Spouses, Church, and State
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Saskia Lettmaier explores what is arguably the greatest transformation to have occurred within the Western law of marriage in the last five hundred years: the shift from a unified marital order, legislated and adjudicated by a universal church and influenced by theological principles, to a non-unified marital order, legislated and adjudicated by separate and sovereign states and influenced by secular principles. These principles included the idea that it is best for everyone concerned that a marriage that has been emotionally outgrown by at least one partner should be freely dissoluble. She analyzes how and why this shift occurred, and why it occurred differently in different territories. Through the lens of the experiences of England and Protestant Germany (with a focus on Prussia), she explains not only the legal changes themselves, but also how and why the different nations developed specific approaches to marriage law. Cover Titel Preface and Acknowledgments Survey of Contents Table of Contents Abbreviations Introduction: Marriage Law and Secularization Chapter 1: Marriage Law and the Reformation I. Marriage Law before the Reformation: The Canon Law of Marriage of the Roman Catholic Church II. Marriage Law and the Lutheran Reformation 1. Marriage Jurisdiction 2. Marriage Law III. Marriage Law and the English Reformation 1. Marriage Jurisdiction 2. Marriage Law IV. Marriage Law and the Reformation: An Assessment 1. The Reformation’s Immediate Consequences 2. The Reformation’s Wider Implications Chapter 2: Portents of Change: The Social Contract and the Marriage Contract in Revolutionary England I. Mutual Metaphors: Marriage and the Commonwealth in Early Modern England II. Thomas Hobbes: A Positivist Eclipse of Marriage and of Natural Law III. John Locke: Towards a Separation of the Natural Law and the Theology of Marriage IV. John Milton: A Transcendental Law and a Fallen World V. Marriage Law and the English Revolution: An Assessment Chapter 3: Rival Reconceptualizations I: The Case of Germany I. The German Context: A Basic Legal Framework for Religiously Diverse Lands II. An Increasingly Minimalist Discourse: Marriage in the Thought of the German Modern Natural-Law School III. The Attack on Divine (Positive) Marriage Law IV. A Flexible Approach towards Tradition: Marriage Formation in the German Usus Modernus V. German Modern Natural-Law Theory and the Rise of the State Chapter 4: Rival Reconceptualizations II: The Case of Post-Revolutionary England I. Taming Hobbes: British Writers in Defense of Traditional Marriage and of Natural Law II. The Canon Law of Marriage and the Common-Law Mind III. From Natural Law to Utilitarianism: Hume and Bentham on Marriage IV. Marriage Law and the Conservative Enlightenment: An Assessment Chapter 5: Marriage-Law Reforms in Eighteenth-Century Prussia I. The Road to Comprehensive Marriage-Law Reform: A Common Code of Laws for a Single People II. Reordering Marriage in the Interests of the State: Marital Reforms and Underlying Policies in Frederician Prussia 1. Marriage Jurisdiction 2. Marriage Law Chapter 6: Marriage-Law Reforms in Eighteenth-Century England I. Regulating Marriage Formation, Property, and Power 1. Lord Hardwicke’s Clandestine Marriages Act of 1753 a) Clandestine Marriage and Its Discontents b) The Clandestine Marriages Act: Debates and Passage c) The Clandestine Marriages Act and Secularization: An Assessment 2. The Lunatics’ Marriage Act of 1742 3. The Distinction between Void and Voidable Marriages II. A Special Relief for the Preservation of Wealthy Families: The Origins and Rationale of the English Law of Divorce III. Conclusion Chapter 7: Marriage Law and the Nineteenth Century: Prussia I. Prussia’s Abortive Attempts at Divorce-Law Reform II. Prussia’s Long Road to Obligatory Civil Marriage III. Conclusion: Marriage as a Secular Institution Chapter 8: Marriage Law and the Nineteenth Century: England I. The Marriage Act of 1836 II. The Divorce and Matrimonial Causes Act of 1857 III. The Failed Attempt to Legalize Marriage with a Deceased Wife’s Sister IV. Conclusion: A Continuing Religious Presence Conclusion: What Causes Legal Secularization? Bibliography Index of Names General Index
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