Welcome to our A-Z of Faith Series: articles written by Peter Mansfield, an insurance litigator and member of our church leadership team. We hope you find these reflections on faith and religion insightful!
I want to talk about bigamy.
Section 57 of the Offences Against the Person Act 1861 states: "Whosoever, being married, shall marry any other person during the life of the former husband or wife... shall be guilty of a felony, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding seven years."
That's right. It is a crime in the UK for one person to marry two people. The question I now pose is this: why?
After all, the sexual cohabitation of three people does not offend the law. Many have done this over the years - Jean-Jacques Rousseau, Admiral Nelson, Percy Bysshe Shelley, Friedrich Engels, Carl Jung, Erwin Schrodinger and Aldous Huxley were all involved in menages a trois, albeit not together. Most unexpectedly (at least to me), Hattie Jacques lived with her husband, John le Mesurier, and her lover, John Schofield. What a carry on.
These relationships, also known less elegantly as throuples, are perfectly legal, as are polyamorous relationships. However, if any attempt is made to formalise these relationships into a multiple marriage, there is the danger of "penal servitude".
Why?
Perhaps because it upsets some religious sensibilities? No, that hasn't been a guiding factor in our criminal law for decades. Perhaps because bigamy may be used as a form of deception or abuse? Well, so can monogamy. And, in any event, non-consensual bigamy can be catered for with civil remedies, such as compensation and/or nullifying the second marriage.
To be clear, my question is not whether or not society should approve of bigamy, or whether a bigamous relationship should benefit from the financial advantages and legal protections of a monogamous one. My point concerns the criminality of the bigamous act. Why should a three-way marriage, particularly one that is consensual and harms no-one, be a criminal offence?
This question raises all sorts of interesting issues concerning the interrelationship of law and morality. However, the biggest issue is this: when we talk about justice, what do we actually mean? What are we trying to achieve through this thing called 'justice'?
Here are three possible answers:
The libertarian says that the purpose of justice is to promote individual freedom, or liberty. As Grant Babcock says: "Liberty means being free to make your own choices about your own life, that what you do with your body and your property ought to be up to you". A libertarian view on bigamy would be that the state should have no role to play in what consenting adults choose to do. If three or more people want to marry, then they should not be criminalised by the state.
The liberal says that the purpose of justice is to promote fairness (already discussed in these blogs under 'F'). According to the liberal, the law should not favour one group over another. But how is that applied to bigamy? On the one hand, bigamous relationships have historically been used to subjugate women. A liberal may therefore instinctively object to bigamy as a concept. But, on the other hand, a liberal could not really object to a bigamous relationship that was truly consensual. A liberal is therefore conflicted, but is unlikely to be in favour of outright criminalisation.
The utilitarian says that the purpose of justice is to promote maximum happiness. As Tim Keller puts it: "If something makes the majority of people happy, then it is just." Sadly, though, it is not always easy to assess what laws will make the majority happy. A utilitarian may say, however, that bigamous relationships have a tendency to create unhappiness - because they are not truly consensual, or because they become vehicles for abuse. As such, some utilitarians may argue that bigamy possibly fails the utility test, but the argument is not compelling and is certainly only a weak justification for criminalisation.
There are, of course, other theories of justice. But the point - at least for this blog - is to recognise that justice is a belief system. Martin Luther King famously said: "Justice denied anywhere diminishes justice everywhere". As a statement that may well be true, but it doesn't help us to establish what justice actually is.
So why is bigamy still a crime, given that none of the three arguments above is convincingly in favour of criminalisation? Maybe the answer is simply this: that bigamy is the last relic of an era that criminalised perceived immorality and its survival is the consequence of democratic apathy. Bigamy remains a crime for the sole reason that no-one is sufficiently bothered to object. Is that justice?
Written by Pete Mansfield
