce it, and in what way?  Will they run afoul of it, and if so what are the consequences?  No referee is ever completely prepared for his players' actions.  Whether you have a highly developed legal and political background to your world, or have merely mentioned some NPC with an official-sounding title, inevitably some player will do something which will have you scrambling to fill in the blanks.

This will be the first article of a series filling in some of those blanks, examining how laws might be made, what force they have, and how they are enforced.  In that discussion, we will look at individual rights, burdens of proof, types of evidence, and methods of punishment, and try to relate these to various milieus to see how they work, and how they affect the cultures and societies in which they are used.  But we will start with understanding how laws come into existence.

In the simplest of cultures, a patriarch or matriarch makes decisions based on the traditions of the tribe or group.  Often these decisions are made in consultation with other warriors, leaders, or elders familiar with the group's history.  That history becomes the simplest form of law, precedent:  we do things the way our fathers did them, the way they have always been done.  If there is a new situation, then the chief must weigh it in light of the past and create a new rule.

This system works well in worlds that change little; if the world will be the same for generations, we don't need new rules for new situations.  It provides a type of continuity, in that we know what to expect:  if what happened today has happened before, the law will handle it the same way.  But in an advancing or expanding world, the need for law to keep pace with the problems of society makes this an extremely awkward system.  Precedent is part of our system still, but it is found in volumes of past court cases, and debated by highly educated attorneys who do extensive research, arguing that what happened today is very like what happened in another case thirty years ago, and not like a different case from last year.  Thus the simple system of the panel of tribal elders becomes the court system of the complex modern world, and creates an entire profession to keep track of what was decided in the past and how that applies in the present.

Mark it well:  if you are extending the "simple tribal system" of the past into a large or complex community, you unavoidably create a very powerful class of judges and lawyers.  Whatever your background, even if it is as protoplasmic as "simple nomadic people settled to form walled city for protection", there will always be legal experts willing to use their knowledge of past decisions to defend the characters--for the right price, of course. Characters on the wrong side of such people could be in a lot of trouble.

But the chieftain concept took a different turn in ancient times, leading to monarchies and empires.  Now the chief ruled more than a tribe; he ruled nations, and he ruled as he wished, without reliance on councils and elders and history.

Or did he?  It has been said that Nebuchadnezzar was the last emperor to have truly absolute power over his entire known civilized world.  He could declare one law at breakfast, and change it after lunch.  But the absolute power of the emperor died with him, and was replaced by the rule of law of the Medes and Persians.  The question was asked:  which was greater, the emperor or the law?  And the answer was, the law.

Darius the Mede could pass any law he wished; but once he declared it, it was irrevocable, and he was bound by it himself.  And this raises one of the most critical points in law.  Is there one law for everyone, or are there different laws for different people?  Is the emperor above the law, or subject to it?  Are the classes in society equal under the law, or do some receive preferred treatment?  Do the Saxons get the same treatment as their Norman conquerors?  Do Roman citizens receive better or worse treatment than Roman subjects, Roman soldiers, Roman Senators?

Our modernist answer is that everyone should be treated equally, and that this intrinsically means the same.  But a brief perusal of history will make it clear that it was not always so, and it might not always be so.  Equality is achieved in our age by homogeneity--all persons treated the same.  But in another age, equality was achieved by balancing rights against responsibilities:  those who contribute more to society receive more from it.

European feudalism is an excellent example of this.  The entire country and everyone and everything in it is the property of the King; he is the only person who has rights himself.  He also has the ultimate responsibility:  the well-being of every person in his land is his problem, and he must make them all feel secure, and see to their needs.  He must defend the country and provide for his people, whether by trade or by conquest.  And he must make the laws by which disputes between his people are settled.

To meet his obligations, the king creates the nobility.  These are usually skilled warriors, and at the most basic level the agreement amounts to little more than this:  you will fight in my army whenever I call upon you, and in return I will lend you a portion of my land and the people on it.  Thus the nobles are given part of the responsibilities which ultimately belong to the king, but also receive some of the privileges associated with them, including the ability to create some of the law.  And the hierarchy of the title structure tells us that some have received greater responsibility, coupled with greater benefits. Characters with title should have a good idea of both the benefits and responsibilities accompanying it.

