Responsibility, Law and the Family

Jo Bridgeman, Craig Lind, Heather Keating

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781138270527
• eBook ISBN: 9781317064770
• Topic: Law
• Subtopic: Family Law
• Index: Law

Focusing on moral, social and legal responsibilities as opposed to rights or obligations, this volume explores the concept of responsibility in family life, law and practice. Divided into four parts, the study considers the nature of family responsibility; constructions of children's responsibilities; shifting conceptions of family responsibilities; and family, responsibility and the law. The collection brings together leading experts from the disciplines of sociology, socio-legal studies and law to discuss responsibilities prior to birth, responsibilities for children, as well as responsibilities of children and of the state towards family members. The volume informs and challenges the developing conceptualization of responsibilities which arise in interdependent, intimate and caring relationships and their legal regulation. It will be of great interest to researchers and practitioners working in this complex field.

Chapter 1
Introduction: Conceptualising Family Responsibility

Jo Bridgeman and Heather Keating

Introduction

Responsibility, like rights, duties, obligations, justice and fairness, is a concept employed by the law in the ordering, regulation and resolution of conflicts in human life. This book contributes to analysis of responsibility, in which there is currently a renewed interest amongst politicians, in law and in academic research. At the same time, as a term employed by family members to describe the nature of their relationships with one another, responsibility is a concept employed in the ordering and negotiation of family relationships. Yet, it is only recently that its application to family law has begun to be examined. The aim of this book is to advance a process of conceptualising responsibility in family life, law and practice from sociological, legal and socio-legal perspectives.

Responsibility is a concept with many different meanings ranging across accountability, answerability, responsibility for, responsible behaviour, being made to take responsibility or as a corollary to rights. This introductory chapter examines the development of the discourse on family responsibility by exploring the moral, social and legal theorisation of the concept of responsibility. We start by considering ‘traditional’ approaches to responsibility (within liberal theory) that centre upon capacity and conduct (especially in relation to criminal behaviour) and then examine post-liberal conceptualisations of responsibility found in communitarian thought. Our introduction concludes by exploring some of the themes which emerge from the rich variety of material on responsibility in the chapters which follow. But, first, a few words about the family.

Conceptualising Family

In this book we have chosen to use the commonplace label, ‘family’, to identify the boundaries of our undertaking. The vast majority of us have experienced ‘family’ life and continue to live within our families. We know what this concept means to us. However, as many writers have commented, as a concept it is far from simple. What it encapsulates has varied over time and differs between, and within, cultures. As Douglas has commented,

the family may be constructed from a variety of perspectives including the genetic, focusing upon the blood-tie; social, emphasizing the functions carried out by those standing in a family relationship to each other; psychological, exploring the ties of affect and emotion between individuals; legal, defining the family for the purposes of legally binding decisions and rules; and ideological, promoting a particular form of family structure and behaviour as the desirable norms. … It can follow that differing notions of what is meant by the family may be masked by an assumption that we are all talking about the same thing and from the same perspective. (Douglas 2004, 2)

We take this warning seriously (for example, Diduck in this book); each interpretation of the family does, indeed, come with ‘a baggage of competing values’ (Douglas 2004, 1). And, if the concept of ‘family’ is dynamic, contested and capable of being misunderstood or manipulated, the concept of ‘family law’ is likewise problematic. What is family law about? And is ‘family law’ the best label to employ?

