The Family and the State

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Roderick Phillips

The family has historically been central to European social systems. In the early modern period and during much of the modern age it was the main institution for reproduction and the raising of children, the principal means by which property was transferred (by inheritance) from one owner to another over time, and it frequently provided services, such as the care of the sick and old, that in modern times are more commonly associated with other social institutions. The family economy, to which all members of the family contributed labor and resources, was the main unit of production in the preindustrial European economy and it remained important well into the industrial era.

The family was also perceived as critical to the maintenance of social stability and the moral order. Sexual activity was generally defined as permissible or illicit by its relationship to family relations: sex within marriage was permitted while sex before or outside marriage was frowned upon. Children were socialized into gender and other roles within the family; and in many respects authority within the family was portrayed as mirroring the exercise of power in society at large. Marriage breakdown, disobeying parental authority, the reversal of gender roles, dishonoring the family, and other disruptions of patterns of normative family relationships were often perceived as real threats to social stability.

Given the importance of the family to so many dimensions of society, the economy, and the polity, it is not surprising that any institutions that wanted to control the social order, either by changing it or maintaining the status quo, had a particular interest in all aspects of the family.

During the Middle Ages the church progressively appropriated control of the family, sexuality, and morality from secular authorities that had regulated family relationships and behavior through customary legal codes or legislation based on Roman Law. For example, laws and customs that permitted divorce were steadily replaced by church decrees and council decisions against divorce until finally, by the thirteenth century, the canon law of marriage was triumphant throughout most of Europe (although it was weak at the peripheries). Divorce was effectively denied to European populations until the Reformation.

By the end of the Middle Ages the church regulated the formation and dissolution of marriage and a broad range of behavior within the family, particularly as they related to sexuality. Some spheres of family life evaded church regulation more than others, however, and in general the church had less success in gaining jurisdiction over property matters than over individual behavior and family relationships. There were also class differences in that the church made exceptions for the wealthy and powerful. For example, the church often waived prohibitions based on consanguinity and affinity, which ruled out marriage between a man and a women who were too closely related, to enable royal or aristocratic families to arrange marriages that served political or dynastic ends.

The emergence of the nation-state in the early modern period challenged the dominance of the church over many areas of law, including the family, and the sixteenth to the nineteenth centuries can be seen as a period in which the state progressively undermined the authority of churches to regulate the family. Although it was by no means a steady, linear trend, the general trajectory of change is clear throughout much of Europe, and by the second half of the nineteenth century the primacy of the state in regulating the family in Europe was established. Even though much of the substance of family law and policy continued to express principles that drew on Jewish and Christian teaching on the family—biblical texts frequently remained points of reference for legislation related to marriage, divorce, and sexuality until the late twentieth century—the power to legislate and competence to judge family matters were progressively transferred from church to state.

The distinction between church and state should not always be drawn too starkly, however, because as much as there was conflict between these two institutions for power to regulate the family, there was often cooperation. In England, where the church retained much authority over the family until well into the nineteenth century, it did so at the behest of the state. When a commission was set up to revise the canon laws of the Church of England after the Reformation, it was appointed by the king, who was head of the church. Similarly, in eighteenth-century France the royal government set down the rules by which the church kept records of baptisms, marriages, and burials. The process by which the state assumed legislative power over the family from the religious authorities was sometimes sudden and dramatic, as during the French Revolution. But for the most part it was a slow evolution that combined both cooperation and tension between the two bodies.

There are three broad areas in which the state related to the European family in the early modern and modern periods (1500 to the present). First, the state attempted to regulate the family by means of laws, especially those dealing with marriage formation, stability and dissolution, sexuality, parental authority, inheritance, and adoption. Second, the state developed policies in other social spheres that affected the family directly. For instance, states frequently sponsored measures to increase population size by encouraging (and sometimes even coercing) procreation using fiscal and other means. Third, models of state power sometimes drew directly on images of family authority. The clearest example is patriarchalism, where the monarch's relationship to his subjects is likened to that of a father's to his children, a relationship that was considered natural (even when it was created by adoption) and was therefore deemed to be beyond challenge.

