Marriage and the Moral Bases of Personal Relationships

Publication Date01 Dec 2004
DOIhttp://doi.org/10.1111/j.1467-6478.2004.00301.x
AuthorMavis Maclean,John Eekelaar
JOURNAL OF LAW AND SOCIETY
VOLUME 31, NUMBER 4, DECEMBER 2004
ISSN: 0263-323X, pp. 510±38
Marriage and the Moral Bases of Personal Relationships
John Eekelaar* and Mavis Maclean**
Marriage is a legal institution. Current debates about whether it
should be extended beyond its traditional heterosexual constitution,
and whether many of its legal incidents should apply to couples who
live together without marrying, and about the introduction of civil
partnership (modelled closely on marriage) for same-sex couples,
make an examination of its contemporary role particularly timely. This
article is about the interplay between the institution of marriage and
ideas of obligation within personal relationships. It takes as its starting
point some commonly held opinions. First, that the sense of obligation
which hitherto guided people's behaviour in their personal
relationships has much diminished or even disappeared. Second, that
this diminution is reflected in the decline in marriage. We will then
examine what the evidence of an empirical study conducted by the
Oxford Centre for Family Law and Policy reveals about the way
people in married and unmarried relationships understand the nature
of their personal obligations. In doing this it will be seen that the moral
bases which underpin people's personal relationships is complex and
does not correspond in a simple way with formal, external social
categories.
I. THE DECLINE OF OBLIGATION
1
Prior to formulating an argument (to which we will return) that the obligations
created by marriage constitute a human good, Scott Fitzgibbon asserts that `the
twentieth century brought a crisis of obligation'.
2
He cites little evidence for
510
ßBlackwell Publishing Ltd 2004, 9600 Garsington Road, Oxford OX4 2DQ, UK and
350 Main Street, Malden, MA 02148, USA
*Pembroke College, St Aldates, Oxford OX1 1DW, England
** Department of Social Policy and Social Work, University of Oxford,
Barnett House, 32 Wellington Square, Oxford OX1 2ER, England
1 This has been covered at greater length in J. Eekelaar, `Personal Obligations' in
Family Law and Family Values, ed. M. Maclean (2003).
2 S. Fitzgibbon, `Marriage and the Good of Obligation' (2002) 47 Am. J. of
Jurisprudence 41±69, at 47.
this proposition,
3
but the sentiment is common enough. Gilles Lipovetsky has
referred to the alleged phenomenon as `le cre
Âpuscule du devoir'
4
and Zygmunt
Bauman has described postmodern sociality as one which `knows not and hears
not of rights, obligations, contracts or legal entitlements'.
5
The `culprit' (if
such there be) for this state of affairs is said to be the rise of `individualism'.
Thus, in 1985, Robert Bellah and colleagues
6
identified `individualism' as `the
first language in which Americans tend to think about their lives', leading them
to value `independence' and `self-reliance' above all else.
7
For these authors,
individualism seems to denote a kind of self-centred indulgence, to be
contrasted with a disposition towards `commitment' and recognition of
`obligations'. But it is not so simple. Some writers have argued that the sense
of obligation to others has been replaced by a sense of obligation to oneself to
live a authentic life.
8
In a more complex analysis, Giddens in 1992
9
and Beck
and Beck-Gernsheim in 1995,
10
drawing on a wide range of contemporary
literature (in Giddens' case, especially psychoanalytical discourses), developed
a more complex version. According to Giddens:
Confluent love is not necessarily monogamous . . . What holds the pure
relationship together is the acceptance of each partner `until further notice',
that each gains sufficient benefit from the relationship to make its continuation
worthwhile.
11
511
3 His cites only the rise in bankruptcy filings by individuals and families in the United
States of America, an assertion by Allan Bloom that American students have
impoverished ideas of friendship (A. Bloom, The Closing of the American Mind
(1987) 82±140), and the claim by Patrick Atiyah that respect for promises has
declined in English life, see P.S. Atiyah, The Rise and Fall of Freedom of Contract
(1979) 649±59.
4 G. Lipovetsky, Le Cre
Âpuscule du Devoir (1992).
5 Z. Bauman, Postmodern Ethics (1993) 130.
6 R.E. Bellah, R. Madsen, W.M. Sulian, A. Swindler, and S.M. Tipton, Habits of the
Heart: Individualism and Commitment in American Life (1985, updated 1996).
7 id., p. viii. This was a very broad-brush analysis. Much of the discussion on values in
the private sphere centres around four individuals chosen as paradigms, who speak in
very general terms about their `philosophies of life'. The authors found that they had
difficulty in `justifying the goals of a morally good life'; they were confused about
defining `the nature of success, the meaning of freedom and the requirements of
justice.' Since these are issues with which philosophers and theologians have wrestled
for centuries, the problems of the respondents are very understandable. Similarly,
their observation that `Americans are . . . torn between love as an expression of
spontaneous inner freedom, a deeply personal, but necessarily somewhat arbitrary,
choice, and the image of love as a firmly planted, permanent commitment,
embodying obligations' does not do other than take up an age-old theme, whether
expressed in terms of conflict between individual passion and obligations to wider
family, country or spouse.
8 For an excellent discussion, see H. Reece, Divorcing Responsibly (2003) 84±92.
9 A. Giddens, The Transformation of Intimacy: Sexuality, Love and Eroticism in
Modern Societies (1992).
10 U. Beck and E. Beck-Gernsheim, The Normal Chaos of Love (1995).
11 Giddens, op. cit., n. 9, p. 63.
ßBlackwell Publishing Ltd 2004

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