Trifling Violence: The U.S. Supreme Court, Domestic Violence and a Theory of Love
Jeffrey R. Baker
Pepperdine University School of Law; Faulkner University Jones School of Law
Cumberland Law Review, Vol. 4, No. 1, p. 65, 2012
Domestic violence is ubiquitous across eras, cultures, religions and political systems. Feminist responses to domestic violence seek to free women from gender subjugation, but such movement inevitably challenges moral and natural claims about marriage and family in traditional society. These traditions often claim religious and moral authority, while reformers often have overreacted by abandoning established moral thought in favor of relativistic, individual moral discernment. This tension is manifest in the struggle at common law to adjust moral language to the gradual, radical evolution of gender status and marriage.
The plight of women and girls in the developing world is the preeminent human rights issue of our age, and it coincides with remarkable, quick shifts in the legal and cultural definitions of marriage and family in America. In this milieu, we witness the rise of originalism and a resurgence of “new” natural law in jurisprudence and moral philosophy, pushing against feminist lawmaking and the rapid development of domestic violence law within a generation. My article takes stock of the moral ground at the intersection of these forces and measures them against a metric of neighbor-love and charity.
I examine the history of domestic violence in the common law at the Supreme Court to illuminate the challenge to liberating, empowering reform and the defensive resistance of traditional moral claims. I propose to revive an ancient idea, the Golden Rule, as the core moral, natural underpinning for marriage and family law, especially as it implicates domestic violence. The old common law of marriage made stark and bold claims to nature and morality but did not accommodate the deeper principle of intentional, disciplined love. Likewise, the Court’s contemporary moral metric, sharply deferential to individual conscience, ignores the fundamental moral rule, upon which Western jurisprudence must and ought to hang. This moment generates a divide that alienates traditional claims to morality from feminist claims to human dignity, when both might share constructive space within a rigorous Golden Rule.
The immoral roots of the common law survive to this day in generations of victims and perpetrators. If the common law’s old claims to morality and nature had grappled with love and the Golden Rule, courts could not have ignored the ugly, violent effects of subjugation in traditional marriage. Thus, I offer a caution for our age, first suggesting that courts and lawmakers should be wary of importing the bad moral reasoning of the founding era as it relates to families and marriage, and then suggesting that an ethic of love is a sounder foundation than blind genuflection to individual sovereignty and autonomous moral discernment. Rather than discarding established moral and religious ideas, courts should sound the law in the superior, antecedent Golden Rule.
Number of Pages in PDF File: 70Accepted Paper Series
Date posted: February 4, 2011 ; Last revised: June 13, 2012
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