Reviewed by Zvi H. Triger, The College of Management, School of Law, Rishon LeZion, Israel. Email: zvit [at] colman.ac.il.
Chris Clarkson’s new book, DOMESTIC REFORMS, is an important addition, not only to British Columbian family law scholarship, but also to the scholarship on the politics of family law and gender relations in general.
Clarkson offers a fascinating and eye-opening account of lobbying, legislative processes and intent, and, sometimes, the unintended consequences of some of the legal reforms passed between 1862 and 1940 in British Columbia.
Clarkson, a History professor at Okanagan College, British Columbia, argues that the three waves of legislation concerning property, inheritance and maintenance laws, starting in 1860, were driven by the ambition to transform British Columbia from a British colony into a white settler Canadian province. In his argument, he persuasively connects the legal system’s vision of the family to the endeavor to create, and indeed, engineer, a nation.
Seeing the family as an important political unit positioned at the crossroad of the nation and the state, advocates of the reforms depicted and analyzed in the book believed that the family is an important, perhaps even central, tool that should be utilized in the nation-building project.
In this sense, British Columbia’s story is similar to the story of many other former British colonies, such as India and Israel. British common law, which viewed the family as patriarchal unit and deprived married women of their basic human rights, was used as the basis for family law in these countries at the time of independence as well. That means that women’s lack of agency under the law, as prescribed by the coverture doctrine, was one of the main features of family law that the legislatures of newly founded countries had to tackle and were somewhat reluctant to give up.
Sir William Blackstone’s Commentaries on the Laws of England (first published in 1765) were often the only law books that the settlers and occupiers who traveled to the colonies (in the west as well as in the east) took with them. This is what Blackstone writes about women’s legal status within the family under the common law:
By Marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; . . . and her condition during her marriage is called her coverture. (Blackstone 1803, vol. 2, p.442) [*261]
Under this doctrine, women were legally incapable of performing legal actions such as signing contracts or bringing legal actions against others. The coverture doctrine also entailed women’s loss of name (usually both first and last), as well as men’s right to physically punish their wives, as long as the lash used to beat them was not thicker than a thumb (this is the source of the expression “rule of thumb”).
Against this patriarchal backdrop, the reformers of the first wave of legislation in British Columbia were working. But here is an intriguing paradox: as Clarkson justly points out, any attempt to try to make family law more egalitarian by means of challenging the traditional gendered division of labor, had to involve men’s loss of some privileges within the family unit. Nevertheless, some of these attempts were surprisingly successful. How can one explain men’s approval and support of legal reforms that hindered their almost total (not to say totalitarian) supremacy within the private sphere?
Clarkson argues that egalitarian (or relatively egalitarian, to be more precise) reforms were possible and were deemed acceptable by many men due to a complex set of interests and considerations, despite their adverse effect on male supremacy within the family. One of the key interests was, as mentioned above, the nation-building project. Race, as Clarkson observes, played a crucial role here: “Legislators worked to seize political, legal, and economic control from Aboriginal societies in order to provide a settlement frontier from which white settlers – and distant European capitalists – could extract natural resources and profits” (p.7).
Indeed, it seems that some of the more egalitarian family law reforms were not so much a product of feminist convictions as they were the outcome of racial and colonial sentiments. The gendered perception of the “foreign man” (meaning of the native man) and his cultural construction as emasculated and, at the same time, as hyper-sexual, well-known from other cultures, is present in Clarkson’s story as well: As Clarkson argues, “[l]egislators had few qualms about regulating men differentially by race. Preventing Native and Chinese men from enjoying the full benefits of masculinity was directly related to the vision of the nation” (p.207).
Accordingly, as Clarkson points out, some reforms were not feminist at all, and they merely substituted private patriarchy with state sanctioned patriarchy: Under some laws women were granted property rights, but these rights were conditioned upon certain sexual behaviour. Adulterous wives, for example, were denied property rights under the Deserted Wives’ Act.
In fact, as Clarkson notes, “[w]omen were defined by the role they played in relation to their husbands or families, and legislation dealt with them on that level: as widows, spinsters, married women, deserted wives, country wives, and concubines. The numerous categorizations existed to reserve power to men. Women’s rights depended upon exactly how they were related to men and, hence, how those rights would affect men” (p.209). [*262]
Other pieces of legislation were designed to promote reproduction, sometimes at the expense of women’s liberties. Indeed, it seems that reproductive policy informed much of the reform:
The new femininity created in the legislation was defined in relation to reproductive policy: each extension of women’s property rights was intended to safeguard and facilitate reproduction. In every statute in which women’s property rights were extended . . . the extension was granted in relation to specific reproductive needs and justified in those terms. (p.208)
It seems, then, that in the wake of some of the reforms described in the book, the femmes couverts found themselved no longer under the cover of their husbands, but rather under the cover of the state.
As Susan Moller Okin argued in her groundbreaking book, JUSTICE, GENDER, AND THE FAMILY, the family is our first and therefore most important school of justice. It is in the family were children first observe adult human interaction, and are exposed to justice and reciprocity (or to their absence from family life). Therefore, as Peggy Cooper Davis wrote, “[t]he family sits strategically between government and individual. It is thought to have a duty and a special ability to socialize and govern the youth. It is also thought to be a uniquely good site for the development and perpetuation of values” (Davis 1997, at p.10).
This can explain why family law is perhaps one of the most important fields of law when trying to understand the basic tenets of a legal system, and why reforms that are motivated by a national interest rather than by a concern for human rights in general, and gender equality in particular, cannot achieve true equality.
In this short review, I did not go into the details of each and every piece of legislation analyzed in DOMESTIC REFORMS. Naturally, there are important differences and many nuances that cannot be represented and fully discussed here, giving the limited scope of such a review.
Clarkson has written a wonderfully complex and rich account of women’s status in British Columbian family law and society. Clarkson’s account powerfully demonstrates why reforms that seemed to be egalitarian turned out to be a double-edged sword. That is because they were in fact motivated by nationalist considerations and not by “recognition of universal human or civil rights.”
Blackstone, William. 1803. COMMENTARIES ON THE LAWS OF ENGLAND. St. George Tucker, ed., Philadelphia: William Young Birch & Abraham Small.
Okin, Susan Moller. 1989. JUSTICE, GENDER, AND THE FAMILY. New York: Basic Books.
Davis, Peggy Cooper., 1997. NEGLECTED STORIES: THE CONSTITUTION AND FAMILY VALUES. New York: Hill and Wang.
© Copyright 2008 by the author, Zvi H. Triger.