The Nature of Family, the Family of Nature: the Surprising Liberal Defense of the Traditional Family in the Enlightenment

• Citation: Vol. 64 No. 3
• Publication year: 2015

The Nature of Family, the Family of Nature: The Surprising Liberal Defense of the Traditional Family in the Enlightenment

John Witte Jr.

Emory University School of Law

THE NATURE OF FAMILY, THE FAMILY OF NATURE: THE SURPRISING LIBERAL DEFENSE OF THE TRADITIONAL FAMILY IN THE ENLIGHTENMENT

John Witte, Jr.^*

ABSTRACT

This Article shows that many Enlightenment liberals defended traditional family values and warned against the dangers of sexual libertinism and marital breakdown. While they rejected many traditional teachings in their construction of modern liberalism, Enlightenment liberals held firmly to classical and Christian teachings that exclusive and enduring monogamous marriages are the best way to ensure paternal certainty and joint parental investment in children who are born vulnerable and dependent on their parents' mutual care. Stable marital households, furthermore, are the best way to ensure that men and women are treated with equal dignity and respect, and that husbands and wives, and parents and children, provide each other with mutual support, protection, and edification throughout their lifetimes. The positive law of the state must not only support the marital family but also outlaw polygamy, fornication, adultery, and "light divorce" that violate the other spouse's natural rights as well as desertion, abuse, neglect, and disinheritance that violate their children's natural rights to support, protection, and education from their parents. This argument about the natural norms and laws of sex, marriage, and family life, was adumbrated by Aristotle, elaborated by Thomas Aquinas, and then extended by scores of later theologians, philosophers, and jurists. Many of the great architects of Western liberalism embraced these traditional teachings and defended them with arguments from nature, reason, custom, fairness, prudence, utility, pragmatism, and common sense. Their arguments echoed loudly in sundry Anglo-American common law texts, statutes, and cases until the twentieth century, and they remain instructive even for our post-modern polities and families.

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Introduction..............................................................................................593

I. The Nature of Marriage and the Family in Classical and Christian Thought.........................................................................599

A. Background ............................................................................... 599
B. Thomas Aquinas ........................................................................ 604
C. Francisco Vitoria....................................................................... 614

II. Hugo Grotius and the Early Modern Natural Law on Sex and Marriage..................................................................................620
III. John Locke, Mary Wollstonecraft, and the Emerging Liberal Natural Law of Marriage.............................................631

A. John Locke................................................................................. 631
B. Mary Wollstonecraft .................................................................. 639

iv. henry home and scottish enlightenment teachings on Sex, Marriage, and Family...........................................................641

A. Henry Home .............................................................................. 641
B. Francis Hutcheson and David Hume ........................................ 647

V. William Paley and the Utilitarians...........................................651
VI. Common Law Formulations of the Nature of Marriage.......657

Summary and Conclusions......................................................................670

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Introduction

For better or worse, we are in the midst of a family law revolution that is upending millennium-long laws and customs of the West.¹ A century ago, American law defined marriage as an exclusive and enduring monogamous union between a man and a woman with the freedom and capacity to marry each other.² Marriage was considered to be the heart of the family and household, and it was designed for the mutual love and support of husband and wife, their mutual protection from sexual temptation, and their mutual procreation, nurture, and education of children. The law required that engagements be formal and that marriages be contracted with parental consent and witnesses and with a suitable waiting period, sometimes accompanied by the publication of banns. It required marriage licenses and registration and solemnization before civil authorities, religious authorities, or both. It prohibited marriages between couples with various blood and kin ties identified in the Mosaic and Roman law. It discouraged marriage where one party was impotent or had a contagious disease that precluded sex and procreation or physically endangered the other spouse. couples who sought to divorce had to publicize their intentions, to petition a court, to show adequate cause or fault, and to make provision for the dependent spouse and children. criminal laws outlawed fornication, adultery, prostitution, sodomy, polygamy, incest, contraception, abortion, and other perceived sexual offenses. Tort laws held third parties liable for seduction, enticement, loss of consortium, or alienation of the affections of one's spouse. Many of these legal rules had millennium-long roots in the civil law, canon law, and common law traditions of the West, with several rules going deeper still into ancient Greek and Roman laws.³

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Today, much of this traditional family law has fallen or been pushed aside in favor of new cultural and constitutional norms of sexual liberty, privacy, and autonomy.⁴ Marriage is viewed increasingly at law and at large today as a private contract to be formed, maintained, and dissolved as the parties see fit. Requirements of parental consent and witnesses to the formation of engagement and marital contracts have largely disappeared. Mandatory waiting periods between engagement and marriage have also largely disappeared. unilateral no-fault divorce statutes have reduced the divorce proceeding to an expensive formality in most states. Payments of alimony and other forms of post-marital support to dependent spouses and children have given way to lump-sum property exchanges providing a clean break for parties to remarry. Court-supervised property settlements between divorcing spouses have largely given way to privately negotiated or mediated settlements often confirmed with little scrutiny by courts. Many states now offer off-the-rack models of straight and same-sex marriage, civil union, and domestic partnership with shrinking functional distinctions between them. Privacy laws protect all manner of other voluntary sexual conduct and relationships among adults, and rapidly growing portions of the population are no longer bothering with formal marriage, especially those with fewer means and less education. Free speech laws protect all manner of sexual expression, short of obscenity and child pornography. The classic sex crimes of incest, prostitution, and polygamy remain on the books, but they are now the subjects of emerging cultural and constitutional battles.⁵ The formal legal categories of marriage and family also

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still remain on the books, but leading scholars are now pressing for their "disestablishment," if not outright "abolition."⁶

These exponential changes in modern Anglo-American family laws have been, in no small part, valiant efforts to bring greater freedom and equality to American public and private life and to purge the law of its many centuries of patriarchy, paternalism, and plain prudishness. They are also basic legal adaptations to the exponential changes that have occurred in the culture and condition of modern families: the stunning advances in reproductive and medical technology; the exposure to vastly different perceptions of sexuality, kinship, and family structure born of globalization; the growing relaxation and diversification of norms and habits of sexual expression now greatly enhanced by the internet and other media; the explosion of international and domestic norms of human rights and freedom; and the implosion of the Ozzie and Harriet family born of new economic and professional demands on wives, husbands, and children, and much more.⁷

But all these changes in the culture and law of the family have introduced a number of striking new separations in the sexual field—separations between marriage and sex, between marriage and childbirth, between marriage and child rearing, between childbirth and parenting, between sex and physical contact (with the advent of the virtual world), and between childbirth, sexual intercourse, and biological filiation (with the introduction of IVF technology, surrogacy, and sperm banks).⁸ Historically, the Western legal tradition promoted the integration of marriage, sexual intercourse, childbirth, and child rearing within a sturdy family framework to best satisfy the natural rights and needs of men, women, and children alike.⁹ Not so much now. As Chief Rabbi Jonathan Sacks of the United Kingdom has written, the world of sex has become "a value-free zone."¹⁰

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Whatever happens between two consenting adults in private is, most people now believe, entirely a matter for them. The law may not intervene; neither may social sanction. It is simply not other people's business.

Together with a whole series of other changes, the result has been that what marriage brought together has now split apart. There has been a divorce between sex and love, love and marriage, marriage and reproduction, reproduction and education and nurture. Sex is for pleasure. Love is a feeling, not a commitment. Marriage is now deeply unfashionable. Nurture has been outsourced to specialized child carers. Education is the responsibility of the state. And the consequences of failure are delegated to social workers.¹

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