in a libertarian socialist society
▪the court system. ▪Article 14 of the Constitution: constitutional provisions on courts and legal procedure.
▪the preliminary hearing-- all-important stage for investigation, preserving evidence, mediation, settlement, quick justice. ▪jury trials
▪the Koredi Soru -- juries deciding policy issues in "trials" involving experts & evidence.
HISTORY OF BERG LAW:
▪the ancient Ancita system of private law-- blood feds conducted by strict rules of conduct.
▪ancient Eastern tradition of imperial codes.
▪Shufrantei law-- law derived from religion, and used to justify a rigid class system.
▪Tan era law-- law based on equity and equality, with open trial and plural authority.
▪domestic law-- divorce, child custody.
▪contract law-- cooperatives and all other enterprises rely on contracts to do business with each other.
▪tort law-- auto crashes & other unintentional injuries.
▪the socialization of risk and loss.
▪criminal law. ▪correcting the criminal offender.
▪law-making power of the various Lesre.
▪a theory of how legal systems evolved.
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."
[Homer reads the actual Cider House Rules to the illiterate workers]
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.
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."
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.
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.
"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."
"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.
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.
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.
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. .
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.
of Collective Ownership (coming)
Forms of Collective Ownership
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.
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.
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 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.
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.
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
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:
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
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
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
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 morale and efficiency. Trade and Law: American
conservatives often argue that in the Anglo-American tradition of
democracy, personal freedom grew out of property law, and that property
rights are the font of Anglo-American republicanism. Some
conservatives have taken this disgusting notion to the extreme conclusion
that all the modern freedoms grew out of the regime of property law
designed to preserve the English nobility in their wealth, and that
property is therefore the foundation of liberty. Nevertheless, it is
true that the needs of trade & commerce provided much of the impetus for
the development of civil law. Trade requires contracting, which is
meaningless without enforceability. An aggrieved trader might
recover the amount he lost by sending an armed gang to the home of the man
who swindled him, and the threat of private violence is as good a
deterrent to bad behavior as the threat of police or other state force.
But the trader would rather petition the state for recognition and
remediation of his grievance, and that begins the tendency toward legalism
among all trading classes Law and Pluralism: Bergonian
historians and politicians analysts have mainly argued that law evolved
first as the standardization of the whip and in a second stage the
limitation of the whip. In every society where rule of law has
prevailed there has been heterogeneity of power, with a limited center,
and this was true in pre-columbian Bergonia where there were few absolute
dictators. Absent a militarized social order, legal processes gives
the ruling class a peaceful, thrifty method for resolving disputes among
its members that is not socially or economically disruptive. The Three Stages of Legal Evolution and
the Three Types of Law The prevailing theory is that law in
history occurs in
one of three forms. The first form is the
"law of the
people live in village collectives with elder and collective leadership,
operating with flexible custom & ritual and current common
sense. This was the level of law general prevailing in Pasan
society (and also Faroi and Svegon societies) in Pre-Columbian
times. The second form of law is
hierarchy", the "tieri's law," the standardization of the dictatorship, the imperial standard,
the bureaucratic, described elsewhere on this page as the "law of
dictatorship." This form of law arose as an efficacious method of
controlling subordinates. It
began with the divine kingships of the first imperial civilizations-- ancient Egypt, Shang
& Chou China, ancient Peru. The Catholic Church perfected
it. The Imperial Bergonians (e.g.
Second Ceiolaian & Necruruean) were masters at it. The most
explicit recognition of this form and function of law is with the ancient
Chinese "Legalists," who stated that people were naturally unruly and that
only harsh law could produce any good in them. It thrives in
our time as internal corporate procedure, government regulation and
military rank. The least bad of the hierarchies are those that operate by standard operating procedure. It of course
standardizes the methods of oppression, so that all men are oppressed in a
predictable, consistent way. Everyone knows his place, and peace
prevails. In this sense the Imperial Chinese have been as lawful a
people as modern Americans. Unfortunately there have been mutations,
where tightly organized hierarchies become instruments of instability, and show maximum efficiency in the most
horrible purposes (e.g. the Wehrmacht). If swords were the only component of power,
the emperor could change the law however he wanted, but often emperors and
dictators have asked themselves what their subjects would think of them if
they did something exceptionally radical. Sometimes the emperor's
desire to be admired constrains him, in a way where vanity produces an
accounting of public opinion, a hint of democracy by imperial grace.
More explicit constraints on the tyrant's rule develop from the prevailing "norms of
wisdom," which speak to the proper conduct of the ruler. We see
this in the Confucian writings and the I Ching, and also in
medieval writings of Church fathers on the duties of a king. Here
the law merges into a system of ethics and philosophy and religion, and
become linked into the functioning cultural mores. The third form of law is
in English often called the "civil law,"
b ut one should not confused it with the Civil Law of Continental
Europe, or with civil versus criminal law in British & US terminology.
"Civil aw" here is a translation of the Minidun term
goramin, which means "relations
among equals." This
broad category of Berg law is a law of balance, regulating relations between a number of
equals, whether free or semi-free individuals, or classes, cooperatives and
corporations. Rather than purposeful, like a command-driven
hierarchy, this type of law is more organic, as are all "composites of
equals," which entails a great deal more subtlety than hierarchical law,
with implicitly agreements, common assumptions, and less explicit
hierarchy assumes that, without force or reward, all its own members will
depart, so that its disintegration is always an unspoken fear.
History provides many examples, the USSR the most recent example and
the Roman Empire the most prominent, but it is no less true of any modern
corporation. Any social entity able to adopt and apply civil law is
a united entity, whose members voluntarily stay on, even in adversity, and
who are interdependent, either by necessity or choice. A society of
equals succeeds because of common loyalties and voluntary participation,
thus disputes can tear at its foundations, and cannot be merely
suppressed, so a civil legal system should address disputes with the
clarity and consistency of commonly held principles, rather than with the
unanswerable command that is the foundation of hierarchical law.
