The Feminist Origins of Family Law: Elizabeth Cady Stanton's Contributions to the Field

Abstract

Elizabeth Cady Stanton has been described as the most significant woman history has ever forgotten. Due to her radical feminism and the rise of conservative women leaders in the suffrage movement, much of her work and its significance have been lost to history. Scholars in women's studies and history beginning in the 1970s began to rediscover Stanton's important contributions to the feminist movement. Omitted from the scholarship, however, is an analysis of the importance of her contributions to the law, and in particular to the area of family law. Stanton was a holistic legal thinker, arguing that women's suffrage alone was insufficient for equality, and advocating universal reform of the laws of the family, employment, and community. This research intends to examine these legal writings of Stanton's on divorce, marriage, marital property, custody and domestic violence to identify her theories and proposals for equality within the family. By exploring the historical underpinnings of feminist legal theory as articulated by Stanton, this research hopes to inform the continuing debates over legal rights of women within the family.

The first objective of the research is to explore Elizabeth Cady Stanton's theories, writings, and advocacy of women's rights within the family. Stanton's comprehensive approach to equality for women under the law focused on marriage and mothering - what she believed to be the pivotal issues for women's ultimate social and legal equality. Stanton used her personal experience as a wife and mother of seven children as well as her de facto legal training to develop constructs reforming the legal and social confines of women in the family. The research explores each of the areas of family law that Stanton addressed, including the marital partnership, wives' marital names, marital property, divorce, domestic violence, and child custody. Stanton's work reveals an abundance of writings and advocacy on these feminist familial principles generally thought to be of late twentieth-century origin. Thus, a primary significance of the research is its identification of long-held, rather than newly-formed, notions of women's equality of legal rights within the family.

Secondly, the research focuses on Stanton's theories of legal feminism evidenced in her writings on domestic relations. Her work addressed three philosophical principles: spousal equality, mothering differences, and legal feminist theory. First, Stanton advocated women's equality in the marital partnership. Her specific proposals with respect to no fault divorce, marital governance, domestic violence, and joint marital property rights were designed to remove existing legal barriers to marital equality. Second, Stanton argued the law should be reformed to recognize the different, and in her view, superior, parenting of mothers. This theory supported her advocacy of legal reform now embodied in the modern concepts of maternal preferences or the "tender years presumption", which award custody of young children solely to mothers. Finally, the research explores the contrast of Stanton's equality views with those of her difference views, which foreshadows the twenty-first century feminist debates over the seemingly competing roles of feminism and motherhood. Stanton's insights as to how to reconcile these two views of women in the family thus potentially contribute to the ongoing debate in family law in the courts and in the American Law Institute over the rights of women in the family and society.

Keywords: feminism, legal history, family law, women's rights, marriage, mother

JEL Classification: K10