Monday, August 29, 2005

Law Review Article: Public and Private Ordering of Marriage

In The Public and Private Ordering of Marriage, Brian Bix explores the appropriate extent of public and private ordering of marriage and marriage-like relationships. He presents an overview of public and private ordering and discusses common objections to private ordering including creation of agreements contrary to the public interest, harm to third parties, and the possible inability of the parties to protect their own interests. He suggests that both individual autonomy and protection of the vulnerable might be achieved through the creation of a menu of acceptable relationship options potentially coupled with procedural protections similar to those applied to premarital agreements. Prof. Bix concludes by urging consideration of the role of marriage from individual and societal perspectives, identification of marital structures necessary to achieve the functions of marriage, and the extent to which the state should favor some forms of private ordering over others. Brian H. Bix, The Public and Private Ordering of Marriage, 2004 U. Chi. Legal F. 295 (2004). Link to Article

The Law Commission of Canada (a law reform agency advising Parliament on improvement of Canadian law) has considered whether individuals should be allowed to designate whether their relationships are governed by particular law. Their report, Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships, discusses the merits and problems associated with governance through private law (such as contract), ascription (set of obligations presumed to meet the needs of most people), and registration (an orderly framework for choosing rights and responsibilities). Link to Commission Report

To begin thinking about the rights and obligations of marriage, visit a website listing them. Rights and Obligations

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