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QUESTION

In the real world, the history of law in pre-industrial states is as sprawling and complex as can be imagined, and includes all kinds of unique and fascinating systems, from the Code of Hammurabi to the Gragas, and much else besides.

But worldbuilders who are interested in creating a fantasy legal system need to set priorities, and organize their information to create a convincing but alien legal system in the broad strokes. To this purpose, even a basic theoretical approach to structuring a fantasy legal system could be helpful for worldbuilders lacking strong knowledge of law or legal history, among whom I count myself.

What are the vital questions I should ask myself when building a fantasy legal system?

CRITERIA

Anyone can design a list of laws and penalties, decide which crimes warrant harsher punishments, and determine which social groups the law is designed to serve. All that is pretty trivial, so a good answer needs to find questions the average worldbuilder might not ask. Just for some throw away examples: Are lawyers professionals? Is the prosecution independent? Do some witnesses carry extra legal weight? Who is obliged to carry out sentence? There are certainly other questions to ask and better ways to organize them, but that provides a decent starting reference.

Assume ...

  • A generally Earth-like world with humans.
  • A classical or medieval point of reference, 1500 AD or before.
  • A focus on law relevant to most stories. So criminal beats civil, without necessarily excluding it. The importance of other forms of law was pointed out in the comments, so I'll strike this point.
  • No magic.

An ideal answer would hit the most important questions, creating a shortlist suitable to a classical or medieval society. Drawing on historical or real world examples to show why a particular question is important is encouraged but not required.


Just to be clear, I am not asking for all of the questions that are relevant to creating a fantasy legal system. That would be crazy. So while you're more than welcome to fit whatever you please into an answer, what I'm asking for is the most important questions that your average worldbuilder might not think about, preferably structured so that by answering them you can create the skeleton of a legal culture.

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    $\begingroup$ Legal systems tends to defend the values of the civilization that created it so maybe asking what values your citizens hold? $\endgroup$ – cypher Feb 14 '18 at 15:17
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    $\begingroup$ Penal law is only one aspect of the law, and very far from the most important. In countries which follow Roman law you would need a Civil Code, a Commercial Code, a Penal Code, and the corresponding Procedure Codes. I'm sure that in countries with Anglo-Saxon judicial systems there are analogous aspects, whether statutes, codes or unwritten customary law. $\endgroup$ – AlexP Feb 14 '18 at 15:31
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    $\begingroup$ How is this a fantasy world? If there's no magic, then what is the fantastic part(s)? This is an important question because otherwise it should be pretty similar to the historical examples of medieval/feudal legal systems (which are actually pretty similar). $\endgroup$ – RBarryYoung Feb 14 '18 at 19:22
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    $\begingroup$ One nice approach is to start with a simple, possibly even impossibly broken system. Assume that one was in place 500 years ago, then figure out how it evolved during the various dynasties, wars, and other major events that took place in your world. $\endgroup$ – Peter - Unban Robert Harvey Feb 14 '18 at 21:37
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    $\begingroup$ The absolute best reference is the Avalon Project Almost every known documented code of law and constitutions from antiquity. Goes back thousands of years before the Roman Empire. $\endgroup$ – Justin Thyme Feb 14 '18 at 23:53

11 Answers 11

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Assuming you have a basic list of things not to do and penalties set up you may wish to start asking about the bureaucratic process:

  • Who can accuse people? Everyone, or only the elite?
  • Who can catch people? Is there a police force? Are they from a government or a company? Or can everyone try to right the wrongs done to him/ his family/ ...?
  • Who can judge people? Are there dedicated judges? Or does the enforcer put them on the pillory and all the townsfolk can judge them?
  • Who can free people? Are there processes to plea for not being guilty if evidence is found later? Is evidence even important? Have there been cases where people were freed or are there only legends about that?
  • What do you do with people who dodge the judgment? Maybe they escaped - are they excused if they didn't have to pay for the crime in 5/10/50 years? Will the punishment be more severe?
  • Who records cases? Are there big libraries where everything is documented or does the big government/company not want to make this information public?
  • Who can become one of these people? Is it easy to become a judge/enforcer/accuser/... or do you have to pass rigorous exams? Do you have to be from a certain caste to even be considered for the job?
  • How many people are there from each job? Is an enforcer rare? Are they common and seen on every corner?
  • Are people doing the job? Which parts are automated?
  • How long does each stage take? Is it a matter of hours from accused to executed? Or does it take a couple days to catch someone and years to pass the judgment?
  • Where are people held while the judgment is still in process and who cares for them? Are there prisons? What do they look like? Are they in remote places? Who are the guards?
  • How are people cared for that are accused/judged? Are they taken care of like normal people, or is an accusation already bad enough to warrant them being treated like lepers?

