7: Historical Blindsight -- Uncovering social justice in the past: woman’s perennial privilege

The position women are in today is so obviously a good one that those who argue men have ‘power’ over women usually resort to pointing out how clearly women were disadvantaged in the past. Mere mention of the vote or of marriage or child custody in times not so long ago, closes down debate. But it doesn’t take much probing beneath the surface of what apparently used to be the lot of women, to see that very far from disadvantage, women enjoyed privilege. Here, I’ll look at a number of what are often cited as litmus tests from history; before, in the next chapter, focusing on the key issue of the vote.

It’s a mistake to view the past through the eyes of today. Our own perspectives imposed, anachronistically, on the behaviour and thinking of people in former times is unfair. It would be silly to take our notions of social justice in the late twentieth and early twenty-first centuries and, finding such principles not apparent in Victorian and earlier times, to then castigate society in earlier periods for unfairly disadvantaging women. Disadvantaged compared to whom? You have to make comparison with others at the same time, and take account of what was then feasible.

This is exactly the mistake we make though. We’re blinded to the possibility that conceptions of social justice as they were at different periods in history may have secured the optimum benefits to women under the constraints that were then operating; and that in no sense were women ‘oppressed’, nor men unduly favoured. It turns out that, if we take the blindfolds off, it’s apparent not just that people at the time perceived that women were not disadvantaged, but that indeed women were as privileged throughout history as they are today. The privilege that women enjoy is not contingent on any historical factors, but is biologically based.

*  *  *

Scholarship with a feminist bent is almost as inept when it comes to history as it is at selectively ignoring what is most relevant in science. This applies to very recent times as well as to the much touted fiction of a prehistoric social inversion where women filled the roles that men do today. This is interesting for its denial that women were disadvantaged. The natural order envisaged here is that woman is ‘on top’, and that the societies we see subsequently in recorded history are aberrant. A prehistoric female (but male-styled) political power base is now comprehensively debunked by historians and anthropologists, so I won’t take up space here with analysis that can readily be found elsewhere. Suffice to say that the evidence for such societies boils down to archaeological finds of figurines taken to show that women held overall ‘power’ in society. But the consensus is that they are fertility symbols and as such don’t indicate ‘goddess worship’; and even if they did, that would be no evidence of an ancient ‘matriarchy’. We know that the different social roles of the sexes is evolutionarily ancient, and that you have to look back along not historical but evolutionary timescales to understand the relationship between the sexes.

Moving forward into recorded history, a big issue has been made of the late medieval epidemic of witchcraft allegation. The feminist reading of this has grown into a false history, and this too has been comprehensively dismissed by scholars. Again, I don’t need to go into this here, save for relaying the main points made by informed scholarship. Contrary to popular notions, far from the authorities being behind accusations, they attempted to diffuse the hysteria. Most of the accusers were not men but women, and it was the absence of a male protector that was the biggest problem for an accused woman. Women were particularly vulnerable to accusation because the areas of activity that lent themselves to suspicion were those over which women had jurisdiction. Nonetheless, a proportion (about a quarter) of those put to death were men (‘warlocks’). The total number of supposed ‘witches’ and ‘warlocks’ who lost their lives is but a tiny fraction of the massively-inflated estimates - hundreds of thousands or even millions - that have been put about. The root of the centuries-long hysteria over the ‘witch’ was the classic phenomenon of female ‘relational aggression’, and it’s therefore a great fraud to present it as some kind of ‘patriarchal’ tyranny. The witch-hunt, as far as the church was concerned, was more religious propaganda than serious sanction, which was hijacked from the authorities and transformed into a platform for community score settling. Sometimes this concerned property, because older (unmarriageable) women could hold property unproductively but, as with ‘honour crime’, the chief detractors were usually women acting nepotistically. ‘Honour crime’ is falsely thought to produce only female victimisation, but this is simply because we fail to see the male victimisation as being to do with ‘honour’, and in any case these victims would not be newsworthy. It is also falsely thought to be specifically male perpetrated. Many phenomena we decry in other cultures, such as female circumcision, the wearing of the veil, foot binding, etc; all stem from female intra-sexual competition, and have nothing to do with male oppression, as is usually supposed.

Social justice in terms of not the individual but the household

It’s neither in pre-, nor late-medieval, but in recent history that supposed incontrovertible evidence exists that the lot of women was as the ‘oppressed’. Flagship status goes to the issue of the vote, which is why I’ve given over a whole subsequent chapter to this subject. I’ll just flag up the overall finding here: that it turns out that the real struggle for the franchise was that of ordinary men - who payed the taxes and were drafted into the armed forces to fight the wars their taxes paid for. These were the people who for centuries, millennia even, were denied democracy, not women. Where women had a direct interest, they have always had the vote. So it was that from time immemorial women have been enfranchised in their local communities, and when issues that concerned women moved up to the national level, then women were given the parliamentary ballot in an historical blink of the eye.

