Tales Legal Fictions Tell
Charles J. Reid Jr.
University of St. Thomas School of Law (Minnesota)
Northwestern Interdisciplinary Law Review, Forthcoming
U of St. Thomas Legal Studies Research Paper No. 12-14
Pathology reports are useful devices in assessing not only the cause of death of human organisms but legal institutions also. This article is intended as a pathology report about what was once the central organizing principle of domestic relations law but is now considered a rattling antique in the attic of the common law.
Coverture (also known as feme covert) was premised upon male headship, the right of the husband to govern his family, to control his wife's property and her legal affairs generally, his unrestricted power to demand sexual intercourse with her, even over her objections, and the concomitant duty of the wife to submit and obey.
Male headship, in turn, was derived from a legal fiction -- the idea that the wife's legal personality was subsumed into her husband's at the time of marriage. The article focuses on the role belief played in the vitality of this system, and then in its dissolution. English common lawyers justified coverture by appeals to the Bible. Its demise was brought about by a secularization of social values, a transformation worked by commentators, satirists, essayists, and pamphleteers. Only after society changed, was law prepared to follow.
The article closes with some general lessons about legal fictions and their relationship to belief systems, where it speculates about another seemingly dominant, unquestioned legal fiction -- the fiction of corporate personality.
Keywords: Male headship, coverture, marital rape, William Blackstone, Mary Wollstonecraft, John Stuart Mill, American state legislatures, corporate personality, Stephen ColbertAccepted Paper Series
Date posted: March 27, 2012
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