It turns out that Dave Hoffman and I have more in common than just being corporate law professors and bloggers. We also both like fantasy. In an interesting post, Hoffman looks at the turn towards what he calls "hard fantasy." Several of the writers he discusses are new to me, so I'm going to be adding some of his suggestions to my summer reading list.
Dave then turns to a question that also interests me; namely, the absence of law in fantasy:
Finally, it is worth briefly thinking about the relationship between epic fantasy and law. Although the legal aspects of fantasy role playing games are now well-marked out, there has been little work (outside of the Potterverse) on how fantasy authors imagine legal rules' role in society. If epic fantasy is read largely by adolescent boys, this missing attention makes a great deal of sense. You don't see law review articles about Maxim. But, if fantasy, or hard fantasy, has become a literature for the rest of the population, it is worth thinking about the complete and total absence of civil law in these books, and the light touch of criminal law more generally. Is it impossible to imagine lawsuits and magic coexisting in the same society?
In fact, it's quite easy to imagine them coexisting. The Lord Darcy series combined mystery and police procedural with fantasy. In one of the early Anita Blake books, a zombie is raised to give evidence on a disputed will. Yet, as Hoffman points out, it is rare. In contrast, as Paul Joseph discusses in an interesting essay, law is common in science fiction. (Does that suggest that fantasy is less concerned with "social, religious, moral, and cultural consequences" than SF?)
The absence of law from fantasy is especially curious given that most fantasy takes place in a vaguely Middle Age, vaguely English setting. Law was pervasive in the Middle Ages. You had a substantial body of common law (especially dealing with property disputes), constitutional law (Magna Carta), statutes, canon law, and even transnational law in the form of the Law Merchant. Since many in those same era also believed in magic, why should one not be able to combine them?
AUTHOR: Dave Hoffman
DATE: 05/20/2007 07:21:42 PM
Thanks for these comments. I think my last question could have been more precisely framed: can you imagine epic fantasy co-existing with a private/civil legal regime. I do think that there are quite a few examples of criminal law in books employing magic - the examples you cite are joined by Strange & Norrell and other detective magic fiction. But I think it is more than rare to see legal resolution of non-criminal disputes in epic fantasy. In fact, I can't think of an example, even though some authors, like Feist and Erikson, rest their plots onaspects of a credit based economy, which demands some kind of underlying law of contract.
Part of the problem is that many books are set in a loosely recreated medeival England, and I think that authors assume (wrongly, as you point out) that before, say, 1700 or so, there was no civil law, just the hanging magistrate. This could change, if hard fantasy catches on, but it would be a challenge to think about how the common law's rule framework would have developed in a physical world where the rules were so totally alien.
I agree with you that sci-fi has lots of law-talk. Indeed, one of the nicest lay critiques of common law decision making was in John Wright's The Golden Age.
Update: There is a new Law and Magic Blog. In the first post, Christine Corcos writes:
Professor Bainbridge also suggests that there isn't a lot of law in magic lit; I actually suspect that there is. Those of us in the legal academy interested in law and lit haven't yet turned our attention to it, but in literature departments literary types probably have done so. ... Consider Tolkein's The Lord of the Rings. Even though the rules governing the Shire are not immediately recognizable as English common law, they are recognizable as law. Think about Bilbo's disposal of his possessions. Property law! Think about Gollum's belief in his right to that ring. Finders keepers. Property law again. Frodo takes it from him. By what right? One of my current favorite tv shows is The Dresden Files, based on a series of books by Jim Butcher. That series mixes magic and law quite successfully. Indeed the series tracks two kinds of legal systems--human and magical--and Harry Dresden, the wizard hero, has quite a time trying to stay out of trouble with both sorts.
The point Dave and I were making, however, was that law is not a major plot element in traditional epic (especially sword and sorcery) fantasy. It is very much in the background. In LotR, for example, law crops up only indirectly when the Sackville-Baggins insist on seeing Bilbo's will. Hardly a key plot point.
It is true that law does crop up more often as a plot element in contemporary fantasy. Yet, as Dave points out in a comment, the law involved is almost always criminal rather than civil. I've read about five of the Dresden Files books and Harry's troubles are almost always with the criminal law. BTW, The Dresden Files is one of those rare cases in which the TV show is better than the books (the books have wandered a little too far off into fairyland for my taste). Let's hope the SciFi Channel renews it. (There's a website devoted to saving Harry Dresden.)
The same is true of the Anita Blake series, even though an early Blake novel introduced the fascinating premise of raising a decedent as a zombie to help settle a dispute over the decedent's will. Unfortunately, instead of exploring such potential uses of magic, Laurell K. Hamilton decided to focus all of her attention on sado-masochistic sex and gory violence.
I still maintain that it is much harder to find law - especially civil law - playing a major plot role in fantasy - even contemporary fantsasy - than in science fiction.
I do have an idea for a fanfic project that would put law front and center, however. The backstory of the Anita Blake series includes a Supreme Court decision granting vampires "equal rights," as a result of which you need a warrant to kill them (something Blake then proceeds to violate repeatedly and in ever increasingly messy ways). I can't remember if we're ever told the name of the case (perhaps my colleague and Anita Blake fan Eugene Volokh will remember it). Presumably, the Supreme Court concluded that vampires are persons for purposes of the 5th and 14th Amendments, such that they're entitled to due process before being executed. Query whether the court also held that they are citizens for purposes of the privileges and immunities clause? In any case, a fun law and lit project might be drafting the briefs and even coming up with a transcript of the oral argument.