Such civil law, in frequently challenged theory, becomes necessary when no strongman
exists, or (perhaps more often) when the strongman exists but is
institutionally weakened. It is always
necessary to regulate relationships among equals. It also stimulated in its development by significant social diversity-- either
in terms of various ethnic groups or occupational classes. Both
formal English law and Tanic law, in their separate histories, were developed
by landed nobles and urban bourgeoisie commercial interests, including
traders, bankers and manufacturers. Systems of civil law are often
nested at the apex of big hierarchical systems, where it prevails within
the protected premises of the ruling class and regulates
its members. Civil law may arise among the upper classes, as a
peaceful even-handed method of resolving their disputes, defining how the lords should relate to one another in their common
enterprise of exploiting the masses. (Perfect examples of this are
the aristocratic Venetian Republic, the common law of England, the
"democracy" of the slave-owning Athenians and the Confederate
States of America. In
this sense, the first strains of republicanism in any civilization are
very often noble strains. Organic bodies of law
also develop within not-so-dominant social & economic classes. Artisan classes
developed guild law in Bergonia, Europe, China, Japan and Aztec Mexico.
Strong, binding customs control trade in primitive and archaic
societies. Peasants in every society follow unwritten laws, often
merging into religious and magical taboos, as well as folk agricultural
technology. The civil law has existed
in every stage of human historical development, perhaps evolving from the
tribal law, though since the Neolithic
transformation it has usually survived around the edges and within the interstices of
hierarchical law. When the swords are drawn, hierarchical law nearly
always trumps the civil law, unless an armed revolt succeeds. In Tan times the civil law began to
overwhelm the traditional class-based hierarchical law. Likewise the
civil law began to overwhelm the hierarchical law in Western Europe and
the English-speaking nations, and then throughout the world. At
both times in both cultures did urban egalitarianism and commercial values
come to prevail. All Berg socialists have regarded
hierarchical law as a primary tool of oppression. Many argue that
the civil law is also a means of oppression, but most know that all
complex societies require law in order to function and thrive. Thus
both capitalist and socialist societies will benefit from rule of
law. The rule of law in supports the capitalist edifice by creating
and enforcing property rights, but it has also restrained capitalist excesses as
capitalism matured in the 1900s. Marx wrote
eloquently about how the bourgeoisie revolutionized economic and political
life with the Industrial Revolution-- in the Communist Manifesto he
wrote admiringly of the bourgeoisie's achievements, but he overlooked
bourgeoisie legalism, its most civilizing achievement. The Berg Socs were far less enamored of
bourgeoisie productivity than were Marx and the masters of the Five Years
Plans. On the other hand they admired bourgeoisie legalism in a way that
disgusted all good Leninists. Bergonians laugh at the conservative
Anglo-American opinion that English property rights gave rise to the idea
that men are equal before the law and possessed with liberty. Bergonian socialists note English property rights were feudal in origin,
and that it awaited the egalitarianism of the Protestant revolution and
then the Enlightenment before the ideology of equal rights arose.
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 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 morale and efficiency.
Trade and Law: American conservatives often argue that in the Anglo-American tradition of democracy, personal freedom grew out of property law, and that property rights are the font of Anglo-American republicanism. Some conservatives have taken this disgusting notion to the extreme conclusion that all the modern freedoms grew out of the regime of property law designed to preserve the English nobility in their wealth, and that property is therefore the foundation of liberty. Nevertheless, it is true that the needs of trade & commerce provided much of the impetus for the development of civil law. Trade requires contracting, which is meaningless without enforceability. An aggrieved trader might recover the amount he lost by sending an armed gang to the home of the man who swindled him, and the threat of private violence is as good a deterrent to bad behavior as the threat of police or other state force. But the trader would rather petition the state for recognition and remediation of his grievance, and that begins the tendency toward legalism among all trading classes
Law and Pluralism: Bergonian historians and politicians analysts have mainly argued that law evolved first as the standardization of the whip and in a second stage the limitation of the whip. In every society where rule of law has prevailed there has been heterogeneity of power, with a limited center, and this was true in pre-columbian Bergonia where there were few absolute dictators. Absent a militarized social order, legal processes gives the ruling class a peaceful, thrifty method for resolving disputes among its members that is not socially or economically disruptive.
The Three Stages of Legal Evolution and the Three Types of Law
The prevailing theory is that law in history occurs in one of three forms. The first form is the "law of the tribe," where people live in village collectives with elder and collective leadership, operating with flexible custom & ritual and current common sense. This was the level of law general prevailing in Pasan society (and also Faroi and Svegon societies) in Pre-Columbian times.
The second form of law is meitierei, the "law of hierarchy", the "tieri's law," the standardization of the dictatorship, the imperial standard, the bureaucratic, described elsewhere on this page as the "law of dictatorship." This form of law arose as an efficacious method of controlling subordinates. It began with the divine kingships of the first imperial civilizations-- ancient Egypt, Shang & Chou China, ancient Peru. The Catholic Church perfected it. The Imperial Bergonians (e.g. Second Ceiolaian & Necruruean) were masters at it. The most explicit recognition of this form and function of law is with the ancient Chinese "Legalists," who stated that people were naturally unruly and that only harsh law could produce any good in them.
It thrives in our time as internal corporate procedure, government regulation and military rank. The least bad of the hierarchies are those that operate by standard operating procedure. It of course standardizes the methods of oppression, so that all men are oppressed in a predictable, consistent way. Everyone knows his place, and peace prevails. In this sense the Imperial Chinese have been as lawful a people as modern Americans. Unfortunately there have been mutations, where tightly organized hierarchies become instruments of instability, and show maximum efficiency in the most horrible purposes (e.g. the Wehrmacht).
If swords were the only component of power, the emperor could change the law however he wanted, but often emperors and dictators have asked themselves what their subjects would think of them if they did something exceptionally radical. Sometimes the emperor's desire to be admired constrains him, in a way where vanity produces an accounting of public opinion, a hint of democracy by imperial grace. More explicit constraints on the tyrant's rule develop from the prevailing "norms of wisdom," which speak to the proper conduct of the ruler. We see this in the Confucian writings and the I Ching, and also in medieval writings of Church fathers on the duties of a king. Here the law merges into a system of ethics and philosophy and religion, and become linked into the functioning cultural mores.
The third form of law is
in English often called the "civil law,"
b ut one should not confused it with the Civil Law of Continental
Europe, or with civil versus criminal law in British & US terminology.
"Civil aw" here is a translation of the Minidun term
goramin, which means "relations
ut one should not confused it with the Civil Law of Continental Europe, or with civil versus criminal law in British & US terminology. "Civil aw" here is a translation of the Minidun term goramin, which means "relations among equals."
This broad category of Berg law is a law of balance, regulating relations between a number of equals, whether free or semi-free individuals, or classes, cooperatives and corporations. Rather than purposeful, like a command-driven hierarchy, this type of law is more organic, as are all "composites of equals," which entails a great deal more subtlety than hierarchical law, with implicitly agreements, common assumptions, and less explicit communications.
