The vision of the self promoted by the law is of an isolated, independent, self-sufficient, autonomous man. Far from the reality of our vulnerable, caring, relational selves. The rights the law tends to protect are well suited for the legal self: those of autonomy, privacy and self-determination. They are unsuited for the reality of our existence in which autonomies are mixed; meaning is found in sharing experiences; and flourishing is discovered in the mingling of our lives. The legal self privileges particular activities, those traditionally seen as the world of men, and downplays the importance of caring, traditionally seen as the world of women. This side-lining of care, and the aggrandising of what is labelled ‘economically productive’, helps sustain and reinforce patriarchal oppression of women.

1. INTRODUCTION

It is appropriate that, in this chapter, I want to contemplate John Eekelaar’s article ‘Family Law and Love’: ppropriate because, whenever John’s name comes up in conversations with family lawyers, he is spoken of with remarkable warmth and affection. And his name is often spoken of by family lawyers! His impact on the academic study of family law is enormous. Anyone tempted to think that family law is a’soft’ subject for academic study, or has little of philosophical interest, will soon have their minds changed by reading any of John’s work. The depth, quality and clarity of his thought is unsurpassed.

But more important is his kindness of heart. John was not only an outstanding researcher; he was an inspiring teacher. One thing that always struck me was his dedication to his students. He would find a kind and supportive comment about even the least worthy of them. At a time when it is common to express frustration about teaching or despair at the quality of students, John was always deeply committed to teaching, and proud of those he taught. He was a most wonderful colleague: enormous fun, hospitable, extraordinarily conscientious, supportive and inspiring.

In his later work, John explored the grand themes of family law. These magisterial works demonstrate an academic at the height of his powers. As already mentioned, in this chapter I shall discuss one of these, ‘Family Law and Love’. I shall set out some of the thoughts inspired by this article. They are not intended in any way as a rebuttal of the arguments made in the article, but rather as my own consideration on three of the themes raised. First, the contrast between family law which seeks to influence people’s behaviour (the instrumental function of law) and family law which deals with problems and disputes after the event (the retrospective function of the law). Second, the relationship between domestic abuse and love. Finally, the role of kindness in the resolution of family disputes. Before considering these, I start with a brief summary of the article, although I shall be expanding on the themes as the chapter progresses.

This chapter will explore Lady Hale’s contribution to medical law in relation to three themes. The first is the importance she attaches to care. While medical law tends to emphasise the work of professionals, and particularly doctors, Lady Hale has emphasised the importance of care as a central value in health. Second, and linked, is the emphasis placed on relationships. Her judgments in medical law avoid a highly individualised approach to concepts such as best interests or autonomy and recognise the importance of relationships to a person’s identity and well-being. Third, she has been keen to emphasise the significance of autonomy, but not in an abstract sense; rather, she focuses on autonomy built upon real-life experiences, particularly of women. The attention she gives to autonomy as a lived, relational experience, rather than something hyper-rationalised and separated, is one of her key contributions to medical law.

Introduction

The initial proposal for this book did not include a chapter on life before birth. I had proposed covering the issues around pregnancy in the chapter on adulthood, but the reviewers were keen to see a full chapter on these issues. With some reluctance I agreed, and I am now glad I did. Although I still find it enormously problematic to discuss the fetus as an abstract entity, for reasons which will be explored below, the legal response to the fetus and the ethical debates around its status, tell us much about how the law and society understands humanity and what it is to be a person in ethical and legal terms. How the law responds to the fetus can, therefore, indicate what the law values about human life, which can have significance throughout the life course. As we shall see, the debates over the importance of autonomy, mental capacity, biological life, and relationships feature in the arguments over the status of the fetus as they do throughout all the stages of life.

The difficulty about writing about the fetus is that discussion very quickly leads to fierce debates around abortion. To discuss the position of the fetus without considering the position of the woman is seen as playing into the ‘pro-life’ view on abortion, which seeks to put the rights of the fetus on one side of the scale and the rights of the woman on the other, with the fetus having the stronger claim. Conversely, focusing on the experiences of the pregnant woman will be seen by some as playing into the ‘pro-choice’ view of the mother's rights taking centre stage and skewing the arguments in her favour. Indeed, for some, once (or if) it is established that the fetus has a right to life, then whatever claims may be raised by a woman they will be defeated by the rights of the fetus. Similarly, there are those who see the woman's absolute right to bodily integrity as meaning that whatever claims may be made by the fetus they are defeated by the rights of the woman. All too often this means, in effect, that neither side of the debate feels they need to listen carefully to the arguments of the other because both sides believe they have a trump card.

