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"The Rule of Love": Wife Beating as Prerogative and
Privacy
Reva B. Siegel
In this case study, Professor Siegel analyzes the modernization of
marital status law, examining the regulation of domestic violence
as it evolved from a law of marital prerogative into a law of
marital privacy. Modernization of a status regime occurs when a
legal system enforces social stratification by means that change
over time. During the nineteenth century, courts repudiated a
husband's prerogative to inflict corporal punishment on his wife,
yet began to grant men accused of wife beating a variety of formal
and informal immunities from prosecution, in order to promote
domestic harmony and preserve family privacy. Professor Siegel
demonstrates how evolving social mores and woman's rights agitation
prompted the modernization of this body of status law, transforming
a legal prerogative justified in tropes of hierarchy into a legal
immunity justified in tropes of interiority.
Civil rights reform plays a key role in the modernization of racial
and gender status law. As civil rights agitation draws the
legitimacy of a status regime into question, legal elites will both
cede and defend privileges, continuing to reform the rules and
justificatory rhetoric of the regime, until the contested body of
status law can once again be defended as reasonable. This dynamic
of "preservation through transformation" translates a discredited
status regime into a more contemporary, and less controversial,
social idiom. Thus, civil rights reform may improve the welfare of
subordinated groups, but it also enhances the capacity of the legal
system to justify the manner in which it distributes material and
dignitary privileges among social groups. A final section employs
this account of modernization to analyze equal protection doctrine
and the Violence Against Women Act, suggesting that civil rights
reform is continuing to modernize the rules and rhetoric of racial
and gender status law.
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