A key to understanding notions of democracy is that before the idea took hold of equal rights unconditionally for all on the basis of mere citizenship, rights were tied to responsibilities (especially the paying of taxes). ‘No representation without taxation!’ In the days prior to the notion that the individual reigns supreme, the functional component of society was the family household. This was underlined by the law of coverture that I explain below. The person who carried the can in the household (even though he did not reap the most benefits) was the husband, so naturally it was the man of the house who - if anyone could - voted on behalf of the whole household.

The concept of the family household as the unit in society rather than the individual, and of the sense of obligations as opposed to rights, is central to understanding the difference between attitudes concerning men- women in the past, compared to such attitudes nowadays. The sexes had different but complementary domains that couldn‘t be compared. The woman ran and ruled the household and represented the household to the local community, whereas the man earned the money to make sure that the household could be run at all. For this effort he was granted admittance. From this perspective, it would be nonsense to compare the sexes in terms of rights, wrongs, privileges and duties.

A great feminist cause was the powerlessness of mothers when it came to custody of their children, together with the legal status of women in marriage. On the surface it’s hard to believe that social justice could be served by such apparent legal one-sidedness, and once it became anachronistic the laws were changed. However, the notion that it was an expression of the subjugation of women unravels completely when you come to realise that the object was to prevent fathers from escaping their responsibility to provide for their children, thereby possibly condemning their offspring to penury and imposing a burden on the parish. It was by insisting that men be regarded in terms of their family household and not as individuals, that the doctrine of ‘the best interests of the child’ could be upheld. This is in distinct contrast to the perverse situation we have ended up with today, where ‘the best interests of the child’ has become a mantra that actually screens the self-interest of one individual - the mother. In reality, everyone else counts for very little; not least the children themselves. Such perversity is what happens when a false perspective is given to history to further misinform the present, so that instead of identifying disadvantage and remedying this, what was in fact a robust balance is set aside in favour of unfairly privileging one party. Out of past social justice misread comes social injustice.

The historical ‘pay gap’ was most beneficial not to men but to women

I will deal with marriage and custody in detail, but first I need to tackle an issue of seeming discrimination (absent the notion of family household). This is the ‘pay gap’. Not the supposed ‘pay gap’ of around 20% today that is incorrectly put down to discrimination against women, when - as I fully explain in the section dealing with work - it’s actually to do with inherent differences between men and women. I’m talking about the much wider historical ‘pay gap’, with women paid half or even a third of what men were paid, even for the same or similar job. The gap narrowed somewhat in the course of the industrial revolution, after full mechanisation eliminated or reduced many of the strength differentials between the sort of jobs that men and women performed, but a very large wage difference persisted. This continued into the twentieth century, though the ‘gap’ progressively shrank.

Neither strength differences nor an over-supply of women workers explain why women historically were always paid significantly less than men. A large ‘pay gap’ applied even in teaching; a professional job for which suitable applicants would be in short supply, and where female qualities would be appropriate - teaching being thought of as in some respects an extension of a mother’s role. As a professional job, it would be chosen by single women as a means of supporting themselves. There seems to be no obvious reason why women teachers would have been paid substantially less than their male colleagues. A rationale there must have been, but one that today we are blind to.

The answer is very simple and demonstrates a very recent change in mindset. As we have just noted, historically people thought about themselves not as individuals but as part of a family household, because hardly anyone could get by on their own to combine earning an income with maintaining a home life. Wages from formal jobs tended to be low, housework was heavily labour-intensive, and much important economic work was done informally, often from home and for payment in kind. Society was stable, with almost everyone living either in nuclear families or extended family households.

To a contemporary way of thinking, an officially-sanctioned policy of a ‘pay gap’ seems particularly unfair. But not from the perspective of payment according to the differing inputs of men and women into the shared household, when the wealth available for distribution was so pitifully small that there had to be in effect some tough-minded rationing. Or looked at the other way: there had to be a system where there was one person at least in each household whose income could allow the household as a whole to subsist. (One of the effects of recent equal-pay policy has been to depress absolute pay levels to the extent that both partners now have to work in order to provide for a standard of living that would have been available from a single wage as recently as two decades ago. In 2006 real disposable income growth was zero.) Given that the person who always carried the can regarding the family was the husband, and he was far more available to go to work; then it made sense that he should be able to earn most if not all of the family income. The important issue for women was the total household income, not where it came from. The less of it they had to earn themselves, the better able they were to be home-makers and child-carers.

