The 150-year-old crusade for women’s rights in America has, in the different phases of its history, devoted its energies to diverse causes. In the decades before and after the War Between the States, the principal cause was the right of married women to control their own property. In the early 20th century, the cause was suffrage, and in more recent years it has been abortion—and equal pay for equal work. However, during most of this period, divorce laws were always an important item on the feminists’ agenda. The strict regulation of divorce was, they argued, one of patriarchy’s most powerful weapons, and only when women were freed of this legal terror, could they truly be free.

One of their first important successes was a change in custody practices. The redefinition of men’s and women’s social spheres in the 19th century had led to the new conception of woman as an exclusively nurturing and affectionate creature, and by the 20th century children, who had been in former times uniformly given to their father’s custody in eases of divorce, were now routinely being given to their mothers.

The culmination of the feminist divorce program were the no-fault divorce laws enacted throughout the United States in the 1960’s and 70’s, and the success or failure of the women’s movement stands or falls with our interpretation of such legal and political changes. In recent years pragmatic feminists have argued that liberalized divorce laws have benefited men at the expense of women and children, and they have offered new remedies to solve the problems created by the old. But the reinvention of marriage as an unenforceable contract has far deeper consequences than the mere “feminization of poverty,” and it is long since time for us to begin thinking about the meaning of marriage as a social (as opposed to merely legal and economic) institution.

Marriage may begin in a contract (traditionally the agreement was more often between the families than between the boy and girl), but it is “a contract to transcend the standpoint of contract,” as Hegel put it. Unlike most other contracts, the marriage bond is entered into in the expectation that it will be permanent and irrevocable. This was true even in the later Roman-republic, where divorces were common (at least in the political class) and easy to procure. The permanency of marriage was and is sealed with the arrival of children whose needs are provided for by husband and wife. Since each child is, in genetics as well as in folklore, half of each parent, it is in the interest of both spouses to maintain the union and to care for the earthly bits of their own immortality. The sexual bond, while it is nourished in the pleasures of the bed and in intimate companionship, is essentially procreative, and. while the procreative aspect of both sexuality and marriage can be overemphasized, as it has been by celibate theologians, those who attempt to divorce children from erotic pleasure are missing the point. It is only in the creation of children that man and woman succeed in the mystical goal of sexual experience: the merging of identities.

According to the old Christian and Jewish ideal, man and wife became one flesh. But to the Christian way of thinking, “one flesh” was not so much an ideal as a fact of life. St. Paul admonishes us to avoid fornication because erotic intimacy binds us, willy-nilly, in a permanent union. If one indiscretion brings us into bondage—as it does, at least in the permanent records of our memory and imagination—then cohabitation, with or without benefit of clergy or license, ties up our habits and our imaginings so tightly that, divorce or no, we can never cut ourselves free from what we were, so-and-so’s man, the woman of such-and-such.

This same conclusion was arrived at recently by a feminist scholar, Terry Arendell, studying divorce:

Many women “still felt married,” regardless of whether they had any relationship with their former spouses. Divorce could not erase the memory of their married years or negate the presence of their children, who were a constant reminder of shared parenthood.

If marriage must be, by intention, a permanent union, what can we say of divorce? In one sense, divorce may be impossible. If a serious woman has freely married a serious man, lived with him, born him children, what legal formula can undo such an experience? That there are exceptions to this description of marriage, no one doubts; and they have furnished plots for plays and novels through the ages: unconsummated unions, incestuous unions, marriages made under compulsion.

The ancient Jews recognized various justifications for divorce, and the more liberal rabbis were willing to grant it on the grounds that a man disliked his wife’s cooking or had found a more attractive woman to marry. Jesus recognized both the difficulties of the situation and the bad faith of many husbands. Divorce, he said, was granted by Moses because of the hardness of the people’s heart, but “if a man divorce a woman and marry another he commits adultery.” Christian theologians have wrestled with this problem but with no conclusive results. It is fairly easy to specify the conditions under which a marital relationship should be terminated, as in cases of desertion, infidelity, and nonsupport, but do any of them justify remarriage?

Catholic theologians have tended to say no, while Protestants have adopted a more hopeful tone. Neither set of arguments is conclusive. If pre-Tridentine Catholics celebrated marriage as a sacrament, they also denigrated it as a second-best, a sop to human weakness; and if the Protestants were staunch defenders of the primacy of marriage as a social institution, they robbed the institution of its sacramental character and turned it over to the tender mercies of secular law.

