Abstract
Interactions between the law and the family throughout history pose challenges to both social and legal historians, and they each approach these problems differently. Social historians stress the role of economics and family dynamics in transformations of the law, while legal historians highlight precedent, thus emphasizing continuity. Historians also differ on the role of judges’ and legislators’ proclivities and backgrounds as a force in their decisions; how much did individual quirks matter in legal decisions or the passage of new statutes? Most crucially, social historians search for the “typical” case, while legal historians prefer precedent-setting cases, often heard on appeal. Luke Taylor's new work addresses these issues by exploring law and social change in the long nineteenth century. This period saw much legislation on the family and was also the time of the Industrial Revolution, a population boom, and the rise of domesticity. It is, then, a fruitful period for study.
Taylor deliberately uses old-fashioned sources, including digests, treatises, Parliamentary debates, statutes, and legal decisions. He analyzes these sources through the lens of intellectual history, so the book is entirely top-down, reflecting the views of judges, legal writers, and members of Parliament rather than litigants. It is also largely about England, due to the differing legal systems in Scotland and Ireland. Nevertheless, the book is innovative in three ways. First, the author combines laws of marriage and divorce with master and servant (later employment) laws to show both sides of the Victorian legal transformation. He includes areas as varied as the poor law and enclosure acts, asserting that “the legal construction of the family…was partly constituted through reform in areas well outside the parameters…of work and family law” (p. 340). Second, he focuses on the relationship between spouses rather than covering parent-child relations, which allows for greater focus on marriage. Third, he has a flexible approach to time, starting in the eighteenth century and going to the post-World War II period in some chapters. This demonstrates both the broad transformation of the law between 1750 and 1950 and the survival of Victorian ideals after two world wars had changed England substantially.
Taylor's overall argument is that legal writers, lawmakers, and judges promoted laws and legal interpretations that were constitutive of the modern family, with marriage as the central relationship. This incorporated the movement from the early modern household, a productive unit with fictive kin relationships, to the Victorian “private” family, primarily made up of nuclear kin. Statutes, lawbooks, and judicial decisions also pushed paid work into the public sphere, while all work inside the home became unproductive, unremunerated labor. The family thus eventually required different legal treatment, culminating in the emergence of Family Law as a distinct area of study. Paradoxically, this made for more, not less, state intervention, as Parliament saw the family as the cornerstone of a healthy society. Relying on Michel Foucault, Taylor analyzes judges and legislators as careful regulators of the population, to the point of stretching their authority to marriages contracted by British subjects abroad. On the other side, contracts soon dominated employment law, ones supposedly based on the free will of both parties. Thus, the home, the supposedly “private” space, faced much public regulation in the nineteenth century, while the so-called “public” realm of work was based on private agreements that, in theory, needed no state intervention.
Taylor points out the class and gender biases that were inherent in this transformation. Contracts, seemingly so equal, were heavily weighted in favor of employers; employers could imprison employees for breaking contracts, for example, and the poor law deterred those who protested the harsh conditions of waged labor. The gender imbalances were, if anything, greater. Wives lost economic independence and recognition of their contributions to the family economy. They were heavily discouraged from taking part in productive work in the middle classes, while working-class communities stressed the breadwinner wage to get higher wages and lower hours for (male) workers. Domestic service became almost exclusively female, with low pay and long hours. Indeed, servants did not benefit from the many improvements that came in the wake of union activity in other industries precisely because they remained in the home.
Taylor makes this case in several ways. In the first chapter, he shows the transformation of legal digests and textbooks, from an emphasis on the household and “master and servant” laws in the Eighteenth century to the emergence of family law in the Twentieth. The second chapter traces the last stage of enclosures of common land, the poor law of 1834, and employment contracts to show the funneling of all (increasingly male) workers into waged labor. The third chapter looks at various topics on women and young people, particularly the law on domestic labor, both paid and unpaid. Women left the “productive” work force at least in part due to the gendered laws (such as marriage bars), and their unpaid work in the home got little legal recognition well into the twentieth century. This chapter also focuses on changes in the laws of apprenticeship, which went from a home-based, parental relationship to one of job training. The exception was parish apprentices, who eventually returned to the home through boarding-out schemes. Chapter Five turns to legislative changes, including Lord Hardwicke's Act in 1753, the Matrimonial Causes Act of 1857, and laws on married women's property. Laws regulating marriage passed because proponents argued they preserved strong marriages and limited the damage of failed ones; as a result, they all supported patriarchy. Chapter Six continues the focus on marriage by analyzing its regulation. Taylor asserts that marriage as an institution or contract blurred into one involving status (as husbands and wives) more than any other aspect. He demonstrates this through breach of promise cases and conflicts of law, especially between Scotland and England, over the validity of marriages.
