Can or must political liberals recognize any form of legal marriage? If so, on what grounds and what type of marriage can they recognize? Elizabeth Brake argues that political liberals can and must support the social bases of adult caring relationships through the public recognition and support of minimal marriage. She thinks that political liberals cannot recognize a more robust form of marriage than her minimal marriage. Clare Chambers argues that the state should abolish (...) legal marriage and replace it with the marriage-free state, which endorses piecemeal practice-based personal relationship laws. In this thesis, I will argue that the marriage-free state is superior to minimal marriage even in an ideal society because the marriage-free state can secure the rights and entitlements that are important for minimal marriage and do so in a way that is more inclusive of vulnerable persons. (shrink)

In recent years, marriage migration as a form of family reunification has become a growing policy concern for migration governance in European member states and is seen as ‘the last loophole’ in EU migration policy in the face of a supposedly large and increasing number of sham marriages through which the non-European spouse is granted a residency permit. Several European nations have therefore legislated legal-administrative measures to battle marriages of convenience by investigating cross-border marriage applications prior to (...) celebrating or recognising the marital union. In this article, I draw on a linguistic ethnographic empirical study of legal-administrative investigations conducted by Belgian municipal authorities to determine whether cross-border marriage applications to their civil registry office are ‘genuine’ or ‘fake’. In particular, I examine how the legal framework and guidelines for investigation are bureaucratically implemented in practice in Belgian civil registry offices with a particular focus on the role of a discursively constructed notion of genuine cross-border love and a bureaucratically acceptable relationship in both policy documents and interviewing practice. (shrink)

Resumen: Este artículo explora los cambios en el entorno legal cambiante y la estructura social de la sociedad de la meseta Qinghai - Tíbet, la dinámica social y cultural reflejada en el declive, renacimiento y mutación de la poligamia, enfatiza el papel de la mujer en ella y espera con interés el desarrollo futuro de la poligamia en la meseta Qinghai - Tíbet. La exploración y práctica de este artículo es una nueva conceptualización de estudios anteriores sobre el poder (...) de género y la Condición Jurídica y Social de la mujer. La existencia y continuación de la poligamia refuta la comprensión mecánica de la subordinación general de las mujeres desde una perspectiva intercultural, y las características dinámicas, sistemáticas y simbólicas de los roles y estatus de las mujeres en el matrimonio poligámico en la meseta Qinghai - Tíbet verifican la predicción de la tendencia de la investigación sobre el estatus de las mujeres. La preocupación por el papel y la posición de las mujeres en las familias polígamas intenta confirmar la complejidad del poder de género y la posición de las mujeres en la sociedad. Tanto la innovación del pensamiento teórico como la exploración del camino de investigación son para ir más allá en la exploración de problemas similares. Aunque es imposible agotar todos los problemas posibles, la atención y exploración de los grupos de mujeres en el sistema de matrimonio polígamo en este artículo enriquece la visión de los estudios anteriores sobre la Condición Jurídica y Social de la mujer, pero también plantea cuestiones por explorar. (shrink)

Under the market economy, a contract serves as the main regulatory instrument of mutual rights and obligations of private law subjects. Many different types of contracts allow people to satisfy their needs and to achieve the desired results. Most contracts are concluded subject to established common criteria, yet almost every type of contract has also its own specifics. The article examines the marriage contract with its particular features (subjects, content, etc.) and analyses its complex nature and its main purpose. (...) The institution of marriage contract is relatively poorly covered by academic research in Lithuania (academic papers on legal science provide only patchy analysis of these contracts); case law in the resolution of arguments originating from such contracts is also limited and thus not completely established. Despite controversial attitudes towards the purpose of marriage contract, the numbers of concluded prenuptial and postnuptial agreements increase from year to year, i.e. more and more individuals express their will to specify the content of property obligations and to define the legal regime of property. These contracts are usually concluded to avoid unpredictable division of property in case of divorce and to protect family members against possible future claims of third parties (creditors). Bearing in mind that legal provisions governing marriage contracts are subject to diverse interpretation, analysis of this institution appears timely and relevant. (shrink)

This article examines the interplay between homophobia and nationalism by analyzing online comments on the ruling of legalizing same-sex marriage in Taiwan. Drawing on methods from critical discourse analysis, I focus on the framing of this ruling by members from a Chinese antigay community online. I show that they frame this ruling as (1) in opposition to public opinion, (2) promoting ‘Westernization’ and ‘Independence’, (3) seeking immorality and self-destruction. I find that within these frames, they evoke nationalist discourses that (...) represent supporters of this ruling as the ‘Other’ who attempt to split with China, thereby associating LGBT equality movements in China with this political threat. I argue that these nationalist discourses are used in a way that reinforces and legitimizes discourses of homophobia. (shrink)

