Liberalism, or liberal-conservatism, in its classical British sense, is both a moral-ethical and social-political doctrine-in-progress committed to the search for the best-we-can-achieve way of life. In extolling “individualism” it offers a view of moral conduct as comprising personal freedom and personal responsibility. Liberal individualism does not mean selfishness, unfettered freedom and self-regarding isolation from others, but rather a keen acknowledgment of oneself as a socially active moral agent restrained by responsibilities arising from chosen conduct and commitments. Both in personal matters and as a citizen, this means the acceptance of certain constraints on freedom of action and responsibility in meeting obligations. The scope and justification of such constraints are an issue for liberty.
In politics, liberalism defines liberty as those conditions of government, law and customary norms that will allow individuals, enterprises and institutions to flourish with a minimum of interference by the state; but not at the expense of others. Liberalism is not averse to change—quite the contrary; but it is committed to empiricism and critical judgment in confronting calls for change and in assessing the consequences of major changes already made. This is the conservative, sceptical, anti-utopian and realistic aspect of liberalism that promotes avoidance of error or recovery from it. We happen to be living at a time, particularly since the 1960s, when these attitudes and principles have special relevance across virtually all of the major institutions of Western societies. In many areas we face a “legitimation crisis” as the nature of long-established institutions is challenged and changed in the name of “progressiveness”.
There is wide agreement, for example, that the institution of the Australian family and its foundational institution of marriage have weakened over the last forty years or so with unwelcome outcomes for both adults and children and, more widely, for Australian society. The evidence, which is overwhelming, is beyond the scope of this essay; its concern is with the limited issue of how the liberal principles described above should apply in the institution of marriage—in the character of the bond between husband and wife and in family life. We seem to have lost clarity about the nature and purposes of marriage and the roles of individual conduct and law in such matters. This uncertainty spills over into discussions about the directions for public policy in ordering a variety of intimate human relationships other than marriage.
The outstanding fact about modern marriage has been its steady social, moral and cultural simplification, as one instance of the more general cultural trends towards levelling and evasion that ignore manifest and significant differences in the name of equality and anti-discrimination. Curiously, marriage means less than it used to while other relationships now mean more than they used to—cohabitation, for example, which has become more restrictive as marriage has become less so. Nevertheless, the change in the status, importance and stability of marriage has provoked misgivings for a number of reasons. Conservative sentiment bemoans the increase in divorce and sees it as excessive. It regrets the unhappiness and descent into welfare dependency that often goes with broken families, and deplores the sadness, disruption, and often serious emotional and behavioural problems that ensue for children. The idea of marriage as a lifelong commitment “till death do us part”, has been greatly weakened and marriage made more “convenient”. It is no longer the preferred accompaniment of extended cohabitation by young couples. The former conventional stigmas attaching to births outside marriage, and single motherhood as a preferred choice, have disappeared along with their social function of disapproval for depriving children of involved fathers and social inclusion (“legitimacy”).
For many liberals, all of this and easy divorce may represent an increase in sexual freedom, liberation from lifelong bondage in an unhappy marriage and the prospect of greater individual autonomy. With the loosening up of marriage law and the disappearance of some restrictive conventions surrounding marriage and procreation, it would seem that liberalism is triumphing. Other liberals may be troubled, however, by questions whether, in some circumstances, this has promoted a retreat from the personal responsibility and protection of the interests of children and others that liberalism requires as these developments have gathered increasing momentum over the last generation or two.
The privatisation of marriage
An arresting example of the thinking behind these changes is highlighted in a review essay in the Spring 2010 issue of Policy, in which Andrew Norton discusses from a classical liberal perspective a number of suggestions about marriage and partnerships in a book by Tamara Metz called Untying the Knot, the State, and the Case for Their Divorce. Her central idea is that the state should play no role in any but the most general arrangements and rules concerning partnerships and marriage. Marriage, as a special province of law, should be “disestablished” and be just one amongst several kinds of “intimate caring relationships” all having equal status in the law.
In exploring these proposals, Norton begins by saying, “Core liberal ideas suggest that marriage and state should be separate”, but goes on to quote Metz’s preliminary observations that liberal thinkers of the past, such as John Stuart Mill and John Locke, accepted a role for the state and both assumed that marriage, unlike religion, would be “established” as an institution officially recognised and regulated by the state.
