Times: Divorce and common good

http://www.timesofmalta.com/articles/view/20110220/opinion/divorce-and-common-good
Sunday, 20th February 2011 by Kenneth Wain

If the object of legislation is the common good the question arises, how is the common good defined, and who should define it? The first thing about the common good is that it must be common, i.e. it must refer to the whole of society, not some part of it. This is why statistics will never define what it is.

The official numbers on marital breakdowns are being used to argue that those marriages that fail irrevocably, for whatever reason, are a minority in number. Since when is the good of minorities not considered as part of the common good?

It certainly does not accord with the perception in a civil and humane society which should be that because minorities are vulnerable, their good requires their special protection by the state.

Imagine if the same argument were to be applied to the disabled, to gay people, ethnic or religious minorities, and so on; a general principle is at stake here, not just the good of a particular minority. If rights belong only to the majority what kind of a democracy is this?

Equally disturbing, this time from a moral rather than a political perspective, is the insensitivity bordering on callousness with which the pain suffered by the minority involved, in this case the victims of marital breakdown, is treated by politicians who, declaring their pain inconsequential because statistics, show them to be a minority.

Offering them abstract sympathy, then contributing to their suffering by denying them the means to alleviate it is very hypocritical.

That the divorce issue has become one about minority rights in our society makes it especially important. Because as a society, notwithstanding everything, we believe in minority rights, rights that respect difference.

Or do we? If we do not then we are confusing our democracy with a tyranny of the majority. This is not how it is understood in the Europe of which we say we are a part. If we do not wish our democracy to be simply such a tyranny we should not, as a society, let these rights be decided by referendum, or submit them to the will of the majority.

What a referendum on divorce legislation will show is simply the level of tolerance or otherwise our society harbours towards a minority who may want to live differently. How do we avoid being a tyranny of the majority?

First, by recognising certain basic freedom rights for all (it seems that freedom rights are not part of our political vocabulary), including, indeed especially (because they are the more vulnerable members of the society), for those belonging to minorities; the right to freedom of belief and expression, of association, and of lifestyle, limited only by the provision that that freedom is not abused, that is, not used to harm others directly, or to perpetrate or instigate violence against them.

Second, by recognising what should be the true function of a referendum in a democracy. Third, by acknowledging that the place where civil right claims should be determined is Parliament.

Divorce legislation could be on a political party's manifesto, but a Private Member's Bill is a perfectly legitimate instrument for forcing debate on the legislation of a civil right where the parties refuse this initiative (that's what it is for).

Indeed, it is a preferable route, because civil rights should not be a matter of party contestation. So let's go back to the beginning – first, the common good is not determined by statistics; nor is the determination of moral or political rights a matter of numbers.

Second, the obligation of the people's representatives is towards the people as a whole, including its minorities or individuals.

The common good they are called to safeguard is the wellbeing of everybody in society, including, in this case, those whose voice has been significantly absent in this whole charade, the voice of those directly involved.

As the people's representatives they should be expected to act as impartial judges of the case for the minority; indiscriminately, fairly and reasonably.

This means they should not turn their personal beliefs into crusades (which invariably happens when the parties come in), that their private conscience should have nothing to do with their deliberations of the common good.

Openness to persuasion being a fundamental democratic requirement, dogmatists who pronounce themselves deaf to the persuasion of the argument, have their proper place among the ayatollahs, not in a democratic parliament or forum.

Fourth, though democracy is about the common good, that good is best served when people are left free to live their lives, to determine their good for themselves, not when a paternalistic state or an intolerant majority have the arrogance to dictate it to them.

As happens in a court of law, the onus of proof should be on those who would deny the freedoms I referred to earlier, not those who claim them.

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