The social history of the family has related unevenly to the evolution of the state's attempts to regulate family relationships. Although the state, like the church before it, prescribed rules and norms of behavior, many were widely disregarded by populations in their everyday lives. Court records dealing with family issues—such as litigation concerning inheritance, suits by one engaged person to force the other to fulfill a promise of marriage, or prosecutions for domestic violence—reveal challenges to legal prescriptions.

For all that the state had an interest in regulating the forms of the family—who could marry whom, what circumstances might justify a divorce, how property ought to be divided—and for all that it gradually accumulated authority over them, it has historically been reluctant to legislate or intervene judicially in some areas. A prime example is domestic violence. According to the doctrine of "moderate correction" that was enshrined in many European codes of law, a husband was permitted to "correct" (punish) his wife physically when he had good reason and when the violence he used was "moderate"—that is, when it did not draw blood or threaten the wife's life. Because much domestic violence was thus legally permissible, court records do not reflect its incidence and there is no way to ascertain how common violence was. It is quite possible that the principle of "moderate correction" expressed a position broadly accepted by men as a means of maintaining authority within the family.

The law established the boundaries of many areas of family life and at times compelled individuals to observe the outward forms of acceptable behavior. Inheritance laws established the identity of heirs and their rights, and these rules appear to have been observed; they were enforceable by law. On the other hand, rules of partible inheritance, which mandated the division of property among more than one heir, could be circumvented if some heirs wished to sell their share (or exchange it for goods or services) so as to allow one person to consolidate ownership of all or most of the property.

In some respects the social history of the family is the story of the struggle of social groups or individuals to maintain their autonomy to observe cultural or individual forms of behavior despite the demands of the state. It is important to bear class distinctions clearly in mind here. State-sponsored regulations often expressed the values of one particular class, such as the bourgeoisie. Workers or peasants might well ignore attempts to interfere with patterns of behavior to which they were accustomed. For example the high rate of premarital pregnancy in some parts of Europe in the early modern period (about a fifth of English brides were pregnant when they married in the seventeenth century) might well have reflected a continuing pattern where couples began to have a sexual relationship as soon as they were engaged and married when the woman became pregnant. Such an attitude to the relationship of marriage and sexual activity would give a premarital pregnancy a completely different (and acceptable) meaning than in a culture or class where a sexual relationship was expected to begin only after marriage and where premarital pregnancy was evidence that the principle of premarital chastity had been breached.


The intrusion of the state into family affairs began in earnest with the development of the nation-state at the beginning of the early modern period, and a number of centralizing monarchies, such as those in France and England, began to legislate on family issues. Paradoxically, state regulation was boosted by the Protestant Reformation, which shattered the unity of the medieval church and led to the creation of state-sponsored churches in northern Germany, Switzerland, Scandinavia, Scotland, the Netherlands, and England. In Protestant states the church continued to play an important role in some aspects of the family, but Protestants generally accepted that the secular authorities, increasingly the nation-state, had authority and jurisdiction over many family matters. They rejected the Catholic doctrine that marriage was a sacrament, and believed that even though marriage was ordained by God, it should fall within the jurisdiction of the state.

John Calvin, for example, argued that marriage was a civil contract under the jurisdiction of the secular authorities, and Martin Luther likewise insisted that it was a "worldly thing" and that the state should regulate marriage and divorce. In Sweden, the basic reforming law of the Lutheran Church in 1572 specified that marriage was an issue for the civil law.

Even so, Protestant states were generally slow to assume the power to regulate the family, and in most countries churches continued to play important legislative and judicial roles in family issues. The canon law adopted by each church continued to be important and the church courts continued to adjudicate in many matrimonial issues in England until the mid-nineteenth century. In parts of Protestant Switzerland, marriage courts were mixed tribunals of clerical and lay judges from the sixteenth through the eighteenth centuries. In Scandinavia, church courts handled marriage cases but turned them over to secular courts if they were unable to reconcile the parties.