Any hierarchy assumes that, without force or reward, all its own members will depart, so that its disintegration is always an unspoken fear. History provides many examples, the USSR the most recent example and the Roman Empire the most prominent, but it is no less true of any modern corporation. Any social entity able to adopt and apply civil law is a united entity, whose members voluntarily stay on, even in adversity, and who are interdependent, either by necessity or choice. A society of equals succeeds because of common loyalties and voluntary participation, thus disputes can tear at its foundations, and cannot be merely suppressed, so a civil legal system should address disputes with the clarity and consistency of commonly held principles, rather than with the unanswerable command that is the foundation of hierarchical law.
Such civil law, in frequently challenged theory, becomes necessary when no strongman exists, or (perhaps more often) when the strongman exists but is institutionally weakened. It is always necessary to regulate relationships among equals. It also stimulated in its development by significant social diversity-- either in terms of various ethnic groups or occupational classes. Both formal English law and Tanic law, in their separate histories, were developed by landed nobles and urban bourgeoisie commercial interests, including traders, bankers and manufacturers.
Systems of civil law are often nested at the apex of big hierarchical systems, where it prevails within the protected premises of the ruling class and regulates relationships among its members. Civil law may arise among the upper classes, as a peaceful even-handed method of resolving their disputes, defining how the lords should relate to one another in their common enterprise of exploiting the masses. (Perfect examples of this are the aristocratic Venetian Republic, the common law of England, the "democracy" of the slave-owning Athenians and the Confederate States of America. In this sense, the first strains of republicanism in any civilization are very often noble strains.
Organic bodies of law also develop within not-so-dominant social & economic classes. Artisan classes developed guild law in Bergonia, Europe, China, Japan and Aztec Mexico. Strong, binding customs control trade in primitive and archaic societies. Peasants in every society follow unwritten laws, often merging into religious and magical taboos, as well as folk agricultural technology. The civil law has existed in every stage of human historical development, perhaps evolving from the tribal law, though since the Neolithic transformation it has usually survived around the edges and within the interstices of hierarchical law. When the swords are drawn, hierarchical law nearly always trumps the civil law, unless an armed revolt succeeds.
In Tan times the civil law began to overwhelm the traditional class-based hierarchical law. Likewise the civil law began to overwhelm the hierarchical law in Western Europe and the English-speaking nations, and then throughout the world. At both times in both cultures did urban egalitarianism and commercial values come to prevail.
All Berg socialists have regarded hierarchical law as a primary tool of oppression. Many argue that the civil law is also a means of oppression, but most know that all complex societies require law in order to function and thrive. Thus both capitalist and socialist societies will benefit from rule of law. The rule of law in supports the capitalist edifice by creating and enforcing property rights, but it has also restrained capitalist excesses as capitalism matured in the 1900s. Marx wrote eloquently about how the bourgeoisie revolutionized economic and political life with the Industrial Revolution-- in the Communist Manifesto he wrote admiringly of the bourgeoisie's achievements, but he overlooked bourgeoisie legalism, its most civilizing achievement. The Berg Socs were far less enamored of bourgeoisie productivity than were Marx and the masters of the Five Years Plans. On the other hand they admired bourgeoisie legalism in a way that disgusted all good Leninists.
Bergonians laugh at the conservative Anglo-American opinion that English property rights gave rise to the idea that men are equal before the law and possessed with liberty. Bergonian socialists note English property rights were feudal in origin, and that it awaited the egalitarianism of the Protestant revolution and then the Enlightenment before the ideology of equal rights arose.
Avoiding the zero-sum game
Most legal systems are designed to produce a winner and a loser. This reflects capitalist values of competition which where also there is a winner and a loser. They incorporate the basic "zero-sum game," since they are basically procedural surrogates for settling disputes with swords. Bergonians are not particularly taken with the current banter in America about "win-win" situations, because they believe that the very commencement of a dispute produces a lose-lose situation, and often the best the parties can do is regain their original pre-dispute condition. Sometimes the mere restoration is justice itself-- after all, the law of damages in tort cases is based on restoring the plaintiff to the condition he enjoyed before the injury. The Bergonians believe that they have to address every cause of a dispute and work to prevent recurrences. This might involve healing a bad relationship with counseling and mediation. This might mean curtailing a wrongdoer's liberty, or requiring a wrongdoer to get treatment.
Nevertheless, the zero-sum game is sometimes unavoidable, which is to say there are adversarial courtroom trials in Bergonia. Trials are virtually by definition zero-sum games, usually ending with only one winner walking out of the courtroom. But even here, Berg law envisions the trial more as a fact-finding process than as a battle between two adversaries. Therefore, the presiding judge and the jury have the power to pose questions, subpoena documents and even summon witnesses. And judges will stop trials if necessary to get a relevant witness or document.
Modern Substantive Law
Domestic law lies entirely within the jurisdiction of the Lesre, so it falls to the Lesre congresses to establish substantive law and procedure. As a result the law varies from state to state.
Current law in most Lesre allows any two people nineteen or older to marry, and any person seventeen or eighteen to marry with parental consent. Religious ceremonies are recognized at law in Bergonia, whereas in some other nations they are not. Every state, however, requires a marriage certificate signed by the parties and two witnesses. The law in all 31 states now presumes that the wife will keep her maiden name, unless she chooses to take her husband's name. This follows traditional atrei practice from before Columbus.
Miradi and Pre-Columbian traditions always allowed consensual and contested divorce. Notwithstanding the efforts of the Catholic and other Christian churches to the contrary throughout the years, the law in most states has always allowed some form of divorce. Of course divorce is available now everywhere upon the declaration of the parties, or upon proof of a one year separation.
The law in Tan times was remarkably similar to the law now generally prevailing throughout the 31 states: The parties can agree to a divorce and have one simply by filing with the public registrar. Moreover, one party can obtain a divorce, even if the other didn't want it, provided that he or she was free of fault or bad faith. If fault (which included battery, adultery and desertion) or bad faith could be proven against one party, that party could be penalized with loss of property or alimony or both. This is generally the current law in most jurisdictions.
The traditional custody rule in pre-columbian times was: "Boys with fathers, girls with mothers." In colonial times European law dictated that the father got custody, but from the late 1800s to the 1970s the law presumed that a woman would get custody of the children.
