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Nanna Damsholt, former representative in Denmark for IFRWH, has retired this semester from her position at the Center for Women's Studies at the University of Copenhagen.
Two PhD. students have defended their dissertations:
Nina Koefoed at the University of Aarhus, February 27: “Promiscuous
women and unloving fathers. Gender and right in Danish marriage and morality
legislation in the long 18th century.”
The thesis focuses on the regulation of sexuality in Denmark in the 18th century.
Sexual relations outside marriage were severely punished, and the thesis discusses
why and how sexuality outside marriage was regulated and the developments in
this regulation during the 18th century. The thesis argues that regulation of
sexuality outside marriage in the late 17th and during the 18th century was
part of an effort to establish a Christian society. Likewise, decriminalizing
of extramarital sexuality in the beginning of the 19th century is seen as part
of a general secularization, i.e. separating the political level of society
from religion. In addition, the thesis argues that regulation and legislation
took place in the meeting between legislator and subject. The thesis uses source
material stemming from the process of legislation and from the correspondence
between the central administration and both the local administration and the
subjects.
Methodically this thesis draws upon a discourse analytical approach. The analyses
of the letters from the subjects to the king are inspired by Natalie Z. Davis
and her argument that it is possible to reach the subjects through these sources.
Moreover the work has a gender approach and uses Linda Alcoff's idea of positionality.
The first of two analytical main parts, part 3, Sin, unishment and Expiation,
regards the consolidation of the regulation after the Reformation as a secular
phenomenon. Part 3 follows the development through the first half of the 18th
century, but starts out with a chapter, Fornication and Responsibility, showing
how regulation of sexuality outside marriage was established as a secular matter
between the Reformation, 1536, and Christian V's Danish Law, 1683. The regulation
was justified by the Christian ideology of sexuality and marriage, seeing virginity
when entering the marriage and monogamy in marriage as important. Sexuality
was only legal within marriage, and sexual relationships outside marriage were
a sin and a violation of the sixth Commandment. The Christian idea of sin made
the woman responsible for her own sexual relations before marriage, which had
earlier been regarded as a male responsibility. Sexual relations before marriage,
from being a violation of the family's property, became a religious sin and
thereby a threat to society. Punishment for male adultery was made possible
as a result of the Christian influence on secular law.
In the chapter, Gender and Right in Danish Law, it is shown how regulation of
sexuality outside marriage in Danish Law was based upon the religious idea of
sin and how men and women were looked upon as equally responsible for the sexual
relationship outside marriage. But it is also an argument that the cultural
understanding behind the law held the man responsible for sexual relationships
in general and only regarded the woman of bad reputation as having an initiative.
The analysis shows that the purpose of the regulation of sexuality outside marriage
in Danish Law was to make people marry, which is a new understanding of the
purpose of the regulation in Danish historical research.
Chapter 3.3, Soldiers and Morality, examines legislation within military jurisdiction
regulating sexuality outside marriage. The only subjects, who did not have free
access to marriage, were the professional soldiers. In 1696 as a kind of compensation
they gained freedom from punishment for first sexual relation before marriage.
It is shown how legislators throughout the century tried to reserve the freedom
from punishment to the first prematrimonial relationship and at the same time
gradually extended the freedom from punishment to still more groups of both
professional and enrolled soldiers. For the first time in Danish historical
research, this chapter gives a survey of which soldiers were free from punishment
for their first prematrimonial relationship.
The extent to which the man was bound to a promise of marriage, and whether
a woman could use prematrimonial sexuality as a
strategy of gaining marriage, is a central theme in the research of regulation.
Chapter 3.4, The Valid Promise of Marriage, argues that the man was bound to
marry if he impregnated made a woman of unblemished reputation. This obligation
disappeared from the law in 1734, but existed continuously as a cultural demand
into the second half of the 18th century. The legislation in 1734 is analyzed
as an indirect acceptance of a man being able to engage in a sexual relationship
without promising marriage. In addition, it is consequently seen as a beginning
of the separation between the law and the king's obligation to make sure that
his subjects lived in accordance with the Decalogue. The clergy were deeply
involved in the practical regulation of sexuality outside marriage. In the chapter,
Fornication and Religion, the role of the pastor in reporting the nonmatrimonial
sexuality to the secular authority is analyzed together with the clerical part
of the jurisdiction, the public confession. Attention is called to the fact
that the pastors in Denmark did not, in contrast to the situation in Sweden,
have any power to secure the payment of fines by keeping people away from confession
and communion. It is an argument that the pastors in general were not very eager
to keep the clerical part of the regulation, but instead the regulation legitimized
by the sixth Commandment appear as a political project.
