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  • ‘By Ordinance of Nature’: Marriage, Religion and the Modern English State
  • Lisa O’Connell (bio)

I: Introduction

Marriage holds a foundational status within modern conceptions of the state. It does so, in part, because it is so readily understood to order the intersection of the natural and the social. As the sanctioned interface between reproductive sexuality and social life, marriage is where ‘nature’ dramatically encounters ‘culture’, as Claude Lévi-Strauss famously remarked.1 Yet, as we might expect, axiomatic constructions of marriage’s relation to nature, and, indeed, to the nation-state, have their own history. Rooted in Protestantism and influentially promulgated within early modern theories of natural law, they have enjoyed a recent resurgence in the contexts of structural anthropology and, most strikingly, contemporary debates about same-sex marriage. My interest, however, is less to trace the lineaments of this history, than to rethink the terms through which we understand one of its key moments: marriage’s establishment as a feature of the modern English state. The nexus of marriage and the modern nation-state is commonly viewed as an aspect of a larger historical process of secularization. Old-style Whiggish histories of English marriage, for instance, typically unfold in stadial terms whereby Roman Catholic sacramental concepts of marriage give way to Protestant re-evaluations of marriage’s social centrality, which, in turn, form the foundations of the state-regulated marriage contract.2 To be sure, much recent historiography seeks to revise progressivism of this kind; John Witte, for instance, has spoken of the trajectory of Western marriage less as one of ‘incremental secularization’ than of ‘intermittent resacralization’.3 Nonetheless, much literary and cultural commentary continues to view [End Page 149] English marriage in the eighteenth century as belonging simply to civil society.4 It does so, I would argue, because it so often relies upon paradigms of modern liberal contractarianism or Marxist–feminist critique that habitually view the nexus of marriage and the state in narrowly secular terms.

This essay argues, by contrast, that English state formation and the modes of sexual regulation associated with it were more closely entwined with religion, and with models of divine authority, than narratives of enlightened secularization typically acknowledge. It takes as its focus the post-scholastic theories of natural law that were central to legitimating the secular sovereign state in England and its new civil marriage code, as established by the Marriage Act of 1753. My aim is to demonstrate that marriage became an instrument of the English state not through the erasure or mere toleration of religion, but through a vigorous appropriation and reanimation of Anglicanism as an Established faith. In this context, theories of natural law lent themselves to rival and overlapping claims about the relationship between marriage and the sacred inside the modern English state.5

II. Natural Law

I shall start by briefly examining the narrative of secularization that has shaped our understanding of the history of natural law itself in the early modern period. In the wake of Augustine, scholasticism, as articulated by thinkers such as Aquinas and Suarez, figured natural law as, to cite Knud Haakonssen, ‘simply the way in which [God’s] eternal law applies to human moral nature’.6 Here, obedience to natural law is obligatory upon ‘creatures of reason and free will’ so that human rationality and moral nature are expressed in relation [End Page 150] to this obligation. Yet, although natural law is universal, different peoples live within different political and social structures. This means that God’s eternal law will take different positive shapes in different communities.

Responding to both Cartesian skepticism and the Reformation, Hugo Grotius made an important break in this framework. For him, individuals have a primary need for self-preservation, which is not fundamentally religious. This need founds rights, since without the capacity – the right – to preserve oneself, human beings cannot have a moral life under any imaginable collective existence. So natural law (or natural justice as Grotius more often put it) is what mandates us to live peaceably with others, only under circumstances where our own self-preservation is not in question. In effect, Grotius situates natural law in the primarily secular domain of...

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