Now the law presumes joint custody, and assigns primary custody based on the relative fitness and capacity of the parties relative to the best interest of the child, including a consideration of whether a party has been a primary caretaker of the child and whether a party can be primary caretaker of the child. In making these evaluations the court cannot consider the income or wealth of parties, their religion, ethnic identity, or politics. In a divorce, a parent has the right to advocate that a third person get custody, such as a grandparent, and in such case the court will consider the relative fitness of all the candidates. All parents are typically allowed visitation.
Ironically in the past 20 years there has been renewed interest in the psychological underpinnings to "boys with fathers, girls with mothers."
Procedurally the registrar, where the parties file for divorce and custody, refers the parties to mediation, with professional mediators on stand-by, usually two working together. They will try to fashion a written agreement that a judge immediately signs. If unsuccessful, two judges hear custody cases on expedited scheduling. In complicated cases, judges often adjourn and reconvene within days in order to subpoena or otherwise obtain evidence.
When a difficult custody case comes to an end, many judges prefer to have both parents and the children present to counsel with them about the plan and make them all swear to obey the plan and consult with and respect each other.
Contracts arose from the specific agreements of the parties, and one could become liable for the damages of the other who relied reasonably upon an expectation that the other party would act. Such a theory allowed contracts to arise out of implication or out of usage and past practice, even if there is no explicit agreement.
The law, however, encourages written agreements, and the various syndicates and trade groups have developed a diversified stock of standard written agreements. the common practice in business has come to be that a memorandum agreement is executed which records the parties, the specific goods and services, and special terms for performance and just includes the standard terms by reference.
Leases and any agreements involving the use or possession of land must be in writing. The law doesn't recognize implied agreements, other than those reasonably implied from the regular actions of the parties and the use of the land, nor spoken agreements are permitted in this area.
Remedies: Contract remedies are very much like contract remedies in the United States. The general measure of damages is either to give the plaintiff his expectation under the contract, or restore the plaintiff to the position he would have been in before the contract was "broken." (Bergonians say a contract was "broken," not "breached.") Contract law governs nearly all commercial disputes between cooperatives & collectives.
A uniform contract and commercial law has been codified through the Council of States and the Judicial Assembly, although not all the states have adopted it.
"Tort": legal term; a "tort" is a personal injury done by one private person (entity) to another, usually the result of negligence or otherwise unintentional behavior, such as a car wreck. In Anglo-American law, a tort claim depends on whether the defendant failed in his legally-imposed "duty of care," such as obeying the speed limit and keeping the stairs clean of banana peels.
Bergonia does not recognize a tremendously large number of individual tort actions as in the U.S. However, Bergonian jurisprudence follows a law of negligence and personal injury very similar to Anglo-American negligence law. Instead, Bergonian courts mainly recognize a general all-purpose cause of action, beginning by identifying the duties of care that men and women owe one another, and then looking to see if the accused failed his duty of care and caused the claimant's injury. This is taught to children in the sixth grade, as part of the mandatory school curricula.
Thus, all specific duties (e.g. duties of store-owners to customers, duties of doctors to patients, duties of motorists to each other) are mere applications of the general duty of care, which has been expressed as follows
"Every citizen owes to every other citizen the fundamental duty to show care in his actions to avoid causing injury, destruction [of property] or trespass, whether by his own malice, indifference or inattention." §10, Code of Avlaragrat, 1298 AD., also §8-1, Model Civil Code, League of States, 1997.
While this formulation shows how fundamentally similar Bergonian tort law is to American tort law, it also illustrates the two most important differences.
First is the inclusion of amuele, translated most commonly as "trespass," but amuele includes any violation to a man's land, home, person or good name. Examples: letting water run across a man's yard, disturbing a neighbor with loud noise, falsely insulting a man's dignity in public, and striking a man. All these examples involve an invasion of a man's "space" or "person." So, while Anglo-American law distinguishes between "negligence" actions for personal injury from specific causes of action, each with its own specific, sometimes bizarre definition, Bergonian law treats virtually all civil actions involving personal injury or property loss according to the one formula.
Second is how the Bergonians describe the states of mind responsible for harm to others, "evil, malice, indifference, inattention." (a) What the law calls utloro, translating often as Evil, refers to cruelty, such as a random attack, a hate crime, a crime of violence against a child or helpless person. (b) Usleo, "common malice," includes any murder or assault done because of "malicious cause," e.g. pursuant to a feud or fight, or because of some provocation. (c) "Indifference" includes all forms of recklessness and deliberate disregard, the state of mind of someone who doesn't care if his actions cause injury. (d) "Inattention" is the Bergonian way of describing simple negligence, stressing the core duty to "pay attention," which has religious connotations for anyone familiar with Miradi. Likewise these four categories correspond directly to the Miradi concept of sin.
The socialization of risk and loss-- and the end of insurance
Complete socialism includes the socialization of risk, so that everyone is protected in common from floods, fires, trauma, sickness, disability and death. The mechanism of socialist insurance is not too much different from capitalist insurance-- it requires the accumulation of huge funds of money to pay for losses. But the communized nature of the funds-- which is to say that everyone in Bergonia has the same insurance-- everyone is covered under the Public Health Funds for all medical services, including rehabilitation services and medications, so a person gets his medical bills paid regardless of who’s at fault. Likewise the general disability income guarantee takes care of most lost wages. These socialist institutions eliminate nearly all the reason to fight.
In Bergonia doctors very rarely have to sit for depositions or testify in court. It does not matter who caused the auto accident, or the fall, or the malpractice, the injured person will get all the medical care he needs through the National Health. He will get disability income, and has access to rehabilitation, no matter how he got disabled. Thus an injured person has no need to sue for medical expenses or lost income. In Bergonia there are modest court claims instead of fabulously wealthy trial attorneys.
However, there are still negligence claims in Bergonian courts. A person injured through someone else's fault deserves a little more money than someone who hurts himself. One can help his own actions, but cannot be made to suffer the actions of another, and so justice requires a differential. So injured people do bring claims alleging negligence. Consistent with the socialization of risk, all awards of damages are made out of the Funds, but the individual defendant may be required to pay a fine for his wrongful act or negligence.
Negligence and other injury claims are initially evaluated by Fund investigators who take sworn statements and preserve evidence. More often than not the injured person simply submits a copy of the police accident report and a copy of his Personal Medical Services Summary to the Fund. Because the claims are small compared to American tort injury claims, any complicated adversarial procedure would be wasteful.
These claims typically go to the local common pleas courts, that often conduct very informal non-jury trials that may temporarily adjourn as needed to get ore medical records of other evidence. Often in Bergonia, liability is judicially decided within a few months after the claim is filed, and the issue of damages is deferred until the injured person reaches their "maximum degree of improvement." In other words, the claim can be granted in stages.