Douglas has rightly stated that ‘the essence of family law is that part of the law which is concerned with the recognition [and non-recognition] and regulation of certain family relationships and the implications of such recognition’ (Douglas 2004, 3). As such, ‘the boundaries of family law are no more static than those of the family’ (Probert 2004, 903). Politicians (and the advertising industry) may still hold dear the ‘cornflake packet’ ideal of the family (of married, heterosexual parents with children) but there has been acknowledgment, and increasing recognition, of the diversity of forms families may take. The interrelationship between ‘family law’ and the ‘family’ or ‘families’ is itself problematic. One view is that

family law itself really hasn’t changed; it has simply extended its remit to permit a wider range of people and relationships within it. Another view, however, is that family law has not so much responded to social change as it has participated in it. Expanding family law may have helped to facilitate changing family practices and new “personal familiarities”. (Diduck in this book, 252)

It is beyond the remit of this introductory chapter to explore fully the changing shape of family law – many of the chapters in this book contribute to that endeavour – but before leaving the question of what is family law, three further inter-related points should be noted. First, the extent to which and the ways in which governments choose to recognise and regulate family life are political decisions based on ideological and pragmatic considerations. Such decisions are made as part of a rich – but nonuniform and indeed chaotic (Dewar 1998) – tapestry woven together from threads of intervention and privacy. Secondly, securing the appropriate balance between state intervention and respect for the privacy of the family (and individuals within families) is at the heart of family law – and is a recurring theme in this book. Finally, when it comes to the mode of intervention, the pattern shifts (over time and over issues) between a welfare (and thus, typically, discretion) based approach and a rights (and thus more typically rule) based approach. Into what has arguably become once again1 a more rights based family law (Dewar 1998; Diduck in this book; Parker 1992), this book wishes to add a further strand: responsibility.

Before beginning to explore that concept a final word needs to be said about whether, in the face of the difficulties attaching to family and family law, some other phrase should be employed to convey the subject of this book. Eekelaar has suggested the phrase ‘personal law’ (Eekelaar 2006, ix) and Probert has commented that ‘we should even consider re-adopting the term “the law of domestic relations”’ (Probert 2004, 905). Other possibilities include ‘dependency’, ‘caring’ or ‘intimate’ relations or, more modestly, ‘families’ law’. Each of these has its merits but potential pitfalls as well. To say that our subject is ‘personal law’ might risk losing the essence of family life: interdependency (Diduck in this book); to use ‘domestic relations’ might be as much as a mixed blessing as it has been with ‘domestic violence’. Have we really come so far as to free understandings of ‘the domestic’ from the association with the private and unregulated realm that it patently is not? ‘Families’ law’ or ‘the law of families’ may come the closest to encapsulating the range of relations within what we understand and experience as families. However, it is not our endeavour to identify a concept which achieves this more successfully than ‘family’ and ‘family law’. Like Alison Diduck, we believe that ‘embedded within the pluralism and the tensions is the glimmer of a thread of normative consistency’ (Diduck in this book, 254) based on interdependence, intimacy and care that a study of responsibility may help to draw out.

Conceptualising Responsibility

‘Traditional’ approaches to responsibility (within liberal theory)

Liberal theories of responsibility were developed predominantly within the framework of discussions about wrongful behaviour. At face value it seems more than a little strange to discuss ‘responsibility’ in the context of criminal or other wrongful behaviour: such actions are more likely (at least in media accounts) to be perceived as ‘irresponsible’ or ‘out of control’. A ‘responsible’ person: ‘one who is disposed to take his duties seriously’ (Hart 1967, 348) would not, one could imagine, willingly behave in a wrongful manner. However, perhaps one of the most important of all features ascribed to the criminal law, at least, is that it is concerned with the actions of ‘responsible’ agents. So, ‘responsible’ agents do things that we might condemn as irresponsible. What, then, does it mean to be described as ‘responsible’ in this context and how does this relate to responsibility and the family?

