Lady Hale: what is a family?

Lady Hale

Lady Hale (Baroness Hale of Richmond) is President of the Supreme Court of the United Kingdom. Prospect magazine has named her one of the world's top 50 thinkers. So she has some clout in the field of law.

Last month she gave a speech on the topic "What is a 21st Century Family?". It's an interesting speech as it illustrates clearly one aspect of the way that liberal moderns think about such issues.

To explain, though, I need to turn briefly to a post written by Andrew Willard Jones. He notes that Christians often call liberals moral relativists. And yet liberals do clearly have a strong belief in right and wrong:

The entire ideological edifice of liberalism rests on the conviction that it is just plain wrong to intervene in the individual’s pursuit of desire fulfillment, and that to do so is a violation of justice, the paradigmatic moral principle. You will find no group of people more certain of the rightness of their convictions and more willing to force others to comply with them than those who congregate on university campuses. There is, obviously, no shortage of right-and-wrong in late liberalism’s woke culture. And yet, many Christians continue to talk about moral relativism. Why?

The pursuit of individual autonomy, and the concept of justice flowing from this, does provide liberals with categories of right and wrong. But here is the critical point. Within the liberal framework the actual term or category "moral" is indeed limited to the issues that society has a relatavistic stance toward:

in the everyday liberal vernacular, the word “moral” is restricted in application to things that society is more-or-less relativistic about.

Liberalism sets up the binary of moral/political. The moral is my own subjective, irrational and private beliefs on issues that the state is indifferent toward. Once an issue is thought to involve public policy, however, it becomes part of the morally neutral political and economic realm that the state then seeks to regulate.

Lady Hale's speech makes sense within this liberal framework. On the one hand, she praises the shift toward autonomy within modern family life:

...three things stand out from the developments of the last 50 years. The first is an increasing desire and respect for individual autonomy in adult decision-making – by both men and women. So we try and facilitate or at least acknowledge the family life created between same sex couples, through informal partnerships, through assisted reproduction, adoption and surrogacy. At the same time, we increasingly respect their decisions to bring their adult relationships to an end and their autonomy in deciding upon the financial consequences of doing so

On the other hand, she is quick to identify the purpose of family life as a political/economic one. She believes that the family originally had very limited purposes, being established to provide a legitimate male heir for the transmission of property. However, it was the role of the family in providing economic support for its members that gave it a more significant reason for existence. As a mini welfare state, it relieved the state itself of some of its financial burdens:

As I have said before, the conjugal family is its own little social security system, a private space, separate from the public world, within which the parties are expected to look after one another and their children. The more the private family can look after its own, the less the state will have to do so...Perhaps it was for this reason that the narrow view of family relationships began to expand.

She believes it to be a "narrow view" to see family relationships as being based on kinship. This makes sense if the purpose of the family is simply to be "its own little social security system" as kinship is irrelevant to this aim.

She is also critical of attempts to reform family law in the UK by limiting alimony to five years. She questions how the reforms,

can possibly fulfill the role of the family in shouldering the burdens which it has created rather than placing them upon the state. 

Again, given her view that the very reason for the existence of the family is to relieve the state of a potential financial burden, you can understand why this decides the matter for her.

There are two main points to draw from all this. First, if the family exists as a social technology then it doesn't really matter what form it takes. It could be three adult men and five children as long as it is performing its economic role of being "its own little social security system". That is what matters to a liberal state that only admits to determining public policy on "morally neutral" economic and political grounds, but within the larger understanding of justice as being based on maximising individual autonomy.

Second, most people currently see aspects of family law as being gravely unjust. For instance, a wife can unilaterally and without any grounds divorce her husband and yet the state will still compel him to support her financially whether it be through alimony or child support. She can elect not to work, not to provide for herself, but still compel her now ex-husband to work on her behalf as if he were still her husband. It seems mad.

However, it makes sense within the liberal framework. First, this framework seeks, in Lady Hale's words, "individual autonomy in adult decision-making" including to "respect their decisions to bring their adult relationships to an end". Therefore, the liberal state is committed to easy divorce.

At the same time, the liberal state sees the family as a social technology that has the function of acting as a mini social security system. Therefore, the state wants the husband to be an economic provider - that is his permitted social function. The liberal state wants to have its cake and eat it too, by emphasising autonomy and easy divorce, as well as men working as providers - even after they have been rejected as husbands by their wives.

This is not a viable approach in the long term for a number of reasons:

1. The emphasis on autonomy can only undermine family commitments. If the aim is to maximise our ability to pursue our desires without impediment, then you cannot have lifelong monogamous marriage. Serious commitments require trust, shared moral commitments, and a willingness to act for the greater good and for higher principle rather than for our own immediate interests and impulses.

2. The emphasis on autonomy tends, over time, to expand the role of the state in supporting individuals, rather than having them supported more cheaply, but with greater interdependence, within the family. It is already the case that a woman can, if she so chooses, raise children with the support of the state rather than with the support of a husband.

3. The view of the family as a social technology is too limited. Yes, social function matters and no doubt played a role in shaping the family. But this ignores the way that aspects of our natures are fulfilled within closely bonded familial relationships, particularly those based on kinship that span generations. This ought to be acknowledged as part of the "common good" that a society seeks to uphold, rather than relegated to the field of private moral goods that the state is indifferent toward.

4. The contradiction between easy, no fault divorce and the justification for the family as a mini welfare state will not so easily be solved by compelling ex-husbands to continue their former provider role even after the dissolution of their families. Over time this will erode confidence in marriage as an institution.