Tearing up the sexual contract
I am publishing on this blog a series of excerpts from three of my books in which I have tried over the years to explain why western society seems to be tearing itself up by the roots. You can read the first one, about our secular inquisition, here. Today I’m reproducing excerpts from The Sex-Change Society: Feminised Britain and the Neutered Male which was published by the Social Market Foundation in 1999 and is now sadly out of print. These excerpts deal with how we have torn up the bargain between the sexes, the resulting effects on marriage and the baleful role played by lawyers who further undermined marriage through easier divorce. This has particular relevance today with the government in the process of yet further abandoning the concept of fault in divorce (if, that is, Britain still has a government that is functioning at all; but that’s another story).
Tearing up the sexual contract
There are three key characteristics of the new sexual order. The first is the spread of sexual relationships outside marriage, free from social disapproval. The second is the erosion of stable marriages, both as cause and result of the new spread of sexual relationships. The third is the widespread toleration of illegitimacy and the exclusion of the father from the family unit, now defined as the mother and child alone.
These three developments taken together have fundamentally altered the relationship between the sexes and the mating games that are played. In detaching sex from permanent union between individuals, they have robbed men and women of the freedom to make relationships with each other in which they can place reliance and trust. They have also had the momentous effect of marginalising men within family life, or even driving them away altogether. Fathers have increasingly turned into an optional bolt-on extra. Instead of being seen as an integral part of the family unit, men are now permitted merely to bring − in certain circumstances defined by women − additional value to it.
Single mothers are now a commonplace. To question this phenomenon is to stand accused of ‘demonising’ vulnerable women. It is said repeatedly that there’s nothing wrong with being a single parent. What’s important is not the type of family but the quality of the relationship. To be a lone parent is in itself perfectly acceptable.
This defensive attitude reveals a startling failure to acknowledge the critical nature of this change in our social norms. The term ‘single-parent family’ by definition excludes the second parent from the institution, while at the same time sanitising the loss. Children have two parents, and the family that unfortunately has only one is therefore ‘broken’ or ‘fatherless’ (since the children are usually brought up by the mother). The term ‘single parent family’ implies that there has been no loss, but that this is a type of family complete in itself. It therefore normalises what is abnormal. Single parenthood redefines the family as a unit without a man.
Yet this violates a fundamental law of kinship. The anthropologist Bronislaw Malinowski wrote in 1930: ‘The most important moral and legal rule concerning the physiological side of kinship is that no child should be brought into the world without a man – and one man at that – assuming the role of sociological father, that is, guardian and protector, the male link between the child and the rest of the community… This is by no means only a European or Christian prejudice; it is the attitude found amongst most barbarous and savage people as well… I think that this generalisation amounts to a universal sociological law.
Britain is now busy tearing up that universal law. Family life is increasingly fragmented and transient, giving rise to different types of relationship which have one thing in common − the peripheral or transitory role of the father.
It is because the mother and child unit by itself does not constitute an adequate kinship unit that every society has in the past regarded illegitimacy as a social taboo. According to Malinowski, the rule of legitimacy was universal in all societies. There was no single instance in anthropological literature, he wrote, where legitimate and illegitimate children were given the same social status. Legitimacy had ‘a great sociological significance which is not yet sufficiently acknowledged’. He wrote: ‘It means that in all human societies, moral tradition and law decree that the group consisting of a woman and her offspring is not a sociologically complete unit. The ruling of culture runs here again on entirely the same lines as natural endowment: it declares that the human family must consist of the male as well as the female.
Yet again, though, Britain has departed from this universal pattern. Single mothers are treated as if they are universally victims of misfortune. Some undoubtedly are: a few through widowhood, and rather more through abandonment by their husbands after divorce. Increasingly, however, never-married motherhood has become a lifestyle choice. Unmarried motherhood and births out of wedlock once aroused social disapproval. Stigma, however, is now taboo; there is an absolute prohibition against hurting people’s feelings by implying there is anything to be disapproved of in their chosen way of life.
This has caused a moral paralysis. Fear of giving offence has left people so reluctant to criticise irresponsibility that irresponsible behaviour has itself been redefined as blameless, even heroic. Having a baby without first safeguarding its financial and emotional security would once have aroused deep disapproval for jeopardising its future. Now, however, it is considered a woman’s right to have a baby, even if she has chosen not to protect herself and her child through marriage.
A situation that was once thought of as a misfortune is now regarded as an entitlement. As a result, lone mothers who did not choose their predicament but have been abandoned by their husbands receive scant sympathy. Why should they, since our intellectual and political élites have prohibited any distinction between ‘deserving’ and ‘undeserving’ situations? Why should they receive sympathy, since lone motherhood is said to be a woman’s rightful lifestyle choice which is as good as, if not better than, bringing up children inside marriage?
