{"id":3280,"date":"2020-04-26T11:50:39","date_gmt":"2020-04-26T15:50:39","guid":{"rendered":"https:\/\/hedgehogsandfoxes.org\/?p=3280"},"modified":"2020-09-23T21:27:21","modified_gmt":"2020-09-24T01:27:21","slug":"a-marrying-kind","status":"publish","type":"post","link":"https:\/\/hedgehogsandfoxes.org\/index.php\/2020\/04\/26\/a-marrying-kind\/","title":{"rendered":"A Marrying Kind"},"content":{"rendered":"
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Jessie Allen, School of Law, University of Pittsburgh<\/a><\/p>\n

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BOOK THE FIRST.  Chapter the Fifteenth.  Of HUSBAND and WIFE.<\/em><\/p>\n

This chapter<\/a> about marriage begins by drawing a line: \u201cOur law considers marriage in no other light than as a civil contract.\u201d  p. 421.  There\u2019s obviously something looming outside the circle of that \u201cno other light,\u201d 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 \u201choliness of the matrimonial state.\u201d Id.<\/em>  In \u201ctemporal courts,\u201d he says, bad marriages are not a sin, \u201cmerely a civil inconvenience.\u201d  Id.   <\/em>Initially, I read Blackstone\u2019s 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 \u2014 working to color and constitute our understanding not so much of marriage, but of contracts.  I wound up thinking this chapter<\/a> 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.<\/p>\n

Marriage is the first contract Blackstone describes.  He tells us that the law treats marriage \u201cas it does all other contracts,\u201d but up till this point in the book there haven\u2019t been<\/em> 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 \u201cgood and valid in all cases\u201d is two parties who \u201cat the time of making it were in the first place, willing<\/em> to contract; secondly, able<\/em> to contract; and lastly, actually did<\/em> contract, in the proper forms and solemnities required by law.\u201d  P. 421.  Yes we can.<\/p>\n

Now, as I mentioned at the start, the Commentaries<\/em> definition of marriage as a civil contract is presented in contrast to what it means to marry in a sanctified, religious sense.   In Blackstone\u2019s 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 \u2014 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\u2019s final blessing:  what these individuals have chosen to unite, let no religious dogma \u2014 or interfering government \u2014 put asunder. <\/p>\n

Blackstone explains that under scriptural law \u2014 and especially \u201cin the times of popery\u201d a long list relationships and circumstances invalidate marriage.  Civil contract sweeps these all away.  It\u2019s not just that the list shortens \u2013 though it does, being confined to relationships named in Leviticus<\/a>, \u201cthe farthest of which is that between uncle and niece\u201d and removing impediments due to \u201cpre-contracts\u201d that were never consummated.  The key is a conceptual shift \u2013 moving away from the specific narratives of people\u2019s life stories \u2014 who they are, where they come from, and what has happened in the past to form identities and relationships \u2013 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\u2019s a vision of contract law as a kind of private myth of erotic merging that extends in an everlasting moment of immediate commitment.  Blackstone\u2019s marriage as civil contract, and by extension contract in general, seems to exemplify Levi Strauss\u2019s famous characterization of all myth \u2013 as a \u201cmachine to defeat time.\u201d  The Raw and the Cooked<\/a>.<\/a><\/p>\n

Blackstone\u2019s detailed description of the circumstances that can disable a marriage contract further confirms contract\u2019s temporal transcendence.   As he outlines it \u2013 disabilities that void a marriage are of two sorts.  The first is a pared down list of  scriptural prohibitions based primarily on family relations \u2013 forbidding, most basically, incest.  These are the \u201cLevitical degrees<\/a>\u201d 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 \u201cany moral offence\u201d than with the kinds of social problems marriages of this kind \u201cdraw after them.\u201d  Anyone who has sat in Contracts 101 \u2013 and many people who have not \u2013 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). <\/p>\n

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 \u201cvoid ab initio<\/em>, but voidable only by sentence of separation.\u201d p. 422.  In other words, unless a married couple is actually dissolved by a \u201csentence of separation . . . during the life of the parties,\u201d  id.<\/em>, this type of flawed marriage \u2013 and all its consequences (i.e., children) \u2014 remains legitimate for all time.   The classic contractual disabilities, however, are total.  Being too young, too crazy, or too already married can \u201crender the parties incapable of forming any contract at all.\u201d p. 424.  These incapacities \u201cdo not put asunder those who are joined together, but they previously hinder the junction.\u201d  Id<\/em>. <\/p>\n

Look at how in Blackstone\u2019s 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\u2019re talking about here is incest!  In Blackstone\u2019s 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.  <\/p>\n

Maybe I\u2019m overstating the importance of Blackstone\u2019s decision to make marriage the first contract he describes.  After all, even in Blackstone\u2019s own time, one suspects that relatively few readers set about absorbing the Commentaries<\/em> 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<\/a> 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\u2019s extraordinary ability to transcend those relations.<\/p>\n

So far, I\u2019ve been concentrating on the way that lesson portrays contract generally \u2013 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\u2019s willingness to be bound?  But now that I think about it, Blackstone\u2019s civil contract account of marriage also seems to have some rather surprising implications for the biggest legal controversy concerning marriage in our time.<\/p>\n

If I\u2019m understanding the way these rules work, Blackstone\u2019s common law would certainly allow jurisdictions bent on breaking up gay marriages to do so by prosecuting the offending partners and obtaining \u201csentences of separation\u201d 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 \u201cesteemed valid to all civil purposes, unless such separation is actually made during the life of the parties.\u201d  p. 422.  Obviously that\u2019s 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\u2019s terms, void ab initio<\/em>).   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\u2019s 18th<\/sup> century assertion that \u201cas the law now stands, we may upon the whole collect, that no marriage by the temporal law is ipso facto <\/em>void, that is celebrated by a person in orders . . . \u2014 in pursuance of banns or a licence, \u2014 between single persons, \u2014 consenting, \u2014 of sound mind, \u2014 and of the age of twenty one years.\u201d  pp. 427-28.<\/p>\n

First published April 13, 2010.<\/a><\/div>\n<\/div>\n<\/article>\n

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