Public Practice, Private Law: An Essay on Love, Marriage, and the State, Gary Chartier, Cambridge University Press, 264 pages.
This book is about the proper relationship between marriage and state—and yet it’s so much more: an exhaustively researched work on all aspects of love and marriage. So it would be sad if readers uninterested in its political theme passed up the book. Here I will focus the link between marriage and state, but don’t take that to mean that Chartier’s larger purpose is unimportant or uninteresting.
His marriage ideal has in my view everything to recommend it, if our standard is the flourishing of reasoning social beings. Along the way he demonstrates the inadequacies of alternative models, both traditional and modern—marriage is best seen as neither a union essentially for the raising of children nor a contractual framework to facilitate a series of narrowly self-regarding transactions. Rather, his “vision is rooted in an understanding of marriage as the actualization of love. … a properly marital commitment is a commitment to the creation or solidification of a shared identify, a we, and that this will entail a variety of more specific commitments to communication, truthfulness, vulnerability, acceptance, attentiveness and understanding, respect, equality, and, preferably, exclusivity.”
As one might anticipate, Chartier’s model of marriage has this political implication: if gays and lesbians would flourish in such marriages fully as much as heterosexuals—and why wouldn’t they?—the state should not have failed to recognize same-sex marriage. (Thankfully it no longer does.)
Chartier, however, would “delink” marriage and the state even it were to decide to foster marriage as he conceives it. Why is that? The quick answer is that as anatural-law, pro-market left-libertarian, he doesn’t want the state to do anything at all. Individuals ought to be left free to enter into the consensual arrangements of their own choosing. But he does not leave matters there.
“If there were an argument for state involvement in the marriage business,” Chartier writes, “it is implicitly also an argument for several other things. It is, in particular, an argument for the state’s placement of roadblocks in the path of those who want legally to divorce. And it is also an argument for a state-defined one-size-fits-all marriage contract. Neither the roadblocks nor the Procrustean contract make sense.” This is because marriage “is a complex moral relationship, marked by diverse and often unenforceable expectations and shaped by the partners’ individuals goals and circumstances. I argue, therefore, that people should be free to design their own marital arrangements, and, if they like, to embody them in legally enforceable agreements free of state involvement.”
