Divorce: Civic Republicanism and the Biblical Tradition - Essay Example

 The divorce of a couple breaks down the most fundamental social unit, the family. Families serve a primary social function of providing a safe and healthy environment to procreate and perpetuate the human species. It is a model for children to emulate as they grow into adults and take their place in society. When a marriage ends in divorce, a basic building block has been pulled from the foundation of our society, and in its place are left the single spouses, the children, and the property. Utilitarian ethics dictates that the outcome of the divorce will be dependent on seeking the greatest good for all the interested parties. These parties include the spouses, the children, the families, and the state. A settlement may be reached based on utilitarian individualism, a decision based on the self-interest of the spouses. It may also be reached through the process of utilitarian republicanism, an outcome based on what is best for the public, or the biblical traditions of morality. In fact, the outcome of a divorce, and the subsequent settlement agreements, will be a mixture of multiple ethical models. While the decision to get a divorce has moved farther towards utilitarian individualist attitudes, the outcome is still heavily influenced by civic republicanism and biblical traditions. The divorce process has traditionally been monitored and totally controlled by social institutions outside the interested family. Churches discouraged divorce through the threat of excommunication and damnation. The state regulated divorce through a series of laws and courts designed not only to protect everyone's interest and serve justice, but to minimize the impact on society. The state took the utilitarian stand that the outcome of a divorce needs to produce the greatest public good possible. Before the recent innovation of no-fault divorce and private spousal agreements, "Divorce was granted only after an official inquiry by a judge, who had to determine whether "appropriate grounds"-very narrowly defined in terms of marital offenses-existed. When a divorce was granted, the state asserted broad authority to structure the economic relationship of the spouses and to maintain regulatory jurisdiction over the children and their relationship to the parents" (Mnookin and Kornhauser 953). Today, liberalized divorce laws and private divorce agreements have moved the desirable outcome of a divorce from the public good and into the private good. Bellah's contention that we are moving further into a utilitarian society, at a social cost (in this case divorce), is evidenced by the move from a concern for the public good, as dictated by the courts, to the private happiness sought through today's easy path to divorce. When a spouse, or a couple, make the decision to get divorced the decision is made based on the self-interest of one or both parties. Without a utilitarian attitude, couples may be more prone to stay together out of concern for their children and the health of the family unit. They may subscribe to behaviors that they may find disagreeable or burdensome. John Stuart Mill defined utilitarianism as the Happiness Principle which "holds that actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness. By happiness is intended pleasure, and the absence of pain; by unhappiness, pain, and the privation of pleasure" (15). Happiness, and the absence of pain, are the moral standards by which utilitarianism makes its choice. Staying in a painful marriage may be made by other moral systems, but utilitarianism would endure it only if the happiness and stability of the family brought a greater reward to the injured spouse than the act of divorce. While divorce in the past was highly stigmatized, today it is commonplace. The social stigmatization of staying single has also been reduced and "Divorce as a solution to an unhappy marriage, even a marriage with young children, is far more acceptable today than ever before" (Bellah et al. 90). Our nation's tradition of individual freedom, and its attendant personal responsibility, has moved divorce ever closer to a utilitarian matter of personal choice. Though the ramifications are felt by the larger social groups, it is the individual who makes the ultimate choice. The state may become burdened with children or a spouse in need of public assistance, but the state leaves it to the individual to make that choice. Aunts, uncles, siblings, and grandparents will all be impacted by the action, but will generally respect the individual's right to seek their own happiness. In fact, recent decades have seen the movement towards greater personal freedom to gain a divorce. No fault divorce, and the feminist movement, have facilitated couples who wish to dissolve their marriage. Still, the divorce rate is held own due to other utilitarian concerns. The marriage may stay together based on a sense of shared family history, or the unpleasantness and stigma of getting a divorce (Bellah et al. 104-05). Thus the couple may make an individual utilitarian choice that avoids the pain of divorce and shares some sense of happiness, even in a loveless marriage. The ease of gaining a divorce, and the independence gained by women through the feminist movement, have allowed the utilitarian attitudes towards divorce to flourish. Bellah et al. states, "Given the enormous American emphasis on independence and