Affiliation: College of Arts and Sciences, Department of English and Comparative Literature
This dissertation explores the impact of legal and literary fictions about marriage on the modern historical consciousness. By reading the early English novel in conjunction with contemporary legal texts on marriage—parliamentary acts and debates, case law, marriage settlements, and private separation deeds—I demonstrate that eighteenth-century English marriage law and practice was constituted through a variety of conflicting legal fictions. I further demonstrate that the early novel was preoccupied with how those fictions shaped the lived experience of domesticity, particularly for women. The fictional precepts and presumptions underwriting emerging contract theory and traditional marriage doctrine at once directed and circumscribed (proto)modern developments in marriage, property, and divorce law. Moreover, the novel, in its mimetic and ideological capacities, variously worked to expose, advance, and revise those fictions, thereby amplifying and altering their historical force. Examining the dialectical relationship between legal texts and the novels of Daniel Defoe, Eliza Haywood, Samuel Richardson, Frances Burney, Charlotte Smith, Elizabeth Inchbald, Mary Wollstonecraft, and Jane Austen, this project challenges traditional conceptions of the law as stable, objective, and truth-bearing, and it demonstrates the importance of an interdisciplinary approach to historical inquiry. The project also highlights the need for renewed attention to the concept of “legal fiction,” including its influence on the modern individual’s perceptions of self and other, masculinity and femininity, and legal rights and moral duties.
Each chapter explores the legal fictions implicated at a particular stage in the marriage contracting process. Chapter one, on marriage formation, focuses on the principles of the then-emerging theory of contract development. Chapter two, on marital unification, centers on the classic legal fiction of “unity of person.” Chapter three, on marital dissolution, addresses the foundational assumptions of the indissolubility doctrine, as well as the presumption of “paternal right” and the fiction of illegitimacy, filius nullius. Collectively, these chapters chart the entire trajectory of marriage, from start to finish.