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British Conservatism and the Legal Regulation of Intimate Relationships

British Conservatism and the Legal Regulation of Intimate Relationships

Author: Andrew Gilbert
Publisher: Hart Publishing
ISBN: 9781509915880

Published In: August 2018
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only
Paperback Edition ISBN: 9781509943753

List Price: HKD 1,170.00

HKD 1,134.90 Save HKD 35.10 (3%)

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What does conservatism, as a body of political thought, say about the legal regulation of intimate relationships, and to what extent has this thought influenced the Conservative Party’s approach to family law? With this question as its focus, this book explores the relationship between family law, conservatism and the Conservative Party over the last generation.

Taking a politico- and socio-legal perspective, the discussion draws on an expansive reading of Hansard as well as recently released archival material. The study first sets out the political tradition of conservatism relying largely on the work of Edmund Burke, before going on to analyse the discourse around the development of four crucial statutes in the field, namely: the Matrimonial and Family Proceedings Act 1984; the Family Law Act 1996; the Civil Partnership Act 2004 and the Marriage (Same Sex Couples) Act 2013.

This work offers the first extended synthesis of family law, conservative political thought and Conservative Party politics, and as such provides significant new insight into how family law is made.

1. Introduction

Justifications

Boundaries and Questions

Theoretical Framework

Chapter Outline

A Final Note

2. Conservatism and Family Law

Introduction

What is Conservatism?

The Knowledge Principle

The Change Principle

Conservatism and the Family

To What Extent Should the Law Support Marriage and Facilitate Divorce?

The Clean Break on Divorce

Should the State Legally Recognise Same-Sex Relationships?

The Objection to Same-Sex Marriage from Natural Law Theory

The Conservative/Libertarian View

The Conservative Assimilationist Argument

Going Further: A Classical Conservative Argument

Concluding Remarks

3. Marriage and Divorce in Transition: The Matrimonial and Family Proceedings Act 1984

Introduction

The Political Context: The New Right

Thatcherism

The New Right, Thatcherism and the Conservative Tradition

The Conservative Party and Family Policy Prior to the MFPA 1984

The Family Policy Groups

Lessons from a Letter to a Child

The Matrimonial and Family Proceedings Act 1984

Genesis of the Act

The Divorce Time Bar: Previous Law and Criticisms

The Divorce Time Bar: Law Commission Proposals

The Financial Consequences of Divorce: Previous Law and Criticisms

The Financial Consequences of Divorce: Law Commission Proposals

Analysis of the Bill in Parliament

The Conservative Preoccupation with the Expressive, or Symbolic, Function of Law

Conservatives Mostly Disregarded the Impact of the Clean Break

Conservative Distrust of Experts and Evidence

Conclusion

4. Major Change?: Family Law and Policy in the Decade Following the Matrimonial and Family Proceedings Act 1984

Introduction

The Major Premiership: Thatcherism After Thatcher?

Family Law and Policy Prior to the Family Law Act 1996

Surrogacy Arrangements Act 1985

Children Act 1989

Human Fertilisation and Embryology Act 1990

The Gillick Case

Major Change?: Some Concluding Thoughts

5. Divorcing Rhetoric from Reality: The Family Law Act 1996

Introduction

The Genesis of the Family Law Act 1996

The Law Commission Reports

The Government's Responses

Main Provisions of the Bill

Analysis of the Bill in Parliament

Pessimistic versus Realistic Assessments of the Human Condition

Legislators' Views of Experts: A Tension between Trust and Distrust

Message-Sending and the Agency of Law Generally (Again)

Reece and a Post-Liberal Interpretation of the FLA 1996

Concluding Thoughts

6. 'Commitment Rewarded': The Civil Partnership Act 2004

Introduction

The Conservative Party and Homosexual Law Reform

The Civil Partnership Act 2004: Marriage-Like, Not Marriage-Lite

The Genesis of the Act

The Bill in Parliament

Official Conservative Position: Conservative, Liberal and Libertarian Strands

The Conservative Dissent

Sex in the Shadows

Class

Concluding Remarks

7. An Unnatural Union?: British Conservatism and the Marriage (Same Sex Couples) Act 2013

Introduction

From Civil Partnership to Same-Sex Marriage: A Short History

The Background to the Bill

The Main Features of the Marriage (Same Sex Couples) Bill

Analysis of the Debates

An Overview

The Diminishing of Difference and the Assimilation of the Gay 'Other'

Sex in the Shadows (Again)

The Centrality of Religion in the Debates

Conservatives and Conservatism in the Commons Second Reading

Conservative MPs in Favour of the Bill

Conservative MPs Against the Bill

Concluding Remarks

8. Conclusion

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