In a mystical sense, the older theology of marriage was certainly correct: marriage creates a bond that cannot be broken, and there is no point in pretending that it can, or that we can find a genuine replacement for even a bad marriage. But we cannot always lead lives of perfection. Consider the case (real, not imagined) of a girl married at 16 to a husband who is quick to provide her with two children but reluctant to get a job, who in fact sends out his wife to work and beats her if she holds back money for the children’s food. Any sane person would applaud her decision to throw the bum out, but is she morally entitled to marry again, assuming we take marriage seriously as a lifelong commitment?

Of course, we could mitigate her case by bringing up the youthful age at which she married, her eagerness to escape from harsh and (at least in her own mind) oppressive parents, and the seductive wiles practiced by the young man and his mother, who had prevailed upon the girl’s innocence by constantly praising her son’s virtues and proclaiming her belief that the marriage was predestined. But a marriage is a marriage, and while a girl of 16 can act foolishly, she is probably acting of her own free will in making so serious a decision. No, the mitigating circumstances change little.

But what of the children? They not only need the strong hand of a father; they would also benefit from the income of the hardworking man who has proposed marriage to the young divorcee—to say nothing of the benefit of having their mother at home for a longer time during the day. If the ultimate purpose of marriage is the begetting and rearing of children, a second marriage that helps the children ought to be acceptable as the lesser of two evils. The same principal might be applied to a father who needs a wife to take care of children deserted by their mother.

On a lower level, one might even make the case that a deserted man or woman is better off morally, if they find themselves a permanent companion and avoid the temptation to engage in frivolous erotic affairs. If the outcome is, on balance, a more temperate and more moral life, is it not possible to justify remarriage even when there are no children (provided, of course, that the divorcee is the innocent victim of a bad marriage)?

Real-life situations are rarely as simple as the examples in a Catholic marriage manual or as insoluble as the cases described in counseling texts, but if the primary objects of marriage are kept in mind, it should not be impossible for moral individuals to reach decisions that make the best of an admittedly bad situation. The universal primary object of marriage is children, and other important objects include companionship, the avoidance of promiscuity, and the social stability that is promoted by the unification of two families. (The last two objects are of comparatively little account in contemporary society.)

None of these purposes of marriage can be fulfilled except by a couple that intends to enter into a permanent union. The very expectation of permanence is self-fulfilling. While a skeptical critic of the institution compares marriage without divorce to a galley slave in which partners chained to the same oar are forced to get along with each other, no cooperative relationship is possible if either party is free to dissolve the partnership at a moment’s notice.

That, at least, is the conclusion reached by George Axelrod in The Evolution of Cooperation. Axelrod’s theory is derived from his study of the “Prisoner’s Dilemma” game. The question he posed was which strategy, overall and in the long run, would work best in a series of choices confronting two imaginary prisoners being interrogated: should one “cooperate” with one’s fellow prisoner by saying nothing or should one “defect.” (The rules are actually more complicated.) Axelrod concluded that while more aggressive and dishonest strategies could succeed in the short run, ultimately the best strategy was “tit for tat”: begin by cooperating and then repeat the other player’s last move. If he cooperates, then cooperate. If he defects, you defect.

In addition to various restrictions and stipulations, Axelrod insists upon one caveat: the principle of cooperation only works if both parties expect to continue playing the game. Otherwise, the incentive to defect becomes too great. Axelrod applies his theory very narrowly to divorce proceedings by suggesting that cooperation between divorced parents can be enhanced if the custodial parent is given the power to withhold visitation rights from former spouses default on child support. There is obviously a much broader application. If husband and wife believe there is virtually ho escape from marriage, they will not be so easily tempted into quarrels and infidelities.

Marriage can be viewed strictly on the low level of a commercial contract in which both parties will incur certain costs and benefits throughout the duration of the relationship. One or another party may have to forego certain present benefits and pay heavy costs with the expectation of being “paid back” in the future. The classic case is the wife who puts her husband through professional school, sacrificing her own educational ambitions, and bears several children, only to find herself abandoned in favor of a trophy wife, once her husband has a well-established career. In responding to the uncertain market situation presented by no-fault divorces, a spouse may choose to “invest less in this marriage or in being married,” as Lloyd Cohen has stated. The result is a tendency toward fewer children and a greater investment in the wife’s earning capacity.

In most of this discussion I have used “spouse” or “husband and wife” as if their situations were equal. In fact, they are not. In a modern society, all the advantages lie with the husband. The wife typically (although not always) is more concerned with the children and is more likely to be awarded exclusive or primary custody. The husband may be required to pay child-support (he may or may not comply) but not alimony, which is excluded by the doctrine of sexual equality. The liberalized divorce laws of the 1960’s, therefore, plunged large numbers of women and their children into poverty, and the “feminization of poverty” became one of the cant terms of the 1980’s.