You would be stared at by dumbfounded wives and mothers if you could transport yourself back to, say, the early-nineteenth century, and ask why women were not up in arms about how little of their household income could be provided by themselves instead of by their husbands. Quite apart from the fact that being a housewife in the past was a full-time job in itself (even without allowing for rearing the large families then the norm), work was mostly very unpleasant, not to mention injurious to health and dangerous (not least because of the sheer amount you had to do to make any significant earnings). That work was a cost rather than a benefit was starkly obvious. It’s a twisted logic we have today that presents work as a benefit. Why else do employers have to pay wages? The less work for money - the work that in the end you would rather delegate to someone else than perform yourself - that you have to do, the better off you are. Another consideration we have also lost sight of is that in tight-knit communities it was apparent to everyone that pay was a scarce resource, and if one family could have two good wages coming in with both wife and husband working, then some other household might well have nobody working at all. With little in the way of support for the destitute, that could have meant children and adults going sick and dying. From this perspective, it was immoral for there to be more than one major breadwinner per household. (This was one of the rationales behind the ‘marriage bar’, which I’ll explain shortly.)

Obviously, as the one expected to be the main or sole breadwinner and the one unencumbered in direct care of a family (either his own nuclear family or the one from which he sprang), the man of the household would strive for and require the most income of all. His wife, if she was working, would be doing so to supplement the income of her husband as the family grew and household expenses multiplied. She might well have required more income than a typical single woman, notwithstanding that she had a husband bringing in a wage. (This is why in Ireland, historically there was a ‘pay gap’ in favour of married over single women, albeit much smaller than the one between the sexes.) There are in fact few if any losers in the system, including spinsters, because almost everyone lived in family households: if not their own, then that of others. Regarding the minority of women who were unmarried (and therefore hypothetically penalised) and the minority of men who were unmarried (and therefore hypothetically benefiting unfairly), they were still subject to the universal sexual dichotomy that men were seen as worthy in respect of their position within the outside, working world, and the money this brought in; whereas women were seen as worthy according to what they brought to life within the home. Men, then as now, were considered less than nobodies unless they were breadwinners. If they eschewed breadwinning, then men actually forfeited rights that women were afforded unconditionally. Up until the late 1970s, men - but not women - were imprisoned for relying on benefit payments if it was determined that they were making insufficient effort to secure a job. A mandatory six months for a first offence is still on the statute book. A woman risked social contempt, not by any failure in actively providing economically, but only by actively transgressing obvious social norms that all women in all societies are well aware of. This remains in the special treatment favouring single parents.

Taking everything together, it made sense in social justice terms that wages reflected the general category of person employed, instead of fixing them according to what should be ‘the rate for the job’ irrespective of who did the work. It was a social justice that dealt at source with what only later arose as a problem requiring redistribution. In a socially homogenous society, the systematic skewing of pay in favour of men benefited men and women collectively. This is to say that it benefited women especially, given that women controlled the home, and the home absorbed all available resources. (The minority of feckless husbands that spent their weekly wage in the tavern were the exception that proves the rule.) In working class communities - notably in steel-making and coal mining areas - the husband handed over his pay packet to his wife for her to have full control over. It was the fairest way of distributing wealth when wealth was scarce. It is anachronistic to regard this as being at the time unfair to women, from the perspective of a society that has become less formally homogenous and much wealthier. Not only was the system not unfair, but it was to some extent resistant to change, which shows it to have been well adapted to the times, contributing to social cohesion. What ensued was normal social inertia; nothing to do with some mythical ‘patriarchy’ dragging its heels. Quite the opposite. One system that benefited women in one set of circumstances, was replaced, because of a change in circumstances, with another system that likewise benefited women. The very driving force was that women were gainers, and to this end the systems of payment then and now actually contributed to this.

That the perception of society as a network of family households rather than of individuals was very strong and in many respects remains so, can be gauged by the continued currency of the expression ‘a family wage’ and ‘a man’s job’. Men and women routinely refer to jobs as unsuitable for men because they don’t pay ‘a family wage’. People express the idea, even if they don’t use the phrase. Most people do think about work in this way. This is especially true in areas where heavy industry has collapsed and service-sector, light-assembly and low-skilled office jobs are all that are now available.

