The courtroom, or arbitration is a pervasive institution, which can be used and is for any complex decision-making, from disputes over a common wall to deciding where to build the village to school to declaring war or judging criminal cases.
Essentially the same procedure could be used in all those cases. It's worth looking it over in detail again. Plus I had a couple of new ideas, so some of this concerns matters I've covered earlier.
A person (let's name them A) have some kind of conflict or dispute with someone (let's call them B), or alternatively something sufficiently complex to work out, such as a business deal.
The first step is for A to inform B: either telling them, more formally sending them a letter and have it witnessed.
A must name the issue and state their choice of arbitrator. An important point is that A can name anyone: you have no obligation to name a professional judge.
B, at this stage, can agree to A's choice. In which the arbitrator will decide on an agreement.
The arbitrator may or may not ask for payment; if they do, both A and B pay, except if B has to pay damages to A. In that case, B on top of the damages, must pay the arbitrator fee. If both have to pay damage, the fee is split proportionally.
The arbitrator follows the legal code of his choosing. The requirements is that what legal code will be followed must be public. It helps if it's made formal in some way. It can an actual legal code, or a manifesto. The Land Reform manifesto supports expropriation of capitalists, for instance, so we can assume a Land Reform judge will apply the idea in case of theft.
More complications.
Of course A and B will not necessarily agree on an arbitrator. The rule is then that both A and B pick their own arbitrator. A and B's arbitrator now have to find out a third arbitrator to settle the issue.
There are several means to settle the issue:
- Prior agreement. A and B are sympathetic to Land Reform but pick different LA arbitrators. A third LA arbitrator will be chosen to settle the matter. Or A chose an Alwe'ashe arbitrator, B Land Reform, as is customary in the particular area the case is settled in, the matter will be settled by a Meshagha arbitrator.
- Expanding to a judge panel. A's arbitrator picks up more judges, so does B's arbitrators until we get a somewhat larger arbitration panel everyone can agree on.
A is a factory owner. B, an employee of A took money from A in retaliation for unpaid overtime. It's in A's interest to pick a conservative judge -- say Alwe'ashe, with an absolutist view of private property and dim regard for workers' rights. B is going to pick a Land Reform arbitrators that holds that property is theft.
Hammering out a compromise is workable, but difficult. One additional tool is to bring in a randomly selected jury.
Complex panels.
A complex panel may involve several arbitrators, and a jury.
Severe disagreement between both parties are one case where this might happen and it's probably the easiest use case to understand. But in fact such an arrangement can and must be used for any sufficiently complex trial. A good arbitrator must bring in extra help as needed; in particularly complex or severe cases, a jury must be brought on.
Except in the most dire of circumstances, a murder trial requires seven judges and a twelve-person jury at the very least.
Representation; delegation
A stole from B. B is too poor, too busy or otherwise unavailable to act on his own. A third party, C, can act as B's delegate in the matter, as long as he has B's signature.
It can be done by a simple signature, with B and C's sharing awarded damages, by whatever arrangement is suitable.
One interesting case is that any moral person (an association) or a physical person, for that matter, can act legally for a very number, possibly an undefined number of defendant (as in the case of pollution we've seen earlier), by collecting a sufficient number of petitions.
Proceedings
A three-person court (A, B and their arbitrator) is perhaps most common but requires little explanation.
The proceedings for a more complex trial are more interesting. Consider a murder case, with a panel of seven judges and a jury of twelve.
Two of the judges act as defense attorneys. Two of the judges act as attorneys for whoever represents the victim -- typically, the family! Two judges act as arbitrators. One has the job of moderating.
Judges with additional jobs can be brought on: for instance one judge may be tasked only with maintaining security at the trial, but with no vote. Others may be brought on as experts.
It's important at this point that 'judge' is a role, not a profession. A legal expert can act as 'attorney' in a case, moderator in another. Most of them will hold legal degrees, but again there's no obligation. At least some of the judges will be doctors in a medical malpractice case.
There is no difference between civil or penal law. The example here is that of a murder case; but the proceedings would be exactly the same for a business dispute.
Everything is up to debate: facts, punishments/damages and the law itself.
