If Sweden were to be taken as a comparative example based on result, English law relating to domestic relations, in particular to property division upon marriage, would fall woefully short of the Swedish success story. Though the historical and cultural backgrounds of the two countries differ and it would be implausible to expect one country's policies to be cut and pasted into another's, the fact remains that women in Sweden enjoy greater economic independence than their English counterparts despite both being affluent European states.
This is due to the formulation of a gender-neutral concept of social citizenship and a welfare state based on a dual bread-winner model in which, amongst other reforms, married women are covered by the same labour, tax and social security legislation as men.
The Swedish state also utilises, in their goal to get as many married women and mothers to remain in gainful employment, separate taxation, generous public day-care provision for pre-school children and extensive programmes of parental leave. Given these social and legal policies, women in Sweden are able to reject the concept of childbearing as a social duty while at the same time enjoying their ability to embrace both children and careers if that is what they desire.
The situation today owes a great deal to the policies introduced in the 1930s by Alvar and Gunnar Myrdal, Swedish social-democratic politicians who argued for the recognition of employed mothers as a social fact. 19 (This is in marked contrast to the English 1950s era of stereotyped parenthood and more specifically motherhood where legal texts stated that paid employment for women could lead to neglect and possible delinquency of children.
The crucial role of dual bread-winner households in economic development as spheres of production and resources for human capital then necessitates the greater involvement of men with regards to the division of domestic labour, something Sweden has also managed to accomplish, to the point where in a Swedish survey about attitudes towards families and children, 90% of the women interviewed could not imagine having children if the father was not prepared to share the daily responsibilities of the household.
21 Back home, the 'natural order' of the single (male) bread-winner model remains, and despite arguments for separate property within marriage which it is claimed, espouses the ideal of true autonomy and independence, the Swedish and other communitarian models are being enjoyed by women who never have to fear evacuation from their home due to divorce or the demands from a third party. Social Engineering – No Thanks, We'll Just Do it Our Way
It is widely acknowledged that the English approach to legal reform is pragmatic – one only does what is necessary. The tradition is not to be proactive in the arena of developing law, but reactive and 'continuity rather than codification was the main priority of the general development of family law in the mid 19th to mid 20th centuries'. 22 Today any developments continue to be broached cautiously.
In a society of hierarchies in which the Monarchy, the presence of distinct class structures and an establishment such as the House of Lords have institutionalised more than just gender inequality, there has been only limited scrutiny in England of the principles of social organisation on which these established interests depend; interests which may – or are – at odds with contemporary social thought. In addition, within this contemporary thought, there is limited consensus on how to accommodate new family forms, gender roles and how to establish new principles. 23 Who's the boss? Can the law really change societal beliefs?
Anthropologist Michelle Rosaldo argues that all cultures distinguish between males and females and consequently assign appropriate tasks to each as a sexual division of labour24. Though law can be seen as a mere reflection or response to the ideals and mores of the society it serves, it can also rightly be seen, says Katherine O'Donovan, as incorporating an internal aspect whereby it forms part of individual consciousness and thus also aids in the construction of the society it reflects, playing an active part in the transmission of cultural views, the formation of social institutions and the shaping of societal value perceptions.
25 Thus, it is not without the means or method to bring about change and working in tandem with other social and cultural institutions, it can succeed in supporting and changing an entrenched cultural view. Gender ideologies ensure that social inequality of the sexes is accepted as natural and inevitable in the U. K. despite the evidence given by some neighbouring countries to the contrary.
Setting aside the law's non-interventionist role and bringing it into the home to regulate marital and domestic relations is the strategy adopted by those countries, the assumption being that if the law were to lay down general principles and basic building blocks from which any relationship was to begin, it could then influence attitudes and behaviour.
Though it seems not to be for English law the clear and positive statements of equality and the obligations to be faithful and supportive to each other as are espoused in the civil codes of France, Germany and Sweden, such statements carry great symbolic weight and the law, by actually expressing this within its statutory codes encourage men and women to act always within this sphere of equality and justice towards each other. At present law has a dynamic role in the construction and maintenance of sexual inequality.
It is a role characterised not just by the statutory codes and common law of legal doctrine but also by the daily legal discourse and the language in which the doctrine is formulated and examined by judges. In this examination, one finds stereotypical and prejudicial images of 'normal' men and women, images which form part of a structure of family and social welfare law that is based on a model of the family which fails to fit many families – both on dimensions of gender and class.
English law need not necessarily follow the exact path of a country such as Sweden and perhaps it need not even acquiesce to the idea that the 'way forward' requires a total upheaval of the institutions and structures of society many still support. What is imperative is that the law take a critical look inward; inward to its idiosyncrasies, its flaws and the resultant problems. England does not have to do it the Swede way, but it should look towards accomplishing the Swede result.