Marriage and muscular liberalism

Social activist and former Boris Johnson advisor Nimco Ali has taken aim at Tyson Fury, over his teenaged daughter’s well publicised wedding plans. Sixteen year-old Venezuela Fury’s engagement to Noah Price, a boxer one year her senior, has received substantial coverage as a result of the family’s Netflix series, At Home with the Furys — resulting in a renewed focus on the traditions and social structures within the Traveller community. 

In her comments, Ali took credit for the fact that the young Miss Fury will not be able to marry her swain until she turns eighteen; credit which she shared with Priti Patel. This is a result of the Marriage and Civil Partnership (Minimum Age) Act 2022, which Ali and Patel supported from their respective positions in Number 10, Parliament and the Home Office at the time.  

The strange incentives and outcomes of the Act were noted at the time — namely that they completely separate the concepts of sexual intercourse and marriage, by giving them different minimum age thresholds. Since the Act came into effect, it remained legal for a lad of sixteen or seventeen to father a child with a girl of the same age, but it became a criminal offence for him then to marry her, until she was eighteen. Assuming that the sponsors of the bill were aware of the link between sexual intercourse and procreation, this suggests some odd and very modern assumptions about the nature of parenthood and marriage. Or else, it suggests that they had a very particular practical objective, and they were willing to tolerate this absurdity as reasonable collateral damage. 

The purpose of the Marriage Act 2022 was of course to deal with the issue of forced marriage among South Asian and African Muslim ethnic groups; forced marriages being a subset of the far broader category of arranged marriages. Other than in individualistic western cultures, marriages tend to be agreements between families, and as such arranged marriages of different kinds remain the norm around much of the world. Most of the time, this occurs when the individuals concerned are adults who regard the arrangement of their matrimony as a parental duty, but who retain a degree of say over the choice of spouse.

In some cultures, where marriage is used as a means by which a family builds or retains power, land or wealth, things have to be done more assertively

However in some cultures, where marriage is used as a means by which a family builds or retains power, land or wealth, things have to be done more assertively. Patriarchs may seek to get deals done as early as possible, meaning that parties to the marriage — especially females — are underaged, and they will refuse to tolerate any dissent on the subject. These customs are heavily associated with consanguineous marriage. Ethnicities among which these kinds of dynastic clan arrangements are the norm are over-represented in the immigrant communities in Britain — most prominently Mirpuri Pakistani and other South Asian Muslims, but now increasingly among groups like the Somalis. 

The result is that we now have a problem with very young girls being married off against their will in Britain — a social phenomenon that has never really existed in English culture. Historically, it was only Royalty and the Aristocracy that conducted marriage in dynastic terms, largely because they were the only subsections of society that were exempt from ancient religious stipulations against consanguineous marriage. These rules were inherited by the Church from the Roman Empire, who had implemented them specifically in order to limit the power of extended family kinship networks, and which by the Medieval period were so deeply ingrained into English custom that there was never any need to transfer them into the secular law of the land. This latter point left space for a more pragmatic approach to royalty and the aristocracy, among whom dynastic strategy was considered legitimate and occasionally politically essential. 

Historically, the job of policing which couples were and were not eligible to be wed was left to the Church and not the civil authorities. The legal minimum age in Canon Law, which was reflected in English common law, was twelve for girls and fourteen for boys, which was based on the presumed age of puberty — but which in practice was almost never tested by ordinary families who almost always married well into adulthood. This was a result of customs around family structure under which married couples were expected to live separately and independently, and thus needed to be old enough to support themselves financially before they could marry.  Prior to the Black Death, English women typically married in their mid twenties, with the plague pushing the average down to the late teens or early twenties, before it steadily rose back up again. 

In 1753, the first Marriage Act was passed, which intended to prevent clandestine or opportunistic marriages being carried out by negligent clergy. The Act formalised the customs inherent in Ecclesiastical Law, including requirements for a church ceremony, banns and licences, and without changing the low minimum age thresholds that had existed previously, introduced a requirement for parental consent for marriages under the age of 21. It wasn’t until the 1929 Marriage Act was passed that any law in England or Britain sought to amend the minimum age of marriage, when the age was increased to sixteen for both males and females.  This was in response to concerns about underage marriage among the urban poor, and brought the minimum age of marriage up to the minimum age of consent for sexual activity for girls, which had been set at sixteen in 1885. 

The 1885 Criminal Law Amendment Act was a great milestone of the era of Victorian moral reform, and created a separate misdemeanor category for sex with a girl under the age of sixteen against which consent was no defence, distinct from the felony of sexual activity with a girl under the age of thirteen. The felony threshold had been raised to thirteen by the 1875 Offences Against the Person Act, updating the 1861 Act of the same name which had consolidated the laws on rape and the age of consent. This came about in an atmosphere of heightened concern regarding social conditions in the industrial cities and especially in the slums, wherein a larger population had limited the ability of the church and the broader community to regulate social structures and enforce moral norms. Poverty and squalor led to prevalent prostitution, often involving very young girls. 

