“The Law’s a Ass”: Marriage and Divorce, POB II.2

Thomas Fleming


August 9, 2017

POB II.2  "The Law's a Ass”:  Marriage and Divorce

Bumble the Beadle was a professional philanthropist, which is to say that he made a comfortable living by spending other people's money on the poor.  As an agent for the parish, he had grown fat and vain, and he was fond of reminding the indigent of their debt of gratitude.  When the officers of the parish sell young Oliver Twist into slavery--and early death--as a chimney sweep, the Beadle admonishes the boy that "the kind and blessed gentlemen

which is so many parents to you, Oliver...are a going to prentice you: and to set you up in life, and make a man of you: although the expense to the parish is three pound ten!--three pound ten, Oliver!--seventy shillings--one hundred and forty sixpences!--and all for a naughty orphan which nobody can't love."

Harsh as he is to the objects of the parish charity, the Beadle is not without tender feelings toward a woman possessed of well-turned furniture, and as he woos Mrs. Corney, he surreptitiously checks out the quality of her plate, while discoursing on "the great principle of out-of-door relief...to give the paupers exactly what they don't want; and then they get tired of coming."

The lady in the case (the matron of a workhouse) is more than a match for her lover.  Summoned to the bedside of a dying hag, she filches a pawn ticket, which she cashes in for a gold watch that turns out to be the only proof of Oliver's parentage.  In her husband's presence, the matron sells the watch to Oliver's hostile half-brother, who destroys the evidence.  When the crime is found out, the Beadle learns that "this unfortunate little circumstance" means that he is to be dismissed from his post.  In vain he pleads, "It was all Mrs. Bumble.  She would do it."  However, the fact is (so he is told), "You were present on the occasion...and indeed are the more guilty of the two, in the eyes of the law; for the law supposes that your wife acts under your direction."

"If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass--a idiot.  If that's the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience.”

Proem: What is Marriage?

Mr. Bumble was as wrong in his opinion of the law as he was in most matters.  The law in those days was not a bachelor but a happily married husband and father, and it would take more than a hundred years for whole armies of reform-minded beadles to reduce the law, if not to bachelorhood, at least to the condition of a cynical divorcé.  No revolution--political, social, or economic--has been so sweeping and destructive as the legal revolution that has turned marriage from an indissoluble merging of identities into an unenforceable contract between competing individuals.

For decades we have been reading stories in the media about the crisis of the family: the decline in the number of young people getting married, the rise of illegitimacy, the increase in the rates of divorce, popular acceptance of adultery, and, most recently, leftist proposals to legitimate marriage between members of the same sex or the Republican alternative, which amounts to the same thing, so-called civil unions.  Since there is no practical or legal difference between a state-licensed marriage and a civil union, the political debate between the parties is a shadow-boxing contest in which the liberals are playing in earnest and the conservatives merely playing.

Naturally both liberals and their so-called conservative opponents have legislative proposals to solve the marriage crisis.  But before a problem can be fixed or an institution can be reformed, we first have to know what it is we are dealing with, but before attempting any description (much less definition) of marriage, we should assess our own convictions and prejudices.  Here are a set of characteristics of marriage that have been accepted in the past.  Marriage has been viewed as

1) a binding relationship between one man and one woman.  To include Muslims and Middle-Eastern Jews, let us even say—one or more women.

2) for the primary though not necessarily exclusive purpose of begetting and rearing children;

3) a life-long commitment entered into voluntarily by people capable of making a rational agreement and possessing the capacity to marry each other—this means essentially that neither of the parties is insane, impotent, or so closely related that the union would be incestuous.

4) the foundation of the social order, the seed-bed of the commonwealth, as Cicero said, and for a government to attempt to destroy marriage is tantamount to destroying society itself;

5) Therefore, it is an important and necessary role of any government, particularly the governments of the United States, to regulate, promote, and protect marriage in its traditional form and even to draw up a government-sanctioned definition of the institution.

