Article by Mary Ann Glendon
My title combines two subjects that are treated in present-day common law theory as quite separate and distinct. In fact the only reason I have dared to merge family and property in one lecture is that the masthead of the Tulane Law Review proclaims to the world that it is "devoted to the civil law, comparative law and codification." This expression of devotion to the civil law permitted me to hope that you would accept Jean Carbonnier's characterization of property and family as two of the three great pillars of the civil law. This in turn led me to believe that you might share or at least be receptive to the idea that if one breaks down the artificial barriers between the various fields of private or civil law, the knowledge gained in each area may deepen one's understanding of every other and bring out connections that might remain invisible from within the confines of the usual categories of contracts, torts, and property. (I am thinking here again particularly of the work of Carbonnier to whom civil law eventually became material for legal sociology of a most original sort.)
The historic affinity of Tulane for the civil law has thus encouraged me to begin this talk with two recent legal developments affecting family and property and to advance the proposition that these developments are related to each other—in a relation that manifests itself primarily through certain developments in the third pillar of the civil law, contract. The first of these two developments concerns the termination of the marriage relationship; the second, the termination of the employment relationship.
As background, it should be pointed out that the first part of the title of this lecture was adapted from a recent article by Professor Homer Clark on The New Marriage, and the second part was borrowed from Professor Charles Reich's article, The New Property. By "the new marriage" Professor Clark meant to call attention to such things as the estimates of Census Bureau demographers that marriages now being formed run a thirty to forty percent chance of ending in divorce, to the increasing appearance of marriage-like behavior outside formal legal marriage, and to changing attitudes, behavior, and law in the area of spouses' economic relations. In The New Property, Reich suggested that today for most people, one's employment or profession, and work-related benefits such as pensions, are the principal forms of wealth, and that for many others claims against government are the main source of subsistence. Reich argued that these new forms of property, namely jobs or entitlements, are not only our chief forms of wealth but also the basis of various statuses in our society, and that as such they should be accorded legal protection analogous to that our legal system has offered to more traditional forms of wealth.
I would like to begin my account of what I think of as changes in the legal bonding between husband and wife in the marriage relationship and between employer and employee in the employment relationship at a time when these two relations were treated as branches of the same subject. The great nineteenth-century American treatises demonstrate that the common law has not always treated marriage and employment separately. Indeed, as late as 1900, the master-servant relationship was still being classified by the writers of domestic relations treatises as one of the five domestic relations: Husband and wife, parent and child, guardian and ward, infancy, and master and servant. By that time, however, this classification had already become anachronistic with the appearance in master and servant law of those distinctive rules that would later come to be subsumed under the headings of agency, contract, and labor law. But up to the turn of the century there was a kind of jurisdictional war among the treatise writers, with each one claiming that what we now call labor law belonged in his own field—agency, contract, or domestic relations. The analytical difficulties of continuing to treat the situation of nineteenth-century industrial workers under older rubrics were manifest in such curious titles as that of Irving Browne's 1890 treatise, Elements of the Law of Domestic Relations and of Employer and Employed. The master-servant writers, such as Wood and Labatt, won out for a time, but eventually most of their subject matter was absorbed into labor law. The master-servant terminology survives today mainly in the West Key Number system.
One of the new rules of master-servant law that came to be accepted by the great majority of American courts by the end of the nineteenth century was that an employment with no fixed duration was presumptively an employment at will, terminable for any or no reason by either party at any time. This rule was something of an anomaly for a common law system in that it apparently first appeared in the doctrinal writing. It was simply asserted by a treatise writer, Horace G. Wood, in 1877. But it was well suited to the prevailing laissez-faire atmosphere and was quickly adopted almost everywhere. This rule more than any other neatly symbolized the poor fit and eventual escape of master-servant law from the conceptual framework of the law of domestic relations, where a general hiring of a servant had been treated as presumptively for a year and as terminable only by customary and reasonable notice.
Turning the pages of any of the nineteenth-century domestic relations treatises from the master-servant chapter to the husband-wife chapter, one finds an interesting contrast: at the same time that the principle of free terminability of the employment relationship was taking root, no rule was better settled than that the husband-wife relationship was terminable only for serious cause. There were, of course, (as there always are) discrepancies between the principle and the practice in both situations. However, the century that has passed since "Wood's rule" was established has brought about a dramatic reversal in these two doctrines. The two former domestic relations have not only ceased to be neighbors in the treatises, but they have almost exchanged their conceptual starting points so far as termination of each relationship is concerned. That is, while marriage is now increasingly terminable by either spouse at will, most employees in the present labor force cannot be discharged except for cause.
About the Author
Mary Ann Glendon. Professor of Law, Boston College Law School.
Citation
53 Tul. L. Rev. 697 (1979)