The chapter, The Ideology and Practice of Punishment, finish part 3. The chapter
explores the development from a Christian ideology of punishment containing
principles of deterrence, retaliation and separation from one's fellow countrymen,
to the idea of punishment with a purpose of improvement. Hard labor as useful
for both the individual and the society was part of the ideology of punishment
established during the 18th century. Furthermore, it is discussed to what extent
it was possible for the administration of justice to fulfil the intention of
the law regarding regulation and punishment. The development in the practice
of dispensation from punishment is analyzed, as is the connection between the
applications for pardon and the actual legislation.
Part 4, Decriminalization and Social Consideration, deals with the regulation
of sexuality outside marriage in the second half of the 18th century until the
decriminalization of the first and second prematrimonial relationship in 1812.
A characteristic of the period is a growing rate of illegitimacy, which in the
thesis is connected with the process of secularization and cultural changes.
The first chapter, Illegitimate Children and Their Parents, shows how the legislation
about morality shifted its focus from regulating and limiting looseness, to
trying to limit the social consequences of the extramarital relationships and
to secure the unmarried mother and the illegitimate child. In this connection
the demand on the man shifted from marriage to providing for the child. It is
argued that secularization changed the political legitimation. Natural law and
social consideration became the legitimizing factor in law-making instead of
the Law of God. It is shown how social consideration contributed to the construction
of parent identities consisting of the loving, caring mother and the providing,
unfeeling father, a new understanding of regulation of sexuality outside marriage.
The second chapter in part 4, Clandestine Childbirths, presents a well-known
problem in the history of illegitimacy. The question of why so many unmarried
women killed their children immediately after giving birth, has called upon
research ever since it was a public matter. It is shown how the legal attempts
to prevent clandestine childbirths changed from a very strict law and administration
of justice over attempts to take away the shame in the punishment of the unmarried
mother, to finally focusing on the social and economic aspects of being an unmarried
mother. Debates about clandestine childbirth were closely related to the discussion
of regulating looseness and to the consequences of that regulation. During the
18th century the law regarding clandestine childbirths did not change, but in
actual practice punishment changed from almost certain execution to a few years
in prison.
In the third chapter, Decriminalization, initiatives for decriminalization both
in legislation and in administration from the beginning of the 1770s to 1812
are analyzed. It is shown how a temporary abolishment of regulation of sexuality
outside marriage under the indirect rule of J.F. Struensee in 1771 was a continuation
of the preceding policy of commutation of sentences in the central administration.
Throughout the chapter it is argued that the political will to ease the regulation
and the practice of punishment
surpassed what could be politically legitimated. The result was that the changes
in the legislation were anticipated by changed administrative practice. Going
through the practice of commutation in the chancellery, it is shown how the
local administrations and the subjects established a solid pressure on the central
administration system, a pressure that was partly invited by the central administration
itself, and a pressure that ended up being an argument for decriminalization.
A superior argument throughout the chapter, and throughout the entire thesis,
is that decriminalization was made possible only because the religious legitimation
of the policy of the absolute king was replaced by a legitimation built upon
Natural Law, Enlightenment and social consideration. Likewise it is argued that
decriminalization was connected with a wish to make sexual relationships and
marriage part of the private sphere. When the fine was removed in 1812, neither
prematrimonial relationships nor adultery were really a question of public interest.
Part 5 is a case-study, analyzing local administration of justice in the market
town of Viborg. The case shows that the law was enforced in this royal jurisdiction,
in contrast to what has been argued about the jurisdiction of the local landowners.
