The discourse of “contract” and the law of marriage

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.

Citation

Joo, T.W. (2009), "The discourse of “contract” and the law of marriage", Gold, D.L. (Ed.) Law & Economics: Toward Social Justice (Research in Law and Economics, Vol. 24), Emerald Group Publishing Limited, Leeds, pp. 161-187. https://doi.org/10.1108/S0193-5895(2009)0000024011