Conflict Law and Norms: Regulators

Conflict

Law and Norms: Regulators in Conflict and Coordination

A recent court ruling in Madras High Court of India has complex and far-reaching implications. In the seemingly modest case of a woman's request for child-support from a former live-in partner to whom she was not wed, the judgment offered a ruling opinion that calls into conflict and coordination a number of sociological and practical constraints to be discussed here below.

Situation:

The judge's ruling would extend far beyond the plaintiff's request, setting the precedent that "if a couple of legal age chooses to 'indulge in sexual gratification,' this act would confirm the relationship as a marriage." (NaiJ, p. 1)

This is a highly nuanced ruling in the context of Indian norms, within which the notion of premarital sex had historically been taboo and explicitly regarded as immoral. In its legal recognition and on behalf of improving the rights of women, the law would suggest a shifting of such norms.

Values in Conflict:

This phenomenon is explained in Lessig's (1997) primary course text. Here, the theorist points out that "the constraints are distinct, yet they are plainly interdependent. Each can support or oppose others….Some constraints make others possible; others make some impossible. Constraints work together, though they function differently and the effect of each is distinct. Norms constrain through the stigma that a community imposes; markets constrain through the price that they exact, architectures constrain through the physical burdens they impose; and law constrains through the punishment it threatens." (Lessig, p. 124)

Lessig goes on to argue that we may consider these constraints as 'regulators' that are in constant play with one another. At times, they appear to reinforce one another such as in the regard that community-driven norms are often consistent with legal conditions. This coordination impacts an accepted set of standards in areas as diverse as commercial exchange and practice of religious freedom.

That stated, in the case of the recent court decision, there is as much cause for concern as there is for celebration. In this example of a convergence of presumed norms and laws, we can observe the danger of moral authority. Indeed, where such constraints are concerned, there are instances in which a certain assumed set of superior values are adopted as law. In such instances, new legal constraints may be in direct contrast with a set of community values shared by a broad cross-section of the population.

This type of conflict is highlighted in no uncertain terms by the premise of the current legislation facing the Indian population, which while progressive on its face, also places a troubling amount of moral authority in the hands of the Indian government. This, of course, is so say nothing of the sheer impracticality of imposing marriage on unwilling participants, of whom we may assume there will be a great many.

Alternative Approach:

An alternative approach to improving the rights and status of live-in partners is to focus on laws establishing common-law partnerships based on duration of residential status. By taking the sexual intrusiveness and moral imposition of the current law and shifting the focus to residential law, the government may simultaneously advance protections for women and society's standing on premarital sex norms.