This article examines the interplay between homophobia and nationalism by analyzing online comments on the ruling of legalizing same-sex marriage in Taiwan. Drawing on methods from critical discourse analysis, I focus on the framing of this ruling by members from a Chinese antigay community online. I show that they frame this ruling as (1) in opposition to public opinion, (2) promoting ‘Westernization’ and ‘Independence’, (3) seeking immorality and self-destruction. I find that within these frames, they evoke nationalist discourses that (...) represent supporters of this ruling as the ‘Other’ who attempt to split with China, thereby associating LGBT equality movements in China with this political threat. I argue that these nationalist discourses are used in a way that reinforces and legitimizes discourses of homophobia. (shrink)

This is a critical review of the book Legally Wed: Same Sex Marriage and the Constitution, by Mark Strasser. It discusses the book as well as legal cases and legal and moral reasoning relevant to deciding against the Constitutionality of prohibitions of same sex marriage. Such prohibitions were operative in states until the 2015 landmark U.S. Supreme Court decision in Obergefell v. Hodges struck them down and upheld a fundamental right to marry for same sex couples.

This paper analyzes the implications that the linguistic formulation of the marriage provision of the Spanish Constitution of 1978 had for securing the passage in 2005 of Law 13/2005, which legalized same-sex marriage. By claiming that a semantic omission in the original legal text was a marker of distributiveness, SSM supporters aimed to avoid a constitutional amendment, and succeeded in doing so. This linguistic argument, based on implicitness, was instrumental as a subsidiary argument of political moral argumentation. (...) Linguistic meaning therefore contributed decisively to both the legal meaning of the marriage provision and the content of the law. I argue, against some assumptions in the literature stating otherwise, that linguistic meaning should not be dismissed in constitutional interpretation and adjudication. (shrink)

This chapter expresses that radical feminist perspectives on marriage and motherhood are in danger of being lost in the quest for equal rights. For more than a decade, feminist philosophers and lesbian/gay activists have been optimistic about the potentialities of legal marriage and legitimated motherhood. Feminist philosophers are taking as valuable theoretical paradigms for ethics many kinds of caring relationships that have been salient in women's lives. "Family" is itself a family resemblance concept. Apart from the institution (...) of marriage and historical ideals of the family, it is uncertain what characteristics mother‐child relationships would have, for many alternatives are possible. Historically, motherhood has been a core element of patriarchy. Moral philosophy might also be transformed by greater attention to the fact that adult experience and its potentialities are significantly conditioned by the childhoods of adults and of those children's relationships to adults. (shrink)

This essay argues that current advocacy of lesbian and gay rights to legal marriage and parenthood insufficiently criticizes both marriage and motherhood as they are currently practiced and structured by Northern legal institutions. Instead we would do better not to let the State define our intimate unions and parenting would be improved if the power presently concentrated in the hands of one or two guardians were diluted and distributed through an appropriately concerned community.

Contemporary recognition theory has developed powerful tools for understanding a variety of social problems through the lens of misrecognition. It has, however, paid somewhat less attention to how to conceive of appropriate responses to misrecognition, usually making the tacit assumption that the proper societal response is adequate or proper affirmative recognition. In this paper I argue that, although affirmative recognition is one potential response to misrecognition, it is not the only such response. In particular, I would like to make the (...) case for derecognition in some cases: derecognition, in particular, through the systematic deinstitutionalization or uncoupling of various reinforcing components of social institutions, components whose tight combination in one social institution has led to the misrecognition in the first place. I make the case through the example of recent United States debates over marriage, especially but not only with respect to gay marriage. I argue that the proper response to the misrecognition of sexual minorities embodied in exclusively heterosexual marriage codes is not affirmative recognition of lesbian and gay marriages, but rather the systematic derecognition of legal marriage as currently understood. I also argue that the systematic misrecognition of women that occurs under the contemporary institution of marriage would likewise best be addressed through legal uncoupling of heterogeneous social components embodied in the contemporary social institution of marriage. (shrink)

How is it possible to acknowledge and confront patriarchal violence within Muslim migrant communities without descending into cultural deficit explanations (they are overly patriarchal and inherently uncivilised) and without inviting extraordinary measures of stigmatisation, surveillance and control so increased after the events of September 11, 2001? In this paper, I explore this question by examining Norway's responses to the issue of forced marriages. I argue that social and political responses to violence against women in Muslim communities have been primarily culturalist. (...) That is, the violence is understood as originating entirely in culture, an approach that obscures the multiple factors that give rise to and sustain the violence. The culturalist approach enables the stigmatising and surveillance of Muslim communities. I approach this argument in two parts. In part one I discuss two important and influential books written by women who identify their concerns as feminist and who lay out the case for considering the problem of forced marriage as a problem of controlling fundamentally unassimilable and culturally inferior Muslims. I explore these works as paradigmatic of the culturalising or culturalist move. In part two, I review a variety of legal initiatives in Norway, first contextualising them as part of a larger European venture to control Muslim populations and then examining what they share conceptually with the approaches in part one. I end with how we might begin to develop an anti-racist response to the problem of violence against women. (shrink)

