Don't lecture

[Stephen Safranek]

I think the McConnell is pointing out that the law has created one form of marriage - a marriage easily made and easily unmade - from the perspective of the civil law.

Such a civil approach to marriage says something about how society views marriage.  As I noted earlier, if marriage is a contract, shouldn't consenting adults be allowed to consent to a contract which is permanent?  Or,  is that a type of contract our autonomy prevents?   If it does not, maybe states should experiment like LA. on types of marriages and at least let those who want to choose a type of marriage that has a permanent character to so choose.

Stephen Safranek
Professor of Law
Ave Maria School of Law
>>> Andrew Koppelman <akoppelman at NWU.EDU> 10/25 3:21 PM >>>
I continue to be troubled by the anecdotal basis of the proposals that I'm
reading.  The decision to divorce is about as intimate and personal as any
in someone's life.  I have a number of divorced friends, and I am confident
that, with respect to many of them, I do not know the whole story about
what made their marriages break up, much less what would have happened had
the law forced them to stay married.  With respect to the divorces of
casual acquaintances or strangers, my impressions are even less reliable.
This whole area seems like a classic example of the vices of centralized
decisionmaking.  I still need to hear a reason why I should think that
transformation of the law will do more good than harm in this area.

I'm particularly surprised to read passages like the following by my friend
Michael McConnell, whom I normally think of as a Burkean conservative:

>David Guinn reminds us that the law cannot save marriages, and he is
>right, and it is important not to forget that. But the issue on the
>table has been what what kinds of relationship merit special blessing
>and support from the state. One answer to that is: unions that are
>long-term, ideally life-long. In constructing what we mean by
>"marriage," on this theory, it makes little sense to permit quickie
>divorces. As David Guinn reminds us, public sanction for long-term
>relationships is not a guarantee, but presumably the point of having
>a public policy of "marriage" is to affect behavior in some way. To
>allow quick divorces for trivial reasons or no reason at all does not
>seem consistent with the reasons for granting a special status to
>"marriage" in the first place.
>-- Michael McConnell (U of Utah)

I would have thought it obvious that we are not "constructing" an
institution.  We have an already-existing institution that we have
inherited from earlier generations.  We aren't deciding whether to
construct it from the ground up; we are deciding whether to keep, tinker
with, or smash what we've already got.  Burke's great insight was that,
before entertaining proposals to transform institutions, we need to have
good reason to think that such transformation will make the world better in
some tangible way.  The failure of some institution to conform to our
abstract theory of it is not sufficient reason to change it.  I'm still
waiting for some evidence that changing the law of marriage will make
things better.  David Wagner offered the most concrete response to this:
"I believe Wallerstein and Blakeslee asked children of divorce whether they
would have preferred that their parents remain together even WITH the
bickering et al., and they overwhelmingly answered yes."  This, however,
tells us only about children's (possibly overoptimistic) predictions about
what the failure to divorce would have meant.  This is imperfect evidence
of what would in fact have happened.



________________________________________

Andrew Koppelman
Assistant Professor of Law and Political Science
Northwestern University School of Law
357 East Chicago Avenue
Chicago, IL  60611-3069
(312) 503-8431
akoppelman at nwu.edu
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