Metz observes, inter alia, that in matters of marriage, even though Locke, in particular, believed that men and women should be free to enter or leave marriage by consent, he drew the line where children were concerned and believed the state should hold couples to their responsibilities to their children. Mill believed in the equality of men and women before the law in matters of marriage, but nevertheless believed that the state had a role in limiting who could enter marriage and the reasons for leaving it, and took a strong view on the state protecting the obligations to children, as well as taking a conservative view of divorce. In this, as Norton points out, Mill disagreed with Wilhelm von Humboldt’s position, in The Limits of State Action (1854), “that because marriage depends on the couple’s feelings, it should require nothing more than the declared will of either party to dissolve it”. To this argument Mill responded that marriage is based on the expectation that the relationship will continue and that this creates obligations even if the feelings of the parties have changed, and that easy divorce would undermine these legitimate expectations.
Norton makes the following comment:
On Metz’s analysis, Locke and Mill identify good reasons for regulating family relationships in ways that go beyond whatever private agreements or understandings may exist among couples. But Metz argues that Locke and Mill blur two aspects of marriage that should be separated. Obligations to children and partners frequently coincide with marriage, but the same arguments apply whether or not a marriage ceremony has taken place. By contrast, the state need not involve itself with matters such as the nature of the ceremony, the meaning given to the marriage by the couple and the community, and any other obligations created by the marriage. The underlying purpose of the rules that Locke and Mill propose for marriage can be achieved without regulating marriage itself …
Changed circumstances mean that while liberal principles may guide a contemporary liberal approach to marriage, the great liberal thinkers themselves cannot answer all the questions raised by current circumstances.
Perhaps so, but some observations can be offered about what has made “current circumstances” and about Metz’s statement above that: “Obligations to children and partners frequently coincide with marriage, but the same arguments apply whether or not a marriage ceremony has taken place.”
It is true as she says that the obligations to children are the same whether the parents are married or not, but what about the obligations of spouses to each other that define marriage? It is only recently that “obligations to partners” (or the absence of them) in both marriage and unmarried cohabitation have become similar. This is so because, as mentioned earlier, unmarried cohabitation is now more restrictive, and marriage less so, because sanctions against fault (such as desertion and infidelity) have disappeared from marriage law. In other words, marriage law no longer takes account of serious misconduct short of criminal or tort offences. There was a time when the law did take account (before 1975) of the spousal-conduct “obligations” peculiar to marriage and articulated in the traditional marriage vows. This was an important element distinguishing the “meaning” or ethos of commitment and appropriate conduct within marriage as against simple cohabitation without commitment. If the state (qua community) establishes rules of conduct for certain circumstances, to that extent it establishes meaning, and it creates new meanings, and presumably altered conduct, on average, when it significantly changes or deletes the rules.
These questions are an important part of the challenge of “current circumstances” to liberalism for which answers must be found. But Metz’s answer, as Norton points out, is that marriage should be disestablished. Metz would substitute for marriage, and some other relationships, what she calls “intimate care-giving unions” (ICGUs), the laws of which would, in Norton’s summary:
manage the risks, responsibilities and rewards of intimate care-giving by taking over the material aspects of current family and associated law. Welfare benefits, next-of-kin rights, inheritance, and the rules of distributing assets after relationship breakdowns would be linked to ICGUs rather than marriage. Metz suggests that on dissolution of an ICGU, property should be divided to “achieve substantive post dissolution equality”. Metz sees ICGUs as applying to all intimate care-giving relationships, including marriage, same-sex couples, multi-partner relationships, and non-sexual relationships. People who provide unpaid care to the elderly, children or the disabled would potentially be eligible for ICGU status, though with her focus on marriage-like relationships, Metz provides little detail on how these might work.
Metz is not the only writer on family matters working towards the re-casting of marriage. Martha Nussbaum’s book From Disgust to Humanity moves along similar lines. In a recent article discussing this book and its implications for marriage and other kinds of relationships, including same-sex relationships, Tim Soutphommasane, writing in the Australian in March, acknowledges what he calls (without explanation) the “expressive aspect” of marriage, but nevertheless wonders “whether things would be simpler if the state stayed out of the business of dignifying marriage altogether … by, well, privatising marriage”. And what, one might ask, is the objection to “dignifying” marriage?
