Copyright 2011 by Larry D

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A Macrosociological Study ofLaw on

Divorce in Western Europe

Larry D. Barnett[*]

Abstract

A popular assumption in the United Statesis that doctrines and concepts of law are attributable to particular individuals, but if the assumption is correct,the content of law would differ randomly across jurisdictions and across time. The instant article advances an alternative proposition — that law on society-significant activities is due to society-level conditions. The proposition was tested by applying logistic regression to time-spaced cross-sectional data on seventeen Western European nations in order to ascertain whether country-level characteristics affected the odds that a nation had law authorizing unilateral no-fault divorce, i.e.,termination of a marriage when just one spouse believed the marriage was unworkable. Independent variables included between-nation differences in language and culture, which differences were measured by whether a nation was Scandinavian. Notably, law in all of the Scandinavian countries (Denmark, Norway, andSweden) permitted unilateral no-fault divorce. Three other independent variables affected nations outside Scandinavia —educational attainment (measured by the gross enrollment ratio fortertiary schooling); urbanization (measured by the percentage of the population residing in urban agglomerations); and wealth (measured by gross domestic product per person). Amongthe non-Scandinavian nations in the study, the odds increased with tertiary schooling that lawwould accept unilateral no-fault divorce; in addition, the odds increased with urbanization and wealth that law, when authorizing no-fault divorce, would not accept unilateral no-fault divorce. Giventhat quantitative studies support generally the proposition that the concepts and doctrines of law are macrosociological phenomena, the article concludes with a discussion of the neglect of the proposition by scholarship originating in law schools in the United States.

Contents

A Macrosociological Framework for Law
The Framework in Brief
A Case Study
Societal Benefits of Marriage
Law on Divorce in Europe
Law on Divorce as a Macrosociological Phenomenon
Research Design
Dependent Variable
Time Frame for Data
Independent Variables
Data Analysis: Preliminary Matters
Data Analysis: Findings
Examinationand Assessment of Findings
Review of the Study and Its Implications
Law as a Societal Institution

A Macrosociological Framework for Law

Western societies share a broad social philosophy,[†] a component of which seems to include the premise thateffectivesolutions can be devised for aspects of a society that undermine its operation. The premisemay be due to the belief that the growth of knowledge isbeneficial if not necessary— a belief whose tangible consequences are evidenced in the general commitment of the populations of Western nations to science in general.[‡] However, the premise that solutions exist to societal problems is less relevant to the instant article than another premise with which it isaligned — viz., the premise thatcurrentproblemscan be markedly reduced, and future problems can be largely prevented, by law.[§] In the view of the body politic, law furnishes a tool that is capable of dealing with threats to the fabric of society. As the widespread acceptance of the concept of “the rule of law” illustrates,[**] law is thought to be critical for repairing and avoiding damage to the social order.[††]

But does law in fact offer effective solutions to activities that weaken a society? An assumptionis hazardous if taken on faith, not because theassumption may form an incorrectfoundation for academic discussions in journals and booksbut becauseanerroneous assumption about a type of problemwill lead to efforts that are ineffective in solving problems of this type. Indeed, a mistaken assumption about a particular problem may result inactionthat intensifiesthe problem and/or createsa new problem.[‡‡] For very practical reasons, then, the assumptionthat law solves problems at the core of society warrants examination. An evaluation of the assumption is especially appropriate at this point in time because a body of credible empirical evidence that conflicts with the assumption has accumulated in the social sciences.[§§] Of course, the assumption that law cures (or helps to cure) social ills is not irrational inasmuch as individuals and groups generally behave in line with the prescriptions and proscriptions of law. On purely logical grounds, therefore, change in a form of social behavior can thus be expected to follow the introduction of a new doctrine of law applicable to that behavioral form. However, thegeneral correspondence between law and behavior does not prove that law determines behavior, and a credible body of empirical research now provides evidence for the belief that causality in general runs in the opposite direction — from patterns of social behavior to the content of law.

a. The Framework in Brief[***]

Succinctly expressed, the present article is grounded on the thesis that, in a democratically governed jurisdiction (e.g., nation) that has a complex social structure and advanced economy, the institution of law contributes in the long run to the development and maintenance of sufficient internal cohesionto allowthe societal systemto persist. Law serves this function with regard to society-important activities, however, not by responding to the wishes and preferences of particular personalities; if law was no more than a mechanism for pleasing specific individuals, its concepts and doctrines would develop and change randomly. Instead, law protects thesocial systemby satisfying the macro-level demands of the system and, in doing so, is a mechanism for the continuation of the system. The concepts and doctrines of law, then, result from social, economic, and demographic conditions,[†††] and when these conditions vary between jurisdictionsand/or change within a jurisdiction, the concepts and doctrines of law differ across space and/or time. Unfortunately, the preceding macrosociological proposition, though far from new,[‡‡‡] has not been the subject of extensive quantitative research.

b. A Case Study

A timely illustration of the proposed framework is the adoption by the island nation of Malta of legislation authorizing divorce. The legislation, which was passed in July 2011following a referendum that was approved by a majority of Maltese voterstwo months earlier, will be in force as of October 2011.[§§§] When Malta revamped its law in 2011, it was the sole nation in Europe that did not dissolve marriages by divorce,[****] but if the macrosociological proposition that informs the instant article is correct,the chief factor prompting Malta to abandonits positionwas not pressureto conform to the law of other European Union (“E.U.”) countries.[††††] Rather than deciding to “fall into line” with E.U. countries generally, Malta accepted law permitting divorce mainlybecause it was being pushed by society-level forces withinMalta.

