This chapter examines Defoe’s engagement with late seventeenth- and early eighteenth-century debates about the legal regulation of marriage, focusing on Moll Flanders (1722) and Roxana (1724). Through his heroines’ conflicted commentaries on their many matches, as well as his experiments with narrative sequencing and point of view, Defoe shows the dangers of turning marriage into a contract that can be formed and dissolved simply by exchanging consent. Although Defoe suggests that the canon law’s absolute prohibition on divorce is too restrictive, he backs away from proposing radical changes to the law. Whereas Moll Flanders suggests that spouses should be able legally to remarry in the lengthy aftermath of their partners’ desertion, Roxana cautions against contracting new unions prematurely. Even as the novels seek to shore up the legal regulation of the nuptial tie, they contest women’s loss of property and personhood during coverture.

This chapter analyses the nature, functioning and regulation of Muslim clans. It begins wih a history of the regulation of endogamy in England, as clans are held together through consanguineous marriage and the prohibited degrees of relationship are the most relevant branch of law. Then it analyses the clan as a group unit with negative implications for public health and the nation’s social and political fabric. The point is to demonstrate that clannish behaviours, which present most prominently among British Muslim populations, are the product of a set of institutional norms rather than manifestations of any supposedly inherent ethnic, cultural or religious characteristics. The chapter’s theoretical discussion observes that liberal individualistic approaches tend to focus on rights and demographic statistics while ignoring the clan phenomenon itself, while multiculturalism tends to insist on the integrity of minority cultural forms, over-emphasising the positives and evading difficult questions about the place of clans in the UK. The pluralist response focuses squarely on clans as group entities and constructs the legal argument for their dissolution through marriage law reform.

Unlike modern originalists, Justice Joseph Story (1779–1845) endorsed the maxim that “Christianity is a part of the common law,” and he seems thus to have considered Christianity deeply entangled with the Constitution. A Harvard graduate and Massachusetts Unitarian, he did not consider the Constitution bound to any specific Christian orthodoxy. Rather, by the Revolution, American Christianity itself had become tolerant of differences in doctrine and worship, while sharing an understanding of moral duty, embodied in the common law. Thus he could at once subscribe to the proposition that Christianity is a part of the common law and decide religion cases so as to uphold the separation of church and state, protecting church property from state interference, and protecting a municipally-run school from clerical influence. On the issue of slavery, his commitments to a living faith and to a settled Constitution collided, calling into question the Christian constitutionalism to which he devoted his professional life.