More remarkable even than that, there is an increasing trend for women to use men deliberately and instrumentally as the means to have a baby, but with no intention of living with the father as a family. Celebrities and other public figures have bestowed upon this strategy of elective fatherlessness a patina of glamour.
Mothers in these situations want the baby merely to gratify themselves, rather than seeing a child as the living embodiment of a spiritual and physical union with a man. The result is that the father is openly used and discarded.
A repeated refrain among such women is that, having failed to find a man with whom to settle down they fear they are running out of time to have a child. It doesn’t occur to them that maybe their own sexual behaviour is making it difficult to finds a permanent mate. What their body clock demands, however, medical technology now thoughtfully provides.
The onslaught against marriage has been spearheaded by the intelligentsia in both Britain and the US. These professionals are of the utmost influence in determining the norms of a culture. Between them all, they tore up the sexual contract and made it increasingly difficult for men and women to form the lasting associations they wanted to make in order to bear and raise their children. Yet that wasn’t enough to strike at marriage itself. The links in the chain were snapping, but there was one further coupling whose fracture dealt marriage a devastating blow. This was the change to the divorce laws which broadly abandoned evidence of wrongdoing for ‘agreement’ that the marriage was over, a change which profoundly undermined standards of conduct, altered the shape of sexual relationships, legitimised and encouraged irresponsibility by both sexes and perpetrated to an astonishing degree systematic injustice against men.
Easy divorce was supposed to be the symbol of freedom, the means to deliver the miserable from their yoke of married oppression so that they could float blissfully into Anthony Giddens’s plastic utopia. The point is, though, that no-fault divorce does not merely provide the means to end a marriage; it actively demeans marriage as well. If the commitment of marriage can be torn up with no good reason given, it becomes less meaningful even than a contract to buy a second-hand car. As the actress Goldie Hawn, who has lived with actor Kurt Russell for 16 years after both were divorced, said: ‘Just getting married didn’t mean for either of us that we had lived happily ever after. If that promise that we make in marriage can be broken, why bother to make it?
The combination of divorce with the loss of economic privileges has meant that marriage no longer guarantees the security which is its fundamental feature. In most countries, the marriage vows are reinforced by social ostracism, financial costs for those who separate, legal penalties for the spouse who is primarily responsible for the breakdown of the marriage and positive support for marriage in the form of social and economic privileges. Many of these have been weakened or eliminated in Britain and the US. As the economist Robert Rowthorn has argued, far from expanding personal freedom this loss of security in marriage has significantly restricted it. Marriage is primarily an institution that creates trust between individuals. Since its promises are no longer legally enforceable, however, its guarantee of security is no longer credible. This has led to a major erosion of trust, and deprived individuals of their freedom to make credible commitments to each other.
Defenders of these ‘no fault’ divorce laws argue that they did not alter the shape of family patterns but simply reflected changes in attitude that had already happened. Of course, laws don’t emerge from a vacuum: they are certainly shaped by prevailing social and cultural norms. However, the divorce laws, like so much in the family debate, were reformed by unrepresentative groups with very particular agendas of their own and which were not in step with public opinion. All the evidence suggests that public attitudes were gradually dragged along behind laws that were generally understood at the time to mean something very different from what they subsequently came to represent.
In any case, the argument that the law has no effect on public attitudes is bizarre and significantly, is a claim that is only made in respect of family obligations. As one American lawyer pointed out, ‘only when the morals to be legislated have the potential of impeding the affected person’s “liberty” to leave his family when he so chooses do we hear objections. For example, in matters of breach of contract, no-one has objected to assigning blame for failure to perform a contract, requiring that contracts be performed in good faith and assessing damages based upon whether the party breached to contract in good or bad faith. If principles of contract law involve moral judgments in the context of a relationship between strangers, why should the law hesitate to make a moral judgment about spouses who have been married for thirty years and have three children?’
The whole point of the law is to regulate and constrain behaviour by laying down norms, deviation from which earns social sanction. Laws prohibiting murder, say, or theft were laid down not primarily to punish those who committed these crimes but to deter people from behaving in this way by pronouncing such behaviour, with all the force society could muster, to be wrong. Law delivers justice by assigning responsibility for anti-social conduct and dealing with the miscreant accordingly. In civil law, that means that anyone who breaks a contract without good reason incurs a penalty.
This is fundamental to justice. Without such an underpinning, justice becomes impossible, law becomes meaningless and behaviour turns anarchic. So much, one might have thought, was obvious. Yet when it comes to divorce and family structures, our governing classes solemnly aver that these most fundamental areas of our lives are wholly impervious to the influence of the law, public policy or the example set by society’s role models. Instead, we are led to infer, they have resulted from huge cultural forces from which the law, political initiatives, academic discourse or the behaviour of public figures are all completely detached. What these huge cultural forces actually consist of, therefore, remains a mystery.