A recent case in the Northern Territory of Australia has raised the issues of intra-racial rape and the legal recognition of traditional marriages between Indigenous people. The defendant in the Jamilmira case was charged with statutory rape of a 15-year-old girl. He argued that the girl’s status as his promised wife should lead to mitigation of his sentence. Members of the Northern Territory judiciary and others in the community were divided in their response to his claim. Ultimately the case (...) led to reform of the law in relation to the recognition of traditional marriage, a response which outraged some members of the Indigenous community. In this article I examine the various representations of culture and individuals that were utilised by ‘the law’ and how these representations informed the legal response. In the process I question the limits of my own role as a ‘white middle-class feminist’ in the context of explorations of law and culture. Is there a space to become involved in these debates without being complicit in fostering racism and prejudice and without reverting to stereotypes and cultural arrogance? (shrink)

Although the exclusion of LGBTs from the rites and rights of marriage is arbitrary and unjust, the legal institution of marriage is itself so riddled with injustice that it would be better to create alternative forms of durable intimate partnership that do not invoke the power of the state. Card's essay develops a case for this position, taking up an injustice sufficiently serious to constitute an evil: the sheltering of domestic violence.

This book addresses fundamental questions about marriage in moral and political philosophy. It examines promise, commitment, care, and contract to argue that marriage is not morally transformative. It argues that marriage discriminates against other forms of caring relationships and that, legally, restrictions on entry should be minimized.

: Although the exclusion of LGBTs from the rites and rights of marriage is arbitrary and unjust, the legal institution of marriage is itself so riddled with injustice that it would be better to create alternative forms of durable intimate partnership that do not invoke the power of the state. Card's essay develops a case for this position, taking up an injustice sufficiently serious to constitute an evil: the sheltering of domestic violence.

This article centres on the legal recognition of same-sex marriage with a view to exploring the issue of unspeakability; that is, the condition whereby some questions cannot be articulated because of a lack of words. More specifically, the article will explore what happens to those social practices that are not given legal speakability and thereby legal recognition/protection. To this end, I first focus on how words are produced in the sphere of everyday life and their dependence (...) on the existence of a widespread normality. I then discuss how the law sees to the preservation and the reproduction of normality by providing a set of categories which are made available to law-abiders to settle disputes when they arise. In doing so, I elucidate the twofold role played by law as both a selective and a creative device. To cast some light on the particular way law operates, I discuss an important decision by the Italian Constitutional Court in 2010, which provides a telling example of how legal officials are able to seal off the set of legal categories and to leave some issues in the sphere of the unspeakable. I then unearth a paradox: while unspeakability reveals a condition of powerlessness, the acquisition of speakability could bring about even harsher exclusionary effects. I conclude by arguing that the entry into the sphere of official law is always a Janus-faced achievement, but can play as an effective instrument of critique. (shrink)

Recent defenses of same-sex marriage and polygamy have invoked the liberal doctrines of neutrality and public reason. Such reasoning is generally sound but does not go far enough. This paper traces the full implications of political liberalism for marriage. I argue that the constraints of public reason, applied to marriage law, entail ‘minimal marriage’, the most extensive set of state-determined restrictions on marriage compatible with political liberalism. Minimal marriage sets no principled restrictions on the (...) sex or number of spouses and the nature and purpose of their caring relationships, nor on which marital rights are exchanged, and whether they are exchanged reciprocally or asymmetrically. Minimal marriage supports adult care networks, urban tribes, friendships, and other forms of relationships as well as ‘traditional’ marriages. I provide a publically justifiable rationale for a legal framework supporting non-dependent caring relationships between adults. The argument is that caring relationships are primary goods, and that liberal justice accordingly requires legal frameworks supporting caring relationships. Minimal marriage is one such framework. (shrink)

This article argues for separating the institutions of marriage and parenting, conceptually and legally. Marriage is neither necessary nor adequate for fostering cooperative and stable co-parenting. Because promoting marriage fails to protect all children, the state should develop a more suitable formal mechanism whereby co-parents can commit to cooperate in good faith in order to best serve the interests of their children. Like civil marriage, many of the terms of these contracts are aspirational and not enforceable, (...) though they can guide arrangements for custody and financial support. Co-parenting agreements need not be limited to two parents, nor need they be limited to legal parents, but can include de facto parents, such as stepparents, foster parents, and other support parents. One important aim of these agreements is to recognise and support the valuable work that married or unmarried co-parents perform, and to protect the parental rights of caregivers in different kinds of situations. (shrink)

Clare Chambers argues that marriage violates both equality and liberty and should not be trecognized by the state. She shows how feminist and liberal principles require creation of a marriage-free state: one in which private marriages, whether religious or secular, would have no legal status.