Serving time for being unemployed

Up until the late 1970s, men - but not women - had been imprisoned by the National Assistance Board (NAB) for relying on benefit payments if it was determined that they were making insufficient effort to secure a job: it was a mandatory six months for a first offence. Many more men were sent for six months to centres up and down the country (some residential, some non-residential) to re-orientate them towards work. An Unemployment Re-establishment Centre was officially ‘voluntary’, but the only alternative was an automatic six months in jail. Jail and ‘boot camps’ had become law by an Act of 1948, and the facility to imprison men was never repealed.

Similarly in the USA draconian ‘breadwinner regulation’ laws had been enacted from the 1890s onwards in all states to tackle what were popularly referred to as ‘home slackers’. Not just jail but jail with hard labour was the reward for indigence. As in Britain, women were exempted. Cases were processed in the family court, which was part criminal court, part ‘social agency’, staffed by psychiatrists, social workers and probation officers, as well as the usual court personnel. This system came about through pressure by women ‘reformers’, and in the very period (1890-1919) known as the Progressive Era.

On the receiving end of the NAB’s attentions back in 1965 was Newcastle writer Tom Pickard, then aged just 20, but already married with a baby child whilst he was running, unpaid, a successful poetry venue:

I started getting visits from National Assistance Board officers every other day to see if I was seeking work....I gambled that they wouldn’t stop paying us the £9.10s per week, because there was a young child to feed. But, as an able bodied potential breadwinner, they told me, I had a duty to provide for my family, and refusing paid employment could certainly be seen as a failure to maintain them, which is illegal....

Representatives of the disciplinary committee of the National Assistance Board were drawn from a range of institutions....The manager was looking at a file in front of him while the others studied me. What did they see? An unmarried unqualified labourer that wouldn’t work to feed his bastard and common-law wife, and who insisted that his job was poetry....And they went on to say we want to give you another chance before we cut off your money; we want to send you to a Rehabilitation Centre where you’ll get back into the habit of working. I refused and they offered the alternative of a Re-establishment Centre, which I again refused. There was silence for a moment, a conferring of bowed heads. Finally, they formally cautioned me that unless I accepted their offer of a place at a Re-Establishment Centre they would prosecute for failing to maintain my family and the current mandatory sentence for a first offence was six months in jail. The course at the Re-Establishment Centre was also six months and when I asked what the difference was they told that the latter was voluntary (Pickard, 2000).

The ‘marriage bar’ was primarily an issue amongst women

Most intriguingly, there was a prominent official policy that persisted to within living memory: an apparently blatant sex discrimination - the ‘marriage bar’. This was the rule whereby women who got married were given their cards or were refused promotion, and/or only single women were recruited. In Britain, America and Europe, this measure was brought in to combat mass unemployment in the cyclical economic depressions of the last century. Among the rank and file of the workforce, the common view was that the employment of married women was unfair to other family households that had no earner at all. In times of unemployment, there could be millions with no income for their starving families, while at the same time other households had two earners and luxuries. This was not at all an anti-woman sentiment, because single women were privileged in the workforce in being treated sympathetically. It was often (and usually wrongly) assumed that single women were essential earners for their family household. When the ‘marriage bar’ was investigated at General Electric in the USA, interestingly it was not men who voiced opinion in favour of the ‘marriage bar’ so much as women; notably single women who did have financial responsibilities at home. They saw themselves as competing for jobs with married women. And this was true. Most work was segregated sexually in some way, so that overwhelmingly a vacancy would be fought over by those of the same sex. Still today, male and female unemployment is very largely independent.

The ‘marriage bar’ was anything but sex discrimination against women. It was primarily a way of ensuring that the great majority of people - that is, the women and children in family households - had enough to get by. It was also a way to skew available work, not to men but to women who were likely most to be in need of it. It was with the need to help women and families, that the ‘marriage bar’ was introduced.

An instance where the ‘marriage bar’ worked alongside something similar that caught men proves that it was non-discriminatory. This was a wider net than one that caught married women, in catching any male who had reached the age of twenty-one. It was an ‘age bar’ for men, and only for men. For example, Quaker-run firms like Cadburys and Huntley & Palmers separated the sexes in their factories; but as well as women being given their cards when they married, all young men were dismissed as soon as they reached the age of majority. This was because the factories could not compete using employees demanding full adult male wages, so the workforce was replenished with youths of both sexes, and adult unmarried women. The women at least had the choice of continued employment past the age of majority to support a single life instead of marriage, whereas men had no choice of any kind but were compelled to find work elsewhere; whether or not there was any available. Where, in any writing about men and women in the workplace, has this fact of blatant discrimination against men ever been mentioned? Of course, for most men and in normal times, they would have wanted to move on to better-paid work so as to support a family. In more desperate times, however, a wage of any kind would have been welcome; indeed necessary to avoid destitution - a situation almost unimaginable in the EU or North America today. A single man or a man with a family would be pushed below the poverty line, but a single woman would have remained in employment, and her married counterpart would have the support of her husband.

