Against Blackstone and the concept of marriage as contract

Modern Schoolman

Volumn 81, Issue 2, 2004, Pages 97-120

  Vodraska, Stanley ^a  

^a NONE

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EID: 60949836614     PISSN: 00268402     EISSN: None     Source Type: Journal    
DOI: 10.5840/schoolman20048127     Document Type: Review

References (14)

1. Robert F. Drinan, S.J., "American Laws Regulating the Formation of the Marriage Contract," The Annals of the American Academy of Political and Social Science 383 (May 1969) 53. My italics. I challenge now the concept that marriage is a contract.
2. Quotation from William Blackstone, Commentaries on the Laws of England, in four volumes (Oxford: Clarendon Press, 1765-69) 1.421.
3. Bruce C. Hafen, "The Legal Definition and Status of Marriage" in Christopher Wolfe, ed., The Family, Civil Society, and the State (Lanham, etc.: Rowman & Littlefield Publishers, Inc., 1998) 100.
4. Blackstone's influence extends to the "conditions" of the marriage contract as well. Black's Law Dictionary defines marriage as "the legal union of a man and woman as husband and wife," and immediately goes on to say that "although the common law regarded marriage as a civil contract, it is more properly the civil status or relationship existing between a man and a woman who agree to and do live together as spouses. The essentials of valid marriage are (1) parties legally capable of contracting marriage, (2) mutual consent or agreement, and (3) an actual contracting in the form prescribed by law." Black's Law Dictionary, 7th edition by Bryan A. Gamer et alia (St. Paul, Minn.: West Group, 1999) 986.
5. Cf. Corpus Juris Secundum Vol. 55 §§ 2-3, 9, 13-21, 30, 34. Of course I don't attribute to Blackstone the origin of the claim that marriage arises from a contract; the claim goes back at least to late medieval canonists. But Blackstone's formulation is clear and useful.
6. " . . . many people today assume that U.S. law defines marriage simply as a private contract between two individuals. Even though this assumption increasingly reflects society's practical understanding, as a matter of legal theory the assumption is wrong. Marriage is actually very public, it involves three parties, and it isn't just a contract. It is, rather, a legal act that creates a status, not just a contract, of marriage. In most marriages, even today, marital status imposes its basic expectations through the force of general laws, not through private, point-by-point negotiating between two contracting parties . The three parties are a man, a woman, and society - with society represented by the state." Hafen, "The Legal Definition and Status of Marriage," 100-101;
7. The bride and groom don't call upon God in their vows. There's no "So help me God!" here. The bride and groom don't even offer any particular prayers. Rather there's ". thereto I plight thee my troth," which is, roughly, "I give you my word on it," without a divine appeal. This feature suggests that in terms of civil law these particular marriage vows are affirmations, that is, oaths without divine appeal. In British law "Every . affirmation shall be as follows: 'I, A.B., do solemnly, sincerely, and truly declare and affirm' and then proceed with the words of the oath prescribed by law, omitting any words of imprecation or calling to witness." An affirmation omits reference to deity. This is to make available to a person who has no religious belief, or for whom taking an oath is contrary to his religious belief, an alternative to oath. Walter L. Amstein, The Bradlaugh Case: A Study in Late Victorian Opinion and Politics (Oxford: At the Clarendon Press, 1965) 317; cf. 34-36, 41-42, 63-83, 147-48, 186-91, 276-86, and 317-18.
8. Drinan, "American Laws Regulating the Formation of the Marriage Contract," 264; my italics.
9. Norman Malcolm, Ludwig Wittgenstein: A Memoir (London, etc.: Oxford University Press, 1970)47-48.
10. Lyla H. O'Driscoll, "On the Nature and Value of Marriage," in Mary Vetterling-Braggin, Frederick A. Elliston, and Jane English, eds., Feminism and Philosophy (Totowa, N.J: Littlefield, Adams & Co., 1977) 250-51.
11. Gabriel Marcel, "Le voeu créateur comme essence de la paternite" in his Homo Viator: Prolégomènes à une Métaphysique de l'Esṕrance (Paris: Aubier, Éditions Montaigne, 1944) 133-70.
12. Cf. Bertrand Russell Marriage & Morals (New York: Horace Liveright, 1929) 185.
13. John Locke, Second Treatise Of Government § 81, any edition.
14. Thomas Aquinas, Of God and His Creatures: An Annotated Translation (With Some Abridgement) of the Summa Contra Gentiles. . . by Joseph Rickaby, S.J. (St. Louis, Mo.: B. Herder, 1905) 308-09. In other translations refer to III.cxxxix.ad finem. Aquinas suggests that living together under marriage vows is more praiseworthy than living together but not under marriage vows. The argument to support this may support an examination.