Archive:Law of the Holy Xhovian Empire

The Law of the Holy Xhovian Empire, otherwise known as Imperial Law is the Common, Civil and Noble legal system of the Holy Xhovian Empire, comprising mainly Criminal law, Personal law and Aristocratic law, each branch having its own courts and procedures.

Principal elements of Imperial law

The Empire's most authoritative law is Imperial Legislation, which comprises Imperial Statutes. In the absence of any Imperial law, the local legislation comes into effect, which is decided by the various local governments of the Empire. Beneath the local legislation, Imperial Common Law is observed, to make up the rest of the law, and the bulk of many cases, based on judicial decisions, custom, and usage. As well, Noble Law, which operates similarly to Common Law, is determined by the decisions made by the Nobility in the Courts of the King, Courts of the Prince, Courts of the Duke and Courts of the Marquis (depending upon where exactly one is), in the areas where these apply. It is characteristic of the common and noble law to adopt an approach based "on precedent, and on the development of the law incrementally and by analogy with established authorities".

Common law is made by sitting judges who apply both statutory law and established principles which are derived from the reasoning from earlier legal decisions, and noble law by the nobility in their courts, applying the same principles (but with the nobles in many areas being granted more freedom to change and bend legal rules to the case, as in many areas they can determine the statutory law). Common and noble law can be amended or repealed by the local Government (in some cases), Parliament or the Emperor.

Not being a purely civil system, Imperial law has no comprehensive codification. However, most of the criminal law has been codified from its common law origins, in the interests of certainty, consistency and ease of prosecution. This leads to there being some crimes which have no statutory law, but are illegal nevertheless, like desecration of corpses.

The laws and legal systems of the various subdivisions of the Empire vary significantly, with the more autonomous regions (the 3 Kingdoms and Free Imperial Cities especially) having significant differences in law to the lower divisions, which are afforded less autonomy in law, and must either use Imperial law if it exists for their specific case, or refer the case up to an Imperial Level court that can rule if presented with a case on a matter they do not have the authority to rule on.

International Treaties such as the Treaty of Lelig (the treaty creating the Special Relationship between the Empire and Xhodiar) have effect in Imperial Law only when signed off and adopted by the Emperor himself. This remains one of the major legal roles of the Imperial Crown.

Legal terminology

Criminal law, Aristocratic law & personal law

Criminal Law is the law of crime and punishment whereby the Nobility of the subdivision, or Imperial Crown (depending on the court in which the case is heard) prosecutes the accused, usually via a prosecution service. Personal law is concerned with tort, contract, families, companies and so on. Personal law courts operate to provide a party who has an enforceable claim with a remedy such as damages or a declaration. Importantly Noble Courts can deal with both types of law, whereas most other courts operate exclusively in either criminal or personal law. Aristocratic law however is more specific. Taking a role similar to Constitutional Law in other nations, Aristocratic Law as an area of law is to do with the matters of the nobility, their power and responsibilities, and use and abuse thereof. Aristocratic Law is only discussed in the Court of Noble Justice.

Common law, civil law & noble law

In this context, civil law is the system of codified law based on legal codes, that makes up the majority of top level Imperial Statutes.

By contrast, common law is the more archaic variety, built upon case law and the decisions of judges.

Noble law as a type of law, is the most unique of the Imperial Law types, based upon the rulings of the nobility in their courts. It takes elements of common law, especially with regards to respect for case law over written decree, but is much more flexible, and to the decision of the relevant noble. Noble law is the oldest of the legal systems in the Empire, as it was used prior to the codification of law, and prior to the creation of judges en masse as a legal class, when law was only accessed by taking your complaints to the local noble.

Legal remedies

A remedy is "the means given by law for the recovery of a right, or of compensation for its infringement". Most remedies are available only from the court, but some are "self-help" remedies; for instance, a party who lawfully wishes to cancel a contract may do so without leave.

