Center for Gender & Sexuality Law
Americans have interesting and somewhat puzzling attitudes about the state's role in defining and enforcing family obligations. Most people view lasting marriage as an important part of their life plans and take the commitment of marriage very seriously. Yet any legal initiative designed to reinforce that commitment generates controversy and is viewed with suspicion in many quarters. For example, covenant marriage statutes, which offer couples entering marriage the option of undertaking a modest marital commitment, are seen by many observers as coercive and regressive measures rather than ameliorating reforms.
The law tends to reflect – and perhaps contributes to – this wariness about legal commitment in marriage. No-fault divorce law signals that marriage is a transitory commitment, one that is easily set aside. Moreover, there is continuing reluctance to permit spouses to use private agreements to reinforce their marital commitment. Few courts, for example, would enforce a premarital agreement incorporating covenant marriage terms.
In the business context, in contrast, legal enforcement of reciprocal promises is routine and uncontroversial. It is well understood that the availability of legal enforcement expands the freedom of contracting parties by offering them the option of a binding commitment. Contract promotes cooperation by reinforcing informal social norms of reciprocity and discouraging opportunistic behavior. Thus, it protects (and encourages) investment in the relationship to the mutual benefit of the contracting parties. But even though the metaphor of marriage as a contract is well established, many people shy away from applying these lessons to marriage. At the same time, a divorce rate of fifty percent suggests that informal norms are often not successful in sustaining cooperation in marriage. As Russell Hardin put it, "[I]f contracts become as shaky as marriage, then our society will be in danger of collapse." Contracts are not as unstable as marriage, in part because the parties understand that the commitment will be legally enforced. Why then is legal commitment associated with choice in contract, but with coercion in marriage?
Elizabeth S. Scott,
Social Norms and the Legal Regulation of Marriage,
Va. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/323