What is Law? That has been a question addressed by philosophers over hundreds of centuries and we have yet to find the definitive answer. I doubt we ever shall since cultures and civilizations are in a constant state of change. We can hark back to the ancient regimes and peruse their codified rules of behavior, prescriptions for living in a harmonious manner with others, and the duties of both king and subject. One can certainly look back in time to Athens, the birth of democracy, and ask what went right and what went wrong for they had some answers to living in a community. And certainly that period called the Enlightenment started our course towards modern jurisprudence. Now we see efforts to define and prescribe ideals such as justice and fairness, most of which seem to fail upon that common utility of individual differences. If one bases justice and fairness on political belief which cannot sustain careful evaluation then such ideals fall into the category of political weapons that force others to believe in a most uniform manner. That is an impossibility for any group of individuals no matter how unified the group might be in the ideal.
Law is about behavior and expectations of behavior in ourselves and in others. Law is about human relationships in all their inexact workings. Before the Theory of Relativity, both General and Special, before Quantum Theory, the world’s great physicists had declared that all the known laws of physics had been discovered and all that remained was the tidying up of the world accordingly. The universe was indeed, this great mechanical contraption where all movements could be computed with great accuracy. The universe was a giant clockwork, ever constant in the passage of time and motion. There were those who thought otherwise and who saw the cracks and the imperfections in that ideal of a mechanical universe. The rest is history and we still cannot see an end to the study, the speculation, and the discovery of new laws and perhaps greater ideals in Physics. Indeed, we have learned a great deal more about human behavior and how that behavior shapes our immediate world. Philosophers have not kept up with the times, their practice of thinking has generally been confined to the old norms of though patterns they learned in the university. Metaphysics still deals with that non earthly realm of being, the spiritual world while natural philosophy has turned into Physics, Chemistry, Biology, and other sciences and pseudo sciences such as economics and sociology, neither of which has much basis in scientific fact.
The field of Psychology has become a more important start when thinking about Law. Natural Law was seen as the giver of law to mankind through the application of laws that were deduced from nature. After all, didn’t nature govern her domain with an iron hand? Break the law, if you could and the consequences were severe, even death. But nature, as a entity only exists in that anthropomorphic manner of fictional belief. Mother nature never existed except in the minds of those who believed. Much of our body of common law is based on observation and custom. What are these customs, what is observed? Human behavior in action. Regardless of the social structure we can see some universal and general behaviors within the human population at hand. Primatologists observe behaviors among groups of primates such as chimpanzees and apes. Other biologists study behaviors in other animal groups such as wolves and large cats and bovines. We have come to observe that in these societies there is a social order and it has, as its basis, such qualities as size, aggressiveness, and intelligence. In the animal kingdom the sexual roles are assigned and only in a few exceptions are they ignored and even then there is usually a reversion to type. You see, not all members of the group are born equal and the weak tend to die early while chance occurrence culls the rest.
We can see that there is no total equality in the natural world. Even ants and bees have their assigned differences and roles. Every worker and every soldier anu is a clone of the queen and made to develop into the assigned genetic role through nutrition. The worker bees feed the queen larvae “queen jelly”, something they neither eat themselves nor give to the worker larvae. The queens are not equal since only one will survive to inherit the colony while the old queen flies off to establish a new one. This should tell us something about the ideal of equality, that it exists only in terms of intellectual rights, not purely physical ones. The man whose stature only reaches to five feet will never be the equal on the basketball court to that on the man whose stature reaches seven feet. It is only when both men come before the bar of justice that physical height makes little or no difference. We could call this a metaphysical difference between us as humans and the rest of the animal world. For in a sense, law has to do with that other worldly thought. A contract is not so much a physical piece of paper as it is thought and deed. You and I must come to an understanding, a meeting of the minds that is unimpaired. We must exchange consideration, that is some form of remuneration must be given. And there must be performance, that action the completes the transaction. Marriage is a contract, one that is constantly being performed. The understanding may be based n love or it could be based on convenience, it doesn’t matter as long as both partners know and understand that meeting of the minds. This is one of the reasons why so much resistance has been put forth to changes in marriage law and status. For many cultures it was God, or Gods, who were the arbiters of trial and tribulation in a marriage. The two individuals married before their god, in his sight, according to their faith in their god. This is a meeting of the minds. Any failure of the marriage was ultimately judged by god. Now if I live with a woman without the vows of marriage, what do I know as to the meeting of our minds? Formal marriage laws give real guidelines for understanding marriage, for the meeting of the minds because the formality demands it. Living together without benefit of clergy or legal contract means that our understanding, our meeting of our minds is vague, at best.
The consideration part of marriage are the vows and the rings exchanges as token of good faith in performance of this contract. The addition of each other to assets and liabilities is a form of consideration. In living together, we might be able to put each other onto the medical insurance provided by our employers and we may put each other on the deeds and mortgages and other living arrangements Each act of consideration testifies to a deeper meeting of the minds. But to live together without doing more than sharing a bed, a roof, well what meeting of the minds can one draw from that? If I do not introduce her as my wife then she has little legal standing. And if she has my child only the child has a claim upon my fortune and my name. Performance is mostly about behaviors, what actions have been committed to complete the contract? You see, a marriage contract is never complete until the death of one of the partners or the voiding of said contract. If you contract me to mow your lawn and halfway through the performance of mowing that lawn I break my leg, the court will not force me to personally finish the job. I may, on the other hand, need to hire someone to finish that mowing of your lawn. On the other hand, if I am struck by lightning, that is seen as an act of god and if I survive the electrification I will be excused from finishing the performance. It seems that acts of god pretty much void everything.
Now law can only govern behavior to a point. If I am a machinist, there are no civil statutes that precisely tell me with is the approved way and the prohibited way to operate my machine. There are physical laws that will take care of some of that and there are generally accepted principles of work that govern mush of the rest. But there are areas on operations that I can exercise control and do the work my way, according to my pleasure. If I walk down the sidewalk there is no law that says I can’t weave or that I must walk in a straight line or that I may not have my hands in my pockets, or one of a hundred method and manners of walking. I may attract the attention of a policeman who may have reason to believe I am drunk and disorderly, and so arrest me for such a misdemeanor. But unless he can show conclusive evidence, such as a blood test, a breath analyser test result, he has no case and no conviction. Unless the system is corrupt. We can save that consideration for next time.