Trifling Violence: The U.S. Supreme Court, Domestic Violence and the Golden Rule(2011)
AbstractDomestic violence is ubiquitous across eras, cultures, religions and political systems. Despite forty years of feminist reform in the developed West, the status of women and girls remains the foremost global human rights issue of this century. Feminist responses to domestic violence seek to free women from gender subjugation, but such movement inevitably challenges moral and natural claims about marriage and family in traditional society. These traditions claim religious and moral authority but neglect greater antecedent principles, while reformers often have overreacted by abandoning established moral thought in favor of relativistic, individual discernment. Contemporary feminist movements should appeal to the antecedent, superior moral tenets that undergird religion to confront traditional gender subjugation on its own ground. In the United States, this possibility is manifest in the struggle at common law to adjust moral language to the gradual, radical evolution of gender status and marriage. Here, I examine the history of domestic violence in the common law at the Supreme Court to illuminate the challenge to liberating, empowering reform and the defensive resistance of traditional moral claims. Then, I propose to revive an ancient idea, the Golden Rule, as the core moral, natural underpinning for marriage, especially as it implicates domestic violence. The old common law of marriage made stark and bold claims to nature and morality but did not accommodate the deeper principle of intentional, disciplined love. Likewise, the Court’s contemporary moral metric, sharply deferential to individual conscience, ignores the fundamental moral rule, upon which Western jurisprudence must and ought to hang. This moment generates a divide that alienates traditional claims to morality from feminist claims to human dignity, when both might share constructive space within a rigorous Golden Rule. The immoral roots of the common law survive to this day, in generations of victims and perpetrators. If the common law’s old claims to morality and nature had grappled with love and the Golden Rule, courts could not have ignored the ugly, violent effects of subjugation in traditional marriage. Thus, I offer a caution for our age, first suggesting that courts and lawmakers should be wary of importing the bad moral reasoning of the founding era as it relates to families and marriage, and then suggesting that an ethic of love is a sounder foundation than blind genuflection to individual sovereignty and relative moral discernment. Rather than discarding established moral and religious ideas, global feminist movements can starve traditional apologists of their anti-modern criticism by sounding reforms in the superior, antecedent Golden Rule.
Citation InformationJeffrey R Baker. "Trifling Violence: The U.S. Supreme Court, Domestic Violence and the Golden Rule" (2011)
Available at: http://works.bepress.com/jeffrey_baker/4/