Although the Reformation opened the way for the state rapidly to increase its regulatory activities over the family, there were fewer differences between Catholic and Protestant states than might be expected. Throughout Europe, regardless of the dominant confession, states progressively gathered legislative power into their own hands at the expense of the religious authorities. This was the case in Catholic France, where the royal government steadily eroded the legislative and judicial powers of the Church. The indissolubility of marriage was affirmed by the Catholic Church in one of the decrees of the Council of Trent in the 1560s, but because the French monarchy claimed primacy over the church in France, it issued its own declaration to the same effect, the 1580 Edict of Blois.

French royal judges also began to use a legal instrument known as appel comme d'abus, which was a declaration that a church court hearing a case was acting beyond its authority. From the sixteenth to the eighteenth centuries the royal courts used this action to gain jurisdiction over a wide range of family issues: the marriage of minor children, bigamy, impediments to marriage, and broken engagements, as well as all property questions that affected spouses, parents, and children.

The state also gained legal and judicial authority over the family from the Catholic Church in the Habsburg empire. In 1784 Emperor Joseph II forbade the church courts to exercise any jurisdiction over the validity of marriages, legitimacy of children, promises of marriage, engagements, or any other matrimonial matter. The 1784 law declared that marriage was a civil contract and that power over it lay solely with the civil power (the state) and the civil courts.

The same process was evident in Protestant states. In Sweden the state (through the monarch) began to override the Lutheran Church's marriage laws almost as soon as they were issued in the late 1500s. By the 1630s the practice had developed whereby the Swedish king could grant divorces by dispensation in circumstances other than desertion and adultery, the only grounds recognized by the church. Grounds for divorces by royal decree included ill-treatment, frequent drunkenness, and the presence of "hatred and bitterness between the spouses."

Faced with the Church of England's refusal to allow divorce (it was unique among Protestant denominations in this), the English state began to grant them instead. From 1670 until 1857 (when a divorce law was passed), English men who could prove their wives were guilty of adultery (and English women whose husbands were guilty of aggravated adultery) could have their marriages dissolved by private Act of Parliament. The church was not excluded entirely from such cases, however, because it was necessary for a petitioner to obtain a separation from an ecclesiastical court before obtaining the parliamentary divorce.

Within this broad trend of growing state intervention, it is possible to detect a number of recurring patterns. One was the tendency of the state to intervene in the family in order to achieve certain broader social and political goals. In the seventeenth and eighteenth centuries there was widespread concern in governments about what was thought to be sluggish or nonexistent demographic growth. This was an important matter in a period when economic and military power were more directly related to population size than they are today. In late-seventeenth-century France the government of Louis XIV tried to stimulate the birthrate by providing tax concessions to large families. This was the beginning of persistent attempts on the part of the French state to employ fiscal and other inducements to encourage procreation. In the eighteenth century the French monarchy tried to reduce infant mortality by such means as sponsoring courses in midwifery, requiring unmarried pregnant women to register their pregnancies with the authorities, and reforming the laws related to the treatment of abandoned children.

Divorce was sometimes used for the same demographic purpose. In Prussia, Emperor Frederick William II designed a divorce policy in part with demographic purposes in mind. In 1783 he issued instructions to judges stating that "in matters of divorce one ought not to be so easy going as to further abase [marriage]; but one should not be too difficult either, because that would impede population." When divorce was legalized in France in 1792, one argument was that it would allow unhappily married (and presumably nonprocreative) couples to remarry and have children with their new partners.

The progressive secularization of family law and policies from the seventeenth century onward typically shifted the balance of regulation from churches to the state. Many Enlightenment writers were critical of the continuing influence of religion over law and society, and because they had no wish to see these issues unregulated, they urged their respective states to take over jurisdiction from the church. Faced with specific problems, governments enacted legislation and adopted policies that extended their power. In England, where the Anglican Church controlled marriages, a Marriage Act was passed by parliament in 1753 in order to combat the increasing incidence of clandestine marriage. In France, where in the eighteenth century only marriages performed by a Catholic priest were recognized in law, the state unilaterally improved the position of Protestants with respect to the legitimacy of their families. From mid-century royal judges tended to consider Protestant marriages valid for the purpose of inheritance, and in 1787 King Louis XVI issued an Edict of Toleration that extended legality to marriages by Protestants.

