The discourse of “contract” and the law of marriage

• DOI: https://doi.org/10.1108/S0193-5895(2009)0000024011
• Pages: 161-187
• Date: 19 May 2009
• Published date: 19 May 2009
• Author: Thomas W. Joo

THE DISCOURSE OF ‘‘CONTRACT’’

AND THE LAW OF MARRIAGE

Thomas W. Joo

ABSTRACT

Marriage is often compared to a ‘‘contract.’’ This analogy purports to

proceed from a settled concept called ‘‘contract,’’ under which legitimate

obligations derive fromconsent. The analogy creates confusion whenapplied

in the legal context. In law, ‘‘contract’’ refers to a broad category of legal

obligation. Many legal theorists believe ‘‘contractual’’ enforceability should

be based solely on consent. But as a matter of positive legal doctrine, consent

is neither necessary nor sufficient to establish enforceability. A contract’s

enforceability also depends on its relationship to public welfare.

Thus the ‘‘contract’’ analogy does not constitute a legal justification

for an approach to marriage based solely on the consent of the parties.

It merely expresses a normative preference for a consent-based approach.

The chapter illustrates this point using examples of current marriage-

related issues, such as covenant marriage, prenuptial agreements, and

same-sex marriage.

1. INTRODUCTION

The discourse of ‘‘contract’’ is increasingly imported into other sub-fields of

the law. This chapter attempts to model this rhetorical practice using the

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Research in Law and Economics: A Journal of Policy, Volume 24, 161–187

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contractual discourse about marriage law as an example. Commentators

frequently use analogical reasoning to argue that the law governing

marriage and related issues should be, or should not be, like the law of

contracts. But the discussion takes too narrow a view of the meaning of

contract. Both supporters and opponents of a ‘‘contractual’’ approach

to marriage law tend to use ‘‘contract’’ to signify a market-libertarian

normative view about the role of bargaining rather than to refer to the

actual, more complex nature of contract law.

In legal terminology, a ‘‘contract’’ is a legally enforceable promise.

1

The

enforceability of contracts is based in large part – but not exclusively – on

voluntary bargaining and mutual assent. Thus the theory and doctrine

of contract law struggle with the tension between liberty and enforceable

obligation. Although the legal definition focuses on enforceability,

neoclassical economists use the term ‘‘contract’’ to refer to voluntary,

reciprocal relationships, without regard to their legal enforceability.

2

And

while the neoclassical economic model does not concern itself with enforce-

ability, neoclassical law-and-economics theory (L&E) tends to assume

(often implicitly) that the allocational efficiencies attributed to voluntary

bargains constitute a normative basis for their legal enforceability. But

even though the L&E position is nominally concerned only with the

instrumental goal of efficient allocation, it of course draws rhetorical

strength (intentionally or not) from notions, embedded in legal culture

and in our political culture more generally, of ‘‘freedom of contract’’ as

a categorical good. Long before L&E, the 19th century ‘‘Classical’’ school of

contract law also based its theory of enforceability on voluntary mutual

assent, based in part on early concepts of efficiency but also on ideological

commitments to individual liberty.

While the Classical model has a long historical pedigree, Realist and post-

Realist notions of ‘‘contract’’ subsequently asserted that the concept is

descriptively far more complex and normatively contested. Some commen-

tators continue to argue as a normative matter that enforceability should

be based primarily on voluntary assent, but many others disagree.

Moreover, there is further disagreement over the importance of voluntary

assent as a descriptive matter of contract doctrine. Under the ‘‘objective

theory’’ of contract formation, for example, assent turns on one’s words

and actions, not only one’s subjective state of mind. As explained in the

Second Restatement of Contracts, contract formation normally requires a

‘‘manifestation of assent,’’ but ‘‘[t]he conduct of a party may manifest assent

even though he does not in fact assent.’’ (American Law Institute, 1981,

Sections 17(1), 19(3).)

THOMAS W. JOO162