Sources of Imperial Law

In the Holy Xhovian Empire, there is a hierarchy of sources, as follows:

• Imperial Legislation
• Local legislation
• The case law rules of common law and equity, derived from judicial precedent decisions, as well as noble law as they apply to the particular subdivision.
• Imperial or Noble Decree
• General Customs
• Books of authority including Xhiuist scripture

Statutory law

Primary legislation in the Empire may take the following forms:

• Imperial Statutes
• Crown Command

Demands of Xhiu are a sui generis set of legislation.

Secondary (or "delegated") legislation in the Empire includes:

• Local Statutes
• Noble Decrees
• (In Niofe) Presidential Commands

Statutes are cited in this fashion: "On Title Year", e.g. On The Nationality and Transport of Infants (1996). This became the usual way to refer to Acts from 1868 onwards, with the Talisian Reforms.

Common law

Common law denotes, in the first place, the judge-made law that developed from the early Middle Ages. Specifically, the law developed in Kelor's Court of the Common Man and other common law courts of Alcia that existed prior to their states being integrated into the Empire, and this law as further developed after those courts in the Empire were reorganised by the law On Common Law and the Courts of the Empire (1868).

Common law is described as "The unwritten law of the Empire, administered by the courts, which purports to be derived from ancient usage, and is embodied in the older commentaries and the reports of abridged cases" in Kariszeki's Legal Dictionary (3rd Edition, 1979), as opposed, in that sense, to statute law and Noble law.

Early development

In 1421, the concept of "the limit of law" often applied in common law was defined as being any time before summer solstice 1387 (i.e. before the Act of Unity with Yhael).

Since 1134, Keloran and later Imperial law has been a common law, not a civil law system; in other words, no comprehensive codification of the law has taken place and judicial precedents are binding as opposed to persuasive. In the early centuries of Imperial common law, the justices and judges were responsible for adapting the Keloran system of Demands to meet everyday needs, applying a mixture of precedent and common sense to build up a body of internally consistent law.

Following the theory of the "separation of powers", only the governments have the power to legislate; but in the event of a statute being ambiguous, or non-extant, the courts have exclusive power to decide its true meaning, using the principles of statutory interpretation. Since the courts have no authority to legislate, the legal fiction is that they "reveal" (rather than "create") the common law. The Supreme Court of the Empire took this "revelation power" a stage further in IC v Matti, where, in creating the new crime of "conspiracy to pollute the faith of Xhiuism", they claimed the court had a "residual power to protect the moral welfare of the Empire".

Precedent

One of the major challenges in the early centuries was to produce a system that was certain in its operation and predictable in its outcomes. Too many judges were either partial or incompetent, acquiring their positions only by virtue of their rank in society. Thus, a standardised procedure slowly emerged, based on a system termed "Holding to the Word". The doctrine of precedent which requires similar cases to be adjudicated in a like manner, falls under the principle of Holding to the Word. Thus, the reason for decision of each case will bind future cases on the same generic set of facts vertically in the court structure. The highest appellate court in the Empire is the Supreme Court of the Empire and its decisions are binding on every other court in the Criminal and Personal (but not Noble) hierarchies which are obliged to apply its rulings as the law of the land. Then, the highest court of each subdivision binds the lower courts, and so on.

Noble Law

Noble law is that law in the empire which is decided in the Noble Courts, and is by far the oldest type of law in the Empire. A Noble court can hear any offence aside from Aristocratic Law matters, which must go to the Court of Noble Justice. Noble Law is a very individual type of law, insofar as all Noble trials are undertaken with only one noble serving as judge, and their word in sentencing, or in resolution being final.

Noble law courts are the estates of the local nobility, and to that end Noble law does not apply in Niofe. There are also some other subdivisions that have rescinded their Noble law systems, but these are a minority.

Noble law's underlying principles are closer to common law than civil, with a key exception. Whilst Imperial Statutes apply in Noble courts, the local ones are only very loosely required (many do still strictly follow them). The Imperial Statutes are the only fully binding factors on a Noble ruling, otherwise, all other factors are merely persuasive, including local law. Moreover, the noble has greater options when deciding resolution, remedy or sentencing for a case, as they are not limited in the same way as other courts, and can issue sentencing freely, or the "Conditional Remedies" as they are called, which require more direct methods of remedying an issue, for example a neighbour who has broken their neighbour's fence would be required to personally repair that fence.