Tony Simpson: Law catching up with society

COMMENT

Generations of readers of Thomas Hardy's novel The Mayor of Casterbridge have sometimes been scandalised by a depiction early in the novel in which a man leads his wife into a busy rural market place with a halter around her neck and sells her at auction to another man to become his wife with her apparent connivance.

They would probably be surprised to learn this was not a product of the writer's imagination, but quite a common occurrence in England in the century from 1760.

Social historian Edward Thompson has identified 218 reported similar cases and other researchers have found more than 100 more. These are almost certainly the tip of a very large iceberg.

The general consensus among historians is that this was a response to the huge changes we usually refer to as the Industrial Revolution. A relatively static agricultural society was becoming a dynamic industrial society.

Workers, absorbed sponge-like into the growing cities and separated from the parishes and communities through which they usually celebrated personal relationships and marked their break-ups, were inventing new social rituals to declare these relationships publicly.

A parallel phenomenon was widespread in the pre-civil war southern United States. Plantation slaves validated relationships by "jumping the broom", a ceremony in which the partners literally jumped over a broom handle at the climax of the ceremony.

These sorts of transition rituals are a common feature of human culture. People confronted with a new situation invent new ways of validating their relationships which are acceptable to their communities and declare their status accordingly.

Eventually, as in the English case, the law catches up with these arrangements for legitimate reasons to do with property and children and creates frameworks the courts can comprehend within the tradition of law to deal with them. This led to the invention of civil marriage.

So it is in New Zealand. In the past four or five decades our society has gone through significant social change and this has led to a changing perception of what is an acceptable form for personal relationship between individuals.

Marriage remains a robust institution and still the most popular means of validating those relationships, but a range of others have emerged and the law, inevitably, has caught up. Thus the Civil Union and its companion Recognition of Relationships Bills at present before Parliament.

These have nothing to do with marriage as a religious sacrament, which remains a personal and individual matter and no business of Parliament or the courts.

It's worth noting that in New Zealand law the performance of a religious ceremony has never alone constituted a marriage. Until the ceremony itself is followed by certain civil law requirements the couple are not married, no matter how many times they say "I do" and the minister pronounces them man and wife.

That gay relationships are included in the proposed new legal framework should surprise no one. It became a legislative inevitability from the point at which homosexuality between consenting adults was decriminalised in 1986 and the Human Rights Act subsequently amended to include sexual orientation.

So why the fuss? Because some people are affronted or made uneasy by change, and others have never accepted the change of 1986. But the world moves on.

If we retain pretensions to being a fair and egalitarian society then there is no rational legislative argument to oppose the passage of the Civil Union Bill, whatever people may think of the moralities involved.

To those who protest that change of this sort is destroying our nation's moral fibre, I merely observe that such claims have been made in the face of change for centuries.

I am sceptical because the same claims were made in 1986 and nothing happened to the moral fibre of the nation as a result.

If we are, indeed, going to the dogs, the dogs seem to be having a long wait to come into their inheritance.