This is a question that has long occupied the writings of criminal scholars and philosophers of such eminence as H.L.A. Hart, Anthony Honoré and, more recently, John Gardner. For theorists who adopt the agency model a common starting point is causation: ‘the most basic element of responsibility’ is that the actor caused the result (Hart 1967, 348; Tadros 2005, 22). But, of course, although the phrases ‘to cause’ and ‘be responsible for’ a result may be used interchangeably, they are not the same: we are not responsible for every result we cause. Thus, very young children or the legally insane may cause harm but not be held responsible. To be so held involves, according to Tadros, ‘attribution-responsibility’ (Tadros 2005, 22). The basis on which the harm caused by an actor can be ‘attributed’ to him or her derives from the meaning of the word responsibility itself. For example, Gardner has argued that responsibility in its ‘basic’ sense is an ability to respond (Gardner 2003, 161, and discussed in Keating’s chapter); Duff expresses it in terms of ‘being answerable’ (Duff 2001, 184; see also Hart 1967, 3632); whilst for Tadros it is the ability to give an account of oneself (Tadros 2005, 25). The common thread here is that in order to be described as responsible, the agent must have rational reasons for acting. Gardner describes these as ‘explanatory reasons’ (which the agent is able to communicate) while Tadros prefers ‘motivating reasons’ (Gardner 1996; Tadros 2005, 28):

Why should explanation in terms of motivating reasons ground the idea of responsibility? The obvious answer is that motivating reasons are constituents of agency. Insofar as an action is performed under the guidance of a motivating reason of the agent, it might be thought, that action is performed under the guidance of the agent. And that grounds the agent’s responsibility for the action. … An agent is responsible for an action … insofar as that action reflects on the agent qua … agent. (Tadros 2005, 31, 44)

However, according to Tadros, an ability to provide reasons is insufficient for a ‘full account of responsibility’, which also includes being an appropriate target for the ‘reactive attitudes’3 (such as condemnation or approval, leading to blame or praise) of others (2005, 25). Both are central elements of a theory of responsibility. It should be noted that even if one is ‘responsible’ in this sense it does not follow that the agent is at fault or is subject to legal liability for what he or she has done (he or she may have, for example, a justification or excuse; Tadros 2005, 25; see further Gardner 1998); instead we are ‘put on notice’ (Tadros 2005, 25) that some kind of reactive attitude may be appropriate.

Beyond (broad) acceptance of the etymological significance of the word ‘responsibility’, theorists have proceeded to offer very different theories of criminal responsibility. Classical liberal accounts are underpinned by an acceptance of the value of autonomy: ‘in a liberal society where political freedom is valued people must be free from criminal liability and punishment unless they “voluntarily” break the law in the sense of doing something that they can properly acknowledge as wrongdoing’ (Clarkson and Keating 2007, 108 citing Williams 1997; Duff and von Hirsch 1997). This led Hart to develop the ‘capacity’ theory of responsibility:

What is crucial is that those whom we punish should have had, when they acted, the normal capacities, physical and mental, for doing what the law requires and abstaining from what it forbids, and a fair opportunity to exercise those capacities. Where these capacities and opportunities are absent … the moral protest is that it is morally wrong to punish because “he could not have helped it” or “he could not have done otherwise” or “he had no real choice”. (Hart 1968, 152)

This theory has been of profound significance to generations of criminal lawyers (see, for example, Horder 2004) and is drawn upon by Heather Keating in her critique of government policy in relation to the criminal responsibility of children. However, this theory has also been subject to sustained criticism by, for example, those who (in varying degrees) challenge the idea of humans as freely choosing and acting beings.4 More recently, Tadros, for example, has argued that ‘neither capacity nor choice is central to the attribution of responsibility’ (Tadros 2005, 46) although he does acknowledge that capacity is relevant to determining status-responsibility (so it is relevant to ask if a child has capacity for the purposes of criminal responsibility). Tadros and a number of other theorists prefer a ‘character theory of responsibility’. An agent can only be criminally responsible for his or her behaviour if it is properly related to his or her character and is not ‘out-of-character’. This involves introducing a temporal aspect to responsibility: ‘When we are punished, we are punished as agents who persist over time. The character theory encourages criminal responsibility to consider the agent more broadly than at the moment of action, and thus is considered more likely to lead to just punishment’ (Tadros 2005, 47; see also Gardner 1998; Lacey 1988). Character theorists also uphold the value of autonomy in the criminal law but do not accept that it is inextricably linked to choice as is the case with capacity theorists. Just as capacity theory has been challenged, so too has character theory: it has been argued that it amounts to punishing a person for what he is rather than what he does (although that is to over-simplify the theory). While it is probably true to say that character theory is growing in importance, capacity theory is far from being eclipsed.

