Are We, As Democratic Society, Truly Ready For Equality And Freedom?
Mary Shanley, in her article “Just Marriage – On the Public Importance of Private Union,” (2004) talks about private, intimate relationships and the public sphere as viewed through the law on martial union. Analyzing laws at that time, she exposed problems regarding the isolation and unequal treatment of women, gays, and the poor, and she contemplated modern alternatives that would foster principles of equality and liberty more consistent with democratic society, based on equality, individualism, reciprocity and the liberty of citizens.
I agree with her that the reformation of “martial union” has been necessary, since the changed definition of martial union would benefit more people and their lifestyles. However, I argue that this change would not fully satisfy demands for legal equality and freedom if it does not include modern changes in intimate areas (which law must satisfy). These changes would show more freedom and equality in intimate relationships and more flexibility in recognizing relationships (open relationships, homo-bisexual relationships, etc.). For example, Shanley, in contrast to Marta Nussbaum, only briefly mentions emotions – love and compassion – which are very important for modeling and activating a just democratic society (and at the same time forming and contributing to institutions and laws). Nussbaum claims that there is a two-way street between institutions and laws on one hand, and beliefs, values and personal judgments on the other. Since judgments are represented in laws and institutions and vice versa, institutions and laws stimulate certain emotions, values, beliefs and judgments in citizens.
1) Shanley opens her research on the formerly unjust marriage laws in the USA, which were based on a conservative notion of marriage. Conservatives believe that marriage is union of one man and one woman and it should be a union for life. The basis for the marital relationship is reproduction, as children are society’s future. In this union, men and women have specific roles: man is the provider, and his wife is a “homemaker.” This union is the family’s foundation and enables a “healthy” foundation for society because it prevents “degeneration” and other “weaknesses” such as crime and poverty, and it raises overall economic welfare. The basis of marriage is therefore “natural,” because it is based on historical tradition and the Bible.
The above mentioned notion of marriage law is problematic, however, because it is unfair to citizens and unions that do not meet specific conditions (homosexuals, the poor, polygamists and alike as Shanley mentions). Equality in front of law, however, is a requirement for the lawmaker, who defines the border between social life, which is legally set, and life outside the public sphere. The lawmaker must follow the constitutional principles that frame the country as a legal entity, and only legislate those areas of social life which are encompassed by that legal definition. But at the same time, the lawmaker cannot legislate contrary to legal principles. This is what Shanley tried to argue when she pointed out the necessity of reforming US marriage laws at the time she wrote the article.
Shanley presents two critiques, or alternatives, to the conservative notion of marriage law at that time:
– First, contractualism tends to abolish marriage law on a national level. In other words, it rejects its special public-legal status and tries to substitute it with individual contracts. Contractualists say that when the right to get married is denied to some or given unequally, it is contrary to the constitutionally given rights of modern democratic society and it is ignoring the humans rights of equality, free personal decision, and pluralism. Thus contractualism would, using individual contracts based on the clients’ needs and desires, satisfy the notion of universal equality and freedom because it would make marriage possible for hetero-, homo-, bisexual and polygamous partners, men and women alike: “abolishing marriage as a legal category is a step necessary for gender equality. Marriage by contracts replaces gender stereotyping and protectionism of traditional marriage law with the recognition of individuality and equal agency of the partners. Marriage partners should be treated as rational actors capable of knowing and articulating their interests” (Shanley quotes Fineman; 19-20: 2004).
However, Shanley does not agree with the contractualists’ solution because contractualists take individuals to be rational and autonomous decision makers, who form community based on personal preferences, benefits and sources of personal pleasure, written and confirmed with contracts. This union is, to her, a union based on the principle of “give-get” and could be called an intimate version of consumer society. It does not give enough attention to individualists’ social and emotional needs (such as the need for love, reciprocity and co-dependence). It does not consider individuals’ variableness and moodiness; it does not address circumstances in which an individual can find himself (death, accident); it does not consider that marriage is higher-entity which exceeds individuals and ties them into a union with a “shared destiny.” A mere contract between married people does not express ethical, moral, loving and unconditional commitment to the other person(s) or to the relationship for a longer or even life-time period.
