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| A couple celebrates a birthday |
I think Jennifer Roback Morse's "Why Unilateral Divorce Has No Place In a Free Society" is brilliant and illuminating. (In Robert George and Jean Bethke Elshtain,
The Meaning of Marriage;
Morse taught economics at Yale University and George Mason University)
The basic idea is that "marriage" is something unavoidable because "natural," i.e., according to nature. Marriage happens, in all cultures. And what is marriage? Morse writes:
"I
define marriage as a society’s normative institution for both sexual activity
and childrearing. Marriage is an organic, pre-political
institution that emerges spontaneously from society."
In culture, marriage emerges “spontaneously.” It’s not
some human invention. It will happen, whether there are laws or not. But, “the
state may still need to protect, encourage, or support permanence in
procreational couplings, just as the state may need to protect the sanctity of
contracts.” (Kindle Locations 1450-1451) "Law" enters to protect something valuable that is already there. In this sense "law" does not define. It protects. Morse writes:
One of the functions of the
state is to protect such spontaneous emergence. Just as state government must
protect and not “ignore violations of property rights, contracts, and fair
exchange. Apart from the occasional anarchocapitalist, all libertarians agree
that enforcing these is one of the basic functions of government. With these
standards for economic behavior in place, individuals can create wealth and
pursue their own interests with little or no additional assistance from the
state. Likewise, formal and informal standards and sanctions create the context
in which couples can create marriage, with minimal assistance from the state.” (Kindle
Locations 1452-1455)
Morse asks us, analogically, to consider the issue of socialism or capitalism. The debate here is not asking us to decide which is best. Instead, the debate is "over how the economy actually works. Everything from the law of contracts to antitrust law to commercial law will be a reflection of some basic understanding of how the economy works in fact." (Kindle Locations 1460-1461)
With that idea established. Morse makes the analogy to marriage. She writes, beautifully I think:
"There are analogous truths about human sexuality. I claim the sexual urge is a natural engine of sociability, which solidifies the relationship between spouses and brings children into being. Others claim that human sexuality is a private recreational good, with neither intrinsic moral nor social significance. I claim that the hormone oxytocin floods a woman’s body during sex and tends to attach her to her sex partner, quite apart from her wishes or our cultural norms. Others claim that women and men alike can engage in uncommitted sex, with no ill effects. I claim that children have the best life chances when they are raised by married, biological parents. Others believe children are so adaptable that having unmarried parents presents no significant problems. Some people believe marriage is a special case of free association of individuals. I say the details of this particular form of free association are so distinctive as to make marriage a unique social institution that deserves to be defended on its own terms, and not as a special case of something else." (Kindle Locations 1462-1470)
Which side is true? We know where Morse and I stand. Both sides can't be true. She writes: "We will be happier if we try to discover the truth and accommodate ourselves to it, rather than try to recreate the world according to our wishes." (Kindle Locations 1472-1473)
Abandon the idea of "law" as an essentially redefining, recreative device.
