At the mid-point of the last century, Dean Roscoe Pound wrote that the legal profession constituted "a learned art as a common calling in the spirit of public service." (1) Yet, contrary to this wonderfully noble appreciation of our profession, lawyers may sometimes take an unreflective and mechanistic approach when counseling a client who is considering a divorce. (2) Over the last five decades, the national divorce rate has risen to approximately fifty percent. (3) Recent significant statistical evidence indicates that the culture of divorce has left neither divorced spouses nor their children in a more advantageous situation. (4) The natural law tradition has long perceived a nexus between the general well being of society and the health of marriage and family life. (5) In the natural law tradition, if marriage is understood as a private, inner experience rather than an objective social reality, the social foundation is destabilized. (6) This essay suggests that natural law affords a more complete and balanced understanding of marriage and family life than the present mainstream perspective, which has its roots in liberal theory. (7)
It is far beyond the modest aims of this essay to provide a complete historical and philosophical analysis of the natural law tradition on marriage or of the developments that have led to the demise in the United States of that tradition. (8) Rather, I shall discuss the loss of the natural law perspective from legal theory. Following this prolegomenon, I shall attempt to sketch in broad strokes two features of the tradition, especially as retrieved in the philosophical writings of Karol Wojtyla. (9) The first concerns marriage and family as the fundamental human community, and the second considers marriage as a virtuous relationship. The two features are contrasted with certain aspects of the understanding of marriage derived from liberal theory. The essay concludes with practical suggestions for the legal profession and legal education with regard to counseling clients about marriage.
At the outset, it must be mentioned that this essay is not intended to propose that divorce be eliminated from the law of the state. (10) To be sure, it would probably be impossible to return our present pluralistic society to a time when divorce was not an option. (11) Yet the culture of divorce and its consequences for individuals and society indicate that perhaps the legal profession ought to pause and reflect about the impact of the current state of affairs. (12) In contrast to an approach in which the lawyer unreflectively views facilitating a divorce as a mechanistic procedure, the natural law alternative suggests, when counseling clients, lawyers might benefit by appreciating the profundity of the marital relationship. Such an appreciation would be beneficial in maintaining a balanced perspective on what is at stake for individuals, spouses, children, and society as a whole.
I. The Demise of the Tradition.
During the renaissance of law from the eleventh to the thirteenth centuries, the medieval canonists integrated various aspects of religious and secular thought to create a natural law theory of marriage. (13) The theory held that marriage was a permanent association between a man and women intended to nourish the bond of conjugal love and to enable the procreation and education of children. (14) Among the principal effects of the new legal theory were greater equality for the wife; a focus on the mutual and free consent of the spouses as necessary to the validity of marriage; and the possibility of permanent separation from bed and board in cases of adultery, desertion or protracted ill treatment. (15) Although the theory was consistent with the Christian view of marriage, it was thought to stand independent of revelation; it viewed marriage as an association derived from nature for the good of individuals and especially for society. (16)
A sea change in the understanding of law itself during the eighteenth century belied the general concept of the natural law as well as its position on marriage. …