Law & Enforcement in Imaginary Realms: The Course of Law

by M. Joseph Young

In which the author looks at the many ways to catch - and prosecute - a thief

Law defines society, and society defines law; and in creating worlds in which our players will adventure, we who run role-playing games need to have some grasp of the law underpinning those worlds. We have looked at how social structures and lawmaking relate. But the creation of law, whether preserved in oral traditions, recorded on written documents, or stored in electronic databases, amounts to little more than words. Law must come alive, move forward, be active within the world, or it is nothing. In talking about governments we spoke briefly of the executive branch; but the issue which comes to the fore here is who executes the law, and how is it executed?

Many of the earliest laws focused on the wrong done by one person to another. If I hurt you, or stole your property, the law was on your side. You could enforce the law, bringing me before the chieftain, presenting your story. I would answer, and the chief would decide who was right. Sometimes the law would allow you to avenge yourself. But as society becomes more complex, it is not so easy to identify who wronged us, or for the chief to settle our cases. I might not know who took my missing wallet. If I have been killed, the person most wronged cannot present his case. The chief also has more to do for more people as his nation grows. The execution of law becomes the task of many more, of police systems and courts. But again, there are many ways these can be designed, and with each choice we define aspects of our world which we may not have considered.

The feudal system is a popular choice for RPG settings, whether because we seek some authenticity in our medieval and oriental worlds, or because we prefer to import chivalry and honor into our futures, and the trappings of knights and their lords are mirrored within that. This is also in many ways the simplest of systems, so we will begin with it.

The feudal system is simple because it is essentially linear: the government, the military, the police force, and the court system are all in a single chain of authority. Whether it is an English knight or a Japanese samurai, there is within one individual the power to make laws, enforce them, and dispense justice. If there is the possibility of an appeal, it is to the lord's lord, and ultimately up the chain to the king.

But it is a system inherently ripe for abuse. The sheriff, in addition to collecting taxes, conscripting soldiers, and preserving the peace, must investigate crime and administer justice. He can't do everything himself, so he hires men to help. Those men advance in the ranks by solving these crimes. So to the investigator, what matters is finding a guilty party as quickly as possible, and presenting his suspect to the sheriff. He also has superiors to please, and trusting his men, he will take their word for the guilt of the criminal they bring to him. If you have no particular rights or status, he might not even hear your defense; if his soldiers have done their job, they've already heard and rejected it, so he need not review the matter.

Players expecting (unrealistically) a more fair legal system may complain that their rights have been violated. But do the characters actually have rights, and if so what are they and how are they protected? And do the characters understand their rights? For suitably educated characters, the referee may have to explain what they know. Adventurers in a foreign country, however, may be surprised by unexpected rules and procedures - which can be a great way to shake up your players.

One of the chief protections of rights is the division of responsibility for enforcement. By separating those who judge - the courts - from those who investigate - the police - we create a shield against such abuse, because one hand must convince the other that they have arrested the right person. There is thus some sort of trial. When we have courts and trials, there are intricate rules related to proof and to rights. Several questions need to be considered, because they will make a difference if a character takes the law into his hands, or is confronted by it.

Every reader of this material has some familiarity with basic rights under modern legal systems. However, there are rights yet more basic which have not always been granted, or not to everyone.

The first right is called the presumption of innocence, that is, you may be detained to prevent flight, but until you are proved guilty you must be treated as innocent. But what is meant by proof? American law recognizes five "standards of proof", for different functions. The highest of these, "beyond a reasonable doubt", means that there is no plausible explanation for the crime other than the guilt of the defendant. In most modern courts, a defendant may not be found guilty of a criminal offense or deprived of life or liberty unless proved to this degree.

But proved to whom? For centuries, these decisions were made by professionals. First, as we saw, the police needed only to prove it to themselves or their superiors - the deputy to his sheriff, the samurai to his daimyo. Later, professional independent judges made decisions, as in the post-medieval European courts. Some sci-fi settings such as Blake's 7 have suggested a future in which computers will weigh the evidence.

But today we have juries--and a peculiar distinction between the "finder of fact" and the "finder of law". The latter is always a judge, trained in understanding the law. It is his job to decide what laws apply, to control what evidence is considered, and to explain what is necessary factually for the defendant to be guilty. The jury is the finder of fact, determining whether the law has been broken, based on the evidence presented and the judge's explanation of the law. But even when there is no jury, these two tasks are distinct: if there is a right of appeal, it claims the judge erred in his understanding of the law. The facts as found may not be appealed. The character convicted of a crime may be able to appeal, but he can't argue that he wasn't at the crime scene if the jury decided that he was.