Lack of means to pay a fine provoked subsidiary punishment. It is a tendency
that women paid their fine or suffered alternative punishment, while men more
often were unknown or ran away. It looks as if especially the threat of serving
prison on water and bread made the men disappear, while both men and women in
the beginning of the period made their public confession in church before they
ran away. The case thereby calls into question the theory that the shame connected
with the public confession was the most feared part of the punishment. The chapter
argues that after the temporary abolishment of the regulation of sexuality outside
marriage, the local practice of justice was eased, which may have contributed
to the fines having lost their legitimacy and in the end being removed.
This thesis has contributed to the existing research by its comprehensive analyses
of the legal regulation of sexuality outside marriage, a theme that in Denmark
has not previously been treated as part of a secularization. As something new
this thesis has established a connection between the fall in illegitimacy at
the end of the 17th century and the growth in illegitimacy towards the end of
the 18th century, and argues, partly on this background, for concord between
the norms of the population concerning sexuality outside marriage and attempts
to regulate. This thesis has contributed to the general understanding of the
absolute monarchy by analyzing meeting between legislator and subjects through
the institution of the letter of pardon and the proving the importance of the
exchange taking place in that institution. As a new element in the research
of the regulation of sexuality outside marriage, this thesis has analyzed the
development in the construction of gender connected to the regulation through
the period, especially concerning the establishment of the identity of the parents
of the illegitimate child in the second half of the 18th century.
There is a long continuity in the Danish legislation on marriage from the
Marriage Ordinance of 1582 to the reforms of the legislation in the 1920s, but
adjustments of the legislation were made with due influence from the progress
of society during the first half of the 19th century. It is these new tendencies,
which are the subject of this thesis at hand.
The first half of the 19th century was, on numerous accounts, a time of upheaval
as the relationship between state and individual changed, just as the relationship
between state and church changed. Danish church historian, Per Ingesman, has
made interesting observations on the state, church and population, and Ingesman’s
representation and interpretation of the transition from ‘the church project’
to ‘the state project’ at the end of the 18th century is included
in this analysis. Although the belated monarchy passed reforms within a number
of areas, he did not take up the judicial family legislation for a general revision.
But there was an adjustment of the marriage legislation. This adjustment developed
into a clash with the apparent one-sided Lutheran marriage legislation, and
hence the claim is that the adjustment developed into secularization of the
marriage institution during the first half of the 19th century.
The thesis statement, which, by referring to three arguments already made during
the beginning of the 19th century, indicates a secularization of marriage. The
three main arguments are as follows: 1) The creation of a statutory instrument
of 1824. 2) Liberalization of the administrative practice containing separation-
and divorce cases of ca. 1790. 3) The development of (selected) demographic
marriage patterns. In short, the purpose of this thesis is to show whether studies
on the view of the marriage institution can confirm Ingesman’s interpretation
of the growth of the state project, just as the analyses can shed light on the
basis for the reforms in the marriage legislation during the first decades of
the 20th century. The latter has been examined by the research team behind.
The Nordic Model of Marriage and in numerous passages of this study it is suggested
that the reforms of the 20th century had roots further back, so that the reforms
in several fields served as a legalization of existing practice. So far, the
research into marriage is mainly concerned with three perspectives, namely demographic,
anthropological/sociological and legal perspectives. There are three fields
that are very different methodically, and they are generally seldom combined.
The demographic and legal approach to the subject have inspired this thesis
at hand, but in a larger perspective this thesis derives most of its material
from the most recent welfare research. Recently, within welfare research, there
has been much focus on the significance of religion for Nordic history, on the
basis of the close ties between the church and
the state after the reformation. Additionally, there is the significance of
religion to both the establishment of the state and Nordic identity in general.
This highlighting is interesting, since, in the construction of the welfare
state, there was no radical break with previous values; the Lutheran values
simply existed in a new (secular) context. Furthermore, the combination of religion
and welfare research emphasizes the importance of the broad outlines in history.
