Always Uncertain: The Presumption of Legitimacy in Two fins de siècle

TY - JOUR

T1 - Always Uncertain

T2 - The Presumption of Legitimacy in Two fins de siècle

AU - Counter, Andrew

PY - 2014/5/1

Y1 - 2014/5/1

N2 - This article considers the legal and cultural attitudes towards the family revealed in two “narratives” of disputed paternity: Guy de Maupassant's short story Monsieur Parent (1885) and the US Supreme Court case Michael H. v. Gerald D. (1989). Though separated by a century, these texts both relate to the presumption of legitimacy, that legal principle that has made fathers of husbands since the Roman era; both, moreover, suggest that the principle is unfair. Yet while Maupassant's tale reflects and adapts common 19th-century anxieties surrounding the (near-absolute) uncertainty of paternity, anxieties according to which the worst thing that might befall a husband was to be legally burdened with another man's child, Michael H. v. Gerald D. involved an opposite claim: that the presumption unconstitutionally deprived biological fathers of a legal relationship with their offspring. The Supreme Court's rationale in rejecting this claim appealed to “tradition” and “history,” yet this article suggests that consideration of historical understandings of the presumption reveals instead that entirely incommensurable assumptions, values and purposes have underpinned it in different historical eras. Yet despite these differences, I argue, Monsieur Parent already reveals the cultural shift upon which Michael H. v. Gerald D. would depend: the evolution of a familialist ideology that identifies family life as the only real source of human happiness, and that necessitates the ruthless exclusion, through a rhetoric of abjection and perversity, of all unwelcome outsiders.

AB - This article considers the legal and cultural attitudes towards the family revealed in two “narratives” of disputed paternity: Guy de Maupassant's short story Monsieur Parent (1885) and the US Supreme Court case Michael H. v. Gerald D. (1989). Though separated by a century, these texts both relate to the presumption of legitimacy, that legal principle that has made fathers of husbands since the Roman era; both, moreover, suggest that the principle is unfair. Yet while Maupassant's tale reflects and adapts common 19th-century anxieties surrounding the (near-absolute) uncertainty of paternity, anxieties according to which the worst thing that might befall a husband was to be legally burdened with another man's child, Michael H. v. Gerald D. involved an opposite claim: that the presumption unconstitutionally deprived biological fathers of a legal relationship with their offspring. The Supreme Court's rationale in rejecting this claim appealed to “tradition” and “history,” yet this article suggests that consideration of historical understandings of the presumption reveals instead that entirely incommensurable assumptions, values and purposes have underpinned it in different historical eras. Yet despite these differences, I argue, Monsieur Parent already reveals the cultural shift upon which Michael H. v. Gerald D. would depend: the evolution of a familialist ideology that identifies family life as the only real source of human happiness, and that necessitates the ruthless exclusion, through a rhetoric of abjection and perversity, of all unwelcome outsiders.

U2 - 10.1080/1535685X.2014.888186

DO - 10.1080/1535685X.2014.888186

M3 - Article

SN - 1535-685X

VL - 26

SP - 65

EP - 85

JO - Law and Literature

JF - Law and Literature

IS - 1

ER -