This essay revisits Mary Ann Glendon’s comparative law study, Abortion and Divorce in Western Law and her subsequent book, Rights Talk: The Impoverishment of Political Discourse. Glendon’s comparative study actually included a third topic: “forms of dependency which are connected with pregnancy, marriage, and child raising.” The topic of dependency has obvious relevance to consideration of intergenerational obligations and the interplay between family responsibility and societal responsibility for addressing dependency needs.
A central claim Glendon made in both books is that the U.S. legal tradition is “libertarian,” views individuals as “lone rights bearers,” and exalts the “right to be let alone,” while European conceptions of the person are “dignitarian,” envision the rights-bearer as situated in family and community relationships, and support a more communitarian and generous model of social provision and of social responsibility to address dependency.
This essay argues that, to some extent, these two allegedly distinct traditions have merged in the more than twenty-five years since Glendon wrote her comparative study. Thus, certain trends in U.S. law regulating abortion and divorce (and marriage) seem at odds with the notion of a law that prizes adult liberty over responsibility and consonant with a more communitarian conception of social relationships, while certain trends in European law seem more individualistic and liberalizing and less communitarian. The dramatic changes in family law and social welfare law in the United States as well as in Europe (particularly in France, a country Glendon emphasized) make it a propitious time to look again at Glendon’s three topics -- abortion, divorce, and dependency -- and the relationships among them.
Our essay illuminates how gender is a salient feature of all three topics, since women, not men, make the abortion decision, women, in the U.S. and France, initiate the majority of divorces, and women, more than men, shoulder caregiving responsibilities. The essay briefly addresses three issues that Glendon did not foresee or anticipate in her earlier work: (1) the role of financial insecurity in deterring marriage and contributing to a growing “marriage gap” between rich and poor and the separation of marriage from parenthood; (2) the opening up of civil marriage, in some European nations and in several states within the U.S. to same-sex couples and, parallel to this, the creation of new legal forms parallel to civil marriage (some also open to opposite-sex couples); and (3) elder care and prolonged parental care for young adults as increasingly visible issues of dependency and intergenerational solidarity.
Linda C. McClain & Margaret F. Brining,
Revisiting Mary Ann Glendon: Abortion, Divorce, Dependency, and Rights Talk in Western Law
Les Solidarités Entre Générations/Solidarity Between Generations
(Hugues Fulchiron ed.,
Available at: https://scholarship.law.bu.edu/faculty_scholarship/113