The Classically Liberal Family: John Witte's Magisterial Defense

It's not often the case that a law review article rises to the level of a tour de force. Yet that is how I would characterize John Witte's The Nature of Family, The Family of Nature: The Surprising Liberal Defense of the Traditional Family in the Enlightenment (download here). Drawing from his abstract:

This Article shows that many Enlightenment liberals defended traditional family values and warned against the dangers of sexual libertinism and marital breakdown. While they rejected many traditional teachings in their construction of modern liberalism, Enlightenment liberals held firmly to classical and Christian teachings that exclusive and enduring monogamous marriages are the best way to ensure paternal certainty and joint parental investment in children who are born vulnerable and dependent on their parents’ mutual care.

Over the eighty-six pages that follow, Witte demonstrate that the classical liberal of the mid-sixteenth to mid-nineteenth centuries supported what today is perjoratively characterized as the traditional family (one male and one female in a legally-sanctioned relatively indissoluble union). Nor was their support off-handed and devoid of deep consideration and analysis. Writer from Hugo Grotius to Mary Wollstonecraft (and scores of others) thought deeply about marriage and came to the conclusion, "by reason alone," that it was the best way to achieve the ends of liberalism itself. 

It is also crucial to Witte's argument that many of these classical liberals reject the authority of the Bible and religious tradition. Many also eschewed  or at least failed to employ the sort of traditional natural law teleology that can be found among today's neo-Thomists. Classical liberals were not so much concerned about man's chief transcendent end as man's more limited terrestrial pursuit of happiness. They were, in other words, part of the secularizing trajectory that characterizes this age.

That there could be a liberal argument for the "traditional" family without an appeal to tradition might seem surprising. While not believers in tradition as a requisite for human flourishing, classical liberals were acute observers of the human condition:

[Their] argument ... started with three brute realities about human nature and sexual reproduction that every family law system had to address: that human adults crave sex a good deal of the time, that human children need help for a very long time, and that human beings, unlike all other animals, are capable of self-destructive and species-destructive sexual behavior that society needs somehow to deter in the interests of private and public health, safety, and welfare.

Neither appeal to God nor God's revelation nor the traditions of men like Aristotle or Aquinas were necessary to convince these writers of the importance of stable marriages to human society and common civil goods. Most, like Hugo Grotius, were "more interested in what the law of nature itself could teach us about sex, marriage, and family life independent of biblical norms and divine revelation." But those observations of the law of nature independently confirmed many--although not all--of what biblical norms and the Western tradition taught.

Witte quotes at some length the piquant observation of my favorite Enlightenment natural law writer Samuel von Pufendorf (take a look at my Consideration in the Common Law of Contract: A Biblical-Theological Critique) for the conclusion that there is an observable, rational basis for marriage as traditionally understood:

The reality of lengthy infant dependence gave humans a strong natural inclination toward exclusive and enduring marriages and a strong natural abhorrence to sex outside of marriage—even though “man is an animal always ready for the deed of love.” If natural law had not channeled this strong male sex drive toward marriage, and men were permitted to have random sex like “a cow [] in heat,” they would do nothing to help the mothers and children who need them. “[W]hat man would offer his support unless he were sure he was the father” of her child? “[W]hat man would undertake the care of any but his own offspring, whom it is not easy to pick out when such free license prevails?” Sex only within monogamous marriage was a natural necessity for mankind and a natural duty for each man ...

I will omit discussion of the multitude of other Enlightenment thinkers whose views on the nature of marriage Witte canvasses. It is useful to note that by the end of his article Witte describes how the thick, multidimensional understanding of marriage as both a private and public institution directed toward private and public goods, which characterized classical liberals, continued well into the modern era of Progressivism:

Some readers will be surprised that the Anglo-American common lawyers of the nineteenth and early twentieth centuries drew directly on this rich natural law theory in devising the idea of marriage as a valuable status that deserves to be privileged and in denouncing incest, polygamy, adultery, fornication, and easy divorce as dangerous deviations from natural and social order. 

Even if, as Witte observes, all sorts of natural law thinking are deemed old-fashioned by late-modern and post-modern thinkers and writers, it remains the case that "the basic facts of human nature and human sexuality have not changed." Thus, even with a series of cogent qualifications, Witte stands

firmly in support of the traditional marital household as a natural and necessary institution for the cultivation and preservation of the very ordered liberty and social stability that seems to be eroding today. And I believe that the natural law configuration of sex, marriage, and family life still provides enduring wisdom and instruction for a post-Christian and postmodern Western culture that remains dedicated to the liberty and equality of its citizens.

I have previously posted positively about others of Witte's works. I have also given two cheers for (classical) liberalism in my Looking for Bedrock piece. I cannot help but wish, however, that Witte had gone on to explain while the liberal view of the importance of the family as traditionally understood has so little traction today. He does, to be sure, list a variety of confounding factors ranging from artificial reproductive technology to the benefits of the modern welfare state as examples of the loss of some the material supports for marriage. And, of course, there has been the battle against unjustified vestigial forms of discrimination remaining in the liberal view of marriage. Yet, to my mind, neither of these sets of forces adequately accounts for the contemporary collapse of that view. Thus, I eagerly await Witte's promised account of the rest of the story (and what should be done).