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From Sacrament to Contract: The Legal Transformations of the Western Family

Criterion, Vol. 34, No. 3, pp. 1-11, Autumn 1995

Emory Legal Studies Research Paper

9 Pages Posted: 15 Jun 2011  

John Witte

Emory University School of Law

Date Written: Autumn 1995


The Western Church has, from its apostolic beginnings, offered four perspectives on marriage and the family. An ecclesiastical perspective regards the family as a religious or sacramental association, subject to the creed, code, cult, and canon law of the church community. A social perspective treats the family as a social estate, subject to the expectations and exactions of the local community and to special state laws of contract, property, and inheritance. A contractual perspective describes the family as a voluntary association, subject to the wills and preferences of the couple, their children, and their household. Hovering in the background is a naturalist perspective that treats the family as a created or natural institution, subject to the divine and natural laws of reason, conscience, and the Bible. In Voltaire's cynical phrase: "Among Christians, the family is either a little church, a little state, or a little club" blessed by God and nature. Among many Christian writers, these four perspectives are seen as complementary, for they each emphasize one aspect of marriage and the family – its religious sanction, social legitimation, voluntary formation, and natural origin, respectively. These four perspectives, however, have also come to stand in considerable tension, for they are linked to competing claims of ultimate authority over the form and function of the family – claims by the church, by the state, by family members, and by God and nature. Some of the deepest fault lines in the historical formation and the current transformations of the Western family ultimately break out from this central tension of perspective. Which perspective of the family dominates a culture, or at least prevails in an instance of dispute – the ecclesiastical, the social, the contractual, or the natural? Which authority wields preeminent, or at least peremptory, power over marriage and family questions – the church, the state, family members themselves, or God operating through one of these parties? Catholics, Protestants, and Enlightenment philosophers alike have constructed elaborate models to address these cardinal questions. Each group recognizes all four perspectives but emphasizes one of them. Catholics emphasize the religious (or sacramental) perspective of the family. Protestants emphasize the social (or covenantal) perspective. Enlightenment exponents emphasize the contractual (or privatist) perspective. In broad outline, the Catholic model dominated Western family law till the sixteenth century. From the mid-sixteenth to the mid-nineteenth century, Catholic and Protestant models, in distinct and hybrid forms, dominated Western family law. In the past century, the Enlightenment model has emerged, often eclipsing Catholic and Protestant traditions of marriage and the family. The following sections take up these theological transformations of Western family law – from sacrament to social estate to contract.

Keywords: Western, family, marriage, contract, sacrament

Suggested Citation

Witte, John, From Sacrament to Contract: The Legal Transformations of the Western Family (Autumn 1995). Criterion, Vol. 34, No. 3, pp. 1-11, Autumn 1995; Emory Legal Studies Research Paper. Available at SSRN:

John Witte (Contact Author)

Emory University School of Law ( email )

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Atlanta, GA 30322
United States
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