Marriage contracts : LUSENET : Lessig's Contracts : One Thread

Hmm. Call me old-fashioned. Call me conservative. Call me male. Call me right-wing. Call me extreme, call me (gasp) Republican, but there are a few things that bug me about this whole marriage contract thing.

I'm going to set most of them aside. Many are already being dealt with in the preceding posts. I will just raise one issue that really concerns me: what kind of raw deal are the kids getting here?

I mean, some of these contracts contemplate giving the male children the father's name and the female children the mother's name. What kind of family unity is that going to foster?

Or how about the idea that in year one, the mother is the primary caregiver, and then in year two, it's Dad, switching back to Mom for year three, etc.? Without stable (equitable, of course) roles for the parents, what kind of wacky childhood is this li'l darling going to have?

And just imagine the "Mom or Dad likes me best" fights that will develop from the contract that stipulates that Mom raises child #1 and Dad raises child #2.

And then there's #7, the "let's live together for four years or until the kid's three, whichever comes first, and then if we break up, determine custody at any particular time by random lot" contract. I see enough problems in that for a separate post (don't worry, it's not forthcoming).

Each of these contracts betrays a startling degree of selfishness on the part of the couple, at the expense of the children. Consider the term in #7 (a contract in lieu of marriage between two lawyers) that says in part, "We hope that our child will have a terrific sense of humor about it all." What a flimsy wish upon which to be pinning this tremendous experiment, and what grave costs might be visited upon the child in the course of this contract's execution!

What it comes down to for me is this: In a secular government such as ours, it may be reasonable for the state to allow all sorts of strange relationship contracts. But the state (and the community which it represents) has a definite interest in seeing that the kids are looked after--at least, that they don't get the short shrift right in the terms of a contract. Whatever else may be good or bad about them, these contracts violate that interest.

Ok, I'm done... what do y'all think?


-- Anonymous, December 16, 1998



You forgot to mention the family bonding experience of Susan (contract 3) having a child over Peter's objections as long as "Susan will bear full financial and social responsibility for the child." That's a nice message to send to little Susie or little Pete: "Don't ask daddy for any allowance. If it were up to him you wouldn't be here right now."

-- Anonymous, December 16, 1998


While I share your skepticism about the "real life" workings of some of these marriage K terms (I mean, come on, $25 for not doing the dishes???), especially if children are involved, I think the point deserves making that the phenomenon of marriage contracts such as these comes out of a major flaw in a modern society that is ALREADY not doing its children AT ALL right.

Maybe 100 years ago making couples stay married worked to keep a solid household for children, but the inequities of the system couldn't and shouldn't last. What changed? Do we care less about children now? I think what changed is that now women are allowed to try to be people, to have careers and equal interest, equal say in marriage. It seems to me that our system simply hasn't resolved itself how to let women be people and still preserve the ultimate importance of family obligation and the needs of children.

The solution is not to "go back to the old days," because that's impossible (tho is the choice that many women I know with the luxury are CHOOSING, ie to be a full time mom-- which is as much about being a *person* as any other decision). The solution, which I don't pretend to have, has to be some sort of system that allows families cheaper childcare, allows flexible hours, lengthy maternity/paternity and family leave for mothers AND fathers, that cracks down hard on divorcees who don't put the financial and emotional interests of the children first, etc.

While Leonore's ideas seem a bit rash and one-sided, I think they reflect an era (early 80s) where these sorts of issues were just starting to be fleshed out. Lessig mentioned the second generation of thought about all this to make this point, I think.

Anyway, it's not about being conservative or democratic at this point, it's about finding ways to put children first in the context of modern reality. Don't you think?


-- Anonymous, December 16, 1998

reality, idealism, and the poor kiddies

Thanks for your response, Rebecca.

One of the fundamental conflicts in government is between people who want to modify ideals (institutions, goals, values, etc.) to fit reality and people who want to modify reality to fit ideals. These two camps don't map out cleanly onto a political spectrum; John F. Kennedy and Pat Buchanan both belong to the latter camp. Both sides have a great deal of value, and each side has value in nearly every facet of the larger conflict.

What Marriage Contracts suggests is that it's time to modify our ideals to match reality. It's my hope and contention that we can instead modify reality to match our mutually held ideals of marital equality, familial affection, and unshakable fidelity. I agree with you that the legislature has a great many opportunities to facilitate this type of progress. But real progress will require the efforts of all sectors of society--including churches, the media, and senior citizens who've been through all this before.

The trouble with reality modification, as Mr. Kennedy understood, is that it's a lot more difficult than ideal modification. On the upside, though, you don't get a bunch of silly contracts that--literally--throw out the baby with the bathwater.


(Yet another unmarried marriage counsellor)

-- Anonymous, December 17, 1998

Obviously there are a lot of issues involved here, but I have one in particular I would like to focus on - legislating morality. I think marriage is a perfect example of one of Lessig's reflection vs. construction distinctions. The law of marriage reflects the (hypothetically) 90% of people who think marriage should be life- long, monogomous, and between a man and a woman. Thus it constructively forces everyone else to fit this pattern.

Leaving out:


Multiple partners (which got laughed at in class, but is a facet of many cultures, including a religious minority in Utah (as I understand it, a minority of Mormoms believe in having multiple wives, but I would appreciate any more accurate information))

Shorter term obligations ( a very realistic group of people, who face the simple fact that something like 50% of all marriages fail in 10 years (not a made up statistic but probably inaccurate in some way))

So Paul, when you say:

"What Marriage Contracts suggests is that it's time to modify our ideals to match reality. It's my hope and contention that we can instead modify reality to match our mutually held ideals of marital equality, familial affection, and unshakable fidelity."

I wonder who "we" are that are enforcing "our mutually held ideals" on people who don't share those ideals? Or is it fundamentally un- American to be a part of any of the groups I mentioned above?

"The trouble with reality modification, as Mr. Kennedy understood, is that it's a lot more difficult than ideal modification."

I agree whole-heartedly. It is easy to make fun of the contracts, and the book excerpts were particularly ridiculous, but we should recognize that the state is already issuing proclamations about how we should order our lives. So maybe the difficulty of reality modification is a good thing...

-- Anonymous, December 20, 1998

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