Last Updated on May 5, 2015, by eNotes Editorial. Word Count: 814
Comparative law is the study of the laws and legal systems of different nations in order to deepen understanding of a particular nation’s laws. This field was systematically developed by French and German scholars in the late nineteenth century. In Abortion and Divorce in Western Law, Harvard law professor Mary Ann Glendon uses the methods of comparative legal scholars to explain the distinctive elements of American laws regarding abortion and divorce. As she explains in the introduction, she also adopts the perspective taken in Plato’s Nomoi (388-368 b.c.e.; Laws, 1804) that law is educational in purpose so that she can illuminate the differences between American and European law. Although Glendon does highlight provisions of abortion and divorce laws of European nations, in particular France and Germany, she does so largely to put American law in contrast and specifically to demonstrate that American law has embraced an extreme individual rights position on the legal spectrum.
Chapter 1 demonstrates how the laws regarding abortion in the Western world changed dramatically in the 1970’s and 1980’s. Of the twenty nations compared by Glendon (Austria, Belgium, Canada, Denmark, England, Finland, France, West Germany, Greece, Iceland, Ireland, Italy, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, and the United States), the great majority abandoned strict abortion laws dating from the nineteenth century and adopted more permissive ones. Although these countries widely allow abortion, the United States goes furthest in content and characterization in its abortion laws. Only American law rejects any effort to preserve the fetus before viability and severely restricts regulation after viability. In social policy, the United States provides almost no direct social benefits to mothers, married or unmarried. In constitutional law, although legislation protecting fetuses is permitted in countries such as West Germany, the United States Supreme Court decision Roe v. Wade (1973) prohibits any state or federal law limiting the right to abortion. Even in its language, the Court refused to acknowledge issues of developing life, avoiding such questions as whether the fetus is human or alive. In contrast to European nations, which emphasize the social interest in abortion law, the United States treats abortion as a constitutional right of legal interest only to private, autonomous individuals. Glendon states that the American laws regarding abortion would most likely tell a different story, placing higher importance on the value of life, if individual states were allowed to take a legislative role in balancing the interest in fetal life with a woman’s liberty or privacy interests.
Like abortion, divorce—the topic of chapter 2—became more readily accessible in the 1970’s and 1980’s. Family law during this period was characterized by the withdrawal of legal control over the formation, benefits and burdens, and termination of marriage. The most striking pattern was movement in all twenty nations toward a system of no-fault divorce and away from a requirement of moral turpitude—adultery, desertion, cruelty—by one of the spouses as the grounds for dissolution of marriage. The United States, as it had with abortion laws, produced some of the most permissive divorce laws. Only Sweden rivals the United States in the ease of obtaining a unilateral, no-fault divorce, and the United States is alone in detaching its legal and social system from the economic consequences of divorce. Glendon writes that just as American abortion law tells the story of disregard for potential life, American divorce law communicates a message of the end of marriage with no blame attached, with almost reckless disregard for ensuring a fair level of child support, and with no public or private responsibility for the difficult economic circumstances that ensue.
In the third and final chapter, Glendon seeks to explain why in the transformation of abortion and divorce laws beginning in the late 1960’s, the United States went the furthest among Western nations in removing regulation and public and private responsibility from its laws. Part of the explanation can be found in the American traditions of individualism, mobility, and self-reliance. While attractive qualities, these traditions tend to sap a sense of community and diminish the role of mediating institutions that in Europe have legal standing between the individual and the state. In addition, the Anglo-American tradition of legal positivism—beginning with Thomas Hobbes, gaining strength in the liberal philosophies of Jeremy Bentham, John Austin, and John Stuart Mills, and reaching culmination in Oliver Wendell Holmes, Jr.— draws a sharp distinction between law and morality. Thus the educational and persuasive value of law, always part of the continental tradition, was sheared from American jurisprudence, which described law as solely the external command of the sovereign. Finally, the United States, unlike Europe, lacks the tradition of explicit family policies and programs fostered by the government and by national private and semiprivate organizations.
The final section of Abortion and Divorce in Western Law is the appendix, which summarizes the abortion laws of the twenty Western nations.
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