Morality and the State

Chief Justice Emeritus Giuseppe Mifsud Bonnici's attention to my contribution (The Sunday Times, October 5) is somewhat reassuring. It confirms that there is a fundamental argument to be had, not simply about divorce, but about the necessary distinction between morality as a personal concern and the Maltese State's role in securing that everyone's moral decision is respected.

Prof. Mifsud Bonnici says that it "does not mean that divorce is good or bad, but simply that divorce, like all human acts falls within the sphere of morality". Apart from the fact that not all human acts fall within the sphere of morality, I never said that the sphere of morality is irrelevant when it comes to divorce. Instead I argue that the sphere of morality belongs to contexts and individuals, not the State. I argue that conflicting but equally valid moral arguments within civil society must be protected by a legal provision that cannot privilege one moral stance over another.

I never enter into the merits (moral or otherwise) of whether divorce is good or bad. That is up to the spouses to decide. However, I argue that a legal provision allowing divorce is necessary, as it will guarantee the freedom of spouses to exercise their rights. This is why the State cannot moralise over divorce. For the State, divorce is a matter of an equitable and fair legal provision that allows a man and a woman to be released from their marital contract should they want to.

This distinction is lost in Prof. Mifsud Bonnici's misrepresentation of my article. Using a well-known professorial practice, he cuts several sentences, misrepresents their original context, and presents them as 'illogical' or 'unintelligble'. From one professor to another, I would say that pedagogically this is useful, but here we are not writing academic essays.

Prof. Mifsud Bonnici plays also a game of sophistry, arguing that given the State "is burdened with the task of considering 'everyone's rights'"; and given that, "'rights' do have a moral component which the word itself implies", then the State must be moral. While some rights might be interpreted from a moral standpoint, not all rights are moral. When it comes to how rights are protected in a pluralist society, this cannot come from a State that moralises. Democracies hold the State accountable to real situations where often one position is pitted against another, equally valid, position. Democracies are incompatible with a State that is cast as a moral arbiter. Democracies limit the State's role to that of defending the needs of each citizen by providing a legal framework that sustains methods of arbitration based on reason and fact that must fully accommodate diversity.

I am sure that Prof. Mifsud Bonnici does not regard diversity as a form of anarchy. However, he seems to present a scenario devoid of difference and otherness.

What he cites as 'contradictions' in my contribution, are constructed on a premise that ignores otherness. This is why I argue that (a) The State has no role in judging couples whose relationship has ended; (b) Free and responsible individuals are not passive beings who require laws to conduct their lives but laws that protect their right to exercise their freedom and responsibility; and (c) the law must be there to preserve one's choice and one's right, and at the same time make sure that legality and morality prevails, which means that the law must first of all sustain freedom and equity in a society of others.

As to what he regards as a 'showdown' over 'the human condition', it is important to stress that the very source of the problem here is not religion or dogma, but the assumption that there is some 'natural law' that considers the would-be morality of the State as imperative. If "natural law is concerned with right reason and human basic values" as he contends, then one must ask: What 'right' reason? Which 'human values'? Are failed marriages forced into perpetuity right? Is misery in a loveless relationship a human value?

We cannot remain complacent and go along with the whims of 'natural' myths. This is why we need to distinguish between morality and those who moralise. This is why the State must remain accountable to democracy, not moralising. In democracies, there is no place for the disenfranchisement of individuals by inadequate laws, be they 'natural' or otherwise.