On Fri, 9 Oct 2020 13:18:13 -0400, xxxxxx@gmail.com wrote:

>On Fri, Oct 9, 2020 at 7:06 AM Jeff Zeitlin <xxxxxx@freelancetraveller.com>
>wrote:
>
>> In my next Jotting, I want to discuss trials, both civil and criminal. I
>> have a decent amount of information on some of the basic forms of a trial,
>> but what I have quite naturally applies only to Earth history and present
>> practice.

>And I'm sure that different (even Western) cultures have very different
>procedural elements and laws that go into any form of legal proceeding, not
>to mention different approaches to jurisprudence.

In detail, yes, but by and large the fundamentals fall into the
Common/Adversarial or Civil/Inquisitorial groups; even Québec and Louisiana
are recognizeably hybrids of the two.

(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.)

>> 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')

>> An example would be the trial by Gowachin Law in Frank Herbert's _The
>> Dosadi Experiment_, which is superficially an Adversarial "bench trial"
>> (before judges, not a jury), but where the assumptions, rules, and
>> procedures are significantly different from the expected norms.

>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)?

>                                   (I put those together, but they aren't
>always appropriately grouped thus because one may have a focus on
>'enforcing the law' and the other 'providing justice' which can make for a
>big difference in default assumptions, approaches, and outcomes). I will
>also note that, much like countries that put 'democratic' in their name but
>aren't, many systems that carry the tag 'justice' are really 'legal
>enforcement systems' rather than engines of justice. So the name can't be
>the guide... but perhaps the underlying tenets, laws, philosophies, etc.
>could be.

Yes, this can be an issue - and you're not the only one to notice it.

>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).

>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)?
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)? 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.)

>> Another example might be the Court of Political Justice on New Texas in H.
>> Beam Piper's _Lone Star Planet_, where in form it is a standard Common
>> Law/Adversarial trial of the accused, but in substance, it is in fact a
>> trial of the victim.

On reflection, this (but not the Gowachin example) might be treated as a
perversion of the standard Common Law/Adversarial system, and I believe
that the protagonist of the story does in fact make that point (though not
in a blatant way).

>There's also places like Russia or China, where trials are far from
>impartial and tend to reflect the requirements of those with money and
>power directly (vs. indirectly in other jurisdictions).

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.)

>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.

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.

>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).

>Roman (Republic/Imperial) law is more focused on 'lex talionis' -
>retributive law (an eye for an eye). That is, I suppose, one view of
>'justice' and is represented in Western legal systems in the form of victim
>impact statements.

Roman law is also the origin of the Civil Law system, with the Church being
the source of the Inquisitorial system of trials (in Europe; the Chinese
developed essentially the same system via a different route).

It should be noted that Hammurabi's Code, which is the origin of "an eye
for an eye", specified _limits_ on retribution - that is, if you lost an
eye because of someone else's action, the _most_ you could demand from him
was the loss of an eye. The objective was to prevent vendetta and
escalation.

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'.

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xxxxxx@freelancetraveller.com
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