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Bentham, Law and Marriage: A Utilitarian Code of Law in by Mary Sokol

By Mary Sokol

Sokol locations Bentham in his ancient context, finding his inspiration in the past due eighteenth-century debates on felony, political, philosophical and literary concerns of marriage. >

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Extra resources for Bentham, Law and Marriage: A Utilitarian Code of Law in Historical Contexts

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To answer the question of whether or not Bentham intended more than legitimating concubinage requires a brief survey of his views on equality between men and women. I do not refer here to the nineteenth-century ideas about the political or legal equality of the sexes associated with John Stuart Mill, but to notions of equality in nature. 129 By the eighteenth century, ideas about marriage and the relations of men and women within marriage had changed. Earlier claims that families represented a microcosm of the commonwealth and that women must necessarily be subject to the rule of men, just as a king rules his subjects,130 had given way to an understanding that the relationship between men and women in marriage was contractual.

Are for the most part intended for her protection and benefit. ’134 Blackstone, who evidently read and admired Pufendorf, stopped short of arguing for equality, although neither did he cite greater male physical strength as a justification for inequality. To resolve questions about relations between men and women, Bentham did not refer to the law of nature but to the principle of utility. Notably, when he said that the pleasure derived from the union of the sexes was a pleasure, possibly the greatest pleasure, he made no distinction between men and women.

27 SECULAR MARRIAGE Bentham intended his law of marriage to be secular. So, in his code, forming a marriage would depend on the law of contract and not on church solemnization. 28 His silence here may be because he wanted to avoid confrontation and controversy; after all, in the 1780s he expected to publish his civil and penal codes, and hoped too that the penal code would be enacted by some benevolent despot, perhaps Catherine the Great of Russia, if not by the English Parliament. 31 But, whatever his opinions, until their jurisdiction over marriage ended in 1857,32 the English church courts retained their jurisdiction over marriage, and the church claimed a special interest in marriage.

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