Skip to main content
Worldbuilding

Return to Answer

Added some suggested outcomes.
Source Link
glenatron
glenatron
  • 5.3k
  • 17
  • 27

For this kind of system to exist ( and it is the goal of many legal systems so it's debatable how achievable it might be ) then you probably need to operate at different levels - most legal systems operate on a basis of principle/intent => legislation => case law. In the situation you describe, it seems as though possibly the case law part of the scenario might be given far less weight- rather than comparing the current case with previous similar ones, it could be compared purely with the legislation and it's stated intent. That still ties in to the letter-of-the-law but gets closer to the principle and intent, although of course it is also much less efficient because the same conclusions have to be derived in similar situations rather than being able to compare directly with how they were concluded before.

Consider the orientation of the law

An interesting alternative might be to change the orientation of the law, so that the underlying principle is changed from "it is the will of society that you should not do X" to something else. An example of this that I find particularly interesting is "a crime is an action performed by a person of agency which has a victim."

This creates a very different shape of legal system, where the nature of the victimhood and establishing a victim becomes the core of legal process. A 'simple' crime such as assault is fairly clear-cut in this respect, but things get interesting when organisations are victims, when a victim is hypothetical ( dangerous driving my not have a physical victim but the potential for creating them is very high ) or when an action has a slim effect on many victims ( polluting the environment could be an example of this ) and so on. It would result in a complex and comprehensive legal system that could have the same effects as our own, but which comes from a very different place and responds to crimes and their victims in a different way.

We could look at some outcomes of this:

  • There are no crimes against oneself alone. If you have agency ( by which I mean effectively you are rational and capable of decision-making in your own right ) then you cannot be both victim and perpetrator. That gets rid of many drug offences straight away.
  • If it is legal to consume drugs then supplying them cannot be criminal in cases where there is no victim.
  • However, if a person's actions whilst under the influence of drugs or the consequences of a person's addiction create a victim ( a neglected child, harm to an unborn foetus, theft to finance the addiction ) then those actions have criminal implications.
  • In cases where there is potential for victim, but no definite victim, like ( to continue on this theme ) driving under the influence, the approach may be based on a unit of risk, a little like a Micromort. So if driving under the influence resulted in damaging property 50% of the time, causing injury in 20% of cases and causing fatality in 5% of cases, then you have effectively 0.75 victims at three different magnitudes of severity. This combination of scale of potential victim and magnitude of severity would be used to decide the seriousness of the crime and the punishment due. Given that the course of law in this case relates to establishing a victim, both prosecution and defence might use statisticians to argue the case that this was a more or less serious event and therefore the defendant should or should not be punished.

In this case the legal system becomes less of a question of rules and more a matter of the effects of individual choices on the people around us, which is an interesting exercise and would probably be reflected in other cultural elements.

For this kind of system to exist ( and it is the goal of many legal systems so it's debatable how achievable it might be ) then you probably need to operate at different levels - most legal systems operate on a basis of principle/intent => legislation => case law. In the situation you describe, it seems as though possibly the case law part of the scenario might be given far less weight- rather than comparing the current case with previous similar ones, it could be compared purely with the legislation and it's stated intent. That still ties in to the letter-of-the-law but gets closer to the principle and intent, although of course it is also much less efficient because the same conclusions have to be derived in similar situations rather than being able to compare directly with how they were concluded before.

Consider the orientation of the law

An interesting alternative might be to change the orientation of the law, so that the underlying principle is changed from "it is the will of society that you should not do X" to something else. An example of this that I find particularly interesting is "a crime is an action performed by a person of agency which has a victim."

This creates a very different shape of legal system, where the nature of the victimhood and establishing a victim becomes the core of legal process. A 'simple' crime such as assault is fairly clear-cut in this respect, but things get interesting when organisations are victims, when a victim is hypothetical ( dangerous driving my not have a physical victim but the potential for creating them is very high ) or when an action has a slim effect on many victims ( polluting the environment could be an example of this ) and so on. It would result in a complex and comprehensive legal system that could have the same effects as our own, but which comes from a very different place and responds to crimes and their victims in a different way.

