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Contracts In Close Personal Relationships

The preceding sections have provided insight into the nature and scope of contracts in close personal relationships. We now turn to the professionals' role in deploying this theoretical model.
When partners in a close relationship ask legal practitioners to prepare and draft contracts defining their patrimonial (economic) relationship, the practitioners are generally well equipped to so do within the parameters of state law [50]. However, some people may question whether they would be able to integrate extra patrimonial (non-economic) stipulations specifying the relational aspect of their life project in the contract. They may reasonably suppose that such "unenforceable" stipulations are of little use and ultimately dismiss them as irrelevant [51].

Classically trained legal professionals adhere to a monist definition of the law. Their practice is generally limited to state law. They see themselves as messengers of the law, responsible for channelling the parties' intentions into legal categories prescribed by the legislator. As Professor Belley states, the contracts and other instruments they handle are so rigidly regulated by the law that they can, for all intents and purposes, be considered an individual extension of general law [52]. And while the patrimonial component of a contract in close personal relationships falls within one of the categories prescribed by the legislator, the relational component does not. The obligations contained in that component are unenforceable cannot be understood through the logic of a statute.

Thus, to develop the relational component, professionals must reconsider their position. They will only be able to integrate this contractual rationality if they adopt a pluralist approach to law and normativity. They should offer their services as "specialists in the interface of normative orders, or brokers of legal pluralism" [53] instead of simply as state law experts.

Naturally, practitioners will remain legal experts who can provide the partners with all relevant legal information and satisfy their legal needs. It is not a question of denying them this ability or devaluing it, but rather, of enlarging its scope. Legal professionals who are sensitive to internormative [54] phenomena will view the partners' situation as a true source of investigation and problem solving. The answers to the problems with which they are faced will no longer be found solely in the law and official doctrine; they will also be drawn from the partners' experiences, customs, values and surroundings [55].

Practitioners who are able to adopt and integrate a pluralist approach to law will undeniably contribute to the renewal of their role and their function in the process by which legal norms are created. Instead of just applying the law in a servile manner, they will become true "architects of the private social order" (to use Professor Roderick Macdonald's expression) [56]or, as Professor André-Jean Arnaud would put it, creators of law [57].

I should note in passing that practitioners who memorialize the relational component must be open to the other social sciences in the practice of their profession. Legal professionals will not only be responsible for ensuring that the formal and technical legal requirements are satisfied, but also for assisting the partners to develop a charter for their life together by helping them identify their mutual expectations. In this regard, their role will be to encourage the partners to communicate so they can express perceptions and expectations that would otherwise remain unspoken. Obviously, this requires a certain degree of psychological and social insight.

The approach I advocate is not an unprecedented approach born of pure intellectual fantasy. Lawyers and notaries already intervene professionally in areas requiring such skills. Family mediation is just one example. Lawyers and notaries are authorized to act as mediators under certain conditions. Strictly speaking, mediation is not a legal act; rather, it is a process that favours communication between spouses who would like to come to a settlement about the consequences of their separation [58]. Legal professionals acting as family mediators must exercise certain aptitudes that are more closely identified with psychology and couples therapy than with the practice of law [59]. They must encourage exchanges in a highly charged atmosphere, be able to listen actively and demonstrate considerable insight into the attitudes expressed [60]. In short, professionals engaging in family mediation are required to intervene in way that extends well beyond the usual practice of law. As social worker Linda Bérubé has observed:

[TRANSLATION] Mediation is not a profession, nor is it a new therapy or way of practicing law. It is a new practice defined by precise rules, and while it draws on the knowledge and experience of its practitioners, it modifies substantially the way in which these skills are applied and requires the development of a complementary set of skills not usually required in their practice [61].

Similarly, legal professionals called upon to help the partners develop the relational component of their contract must not disregard the psychological and emotional nature of their close relationship if they are to carry out their mandate successfully [62]. This is the only way they can satisfy the partners' need for ordering as fully as possible.

Law faculties naturally have an important role to play in promoting this renewed approach to the practice of the profession. As Professor Belley has remarked, law professors [TRANSLATION] "must recognize that they have a major responsibility to emphasize the evolving nature of the legal paradigm and the way its potential effects are addressed [63]." Their privileged position as practitioner trainers allows them to help redefine law and its practice. In addition to conducting research, as teachers they can guide future professionals into assuming a social role that extends beyond the strict limits of legal positivism [64].