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Quotes
from the deliberations of the Revolutionary Constitutional Convention,
1934, concerning establishment of a legal system (broadcast live
on radio):
"Marxists,
anarchists and the other hardened ultra-leftists always say that law
is a capitalist device
of control. For this reason, they condemn the rule by law as
something uniquely 'bourgeoisie,' and thus odious, and therefore they feel
justified in eschewing it.
How stupid this is on its face. Capitalists have also used gunpowder as a device of control,
yet
these ultra-leftists have hardly ever eschewed rifles and pistols."
"Democracy,
whether bourgeois parliamentarian or libertarian socialist, is impossible
without law."
"The
rule of law is an evil thing when it protects authority at all costs, or
even as a primary goal, but
when it constricts and disciplines authority it is a good thing."
"One
can't put too much faith in laws. We need to remember that
the first laws ever imposed were the rules the master handed down to his slaves, so
they would understand when he would whip them."
"Law is like food. One needs a proper balance in modest
proportions. Too little causes sickness and too much causes
sickness. We can institute laws and procedures but only in
moderation."
"Can't
you see that imposing laws on the people involves the very thing we fought against? It is always an authority that imposes law upon the rest
of the classes, and the men who exercise that authority become your
new ruling class. By its very definition, the law divides people into
lawful and unlawful people. It creates police and arms them so
they can make the division, and they with their guns and officious
manners and
suspicious stares become the
law. It becomes a self-perpetuating process that will make us
like the capitalists and fascists we just defeated. Law is
fascism's first tool, like the first sin on the road to perdition that
began with good intentions."
"Law
is not inevitably fascist, just as my gun is not itself a fascist
tool, whatever my thoughts or intentions or whatever I use the gun
for. Instead, I think the law stands halfway between the fascist
stick and the sweet innocent hope that everyone in a socialist society
will treat each other wonderfully. Law may be used by the
fascist, or against the fascist. We speak of the contradictions
in things, and here is one thing where the contradictions in a
thing is precisely what makes it work."
"I
would rather live in a system where the dictatorship rules with law
than without."
Cole: " Mister Hebbing, we are talking about breaking the law here, I want to be sure you understand that. No one gets hurt, but the law does get broken."
Hebbing: " Well, that's what the law's for, isn't it?"
--The
Grifters, 1990
[Homer reads the actual Cider House Rules to the illiterate workers]
Peaches: What do they think, go up to the roof to sleep? They must think we're crazy. They think we're dumb niggers, so we need
some dumb rules, is what they think.
Rose Rose: That's it? It don't mean nothin' at all. And all this time I been wonderin' about 'em.
Arthur Rose: They outrageous, them rules. Who live in this cider house? Who grindin' up those apples, pressin' that cider, cleanin' up all this mess? Who just plain live here, just breathin' in that vinegar? Well, someone who don't live here made those rules. Those rules ain't for us. We are supposed to make our own rules. And we do. Every single day.
--The
Cider House Rules, 2003
The
law, in its majestic equality, forbids the rich as well as the poor to
sleep under bridges, to beg in the streets, and to steal bread.
--Anatole
France
History
of Bergonian Law
A
Non-Western
Legal Tradition
Not even Bergonian socialists can deny the
importance of English Common Law in developing Anglo-American
republicanism, or that this republicanism has been one of the few positive
aspects of modern bourgeoisie society, but Bergonia in the Tan
Era developed its own republicanism and its own tradition of
law. Rule of law is a trait that the British have in common with the
Bergonians.
In ancient Bergonia two different
traditions of law, quite distinct from one another, developed: (1) the
Ancita tradition in the west, and (2) the Eastern tradition.
The Ancient
Ancita system of private law:
In western Bergonia a system of law grew
out of the traditions of the agricultural & herding tribes that spoke
proto-Nacateca languages. This system of law prevailed among the
Ancita people, whom the Great Prophet Ierecina emerged to lead. This
system was merely a system of mores, etiquette and
procedures that governed private recourse, whereby disputants settled the
matter among themselves by following traditional definitions of privilege
and honor. There existed no courts as such, or any other form of neutral
decision-maker.
If a man alleged that another man
committed a wrong, the parties in person or more often by proxies settled the issue by recourse to conflict.
Indeed, the warrior lodges and the warrior feticinai that came to dominate
all ancient Bergonia likely grew out of the need for proxies who knew how
to ue a sword. However, even though the conflict could-- and often did-- become bloody,
the parties had to conduct themselves by precise usages involving ritual
and honor. One first gathered up their allies--always of his own clan--
and went to the wrongdoer and verbally proclaimed a complaint.
Rarely did the accused concede to the
allegation without circumlocution and evasion, all for the preservation of
face, but if in his response he issued an invitation to talk the accusers
could take it as an implicit admission. However, just as the accused would
rarely openly confess, the accusers could not exploit the admission
implicit in the admission by taunting or trumpeting. If the alleged
wrongdoer invited the accusers to talk, the accuser had no choice; and his
party had to accept. Then the parties and their respective allies gathered
around a fire, drank tea and palavered until restitution was agreed.
Etiquette required that the wronged party refrain from bellicosity so long
as the wrongdoer remained willing to negotiate restitution. While both
wrongdoer and wronged sat at the fire, they said little save for
expressions of sentiment necessary to heal the emotional breach, while
their allies negotiated the actual terms. The allies often found it
necessary to call in arbitrators, who could never belong to the same clan
as either of the parties.
If the alleged wrongdoer denied the
accusation, the complainer handed down a challenge. Honor required that
the alleged wrongdoer accept the challenge. This could end up as a
contest, involving a wrestling match, a game of gambling, a foot race, or
a limited contest at arms. Sometimes the allies had to negotiate the
grounds of the contest while the parties sat listening, both silence. But
if the wrong involved something serious, such as a murder, a rape, an
insult to a woman, a malicious wounding, or a desecration of a holy place,
then the challenge would involve a fight with weapons, sometimes to the
death. No less than the death of the wrongdoer would commonly suffice,
although allies might step in if one side or another sustained a crippling
injury. As well, allies often volunteered to stand in the stead of
principle parties, particularly if a party were diminutive in size or
modest in strength or skill at arms. The matter could elevate to a blood
feud between families and even whole clans.
The Ancita could find the rules for the
conduct of these conflicts in The Book of Anger, hardly a code of laws
setting forth substantive rights, but a prescription for the correct
formalities to be observed in challenges, contests and feuds and a
declaration of the warrior ethos.
The "Eastern Tradition" of
Imperial Codes &
Courts:
In the east, the ancient Minidun people of
the Amta region developed empires. First came the Kuan Empire, followed by
the Tocazhon, the Mragatai and the First Ceiolaian Empires. These states
were organized according to a strict hierarchy consisting of an emperor
and his court, a graded levels of nobles, artisans, peasants, and slaves.
In the beginning custom alone sufficiently
bound together the structure of society, but soon enough there were
imperial codes handed down. The Kuan Emperor handed down the first code
known to us, in the year 1234 B.C., inscribed on stone tablets and set up
in a public hall called the "Pavilion of Tablets" where anyone
could go and see the law incarnate. This and subsequent codes, the
official ideology held, were inspired by the Nine Gods which the people
then worshipped. Like the codes of the Babylonians, these codes defined
offenses and prescribed punishments. However the Kuan punishments
contained many more contingencies than did those of the Babylonians. The
contingencies reflected some concern for the circumstances in which
the offender committed the offense:
Violation of a marriage contract:
"A man who promises to marry a woman and
then reneges shall suffer twenty blows at the hand of her family's
designee and bear a tattoo, and he shall pay her eight, sixteen,
thirty-two or sixty-four pa of silver, depending on his
rank."