Most men and women of an old-fashioned bent would probably accept the first four, and a large majority would endorse number five.  That is the fundamental mistake that prevents many intelligent people from taking any effective steps to oppose the cultural and moral revolution that has been destroying marriage and the family from since before I was even born.

Both so-called liberals (who are really leftist revolutionaries) and their so-called conservative opponents (who are in reality the liberals’ strongest allies) have legislative proposals to solve the marriage crisis.  But before a problem can be fixed or an institution reformed, we first have to know what it is we are dealing with.  Any debate over marriage law has to begin with a clear definition of the institution.  Mistakes can be fatal.  For example, if we mis-defined water as any liquid, then we might ask government to pass a law forbidding people to pour water on a fire, because the kinds of water known as gasoline or nitroglycerine ignite or explode when exposed to flames or high heat.   Alternatively, the opponents of such a law might justify the use of gasoline to put out a fire because, after all, it's only water—understanding water in the traditional sense.  Naturally a rational person would respond to all this that we know what water is and provide a scientific definition.

Then what is marriage, how do we go about defining it?  This is a bit more difficult than in the case of water, which the most elementary chemistry student could define as H2O or in terms of the ionic bonds and molecular structure of water.   Similarly, if we wanted to define a species of plant or animal life, we would turn to a biologist, who would describe its attributes and fit it into either the old scala naturae of Linnaeus or use some more contemporary method of statistical analysis, such as cladistics.

With human institutions such marriage, we have to content ourselves with rougher, more approximate answers. To answer the question what is marriage, we would begin by ransacking history and the anthropological record for examples, which we should then compare to find convergent patters and then come up with a basic model.  By this process of investigation, we should discover that human marriage is a strong and long-term sexual bond between one male and one or more females who together rear the offspring of their coupling.   We could go further and say that although the human male tends mildly toward polygamy and promiscuity, the basic model is one man and one woman.  This is so, partly because of the numbers question—every Muslim or Mormon elder with 4 wives is depriving three other men of a wife—but also because polygamous societies are generally less stable and less successful than monogamous ones.  Besides, even in polygamous countries, most men have to be content with one wife.

But seeking more than this description of what marriage is, we would then ask, "What is marriage for?"  To answer that one, we would look at the function of marriage in biological terms.  Here we would turn to evolutionary biologists who would explain that universal behavioral patterns usually make individuals more successful, more fit.  Since fitness basically means reproductive success, the function of marriage is to facilitate the bearing and rearing of children who will also be successful in reproducing.  In Genesis, man and woman are told to "Be fruitful and multiply,” but Charles Darwin would have said the same thing.

In our effort to understand marriage, we can turn from science and look at the societies that gave birth to our own:  the ancient Greeks, Romans, and Jews; the Celts, Germans, and Slavs who invaded, wrecked, and ultimately rebuilt the civilization some of us continue to call Christendom.  I have to paint with a very broad brush, but after studying this subject for decades, I can say quite simply that for most ancient peoples of the Mediterranean, as for our own barbarian ancestors, marriage was an agreement between two families or kin groups to unite a male and a female for the purpose of bearing and rearing offspring to perpetuate either one or both of the bloodlines and to transmit property to legitimate heirs.  The Romantic inclinations of oversexed adolescents did not enter much into the negotiations until societies became so urbanized and rich they could afford this luxury.

Thomas Fleming

Thomas Fleming

Thomas Fleming is president of the Fleming Foundation. He is the author of six books, including The Morality of Everyday Life and The Politics of Human Nature, as well as many articles and columns for newspapers, magazines,and learned journals. He holds a Ph.D. in Classics from the University of North Carolina, Chapel Hill and a B.A. in Greek from the College of Charleston. He served as editor of Chronicles: a Magazine of American Culture from 1984 to 2015 and president of The Rockford Institute from 1997-2014. In a previous life he taught classics at several colleges and served as a school headmaster in South Carolina