Within the evolution of state power over the family in Europe, there were periods of acceleration, generally associated with revolution or political upheaval. During the English Revolution the republican government of Oliver Cromwell passed laws dealing with a variety of marriage issues. Civil marriage was legalized in 1653 and in 1650 an Adultery Act provided for capital punishment in certain cases. A married woman who committed adultery could be hanged along with her accomplice, but a married man who committed adultery with an unmarried woman was liable only to imprisonment for three months. In this case the limits of state law were determined by juries which, clearly thinking that the penalty was far too severe for the crime, refused to convict married women of adultery in all but a handful of cases during the ten years the Adultery Act was in force.


The French Revolution (1789–1799) provided a particularly striking example of the emerging role of the state in attempting to regulate the family and establishing family policy as part of a broader agenda for social transformation. Revolutionary legislators accelerated the process of secularization that had been evident under the Old Regime and deprived the church of any legal authority over the family. As for the substance of Revolutionary law, two aims appear to have been uppermost. The first was to make family relationships more consensual and equal than they had been under the Old Regime and the other was to use the family for broader demographic, social, and political purposes.

Greater legal equality within the French family was achieved by a series of legal reforms. The authority of fathers and husbands to control their children and wives was steadily reduced, beginning with the abolition in 1789 of lettres de cachet, arrest warrants that could be obtained from the royal bureaucracy in order to imprison any family member whose behavior threatened the honor or financial security of the family. The following year, a new family court was established to deal with litigation or other issues involving family members. In the constitution of 1791, marriage was declared to be a civil contract, and in September 1792 a wide-ranging law made marriage easier (the range of impediments was reduced and the age of majority was lowered to twenty-one years from the twenty-five or thirty years then current in various regions of France) and divorce legal for the first time in France. Women and men were given equal access to divorce either by mutual consent, for reason of incompatibility, or for a number of specific grounds that included violence, insanity, immorality, and desertion.

The reform of family law under the French Revolution also transformed property relationships. In 1792 married women were granted property rights and in 1793 a new inheritance law mandated equality of inheritance among all children to replace the unequal distribution that had been the case in much of France before 1789. Earlier in the Revolution, the rule of primogeniture (inheritance by the firstborn) that had applied to noble estates was replaced by equality of inheritance in order to break up the financial power of the aristocracy.

The effects of these legal reforms on behavior varied. The marriage rate increased in many places, although it rose most dramatically in 1793 when the government introduced conscription and drafted bachelors before married men. Under the divorce law, which remained in force until 1803, there were perhaps as many as twenty thousand divorces, two-thirds of them in Paris alone. Given that France had a population of 28 million at the end of the eighteenth century, the number of divorces was low by modern European terms, but it was astonishingly high for the time. Outside Revolutionary France, divorce was either not available or, when it was permitted (in Protestant states), it was difficult to obtain and correspondingly rare. In England there were only 325 parliamentary divorces (including four by women) in the whole period from 1670 to 1857.

In France there was a surge of divorces in the first years the Revolutionary divorce law came into effect, as thousands of couples who had separated informally when divorce was not available took advantage of the new law to put their status on a legal footing. In the Norman city of Rouen, divorces averaged 161 a year during the first three years of the 1792 law, but the annual average fell to 67 in the following years. Some of the early divorces regularized separations that dated back decades. In Rouen one of the first divorces, in December 1792, dissolved the marriage of a woman whose husband had been missing more than thirty years: he had not returned from service in the Seven Years' War (1756–1763).

French Revolutionary law reforms generally improved the legal status of women within the family, a stark contrast to their continued exclusion from many other citizenship rights (such as the right to vote). Within the family, women gained equality of inheritance, and married women could own property in their own right and sue for divorce. Still, material circumstances often inhibited many women from using their new rights. Most divorces were sought by urban wives, who had the possibility of finding accommodation and work when they left their husbands. In contrast, divorces in rural areas were not only less common, but they were more likely to be sought by husbands.

French Revolutionary legislators not only reformed the law to reduce what they considered the tyrannical authority the Old Regime had given husbands and fathers but they aimed to foster harmony within the family. Divorce itself was viewed as a last resort, and it was hoped that its simple availability would lead husbands and wives to settle their differences amicably rather than persist in domestic conflict. Similarly, one of the purposes of giving all children an equal share of their parents' inheritance was to eliminate the jealousy and hatred that inequality of inheritance was believed to have fostered among siblings.

By these reforms of family law in the 1790s, and by other measures that included national festivals in honor of family values (such as fidelity within marriage and respect and obedience toward parents) the Revolutionary legislators intended to create the legal framework for a new family. In it the parents would remain married because they wanted to, not because they had no alternative; spouses and children would be treated as equals; and harmony, not conflict, would reign supreme. The Revolutionary family would thus embody the virtues of Liberty, Equality, and Fraternity that underlay the Revolution more generally. As a microcosm of the new state and society, the family would socialize and prepare men and women for their roles in the regenerated nation.

It was expected that a morally regenerated family would also lead to a higher marriage and birth rate and would thereby serve the demographic policies of the period. Improvements in family life would make marriage more attractive but, in case things did not work out, divorce provided a means of escape. Partly in order to boost the marriage rate, bachelors were subjected to policies that would induce them to marry. They were taxed more heavily than married men, levied at higher rates when forced loans were imposed to pay for the costs of war, and were conscripted before their married peers. The sentiment was often expressed that men who did not marry were asocial at best and antisocial at worst because they lived solitary, selfish lives and did not contribute fully to society or to population growth. Revolutionary legislators rejected proposals that bachelors be humiliated into marriage by being forced to wear ridiculous headgear or that any man not married by the age of thirty should be executed.

There is little evidence of much success in the goals that French Revolutionary family law set out to achieve. The marriage rate did rise in some years, but there is no reason to think that the character of relationships within the family was affected by the new policies. Even so, the French Revolution was an early and striking example of a state attempting to remodel the family and to align it with broader social and political agendas. Napoleon revised family law in a different direction to foster broader social and political agendas. The Code Napoléon (1804) made divorce more difficult to obtain, especially for women, and generally strengthened the authority of the father over his children and the power of a husband over his wife, reforms that reflected the authoritarian Napoleonic regime.


Elsewhere in Europe state intervention in the family increased at a more sedate pace. The nineteenth century was a particularly important period, for it saw a virtual revolution in statistics and measurement that enabled states to produce national censuses with greater precision and to collect social statistics of all kinds. As state bureaucracies expanded steadily and there was a dramatic extension of state activity in all areas of economic, social, and cultural life, the state regulation of the family intensified in many European countries. In England the first comprehensive marriage legislation was enacted in 1837, and twenty years later divorce was made available from the civil courts for the first time. A wave of secularizing and liberalizing legislation on marriage, separation, and divorce swept through Europe in the second half of the nineteenth century. Included were laws granting married women varying degrees of property rights.

The creation of new unified states in the nineteenth century intensified the role of the state. The unification of the German states under Prussian leadership led to the extension of secular law and, by the turn of the century, the promulgation of a uniform code of laws—including family law—for the German empire. For the most part the new imperial law was based on existing Prussian code, which tended to be more liberal than laws that had been in force in many other states that became part of the empire. In Italy, too, unification led to the passage of standardized state laws related to the family, a major source of conflict between the nation-state and the papacy.

State-sponsored education could also affect family relationships, particularly by the end of the nineteenth century. Governments used education to encourage women to be good wives and mothers, for example, reinforcing this emphasis in family ideology. Regulations in hygiene, infant feeding, and other matters, pushed through schools and some welfare agencies, could also constrain family behavior.


It was in the twentieth century, however, that the most serious attempts to regulate the family in the interests of the state were undertaken. Paradoxically, some of these attempts often involved weakening the family in order to reduce its effectiveness as a rival to the state in claiming the loyalty of individual citizens. There were hints of this tendency during the French Revolution, for during the Terror (1793–1794) the Jacobin regime introduced policies that were at odds with the more general tendency of Revolutionary policy of strengthening family relationships and the family as an institution. Jacobin legal innovations included making divorce much easier and removing procedures of the 1792 law that were designed to prevent the abuse of divorce; giving inheritance rights to illegitimate children; encouraging loyalty to the nation at the expense of family relationships if necessary; and framing educational reforms that would have children live in state boarding schools rather than with their parents. In the first half of 1794, during the radical phase of the Terror, thousands of children were given names (such as Liberté,Égalité, and even Guillotine) that linked them to the state rather than their families.

Underlying these policies (which were repudiated and repealed when the Jacobins were overthrown) was the belief that family sentiments inhibited the development of concern for society more generally. This belief was expressed early in the nineteenth century by a number of utopian socialists, including Robert Owen and Charles Fourier, who fostered alternative family systems in the model communities they devised.

A more sophisticated analysis of this sort was developed by Frederick Engels and Karl Marx, who argued that both the state and the family system at any given historical period reflected existing economic relationships. The nineteenth-century family reflected the values of the dominant bourgeoisie, and state and family would be transformed when the working class seized political power. Early in the 1917 Russian Revolution the Bolshevik government implemented family laws that reflected the Marxist view that the bourgeois family would disappear. Divorce was made available at the request of either or both spouses and contraception and abortion made freely accessible. The result was a high rate of divorce and a decline in the birthrate during the 1920s that so concerned the regime of Joseph Stalin that in the mid-1930s family policy was reversed: divorce was made much more difficult to obtain and contraception and abortion were officially regarded as antisocial because they ran counter to the state's need for a growing workforce.

Other authoritarian regimes of the interwar period also paid attention to the family. In Germany the Nazis manipulated family law for a variety of state purposes following Hitler's declaration in Mein Kampf that marriage "must serve the greater end, which is that of increasing and maintaining the human species and race. This is its only meaning and purpose." The 1935 Nuremberg Laws forbade marriage and sexual intercourse between a Jew and an "Aryan," while other laws prohibited the physically or mentally "unfit" from marrying. While groups classed as undesirable were thus excluded from the state-recognized family system, "Aryans" were encouraged to marry and procreate. A system of marriage loans was established, with a quarter of each loan being canceled with the birth of each child. Nazi divorce law also reflected the regime's demographic agenda. Grounds for divorce included not only disparaging Hitler, but also premature infertility and using illegal means (abortion had been banned for "Aryans") to terminate a pregnancy.

Extreme family policies and rigorous family laws were imposed by a number of authoritarian states in the first half of the twentieth century in order to achieve racial or demographic goals. Most governments opted for more moderate policies, even if their goals were often similar. Many states introduced laws based on eugenics principles that were designed to improve the physical and mental health of the population. In France, anyone intending to marry had to obtain a certificate that showed their health and family history of physical and mental disease so that the prospective spouse would be fully informed about potential risks to any children they might have.

Most governments attempted to encourage a higher birthrate, by some combination of family aid and regulation of certain types of birth control such as abortion. Fascist states went farthest in this direction, along with the Soviet Union after the more experimental 1920s, but France and other democracies joined in. Rarely, however, did these interventions affect family behavior, as birth rates continued to drop.

From the late 1960s, which ushered in a period of liberalization in social policies of all kinds, European states began to reduce the level of family regulation. A notable example was the introduction of no-fault divorce laws, under which divorce was available not on grounds (or faults) set out in law but after the couple had lived apart for a certain length of time. The effect of this legal reform was to allow spouses themselves to decide what grounds justified separating and, in the course of time, divorcing. Rather than be required to prove violence, drunkenness, cruelty, persistent drunkenness or some other state-designated ground, spouses could decide what circumstances or behavior were so intolerable as to make living together impossible.

