A Marrying Kind

Jessie Allen, School of Law, University of Pittsburgh

BOOK THE FIRST.  Chapter the Fifteenth.  Of HUSBAND and WIFE.

This chapter about marriage begins by drawing a line: “Our law considers marriage in no other light than as a civil contract.”  p. 421.  There’s obviously something looming outside the circle of that “no other light,” and it turns out to be the religious morality of a marital union. Blackstone wants to define the legal status of marriage as something quite different from the “holiness of the matrimonial state.” Id.  In “temporal courts,” he says, bad marriages are not a sin, “merely a civil inconvenience.”  Id.   Initially, I read Blackstone’s account of marriage-as-contract as an attempt to minimize the role of religious tradition in the institution of marriage.  But then I started to wonder how this account is working back the other way — working to color and constitute our understanding not so much of marriage, but of contracts.  I wound up thinking this chapter is less about the power of contract theory to redefine marriage and more about the way using marriage as the paradigm of contract law tends to ascribe a liberating and individuating power to contracts in general.

Marriage is the first contract Blackstone describes.  He tells us that the law treats marriage “as it does all other contracts,” but up till this point in the book there haven’t been any others.  So it is in this discussion of the marriage contract that we are introduced to the classic view that all it takes to make a contract “good and valid in all cases” is two parties who “at the time of making it were in the first place, willing to contract; secondly, able to contract; and lastly, actually did contract, in the proper forms and solemnities required by law.”  P. 421.  Yes we can.

Now, as I mentioned at the start, the Commentaries definition of marriage as a civil contract is presented in contrast to what it means to marry in a sanctified, religious sense.   In Blackstone’s common law scheme, legal-contractual marriage partakes of two major differences from its traditional Christian counterpart.  First, many more kinds of marriages are possible.  Second, once properly formed, contractual marriage turns out to be a lot harder to dissolve.  So with civil marriage as the paradigm, the opportunity to make a legal contract appears as a tremendous empowerment of individuals against traditional authorities — an idea and a practice that allows individuals to make life choices previously unavailable to them, and to make those choices stick, even in the face of institutional disapproval.  You can almost rewrite the officiant’s final blessing:  what these individuals have chosen to unite, let no religious dogma — or interfering government — put asunder. 

Blackstone explains that under scriptural law — and especially “in the times of popery” a long list relationships and circumstances invalidate marriage.  Civil contract sweeps these all away.  It’s not just that the list shortens – though it does, being confined to relationships named in Leviticus, “the farthest of which is that between uncle and niece” and removing impediments due to “pre-contracts” that were never consummated.  The key is a conceptual shift – moving away from the specific narratives of people’s life stories — who they are, where they come from, and what has happened in the past to form identities and relationships – and focusing instead on their immediate will and ability to contract, and their execution of the formal steps that bring a contract into being.  In this view, willing and able individuals now have the power to overwhelm  the constraints of their personal past and merge into a marital union impervious to future disolution.  It’s a vision of contract law as a kind of private myth of erotic merging that extends in an everlasting moment of immediate commitment.  Blackstone’s marriage as civil contract, and by extension contract in general, seems to exemplify Levi Strauss’s famous characterization of all myth – as a “machine to defeat time.”  The Raw and the Cooked.

Blackstone’s detailed description of the circumstances that can disable a marriage contract further confirms contract’s temporal transcendence.   As he outlines it – disabilities that void a marriage are of two sorts.  The first is a pared down list of  scriptural prohibitions based primarily on family relations – forbidding, most basically, incest.  These are the “Levitical degrees” mentioned above.  (And incidentally, here is the source of arguments that common law traditionally forbids homosexual marriages, based on other prohibitions in the Book of Leviticus.)  The second type of disability is created by law, and, according to Blackstone, has less to do with sin or “any moral offence” than with the kinds of social problems marriages of this kind “draw after them.”  Anyone who has sat in Contracts 101 – and many people who have not – will recognize the circumstances on this second list as the universal disabilities that prevent individuals from making any kind of contract in Anglo-American law: being below the age of majority, being mentally incompetent (i.e., insane, senile or retarded), or being bound by a previous conflicting contract (in this case, already being married to someone else). 

Now comes the kicker.  Marrying against the Biblical prohibitions may subject you to penalties, and make it possible to break up your marriage if the disability is discovered.  Such marriages, however, are not “void ab initio, but voidable only by sentence of separation.” p. 422.  In other words, unless a married couple is actually dissolved by a “sentence of separation . . . during the life of the parties,”  id., this type of flawed marriage – and all its consequences (i.e., children) — remains legitimate for all time.   The classic contractual disabilities, however, are total.  Being too young, too crazy, or too already married can “render the parties incapable of forming any contract at all.” p. 424.  These incapacities “do not put asunder those who are joined together, but they previously hinder the junction.”  Id

Look at how in Blackstone’s version of the law of marriage, the foundational rules for legal contract emerge as more powerful and significant than even the most canonical of prohibitions.  Remember the paradigm of biblical marriage disabilities we’re talking about here is incest!  In Blackstone’s scheme even this gold standard of abominations is subordinated to the classic contract triumverate of will, ability and form.  The fact that you might have married your sister apparently  matters less than whether you were willing, able, and actually did go through the prescribed legal steps that constitute a marriage contract.  

Maybe I’m overstating the importance of Blackstone’s decision to make marriage the first contract he describes.  After all, even in Blackstone’s own time, one suspects that relatively few readers set about absorbing the Commentaries from start to finish.  Blackstone could hardly expect that someone interested in his view of contract law would encounter it first in this early chapter on marriage.  On the other hand, anyone turning to this chapter to consult Blackstone on the common law of social relations receives a powerful lesson about contract’s extraordinary ability to transcend those relations.

So far, I’ve been concentrating on the way that lesson portrays contract generally – as a liberating social force.  Making marriage the premiere example of legal contract seems like a great way to (literally) romanticize the power of contract to liberate through constraint.  Could there be a better way to get across the individuating potential of a contract regime, along with the paradoxical (some would say laughably false) idea that liberation comes from an individual’s willingness to be bound?  But now that I think about it, Blackstone’s civil contract account of marriage also seems to have some rather surprising implications for the biggest legal controversy concerning marriage in our time.

If I’m understanding the way these rules work, Blackstone’s common law would certainly allow jurisdictions bent on breaking up gay marriages to do so by prosecuting the offending partners and obtaining “sentences of separation” that declared their unions henceforth void.  But it would not view gay partners as incapable of marrying in the first place.  In this contract-centered view, gay marriages might be sinful, but they would be nevertheless “esteemed valid to all civil purposes, unless such separation is actually made during the life of the parties.”  p. 422.  Obviously that’s a long way from marriage equality.  Then again, it is also far from what seems to be the main argument these days against gay marriage, namely that marriage between partners of the same sex is in some way just not a marriage at all (in Blackstone’s terms, void ab initio).   Now you may say that the whole idea of gay marriage would be just so incoherent to Blackstone that it never would have occurred to him to rule it out. Nevertheless, for anyone who wants to argue that gay marriage is after all consistent with longstanding common law principles, it must be heartening to read Blackstone’s 18th century assertion that “as the law now stands, we may upon the whole collect, that no marriage by the temporal law is ipso facto void, that is celebrated by a person in orders . . . — in pursuance of banns or a licence, — between single persons, — consenting, — of sound mind, — and of the age of twenty one years.”  pp. 427-28.