Metz, in particular, raises a host of questions about different kinds of interpersonal relationships and circumstances and how they might be regulated. With our focus on marriage here, they will not detain us, even though such questions are germane for liberals. Nevertheless, what she suggests would not dismiss the state from regulating a range of interests at stake in “intimate care-giving unions”. There is thus an acknowledgment that “responsibilities” would come within the purview of legal regulation, so, to that extent there is no privatisation because the state would enforce those regulations.
Rather, what Metz seeks is the removal from the law of any recognition of the traditional marriage relationship as something different and special and therefore a proper subject for forms of regulation specific to it. So the questions to be dealt with here are whether there are things about marriage that objectively distinguish it in important ways from other intimate care-giving relationships, whether these differences and the responsibilities that go with them should be acknowledged and protected by law, and whether such acknowledgment would be consistent with liberal principles.
As a preliminary, can we identify criteria of marriage that might justify a unique identity for it and thus the continuation, or rather the restoration, of its special social and legal (and “dignified”?) status?
Marriage, as presently defined in Australian law, is a public commitment by a man and a woman to each other in a putatively permanent relationship to the exclusion of all others. In fact, the actual regulatory content of the Family Law Act 1975 does not go on to support this definition. For example, consistent with the Act’s “no fault” objectives, the “exclusion of all others” is negated by Section 120 of the Act that says “no action lies … for damages for adultery”. Whether or not this may be an invitation to concubinage, the law’s definition of marriage raises the key question: Why is marriage, both in the law and traditionally, seen as exclusively heterosexual?
Marriage and heterosexuality
It is a banal observation but a profoundly important fact that there are two sexes carrying important physical, hormonal and behavioural differences as well as fundamental similarities. Men and women are different sorts of persons and the differences are full of implications for the relationships of men and women and the love and devotion that may occur between them. The male–female divide is perhaps the most pervasive and portentous of all the human and social categories and the bridging of that division in the sexual, interpersonal and domestic union of marriage is a virtually universal consummation whose importance for men and women cannot be exaggerated. The commitment to a fully shared life together, uniting the two sexes, transforms innate differences into a new entity with characteristics of its own emerging from the joined particularities of its constituents. Heterosexual marriage thus has multiple meanings not only for the individuals concerned but for every human being and the societies in which they live.
The complementarities of male and female bodies and personalities allow and promote procreation and distinct kinds of sexual pleasure and emotional fulfilment. Beyond that, men and women want and need each other in order to achieve those larger promises and possibilities of life that flow from their differences and similarities. Male–female couples are capable of launching enterprises that are mutually enriching in ways that are simply unique because of the innate differences they may exploit through a variety of forms of co-operation and division of labour for mutual benefit. The married heterosexual household is an example, providing many forms of production, creativity, education, entertainment and recreation—and the more so if there are children as well. Conceiving and rearing children together is one of the most treasurable of all forms of human fulfilment. And it is well established that children are much more likely to thrive and successfully mature if they are reared by both their natural parents.
However, it does not follow that procreation, or the capacity of a couple to procreate or even effect coitus, is a necessary requirement for marriage, else the marriages of those couples beyond an active sexual (or genital) life should become null and void, and marriage become beyond the reach of a couple physically incapable of procreation. The unique, extended and intimate engagements possible for men and women through marriage and its gendered potentialities, even if it eventuates in an absence of children or the sexual act, are sufficient and permanently valuable.
So, long-term committed heterosexual companionship per se has its own claim to marriage. Many marriages prove to be stubbornly infertile, many couples marry without the intention of having children (although some might change their minds) and many older couples, especially widows and widowers, choose marriage knowing that having children is now beyond them but seek to establish, or restore, the bond and union of marriage. Thus, the commitment to heterosexual bonding in marriage has its own attractions and the distinctive values described above justify the marriage relationship independently of children. Accordingly, heterosexual commitment and bonding must be one of the defining characteristics of marriage. It is not surprising that marriage throughout the world is overwhelmingly a heterosexual phenomenon for a number of reasons that are obvious on reflection but rarely spelled out.