The next standard of proof is "clear and convincing". This is not so high a standard as the first, and is uncommon in modern jurisprudence, used only in limited technical questions. It does not require that there be no other plausible explanation, but only that the finder of fact is persuaded that this is what happened. Below that is "the preponderance of evidence". This doesn't require even that the jury is convinced, but only that they see these facts as the most likely possibility. When a comedian recently joked that the attorneys suing O. J. Simpson for causing the death of his wife wished to have the transcript of his murder trial accepted as proof of his guilt, this was neither so funny nor so cynical as it sounded: to sue for money, they need only meet this standard.

Police dramas constantly mention "probable cause". This is the next standard. It means that there is some evidence of an individual's guilt, and on that basis we are going to disrupt his life looking for more. It ties to the modern protection against unreasonable search and seizure: the police can't overly inconvenience you without some clear reason to suspect you. This is also the standard required to arrest someone, to prevent him from fleeing. The lowest standard of proof is called an "articulable suspicion"; it means that there is something specific which can be identified, even if it is only furtive glances or ducking out of sight, which could indicate guilt. Under modern jurisprudence, this is sufficient only for stopping someone to question them and checking them for weapons.

But that is the point of this extended discussion. Your legal system need not be locked into these standards. What if an articulable suspicion were sufficient to arrest someone, or criminals could be jailed merely for probable cause? What if suspects may be executed for articulable suspicion? On the other hand, what if the police could not arrest someone without meeting the preponderance of evidence standard? Players may be certain who stole their character equipment, but can they prove it to the required level?

We're all familiar with stories in which the defendant is guilty until proven innocent. The absurdity of this should be apparent: no crime can be settled until everyone else has been proved innocent. It does work in a different context, however. If you create a legal system in which probable cause establishes the guilt of a criminal you can then require the defendant to prove his innocence beyond a reasonable doubt. Such a system will have a lot higher rate of conviction for a lot less effort on the part of the police. It will also make it difficult for player characters to avoid being arrested and punished rather regularly in most games. By changing the standard of proof, you can make law enforcement much more difficult, or much easier. If the players are defenders of the law, easier enforcement works in their favor; if they are the rogues, it works against them.

But how is guilt proved? The police present evidence. What is evidence?

In the final analysis, all evidence is testimony. It is not the plaster cast of the boot which the court considers, but the testimony that the footprint found at the scene matched the defendant's shoe. The blood on the blade may be evidence to the police, but in court it is the officer's statement that there was blood on the blade, and the technician's statement that it came from the victim. To the investigator, bite marks, DNA, and fingerprints all identify the criminal. Yet the jury isn't looking at those things, but at the investigator's testimony about them--and if a more credible witness (such as a nobleman or clergyman) testifies that there was no blood on the blade, it might not matter what it looks like now.

That testimony is in words. In the modern English-speaking world they are spoken words, for three very good reasons. First, it is possible that an illiterate person could have seen or heard something important. Second, the finder of fact is allowed to observe the "demeanor of the witness", to assess whether he is lying. Third, a witness should not be given time to invent answers; he should know what he saw, and answer accordingly. Under the Napoleonic Code, testimony is written, for three very good reasons. First, an illiterate person is likely to be less intelligent, a poorer observer, and less able to express his observations accurately. Second, the finder of fact should not be influenced by the persuasive abilities of a charming rogue or convincing liar. Third, a witness given time to reflect on the matter will remember more accurately, and is less likely to make a mistake.

And who gets to testify? Clearly the police must - they must convince the court of the defendant's guilt. You could draw the line there. However, in the pursuit of truth it may be valuable to hear from others. Must they be literate? This could pose problems for the characters, if those who saw what happened are poor and uneducated. But there are other possible requirements. It could be that all witnesses must be citizens, or even (in a tiered society) citizens of a particular level. A feudal court might be quite happy with a lord's declaration that his stableboy saw the criminal, and unwilling to hear the servant's protestations to the contrary! In many countries, only members of the approved church could speak; and only recently have American courts permitted atheists to testify--if you don't believe in the right god, what is to prevent you from lying under oath? Characters in a distant land may find they cannot testify in defense of someone they know is innocent, or even to defend themselves.

