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Looking for Love in the Legal Discourse of Marriage

Looking for Love in the Legal Discourse of Marriage

Renata Grossi
Copyright Date: 2014
Published by: ANU Press
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  • Book Info
    Looking for Love in the Legal Discourse of Marriage
    Book Description:

    This book examines the (in)visibility of romantic love in the legal discourse surrounding modern Australian marriage. It looks at how romantic love has become a core part of modernity, and a dominant part of the Western marriage discourse, and considers how the ideologies of romantic love are (or are not) replicated in the legal meaning of marriage. This examination raises two key issues. If love has become central to people’s understanding of marriage, then it is important for the legitimacy of law that love is reflected in both the content and application of the law. More fundamentally, it requires us to reconsider how we understand law, and to ask whether it is engaged with emotions, or separate from them. Along the way this book also considers the meaning of love itself in contemporary society, and asks whether love is a radical force capable of breaking down conservative meanings embedded in institutions like marriage, or whether it simply mirrors them. This book will be of interest to everyone working on love, marriage and sexuality in the disciplines of law, sociology and philosophy.

    eISBN: 978-1-925021-82-0
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Acknowledgements
    (pp. vii-viii)
  4. Introduction
    (pp. 1-16)

    The aim of this book is to test the (in) visibility of romantic love in the legal discourse of modern Australian marriage. Romantic love has become a core part of modernity and, unsurprisingly, a dominant part of the western marriage discourse,³ but to what extent is this view replicated in the legal meaning of marriage? This question is important for two reasons. If love has become the reason people marry, then it is important that this is reflected in the law’s content and application. This is self-evidently important for the legitimacy of law. Just as important is the question of...

  5. 1. Love and Marriage
    (pp. 17-38)

    William Eskridge argues that ‘marriage is an institution that is constructed, not discovered by societies’.² The history of marriage seen through its laws certainly bears this out. Marriage has meant different things at different times. It has transmogrified from being a religious sacred institution to a contractual legal one, from a patriarchal institution to a more equal partnership based on freedom and equality. Over time, marriage has been understood in many different ways. It has been considered central to sexual expression and the procreation of children, the formation of community and of social and political alliances. It has been considered...

  6. 2. The Diminishing Significance of Sexual Intercourse
    (pp. 39-62)

    Traditionally, sexual intercourse was considered central to the legal definition of marriage. A marriage could be annulled and legally revoked if it had not been consummated. The law also made is clear that upon marriage a husband had unlimited sexual access to his wife. Neither of these principles are true any longer. This chapter documents the shift in the narrative of the relationship between marriage and sex from one of duty and procreation, to one of mutuality and pleasure, and in doing so examines the process in order to determine what role, if any, romantic love plays in this narrative....

  7. 3. The Continuing Importance of Economic Factors
    (pp. 63-82)

    In the previous chapter, I analysed the legal discourse of marriage in relation to what has been one of its most fundamental defining aspects — sexual intercourse — and argued that there has been a very significant change in the discourse of marriage, with love beginning to be insinuated. This chapter will turn to the equally important association of marriage with economic and financial considerations. Marriage has traditionally been connected to wealth, property and economic welfare, and has represented the economic union of two parties. This chapter asks what role love plays in the law when we consider it alongside the economic,...

  8. 4. The Foregrounding of Love in the Same-Sex Marriage Debate
    (pp. 83-106)

    Previous chapters have outlined a number of legal challenges to the traditional meanings of marriage. In relation to the connection between marriage, sex and procreation,Re Kevinasserted that sexual intercourse and procreation alone do not define marriage. In relation to the idea that marriage is about economic unity and support,Garciareasserted this connection and continued the law’s attempt at balancing the tensions between the home and the market that are so clearly manifest in the marriage relationship. In previous chapters, the small ways in which love is explicit and implicit in the legal discourse of marriage have been...

  9. 5. Conclusion: Law, Love and Marriage
    (pp. 107-118)

    Despite sustained criticism, love has remained a central discourse in western societies. Marriage, despite looking at times like becoming obsolete, has proven itself to be an entrenched and powerful social institution. This book has tested the extent to which these two concepts interact with each other within the ambit of a third powerful institution: law. In the process, this book has said something about law, about love, and about marriage.

    This book challenges the understanding we have of law. Thinking about law and love has important consequences for thinking about the relationship between reason and emotion in public life, and,...

  10. Bibliography
    (pp. 119-172)
  11. Index
    (pp. 173-174)