CHAPTER 2—REVIEW OF THE LITERATURE ON PLURAL MARRIAGE

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The literature surrounding the topic of plural marriage is very

diverse. Much literature is concerned with moral or religious issues,

while other works relate historical, sociological and economic

analysis, and others refer directly to legal issues. A great deal of the

literature refers to cultures and legal systems beyond the United

Kingdom, which is useful for comparative purposes.

This chapter will consider the various kinds of literature which

are available, and examine how they relate to the situation in

England and Wales. Case law will be considered in later chapters.

The major works referring to polygamy from the perspective

of English Law are the two reports of the Law Commission, in

1971 and 1985. The first examined the previous practice of English

courts refusing to grant matrimonial relief to those involved

in polygamous or potentially-polygamous marriages, and recommended

the abolition of that rule, which duly followed in the

Matrimonial Proceedings (Polygamous Marriages) Act 1972. The

report argued that parties to a polygamous marriage should be

encouraged to conform to English standards of behaviour by having,

as far as possible, the same rights and duties as other married

people in England but, as Sebastian Poulter pointed out in 1986,

could easily be seen as permitting greater diversity by increasing

legal recognition of “an alien custom”.

The report limited its consideration to the recognition of

polygamous marriages for the purposes of family law and social

security legislation, and did not deal with other important areas of

the law, including the crime of bigamy.

The second Law Commission report considered the need for

reform and certainty with respect to the recognition of potentiallypolygamous

foreign marriages, and recommended that such

marriages should be recognised by the civil law as if they were

monogamous. This corrected a curious decision of the Court of

Appeal which had meant that a marriage, celebrated in a

jurisdiction which allowed for polygamy between a man with an

English domicile and a woman with the foreign domicile, would

be treated differently than a similar marriage where the man had

the foreign domicile and the woman had the English domicile.

The report did not make any recommendation concerning the

recognition of actually polygamous marriages and, as with the earlier

report, had a very limited remit that did not include the criminal

law.

The recommendations of this second report led to the Private

International Law (Miscellaneous Provisions) Act of 1995.

Much of the rest of the literature on English law is, to some

extent at least, dated by the adoption of the Law Commission

recommendations, which tend to cover the same areas of discussion,

but which occasionally venture into other territory.

The best of these is Poulter who, in one article in 1976,

considered the original reasons given for not recognising potentiallypolygamous

marriages, elsewhere attempted to formulate a general

theory for the recognition of such ethnic minority customs and, in

another place, considered the development of the law, policy

considerations, the many types and varieties of legal recognition

given to actual or potentially polygamous marriages, and the scope

for reform. This includes some brief consideration of the crime of

bigamy, human rights issues and how they interact with issues

related to sexual discrimination. The conclusions worthy of note

are that polygamy does not restrict Muslim religious practice as

Islam does not require polygamy, but merely permits it; that, where

religion requires polygamy, courts have held that bigamy laws do

not unnecessarily interfere with religious rights, and that the

European Convention requirements concerning gender equality

in marriage would present difficulties for polygamy that tends to

provide different remarriage rights for men and women.

G Bartholomew considers bigamy in some detail (in “Polygamous

Marriages and English Criminal Law”; (1954) 17 MLR 344)

but his arguments largely rest on the assumption of the continued

existence of “common law marriage”, which is supported by some

more recent authors, such as Hall (in “Common Law Marriage”;

(1987) 46(1) Cambridge Law Journal 106) and Lucas (in his

“Common Law Marriage”; (1990) 49(1) Cambridge Law Journal

117), but was explicitly denied by the Law Commission (on page

7 of their 1971 report). He suggests that any form of marriage

involving a declaration of consent would be recognised in English

Law, and that this would include informal Islamic marriages, but

there is no case law to show this, and what there is tends to point

in the opposite direction, not recognising such marriages for offences

relating to solemnisation. His assertion that a potentiallypolygamous

marriage would be a good first marriage for a prosecution

for bigamy has also not been accepted in later decisions of the

courts.

R D Leslie (in his “Polygamous Marriages and Bigamy”; (1972)

17 Juridicial Review 113) makes similar suggestions for reinterpreting

the law of bigamy, to avoid the anomaly of a polygamous

man being held civilly, but not criminally, bigamous but the case

of R v Sagoo shows that the law persists in maintaining this anomaly.

