The Changing Social Setting of Alimony Law

Robert W. Kelso
1939 Law & Contemporary Problems  
The ultimate validity of any principle of law, and consequently of all written rules of public order based thereon, rests upon social need. It is the aim of all men, related to each other in that nexus of physical and mental contacts which we call "society," to live happily and at peace. To that end is the conduct of the individual regulated. Through the long experiment of trial and error, neighborhood and tribal custom works itself out into principles of personal conduct. The resulting body of
more » ... the unwritten law becomes the self-imposed regimen of a free and self-determining people. If this reasoning be sound, it must follow that changes in social need call for corresponding changes in rules of law; that the law must be a changing, growing structure, responding to those constant alterations in environment which society experiences as a result of man's continuing conquest of the forces of nature and the resources of the earth. Law is not static. Careful perusal of the following articles in this symposium will reveal the origin, the historical development and the legal reasoning upon which the modern law of alimony rests. It is the purpose of this article to explore with some thoroughness the social setting surrounding this legal principle, with intent, if possible, to identify those social determiners which justify the rule and those which may indicate change: and finally to identify such change as seems advisable in the premises. Concerning this social matrix for the law of alimony three considerations call for some analysis. The first is the function and importance of the family; the second, the principle of self-support in a free people; and the third, the question whether the status of woman under coverture has so for changed as to call in itself for change in the present law of alimony. And first as to the family as an institution in human society. Modern man's acceptance of monogamy as the best form of family structure is often said to result from his increasing sense of morality. In all probability his alleged increase in moral appreciation has nothing to do with his attitude toward the family; or if it does, it is result rather than cause. The mating of a single pair and their continuance in ex-
doi:10.2307/1189356 fatcat:7xeaecpftvebzb55pwnp42vtle