In chapter 6, the marriage requirements, which until 1824 were solely influenced
by the Lutheran teachings, are analyzed. The regulations prohibited marriages
involving bigamy, adultery and incest. The increase in population from 1775
and the following proletarization created the debate of “promiscuous marriages,”
a rumor that circulated during the 1810- and 1820s, and as a consequence a new
marriage requirement was added. The argument, which associated the contract
of “promiscuous marriages” with the increase in number of poor people
as the cause and effect, was formulated in a chancellery circular. This circular
resulted in 164 deliberations in 1817, which are analyzed here. Thereby, marriage
was highlighted as the cause of the topical national problem, and therefore
it played a central role in the debate. Chief Attorney Aagesen formulated the
new terms of marriage, which was an extensive provision: the right of the poor
to marry should be restricted. This occurred in spite of the warnings given
in the 1817-deliberations against intervening in such regulations. The intent
of the regulation, which stipulated that poor people who had received non-refundable
poor relief could not marry without permission from the commission of the poor,
was to protect society against an increase in number of poor people and the
subsequent economic burdens. In practice, unmarried women had their social benefits
withdrawn if they decided to marry, whilst men were enjoined to reimburse their
social benefits before marrying. Thereby, the rewording of the regulation of
1857 was in concurrence with the employment of the regulation in practice; it
was the man who had to maintain his obligations as caretaker of the family.
Thereby I can claim that the marriage legislation formulated the role of the
man of the secular state project: the man was the caretaker of the family.
We do not know the quantitative effect of The Malthusian Experiment? (the statutory
instrument of 1824) but we must not fail to
understand that it was the first steps toward making second-rate citizens out
of receivers of poor relief. As a result, the local commissioners of the poor
had a firm mental hold of the poor by declaring them incapable of handling their
own affairs, a tool which was used subsequently in other contexts. This probably
also explains why the regulation was in effect until 1961, although decreasingly.
In chapter 7, the liberalization of the administrative practice of separation-
and divorce cases is analyzed. The first post-reformatory divorce regulations
were formulated in the Marriage Ordinance of 1582. These regulations, which
acknowledged adultery, decampment, and impotence as valid reasons for divorce,
were in effect up until 1922. However, due to the influence currents in the
European History of Ideas, a possibility was developed alongside divorce by
verdict. This
additional possibility was the failure of marital cohabitation (“incompatibility
of temper”), which became a valid reason for separation and divorce from
ca. 1790. Not only did the reason for separation- and divorce change but also
the considerations of a case, as the concession practice of the king was decentralized
from 1800, and thus the task was handed over to the prefects. During the first
half of the 19th century the Conciliation Boards, at the local level, handled
the divorce cases, since
the legal provision of secular conciliation took place there. 321 marriage cases,
which were conducted in the provincial towns of Svendborg and Helsingør
by the Conciliation Boards during the period of 1795-1857, are analyzed here.
The empirical examinations showed that the contract theories influenced the
views of marriage; thus marriage was a contract that could be cancelled as long
as both parties agreed to it.
The cases that were processed by the Conciliation Boards were primarily about
the lack of marital happiness and the reasons stated were marital misconduct,
that is, the husband’s insufficient provision, and incompatibility of
temper. This is thus an indication of the idea of the right to a happy life,
which, if not fulfilled, could give grounds for dissolution of marriage, after
the reorientation. And these were very different grounds for divorce than those
formulated in the Marriage Ordinance. Access to separation could be utilized
to prolong divorce cases, but if one examines the secular conciliation, it is
clear that separation (more so than divorce) was also utilized to keep the husband
attached to his obligations as provisioner within the family. And thereby the
state was not obligated to resume any responsibility. Furthermore, the possibility
of separation secured that the rights of the population were considered without
fully undermining the marital institution, since the legal effects of marriage
continued even
after separation.
The reorientation from 1790 lead to the change of the ideal of God’s arrangement
(marriage) as an indissoluble bond; the church
had to respond to this. An enquiry to Danske Kancelli (the Danish Chancellery)
in 1819 proved successful and resulted in a statutory instrument, which integrated
the clerical conciliation into the processing of marital cases. The 1811-statutory
instrument, as well as an instruction on how to relate to antagonistic married
people, propagated an orthodox
view on marriage, and it indicated that the church did not accept the reorientation
from 1790. But among the clergy in the parish communities there existed various
views of the reorientation, and within this clergy there was a group of ministers
who saw it as their obligation to recommend divorce if there was no basis for
a satisfactory marital cohabitation.
