Marriage or matrimony, historically, has been a very important ritual practiced in almost every tradition and culture, all around the globe. More often than not, the marriage is sanctioned by the state[i] along with some religious or cultural authority and without it, marriage cannot be solemnized. However, there is a certain debate regarding the legal aspect of marriage (or civil marriage) that piques my interest, just as it should for others intending to participate in this timeless norm whom the laws affect. This debate is about the state’s overall role in the institutionalization of marriage. There are various arguments pertaining to this problem regarding the extent to which the State should play a role in a personal and a traditional norm such as marriage. In this article, I shall put forth a modest argument that the state should not have a monopoly over the definition of marriage, and that the people should be allowed to formulate and articulate into a contract their own understanding of marriage.
The importance of Marriage:
‘Marriage is a legal contract and civil status, a religious rite, and a social practice, all of which vary by legal jurisdiction, religious doctrine, and culture.’ (Brake, 2016)
Marriage is an integral part of one’s life. Marriage is a universally found human phenomenon occurring across the history with very few exceptions. Marriage also carries a special status in religions and traditions since it was regarded as a coming-of-age ceremony for many, a pathway to adulthood, a license to procreate legitimately that furthers the society. Not only does it carry much traditional importance, but it is considered personally significant by many individuals. Marriage, even today, is central to their inculcations and subsequent adherence of values and beliefs they might hold dear. It is considered by many a form of higher commitment to your romantic partner, as a promise to be together permanently and to support each other mentally and emotionally. Marriage might be considered by many as a formal representation of one’s emotions towards their partner, a willingness to upgrade their relationship in a socially, culturally as well as traditionally accepted and celebrated ritual. Marriage, it should be noted, was more of a social and religious event than it currently is and was regarded as one of the most personal and intimate relationships one could share with another human being.
Marriage existed long before the concept of modern state came into being. Earlier, it was presided over by some religious or cultural authority. Moreover, only after fulfilling the particular clauses of the traditions of the particular community, the couple would be permitted to get married. However, today, the definition of marriage is supplied by the state. This is called civil marriage. Now, it is uncontroversial that there ought to be certain mandatory laws regarding marriage to keep a track of various societal aspects with respect to marriage. These include keeping a track of property and its succession in case of death and curbing exploitation of individuals belonging to one gender by the other. In its broadest sense, this serves the purpose of managing the society, along with keeping a record of its growth and a track of people’s possessions. However, for the state to completely monopolize on an intimate relationship like marriage is essentially an intrusion on one’s liberty. Since marriage holds so much importance in one’s life, isn’t it ideal to leave it to the people to determine the values they would want to pursue and nurture in their lives?
What this means is that the participants of a particular marriage should be given more freedom than the state-offered civil marriages. This would amount to participants deciding for themselves the marriage they would want to be a part of. A marriage, as above-mentioned, is an intimate relationship; and for a legal authority to have the only say in it is exactly like a third party determining norms governing a close friendship or a parent-child relationship[ii]. The State assumes that its ‘one-size-fits-all’ type of civil marriage would work for everyone when that clearly cannot be the case. No matter the country, there cannot be a homogenous population working or trying to uphold the same ideal. Even people belonging to the same religion or tradition have their own differences in terms of opinions and outlooks about what is important and should be treasured as regards marriage. Yet, the state tries to introduce and enforce its own definition of marriage into the diverse population found in a country. Unsurprisingly, the differences between the mindsets of people further increase when the population is heterogeneous and multicultural.
Furthermore, the State having a monopoly over the institution of marriage by defining marriage at its own convenience is, if anything, paternalistic. It implies that two consenting adults are not capable of forming the bond of marriage, a higher commitment without legal intervention. That the adults need an authority to guide them toward forming a relationship with other adults makes it condescending of the state to intervene in the matters of autonomous, rational decision-makers.
My solution to the unreasonable and unfair status quo regarding marriage is to introduce martial contractualism. By this, I do not mean the complete abolition of civil marriage as such, but an end to the statist monopoly in the marriage business. The civil marriage will remain untouched as a legal institution. However, alongside the former, marriage contractualism will enable the people participating in matrimony to form their own versions they wish to cherish and be a part of through legally enforceable contracts. This is a win-win situation since the state gets to keep its laws intact regarding civil marriage, divorce, succession and property; and the participants in marriage could also have the significant ability to formulate their own contract regarding the marriage. If the marrying party fails to add anything relevant to the contract or the contract remains incomplete due to x reason, the State can always fill the details employing the existing marriage laws.
This does not mean undermining the state’s authority to make marital laws; it just means that people are allowed to base their choices upon their own discretion and autonomy. Another benefit of marital contractualism is that it respects the diversity in the population while treating them equally by giving everyone the opportunity of shaping their marital life. This way, marriage would cease to be an entirely public affair. Rather, it would be a synthesis of public and private with the option of actualizing many possibilities for people.
Civil marriage for some is an undesirable option due to state’s direct intervention. However, forming one’s own contract about marriage which is legally enforceable and safeguarded by the State’s law seems a lucrative option. Here, one doesn’t abolish civil marriage, but simply argues against the monopoly of the state. This “threesome” of civil marriage might be preferable for some but doesn’t obviously align with many people’s life plans. It also undermines substantially the values of liberty and equality. In theory, this system of contractualism (privatization) along with public laws comes across as a better system than what we have currently. There certainly could be problems with this account as well; but unless we are told, we cannot tell.
Elizabeth Brake, (2016), ‘Marriage and Domestic Partnership’, Stanford Encyclopedia of Philosophy. https://plato.stanford.edu/entries/marriage/
Bryan Strong, Christine DeVault, Theodore F. Cohen, (2011), The Marriage and Family Experience: Intimate Relationships in a Changing Society, Wadsworth Publishing.
Alan Barnard, Jonathan Spencer, (2005), Encyclopedia of Social and Cultural Anthropology, Routledge, London and New York.
Jeremy Garrett, ‘A Prima Facie Case Against Civil Marriage’, Department of Philosophy, California State University.
For further Readings
- Edward A. Zelinsky, ‘Deregulating Marriage: The Pro-marriage Case for Abolishing Civil Marriage’, Cardozo law Review.
- Brian H. Bix, (2003), ‘State Interest and Marriage--The Theoretical Perspective’, 32 Hofstra L. Rev. 93. http://scholarship.law.umn.edu/faculty_articles/240
- Carol Sanger, ‘A Case for Civil Marriage’, Cardozo Law Review.
- Joel A. Nichols, (2012), Marriage and Divorce in a Multicultural Context: Multi-Tiered Marriage and the Boundaries of Civil Law and Religion, Cambridge University Press
- William C. Duncan, (2004), ‘The State Interests in Marriage’, Ave Maria Law Review.
[i] In certain middle-eastern countries, however, there exists no civil marriage since the marriage is overlooked by the religious authority of the lands.
[ii] There have been various definitions of marriage, however generally classified into two i.e. the traditional view which says that marriage is a formal union of only a man and wife and a revisionist one which says that marriage is a formal union between two or more people.
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