During boom times, reviews were undertaken to decide if the ‘marriage bar’ was to be kept, and then reasons would come to light in favour of the status quo. ‘Marriage bars’ were a particular feature of large employers and government, and a problem identified here was the large numbers employed in routine jobs. It was felt that the ‘marriage bar’ contributed to a healthy turnover of staff in basic grades. Removing it would lead to lengthier service in monotonous low-paid work, and this in turn would increase the turnover of men looking for something with better pay and prospects - men being the people the organisation wanted to hang on to for training up into management, as they were unlikely to cease work to become a home-maker. This was a latter-day rationale and did not eclipse the reasons for the ‘marriage bar’ being instituted in the first place.

The ‘marriage bar’ was not uniform in manufacturing - in some jobs where pay was tied to productivity rather than length of service, it made no economic sense to let go of experienced married women. In these cases, firms resisted popular calls for a bar. In clerical work, it was in just about every workplace. Teaching had long operated one, the civil service acquired one and, in 1932, so too did the BBC. The BBC and the civil service abandoned theirs in 1946, but in nursing - a near all-female profession, note - it was retained right up until 1973.

Married women workers were, to some degree, socially castigated and, even with the recession easing in the late 1930s, opposition was strong if the prospect of the bar’s removal was raised. The Union of Post Office Workers, which had a high proportion of women in its ranks, not only supported the ‘marriage bar’, but even called for the end of female employment. London County Council staff voted two-to-one in favour of the status quo. A ballot of civil servants in 1930 had shown just three percent of women in favour of scrapping it.

The ‘marriage bar’ was not discrimination against women. It can never be understood in that way. It was discrimination in favour of the full set of family households: a fairer redistribution amongst them. It was the progressive policy of its times - an important measure to promote social justice in a period when real want was a problem for millions. Times changed and it was abolished, but that it persisted up until recent decades was partly or even largely at the behest of women - to prioritise women in the workplace who had no support from a husband. As soon as it ceased to be of use to women, it was rescinded.

Quota ceilings for female entry into professions was the best use of scarce resources

A barrier to women seemingly more difficult to explain, was that of entry into certain professions. This was certainly a practice of sex-discrimination against those few women who applied, but it was seen as anything but unjust at the time. The most notable example of a profession closed to women was medicine - as anything more than a nurse or in the nursing hierarchy, that is. Women at one time could not be doctors, until eventually a quota was introduced. Up until 1975 in Britain, only ten percent of a medical school’s intake was open to women. In the USA a very similar unofficial system operated: a slightly lower post-war quota of between six and eight percent.

Access to medical treatment was a scarce resource, and it was imperative that the training of what supply of practitioners there was involved minimal if any attrition through training, and produced doctors who remained for their whole careers in the service of medicine. To this end, familiar as everyone was with the fact that it was only a small proportion of women who adopted lifelong careers, medical colleges regarded women collectively as liable to end their careers through marriage and child rearing. It was too big a risk to bet on them turning out to have a true vocation. It was therefore a disservice to the public to offer training places to would-be women doctors when there were plenty of suitably-qualified men competing for entrance. Another problem was that women tended to opt for one of only three areas: general practice, paediatrics or psychiatry (just as today women disproportionately still choose to be GPs - because of the potential flexibility of working, and the more rounded and straightforwardly caring role compared to hospital work. It is because women GPs tend to want to work only part-time or leave altogether that the GP service is currently in crisis). All of these were peripheral fields, and not being at the forefront of medical practice, those who practised them were unlikely to contribute to the advancement of the profession and the college.

No doubt a further objection was the distraction that women would provide for the majority of male students, and that this might lead instead of competition between men for grades, to a problematic competition amongst them for the attentions of the women students. In place of a community of like-minded proto-professionals, a split would develop between those who paired off and the remainder, stirring feelings of jealousy, and inclining those who hadn’t managed to pair off to seek female company elsewhere. Moreover, there was the fear that women may exploit the medical college as a marriage marketplace, so that even if a woman completed her studies, her mind would not really be on the training.

It is within recent memory that a quota system operated for all subjects in US ivy league universities. Similar arguments were behind this. Being pre-eminent colleges meant they had the pick of high-flying applicants. So why miss out on accepting some of the male potential stars by taking a risk on a few women? This is an important point. The normal distribution of talent across the population would produce a larger ratio of men to women in the very top bracket (see chapter five) that the likes of Harvard were looking for, so a quota similar to that for medical schools actually would be consonant with this. Indeed, with the shortage of training places available, it may well be that given the sex difference in normal distribution curves (the heavy preponderance of men at the top end), then a disproportionate ratio of men to women was necessary to avoid compromising on the level of aptitude/ability. On this basis there was no discrimination against women.

