FAMILY LAW IN THE TWENTIETH CENTURY: A HISTORY by Stephen
Cretney. Oxford: Oxford University Press, 2003. 911pp. Cloth: $115.00. £75.00
ISBN: 0-19-826899-8.
Reviewed by Lawrence M. Friedman, Law School, Stanford
University
This is a hefty piece of work, in every sense of the word.
The text runs to 775 pages, followed by over 35 pages of biographical
notes, identifying the main players in the story.
The book, as the title tells us, gives an account-and an extremely
comprehensive one-of the way family law developed in England in the 20th
century. The book also deals in some detail, as it must, with what came
before (mostly in the 19th century).
In general, the first part of the book covers marriage and divorce,
property arrangements after the death or divorce of a spouse, and the legal
rights of unmarried couples (this somewhat sketchily). Then come several chapters concerned with the legal status
of children-legitimacy and illegitimacy, adoption, termination of parental
rights in cases of abuse and neglect, and so on. The book is quite long and very detailed; but it is well written,
has a nice flow, and is full of interesting observations. It does a quite admirable job of handling
an intricate and complex subject. The author is a former solicitor and a distinguished family
law scholar. One cannot fail
to be impressed with his command of the subject. There is nothing in the United States, on 20th century family
law, that even approaches the scope of this book.
Cretney's book is very lawyerly. Of course, family law is one of those fields in which you simply cannot avoid talking about nonlawyerly things-things that are happening in the outside world, economic changes, political changes, the sexual revolution, and so on. Professor Cretney does speak of such matters; but frankly, not in any great depth or detail. The book focuses heavily on the legal history of family law, rather than on the socio-legal history of the subject. In this regard, the book, I imagine, would not be to the taste of most readers of this review (nor to my own taste, quite frankly). But I feel it would a bit churlish to stress this point too much. The reader will find, scattered throughout this vast text, many places where Cretney discusses or points out aspects of the politics or social meaning of family law-for example, how the rhythm of elections, and the rise and fall of parties, affected various bills and proposals in Parliament; or the impact of two world wars on divorce rates and the demand for divorce; or how a shocking crime against a foster child impacted child welfare laws. In general, we have to be grateful to Professor Cretney for his enormous achievement. He has given us a thorough and definitive account of the case-law and legislation. The narrative is valuable in itself; and the book can also serve as a very useful reference book and as a key to the literature and the sources.
Legal systems are by nature parochial. They are jurisdictional, and they lose all their power at the national borders. Family law is of course no exception. The American reader will surely be struck by similarities and differences in family law on the two sides of the Atlantic. The similarities are, to begin with, quite obvious. English law has gone from tough divorce to easy divorce, has enacted laws permitting the adoption of children, eliminated the legal disabilities of illegitimate children, and so on. There are other sorts of eerie parallels-for example, the moral panic over child abuse in the 1980s, complete with allegations of terrifying and satanic "organised ritual abuse" (p.721). In general, English law echoes developments in American law, and also, one might add, developments in other western countries. Each of these countries seems to have gone down the same road, though each at its own pace.
The trans-Atlantic differences are also striking. I used the word "echoes" in the last paragraph
on purpose. In many instances,
an American reader will find the Brits astonishingly slow. A case in point is adoption. In the United States, a crucial date is
1851; in that year, Massachusetts enacted a general adoption law-a law which,
basically, gave adopted children a status in the family which was much the
same as the status of "natural" children, and set up a judicial procedure
for the adoption of children. In
the next few years, most other states followed with their own versions. The corresponding English statute was
passed in 1926, seventy-five years after Massachusetts! Before that time, there was no mechanism
at all for legally adopting a child in England. A law that gave mothers rights of guardianship
of children equal to fathers was enacted in 1973-another date that American
readers will consider surprisingly late. In fact, these readers will be startled, time and time again,
by the deep-dyed conservatism of English family law, at least until quite
recently. Here is a country
which seemed to embrace a welfare state philosophy so much earlier, and
so much more thoroughly, than the United States, and yet, in many matters
of family law, was (by American standards) extremely slow and halting, and
even retrograde.
But perhaps the structure of English government-perhaps reflecting deep differences in society as well-explains both features of English law. There is, to begin with, the difference between a federal system and a centralized government. Family law in the United States is a state matter. Washington in the past had almost nothing to do with marriage and divorce, child custody, adoption, and the like. Power is decentralized in the United States; and this is more than a matter of structure, it is also a matter of culture. Structure, however, does matter. It affects the distribution of power. The United States is fragmented, decentralized. This means that in towns, cities, and even states, a small-town lawyer, a successful Chevrolet dealer, a politically active dentist, even a master plumber, can be a person of political consequence. American power-holders at the local level are often economically conservative. They have no taste for anything that smacks of socialism to them. They tend to find the poor despicable, and noblesse oblige plays no part in their psychic makeup. But they do have some money, and a stake in society. They own a house, a business, a piece of land. Their stake in society predisposes them to want the right to form and reform family units, and they want these units to be legitimate, and to carry with them property and inheritance rights. This has created a large, powerful class that exerted pressure on family law-pressure for formal recognition of adoption, and, more and more, for easier divorce laws. Of course, especially in the case of divorce, there were strong forces on the other side, but the tangled history of American family law shows that the clergy, and the conservative "family values" people, had a desperate fight on their hands, and ultimately a losing one.
The British case could not be more different. Social conservatism had much more power in British society-in the houses of Parliament, in the administration, in the upper clergy, and in the highest circles of the civil service. There were, as in the United States, crusaders for reform, at all times. But they had to contend with powerful forces at the very heart of the polity. The main characters, who walk through the pages of Cretney's book, are for the most part members of Parliament (including the House of Lords very definitely), the higher civil service, bishops and archbishops, the Lord Chancellor's office, and the judges of the high courts. Proposals for reform get turned over to an endless parade of Royal Commissions, with extremely elite memberships-the Royal Commission on Divorce and Matrimonial Causes of 1912, for example, headed by Lord Gorell, and the Royal Commission on Marriage and Divorce of 1956, headed by Lord Morton of Henryton. The Commissions issued reports, sometimes suggesting moderate reforms, sometimes not. These reports, along with White Papers from the government, and (after 1964) the work of the Law Commission, provide the basic documents, and the source materials for bills proposed and enacted in Parliament. All of this activity was, of course, centered in London, and took place at the very apex of the national government. The reports reflected, only at some very considerable difference, the needs and wants of ordinary people. They did, however, have to take into account the opinions of members of the House of Lords (and not just Law Lords), the opinion of the Archbishop of Canterbury, and so on, often opinions in favor of doing nothing, or making only the most modest changes, and often reflecting a profound distrust of the mass of the public, at least when it came to marriage and divorce and sex. The same top-down forces which permitted or even fostered the rise of the welfare state, with its emphasis on help for the poor and the humble, were extremely reluctant to interfere with "traditional family values." At least this was the situation until the last two or so decades, when the dam broke, and the sexual revolution among other factors swept away so much of what was left of the inherited family law system.
I learned a lot from this book, with its richness of detail, and its illuminating and meticulous exposition of the complex maneuvering in Parliament and in the administration, which went into the making of family law. For those concerned with the sociology of English law it will, of course, be a useful source-book-with regard to family law, and to the operation of the British government in law-making matters in general. For those of us in the United States who are interested in family law as a cultural and political phenomenon, it will be equally valuable. It provides a basis of comparison, a control group, as it were, which sheds oblique light on our own system, how it grew, and its multiple twists and turns over time.
*********************************************************************
Copyright 2004 by the author, Lawrence M. Friedman.