(I should note that this discussion has gotten somewhat sidetracked from my
intent; for Jotting #12, I want to focus specifically on the trial or
equivalent, not the entire legal system. #9 has looked at penalties that
may be imposed as a result of the trial; #11 looks at some of the process
leading up to the trial, and as part of that discusses some of the legal
systems.)
Well, I suppose, except I will say that every trial that originates from a code of law (or even something less formal, but still a body of legal judgment) cannot help but reflect that body of law so it is hard to talk about the trial without first describing the body of legal process and principle.
>> What I'd like from the Group Mind is pointer to examples in SF of civil or
>> criminal "trials" that are at variance from the "standard forms" of
>> Adversarial, Inquisitorial, Combat, or Ordeal.
>Let me then point you at Native North American 'sentencing circles' and
>'restorative justice'. These processes are collaborative, involve the
>wronged and the person who committed the wrong, and the community is
>involved (elders and/or the broader community). Together, a resolution is
>arrived at. I don't know much detail, but it is profoundly different than
>the regular legal system in Canada.
This is exactly the sort of thing I need; do you have any pointers to
explanations? (I have the Wikipedia entry on 'Restorative Justice'; this
would also fall under the broad heading of 'Customary Law')
I have friends in the aboriginal community, but not ones living on reserves or in the North where this applies, so unfortunately, no. If I had a long time, we have a family member who is a lawyer for land claims and she might well know where to point me, but that would take a long time.
>I suspect any society that integrates psionics has a very different
>approach to a legal/justice system
I would expect so, yes - but do we have any examples from SF (including
Traveller)?
The Tavchredl refuse to allow me to disclose that information, prole. ;)
>If you want to look at one minor example that makes a big difference: In
>the US, there is something called the Castle Doctrine. It is the notion
>that a person has a right to use force (perhaps lethal force) defending
>home and property (not just life). In Canada, you may exert lethal force
>(if you are in direct threat) to save a life or prevent injuries, but you
>may not do so for property. If someone breaks into your house and tries to
>steal something, you may not injure or kill them.
And even within the United States, the availability of the Castle Doctrine
as a defense is ... variable (don't try it in NY, for example). Ditto
"stand your ground" vs. "duty to retreat" (NY specifies 'duty to retreat').
But that really falls under "different in detail, not in fundamentals"; the
United States is, for the purposes of this Jotting, a "Common
Law/Adversarial" system. So is Canada, fundamentally, though I understand
that Québec hybridizes it with the Civil Law/Inquisitorial system (as does
Louisiana, in the US).
Yes, but there are some very different aspects to the legal system that arise from different fundamental legal principles.
Other examples:
- It is far harder to start Class Actions (because you have to really work to prove there exists an injured class)
- You do not get US style ambulance chaser advertisements (no lawyer here can work pro-bono or on only expectation of pay at settlement and advertising is limited and far different from the US equivalent)
They would impact trials insofar as when a case can be brought and what cases the court will choose to accept as valid to be heard.
>Another less clear and more broad range of clashes: Canada now has a mix of
>native justice forms (referenced above), British common law (evolved by
>being here and us now having our own Constitution about 38 years ago), and
>French seigneurial law. The French and English (British) laws have some
>different bases particularly around property - I don't claim to understand
>it, but Quebec laws differ notably from Ontario laws and those differences
>start in drawing from two different legal traditions.
The native forms are limited to the autonomous native communities, correct
(i.e., they're not applied to cases not involving the native communities)?
I believe this is true but I cannot guarantee.
Can a resolution arrived at by that process be appealed to the
national/federal system, and be readjudicated under the Common
Law/Adversarial system (or the Civil/Inquisitorial system if in Québec)?
I suspect the answer to that may be 'probably but maybe not always' as we have 200+ different first peoples and probably as many treaties which means not all are uniformly treated.
This may also change as many are looking for more recognition that they have NEVER agreed to assimilation and are in fact distinct nations and thus entirely free to govern themselves.
