Sunday, August 18, 2019

Backbone of the Law - the Modern Legacy

Since the seventeenth century one of the most significant achievements of emerging Canadian law was the successful transplantation from Europe and adaptation to local circumstances of the British common law and French code civil to marriage, family, property and succession. While providing opportunities for capital accumulation, the European law (as opposed to Indigenous law) "was concerned to establish a complex balance among competing goals; namely, to uphold the authority of husbands over wives and parents (mostly fathers) over children while also aiming at the equality of siblings (of both genders) and the protection of the interests of widows and minor children" (A History of Law in Canada, Vol. 1 beginnings to 1866). Otherwise the primary focus of contract law was that devoted to indentured labourers whose distinct legality was essentially that of a servant ("a man obliged to go wherever and do whatever his master commanded like a slave during the time of his indentureship", reported Governor Frontenac in 1681).

Of curious and redeeming interest in this otherwise constricted master/servant relationship was the dedication to recorded detail.  The term "indenture" - while having a modern usage as a legal instrument for commercial debt or real estate transaction - derives historically from the "indentured servant" status. The strict employment of unskilled labour was not only imperative to the growth of local economies but was also seen as fundamental to the maintenance of social order. In spite of the over-riding superiority of the employer the law nonetheless recognized the entitlement of the labourer to the dignity of contract. This may originally have evolved from the theory of natural justice that personal service agreements are of necessity highly intrusive. To overcome the other obvious feature that most labourers were illiterate (and historically it was considered effeminate for a landowner to read and write - at a time when lawyers were strategically employed to fulfill such pedantry), the custom evolved of preparing the document in duplicate (one for each Party), then folding it and cutting the top edges so that if necessary the two copies could be proven in a court of law to be same notwithstanding the inability of the Parties to examine the words.

The qualities of superiority and beneficence run through the two critical networks of family and labour.  They are themes which continue to this day to insinuate much of society. The "legitimacy" of those theses is increasingly the subject of examination.  In many instances the authenticity of the propositions is entirely irrelevant as the nature of human relationships undergoes Olympic change. The notion of marriage for example is now visibly open to debate.

"The law governing marriage, family, property and succession was of long standing and well known.  Its strength also derived from its congruence with the Catholic values espoused in New France. Although some 10 per cent of brides in Canada may have been pregnant at their nuptials, illegitimacy as such was rare.  In Acadie in the first half of the eighteenth century it has been estimated at 0.6 per cent, in Canada at 0.8 per cent in the seventeenth century." Idem

One hardly need remark upon the decline of religion in modern society. While this is sometimes characterized as an indicia of deterioration, there are many who take the contrary view that it opens the path of enlightenment and social equality. It is however important to recall that the two goals of commercial growth and social order are likewise susceptible to influence whatever course is adopted. Almost any alteration of this significance and elemental nature is bound to have stunning repercussions.

To speak broadly and metaphorically, this transition within the structural framework of society is illustrative of any number of other changes which ultimately capture the majesty and equality of humanity whether different because of gender, race, colour, education or any number of other variations. Surely it must be confessed that within the limited time allotted to each of us our collective ambition is very much identical.  To pretend that because of some accident of nature, birth or opportunity any one of us is entitled to more or less than another is the height of insanity.

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