LEGAL RULES AND SOCIETY

It might be suggested that this book presents a misleading picture of the nature of law since
chapter 1 constrains the reader to work within my terms of reference, which do not extend to
the relationship between law on the one hand and the ethics, meta-physics and power
structure of a given society on the other.

Certainly, in the early chapters of this book the legal process appeared more prominently than
aid legal rules; and indeed, legal rules were considered primarily in relation to their function
in the legal process.

• However, when a legal rule affects social life it usually does so — I would concede -
without actually involving a process.

It will be remembered that in my view, although the essential and distinguishing feature of
law and the legal rules is the process, the central feature of law is the possibility or the threat
of a process.

• To understand the nature of law and its role in the society we must consider not only
theoretical aspects of its essential functions but also the practical relationship between
legal rules and the society in which they operate, and the factors that determine how
legal rules develop.

Law, I have been arguing, exists essentially for the sake of order, and hence law and legal
rules act as a control upon human behaviour.

But, it is well known that very many legal rules go beyond mere controlling and actually
direct human behaviour along specified channels. As was mentioned at an earlier point, the
channelling function is often the most prominent, and the essential function is concealed in
the background.

No precise distinction can be drawn between 'controlling and channelling', but the difference
is nevertheless clear.

• Example:
• For instance, a law may declare that contracts can be proved only in particular ways.
• But the state is not directing people to make contracts nor is there really any strong
desire on the part on the state that individuals should make contracts according to
particular formalities. The desire is rather that disputes as to whether or not a contract
was in fact made should be avoided or easily resolved.
• Generally speaking, any formalities which would achieve that aim would have been
acceptable to the state.

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 • Such a law would be an example of controlling.

On the other hand, a law that required all young men to serve in the army for two years, when
there was no obvious emergency, would be channelling.

Often there are several possible rules that could be enacted; the choice of any one will satisfy
the requirement of order, although the choice actually made will have effects upon the
society. Nonetheless, if my claim is correct that law is essentially about order and that law
has no essential function independent of order or in addition to order, then we should
expect—contrary to the view of other theorists who have considered the matter—that there
need not be anything like an exact correlation between the political, social and economic
needs and desires of the members of a society as a whole or of its ruling elite on the one hand
and the legal rules actually existing in the society on the other.

On this view of law, society should be able and willing to tolerate legal rules that are not—
and are known to be not—the most efficient that could be devised. It must be emphasised that
the real choice of rule is restricted to those rules that will not bring about disorder (though on
occasion mistakes will be made). The function to channel behaviour is not itself an essential
function of a legal rule—although in any developed legal system some or many rules will
channel behaviour—and is always, I believe, subordinate to law's essential functions in
respect of order.

(II)
It must be admitted that theorists who have written in the past do consider that an intimate
relationship exists between legal rules and the society in which they operate.
A general statement to that effect is to be found in Montesquieu,
who claimed that: laws are so particular to the people for whom they are made that 'it is the
merest chance if those of one nation can suit another'.
Later writers have tried to particularise this relationship.

The famous Friedrich Von Savigny claimed that positive law lived in the common
consciousness of the people, that law was not produced from the arbitrary will of individuals,
but was created by the spirit of the people (Volksgeist) that was in all the individuals
together.

(Criticised: This rather mystical conception has been much criticised—how is one to define a
people, or explain Germany's dependence on Roman law at the time Savigny was writing, or
account for the minutest legal technicalities? but it still retains a vigorous life in the writings
of contemporary scholars. Moreover, Savigny, whose practical aim was to prevent the
promulgation of a Civil Code for Germany, was successful in delaying the Code for half a
century.)

Harvard's Dean Roscoe Pound in his turn, following upon Rudolf von Ihering, maintained
that law was social engineering.
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Whatever theories of law were in favour, he argued, the legal order from Roman times
onwards was in actual fact securing as much as possible of the scheme of interests with the
least friction and waste, and this it was doing remarkably well.

