The Limitations of Contract: Regulating Personal Relationships in the Marriage-Free State

9780190205072-2Many theorists defend relationship contracts. Some argue that enforceable relationship contracts should be available alongside existing or reformed state-recognised marriage, and available to either married or unmarried couples. Other theorists argue that relationship contracts are the best sort of legal regulation to replace marriage. It is this latter question that is the subject of this chapter. The chapter contrasts contract and directive models of regulation, and notes that contract appears more compatible with liberty than does directive. However this appearance is illusory since contracts can undermine liberty, directives can enhance liberty, and even a contract regime requires default directives. Moreover, there are various problems with the enforcement of relationship contracts. Specific performance is rarely appropriate in the relationship context. The alternative, fault-based compensatory alimony, risks causing injustice to vulnerable parties such as those who take on caring responsibilities (usually women) and children. Relational contract theory attempts to deal with some of these problems but has its own limitations. The chapter concludes that contract is not the best replacement for marriage.

Reviewers’ comments:

The book is “strenuously avant-garde”. The New York Times (5th April 2016).

Chambers’ chapter is “sobering and refreshing”. Notre Dame Philosophical Reviews (2nd May 2016).

Chambers, “one of the best-known advocates” of the claim that marriage should not be recognised by the state, contributes a “nuanced and lucid” chapter that is “among the most interesting contributions in the volume.”  Hypatia (2017)

 You can read more about the book here.

The Marriage-Free State

AS-logoProceedings of The Aristotelian Society (2013). This paper sets out the case for abolishing state-recognised marriage and replacing it with piecemeal regulation of personal relationships. It starts by analysing feminist objections to traditional marriage, and argues that the various feminist critiques can best be reconciled and answered by the abolition of state-recognised marriage. The paper then considers the ideal form of state regulation of personal relationships. Contra other recent proposals equality and liberty are not best served by the creation of a new holistic status, such as civil union, or by leaving regulation to private contracts. Instead, the state should develop piecemeal regulations that apply universally. You can read the paper and listen to the podcast here or on the OUP Philosophy Festival Reading List here.

“The Family as a Basic Institution”: A Feminist Analysis of the Basic Structure as Subject

Layout 1in Ruth Abbey (ed.), Feminist Interpretations of Rawls (Penn State Press, 2013).

In Section 50 of Justice as Fairness: A Restatement, titled “The Family as a Basic Institution”, John Rawls replies to Susan Moller Okin’s feminist critique of A Theory of Justice. The question of how Rawlsian justice might secure gender equality has been discussed by many feminists, most notably by Okin. However, as I argue in this chapter, the Rawls-Okin debate raises more questions than it answers. Okin criticises Rawls for failing to apply his theory adequately to the family: she criticises not Rawls’s approach in general, but his attitude to the family in particular. Okin argues that a consistent application of Rawlsian theory would secure gender justice, but that Rawls is remiss in refusing such consistency. In fact, as I show, Rawls’s remarks on the family reveal a more fundamental problem with Rawlsian theory than Okin allows. It is not that Rawls fails to apply his theory correctly to the family, but rather that the specific case of the family illustrates deep-seated difficulties with Rawlsian justice as a whole.

The problem, to give an outline, is that Rawls’s ambiguous remarks on the family are comprehensible only at the expense of his fundamental claim that there is something distinctive about the application of justice to the basic structure. Okin criticises Rawls for failing to make good on the fact that the family is part of the basic structure. If he did make good, Okin claims, he would see that the principles of justice must apply to the family in a much more extensive way than he actually allows. As I show, however, the family is one illustration of the fact that how the principles of justice apply to an institution does not depend on whether that institution is part of the basic structure. This is a problem for Rawls because the distinctiveness of the basic structure is a crucial part of the political liberalism which, by the end of his work, has become essential to the Rawlsian project.

In this chapter I first outline Okin’s critique of Rawls in more detail, and provide a valid formalisation of her argument against Rawls. I then examine the main premises of her argument and look for evidence to support Okin’s interpretation of Rawls. I conclude that Okin’s interpretation is flawed but nonetheless highlights problems with Rawls’s claim that the basic structure is the subject of justice. I then consider and reject the argument that Rawls’s theory is consistent according to what I call the “whole structure view”: that the principles of justice apply to the basic structure considered as a whole. Finally, I consider G.A. Cohen’s argument that the basic structure distinction is problematic. I agree with Cohen’s criticism of the distinction, but suggest that Cohen is wrong in situating the problem with the issue of coercion. I conclude that Rawls’s position on justice in the family is at odds with his claim that the basic structure is uniquely the subject of justice.

You can see more about the book here.

Inclusivity and the constitution of the family

cover_july2013Canadian Journal of Law and Jurisprudence (2009, 1).

This article responds to Alan Brudner’s Constitutional Goods. It argues that Brudner’s concept of liberal inclusivity is problematic both conceptually and normatively, and results in policies on marriage and abortion that liberals would not accept. Issue No. 2 includes a response from Brudner.