Many family lawyers refuse to acknowledge that the law influences marital behaviour. The Family Law Act 1996 introduced unilateral repudiation of marriage into English law for the first time. Although this provision was abandoned as unworkable without ever being brought into force, those who sought to justify it said it would merely civilise a process whose incidence was impervious to law or public pronouncement. It was simply the latest attempt by the law to manage cultural change, over which law had no influence whatsoever. Yet as the legal academic Ruth Deech has pointed out, every change in the divorce law has been presented as a tidying up exercise to civilise the process; yet after every such change, the divorce rate rose. The more divorces there were, the more people thought of divorce as a solution to their problems. The more willing people became to use it, the more pressure grew on the system. Greater pressure led to a relaxation of the rules, leading to calls for further changes in the law to bring it in line with reality, and another increase in the divorce rate.
The truth of the matter was that divorce law, like any other law, both reflected and created cultural change. The law professor Mary Ann Glendon has chronicled the way family law itself progressively changed every one of the assumptions it had made about domestic relations, with the most dramatic changes occurring in the last twenty years. Family law no longer held that the family served society but worked instead for the fullest development of the individual. One unintentional effect was to realise the dream of the French revolutionaries: ‘that citizens would one day stand in direct relation to the state, without intermediaries’. However, she observed, it was wrong to say that family law had simply kept up with the times. It had often been as much at variance with prevailing social attitudes and practices as the traditional systems it replaced.
In particular, there were two crucial areas where she said family lawyers were out of step with reality. First, it had promoted the notion that individuals were autonomous. ‘Most glaringly, the legal imagery of separateness and independence contrasts everywhere with the way most functioning families operate and with the circumstances of mothers and young children in both intact and broken homes. Yet the law holds self-sufficiency up as an ideal, suggesting that dependency is somehow degrading, and implicitly denying the importance of human intersubjectivity’.
Her second vital point was that family law believed that it should not impose any values except for equality, individual liberty and tolerance which were all subjective. ‘The result is often that other normative legal propositions have tended to be phased out, even when they are quite widely shared’. Nor could family lawyers pretend that the law was neutral in its effects on attitudes and behaviour. ‘In a way that is no less real for being unquantifiable, laws remitting unilateral divorce on demand, for example, must have a certain influence on the way people think and feel about personal commitments’. She concluded that where law ran counter to other prevailing trends, it had little effect on cultural norms but where it ran broadly in line with them it had considerable effect. ‘This line of reasoning leads to the suspicion that … law and government may have been more influential in contributing unintentionally to those dis-integrating trends … than when they have deliberately set out to strengthen families.’
All of this was certainly true. The divorce laws both encapsulated and promoted a set of socially destructive values, which combined to purvey the message that adults were free to tear up the promises they had made and pursue their own selfish desires at the expense of trust, commitment and their children’s interests. This was because family lawyers, from whom every push for divorce reform has emanated, persist in beliefs that go against the grain of human behaviour and our deepest instincts for fairness and justice. They insist that the law must be neutral on family life, taking no position for or against any particular family structure. This approach is as dangerous as it is dishonest.
Law can never be value-neutral. It inevitably embodies values of one kind or another. The value that family law now embodies above all else is that conduct no longer matters. This is a recipe for injustice, the equivalent of the legal system tipping the wink to bad behaviour. Such a refusal to judge between right and wrong immediately creates intellectual absurdity. It is currently very common, for example, to hear judges, marriage guidance counsellors and even government ministers express the view that a man might not be wrong to commit adultery if his wife has refused to have sex with him. By this reasoning, it would follow that if the man beat his wife to a pulp because she refused to have sex with him, our judges would similarly refuse to condemn him. The illogicality exposes the argument for the weasel that it is. The reason for the reluctance to judge adultery to be wrong is because of the reluctance to judge any behaviour to be wrong, unless there is demonstrable physical harm.
Moreover, the claim that the law remains neutral between family structures is deeply disingenuous. Family law has been driven for at least thirty years by a specific animus against marriage and against men, which has been able to ride on the back of its additional and naïve belief that the law should no longer stand in the way of the overriding right to happiness, as expressed in the 1969 Divorce Reform Act. This was the watershed change that replaced the need to prove fault with the notion of ‘irretrievable breakdown’ of the marriage, which could be demonstrated by adultery, unreasonable behaviour, desertion or separation. The law no longer needed to decide much at all: judgment had become subjective. Not surprisingly, in 1973 a special procedure was introduced to allow couples to divorce without even appearing in court. Divorce law had become little more than an administrative facilitator. The result was twofold: the significance of divorce was greatly diminished, and the way was then open for a specific anti-marriage, anti-male agenda to move in.