That justification for marriage is nevertheless reinforced and sealed, if children are born, by the imperatives of children’s demands and entitlements. This likelihood is a central institutional driver of marriage everywhere because children and their wellbeing are so important. Children must be born, cared for and socially “placed” if societies are to continue more or less coherently; and children will be born because women and men not only want each other—most of them will also want children either for their own sake or for more utilitarian reasons. When born, apart from loving care by their natural parents, children immediately acquire a range of entitlements that include biological kinship and a social identity vouchsafed by family name. Rearing children successfully is a long, drawn-out task that, ideally, requires the sustained work and co-operation of their natural parents. It is clearly in the interests of children, therefore, that the parents establish a “marriage”, or its simulacrum by another name (“common law”, or “de facto”, marriage, for example), of indefinite duration, but hopefully long enough for the rearing job to be completed.
Implicit in all of this is a further and fundamental justification for a legally and culturally institutionalised system of enduring heterosexual marriage that hinges on the welfare and best interests of children and the wider importance for the society at large of a stream of well-reared new citizens who have been bathed in the nurturing and educative experiences of having both a mother and a father. Children who have seen how their parents live and work together absorb the ways in which differing gender endowments may enrich human life. Herein lie lessons for their human rounding and future life in a gendered society and for the formation of a heterosexual liaison and management of their own families in the future. That this should normally be the case is an essential part of the great wheel of human life. The unfortunate children denied such experiences and benefits suffer for the loss. Even though they may go on to fashion a good life for themselves under the protection of other adults, it is a denial best avoided where possible. To be reared by a caring couple in a heterosexual relationship should be the right of every child. Indeed, custom and public practice until recently have sought to ensure that orphaned and abandoned children, or children seriously neglected by their natural parents, are placed with adoptive heterosexual couples or appropriate relatives or foster couples or, as a last resort, public institutions.
Commitment in marriage
In all areas of life, personal commitment to fulfilling a promise or a contract is fundamental to co-operation, division of labour and completion of enterprises for mutual advantage. Without it, productive social action, trust and coherence would be gravely diminished and often impossible. In Western marriage, and widely in marriages elsewhere, this voluntary commitment is an essential defining element. The moral and social portent of marital commitment and its significance in establishing the individual character and intentions of those who so commit, have made marriage an occasion for social notice and some form of celebration in virtually every society. Commitment is of crucial importance for the putatively life-long expectations the partners have of each other and for any children they might have. So, from the perspective of the parties and children, commitment is at the heart of marriage and distinguishes it from simple cohabitation. Without the partners’ commitment to mutual care, fidelity and co-operation, and to the nurturing of any children, marriage would lose its meaning. As with other vital social and economic commitments, marriage needs the support of either strong conventions or formal law, and sometimes both.
The free choice of individuals to commit themselves, a motive with important roots in Christianity, is fundamental to the liberal ethos and the moral agency of individuals at its heart. It is a ringing expression of autonomy and honour in voluntarily assuming a binding responsibility for whatever actions are entailed in the commitment. If the actions involve and affect the particular interests of others, the protection of those interests is central to the responsibility incurred. Such engagements carry the moral force of a contract without its legal formality. The choice of the radically open-ended marriage commitment of a life together “for better, for worse” thus borders on the heroic and may collapse in the face of human frailty. Few, if any, marriages are sixty-year idylls of daily, unalloyed sweetness and joy; most of those that last have their share of rows, irritations, recriminations and anger that may test stability. Yet they persist and, for most of them, commitment is the automatic stabiliser; the authority and prompt for reflection, reconciliation, revivified affection and ongoing determination to keep the ship and its crew afloat.
The more general point about the marriage bond and the self-chosen restraints that it implies is well put by Kenneth Minogue, writing in the New Criterion in June 2009:
In the individualist culture of modern Europe, then, marriage is an act of will made by two individuals, and it has, for all its dependence on such unstable foundations as human affection, been able in the past to generate stable family bonds no less than the communal practices of other civilizations. Marriage thus stood in the morality of the individualist commitment as one of those bonds on which the entire coherence of a life depends, and many things from the stability of property to the welfare of children depended upon it. Until recent times, the theory of marriage was therefore entangled not only with the morality of individuals but also with the romantic conception of human love.
