Those of us who know the legal system primarily through procedural dramas tend to think of the law as being mostly concerned with punishing criminals (well, that and giving ace lawyers a chance to stage dramatic courtroom antics), but law has many other functions in society. While many of these are still visible in modern times, in many pre-modern cultures, law was focused on a different function or set of functions than we are used to. If you are writing a story set in the past or in an imagined world and you want to include some dramatic courtroom antics of your own, you may want to think about how law fits into the society you are creating differently from how it fits into ours. Here are some functions of law to think about as you go:
This is one we still see a lot in modern legal systems. A lot of law is civil, not criminal, that is it is about settling conflicts between private individuals or groups rather than about the state enforcing standards of acceptable behavior. One of the distinguishing features of modern states is that many conflicts between individuals that earlier legal systems treated under civil law have been brought under criminal law. In pre-modern societies, with less developed state systems, many misdeeds that we consider crimes were left to individuals to dispute through civil law, such as trespass, theft, even murder.
Reinforcing power structures
No society has yet managed to create a legal system that actually treats the rich and powerful equally with the poor and powerless, but the notion this is even an ideal worth striving for is rather modern. In pre-modern cultures, legal systems often served to explicitly reinforce social disparities. Rules about who could bring suit against whom, whose testimony was considered valid, and what punishments could be meted out for a given infraction could be dictated by the status of the individuals in question. The progress and results of a court case functioned as public reminders about who had power and who did not.
Testing community opinion
In pre-modern societies, especially ones that operate on a small scale, relationships often matter more than institutions (more on this topic here and here). As such, when people have problems to resolve, it can be important to gauge and even try to influence the wider community’s opinion. Legal proceedings can be a way of seeing how your neighbors feel about your issues and trying to get them on your side.
People who feel they have been wronged often feel angry about it. Without a way of publicly venting that anger, those feelings can fester and poison relationships within a community. The law can provide a venue for people to express their anger and feel heard. Even if they don’t get the substantive result they want, the psychological relief of letting those feelings out can do a lot to restore calm among neighbors and relations.
People who feel wronged and have no other recourse may decide to redress the injuries they have suffered by force. This violence can spiral out of control as families, villages, and factions get wrapped up in reprisals. There are few real cases in history of violent feuds going on for generations (unlike in fiction, where they are all too common), but even short-term flare ups of violence can be hugely disruptive to smaller societies. The law offers an alternative way of settling disputes that sets limits on who can legitimately use violence, when, where, and for what purpose.
Most legal systems combine some or all of the aspects listed here, but the balance among them tells us a lot about how any given society works. If you’re including some kind of legal tradition in your worldbulding, its a useful exercise to think about which of these functions are more important in it, and how it achieves them. Because not every fantasy court case needs to play like an episode of Law & Order!
History for Writers looks at how history can be a fiction writer’s most useful tool. From worldbuilding to dialogue, history helps you write.