Parties to a temporary marriage agree in advance that their marriage will only last for a fixed period of time unless renewed: that it will automatically expire after two years, for instance, or five, or twenty. This paper defends the claim that temporary marriages deserve state recognition. The main argument for this is an application of a principle of marriage equality. Some other arguments for are also canvassed, including an argument from religious freedom, and a number of (...) arguments against recognition are also discussed. The paper also discusses the question of whether such “temporary marriages” are in fact a kind of marriage, and defends the claim that they are, or would be, genuinely marriages. (shrink)

Citizenship and marriage are legal statuses that generate numerous privileges and responsibilities. Legal doctrine and argument have analogized these statuses in passing: consider, for example, Ted Olson’s statement in the Hollingsworth v. Perry oral argument that denying the label “marriage” to gay unions “is like you were to say you can vote, you can travel, but you may not be a citizen.” However, the parallel between citizenship and marriage has rarely been investigated in depth. This (...) paper investigates the marriage-citizenship parallel with a particular focus on three questions prompted by recent developments in law and policy: -/- 1) Should we provide second-best statuses? Some couples — in particular gay and lesbian couples — have been offered permanent statuses, like civil unions, that bear legal privileges but fall short of full marriage equality. In contrast, similar differentiations within citizenship are generally resisted. The history of citizenship may presage the increasing unacceptability of differentiations within status in the gay marriage context. Meanwhile, the history of marriage equality efforts may help present-day citizenship advocates choose legal strategies. -/- 2) Should statuses be a gateway to rights? Some early gay rights advocates unsuccessfully argued that advocates should challenge the primacy of marriage, rather than seek access to the institution. Advocates attempting to expand the rights of current noncitizens face similar choices: should they seek to give current noncitizens greater access to citizenship, or challenge the reservation of important rights to citizens? -/- 3) Can status relationships be plural? Many critics of dual and multiple citizenship argued that allegiance to multiple states was immoral, unadministrable, or both. More recently, polygamous marriage has become a topic of legal and political discourse, first as a foil in anti-gay marriage arguments and later as a political possibility in its own right. I consider whether polygamous marriage advocates can profitably draw on arguments for multiple citizenship, and how multiple-citizenship advocates should responsibly respond to the analogy with polygamy. (shrink)

This essay analyzes the coherency and reasonableness of legal restrictions against same-sex marriage. The population of focus is transgender individuals and their partners. Focusing on trans-marriage makes clear that the restriction of marriage to one man and one woman is misguided in that the law rests on the assumption that the categories of sex and gender comprise two disjoint, exhaustive, and unambiguous groupings. The primary argument here is not that the restrictions of same-sex marriage are (...) harmful to certain transpersons who participate in legal marriage, although they certainly are, but rather that this legal restriction fails to meet the minimum requirements of any reasonable law. This analysis compares the current marriage restriction and its reliance on the above mentioned false belief with judgments of the Race Classification Appeal Board of Apartheid era South Africa. I employ two actual cases and the legal philosophy of Lon L. Fuller in my argument. (shrink)

In this chapter, the author explains Rorty's neopragmatist feminism and some feminist criticism of his work, limiting her to questions not yet settled in the literature. She argues that Rorty can defeat the criticisms that his reformism is too conservative and that his feminism flounders without representationalist truth. "Feminism and Pragmatism" discusses the apparent paradox that injustices, on a Rortyan view, are not injustices until they are so perceived. Thus, if our society begins to accept gay marriage, passes legislation (...) supporting gay marriage, and begins criticizing those who oppose gay marriage, we have made a significant change in our practices, norms, and language. Our society still, at least at this time, thinks of "gay marriage" as a somewhat different category than "marriage," despite the fact that we treat both as marriages. We still rely on legislatures and courts to determine the legality of our marriage practices. (shrink)

In this collection, liberal and feminist philosophers debate whether marriage reform ought to stop with same-sex marriage. Some authors argue for abolishing marriage or for new legal forms such as polygamy or temporary marriage. Others argue that the liberal values justifying same-sex marriage do not entail further reform.