In my opinion, Shanley`s critique is imperfect because we know that heterosexual marriage served through Western history as a certain rational-economical-procreative contract: marriage was a tool which families used to increase their power, financial status, and reputation and assured a future for the family’s legitimism of authority through descendants (for some, this is still true). This type of marriage was not about love, morality, security, dependence or establishing a higher identity in which two became one and shared a common destiny. Shanley speaks about marriage as a romantic and enlightened project in which being in love (co-dependency and reciprocity) was a personal free factor for getting married that came into exsistence only in 19th century. Nonetheless, nowadays contractualists, beside a basic (heterosexual, procreative, economical) contract marriage matrix, try to enable legitimacy for all other intimate connections with different types of contracts.
We can also dispute Shanley’s critique of ethics and morals and commitment over time and say that contractualists are right. William Godwin already was in favor of the utilitarian theory of morals in his work “Research on Political Correctness” in 1793. He claims that we do not need to stick to moral regulations. Instead, we have to reach our moral decisions by comparing good and bad consequences of our eventual acts in each chosen situation. This was the foundation for the radical critique of conventional rules and institutions, together with the institution of marriage. “In his opinion marriage was morally unjustified and unreasonable (it distracted independent thinking) because marriage makes impossible to judge each exact situation, each personal and possible relationship based on their distinctions. It is based on absurd /expectation/ that inclinations of two human beings will coincide in longer time period. When we force them to work and live together we submit them to inescapable measure of distraction, arguing and misfortune” (Primorac quotes Godwin; 2002: 97).
- But Shanley is correct when she criticises that contractualists do not emphasize enough the state’s positive acts to promote and increase equality. Contracts, after all, can still maintain inequality (for example, inequality between a man and a woman in a marriage based on a contract). Although I have some second thoughts on Shanley`s objections to contractualism, I agree with her desire to see marriage’s reformation toward equal status and public good. As Sullivan says: “Marriage is not only a private contract it is a social and public recognition of personal commitment. As such it is in the highest public recognition of personal integrity” (Sullivan; 1995: 179). Thus Shanley`s purpose is to “preserve the idea that marriage is a special bond deserving of public status while rejecting-as incompatible with liberty and equality-important elements of the traditional view of the purpose and proper ordering of marriage” (Shanley; 2004: 6)7. She believes that marriage should be changed in order to serve as public institution which promotes public good - liberty and equality (man’s, woman’s and citizens’) - and presents successful combination of justice, intimacy and love.
Shanley claims that the social meaning of a life-long union (marriage) consisting of two adults is the fulfillment of emotional, sexual, moral, ethical (reciprocal respect, understanding, trust, help) and economical needs, wishes and partners’ interests. All these enumerated things must also be allowed to same sex partners, partners who live in polygamy, or a poor community, because these individuals satisfy mutual needs which could be a burden to society. Having the law changed in this way is important because it accelerates psychosocial and emotional stability and financial and legal security. It gives also the feeling of citizens’ social acceptance and support, regardless of gender, sexual orientation, class and race. I also agree with Shanley that we need to do more on other fields of public life and activity for effective change, especially in the area of work, and in this way change the laws on work relationships, the pay system, social care, child subsidies, and child care.
