Individual rights are good for family life

WRITING shortly before the divorce referendum last November, Prof Joe Lee attacked the "fundamentalist individualism" which he felt underlay the pro divorce movement.

He condemned such individualism as a selfish "me-ideology" and predicted that it would lead to further damaging assaults on the position of the family in the law, with all emphasis on rights and none on the concept of responsibility.

Prof Lee's negative view of the impetus underlying divorce legislation probably reflects a widespread, uneasy fear shared by many of those in the centre who had great difficulty in deciding how to vote in the referendum.

It is therefore worth asking how, well founded that view is and to what extent individualism should be regarded as the enemy of the family for the future. It is undoubtedly true that individualist thinking has become stronger in Irish culture and in Irish law. However, the effects are more complex and less negative than Prof Lee suggests.

Consider, for example, what is often regarded as the opening shot of the modern movement to vindicate individual rights in Irish family law, the 1965 Succession Act. That statute was mainly designed to protect, wives (and, to a lesser extent, children) from being cut out of their husbands wills; a fate which was rare enough but which the 1965 Act deemed to be an unacceptable risk for any woman or child to have to face.

However, although individualist in its focus on the economic well being of weaker family members, it was by no means libertarian, since it imposed a control on family heads where none existed before.

Looking back, indeed, the striking thing is the irresponsibility which the traditional, pre 1965 regime had tolerated, as if somehow the freedom of property owners (who usually were male) to dispose of their estate as they wished was such a fundamental privilege that any amount of injury to families and society could be tolerated in its defence.

In regulating the behaviour of dominant figures within families to protect the interests of weaker family members, the 1965 Succession Act proved to be but the first in a long line of statutes with similar intent.

The Family Law (Protection of Spouses and Children) Act, 1981, which enables violent spouses to be barred from the family home, was one of the most important of these. In terms of the sheer number of cases taken, this piece of legislation quickly became the single most important in Irish family law (20,000 barring orders were made between 1981 and 1994).

Here, too, as with the 1965 Succession Act, the application of individualist principles in defence of weaker family members had the effect, not of evading or dismantling restraints, but, of installing controls where they had been lacking in any effective form before.

They counteracted the tradition: which dictated that if a man chose to beat or sexually assault his wife, the law had little or no business trying to intervene to bring him under control.

FURTHER striking application of individualist principles in family law arises in connection with the 1987 Status of Children Act which, with certain limitations, abolished legal discrimination against children born outside marriage.

The 1987 Act marked a radical break with centuries of legal and moral reasoning which had judged that the legal downgrading of non marital children, however harsh on the innocent children involved, was an acceptable price to pay for safeguarding the institution of marriage.

In making that break, the 1987 Act was implicitly at odds with much of the spirit of Article 41 of the Constitution on the protection of the family based on marriage.

However, it was wholly defensible, and might even be regarded as mandatory, under Article 40 which asserts all citizens shall be held equal before the law and which commits the state to a defence and vindication of the personal rights of citizens.

The 1987 Act highlights the conflict which can arise in the Constitution when Article 40, which is moderately individualist, is placed alongside Article 41, which defends the corporate integrity of the marital family.

In plumping for the individualist side of this opposition, the 1987 Act can hardly be said to have chosen amoral self interest over moral righteousness, unless somehow the non marital child could be accused of selfishness for having had a claim to fair treatment asserted on its behalf.

Even in the area of sexuality, where we usually think of individualism as permissive, there is a strong regulatory dimension to recent developments. On the one hand, greater liberalism is evident in areas such as contraception, censorship and homosexuality but, on the other hand, a much greater concern with policing band control has emerged in connection with rape, sexual assault, sexual harassment and child sexual abuse.

Sexual self expression is thus more freely tolerated, but only on the basis of negotiation and consent between those involved. This approach asserts that moral value in sexual life lies not in self repression and denial but in reciprocity, communication and mutuality between sexual partners.

Thus, it is inaccurate to say that the culture of individualism promotes an "anything goes" philosophy as far as sex is concerned. Rather, while it has rejected many traditional notions of sin and moral worth in sexual life, it has installed others where there were great gaps before.

In many areas, therefore, individualism has attacked traditional aspects of family life, but has done so for good rather than bad. Some of the reforms it has wrought are to be cherished and have enhanced rather than reduced the quality of family life.

Certainly, we could well have an excess of individualism in the future, but we have had too little of it in the past.