The discourse of “contract” and the law of marriage

Thomas W. Joo

A chapter in Law & Economics: Toward Social Justice, 2009, pp 161-187 from Emerald Group Publishing Limited

Abstract: Marriage is often compared to a “contract.” This analogy purports to proceed from a settled concept called “contract,” under which legitimate obligations derive from consent. The analogy creates confusion when applied 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.

Date: 2009
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Persistent link: https://EconPapers.repec.org/RePEc:eme:rlwezz:s0193-5895(2009)0000024011

DOI: 10.1108/S0193-5895(2009)0000024011

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