The attempt of the bishops to maintain the influence of the church in terms
of the new tendencies was generally unsuccessful; they lacked trenchancy both
internally and externally. The reorientation in marital cases also proved that
jurisprudence and theology were irrelevant to one another. In chapter 8, the
demographic patterns of marriage in Denmark during the nineteenth century are
analyzed. The analyses are based partly on Statistisk Tabelværk (Statistical
Tables) and partly on demographic data collected from Danish parish registers
and census papers. The collected demographic data is taken from four Danish
cities: Bogense, Varde, Slagelse and Aarhus, and they contain data from a total
of 3453 wedding ceremonies conducted during the period of 1814-1860. The demographic
enquiry into the patterns of marriage showed that marriage was still important
to the majority of the population in that the frequency of weddings, with few
exceptions, were 7-9 per thousand throughout the 19th century, just as the average
age for marriage was unaltered during the first part of the 19th century; yet
with a downward tendency after 1840. Throughout the 19th century there was accordance
between the Western European patterns of marriage, which is defined by John
Hajnal, and the patterns of marriage in Denmark.
The patterns of marriage of the lower class were different from the general
pattern in several ways. Up to 65% of the married couples from the lower class
that were married in the four selected cities had children before marriage or
they conceived a child within seven months of marriage. This leads to examinations
of the parents? influence on the choice of partner.
For considering that pre-marital cohabitation was widespread, one must question
the increasing control and use of sanctions on the part of parents. Of course,
such observations do not exclude the possibility that this was not the case
outside the lower class. Hence, it is evident that the son or daughter, who
were to take possession of the farm, workshop, or trade license, or the like,
could play an important role in the marriage strategies of their families. But
a great number of those young people desiring marriage were not among “the
chosen” or not in a situation where they could expect to inherit privileges
from their parents. Therefore, the assumption is that the majority of the population
in the 19th century was relatively free to choose their partner, as long as
the terms of marriage were respected. This also opened the opportunity to choose
a partner out of love. Within patterns of marriage a new tendency is discovered,
which continues until the 20th century. The analyses of the patterns of re-marriage
showed that to an increasing extent the widows refrained from marriage. Throughout
the 19th century the widows constituted a noticeable component in every town;
they were head of the households and they supported themselves. If one compares
this development to the number of unmarried women (50-59 year-olds), it appears
that a number of women, to a lesser extent, viewed marriage as a matter of course.
The city presented the opportunity to live alone and manage without a man, and
these women were critical of the limitations that marriage could present. Their
civil status gave them privileges whereas the married women had to subordinate
the man. The incentive behind the secularization of marriage during the first
half of the 19th century in Denmark was partly due to the European History of
Ideas, and was partly due to the increase in population from 1775. But it must
be emphasized that this increase was only characteristic of Denmark. The characteristic
of the Danish statutory instrument was that the regulation was formed into a
concrete law even though the debate about wanton marriages was also existent
in the rest of the Nordic countries. Moreover, the timing of the law was a distinctly
Danish phenomenon; the restrictive attitude towards the poor came through early
on in Denmark. The development of the access to separation and divorce was founded
upon a long tradition earlier than the exemption practice of the king, which,
on a smaller scale, dated back to the 18th
century. Furthermore, the way in which the marriage cases were processed after
the reorientation became an integrated part of a long Danish tradition within
the conciliation practice. Additionally, the reorientation was very liberal
in a European context, and it was especially characteristic in its continuance.
The adjustment of the marriage legislation for the progress of society during
the first half of 19th century was used to emphasize the rights and obligations
of the population the new secular project, and the consequences were that the
marriage institution was secularized. But the adjustment was a means to keep
marriage intact by conserving its central placement as social order. Therefore,
marriage, which was grounded in the Lutheran tradition, had less significance
as God’s arrangement, as a tool for reproduction or as protection against
adultery. However, this does not mean that the population married for these
reasons, but instead, to a large degree, the grounds were that the family’s
provision needed to be ensured. And here the man could prove himself useful
in a societal context, in return for the rights that were granted him throughout
the 19th century. The role of the woman was, on the other hand, more complex,
and included both management of
a house and welfare work, which did not exclude the fact that she also contributed
to the provision of the family.
Compiled by Karin Lützen