Court decisions are typically seen as one-off interventions relating to an incident in a person’s life, but a legal decision can impact on the person as they were and the person they will become.
This book is the first to explore the interactions of the law with the life course in order to understand the complex life journey as a whole.
Jonathan Herring reveals how the law privileges ‘middle age’ to the detriment of the whole life story and explains why an understanding of the life course is important for lawyers.
Relevant to those working in family law, elder law, medical law and ethics, jurisprudence, gender and the law, it will promote new thinking by exploring the engagement of the law with the life course of the self.
“Well, I think that, I just feel like a young man, I’m so young! I can’t believe it, I’m the youngest person,” declared President Trump, then aged 72.1 His refusal to accept the fact of ageing captures a contemporary attitude towards growing older. We need not be constrained by our biological age. What matters is how old we feel.
From a young age we are used to the idea of life being a journey with different stages. What child has not longed to be grown up? What middle-aged person has not longed for the glories of youth? And what older person has not reminisced over the story of their life? But, natural as these questions might appear, they are built on a series of suppositions: assumptions about the different stages of life and their different value. The idea of the natural course of life is for some a comfort, but for others it is a restriction. For example, the assumptions around old age being a time for rest and relaxation may be appealing to some, but something to fight against for others.
This book will explore the different stages of life and examine the role of the law in establishing, reinforcing and regulating them. It is surprising that while life course theory has been an influential approach to a wide range of academic disciplines, there has been relatively little use of it made by lawyers. Perhaps that is because it is an ambitious, no doubt overly ambitious, task to seek to present a legal analysis of the whole of the life course.
This chapter will explore the concept of life course, the terminology used, and some of the challenges to it. It will soon become apparent that there is no one ‘theory of the life course’ and that perhaps it is more accurate to talk of ‘theories of the life course’. Even better, it should be seen not so much as a theory but as an approach or framework which evokes a series of questions and perspectives.1 It is therefore not an approach which seeks to offer a meta-theory or makes an argument for a particular normative value. Rather, it is a way of looking at human lives, interactions and issues. This chapter will start by exploring some of the definitions of life course theory and then explore some of its key themes.
Life course theory has become widely acknowledged as a respected approach which is used by many international bodies, including, for example, the World Health Organization.2 It has been used in a range of disciplines, but often with somewhat different understandings. It is now part of the academic mainstream.
All versions of life course theory accept that it is about examining people’s lives over time, through the different stages and events which give lives meaning. It seeks to explore the factors that shape our lives. It examines what causes and marks changes in a life and what influences its direction. Clearly age is a part of what can demarcate different stages of life, but to see life as simply a pre-determined biological journey is hopelessly simplistic.
The initial proposal for this book did not include a chapter on life before birth. I had proposed covering the issues around pregnancy in the chapter on adulthood, but the reviewers were keen to see a full chapter on these issues. With some reluctance I agreed, and I am now glad I did. Although I still find it enormously problematic to discuss the fetus as an abstract entity, for reasons which will be explored below, the legal response to the fetus and the ethical debates around its status, tell us much about how the law and society understands humanity and what it is to be a person in ethical and legal terms. How the law responds to the fetus can, therefore, indicate what the law values about human life, which can have significance throughout the life course. As we shall see, the debates over the importance of autonomy, mental capacity, biological life, and relationships feature in the arguments over the status of the fetus as they do throughout all the stages of life.
The difficulty about writing about the fetus is that discussion very quickly leads to fierce debates around abortion. To discuss the position of the fetus without considering the position of the woman is seen as playing into the ‘pro-life’ view on abortion, which seeks to put the rights of the fetus on one side of the scale and the rights of the woman on the other, with the fetus having the stronger claim. Conversely, focusing on the experiences of the pregnant woman will be seen by some as playing into the ‘pro-choice’ view of the mother’s rights taking centre stage and skewing the arguments in her favour.
Childhood is a time of life that gives rise to competing connotations and conflicting images. A golden era of innocence and fun; or a time of abuse? Are children little angels or little devils? Some children are admired for their goodness and clarity of thought: Greta Thunberg, who started her School Strike for Climate protests aged 15, and the countless children supporting her have played an enormous role in the public debates around environmental issues. She is seen by some as a visionary. By contrast, the media is still obsessed with Robert Thompson and Jon Venables who, at the age of ten, kidnapped, tortured and murdered James Bulger, aged two. Many years later they are still presented in the tabloid media as evil.1 We shall see in this chapter that the law’s response to childhood plays an important role in reflecting and reinforcing the conflicting images society has about children. One of the major themes of this chapter is that childhood, in many ways, is a response to adulthood. How we understand childhood tells us much about how we understand adulthood. To some extent childhood gets defined in terms of which adult characteristics children lack. Hence, part of the law’s response to childhood is a list of things which children cannot do, which adults can. But there is also a growing literature on the goods of childhood, which are reflected in the legal sphere by special rights that children, but no adults, have.
This chapter will start by exploring some of the broader models of childhood in the literature before exploring how these are reflected in conflicting legal responses to childhood.
In many ways this was the hardest chapter of the book to write. While it would not be difficult to find books and articles on law and children, and law and older people, Law and Adults does not seem to have captured the market, or even the legal imagination. Admittedly, it looks like a hard sell.