For the Marxists, law is simply the expression of other relations upon which state power
rests.
The material life of individuals, which is independent of their 'will', is the real basis of the
state (that is, of a state in which division of labour and private property are necessary).
These relations are not created by state power; in fact, it is they that create state power.
The people who rule in such circumstances make law, which is determined by these relations
and which is independent of their idealistic will.

Neither Karl Marx nor Friedrich Engels attempted to develop a full theory of law: for
them, law was one aspect of the state; but the fundamental view of their followers may be
summed up as 'All law is class law'.

Yet another view—which this time is restricted to primitive law—insists that there exists a
general pattern of development that is common to early systems.

All these theories are united in the basic tenet that law stands in a close rational or the natural
(inevitable) relationship with society, to the needs or desires of the people or its ruling elite.

Most of them, however, also postulate or allow for some divergence of law from these needs
or desires.
Thus it was fundamental to Savigny's practical case that statutory law and, even more, a code
could be in breach of the Volksgeist. Among Marxists, Engels claimed that law seeks an
internally coherent expression and thus fails to be a faithful reflection of economic
conditions. Some anthropologists (and others), too, claim that law is always slightly out of
step with society, because of the duality of the statement and restatement of rights.

All four theories are appealing, and at least the first three seem prima facie plausible.
Inevitably the growth, history, and the social, political and religious outlook of a society will
have some influence on the legal rules.

Likewise, it is easy to concede that law will to a considerable degree operate to secure
existing interests and to reduce friction. That much of law reflects the economic advantage of
the ruling class is also readily apparent.

Yet once that has been said for all three theories, it must be emphasised that they try to
impose a pattern that does not exist. None of the theories does or can take account of the
great extent to which legal rules are unsatisfactory for the society in which they operate
and even for the ruling elite.

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 The accuracy of the theories must be tested against the social facts, not by their intellectual
neatness.

Elsewhere I have tried to show that to a very marked degree Western law has been and is out
of step with the needs and desires of society.

Law, the argument was, in most places at most times has not developed and does not develop
in a rational or responsive way, adapting easily to changing circumstances. This divergence is
not to be attributed to ignorance—indeed the illustrations I used were of instances where the
legal rule, principle or institution was inefficient for its purpose in satisfying the needs of the
people or the will of the rulers, and where a better rule could be devised; and where both the
inefficiency and the possibility of considerable improvement were known but not acted upon.
It would be indecent to repeat the evidence adduced. But as an illustration I will give one
example which could be often repeated—from one system.

The example has to be a broad one and treated systematically, and the system must be one of
the most celebrated and respected.

A society is, of course, not monolithic but consists of various classes and groups with sharply
conflicting interests.
Even within a group the interests of the various individuals may differ greatly. Yet it should
not be thought that the law that results for society is simply a patchwork of rules some of
which suit the whole society, while others reflect the power of the various groups and suit
them.
It is possible to demonstrate that in important areas of law fundamental rules benefit neither
the society as a whole nor particular groups; such rules may exist, detrimental to, or
inconvenient for, the society, and be actively wanted by no one.

(Examples of various forms of contracts)

( III )
The example chosen is the Roman system of contracts. This has been very much admired, but
even in its fundamental structure it contained grave defects that continued for century after
century. Thus, the oldest and most basic contract was the stipulatio, which existed as early as
1st the middle of the fifth century B.C. It was a contract that required formalities. The parties had
to be present together, the promisee asked the other if he promised to give or do whatever it
might be, and the promisor promised, using the same verb.

No witnesses and no writing were required for the validity of the contract. Stipulatio, that is
to say, was very simple in its form.
Formalities required for the validity of a contract have various functions, two of which relate
to evidence.
Thus, formalities indicate to the parties themselves that they are entering a contract, and at
the same time provide proof to the world at large both of the existence and of the terms of the
contract.

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 Of these two functions the latter is by far the more important, yet it is not at all fulfilled by
the formalities for the Roman stipulatio. It is a grave weakness for a contract to need
formalities for its creation that, however, go no way to prove the existence of the contract.