Bangladesh is a Muslim-majority society with more than 163 million people. Most Bangladeshis hold the ideals of Islamic norms and values which is manifest in all sorts of socio-cultural behaviour. In reference to such values, the tradition of legitimizing child marriage in Bangladesh is the issue that needs to be addressed in a holistic yet rigorous approach. Currently Bangladesh ranks 4th in the world and 1st in Asia in terms of child marriage. Recently the Child Marriage Restraint (...) Act 1929 has been abolished and it has been replaced by the Act of 2017 preserving article 2 of the previous statute, the legal age for marriage for a boy 21 and for a girl 18. This Act adds article 19 which legalizes minors (below 18 years of age) to be married off with the consent of the parents/guardians at the presence of a magistrate under “special circumstances” deemed with securing the best interest for them. The law artfully coincides with the Muslim Marriage Law which allows participants of 15 years and above to get legally married and as such contradicts the international law and the Act of 2017 itself. In the West intimate relationships including extra-marital cohabitation before reaching 18 years of age are culturally accepted. In contrast, such extra-marital and intimate relationships are strictly prohibited in Muslim-majority societies, which are dearly adhered in Bangladeshi Muslim culture. This study examines how the religious cultural and socio-economic realities influence child marriage practice in Bangladesh. Along with secondary documents, we interviewed 22 individuals including the Deputy Commissioner, the District Women and Children Affairs Officer, elected Union Parishad Chairman and Members, Social Workers, married couples and their parents/guardians at Manikganj district. In addition, we also conducted a mass survey with 62 randomly selected participants, and a voluntary online survey where the opinion of another 53 young students were collected to find broad opinion. We also collected stories of how marriages take place at the rural, urban and sub-urban areas in Bangladesh. The study has revealed that Bangladeshis does not support marriage at early ages but socio-economic reality often pushes poor into getting their children married at early ages. Many view that the special provision may encourage child marriage in the country. This study suggests that the government of Bangladesh should redefine public policy in regard to finding a middle ground between Islamic ethics and international values by exploring isomorphic mimicry and other socio-culturally accepted measures with a view to abolishing child marriage successfully. (shrink)

The classification of a state of affairs under a legal category can be considered as a kind of con- densed decision that can be made explicit, analyzed, and assessed us- ing argumentation schemes. In this paper, the controversial conflict of opinions concerning the nature of “marriage” in Obergefell v. Hodges is analyzed pointing out the dialecti- cal strategies used for addressing the interpretive doubts. The dispute about the same-sex couples’ right to marry hides a much deeper disa- greement (...) not only about what mar- riage is, but more importantly about the dialectical rules for defining it. (shrink)

This book provides a philosophical examination of the extent to which legalizing same-sex marriage can contribute to ending the discrimination and social stigma faced by LGBT men and women in the Western world.

"The Marriage Translation" argues that a Benjaminian account of translation can shed new light on the ways in which contemporary practices of queer alliance transform, and are transformed by, legal and political discourse. In a constellation of readings—of arguments for the French pacs, of Benjamin's essays on translation, and on Goethe's Elective Affinities, as well as of two photos of the illegal weddings celebrated in San Francisco and in Bègles, France—the article emphasizes the ways social contexts are sometimes (...) reinvigorated and at other times ignored by the demand for certain forms of legal recognition. (shrink)

Can and should political liberals recognize and otherwise support legal marriage as a matter of basic justice? In this article, we offer a general account of how political liberals should evaluate the issue of whether the legal recognition of marriage is a matter of basic justice. And, we develop and examine some public reason arguments that, given the fundamental interests of citizens, could justify various forms of legal marriage in some contexts. In particular, in (...) certain conditions, the recognition of some form of legal marriage may be the best way to protect the fundamental interests of women as citizens in freely chosen associations. Or, it may be that, in certain conditions, to secure the social conditions necessary for gays, lesbians and bisexuals to be free and equal citizens, some form of legal marriage can or should be recognized. (shrink)

One current line of argument against the legalization of same-sex marriage, advocated primarily by the New Natural Lawyers, is that marriage is a pre-political institution that has, as an essential element, a bodily union requirement. They argue that same-sex couples cannot realize bodily union in their sexual activities and thus cannot meet the structural requirements of marriage. Accordingly, they argue that the same-sex marriage debate must be framed as a debate about what marriage is, and (...) not, as it was in the anti-miscegenation precedents, about who can get married. I argue that their position, which promulgates a set of pernicious stereotypes about same-sex couples, is, first of all, internally inconsistent. According to their own metaphysical principles about bodily union, they provide no rational basis for the claim that same-sex couples cannot realize bodily union and thus that same-sex couples cannot be married. Second, I argue for a deflationary account of the significance of bodily union. While same-sex couples, like heterosexual couples, can realize bodily union, this sort of union has no moral significance and thus cannot be the factor that distinguishes marriages from other sorts of relationships. Finally, I suggest that they have no basis for their claims about the inferiority of same-sex relationships. (shrink)

