Law as Father: Metaphors of Family in Nineteenth-Century Law

Abstract

Although metaphor is commonly recognized as an important force in public discourse, this article argues that a subtle shift in metaphor is part of what can create the inventional possibilities for legal change. This article focuses on subtle shifts in judicial appeals to coverture, which were an important part of the struggle for nineteenth-century women's rights. Coverture was the concept in which women were legally and politically “covered” by the male head of household. This article argues that changes in coverture were enabled through a subtle shift in legal language, where the metaphor of family-as-government came to be replaced by the metaphor of government-as-family. This movement is traced through the case studies of spousal abuse law, child custody law, and juvenile court.

Keywords:

• Child Custody
• Domestic Violence
• Family
• Juvenile Court
• Law
• Metaphor

She would like to thank Jean Goodwin, Bill Keith, Angela Ray, and David Zarefsky.

Notes

Foucault traces the power of the father to ancient Rome (1978, p. 135).

Linda Kerber insists that part of the impetus for limiting women's ability to enter into a contract derived from a need to preserve “the husband's [supposed] right to sexual access to the wife's body” (1998, p. 14).

The term infant was used broadly to refer to dependent children.

Her petition stated, “[She left her husband] because of his wrongful conduct in this respect, viz., that the said Hickey became and was diseased with chronic venereal disease, and communicated the said disease in a malignant and chronic form to said Melissa L. Harrison, and thereby greatly injured her health and endangered her life, and persisted in maintaining marital relations with her, notwithstanding his diseased condition, by reason of which it became impossible for her longer to live with said Hickey.” Neither the Circuit Court nor the Appellate Court referred to Melissa's justification for abandonment and custody (Hickey, n.d.).

Scholars concerned about nineteenth-century child custody after divorce tend to make at least one of three central arguments: (a) there was a shift from paternal to maternal presumption in child custody during the second half of the nineteenth century (Black & Cantor, 1989, pp. 10, 19; Kandel, 1994, pp. 329–330; Mason, 1994, p. 87; Polikoff, 1983, p. 185; Riley, 1991, p. 83; Zainaldin, 1979, p. 1084); (b) child custody law is an example of the evolving understanding of childhood (Black & Cantor, 1989, pp. 10, 14; Grossberg, 1985, p. 238; Kandel, 1994, pp. 325–326; Mason, 1994, pp. 90–91; Polikoff, 1983, p. 186; Zainaldin, 1979, p. 1049); and (c) late nineteenth-century child custody is an example of women's increasing power and rights (Mason, 1994, p. 51; Zainaldin, 1979, p. 1084).

See Nelson (1995) and Fahs (2004) for more on the role of father in the family at the end of the nineteenth century.

As Mary E. Odem explains, girls did fall under the purview of the juvenile court, but the rhetoric about the juvenile court frequently focused only on boys (1995, p. 96). It is possible to speculate on reasons for this exclusion of girls. First, the juvenile court was often articulated as important because of its ability to create future citizens, and, perhaps, only boys were seen to have the capacity to become citizens. Second, the girls may have been considered less savable. Most girls who went before the juvenile court were arrested for sexual crimes, and these girls may have been seen as beyond motherhood. Finally, the crimes of boys were more public than the sexual crimes of girls, and, as a result, it is possible that people simply perceived the crimes of boys more often than the crimes of girls.

Additional information

Notes on contributors

Leslie J. Harris

Leslie J. Harris (PhD, Northwestern University) is an Assistant Professor in the Communication Department at University of Wisconsin–Milwaukee.