hinduwoman

Usually law is thought of as something passed by the government of a country.
But I think that there can be another definition of law --- viz., that which is sanctioned socially. After all, social agreement to accept something as law among the majority of people is the basis of laws in any country.

This occured to me when I was thinking about my legal status:
According to strictest interpretation of law, I am a bastard since my parents cannot produce a marriage certificate or birth certificate, because 30 years ago these things were not taken seriously. Most people I know are in the same situation. However I would like to see anyong argue on this basis in any Indian law-court; the courts will agree that legally speaking I am illegitimate and then found loopholes to prove why I am not(probably because they are in the same boat). Because my parents have been married in the socially approved rituals with witnesses, that would be held to be a legal marriage and the fact that all our acquaintances ate during the hindu equivalent of baptism ceremony would be regarded as proof of my being their daughter and legitimate. As regards documentary proof, my parents can produce their wedding invitations and invitations at the later feast: most would not be able to do that either.

This attitude about law is particulary true in rural India. Law passed by govt. is usually regarded as something either incomprehensible or something that can be disregarded in favour of custom and religious laws. It is social sanction that matters. For example, in a murder case in an Orissan village, the village elders decreed that the murderer give over his house to the victim's widow. Though this is of course not legal, everyone accepted it. Similarly, in a small town, two lesbians got married; the magistrate explained that by law they cannot be considered a couple, but everyone in the town agreed they are and the rumour is the magistrate turned up at the wedding reception to bless the couple anyway.

Therefore I contend that real law is what is socially sanctioned.

Gurdur

Uh, Hinduwoman, the legal system has beaten you to it by about 2,000 years.

The British legal system includes a vague body of law termed "common law", based on what was socially accepted among the "lower" classes a fair while back; as far as I know, the Indian legal code also owes a bit to the British legal code.

And the British legal code of "common law" was in its turn eventually derived from a very similar legal system of the ancient Romans.

owleye

Hinduwoman...

The topic you have raised is a good one, and one that has been around since the dawn of philosophy. In this post-modern era, the number of "legitimate" theories has multiplied, and one might suspect that we ought to give up this quest.

With respect to the question of the legitimacy of marriage, viz., your legal status, I think it is worthwhile suggesting that documentation is not equivalent to the instantiation of it. Documentation would or at least could represent evidence before a court whose legal judgement intends to resolve a dispute, if there is one, but such record keeping does not in itself designate the legal status.

This is true, I believe, for all laws. The law is not what happens to be written down, but is rather what was in the legislative intent. This theory of law, of course, leads to a number of problems, since legislative intent is highly contextual and as the context itself changes we may find ourselves divided into two camps: (1) those having judicial restraint, where we try to interpret the law as if the context hadn't changed -- i.e., that the law itself represents justice, and presumably is eternal -- and (2) those aspiring to judicial activism, where we try to interpret the law in accordance with its changed context -- i.e., in the light of eternal justice. In the former, the law remains the same, whereas in the latter, the law progresses.

owleye

Laurentius

AVE

As long as the community to whom the norm or decree supposed to apply accepts it as such, that norm or decree will become law. Acceptance is imposed under the force of state or local penalty.

I'm a city dweller by excellence, and in childhood I (wrongly) self-educated myself to scorn rites and traditional habits, considering the written (state) law the only valid and exhaustive. As I grew up, the overwhelming power of traditions became obvious.

Let me give you the examples of some traffic regulations here, in Bucharest. Anyone driving should wear the seatbealt, but few do and the police barely care (although driving without the seatbelt remains a legal risk). It's an example of law that lacks authority, and fails to be a real law. On the other hand, when one dies it is one's family's duty to take the dead one, on the final journey, slowly on the road, with everyone walking behind the leading van and disturbing the traffic - yet no policeman would ever think of telling the cortege to hurry up or something.

Law is therefore a matter of authority.

hinduwoman

That is exactly my point. Indeed, before the British came along and placed too much emphasis on written law, everything was common law. Nowadays in India there is too much concern with legislation passed by government, which in my opinion does not address the real problem.

Just a thought ...

fwh

Hinduwoman...

There is a paradoxical relationship between law and social life. Law means something which is not a series of arbitrary decisions or events but rather something which will be the same for the next case as it was for the last (law of gravity). This, of course, is where the difficulty arises because it is the nature of human life never to repeat itself exactly. Phenomena exactly repeated are not life, they are mechanism. Life varies, law is of its nature unvarying. One solution, as you disdained, is legislation and the other, which you prefer, may be called "legal fiction'. Legislation is drastic, a priori, and IMO necessary. Legal fiction is flexible, empirical, and also necessary. So we are left sympathizing with you but unable to help you much because of the reality of the legislative mentality of political institutions.