Theft:
A man who steals property shall
compensate twice what he stole, and he shall either bear a tattoo on his
forehead or lose one hand. If he fails to pay, then he shall bear the
tattoo and lose the hand. If he steals again then he shall lose the
other hand. However, in lieu of the prescribed punishment, the person
who suffered the theft may take him as a slave. He shall also wear a
bracelet of dishonor.
Adultery:
A man who lays with a woman
married to another shall be beheaded, and the offended husband shall
do what he will with the woman. A woman who lays with a man married to
another shall be drowned, and the offending husband shall forfeit all he
owns, save for his weapons, if any, to his offended wife.
Homicide:
"A man who kills another shall be beheaded.
However, if he can show cause for the killing, then he shall pay
eight, sixteen, thirty-two or sixty pa of silver to the wife or children
or mother of the one he killed, according to that man's rank. A man
who kills a slave shall be made to show cause, and if he does not, then he
shall lose a hand."
Insult:
"He who insults a superior in rank
shall suffer ten blows from the magistrate. She who insults a
superior in rank shall suffer five blows from an appointed woman. The
offender shall also wear a bracelet."
The bracelet mentioned
in these codes was like a large heavy bronze cuff that signaled to others
their criminal pasts. The easterners also initiated a punishment for
the most serious offenses which did not result in death,
designed to confer a public and everlasting mark of humiliation,
namely a tattoo, which included a symbol of the offense committed.
An offense involving theft, deceit or violence usually went on the
forehead or cheek. It warned others that the bearer deserved a wide berth.
The imperial officialdom included judges
and magistrates whom the emperor or his governors appointed
to hear claims and mete out punishments according to the
code. There was no private law at all allowed in the eastern
legal tradition. Any aggrieved person had to look to the Emperor for
his substantive rights and to the Emperor's agents for his remedy.
Thus there was no private right of revenge.
Shufrantei
Law
When the great prophet Ierecina
performed his mission in western Bergonia among the Nacateca Ancita
people, he destroyed the old panitei ways and created out of
those ways and created new ways.
The legal system that evolved
alongside the Shufrantei religion promoted the belief that society was
ordained by the Dual Gods, the Holy Father and Mother, Arkan and
Icotesi. The leader of the state, called the tieri,was the
sovereign who answered to God. From this notion of law came the idea
of covenant. The basic covenant begins with God conferring blessings on
the people and ends with the people giving obedience to god and following
his precepts. The tieri has a covenant with God to serve as his
vehicle or agent on earth and, therefore, the tieri has a covenant with
the people where he serves in a role similar to God. This means that
the tieri provides to the people the gifts of peace and order by virtue of
his wise rule, and the people repay him with obedience. God never
breaks his bargain with the people, but the tieri, being human himself, is
capable of a breach. In that event, God punishes him with misfortune and
the people may repay him with rebellion. But if he rules wisely, then he
may exercise virtually dictatorial power. His dictatorial power included
the power to appoint judges who had absolute power to police and judge.
However, both the tieri and all his
servitors, including the judges, were expected to follow the precepts set
forth by Ierecina and the other prophets. The Shufrantei did not form any
clear code of laws until the 800's, but jurists did extract from of the
scriptures of the Shufrantei religion
lists of aphorisms which served as legal principles that were particularly
important in developing a theory of civil law and a law of evidence. The
jurists also wrote essays on the meaning and
the implications of these aphorisms and principles. These essays
rarely involved much else than practical problems, such as how to
weigh evidence in difficult cases, what would be appropriate
punishment in particular types of cases, and what procedure to follow in
complex trials.
The basic Shufrantei law recognized three
distinct social classes, the nobility, including the panitei warriors,
the common men which included the peasants, and the slaves. The nobles
suffered heavier punishments for their offenses since their stations
required more responsibility of them. The actual practice was that the
testimony of a noble had greater weight than the testimony of a commoner
or a slave, except that one's general credibility could be assailed by
adverse character witness. In fact, judges and lawyers relied heavily on
character witnesses in cases where two parties offered conflicting
testimony. They also gave considerable weight as to the motive of the
witness. The judges took testimony from slaves quite regularly in the same
manner as they did from nobles or commoners. For example, the court would
hear a slave testify against his master after the court satisfied itself
that the slave had always enjoyed fair and good treatment and had little
or reason to impugn his master. The law forbade the masters of slaves from
punishing them for their testimony.
Custom and the law permitted judges to make
slaves of commoners and even of nobles if they committed a serious
offense. If the offense caused moderate harm, the offender would be
sold on the market by the judge, and the victim would reap the proceeds as
compensation. In a serious crime the offender could be given directly to
the victim as his own slave. In such cases the victim hired a man to whip
the offender and then leased him out either to a mine operator
for work as a laborer or a miner or to a caravanner to work as a porter.
The operator or the caravanner then paid rent for the slave's labor to the
victim. Often the victim would make an outright sale of the offender
in order to be rid of the trouble. Sometimes the sale or the lease of
a slave was conditioned on there being a term of years to the
offender's slave status, but this was the exception rather than the
rule.
Other punishments for offenses and losses
occasioned by wrongdoing included payment of compensation by
the offender, payment of fines to the tieri, loss of land or right
to land, banishment from the city or the state, tattooing for the purpose
of inflicting permanent embarrassment, and flogging. There were no
prisons, except for holding facilities pending the trial.
Tan
Era Law
The Tanic movement of the 1200's was
essentially a political and social revolutionary movement that
centered around several simple propositions. Some of these were cures to
social evils of the time. The first and foremost of these was
the demand that all forms of slavery based
upon debt be eliminated. Save for slavery related to imprisonment
imposed as sanctions for violent acts, all other forms
of slavery had been abolished in previous centuries. The proposition
which held significance for this discussion is that society and government
must be bound by rule of law.
Types of Law
1. The Paice,
a Nacateca word pronounced (approximately)
PIE-kay.
The
Tan Era left to us a strong legal
tradition of civil law, including several good commercial codes governing
everything from contracts, law of agencies and proxies, bailments, liens
and pawns,
negotiable instruments, interest and usury, and rules of auctions. Most
of these codes started with general principles, call paice.
The paice expressed the law of substance.
They imparted the rights and the responsibilities of people,
officeholders and the various social classes. They read
dogmatically, as absolute statements. They were of great importance to the
political as well as the legal culture. The paice are broad general
statements, by which specific substantive laws passed by assemblies or
dictators were to be judged, like modern American laws are judged by
whether they are "constitutional" or not.
Paice did not originate in the enactments
of assemblies or legislatures or in the edicts of tieris. In theory
they originated from the Gods through the wisdom of the devotees, and
reflected the holy law. In practice the paice existed as
aphorisms exchanged by priestly jurists who "kept" the law
and attended trials to advise as "law-speakers," and magistrates
who judged the cases. All decrees and edicts had
to comport with the paice, and magistrates in theory had
a duty to disregard any decree that contradicted a paice.
If the law-speakers protested against a
decree, the magistrate had to suspend enforcement.
Bergonian religion had no Koran or
Bible-- that is, no divine revelation and no divine scripture.
The only divine revelation given to Ierecina consisted of the myths of the
gods, while Krathnami never claimed to have received any
revelations. But there was divine inspiration. Anyone could find the
truth of the Gods through pure devotion, and then divine inspiration would
fill them. Although the form and the language of each individual's
revelation might be unique, the substance was always the same, since
all inspiration flowed from the same place. Likewise,
all the devoted wise men who declaimed on the __, no matter
how individual their experience, still drew from the same store of truth,
a single source from which to draw the
In the beginning paice circulated in the
form of popular proverbs, and even peasant headmen knew them by heart.