If
so, then native law effectively has the status of ecclesiastical "law"
(whether Roman Catholic, Orthodox, Jewish, Islamic, etc.), which places it
more or less in the same legal status as a form of Arbitration, rather than
_law_ per se. (Yes, arbitration will be discussed in the Jotting.)
I think maybe in some cases if you hit the Criminal Code's more serious crimes, maybe that is true. I do not think local trials for less serious issues are appealable. But again, may vary by band/region/treaty etc.
I think I'd classify both of these as perversions of the standard form that
they more-or-less claim to be - essentially, a Civil Law/Inquisitorial
system (though originating in the Confucian Civil Service rather than in
Roman law, in China).
It should be noted that even in the United States, it's often claimed that
you get the best justice that money can buy - and also that there are two
parallel systems depending on race (or wealth). Again, that should be
considered a perversion of the standard form, not a fundamental.
(It would probably be worthwhile to discuss perversions of the various
forms; I am undecided as to whether that will make it too long.)
Frankly, every Earthly legal system is full of perversions if you want to call it that and every Traveller one will be too. Without a significant foray into these areas, any discussion would be like a philosophical debate without any practical examples. But perhaps that is the goal?
Also, we don't elect judges, sherrifs, DAs, etc. This has a big impact on what gets charged, how political jurisprudence is, and the practices surrounding trials are probably impacted but I'm not the one who could identify those impacts. I can tell you I am very glad we do not elect those authorities.
By en large, our civil service is even, calm, and apolitical compared to the US equivalents. That also applies in the legal system.
>Then there are military trials or terrorism/national security trials which
>both involve so much secrecy that even the advocates for the defense cannot
>see all of the details of an accusation. Espionage proceedings are another
>example as are the bogus trials used with P.O.W.s were the entire show
>trial has a coerced prisoner being forced to read statements of their
>'guilt' for various crimes.
Again, trials where [ostensible] secrecy prevents the defense from seeing
the evidence against them should be considered a perversion of the standard
form.
Most of the perversions you've called out are in some place (or places) standard practice.
Note that although the Court Martial is often perceived as biased, in the
Anglosphere the form is still that of the standard adversarial jury trial,
with the officer sitting as judge having only the limited role of ensuring
that procedure is followed.
Following military codes of justice, using military court standards of conduct, and in other respects also showing different rules than civil court which do make it a very different system.
>If you go far enough back, some trials were religious. That's the basis of
>the Inquisition and the Salem Witch Trials. In some places, they still are
>(India and some other countries that still have stonings, etc, though I
>suspect in India those cases were probably once the formal approach and now
>are extra-judicial).
Outside of areas where Sharia Law is preeminent, penalties beyond shaming
or shunning (per Jotting #9) specified in ecclesiastical law (e.g., Canon,
Halacha, even Sharia in areas where it is not preeminent) are generally
subordinated to the prevailing secular legal system, and mostly converted
to financial penalties (as more severe penalties may be construed as
felonies under secular law - even if secular laws specify similar
penalties) (Even the Vatican, where Canon Law legally is supreme,
subordinates penalties to what would be acceptable under Italian law).
In many places, a central government, or even the notion of a country as we in the West have drawn it on the map does not exist and trials in those places have more to do with religious and ethnocultural factors than with any outside legal body (there isn't much of a prevailing legal system if at all).
This has been perverted - or maybe a better word would be 'vacated' - in
modern US jurisprudence, with awards for 'punitive damages' (including, in
the US, tripling of any penalty imposed under the RICO (Racketeer-
Influenced/Corrupt Organization) statutes), 'pain and suffering', and
unreasonable valuations of 'expected earnings'.
Another instance of how things differ:
Once local towns and states and the US Federal government could profit from sales of seizures, a big distortion to the legal process came to pass. Here, we might have some police auctions, but the police don't make a huge profit from these. And we don't seize things at the drop of a hat.