C G J Morse identifies 5 reasons from literature, rather than

case law or statute, justifying the criminal prohibition of bigamy,

and finds it frustrating that the courts have not allowed these reasons

to affect their decisions (see his “Polygamists and the Crime

of Bigamy”; (1976) 25 ICLQ 229). Neither he, nor the writers he

quotes (Williams, H L A Hart in his “Law, Liberty and Morality”

(1963) London: Oxford University Press; J A Andrews in his “A

Licence for Bigamy?” [1963] Crim. L.R. 261; and Polonsky in his

“Polygamous Marriage: A Bigamist’s Charter?”; [1971] Crim. L.R.

401, provide evidence that any of these reasons are used by courts

in their decisions, except for the argument that bigamy is “the

prostitution of a solemn ceremony”, which shall be examined later.

T C Hartley considers the policy basis of the law, concentrating

on the Conflict of Laws, although elsewhere he comments

briefly on bigamy. (see his “Polygamy and Social Policy” (1969)

32 MLR 155 and his “The Policy Basis of the English Conflict of

Laws of Marriage.” (1972) 35 MLR 571)

Glanville Williams gives a brief, but powerful, critique of the

offence of bigamy and in particular of its uncertain application to

British subjects abroad, and the opportunities that one of its defences

provides to the determined serial bigamist, suggesting how

it could be replaced.

Keith Soothill and others question the Home Office classification

of bigamy as a sexual offence, in finding no relation between

the criminal careers of bigamists and sex offenders, and increasingly

lenient treatment by the courts and police, but seeing closer

binds with those of crimes of deception. (see Soothill K, Ackerley

E, Sanderson B & Peelo M, “The place of bigamy in the pantheon

of crime?” Med. Sci. Law (1999) 39 (1) 65)

David Pearl lists some reasons why changes to legislation on

the Indian sub-continent may mean there are less cases concerning

polygamy in the future, and seeks to provide legal practitioners

with guidance across family and immigration law, and with

regard to legitimacy and tax issues, but completely ignores

bigamy (even in describing cases where the English offence is

made out)

Hence, the literature surrounding English Law of plural marriage

tends to split into two types. That which considers the civil

law is fairly continuous, but much of the recommendations within

it have been accepted, and there is little to show the current state

of the law, or further developments. That which considers the

criminal law of bigamy, tends to relate to only a few cases, and

ventures suggestions for why the law is the way it is, or for how it

should be, but the literature does not tend to support the reasons

POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 17

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for the crime being in place with evidence of these reasons being

used in judicial decisions.

Furthermore, most of the literature was generated long before

human rights issues have gained their current prominence, and

with no view of incorporation of the European Convention on

Human Rights. Hence the literature is largely silent on human

rights issues, and where they are mentioned they are normally

passing references which are not fully developed or tested, and

tend only to refer to the rights of religions that allow but do not

require polygamy.

The relevant English academic literature on this part of Islamic

law is not as extensive. Pearl covers the nature of laws in Islamic

countries, and in particular those with a history of providing

immigrants to the United Kingdom. We see that countries on the

Indian sub-continent have restricted the availability of polygamy

to their citizens, and that this may have a corresponding effect on

the numbers of likely cases in England involving nationals of those

countries.

Jamal Badawi, in his American Trust Publications “Polygamy

in Islamic Law” argues from an Islamic perspective that polygamy

is not immoral per se, owing to its presence in Jewish and Christian

scriptures, and that the Qur’an permits polygamy in order to show

compassion to widows and orphans, with the restrictions that a

man may not have more than four wives and that he must deal

justly with them. Badawi appears decidedly lukewarm about

polygamy, aiming to prevent it tainting the Islamic faith, and

describing it as the lesser of two evils, but it is clear that where it is

the lesser of those evils it may be regarded as necessary, and that

societies which profess monogamy are perceived by Muslims as

having greater social problems of infidelity and family

breakdown.

The other main source of legal writing on the subject of polygamy

is generated by the experience of the Mormons in the

United States, and the response of the courts to their religious

faith and practices.

