The connections between Law and morality: Reflections on the Family Code Project

January 31, 2022| In just a few hours, the popular consultation on the new Cuban family law will begin throughout the country. The publication and socialization of the Draft Code of las Familias, now in its 24th version, aims to develop broad spaces for debate around its contents, so that the regulatory body that is approved, if so determined by the majority of those who they will vote on it in a popular referendum, whether it is the result of a collective construction that reflects our family diversity, their needs and desires. The participatory exercise deployed in the process that culminated in the enactment of the The 2019 Constitution placed important issues around family institutions in public meditation. Above all, it has shown us the need to socially reflect on the importance of broadening the mantle of guarantee and protection of Law so that under it all people and all families can take shelter, in harmony with the projection of our State in order to seek greater inclusion and eradicate discrimination.

The family law that is currently under construction, finds the way paved by the current Constitution, not only for those concepts that it includes in the third chapter of Title V, but by the values ​​that from the first of its articles projects the Supreme Law to all its contents. The constitutions and the laws that derive from them, those that develop them, must resemble the society where they are to be applied and this has several implications. The meaning of this idea encompasses, on the one hand, the need for those palpable realities to be established in the regulations, so that all regulatory modification processes represent potential moments for updating old molds that are insufficient in the face of the overwhelming advance of the society. But, in addition, the new regulations also reflect desires, needs, dreams and an updated vision of what is fair, equitable and the right thing.

The permanent development of society is challenging in terms of Law, whose legal bodies tend to remain static for years under the non-disposable justification of legal certainty. The problem is that said principle cannot be a pretext to paralyze the Law in past conceptions, it must necessarily advance. Also on occasions, and this may be the case, the Law needs to move forward, look at and protect everyone and also educate on the basis of its supreme values ​​of justice, equality, freedom and respect.

What happens is that these certainly become abstract and sometimes relative concepts, insofar as what can be considered fair for some people may not be for others, and this is the case with many of the values ​​that are also manifested in the prevailing moral conceptions at a given historical moment. It is for this reason and to reopen the debates around the contents of the Family Code, at the gates of its popular consultation, that I have found in it motivation to propose a look at this scenario, as a clear example in which the ancient controversy is manifested and the indissoluble relationship between morality and law . In a previous work, it was outlined that the latter is made up of norms that provide it with structure and become the channel of expression of the dictates of conduct that order social coexistence from the State, but we also referred that the content of these norms, the direction of its provisions, receive the direct influence of culture, idiosyncrasy, ideology, moral values, the prevailing political interests in society, in short, its sources are broad and complex.

One of the phenomena that has the greatest impact on Law is precisely morality, that which is expressed in prevailing criteria about coexistence, life, what is right and what is wrong, but, above all, that is manifested in acting of people in society. I do not intend to violate spaces of philosophy, but I do mean that for jurists morality has not been and cannot be an alien phenomenon . Much has been discussed about the difference between the two orders, since morality also contains norms, patterns of behavior, just like the Law. However, moral norms are spontaneously outlined and the mechanisms that support their observance are anchored precisely in the more or less majority considerations about what is good and bad, the criteria of natural justice, behaviors that are socially accepted or not and when certain moral canons are breached, the consequences are generally expressed through rejection of other people, the verbal condemnation of certain behaviors or other social mechanisms . It should also be clarified that moral conceptions are also segmented, that is, although one speaks of a more or less general or common morality, there are moral criteria that can be identified in certain social and even age groups. Individual morality, for its part, is conditioned by education, family, social and even geographical environment. In this way, we all individually have incorporated moral criteria that guide our actions, some learned from our parents, others assumed from the neighborhood, friends, school, and even by the integration of all of them. We also receive the imprint of our time, of technology, in short, of our experiences and the way in which we process everything that surrounds us and that shapes our behavior in society. Without a doubt, the family is one of the most important scenarios where they form moral and ethical convictions, where values ​​are transmitted, but also in it various conflicts are manifested that directly impact those values ​​that are apprehended within it. Precisely because of this interaction between family and morality, a good number of convictions related to family relationships, their appropriate patterns and acceptable behaviors are also incorporated at this level. These can also be very diverse depending on family realities, traditions, culture, professional training and social integration of its members, the religion that is practiced, among many other conditions. It is therefore inevitable that before an open process of collective debate about a revolutionary law such as the Code that is proposed, which contains advanced conceptions about the family, with an inclusive, plural and challenging vision of moral canons established for generations, criteria of resistance are manifested that are anchored in a conflict between beliefs and models incorporated morals to some people and the novel proposals of a law that intends to break these schemes . It is in this scenario where the educational role that Law has to play must be understood, that is precisely one of its functions, that of promoting development, break molds that can protect discriminatory conduct and trace a better future for all people . It is valid to disagree about its contents, of course, but from the civic responsibility that touches us all, especially with the future, I suggest rethinking those criteria of frontal opposition, without nuances . Let’s see, for example, some questions that can be used for this purpose: