Social Norms and the Legal Regulation of Marriage

Elizabeth S. Scott, Columbia Law School


This paper examines the influence of legal regulation on the social norms that shape marital behavior, focusing particularly on the interaction between legal reform and norm change in the past generation. Two categories of norms governed the spousal and parental roles in traditional marriage – commitment norms and gender norms. In regulating the spousal relationship, commitment norms functioned to promote cooperation and to allow the parties to make credible commitments, while gender norms encouraged spouses to subordinate the wife's interest to that of the husband. These norms, although analytically distinct, were intricately interwoven (or "bundled"), so that disaggregation became difficult. Together they were enforced through a multi-layer system, and ultimately amplified and defined by traditional family law. Over the past generation, spousal gender norms have been discredited and commitment norms have also declined. Legal reforms have contributed to both of these trends. In the case of gender norms, the legal impact has been part of a purposeful agenda to promote equality. In contrast, the impact of family law reforms on commitment norms has been largely inadvertent. Because the weakening of commitment norms has undermined marital stability, this seems like a promising opportunity for a legal corrective to reinforce desirable norms. However, recent legislative efforts to offer commitment options to couples entering marriage (such as covenant marriage statutes) have generated considerable controversy. This response suggests the uncertainty that surrounds norm management initiatives by law makers, seeking to influence this complex relationship. I argue that legal initiatives may have unpredictable effects on marital norms, partly because of the residual effects of norm bundling in traditional marriage, and partly because of a tendency to disguise private preferences on matters of public controversy.