Vol 34, No 1 (2016): Law and Love

The question of law and love has to be confronted in the soul (as a religious question), in the head (as a political question) and in the heart (as an existential question). This Special Issue of Law in Context tries to make a start in making sense of this multi-faceted question.

Paul proclaims that Christ is the end of law. The new Christian community promises to be a community sustained not by law, but by love. His zeal for love reinforces his proclamation of Christ as the end of law, for love is lawless, literally outside of law. In contrast to Moses who establishes the rule of law on Mount Sinai, Paul proclaims the power of love over law and asserts the inherent lawlessness of love. Legal rules predict human behaviour; but love makes human actions unpredictable. Legal rules dictate outcomes; but love is, by definition, free. However, inasmuch as love is free, love is also fleeting. According to Paul, Christianity marks the end of law and the dawn of love, but it does not take long for the first church council to be formed and decrees to be issued. The promise of a lawless community ends up with codes of canon law. The modern political state carries with it this ancient theological baggage. We inherit from Paul a particular cognitive dissonance: we dream in the language of love, but speak in the language of law. The radical ideal of love as the ultimate negation of law remains a powerful eschatological vision in our theo-political imaginary.

According to Horace, Orpheus and Amphion were the first legislators. They forbade casual sex, gave rights to spouses, and inscribed laws on wood (Ars Poetica 396-401). Orpheus, who is both the model of the devoted husband and the founding father of pederasty, simultaneously establishes and challenges the institution of marriage. His myth acquires a deeply political dimension at Rome after the emperor Augustus introduced laws that encouraged marriage and criminalised adultery. In the Metamorphoses, Orpheus attempts to regulate desire and is subsequently executed by married or marriageable women. He is a figure of Ovid, the poet who spelled out the constitution of the rules of conduct within the domains of sexual attraction in his Art of Love and was punished for subverting the institution of marriage. This article focuses on Orpheus’ story of Myrrha in Ovid’s Metamorphoses and reads the tale against the background of Augustus’ marriage and adultery laws. The myth of Myrrha is rife with legal language and courtroom rhetoric that provocatively conflate incest with marriage.

Zenon Bańkowski has challenged the popular view that law and love are opposites. Instead he has argued that they are ‘entangled’, ‘necessary’, and even ‘dependent’ on each other. Together they form the ‘unity’ that is required for us to live a lawful life. He argues that to see them as opposites is not only inaccurate, but also constitutes a ‘moral and cognitive failure’. If he is right, and we are to see love and law as connected to one another, the question arises of what he means when he talks of love. This inquiry will show that Bańkowski relies on ideas of love that spring from the Classical (eros), the Christian (agape) and the romantic traditions; however I will argue that a conception of love that also fits his argument is friendship love (philia).

This article will focus upon the action for breach of promise of marriage in colonial Australia to reflect more broadly on the legal regulation of intimacy. Drawing upon a database of 211 breach of promise cases, I seek to explain a contradiction: almost half of the female plaintiffs in my study had illegitimate children, although a lack of virtue operated as a complete defence for (predominantly) male defendants. In spite of this, a vast majority of the women were successful. This paradox is clarified through an examination of the action in contract treatises and through an analysis of the way that the action operated as a supplement to maintenance for women with children. I conclude with a close study of a breach of promise case involving illegitimacy, as a means of examining the informal and formal norms governing love (and its discontents) in colonial Australia

The High Court’s decision in Louth v Diprose that emotional dependence significantly contributed to special disadvantage was a significant development within the doctrine of unconscionable conduct. The decision in Louth established a template of sorts that found useful application in the later cases of Williams v Maalouf, Xu v Lin and Mackintosh v Johnson. Though they are few, these cases form definable subset within the broader doctrine of unconscionable conduct that might broadly be termed ‘clouded judgment’ cases. These cases quite arguably blur the lines between the doctrines of unconscionable conduct and undue influence. There is a discernible pattern to these matters. In these cases, the donor has formed an attachment to the object of his or her affection. To put matters gently, the affection is misplaced. Nonetheless, the donor makes a gift to the object of his or her affection. Subsequent developments lead the donor to realise that the gift was both improvident and bestowed upon an undeserving party. This article argues that Louth v Diprose is a troublesome precedent. First, the primacy of deception, which was a key issue in Louth, is unduly reductive. It obscures the overall context of the defendant’s conduct. Secondly, the High Court in Louth overlooked facts that might have undermined the finding that the plaintiff was at a special disadvantage. Thirdly, the case reflects a concept, known as the ‘presumption of competency’ that unhelpfully tilted the balance in favour of the plaintiff. This presumption appears to have been somewhat reversed in Mackintosh.

Ernesto ‘Che’ Guevara famously claimed that ‘the true revolutionary is guided by great feelings of love’. This article contends that the emotional constituents of Guevara’s political and legal thought have played an essential role in the cultural configuration of his political myth. In the wake of the global financial crisis, they also seem to be quite relevant for our current understanding of society and law. As law and myth are synonymous with the symbolic order, Guevara’s myth constitutes an outstanding case to dissect the passionate ingredients that the perception of injustice introduces in the symbolic order. The emotions that saturate Guevara’s writings and revolutionary actions – love for justice, hatred of injustice – relentlessly challenge and undermine the intersections between law and inequality in Latin America. Guevara’s wrath, however, could hardly be contained within this region today. In a world in which the gap between poor and rich people is continuously deepening, it seems convenient to be at least aware of the canvas behind Guevara’s legal and political thought, which constitutes one of the most powerful social imaginaries that have been erected around law’s contribution to the unequal distribution of income, capital and political standing.

After outlining some strengths and failings of the law in Australia in meeting individual and community needs for legal services, the author explains why the recent over-supply of law graduates is unlikely to cure the shortfall in services. He proposes ten ‘commandments’ for Australian law schools, namely to:
1. Assure a more diverse intake;
2. Attend to vulnerable students, so that they survive their studies;
3. Address particular subjects of poverty law;
4. Encourage engagement by future lawyers with civil society;
5. Promote involvement with all forms of legal aid;
6. Acknowledge the importance of the law on costs;
7. Enhance access to law through new technology;
8. Establish miscarriage of justice and innocence clinics;
9. Undertake reliable empirical research and law reform projects; and
10. Consider basic lessons to be derived from foreign legal systems.
Legal academics, he concludes, have a special duty to critique their discipline and to provide a sense of engagement among lawyers (starting with law students) with the values of the laws they help to implement.