Introduction

In many ways this was the hardest chapter of the book to write. While it would not be difficult to find books and articles on law and children, and law and older people, Law and Adults does not seem to have captured the market, or even the legal imagination. Admittedly, it looks like a hard sell.

Adulthood is a blank. The legal literature appears not to have any special rules that relate to adulthood. Similarly, in the sociological literature, while we might have a reasonably clear conception of what old age and youth look like, middle age is more of a blur. This, however, is revealing and significant. The law has no special ‘law of adulthood’ because that is the standard law. Look at a standard textbook on criminal law, tort law or contract law to find the law of the adulthood. That will not be stated overtly, but such books will typically include brief sections on how the law operates with regard to children, or to people with impaired capacity, as ‘exceptional cases’. Indeed, it would be perfectly possible, and may be quite common, for a student to go through their legal studies having read no cases on children or older people. Our students leave university well able to advise the businessperson on a commercial contract but utterly unable to advise the 15-year-old who finds herself pregnant, or the 80-year-old with dementia who opposes her family's plans to put her into a care home.

This chapter will not, therefore, list a series of special legal provisions that deal with adulthood. Rather, it is the unspoken assumption that what applies to an adult person is the ‘normal’ law. Yet it will be argued in this chapter that this assumption, and the assumption of what a typical adult person is like, has a profound impact on the values underpinning the law. Before examining that a little more, the nature of adulthood will be discussed.

Sociology and adulthood

Adulthood in sociology is both key and invisible. It is ‘a central category’ because ‘it provides the unarticulated background to a majority of social enquiries’. But the meaning of adulthood is rarely expressed because it is taken as the default category. So, although it appears in the literature, it is often in the shadow as the stage towards which children are heading, and the stage from which older people have headed away. It therefore goes unarticulated and unchallenged.

Introduction

The final stage of life is, of course, death. Traditionally death has been ‘the topic that should not be discussed’, and it received little academic or media attention. That is changing with popular books being written about death, a rapid growth in academic studies of death, and a wide-ranging public debate over the right to die.

This chapter will start by exploring the definition of death, a hotly disputed issue. The definition of death reflects debates about what it means to be alive. There are, therefore, echoes of the debates over when life begins, discussed in Chapter 3. Here, the legal approach will be compared with the philosophical and sociological literature on the nature of death. The chapter will then turn to issues over a right to die and responses to suicide.

Disputes over the definition of death

There is a lively debate over the definition of death. At first that might seem surprising. Surely, such a foundational concept would have a clearly agreed definition? So, it is helpful first to clarify why the definition of death has proved controversial. There are three primary reasons.

First, technologies have developed so that people can be kept ‘alive’ in ways which would have been unimaginable even a few decades ago. Most biological functions can now be performed by mechanical devices. The idea of a person being kept alive forever, which at one time would have been laughable, now seems more plausible. This, then, raises the issue of what kind of prolonged existence might count as being kept alive, as opposed to ‘keeping a corpse warm’.

Second, the issue of when a person dies has some practical significance. In the past it was notable that the primary debates surrounding death in England were theological and concerned when a soul was thought to leave the body, that being the key issue of interest. Now, the time of death has huge significance in the area of organ transplantation. If an organ is to be useable for transplant it is important it is as ‘fresh’ as possible. That means that it must be removed as soon after death as possible. But that then raises the question: when does death occur? Such is the practical significance of this that some commentators have suggested it might be helpful to separate out the questions of generally when a person is deemed to be dead and when organs can be removed.

“Well, I think that, I just feel like a young man, I’m so young! I can't believe it, I’m the youngest person,” declared President Trump, then aged 72. His refusal to accept the fact of ageing captures a contemporary attitude towards growing older. We need not be constrained by our biological age. What matters is how old we feel.

From a young age we are used to the idea of life being a journey with different stages. What child has not longed to be grown up? What middle-aged person has not longed for the glories of youth? And what older person has not reminisced over the story of their life? But, natural as these questions might appear, they are built on a series of suppositions: assumptions about the different stages of life and their different value. The idea of the natural course of life is for some a comfort, but for others it is a restriction. For example, the assumptions around old age being a time for rest and relaxation may be appealing to some, but something to fight against for others.