This list can be expanded of course, for example with the suggestions from Miller86:

is there a legal document codifying all of the above, do multiple documents cover it, or is it tradition? For real-world examples, see the US constitution versus the UK constitution. Additionally, what happens when those who make the laws go against tradition or the codification documents? Quis Custodiate Ipsos Custodes (or, Who Watches the Watchmen)

Or to paraphrase and expand the comment from OhkaBaka:

  • What is the history of the different institutions? Why was the system/ the institution/ the job initially set up? How long ago was this initial setup and what changed in this timeframe? What was the original goal and how does it differ from the current goal?
  • Who was/ were the creator/ s? What was his/ their goal? What principles did he/ they value? What do the people value that are in control now?
  • Where do you see these goals? Are there parols that are often used? Symbols? Idols? Monuments?
  • Where do you see the rules and guidelines in the everyday life? Is there a poster in every street? Are there posts on big internet forums? Are there radio or television shows? Are there certain people who are the face of the different institutions?

In addition like Kamil Drakari mentions:

Under what processes/conditions can the system be changed, if any?

  • How often is the system changing? Has it been stagnating since it was first set in place? Or did it slowly change towards what it currently is? If so, is there a goal defined by some entity in the past or the current times? Does the goal change over time, for example with each new leader? Or is there a self-improving system in place? If so, is it flawless (hint: nothing is flawless)?
  • What happens to people who oppose the system? What happens to people who oppose the changes in the system? Can the system adapt to new circumstances, whether they are social or environmental in nature?
  • Are there democratic processes in place to guide the system? Oligarchic processes? Aristocratic processes? Dictatorial processes? How does the system work in the context of your general governmental structure and are the people/ entities responsible for controlling the legal system bound to what your government/ population wants?
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    $\begingroup$ An excellent answer, but I would make one addition: is there a legal document codifying all of the above, do multiple documents cover it, or is it tradition? For real-world examples, see the US constitution versus the UK constitution. Additionally, what happens when those who make the laws go against tradition or the codification documents? Quis Custodiate Ipsos Custodes (or, Who Watches the Watchmen) $\endgroup$ – Miller86 Feb 14 '18 at 15:47
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    $\begingroup$ Fantastic answer, but it skips over motive... which flavors basically all the other questions. "Why was this legal system created" to control? to protect? to maintain status quo? and "Is this legal system still being used in that way"... how OLD is the system, is it being systematically abused, has it fallen from once noble goals, or has it overcome its nefarious origin to achieve nobility? $\endgroup$ – OhkaBaka Feb 14 '18 at 17:00
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    $\begingroup$ You get pretty close to this, but it might be worthwhile to add explicitly something like "Under what processes/conditions can the system be changed, if any?" Perhaps it could be included in the "what is the history" section. $\endgroup$ – Kamil Drakari Feb 14 '18 at 18:01
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    $\begingroup$ I'd just note this is a great answer for criminal law, but ignores all other areas. $\endgroup$ – arboviral Feb 15 '18 at 18:03
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    $\begingroup$ These are all great questions, but they all come after you decide on the PHILOSOPHY of the law. What is the purpose of the law? Is it to oppress, or to free? Is it to create a level playing field, or a unilateral playing field? These questions tend to favor a bias towards a legal system that promotes freedom, a level playing field, and equality. This is not a requirement for every legal system. One can choose to create a legal system that is oppressive, denies universal rights, and promotes dis-equality. In such a case, these questions are moot. $\endgroup$ – Justin Thyme Feb 16 '18 at 18:38
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Areas of Law

The first question is how many areas of law you want. For instance, we have common law (basically, contract law), criminal law (basically, 'breaking the law') and a new developing field around 'licencing law' (as in a software licence to use).

