Friday, 30 July 2010

Independent: Natural & Civil Rights
28.7.10? by Prof. Pierre Mallia
"Now divorce may also seem to me to be legitimate in many cases where there is abuse, violence, negligence or simply lack of interest in one's self or in the partner. To be told to continue in this partnership, even for the sake of the children, can only hold on moral and religious grounds"

The recently revived divorce debate has given rise to the question of whether divorce is a right that humans should have. One renowned person has taken this to the European Court of Justice. It seems to me that the ECJ will not make a decision on whether Malta is prohibiting people from this right or not – and indeed, it would seem that it cannot, as this would involve an interference in what are basic 'rights' of the country with respect to how it implements its Constitution. But I stand to be corrected. The argument however will probably centre around whether this right is a civil or a natural right. If it is a natural right, then the European Court of Justice will have something to say.

The distinction between natural and civil rights is not always easy. On a religious level we can speak about God-given rights, and state-given rights. On a societal level we can speak about 'human' rights and other rights given by the state. What human rights are has not always been clear. In this regard, Hegel was right in that humans follow a certain natural history in understanding morality. Thus slavery was probably always felt to be a wrong. Indeed no one wanted to be a slave, and if anyone accepted his or her fate, it was because they could not do anything else and not because accepting one's place in society was in itself a good thing. Even moral institutions, like the Knights of St John, a Catholic institution, had their own slaves – usually infidels caught in battle. It was only a matter of time when countries acknowledged that humans cannot 'own' others. This interfered also with the feudal system when, although they were not slaves, people were owned by the land-owners. If you happened to live on the land that was owned, you were part of the property. Other human rights are the right to work, the right to form a family etc.

Bioethics involves debates which often involve the family, the rearing of children being at the foremost of discussions. Do parents have complete rights over whether an operation is to be done or not on their child? Departments of social services, as in the case of the Siamese Twins, have often interfered with parental decisions, even when taken in good faith and, according to them, in the family and child's best interest. But what about reproductive rights? We have seen the controversy that exists in legislating for In Vitro Fertilisation. There can be no doubt that, given healthy parents, having children is a natural right. In fact one basis for an annulment can be that one of the spouses does not wish to have children.

This seems also a natural right and 'ethos' of family life. Yet when it comes to pathologies which require only the use of medical technologies, which bypass temporarily the sexual union, moral questions are raised. It would seem that once having children is a natural right, and once health care is also a natural right, these reproductive technologies would fall under natural rights as well if they can be available. Yet experience has shown that they are not considered so because they bypass a natural act of conjugation and therefore, failing natural rights, have come to be seen as civil rights. Clearly arguments such as the naturalistic fallacy – that if something is that way in nature, it does not necessarily mean that it ought to be that way all the time – have failed with respect to our moral institutions.

So how can we see divorce as a natural right? Clearly if getting married is a natural right, it does not follow that divorce should also be that way. I have also always been sceptical of biological arguments – which are nothing more than natural arguments. Some would argue that homosexuality occurs naturally in biological systems and therefore it is natural for some people to be homosexual. Whilst this can be true, it is also true for polygamy, incest and paedophilia. Yet we do not accept the latter three. Homosexuality is recognised today not to be a disease, but in my opinion not enough studies have been done into the natural history of homosexuals and as a GP, I see many people with different sexual tendencies to have had an experience/s in childhood, especially during the time of puberty, which affected their sexuality. But the fact that we recognise it to be 'natural', does not mean it is a natural right of individuals. We give it civil protection because we know that these individuals have had no choice often in their sexual orientation and that they do no harm to anyone.

The same cannot be said of paedophilia. But why do we not accept polygamous marriages? These have been found to occur naturally in many different forms in primitive cultures, and it is only economic reasons which prohibit many Muslims from marrying up to four women. Yet the union between a man and a woman is natural enough in itself. The physical union leads to children who must be reared and the 'tying of the knot', which prohibits other people from interfering with this couple, at least in theory, is a natural result of this rearing. It can be seen as a natural right. Whilst the act of marriage is a natural right, the contract is often seen in a civil context. Perhaps this subtlety is part of the problem.

