Contract law is a vast subject, but at root, it is the process of making and enforcing agreements between two parties that do not fully trust one another. Any mutual mistrust is compensated for by mutual trust in some other mechanism.
This could be a dispute process set up by the contract, an authoritative third party such as the courts, or simply the ability to abrogate the contract and walk away. Contracts and agreements are transactional – each party accepts responsibility for a well-defined action, but that responsibility is only valid so long as all other parties live up to theirs.
When the contract is completed no further action is required, and when a contract is abrogated all responsibilities are void. Everybody pays something and gains something else in return. It would be foolish to do otherwise, for fear of being seen as an easy mark.
Contracts and agreements are thereby one of the basic foundations of civilisation. But they are not a foundation of society.
Civilisation relies on written records, objective norms, and a system within which strangers can coexist. But society predates civilisation. At the heart of society are interpersonal relationships, informal conventions and, most importantly, mutual trust.
One does not normally rely on the law when dealing with family and friends. We constantly perform small favours for each other in good faith, and only rarely keep a running tab. When a personal relationship becomes subject to a court of law, it is a sign that something fundamental has gone wrong.
One also does not normally sign a contract before entering a shop, playing a game or crossing the road. All these things are subject to the law, but only as a last resort. We are trained from childhood to say thank you, pay what we owe, take our turn, and generally assume that other people are trustworthy until they prove otherwise.
We all subconsciously obey the golden rule and only occasionally need to be reminded of it. Even in lawless parts of the world (perhaps especially in lawless parts), informal norms function as a vital social glue. Honour and dignity survive and thrive in places where barely anything else can.
Northern Ireland is not a lawless land today, nor was it at the height of the Troubles, even if at times it may have appeared so on the evening news. It does not lack laws or institutions, imperfect as they are. It does, however, lack trust.
Not trust at the level of entering a shop or crossing the road. If anything, NI is more open and genuine than the stereotypical modern society – but only on the condition that certain subjects are avoided.
These are the shibboleths that can instantly turn a social gathering cold, and render politicians incapable of rational thought.
I don’t need to name them. We all know what they are.
So while some troubled parts of the world have a strong society at a personal level and a weak civilisation on top, NI finds itself with a strong civilisation but a weakened society underneath.
The former may not seem so strange – in honour-driven societies, there are of course subjects such as religion that is best avoided. But it is rare to find a politically stable country where the most urgent political arguments remain socially taboo.
For the majority of the time, we can live as equals in one social space. Shopping, working, eating out, even having a pint (in certain pubs).
But when the touchstone political subjects come up, we declare that the person we sit beside for eight hours a day five days a week is one of Them, and that we cannot talk to Them directly, only through Their political representatives.
Just like an estranged couple lawyering up in preparation for an ugly divorce, we politician up in expectation of an argument that we can’t bear to engage in personally.
It is, of course, a defence mechanism. But once we politician up, nuance and compromise are treated as deadly weaknesses. Politics at one remove becomes as transactional as a contested divorce, a corporate acquisition, or a strategic arms treaty.
The countless delicate relationships of society are reduced to line items. The grace and generosity that we take so much pride in vanish like the morning mist.
It was memorably said of the Republic’s equal marriage referendum that it was the result of honest conversations around kitchen tables in every town in the state. A once-controversial issue was discussed directly, and in good faith, at the personal level.
Many of these conversations were difficult and uncomfortable. But they were made possible because the people on either side of the issue shared, and continue to share, a kitchen table.
The necessary strong social relationships were already in place to build a frank political discussion upon. There were no spokesmen, no politicians in these thousand tiny debating chambers. Society moved, and civilisation followed. Nobody demanded that the losing side was entitled to compensation.
Around whose kitchen table will Northern Ireland’s divisive political issues be honestly discussed? Where are the enduring social bonds that can support the difficult compromises required?
When will we stop insisting that any change is a concession to Them that must be paid for in full?