Resumen: Mediante la metodología de una reconstrucción inmanente del mejor argumento de quienes se oponen al reconocimiento jurídico del matrimonio entre personas del mismo sexo, este artículo muestra por qué el juez o el legislador no debe aceptar dicho argumento. Con ello se señala solo indirectamente o de modo negativo por qué sí debe ser reconocido dicho matrimonio. En este artículo se reconstruye la estructura y los diferentes contenidos de las justificaciones opositoras, buscando identificar la más robusta de ellas; esto (...) es, aquella con mayor capacidad para -recurriendo a argumentos adecuados a sociedades plurales- traspasar el peso de la prueba al lado de la demanda por dicho reconocimiento. Dicha capacidad se comprueba mostrando concretamente cómo tal justificación logra argumentos de defensa, de crítica a dicha demanda, así como incorporar argumentos del mundo progresista. Pese a su robustez y luego de una evaluación detenida, se concluye que esa justificación no es sostenible bajo medios racionales.: Through a methodology of an immanent reconstruction of the best argument of those who oppose the legal recognition of same-sex marriage, this article shows why the judge, or the legislator should not accept this argument. With this, it is pointed out indirectly and in a negative way why that marriage should be recognized. In this article the structure and the different contents of the conservative justifications are reconstructed, trying to identify the most robust of them; that is, the one with the highest capacity for -using adequate arguments to plural societies- to transfer the burden of proof to the side of the demand for such recognition. This capacity is demonstrated by showing precisely how such a justification achieves arguments of auto-defense, of criticism of said demand, as well as incorporating arguments from the progressive world. Despite its robustness and after a careful evaluation, it is concluded that this justification is nor sustainable under rational means. (shrink)

In this article I consider whether there a right to incestuous marriage. I begin by suggesting that the liberal state get out of the "marriage" business by leveling down to a universal civil union or "registered domestic partnership" status. Removing the symbolism of the term "marriage" from political conflict, privatizing it in the same way as religion, would have the advantage of both consistency and political reconciliation. The question is then whether incestuous unions should be both (...) class='Hi'>legal and eligible for this status. I argue that the arguments compatible with public reason for prohibiting them outright, or even for excluding them from the permissible types of legally registered partnerships, are quite weak. The objections to allowing such relations are those from (1) child abuse; (2) unfair burdening of society; and (3) the creation of bad lives. I argue that while rape and other forms of child abuse would be no more legal or tolerated than they are now, the concern about any form of weakening a society's legal and political resources to combat such abuses does indeed register on the justificatory scale, but does not prove that such first-degree incestuous sexual relations are inherently bad enough to warrant intervention in their own right. I then argue that the concern about unfairly burdening society with unhealthy persons is not as dangerously totalitarian as we might initially fear, but nor is it strong enough to justify an outright prohibition. Finally, I argue that a concern to dissuade persons from creating certain kinds of lives (children with extreme birth defects) is also not as dangerously totalitarian as we might initially fear, and in fact goes further towards explaining why we might have a legitimate interest in intervening. Nonetheless, I argue that the criminalization of such acts only make sense when they are indicators of other offenses, namely negligence or abuse, and it thus seems that the act of consanguineous reproduction is itself insufficient. One potentially surprising conclusion of this inquiry is that far from creating strong reasons for tolerating these practices, religious or cultural reasons for valuing incest (as well as polygamy) actually seem to count against tolerating them. The reason is that from a liberal perspective, tolerating polygamy and incest involves the assumption that it is possible to disassociate polygamy and incest simpliciter from abusive practices associated with them, including environments where children are raised to devalue their own sexual (and other) autonomy. However, the presence of comprehensive doctrines which include polygyny or incest as part of a good life actually makes it harder to justify disassociating polygamy and incest themselves from the likely abuse and coercion practiced by those who would value polygyny or incest. (shrink)

This paper develops a Kantian account of the moral assessment of institutions. The problem I address is this: while a deontological theory may find that some legal institutions are required by justice, it is not obvious how such a theory can assess institutions not strictly required (or prohibited) by justice. As a starting-point, I consider intuitions that in some cases it is desirable to attribute non-consequentialist moral value to institutions not required by justice. I will argue that neither consequentialist (...) nor virtue-ethical accounts account for these intuitions, suggesting that a distinctive deontological account is needed. The account I give is drawn from Kant’s Metaphysics of Morals; I distinguish it from Kantian views of institutions developed by Barbara Herman and Onora O’Neill. Throughout, I use marriage as an example. (shrink)