This book will explore the different stages of life and examine the role of the law in establishing, reinforcing and regulating them. It is surprising that while life course theory has been an influential approach to a wide range of academic disciplines, there has been relatively little use of it made by lawyers. Perhaps that is because it is an ambitious, no doubt overly ambitious, task to seek to present a legal analysis of the whole of the life course. Great academic careers have been built on the study of just small aspects of this: the law and childhood, for example. However, it may also reflect a commitment by lawyers to the principle that everyone is equal before the law and so there is no need to distinguish different ages. I well remember one colleague expressing surprise when I told him I was writing a book on law and older people, commenting, “How odd. Whatever next, the law and blonde people?” That, I expect, showed a rather particular understanding of legal scholarship with law writing designed around legal categories such as contracts, tort and property, rather than around how normal people (by which I mean non-lawyers!) understand the world.

In this concluding chapter I will draw together some of the major themes of this book.

The life course

The basic concept of the life course, with its trajectory through childhood, adulthood and old age, is familiar to most people. Yet the assumptions behind these different stages of life are often taken for granted. As discussed in Chapter 4, childhood is often seen as a time of vulnerability and lack of capacity. This is reflected, and reinforced, by the legal regime which sets in place a wide-ranging set of protections from harm, particularly in the area of sexual relations, and gives parents the authority to make decisions on behalf of children. Similarly, old age is commonly presented as a time of rest from employment and of declining capacities. Until recently this was reinforced by the state retirement age.

However, the standard vision of the life course is under increasing strain, from a range of sources. One powerful factor is individualism. This is the idea that people should shape their own life course. They should not be bound by expectations about how people are meant to structure their lives. Hence, the long-standing expectation that children should only be born to married couples is now honoured as much in the breach as the observance. Whether you marry your partner or not is seen as a matter of choice, and few couples will feel enormous social pressure to do so. Older people are encouraged to fight against ageing and live an active old age. Few people nowadays feel they must live in a particular way because it is the ‘done thing’. Indeed, many people might slightly look down on a person who has followed a traditional trajectory of education, employment, marriage, parenthood and retirement: they have followed the pre-set route, rather than developing their own version of the good life.

It would certainly be easy to find examples of the blurring of the lines between adults and children. Much of the literature on the ‘crisis of childhood’ is about children being seen to be engaging in behaviours which ‘should be left to adulthood’: sexual relations, viewing pornography or extreme dieting, for example.

Introduction

The principle of autonomy plays a fundamental role in English law and, indeed, frequent references to this principle can be found throughout the book. It is at the heart of human rights, so much so that, according to one respected theory, those who are unable to exercise autonomy do not have human rights. This chapter will explore the importance of autonomy to the law and its relationship with mental capacity; and how the law deals with those who lack mental capacity. These issues are greatly illuminated by the life course theory.

The principle of autonomy

The concept of autonomy is relatively straightforward. We should be allowed to make decisions about what happens to our lives. Children are told what to do by their parents, but adults should not be told how to behave by the law or the state unless there is a good reason. An example of a good reason would be that what you want to do will interfere with someone else's right to choose what they want to do. What would not be a good reason is the state thinking someone is making a bad choice. You might think the amount of time I spend writing this book is immoral or a waste of time, but I should be free to spend my time as I wish, and I am not hurting people by doing so!

It is also perhaps notable that the rise of autonomy has been matched by a lack of confidence about declaring what is or is not in a person's best interests. With a lack of trust in expertise and a breakdown in agreed moral values, it has become highly controversial to make decisions on what is or is not in someone else's interests. What might be good treatment for one person might not apply for a different person with different values and lifestyle. If no one can authoritatively decide what is good way of life for someone, then we may as well let them decide. Hence, we have the ‘triumph of autonomy’.

Supporters of autonomy emphasize the value that each of us puts on being in control of our destiny and being able to decide how to live out our version of the ‘good life’. One person may want to dedicate their life to the reading of poetry, and another to the drinking of beer.

Introduction

This chapter will explore the concept of life course, the terminology used, and some of the challenges to it. It will soon become apparent that there is no one ‘theory of the life course’ and that perhaps it is more accurate to talk of ‘theories of the life course’. Even better, it should be seen not so much as a theory but as an approach or framework which evokes a series of questions and perspectives. It is therefore not an approach which seeks to offer a meta-theory or makes an argument for a particular normative value. Rather, it is a way of looking at human lives, interactions and issues. This chapter will start by exploring some of the definitions of life course theory and then explore some of its key themes.

Defining life course theory

Life course theory has become widely acknowledged as a respected approach which is used by many international bodies, including, for example, the World Health Organization. It has been used in a range of disciplines, but often with somewhat different understandings. It is now part of the academic mainstream.

