Objection
Isn’t marriage just a legal contract? If not, shouldn’t contractual agreement be the only basis for marital legal duties? Some assume that marital duties and privileges arise from — and should thus be codified in law as — little more than a legal contract. Such a legal regime would dismantle the idea that civil marriage is an institution denoting a distinct human relationship with inherent legal privileges and duties.
Instead, marriage would be treated like a contract as any other: couples would only be responsible for those duties that are enumerated in their marital contracts. Like any other contract, these legal arrangements could be customized to meet the beliefs and preferences of the marriage partners, leaving such issues as child custody and child support to be spelled out in contract or resolved by legal arrangements wholly separate from marriage. All this, the objection goes, would allow religious communities to still live out their favored marriage norms and the civil marriage debate would be resolved.
Response
In response, we argue that this proposal fundamentally misunderstands the nature of civil marriage and would obscure important moral realities about marital duties and undermine vital marriage norms. The law’s understanding of marriage is — and ought to be — more than just that of a legal contract. Civil marriage assumes from the outset that a man and a woman who enter into a procreative union legally obligate themselves in certain ways towards each other and any future children that naturally arise, whether they explicitly contracted into those obligations or not.
Consent vs. Contract
Not all duties that we consent to are contractual duties. For example, while the wedding ceremony signifies that the partners consent to the procreative union, marital obligations do not arise from contractual agreement. Rather, these obligations are intrinsically connected to procreation, and the consensual sexual union that leads to it. The marriage certificate is not a contract wherein the obligations of each party are enumerated in the fine print — rather, it is essentially a signed affidavit that the couple has publicly declared their intentions of entering into a potentially procreative union.
This is evidenced by the fact that in many legal traditions, wedding partners can annul their wedding without the inconvenience of divorce if they never consummate their marriage with intercourse. Further, in many jurisdictions, courts will enforce the duties and rights of marriage in some circumstances even if the procreative partners were never formally married, in what is called common law marriage. Consensual, procreative sexual activity leads to legal duties that marriage traditions strive to reflect.
Non-contractual Legal Duties
Civil libertarians believe that not all moral obligations ought to also be legal obligations, and we agree. For this reason, some libertarians conclude that fathers and mothers should have no legally enforceable duties to each other that they have not explicitly agreed to by contract. On this, we disagree. Even from the most minarchist perspectives, laws frequently recognize legal duties that are not based on contract.
For example, even the most ardent libertarians respect the legal conventions of negligence liability and tort, which identify legally enforceable duties that exist whether they have been agreed to or not. Do producers have no responsibility to take reasonable precautions to ensure that their products are safe for consumers unless they have explicitly contracted with consumers to do so? Does a person made violently ill by a careless and negligent restaurateur have no legal recourse, unless the restaurateur first contracted with the customer to take reasonable precautions when serving food? More fundamentally, is non-aggression only obligatory when we’ve signed a social compact agreeing to it?
These legal principles assert that when our actions have consequences that could impact third parties, we have legal duties to take reasonable steps to protect those parties from harm. In few scenarios is this more true than when creating new human life, and for this reason, procreative sex obligates us in the legal realm as well as the moral realm. Civil marriage is the common law practice — a sibling to a host of other common law practices (such as liability, tort, etc.) that civil libertarians fully embrace — by which courts minimally recognize these duties and the rights of family that accompany them.
Child Custody and Support
While child custody and child support laws might acknowledge some bare minimum vertical obligations between parents and children, they are simply a legal failsafe for when normal family relations break down. These laws can be compared to a bandage that mitigates some of the third party damage inflicted by divorce, and cannot wholly supplant the comprehensive legal commitment embodied in marriage.
Further, fathers and mothers have inherent legal duties not just towards their children, but towards each other as well. In many settings, a woman with children becomes financially dependent, and the father is therefore not just legally responsible for his dependent children, but for their mother too. Marriage is the institution that reflects both vertical and horizontal duties, and requires third-party arbitration of neither unless and until the marriage relationship completely breaks down (as in cases of divorce).
Conclusion
In conclusion, dismantling marriage as a distinct legal entity, and treating the duties, rights, and privileges of marriage as though they are just the product of explicit contract (and which can therefore be customized to suit the procreative partners’ preferences), ultimately denies that fathers and mothers have any inherent legal duties towards each other by virtue of their procreative activities. It would further erode the already-weakened public norms by which fathers and mothers assume themselves to be responsible for their procreative activities (and towards their procreative partners). Norms of fidelity, permanence, and exclusivity would no longer be considered essential features of procreative unions, but optional commitments based solely on the preferences of the partners.