Below the nobleman is the peasant, also given rights coupled with responsibilities.  They are permitted to live on the land, and to eat from it; but they are required to produce food and deliver a share to their nobles.  They are entitled to the protection of their lords, but must obey the laws over which they have no control; and they must assist in the defense of that land if called upon to do so.  Below them are the beggars, to whom no rights are given and from whom nothing is expected.

It's also important to know how a person changes classes.  How does a player character advance from serf to lawmaker?  In the ancient oriental world, the simple answer was you don't.  Oh, you could be condemned to be an outcast as sentence for a crime, but you couldn't move up the ladder.  Such strict "caste" systems tend to stifle societies--you can make a better tool, or a better weapon, but it will not make you rich or your life easier.  You can risk your life to save your village or your nation, but after you have been thanked you will return to the fields.  There is no incentive to do more or better than others, no tangible reward for the effort, which could make motivating adventuring difficult.  The character who seeks wealth and power in this world will be slapped down quickly by those who have it.

But most systems allow those on the lower wrungs to move up.  Most countries today confer citizenship on anyone born within their borders, and on the children of citizens, and on those who pass a test and take an oath (although there are some distinctions--in the U. S., a naturalized citizen cannot become President, but has all other rights).  The Romans permitted wealthy individuals to buy citizenship, on the theory that those with a stake in the system would be loyal to it; they also granted citizenship to cities and provinces which accepted Roman rule peaceably and completely.  Feudal systems permitted those exhibiting combat prowess and loyalty to move through military ranks into civil office.  In later years, nobility was conferred on inventors and explorers and scholars who opened new vistas and founded new technologies, creating new opportunities for political, economic, or commercial growth and expansion.

If your player characters are seeking to advance within their world, you must ask yourself what that world values.  That is the standard they will have to meet.  Mongols and other barbarian raiders rewarded those who captured the most booty.  Vikings and other warrior empire builders made leaders of those who conquered territory.  European colonial empires knighted those who discovered and explored and tamed new lands, but also those whose studies and inventions made this easier.  Early representative democracies rewarded intellect and scholarship; some would argue that their modern offspring are driven by charisma and cash.  Those who best exemplify what a people values will rise to the top and make the new laws.

If you have a monarchial system, you should also ask yourself why the king is the ruler.  In most empires, it is a right of might--the strongest warrior in the strongest nation eventually rules the world.  In Egypt, it sprang from an economic reality:  during a famine, the Pharaoh traded his stored food for title to all the arable land in Egypt; thereafter, his family (or their conquerors) owned it, and the people rented it from him.  Late in Roman thought and late in European thought, the divine right of kings concept arose:  the king was appointed by a god (or in Rome many times was a god himself), and so had unchallenged authority.  Although this was true in Israel, where the earliest kings were appointed by prophets, it appears to have been an afterthought in most other countries, where military or economic events brought them to power, and divine certification was added later.  It is important because the king who rules as strongest warrior is in many ways "king of the hill", and a PC might challenge his authority by sheer combat prowess; the king who owns his position as part of his wealth could lose it (or gamble it away?); but the one who is divinely appointed can only be deposed if people turn against their god or the religious leaders withdraw their support.

In England, early in the thirteenth century, nobles were given rights in themselves.  Interestingly, these rights were little more than the same rights they had always had, but were made permanent by Magna Carta.  This moved us toward the theories of John Locke, that society was based not on a divine right of kings but on a social contract:  laws had force because we as a country agreed to live together under the laws; people had rights because they were people, and the power of the state did not come from the king to the people, but from the people to the king.  Suddenly parliaments were born.

The parliament concept is built on the principle that people should govern themselves by mutual agreement (social contract theory).  Some, among them Jefferson, believed in a Marketplace of Ideas theory, that Reason would dictate a single best answer to everything, and reasonable men given the opportunity to discuss their problems would ultimately recognize that best answer.  But it was quickly discovered that masses of people cannot effectively determine their own laws.  Representative democracy recognizes that even if every citizen could get together on Saturday afternoon to discuss how to run the country, it is unlikely that in a large country anything would ever be decided.  So a few are chosen to make decisions for the many, and yet fewer--the executive--to carry out, enforce, execute those decisions.

