Legal Fictions: An Introduction

legal pad“It’s a free country.”

If you grew up in the U.S., that sentence was probably your first introduction to the idea of law and rights. Maybe another kid shouted it at you when you questioned their behavior. Maybe you said it yourself. Simply translated, it means “I have the right to do what I want whether you like it or not.”

What gives us that right?

Law.

Kids also like things to be fair, so even on the playground there are limits to the “free country” argument. Rules get made – don’t cut in line, don’t hit other kids – and enforced. Even first graders have a rudimentary legal system.

In the U.S., we take great pride in the idea that we are a nation of laws and not of “men.” And based on that principle, we assume that law ensures fairness. But while fairness may be a goal of legal philosophers and social reformers, in truth, law is often unfair. Take this wonderful quote from Anatole France:

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.

The purpose of law is to set rules on how people interact with each other so that disputes can be resolved. The outcome doesn’t have to be fair; it only has to be accepted by all parties as within the rules.

Not that fairness doesn’t play a part in developing law. When outcomes get too far from what most people perceive as fair, law changes: Witness the anti-discrimination laws passed in the U.S. in the second half of the 20th Century and the current wave of legal decisions and statutes allowing same sex marriage.

Still, law is inherently conservative. The decisions of the courts are based on precedents, and those precedents are not overturned lightly. In the U.S., some of those precedents go back to English common law (or, in the case of property law in the southwest, to Spanish law).

We invest the legal system with a lot of mythology and pomp and circumstance, but in the end, it is only a set of rules. Rules can be changed.

While law is often seen as tedious and boring (not to mention full of ridiculous technicalities), the disputes that lead to lawsuits and crimes are often fraught with drama and emotional tension – perfect subjects for fiction. Unfortunately, a lot of fiction doesn’t get law right.

Sometimes this affects the plot. I was reading a mystery set in California the other day, and one of the characters said she had been able to keep a house she had owned with her late husband (she’d been convicted of killing him) because it had been put in her name for “business reasons.” I thought this was a clue, because California is a community property state and property bought during the marriage generally belongs to both parties regardless of the name on the title. But it wasn’t. The author just took a inaccurate shortcut to explain why this character owned the house.

Sometimes errors in law are just annoying. There’s a short story by a writer whose works I love (which is why I’m not telling you who the author is) in which the main character is convicted of a crime when in real life the dispute would have been a civil lawsuit. It wasn’t necessary to the plot – a huge monetary judgment against the character would have destroyed his life as effectively as a prison sentence – so it bugs me every time and keeps me from enjoying the story to the fullest.

And sometimes legal mistakes misrepresent the way the world works in the same way that inaccurate science in a science fiction story or factual errors in historical fiction do.

So this is the first of a series of blog posts on getting the legal stuff right in fiction. I practiced law for about 17 years and made my living reporting on law for lawyers for another 20, but figuring out how to explain law to fiction writers is a new challenge.

To do this right, I need to know what legal obstacles people have run into in their writing (or in their reading). What do you need to know about law to write what you want to write? Put your questions in the comments and I’ll collect them and address them in future posts.

I’m not going to cover the legal rights and responsibilities of authors. That’s another topic entirely. But I will try to give you enough information so that you can figure out how to create a legal system from scratch for your far-future space opera as well as how to get the rules right for a story set in the here-and-now.

I’ll start next week with an introduction to lawyers.

Share

Comments

Legal Fictions: An Introduction — 21 Comments

  1. Thank you! My next urban fantasy involves a lawyer and mishandling of evidence. So goes missing and some is never logged in at all.

    It’s about time we grew beyond reruns of Perry Mason as our source for legal procedures.

  2. Thank you so much, Nancy! As I think you might remember, I’m working on a novel where the husband and parents of the protagonist succeed in committing her to a mental hospital, and then she finds that she can’t get out even when she wants to. They commit her because she’s a lesbian, and they’ve just discovered her orientation. This happens at a moment when she’s depressed, so she might sign herself into the hospital, hoping to get treatment for depression and end up facing anti-gay deprogramming.

    What has made this particularly difficult to research is that the novel is set in the Seventies (and in Michigan). While I can find a lot on the law governing commitment today, or even 100 years ago, I’m struggling to get details about the Seventies. Right now I’ve got the novel set in 1979, but I can futz with the year a little if that makes a difference.

    Many thanks for any help you can provide.

    • Diane, I’ll add in a section on the civil commitment process. I did a little work in that area in the 1970s in Texas, so I have a general feel for it, though the actual Michigan law might be different.

  3. Nancy, what a cool post.

    I’m wrestling with what a legal system might look like in a future in which people travel at relativistic speeds, so there’s a lot of time involved, though the people age slowly. Suppose you’re light-years from a place where a crime happened, and you recognize the criminal. How wild-west would this be?

    I quite dislike SF in which people run around shooting people with few or no consequences, so would prefer to avoid having the protagonist whip out a raygun and shoot the war criminal.