In the elegant essay in which these words appear, Minogue goes on to analyse the course of developments which have weakened the morality of commitment through the growth of permissiveness and
the move from a world of fixed moral commitments to one characterized by convenience, adjustment, and manageability. One key change is the vulgarization of our civilizational self-characterization as free. Individual freedom has always with us depended upon self-reliance and self-restraint, but in the twentieth century freedom was widely understood as that quite different phenomenon that is more properly called “liberation”.
This false conception of liberal freedom, this growing evasion or abandonment of commitment-with-responsibility that helps to keep the parties together and its now tacit legitimation by family law, has undermined marriage and, in doing so, has also made the futures of many adults and children more uncertain. This is leading to a vicious circle where unacknowledged injustice further undermines confidence in marriage and tends to elide marriage and heterosexual cohabitation without marriage and without commitment.
Marriage and “privatisation”
History, and the facts and issues discussed above, yield the reasonable conclusion that marriage is distinguished from other intimate human relationships by these essential criteria:
• the heterosexual differences and complementarities of men and women;
• the publicly explicit commitment that heterosexual couples formally make in marriage to permanent companionship, mutual care and co-operation;
• the obligations of parents to the children they conceive and rear to ensure their care until maturation.
Children need heterosexual marriage and the entitlements it gives them; but marriages do not need children; only heterosexual commitment.
Marriage is therefore more than merely an intimate caring relationship; it is all of that and much more. It represents an immensely long history of institutional formation, variable but nevertheless identifiable throughout the world, that goes to the heart of a full human existence for individual men and women, the wellbeing and growth (in every sense) of children and, ultimately, the survival of tribes and nations. At least in the evolved Western tradition, it is (or used to be) an institution premised on commitment to observe particular forms of rule-governed and committed conduct conducive to the life-long domestic companionship of men and women and the joint care, protection, education and socialisation of children by their mothers and fathers. This is not true of other intimate human relationships, committed and crucial as they might be to charity, love, companionship, devotion and even survival for the individuals concerned.
Behind the move to submerge or privatise marriage within the all-embracing category of “intimate caring relationships”, is the fact that much has already happened to make that a seemingly plausible proposition. This would simply extend the retrogression that has occurred and is no argument for the further denaturing of what marriage really is and ignoring its crucial differences. Doing so, and undermining the freely-assumed and unique obligations instantiated in the marriage commitment, is not a liberal direction to take.
Divorce and separation
Most Australian marriages sustain their commitment for life, but the rate of failure—of divorce—has increased markedly in the last fifty or so years, and the percentage of children born to a married couple has declined from over 90 per cent to around 66 per cent. It is fair to say that the status and stability of marriage have declined with the consequences for adults and children mentioned earlier. Unmarried cohabitation with, and without, children is even more unstable.
In a liberal regime, divorce should be accommodated without undue difficulty or delay for marriages that have irretrievably ended; but a liberal approach also requires that the serious commitments and contributions to the marriage made by spouses should be taken seriously at a divorce settlement. The outcome should be fair to both, and to ensure that this is the case the reasons for the break-up and the conduct of the partners during the marriage are legitimate issues for the Family Court to assess in determining a settlement. In most cases much has been put at stake, and the question is whether current law deals fairly with these vital interests and the fate of legitimate expectations.
Under the current Family Law Act, divorce is not difficult nor is it unduly delayed; divorce can be quick and easy. This is so where both parties have agreed without duress that they must divorce, and where there is willing agreement upon the terms of settlement and arrangements for children. So, there may be few or no problems so far as the spouses’ and children’s interests are concerned and in such circumstances present family law is broadly appropriate.
But it is also the case that many divorced spouses leave the court with feelings of burning injustice and resentment, usually because they believe the divorce settlement in relation to children and assets of various kinds has been grossly unfair because of the court’s refusal (required under the Act’s “no fault” provisions) to take account of claims of serious misconduct in the marriage that has destroyed it and thus a spouse’s legitimate expectations. It is also frequently the case that there is no common consent to divorce by the spouses because one party has simply deserted the marriage for a year and unilaterally divorces under conditions of “no fault”. In this way, a divorce may simply be imposed on a reluctant spouse, who must nevertheless submit. In short, the “no fault” regime mocks the reality and ubiquity of fault (serious misconduct) in actual marriages and dismisses the injustice involved in ignoring it. As we saw earlier, John Stuart Mill and John Locke believed it to be unjust and illiberal for the law to deny redress or protection for disappointment of the legitimate expectations of spouses and the interests of children in marriage. If this was seen as unjust then, why is it not unjust now?
