What Is The Subject Of The Marriage Contract?
Since Mollie brought up marriage (I promised myself I wouldn't bring it up anymore after the recent conversations here at Ricochet), it seems like a good time to ask for help in understanding something about the particular libertarian position that supports marriage based only on a contract between individuals with the only government involvement being the enforcement of the contract. What I don't understand is: What would be the subject of the contract? Usually with contracts one party performs a service or provides a good in exchange for a different service or good. What, exactly, would be exchanged in one of these libertarian marriage contracts that would properly bring it under the jurisdiction of a court to enforce? How would this particular libertarian position actually work in practice?
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Dec '10
Re: What Is The Subject Of The Marriage Contract?
Your honor, according to the agreement we entered into five years ago I should never have to do my own laundry, and I'm supposed to have my, um, needs cared for at least weekly. She is clearly in violation of our contract.
Sounds a lot like government intruding where it really, really doesn't belong.
May '10
Re: What Is The Subject Of The Marriage Contract?
The whole idea of marriage "just" being a private contract between private individuals with society having no interest in it at all is just ludicrous. It's a total cop-out from people who don't want to deal with the difficult questions that liberalism, self-centeredness, the pursuit of sexual satisfaction above all else, and raw perversion are forcing into the issue of marriage. Let it just be between the two (or three or many) people in their private bedroom, they say, and we'll wash our hands of the issue.
But marriage is an important part of society because it brings into existence, and raises, the next generation. A solid marriage is the foundation of a healthy family, and a healthy family is the best place to bring forth and train new people. The fruits of our "experiments" with sexuality, "liberation," no-fault divorce, and so on are all around us now, and it's too late to close Pandora's box.
May '10
Re: What Is The Subject Of The Marriage Contract?
I found this to be helpful in explaining the contractual nature of marriages.
Who says marriage is "just" a contract? Not I. It is a contract, but emphasizing that fact does not commit one to the notion that it is merely a contract. Why should arguments in favor of gay marriage that focus on the contractual nature of marriage be construed as treating marriage merely as a contract? The contractual nature of marriage is a part of the essence of marriage after all. Marriage may not be just a contract, but nowadays, if what you and your significant other have is not a contract, then its no marriage. I would argue that "contract" is the genus of "marriage".
Nov '10
Re: What Is The Subject Of The Marriage Contract?
Rather than a contract treating the purchase of services or goods, you might want to look at contracts governing partnerships for a closer analogy.
The article Michael has posted is quite interesting, I would also suggest getting hold of the book Marriage and the Family in the Middle Ages. There's a lot of misconceptions on the history and evolution of marriage and the family being put forward these days, this book is a great place to start learning about what really passed. Although it obviously focuses on the Middle Ages, the authors provide plenty of context to understand how it evolved from the earlier Roman model, and how it became what we see it as today.
Dec '10
Re: What Is The Subject Of The Marriage Contract?
I am a libertarian and I most certainly do not say that marriage is just a contract. Marriage has two parts: It is a contract between to people that joins them financially and determines things such as inheritance and who has the final say over matters if one of the parties in incapacitated. It is also a solemn vow before God and the community, pledging love fidelity and spiritual bonding.
The contractual part is properly the business of the government. Enforcing contracts is one of the main proper functions of a government. The government has no authority to specify with whom I may enter into a contract, as long as that person has reached the age of majority and is mentally competent.
The spiritual part of marriage is the province of the church. The church does have the authority to specify with whom I may enter into a marriage commitment. If you do not like the churches rules you may join another church whose attitudes are more closely joined with yours.
Dec '10
Re: What Is The Subject Of The Marriage Contract?
Through most of history the church and the state were pretty-much the same thing. So it was proper that they had authority over marriage. Now that this is no longer the case, the functions should be separated. If two people wish to enter into a contract, they should be able to file a contract with the state and pay a filing fee much the same as a marriage license today.
If those two people also want to get married, they can go to their place of worship and engage in whatever rituals their faith tradition specifies.
Feb '11
Re: What Is The Subject Of The Marriage Contract?
I'll get to it eventually, but 23 pages is a bit much to wade through during work hours. Thanks for pointing it out, though.
Feb '11
Re: What Is The Subject Of The Marriage Contract?
HalifaxCB
Rather than a contract treating the purchase of services or goods, you might want to look at contracts governing partnerships for a closer analogy.
Partnership contracts are also an exchange; a partner exchanges an investment for a portion of the profits or loss that results from the enterprise. Is there any such exchange in a marriage contract (the one envisioned by some libertarians, not what we have today)?
Feb '11
Re: What Is The Subject Of The Marriage Contract?
But what are the terms of the financial part? What is being exchanged? We don't need marriage to determine ownership or inheritance - we have titles and wills for that already. So why would the government enforce a bond between individuals that isn't based on determinable performance or delivery of goods?
Edited on Jul 22, 2011 at 6:06amFeb '11
Re: What Is The Subject Of The Marriage Contract?
