Sufficient grounds to vote no

One of the justifying reasons being bandied about for a positive vote in the divorce referendum of May 28 is the fact that Malta is a society “which claims to be a modern, secular, pluralistic and democratic EU member state”.

I personally find no problem in reconciling my Maltese and European citizenship, both as a status and as a role, with my decision to vote no in the upcoming referendum on divorce legislation. And I say why, starting by describing very briefly Anthony Giddens’s idea on modernity. Being a modern society does not imply denying tradition. Tradition is not a static symbol of the past. Time-honoured symbols are perpetuated in the experiences of present and future generations. Tradition and innovation are not contradictory but complementary and structured within the continuity of the community.

Now, the introduction of divorce legislation has the ingredients of disrupting the continuity of the structure of marriage and the family as Maltese society and culture have always experienced them. The relatively low rate of cohabitation together with the high rate of marriages in Malta at present and the very high percentage of the Maltese (93 per cent) for whom the family is a priority value do not constitute sufficient social indicators as to warrant such discontinuity.

Being a pluralist society means precisely celebrating and promoting one’s distinctive qualities, whether these are linguistic, cultural or by way of value systems rather than imitating or transposing others’ lifestyles. Innovation and progress are based on reason and reflection, not on imitation.

Membership of the EU respects the principle of subsidiarity. This is different from being concurrent with other member states. The provision of subsidiarity in EU treaties is meant to leave individual member states take legal decisions based on their own social, cultural and political exigencies. This applies, in fact, even to choice of country jurisdiction in matters of divorce. The argument that Malta is the only EU member state where divorce in validly celebrated marriages in not yet legalised is a proof of Malta’s de jure sovereignty recognised by other European states.

My convictions are further reinforced by legal, social and religious considerations.

Maltese civil law (Chapter 16) states that “the law promotes the unity and stability of the family” (section 2. [1]). It considers the family as a legal personality emerging from marriage where the spouses shall “owe each other fidelity and moral and material support” (section 2.[2]).

In order to consolidate the specificity of the marital bond inasmuch as it is a stable and faithful monogamous institution, the Marriage Act (Chapter 225) reiterates that “a marriage contracted between persons either of whom is bound by a previous marriage shall be void” (section 6).

The same law recognises a Catholic marriage celebrated in Malta in accordance with the rights and formalities established by canon law as having the same civil effects “as a marriage celebrated in accordance with the norms and formalities of this Act” (section 21. [1]).

And what kind of marriage does the Marriage Act in Malta recognise? Precisely that whose essential properties “are unity and indissolubility” (Can. 1056).

It is clear that Maltese civil law seeks to promote the stability, unity and indissolubility of the marriage bond. At no stage are provisions for divorce contemplated. While the law tends fundamentally towards indissolubility, provision for divorce as a new title and new articles in civil law tend towards the dissolution of the bond. Would this not be a contradiction in law and in fact? Statistical evidence from studies in other countries indicate that divorce legislation is likely to change the definition of marriage, that is, the way Maltese culture has always understood marriage.

While divorce is a civil concept, it cannot be said to be a civil right as the law now stands. Maltese legislators and consistent legal doctrine have always understood that the collective good of society demands a type of marriage that promotes the good of the parties, the paramount interest of children and the well-being of society, inasmuch as marriage is stable and permanent. Marriage and the family as the highest expression of human love and personal commitment have always been considered as essential values of Maltese cultural identity and it is for this reason that they are an integral part of the common good.

I prefer to adopt here Charles Taylor’s model of the common good (highlighted by Fr Peter Serracino Inglott’s perspectives in The Sunday Times on March 27). In his philosophical arguments, Prof. Taylor proposes his concept of the common good in what he considers as the “irreducibly social goods” by which he means “the goods of a culture” as “the object of a common understanding”.

Prof. Taylor’s concept goes beyond the utilitarian-empiricist idea of the common good understood as happiness for the greatest number of people. According to Prof. Taylor, therefore, the common good, as an “irreducible” and “culturally conditioned” social good, is not an individualist or subjectivist good, nor is it subordinate to popular desires or wants.

Believing that marriage and the family are fundamental values which define Maltese cultural identity, I feel confident to argue that marriage and the family belong to the domain of “irreducible social goods”, at least in the prevailing Maltese context. On this view, the values of marital stability and permanence are important enough to take priority over legislation on divorce. This should by no means imply that contentious situations of the minority are to be ignored or that the majority should tell what the minority should do. Social solidarity dictates otherwise.

It is simply a case where the collectivity as the depository of the “irreducibly social goods” takes precedence over individual goals. These too are the concerns of a democracy based on higher communitarian values, which still respects the libertarian views on minorities and even integrates them. Respecting minority views does not necessarily lead to alter the scale of priorities.

Alongside these considerations, my value system is in line with truths revealed in the Holy Scripture (Hosea 2: 21-24; Matthew 19: 3-9) as explained by the Catholic Magisterium (Gaudium et Spes, n. 42; Familiaris Consortio, n. 13; Pastoral Notes and Letters of the Maltese Episcopal Conference). I agree that such truths and teachings are not essentially civil or secular but neither can one say they are irrational or contrary to natural law. Hence, they may be taken to apply to both believers and non-believers alike. To “sociologise” marriage and the family – referring once again to Giddens – while factoring in also their religious dimension is to present a picture of how marriage and the family really are.

Weighing my decision on the introduction of divorce legislation in Malta – particularly as this is being proposed in the referendum question – against my considered legal, social and religious arguments, I find sufficient grounds to reasonably conclude to vote no in the divorce referendum of May 28.

phsaid@maltanet.net