Taylor uses both legal and social secondary works, though many of the social works are outdated (e.g., Webbs on the poor law, first published in 1910, or Ivy Pinchbeck's 1930 book on women's work). More recent writings, such as Gail Savage's many works on divorce over the last 20 years or my own on illegitimacy (2016), do not appear in his bibliography, but he is generous to social historians overall. His interpretations certainly have repercussions for social history. He reinforces the importance of separate spheres at a time in which social historians have questioned the usefulness of this division, given its many contradictions and exceptions. His work also shows the importance of the Industrial Revolution in reshaping family and social life in England, and he clearly demonstrates that laws changed as society did. Despite the conservatism of legal thinkers and the weight of precedent, new statutes and case law helped create novel family formations during the nineteenth century.
In a book that covers such a wide topic, historians will find things that could use more elaboration. The ideology of separate spheres was more than a way to keep patriarchy in the family; it finessed the glaring contradiction between the ideals of liberalism (legal equality) with the subordination of married women (legal inequality). Such philosophical sleights of hand could have used more elaboration. Similarly, the section on conflicts of laws is limited; it does not consider the challenge of the empire in British marriage law, as with polygamous regimes, nor the difficulties of dealing with foreign divorces. Taylor also does not include criminal law in his analysis of the role of the law in constructing domesticity. Given the length of this study, that omission is understandable but does limit the conclusions.
Taylor's argument is extremely careful—almost too much so. Often the reader cannot tell if the law helped cause the changes in society or simply reinforced family changes happening independently of it. Social historians prefer the latter interpretation, for which much evidence exists. Indeed, the arguments about the division of home and work, the feminization of domestic labor, and the patriarchal underpinning of domesticity are so familiar to family historians as to be clichés. In addition, Taylor is not interested in how the law played out in individual cases, how people used the law, or in considering the personalities and backgrounds of those who decided case law or wrote new legislation. He instead centers on a broad-scale history that foregrounds legal thought.
Legal history as intellectual history is a valuable approach, but it leads to some blind spots. For example, Taylor discusses Brook v. Brook (1861), which was over the inheritance of an estate in England. The English husband and wife married in Denmark to avoid the prohibition of marriage to a deceased wife's sister, though they were domiciled in England at the time. The English courts declared this marriage invalid and thus cut out the descendants from their part of the inheritance despite the rules of lex loci. Taylor argues that this decision was part of the English courts’ attempts to regulate the marriages of its subjects beyond its borders. Another way to consider that case is that the judges believed the couple had acted in bad faith. After all, they deliberately moved abroad to contract a marriage they knew was not legal in their homeland yet still expected their children to inherit English property on the strength of that marriage. To the judges, English law should predominate in the division of English property. Judges did this with many different “forum-shopping” cases in this period, as with migratory divorces. Part of the reason for this strictness was perhaps the need to control marriage as a public good; part was also judicial dislike of people circumventing the law to marry or divorce as they wished. Furthermore, such cases also happened in reverse; the English judges often adjudicated marriages of immigrants to England, and they used foreign laws to do so, including ones built on religious law. I would have welcomed Taylor's interpretation of these cases; how do they fit into his overall thesis?
As a legal historian, Taylor naturally favors works by other legal historians. In his discussion of breach of promise, he relies more on Saskia Lettmaier's 2010 legal study than my social history approach to the subject. Thus, he stresses the conservatism of these cases, while ignoring the agency of women who sued, gave evidence, and then kept the damages themselves. In addition, Taylor has one outright error on divorce. The 1923 Divorce law equalized the grounds between men and women to simple adultery for both; it did not add extra grounds of “cruelty and desertion” as he asserts (p. 278). Wider grounds for divorce only came in 1937. Finally, Ben Griffiths’ 2020 article showed the need to consider judges and legislators as people with biases and preoccupations; the most notorious decisions could be anomalous or not primarily concerned with marriage at all. In a similar vein, the arguments that proponents made to get bills such as the Married Women's Property Acts passed may have come from the men's patriarchal beliefs, but MPs also likely stressed whatever arguments they thought could sway a majority to vote “yea,” especially given the conservatism of the House of Lords.
Overall, the book is effective in combining laws of work and family, one of its major goals. Historians who want to find a way to combine the work of legal and social historians will also find much to encourage them in Taylor's civil approach and generous documentation. Whether Taylor is convincing about the role of the law in social change is a different issue. Historians still need to parse the specific processes of legal and social transformations, especially the origins of such changes. Were these laws the catalyst for—or the result of—the transformation of the family? If they were mutually constitutive, how did this process work precisely? He thus has left more work to do for historians in both fields.