Saturday, June 12, 2010

Marriage Contract Law

I open with a detailed proposal for a minimally restricted law of marriage. The central idea is that individuals can have legal marital relationships with more than one person, reciprocally or asymmetrically, themselves determining the sex and number of parties, the type of relationship involved, and which rights and responsibilities to exchange with each. For brevity, I call this “minimal marriage.” This name for the proposal alludes to Nozick’s minimal state (although the political framework here is liberal egalitarian, not libertarian). Just as Nozick describes the libertarian state as minimal in comparison with current welfare states, so minimal marriage has far fewer state‐determined restrictions than current marriage. And just as Nozick’s minimal state is, in his view, the most extensive state justifiable, these restrictions on marriage, so exiguous from the point of view of the current regime, are the most extensive which can be justified within political liberalism.

My argument has two stages. In Section III, I show that public reason, with its ban on arguments which depend on comprehensive religious, philosophical, or moral doctrines, cannot provide justification for more‐than‐minimal marriage. In Section IV, I show not only that minimal marriage can be justified within public reason but also that a liberal state is required to provide such a legislative framework for personal relationships. I do not argue for public reason here; my aim is to show how far‐reaching its implications are for marriage. Indeed, some may take my conclusions as a reductio of public reason. But the perfectionist liberal cannot rest easy, for perfectionism which allows diversity in conceptions of good relationships has the same implications.4

These arguments make ideal‐theoretical assumptions, but we live in a non‐ideal world. The transition from the actual to the ideal has been underexamined, and this has made liberalism less attractive to theorists of oppression. In Section V, I consider this transition, particularly the consequences of marriage reform and the question of whether any marriage law can be just given background injustices.

Before beginning, I must emphasize that I am discussing marriage law. My arguments do not apply directly to private‐sphere benefits or religious practice, although marriage reform would alter the implications of statutes designating entitlements and prohibiting discrimination on the basis of marital status.

My focus on marriage as a legal contract threatens to trigger long‐standing debates over an alleged tension between contract and care. Few propose an inherent tension between care and the legal structuring of marriage—law can support caring relationships (as parental rights support parental care). It is contractual bargaining which is seen as inappropriate. A familiar statement of this tension is that contract presupposes self‐interest and choice, whereas care, and hence marriage, presupposes altruism and commitment.5 But the alleged tension is sometimes overstated: attention to the contractual elements of marriage need not imply that marriage is essentially contractual. Nor is it obvious that care and contract are opposed, empirically speaking. For instance, chosen obligations may be more agreeable than imposed obligations, and spouses’ careful long‐term planning does not entail that they view each other as competitors.

Read it all here.

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