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

Abstract

This early Article explores the transformations of Western marriage and family law born of the 16th century Protestant Reformation and 19th century Enlightenment. Using a Lutheran case study of Johann Apel, the article first traces the shift from medieval ideals of sacramental marriage and clerical celibacy to new Protestant models of the marital family as a social estate to which both clergy and laity are called but which lie within the state’s jurisdiction. Then using a learned colloquy between Anglican moralist James Fitzjames Stephen and liberal philosopher, the article traces the rise of a private contractarian model of marriage, and its influence for better and worse on modern family law reform. This article was greatly expanded in the author’s later monograph, From Sacrament to Contract: Marriage, Religion, and Law in the Western Tradition (Westminster John Knox Press, 1997; 2d ed 2012

Keywords: Western, family, marriage, contract, sacrament, religion, law, law and religion, Martin Luther, Roman Catholicism, Protestant Reformation