CHAPTER 6–TESTING ASSUMPTIONS AGAINST RESEARCH AND DATA

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There are a number of forms of information against which the

identified assumptions can be tested. These range from statistical

information concerning characteristics of the UK population, to

economic theory, to religious history, and to fully-fledged anthropological

research. It should, however, be noted that much of this

information is not generated as part of a debate on polygamy, or

on its relationship with the law.

The work in economics tends to be an interesting way of

modelling economic rules, and the anthropological work has

involved studying modern groups, rather than suggesting social

change. In fact, the various types of information have largely

developed in a context where, as in the UK, polygamy has not

been recognised as valid and bigamy has been a crime. Consequently,

the literature does not tend to be part of an ongoing debate on the

merits of a particular lifestyle and, for that reason, combined with

the lack of a real prospect of the legal recognition of polygamous

conduct, it needs to be treated with caution. This study can establish

whether there is research or data which affects the validity of

assumptions made by the law, but must acknowledge that, in the

lack of a developed debate, much of the information is one-sided.

In short, those who may be opposed to polygamy have had little

incentive to put forward their arguments, and so the

assumptions may be questioned, but it is difficult to deal with

them conclusively.

The first assumption that can be tested is the religious basis of

the law. It is worth noting that the courts have retreated from the

religious basis as time has gone on. Instead of referring to

“Christian” marriage, they refer to “monogamous” marriage, but

this is a slightly revisionist tendency, as it is clear that many of the

initial justifications of the current law are motivated or explained

in religious or moral terms.

It is difficult to measure the strength of religious feeling or

community commitment in 1604 when the bigamy law was first

enacted, but the main political contests were between Protestants

and Roman Catholics and many political issues in the 17th century

possessed a considerable religious element. As evidence of this

it can be noted that the next law on the Statute book was the

Witchcraft Act, showing great concern over religious issues. It seems

safe to say that religious feeling was perhaps integral to public life

and that church membership was high.

In modern times we are more able to assess religious belief by

measuring church membership and attendance. Dr Peter Brierley

at Christian Research estimates a growth over the last century in

the numbers of UK citizens who are nominally Christian (from

32.8 million to 37.7 million), but this has been far outstripped

by population growth, so that the proportion of nominal Christians

in the population as a whole has dropped from 86% to 64%,

whereas nominal members of other religions have grown from

0.25% of the population in 1900 to 4.5% in 2000. When measured

in terms of church membership, the over 8.5 million UK

church members in 1900 had decreased to just over 6 million in

1998, and in terms of Church attendance there was a drop from

10.2 % of the population to 7.7% of the population in England,

and from 12.5% to 6.6% in Wales, in the last twenty years alone.

(See his “UK Christian Handbook: Religious Trends” (2000) London:

Christian Research)

It appears that even over the last century, there has been

considerable change in the numbers of people with a religious

affiliation, in the strength of the affiliation, and in the way in

which that affiliation is demonstrated. It is therefore likely that

the commitment of the population to “Christian” ideas about

marriage may be considerably less than it was previously, and certain

aspects of this will be examined later.

However, irrespective of the effect on the assumptions of the

current level and quality of religious commitment, there is evidence

to suggest that the ideas that “Christian marriage is everywhere

the same” and that it is necessarily monogamous are open to

question. Even Poet and Anglican clergyman John Donne, a

favourite of King James 1, wrote “How happy were our sires in

ancient time, who held plurality of love no crime”, Eugene Hillman

gives examples of African churches that accept polygamous

members, and it is clear from a number of writers identified earlier,

both that there is a significant minority opinion across Christendom

which recognises polygamous marriage and that this has been the

case for much of the last millennium at least. (see Cairncross, and

Hillman E, Polygamy Reconsidered—African Plural Marriage and

the Christian Churches (1975) New York: Orbis)

The Victorian judges who pronounced on the reasons bigamy

was a crime were concerned to prevent it as a great moral evil,

similar to fornication and seduction that “no-one would hesitate

to call wrong”. There is evidence to suggest that the position has

changed somewhat from that time. Keith Soothill found “a growing

leniency in sentencing convicted bigamists” between 1973 and

1995, leading to a situation where generally more people were

cautioned for the offence than prosecuted, and in 1994/95 only 3

of 36 offenders went from court to prison, and only one for a

sentence of greater than 1 year (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). This stands in contrast to the

initial fixed sentence of death in the Act of 1604, and the ability

to sentence for up to seven years imprisonment, the severity of

which persuaded the Victorian judges that an intent to do moral

evil was a necessary part of the offence.

There certainly seems to have been a considerable change in

attitudes towards sexual morality. If it ever was true to say that noone

would hesitate to call fornication and seduction wrong, it is

not true now. It is of course difficult to measure seduction and

fornication but some help can be gained from examining trends in

marriage and cohabitation.