States also accorded children greater rights with respect to their parents. Some, such as Sweden, went so far as to allow children to "divorce" their parents, but even where this was not possible, state agencies became far more willing to intervene to protect children when they appeared to be at physical or emotional risk if left in their families.

States also began to adopt more tolerance toward diversity in family forms. In the late twentieth century governments throughout Europe considered the issue of same-sex marriage. By the end of the twentieth century no state had given same-sex partners the right to marriage in exactly the same form as different-sex couples, although some (including the Netherlands, Denmark, and Sweden) permitted same-sex couples the same pension and fiscal rights. Among others, France had created state-registered unions or partnerships that had many of the financial and fiscal effects of marriage.

Trends in family policy in the late twentieth century have run in several directions simultaneously. On the one hand there has been a tendency not to interfere in aspects of family and marriage such as sexual behavior and to allow married couples to make their own decisions about divorce based upon their individual expectations and experiences. Similarly there has been a tendency for the state to blur the distinction between marriage, a state-sanctioned institution, and cohabitation, which historically has existed in tandem with but apart from the official family system.

While the state may be seen to be deregulating the family in these respects, it became more intrusive in others. Intervening to assure the rights and well-being of children is one example, as is the greater willingness of the state to have its police and courts intervene in domestic violence, an issue in which the state has historically been reluctant to intervene.


Since 1500 there have been many points of contact between the social history of the family and the history of the state's relationship to the family. The persistent aim of the state to regulate marriage, filiation, and family relationships has provided historians with vital documentation on the family, but it is necessarily biased in favor of the state's perception of the institution. Marriages are documented, but rarely are cohabiting couples. Divorces are recorded, but not couples who separated informally unless they came to the attention of a state agency.

Records of courts and other state agencies offer privileged insights into many aspects of the family, and they are the core of historical studies of themes such as divorce, domestic violence, and inheritance. Censuses and records of vital events (births, marriages, deaths, and divorces) provide the basic source material for the study of family demography and enable historians to determine such important information as marriage and birth rates, family size, age at marriage, the duration of marriages before divorce or death, and rates of remarriage.

This is not to discount the important records maintained by churches, nor the myriad other sources that are often useful to historians of the family: personal papers, family archives, and the records kept by institutions such as guilds. But state records, like the church records that preceded or ran parallel to them, have certain advantages. They tend to be maintained relatively intact and concentrated in accessible locations in state or regional archives. They also often offer series of documents (like court records that extend over centuries) that enable historians to track changes over the long, medium, and short term and to identify historical trends.

At the same time, it is important to recognize the limitations of any sources. Court records of family behavior highlight breaches of the law or challenges to legal prescriptions, but we cannot say with any certainty how representative they were of more general social behavior. Very few cases of domestic violence reached the courts because a degree of violence was permitted under the rubric of "moderate correction" and because women, who were most often the victims, were seldom in a social or economic situation to prosecute their husbands even if they wanted to. A woman whose family depended upon her husband's work and income for its survival had little interest in seeing him imprisoned or fined, for either penalty deprived the family of vital resources. In this respect, as in many others, the material and cultural circumstances of family law tended to neutralize many attempts the state might have made to change family relationships. They also mean that historians must always be very cautious about interpreting and generalizing from records of such cases.

Nonetheless, the relationship between state and family is an important one for social historians, not least in that it can provide historical indicators of the extent to which family-specific behavior can be influenced by state policy. Overall the conclusion must be that states have experienced little success in encouraging rates of marriage formation or fertility. Legal restrictions on divorce in the past might well have kept the number of divorces low, but they did not necessarily have much impact on informal separation.