Myopic as it is for us to have lost the perspective of the family household as a worthier object for social justice than the individual, it’s even stranger that we fail to grasp the overall community interest that was served by a rule-of-thumb discrimination against the really very small sub-group of those few women who applied to medical school. The medical school and the premier universities were acting on behalf of the community, in its best interests in an environment of far tighter resources than we can imagine today. Against that, the disappointment of a few female applicants - if indeed once quotas were introduced there actually was any discrimination - should count for little.

Child custody law was primarily an obligation for men

Child custody is an issue with a large resonance today. With the changing world of the industrial revolution, the common law as it applied to the family became outdated by the late-eighteenth and early-nineteenth centuries, and informal or quasi-legal arrangements replaced it. The law was effectively irrelevant, because only a tiny minority could afford recourse to it, whereas informal means of separation and agreement on custody were cheap, easy, and enforceable. More fundamentally, to make an argument that somehow ‘patriarchal’ inertia was why the law lagged behind what people desired, supposes that people shared our current mindset regarding the law. They didn’t. Legal historians are unanimous that it was only towards the end of the eighteenth century that law moved to the forefront of social consciousness.

There was a reason for inertia, and it could be characterised as ‘patriarchal’; but most certainly not as feminists would understand the term. The state imposed liability on the father in order to ensure that men never shirked their responsibilities for their children - because the financial burden would then fall on the parish. A statute of 1646 granted guardianship powers to fathers, but although this gave to a father the right to appoint someone as the guardian for his children upon his death - his widow being the obvious candidate - the courts would not allow him to give away guardianship of his children to anyone while he was still alive, their mother included. It was forbidden for a father to contract out of his paternal duties. It was particularly important that the father could not divest his responsibility on to the mother, because being the carer she would be very unlikely to be in a position to provide the necessary financial support as well. The whole point of guardianship was to separate childcare - which hardly required a law to compel mothers to perform - from provision, which necessarily was for the benefit of the child and the mother. Being much more like a burden - an onerous one in some circumstances - provision was very likely to require enforcing in a minority of cases.

The state, if it was oppressing anybody, was oppressing the father; certainly not the mother. The state was supporting the mother on behalf of the community, and it was also supporting all others within the community who would otherwise be called upon to pay higher parish taxes that they could probably ill afford, but which in any case it was unjust to expect them to pay. These others were almost all of the men in the community. Children were, and were seen to be, assets only to their own family, and certainly not to the community, to which they were potentially a burden. In pre-modern and early-modern times - when marginal economic existence was the norm, where competition was local and direct, and where men who were not fully competent were unmarriageable - in these times it would have been unreasonable to expect men to in any way support another man’s child, except when there was no conceivable alternative to avoiding a mother and child’s complete destitution.

Problems arose indirectly from this when custody was at issue between mother and father, and the all-or-nothing situation loomed where the carer and the provider roles would have to be fused in the person of either the natural carer or the natural provider. Only one outcome was possible. Even if the father wanted to give custody to the mother, he could not do so because necessarily this would be relinquishing his guardianship, which the law would insist he must continue. In any case, a married woman could not bring a legal action against her husband without first obtaining a legal separation in the ecclesiastical court.

Sure enough, the law facilitated vindictive treatment of mothers by fathers exploiting a law intended to protect children, just as today the law pretty much guarantees vindictive treatment of fathers. But there is an important difference. The law at this time tended to reinforce long-term, male-female pair bonds, congruent with community interest, whereas the law today actually works relentlessly against this. However, even at this time, a father could be left in the position of having serious obligations but with no rights even of access to his children, if through cruelty or desertion or some other malfeasance he had forfeited his paternal rights.

Legal experts have convoluted disagreements about whether changes in the law were the driving force that eventually led, by the end of the nineteenth century, to the presumption that the mother and not the father had custody; or whether actually the law had hindered this development. There are mountains of writing about the famous De Manneville case of 1805 (e.g. Wright, 1999), which was the first brought by a woman to challenge custody law. Any and every interpretation has been put on the importance or irrelevance of this case, and the picture is too confused to be teased out here. Any feminist interpretation that the case somehow demonstrates inertia of the legal system in the service of ‘patriarchy’, in the light of the endless squabbling about what the De Manneville case can tell us, merely shows the lengths to which (supposed) scholars will go to twist things in support of their own position.