The Office of National Statistics has found that 60% of couples

marrying in 1994 had cohabited first, which broke down into

76% of civil marriages and 41% of religious marriages, and that

16% of 25-34 year-olds were cohabiting in 1996. This would

tend to establish that even those marrying would not seem necessarily

to view “fornication” as wrong, undermining the assumption

of a common moral judgement accepted by the population.

The point on legitimacy also seems to have lost its relevance

from the time when Tolson was decided. Official estimates of births

outside marriage hover under 5% for the 400 years between 1550

and 1950 but had increased to 38% by 1998. While legitimacy

may still be preferable, it is difficult to sustain an argument that

bigamy makes much of a difference. Indeed, legal recognition of

polygamy would legitimise children who are currently counted as

being born “outside marriage”.

The rise in illegitimacy and cohabitation tell one half of the

story of the decline in the social centrality of marriage. In the last

30 years the annual number of weddings has declined by over

35% and the percentage which involve religious ceremonies has

fallen from 60% to just over 30%.

Furthermore, it is no longer as easy to claim that polygamy is

“foreign to our ideas” and “practically unknown”. The numbers of

the population which subscribe to a religion that allows or values

polygamous practice has grown considerably. The largest Mormon

denomination teaches that polygamy can be good but, as it is

illegal in the United States, prevents its members from engaging

in the practice. The Mormon faith has grown from less than 6,000

UK followers in 1900 to over 180,000 in 1998, the number of

active Muslims has increased from 30,000 in 1960 to over 675,000

in 2000, and the number of active Hindus has increased from

40,000 in 1960 to 165,000 in 2000. This makes a total of over

one million people who actively subscribe to religions that include

some form of commitment to polygamy.

This all begins to undermine the notion that the monogamous

marriage ceremony is a respected and valued institution that must

be protected from abuse. In particular, it challenges the assumption

that certain forms of behaviour are abusive to the institution. The

law is not clear as to what constitutes an abuse, or what morally

wrong intent is needed for the act. If polygamist Mormons or

Muslims simply want to use a ceremony for purposes of social

recognition, and if no party to the proceedings is deceived, it could

be argued that the ceremony is not ‘profaned’ or prostituted,

because the requisite intent may not be present.

The remaining moral/social concern is related to the concepts

of scandal and public decency. It could be argued that if public

values have moved so far from enshrining protected positions to

marriage and legitimacy, that there is less of a strong common

public opinion to be scandalised. That is not to say that if polygamists

were to marry in the UK that it would not attract media

comment, as it undoubtedly would, but it is not clear that it would

be as offensive to a current generation as it would to that of

100 years ago, and it is not clear how offensive it would need

to be to rate as scandal sufficient to justify the existence of the

offence.

The final such issue is the assumption that there are two types

of marriage that are different. As has been commented earlier, T C

Hartley has argued, and the Law Commission has accepted that

the purpose and functions of polygamous and monogamous marriage

are similar, and the law now tends for civil purposes to treat

polygamous marriages as if they were monogamous, effectively

changing the nature of the distinction. This is combined with a

recognition by judges that even monogamous marriages can be

rendered potentially polygamous depending on domicile and religion.

It then becomes easier to question the assumption. Is it that

the marriages are different, or that we apply different rules to them

at different times? It is possible that the underlying marriage is the

same, and it is the rules that change.

This also combines with an analysis of the divorce rate. Divorce

has only recently become widely available, but the number of

divorces each year has steadily increased to a level where it almost

matches the number of first marriages and, significantly, the

number of remarriages each year is also not far behind. Hillman

describes this as serial polygamy, where people in fact may not

marry for life, and instead have a number of marriage partners,

only different from polygamy in that the partners are not held

simultaneously, but in succession. This provides a further similarity

between the institutions. (see Hillman E, Polygamy Reconsidered—

African Plural Marriage and the Christian Churches (1975) New

York: Orbis)

It is not possible to measure levels of adultery, but this provides

an informal path for sexual diversity, which is generally beyond

legal sanction, and which also suggests that Western marriage may

often be only formally monogamous. The point is perhaps most

succinctly made by Mahomet Effendi with the statement (quoted

in Cairncross) that “We Turks are great simpletons in comparison

with the Christians; we are at the expense and trouble of keeping a

seraglio each in his own house; but you ease yourself of this burden

and have your seraglio in your friends’ houses.”

The final and most topical assumption to be considered here

is that polygamy is in opposition to women’s rights and is in some

way oppressive. The literature in this area in particular needs to be

treated cautiously, as there has not been a great debate for writers

to respond to, and the contributions in this area are therefore

particularly tentative.

