Marriage, Misc

[Opening sentences:]What business does the government have in sticking its nose into people’s private affairs? What affairs could be more legitimately private than relationships involving sex and love? LOCKEAN LIBERTARIANISM These questions resonate with many individuals across a wide range of ideologies and beliefs. For many of us these questions will strike us as rhetorical questions to which the obvious answers are “none” and “none.” These responses reflect a Lockean libertarian strain in the social thinking of many intelligent and thoughtful (...) people. But of course matters are more complex, even as viewed from a Lockean libertarian perspective.1 Sex and love tend to bring about new children, and causing a child to exist is a social act with wide consequences for other people who could not be supposed to consent to bear these consequences. Libertarians will regard with equanimity the showering of externalities in the form of benefits that typically accompany the creation and upbringing of a responsible competent person who becomes a useful member of society. The libertarian will insist that the receipt of such benefits does not generate any reciprocal obligations to benefit those who benefit us in these unconsented to ways.—at least, not obligations that are legitimately enforceable and that justify forcible imposition on people’s liberty to lead their lives as they choose. But bringing children into the world can and often does impose net costs on people who do not consent to bear these costs. The introduction of one extra person may strain scarce resources... (shrink)

Throughout the world, marriage arguably is one of the most important social and legal institutions. The socially and legally recognised bond between a man and a woman lies at the heart of most families. However, there is no globally uniform understanding of marriage. Its meaning is inseparably linked to culture, religion and social class. The purpose of this essay is limited to providing a comparative perspective on the situation in five different Arab and Islamic countries. The main focus is on (...) the minimum age for marriage. Child marriages are a major concern of both human rights organisations and international treaties. There is a strong link between marriageable age and the overall status of women in society: the earlier a woman marries, the more the time for her education, employment and personal development is constrained. In many countries, various attempts have been made to ban marriages between minors. In Arab and Islamic countries, difficulties in this area also arise from tensions between traditional interpretations of religious sources on the one hand, and international treaty commitments on the other. The first section of this paper introduces the classical Islamic law position on marriageability. The second part provides a brief outline of the international framework with regard to the age at which marriage is permitted. The third and central part is dedicated to an analysis of legal developments in five different Islamic countries - Morocco, Egypt, Saudi Arabia, Iran and Afghanistan – as well as a consideration of the political, historical and social framework of marriage in those countries and the current legal situations which apply there. The fourth and final part of the paper recapitulates the results of this analysis and presents the conclusions drawn from it. (shrink)

Opponents of same-sex marriage suggest that legalizing same-sex marriage will start a slide down a “slippery-slope” leading to the legalization of all kinds of salacious family arrangements including polygamy. In this paper, I argue that because previous attempts by liberal political theorists to combat such slippery-slope arguments have been unsuccessful, there are two options left open to political liberals. Either one could embrace polygamy as a logically consistent implication of extending civil liberties to same-sex couples or one could find a (...) new strategy for blocking the slide down the slope. I take the second option arguing that we ought to devise a harm principle for domestic partnerships. Once this principle has been established, it becomes clear that the risk of exploitation for those potentially occupying the multiple side of the marriage is sufficient reason to reject polygamous marriage arrangements. I conclude that, contrary to appearances, holding both same-sex marriage is permissible and polygamous marriage is impermissible is at the same time consistent and consistently liberal. (shrink)

Il Sinodo sulla famiglia nel 2014 ha ripreso la proposta di considerare la possibilità di richiedere la fede come requisito di validità per il matrimonio sacramentale. Il presente studio approfondisce la questione, nel suo sviluppo nel tempo, alla luce soprattutto della dottrina e della giurisprudenza, ed evidenzia come una simile proposta manchi di solide e certe giustificazioni teologiche ed in modo particolare non risolva nella pratica nessuna delle questioni per le quali è stata pensata. Il bene indisponibile del sacramento del (...) matrimonio richiede, e questo è il vero aspetto importante, di essere difeso e curato con una pastorale attenta, fatta di verità e carità, prima, durante e dopo la celebrazione. Uguale attenzione si dovrà avere per le persone che vivono una crisi matrimoniale e che dovranno essere aiutate, in ogni caso, a vivere cristianamente una tale prova, in modo particolare se si dovrà verificare la validità stessa del loro matrimonio, cosa che esige personale preparato nei vari Tribunali. /// The 2014 Synod on the Family resumed the proposal of considering the possibility of requiring faith as a requisite for the validity of sacramental marriage. This study explores this question, in its development over time, particularly in the light of doctrine and of jurisprudence, and highlights how such a proposal lacks solid and sure theological justifications and, in practice, does not resolve, any of the matters for which it is intended. The real issue at stake is that the indispensable good of the sacrament of marriage should be defended and treated with an attentive ministry, based on truth and charity, before, during and after the celebration. The same attention should be given to people experiencing marital crisis, and who should be helped to face this trial in a Christian way, it being particularly necessary to ascertain the actual validity of their marriage, which requires personnel trained in the various Tribunals. (shrink)

In a time when conservatives believe that the traditional family is under increasing fire, some think an appeal to Darwinian science may be the answer. I argue that these conservatives are wrong to maintain that Darwinian theory can serve as the intellectual foundation for the traditional conception of the family. Contra Larry Arnhart and James Q. Wilson, a Darwinian philosophy of nature simply lacks the stability the traditional family requires; it cannot support the traditional conception of human nature and the (...) normativity it was thought to contain. If conservatives are to maintain these traditional ideas, the theoretical foundation must lie elsewhere. (shrink)

In this paper, I ask whether mishpat ivri (Jewish Law) is appropriately conceived as a “legal system”. I review Menachem Elon’s use of a “Sources” Theory of Law (based on Salmond) in his account of Mishpat Ivri; the status of religious law from the viewpoint of jurisprudence itself (Bentham, Austin and Kelsen); then the use of sources (and the approach to “dogmatic error”) by halakhic authorities in discussing the problems of the agunah (“chained wife”), which I suggest points to a (...) theory more radical than the “sources” theory of law, one more akin to the ultimate phase of the thought of Kelsen (the “non-logical” Kelsen) or indeed to some form of Legal Realism (with which that phase of Kelsen’s thought has indeed been compared)? I finally juxtapose an account based on internal theological resources (a “Jurisprudence of Revelation”). Downloadable at at http://www.biu.ac.il/JS/JSIJ/jsij1.html. (shrink)

I argue that promoting justice within marriage requires a cultural reconceptualiza¬tion of marriage itself as not merely a relationship of love, but as also a commitment to justice. I argue that it is insufficient to combat injustice in marriage with progressive laws and policies, even when combined with smart planning and bargaining on the part of women. Also necessary is a change in the way marriage itself is viewed. In addition to being regarded as an emotional commitment, it should also (...) be seen as a commitment to interpersonal justice. I discuss what this reconceptualization would mean in practice and address several possible objections. (shrink)

I distinguish two ways that a cultural practice may be inherently objectionable. I reject the claim that polygamy is inherently "vicious" because asymmetric marriages are inevitably inegalitarian. I argue that there is good reason to think polygamy is inherently "bankrupt" insofar as a cultural ideal of asymmetric marriage presupposes stereotypical gender roles.