For this kind of system to exist ( and it is the goal of many legal systems so it's debatable how achievable it might be ) then you probably need to operate at different levels - most legal systems operate on a basis of principle/intent => legislation => case law. In the situation you describe, it seems as though possibly the case law part of the scenario might be given far less weight- rather than comparing the current case with previous similar ones, it could be compared purely with the legislation and it's stated intent. That still ties in to the letter-of-the-law but gets closer to the principle and intent, although of course it is also much less efficient because the same conclusions have to be derived in similar situations rather than being able to compare directly with how they were concluded before.

Consider the orientation of the law

An interesting alternative might be to change the orientation of the law, so that the underlying principle is changed from "it is the will of society that you should not do X" to something else. An example of this that I find particularly interesting is "a crime is an action performed by a person of agency which has a victim."

This creates a very different shape of legal system, where the nature of the victimhood and establishing a victim becomes the core of legal process. A 'simple' crime such as assault is fairly clear-cut in this respect, but things get interesting when organisations are victims, when a victim is hypothetical ( dangerous driving my not have a physical victim but the potential for creating them is very high ) or when an action has a slim effect on many victims ( polluting the environment could be an example of this ) and so on. It would result in a complex and comprehensive legal system that could have the same effects as our own, but which comes from a very different place and responds to crimes and their victims in a different way.

We could look at some outcomes of this:

  • There are no crimes against oneself alone. If you have agency ( by which I mean effectively you are rational and capable of decision-making in your own right ) then you cannot be both victim and perpetrator. That gets rid of many drug offences straight away.
  • If it is legal to consume drugs then supplying them cannot be criminal in cases where there is no victim.
  • However, if a person's actions whilst under the influence of drugs or the consequences of a person's addiction create a victim ( a neglected child, harm to an unborn foetus, theft to finance the addiction ) then those actions have criminal implications.
  • In cases where there is potential for victim, but no definite victim, like ( to continue on this theme ) driving under the influence, the approach may be based on a unit of risk, a little like a Micromort. So if driving under the influence resulted in damaging property 50% of the time, causing injury in 20% of cases and causing fatality in 5% of cases, then you have effectively 0.75 victims at three different magnitudes of severity. This combination of scale of potential victim and magnitude of severity would be used to decide the seriousness of the crime and the punishment due. Given that the course of law in this case relates to establishing a victim, both prosecution and defence might use statisticians to argue the case that this was a more or less serious event and therefore the defendant should or should not be punished.

In this case the legal system becomes less of a question of rules and more a matter of the effects of individual choices on the people around us, which is an interesting exercise and would probably be reflected in other cultural elements.

Source Link
glenatron
glenatron
  • 5.3k
  • 17
  • 27

For this kind of system to exist ( and it is the goal of many legal systems so it's debatable how achievable it might be ) then you probably need to operate at different levels - most legal systems operate on a basis of principle/intent => legislation => case law. In the situation you describe, it seems as though possibly the case law part of the scenario might be given far less weight- rather than comparing the current case with previous similar ones, it could be compared purely with the legislation and it's stated intent. That still ties in to the letter-of-the-law but gets closer to the principle and intent, although of course it is also much less efficient because the same conclusions have to be derived in similar situations rather than being able to compare directly with how they were concluded before.

Consider the orientation of the law

An interesting alternative might be to change the orientation of the law, so that the underlying principle is changed from "it is the will of society that you should not do X" to something else. An example of this that I find particularly interesting is "a crime is an action performed by a person of agency which has a victim."

This creates a very different shape of legal system, where the nature of the victimhood and establishing a victim becomes the core of legal process. A 'simple' crime such as assault is fairly clear-cut in this respect, but things get interesting when organisations are victims, when a victim is hypothetical ( dangerous driving my not have a physical victim but the potential for creating them is very high ) or when an action has a slim effect on many victims ( polluting the environment could be an example of this ) and so on. It would result in a complex and comprehensive legal system that could have the same effects as our own, but which comes from a very different place and responds to crimes and their victims in a different way.