More than a Mere Contract: Marriage as Contract and Covenant in Law and Theology

Abstract

IAnglo-American common law has long taught that marriage is more than a mere contract. This Article documents the historical roots of this common law teaching in classical and Christian traditions and its parallels in Judaism and Islam. All of these traditions teach that marriage is at once a contract (a ketubah, pactum,or kitab) but also a covenant with social, economic, communicative and spiritual dimensions. The marital covenant is both private and public, individual and social, civil and religious, temporal and transcendent. Its origin, nature, and purpose lie beyond and beneath the terms of the marriage contract itself.

Historically, the Jewish, Christian, and Islamic traditions found ways to reconcile the contractual and covenantal dimensions of marriage, but American law today juxtaposes them and has moved much more toward a straight contractual model. In all but three states, parties who wish to marry must choose the state's contract marriage option. In Louisiana, Arkansas, and Arizona, though, parties may choose contract marriage or covenant marriage, which has tighter marital formation and dissolution rules. But even in those three states, there is not yet a robust legal appreciation and reification of some religious covenantal notions of marriage. Ultimately, a fuller legal response may well be necessary to recapture the multi-layered dimensions of marriage. America's religious communities may need to draw upon and reformulate their own norms and resources, and American states, in turn, may need to think more seriously about granting greater deference to the marital laws and customs of legitimate religious and cultural groups that cannot accept a marriage law of the common denominator.

Keywords: marriage, law of marriage, law and religion, covenant marriage, family law, Islam, Judaism, Christianity, Bible, Qu’ran, Roman law, canon law, civil law, common law, Joseph Story, John Calvin