Marriage, work, and the invention of family law in English legal thought

Author:

Taylor Luke1

Affiliation:

1. SJD Candidate, Faculty of Law, University of Toronto, Canada

Abstract

This article traces the emergence of family law as an autonomous legal domain within English scholarly legal thought. It provides a genealogy of conceptual and taxonomical change spanning a nearly two-hundred-year period via close readings of a range of legal texts beginning with Blackstone’s Commentaries. The article shows how the invention of English family law hinged on two interrelated shifts in legal thought. One movement involved the staged extrusion of productive work relations (in the narrow sense of work for pay) from the legal household and the re-characterization of those relations as market-based activities exterior to the family and situated within an increasingly freestanding law of master and servant. Running in parallel with that work-related movement was a new emphasis on the public importance of marriage and a corresponding elevation of the husband–wife relation to the forefront of domestic relations. This latter move involved an effort by scholars to distinguish the emerging law of contract (modelled on commercial relations and ideological notions of individual will) from household-based relations that were seen as not ‘properly’ contractual because of the existence of superadded conditions that did not derive from individual will. In particular, scholars began to reframe marriage in terms of status owing to these non-modifiable terms, though contract remained the legal device by which the status of marriage was created. In the early twentieth century, these processes resulted in the complete separation of work and family into the distinct legal domains of family law and employment law.

Publisher

University of Toronto Press Inc. (UTPress)

Subject

Law,Sociology and Political Science

Reference265 articles.

1. Janet Halley & Kerry Rittich, ‘Critical Directions in Comparative Family Law: Genealogies and Contemporary Studies of Family Law Exceptionalism’ (2010) 58:4 Am J Comp L 753 at 755 [Halley & Rittich, ‘Critical Directions’].

2. (UK) 20 & 21 Vict, c 85. The preceding year had also seen the publication of the Royal Commission on Marriage and Divorce Report 1951–1955 (London: HM Stationary Office, 1956) [Royal Commission].

3. Wolfram Müller-Freienfels, ‘Book Reviews: Graveson, RH – Crane, FR (eds), A Century of Family Law 1857–1957’ (1959) 8:1 Am J Comp L 92 at 92.

4. C.f. Rebecca Probert, ‘Family Law: A Modern Concept?’ [2004] Family L 901 [Probert, ‘Family Law’].

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