Jim Devine's legal consciousness...

If you have a legal training, it can breed a certain intolerance towards discussions about what is or is not ‘lawful’. “The law is… the law isn’t…” are the formulae to dispel common-sense but dubious social claims about the character of the legal enterprise. Even someone with no formal legal competence, despite having no familiarity with the text and tissue of legislation or the common law, who listens to a tale of a suffering friend, or muses on their own predicaments, might ejaculate – “that’s not legal!” It is frequently the task of the lawyer to dispel these misconceptions and to distil from an individual’s ragbag sense of victimhood and wrong, a justiciable cause of action. Although there is a place for this norm of correction, of accuracy, there are also other stories to tell about peoples ‘inaccurate’ apprehensions of the legal which do not rush us to legal judgement. How people think about law, however technically inaccurately, tells us something important about the place of laws in our culture and what role, if any, such legislative tools have in adjusting behaviour.

This insight that important stories about the lived life of law go untold and unreflected on was transmitted by two American scholars, Susan Silbey and Patricia Ewick, into a research project in the state of New Jersey. Speaking to people about their attitudes to the legal, Ewick & Silbey extracted important data about what they called legal consciousness. This data was condensed in their classic text The Common Place of Law: Stories from Everyday Life (1998). They ask simple questions, with complex answers. Why does one person take her neighbour to court for a nuisance, while another suffers in silence or resorts to community-based methods of dispute resolution outside law's domain. Why do some people enforce their consumer rights forcefully, while others shrug at an appliance which breaks after a week and take the cost on their own shoulders? How does 'race', or class or gender impact on these apprehensions about the legal? To my knowledge, no symmetrical work has ever been attempted in Scotland. On one level, this is to be regretted. On another, I’ve a niggling little hope that one day, I might be able to embark on just such a leviathanic research project myself and capture the unwritten transcripts of folk’s experience from Shetlanders, to West Coast rural souls to the sardine-people of Glasgow and their busiest court in Europe.

This optimistic little toadstool thought occurred to me again last week as I idly shuffled through recent Court of Session and High Court of Justiciary’s judgements in appeals before them. Much of it was the usual fare. Allegations of material judicial misdirection of the jury sit beside captious arguments with a whiff of failure about them, while other prisoners simply seek reduced sentences and less time deprived of their liberty. There is also the tedious contractual stuff – but one in particular caught my eye – Janet Toner-Boyd v. Secretary of State for Work and Pensions. As the title suggests, this was not a criminal action, but was the last ditch hope for Janet Toner-Boyd’s application for bereavement benefit under section 36 of the Social Security Contributions and Benefits Act 1992. Her ‘husband’ William Boyd had died – but the Secretary of State rejected her application. Why? Because Janet Toner had never, in legalistic form, married the departed William. Instead, her argument was one of ‘marriage by co-habitation and repute’ – but the evidence, in a fashion the law is not apt to take pity upon, hardly spoke with one voice on the matter. The court’s précis of the facts of the matter are classical in the sense that they both suggest, impressionistically, the non-legal, lived experience – while simultaneously primly and pertly pushing that experience into legal categories whose strictures seem a bit absurd, held up against the mess and tangle of real life.

“The material facts, as found by the tribunal, are as follows. The appellant began living with Mr Boyd in 1978, at which time he was married to another woman. He was divorced from his wife in 1979. He and the appellant were free to marry each other after that date. They lived together until his death in May 2006. They never went through any civil or religious form of marriage. The appellant continued to be known as Miss Janet Love Toner. That was the name she used in her dealings with official agencies, her MSP, her solicitor and her bank, and in her application for bereavement benefit. Some correspondence sent to Mr Boyd and herself was addressed to Mr and Mrs Boyd. She and Mr Boyd discussed marriage as recently as November 2005. They wore wedding rings for about 15 years. Mr Boyd left his estate to the appellant. The appellant's close family knew that she and Mr Boyd were not married.”

“…the tribunal also noted the appellant's evidence that she and Mr Boyd had discussed marriage on a number of occasions but had never got around to it, and that they had intended to go through a wedding ceremony. The tribunal noted also that the appellant had produced a letter from her sister which stated that Mr Boyd said, in relation to the appellant, that ‘One day she would make an honest man of him’. The tribunal observed that that is a phrase used to refer to the marriage of an unmarried couple. The tribunal found that both the appellant's family and Mr Boyd's family knew that they were not married. In that regard, the tribunal referred to a letter from her sister which the appellant had produced, which stated that family members such as cousins, aunts and uncles knew that they were not married.

The tribunal also stated that it accepted the appellant's evidence, in a signed statement, that her work colleagues, and Mr Boyd's, knew that they were not married. The tribunal did not accept contrary evidence given by the appellant at the hearing. It accepted that some colleagues might have thought that they were married, referring in that regard to letters from two work colleagues which the appellant had produced, but concluded that ‘those who knew them well, their closer friends and work colleagues, clearly did know that they were not married’. The tribunal also noted that there was no evidence that the appellant and Mr Boyd told people that they were married. It noted that, in her signed statement, the appellant said that Mr Boyd was keen to be married but that she did not think it was necessary.”

Not to spoil the ending, but their lordships (and ladyship) had no sympathy for Janet on the law, and she shan’t be receiving any survivorship monies. Obviously, I’m not au fait with the human story behind the law report’s account. It is perfectly possible that Janet Toner-Boyd – as she is ironically styled in the very judgement which denies her marriage – simply would have benefited from the money and tried her luck. I doubt it, however. There is a touching simplicity which hardly denotes connivance in making her application for bereavement benefits under her ‘unmarried’ name. Moreover, since we ought to go beyond an impatient lawyer’s reply and realise that the status of ‘marriage’ has both legal and non-legal content, the idea referenced at the end that she did not deem formal marriage necessary also rings true. We can see resonances of the same thing in other criminal justice stories of late. Member of Parliament, Jim Devine’s exculpatory remarks on Channel 4, talking about ‘not benefiting personally’ and by consequence, ‘being innocent’ of the charges he is faced with under the Theft Act clearly conflates the broad, ethical idea of blameworthiness – with the detachable, technical idea of guilt in law. Innumerable guilty men, banged to their legal rights, can justly cry ‘I’m innocent’ – and stammer their legally irrelevant defences in wasted appeal to a humanity which the law and its servitors simply don’t possess.