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Old 08-29-2012, 02:55 AM
hyperskeptic's Avatar
hyperskeptic hyperskeptic is offline
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Default Married Is as Married Does?

So, I'm teaching a class on practical ethics, and I'm just now having my students grapple with the issue of same-sex marriage. In particular, I have them pretending to be members of a non-partisan think tank who have been approached by a state legislator who is frustrated with the tenor of the marriage wars and who wants to try something new. My students are to come up with a concrete recommendation, which might include legislation to redefine marriage itself.

Among the sources I provided my students is an excellent article from the Stanford Encyclopedia of Philsophy, available here: http://plato.stanford.edu/entries/marriage/

Reading this article has set me to thinking about polyamory and some of the widely shared values and assumptions of poly folk, especially those of us who are married.

In particular, there are two basic options: interpret marriage as a contract, or interpret marriage as an institution.

A contract is a legally binding arrangement into which two or more parties enter voluntarily, that is, by freely given consent. A contract may be dissolved when all parties consent to the dissolution, or withdraw their consent from the agreement. The terms of the contract may be renegotiated at any time.

An institution, on the other hand, is a particular social arrangement that limits freedom and restricts behavior in certain specified ways in order to channel human effort toward some socially desirable goal. Schools are like that, as are legislatures, and courts, and banks, and so on. On this view, the terms of the instution are set by some combination of social forces outside of and partly indifferent to the will of individuals. The terms of the institution cannot be renegotiated on a case-by-case basis . . .unless the institution is explicitly set up to allow such renegotiation, and then only within defined boundaries.

The bottom line is this: if marriage is a contract, it can be molded at will to fit the needs or interests of particular individuals; if it is an institution, then it can be changed, if at all, only through a slow and uncertain process of social or political or economic transformation.

It seems to me, though, that a contract model is too "thin" to really account for all the things marriage is and can be and should be. It would be too easy to walk away from a mere contract-marriage. An insitution of marriage backed by social sanctions provides stronger incentives to stick it out, to work through really rough times, to build something lasting . . . and, perhaps, to establish a good environment for children. Of course, the insitution has changed over the past decades to allow more flexibility in getting out of really toxic marriages, and that's probably a good thing.

At the same time, the institution model can be too rigid and slow moving to allow for much individual variation, when you or I judge compulsory monogamy, for example, to be too restrictive, too limiting.

Now, I'm one who thinks that freely given consent often trumps other considerations, so the contract model has its appeal. It's not an absolute, though, and there are also considerations of character (including moderation and temperance with respect to pleasure) and of consequences (including broader social goods to be secured by institutions that limit free choice in specific ways in order to enable the production of other goods).

So, here's the question: Can marriage, as a legally binding arrangement, be stretched and changed to suit the interests and values of the individuals in a particular relationship? Do my wife and I really have the prerogative to decide, on our own, to be non-monogamous? Or, in doing so, are we violating the very terms of the institution in which we participate and from which we benefit? If so, what should we do then?

If marriage is still to be regarded as institution, has it changed to allow more leeway for individual variation? Does that leeway include polyamory? (Evidence suggests not, or not yet, at least as a matter of social sanction!) If not, then what, exactly, are my wife and I doing?

I don't know precisely where to take this, but there's a whole hornets' nest of ethical and social complication here that seems worth considering.

I suppose I'm going to hear "consent! consent! consent!" from those who gather here, and I'm certainly sympathetic. But that seems, somehow, too easy, too one-sided and, in the hands of some poly folk, too much an excuse for simple self-indulgence. ("You can't tell me what I can and can't do!")

As I said, I think consent often trumps other considerations, but it really doesn't always do so. Sometimes, we have to bow to necessity, or to the call of the common good, in spite of our own choices or, especially, our own desires. Sometimes we have to work toward - and wait for - the slow, halting, and uncertain process of institutional change.

Seriously, though. What is a marriage? How free can individuals really be to redefine its terms, even in sharp opposition to the general run of things? Even if my wife and I agree, freely, openly and honestly that it's okay for us each to see and love and have sex with other people, could we be fundamentally violating the terms of our marriage which are, in large measure, not made by us.

(By the way, I like the idea that, if marriage is a contract, its a very peculiar contract. The parties never sign any thing, never read the fine print or, indeed, any size print, and can't dissolve the contract simply by mutual agreement to do so. It has to be state sanctioned to begin with, and can only be dissolved with the permission of public authorities.)
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Last edited by hyperskeptic; 08-29-2012 at 11:14 AM. Reason: sleepy typos
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