Each of these areas has distinct methods and trial practices.

Contract Law

In contract law there are at least two modern approaches. The British common law insists that there be consideration on both parts. A bet, for instance, is not enforceable. Under the French Napoleonic code, a promise (one-sided consideration) is enforceable.

Adversarial vs Negotiation

In the British system, the two sides are very distinct (prosecution and defense) and they each argue only their own side, trying to circumvent the truthfulness of the other side.

In the Iroquois confederacy the emphasis of the courts and legal system is to thoroughly investigate the truth. There are no 'sides', no 'opposing arguments'. only a mutual search for figuring out what actually happened. It is not a case of the prosecution asking questions, and then the defense, but the 'judge', with appropriate counsel, asks all of the questions, pursuing both sides of the truth at the same time. The goal is healing, not recrimination.

Japan tends to use a non-adversarial system. The investigators are responsible for looking at all sides, and in presenting all of the facts. Guilt or innocence is determined by the facts, not a judge. 'If you are guilty, you will be found guilty, If you are innocent, you will be found innocent'. You don't become guilty by the determination of the court, you become guilty by perpetrating the crime.

Behavior vs Intent

In criminal law, is the nature of the offence in the actual behavior, or the intent of the behavior? In Canada, the emphasis is on intent. For instance, it is not good enough that you walk off with something for it to be theft, you have to have INTENDED to walk off. Picking something up by accident, or in confusion, for instance, is not intent.

Punishment vs Rehabilitation

Is the purpose of the 'sentence' to punish, or to discourage future actions, or is it to rehabilitate the person? Drug addiction, for instance. Or kleptomania.

Crime vs Illness

Related to the former is the concept of what deviant behavior actually is. Does the society consider it criminal or a sign of treatable mental illness?

This is really important, for instance, in terms of behavior modification and attitude change and deviant personality forced alteration. Should sex deviants be forced to undergo treatment? Should they be held in protective custody until they are cured or stabilized? Should continuing treatment (addiction, for instance) be made mandatory?

China, for instance, has a criminal legal system that considers all crime a social deviation, and therefore should not be punished but subject to remediation through re-education, social pressures, or mentoring. You remain under state control for as long as remediation takes. Those who are deemed to not be rehabilitatable are permanently removed from society.

Protection of Property or Society

American criminal law tends to be all about protecting property rights and economic assets. Theft under and theft over are treated differently. Robbery is treated preferentially over assault. Social implications of the crime are usually all but ignored, until the victim impact statement.

An alternative system would be one that considers social implications as the crime, not the economic loss. An action that causes PTSD, for instance, irregardless of the cause, would be punishable. An activity that undermines social trust (deception and lying, for instance) would be prosecutable. Bullying would be a crime, as would be belittling someone. Inciting to unrest, hate, social upheaval, promoting negative emotions. Social and psychological health and stability would be the prime consideration, not economic health. The denser the population, the more this would be a factor, I would think. Getting angry could have really bad consequences, so inciting someone to get angry would be a serious crime.

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    $\begingroup$ While it is an interesting argument, did any early civilization consider mental illness as a justifiable excuse for crime? For that matter, I don't remember any stories of rehabilitation in those days. The inability to manage mental illness is a well documented in our history. It might be interesting to read about such a world, but the work to make it believable would be challenging. $\endgroup$ – OhkaBaka Feb 14 '18 at 17:08
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    $\begingroup$ @OhkaBaka Medieval England, at least, recognized that madmen were not culpable for their crimes. medievalists.net/2015/06/… $\endgroup$ – RonJohn Feb 14 '18 at 22:10
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    $\begingroup$ Ouch! Your characterization of current legal systems is a bit ... off. For example, in England and Wales murder is a common law crime. Theft was too until until 1916. Common law means "law made by the judges" rather than statute law, which means "law made by parliament". Similarly your characterization of "British" contract law is wrong in Scotland (whose legal system is as different from England and Wales, as that of Louisiana is from New York.) $\endgroup$ – Martin Bonner supports Monica Feb 15 '18 at 6:35
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    $\begingroup$ I love that a section ends with the sentence "Those who are deemed to not be rehabilitatable are permanently removed from society.". $\endgroup$ – pipe Feb 15 '18 at 12:16
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    $\begingroup$ @pipe I had already been distracted by “China, for instance, has a criminal legal system…” $\endgroup$ – Will Crawford Feb 16 '18 at 9:42
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You're focusing on the legal system here, but you need to look at all the ways that, historically, such systems have been circumvented. How your legal system deals with the inevitable corruption and loopholes is fully as important as its normal intent and function.

