The Right to Live According to an Unwritten Code

The law insists that you get it in writing.'' That's wise, of course, to prove that there was an agreement and to help you avoid misunderstandings. But let's not pretend that contracts make the world go 'round.

On the contrary, I can go through an entire week without signing anything. But I can't go through a day without 100 implicit understandings with people. For example, at the grocery store, I don't have to say a word, but everyone reasonably assumes that I haven't come to play floor hockey with the frozen fish or bring the checkout line to a halt by trying to pay with Swiss francs.


We observe those understandings without being forced to. Nobody's going to sue us for breaking them. They're just part of an unwritten code of civilized behaviour that almost everyone follows, century after century.

Naturally, it's the court's job to write down the facts of a case. When you go into the law library, you see that they've produced an awful lot of books full of facts, and yet, somehow, there are always new cases that haven't occurred before. I guess we shouldn't be surprised if it'll take an infinite number of volumes of law to capture all possible human legal experiences.

When you go too far with the notion that what counts is the written law, then you allow your bad people to insist that, if it's not in the written law, they don't have to worry about it. You also have the unfortunate experience of seeing lawyers and written documents intrude in places where they're perhaps better left out.

Possibly the worst example of such intrusion is the ante nuptial (pre-marriage) agreement, like that which my ex-wife and I had. It seems prudent to have such an agreement, because a lot of people who didn't think they would ever get divorced do wind up separating from one another. But it's still awfully uncomfortable. When you raise the idea of an ante nuptial agreement with your future spouse, you (and s/he) can easily wonder, in the delicate days before marriage, if you've begun to have doubts about your future together.

And men the lawyers arrive, yours and his/hers, and suddenly everyone's attention is on everything that can go wrong. Admit it: When you compare what you're trying to accomplish in this marriage against what you're doing with these lawyers, it's as though you're running in two opposite directions simultaneously.

It's worse than that. As I discovered, some spouses eventually attempt to persuade the divorce judge that they were forced to sign the agreement, and an excellent way of defeating that claim will be to prove that the two of you negotiated hard - or, better yet, fought bitterly - over this agreement before you signed it, demonstrating that you knew exactly what you were doing.

One matrimonial lawyer may have been correct in saying that "[Clients] don't realize that prenuptial agreements don't kill romance. They just suspend it for a short time." But even if he's right, the real question is whether the law knows exactly what it is doing when it encourages you to suspend your romance.

We've got another Black Hole here. We let lawyers rush in and talk about how their ante nuptial agreements don't really disturb love. The implication, of course, is that lawyers understand which things do and don't disturb love.

But that's nonsense. Humans certainly don't understand love. We do some of the damnedest things to find it, and when we do have it, we do even sillier things to lose it. It may be that love is just a little blank spot in the law's understanding of reality. Or it may be, instead, that when you step into this Black Hole, you find that there are whole galaxies within the realm of love, enough to keep you busy exploring for the rest of your life. This is certainly how people talk when they're in love. Who are we to imagine that anyone, and especially lawyers, will ever understand it?

It's one thing for lawyers to set out rules that describe the necessary limits of conduct for everyone, whether they're lovers or not. Thus, for example, it's reasonable to prohibit murder under almost any circumstances. But that's an easy example. The closer the lawyers come to disturbing things that they don't understand, the more dangerous it becomes to let them go on with their endless written rules and arrangements. They don't know what effect they'll have, and they lack the self-restraint to know when to stop.

We've got an ambitious legal system. It sticks its nose into everything. But who says that's how it's got to be? It's not at all clear that its nosiness is really doing us a big favour. To use the present example, everyone recognizes that divorce is often more of an emotional problem than a legal problem. Even the justice system treats divorce that way, putting it into a separate court of its own. So how about the thought that it really doesn't belong in the hands of judges and lawyers at all?

Cooperation and mutual concern have always counted for more, in everyday contacts among human beings, than have written documents and lawyers, with their order of confrontation. Sometimes, obviously, there's no special concern between people. But in a surprising number of the most important cases, there is. Your mom, for example, didn't sign up anywhere to raise you. Nobody beat the businesspeople of bygone America until they admitted, sobbing, mat "the customer is always right.'' These people arrived at their wonderful attitudes voluntarily, out of a mix of common sense, duty, and care.

I'm not saying there's no place for written laws or agreements. There's plenty of need for them, without pretending that they can capture all of human experience.