Can something which is natural be reduced to an easy process of disunion? It is not the aim of this column to enter into a definitive answer, but only to put forward some reflection. I too, like many today, ask myself whether divorce is or ought to be a 'right', and if so whether it is only something states can confer or whether it is a human right? It would seem to me that children have a 'natural' right to parents, even if many do not have this privilege. Some would also accept homosexual parents. Be this as it may, we accept the argument that children have a right to be reared by parents because otherwise they would perish. Failing this, we institutionalise them. The fact remains that children must be nurtured in a family environment. What impact does this have on marriage?

It is clear that children form one of the main issues of the argument of divorce. It is also clear however that sometimes it is in the best interests of children not to be reared in an environment of verbal or physical abuse or other types of hostile environments. Secondly whilst marriage is a natural right, it is also natural that some marriages are void, and it seems to me that the main contention we face is whether this nullification is to be conferred by an ecclesiastic or a civil authority. Why nullifications take as long as they do, when we probably know from the very beginning whether they qualify or not, is indeed a disservice to many. One lawyer I know has described them as so dirty as to have discouraged him from helping his clients further in that process. If we are to protect the institution of marriage, one way is to show that we have the courage to eliminate those marriages which do no good to the very institution of marriage. These people can marry again and we should encourage this. I am pleased to note the energy our Archbishop is putting into administering the cases of annulment more efficiently.

It is also clear that many problems couples face are not insurmountable problems. Many are due to simple hard-headedness or even a giving-up on love. People sail through these murky waters for years until at one point they simply want to bail out. If problems are indeed surmountable and if we believe in this institution, then perhaps we should provide for more accessible professional and spiritual help before the problems become so deep that they cannot be unravelled. Clearly these marriages would not qualify for an annulment, because it is not a case that marriage has never been. It simply did not continue to 'be'. It is for these circumstances that we often seek divorce.

Now divorce may also seem to me to be legitimate in many cases where there is abuse, violence, negligence or simply lack of interest in one's self or in the partner. To be told to continue in this partnership, even for the sake of the children, can only hold on moral and religious grounds. Indeed the greatest love is that love which is difficult and probably not felt to be deserved. These kind of marriages cannot be said either, in my poor opinion, to form part of the fabric which keeps society together. But if these do not qualify for an annulment, do they naturally qualify for a divorce? If this question can be answered in the affirmative, then we must be tempted to admit that in certain circumstances, divorce is a natural right – as it is natural for me to protect myself and/or my children and find someone with whom to continue sharing my life.

Insofar as these problems can be treated with help and good will on both sides, the marriage can never be described as void. If one searchers into individual past histories and finds psychological problems which were there but which the partner had no idea of – and there are many people who enter into a relationship in a psychological sadistic manner – they are probably angry at themselves and at life, and turn this anger into apathy or violence on the partner. In such a context there is indeed a case for the marriage to be voided. I believe there are many of these. The problem is that they are so difficult to define that we do not give the annulment – or at least not quickly. And many remain waiting for years. Because of this, many feel that an easier and just path is simply not to divulge into one's psychological past and find blame, and to provide a divorce. If this is the case we have to admit that divorce is not a natural right but simply a civil right, procured on grounds that we do not have the means to define the 'natural' void of the marriage.

With this comes the dangerous slippery slope that many will then see this as a right, civil or not, and perhaps use it as a weapon. To live under the threat of an easy way out can entail a greater love; but it can also be a conditional one. We all enter marriage with the promise to society that we intend to remain with each other for life. We read this in our vows and we even intend it psychologically on the day of our marriage. If something changes on the way we must at least ascertain that something is insurmountable and is causing harm to all concerned, before we even contemplate a civil right such as divorce. Otherwise it simply becomes a right, such as the right to stop doing one kind of work and starting on another career. I would hope to think that this is not what we are looking for.

Pierre Mallia is Associate Professor in Family Medicine, Patients' Rights and Bioethics at the University of Malta; he is also Ethics Advisor to the Medical Council of Malta. He is also former president of the Malta College of Family Doctors.

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