There are many scenes in medieval plots where a tyrannical Iregemi intent on stealing grain receives
his comeuppance when a village headman quotes paice to him. Later the
paice came to be written in codified form by priests and legal scholars
working together. The most esteemed "code" --
collections of aphorisms arranged by subject and numbered -- was the
Paice-don-Mragatai, named for the capital city of the Tanic state of Bumatron. The
ruling council of Bumatron commissioned priests & jurists to write the code,
which they did in 1257 during the Tanic Wars that swirled across all
Bergonia. While later codes were composed, most jurists have referred back to the
Paice-don-Mragatai. It consisted of 102
individual paice.
Here are examples of paice:
§
Each official
must endeavor to serve all the people and refrain from harming the common
welfare.
§
Whenever planning, plan for the
needs of children and grandchildren. (From this it is now argued that a fortune should never be squandered, or that resources should
not be wasted.)
§
A man in authority
who fulfills his duty as prescribed by others deserves respect. (The converse is
that a man in authority who is in major breach of his duty may be
questioned.)
§
A man shall not be
deprived of the fruits of his labor. Anyone who steals a man's labor
or deprives him of his wage is a thief.
§
No man shall profit
from his own misdeeds.
§ No man shall profit (materially) by his silence. (e.g. a man
in a claim for money many not refuse to answer questions.)
§
He who commits a
crime of malice may cure his misdeed only by conscious repentance. He who
commits a crime out of ignorance may cure it only by knowledge.
§
A man who complains of an offense against his neighbor must
have clean hands as to that neighbor. An act may violate the law, but the
punishment may depend upon the provocation.
§
A lie requires knowledge of the truth, or at least knowledge of
what the truth is not. But an untruth told in willing ignorance of the truth is still a lie. A
lie told with belief in it is never a crime, unless
circumstance dictate a presumption of actual knowledge.
§
A person with a
strong belief will mold his sight, his memory and his thoughts
to conform with it, and thus he can speak innocent
falsehood. Thus, a marriage between belief and ignorance usually
bears falsehoods as children.
§
A man who steals a
thing and then sells to an innocent buyer has committed two thefts.
§
Whichever side of the door you are on, it is still the same thickness. §
Different reasons for remembering, different ways of lying. §
A person who fails in a duty of care, consideration, or common sense
to another one, and who injures that other in a foreseeable manner,
becomes indebted to him at law. §
An officer who exceeds his authority and who thereby injures a citizen
in a foreseeable manner becomes disqualified for his office and
indebted to the citizen at law. §
One does not point with a dirty hand. (One who has done wrong
cannot make accusations or claims of wrongdoing against his victim. §
One may not profit out of wrongdoing against another./To ask for
justice one must do justice. §
He who does not deny, admits. §
A worker shall know the value of his labor. §
The right to speak carries the duty to listen. §
One is not present unless he understands. §
One need not explain what the law presumes one does not know. §
Trust stingily, whether in the law or in other men. §
Violating a trust, theft by fraud, harm to a child or a helpless
person, and physical assaults are all of a kind, deserving of jail. §
The law will not punish the trusting, nor forgive those who solicit
and violate the trust of others. §
Fraud occurs as often in the manner of speaking as in the words
spoken. §
A crime considered is not a crime committed. §
He who does not complain early cannot complain later. §
If one consents one cannot complain. §
The law cannot remedy all sins. §
There is no wrong where there is consent. §
To speak is to speak; to write is to act. §
He who reaps the benefit must partake of the disadvantage. He
who has partaken of the disadvantage shall reap the benefit. §
Your motive gives a name to your deed. §
An act is not made worse by subsequent acts. §
Act when action is needed, explain later. §
A clandestine gift gives rise to a presumption of bad faith. §
The loudness of a complaint is no good measure of its validity. §
The part follows the whole./ One who doesn't understand the whole will
misunderstand the part./ One cannot understand the part without
understanding the whole. §
Confession is honored, but silence is respected./ Confession is
honored, but never required. §
Good never justifies evil. / One wrong doesn't justify another. §
The law assumes that people have behaved lawfully, that each person is
innocent, and that people act in good faith. §
It is safer to be deceived than to deceive. §
Presume meaning and intent from words used, their plain meaning, the
speaker's actions, his past practice, prevailing custom, and professional/vocational
practice. §
The law shall not confer a favor on one that injures or deprives
another. §
Law must respect the bounds set by nature.
§ The nature of a thing lies in its origins. §
No one may pronounce judgment without asking questions. §
That which has no beginning has no existence. §
That which has no beginning has no end. §
Take away the will and every deed is indifferent. §
Even an animal has will and motive. §
A man cannot give what he does not have. §
The heir succeeds to a restitution but not to a penalty. §
Punish the intent not the result. §
A crime committed in secret is worse than a crime committed
openly. A crime avoided is worse than a crime confessed. §
Intent is expressed in words chosen. §
Justice never requires an impossibility, a vain act, an injury, or the
unreasonable. §
Wisdom, not necessity, makes precedent. §
When in doubt, err on the side of the non-intrusive, the gentle, the
modest. §
Reason extrudes from the divine. §
Understand the origins of the things with which you deal. §
Authority carries duty. The greater the authority the greater
the duty. Authority without duty becomes tyranny. §
No warrior can embarrass the lodge and then
seek its defense. §
No prohibition without reason/justification. Custom/tradition
without reason is like walking with closed eyes. §
What is lawful harms no one. What harms another is not lawful. §
The law is best that gives the judge the least amount of discretion. §
No privilege unless based on necessity. §
Necessity and ignorance are the best excuses. §
Do not eat the fruit of a poisoned tree. (means the same thing
here as it does in American criminal law.)/ You are not to do evil
that good can come from it./ Good does not come out of evil. §
Law favors diligence, good faith (loyalty), charity, confession and
recompense. §
Every dog requires a leash. (Everyone with power must be
restrained.)
The paice are to law and political science
what the paira were to religion.
2. The Chiconagi:
Procedure under the Tanic Law
Tan
also included several "systems of trial" called Chiconagi -- compendiums of rules
and descriptions for conducting different types of trials and
examinations. During the Tan era, magistrates on the rural fringes
of small city-states only needed to refer to such recipes for trials in
order to provide a reasonably just proceeding. Private commercial
litigants typically resorted to the compendiums for arbitration, including
procedures for picking mutually agreeable judges.
Chiconagi is a Minidun term that originally
referred to traders' protocols. In time the usage expanded to include all
state-sponsored legal procedure. This is the law of procedure, the law by
which people are to bring forth their claims and the
means by which claims and disputes are settled. Chiconagi include the
specific technical rules of procedure. It also includes the general custom
of etiquette by which the litigants should behave.
The most famous of
these were The Nine Trial Methods which provided basic rules for trial
for every occasion, from minor cases of insulting words to murder and
treason cases. The work called Reasonable Trials and Meetings was
very compact; a sort of medieval man's form of Roberts Rules of Order,
which was ultimately based on the internal rules and custom of the warrior
lodges and temples of old. The most important compendium
of commercial and arbitration law was Trading House Rules, a
concise and complete system of public and private law. Before that
came The House of Etiquette, a work of verse written in 557 that
described the proper forms of manners, niceties and rituals in
negotiating, auctioneering and socializing, including the customary
exchange of gifts. It was as much a book of courtly manners as a
legal tome. It became very popular among traders in the Amota
regions in the 700s. There was also a type of written legal
precedent in the form of short stories. Here ideal trials were
described in cautionary tales and dramatic fiction, and advocates often
cited to them in real trials.
