Wisconsin Symposium on Legal History
Institute for Legal Studies, University of Wisconsin Law School
Location: Lubar Commons (Room 7200), University of Wisconsin Law School
Date: November 2, 2002
9:30-10:45: Panel: Law, Family, and State Organization in Early America (Carole Shammas, Mark Brandon, Charles Cohen, Richard Ross)
10:45-11:00: Coffee Break
11:00-12:15: Author-Meets-Readers Session: Rachel Weil's Political Passions: Gender, the Family and Political Argument in England, 1680-1714 (Manchester, 2000). (Jeffrey Merrick, Carolyn Ramsey, Karl Shoemaker, Johann Sommerville, Rachel Weil)
2:00-3:30: Panel: Law, Family, and State Organization in Early Modern and Revolutionary France (Suzanne Desan, Sarah Hanley, Julie Hardwick, Jeffrey Merrick)
3:30-3:45: Coffee Break
3:45-4:45: Keynote Address: Julia Adams, "The Rule of the Father: Family and State in the Early Modern World"
Panel: Law, Family, and State Organization in Early America
Paper #1: Carole Shammas (University of Southern California History Department): "Marriage and the Early Modern Household: In Search of Parental Control"
Precis: To what extent were early American fathers able to influence the timing and choice of their children's marriage partners? While most historians of the early American family reject the notion of tyrannical fathers forcing a spouse on their children, the head of household is described as playing a major role in finding suitable mates for offspring, checking their financials, and drawing up agreements on portions and dowries. My paper examines the evidence of such behavior and compare it with the evidence found in Britain and other parts of Western Europe. One of the variables that I explore is the presence or absence of a state church, which existed in most countries and in the colonies of Catholic nations. The church was the state agency in charge of the recording and policing of marriage. The multitude of sects in the British made it difficult for an established church to oversee marriage and, as a result, reduced the power of fathers over their children's marital choices.
Paper #2: Mark Brandon (Vanderbilt Law School): "Home on the Range: Family and Constitutionalism in American Continental Settlement"
Precis: To solve basic problems of power and authority, constitutionalism requires institutions of three general types. Substantively, it needs institutions that can span three dimensions of human experience: political, economic, and moral. Functionally, it calls for institutions capable of creating, maintaining, and dissolving (or transforming) authority. Procedurally, it expects institutions that, in aggregate, promote "reflection and choice." Conventional wisdom has held that American constitutional order - through text, formal institutions, and socio-economic diversity - solved the problems of power and authority. Alexis de Tocqueville, however, was not convinced. He worried that American institutions and ethos made the order vulnerable to the centralization of political authority and that the absence of intermediary institutions, like aristocracy, only enhanced this vulnerability. Might Tocqueville have overlooked something?
Through an examination of national policy, judicial doctrine, and the experience of families in the westward territorial expansion of the United States in the nineteenth century, the essay argues that family was constitutionally useful. Substantively, family contributed to the political, economic, and moral constitution of the expanding realm. Functionally, family assisted in maintaining the order by helping it consolidate and extend authority westward across the continent. On the moral front, family's role was, in important respects, dictated by national and territorial policies. Decisions of the Supreme Court - on issues of common law, statute, and Constitution - reinforced these policies. Specifically, the order aimed to use a particular kind of family to settle the West: nuclear, monogamous, and mostly white. With respect to political economy, however, family's constitutional utility was caught in a conflict over the formal commitments of the order. One conflict involved national policy that vacillated between a liberal-capitalist (Hamiltonian) conception of political economy and an agrarian-republican (Jeffersonian) conception. For reasons of interest and sheer numbers, families inclined in the agrarian-republican direction. This inclination had political and social implications of two sorts. First, cutting against Tocqueville's concern, western families served as a kind of intermediary institution that resisted the centralist tendencies of Hamiltonian political economy. Second, those families contributed to a substantial revision of the social, economic, and political roles of women, providing them a larger domain for action than had typically existed elsewhere. This revision would lead eventually to women's suffrage, at first in the West, then eastward, back to civilization.
Comment #1: Charles Cohen (University of Wisconsin, Madison History Department)
Comment #2: Richard Ross (University of Wisconsin, Madison Law School and History Department)
The session will discuss: Rachel Weil, Political Passions: Gender, the Family and Political Argument in England, 1680-1714 (Manchester: Manchester University Press, 2000).