2) But what I find lacking in Shanley's reasoning about the reform of marital law is that she never broaches the discussion of the intimate relationship itself, for in a sense this is what is the real content of marital law. She never even tries to present the argument that we need freedom and equality in this area of our life, too (regardless of intimate relationship being part of our private sphere). Nussbaum rightly warns that facilities and legal systems are not embodiments themselves of eternal, perfect rules and structuralised relationships. “They are living systems which on one side embody people’s right emotions, values, beliefs and judgments and on the other side they raise appropriate feelings, values and judgments in them. This two-way relationship runs simply because we do not have a perfect system or perfect (compassionate and loving) individuals, this two things interchange and supplement” (Nussbaum; 2001: 185). So Nussbaum, in fact, claims that in order to have pluralistic, equal, and free democratic society, we need not only set, just institutions and laws, which will embody feelings, beliefs and judgments, but we also have to educate citizens and raise them to be loving, tolerant, free, equal and compassionate individuals – through a modern concept of (confluent) love which embodies the aforementioned values, beliefs and emotions. Sullivan’s thinking is similar when he says that “the law can indirectly influence culture if it persists on equality for all citizens and vice versa” (Sullivan; 1996: 170). Before Nussbaum and Sullivan, Rousseau and Tocqueville also showed that institutions and laws teach citizens how to define concepts of primary goods, responsibilities, convenient care for others, etc. They showed how institutions can, in different ways, encourage or slow down and form emotions which retard compassion; for example, feelings of shame, envy and disgust.
That is why we feel this is the time to present the idea of a modern confluent relationship: it is based on an equal relationship that embodies the principles of equality, freedom, and reciprocity; a relationship not restricted by sexual preferences and monogamy, as sociologist Anthony Giddens defines it. Giddens differentiates confluent love from passionate and romantic love. First, he divides passionate love (amour passion) from romantic love (romance) and romantic love from confluent love. It is typical that passionate love overtakes a man (charms him and can lead to religious enthusiasm) so that individuals in love can neglect everyday duties and surrender themselves to an ecstasy which belongs to the other (transcendent) world. This love has never been about the individual; it always serves to achieve other goals – temporary idealisation of the other joins a durable relationship with the loved object. Consequently, passionate love, from the standpoint of social order and duty, is dangerous and therefore never admitted either as necessary nor as satisfying the foundation for marriage. It has been seen as adulterous, even. Passionate love was mostly typical for aristocrats. Romantic love developed from these ideals (or idealisation of the other) and included elements of amour passion but still differed from amour passion and from Christian ideals. The influence of romantic love has been seen from the 18th century onward and it introduced the image of a story to an individual’s life. It is no accident that the verb “to romance” also means to tell a story. The story has now become individualised and places “I” (the ego) and the other into a personal story which does not have a special connection with broader social process (Giddens). Love was for the first time connected with freedom.
Amour passion was always liberating, but only because it altered the everyday routine (and this characteristic separated amour passion from other existent institutions). Romantic love meant that freedom is connected with reflection and consequently with self-execution. Therefore, romantic love claims a certain degree of self-questioning: why do I fall for the other? What does (s)he feel for me? Are our feelings deep enough to last? Romantic love separates both individuals from broader social circumstances in a different way then amour passion. “It ensures long-lasting life, directed in advanced expected future which both partners will shape in their own way. At the same it time creates 'shared story' which helps to divide marriage from other views of organised family and society and gives it special privilege” (Giddens; 2000: 52). Romantic love has remained until today, at least for women, the prevailing ideal, but it no longer means that the love will last a lifetime. Today’s romantic love “focus sexuality in expected future where girls see sexual contacts as detours on the way to final love relationship” (Giddens quotes Thompson; 2000: 56) which does not directly lead to marriage. The reasons for this are hypocrisy and inequality offered by the law to women: as much it was sometimes, on one side, the only tool of autonomy and adulthood, on the other side it was also a phenomenon of new kind of captivity and dependence of a man, which Shanely also discusses.
Today, we are working intensively to abolish this contradiction. Marriage was all this time connected with love, and when men and women began to separate it from the external factors on which it was traditionally based, the love relationship did not need equalisation with marriage but only with love. This relationship, named by Giddens the relationships of confluent love, is part of the general modification of intimacy at the end of 20th century and is characterized merely by a tight and lasting emotional bound with another human and which can or must lead to marriage. “Confluent love lasts only if the two sides think that it is mutually satisfactory and refers to situation where two people step into social contact because of the contact itself and because of what each person can gain when socialising with another person” (Giddens; 2000: 64).