The ultimate result was a continuation of the legal settlement since the Statute of Westminster 1275 and the Benefit of Clergy Act 1575, in which there were distinct felony and misdemeanor categories for sexual activity with underage girls, albeit with the thresholds increased from approximately ten and twelve years of age respectively, up to thirteen and sixteen years respectively. However, what was unique between 1885 and 1929 was that the age of consent for girls was several years higher than the minimum age for marriage. By this point, even aristocratic families had long since abandoned child marriages, however it theoretically opened up the possibility of a teenaged girl who had been impregnated under the age of sixteen being married to the father of her child. This gave the opportunity to avoid (or limit) scandal, providing her parents gave their consent for the union rather than pressing misdemeanor charges. 

This was the case until the 1929 Act evened up the age of consent and the minimum age for marriage, and was effectively the opposite of the situation that we have had since 2022 under which there is a two year window in which it is legal to have sex but not to wed. Clearly, the assumptions that have fed into this are the result of substantial social, political and technological change — especially in birth control which to some extent have made it possible to have sex separately from reproduction. What has changed socially is that it is no longer taboo — at least in mainstream British society – to have a child out of wedlock; a view that has now been tacitly endorsed by government in the criminalisation of marriage even in the case of an entirely non-criminal pregnancy.

However it does raise the question of why they didn’t seek to raise the age of consent to eighteen in line with the minimum age of marriage, in order to avoid this particular issue. The assumption will have been that young people would just have ignored this change, and that criminalising something everyone was doing would have been counterproductive. And this is where we can see the real nature of the change that has taken place in lawmaking over the long 20th century — and particularly in the era of multiculturalism.  In earlier times in England, the law stepped in to uphold social norms and customs, and to reinforce traditional sources of authority, such as the family or the church. The 1753 Act sought to prevent young women defying their fathers by eloping (unless they could get as far as Gretna), and protect a family’s legacy from an opportunistic suitor inveigling himself to a young heiress. The 1929 Act, along with the 1885 Amendment, had sought to uphold long held customs against what was considered vice, in circumstances where neither church nor the institutions of village life could do the job anymore.  

However it is in the Victorian legislation that we can see the seeds of change being planted. Whilst we may look back today on Victorian social policies as being inherently conservative — and in many ways they were — at the time they saw themselves as reformists and modernisers; consolidating laws and formalising customs under the law, in order to protect the vulnerable or wayward young. Under the banner of social reform, the state and parliament has a licence to change things – as we saw when they increased the minimum age for marriage in 1929. However, this was only a change to the law, which criminalised the practice of teenage marriage that had always been regarded as sub-optimal and was frowned upon by mainstream social convention. As such, it was only bringing the law into line with custom – not seeking to change the custom itself. 

Where this all becomes complicated is when custom itself becomes contested. We saw this play out in two different ways in Britain during the late 20th century. Firstly, as a result of the massive and sudden change to the fundamentals of personal morality, in which pre-marital sex and pre-marital cohabitation went from being unacceptable to being the norm, followed by the dissolution of the taboos against divorce, having children outside of marriage, and homosexuality. In some cases, changes in the law preceded changes in public attitudes, particularly with regard to homosexuality, but also with regard to abortion. This reflected a general consensus that the law was not the proper instrument to regulate social conventions or morality — the law was instead there to protect people, especially children, from harm by others. 

The second way in which social customs became contested was as a result of immigration, and the arrival of groups with their own conventions on family structures, courtship and relations between the sexes. In many cases, particularly in those of South Asian immigrant groups, these conventions were far closer to the world historical norm rather than those of western Europe.  They brought with them multigenerational families in which married couples reside with the groom’s family, and far stronger traditions of arranged marriages than anything that had typically been seen among the English for many, many centuries. In cases of the Muslims, they also brought with them the practice of first cousin marriage, brokered by family elders with the intention of maintaining the close knit integrity of clan structures. 

Coming as this did at a time when older and more conservative elements in British society were having to come to terms rapidly with endogenous social change in the native culture, this contributed to a feeling that what people got up to behind closed doors was best not thought about and that we should let them get on with it. Each to his own. This impulse was later reinforced during the 1980s and 1990s by approaches from left-wing academia which leached into public services, local government and the media, which insisted that differences in social customs between cultures should be considered without judgement and that they were all morally equal. 