When examined critically, Kant's views on sex and marriage give us the tools to defend same-sex marriage on moral grounds. The sexual objectification of one's partner can only be overcome when two people take responsibility for one another's overall well-being, and this commitment is enforced through legal coercion. Kant's views on the unnaturalness of homosexuality do not stand up to scrutiny, and he cannot (as he often tries to) restrict the purpose of sex to procreation. Kant himself (...) rules out marriage only when the partners cannot give themselves to one another equally – that is, if there is inequality of exchange. Because same-sex marriage would be between equals and would allow homosexuals to express their desire in a morally appropriate way, it ought to be legalized. (shrink)

Without patriarchal laws and legally permitted gender discrimination, it becomes clearer that a powerful draw back to gender equality springs from norms about gender identity, concepts of masculinity and femininity, and tacit rules of interaction between women and men. This article offers a theoretical perspective to analyze hidden power in gender relationships. The conceptualization is based on research into marital power carried out in the Netherlands. The focus of this research was not on the way the “power cake” is divided (...) up between spouses but rather on the operation of power processes and mechanisms that can explain why change toward gender equality in marriage is so slow. (shrink)

This research explores the causes of early marriage and assesses the consequences of early marriage on maternal and child well-being in a district of Nepal. A two week long field operation was carried out to collect data where 126 respondents were selected through convenience sampling methods on the basis of two criteria, including 1) being a married women only who got married before 19 years of age; and 2) those who have children below three years. The interviews were (...) mainly focused on those who have a neonatal child. A structured interview schedule found that early marriage is still prevalent among the illiterate group. A paradigm shift was found in some aspects, such as the shift in decision-making from parents to children, a shift from arranged to love marriages, and from parental pressure to marry to love and fulfillment of sexual desire as reasons for marrying. Most of the respondents have no idea about the legal marriage age and punishment for underage marriage. Most of the respondents suffered from different physical health-related problem including poor maternal and child well-being, weakness, immaturity, miscarriage, sexual problems, no prenatal check up, and/or low birth weight. To deal with the problem a number of strategies have been suggested, mainly providing economic opportunities to young girls, improving the strictness of legal strategies about marriage age, promoting education of girls, and using mass media to increase the awareness of the whole community about the consequences of early marriage on girls themselves and on her children along with their family. Efforts need to be made in the community and other parts of Nepal where early marriage and child marriage is prevalent. (shrink)

The Progressive favors extending the legal institution of marriage so as to include same-sex unions along with heterosexual ones. The Traditionalist opposes such an extension, preferring to retain the legal institution of marriage in its present form. I argue that the Progressive ought to broaden her position, endorsing instead the Liberal case for extending the current institution so as to include polygamous unions as well—for any consideration favoring Progressivism over Traditionalism likewise favors Liberalism over Progressivism. Progressives (...) inclined to resist Liberalism are invited to consider an alternative position: the Libertarian stance that favors instead the ‘disestablishment’ of marriage. (shrink)

Among the political changes brought about by the First World War was the formation of new countries, including Latvia. This in turn resulted in a strong need for the first national legislative acts and thus a substantial amount of effort to develop Latvian legal terminology which dates back to the beginning of the 19th century. The purpose of the paper is to study the development of Latvian terminology of marriage in the 20th century through analysis of the relevant (...) body of laws. The paper focuses on marriage-related terms extracted from the major legislative acts governing the institution of marriage in the 20th century. The present study adopts the qualitative research approach which constitutes data collection and data analysis. For the purposes of a comprehensive and efficient analysis of the extracted legal terms, marriage terms are divided into the following five thematic groups: 1) engagement; 2) entering into marriage; 3) nullity of marriage; 4) dissolution of marriage ; and 5) consequences of dissolution or nullity of marriage. The paper suggests that the core of the Latvian terminology of marriage has remained stable, as entering into marriage is a solid procedure where two interested parties give notice to a public or religious institution in order to officially register their relationship. Similarly, both parties often feel the need to terminate this relationship just as officially. This stability of fundamental processes contributes to terminological continuity. (shrink)