A Bergonian needs to buy auto insurance only for damage to one's own car.
For injury claims and property claims arising from someone else's fault, there is a public insurance fund. A non-negligent party gets his car fixed or replaced by the Auto Insurance Funds. He gets 100% replacement income from the Funds as well. Individuals and corporations who own cars and trucks pay big annual registration fees, part of which go into the Auto Insurance Funds. Some of the money collected off the gas tax goes into it as well.
Correcting and punishing tortfeasors
Law in capitalist "liberal democratic" societies pits autonomous individuals (including fictitious corporate individuals) in combat, ending with a winner and loser. Everything in capitalism, including justice, is reducible to money. Even in compromised settlements, it is always the same-- one side agreeing to surrender money to the other, while never admitting any fault. This leaden principle dominates the civil law of the United States, no less than the idea of penal punishment dominates virtually all conceptions of criminal corrections. It fails to address the real function of justice-- to fix the offended person's life as quickly and efficiently as possible. Any plaintiff in the U.S. will tell you that the lawsuit is often worse than the wreck itself.
The socialist ideal of communal cohesion makes it imperative, however implicit, that the legal system deal with the breakdown of relationships which often cause disputes and problems, to allay bitterness and resolve anger, to restore an emotional balance, to avoid repetition, as well as to fix the injured person's life. So the judicial award of money is not the only possibility. In fact, in part because there are so few money-type remedies available in this socialist society, many other remedies have become possible:
Bergonians like to assess some penalty, however symbolic, for fault. Having one's insurance company pay out money because of one's own actions is not exactly a personal matter. Here, a bad driver pays increased registration and license fees, which does double duty as nationalized auto insurance premium. A really bad driver will have his license revoked and his car (or what's left of it) confiscated.
There are also fines imposed against negligent defendants. Someone causing a car wreck that injures another person will have to pay a set fine, without proof of specific damages, say in the nature of $400. There is no insurance to pay this amount-- it comes out of the guilty person's pocket. The fines are kept low because they are meant to sting but not impoverish a family. Since people in Bergonia do not have a lot of disposable money, there is little money in private pockets to take. The fine goes to to the injured person. Realizing that the fine is not truly representative of the enormity of a person's pain and suffering, it has taken more symbolic importance.
Some of the totally atrei-dominated states in Berg's interior allow the courts to order a public humiliation. Here a person who commits an intentional, reckless or grossly negligent tort or a fraud can suffer imprisonment or fines until he agrees to a public humiliation in which he stands before any person interested in the case and makes a spoken confession and commits himself to an act of atonement, such as community service, public penance like walking for fifty miles wearing a sign, working until he adopts out at least ten dogs or cats in the local animal shelter, or giving away a personally valued object. If at the end of a period of imprisonment he still refuses, the judge will release the tortfeasor and compel him to pay a portion of his future income to the offended person as a tax, and the judge will further publish a photo of the tortfeasor in the newspaper with a description of his misdeed, or make him stand in the city square to wear a sign describing his misdeed. In many ways Bergonian law compels remedies which Westerners would find strictly symbolic, but in a culture where standing in the community, recognition and face still matter, such remedies can cut to the bone more deeply than a fine or award of damages.
Here any culpable person can show his good will and reclaim a little esteem and credit by buying the injured person a gift, sometimes a present related to the injury like a top-of-the-line wheelchair or tickets to the health spa, and sometimes a small luxury like a watch or a case of wine. It is a personal form of compensation. It is considered very poor form for the plaintiff to refuse the gift. Indeed, according to the old forms of etiquette, the plaintiff had to close the matter by sending the culpable person an acknowledgment of the gift.
It is often the case that a court will ask (rather than demand) that the defendant give a proper apology to the injured party. This might mean a public statement in the courtroom itself, or a private meeting between supervised by the correctional counselor. It might even include mediation between the parties to iron out the differences. Often the culpable person gives the gift to the injured party at the time of the apology. But an apology given in response to a demand is always a false and empty apology.
While Bergonians want to fully compensate the person injured by a negligent party, it seems unfair to deny the same compensation to another person identically injured by an act of God, or even by his own misfortune. The two men have arguably lost the same thing, and feels just as miserable. The pain is no less real.
The socialist view sees justice not as the primary value, but as an ancillary value to the primary value of service, group cohesion, and harmonics. Thus, any catastrophically injured person gets a big package of benefits through the socialized service agencies, including cash (income replacement plus a bonus), a guaranteed right to rehabilitative equipment, therapies and procedures, vouchers for special spas, and remodeling the house.
Destruction of Property Claims-- In cases involving willful or reckless destruction of property the tortfeasor must pay double the property's value. In case of negligent destruction, whether in an automobile accident or some other way, the tortfeasor must pay the value of the property. In cases of either willful, reckless or negligent destruction of property, there is an additional element of damages called the "time penalty, intended to compensate the plaintiff for the deprivation of the use of his property while the case is pending. The court computes the time from the day the property was destroyed or put out of commission to that day of judgment. If that time is 365 days, then the factor is 1, meaning that the defendant must pay an amount equal to the full value as a penalty. If the time is more or less, then the time penalty is pro-rated either more or less. This penalty serves as an inventive, it is hoped, for defendants to avoid delay in bring cases to court.
Awards of money damages occur in injury cases, as in American courts, but with a national single-payer health system, awards for medical expenses are unnecessary. Since insurance is socialized in Bergonia, the same funds often reimburse the plaintiff, regardless of the fault. Most damages in tort cases are liquidated at law. Most of the issues in American tort case damages are completely moot in Bergonian society. Medical expenses need never be reimbursed by the tortfeasor, since Bergonia has a system of socialized medicine that insures the provision of medical care, regardless of the cause of the injury.
Pain & Suffering:
Bergonians do not award huge money for pain and suffering in catastrophic injury cases. A Bergonian can understand the justice of a plaintiff getting compensation for his pain and suffering from the person responsible, but the Bergonian might have a quite different idea from an American of what adequate compensation means. The socialist ethos refuses to admit that everything can be reduced to a one-time calculation of money.
The ancient clan ethos, the peasant village way of life, and also the socialist ethos, see compensation as a duty to provide care, and do well by the injured person. There is the socialization of risk in Bergonia which eliminates the reduction of everything to money. When someone is catastrophically injured through another's negligence, the overriding question is not the "justice" question of who's to blame and how much money should change hands. The overriding question is how to deal with the immediate practical problems in the injured person's life.
