The discourse of “contract” and the law of marriage

Date19 May 2009
Published date19 May 2009
AuthorThomas W. Joo
Thomas W. Joo
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.
The discourse of ‘‘contract’’ is increasingly imported into other sub-fields of
the law. This chapter attempts to model this rhetorical practice using the
Law & Economics: Toward Social Justice
Research in Law and Economics: A Journal of Policy, Volume 24, 161–187
Copyright r2009 by Emerald Group Publishing Limited
All rights of reproduction in any form reserved
ISSN: 0193-5895/doi:10.1108/S0193-5895(2009)0000024011
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.
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.
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).)

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