John Stuart Mill’s ideal of marriage as “a private, bargained-for exchange between husband and wife about all their rights, goods, and interests” has become a legal reality in contemporary America…But John Locke’s warning, echoing Thomas Aquinas, that the private contractualization of marriage will bring injustice and sometimes ruin to many women and children has also become a reality in America. Premarital, marital, separation, and divorce agreements too often are not arm’s-length transactions, and too often are not driven by rational-calculus alone, however much courts and mediators insist that they are. In the heady romance of budding nuptials, parties are often blind to the full consequences of their bargain. In the emotional anguish of separation and divorce, parties can be driven more by the desire for short-term relief from the other spouse than by the concern for their own long-term welfare or that of their children. The economically stronger and more calculating spouse triumphs in these contexts. And in the majority of cases today, that party is still the man, despite the loud egalitarian rhetoric to the contrary.

“Underneath the mantle of equality [and freedom] that has been draped over the ongoing family, the state of nature flourishes,” Mary Ann Glendon writes ominously. In this state of nature, contractual freedom and sexual privacy reign supreme, with no real role for the state, church, or broader civil society to play. In this state of nature, married life has become increasingly “brutish, nasty, and short,” with women and children bearing the primary costs. The very contractarian gospel that first promised salvation from the abuses of earlier Christian models of marriage now threatens with even graver abuse.

Recall the statistics we recounted in the preface to this volume. Since 1975, roughly one-quarter of all pregnancies in America were aborted. One-third of all children were born to single mothers. One-half of all marriages ended in divorce. Two-thirds of all African American children were raised without fathers in their homes. Single mothers faced four times the rates of poverty, bankruptcy, and foreclosure. Children from broken homes were much more likely to have behavioral and learning problems, and suffered four times the rate of serious sexual or physical abuse. More than two-thirds of all juveniles and young adults convicted of major felonies since 1975 have come from single- or no-parent homes. While these numbers have improved somewhat in the past decade – owing in part to a strong new family-education movement and new family-policy initiatives – the burden of the modern family’s breakdown falls disproportionately on women and children.  

The modern welfare state has softened and spread out the costs of marital and family breakdown over the past two generations by supplying nonmarital children, single mothers, abandoned spouses, and aged parents with resources and services traditionally supplied principally by their own natural kin. These are valuable advances that promote social justice and greater happiness for all. But the modern welfare state remains an expensive and risky modern experiment: it is not clear that it is a sustainable long-term solution even for the affluent West, let alone for underdeveloped or developing countries. In America today, those who depend on state social welfare often face bitter financial and emotional hardship and endless bureaucratic wrangling, and basic health insurance and decent public education are still beyond the reach of tens of millions. Better social welfare and health insurance systems are in place in Europe today. But these, too, depend on high median wealth in the population, all of which can disappear quickly, as the threats and realities of national bankruptcy in Iceland, Ireland, Greece, Spain, and italy have recently reminded the world.

Perhaps we are simply witnessing today the birth pangs of a new marriage order that will feature the final removal of sexual stereotyping and exploitation; the real achievement of distributive justice to women, children, and the poor; the sensible pluralization of Western marriage laws to accommodate new global patterns of sexuality, kinship, and bonding. These are goals to which the Western legal tradition of marriage must surely aspire. And as Harold Berman reminds us, great legal revolutions always pass through radical phases before they reach and accommodation with the tradition that they had set out to destroy.

It is hard to see the promise of these future benefits, however, in the current phase of the legal revolution in America. The rudimentary disquisitions on equality, privacy, and freedom offered by courts and commentators today seem altogether too lean to nourish the legal revolution of marriage and the family that is now taking place. The elementary deconstructions and dismissals of a millenium-long tradition of marriage and family law and life seem altogether too glib to be taken so seriously. The growing academic calls for the abolition of marriage seem so blind to the needs of children and to the dangers of depending on the benevolence of the state to carry on the work traditionally left to natural kinship networks.

John Witte Jr., From Sacrament to Contract: Marriage, Religion, and Law in the Western Tradition, 2nd edition (2012)

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