Bergonian attitudes toward pain & suffering are shaped by the rather stoical attitude of Miradi toward life's vicissitudes, and so people are expected & encouraged to cheerfully endure car wrecks, falling trees, slips on ice, bad surgeries, and other mishaps. This stoicism teaches that pain and suffering are to be expected in life, and families, clans, and social services are all there to help and assist.
Moreover people do not seriously believe that money can meaningfully equate with pain & suffering or other mental sensation. Therefore it makes little sense to pretend that a sum of money adequately balances out the subjective experience of pain and depression. It is too much like apples and oranges to the Bergonian mindset. However, in recognition of the existence of causation and fault, Bergonian law will compel damages.
Bergonians are better cushioned for pain & suffering & disability in Bergonia in so many ways, so that pain and suffering are subjectively lessened for injured people. For example:
a) The comprehensive national health care system insures that an injured person can get the treatment he deserves in a reasonably prompt fashion. Likewise, income replacement is guaranteed, although a hearing may be required at a later time to figure out which is liable for what.
b) Since people do not move nearly as often in Bergonia, people tend to live with or near extended families and in tight neighborhoods. In this kind of social structure people are less likely than in America to suffer social isolation and to have help when they get hurt or disabled.
c) Bergonian medicine works very hard to provide palliative care. Unlike American doctors, who assume their patients will abuse drugs, doctors here will treat pain.
d) Finally, although American conservative scold endlessly about "personal responsibility," here personal responsibility means taking care of yourself. This means that an injured person has an obligation to attend to his or her own rehabilitation. If a person does not control eating, do the prescribed exercises at home, or work with their physical therapist, then he or she bear some blame for the future deterioration of their injury.
Nevertheless, in recognition of causation and fault, the law will compel damages. No one expects a windfall for anything in Bergonia (unlike in America where everyone--even the hypocrites who denounce the tort law system-- is on the lookout for windfalls). So, in addition to replacing lost income, the insurance funds pay out cash awards for pain and suffering, relatively small by U.S. standards. Most Lesre used schedules prepared by special commissions of doctors, lawyers and lay people. The schedules all have built- in assumptions about the difference between injuries, such as a factor of eight for low back soft-tissue injury, versus a twelve for aggravation of spondylosis. A judge looked up the particular injury in the book and read the prescribed amount of money. This promoted harsh consistency in verdicts. But some people have vocally complained that the schedules did not adequately compensate people who suffered the most severely.
Assessment of Costs against the Loser
The loser always pays the court costs and fees, and in Bergonia these are substantial, including a "court use" fee. The loser often must pay the lawyers fees incurred by the winner, generally depending on the strength of the winner's case. This, of course, tends to inhibit certain lawsuits. When the potential litigant calculates the loss he may suffer in contrast to what he might win, he may decide to forget the dispute or seek some alternative, informal method. This rule contrasts with the "American Rule," which permits the plaintiff to walk away from a defeat without any responsibility for the defendant's attorneys fees.
The American Rule has certainly contributed to the maddening litigiousness of Americans. An exception to the general rule exists, however, which credits the loser's efforts to settle the case. If a losing party can demonstrate to the court in a post-trial proceeding that he or she attempted to settle the case in the preliminary stage and otherwise attempted to mediate or arbitrate the case, and that the winning party showed an intransigent attitude and took the case to the ultimate battle. This policy encourages parties to settle, and any wise lawyer at the commencement of the dispute will advise his client about the potential dangers of stubbornness.
More criticism of the insane American tort law system
A nation’s legal system will always reflect the nation’s values, unless imposed by a tyranny culturally at odds with the masses, such as colonial or occupation regime. The U.S. legal system, like the country overall, values everything in terms of money, and adheres strictly to the principle of individual ownership of all property.
In America huge court disputes occur over questions of who’s private insurance fund is going to pay for who’s loses. In big personal injury cases, the plaintiff asks for damages to “compensate” him for seeing a psychologist, getting rehab services for crippling injuries ,and lost wages (losses for fixed dollar amounts called “specials” by lawyers & insurance adjusters), as well as pain and suffering.
Capitalist legal systems follow the capitalist myth/recipe of the isolated individual who is utterly at total risk for all the world's calamities-- floods, fires, trauma, disease, disability and death. Each person bears his own diminishment and suffering without any hope or expectation of help, except by his own sweat or from charity. A capitalist will likely not even bail out his kin. Under this model, every bad turn of luck will impoverish a man, except to the extent that he has purchased on the so-called "open market" protection against risk. This market commodity is the insurance contract. Of course, as a consequence of the capitalist system of inequality, a rich man can sustain many losses lightly, while a working family may be utterly destroyed by one. This underlying desperation, plus the greed for windfalls, fuel the American insurance empire, which in turn drives the crazy legal system like a turbine. It is startlingly true that a person doesn't get sued unless they have insurance, while people buy insurance out of fear of being sued. The mere threat of loss forces everyone to pay for their private insurance, and insurance companies (utterly unregulated by government) charge "what the market will bear.".
It is through the legal system that individuals have been able to find any counterbalance the system of inequities. The good logic of tort law, developing against the backdrop of rex talonis capitalism, allows an injured person to sue for the entire consequence of the injury-- especially the medical bills, since there is no comprehensive national health care and support.
American workers compensation systems are likewise tied to the irresistible notion of individual responsibility and the individual case. Thus workers must always have to prove that they are entitled to benefits and employers are compelled to fight claims, all this to decide whether an individual is entitled to get at a particular fund. In every respect the capitalist system of protection through private insurance and distributed through an adversary legal system is horribly inefficient.
How much more efficient it would be that if every sick and injured man, woman and child were treated, without having to prove eligibility for payment by piecemeal public and private insurance funds. There would be no need for questions of coverage, liability, proof of future damages & losses, or "medico-legal" issues of "causation."
The goal of correcting the criminal offender
In most countries, and especially in big brutal nations like the USA, Russia & China, judicial systems rely primarily on the threat and terror of harsh punishment to enforce the law. In Bergonia a premium is placed on "correcting" the behavior. This often means what Americans call "rehabilitation"-- which most Americans assume is futile, ineffective and symptomatic of soft-headed liberalism.
No one in Bergonia assumes that punishment corrects behavior, or that it even serves as much of a deterrent to the serious criminal. Bergonians recognize that punishment has a wounding effect upon a man, which may be appropriate if moderate, but cruel if inflicted in excess. A sentence cannot be fairly or decently applied unless the judge understands the wounding effect of what he imposes upon the offender.