The law states that any entity can bring a
claim against any other entity. In Nacateca the legal term for
entity is otei, which includes a person or any organization,
including temples, religious orders, banda lodges and academies, clan
organizations (including brotherhoods & mutual aid associations,
organs of government, trading houses and economic enterprises).
Any otei who wishes to make a claim,
whether on his own behalf or on behalf of some otei, e.g. a
corporation such as a trading house, or the government, must go to the
preliminary judge. The preliminary judge requires the claim to
be stated and usually would review it to insure it is formally correct. He
puts the claim in writing or reviews and endorses the writing brought to
him by the claimant. He may require the claimant or the defendant to post
a bond. The preliminary judge may also order the troop of police at his
command to go forth and seize the defendant and summon him forth. He may
order the imprisonment of the defendant or allow him to go home. But in
any event only the preliminary judge has the power to imprison, unless
there has been an emergency called by the tieri.
At the trial the presiding judge, appointed
by the tieri or other state power, determined that the trial proceeded
according to the proper procedure. In other words, at the trial one
magistrate controlled procedure and another magistrate controlled the
substantive law. This created a balance of power which prevented a
thorough miscarriage of justice at the hands of one incompetent or
corrupt magistrate. Often, one might try to compensate for the
difficulties caused by the other. The Chiconagi relating to the trial
dictated the manner of swearing, the form of testimony, the power of
compelling witnesses, the demeanor of those present, the formalities,
and the weight of the evidence. The judge made all relevant rulings
about the applicable Chiconagi.
The "Law-speakers"
Authorities
who knew the law but who were not quite judges. Typically, in the court of the Tanic era an
officer existed called the paicetei, the "Law-speaker."
He sat to one side of the courtroom and had a special authority that
the presiding judge could not refute. He sat rather passively throughout
the trial of a dispute, but at any time if the substantive law came into
issue, the parties had to defer to the Lawspeaker. In most run
of the mill cases, the Lawspeaker did not even attend or, if he did, he
arrived at the end after the court had resolved the disputes as to facts.
His very existence showed that Bergonian jurisprudence differentiated
quite clearly between disputes of fact and disputes as to law.
In earlier times the Lawspeaker was
usually a priest, but over the centuries they evolved into a separate
profession. The various Shufrantei denominations all trained Law Speakers, who
studied the scriptures and the essays of jurists, in addition to the
written corpus of laws itself. Priests, once trained as law-speakers, could
no longer perform any regular priestly functions, except
to take oaths and administer the rite of purification itself. In
time Many priestesses became Law Speakers.
The civil authorities appointed
and hired Law Speakers to serve in their courts. Often the parties attempted to agree on a choice. Just
as often the judge designated one from a list of available ones,
sometimes by drawing lots. When the Law Speakers were not actually sitting on a
case, they usually hung around the nearest library and dispensed advice to
anyone who sought it. By law they could not accept any
remuneration other than a fee set by law, traditionally one silver coin which the
questioner tossed into the law-speaker's cup, which he had for such a
purpose, but later regulated by the local authorities, in order to
adequately cushion the law-speaker' income.
Tradition required law-speakers to live simple austere
lives, but in fact they often lived richly and as a profession became
known for their lavish dress. They wore robes of rich
purple, in contrast to the wine-red or gray robes of the regular
priests, or to the somber robes of the judges. .
Trials
Much has already been stated here about the
manner in which Tanic era Bergonians conducted trials.
However, the picture is not yet complete.
The choconagi contained provisions for the
"high trial," the most formal proceeding for deciding the most
serious of disputes and charges.
In the High Trial the room had four tables which faced
the empty center. On the north side of the courtroom the judge sat
at a table with his scribe and bailiff. They wore robes of blue. On the east side of the room
sat the Lawspeaker, wearing his bright colors. On the west side of the room
was seated the jury, dressed in somber dark clothes, preferably black, but
often just plan street clothes. They were never expected to dress up
for court. On the south side of the room should sit the litigants, and they should
wore white for the purity of their oaths.
People entered and left the room by a door
in the southeest corner. The witnesses testified from a booth
at the northwest corner of the room, between the judge and the jury.
The jurors themselves were often judges,
but sometimes just educated citizens, and sometimes common citizens. There
was real discriminating attention to selecting the most appropriate
jury.
The jurors heard the evidence and decided
who told the truth and who did not. They could ask questions of the witnesses and of the
Law-speaker, such as, "Is this really relevant?" Under the most radical of the Tan states, any person
could become a juror, reflecting the Tanic concern for equality. But
all jurors should include at least one educated judge. In this
respect the Tanic juries resembled the juries used in Europe under
the civil law system.
The juries often proclaimed the
verdict as to whether a party had done wrong or not and
then demanded more evidence before determining penalties. The Lawspeaker
could ask the judge to set aside their verdict if he felt it clearly
contradicted the law. But the judge could not set aside their verdict
without the approval of the Lawspeaker. The judge could offer his
opinion to the jury and even argue a position, as could the Lawspeaker,
but the jurors could decide however they wanted. Jurors
had great latitude in the procedure, particular in their ability to recall
witnesses to answer more questions and to order persons to come to court
to testify. Tanic juries were hardly passive instruments.
By the same token, the presiding judge had
very limited power compared to the judges in other legal systems. However,
whenever any of the other players in the courtroom drama had disputes
he did possess the power to arbitrate, and everyone expected him to uphold
the authority of the Lawspeaker and the Jurors.
The parties could state their
positions and the judge could ask questions to clarify their
positions, as could both the Law speaker and the jurors. The parties could
have advocates, and many educated men did act as professional
advocates, although usually as a part time or as an avocation.
Such men also usually worked as scribes or officers in associations.
These men formed an incipient class of what we now call lawyers.
However, modern historians often overestimate
their role, since most litigants and accused men and
women represented themselves in these Tanic courts.
Offenses under Tanic Law
The law recognized three classes of
offenses. The types classified offenses for the type and the severity of
punishment.
The most serious category of offenses was the
guvremun (Nac.). Commonly the legal
scholars agreed that guvremun included these crimes: (a) murder, (b) any act of intended
infliction of physical injury, including torture and malicious wounding, rape,
(c) any act of sex involving children, incest, or
animals, (d) the desecration of religious art, relics or places, and (e)
treason, military desertion, or betrayal. The general, often misapplied, test
for guvremun was the malicious intent of the offender, and the
degree of harm to the victim. Guvremun could be punished by death,
banishment, enslavement, beating, disfigurement of the body, including the
ancient Kuan infliction of humiliating tattoos, and restitution.
The middle category of offenses
was called the secamarin (Nac.), and included (a) crimes of
theft, (b) crimes involving fraud, defined as "saying a
thing is true when knowing it is not true with the intent of deriving an
advantage," (c) any diversion or theft of water, an important matter
in semiarid, agricultural regions, (d) batteries resulting in significant injury,
and (e) impeding judicial or government functioning. Secamarin carried the
punishments of disfigurement, beating, restitution, and enslavement.
The minor category of offenses,
called ijemarin, included
(a) all the crimes that Americans would call misdemeanors, (b) breaches of contract, and
(c) acts of negligence that cause
injury. Again we have the dual criteria of intent and degree of
injury. The minor class were punishable by restitution, fines, humiliation
and beating.
The minor offenses
included all the violations of the codes which were in effect
to govern trade and commerce. In Tanic times, commerce and trade had
reached such importance as to generate
most of the problems that we know in modern times.
The medieval Bergonians loaned and borrowed money; thus codes
evolved which regulated the terms of interest
and of notes. Traders needed consistency; thus there were codes
establishing weights and measures. There were contracts for
the sale of goods and services which were breached; thus there were codes
that set forth standard practices for such sales and agreements.