That is, both parties come to trial with their own law codes.
If the facts are established, punishment is established on the basis of the respective law codes. Either the judges and both parties find a punishment acceptable to all, or they don't. If they don't, the decision is up to a vote of the jury.
If there is a disagreement as to the fact, first a decision is made on the basis of a vote of the jury and the neutral judges. Then accuser and defendant have the option of agreeing to the facts as established and compromise, or if they can't, to leave the decision up to the jury.
If both parties agree independantly on the facts and punishment, neither judges or jury can interfere. If the judges agree on a compromise, the jury cannot oppose it. In other words, the jury is there as a last resort, though a final one.
One exception is fees, for judges and jury members, which are stated before the trial begins and must be paid no matter what. Murderer and the victim's family can agree to a final settlement -- but that settlement must provide for the cost of the trial itself.
Appeal
Appeal is always possible, though you need either supplemental evidence as to the facts of the case itself, or suspicion of malpractice or illegal decisions.
What makes a trial illegal?
- Judges or jury committed an illegal act; for instance beating up a suspect.
- Lack of impartiality. The neutral judges as well as the jury must at least maintain the appearance of impartiality.
- Dishonesty. A judge must reach a decision or compromise starting from a legal position that was public earlier. A judge that publicly stated he belongs to the conservative legal school can't suddenly decide his legal code allows for the expropriation of capitalists. Compromise is of course another matter -- but if your socialist judge 'compromises' by ruling against you in a case of unpaid overtime, you have ground for appeal.
- Plus of course, usual rules applying to jurors, such as inattention and so on. This part isn't too different from our system.
In such cases of legal malpractice, the previous verdict may still hold. A murderer can be condemned, appeal on the ground of being beaten up, and not have his/her conviction overturned -- but the one who beat him would be liable for damages.
There's no particular legal form to an appeal -- at heart it's simply arbitration between A and B, or as the case may be, A vs. a previous arbitration, or A. vs. B. vs. previous arbitration.
The legislative power of arbitration
To a large extent arbitration has some legislative power. Ultimately, juries have legislative power, since their final decision is law, applicable to both parties. Precedent has some binding power. Judges have the option of following precedent, or rejecting it entirely, or accepting it as a potential compromise. Their stance of the issue must be made public; if they make no statement to the contrary they're implied to accept it.
Juries can overturn precedent.
Rules of precedent mostly affect which cases can be appealed and which cannot. A compromise ruling following precedence has little chance of being appealed unless new evidence comes to light.
Refusing arbitration.
What happens if you're sued but refuse to show up? Or what if you keep murdering people or appealing court decisions?
If you sue someone, and that person doesn't show up, you can ask for a summons with a threat of outlawing. This is handled by a jury, with one or several judges acting as moderators and advisors. If your case has merit, the opposite party will be summoned. If it doesn't -- you pay for judge and jury.
Outlawry
One kind of punishment is outlawry, which comes under several grades of severity. This is essentially the last-resort punishment if you won't follow court procedure.
A less severe form of outlawing is declaring a person outlaw, with a certain sum of money associated to it. That means your property is forfeit up to that sum; anyone has the right to take that sum for you to return it to your adversary, plus expenses. (The amount depends on the charges and your income, it's not unlike bail in that respect.)
The most severe degree -- rarely applied -- makes a person entirely forfeit of all rights; they could be killed at will.
The appearance of a criminal by trial can be ensured by intermediate forms of outlawry; one which entails the right to detain a suspect until trial. This is typically decided by jury.
Technically everyone can declare someone an outlaw; the jury is a social convention that gives it wide societal support. (People who unilaterally outlaw their neighbours tend to be understandably shunned)
Erdan legal theory
Erdani has no legislature (besides ad-hoc decisions by jury) -- it has, instead, a firm committment to natural law. The idea is that law, or what the law should be, is preexisting, a product of human nature.
There are several problem with the idea of natural law. Is it a divine law? In that case there is disagreement on what god or gods exist, and what code of law, if any, they gave humanity. Can it be deduced by reason from first principles? That approach sounds promising... except thinkers, both on Earth and in Erdani, have successfully deduced by reason alone entirely contradictory theories: both 'property is theft' and 'property is a sacred right' are legal principles people can evidently arrive at by reason alone.
