Legal systems of Themiclesia

The legal systems of Themiclesia are the pre-modern modes of legal thought that gave rise to penal and civil law immediately preceding the introduction of Casaterran jurisprudence in the 1700s.

Penal law

Penal law is the oldest extant legal jurisdiction in Themiclesia, which survived due to its codified nature, importance to traditional philosophies of governance, and function in the bureaucratic tradition.  The primary purport of the penal law is stated to be "forbidding of evil" (禁惡, krjemh-′ak). In many cases, crimes do not have obvious victims but remain punishable. This is encapsulated in the word ′ak "evil" in Shinasthana, cognate to ′agh "hate", which is often held as the opposite of hu′ "prefer". Thus, philologists understand ′ak to describe things that are subjectively offensive. The philosophy is also gleamed from terminology used in criminal proceedings, where guilt is summarized by the phrase pje-brjanh "inconvenience". In earlier centuries, ′ak may have represented religious pollution or a similar concept, but by the start of the Common Era it was understood as an impediment to the state. Later scholars have concluded that the the criminal offence is intrinsically evil in its nature; it is not punished because it generates a tangible loss.

In historic treatises about penal law in Themiclesia, its purpose in statecraft as an incentive is most emphasized. Many authors encouraged the understanding that rewards and punishments are the two foremost tools wielded by a successful ruler. Between them, punishments came first: if a ruler cannot reward, then the lack of punishment is also a form of reward, punishments generally cost little to impose, and frequent rewards create expectations on the ruler, becoming an impediment to arbitrary rule. Theorists also identified a perpetrator's different interests that could be punished: his honour, limb, property, and affections. In view of its function as an incentive to compel obedience, all four were considered legitimate sujects of punishment, regardless if they are criminal or not. The extreme form of this doctrine is the "three clan eradication" (夷三族, li-srum-tsok), where punishment is explicitly inflicted on the innocent and uninvolved, so that the perpetrator may feel burdened by the consequences of his actions. Under this school of thinking, the purpose of punishment is to impose a disproportionate loss: if a man loses only as much, he is not deterred by the law.

While this thinking encourages very thorough and harsh punishment, it discourages unpredictable and inefficient punishment. It argues that if punishment is to serve as an incentive to behave a certain way, that way must be free of punishment, absolutely if possible. It is hypothesized that if two options exist and both lead to an equal punishment, then subjects would lose the incentive to behave according to the state's wishes; if one led to a lesser punishment, then it is only more attractive by the margin away from the severer one. Since infliction of punishment ultimately leads to dissatisfaction, it is preferable that the desired option be free of punishment completely. E.g. if one option led to 2 units of punishment, and the other led to 4, this doctrine proposes 2 units be reduced from both options, since the one preferred by the state is still 2 units more attractive than the one prohibited; even if the subject ultimately decides against the state, he would still suffer a lighter punishment and, therefore, bear a smaller grudge. This thinking, in later ages, also led to some scholars to argue that Themiclesian penal law discourages excessive punishment, though this has been criticized as romanticizing.

In the political interpretation, this meant in each case where the government wished to compel a certain behaviour, every alternative should lead to a form of punishment, to maximize the attractiveness of the option the state has laid out. In order to convince the subject that his best option is the one chosen by the state, the government must not only relentlessly legislate but also seek out offenders and punish them. According to this theory, which is summarized by an anonymous writer in the 1st c. CE, "only the ignorant complain laws are too many, for the wise complain that there are not enough." Some have commented that it also presumes all subjects of the law are rational actors, who can be moved by the slightest difference in expected benefits or losses. Failing that, it also supposes that the state can adequately analyze the mental state of all subjects so that only one option, the one chosen by the state, will remain the best possible option. This need is later considered a duty of the Tribunes, who are "skilled in the arts of inflicting punishment".

Tribunals

There is very little literature on the origins of Themiclesian jurisprudence.

Originally, it is thought, all government departments could make judicial or quasi-judicial decisions within their jurisdiction, e.g. the Exchequer decided whether revenues have been remitted in correct quantities, and the Master of the Horse decided if horse-raising laws have been followed. Each department would have maintained royal rescripts that related to its operations, which accumulated over time and became something akin to a codex of laws. Yet not all departments had an equal degree of exposure to the public, so cases concentrated in those administering revenue, land registration, natural resources, and military service. In them, a judicial bureaucracy worked somewhat independently from the rest of the department. The sole exception to this rule was the Justiciar Department, which reviewed decisions made by other tribunals and decided cases to it submitted. This became the general model of Themiclesia's judicial system, on the national level.

Within this system, it was the litigant's duty to cite relevant laws to support his case.  Provided an adequate argument based on related laws and precedents, it appears tribunals usually applied laws according to a consistent logic. There were both passive and active motivations that compelled judges this way. Passively, in internal reviews, judges that made rulings against the letter of the law were punished; actively, litigants who though rulings contravened laws could appeal to another tribunal. Indeed, when laws have been forwarded, few rulings were made against them, and all instances hereof were overturned on review. But such cases represent only a minority of those that have survived, and usually occurred between individuals of means. In other cases, formally similar circumstances resulted in different judgments because laws or arguments were construed differently. Judges possessed much latitude in such cases. The multitude and inaccessibility of laws resulted in widespread discontent and corruption, but the study of laws (律學) remained a privileged for much of pre-modern history.

See also

• Themiclesia