So far the only response has been a largely rhetorical attack on defaulting fathers and a call for further socialization of domestic life along the lines of European family assistance plans that pay households a monthly stipend based on the number of dependent children.

There are problems with both plans. Defaulting fathers are immoral and irresponsible, and it would be very gratifying if we could round them up and squeeze the money out of them. However, it is not clear how many of them actually can afford to make the child-support payments stipulated in their divorce settlements nor what the collection costs would be to taxpayers. There is also a moral problem that has been created by the Supreme Court’s decisions on abortion. Under current law, a husband and potential father has absolutely no say in whether or not a baby is born. The decision is made by a wife in consultation with her physician. Until this inequity is remedied, divorced fathers can make an excellent bad-faith case that they were only tangential to the child’s existence.

Family assistance plans seem, on the surface, attractive, but setting aside the vast expense and social distortions that have accompanied the Swedish experiment in socialized childrearing (read my colleague Allan Carlson’s recent book on this subject), the inevitable result of all such plans is to lessen, not increase, the sense of individual responsibility felt by parents. Even if such plans proved to be the only possible remedies in the postmodern world, they should only be considered as a desperate, final resort for a society beyond redemption.

A more practical approach to the problem would be to find a way to discourage husbands from walking out on their families. If marriage is only a contract, as it is so often said, then it ought to be no less than a contract.

There are two ways in which the marriage contract might be made more enforceable. The most obvious is the conservative proposal to strengthen the states’ laws on divorce, especially since it is apparent that no-fault divorce laws serve to increase the rate of divorce. The strongest argument for repealing no-fault divorce is the fact that the costs are already socialized. As Judge Richard Neely points out in his book on divorce, “the loss inherent in the dissolution of a marriage is borne by others.” By lowering the standard of living for women and children, a divorce makes them more likely to ask for public assistance. Children deprived of a mother or father are more likely to become delinquent or depressed. They do worse in school and are less likely to attend college. If and when they marry, the children of divorced parents are more likely to get divorced. Doesn’t the community that pays the bills have a manifest right to enforce the contract?

But contract enforcement is not the same thing, necessarily, as state regulation. Historically, marriage and divorce have only occasionally been regulated by government. In democratic Athens and in the Roman republic, marriage was a bargain between families. There was no government authority to ratify or even record the bargain. Since the arrangements often involved dowries, a husband who divorced his wife might attempt to hold on to some of the money or property and his former wife (more likely her family) might have to sue to recover. But the government had no say in the actual divorce. Throughout much of the Middle Ages, marriage and dissolution were regulated by the Church, rather than the state, and a survey of the varieties of marriage customs that have existed around the world would not support the conclusion that political authority is the only or even the best vehicle for regulating marriage.

But, in the absence of government regulation, wives still enjoyed some measure of protection against the abuses of vicious or irresponsible husbands. Since marriage was a contract between families, a woman’s male relatives took an interest in her well-being and that of her offspring. In comparatively small-scale societies, the community might display its approval or disapproval in various informal ways, ranging from gossip to shunning to violence. Colin Turnbull describes a sort of shivaree among the Mbuti pygmies: disapproving of an incestuous liaison in their camp, the Mbuti men talked themselves into an angry, quasi-religious demonstration in which they drove the male offender into the woods. In Europe and the United States, similar demonstrations might be arranged to show disapproval of inappropriate marriages, abusive husbands, and adultery.

Such informal devices have been used to express community sentiment all over the world. In a wholesome and organic society, it is by communal sanctions, rather than political enforcement, that the rules on marriage are maintained. Whether they are more or less effective than formal legal procedures is open to dispute. Individuals are not called upon to settle these questions of history and law; they must do what they can within the circumstances they find themselves. We cannot, by our individual efforts, change society, its laws, or its institutions. We can, however, live up to what we believe.

If the ideal remains a stable marriage that is the basis of an autonomous family, how is it possible to realize that ideal under the terms of “late capitalism,” when even the consumption functions of the household—eating, housecleaning, laundry—are routinely handled by outside providers, and when all the functions of intellectual instruction, moral guidance, and even such things as entertainment can be discharged by public officials and paid professionals? But these extra-familial services are only available; they are not mandatory.