The law was in an appalling mess, with still more confusion from case law. By the middle of the eighteenth century, competing laws from the perspective of the different protagonists had asserted themselves. As the rights of fathers were being narrowed, more consideration was given to protection for mothers, by way of looking out for the care of young children, and the welfare and inheritance of children when they were older. Then there was the state poking its nose in as the uber-father. This was just the start of complication, because there were separate court jurisdictions for the different aspects of a separation. Property was straightforwardly in the main legal domain, but it was equity law that applied to custody, whilst the ecclesiastical jurisdiction governed marriage and divorce. To cap it all, there were the coverture (see below) restrictions. Judges must have dreaded these cases.

Generally on the rise was an appreciation that mothers are not just important but vital for children. Common law bequeathed the ‘tender years’ argument that young children should naturally be in the custody of the mother. However, this was seen to be trumped by the father’s role of passing on a skill, educating and generally preparing a child for the outside world. Remember, that until relatively recently, most men did the same work as their father had done. With education in short supply, if it existed at all, a man usually made his way at the start of adult life under his father’s wing. So even as the consideration of property ceased to be dominant, and the Infant Custody Act was passed in 1839 to allow blameless mothers to petition for custody of a young child, or for access to older children; the growing consideration of ‘the best interests of the child’ strengthened the case to award the father custody. What really undermined the Act was the clash of jurisdictions. Judges still looked to the ecclesiastical courts in respect of marriage, going on to consider custody on this basis. The new Act was sidestepped. The effect was to exacerbate the clash between the common law of paternal rights and the growing prevalence of divorce and single-motherhood.

The Infant Custody Act was one of several acts passed to try to free up the legal logjam, but as with most of them, it served to compound the problem. Parliament gave it another go and set up the Divorce and Matrimonial Causes Court in 1858. At first, the judges in the new court granted custody on the basis of a much wider interpretation of what was unacceptable behaviour by husbands, and a marital fault rule was quickly established. But this was scuppered, not by determinations from the ecclesiastical law, but by the equity courts; since they had the power of review. Once again, fathers were denied custody only if they were found to be extremely unfit. What really stymied the whole enterprise, however, was that by using the new concept of marital fault to decide parental rights, the ‘best interests of the child’ were lost sight of. The idea that women reformers had of treating parenting and marriage as separate legal domains collapsed. Until changes occurred regarding married women’s property, a woman’s claim to custody of her children would almost always lose, precisely because ‘the best interests of the child’ directed that it stay with the parent who had legal control over property; who was of course the father. So it was that married women’s property acts were introduced and they did seem to drain the legal swamp.

That custody law had changed out of all recognition by the end of the nineteenth century, is indisputable. The scope of aspects of custody that the law addressed had expanded, and the ‘best interests of the child’ doctrine would have held sway much earlier if it had not been so difficult, because of the law of coverture, to reconcile paternal and maternal rights. There is no sign here even of inertia, let alone ‘patriarchy’. A series of genuine attempts to modernise the law came in quick succession, until finally a practical solution was found and enacted.

If what happened regarding custody in recent centuries does not provide support for a feminist interpretation, then what if we go back a lot further? In Anglo-Saxon law, the rights of mothers were similar to the rights of fathers in the event of separation or widowhood. What is more, a wife could take half the family’s property upon separating from her husband, if she also took custody of the children. In common law - which we have passed down to us from Anglo-Saxon times - the mother is her child’s guardian, so long as she is not the inheritor of her child’s estate (this condition being to make sure that lands would be in the hands of productive workers). And even if the mother did not control the child’s estate, the child remained in her custody. There are extant written sources for the unique legal rights of mothers from the thirteenth century, which is the usual extent of survival of documents, whichever topic in history is researched. So we can presume it dates back to time immemorial.

The law was relatively uncomplicated back then. Only in later times did there emerge courts with ill-defined overlapping jurisdiction and competing legal principles; all with their own superseded statutes and evolving case law. This explains the apparent disadvantage of women in the late eighteenth and through much of the nineteenth centuries. Part of the problem, as I have alluded to, was the law of coverture, and I want now to look into this legal peculiarity that women campaigners held in such contempt.

Coverture was an unreasonable imposition on men

Coverture was bound up with the custody issue, being another facet of the view that the family household and not the individual was the unit of society. Husband and wife were treated as one entity, which meant that wives could not control their own property unless specific provisions were made before marriage. This seems pretty Jurassic even to the most non-feminist contemporary outlook, but there are ramifications that again put things in their true light. Perhaps the clearest description of what coverture meant was made in 1765 by Sir William Blackstone, in his Commentaries on the Laws of England:

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything.