What are the origins of your legal system: what philosophy underlies it? Is it based on the idea of the rule of law? Was it developed by an aristocratic elite to serve their interests? Is it based on a state religion, with laws enforcing various key points and customs and so on of that religion? The answer will have a major impact on what laws are made, how they are enforced, and so on.

Money is an old, old consideration, and significant for precisely that reason. Are there significant penalties for bribery, or regular investigations of suspected bribery? Are such penalties instead trivial, such that judges (or lawyers, or whoever) have no material reason not to accept bribes? Are legal officials somehow protected from the law themselves, held above it? What is the societal view of bribery (also patronage and nepotism; views on those matters will influence this one): is it tacitly accepted as necessary to get anything done, or frowned upon, or actively condemned?

Independence of legal officials should also be considered. Do they serve only at the will of the king or president or whatever the leader is called? Can they be dismissed at will, or are they protected from arbitrary dismissal once appointed? Are they appointed at all, or elected in some manner; elections dictate a need to appeal to the majority, which will influence their rulings at some level.

The power of legal officials: can they prosecute and investigate anyone, or are certain groups (nobility, for instance) effectively protected from such attentions? Are top figures in the government immune to prosecution, and if so to what degree? Can the government overrule the law with ease, or is it itself bound to respect the laws it creates; if so, how is this enforced? For that matter, what happens if the legal officials themselves violate the law; can they be removed, jailed, fined, etc., for that, or are they able to violate the laws they are supposed to enforce?

For that matter, is there a formal legal profession at all? Or is justice administered locally, on the spot, by some respected figure (the town mayor, for instance) without any lengthy trial or recourse to appeal? Your society might not tend to a legalistic perspective with its heavy focus on technicalities and minor details; there might not be a written law at all (or not much of one; think something like the Ten Commandments being the extent of written law), only an implicit code of conduct.

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I would like to build on Secespitus' answer (which I upvoted).

  • What are the motivations of the people involved? Individual motivations win out over the needs of society so long as the individual has the power to control the population (think "king"). If yours is a merchant-driven or guild-driven society, then the rules of trade will massively influence law as a whole. The same can be said of a military state, or a parasitical state (one that is small and in close contact with a much larger society).

  • How old is the civilization/society? Do various races live together? Do they have equal or unequal representation on the "ruling councils?"

  • Does the society have a philosophy or belief that they wish to preserve? Like a religion or an ancestral tradition?

  • How well armed is the populace? Kim Jong-un of North Korea does not have a well-armed populace. The U.S. does. It's easy to maintain martial law in N. Korea, it would be a bloodbath to try and enforce it in the U.S. (This is a very two-dimensional way of looking at the usefulness of the U.S. 2nd Amendment, but it's not invalid).

  • Has there been a pro-people leader or leading council now or in the past? Such would pass laws protecting the people even if the people aren't strong enough to demand the changes for themselves.

  • Is there a middle class that's tired of being treated like the lower class? Again, it's two-dimensional, but this is somewhat how Britain's Magna Carta came to be.

  • Finally, how large is your civilization? Densely populated cities need services: water, sewer and trash, road and bridge maintenance, food supply, etc. The rules regulating services have a huge impact on the legal structure of your world. The same can be said about trade between cities, the effect of outlaws/brigands/highwaymen and the regulation of ports. Simplifying outrageously, nobody minds taking advantage of their neighbor for a dollar, but everybody minds having their advantage taken.