    Any ideas?

    Thanks in advance,

    Vonda

    • Vonda, you’ve got my brain churning, but I have no immediate answers. I’ll have to do a lot of thinking on this. How does the statute of limitations apply in such a world? In our current reality, you cannot be prosecuted for a crime after a certain period of years. But in your story, whose years govern this?

      I agree with you about the lack of consequences for self-help responses to crime in SF. I suspect this is because a lot of writers tend to go back and forth between totalitarian states and libertarian ones. Or perhaps failed totalitarian states in which dealing with criminals on your own is the only way to get any justice. Seems to me we could create more futures with rational and fair legal systems. After all, there’s plenty of conflict within such systems — look at the debate over how the US should respond to Edward Snowden.

      • Nancy, good points. I hadn’t even gotten to the consideration of statute of limitations.

        Also, if you’re travelling and communicating at NAFAL (Nearly As Fast As Light, coined by Le Guin) speeds, how would you know what laws to follow? You might be following laws years and years out of date.

        And what about rules of evidence?

        V.

          • I tend to agree, Dave, but the beauty of “speculative law” is that we can think about how that should work. Should the statute of limitations be based on the time line in Earth years of the person accused of the crime? What if the crime is rape or aggravated assault — shouldn’t the time line of the victim be taken into consideration? And could we really prosecute someone for murder — which doesn’t have a statute of limitations in most places — if by the time someone catches up to the alleged killer everyone who knew anything about the crime is long dead, even if it was only 20 years ago in the defendant’s lifetime? And what about extradition, when by the time the person gets back it will have been 300 years since the crime?

  4. I have been working my way mentally through some of the similarities and differences supernatural creatures would have for law and order–plus the tiny group of judges who are the ultimate court of appeal for them. We might have some fun with what would matter to supernaturals, and what would matter when they clashed?

    • Oh, yeah. You’ve got me thinking about the superheroes as well as the paranormal types Phyl and John are discussing. Shouldn’t we have a legal system that addresses their greater power (and therefore greater responsibility) instead of the super-secret agents dealing with them a la Agents of S.H.I.E.L.D.?

  5. An issue that crops up for me both as a reader and a writer: when someone of non-mortal origin is living incognito in our everyday world — be they faerie or vampire or werewolf — they’re often portrayed as maintaining a normal human identity. But now that so much identity information is computerized, and so much else depends on having one or two key pieces of original documentation, I’m interested in how they might navigate the legal logistics.

    Specifically, two scenarios occur to me. One is the question of how an immortal character would go about establishing a successor identity, thus preserving his personal fortune so that once he “kills off” the old persona, the new persona can make use of his prior self’s assets. The second is the matter of how such a character — say, an elf recently arrived from Faerie — could realistically obtain a proper birth certificate, that being a prerequisite these days to acquiring a driver’s license and a Social Security number. [Obviously, identity thieves forge many of these sorts of documents all the time, but my impression is that that sort of fakery does not usually stand up to long-term usage. Also, in most cases they’re altering or copying existing information as opposed to creating a new record, which strikes me as a problem of a different order.]

    • When my time traveler arrived here from 1861, he cheated. I had him arrive in a foreign country, where after many hijinks the government got him a passport and papers. I cannot believe this will work twenty years from now, but for the moment there are still nooks in the world where you can acquire false documentation.
      And of course it does all unravel, later on!

  6. Kathi and John,

    Part of my Urban Fantasy is that the Wer community has formed an alliance with the FBI. The Feds don’t reveal their existence and launch witch hunts, and in return the Wer perform specialized missions–who do you really think found Hussein and Bin Lauden? The Wer also register within their community, black light tattoo morphing to computer chip, and behave themselves. They police and judge within their own community. I’m adding a bit of bureaucracy to handle new identities and relocation as they age. Since they have a low birth rate and high infant mortality–especially half breeds–I’m thinking those birth certificates, hide or don’t record death certificates, and save the records for future use by someone who needs it.

    Organization and banding together is the only way for the others to survive in modern society.

  7. Wow. You all are amazing. You’ve already raised many things I hadn’t even thought about and are making me re-think how to put all this together. I’m still planning to do some overview posts on how legal systems work designed to both provide guidance to those writing stories set in current or near-future times and to give those creating systems out of whole cloth an idea of what should be considered.

    But I think I will also organize discussion posts on how to deal with paranormals and what kinds of systems would work for future societies. From the thoughtful comments here, I think we could come up with lots of creative ideas for new and different legal systems. Law is inherently conservative, but I’m not. We should play.

    • Vonda, that’s fascinating. I’ve downloaded the journal article from the Stanford Environmental Law Journal that triggered that report in National Geographic (there’s a link to it in the article). This is very creative lawyering and perfect stuff for people thinking about legal issues in science fiction.

  8. Pingback: Legal Fictions: Technological Changes and the Law | Book View Cafe Blog