This necessarily raises issues about marital conduct when it is egregiously selfish, unfaithful or intolerable. In such cases conduct should be an issue capable of being raised, but not necessarily so, in determining a divorce settlement and the respective entitlements of the spouses. I have discussed this difficult problem elsewhere (in Divorce Law and the Future of Marriage) and made some detailed suggestions. Put briefly here, it is proposed that the present regime be retained but that serious misconduct (to be defined) that destroys a marriage may be raised as a justiciable issue to be considered when an application for divorce is lodged, but only if either or both spouses opt to raise it. If misconduct is demonstrated to the court’s satisfaction at a hearing before a magistrate or judge, this may influence the divorce settlement at the discretion of the court. Irrespective of the outcome, the divorce itself must proceed, as now, after the required one year’s separation of the spouses. In short, the present regime remains unchanged, save for the addition of an available option for the spouses to raise an issue of serious misconduct in the marriage when the settlement is being decided. But the raising of such an issue would not affect the speedy dissolution of the marriage after the hearing and court decision.
Why am I suggesting a difficult-to-adjudicate “complication”? Because such difficulties and “complications” occur constantly in other spheres of the law, such as in tort and commercial and contract law and are routinely dealt with. Difficulty is not a real excuse. Divorce deserves as much attention to justice for the parties as other contractual or quasi-contractual disputes. Moreover, the mere presence of such an option would be an incentive for spouses to bargain a settlement on fair and equal terms, in “the shadow of the law”, without resort to a claim of serious misconduct, and reach an amicable agreement. It may even act as an incentive for reconciliation.
Cohabitation without children
The incidence of cohabitation of heterosexual couples, particularly of young couples, has increased rapidly over the last thirty years or so and many of these relationships may last for several years, often ending in marriage—particularly if children are desired. There are many couples (young and old), without children, who do not marry but wish to cohabit while protecting their own individual financial and material interests, and perhaps other familial financial and property interests, that may be at risk if the relationship breaks up. Current federal and state law, by and large, may be used to protect these interests, and such couples are now deemed to be “socially married” in the eyes of the Commonwealth Statistician. It is with this group that traditional marriage is being elided as the distinctive features of the marriage bond disappear from the law.
But not all cohabiting couples without children, whether young or old, want this sort of protection from family law, or the presumption that they are, to use the curious phrase, “socially married”. Some cohabiting couples simply want to live together without any presumption that they have committed themselves to anything more than the contingent enjoyment of each other’s company and to be free to make whatever contribution to the partnership that either party wishes to make and free to leave the partnership at will. They should not be forced to undertake any commitments or legal obligations beyond this except subjection to criminal and tort law. Andrew Norton raises this issue in saying:
As Patrick Parkinson has argued, the blurring of de facto and de jure marriage is limiting the kinds of long-term legal relationships couples can have with each other … As much as creating more equality, the state needs to permit more distinctions.
There is much to be said for this point of view. Doing so would be a contribution to freedom for adults, consistent with liberalism, since there is no explicit or implicit commitment to obligations and it would help to make clear and reinforce the special status of marriage.
Cohabiting couples with children
There remains one other group of unmarried, cohabiting adults that demands attention; those who have children. This essay has argued that the unique commitments and conduct expectations of marriage, if supported by the law, would help create an ethical environment and incentives for spouses that would increase confidence in marriage and its stability, reducing the possibility that the parents will break up and expose the children to the hazards of parental separation. Children need the parental commitment of marriage, especially in the early years. Would it not be reasonable and consistent, therefore, to propose that a cohabiting couple without other relationship involvements, immediately upon the birth of a child, be deemed to be subject to the same rules of family law as a formally married couple? If a couple were considering cohabitation, they would do so in the face of such rules and would have to take account of the nature of the commitment that would be implied if they subsequently chose to have a child.