The People as Romans did entered into the contract relying on the formalities only to find
that when a dispute arises no evidence of the contract is available. This weakness in stipulatio
was never really cured, although recording the stipulation in a document became so common
that modern scholars discuss whether stipulatio had become a written contract by the third
century A.D.

Probably stipulatio arose in circumstances in which the absence of the requirement of

witnesses or of writing did not matter, either because the promise at first gave rise to no civil
action but involved an oath calling a god to witness, or because it was a guarantee given in
court procedure that a party to an action would appear on the due day and hence the promise
was in fact always public. What is surprising is that once stipulation had emerged as an
independent private law contract this obvious defect in the formalities continued so long
unchanged.

The true Roman written contract, the so-called literal contract, suffered from the same
2nd
weakness: the formalities that were necessary to create the contract were not sufficient to
prove its existence.
The contract was made by entries of a particular type in the creditor's account books.
Naturally enough there was a contract only if the debtor agreed, but the entries provided no
evidence of this agreement, and the evidence had to be supplied in some other way.
The contract was shorter-lived than the stipulation, but here again the defect was never
remedied.

Even when we turn to one of the most famous Roman legal inventions, the consensual
3rd
contracts:
That is contracts whose validity depends solely on the agreement of the parties, we find gross
flaws.
One of the great merits of these contracts is that they can be made between parties who are
not present together and who send a letter or messenger.
Of the consensual contracts sale was the most important and probably the oldest, and was in
existence by the late third century B.C.

But originally and for a long time thereafter there was no guarantee inherent in the contract
that the object sold was free from hidden defects or that the seller would transfer to the buyer
a title good enough to stand up against the claims of other people.
If a seller delivered, in good faith, the thing sold to the buyer, and at that stage another person
proved he was owner and so gained control of the thing, the buyer had no redress against the
seller on the contract of sale.

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 If the buyer wished to be protected against the possibility of hidden defects and eviction—
and he would in any important sale—then he had to take specific guarantees.

This could be done only by stipulatio, which required that the parties be present together,
hence effectively the contract of sale could not be made at a distance by making use of a
letter or messenger.
Thus the advantage of consensuality could not be exploited to anything like the full extent.

Moreover, since the buyer had to draft his own guarantee (acceptable to the seller) flaws in
legal expression could easily thwart his intention. Only very gradually was the position
improved.

The earliest traces of a built-in warranty—and even that protection is unsatisfactory—date

from around the beginning of the second century A.D. at least three centuries after the
creation of the contract.
Yet we know from other branches of Roman law that the jurists were familiar with and
capable of handling the idea of an inherent guarantee.

The final major class of Roman contracts is of those that are created by delivery. There were
4th
four such contracts and one of these, deposit, need never have existed since its scope was
adequately covered by the earlier consensual contract of mandate.
This unnecessary multiplication of contract would make it more difficult to see the
underlying common factors in contract, and it is perhaps not surprising that the Romans never
developed a general law of contract but only individual contracts.

A further contract that came into being by delivery was mutuum, loan for consumption,
and here the relevant action known as condictio did not permit the recovery of any interest on
the loan.

If interest was wanted—as it would be in any commercial transaction — a stipulatio was

again necessary. The action on the stipulatio was also the condictio, which was an abstract
action in the sense that the pleadings did not set out the ground of the claim.

The stipulatio might be for the interest alone, in which case if the borrower failed to repay he
had to be sued by two separate condictiones, one on the mutuum, one on the stipulatio; or the
stipulatio might cover both the return of the amount loaned and the interest, in which case
only one condictio —on the stipulatio—would be needed.

It is easy to believe that in these circumstances mutuum as a commercial contract would be

uncommon. Yet if the whole transaction was covered by one stipulatio a serious difficulty
might arise.

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A feature of the condictio is that if the plaintiff over claimed he lost his whole case and he
was not allowed to renew his action. Now, at times it would be easy to prove the fact of the
loan, less easy to show the existence of the stipulatlo for interest.

If the plaintiff sued for principal plus interest and could only show that there had been a loan
he would lose entirely and not even be able to recover the sum he had lent.