Bergonian sentences for offenders may involve several things:
Every criminal offender is assigned to a counselor. This is usually someone trained in psychotherapy, who then has the responsibility to confront the offender. The form of counseling is called "corrective," and is sometimes quite the opposite of Rogers & Maslow and other feel-good psychotherapists who advocate unconditional acceptance of the patient. The method in fact requires the counselor to use the skills of an interrogator or cross-examining lawyer. The counselor wants to get the offender not only to admit his culpability, but to give an account and a reason for it. The process of course is to encourage some insight. Sometimes the "therapy" is tape-recorded, and later the offender is required to examine his prior words and admit inconsistencies.
Probation and parole are frequently employed in criminal cases, and even in civil case involving assault or other intentional acts. Probation is common in cases where the offender has failed to adequately "participate in or adjust to social life," i.e. dropping out of school, failure to acquire work experience, refusal to accommodate a handicap, illiteracy. In such cases probation is a method of intensively working with the offender to overcome his particular deficiency. This can apply in civil cases involving indebtedness, where the debtor needs help and education with personal finances.
The counselor operates as the supervising probation officer if the court orders probation. This gives him real stick and carrot power over the offender.
The degree of probation supervision for felons is quite often intense. The idea is that most offenders are incomplete personalities, frozen in immaturity by some defect in their upbringing and life, causing a failure to adapt to adult norms. Since most offenders are in a sense children they require direct supervision. Rather than the judge expecting the wholly maladjusted offender to find and keep a job on his own, without any support or help, the judge directs the counselor to run the offender's life. This gives structure to the immature personality who is incapable of erecting his own structure. American judges often evoke the need for a "structured environment" which always has to be an institution that offers only fascist penal structure and no other kind. It is possible to provide an intense level of structure in open society. The offender is ordered to work at a particular job or attend school or special classes (e.g. how to keep a checkbook and follow a budget, in which the students have to bring their personal finances into the classroom for work). Sometimes his finances are managed for him, and he may even be required to follow a specific hour-by-hour schedule through the day.
The electronic systems of home confinement put some teeth into this degree of supervision. Many such offenders benefit from this form of benevolent dictatorship. By being ordered to live a sensible life they can see how a sensible life is lived, and as they acquire the skills the degree of compulsion is lessened. This is often the way alcoholic and drug-addicted offenders are handled, and of course they are required to keep regular hours at the municipal outpatient facility and in groups (e.g. AA -- saved my life! --J.C.).
The counselor may refer the offender for mental health or neurological assessment. He may also refer the offender to specialized psychotherapists. This is useful in cases involving inebriation, substance abuse, abuse and neglect, or any other case where the offending behavior stems from mental illness. Cooperation may result in the remission of fines.
Confession or admission of wrongdoing goes a long way to ameliorate an offender's situation. In negligence cases, an admission of wrong will usually avoid a fine. It often helps matters if an offender explicitly and in person makes an apology to the offended. Mediators and judges often try to get the offender to apologize in open court. This act often comes before the settlement or sentencing, since often the apology gives the offended enough satisfaction that he or she softens their position on remaining issue. A bargained-for apology is, after all, no apology.
Yes, there is incarceration in Bergonia, with jails and prisons. Crimes of violence toward human and animal, crimes involving fraud, and crimes involving violation of a fiduciary or trust, all merit mandatory terms of imprisonment, with the very shortest sentence being 15 days. In most Berg states, it is axiomatic that physical assaults receive this minimal imprisonment, since violence is regarded with great opprobrium (though fighting & brawling among young men is more easily tolerated).
Major crimes merit multi-year prison terms. The lengths of such prison sentences are more on par with Western European norms than the much longer terms allowed under American law.
Nearly every Berg prison and jail has for the inmates at least four hours of "structured programming" a day, which nearly always includes exercise (e.g. aerobics, calisthenics, yoga, running), group singing and chanting, lectures, movies and discussion groups. In some groups inmates are encouraged or required to engage in self-criticism. If nothing else, the jails will run the hell out of the short-term inmates.
Jails are hardly ever used anymore to hold the common criminal pending trial; instead electronic monitoring devises, including GPS systems, are used to keep accused defendants on limited versions of house arrest.
There is forced labor as well, though never hard. Inmates in jails and prisons do work: cleaning trash, demolition work, painting public buildings and street markings, moving furniture and building materials-- a regular labor pool. The idea of forced convict labor is horribly abused in many parts of the world (e.g. China), and has been abused in Bergonia's not-too-recent past (e.g. painting the warden's sister's house). Most Bergonian prisons and jails offer each inmate at least four or five hours a day of work, in addition to the structured "general programming" described above.
Inmates generally have the option to work or attend school while in prison, although everyone has to participate in "general programming." As an inmate accumulates work hours and school hours, he earns points toward furloughs and early release. If he screws up by violating a rule, getting "fired" from his work, or quitting a school program before completion, he will lose accumulated hours.
The death penalty
While China, Russia, dictatorships in Arab & Muslim countries and the US all indulge in state-sponsored murder, no civilized country uses the death penalty. Bergonia is a civilized country, having outlawed the death penalty in 1940, after the revolution, as part of the amnesty program. Bergonia, like many European nations, will not extradite any person to a country where he or she may face the death penalty. Bergonia makes this a mandatory provision in all extradition treaties.
Not much debate exists in Bergonia on this issue, in part because of unanimous Miradi and Christian opposition to the death penalty.
However Bergonian law offers to any prisoner serving a life sentence the option of death by suicide, with "a cup of hemlock," a painless brew of sedatives and poison.
Allocation of Housing and Land
In post-revolutionary Bergonia, there is no private ownership of land. This basic principle is embodied in the Constitution (Art. 13, Sect 2) which places all land in the public domain but allows individuals and corporations to lease. All leases are indefinite, but no leases are in perpetuity, and every lease can be terminated if either the lessee violates law or public policy in his use of the land (e.g. raw sewage, solid waste violations, methamphetamine labs), changes to an unapproved use (e.g. tannery, casino, junk yard), or ceases to use it altogether.
The Constitution specifically gives every person "the right to lease an abode sufficient upon which to maintain a home for family and to practice one's trade."
All leases are granted by the local government, the county, autonomous county or city, usually deferred to the commune or the ward level, where there is always a housing office under the sponsorship of the local council.