Legally, the husband was responsible for all actions of his wife, and he could be imprisoned on this basis. So, for example, if the wife’s expenditure brought the couple into debt, then the husband would be imprisoned, even though he was the breadwinner and had been the one who had built the financial liquidity of the household, and had in no way contributed to its bankruptcy. A wife could knowingly spend money she knew her husband did not have. Indeed, it was a legal obligation to provide a wife essentials on the offer by the wife of her husband’s credit, regardless of the consequences. Coverture gave carte blanche to vindictive wives literally to permanently ruin their husbands and condemn them to life imprisonment. In complete contrast, the wife was rendered immune to prosecution, because any criminal activity would be deemed to be under the husband’s direction, and he alone was then regarded as the one who had actually committed the crime. In time, this was refined to any crime committed in the husband’s presence, or any that in his absence the wife was coerced to do - and simply being told to do something was sufficient to be regarded as coercion. Coverture laws remained until well into the twentieth century. Some statutes exempted certain crimes, notably murder and treason. For example, in the USA, the Oklahoma Statutes of 1931 exempted under certain circumstances murder and treason and sixteen other crimes.

Modern interpretations of coverture pathologise what was in fact protection or chivalry. Coverture was the fiercest legal insistence that a man take responsibility for his family, no matter how wronged he may have been, and no matter how capable his wife was of taking full responsibility for her own behaviour. So coverture does not just provide evidence of female disadvantage as against male privilege. It also provides evidence of male disadvantage and female privilege.

A re-examination of legal nostrums of a past age that most people regard as at best quaint, turns out not to show the operation of the feminists’ mythical ‘patriarchy’, but an oppressive paternalism by the state - specifically against men and on behalf of women and children. It has always been the case that children are legally under the ultimate protection of the king - indeed, explicitly so - but it seems that at least by association, women have been brought fully under the king’s great cloak. (We know from how biology plays out in human social psychology, that it is in fact the other way round: that women were always fully under the king’s great cloak, and by association so were their children.) As in effect the alpha male of the national community, the king had conjugal rights over every woman in the land - some princes, even in modern times, have acted as if they were entitled to this privilege under the modern written law! That leaves men rather on the outside of the tent in this united nuclear family of the whole kingdom. They are the people that women, and by association children, are ‘protected’ from. In complete contrast, men themselves were not protected in any sense by the Crown, but instead threatened by the king’s drawn sword, and typecast as enemies of the state.

Summary

Whatever the contemporary evidence, it’s never questioned that, historically-speaking, women were disadvantaged. This is taken as proof that men must have ‘power’ over women. But the truth is that through history not only were women never disadvantaged but they were privileged. It’s always a mistake in looking at the past to impose today’s outlook on the behaviour and thinking of people in former times. When you look in terms of what was needed to achieve social justice at the time, then as now it was for the benefit primarily of women.

Up until very recently, people did not think in terms of individual rights, but of mutual obligations within the household in which everyone lived. From this perspective, it would be nonsense to compare the sexes in terms of rights, wrongs, privileges and duties, when the sexes had clearly different but complementary domains that couldn‘t be compared.

At a time when the wealth available for distribution was so pitifully small there had to be in effect some tough-minded rationing. The necessary division of labour between homemaker and breadwinner made it important that the male breadwinner competed for and received a ‘family wage’; whereas any income for the person who was principally the homemaker was in comparison unimportant.

Women, not men, benefited from the ‘marriage bar’. This was to ensure the full employment of those women who needed to work. This is why women were the main supporters of the policy - it had nothing to do with ensuring full employment for men. With widespread sex segregation of work, there was little competition between men and women for jobs, as shown by the independence of male and female unemployment.

In times past when training resources for top professions were scarce, it made good sense to take account of the proclivity of women to leave full-time professional life or to compromise it with other goals. This sometimes meant not considering women as applicants at all. But where they were considered, it made sense to place a low upper limit on the proportion of women; not just for the aforesaid reasons, but also to reflect the skew in ability at the top end of performance between the sexes.

Regarding custody law the point was to prevent any man from eschewing his financial obligations towards his children. That women have an inalienable bond with their own children that is not necessarily mirrored in men, is why law was necessary only in respect of enforcing male obligation. As soon as cases emerged of conflict with motherhood, effort was made to change the law, which finally came to fruition after complications were overcome.

Coverture is the legal principle that a man must take responsibility for the actions of his wife, no matter how unreasonable. This has been presented as the creation of a female legal non-persona, but any adverse consequence for women was unusual and minor compared to the serious imposition on men. It can be understood only in terms of the conception of social justice at the time, that the family household, not the individual, was the locus of rights and duties.