More bizarre still is the failure of the Romans to develop a contract of barter until the first
century A.D., at the very earliest. Even well into the following century, any such contract—if
one existed—was so unsatisfactory- that one- of the two famous schools of jurists argued
unsuccessfully that barter fell within the- scope of the contract of sale.

So eager were they for this - recognition of barter as sale that they produced a text of Homer
that, they erroneously claimed, showed a transfer of goods for money being treated like any
other transfer of goods for goods.

The examples we have looked at in this section all concern the most fundamental aspects of
the contractual system but it would have been easy—though, I believe, unnecessary—to
multiply examples of defects by looking at specific weaknesses within individual contracts.
What concerns us here is that grave defects existed in the famous Roman contractual system
and lasted for centuries.

One cannot explain this away simply by saying that law reacts sluggishly.

→ The defects are of various types. Some involve problems, which can be avoided by
taking pains that should not have been necessary. Others make the law unduly
complicated.

→ Others again create difficulties that are insurmountable—such as the practical

impossibility of making a valuable contract of sale at a distance. All have in common
that they remove law from the easy understanding of non-lawyers, that they cause
unnecessary expense, and that they are actively beneficial to no one class, to no
particular group, and certainly not to any governing elite.

Lawyers alone might be thought to benefit consistently and yet there is no evidence for a
powerful class of lawyers at Rome who would benefit directly from inefficient law. Not one
of the defects can be attributed to something deep in the Roman psyche. The needs and
desires of neither the people as a whole nor of the ruling elite were met or helped by any of
the aspects of contract that we have considered.

-------------------------------

7
Similar investigations of other branches of law in Roman law and in other systems such
as English law would also show a wide divergence of law from the needs and desires of
society.

The reader need only be reminded of the traditional horrifying complexities of English real
property law—described by Oliver Cromwell as 'a tortuous and ungodly jumble'.
It was 1975 (as a result of the 1925 legislation) before the English Chief Land Registrar could
declare that compulsory registration of land for the whole of England and Wales was in sight,
yet the benefits of compulsory registration, had been known for centuries—in 1535, indeed,
Henry VIII had a bill prepared for compulsory registration of conveyances.

The feudal system of tenure—complicated enough to baffle and defeat experienced

conveyances—retained great legal effect and consequence until 1925 despite its manifest
economic absurdities and although it did not serve any particular social need.

As for the law of torts,

the Faulks Committee in 1975 recommended the abolition of the distinction between libel (a
defamatory statement cast in a form not purely transitory) and slander (oral and unrecorded
words or gestures),
which they attributed to historical accident and which they declared 'renders this part of the
law unreasonable and unnecessarily complicated and refined, carrying a host of rules and
exceptions, derived partly from precedent and partly from statute, which are illogical,
difficult to learn, and in certain applications, it must be added, unjust'.

In 1843 a similar recommendation was made by a select committee of the House of Lords but
was never acted on. Many academic writers since have condemned the distinction and none
seems to have supported it.

The Porter Committee, which reported in 1948, declared that the law was 'arbitrary and
illogical'. The majority, however, preferred to retain the distinction, giving one argument,
without any evidence in favour, and admitting that in Scotland the distinction was not made
and no serious disadvantages had been suffered.

English law in fact shows that criminal law may diverge just as much from the needs of
society as does private law. One example from many may suffice here. The famous 'benefit
of clergy' from the fourteenth century until its abolition in 1827 had a deep and grotesque
influence on the shape of English criminal law.

Even afterwards some of its peculiar effects remained. Thus, its existence resulted in the
rebuttable presumption (abolished in 1925) that; if a married woman in the presence of her
husband committed a crime of a certain type, her husband had coerced her; it also appears to
have led judges to develop the doctrine in murder of 'constructive malice aforethought' which
was abolished in 1957.

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Even today the question put by the judge to a person found guilty, namely whether he has
anything to say before sentence is passed, is a survival; that is the moment when previously
'benefit of clergy' was claimed.

