Lawless Love and Legal Headaches: The Case for Court Records as a Source of Legal and Historical Realities in Colonial Histories

Abstract

The extensive legal, social, religious, and political discussions surrounding marriage that were present in colonial New Zealand have meant that researchers of Aotearoa New Zealand's past have assumed that colonial couples were invariably married. Furthermore, there has been a prevailing assumption that the courts of law upheld and enforced marriages when couples appeared in court. Recent archival findings are compelling us to reconsider the degree to which colonial inhabitants adhered to conventional marriage practices and how the courts of law applied marriage law doctrinally. This article posits that court records, as a source of social and legal drama, are vital to uncovering not only the existence and extent of non-conforming couples in colonial spaces but also how ‘lawless love’ interplayed with colonial economic and legal practices that expose the pragmatic and flexible nature of the law in colonial settings. This suggests that a doctrinal approach to legal histories, which involves taking the law as it was written and assuming that people lived by it, is not an accurate measure of legal and social realities.