Sebastian Poulter is one writer very concerned that polygamy

conflicts with women’s rights. In both the African context and

with reference to British Muslims he concludes that polygamy

cannot “pass the human rights test” because it is sexually

discriminatory. His argument is that the UK is a signatory to the

International Convention on Civil and Political Rights, and

therefore that this will affect public policy considerations. Article

23 of the Convention provides that “States Parties to the present

Covenant shall take appropriate steps to ensure equality of rights

and responsibilities of spouses as to marriage, during marriage and

at its dissolution.” Furthermore, while Article 8 of the European

Convention of Human Rights provides for the right to marry, article

14 states that “The enjoyment of the rights and freedoms set forth

in this Convention shall be secured without discrimination on any

ground such as sex…” Poulter therefore suggests that African and

Muslim polygamy is sexually discriminatory in an important

respect, namely that it allows the man to have two wives, but does

not allow the wife to have two husbands, giving the husband the

exclusive “right to fundamentally and unilaterally alter the family

life of his existing spouse or spouses”.

However, while Poulter seems to be one of the few to consider

plural marriage from a human rights perspective, he does so only

briefly, and there is more to be said in terms of the alleged conflict

with women’s rights.

Firstly, there is an unstated assumption that adding a second

wife to a polygamous family is something done by the man to his

first wife, but this forgets the case of Quorashi v Quorashi, where

the court held that a wife was justified in deserting her husband

when he took a second wife because “in acting without her consent

he had taken a grave step which seriously imperilled the

continuance of their marriage”. The implication that a first wife’s

consent is an issue can mean that polygamy is not purely about

the man’s rights, but about his current wife’s rights also. If a wife

consented or desired such a union, for whatever reason, would it

not be up to her to decide whether her rights were being

compromised? Indeed, for other purposes Poulter himself quotes a

letter from a Mormon wife mentioning the “family and kindred

ties which are inexpressibly dear to me” involving her husband’s

other wives and children, and therefore implying that she did not

see polygamy as something which infringed her rights, but rather

that it was to her benefit.

Also, there is the question of the prospective wife’s rights.

Muslims have usually justified polygamy in terms of provision for

orphans and widows, and to deal with shortages of men. If there is

a right to marry, could it enable a prospective second wife to insist

on a positive rather than a negative right? It would not mean much

to her if there were no men, or no suitable men, available. What if

the only suitable and willing man were already married? Could

her right be denied then? This is echoed in Chapman’s concern

that “man-sharing” may be the only rational response for some

modern women who, if they do not legally share a man, will

effectively be denied marriage. She argues that sharing may be the

most effective way of combining family and career, and that those

who do not share their men formally often find that they share

them informally, through adultery.

It might be said that the conflict between polygamy and

women’s rights is general, as a group, rather than the particular

case of one individual, and that women are oppressed by polygamy

generally, and therefore that equality demands that none be allowed

to enter into polygamous marriage. But it is clear that there is

evidence available from a number of sources to contest this

suggestion.

John Cairncross states that polygamous groups throughout

history have tended to offer a better deal for women than their

monogamous contemporaries. David Friedman, Thomas Bergstrom

(in his 1994 “On the Economics of Polygamy”) and Gary Becker

(in his 1981 “Treatise on the Family”) state that this is not without

reason, as in economic terms it raises the demand for women while

increasing the supply of men, therefore meaning that men have to

do more to attract women and to keep them, and are therefore

inclined to better treat them than under monogamy.

Janet Bennion, in studying a modern Western example of

polygamy argues that female polygamists choose their lifestyle

because of definite benefits it brings them, and that they achieve

status and power through polygamy and the networks it encourages

them to create with other women. For more on this check her

 “Women of Principle: Female Networking in Contemporary

Mormon Polygyny” (1998) Oxford: Oxford University Press.

Finally, Poulter’s conclusions about polygamy and women’s

rights includes the tacit assumption that Muslims or Africans would

be asking the law to recognise only their type of polygamy. As seen

above, this can be upset by involving the consent of the first wife,

but also if polygamists were to argue that both sexes ought to be

allowed plural partners, this would meet their requirements and

would not be prima facie sexually discriminatory. As polyandry is

incredibly rare in history, possibly for some of the reasons suggested

by economists, this may not be viewed by them as too

painful a concession, especially if their consent was needed before

it could apply in their own case.

In summary, the concern in Hyde that polygamy oppresses

women, which has been transformed into a concern about equal

rights, cannot simply be answered by categorising polygamy as

sexist, for the demand could be for the law to allow it to both

sexes, it affects the rights of women who may want to be in such

relationships, and the evidence that is available suggest it cannot

be taken for granted that polygamy as an institution is harmful to

women’s interests.

Many of the assumptions which underpin the law have been

undermined by demographic change, or have been laid open to

question by research, such that the basis for the current law on

bigamy and polygamy is no longer capable of being justified without

dissent. In particular, it is not possible at this stage to close off

reform on the basis of human rights considerations, which are more

complex than the little research that has been done so far would

suggest. With the law’s own justifications open to attack, and with

the need to assess laws for their necessity and proportionality in

human rights terms, it is important to examine the various possible

effects and opportunities presented by the incorporation of

the European Convention of Human Rights into UK law.