In recent years there has been a strong movement in civil society to rebuild a culture of marriage. Unfortunately, say family scholars, the trend in family law has been just the opposite. How can this gap be bridged? In a major new document – Marriage and the Law: A Statement of Principles – the marriage scholars map a way forward. In the following excerpt they propose three general insights as the basis of a new legal theory that is more respectful towards and supportive of marriage as a social institution.
Marriage is not merely a legal construct
When it comes to economics, courts, legal scholars, judges, legislators, and other thoughtful observers have no trouble recognising the gap between “the law” and the underlying social phenomenon that the law attempts to regulate. No court in America would preface an important decision in telecom law, for example, by flatly declaring, “Government creates the telecommunications industry,” even though the development of this or any other industry is in part dependent on the proper structuring of laws governing that industry. American legal minds understand that there is a gap between the thing economic law regulates (eg, productive activity) and the law itself. Despite many disagreements about particulars, American legal minds also understand that in the realm of economics getting the structure of law right matters.
Similarly, it is hard (as yet) to imagine a court of law declaring that it creates “civil motherhood,” even though there are important laws regulating who the parent is, and what the rights of parents are, and even though adoption can transfer the status of motherhood to non-biological parents. The state understands very well that a phenomenon as large and significant as motherhood cannot be reduced to a legal construct or a creature of statute. In making laws about parenthood, the state is regulating a key set of productive relationships that it does not and cannot create.
What does this mean in the context of the current marriage debates? A government that understands that it does not create markets or motherhood needs to understand that marriage cannot be reduced to a legal construct either. Marriage as a meaningful social institution—one that makes a difference in the hearts and minds and behaviour of mothers and fathers and the wider society—is necessarily the product of civil society: of families, faith communities, songwriters, storytellers, neighbours, and friends, who together create a vision of what marriage means in our shared public culture. It is family, friends, and faith communities who do the necessary and hard work of raising children to become young men and women who respect the marriage bond and at least try to live up to its demands.
This is not work that the law, alone, can do. Because marriage is so intimately related to the generation of and the protection of children, government has always been seen to have a legitimate role in regulating the “civil effects” of marriage. The law also plays an important role in sustaining the shared meanings and consequences of marriage. Getting the law of marriage right therefore matters a great deal.
Part of getting marriage law right requires a renewed modesty and realism on the part of the state, including our courts. The state cannot by itself create a marriage that matters, one capable of constraining or channelling erotic drives of adults in the interests of children and society. The state therefore must exercise special care not to undermine this web of meanings sustaining our increasingly fragile marriage culture.
The law must recognise that it is only one of many players—albeit an important one—that together help create and sustain a marriage culture. “Civil marriage,” absent the support of civil society, is unlikely to mean much for children or society. Only when marriage is broadly supported by law and civil society, including but not limited to faith communities, does it remain a powerful social institution, capable of directing the behaviour of men and women in the interests of children and society.
Human nature exists and places limits on what law can accomplish
Human nature exists and sets limits on what law can accomplish by fiat alone. In the economic domain, it is well understood that, for example, while we may wish that people would protect others’ property as assiduously as they protect their own, if we make legislation based on this assumption, bad things will happen, because it is not true. (Explaining why, as one university president famously puts it, “Nobody washes rental cars.”)
When it comes to marriage, law must respect the reality of the ways in which human biology, human nature, and social relationships are intertwined. We may wish men to be, say, equally committed fathers outside of marriage as inside of it. We may even legally declare that children will have the same rights to their fathers’ care and support inside and outside of marriage, but the law’s commands alone will not make it so. Mother and child are intimately connected by the bonds of pregnancy and birth. Father and child are not so linked, unless culture, law, and society conspire to transform sperm donors into true lovers and good husbands, and thereby into reliable fathers. A good society consciously seeks to raise boys who aspire to be good family men. The principal vehicle in our society, and virtually every known human society, for linking fathers to their children is marriage.
We support laws requiring unmarried fathers, as well as married fathers, to support their children, financially and in other ways. We also know, from 40 years of social experimentation, that child-support payments do not replace a loving, hands-on dad. If we want our children to know and be loved by their fathers, law and culture must acknowledge and respond to human sexual realities by supporting a marriage culture.
Social institutions matter and they matter a great deal
A new respect for the idea that institutions matter permeates the field of economics and its relationship to law. As two prominent scholars argued recently, “The central message of the New Institutional Economics is that institutions matter for economic performance.”
Economic institutions are not created by law, although they are deeply affected by it. Firms, markets, and contracts exist first as institutions of civil society. Their legal treatment, however, profoundly affects the extent to which these (mostly) privately ordered relations succeed in achieving their (partly) public goals.
Sophisticated economic thinking recognises that contracts, for example, are not just legal constructs, supported by legal sanctions; they are also social understandings supported by social norms. Business people believe that, by and large, contracts are to be honoured, not only because the law will extract punishments for failing to do so, but also because this is how honourable business people behave. These internalised ideals, as well as the reputational consequences of violating business norms, affect the way business people behave with respect to contracts. The law plays an indispensable role in maintaining these social expectations by enforcing contracts. But the shared understanding of the contract, and the social (and not just legal) consequences of being perceived to deal in good faith, are important mechanisms for bringing the benefits of contract to life.
Whereas many once believed that withdrawing legal regulation was all that was necessary for the economy to flourish, the post-Soviet experience has taught economists to realise that goods like the market depend on social institutions, such as social trust and respect for the rule of law. As Furubotn and Richter conclude, “The invisible hand, if unaided by supporting institutions, tends to work slowly and at high cost.”
If this insight is true for a purely economic institution, how much more must it be for something as primarily and primordially social as marriage?
Judges, legislators, family law scholars, and other influential legal thinkers need to take seriously the “institutional” effects of law on the culture of marriage.
The full report, published by the Institute for American Values and the Institute for Marriage and Public Policy, can be accessed through this link.