Several codes had evolved and had been revised. The most
noteworthy were the Ceiolaian Code, the Cristonian Code, the
Clacupan Code, the Glenrecian Code, and the Bazalotian Code. No tieri
handed down these trades. To the contrary the trading houses and
rich independent traders hammered out these codes and
then agreed to follow them. In time many of the tieris adopted them
and imposed them as mandatory law. In virtually every case
where a tieri prepared to impose such a code
as law, the smaller traders squawked complaints that the codes
heavily favored the large trading houses, particularly as they
concerned loan terms.
There were also offenses relating to the
relationship between the peasant and the lords
for whom the peasants worked. Very few laws existed to control
or rein in the Irigemi, though those which did exist did
serve to prevent the most outrageous excesses. Most of these laws created
offenses for which peasants could be punished, such as spitting in the
direction of an Irigemi Lord as he passed by, refusing to do work
on the Irigemi's manor house on the six day of the six day Bergonian
week, and not submitting to the Irigemi the "first fruits"
from certain vegetable harvests. Most of these laws and the
prosecutions that occurred pursuant thereto were really nothing more than
a system of oppression.
The Tanic jurists evolved a system of classification
of offenses to determine the
appropriate sanction and the appropriate procedure. The classificatory
system which came into widest usage and still receives
attention in modern Bergonian legal analysis included all matters of dispute, including those things which
Western nations distinguish as "criminal" and
"civil." The classificatory system required a structured inquiry:
what
is the nature of the injury, damage or harm done?
what
action caused the injury, damage or harm?
was
it an unlawful action? what duty did the actor owe the object of
his action?
what
knowledge did the actor have at the time he acted. what should
he have known?
What
conscious thought was behind the action?
what
was the actor's emotional attitude toward the object of his action..
Thus we deduce the actor's intent,
e.g. did the actor mean to do it, did he act impulsively or
recklessly, or did he act carelessly? The three broad
classifications of intent (discussed elsewhere on this page) are (a)
malice, (b) indifference and (c) inattentiveness.
The
issue of foreseeability enters here. If a defendant argues that he didn't
mean anything more than a prank when he set the fire, he cannot get around
the point that a sensible person would foresee the likelihood of the fire
getting out of control.
The jurists devised large charts to effect
the classification. They often devised separate charts for different kinds
of offenses, e.g. a chart for sexual crimes, a chart for actions causing
physical injury. Most charts presented a
grid with broad columns, but some presented a bunch of boxes connected by
arrows very much like a modern
day flow chart.
Forms
of Collective Ownership
(coming)
|
Bergonian written law, like that of successful
Western democracies, is reinforced by a culture of
law, whereby the people accept the validity of law and believe
in the value of abiding by it. Bergonian law, however, functions according
to a set of premises significantly different than those of capitalist
nations. Any
discussion of Bergonian law must be accompanied by mention of the
"right to revolt," which is the right to
resist any form of oppression. This means that a man can claim in
court that he violated a law because of its unjust nature, and thus call the
law itself into question. The law can never be beyond question.
This right also explicitly puts all officialdom on notice that aggrieved
citizens can, with justification, fight back. This is the right that
justifies demonstrations, sit-ins and building occupations. Procedure See
Article 14 of the Constitution, which lays out the basic provisions for
all Courts and
Legal Procedure in the entire
country. The
Court System Bergonia's
government is federal, with powerful stats and local subdivisions, but unlike the US there is only one
court system, so litigants have no jurisdictional hassles or "forum
shopping" opportunities between federal and state courts. There
is a single system of local trial courts,
operating under the provisions of the Constitution, that hears all cases,
whether criminal or civil. Whether a person is charged with
violating a commonwealth or a Lesre law, his case is brought before the
same local trial court. The constitution prescribes the form &
requirements of the judiciary, but the States set
up the local courts, fund them, and adjust the details of procedure.
The states also pass their own laws, which are applied and enforced in the
local trial courts. The
Constitution provides for three levels of trial
courts: Superior
trial courts to try major cases, including (a) murder and other
major felonies, plus (b) "claims of fraud, (c) charges of crimes concerning entry
to or departure from the commonwealth, or the import or export of goods or money,
(d) offenses related to the currency or to banking, and (e) such other major cases as the state congresses may allow them to hear." Common
pleas courts to hear "all other cases," usually divided into specialized courts or dockets to hear different categories
of cases: (a) basic criminal cases,
(c) civil cases, (d) commercial and (e) domestic-family
divisions. Magistrates:
The constitution allows the states to authorize the common please courts
to appoint magistrates to try all the minor civil and criminal cases,
including emergency matters. All
three levels of trial courts are served by "primary
judges," who conduct all preliminary hearings and exercise
investigative powers. Appellate
courts include: The
Supreme Court, consisting of nine judges serving terms of nine
years, one appointed each year. It serves as the ultimate court for
interpreting and applying the commonwealth constitution, and also plays an
affirmative role in approving the drafting of legislation, particularly the
language of . It may hear
any appeal involving a question of law pertaining to either the
constitution or a law enacted by Congress.
More details. The
Grand Courts of Appeals, one in each state, with authority to
hear all appeals in all classes of cases, thus being the ultimate court of
appeal in the vast majority of cases. Congress establishes
procedures for how the Lesre Congresses will appoint the judges. A
subordinate level of appellate courts the states have set
up in accordance with Congressional law. These court hear appeals
directly from the trial courts. Speedy
Justice Bergonians regard disputes as
harmful to the wellbeing of both the individuals involved and the
community. Whatever the reason for the dispute, its effects
upon those involved (and those around them) -- anxiety, bad feelings, and feuding mentality--
must be contained and extinguished. Obviously these bad
effects will be prolonged by a slow, inefficient legal system, rather than
resolved. Thus the Berg legal system places a premium on speed-- to
get disputes resolved as quickly as possible to end anxiety and bitterness. This means
having many judges at the ready, rather than a few elevated judges
encumbered by case backlogs and lawyer (and insurance) games. Judges should be
somewhat like firefighters-- available immediately when needed.
Judges often are found sitting around, drinking tea and gossiping-- and
people are rather glad of it.
A divorce
typically takes two months in most Bergonians states. The average
criminal case takes about four months. People arguing on the
street or in their homes can and do walk to the courthouse and find a
judge. The
significant work of the preliminary hearing
Every case, whether criminal, civil or domestic, moves very quickly to a
preliminary hearing. The point of the preliminary hearing is to
preserve evidence and testimony, frame the issues & charges, and attempt
early settlement and mediation. If the case does not settle, the
"primary judge" will refer the case to an appropriate court which will
conduct the trial. The majority of all cases settle either at or soon after the
preliminary hearing. The "primary judge"
has broad powers. Primary judges are everywhere in Bergonia. In
a city of 200,000 there might be as many as 25 or 30 primary judges.
The primary judges have these powers and duties: Set bail and
conditions for release from jail in criminal cases. Enter temporary
orders, including holding money and property in escrow, throwing an
abusive spouse out of the house, awarding temporary custody of children
and dependants, and ordering counseling, medical treatment or
hospitalization.
Informs the
parties of the charges and issues. In civil cases this means framing
and narrowing the disputed issues and the claims for relief. In criminal cases
this means arraigning the
defendant on the charges and taking a plea. The court is expected to explain the
applicable law to the parties. Record the
testimony of the parties and available witnesses. Issuing
orders for the seizure and preservation of evidence. Establish
procedures for "discovery" (an American legal device) and
"investigation" (similar to the powers of judges in European
civil law). This includes requiring the parties to exchange
information & documents, sit for depositions, and submit to
examinations and tests. These procedures are always set by the
parties, their attorneys and the judge at a conference.