The Erdans made the analogy to physical law, and carried it very far. If natural law is an analog to physical law, surely we can apply the scientific method to it: make an hypothesis, establish a theory, several competing theories if necessary, test them, amend accordingly.
How can you test natural law, though? There are two options. First, natural law should lead to a properous society, and the closer to natural law the better. Second, human beings come with an instinctual understanding of it. Justice is like syntax in that respect: it's hard to formalize natural language syntax and to build a complete theory of it... but give a sentence to a native speaker and they'll tell you whether it's grammatical or not.
Hence Erdan legal theory:
- Various networks, with competing legal codes, act as different theories and experimenters.
- The best legal code is the one that allows to settle conflicts without violence: if a legal code leads to successful arbitration, it's a vindication of the theory.
- If all else fails, turn to a jury; any truly random selection of human beings will tell you if what you're trying to do follows natural law or not.
Rather, once these compromises were arrived at for entirely pragmatic reasons, legal theories were devised to fit in these new facts -- much like physical theories are arrived at after unexpected experimental results.
(Our own understanding of law isn't that far from the Erdan one; we do rely on real-life data, generally historical data for decision-making. The Erdans prefer hands-on experiment.)
Possible punishments
I've talked about crime before, but I remained vague on the subject of punishment.
In fact almost all punishment comes down to monetary compensation.
Monetary compensation is the easiest form of punishment -- and doesn't require much in terms of implementation.
It can handle theft -- someone stole your car, they have to give it back and pay for legal fees; that extra amount is an incentive not to try it again; embezzlements, unpaid overtime.
The rule is simple enough: pay back what you owe, with extra compensation for the trouble, plus legal fees.
Legal fees are proportional to income. That's entirely for pragmatic reasons: if you fine Elon Musk $100 for theft, he'll do it again. Try a billion or more instead. As a judge or juror, if you fine a petty thief $100000, you'll never see any of the money.
(Of course some rich Erdans are stupid enough to complain about it. It never goes anywhere.)
It's not unusual, of course, for people to end up in debt for legal fees. The usual arrangement is that some third party should loan the money and have it repaid; this is often handled by commons good fund. So a theft will find himself working off his debt on roadworks, for instance.
As a variant of this, compensation may be granted to a third party. This is at heart a problem of incentives: using again the example of a Clean Air Association, supposing its members were dishonest (which happens) - it could conceivably sue for every kind of pollution, even imaginary ones, and be uncommonly difficult in negotiation. Granting the bulk of the compensation to a third party removes the incentive in part.
Fines are enforced by the threat of various levels of outlawry.
Like any human invention, legal compensation covers 99% of cases, and the remaining 1% are the hardest, ie. the most violent forms of crime: rape, murder. Monetary compensation is accepted by the victims or the family in a surprising number cases. Sometimes it's not acceptable. The resort then is the strongest possible state of outlawry, which amounts to a death sentence.
When muder is not murder
Related to that last point -- there are cases when killing someone is perfectly legal.
For murder or rape, revenge killings are perfectly acceptable, as long as it's done by the victim or a close relative.
For particularly heinous crimes, that last restriction is not applied. Anyone can kill a serial killer.
There are rules of course -- a trial must have been conducted; the killing itself must be done with witnesses ready to testify to the identity of the victim, and it must be publicly announced.
Vendetta isn't acceptable -- further revenge killings are illegal.
Political assassination is a specific case of this; if a dispute (say, between rival networks) threatens to degenerate into war, and there seems to be no option available, killing a political rival is acceptable.
In all cases monetary compensation is necessary --- the amount varies (high for political assassination, low for serial killers) but at the very least any underage dependant of the 'condemned' person must be provided for.
Political assassination is vanishingly rare in these softer times.
Some communities -- many of them religious community, but not all -- will ofter asylum to outlaw murderers on the run, under various conditions.
(A common arrangement is that the murderer can never leave. A community may announce publically it grants asylum to someone -- the understanding is that he'll be killed if he leaves.)