Reader #1: Johann Sommerville (University of Wisconsin, Madison History Department)
Reader #2: Jeffrey Merrick (University of Wisconsin, Milwaukee History Department)
Reader #3: Karl Shoemaker (University of Wisconsin, Madison History Department)
Reader #4: Carolyn Ramsey (University of Colorado School of Law)
Reply: Rachel Weil (Cornell History Department)
Panel: Law, Family, and State Organization in Early Modern and Revolutionary France
Paper #1: Suzanne Desan (University of Wisconsin, Madison History Department): "What Makes a Father? Illegitimacy and Paternity in the French Revolution and the Civil Code"
Precis: In the fall of 1793 the Convention attempted to endow illegitimate children, if recognized by their parents, with inheritance rights equivalent to those of legitimate children. This paper explores judicial contestation over this controversial family policy and examines how negotiating these social practices was intertwined with both with redefining fatherhood and with recovering from the Terror. Natural children had difficulty winning their rights in court, not only because of embedded Old Regime familial practices and expectations, but also because the Terror had heightened the perceived need to restore social and political order via strongly bounded families and secure property. Illegitimate children supported their inheritance claims by invoking a fluid, inclusive family, bound together by affective freedom and natural bonds. In contrast, their opponents fomented post-Terror anxieties about the instability of property, broken families, untrustworthy emotions, and fragile fathers. Within this conservative climate, judges demanded increasingly stringent proofs of paternity and weakened the original law. These judicial and popular negotiations over family and fatherhood influenced lawmakers as they moved toward the Civil Code of 1804 and embraced a family model, rooted in strong fathers, positive law, and secure property. This family emerged in conjunction with the shift toward the patriarchal structure and politics of the Napoleonic state
Paper #2: Sarah Hanley (University of Iowa History Department and Law School): "'The Jurisprudence of the Arrets:' Marital Union, Civil Society, and State Formation in France, 1550-1650."
Precis: Attempting to fill a serious gap in cultural and legal history, this study traces an early period in the development of a French system of jurisprudence based on a body of French marital law consciously made known to a general public directly affected and actively involved. In French courts deemed "sovereign" the judges who pronounced "notable arrets" (judicial
decisions) on marital matters, along with the avocats (lawyers) who wrote legal briefs and pleaded in court, began to print private notes commenting on decisions and to sell them on the open market. Once jurists treated notable arrets (handed to litigants) as precents followed when Customary law was silent, or when pertinent royal edicts did not exist, kings (and governments)
moved to give some of them statutory form. The notable arrets (case law) and royal edicts (statutory law) that regulated marital affairs, hence family-state interests, constituted what I have identified as a "French Marital Law Compact" unprecedented in Europe during this era. The attendant shift from judicial secrecy to judicial publicity fuelled a public quest for legal information and opened routes for social action that spurred recognition of "French jurisprudence," membership in a shared "civil society," and patriotic notions of a French "nation" linguistically, culturally, and juridically distinct from others. Countering hierarchical models of political authority, including the misleading presentist concept of "absolutism," this French pattern of legal moves from the social rim (jurists and litigants) to the statutory center (king and government) posits a relational model of public power negotiated to the strains of a new national legal theme aimed at drawing marital matters (treated as public issues, not personal or religious ones) under the cognizance of French courts subject to French law (not ancient Roman law or medieval Canon law). In this view state building was facilitated in early modern France by the legal control exerted over marital matters: marriage, family formation, separation, and inheritance.
Paper #3: Julie Hardwick (University of Texas, Austin History Department): "Between Street and State: Marital Litigation and Local Politics in Early Modern France."
Precis: This paper explores how litigation in local courts of first instance served as grass roots political forums in which a broad range of voices participated. Witnesses as well as plaintiffs, defendants, judges and lawyers debated the parameters of authority as parties to lawsuits about petitions for separations. Male and female witnesses frequently challenged elite and prescriptive paradigms about familial and political authority in court cases that highlighted ongoing contestations about authority structures. Witnesses and judges concurred in emphasizing the contingency of conjugal and paternal authority and its fundamental reliance on practice. They envisioned political authority in their households and neighborhoods and consequently the French state as a matter of contingency rather than ancient constitution or religious prescription.
Comment: Jeffrey Merrick (University of Wisconsin, Milwaukee History Department)
Keynote Address: Julia Adams (University of Michigan Sociology Department): "The Rule of the Father: Family and State in the Early Modern World"
Precis: Fathers were a lynchpin of governance in early modern Europe and its imperial extensions. People embraced identities and formed networks and groups on the basis of signs and representations of fatherhood; they also contended against paternal political imaginaries in great revolutions and anti-colonial rebellions. What are the advantages and limits, for scholars, of foregrounding family (and especially fatherhood) as we take stock of the forms and development of early modern governance? This talk tackles this question from an interdisciplinary perspective, with an eye to the broad sweep of comparative historical scholarship in the humanities, political and legal theory and the social sciences.