The Law Commission, which has initiated the changes to family and divorce law, has been consistently hostile to marriage, pushing tenaciously for its rights and responsibilities to be extended to the unmarried. In 1980, Professor Brenda Hoggett QC [now Baroness Hale, president of the Supreme Court] who for many years was the driving force behind the Law Commission’s family law policies, wrote: ‘Family law no longer makes any attempt to buttress the stability of marriage or any other union. It has adopted principles for the protection of children and dependent spouses which could be made equally applicable to the unmarried. In such circumstances, the piecemeal erosion of the distinction between marriage and non-marital cohabitation may be expected to continue. Logically we have already reached a point at which, rather than discussing which remedies should now be extended to the unmarried, we should be considering whether the legal institution of marriage continues to serve any useful purposes’.
Other family lawyers agreed. Professor E.M. Cliff, for example, challenged the assumption that marriage law was necessary at all. ‘The traditional obligations of married couples to live together and be sexually faithful to each other are manifestly unenforceable in modern conditions and could be discarded without any difficulty,’ he wrote. The Law Commission said there was no more need to support marriage than ‘any other living arrangement’ and expressed insouciance about the high rates of divorce. It airily concluded ‘…the number of divorces does not, as is sometimes alleged, indicate any fundamental weakening of the fabric of society’.
Having redefined marriage as little more than a temporary staging post, law reformers actively promoted the idea that the family unit need no longer promote sexual fidelity and need not contain a father. As Brenda Hoggett observed: ‘The radical improvements made and still proposed in the remedies available for dependent wives have greatly reduced the legal attractions of marriage for men… As long as women are willing to cohabit or associate with men without marriage, then men are not sexually penalised for remaining single. If access to women is not contingent upon marriage and if the father’s role is devalued, then non-marriage becomes attractive.’
The deeply disingenuous hallmark of many of these lawyers’ arguments was to observe the slide away from marriage caused in part by the operation of the law, and then urge further changes to the law to ‘regularise’ the new landscape. Thus the notion of legitimacy was altered and unmarried parenthood given the stamp of legal approval.
The Family Law Reform Act 1987 removed almost all legal disadvantages suffered by illegitimate children and gave the unmarried biological father almost the same rights as the married father. The law constantly chipped away at the position of the married father by giving the unmarried father equivalent rights. Fathers could have their share in their children without living with them or being actively involved in their upbringing; but of course, they always had to pay. Under the guise of being fashionably non-judgmental and dispensing an Olympian even-handedness, the law was actively building a model of the family in which the father was becoming an optional extra.
Such ‘even-handedness’ produced ever more breathtaking calls for what amounted to legalised expropriation of assets, in which women would mainly be the beneficiaries of such injustice. Dame Mary Arden, a high court judge and former chairman of the Law Commission, said for example that if a couple split up, it was unfair for the one who had paid the mortgage to retain the property while the other who used the earnings for the shopping did not. Thus spending money was made the moral equivalent of earning it.
A solicitor, Mark Harper, wrote approvingly: ‘It is not the purpose of family law to discriminate against people who live in different types of families or relationships but it is the purpose of family law to protect the vulnerable if a relationship breaks down’. This, of course, ignored the fact that the law might be making it more likely that relationships would break down and thus hurt the vulnerable. Indeed, they would become even more vulnerable, since the evidence suggests that cohabiting couples are at the greatest risk not merely of violence by each other but the most dangerous forms of violence.
This ostensible neutrality is not only turning its back on the elementary rules of justice embodied in contract law. It is also standing justice on its head, rewarding miscreants and blaming their victims instead for causing distress. The Law Commission, for example, is considering recognising the rights of mistresses who have contributed more than a sexual role to their relationship with married men. This was hailed by one commentator as ‘exciting news for those women who for years have been living silently in the shadow of their lovers’ marriages’. The cause of her excitement was the premise beneath this proposal that marriages are doing the mistresses harm.
The fact that wives are the victims here of the bad behaviour by men and their mistresses has been completely inverted. The victimiser becomes the victim. Women who are principal parties to serious breaches of trust are to be recompensed for their destructive behaviour. The longer the affair continues, the longer mistresses behave badly, the more claim they apparently have for compensation. In the Law Commission’s moral universe, therefore, marriage is an offence against the unfaithful. Bad is to be rewarded, good is to be punished.
Far from objecting to this Kafka-esque scenario, family lawyers approved. Margaret Bennett, a solicitor specialising in family law, thought it was a badly needed move towards ‘generally reassessing the status of modern relationships’. ‘Once you start giving mistresses and cohabitants rights, what is the point in having marriage?’ she asked, and wondered aloud whether this was a step towards polygamy.