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One main question is how big is the government?

Often times there was no codified legal system. The commoners would be brought before a magistrate who would hear the case and make a ruling. Noblemen went before the king or someone appointed by the king.

The king will also tend to pass down laws such as: anyone who is caught stealing will have a hand chopped off. There is not procedure for creating that law and usually none given for truly defining what constitutes "getting caught stealing." Though some rulers are better at that than most.

Once things get big enough that the king cannot rule on all issues dealing with noblemen, they tend to for a written or unwritten set of laws or traditions to handle things before they get to the king. This keeps the king's power structure in place by making sure that things are fair for those who keep him on the throne.

If there is enough communication between regions, there may be codified laws and procedures for the peasants to prevent them from resenting their lord because someone else's lord rules in a different way.

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  • $\begingroup$ The The Code of Hammurabi was written in 1754 BCE. $\endgroup$ – Justin Thyme Feb 14 '18 at 23:49
  • $\begingroup$ @JustinThyme, I wasn't stating anything about time, just the size of the government. Egypt, China (and probably India - I just don't know much about India) had codified laws while most Europeans had none. The question was: what questions should he ask. I gave him one and the reason for it. $\endgroup$ – ShadoCat Feb 15 '18 at 1:14
  • $\begingroup$ I just stated a fact. The interpretation and application is up to the reader. The Code of Hammurabi is perhaps the earliest known written and published legal code. $\endgroup$ – Justin Thyme Feb 15 '18 at 3:31
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One thing that other answers only briefly touch on is the process by which those accused are found innocent or guilty.

In our world, presumption of innocence is the norm, and has a history dating back at least to the legal reforms of Antonious Pius in the 2nd century AD, but it's not the only possible model - some of the old Germanic law codes required the accused to take an oath of innocence, for example.

The other major thing that ties into this is the system of obtaining evidence with which to prove guilt/innocence. Nowadays we collect evidence such as forensic evidence and camera footage, but these were largely not available in history (and so, for the most part, in fantasy). Instead, both parties would bring in 'oath helpers' who swore that they believed the accused to be innocent or guilty, with the accused's guilty status resting on whether or not their oath was considered stronger than that of the accuser.

These are two extremes, and most historical (and current) legal systems sit somewhere on a spectrum between them. When designing your fantasy legal system you should consider the availability of evidence, which will largely determine where on this spectrum your legal system sits.

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    $\begingroup$ Along with this, is the societal and cultural acceptance and prohibitions against lying. Traditionally, this was strongly wrapped up in their belief system - that there was a non-earthly divine power that was supreme and all-knowing. Final judgement rested with this supreme being, and was usually considered more significant than anything an earthly judge could pronounce. Lying under oath was deemed to have had very severe consequences in the after-life. Usually, the King or Queen, because they were a representative of this deity, were deemed incapable of lying. $\endgroup$ – Justin Thyme Feb 16 '18 at 1:22
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At a very high level, the key question is how does the legal system fit within the culture?

For example, in a primarily oral culture knowledge is passed from generation to generation by telling stories. In that kind of setting you might expect stories to be important in the legal system. Arguments for the severity of an action, whether circumstances mitigate, and what an appropriate punishment would be can all be made by analogies between the current situation and the traditional stories. In a highly literate culture knowledge is communicated in a more abstract form: this is the kind of setting in which arguments hinge on the meanings of words. Precedent can still be important, but it's the precedent of previous cases rather than of legends about heroes and gods.

Talking of gods, the culture's religion is also very relevant to the legal system. Not only because knowing what the gods find acceptable and unacceptable drives what the human legal system considers acceptable and unacceptable, but because gods who are actively involved in the world may take an active part in justice. Are religion and politics separate or closely intertwined? Are the gods involved in determining the truth of the situation - perhaps through trial by combat or something similar, or perhaps because judgement is a priestly rôle? Are the gods involved in administering punishment? Are (most) witnesses and judges compelled by fear of divine wrath to be honest and just, or are their decisions on honesty driven by more complex motivations?