(IV)
Causes of divergence

The legislators
The causes of this divergence are best analysed in terms of the creators of law. Law makers
can be roughly divided into two groups; first, the legislators, who would include the popular
assemblies, higher magistrates such as prators, the Emperors of ancient Rome, and the
Sovereign in Parliament in modern Britain; secondly, the interpreters of law, such as the
jurists of Rome, judges in Britain, and university professors of law in France and Germany.

The law-making powers of the legislators tend to be very much greater than those of the
interpreters who, in some systems, are in theory not supposed to make law at all but only to
find it.

The legislators for the most part are charged not only with making law but with governing.
Their office is basically political in function, only secondarily legal.

As a result it frequently happens that the legislators are just not interested in much of law—
especially private law—or in law reform. Even if they are interested, pressure of other
business, inflation, balance of trade, foreign relations, will often leave no time for thinking
about law reform.

Moreover, it is a feature of, for instance, British parliamentary life that the law reform
considered by Parliament often does not reach the Statute Book because there is not enough
time to go through all the formalities of legislating.

One example will suffice. After a government committee on defamation had reported, a
Defamation Bill was introduced in 1952, which had as clause ii the provision that in order to
mitigate damages a defendant might produce facts relevant to the plaintiff's character.

This clause was dropped solely because there would not otherwise have been time to finish
the Third Reading of the Bill on the due date.

A notorious case of 1961, Plato Films Ltd. v. Speidel, showed how needed such a clause was,
and this led to the introduction of the Freedom of Publication Bill in 1966. But this failed to
become law because no time was found for a second reading. Now a further committee on
defamation, the Faulks Committee, have again recommended such a reform.

9
The political role of the legislators inhibits law reform in yet another way. Frequently,
legislators are politically chosen and they have to be concerned about their future, hence they
may hesitate to introduce legislation that, needed and welcome as it might be overall, could
offend even a small number of their supporters.

Thus, in Britain governments do not introduce legislation on divorce reform. That is left to
private members' bills, and the time allotted for these is very limited.

It is highly significant that the Emperor Augustus, secure in his power, legislated extensively
on marriage and divorce (and other family matters), whereas in the immediately preceding
two centuries—the most fertile period for legal development in the world's history—no
attempt was made by elected officials such as the praetors (who had extensive powers for
legal development) to change anything in these fields.

Legislation, when it occurs, is itself often not the best that can be devised for the society.
Frequently a carefully drafted bill is modified in the course of debate and an unsatisfactory
compromise may emerge.

Again much legislation is a 'gut reaction' to some particular event. Although the resulting law
may well correspond to what was wanted at that moment, it may be very unsatisfactory in the
long term.

Yet once the law has been promulgated, factors such as those described above may prevent
its modification for a very long time to come. Likewise a pressure group may push through
legislation that is far from beneficial to the society as a whole or to the ruling elite.

Circumstances may change, the pressure group may no longer exist, but the law continues.
Again, private factors in the life of members of the ruling elite may result in legislation that
meets the particular short term desires but that grossly ignores general needs. Such rules may
then continue in force for centuries after the disappearance of the particular need.

Let me give two examples:

• In A.D. 49, the Roman Emperor Claudius wished to marry his brother's daughter,
Agrippina.
• Marriage between uncle and niece was prohibited and was regarded as incestuous but
the senate passed a decree permitting marriage with a brother's daughter.
• Marriage with a sister's daughter remained void.
• This distinction corresponded to nothing in the Roman psyche.
• Yet even after the deaths of Claudius and Agrippina the law remained unchanged for
virtually three centuries until a rescript of Constantius and Constans, of A.D. 342,
made marriage with a brother's daughter once again illegal, and introduced the death
penalty for incest between uncle and niece.

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Secondly,

King Henry viii of England, being very short of money, sought to increase his revenues by
the Statute of Uses, 1536. The Statute Of Wills of 1540 provided a simpler and more
effective protection for the royal feudal incidents with the result that there was no longer any
strong reason to insist on the enforcement of the spirit of the Statute of Uses, and in any
event, the royal finances improved.