Refer the case to
the appropriate next step in judicial process. The
mediating function of the law
Depending on the
case, the primary judge will attempt to mediate or settle it. In
criminal cases, it provides a quick opportunity for everyone involved in
the case-- the police officer, the victim, the assistant prosecutor, the
defendant and his lawyer-- to dispose of the case. A good
preliminary judge will speak to all the parties and see if he can't broker
a plea. This usually serves everyone's best interest.
In divorce cases the preliminary judge will attempt to get the parties to
agree to his temporary order by getting them to agree with each other. The
presiding judge in even the most hotly contested trial has the power to
attempt a settlement, even in open court. Street
justice-- mobile police judges, instant hearings
In any
society police spend a big part of their time responding to fights and
domestic disturbances. There is great value in adjudicating
these as quickly as possible. People caught fighting with each
other (husbands & wives, divorced husbands & wives, lovers, neighbors)
are usually ordered by the police to report to a judge the very next
day. The police officer in some states can call
a 24 hour
docketing clerk on his radio and schedule a preliminary hearing
before the primary judge right then and there, usually within 48 hours. Most
cities
in Bergonia have a corps of "mobile police judges"
They are on duty 24-7 and have their own squad cars and weapons, yet their
are trained in law and are separate from the regular police. They are
deputized as judges of first instance to conduct hearings right on the spot.
A police judge administers oaths and takes statements with a tape recorder,
which often become the primary testimony at any ultimate trial. He may
carry a camera and video recorder. He can seize documents and secure
evidence. He can arrest people and he may issue temporary restraining
orders and personal recognizance bonds on the street, which remain in effect
until the parties get before a courtroom judge.
The mobile
police judge can apply the same kind of instant justice to disputes
over possession of tools, equipment and other property that flare up
between craftsmen and professional partnerships, and between the
members of collectives who succumb to feuding. He can seize and
sequester property to protect it pending adjudication. The
mobile police judges come when someone padlocks the door or absconds
with the files or the goods. These kinds of disputes do flare up
in the Bergonian utopia of worker-ownership, just as they do in the
world of American free enterprise. But here Justice is regarded as a
public service of emergency response. One of the
most popular television dramas is about one such judge who is a real
crime fighter and gets shot at, kidnapped, lied to and otherwise set
upon by the worst of the bad guys, including animal smugglers, drug
dealers, American spies and Kilitan
cultists. The real hero is of course
the judge's beautiful court reporter who just so happens is a veteran
of Bergonia's equivalent of Special
Forces, and therefore a master
martial artist who week after week saves the day. Trials
outside the courthouse Justice
should not remain in stately isolation, forcing everyone to come to the
courthouse. In Bergonia trials concerning property line disputes,
environmental encroachments, car wrecks, building contractor disputes and
the like often occur at the pertinent site. Justice
sometimes requires folding chairs.
Formal Trials,
including jury trials
Both the superior courts and the common pleas courts conduct jury trials for
those cases that just won't settle, including criminal trials. Juries
in Bergonia have either eight or nine members, chosen at random from the
citizen registry, but a criminal defendant has a right to ask for a larger
jury, usually up to 12 but in some states up to 16. The risk is that
not all such expanded juries require unanimous verdicts. The explicit
purpose of this is to allow an ethnic or religious minority to play
different demographic odds in jury selection.
Superior and common-pleas court judges are
selected to trials randomly, often by turning a wheel, or by turning a round
cage full of wooden balls.
For a number of years various superior courts
have used a two judge system of conducting big trials, including jury
trials, one called the "president" who runs the show, and a
"law-speaker" who makes rulings on evidence and the law and who reads
the law to the jury. Only the law-speaker may call a mistrial.
Juries are for deciding issues of fact, such as "is he guilty or not?" or
"who caused that chemical explosion?" The judges have powers in
non-criminal cases to decide or dismiss cases if they decide that the issues
of fact are either immaterial or insignificant.
Jurors have an unqualified right to take notes.
Jurors sometimes serve with an attorney advisor; in the alternative they
have a right to have the presiding judge to answer their specific legal
questions. During deliberations jurors may demand the recall of witnesses
and subpoena of new evidence. Jurors must complete the verdict form
provided to them by the judge, but they may add their own statements which
must be read in open court. Judges
and Lawyers
Judges
are not Gods ..though
all over the world they often think they are. In
Bergonia, nearly all judges are civil servants and not politicians.
They are experienced practicing lawyers who apply to a career board of examiners to become
trained to serve as judges. They have to take an examination. They are then vetted by colleges of
lawyers for quality and propriety, a method that provides a check on the
extreme personalities. Most
trial judges serve on panels and rotate among different jurisdictions and
levels, which eliminates the feudal aspect of judicial
despotism. This practice emboldens lawyers a little to challenge the
court, since they do not have to fear so much about the next time they
appear in front of the same judge. By disconnecting the judge from
the community, it assures fewer informal contacts that contaminate the
impartiality of the judge's perspective. All
judges are limited to terms of nine years, after which they canno serve
again. This assures a healthy
turnover, and also lets every big-headed judge know that his chair is
temporary. See Art. 14, Sec. 5. After the nine years they
either return to the practicing bar, or transfer into the professional
mediation corps, or go into the substitute judge service. In
the US and many other countries, judges are almost feudal in power and
prestige. Lawyers who litigate will tell you how they watch new
judges to see if they swell up inside the black robes. The disorder
that afflicts many if not most judges is plain simple conceit. In
many countries with civil law systems, e.g. France, the judges are
schooled as judges, as a separate profession, and serve as civil
servants. They are less imperial than American (and, I figure,
British) judges. The
framers of the US constitution recognized the necessity of an independent
judiciary. To assure their independence, and free them of political
influence, the framers provided that all federal judges will serve for
life. This dumb notion, anti-democratic in nature, did not achieve
the intended results. Thomas Jefferson did not participate in the
drafting of the Constitution, serving then as the first US ambassador to
France, but when he learned of the provisions for life-time judicial
tenure he threw a well-measured fit. The brazen antics of conservative federal
judges in recent years (e.g. appointing Starr as independent counsel,
stealing the election from Gore) show how shallow the founders'
hopes. Likewise conservatives who complain about "activist
liberal judges" should complain about life-time tenure. It is inevitable that life-tenured judges would become
despots in their own limited realms. In
fact, life-time tenure alone is not responsible for the conceit that
afflicts all American jurisprudence. State court judges are selected
by a wide variety of schemes, but in every case the result is the same,
because American judges are pompously elevated, and the resulting conceit
produces bad justice.
Prosecutors
No issue in Bergonian law stirs up as much
controversy as the powers and the role of public prosecutors.
After the revolution, prosecutors had the right
to direct investigations, issue subpoenas, and present testimony to
magistrates in private, ex parte proceedings. They were often
heavy-handed, and the judges often dared not defy them.
Public prosecutors still have the power to
conduct investigations and issue subpoenas, but they do so now under the
supervision of three judge panels, with the understanding that once charges
are filed the defendants gain access to all the correspondence between the
prosecutor and the panel of judges. The only way the prosecutors can
compel testimony from witnesses is to bring them before one of the three
judges in the case in a closed session. During such investigations,
lawyers representing the suspects can make motions to the panel or to a
superior court judge.
The early problem with powerful prosecutors had
to do with their method of selection, usually by the state, so that powerful
strangers were set upon localities, and usually by politicians, so that the
powerful strangers came with distinct partisan bias. Several states
then allowed local election of prosecutors in the manner of American
district attorneys.