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Looking at this from the perspective of 1500 AD or before, one must consider the belief system of the culture. Do they believe in the omnipotence of a supreme being? Is the ultimate judgement in society's hands, or is it in the hands of a deity that supersedes the citizens?

It has been said that the Constitution of the United States is particularly silent on moral issues (abortion, homosexuality for instance), because at the time it was written, these were deemed to be the domain of God. Humans had no right, nor business, to dictate morality or moral decisions that are more appropriately left to God. Ultimate moral authority was in His hands. It assumed that everyone acknowledged the rule of a supreme being, irregardless of the manifestation of the organized structure of the religion, and would abide by and subject themselves to such moral religious judgments rather than man's pronouncements. God would judge, so there was no reason for humans to judge.

As humans evolved into a more secular society, where a deity became less and less significant in moral decisions, the law was required to speak more and more to these issues.

Central to this is the nature of the penalties for lying under oath. Pre-1500's, the penalty for lying under God was dealt with by God Himself. It was not a human concern. God, or whatever divinity, extracted far greater penalties than a human judge could ever administer. So an oath under God was determined to be as factual as anything could ever be. An oath was unassailable evidence, and when physical evidence contradicted it, the oath was to be considered more truthful.

The king or queen, or whatever the highest earthly title, was usually considered to be an adjunct of this deity, and was considered incapable of lying. Their word could not be questioned. Not only did you not dare to call the King a liar, you couldn't call the King a liar. It was nonsense to do so. It was impossible for the king to lie. As we grew more secular in our laws, penalties against perjury became more of an impediment to lying than one's belief system. After the British revolt of the middle merchant class, the King lost his invincibility privilege, and became accountable to the law and to the process of the law.

TL:DR

In the words attributed to a very wise person, it is very important to distinguish what is the Lord's, and must be rendered unto the Lord, and what is Caesar's, and must be rendered unto Caesar.

That is, what part does secular law play, vs the part divine law plays, in judgement.

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Just one more question I would keep in mind: what is the goal of punishment?

Retribution against the criminal?
Protection of law-abiding citizens, with not much attention given to the criminal any more?
Re-socialisation of the criminal?

The choice of focus here vastly changes sentences and conditions in prison, possibly even how judges are selected.

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    $\begingroup$ There are two competing philosophies on this issue - "Better to punish a thousand innocent people, lest one guilty person goes free" and "Better to let a thousand guilty people go free, than one innocent person be punished". Yes, there are systems of law currently in the world that follow each of these philosophies. $\endgroup$ – Justin Thyme Feb 16 '18 at 18:27
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Given the date 1050 CE-ish, it is worth noting that most of the "civilized" places in the world at that time didn't have "law" as a concept for the most part.

In China (at nearly its modern extent), Europe, West Asia and India, for the most part, there were feudal systems in which the only law was that the lord has absolute power over those below him and was subject only to people above in him the feudal hierarchy.

In China's Confucian philosophy, it was the predominant view that rule of good men was a better path to a good society than rule based upon abstract laws. So, there was no equivalent to a set of codified laws or even a British style common law. The only law was that the relevant lord had absolute power to make decisions and resolve disputes, and you hoped that the person who was doing that was good and just and wise. Rule of law was considered an invitation to clever but evil lawyers that who not advance the good of the society to take control.

While this might seem foreign, this is basically how almost all modern firms (both businesses and NGOs) handle their internal affairs, and also how most families handle their internal affairs.

Abstract, universal laws are tools to allow strangers who are equal in status to deal with each other. It has no application within hierarchical organizations whether they are families or vast feudal nations.

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My answer is a short one, and not at all exclusive to any of the others (and I grew a bit exhausted trying to summarize them, and so if any covered this... my apologies.)

In any case. My answer is more for AFTER you decide your legal system... or perhaps when polishing it up and then after. Put yourself in the position of a few brief characters... one who enforces the law, one who tries to survive within the law... and one who looks for a way to exploit or circumvent the law for personal gain. Give each a very short story or two wherein they're encountering your legal system with these motivations in mind... and see if they help you perfect that legal system, or spin off useful material for writing prompts in how folk react to it.

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