Payment of bride price is a popular tradition in Nigeria as in most parts of Africa. However, in Nigeria, the practice has virtually lost its traditional purpose of marriage validation and honouring because of the commercialisation by many parents. For this reason, some critics have called for a cancellation of the custom, as it has turned women to commodities to be bought and sold. This article examined the purpose of bride price in the traditional African setting, the changes that (...) have crept into the practice over time, and the desirability or non-desirability of bride price payment for Christians in Nigeria. The article employed the exegetical method for the study of the relevant texts and, using the descriptive approach, it gathered and utilised material relevant for bride price payment, as practised in Nigeria. The author found that payment of bride price is not prohibited in the Bible. In the traditional African society, bride price served mainly as the legal exchange that validated marriage. It was discovered that charging exorbitant bride prices by Nigerian parents obliterated the original purpose of the custom. Commercialisation of bride price in this way is partially responsible for the increasing rate of late marriages and non-marriages amongst Christians. The inability to pay high bride prices had created a situation whereby young Christian men and women cohabit without legally getting married. Exorbitant bride price sometimes leads to domestic violence against women. It is for these reasons that some have considered payment of bride price unchristian, whilst others have called for its abolishment. Nevertheless, this study concluded that as payment of bride price is not prohibited in the Bible, it is not wrong for Christians to pay and receive bride prices. Moreover, if its traditional purpose is adhered to, payment of bride price need not cause women abuse. Its cancellation would amount to doing away with the original purpose of the practice, particularly the legitimisation and honouring of marriage. Therefore, rather than abolishing bride price, one would call for a return to its original purpose. More than recognising the value of bride price, the church in Nigeria has the responsibility to educate Christian parents on the adverse implications of charging exorbitant bride prices. Contribution: This article is a contribution in ethics of Christian marriage. It is relevant for educating Nigerian Christian parents against charging excessive bride prices. (shrink)

This essay argues that the four most plausible arguments compatible with public reason for an outright legal ban on all forms of polygamy are unvictorious. My purpose is not to survey exhaustively the empirical literature on contemporary forms of polygamy, but to tease out the types of arguments political liberals would have to insist on, and precisely how strongly, in order for a general prohibition against polygamy to be justified. The most common objection to polygamy is on grounds of (...) gender equality, more specifically, female equality. But advancing this argument forcefully often involves neglecting the tendency of political liberalism (whatever name it goes by in contemporary, complex, multicultural societies) to tolerate a certain amount of inegalitarianism in private, within the bounds of robust and meaningful freedoms of choice and exit. Properly understood, polygamy involves no inherent statement about the essential inferiority of women, and certainly not more than many other existing practices and institutions (including many expressions of the main monotheistic religions) which political liberals regard as tolerable. (shrink)

On 3 June 2008 the National Family Policy Concept was adopted by Seimas that states the goals and principles of the state family policy and several times refers to historical and scientific experience. The present article aims to reveal the historical and legal experience of the ancient Rome that laid foundations of contemporary private law and to compare the goals of the National Family Policy Concept and the state policy of the ancient Rome regarding family issues. The concept of (...) family framed by the National Family Policy Concept is based on matrimony. This is why the authors of the article focus on Roman matrimony. Having discussed the ancient Roman concept of marriage and Roman state policy regarding issues of matrimony and family and comparing it with the aims of the National Family Policy concept it might be stated that policy of encouraging family and promoting family relations based on matrimony that is provided by the Lithuanian state is not a new invention but may also refer to legal resolutions of the ancient Rome. (shrink)

This paper is the first to critically analyse how the newly enacted Chinese Civil Code addresses gender equality in the intersection of family and commercial contracting. It proposes ‘marriage transmitted debt’ (MTD) in China as a new concept as opposed to ‘sexually transmitted debt’ (STD) documented in English and Australian jurisprudence. MTD refers to the debt incurred by one spouse but transmitted to the other spouse due to the status of the marriage. Supported by empirical statistics, it shows (...) that while the statutory language of MTD regulation in China is neutral, wives are still disadvantaged. Although this has been partly addressed by shifting the onus of proof to creditors, the meaning of debt incurred for the daily life of a family or the joint life of the couple in the Code needs further judicial development. The Code is the beginning of a solution rather than the end to achieving gender equality in China. (shrink)

Many theorists have recently observed that the response to the same-sex marriage controversy most congruent with basic liberal principles is neither the retention of the institution of marriage in its present form, nor its extension so as to include same-sex unions along with heterosexual ones, but rather the ‘dis-establishment’ of marriage. Less commonly observed, however, is the fact that there are two competing models for how the state might effect a regime of disestablished marriage. On the (...) one hand, there is a ‘deflationary’ approach, on which the state ceases to confer marital status, but does remain in the status-conferring business. On this approach, the state would still bestow a certain ‘thinner’, more ‘neutral’ legal status – as it does when it creates civil unions, for instance. Call this the ‘Status Model’ of disestablished marriage. On the other hand, there is an ‘eliminativist’ approach, on which the state ceases to confer any sort of status at all – not even the thin or neutral status of ‘civilly-unioned’. There simply are no registered domestic partnerships. What there is, is contract law, and individuals entering into contracts for life-partnership – contractual arrangements which might assume any of a wide variety of forms. Call this the ‘Contract Model’ of disestablished marriage. In this paper, I explore the merits of these competing models. After briefly discussing what it means to speak of ‘disestablishing marriage’, and examining the case for disestablishment, I proceed to consider the advantages and disadvantages of each model. My tentative conclusion is that the Contract Model is the one that best instantiates cardinal liberal virtues. (shrink)