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The Lawbringer: Know your (legal) lore

Amy Schley

Welcome to The Lawbringer,'s weekly feature that explores the intersection of the World of Warcraft and the law. I am a third year law student acting as the crossing guard at this intersection, trying to avoid getting run over myself.

Last week, I promised we'd examine European contract law. Silly me, I was thinking that this would be a matter of snooping through Wikipedia, checking a few books out from the local law library, and banging out a short sweet informative column.

Remember that feeling when you first leave Northshire Abbey or Red Cloud Mesa and you realize there's a whole wide World of Warcraft out there? That has been this week's experience in learning about European contract law. While I would love to explain all the cool things I've learned, that would take a book, not a 1200 word column. I'll cut this material down to manageable chunks. This week, we'll be limiting ourselves to a discussion of how the two systems of law impact how WoW will be treated under each one.

Systems of Law

The 195 countries on the planet can be sorted by their legal system into categories: common law countries, civil law countries, tribal/religious countries, and communist/socialist law countries. We'll generally ignore the latter two categories, as theocracies, kingdoms, and dictatorships aren't exactly known for their brilliant, influential, or even fair jurisprudence. If you want to know how to win a lawsuit in North Korea, Saudi Arabia, or Iran, I can only suggest prayer and/or bribery.

Civil Law

We'll begin our examination by discussing civil law, but here we run into our first pitfall. American law is traditionally divided into administrative, criminal, and civil law, the last being identified as law regulating citizen to citizen interaction. A civil law system is not that, and I'll refer to those citizen/citizen interactions as "private law" to minimize confusion. As used in an international context, a civil law system refers to a system of law that comes from a code or legislation, as opposed to law created by judges.

"Civil law" is so named because it traces its roots to the Corpus Iuris Civiles, or Body of Civil Jurisprudence. (In the Latin alphabet, Jehovah begins with an I. Because Latin has no J. Why there's a J on the floor, only Spielberg knows.) This body of work was ordered by Emperor J/Iustinian I from 529-534 CE, and it's a compilation of the Roman principles regarding interactions between citizens. (While Roman private law was well developed, Roman criminal law was very haphazard, with governors possessing immense power and few rules. The Biblical trial and execution of Jesus is typical of the due process of a Roman criminal trial.)

While Roman law fell out of favor after the fall of the Empire, it was studied by scholars during the Middle Ages. During the Enlightenment (1700s), countries such as France, Prussia, and Austria began crafting comprehensive law codes, based on the Roman private law but reflecting the Germanic influence of the Middle Ages. The first modern law code was ordered by Napoleon I, and it was designed to deal with all the relationships between citizens and the state. This code was instituted in every French colony and conquest and inspired other systematic law codes, including the highly technical German code that has been adapted across the world, including the People's Republic of China.

At this point, a civil law system is the most common form of legal system. If you don't live in a theocracy, dictatorship, or a former English colony, odds are you are under a civil law system. This includes Louisiana and Quebec. Civil law codes in common law countries just make life more interesting.

Civil law countries have distinct characteristics, though given the diversity of the countries involved, I have to speak in generalities. First and foremost is the power of the judge – he is normally not a lawyer but is specifically trained as a judge. She acts as fact finder in an inquisitorial system, not as a referee between two adversarial lawyers. Juries are not as important and consequently evidence does not have to be as restricted. Oftentimes, civil law countries have divided court systems, in which criminal matters are heard and appealed to separate courts from those hearing private matters.

Common Law

Common law is the peculiar system found in former English colonies. Common law as we might now recognize it began under the reign of Henry II who sent out judges to rural England to decide cases and who would then return to London to discuss their cases. These cases would then be precedents that all the judges were constrained to follow.

As an example of how this works, we'll look at burglary. You may be thinking, "Oh, burglary, like when Horace and Jasper dognap the puppies in 101 Dalmations." But why is that burglary? A long line of cases held that burglary could only happen at night – during the day it would have been housebreaking. Jasper had to push open the door and enter – being invited in and then stealing the puppies would have been mere robbery. They had to invade a home – had they broken into a shed, it would have been theft. And finally, the two henchmen had to have entered with the intention of committing another felony, in this case theft – entering without such an intention would have been merely the separate crime of breaking and entering. No law was written to define burglary as breaking and entering a home at night with the intention of committing a felony; rather judges had to deal with cases in which some of these elements were present and determine the differences between these crimes. Now, imagine this same process for every facet of the law, and you'll have an idea of the complexity of the common law system.

In addition to this complexity, the other hallmarks of the common law system include adversarial lawyers acting as advocates while a judge is a referee. The judge decides issues of law while the fact finding is left to a jury that is protected from information that might unfairly sway their opinions. Judges are bound by the precedents of higher courts while being free to create new precedents for new legal questions, and judges on the highest courts are bound only by their respect for tradition from changing the precedents. (This being what the politicos refer to as activist judges.)

However, just as Mencken said that "for every complex problem, there is a solution that is simple, neat, and wrong," this description of a common law system skips over large parts of the legal system that actually exists in England, Canada, the United States, Australian, and fellow Commonwealth countries. While large parts of private law remain case based and judge driven, much of the criminal and administrative law has been codified. While a judge in South Carolina, which still uses common law precedent for its criminal law, can modify the definition of the crime, judges in Texas and California, for example, are constrained by the code drafted by the legislature. The common law systems currently used are generally a combination of the "pure" systems, mixing codes and precedents where necessary.

Legal Systems and WoW

So, we've slogged through history, geography and legal theory in the last 1200 words. But what does all this mean, especially in the context of the World of Warcraft?

One of the fundamental divisions between common law systems and civil law systems is that a common law system, since it's bound far more by precedent instead of statute, is able to adjust more rapidly to changing legal conditions. Whether or not Germany can recognize virtual property has to be decided by statute, while the US could recognize it if anyone convinced five justices of the Supreme Court to do so. On the flip side, civil law countries generally place a higher value on having judges educated more deeply in their subject areas. So while trying to convince the US to adopt virtual property as valid property may only require five votes, it means convincing five people who have very little technical background (or at least convincing their law clerks, who were busy studying at Harvard and Yale instead of playing WoW).

Frankly, I think the civil law system will do better a better job dealing with the challenges that arise with MMORPGs; however, Blizzard will remain located in the United States for the foreseeable future.

Now that I've laid out a framework for understand these two systems, next week we'll get to European contract law. Promise.

The Lawbringer is provided for your entertainment and enlightenment and is not legal advice. If you have a personal legal issue, get a personal lawyer. If you have a general question about the law, email lawbringerjd at aol dot com or tweet @wowlawbringer. Replies are subject to my time constraints – I'm in law school, after all.

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