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Divorcing responsibly

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In this article I argue that Part II of the Family Law Act 1996 gives expression to a new form of responsibility. I begin by suggesting that responsible behaviour has shifted from prohibiting or requiring particular actions: we now exhibit responsibility by our attitude towards our actions. I then examine where this new conception of responsibility has come from. Through an examination of the work of post-liberal theorists, principally Michael Sandel, I argue that a changing view of personhood within post-liberal theory has led to a questioning of the possibility of choice, and that the absence of choice necessitates a shift in the definition of responsible behaviour. If we are created by our decisions then we cannot be held to account for our decisions, but only for the care we have taken over them. Responsibility is therefore measured not by our level of self-control but by our level of self-awareness. Finally I examine the consequences of this shift in the meaning of responsibility. Within this framework autonomy is illusory therefore decisions do not need to be respected. This explains why the implementation of Part II of the Family Law Act 1996 has been called into question. Within this framework responsibility is relative therefore it extends indefinitely. This enables the Family Law Act to be uniquely intrusive and judgmental: every divorcing couple, on being held up to scrutiny, is found lacking.

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