There is also the Commonwealth Prosecutor,
a non-constitutional office, created by Congress immediately after convening
in 1936, with the power to prosecute national-level crimes within federal
jurisdiction. He does, however, devolve much of his power to 126 local
commonwealth prosecutors, whom he appoints and supervises. The power
of this office has expanded hugely with the new jurisdiction over
environmental crimes.
Prosecutors all over the nation have
successfully resisted efforts to convert them into a civil service, but not
without compromising with major reforms. It is now understood that all
prosecutors on all levels must be vetted by state prosecuting ethics boards
before they may become candidates. Once certified, they may either be
(a) elected in local "non-partisan" elections or (b) appointed by federal
political appointees from a list produced by criteria based in part on years
of experience. The
Legal Profession
The legal profession in Bergonia employs a variety of names.
Practitioners are most commonly called avocat in French, avocado in
Spanish, advocate or lawyer in English, fochenisi or
afocei in Nacteca, and
purleno or avoco in Minidun.
They make modest amounts of money,
compared to American lawyers. The system of
socialized risk minimizes the number of disputes and the size of the
stakes. In a capitalist society every profession is at liberty to
run up the cost of their specialized services in order to get rich off
everyone else. In a socialist society no one profession is
allowed to get rich off everyone else. The nature, aims and
structure of
socialist society affects the nature of lawyer work; for
example trial attorneys have to have counseling skills that American
trial attorneys do not. One
goes to law school after completing a basic college education.
General law school takes two years. Graduates of the two year
program may go on to two years of apprenticeship under the supervision of
a practicing lawyer, and then become licensed as full lawyers.
Nearly all lawyers join one of the "advocates & counselors
guilds." Law graduates also have the choice of pursuing
additional one-year degrees in specialized legal studies. The
profession is organized into local guilds, which federate into state
guilds and the National Association of Advocates
and Counselors. State law determines the licensing and
powers of lawyers, though as a practical matter the states defer to the
recommendations & standards issued by the NAAC. The NAAC and the
state guilds also issue recommendations & standards respecting
professional ethics, fees, discipline, and procedure, but all
recommendations & standards must be approved in a vote by all
practicing lawyers. Minimizing
the work of lawyers
In America the system is lawyer-driven. This is because the
complexity of the system requires virtually every litigant to get a
lawyer. Judges sit and hear motions put to them by the lawyers and
react without ever initiating. It is common knowledge to lawyers but
not to laypersons that the court will not grant any relief unless a party
specifically requests it. In other words, the court can't/won't
order something unless a lawyer specifically asks for it, so a court's
prerogatives are limited to deciding what the lawyers propose.
Bergonians
have a much more elastic concept of judicial participation, allowing
judges to propose relief, direct questions to the litigants
themselves, and interrogate witnesses. Judges may even take the
initiative in subpoenaing witnesses and documents. In this respect
the Bergonian system has much in common with the systems of continental Europe.
Advocates--
the general practitioners: When
average citizens need legal advice, they visit the class of general
practitioners called advocates or "plaza lawyers," because most of them have
offices on the plazas and along the main streets. They are very
likely to serve their clients as regular counselors on personal problems,
such as divorce and other domestic problems, debt, estates. All law
(and medical) school curricula include a mandatory 9 hour component on
counseling & psychotherapy. The plaza lawyers also give advice and represent clients in dealings
with the local land council (everybody's landlord) and the bureaucracy. They work as service brokers,
referring clients to accountants, service agencies, mental health
treatment. They also refer clients to specialist attorneys, much as
solicitors do in Britain. It is the customary
practice for lawyers to make referrals in writing, and if the client goes,
the professional getting the referral sends a small fee to the
lawyer. The NAAC's standards state that every lawyer should
charge at least twenty dollars for each consultation, so no one sees a
lawyer without paying this nominal fee.
Attorney
Specialists: Aside
from the plaza lawyers who work as general practitioners, the profession is
organized into these certified specializations:
(a)
"business counselors," specialists who deal with questions of cooperative &
business organization and finances, experts who advise organizational
clients & small businesses on how to keep inside the law, including
tax specialists. (b)
advocates who are specialists in administrative
agency proceedings, such as water resources & environmental
proceedings. A
large number of attorneys work in administrative hearings, where much of
the real litigation in Bergonia occurs. A lot
of administrative proceedings (like disability income claims, eminent
domain, zoning appeals) produce awards of attorney fees for claimants
against the state. Every agency has a fund from which attorney fee
awards are paid, and the rate of pay-outs are taken as a gauge of how
unfair or unreasonable the agency behaves. (c) bureaucratic and government
counselors, specialists adept at writing laws, regulations and contracts, working for
government agencies. (d)
patent,
copyright and trade secrets attorneys. (e)
public prosecutors and criminal defenders.
Whenever cooperatives
have contract disputes, the standard contracts require the parties to
arbitrate in the commercial courts. The contracts also require the loser to pays the winner's
reasonable attorney fees.
The Koredi
Soru -- the "Big Problem jury"
This is a procedure whereby courts will
refer a material issue of fact to a jury of technical specialists.
In American courts, experts are put in the witness stand, while here
experts are placed on a jury. These juries are, in Minidun, called koredi
soru, for "big problem
jury."
The koredi soru was devised in the late
1800 for use in instances of complex commercial litigation, including
breach of contract cases and patent infringement, where technical issues
were frequent, and where the litigants wanted their cases decided by knowledgeable
judges and juries..
The koredi soru worked like this: A
special judge would get the case. He would review the legal claims
and consult with the lawyers in order to prepare a list of questions pertinent to the case
that are matters of technical,
scientific, or professional expertise. The judge would then stipulate with
the parties the composition of the jury as to the type and qualification of the specialists,
and how to pick them. There are several methods for picking the
specialists. One way has the each side designating an expert to sit
with the judge and select the juryl. Another way is to have a list
on hand of experts willing to serve and to make random selections from it.
These three would comprise the jury,
providing no objections by any of the parties to any of the three were
sustained.
Examples of
such questions are as follows:
A
cooperative invents a process for
making glue. Its registers for a patent. A much larger federated
cooperative then markets a new glue product and reaps big
profits. The small corporation sues, alleging a patent infringement. A question arises about
whether the two
processes involve the same elements or not.
A panel of appropriate specialists is selected to sit as the koredi
soru
In a medical malpractice case alleging
whether an obstetrician properly handled a sudden problem in
the delivery, a panel of obstetricians would be called.
Concrete was poured by a
cooperative in
the construction of a dam. Fifteen years later the dam cracked, posing a
threat of safety. The Lesre government
sues the concrete contractor, but the contractor defends
itself by claiming that the crack came about as a result of flaw in the
design of the dam. Thus, two different causes are alleged for the cracks.
A panel of
engineers are assembled. In this case the koredi soru may make
recommendations for future action.
The institution was radically altered
after the revolution. Since the 1930's the koredi soru has been
employed in many matters involving scientific questions, such as medical
malpractice and product liability actions. But the most radical employment
of the form was to aid policy makers. If the politicians were
faced with a knotty issue of public policy that revolved around a controversy among specialists, they could refer the issue to a
Koredi Soru. The Congress or a lesre Congress could certify a
question in a specified written form to a court that would convene a
koredi soru which would hear evidence, conduct debate, and issue an
opinion.
In such a case the opinion of the koredi
soru would be strictly advisory, and the legislative body could ignore the findings. But the opinion allows the
politicians a way out. They could say, "oh, we just went with
the koredi soru; they knew more about it than us."