Should we not seek to ensure for newborn children of cohabiting couples the same improved family stability we would hope to flow from revised rules relating to conduct in marriage? This need not entail any kind of ceremony, but simply the automatic establishment of a new legal status of marriage for the couple for the benefit of their children. Having a child is a choice and one with immediate responsibilities; doing this would shore up those responsibilities and improve the prospects of this class of children.
Authority, the state and marriage
In Norton’s review essay he refers to G.W.F. Hegel’s notion of an “ethical authority” in marriage that touches upon the obligations of marriage “beyond the couple’s feelings towards each other [that] come from a mix of formal legal requirements, the authority of the institution conducting the marriage, and the public vows the couple make to each other”. Norton goes on to refer to the important role of the churches in former times (and less so today) in providing religious liturgy and ceremony as ethical authority (“in the eyes of God” and the church congregation) solemnising and legitimating the marriage vows and their obligations. For those who wish to be married this way, the “ethical authority” sealing the bond is divine faith and the accompanying moral injunction to meet the obligations of vows freely made. This is an instance of a moral order based upon strong conventions with explicit commitment to them, along with formal legal recognition.
For the non-religious in Australia for whom this ethical authority has disappeared (or never been present), the displacement or absence of divine authority creates an “ethical authority” vacuum without a secular replacement now that family law has essentially vacated the field. This is not the place to dwell upon the sociological role of authority, and its sometimes ceremonial expression, in ordering social relations and promoting a coherent and common culture. But it is clear to us that most secular marriages now take place either under a feeble remnant of unacknowledged Christian “ethical authority” or none at all. Couples now, probably with the help of a marriage celebrant, make up their own content of the marriage occasion in a ceremony lacking a common ethical orientation with a common form of expression, such as vows uttered in accordance with law, and perhaps with supplementary expressions chosen by the marriage partners. In other words, what used to be a socially shared, secular ethical authority in marriage, defining a singular and unitary institution and present in the act of getting married and demonstrating its meaning, has leaked away. All that remains is a fragile shell and the isolated resolution of the partners themselves.
This is not a plea to resuscitate divine authority, but a call to recognise an absence that sells secular marriage short. The only institution with the authority to fill that gap (without displacing religiously solemnised marriages for those who wish it) is the law. As the law stands at the moment, it is inadequate for the task. This ethical element cannot be expressed as commands but only as aspiration—in the form of promises or “vows” that carry with them the possibility of legal attention if failure to live up to them betrays the legitimate expectations of a spouse. Current family law mocks that aspiration. Yet only if marital law speaks truly for the moral sentiments of a communal majority, that wishes to support the conception of marriage proposed here, will it establish the “ethical authority” that is presently absent—and help to preserve marriage as a strong and indispensable institution. If marriage continues to disappear as a moral and legal order available for those who would seek to accept the voluntary commitments and obligations at its heart, the implications are worrying indeed.
This essay has sought to clarify the nature and functions of marriage and what the law owes to marriage. It takes an “institutional” view of marriage and family as a system of presumptions and habits, accreted over a long time, and serving certain social, cultural and biological imperatives. Those habits are necessarily moral and ethical in character and, because of their society-wide significance, require forms of social authority (conventions or laws) that define the responsibilities of voluntary commitments and help to sustain them. The character of those conventions and laws is crucial. Different societies with different habits concerning these matters may seek to meet these imperatives with different conventions and laws, with varying degrees of success, and the criteria of “success” may be the subject of contention.
In the last forty years we have witnessed in Australia the decline of the institutions of marriage and family under the influence of changes in morals, conventions and law and the growth of taxation and state welfare that have created perverse incentives for family instability. These changes are associated with the displacement or weakening of the family’s educative and socialising role for children. This has had repercussions, in turn, on civic life and civic institutions in the form of crime, vandalism, violence, clashes between young people and the police, and much more.
An implication of all this is that it is an example of institutional incoherence and cross-purposes, rather than the virtuous co-operation that may occur between soundly functioning institutions that liberalism has identified as one of the marks of Western civilisation. If there is some truth of importance in this, a liberal response should not be submission to the current course of events, and approval of “change” because it claims to be progressive, but critically standing back, asking the crucial empirical questions about consequences raised by liberal principles and, if error is discovered, to search for the means of recovery.
Barry Maley is a senior fellow at the Centre for Independent Studies. He has published widely with the Centre and elsewhere on social policy and family matters.