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