Abstract
In what manner should the state design institutions for couples and influence couples’ choices among these institutions? The current legal discourse is polarized between two opposite approaches to this question: one supporting public channeling, the other preferring private neutrality.
The public-channeling approach is based on a monolithic-perfectionist philosophy that posits the state's authority and duty to foster certain ways of life and to prefer them over others. In the spousal context, application of this approach requires regulating intimate relationships based mainly on public interests and shared moral values. The public-channeling approach perceives marriage as a public institution and stresses the state's role in steering couples into traditional, legal marriage.
By contrast, the private-neutral approach is based on a liberal-neutralist philosophy. According to this view, the liberal state must maintain a neutral approach toward various lifestyles and refrain from preferring one over another. The application of this approach to spousal law requires the state to respect the conjugal pattern selected by the parties and to refrain from attempts to channel couples toward any specific affiliative pattern. In its radical versions, this approach seeks to abolish marriage as a legal institution, or at the very least to replace the perception of marriage as a public institution with a contractual account of marriage.
The public-channeling approach is based on a monolithic-perfectionist philosophy that posits the state's authority and duty to foster certain ways of life and to prefer them over others. In the spousal context, application of this approach requires regulating intimate relationships based mainly on public interests and shared moral values. The public-channeling approach perceives marriage as a public institution and stresses the state's role in steering couples into traditional, legal marriage.
By contrast, the private-neutral approach is based on a liberal-neutralist philosophy. According to this view, the liberal state must maintain a neutral approach toward various lifestyles and refrain from preferring one over another. The application of this approach to spousal law requires the state to respect the conjugal pattern selected by the parties and to refrain from attempts to channel couples toward any specific affiliative pattern. In its radical versions, this approach seeks to abolish marriage as a legal institution, or at the very least to replace the perception of marriage as a public institution with a contractual account of marriage.
| Original language | English |
|---|---|
| Title of host publication | Marriage at the crossroads: |
| Subtitle of host publication | law, policy and the brave new world of twenty first century families |
| Editors | Elizabeth Scott, Marsha Garrison |
| Publisher | Cambridge University Press |
| Chapter | 13 |
| Pages | 260-284 |
| Number of pages | 24 |
| State | Published - 2012 |