Foxman: Through most of history the church and the state were pretty-much the same thing. So it was proper that they had authority over marriage. Now that this is no longer the case, the functions should be separated. If two people wish to enter into a contract, they should be able to file a contract with the state and pay a filing fee much the same as a marriage license today.
· Jul 22 at 4:25am
What would the civil contract look like? "I will provide housekeeping services in exchange for 1/2 of any salary you earn." That's sounds an awful lot like a run of the mill economic contract with an independent contractor that is already available. In order for such a contract to be enforceable the elements of the agreement need to be specified and readily determinable. What elements of a marriage contract would distinguish it from any other contract contract for the exchange of goods or services?
Mar '11
Re: What Is The Subject Of The Marriage Contract?
I understand the contractual part of it. A marriage's duration and exclusivity are what are mutually guaranteed by contract and the state has a legal role in enforcing such contracts. But the state's role in enforcing marriage contracts also involves bestowing financial benefits on the contractors that are not bestowed on other citizens. Why should that be? What distinguishes marriage contracts from all others?
Foxman: Through most of history the church and the state were pretty-much the same thing. So it was proper that they had authority over marriage. Now that this is no longer the case, the functions should be separated. If two people wish to enter into a contract, they should be able to file a contract with the state and pay a filing fee much the same as a marriage license today.
If those two people also want to get married, they can go to their place of worship and engage in whatever rituals their faith tradition specifies. · Jul 22 at 4:25am
Jun '10
Re: What Is The Subject Of The Marriage Contract?
Before DNA testing, and even now, the advantage of being married, for women, is that any children born during the marriage are the husband's children, period. If there's child support to be paid after divorce, he pays it. If the kid looks exactly like the next door neighbor, the husband still pays. That's the contract you made with society in the old days. Society said, somebody is going to pay the kid's bills, but it's not us.
May '10
Re: What Is The Subject Of The Marriage Contract?
Michael Labeit:
...The contractual nature of marriage is a part of the essence of marriage after all. Marriage may not be just a contract, but nowadays, if what you and your significant other have is not a contract, then its no marriage. I would argue that "contract" is the genus of "marriage".
As usual, you over-systematize and over-simplify things in your pursuit of some kind of reductionist logical way of understanding them. Reality is complex, so humans use categories and concepts to help organize reality and make sense of it. But when you choose a category, you naturally limit your understanding of the thing by reducing it to that category. Abstractions are powerful, but when you choose the wrong abstraction, you make it more difficult to understand the thing, not easier. Use the wrong ontology and you'll get the wrong results. (Unfortunately, no ontology is ever 100% correct.)
Sure, I get that you are saying it belongs to the category of "contract" plus some additional things. But to subsume it under "contract" as its primary genus is still very limiting to your understanding of what marriage is.
Marriage is not just an arbitrary thing that you can examine coolly and detachedly as if it were a museum piece. It is the very foundation of a healthy society.
Edited on Jul 22, 2011 at 7:00amRe: What Is The Subject Of The Marriage Contract?
Ed why would the legal rights and obligations be any different in some marriages than others?
In marriages today the only rights and obligations the Court protects and enforces are financial and parental.
I'm not sure where or why you are attempting a distinction.
Sep '10
Re: What Is The Subject Of The Marriage Contract?
Chris Deleon
...
Marriage is not just an arbitrary thing that you can examine coolly and detachedly as if it were a museum piece. It is the very foundation of a healthy society.
...
This captures the essence of my complaint about this thread.
As someone embarking upon marriage (not for the first time, unfortunately), I have a somewhat different view from those expressed in all the comments so far. Marriage is not only about reproduction, else people would not marry late in life.
I've spent plenty of time considering why it is a good idea to get married again. And I had to do a bit of persuading to get my 'better half' to agree. The most succinct explanation I can find is in Gen. 2:18: I want a partner in life. Even though I'm not religious, this sums it up best for me.
You might object that I can have a partner without getting married, but friends and society at large regard people differently when they are married. We've made the promise to each other; marriage is about making it public. As an institution of long standing, marriage has deep meaning that cannot be trivialized.
Dec '10
Re: What Is The Subject Of The Marriage Contract?
Sex is what makes marriage more than just a contract for services between consenting parties. Sex also happens to be one area where government specifically lays no claim to authority (see Lawrence v. Texas.) They want to have it both ways.
Feb '11
Re: What Is The Subject Of The Marriage Contract?
I don't think I have seen the word "exclusivity" in the first sixteen comments. This surprises me.
Dec '10
Re: What Is The Subject Of The Marriage Contract?
Israel P.
I don't think I have seen the word "exclusivity" in the first sixteen comments. This surprises me. · Jul 22 at 8:07am
#11
Re: What Is The Subject Of The Marriage Contract?
Below defines NJ's marrage contract - it is the terms of breach (notice how "failure to reproduce" is NOT one of them):
http://www.divorcenewjersey.com/nj_divorce_law.html#2A-34-2
Edited on Jul 22, 2011 at 8:29amRe: What Is The Subject Of The Marriage Contract?
Israel P.
I don't think I have seen the word "exclusivity" in the first sixteen comments. This surprises me. · Jul 22 at 8:07am
It doesn't surprise me.