Adulthood is a blank. The legal literature appears not to have any special rules that relate to adulthood. Similarly, in the sociological literature, while we might have a reasonably clear conception of what old age and youth look like, middle age is more of a blur. This, however, is revealing and significant. The law has no special ‘law of adulthood’ because that is the standard law. Look at a standard textbook on criminal law, tort law or contract law to find the law of the adulthood. That will not be stated overtly, but such books will typically include brief sections on how the law operates with regard to children, or to people with impaired capacity, as ‘exceptional cases’. Indeed, it would be perfectly possible, and may be quite common, for a student to go through their legal studies having read no cases on children or older people. Our students leave university well able to advise the businessperson on a commercial contract but utterly unable to advise the 15-year-old who finds herself pregnant, or the 80-year-old with dementia who opposes her family’s plans to put her into a care home.
This chapter will not, therefore, list a series of special legal provisions that deal with adulthood.
Old age conjures up a wild mix of emotions and responses. It is probably the age of life that people most fear, at least in its latter stages. David Mitchell has conjured up the terror old age has for many:
Behold your future.… you will not apply for membership, but the tribe of the elderly will claim you. your present will not keep pace with the world’s. This slippage will stretch your skin, sag your skeleton, erode your hair and memory, make your skin turn opaque so your twitching organs and blue-cheese veins will be semi-visible. you will venture out only in daylight, avoiding weekends and school holidays. Language, too, will leave you behind, betraying your tribal affiliations whenever you speak. On escalators, on trunk roads, in supermarket aisles, the living will overtake you, incessantly. Elegant women will not see you. Store detectives will not see you.
Salespeople will not see you, unless they sell stair-lifts or fraudulent insurance policies. Only babies, cats and drug addicts will acknowledge your existence. So do not fritter away your days. Sooner than you fear, you will stand before a mirror in a care home, look at your body, and think, ET, locked in a ruddy cupboard for a fortnight.1
But it is not difficult to find positive images of old age too: a couple sitting back in their deckchairs as they sail off on their luxury cruise, for example. For many, old age will be a rest from work and a time to enjoy hobbies and other interests.
The final stage of life is, of course, death. Traditionally death has been ‘the topic that should not be discussed’, and it received little academic or media attention. That is changing with popular books being written about death,1 a rapid growth in academic studies of death,2 and a wide-ranging public debate over the right to die.
This chapter will start by exploring the definition of death, a hotly disputed issue. The definition of death reflects debates about what it means to be alive. There are, therefore, echoes of the debates over when life begins, discussed in Chapter 3. Here, the legal approach will be compared with the philosophical and sociological literature on the nature of death. The chapter will then turn to issues over a right to die and responses to suicide.
There is a lively debate over the definition of death. At first that might seem surprising. Surely, such a foundational concept would have a clearly agreed definition? So, it is helpful first to clarify why the definition of death has proved controversial. There are three primary reasons.
First, technologies have developed so that people can be kept ‘alive’ in ways which would have been unimaginable even a few decades ago. Most biological functions can now be performed by mechanical devices. The idea of a person being kept alive forever, which at one time would have been laughable, now seems more plausible. This, then, raises the issue of what kind of prolonged existence might count as being kept alive, as opposed to ‘keeping a corpse warm’.
At one level it might be thought that family law is the most natural area for a life course approach to be taken. Yet it is striking how the term ‘family law’ has become restricted to a very narrow understanding of families and a rather restrained set of issues. For example, older people rarely feature in textbooks on family law, although they play a key role in family life. Similarly, family law still centres on marriage, or marriage-like relationships, with friendships receiving little recognition, although they may be a key part of many people’s lives. You would not need to be too cynical to suggest that you can expect a good friend to be with you for life, unlike a spouse. Nevertheless, it should be noted that, even with current divorce rates, most marriages do last forever.
This chapter will focus on three questions relevant for this book. The first is the definition of a family: what makes family life for the law and for people in their personal life. The second is the nature of parental status and parental rights. The third is whether the law ought to encourage or privilege certain forms of family.
In one sense, families provide a stable factor during a person’s life course. Whatever other changes there may be to an individual’s personal circumstances and position in society, they will remain a member of their family throughout their life. Their position within a family structure may change over the years (from grandchild to grandparent, with many steps along the line), but family-formed identities will stay.
The principle of autonomy plays a fundamental role in English law and, indeed, frequent references to this principle can be found throughout the book. It is at the heart of human rights, so much so that, according to one respected theory, those who are unable to exercise autonomy do not have human rights.1 This chapter will explore the importance of autonomy to the law and its relationship with mental capacity; and how the law deals with those who lack mental capacity. These issues are greatly illuminated by the life course theory.
The concept of autonomy is relatively straightforward. We should be allowed to make decisions about what happens to our lives. Children are told what to do by their parents, but adults should not be told how to behave by the law or the state unless there is a good reason. An example of a good reason would be that what you want to do will interfere with someone else’s right to choose what they want to do. What would not be a good reason is the state thinking someone is making a bad choice. you might think the amount of time I spend writing this book is immoral or a waste of time, but I should be free to spend my time as I wish, and I am not hurting people by doing so!
It is also perhaps notable that the rise of autonomy has been matched by a lack of confidence about declaring what is or is not in a person’s best interests.