If the macrosociological perspective proposed in Part I-a supra accurately depicts the institution of law, new concepts and doctrines develop in the law of a society after change has taken place in the needs[‡‡‡‡] and values of the society. Consequently, what law says — e.g., in statutes — is attributable in the long run to the character of the social system in which the institution of law operates, andthe referendum in Malta, together with the ensuing legislation,was preceded by distinct, empirically measurable changes in Maltese society that indicate the presence of a need for law permitting divorce and of a set of social values consistent with this need.

What change(s) occurred in Malta that can plausibly be regarded as havinggenerated a need for, and social values favoring,[§§§§] law that allows divorce? For a change to qualify, its direction must indicate that marriage as a societal formwas weakening in Malta during the period that preceded the referendum and legislation on divorce.[*****] The demographic indicators of two such changes are shown in Figure 1.[†††††] The measures begin with the year 1960 and end with the year 2009, the latest for which data have been reported.

The top graph in Figure 1 focuses on the total fertility rate (“TFR”) in Malta.[‡‡‡‡‡] By way of explanation, the TFR is the mean number of births per female that can be expected during the lifetime of a cohort of femaleswho attain age 15 in a given year (“year X”). The expectation is grounded on the assumption that the fertility rates prevailing in year X at every age from 15 through 49will remain constant until the cohort reaches age 50. The TFR thus calculates, for a particular year (“year X”), the average number ofchildren that would be borne bya female in a cohort of females who have their fifteenth birthday in year X and who, as theygogrow older, experiencethrough age 49 each age-specific birth rate that existed in year X.

It is important to recognize that the TFRdoes not calculate the actual mean number of childrenborne by acohort of women during the lifetime of the cohort, because age-specific fertility rates do not remain the same from year to year.[§§§§§] Nonetheless,the TFR is a useful sociological indicator because, as age-specific rates of childbearing vary over time, the TFR does, too. By quickly revealingchange in the direction of average childbearing,the TFRcan indicate whether marriageis becoming less central or more central to a society given thatthe social values of Western societies havetraditionally favored the birth of children within marriage rather than outside it.[******] Specifically,an appreciable fall in the TFR isevidence of a decline in the importance of marriage in a society.

As the top graphin Figure 1 reveals, the TFR in Maltaunderwentan appreciable decline between 1996 and 2004,at which point it stabilized. To be exact, the TFR dropped by roughly one-third (2.01 to 1.37)from 1996 and 2004 before steadying. However, the slide of the TFR is relevant to a macrosociological framework for law not simply because of its magnitude; the slide is relevant because theTFR moved to a markedly lower levelduring the period that preceded the referendum and legislation on divorce. Since one of the traditional functions of marriage hasbeen the production of children, the downward movement of the TFR indicates that, in the decade-and-a-half before the law of Malta was rewritten to permit divorce, the societal importance of marriage had decidedly waned in that nation.

Let us now turn to a related topic — the marital status of the women in Malta who gave birth to children. The TFR, in measuring overall fertility, does not separate childbearing among married women from childbearing among unmarried women, but the distinction is pertinent to whether the societal significance of marriage is rising or falling. The bottom graphin Figure 1 reports the percentage of all live births in Maltawhose mothers were unmarried when their births occurred.[††††††] A substantialincrease in this percentage, ceteris paribus, is evidence that a conventional function of marriage has declined and thatmarriage has thus become less central to the operation of the social system.

The bottom graphin the Figure discloses that, as a share of all childbearing, childbearing outside marriage has markedly increased in Maltasince the mid-1990s. Because the secular rise in the percentage of all children borne by unmarried mothers began during the last half of the 1990s, the riseextended over more than a decade, and at the end of the period covered in the Figure, fully one out four births in Malta were to unmarried women. Such a rise is consistent with the thesis that the acceptance of law allowing divorce can be traced to a reduction in the societal importance of marriage.

However, our inquiry into nonmarital childbearing in Malta is not ended by the data in Figure 1. A major change in the relative prevalence of out-of-wedlock childbearing raises a question about the demographic components of the change. These components are not just a demographic matter, because they are directly pertinent to dimensions of social life. A shift in the relative prevalence of nonmarital childbearing may stem from change in childbearing outside marriage, from change in childbearing within marriage, or from both. The secular rise experienced by Malta in the extent of out-of-wedlock births since the mid-1990s, consequently, may have includedthe following components:

Among unmarried women, (a)the percentage giving birthmay have grown and/or (b)the percentage giving birth may have been constant while the average number of children borne by unmarried women rose.
Among married women, (a) the percentage remaining childless may have become largerand/or (b) the percentage remaining childless may have been constant whilethe average number of children borne bymarriedwomen fell.