But the Statute of Uses was passed with no real concern for other land-holding interests and
its main effect was to block for a very considerable time the extremely popular device known
as the 'use', which was the forerunner of the trust, one of the greatest creations of English law.
There was no subsequent legislation to develop the use, and only gradually did lawyers
invent to that end suitable dodges, which were acceptable in the Equity courts.

Of course, most legislation does meet a need of the society as a whole or of an important
group.

What must be stressed above all is the longevity of legal rules and their power to survive long
after any need has disappeared and they are out of step with anything that can be actively
desired by the society or any forceful group.

(V)
Interpreters of law

The other law makers are those I have designated as the interpreters of law, such as the
jurists of ancient Rome and the judges of modern Britain. Among lawyers, the interpreters
tend to form a distinct, separate Elite, with great prestige.

In general, their law-making powers are limited, especially in theory, but the more the
legislators fail to keep the law in harmony with society the greater the responsibility thrust on
the interpreters.

But the legislators do not give the interpreters power to change the law drastically, a fact that
shapes the reforms they make. One should, however, beware of underestimating the law-
making powers of the interpreters, especially where the legislators show little interest in
private law.

Thus, the greatest single determining factor on the shape of law in the modern world has been
Roman law through its Reception in Western Europe, the transplanting of the law of
European powers to their colonies, and then, with the advent of modern European codes, the
wider dissemination of Roman law through their influence on codification, especially in
South America and Asia.

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Yet the Reception of Roman law in Europe, which was a slow process taking centuries, was
very largely the work of interpreters rather than of the legislators.

The restriction on the law-making powers of the interpreters determines in the first place the
kind of argument that can be used to justify the interpretation.

Only some kinds of argument are respectable, above all argument by analogy from existing
legal rules in a similar context, or from authority, such as precedent in one's own system or an
opinion expressed for another system that is held in esteem.

These arguments have in common that they are of necessity backward looking.
Even if the interpreter is in fact bringing about a legal revolution he must justify it with such
arguments. This can only reinforce conservative tendencies, and it is notorious that the pace
of reform by interpretation is slow.

Secondly, the interpreters have usually no power to abolish existing rules, however unsuitable
they may be.

To mitigate the worst effects of these: the interpreters have to find exceptions or invent new
principles, which they impose on the rules.
The net result is a legal scaffolding, sometimes of horrendous complexity, which can be
understood only by the specialist lawyer.

Law becomes remote from the understanding of the people most affected. More than that,
because of its haphazard growth the scaffolding can scarcely ever cope with all the tasks it
should, and in its turn it becomes rigid and in need of reform. But the very existence of the
scaffolding makes a general reform more difficult, since an overall view of the law and the
problems is obscured for lawyer and layman alike.

On a different level, the professional outlook of the interpreters, and also of the lawyers who
aid the legislators, has a profound effect on the form that innovations take. But this topic is
best left for the next chapter.

(VI)

This divergence of law from the needs of the people and their rulers enables us to draw some
conclusions about the nature of law.

→ In the first place we must admit that there is no close, inherent, necessary relationship
between law and the society in which it operates.

o Law cannot be said to be 'the spirit of the people'. Nor is it the inevitable result
of existing material conditions. It should be noted that if many legal rules are
12
 not well suited to their society then it must also be the case that many rules
which work tolerably well have likewise no intimate connection with the
Society.

o A very different rule might do just as well. In fact the longevity of legal rules
coupled with the frequency of borrowing from another jurisdiction—indirectly
the subject of the next chapter—means that only a minority of rules were
created for the society in which they now operate.

→ Secondly, law does not emerge easily from the conditions of society and indeed does
not develop easily at all. The pull of inertia is very great.

→ Thirdly, the great extent and deleterious effects—especially economic effects of

unsatisfactory law are not so obvious as one might expect. Otherwise reform would be
forthcoming. This can only mean that the effect of unsatisfactory legal rules on the
well-being of the society and the happiness of individuals is considerably less than
jurists like to imagine.

o Of course, some bad rules, such as those on divorce, may cause some people
enormous anguish; but at any one time only a very small proportion of the
people in a state will actually suffer from law that is out of step with general
needs and desires.

