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The Surprising Liberal Defense of the Traditional Family in the Enlightenment

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The Surprising Liberal Defense of the Traditional Family in the Enlightenment Emory Law Journal Volume 64 Issue 3 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 Follow this and additional works at: https://scholarlycommons.law.emory.edu/elj Recommended Citation John Witte Jr., The Nature of Family, the Family of Nature: The Surprising Liberal Defense of the Traditional Family in the Enlightenment, 64 Emory L. J. 591 (2015). Available at: https://scholarlycommons.law.emory.edu/elj/vol64/iss3/1 This Article is brought to you for free and open access by the Journals at Emory Law Scholarly Commons. It has been accepted for inclusion in Emory Law Journal by an authorized editor of Emory Law Scholarly Commons. For more information, please contact [email protected]. WITTE GALLEYSPROOFS2 2/19/2015 12:28 PM 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. * Director of the Center for the Study of Law and Religion; Alonzo L. McDonald Distinguished Professor; and Robert W. Woodruff Professor of Law, Emory University. I am deeply grateful to Elliott Foote, Andy Mayo, and Justin Latterell for their excellent research assistance, Amy Wheeler for her expert administrative help, and Elizabeth Christian and Kelly Parker Cobb for their fine library services. WITTE GALLEYSPROOFS2 2/19/2015 12:28 PM 592 EMORY LAW JOURNAL [Vol. 64:591 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 WITTE GALLEYSPROOFS2 2/19/2015 12:28 PM 2015] THE NATURE OF FAMILY, THE FAMILY OF NATURE 593 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 1 This Article is part and product of ongoing work on the history of law, religion, and family. It draws in part from JOHN WITTE, JR., FROM SACRAMENT TO CONTRACT: MARRIAGE, RELIGION, AND LAW IN THE WESTERN TRADITION (2d ed. 2012) [hereinafter WITTE, FROM SACRAMENT]; JOHN WITTE, JR., GOD’S JOUST, GOD’S JUSTICE: LAW AND RELIGION IN THE WESTERN TRADITION (2006) [hereinafter WITTE, GOD’S JOUST]; JOHN WITTE, JR., THE SINS OF THE FATHERS: THE LAW AND THEOLOGY OF ILLEGITIMACY RECONSIDERED (2009) [hereinafter WITTE, SINS]; and JOHN WITTE, JR., WHY TWO IN ONE FLESH: THE WESTERN CASE FOR MONOGAMY OVER POLYGAMY (forthcoming 2015) [hereinafter, WITTE, POLYGAMY]. ©John Witte, Jr. 2 For the propositions of this paragraph, see the detailed sources in WITTE, FROM SACRAMENT, supra note 1, at 287–324; WITTE, GOD’S JOUST, supra note 1, at 295–449. For a compilation of relevant American statutes and cases, broken down by legal topic, see CHESTER G. VERNIER, AMERICAN FAMILY LAWS. For an overview of English common law developments, see A CENTURY OF FAMILY LAW, 1857–1957 (R.H. Graveson & F.R. Crane eds., 1957). For authoritative summaries of prevailing American family law at the turn of the twentieth century, see sources cited infra notes 575–80. 3 See sources in WITTE, FROM SACRAMENT, supra note 1, at 17–112; WITTE, SINS supra note 1, 11–104; TO HAVE AND TO HOLD: MARRYING AND ITS DOCUMENTATION IN WESTERN CHRISTENDOM, 400–1600 (Philip WITTE GALLEYSPROOFS2 2/19/2015 12:28 PM 594 EMORY LAW JOURNAL [Vol. 64:591 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,
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