9 - The Transformation of Domestic Law

Summary

Law has a peculiar tendency to normalize social relations that are in fact culturally distinct in different societies and eras. There is no better example of this tendency than domestic relations. Following common law norms, legal historians have largely portrayed a particular domestic order as peculiarly unchanging, indeed as private and ideally inviolate. In an abstract sense domestic order may thus seem to be outside the law. The law’s very success in normalizing family relations has obscured its own agency in shaping them, rendering its own role in historical and cultural change mysterious.

In England and its colonies in the early modern period, the law – both common and statute – regulated domestic order in many and profound ways. That regulation was also the subject of intense dispute. Laws defining domestic order circumscribed many people’s lives from birth through death, shaping their status and mandating appropriate behavior – for women and children; for workers, servants, and slaves; and indeed for husbands, fathers, and masters. Relationships, particularly the status of “dependent” groups, usually thought of as static throughout the colonial and early national periods of American history, and in early modern Britain too, were recreated over the course of the eighteenth century through common law justifications of a particular domestic order. These acts of creation occurred during a period of dramatic struggle over the basis of authority, not only over abstract political authority but over the rules that should govern the household and indeed over the very definitions of household and domestic.