The basis of much of the above work has been challenged by Cane on several levels, not all of which can be explored here but some of which should be noted for their implications for family law. First, Cane has argued that accounts of legal responsibility have tended to focus upon ‘historic responsibility’ at the expense of ‘prospective responsibility’.5 His view is that the law is just as much concerned with establishing prospective responsibilities (‘what our responsibilities are’) as with holding us to account for what we have done, or failed to do (2002, 31).6 Secondly, Cane argues that while the agency-focused analysis of responsibility ‘fits the contours of criminal responsibility reasonably well … when we turn from criminal law to civil law – contract and tort [and, we would add, family law], for instance – the picture looks very different. … Responsibility in civil law is always to someone as well as for something’ (2002, 49-50). Cane offers an alternative perspective that focuses not upon human agency, but sees responsibility as a ‘heterogeneous, context-specific practice and concept’ (Cane 2002, 25).7 For Cane, responsibility in law is a relational concept and practice, ‘in the sense that it concerns the three-way relationship between agents, “victims” and the wider community’ (2002, 56). Cane’s Responsibility in Law and Morality extends beyond criminal law and tort to explore his taxonomy of responsibility in a range of areas of law but does not venture into family law. Clearly, there is much for the family lawyer to consider in an approach that sees responsibility as prospective, contextual and relational.

Post-liberal conceptualisations of responsibility: Communitarian thought

Alongside traditional ideas about responsibility, policies of the New Labour government on the family have been influenced by communitarian approaches to responsibility. In general terms, communitarianism responds to critiques of the individualism and universalism of liberal political theory. Communitarians, such as Amitai Etzioni, argue that the focus upon the dichotomy of the market (private sector) and the state (public sector) has been at the expense of consideration of the role of society. He argues that ‘much of social conduct is, and that more ought to be, sustained and guided by an informal web of social bonds and by moral voices of the community’ (Etzioni 1998, xii). In brief, communitarian thought recognises both the individuality and social connectedness of human beings; considers that protection of individual liberty requires recognition of both the self and of others (respect for self and others; personal and social responsibilities; individual rights and those of others; governance of self and others) and that the obligation of communities and the state is ‘to be responsive to their members and to foster participation and deliberation in social and political life’ (Etzioni 1998, xxv).

A fundamental tenet of communitarian thought is that individual rights need to be balanced with social responsibilities in order to create the conditions in which individuals can enjoy rights: ‘ordered liberty requires communitarian foundations’ (Etzioni 1995, 24). Importantly, communitarians do not advocate the erosion of individual liberty nor the replacement of rights with responsibilities, rather that the latter (community and responsibility) are necessary to support and sustain the former (freedom and rights):

The exclusive pursuit of private interest erodes the network of social environments on which we all depend, and is destructive to our shared experiment in democratic self-government. For these reasons, we hold that the rights of individuals cannot long be preserved without a communitarian perspective. (Etzioni 1998, xxv)

Individuals are understood to be distinct entities but are also seen as members of communities (Etzioni 1995, 18). Each individual may belong to a number of communities – neighbourhood, religious, ethnic, workplace, professional or, importantly in our context, families. Thus, communities may link or overlap but will also be ‘nested’ within bigger communities (Etzioni 1995, 24-25).

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Table of contents

• Cover Page
• Half-Title Page
• Title Page
• Copyright Page
• Table of Contents
• List of Contributors
• Preface
• 1 Introduction: Conceptualising Family Responsibility
• Part 1 The Nature of Family Responsibility
• Part 2 Constructions of Children’s Responsibilities
• Part 3 Shifting Conceptions of Family Responsibilities
• Part 4 Family, Responsibility and the Law
• Index