By Sir Hippocrates H. MacKai / 13 Sep 2005
Original source: http://hippogradlaw.blogspot.ca/
As posted in the Naivetry Reference Library.
The consensus in the old Meritocracy was that it operated on a system of common law, but to what extent is this true? Are NationStates regions truly reflective of real-world legal jurisdictions, and are they even capable of being so? Perhaps more importantly, what legal system is most suitable for a region, and why? These questions are rarely asked, but they are nonetheless interesting, and this review has always been the answer to a question nobody asked. The intellectual interest of these questions alone makes them worthy of exploration here. The practical applicability of the answers makes it our duty to explore them.
First, we should not that the law comes in two forms: common law and civil law. Most systems are mixtures of the two, most notably Scots Law and US Law, and civil law varies in strength, form the statutes of common law countries to the Napoleonic Code of France and the Justinian Code of Ancient Rome. The difference is quite simple: common law is law that arises from the rulings of judges and from conventions; civil law is law that is enacted by a legislative body. We can see immediately, then, that no region can rely on the common law alone, as most have either a constitution, treaty or other statute that binds them as a region. The question then is not ‘civil law or common law?’ it is ‘to what extent do each play a role?’
For varying and mostly understandable reasons, many people prefer the civil approach – to reserve the creation of law to the legislature. Such a decision makes perfect sense in the context – the majority should make the laws that they voluntarily abide by. In the Meritocracy, which has seen itself as the bastion of the common law because anything else would be too French by half, it is still the civil law that dominates. The Meritocracy is an instinctively Napoleonic group when it comes to law, often preferring legislation to rulings. The Accords belie this to some extent, with their reference to Tribunal rulings ‘informing jurisprudence’, but even they make clear the preference that the Praetor should replace a ruling with a new law.
The West Pacific and The North Pacific are more favourable to common law, perhaps because they have a higher regard of judges. The Courts of these regions are frequently called upon to make rulings, which are then respected and abided by. It is often the case that a law should be rejected as too bureaucratic, with a court judgement used in its place. The Pacific, on the other hand, makes no pretensions about its legal system – the law is written down in its entirety, with no judicial review, and is enforced ruthlessly and efficiently. One cannot imagine the Superior Court dealing with so many prosecutions so effectively if it faced the distraction of interpretation and creation of law. It has yet to be seen which path ACCEL will favour, but the balance seems rather equal for now, perhaps with a preference for common law to emerge once the courts are operational.
NationStates law cannot, when in a perfect state, be reflective of the perfect real-world legal system, for one simple reason: in real-life, we are bound to follow the laws of the country we live in, and uprooting ourselves is difficult. In NationStates, we can move more easily to a system that suits us. RL systems must give more weight, therefore, to the protection of a minority that cannot escape the petty whims of the democratic mob. In NS, we can afford to give more weight to the majority for the reason that a persecuted minority can easily find greener pastures.
The perfect NS legal system, then, is mostly civil, codified law, with an amount of judicial interpretation and review present for the protection of constitutions. Constitutions are what bind regions, and obviously are entrenched to the extent that they are not subject to the concept of parliamentary sovereignty. Courts must be capable of upholding these laws against new legislation that conflicts with them, and it is obviously for the courts to decide on interpretation, but in the main, the creation of law should be the province of politicians, a nd not of judges. If there is one real-world ideal that transfers easily to NationStates it is the legal principle of checks and balances.
Sir Hippocrates H. MacKai is Consul of the Meritocracy, Judge Advocate General in the Pacific, Councillor in TWP and Master of the Rolls in ACCEL. He is presently drafting Title X, the law establishing a legal system in ACCEL.