The commonwealth government may enforce a citizen's equal rights to housing, and it may enforce environmental laws, but the commonwealth may do absolutely nothing to impair an individual's or a cooperative's right to obtain a leasehold, which is to say it has no role to play whatsoever in regulating how leaseholds are to be awarded. This is one area where local and states rights are manifest. A lot of people think the enactment of the many environmental laws has inappropriately allowed commonwealth authorities to interfere with local leasehold rights .
A History of Abuse
After the Revolution, the vast majority of people who lived in their own houses were permitted to stay in them, even though title of the land went to the people. The revolutionary powers decreed in 1935 that any person would automatically have a lease to the premises that he occupied, and be permitted to keep possession of it until such time that the new local governments determined whether possession should be divested. In some cases, big landowners were gratuitously allowed to maintain their holdings in the role of "administrative trustee" for the people, providing they paid for the expense and dealt through the cooperative system. In accordance with the principle that later became ensconced in the Constitution of 1936, possession could be terminated and the presumed lease would be terminated only if the land was abused, wasted or abandoned, or the occupant adjudged a criminal or politically deviant.
This created difficulty in the transition. At first a lot of vindictiveness was at play. Enemies of the revolution-- or of the particular group in power-- lost their real property by the process of expropriation. Naturally, until a regime of law and a custom of regularity was in place, the ideal of socialist ownership of all land was often abused and corrupted. In many areas political cronyism and nepotism trumped all other considerations. Many of the fine old homes built by the rich before 1930 were inexplicably assigned to the families of political club and militia leaders.
In many cases local neighborhoods rebelled against impositions by the corrupt city or county authorities. In the late 1940s a wave of criminal prosecutions commenced in a number of states. Fortunately, the abuses persisted only until the 1950s, a decade when courts and state governments were called upon to rectify many abuses. Most authorities then conceded to the wards and communes the ultimate right to allocate housing, which involved a positive sort of cronyism and nepotism-- where families and friends concentrate together, forming more cohesive neighborhood communities. In many cities and towns lottery systems were instituted as houses and apartments became available.
Since the lease payments were paid to the county land council, the land councils became stuffed with cash. Although state law controlled the distribution of the money, many irregularities occurred, with great waste and loss.
This resulted in the NDP sponsoring the Corrupt Land Practices Act that authorized a bunch of money to hire platoons of prosecutors and agents to aid state government efforts to root out corrupt handling of lease payment money. Congress passed the Act in 1955 and a great wave of panic engulfed many land council offices. The final Project Report, issued in 1963, claimed that 33,564 convictions were obtained against "responsible officials" and another 14,670 against "beneficiaries of housing." Since the SFP had dominated the first 20 years of post-revolutionary Bergonia, most of the people prosecuted were SFP cohorts, and inevitably SFP partisans claimed that the NDP was engaging in "political persecutions" as a "prelude to dictatorship," but in truth a sizeable minority of the defendants had NDP affiliations, and the prosecutions were tremendously popular with the people.
Previously, in capitalist days, most people had to pay rent or real estate taxes or both. Subsequent to the revolutionary transition, every lessee of land had to pay lease payments to the state, which combined the concept of both rent and tax. The rates for leases were higher than the previous tax rates, and many property "owners" grumbled. But they were allowed to remain and to have their possession unencumbered. An exception allowed a man who owned a hundred acres to keep possession of it, providing that he was farming it, so that his rent was less than his former tax assessment. However, if his one hundred acres was just a residential estate, then he would usually have several choices. First, he could release to the public trust the acreage unnecessary to the residence, and retain a lease for a much-reduced tract. Second, he could continue to lease the entire one hundred acres, but his lease rate would be considerably higher than his former tax assessment. Third, he might be able to negotiate a contract whereby he leased a reduced tract and then managed the remainder on behalf of the public trust, essentially becoming a "parker" for the state.
Those who rented apartments or homes benefited from the change. The landlord was forced to forfeit the rental property, and he received no compensation for it. He ceased to get any rents from the property and could face a beating from his former tenants if he came around. The tenant s were now tenants of the state, and given leases no different from those that the ex-property owners received. Usually, the new rates were lower than what they had previously paid to their private landlords.
Leasing Land Now
The constitution states that no possession or lease could be in perpetuity. However, the practical effect is as if the principle of perpetuity was in effect. Quite simply, whether as an apartment dweller or as the occupant of a big house, will by law and custom be permitted to stay in the residence until he violates the terms. If he dies, his heirs have the option of continuing in the lease. But the lessor cannot devise his lease interest by means of a will, except to his spouse, his children, or his dependents. if he dies without either children or a spouse, then the apartment or house will revert to the public trust, and his heir will get possession of his personal property.
Everyone must live somewhere. Thus, nearly everyone in Bergonia is a lessor. Most people lease a house or an apartment and remain there as long as they want, sometimes for years, sometimes for decades. Some families at the present are leasing from the public trust the same lands that their ancestors owned in capitalist Bergonia two hundred years ago. But other people are more transient. They have leases as well. but there are certain buildings with small units, maybe just simple rooms, which it is understood won't be leased for long.
Every society has deadbeats. Some deadbeats will be deadbeats under any circumstance, in any society. Other persons will respond to social pressures, but will take advantage of a lenient system. They can be coerced by sanctions or motivated by rewards to act responsibly. The Constitution guarantees to everyone the right to a lease, which is to say there is a right to housing. But practicality requires the payment of rent on leases. Housing in Bergonia isn't free.
A few people have argued that the Constitution offers deadbeats a free ride. The practice is that, if a person doesn't pay their rent, they are faced with eviction or automatic withholding from their pay. The administrators of the public trust may serve him notice of eviction for nonpayment of rent. The notice advices him that he may stay in the residence if he wants, but only if he allows garnishment from his paycheck. His rent will also be increased to recoup the permissible administrative costs limited to 10%.
If a person loses his job, he can usually retain the lease for his family's apartment or house, if the inability to pay the rent is due to circumstance he cannot help. In such cases there may be rent abatements. While rents are primarily set with the size of the premises in mind, they may be adjusted downward if the person is retired, disabled, or unemployed. Sometimes the housing council will assist the distressed family in relocating to more modest premises.
Ultimately if a person refuses to work, refuses to pay his rent and refuses to cooperate with the housing council, they will evict him. In socialist Bergonia, he still has a right to housing-- at the local "free dormitory."
HOME SITE MAP LINKS ABOUT US
THE LAND THE PEOPLE GOVERNMENT ECONOMY ECOLOGY RELIGION
E MAIL US