Bud Ryerson (in “Religious Freedom, Polygamy and the Law”,

available online) and Elizabeth Harmer-Dionne (in “Once a

peculiar people: Cognitive dissonance and the suppression of

Mormon polygamy as a case study negating the belief-action

distinction.” (1998) 50 Stanford Law Review 1193) outline and

criticise the reasoning of the US Supreme Court for upholding

laws that proscribed bigamy in direct conflict with Mormon

religious belief of the time, which linked the practice of polygamy

to the individual Mormon’s salvation in the afterlife, effectively

commanding it. It is worth noting that US laws on bigamy are, in

some senses, more extensive in their scope than the English

counterpart. At the time of the major cases, and still in some states

today, the law defines cohabitation as marriage for the purposes of

bigamy laws. Therefore, the legal reasoning in American cases is

concerned with the prohibition of the practice of polygamy, and

not just the public recognition of it. The cases are of interest to

English Law in that the reasoning depends on considering freedom

of religion and the extent to which the state can infringe upon it.

In considering this, whether it is possible to distinguish between

beliefs and actions, and the concept of what is necessary in a

democratic society, the cases provide a few precedents which can

assist our understanding of Convention points.

David Chambers considers the parallels between federal interference

in state law to regulate polygamy and its more recent actions

to prevent the recognition of same-sex marriage, making some

helpful analytical points about modern debates as he does so. (see

his “Polygamy and Same Sex Marriage”; Hofstra Law Review, 26(1)

available online).

David Troy Cox uses recent US law to show how the law can

act as a mediator between conflicting groups, which can be a helpful

way of considering certain arguments related to freedom of

expression and the possible legal development of Convention points

related to polygamy. (see his “The Law as a Mediator of Identity

Conflicts”; unpublished; available online)

There are a variety of perspectives represented in the writing

about plural marriage and which can be of assistance in considering

the treatment of the subject in English law.

B. Carmon Hardy (in “Solemn Covenant: The Mormon Polygamous

Passage” (1992) Chicago: University of Illinois Press),

Richard Van Wagoner (in his “Mormon Polygamy, A History”

(1989)Utah: Signature Books) and Martha Bradley (in “Kidnapped

from that Land: The Government Raids on the Short Creek Polygamists”

(1993) Salt Lake City: University of Utah Press) between

them give an extensive account of the experience of Mormons

and the consequences of their belief in polygamy from the

critical periods of the 19th Century almost to the present day.

This helpfully documents the impact of anti-polygamy legislation

on a large group of people over a prolonged period of time, and

helps to establish reasons and perspectives for understanding the

change in Mormon doctrine over this period. The largest Mormon

denominations now no longer require the practice of polygamy for

salvation, and have effectively minimised the doctrine’s involvement

in their religious lives, but Fundamentalist groups continue

to practice polygamy. This is largely ignored by the authorities,

but occasionally leads to prosecutions.

Other writers concentrate on the sociological and

anthropological study of polygamy. This includes Peter

Bretschneider’s analysis of 186 polygamous societies, whose

statistical evidence as to societal conditions associated with

polygamy is useful for consideration of the links between polygamy

and social structures in a democratic society (see his “Polygyny: A

Cross-Cultural Study” (1995) Stockholm: Uppsala University

Press). Also of interest are Phillip Kilbride’s analysis of new family

types (in his “Plural Marriage for our times—A reinvented option”

(1994) Westport, Connecticut; Bergin & Garvey), and Audrey

Chapman’s suggestion that polygamous family types may be

particularly suited to modern societies (in her “Man-sharing:

Dilemma or Choice” (1986) New York; William Marrow and

Company). Irwin Altman and Joseph Ginat have produced a

longitudinal study of modern polygamous communities in a western

20 SAMUEL CHAPMAN

democratic context (“Polygamous Families in Contemporary

Society” (1996) Cambridge: Cambridge University Press), and Janet

Bennion (in “Women of Principle: Female Networking in

Contemporary Mormon Polygyny” (1998) Oxford: Oxford

University Press) has made a particular analysis of the effects of

modern polygamous practice on the women who are involved,

which is useful for considering points about whether women’s rights

would be compromised by allowing polygamy.