Examples of koredi
soru deciding policy questions are as
follows:
In the 1970's a popularly prescribed
antidepressant was alleged to have had serious side effects.
The manufacturers vehemently resisted the allegations. Some medical
studies had been conducted with differing results. When the
regulatory agency appeared unable to decide, some members of
Congress introduced a bill to certify the question to a
Koredi Soru.
Also in the 1970's claims were made that
certain pesticides were killing some good bugs-- insects that killed the
pests. The growers wanted to continue to use the pesticides.
Environmentalists resisted. A koredi was convened.
Procedure:
When a policy koredi soru was summoned, the
Supreme Court appointed a supervising judge. He allowed every interested
group and person to come forth with an offer to participate in the
proceedings. Once the parties were designated and the lawyers of the
groups made their appearances, the supervising judge then summoned the
lawyers to a conference for the purpose of stipulating the specific
issues, the composition of the jury, and the method of selecting
the members. Generally, the opposing sides each designated
their small teams of experts. The teams were required to meet
under the eye of the supervising judge to draw up a list of expert jurors.
Typically, the supervising judge designated fifteen jurors, and then by
lots broke them into three panels of five each. All fifteen would sit to
hear the testimony, but at the conclusion of the case, each of the three
panels would deliberate separately and prepare their own written report,
blind to what the others were doing. Society would find it of
interest to see if three groups agreed in either their analysis or
their conclusions. The side
that won the opinion of at least two of the panels won overall, but often the
judge ordered the three panels to join together to resolve conflicts.
In the trial, any expert can present
studies and scientific tests, argue from the body of accumulated research,
and offer opinions. The court may receive from the attorneys written studies
and opinion, providing that both sides
stipulate their admission or that the author is available to
defend his work.
Summary
of the legal systems of the various nations of the world Legal
resources for various nations
Theory
Levels
of
law and "conflicts of law"
During the Shufrantei era, the two big empires
(Ceiolai & Necrurue) evolved systems of
jurisprudence. Their jurists very early on conceived of the hierarchy of
laws. This is the explicit recognition of different species of
law, each with its distinct characteristics, relating to its particular
source, arranged in a vertical
hierarchy of priority, in order to resolve conflicts.
This allowed
emperors to issue lasting "permanent law" and "temporary
edicts." This also justified a system of descending authority
from the imperial to the functional or local level, including religious
law promulgated by the "official church," regional military
commanders, local civil governors, mayors, and iregemi lords. This
system, culminating in Ceiolaian Emperor Clover's "Law of Laws, explicitly
justified all imperial authority by publishing the "permanent" edicts as a
code of laws. Necrurue followed suit. These
imperial codes were later used in modified form by post-imperial regimes. A
hierarchy of laws also exists in socialist Bergonia. As its primary
source, all Bergonian law is subject to the
Constitution of the Democratic Commonwealth, written by the
socialist and syndicalist revolutionaries, and ratified in 1936. Next, in descending order within the commonwealth (national) government,
are (a) the laws enacted by Congress, (b) the acts of the Executive
Council and President, (c) the regulatory enactments of the various
legislative councils (i.e. bushenres), (d) the edicts of various executive
ministers. Similar layers of law exist on the state and local level as
well. If
any two laws within the body of commonwealth law conflict with one
another, the higher level prevails over the lower. This is
no more complicated than saying that a law will be struck down by a
reviewing court if it his held to "contradict" the constitution
, or saying that an administrative regulation will not stand if is
"contradicts" a legislative enactment. The same holds true
for conflicts of law within the body of an individual state's law. State
government law-making power
But
if a commonwealth (federal) law and a particular state's law contradict
one another, it is by no means certain that the commonwealth law will
prevail. One must go to Article 4 of the constitution to see the
boundaries between federal and state authority. And these boundaries
are drawn so that in many if not most conflicts are resolved in favor of state
power. Under the Berg federal scheme,
the bulk of law is to be made by the state legislatures. This
includes criminal law, civil law, education, water resources law, land
allocation, housing and leasing, and highways. The constitution is quite
explicit about the primacy of state authority:
Art. 4,
Sec. 21: The
commonwealth [i.e. federal gov.] shall have only the authority
conferred specifically hereunder, and all other, unspecified power
and authority shall belong to the States.
In essence, Bergonia has the kind of
federation that old-time conservatives in the USA insist on. The
phrase "states' rights" became the reactionary redoubt of
segregationists in the USA, but in Bergonia the phrase "Lesre Power" is regarded as a progressive democratic principle, the
devolution of power downward to the levels of government closest to the
people, related to Principle #6 of the
Eight
Principles.
| The
"No Child Left Behind Act," the federal mandates on drunk
driving prosecution, the federalization of the war on drugs and
crime in general, the new drivers license requirements and other "un-funded mandates" imposed by Congress on the
states-- all would be impossible in Bergonia. All would be
regarded as outrageously unconstitutional intrusions on Lesre power. |
The
growth of powerful monarchies in Western Europe and elsewhere came at the
expense of the nobility and the circumscription of their
autonomy. In many cases the peasant and the tradesman welcomed the
monarchy as a counterweight to the oppression of the local lord.
Likewise in the USA the growth of federal power that occurred after 1932
was in part necessary to halt the oppression of blacks in southern states
by local and state racists. Something similar happened in
Bergonia. In the first decades of the Bergonian
Republic the seven state governments were very powerful, and they became the creatures of local and regional elites that used
eager to use state power to
oppress other classes of people. Thus, the growth of federal power
after 1840 came as a great relief to many. These three examples show
that a declaration of principle does not always adequately explain all
situations-- while decentralization is a critical democratic value, in
some cases federal action is needed when the state or local government is
corrupt. Current
socialist legal theory
Berg
Soc legal theory explicitly recognizes as a fundamental fact
of history, economics and politics that
one small class of people will dominate everyone else, and that a
hierarchy of power will exist to control all human life. Socialist
jurists must recognize how law is a major instrument of this social control and
domination.
Berg
Soc also explicitly recognizes that a socialist-syndicalist society will
still need mechanisms of control, and that law is the favored device of
social control, because (a) the law is a leveler, making every man and
woman equal, and (b) the law is easily susceptible to democratic authority, and
(c) democracy itself requires a foundation of law.
Berg-Soc concludes that a system of law is a necessary prerequisite for
successful socialism. This is of course just one of many criticisms
of Marxist "socialism," as practiced in the USSR, China and
other unlucky countries.
Marx postulated that socialist revolution could occur only where bourgeois revolutions had already occurred,
because socialism would necessarily arise from elements already present in
bourgeois society. One such element is likely the legal system.
Bourgeois regimes typically instituted and cultivated working systems of law
that socialism should inherit. This is exactly what happened in Bergonia -- sadly
no where else on earth has a socialist revolution successfully replaced a
bourgeois regime. Instead all the "socialist" regimes in
the 20th Century replaced either ancient imperial tyrannies or colonial
tyrannies and took on their attributes.
Theories of how legal systems evolved
Some specific factors have prevailed in
producing legal systems in various societies. Of course the
rationale underlying a legal system's development also influence the
content of the laws produced thereunder.
Law and Hierarchy: Most
schools of legal theory in Bergonia take a sociological perspective with
its constant focus on people's respective social roles, and on the
relationships of power. When power is concentrated, the ruler
must concern himself with establishing an effective command structure and
honing its efficiency. Often the most crucial issues in
organizational efficiency involve questions of predictability and
stability of organizational behavior, and standards of individual behavior
an discipline for deviations. This produces rules and regulations,
or what might be called the "legal systems of dictatorship." Even
the dictator may see that stating the rules plainly and applying them
consistently, with relative fairness, improves mo |
