The cover of Taylor's Constructing the Family depicts a newly married couple having their photo taken, with other members of the wedding party huddled to the side. It's an image that cleverly encapsulates the key themes of the book: the centrality of the couple within what came to be known as “family law,” the separation between work and family, and, above all, how both of these ideas are historically contingent and constructed.
Taylor's focus is the conceptual shift from the eighteenth-century household that operated as a unit of production to the nineteenth- and twentieth-century home within which paid work played a decreasing role. He introduces his conceptual framework by drawing on Foucault's theory of population management, within which the role of the family shifted from being a model for government to an instrument of governance. Chapter 2 then provides a brilliant analysis of the “invention of family law,” charting the changing focus of legal commentaries over a period of almost two centuries. As Taylor shows, the “law of master and servant” was accorded a key place in the part of Blackstone's Commentaries dealing with “private œconomical relations” but was gradually accorded less prominence within subsequent nineteenth-century texts on the law of “domestic relations.” By the time that twentieth-century commentators were writing about “family law,” the focus had shifted to the law governing the relationship between husband and wife.
The two subsequent chapters explore the changes in law that underpinned this reconceptualization of the relationship between the economy and the family. Taylor shows how eighteenth-century enclosures, the loss of common rights, and the provisions of the 1834 New Poor Law either contributed to, or were premised on, the idea of paid labor outside the home as the norm. Those who worked for wages within the home were increasingly treated differently from other employees, with domestic service becoming increasingly feminized over the course of the nineteenth century. At the same time, the economic contribution of wives to the household was increasingly devalued, while their opportunities for paid employment outside the home were progressively curtailed. While none of these points are novel in themselves, with Taylor largely drawing on secondary literature rather than primary sources, bringing them together shows the connections that might be lost if we read history backward through the conceptual lens of current legal taxonomies.
The final two chapters examine the regulation of marriage. Here again Taylor ranges widely. Chapter 5 discusses not only reforms to marriage law, divorce, and married women's property, but also the way in which the Poor Laws were used to incentivize marriage and the compensation provided to certain family members in the event of fatal accidents. Chapter 6 considers the divergence from contract law of the action for breach of promise to marry and how issues as to the validity of marriages and divorces were determined within the developing field of conflicts of laws. Again, bringing these different elements together is valuable and illuminating. Yet breadth is inevitably achieved at the expense of depth: the Marriage Act 1836, for example, deserves more than a couple of pages, and Taylor's framing of civil registration as a convenient tool for government does not acknowledge that it was also the result of public demand, with Dissenters having been campaigning for such a measure for some years. Taylor also elides the Matrimonial Causes Acts of 1923 and 1937 in claiming that the former introduced new grounds for divorce.
There are also some questionable inferences. Taylor perhaps attaches too much weight to the fact that marriage was increasingly regulated by the state through the passage of legislation. Such legislation clearly demonstrates the increasing power of the state: it does not necessarily show that there was any greater emphasis on the public importance of marriage in the nineteenth century than in earlier periods. The fact that marriage was described as a “contract” in earlier periods does not mean that it was a matter of private agreement, as is evident from the way that seventeenth-century political theorists used the contract of marriage as an analogy for the contract between the sovereign and the people. While nineteenth-century commentators increasingly described marriage as a “status” in order to explain why it was not, or not merely, a contract, this also needs to be understood against changes to contract law.
Yet even if one does not agree with all of Taylor's conclusions, Constructing the Family is still a rewarding read. It deserves to be widely read by historians of the nineteenth century and by modern legal scholars alike, to remind us of the artificiality of legal distinctions and of the importance of maintaining conversations across disciplines.