In strict parliamentary systems, those who legislate also execute and adjudicate--that is, the lawmakers appoint those who will enforce the laws and who will decide what those laws mean.  These systems are very flexible; a group (party) with a new idea which gains control of the legislature can very quickly rewrite most of the legal system.  Thus parliamentary countries will sometimes go through a period of drastic reform as idealistic members win support, only to as quickly see those reforms repealed by conservative factions when citizens weary of the changes.  A character in such a country might suddenly be informed that it has become illegal to own his horse, car, gun, or to practice his profession, ("didn't you hear the news/read the proclamation/check your mail?") only to be excused a month later when a different party takes control and changes the law again.

In relatively stable countries this works smoothly, and gradually reduces to a two-party system.  Of many parties, one will be the largest, and have the greatest control; eventually others will realize that they cannot win on their own--but since all object to the policies of the ruling party, they form a coalition based on agreement on a few important issues, and so can take control.  In less stable countries, no party can gain control in the legislature, so coalitions are formed as each larger party makes promises to smaller parties to enact some of their ideas in exchange for their support.  But coalition governments fall apart quickly, as they often depend on every vote of people with vastly different ideologies, and as soon as one group feels slighted, a new coalition has the chance to come together based on new compromises.

Independent branches ("separation of powers") of government make the system far more stable, but also make it much more difficult to enact changes.  The United States requires that two separate legislative groups (with very different membership) pass every law, and that the executive also agree to it (but sufficient numbers of legislators can force him to accept it if he does not agree), and still the law may be made invalid by the courts the first time (or the last time) it is enforced.  Constitutional governments also may have limits placed upon them, lines they may not cross.  Again in the United States, some areas of law may not be decided by the national government because they are powers of the states; the states have rights protected under the constitution, just as individuals do.  Your galactic emperor may be a powerful ruler, but you must know what areas of law are entirely in the hands of planetary governors and which he may enforce universally - especially if your PC's do a lot of planet hopping.

We've largely ignored many wonderful complications.  In worlds in which one church is sanctioned by the state (or the state by that church), there may be an independent branch of ecclesiastic law covering anything from doctrinal heresy to moral turpitude to mandatory tithing.  But this doesn't alter the basics; it merely means that there are co-existing legal systems which may at times conflict (and which the clever character might play against each other).  The tradition (precedent) of such law might be more ancient and less flexible, but it is still interpreted and applied in the present, as any other law.  In worlds which have dual or multiple legal systems, their areas of jurisdiction might overlap--the Pan Galactic Assembly might have authority in a dozen kingdoms, including several within the Arcturan Empire; but other areas of the Empire might be run by the Catholic Universalist Church, and still others by the Reformed Eldership.  And there could be other co-existing legal systems with broad jurisdiction on limited topics.  A business or labor organization, such as a guild, could grow so powerful that it regulated international commerce and contracts.  An independent peacekeeping force respected for defending the civilized realms against the chaos beyond (such as The Border Guard) could evolve into a tribunal which settled disputes between nations, but not within them. All of which could make life very interesting for the PCs.

We have seen how in the past and the present laws have come from people--elders or warriors, kings or priests, elected officials.  Will laws one day be written by computers?  Jefferson might have thought so, because he thought that there would always be a single rational solution to every problem.  But we've learned that law is based far more on values than on reason:  we create laws that protect that which we hold dear.  Yes, computers may one day help make laws, and even execute or enforce it. But while justice might be dispensed by impartial machines, law can never be impartial.  It is intrinsically about what the country believes, values, admires and protects, and those are biases vital to the creation of law.  Law is the best reflection of what matters to us, whether we are men or elves or andromedans.  Whatever the process of its creation, it comes from and defines the foundation of our world.

M. Joseph Young is co-author of Multiverser:  The Game and Vice President for Development of Valdron Inc.  A graduate of Widener University School of Law, he has written extensively on many subjects including role playing games, law, and theology, with much of that posted to the web and largely indexed for convenience.  This is the first article in this series, to be continued.