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Law & Justice

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Jun. 21st, 2017 | 06:47 pm

I love books that have as a central conflict the disjunction of law and justice. Unsurprisingly, you'll find that as a theme in many of my novels, along with the question "who gets to count as people?" and that's certainly true of my contributions to the Pride Storybundle. Of course, both Point of Hopes and Death By Silver are fantasies structured as mysteries, which automatically foregrounds the question — most mysteries use the tension between law and justice to raise the stakes of their plots.

With Point of Hopes, this was a conscious decision, and was part of the reason we chose to make it an early modern setting: we were interested in the ways that different countries in early modern Europe tried to deal with the question of law enforcement, and in the tension that's inherent in an evolving system. We had both been intrigued by the early modern English concept by which the judicial system - the law - was responsible for arrest and punishment of malefactors, but had no real responsibility or mechanism for investigation of crimes. It was the responsibility of the victim to name the culprit, and until that was done, the constables and courts could not act. In many cases, of course, this was not a problem — easy enough to name the person who’d directly attacked you, or the person who’d threatened you — but when the victim didn’t see the criminal, or had no likely enemies, there was no procedure by which the state, from the Queen herself down to the neighborhood constable, could take action on the victim’s behalf. Instead, victims resorted to stratagems intended to provoke a confession, or consulted cunning men and women who used a combination of magic and rough psychology to point to a malefactor. They might accuse the least reputable of their neighbors, and hope they’d gotten it right, or make a deal with extra-legal “thief-takers” who promised, for a fee, to return stolen goods. The state, in its constant war against the Catholic menace, also relied on extra-legal actors — intelligencers, informers, and agents provocateurs — to name potential traitors; there was no other mechanism by which such plots might be found out blocked. Both Christopher Marlowe and the men who murdered him were part of that world.

But of course we’d already written that world, in The Armor of Light. We wondered instead what a world would look like in which the first steps had been taken to make investigation a state duty. Suppose you had a small group of people — the points — whose job it was to take citizens’ complaints and sort out the likeliest truth. They’d very likely have evolved out of a city militia, and originally combined that function with the task of night-watchmen; their role as investigators, servants of the judiciary, is relatively new to their society. That last, obviously, gave us some immediate tensions to play with, and to weave into the class tensions that fill the city. Is it proper for a commoner to enforce the law on a noble? Underneath all of that, however, is a central question: what is legal, and what is just; do the two questions run parallel, or do they lead to very different answers?

The same question comes into play in Death By Silver, but from a different angle.  Law vs. Justice is also deeply relevant to the queer community — it’s only very recently that we’ve been able to get the laws criminalizing homosexual acts repealed in many parts of the world. Writing about gay characters in a Victorian setting means that the characters must confront, at some level, the ways which they are outside the law, and the ways in which justice cannot serve them. And yet… The law in England before 1885 made sodomy a felony punishable by death or (after 1861) life imprisonment; however, in order to secure a conviction, the prosecution had to prove penetration, and it was notoriously difficult to find a jury that would convict without overwhelming proof. The change in the law in 1885, which criminalized “gross indecency” between men, and which punishment considerably less (2 years’ imprisonment, with or without hard labor) was at least in part a response to the failure of juries to bring convictions under the older law. There is something irresistible, at least to me, in the idea of people outside the law attempting to bring justice, and Ned Mathey and Julian Lynes are both deeply affected by it. Their public school left them somewhat skeptical about the benevolence of the law, but made them both determined to bring justice where they can, regardless of the risks.

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