Support Orders, Church Courts, and the Rule of Filius Nullius: A Reassessment of the Common Law

Abstract

IN 1973 the United States Supreme Court held that a state violated the equal protection clause by denying illegitimate children a right to parental support granted to legitimate children.' Commentators have regarded that decision as a worthy departure from the common law rule that denied illegitimate children any right to support from their father. But, as those commentators have noted, the decision simply forbade discrimination between legitimate and illegitimate children.2 It stopped short of granting an absolute right to support. It did not challenge the widespread American rule, based on English common law, that in the absence of statute an illegitimate child has no inherent right to parental support. This article suggests that the approach of the American courts rests on a misreading of the historical evidence. Admittedly, the treatment of illegitimates at English common law is well established. common law of England, concludes a leading contemporary authority, was ruthless in its denial of any rights to children born out of wedlock. 3 He merely repeats what every case, every treatise,5 and every law review articles states. The