It is still possible to educate one’s children at home or in private schools. Such things are difficult and expensive, because families are required to pay taxes to support government schools; the choice is, however, open to most people, and in a period of marked decline in the quality of all schools, private as well as public, homeschooling becomes ever more attractive to more people. The same can be said of home production, which can include everything from part-time typing and maid services to large mail-order businesses. At the simplest level, it is the home vegetable garden. Where families work together, where the group’s economic success depends upon the contribution of all the members, a cohesion is achieved that is otherwise very difficult.

There is obviously no single formula to fit all circumstances. Many families have passions for outdoor life—camping, hunting, fishing—on which they spend a great deal of time together. For others it may be music or tennis. Many might like the idea of teaching at home or running a family business, but either their circumstances or their lack of aptitude are an obstacle. What is important is not the details but the main objective, a family that sees itself as an indissoluble mystical entity like the Trinity: multiple persons but fundamentally one.

For those who take this deep view of family life and understand the consequences of divorce, their commitment to family is more than a question of staying married, because we are inevitably forced to deal with other people who do not share our perspective. But even in the absence of community sanctions, it is still possible to act as if such sanctions existed and to communicate our sense of propriety to family and friends.

Divorce was once viewed as shameful, and the divorce had to make a case for himself that he was an innocent victim. We can still act on that assumption. We can still avoid the company of men and women who have treated marriage as if it were a matter of no importance. Within the small communities in which most of us spend our lives—church congregations, PTAs, and social clubs—we might even make some headway in getting our views acknowledged, and if our church has hardened its heart, we can always find a congregation with a firmer commitment to the moral order.

We can reasonably anticipate the results of the decisions and gestures we make in private life, but the consequences of new marriage regulations cannot easily be foreseen. Radical feminists might succeed in writing laws that are punitive against husbands—providing, in effect, further disincentives to marriage. Alternatively, family might become entirely an extension of government welfare programs, subject to unremitting scrutiny and regulation. To avoid these potentially dangerous consequences, it might be better to concentrate on the contract itself. Two states, at least, have introduced bills to legalize prenuptial contracts eliminating no-fault divorce for the parties that enter into them. In Illinois a proposed “Marriage Contract Act” declares that “Two persons of the opposite sex may . . . enter into a marriage contract providing that the marital relationship will not be dissolved or otherwise modified except on a showing by a preponderance of the evidence by one party of the fault of the other party that constitutes grounds for the dissolution.”

Although the Illinois bill passed the state senate, it got lost in the other house. Nonetheless, such measures are gaining in popularity and might provide a general strategy for solving the problem of divorce. The terms for child custody and support, alimony, and visitation could all be spelled out, and a rich doctor who deserts the wife who put him through school might find himself paying her half his income plus child-support payments. An adulterous wife might, on the other hand, forfeit all claims to see her children and be required to pay for a housekeeper or nanny. A young woman or young man would be ill-advised to enter into such a contract lightly and would very likely call upon the wisdom and experience of his parents. This in itself would help to restore some measure of the old family autonomy and move marriage back in the direction of a contract between families. Of course, men and women would be free not to make such contracts, but a party who refused would fall under immediate suspicion.

The old feminism of the past 150 years has represented the penetration of rootless individualism into the domestic sphere. Inevitably this has brought government into the bedroom in ways undreamed of by the Moral Majority. The net effect of feminist legislation has been the destruction of family and community life and the empowerment of government at the expense of men and women, husbands and wives. That, at least, is how I read the important work of Elizabeth Fox-Genovese.

The world is changing, however, and shifting gears. A few years ago, the fatuities of Francis Fukuyama were being repeated on prime-time television, and “the end of history” was all the rage among Americans too lazy to think for themselves. While the Blooming idiots of the American right were celebrating this new revolution, we here were predicting ethnic conflict and the repeal of the Versailles Treaty.

The shift of gears I referred to has meant that for the time being the centrifugal forces in Western societies are gaining upon the centripetal forces of centralized and concentrated power. Part of the shift has been a dawning awareness of the indispensability of community for human life, and the primary community institution is the family. Whether we have called ourselves conservatives or Marxists, feminists or patriarchs, most sensible people have begun to realize that the only alternatives to the family are the total state and, increasingly, the youth gang.

Children without parents can never grow up to be fully human, neither can men without women nor women without men. The divorce revolution has been a rebellion against the most basic terms of human life, but what government has done, it can never undo, except by resigning the powers it has usurped. Reforming the law would provide only marginal relief to the victims of divorce. In reconsidering marriage and divorce, our main objective, as serious men and women, must be to teach ourselves, our children, and our friends, that these things are up to us, not government, to decide. To use the language of our libertarian friends, it may be time to reprivatize private life.