All versions of life course theory accept that it is about examining people's lives over time, through the different stages and events which give lives meaning. It seeks to explore the factors that shape our lives. It examines what causes and marks changes in a life and what influences its direction. Clearly age is a part of what can demarcate different stages of life, but to see life as simply a pre-determined biological journey is hopelessly simplistic. There are a host of cultural, social and economic factors impacting on life that can be used to describe its direction and narrative. This book will focus on the law as a key feature which shapes the stages and course of life.

Here are some definitions of life course theory from the literature. Glen Elder Jr, who is widely regarded as the pioneer of the theory, offered the following statement on the life course perspective:

Introduction

Childhood is a time of life that gives rise to competing connotations and conflicting images. A golden era of innocence and fun; or a time of abuse? Are children little angels or little devils? Some children are admired for their goodness and clarity of thought: Greta Thunberg, who started her School Strike for Climate protests aged 15, and the countless children supporting her have played an enormous role in the public debates around environmental issues. She is seen by some as a visionary. By contrast, the media is still obsessed with Robert Thompson and Jon Venables who, at the age of ten, kidnapped, tortured and murdered James Bulger, aged two. Many years later they are still presented in the tabloid media as evil. We shall see in this chapter that the law's response to childhood plays an important role in reflecting and reinforcing the conflicting images society has about children.

One of the major themes of this chapter is that childhood, in many ways, is a response to adulthood. How we understand childhood tells us much about how we understand adulthood. To some extent childhood gets defined in terms of which adult characteristics children lack. Hence, part of the law's response to childhood is a list of things which children cannot do, which adults can. But there is also a growing literature on the goods of childhood, which are reflected in the legal sphere by special rights that children, but no adults, have.

This chapter will start by exploring some of the broader models of childhood in the literature before exploring how these are reflected in conflicting legal responses to childhood.

Models of childhood

In this section I will describe in broad terms some of the models of childhood which have provided overarching ways of understanding young people. Of course, there are those who reject the concept of childhood altogether, and those views we will deal with in a section entitled ‘Social construction of childhood’. It should be noted that different models of childhood seem more accurate or gain prominence at different times in history and in different geographical locations. So, to some extent, they are a reflection of a particular cultural context. Furthermore, it should not be thought that only one model may be adopted at a time: often attitudes towards children are contradictory.

Introduction

Old age conjures up a wild mix of emotions and responses. It is probably the age of life that people most fear, at least in its latter stages. David Mitchell has conjured up the terror old age has for many:

But it is not difficult to find positive images of old age too: a couple sitting back in their deckchairs as they sail off on their luxury cruise, for example.

For many, old age will be a rest from work and a time to enjoy hobbies and other interests. One of the difficulties about writing about older people is the widely different experiences people in this age group have.

Old age is not just a personal issue. It is common to find it presented as a challenge for governments. Ban Ki-moon, former Secretary-General of the United Nations, has written:

In response to the negative portrayals, it is notable that in recent years older people have come to be seen as a potential resource for society. An active ageing is encouraged; employment well beyond the traditional ‘retirement date’ is feasible; and older people are becoming seen as a solution for, rather than a cause of, some of the challenges society faces.

Introduction

At one level it might be thought that family law is the most natural area for a life course approach to be taken. Yet it is striking how the term ‘family law’ has become restricted to a very narrow understanding of families and a rather restrained set of issues. For example, older people rarely feature in textbooks on family law, although they play a key role in family life. Similarly, family law still centres on marriage, or marriagelike relationships, with friendships receiving little recognition, although they may be a key part of many people's lives. You would not need to be too cynical to suggest that you can expect a good friend to be with you for life, unlike a spouse. Nevertheless, it should be noted that, even with current divorce rates, most marriages do last forever.

This chapter will focus on three questions relevant for this book. The first is the definition of a family: what makes family life for the law and for people in their personal life. The second is the nature of parental status and parental rights. The third is whether the law ought to encourage or privilege certain forms of family.

Families and the life course

In one sense, families provide a stable factor during a person's life course. Whatever other changes there may be to an individual's personal circumstances and position in society, they will remain a member of their family throughout their life. Their position within a family structure may change over the years (from grandchild to grandparent, with many steps along the line), but family-formed identities will stay. So, you are born as the child of person X and will remain in that relationship for the whole of your life. Your understanding of that relationship and role within it may change, but the basic status (‘child of X’) will remain. You are also, at least in nearly all societies, born into a family: a group of people with primary responsibility to raise you. This is typically marked by having a surname, thereby linking you to a series of other people in kinship. To some people this can be a very strong identity. They may have family traditions (for example that ‘the Browning family’ always have a picnic on New Year's Day) or typical traits (‘the Browning family’ always leave everything to the last minute).