While I had intended to discuss heartbalm actions further, that will have to wait for a future blog entry as I wanted to discuss the concept of ‘informal law’ in more detail. I have long found the concept of informal law fascinating.
Informal law or ‘custom’ may involve practices or traditions that are symbotic or complementary to existing laws, or are designed to circumvent the law, or are quasi-legal and essentially supplant the law. Examples of symbiotic informal law or customs were once common in everyday life. By way of contemporary examples, they may include such things as the general practice of alternating cars as they merge from two lanes into one when neither lane has a yield sign–this is not a legal requirement but has become a custom that not only reflects good manners but also helps the flow of traffic when one lane is blocked. In some places, it is considered custom that someone who shovels out a parking spot following a snow storm is entitled to mark it as theirs, which is a practice rarely reflected in the law (interestingly enough, in Boston, municipal ordinances allow one to claim a parking spot one has dug out for 24 hours after a snowstorm; while neighboring Cambridge had an ordinance that makes it unlawful to do so).
The tension between what people wish to do and what the law allows them to do has often been the impetus for the growth of informal law or custom. The field of family law, for instance, is replete with examples. Couples wishing, for whatever reasons, to circumvent or skip the requirements for a legal marriage have long created informal marriages (often referred to as “common law” marriages) without seeking a marriage license or participating in a marriage ceremony. An informal or common law marriage usually involves a couple who have agreed to be married, live together as husband and wife, and hold themselves out to the public as such. (This is the legal standard as set out in the Texas Family Code §2.401, for example).
The dissolution of marriage is another striking example. Particularly when divorce law was highly restrictive, self-help divorces were a means of curcumventing the law. In the simplest form, a spouse could simply abandon the other; husbands ejected wives from their homes, wives left their husbands. Should a wife have abandoned her husband in this manner, he might well place newspaper advertisements announcing that she had left his ‘bed and board’ and that he would not be held responsible for debts incurred in his name by her.
A fascinating historical example related to self-divorces was the practice of ‘wife auctions’. While at first blush this appears to be an archtypical example of historical chauvanism, the reality was often more nuanced. A wife auction, as the name suggests, involved a husband putting his wife up for public sale. As barbarous as this sounds, in many instances the wife was a willing participant–perhaps even the instigator–the successful buyer was known beforehand to all (including the wife, who in some instances was already cohabitating with him) and the auction result a foregone conclusion; sometimes the wife herself provided the buyer with the money to finance the winning bid! English wife auctions were to die out by the mid 19th century due to reforms to the divorce laws.
Examples of informal law continue to exist all around us, although they are not always obvious. For example, in 2005 new rules regarding personal bankruptcy went into effect, with the avowed purpose of making it more difficult for individuals to file for personal bankruptcy under Chapter 7 or Chapter 13 and thus providing greater protection to creditors. One result of this has been a probable increase in ‘informal’ or ‘unofficial’ bankruptcies. An informal bankruptcy involves an individual who doesn’t file for official bankruptcy protection but attempts to have the same protection by making themself judgment proof. This might include not paying debts, not keeping assets in one’s name, moving, changing one’s name, and any number of other subterfuges in order to avoid paying one’s creditors– in other words, being what in common parlance is known as a ‘deadbeat’.
Informal law can also include a quasi-legal custom that exists in parallel, or symbiosis, to the law itself. Particularly in the context of criminal justice, informal law has often surfaced with groups have felt the law could not, or would not, act. They included ritualized forms of protest, performance, violence or demonstration used to enforce community standards related to marriage and other issues (such as whitecapping and shivarees/charivaris), vigilantism, lynching (a particularly common, and revolting, practice in the southern U.S. aimed at blacks), and rioting. The charivari or shivaree (perhaps consisting of loud processionals, banging pots and drums, blowing on trumpets and the like) could be mischievous–designed to harass a newly married couple on their wedding day in exchange for food or drink–or reflect a very real sentiment of community disapprobation over wife-beating, an inappropriate marriage, or the like.
Many rituals that accompanied the practice of criminal justice could be said to be customary or informal law insofar as they were not legally codified but became entrenched components in the administration of the law. The practice of judges’ donning a black cap when handing down a sentence of death, for example, is a marvelous example of such a custom. In the ninetenth century, labor law was often a mixture of legislation, local laws, common law concepts, and customary and judge-made discretionary law. For example, it was frequently a custom that deserting servants were required to make up lost time to their employers, even when not explicitly provided for in the law.
So, here is a question for you: what other examples of informal law or custom come to mind?