The final aspect of Third Way ideology is faith in law itself, and a belief in micromanagerialism through law. It is assumed throughout the documentation that surrounds the legislation that the availability of the legal status — as well as the difficulty in dissolution procedures for relationships — will encourage long-term, stable relationships. In this regard, law is thought to be a discourse of considerable power in shaping relationship forms, granting to lesbians and gays the very ability to live according to its norms. As well, law is assumed to be central in shaping social attitudes and, in particular, in reforming homophobia and encouraging tolerance and social inclusion.
Finally, perhaps less obviously, there is a message within the Act, I would argue, that the encouragement of the rights and responsibilities of civil partnership through law will provide a disincentive for ‘irresponsible’ behaviour. In the context of New Labour politics, irresponsibility seems to include promiscuous sex, relationship breakdown at will, and the selfishness of living alone (or perhaps even living with friends and acquaintances).[128] Thus, law is employed to achieve social policy ends that have been determined by government in advance based on empirical fact and science in order to help people to help themselves to lead richer lives.[129]
This analysis may provide an explanation for another stark difference between the Civil Partnership Act and the PaCS. The PaCS has been consistently characterised within French debate in terms of the values of autonomy and contract, as well as universality. It is claimed that the PaCS allows couples the freedom to enter and exit relationships with relative ease, with no expectation of sexual activity, or anything else particularly. It simply recognises a social reality, and law has a facilitative role in upholding that reality and in promoting the ‘fraternity’ of relationships. By contrast, the Civil Partnership Act is much more clearly a tool of social policy, and envisions relationships as possessing certain essential characteristics based upon a marriage model.
This provides an explanation for why the government chose not to adopt Lord Lester’s approach — which bears some resemblance to the PaCS — of an alternative to the marriage model. The government desires nothing that could be perceived to undermine the value of the institution of marriage. Rather, the aim is to rectify a perceived unfairness within marriage for an equality-seeking constituency. This is grounded in an imagining of community in terms of groups and constituencies that need to be managed, rather than in terms of facilitating new ways of living for all.
Moreover, the adoption of a marriage model speaks to the relationship between law in its disciplinary mode, and law as enabling people to legally structure their lives as they see fit. Throughout New Labour’s family discourse, we find great faith placed in an economically, socially, sexually disciplinary role for the institution of marriage: ‘The government intends registered civil partnerships to be longterm, stable relationships, so there would be a formal court-based process for dissolution. The partner applying for the partnership to be dissolved would have to show that it had broken down irretrievably’ and not simply that it felt right to end it.[130] Within this ideology of the family, there is no need for alternatives to marriage. Rather, there is a need for more encouragement to marry or to partner, particularly for the raising of children. As a consequence, there is absolutely no space within the parliamentary debates for any critique (feminist or otherwise) of the institution of marriage as a status. In these respects, the Act can be seen as deeply conservative and it is therefore not surprising that it received considerable support from within the Conservative Party. The message is inclusion rather than radical institutional change.
The irony, however, is that our current historical circumstances have been described in terms of the emergence of the ‘postmodern family’:
the postmodern family represents no new normal family structure, but instead an irreversible condition of family diversity, choice, flux, and contest. The sequence and packaging of romance, courtship, love, marriage, sex, conception, gestation, parenthood and death are no longer predictable. Now that there is no consensus on the form a normal family should assume, every kind of family has become an alternative family.[131]
The Civil Partnership Act, in my view, attempts to flatten out that diversity into a recognisable and disciplinable legal guise. At the same moment, as Sasha Roseneil argues, ‘the married, co-resident heterosexual couple with children no longer occupies the centre-ground of Western societies, and cannot be taken for granted as the basic unit in society’.[132] After all, only 23 per cent of households in the UK in 2000 were ‘traditional’ families.[133] Thus, the law seems to be attempting to bolster and recentre an institution in decline.