Television courtroom dramas are filled with lawyers shouting, "Objection!" There are many things which cannot be said in court; the Federal Rules of Evidence has over a hundred sections saying what can't be used as evidence. But for simple purposes, you can boil it all down to two words: relevance and reliability. Hearsay is forbidden because it's not reliable (he said she said they said). Testimony that the defendant is a generally despicable person is not allowed because it's not relevant (it's not a crime to be grouchy). You can build your own code of evidence on those principles, deciding how relevant, how reliable, testimony must be - if at all. Your fighter killed a hundred enemy soldiers in battle last month; does that make it likely that he poisoned the mayor? If so, he might be convicted, and find himself regretting all those orc kills in which he previously took so much pride.s

There are a few other rights which the referee should consider. In some settings these rights will exist, and in others they will not. It is a simple matter to change which rights you include to build your own unique yet realistic legal system.

The accused might have the right to know the charges against him; but he might not. He could be convicted and thrown in jail without ever knowing why. This can be very frustrating for players. Unable to learn why their companion has been jailed, they may find their best recourse is to break him out and flee the country!

The right to know the evidence against him might not exist, especially if testimony is written. Similarly, the accused might or might not have the right to confront witnesses, to question his accusers. By preventing the accused from knowing the evidence, we protect the witnesses from any potential retribution. By permitting the accused to confront the evidence and the witnesses, we give him the opportunity to answer the charges. Of course, that assumes that the defendant has the right to present a defense. Perhaps we don't want to hear his excuses--if the police can present a persuasive case of his guilt, who is he to argue? Set the balance where you wish for the most interesting story. If the players know that the butcher is lying, they may be able to find out why with a bit of investigation. Whereas if they don't even know who testified, they might find that the person who seems most interested in helping them find the truth is the one who framed them in the first place.

What of the right against self-incrimination? That is a modern concept. The trial of Jesus illustrates an opposite thought on this count: the high priest charged him with an oath to answer honestly; the nature of the oath was such that to not answer was to lie. Should defendants be allowed to refuse to answer, or may they be compelled to speak, by whatever means considered appropriate? And how will they answer if the questions are manipulative or implicatory? "Were you there?" "Is this your knife?" "Didn't you hate the deceased?"

In a world in which the law is complex, we have created the right to counsel. In a very simple system, no one imagined that you might need someone to explain the law to you or work for you within it. It is entirely possible that the law might forbid anyone from having someone else defend him, putting those unfamiliar with the local legal system at a decided disadvantage. It is more likely that such professional lawyers are only available to those who can afford to pay them. Are the player characters willing to give up much of their hard-earned gold to get help with their legal problems, or will they trust they can muddle through on their own?

We'll look at two other rights briefly. One is the right to final judgment, to be free from what has been called "double jeopardy" in our world. Without this, the police can arrest you again and again for the same crime, until they have finally managed to prove to someone that you did it. There is an argument though for allowing a second trial on the same charges if new evidence is uncovered. If you allow this in your world you may create a local constable who is intent on proving the characters guilty of some crime, showing up from time to time to arrest them again and put them through the process once more. This means the players can never feel truly safe.

The other right is the right of appeal. Think of this as saying to the judge, "Let me talk to your supervisor." As mentioned, appeals in our system can only challenge the judge's understanding of the law; it is presumed that those who originally heard the evidence have the best chance of arriving at the true facts (partly because they can evaluate who they believe). A new trial is only required if the appellate court believes that evidence was incorrectly included or excluded. With a written testimony system, it is much more plausible that an upper court might re-examine the facts, since they have the same testimony before them. Of course, there will always be some rules about who can appeal, when, and why - after all, Caesar does not wish to hear every squabble of every peasant in his entire empire. In modern courts, an appeal must be based on a ruling made by a judge, and usually requires that the side appealing objected to that ruling at the time it was made. You can use any of these rules to stop players from thinking appeals are an easy escape.

With all this in hand, you should be able to run a trial fairly smoothly. But when the trial is over, what do you do with the criminals? We have beaten them with sticks and stones, put them on public display, locked them away, and killed them; but what we do in any particular world depends on why we do it. We'll look at this in our final installment next time.

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 second article in this series, to be concluded.