Research on the history of the state, the law, and the family is more than an integral part of the history of the family because so many historians rely on state-generated documentation as their primary sources of evidence. In order to read them effectively they must understand the legal, judicial, and political contexts that produced the documentation. Although the state may have become so intrinsic to family systems as to be an invisible partner to those involved in historical families, it is an institution that historians of the family must confront explicitly in their research.

See alsoThe Welfare State (volume 2);Patriarchy; Sex, Law, and the State; Sexual Behavior (in this volume); and other articles in this section.


Abbott, Mary. Family Ties: English Families, 1540–1920. London, 1993.

Brundage, James. Law, Sex, and Christian Society in Medieval Europe. Chicago, 1987.

Burguière, André, et al., eds. A History of the Family. 2 vols. Cambridge, Mass., 1996.

Donzelot, Jacques. The Policing of Families: Welfare versus the State. London, 1980.

Duby, Georges. Medieval Marriage: Two Models from Twelfth-Century France. Translated by Elborg Forster. Baltimore, 1978.

Fuchs, Rachel Ginnis. Abandoned Children: Foundlings and Child Welfare in Nineteenth-Century France. Albany, N.Y., 1984.

Gauthier, Anne Hélène. The State and the Family: A Comparative Analysis of Family Policies in Industrialized Countries. Oxford, 1996.

Gillis, John. For Better, For Worse: British Marriages 1600 to the Present. New York, 1985.

Goody, Jack. The Development of the Family and Marriage in Europe. Cambridge, U.K., 1983.

Graveson, R. H., and F. R. Crane, eds. A Century of Family Law, 1857–1957. London, 1957.

Grossman, Atina. Reforming Sex: The German Movement for Birth Control and Abortion Reform, 1920–1950. New York, 1995.

Hammerton, A. James. Cruelty and Companionship: Conflict in Nineteenth-Century Married Life. London, 1992.

Hanawalt, Barbara. The Ties that Bound: Peasant Families in Medieval England. New York, 1986.

Hunt, Lynn. The Family Romance of the French Revolution. Berkeley, Calif., 1992.

Koven, Seth, and Sonya Michel, eds. Mothers of a New World: Maternalist Politics and the Origins of Welfare States. New York, 1993.

Lacey, T. A. Marriage in Church and State. London, 1947.

Lynch, Katherine A. Family, Class, and Ideology in Early Industrial France: Social Policy and the Working-Class Family, 1825–1848. Madison, Wis., 1988.

Moeller, Robert. Protecting Motherhood: Women and the Family in the Politics of Postwar West Germany. Berkeley, Calif., 1993.

Outhwaite, R. B., ed. Marriage and Society: Studies in the Social History of Marriage. London, 1981.

Ozment, Steven. Ancestors: The Remaking of the Premodern European Family. Cambridge, Mass., 2000.

Ozment, Steven. When Fathers Ruled: Family Life in Reformation Europe. Cambridge, Mass., 1983.

Phillips, Roderick. Family Breakdown in Late Eighteenth-Century France: Divorces in Rouen, 1792–1803. Oxford, 1980.

Phillips, Roderick. Putting Asunder: A History of Divorce in Western Society. New York, 1988.

Safley, Thomas Max. Let No Man Put Asunder: The Control of Marriage in the German Southwest: A Comparative Study, 1550–1600. Kirksville, Mo., 1984.

Staves, Susan. Married Women's Separate Property in England, 1660–1833. Cambridge, Mass., 1990.

Stone, Lawrence. The Family, Sex, and Marriage in England, 1500–1800. London, 1977.

Stone, Lawrence. Road to Divorce: England 1530–1987. Oxford, 1990.

Traer, James F. Marriage and the Family in Eighteenth-Century France. Ithaca, N.Y., 1980.

Usborne, Cornelie. The Politics of the Body in Weimar Germany: Women's Reproductive Rights and Duties. Ann Arbor, Mich., 1992.

Watt, Jeffrey R. The Making of Modern Marriage: Matrimonial Control and the Rise of Sentiment in Neuchâtel, 1550–1800. Ithaca, N.Y., 1992.

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The Family and the State

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