The effect on women is also considered by economists such as

Gary Becker, (in his “Treatise on the Family” (1981) Cambridge,

MA: Harvard University Press), who argues that polygamy is more

commonly found than polyandry because of the preference people

have towards raising their own children rather than someone else’s.

As the father of a child is not readily known when a mother has

several husbands, each husband effectively lowers the productivity

of the other husbands by increasing the uncertainty that subsequent

children are theirs. This reduces the return on investment

from children and so polyandrous systems would not be expected

to be able to compete against polygynous systems. Thomas

Bergstrom (online in “On the Economics of Polygamy”, University

of Michigan”) adds that extra husbands do not significantly

increase fertility rates for a woman, whereas extra wives do for a

man, and therefore there is a natural tendency which favours polygyny

over polyandry. They both are joined by David Friedman

in arguing that polygynous societies can be better for women than

for men, by raising the competition amongst men and increasing

the value of wives.

The position of women in polygamous society has also been

addressed from a historical perspective by John Cairncross, although

his analysis is limited to polygamous experiments in western

Christian societies. He judges that the women in the polygamist

societies he studied were at least no worse off than contemporaries

in other groups, but it must be acknowledged that there were very

few groups available for him to study. However he also gathered

together the writings of “polygamophile” Christian authors and

reckoned them to give women a higher status than their

counterparts.

Other historical comment leads into discussion of Christian

theology as Cairncross, Leo Miller (in his “John Milton among the

Polygamophiles” (1974) New York: Leowenthal Press) and Ursula

Vogel (in her “Political Philosophers and the trouble with

Polygamy”; The History of Political Thought Volume XII (2) 1991,

p229) all recount many instances of prominent Christian historical

figures who defended or advocated polygamy, especially during

the reformation. Suggestions of polygamy as a possible resolution

to Henry VIII’s difficulties were considered by both Protestants

and Catholics, and Phillip, Landgrave of Hesse in 1541, and James

1’s grandson Charles Louis in 1658, the Prince Elector of the

Rhenish Palatinate, both married second wives without divorcing

the first. Phillip’s marriage took place with the express approval of

reformers such as Luther and Melancthon. Vogel interprets

continuing European debates about polygamy as a “struggle for

dominium over the province of knowledge” whereby there is a

continual attempt “to free the terrain of moral and political

philosophy from the jurisdiction of religious doctrine” (see her

“Political Philosophers and the trouble with Polygamy”; The History

of Political Thought Volume XII (2) 1991, p229). This echoes

earlier suggestions that bigamy became a crime in England in a

struggle between the church and the state.

The final batch of writers to be considered cast doubt on the

supposition that the church should be anti-polygamy. The English

poet and statesman John Milton, who was born just after bigamy

was made a crime, was a dedicated proponent of polygamy, basing

his arguments entirely on Biblical sources. His De Doctrina

Christiana was dedicated to Cromwell but only published in 1825,

over 150 years after the author’s death. While this is clearly a

minority opinion, it is also an opinion which has had, and continues

to have, some currency wherever organisations take the name of

Christian, whether it be Catholics such as Eugene Hillman, African

Christians such as David Maillu, Mormon Fundamentalists such

as Ogden Kraut, Methodists like Westley Hall and Martin Madan,

or evangelical Protestants like S. John Butt. (see Hillman E,

Polygamy Reconsidered—African Plural Marriage and the Christian

Churches (1975) New York: Orbis; Maillu D G, Our Kind of

Polygamy (1988) Nairobi: Heinemann Kenya; Kraut O, Polygamy

in the Bible (1983) Utah; Pioneer Press; Butt S J, “Inside Christian

Polygamy and the Patriarchal Christian Movement”)

In conclusion, it is clear that the literature on plural marriage

is very diverse, and little attempt has been made to draw it all

together into a coherent whole. The literature that directly refers

to the law is largely out of date in the case of civil law, and of

questionable relevance in the case of criminal law. Also there is

sufficient legal precedent outside the UK to compare with British

thought, and sufficient argument or research in many different

spheres of knowledge which can illumine the assumptions made

by the law and provide further food for judicial or academic

thought. While a completely comprehensive integration of these

many parts is outside the scope of a work of this size, it does present

an opportunity to begin the process of relating the various pieces

together, and fitting them to the modern world.