Samhain '94 Samhain '94The political institutions of church and state have long soldiered on in a difficult marriage. Their tumultuous relationship has been the historical space for thrashing out of a number of entangled issues - the interaction of authority and individual liberty, morality and conscience, and the idea of the common good. The law has been one of the mediators of this space, serving the diverging needs of both partners throughout the development of the modern state.
But during this century religion as an overt, frontline political force has been weakened in the West. With the decline of the churches, calls for law and organisation based purely on norms of religious belief have become less strident. Public debate about regulating social life tends to be based on differing interpretations of measurable harm and benefit; on manipulating cause and effect rather than on concepts of good and bad, sin and salvation.
In Ireland, however, there is a peculiar mesh of (Catholic) church and state mind, which is quite unique amongst Western nations. [The other Christian churches in Ireland have a more developed understanding of the separation of civil and religious competencies.] The quality of this interaction results in a frequently confused political and legal debate. For example, the fact that Catholic Christianity is so explicitly written into the Irish Constitution (the basic norm for Irish law) immediately muddies any attempt to define the strands of a legal/political argument. As spheres of authority are left undefined, the first principles which underlie statements issuing from each institution are not differentiated. In the struggle to ensure a desired result, and minimise the possibility of alienating adherents of the other, the language of church and state pronouncements is made deliberately obscure. It is clear that neither institution accepts the necessity for separate yet concurrent jurisdictions.
This reluctance to claim respective jurisdictions was particularly visible during the divorce referendum, when the declared bases of approach to the issue of marriage breakdown shifted constantly. During that debate the Catholic Church deployed a barrage of ill-associated reasonings. Empirical data and sacramental teaching, sociology and tradition, custom and history were all combined to create a thoroughly illogical case against divorce. By confusing the elements of the discussion the viability of each argument could only be challenged with difficulty. With a re-play of the divorce referendum expected this year, it is useful to take a look at how that debate was conducted. To ensure a just and informed outcome it is important that argument is constructed on clearly delineated grounds. Both church and state must make clear their starting points in order to ensure what has been called " the morality of the debate."
The first necessity is to pose the correct question which will underlie the debate. The question is not "what do I think of divorce?" but "should the state in all circumstances refuse to grant a civil dissolution of marriage?" Posing a clear question is precisely what the Church finds most difficult. It cannot conceive of marriage as both a social and a religious institution, with two parallel natures over which separate authorities reign. Making such a distinction is considered an abrogation of God's unlimited law and authority: "what God has joined together in marriage no man can put asunder." But what man has put together can not man put asunder? Acceptance of the idea of concurrent, but different natured, jurisdictions over the marriage bond forces no quarrel with either statement. Religious belief is unsullied by opinions held on a civil matter.
What is posited as the great morality versus law debate is an illusory dichotomy. The principles of one can usually move laterally to benefit the other. There is no need for the creation of hierarchies. Law as an outgrowth of the moral order will often enforce what are seen as "moral" requirements, without claiming supremacy. These may be ideas such as principles of due process, fairness and legitimate expectation. Similarly, religious or "moral" belief usually requires some form of obedience to positive law. In addition, both claim areas of regulation not considered a priority by the other.
Thus a particular question usually involves both moral and legal issues. Understanding when either a moral or a legal matrix enters the discussion is vital to a moral debate. The Church speaks of the question of divorce legislation as one of state law and of the impact on society which a proposed change in the law would have, not one of conformity with Catholic moral teaching. But the promised impact analysis is not forthcoming. The purpose of framing laws is declared to be a simple "attempt to state God's will for the citizen as citizen." The Church has asserted, for example, that the real meaning of rejecting divorce is a "faith in mans capacity to live with suffering and hardship and to grow and struggle for the common good." This is a clear call to the acceptance of a particular path to growth - a belief system. Is the imposition of a uniquely Catholic and Ireanean way of being part of the function of the civil law?
There is little examination of what elements of marriage are essential to civil society. Divorce is about changing the legal definition of marriage. What status indissolubility has in relation to the nature and function of marriage is an important question. Can the functions of the marriage contract be fulfilled in a different way with the removal of indissolubility? Is indissolubility not primarily about enforcing responsibilities for example? What quality is in the bond of marriage which makes it "central to the wellbeing" of the family and society. Can this quality be found in a different form?
It is language again which is the key to the Church's extraordinary confusion when it comes to divorce. It views the bond or "communion of love" between God and his people as finding meaningful expression in the marriage covenant. Indissolubility of marriage is then a "sign and a requirement of the absolutely faithful love that God has for man." As an absolutely valid historical act representing God's covenant with his people, the marriage bond is immutable. The human capacity for imperfection and mistake cannot be admitted. Tradition is paramount in a Church for which transformation and flexibility are frightening possibilities.
The family is a changing concept in the modern world, evolving into a base of bonds of affection rather than of duty and obligation. More democratic and person-centred than hierarchical and institutional, roles are now negotiated rather than imposed. The shiftings in the traditional concept of family are a microcosm of the transmutations inherent in the Church's own being. Divorce, in the Church's view, threatens to deconstruct the primary unit upon which the model for the Church is built. The battle for the retention of the form of the traditional family becomes the battle for the retention of a particular model of church organisation. This is why the debate is so fiercely fought.
Ireland has always had an uneasy relationship with the law. At one level, disregard for, and indeed evasion of, the law is secretly applauded. At another level, although the most stringent standards may be enshrined in a legal system, failure to live up to the ideal is tolerated almost with an air of expectation. It seems that the limit of the law as a social tool or method of conflict resolution has not been recognised. Factors such as workability, efficiency, proportionality, and enforcement potential, (the usual tools of the law maker) are not considered important. The law has been invested instead with a magical quality. Particularly within the divorce debate, law as a language of aspiration, as an ideal symbolically halting the tide of marriage breakdown, finds eager speakers. Thus, ambiguous Church argument, appealing to the emotions, to undefined fears and general senses is unquestioningly assimilated. It is this element of what could be termed the Irish psyche, this belief in the power of language and paradox which ignores the demands of explicit and empirical debate.
All quotations are from official Catholic publications.
Deirdre Clancy is a law graduate with an interest in theology.
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