→ Fourthly, neither society nor its ruling class is usually too interested in the state of
law, especially of private law. Society finds it surprisingly easy to tolerate
unsatisfactory law, and pressure on the legislature for reform is very limited. There is
no great demand for the 'best law'.

→ To avoid misunderstanding it should perhaps be made explicit that the claim is not
that there exists no connection between society and its laws, merely that to a very
great extent society can and does make do with legal rules that are unsuitable,
inappropriate, imperfect, even though the possibility of better law is very apparent.

(VII)
“Law keeps out”
(Law does not deal with certain aspects of society)

▪ It is a striking feature of law,

▪ including the law of a territorial state
▪ that despite all its power and
▪ its wide scope
▪ it does not directly invade all aspects of human activity.

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In some sensitive areas—which change from place to place and from time to time—
there exists a principle that may be stated as 'Law keeps out'.

In some of these areas there will in fact be legal rules,

but when they are considered closely it will emerge that their message, too,
is 'Law keeps out'.

It will be remembered that law is

only one agent
of social control;
religion and
popular morality may be mentioned as others.

We are made most aware of the principle when, looking at a different system,
we suddenly find
legal rules in existence where for us
the basic norm is 'Law keeps out'.

Example:
1. Instances of this may be found in the Prussian code, the Allgemeines Landrecht für
dic Preussischen Staaten of 1794.

The second title of part two concerns the rights and duties of parents, and provides
inter alia:

▪ S.61 Children owe both parents respect and obedience.

▪ S.67 A healthy mother is under the obligation of suckling her child herself.
▪ S.68 How long she must keep the child at the breast is determined by the father's
decision.
▪ S.69 He must, however, submit himself to the ruling of experts if the health of the
mother or child would suffer from his decision.
▪ S.76 If the parents are devoted to different religious confessions, then until the
fourteenth year is complete, sons should be educated in the religion of the father,
daughters in the religious confession of the mother.
▪ S.77 Neither of the parents can bind the other, even by contract, to set aside these
legal rules.
▪ S.109 The settling of the future mode of life of sons depends in the first instance on
the judgment of the father.
▪ S.121 Children are bound in accordance with their strength to provide a helping hand
to their parents and their business and trade.
▪ S.122 But time necessary for their teaching and education should not be taken from
the children in that way.

From such familial areas, today, in general, 'Law keeps out'.

14
 2. In twentieth-century Britain the classic instance of the principle is the immunity from
liability of a trade union for tort or delict, and so on (ignoring the legislation of 1971,
which was repealed in 1974).
The basic message of law makers in the Trade Disputes Act, 1906, is that law and
legal process are not suitable means to resolve conflicts in this area.

It might be argued that there is, of course, law on these matters, and that if a trade
union is sued in tort or delict, or in contract for breach of a collective agreement at
common law, the dispute will be resolved in that the union will win in the case.

But, it might further be claimed, unregulated conflict is not inhibited since the
immunity leaves legally unregulated conflict as the means of settling industrial
disputes.

The conclusion would therfore be that the function of the process here cannot be—
and hence the essential function of a legal process cannot be—the resolution of a
dispute with the specific object of inhibiting further unregulated conflict.

There are two answers to this.

The first is based on 'Law keeps out'. The effect of the law is that there should be no
processes because law is not thought to represent a satisfactory way of dealing with
these disputes in twentieth-century Britain.

The second and less satisfactory answer is to stress that the specific object of the
process involves inhibiting further unregulated conflict, not necessarily abolishing it;
and that the dismal failure of the Industrial Relations Act Of 1971 shows that the
removal of trade union immunity causes further unregulated conflict.

The opposite tendency to 'Law keeps out' is also in evidence at times.

The state may intervene determinedly to resolve disputes even though there is already in
existence a highly controlled method of inhibiting conflict.
For instance, in the past gentlemen whose honour was injured might have recourse to
duelling, which was highly regulated.
But states, jealous of their authority, have outlawed duelling and restricted legal recourse to a
process.

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