The normative foundations of civil marriage
Garrett, Jeremy Ray
Doctor of Philosophy
Marriage is an undeniably important institution of modern civilization. Indeed, among the fundamental institutions forming the basic structure of society, perhaps only law and property exercise a more profound influence upon citizens' life prospects. Yet while the latter institutions have long been considered objects of primary importance to political philosophers, the institution of marriage has not received comparable philosophical treatment. In fact, despite the profound influence of marriage on the structure and quality of individual and social life, it is fair to say that, outside of explicitly feminist and natural law circles, the institution has rarely been treated as a topic of any philosophical interest since the nineteenth century. In my dissertation, I seek to make some headway in exploring these relatively uncharted philosophical waters. Within the complex range of conceptual and normative questions surrounding marriage, I focus on arguably the central political-philosophical question concerning the institution: “Should the state establish, recognize, and/or maintain a civil form of marriage?” In addressing this question, I identify, analyze, and critically evaluate the most prominent arguments purporting to justify the state's authority to legally establish and regulate marriage. I conclude that marriages in a pluralistic society ought to be mostly private affairs worked out between or among those party to the arrangements, with the state's involvement limited to the enforcement of (1) general laws (e.g., regarding property, torts, crime, etc.) and (2) particular contracts that are individually initiated and designed within a defensible system of contract law. The project, as I see it, produces at least three significant conclusions. First , the dominant form of civil marriage in contemporary Western societies, traditional civil marriage, derives from inherited beliefs and practices that are philosophically problematic. Secondly , and more abstractly, any substantive account of the basis for civil marriage in a pluralistic society will ultimately prove unsatisfactory for one reason or another. Finally , marital contractualism constitutes a promising and attractive alternative to a preformed, state-defined institution of civil marriage in political theory and practice.