There was an expectation that people moving to Britain should obey the law as it stood, but that there was no need to change the law in order to outlaw practices that the British public may have considered backward but which were not formally illegal — cousin marriage being the most obvious example. A blind eye would be turned if newly minted British citizens or their children left the country in order to do things that were illegal here, such as getting married whilst already married. Returning to the country of origin was also the easiest way for family elders to ensure that a young relative, especially a young female relative, conformed to their expectations regarding when and whom they would marry. If some of these patriarchal practices made left wing academics or social workers uncomfortable, in the 1990s they still retained the cultural influence to make them unnoticeable and unmentionable in forward thinking circles. 

After September 11th 2001 there was a sudden backlash against elite apologism for radical Islam, which became part of a wave of opposition to what was termed “cultural relativism” — the idea that all cultures were equal and that it was wrong to criticise customs we might think of as “backward”.  This was followed by a wave of self-styled “muscular liberalism” which insisted on the superiority of enlightenment values, and made a progressive case that western states had a duty to project social liberalism around the world, and uphold individual rights at home among all communities and ethnicities. This approach argued that excessive tolerance of chauvinistic or backward social practices among diaspora minorities was itself racist, as it effectively made the individuals within that community second class citizens, undeserving of the full protection of the law and of public services. 

Over the years that followed, social services, the police, the education system and the Foreign Office would stand up teams to combat forced marriage, particularly of young girls being returned to their parents’ country of origin for marriage against their will. There was also a highly publicised campaign against the practice of Female Genital Mutilation (FGM), which was accompanied by publicity material which urged the general public to be vigilant against it. The Marriage Act 2022 was passed in this context. The British state’s focus on upholding the rights of women and girls from ethnicities with clannish and coercive customs and social structures in the 2000s and 2010s  was accompanied by a massive acceleration in immigration to the UK from societies where those customs prevail. The rise of FGM as a serious problem in Britain was the result of the sudden arrival of a large Somali diaspora in Britain, along with arrivals from a handful of West African countries. 

We were all urged to roll up our sleeves and jolly well get on with stamping FGM and forced marriage out.

The suffering and deprivation of individual rights experienced by girls from such communities was depicted in official propaganda as being the result of the earlier negligence of the state, for which the British nation as a whole was collectively responsible. Therefore, we were all urged to roll up our sleeves and jolly well get on with stamping FGM and forced marriage out. What in practice this meant was the country importing hundreds of thousands of new arrivals every year, with the state being responsible for challenging and overturning their most deeply held beliefs and cherished customs. This approach was taken up with zeal — at least in terms of rhetoric and legislation — by the Conservatives in government.  Questions about whether the state actually had the capacity to even consider such a task would have been dismissed as either defeatism or weak-willed 1990s political correctness. 

This brings us back to Nimco Ali and Tyson Fury’s daughter. Romanichals and Irish Travellers (Fury’s family is from the latter group) have long been a semi-tolerated group living in England and Britain, but never fully coming under the authority of the state. This is a result of their transient habits, which has historically made them extremely difficult for the authorities (including the church) to monitor or to police. As a result, their customs have always been highly distinct from those of either the English or the settled Irish — including the practice of cousin marriage, arranged marriage and marriage at a far younger age. As with the case of the rest of Western Europe, English marriage laws were driven around concerns to do with property and inheritance. The fact that the Gypsies and Travellers did not hold land largely put them beyond the scope of these concerns, and they were grudgingly permitted to regulate their own affairs as they saw fit. 

It is easy to romanticise the position of Travellers and Romanies in England historically, and I am certainly not claiming that their position and status in the country has always been comfortable — either for them, or for the settled population, or for the state. However, their numbers have been limited enough and their presence unthreatening enough, that they were able to roam around the country for many centuries without strife, and without too much attention being paid to their internal customs. But this approach has now become intolerable to a new wave of social reformers, and especially to a cohort of ethnic minority women from regressive cultures who have recruited the British state into their battle against their customary elders. To put it very bluntly, if the Travellers are allowed to marry their daughters off at sixteen, what is to stop a Somali family sending their daughter back to Hargeisa to have her clitoris cut off? 

To put it very bluntly, if the Travellers are allowed to marry their daughters off at sixteen, what is to stop a Somali family sending their daughter back to Hargeisa to have her clitoris cut off?

Due to his fame, I suspect Mr Fury will ensure that the law is obeyed in the case of his daughter.  But the job will be left to the British state to enforce the new law for the rest of the Traveller community, as well as policing the practices of Somalis and Iraqis and Pakistanis. Going against the grain of social custom in this manner is not something our state has contemplated in a long time. Enforcing moral codes was a job that it traditionally left to the Church.  The English people have certainly never wanted a state with such obtrusive capabilities. It is the paradox of “Muscular Liberalism” that it involves the flexing of muscles that liberal states do not possess.