self-reliance, [. . . ], the survival of the family, with its strong reliance on interdependence and acceptance, is striking" (87). In fact, it is so remarkable that forces outside the utilitarian must be at work to influence the long-term outcome of the institution. Religion has played a major role in placing morality above individual utilitarianism as the process for the divorce decision. The Catholic religion, and several others, have historically held a firm taboo against divorce. In this way, religion has served society by helping to maintain the family structure. Religious concerns were based on the pragmatism that the family unit was vital to society and the breakup of a marriage had a social cost. Because it was a religious doctrine, it was translated into the accepted morality. In fact, it was utilitarianism, that had as its major concern civic republicanism. The church was concerned about the burden to society that would be produced by children without a healthy home and a mother with no realistic means of support. The decline of religion in recent decades may be responsible for the escalating divorce rate during this same period. As the morality (based on civic republicanism) of religion waned, individual utilitarianism began to influence the act of divorce. After the couple has made the utilitarian decision to seek a divorce, the state, through divorce and family court, becomes the self-interested party. The court has many aspects to consider. They have the wishes of the parents, the well-being of the children, and the public good to weigh into their decisions. While the decision to get a divorce is made at the individual level with utilitarian concerns, the divorce process is one of republican utilitarianism and morality. Mnookin and Kornhausen report that while the divorcing parties can make private agreements concerning child support, custody, property division, and visitation it is the court, and the welfare of the state, that takes precedence. "Private agreements concerning these matters are possible and common, but agreements cannot bind the court, which, as a matter of official dogma, is said to have an independent responsibility for determining what arrangement best serves the child's welfare" (Mnookin and Kornhausen 955). Serving the needs of the child is the civic duty to serve the best needs of society. Though divorce is still a matter for the public good, and the providence of the state, decisions are not always made with utilitarian attitudes. The various ethical models interlock to produce a decision. The wishes of the parents, though not binding, are often considered and heavily influence the outcome. In today's rubber stamp process of the crowded judicial system, "parents actually have broad powers to make their own deals" (Mnookin and Kornhauser 955). In addition, the dissolution of same-sex marriages, or marriages with no children, may not have any legal consequences at all and utilitarian behavior could become overly selfish (Kohm 5). America's tradition of individualism could result in only one party benefiting from the utilitarian pursuit of happiness. However, when children are involved the court must be judicious in evaluating the welfare of the children and the public good. Spouses must be held accountable to reduce the pain that the state will endure from additional wards and responsibilities. Morality also plays a role as the traditional rights of the birth parents are weighed against the utilitarian judgments concerning the children and the state. While divorce has become more individual utilitarian in recent years, it still retains the civic responsibility and morality that has been ingrained in America through its biblical traditions. In conclusion, divorce is a process that must consider many aspects of the private and public good. The move toward a more utilitarian process through no-fault divorce, private agreements, and a rubber stamped process confirms Bellah et al's. contention that as a society we are moving away from our civic duty. Yet, while the decision to seek a divorce is made on self-interested utilitarian grounds, the process is impacted by morality and the need to serve the public good. Divorce, once highly stigmatized and socially discouraged, has become commonplace and less unpleasant. In fact, if no children are involved, the action can be dictated by the spouses and has the danger of becoming an act of selfish behavior on the part of the partners. The regulating force of the morality of religion has waned in recent years, but has been maintained by the courts in the interest of the children. While courts will naturally serve the public good, morality must be weighed as part of the divorce settlement. Divorce is moving ever-farther down the road to utilitarian individualism, but the process has necessarily retained the socially vital components of civic republicanism and the biblical tradition. Works Cited Bellah, Robert N. Habits of the Heart: Individualism and Commitment in American Life. Berkeley, CA: University of California Press, 1985. Kohm, Lynne Marie, "How Will the Proliferation and Recognition of Domestic Partnerships Affect Marriage?" Diss. Regent University School of Law 2000. 1 May 2008 . Mill, John S. Utilitarianism. Boston: Willard Small, 1899. Mnookin, Robert H., and Lewis Kornhauser. "Bargaining in the Shadow of the Law: The Case of Divorce." The Yale Law Journal 88.5 (1979): 950-97. JSTOR. 1 May 2008. Read More