May 21, 2014

Legal Nihilism: The Principle of No-Fault Divorce

Systematic Thinker
Friedrich Julius Stahl (1802-1861), pictured above, was the author of a great systematic treatment of Christian jurisprudence. It is entitled, Philosophy of Law: The Doctrine of Law and State on the Basis of the Christian Worldview. (Peter Drucker, the famed management consultant, incidentally wrote his dissertation on Stahl's theory of the state.) In the third book of Stahl's work, Private Law, he observes that a country that allows unilateral, no-fault divorce on the basis of the changed preference of one spouse undermines all other principles the state might otherwise wish to uphold.

Stahlian Destroyer of All Bonds
If a spouse can separate from a marital vow without fault -- on the basis of her own changed preference -- "it is in accordance with the same principle to recognize no bond as binding. This is the demand of the father to separate from his son when he yields him worries rather than joy, to consider him as no longer being his son. It is the demand of the people through uprising to separate from its ruler when it believes it can no longer lead a complete state life with him; the demand of the people to be able to separate from their bodies through suicide when these bodies yield no satisfaction and no vigor."

In other words, if a state announces that justice permits breaking a wedding vow because of a changed desire, by what principle can it insist that citizens maintain their oaths of allegiance when their preferences change. If a woman can walk away from her marriage because her feelings change, without any assignment of fault against her husband, then by what principle of right can a citizen be kept from changing his mind about fealty to the homeland or any other bond?

Presumably, the state must maintain that the foundation of legal duties to the state or others are higher than the mutual duties of man and wife. This claim, Stahl thinks, is manifestly not true. But, perhaps, people today are more wed to the state than anything else. Even today, however, one would struggle to explain why a greater duty is owed to the state than one's spouse. Even today, one would find it difficult to explain why the proclamation that it is just to abandon one's spouse without fault does not mean that it is justice to abandon any bond without fault.


  1. This is really interesting, Eric. Thanks for the post. I think that fealty to country is disappearing altogether in some circles. With all the talk of the "global" economy, we're apt to feel like global choosers-- feeling free eventually, I would imagine, to swap our allegiances based on fleeting ideological preference. Chewing on this. Thanks for posting.

  2. A corollary? If there are no enforceable rights or responsibilities within marriage (e.g. mutual duty of sexual congress) then there are no enforceable duties between the citizen and the state. Yet I do think we do still recognize some rights and duties between citizen and state. The cinclusion must be that what we call marriage simply isn't marriage.

    What duty continues to be recognized between husband and wife? Perhaps fiduciary duties? The duty of a cuckold to support a cheating spouse into perpetuity?

  3. Thanks, Mike and Lucius.

    Yes, Mike, I think that Stahl's point is also descriptive. It accounts for why the peoples of the world place less value on their countries, i.e., because the governments are "authorities" that teach there is no commitment that transcends individual self-interest. They legislate their own dissolution; they mock all who show loyalty to them. Macintyre compared dying for the modern state to dying for the telephone company, i.e. an entity devoted to profit and individual advantage of its shareholders and customers with no conceivable claim to communal sacrifice.

    Lucius, your point, too. The modern cosmopolitan state is closely related to the assault on familial legitimate succession -- the duty to raise other's children before one's own in contravention 1 Tim 5:8.

  4. A good post that I linked on my blog. I hope to reply in more detail next week. But here's a teaser: What are we to make of loyalty in a world of (1) living together without marriage and (2) click-wrap "contracts" whose primary function is to eliminate liability?