Unfortunately,the data that are presently available do not allow an unequivocal conclusion as to which ofthe above four components — 1(a), 1(b), 2(a), and/or 2(b) —contributed to the secular rise that Malta experienced since the mid-1990s in the share of all births occurring outside of marriage.

Identification of the contributing components would be helpful, of course, in determining the ability of a macrosociological framework to furnish an understanding of the institution of law, because three of the four possiblecomponents seem particularly likely to be indicators of the degree to which marriage is important to a society. The three components are 1(a), 1(b), and 2(a). Marriage has presumably become less significant in a society that has experienced a sustained increase in the percentage of unmarried women who bear a child, in the total number of children who are borne by unmarried women,and/or in the percentage of married women who, during their lifetimes, do not bear any children.

Although the changed prevalence of out-of-wedlock childbearing cannot be definitively traced to one or more specific demographic sources, a clue to these sourcesis offered by the mean age at first marriage among women in Malta. Between 1980 and 2000, that age was essentially stable, but between 2001 and the period 2008–2010, it noticeably increased — specifically, from twenty-five years to twenty-eight years.[‡‡‡‡‡‡] The mean age at which women in Malta married for the first time thus jumped by fully three years in less than a decade. Arapid shift of thismagnitude suggeststhat the trend observed in Malta in the relative prevalence of nonmarital births was at least partially due to a decline in childbearing within marriage. A higherfirst-marriage age among womenshortens the time that women have within marriagebefore they reach menopause, and ceteris paribus, italso reduces the biological ability of women to conceive and carry a pregnancy to term within marriage.[§§§§§§] The rising mean age at first marriage among women in Malta, therefore, is likely to have reducedthe average number of births occurring to married women, and based on data on women in the United States[*******] — which probably are similar to data on Western Europe[†††††††] — this reduction would have involved, at least in part,more childlessness among married women. Further, anincrease in childlessnesswould be unlikely to result entirely from a rise in involuntary childlessness; based on findings from the United States, it would probably have involved an expansion of voluntary childlessness as well, i.e., larger percentages of women who chose not to have any children.[‡‡‡‡‡‡‡] If the foregoing line of reasoning is correct, the progression of delays since the mid-1990s in entry into first marriages by women in Maltais partially explainable by an erosion of a key reason for marriage (viz., childbearing) and, hence, by areduction in the weight that society attaches to marriage.

Societal Benefits of Marriage

Divorce presupposes marriage, of course, and if a societal need for divorce accounts for law allowing divorce — as my macrosociological propositioncontends — the factors creating thatneed must be identified. Where, however, should thesearch for these factorsbegin? The benefits that a society receives fromthe institution of marriageconstitute a logical starting point, because a substantial reduction in, let alone the elimination of, one or more of the benefits of marriagewould presumably be a necessary, if not a sufficient,condition for law inthe society to allow divorce. To the degree thatany of the benefits a society receives from marriage diminish or disappear, in other words,the society can be expected to have less of acommitment to law that bars, or limits the grounds for, divorce.

Why did marriage become, and why has marriage remained, a prominent featurein Western nations? In Europe and the United States, the prevalence of marriagehas made it a societal institution,[§§§§§§§] and althoughmarriage at the present timemay not be as central to Western societies as it was in the past (or may be in the future), marriage in Western nationshas been common.[********] Indeed, marriagehas been thoughttolie at the core of the social system, as the Congress of the United Statesillustrated during the 1990s when it labeled marriage “an essential institution of a successful society.”[††††††††] Consequently, majoradvantages have presumably accrued to society from marriage, and the identification of the advantages can be expected to furnish insights into the factors that affect the likelihood of divorce. The likelihood of divorce, in turn,is an immediate antecedent ofthe likelihood thatlaw will authorize divorce and, when divorce is allowed, of the stringency of thelaw-designated grounds for divorce.[‡‡‡‡‡‡‡‡]

Unfortunately, all of the benefits that Western societies have derived from the institution of marriage cannot be listed with a high degree of certainty, because such certainty requiresstudiesdone with an experimental or quasi-experimental design. Nonetheless, the following three societal benefitsof marriage are suggested by the published literature inthe social sciences:[§§§§§§§§]

Marriage has furnished an environment favorable for bearing and raising children.
Marriage has provided psychological and financial support to both spouses as well as to their children.
Marriage has increased social cohesion within communities by promoting ties to the community.

On the assumption that the preceding have been the key advantages that a society has garnered from the institution of marriage, I will attempt to ascertain what has happened to each advantage over time. For Western societies in recent decades, have theabove-listed advantagescontinued unabated,or have theyebbed? The answer to the question would ideally be based ontime-series datathat directly measureeach benefit. However, direct measures areunavailable,requiring thatone or more suitable indicators of each benefitbe found. Acceptable indicatorscould be located, however, only for the first two benefits, and hencethe discussion infrain Part II isconfined to them.