In one of two articles in this year's Valentine's Day series, Dr Benedict Douglas explains love's relationship to the law.
Love and the law are two things that do not intuitively seem to have a close relationship. But love is so important to us that I felt its role in the law needed to be properly researched. I was surprised to find that the law has always recognised and protected love. However, the law’s idea of love was until very recently defined by duty and property. Fortunately the Human Rights Act 1998 has been an irresistible force changing the law so that it increasingly (but not completely) reflects our modern idea of love, one grounded in respect for the freedom of individuals.
Love is difficult to define because we love different people. Writer, singers and friends give us definitions. But common to many ideas of love are two things: Love is a desire for togetherness with another, which affirms the identity of both the lover and the beloved, the values of the lover and value of the beloved.
In Plato’s Symposium Socrates and his friends drunkenly try to define love. Aristophanes tells us that humans were once spherical beings of three genders, with four hands and legs, and two faces, who were divided into two by Zeus after attacking the gods. Consequently, we feel compelled to wander looking for our other half. This story unites creationists and evolutionary biologists in disagreement, but it says the same thing that psychiatrists John Bowlby and Erich Fromm would argue 2,300 years later: that our strongest psychological need as human beings is to be with others: loneliness is unbearable. The existence of UK law and international human rights recognising and protecting relationships and family life reflects love’s importance. The absence of the word ‘love’ from rights documents shows the influence of the men or the English on their drafting.
We love different people and in different ways because our personal histories mean we have different values. Similarly, Martha Nussbaum has argued the relationships society recognises and protects is a product of the dominant values within it. The influence of a Christian and capitalist morality in UK society has meant that the law has until very recently recognised and protected relationships defined in terms of obedience to duties and the value of property. Same-sex relationships were not recognised by statute until 2004; the historic enforceable duty of husband and wife to live together, of the wife to submit and care for the husband and husbands to protect wives, diminished over time but was not declared legal defunct until 2010; and the requirement to prove some breach of marital duties to get a divorce was not abolished until 2020.
The tension between the historic and modern idea of love is a central feature of the Brontës novels. In Wuthering Heights Cathy tragically feels unable to choose to be with Heathcliff because his alien-ness to her society and class conflicts with the duties both impose upon her. Heathcliff, by contrast, embodies the modern form of love: his love is a free expression of his own will unconstrained by the morality of the time, and his affirmation of Cathy’s freedom of choice is seen in his acceptance of her decision to marry Linton. In Jane Eyre the heroine rejects the offers to become Mr Rochester’s mistress or the Rev St John’s missionary wife so that her ‘heart and mind would be free’.
At the core of the Human Rights Act 1998 is a protection of our freedom to choose how to live, and this has enabled people to use it to challenge laws grounded in the historical conception of love. Before civil partnerships or same-sex marriage were lawful, it enabled a gay man to stay in the home he had shared with his deceased partner. It was used by a different-sex couple, who objected to marriage on the grounds of its patriarchal history, to challenge the lack of legal recognition for their relationship, leading parliament to extend civil partnerships.
But duty and property are still important values in our society, and limit the protection of relationships. There is inferior protection for the fifth of couples who are in cohabiting ‘common law’ relationships outside civil-partnership or marriage. We still demand some formal public acceptance of duties to fully recognise relationships and protect partners. It is still the law that if you fall in love with a non-UK citizen, and you are part of the 1/3 of taxpayers who do not earn more than £18,600, you may be prevented from living together in the UK. There is a price on love. The stripping of British citizenship from people with dual nationality, such as Shamima Begum, separates them from their families. Echoing the colonial era punishment of transportation.
Our law reflects our society, and since the HRA 1998 both have changed considerably. But our society’s values need to change further for the law to fully protect love.
Dr Benedict Douglas is an Assistant Professor in our Law School. Our Law School is ranked Top 50 in the QS World University Rankings by Subject 2022. We are proud to deliver some of the best results for student satisfaction and employability – and our graduates include some of law’s leading figures, such as current or previous members of the UK Supreme Court, the Court of Appeal, Members of Parliament and others in Government.