This way, romantic love takes us to confluent love, which presumes equality by emotional and sexual giving and taking. “Love can in this position develop only as much as much develops intimacy and to what extend are partners willing to reveal worries, needs and vulnerability” (Giddens; 2000: 68). Sexual exclusiveness is in this relationship is defined by the partners’ agreement, however that do not mean that an equal relationship promotes a promiscuous and permissive relationship where partners can do what they want. These relationships are usually still binary. The main change is that in an equal relationship, confluent love does not have support from outside but must develop merely on the basis of intimacy, reciprocity, trust, equality and freedom. The question is how to establish a balance between autonomy and dependence: partners must try to preserve mutual trust and allow themselves certain freedom. To trust someone means to refuse opportunities where one can supervise, dominate or tries to suppress partner’s activities.
Unique for confluent love is also idea that it is not specially bound to heterosexuality. “If orthodox marriage has not became one among life styles yet, although in fact it is, it is partly because of institutional delay” (Giddens; 2000: 158). Giddens continues: “Confluent love which is not necessarily androgynous, is perhaps still structuralised around differences, and presumes a model of 'equal' relationships where it is important to know the characteristics of another. With confluent love is individuals’ sexuality only one of the factors which must be accepted when negotiating.” Giddens believes that gays and lesbians started to develop “equal” relationships before heterosexuals because they had to live with each other without traditional frames of marriage, in circumstances where partners were nearly equal. The expansion of homosexuality and bisexuality occurred when people started to look on sexuality as a characteristic which we can discover and understand reflexively, question and develop. Or as Giddens explains based on some findings of Foucault’s “History of Sexuality”: “Today we discovered and opened 'sex' so that it is easily accessible when different life styles develop. This is something we all have or raise and it is no longer natural circumstance which individuals accepts as in advance given condition. Sexuality works – we have to discover how - as some sort of I (ego’s) feature, can be shaped and is primary connecting point between body, personal identity and social norms” (ibid: 22). I (ego) and personal identity are today for everyone reflexive projects and are more or less incessantly questioning past, today and tomorrow.
GIDDENS A. (2000): Preobraza intimosti; Spolnost, ljubezen in erotika v sodobnih družbah – Transformation of Intimacy: Sexuality, Love and Eroticsm in Modern Societies. Ljubljana, *cf.
JOGAN M., MAJERHOLD K., MLADENIČ D. (2006): Enakost žensk in moških v znanosti in raziskovanju v Sloveniji – Equality of Women and Men in Science and Research in Slovenia (Central European Center for Women and Youth in Science, EU Framework 6, Project). Ljubljana, Partner Graf.
LUHMANN N. (1986): Love as Passion, The Codification of Intimacy. Standford, Standford University Press.
NUSSBAUM M. (2001): Upheavals of Thoughts, Cambridge University Press, MA.
NUSSBAUM M. (1998): Sex and Social Justice. Oxford University Press, London.
PERRIN E. (sept. 2005): »SB 427 Study Commision to Study all Aspects of Same Sex Civil Marriage and the Legal Equivalents Thereof, Whether Referred to as Civil Unions, Domestic Partnership, or Otherwise«. State of New Hampshire, http://nh.glad.org/EllenPerrinSB 427Testimony.pdf
PRIMORAC I. (2002): Etika in Seks (Ethics and Sex). Ljubljana, Krt.
PRIBAC I. (2001): Moralna pogodba za samoljubne ljudi (Moral Contract for Self-Loved People). Ljubljana. Krt.
SHANLEY M. L. (2004): »Just Marriage – On The Public Importance of Private Unions«. Oxford University Press, London.