5. Conclusion: Law, Love and Marriage

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.

Law

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, in turn, thinking about the role that emotion plays in law. Law and emotion scholarship asserts that emotions are important for public life and for law, informing both theory and practice. This book has adopted this position and tested it in relation to the legal discourse of marriage, showing how such an analysis can lead to a better understanding of the legal institution of marriage.

The dominant paradigm of law stems from positivism. Positivism removes emotion from law in rejecting morality and rights as irrelevant, embracing a scientific paradigm and exalting and striving for objectivity above all else. However, positivism’s view of law has been challenged by critical approaches which have made ‘space’ for emotion as a result of a number of central assertions about law.

Critical jurisprudence has insinuated emotion in law through a number of challenges. Critical jurisprudence scholarship has challenged the idea that law is and can be objective by claiming instead that law is political (CLS), sexist (feminism), racist (CRT), and heteronormative (queer). Critical jurisprudence has challenged the idea that objectivity is required for the legitimacy of law and has argued instead that objectivity is the law’s downfall (CLS). Critical jurisprudence has also legitimated emotion by arguing against the public and private divide (feminism) and by legitimating the subject of law and storytelling (feminism, CRT, queer and post-modern). Finally, emotion is legitimated by critical jurisprudence via its rejection of a unitary and metaphysical paradigm of law (postmodernism, CLS). Despite the achievements of critical jurisprudence and law and emotion scholarship, law is still considered to be separate from emotions generally, and from love even more so. This view impoverishes our understanding of law in general and its specific enterprises, such as the regulation and construction of marriage.

Love

The idea of love has existed at least since classical times. Its importance in everyday life grew under the influence of Christianity, during the courtly period, and the romantic period. Christianity raised the idea of love to something divine. The courtly tradition began a process of equating it with freedom, personal happiness and sexual satisfaction. These ideas were spread to the masses during the romantic period, and today we can speak of love as being a reason for life itself. Equality, freedom, agency, progress, enlightenment and humanism are all words used in this book in association with love. Love has come to symbolise the opposite of power and control; a society based on love is assumed to be a more free and humane one. These features of love make it an interesting partner for marriage, which has more often had the opposite associations. However, love is not without its critics. While many have sung love’s praises, it has also been described as a ‘modern monster’ which ‘fails to satisfy’ and ‘easily turns into a destructive force’.1 Moreover, the assumption that love will make our society a more humane one is disputed.

Feminists have seen love as oppressive, a vehicle by which women are enslaved in relationships of domesticity and dependence.2 Love’s problem lies in the extrinsic environment in which it is played out: the institution of marriage, patriarchy, the private and public division, and its association with sex all contribute to make love a ‘curse’ for women.3 However, to acknowledge these extrinsic factors is not to let love itself off the hook. Intrinsically love’s own logic of self-satisfaction and self-government are destructive. Its ideology is circular, chaotic and unruly:4 love itself is therefore a problem.

For queer theorists, love’s extrinsic ‘problem’ is heterosexuality. Love is understood as embodying heterosexual rituals and scripts of domesticity and, as such, excludes same-sex relationships.5 In this way, queer theorists are challenging the rhetoric of romantic love which claims that love breaks down barriers. In fact, their critique is that love is not romantic enough because it excludes ‘non-heterosexual’ love. Furthermore, love itself is mostly understood as a physical and natural feeling, as a ‘merging’ with another, our other half,6 as a means to attain goodness, or a supernatural, mythical feeling. In these ways it is understood as being embedded in discourses of merger and of nature. This discourse inevitably becomes linked to stereotypical gender roles and to heterosexuality.

The following four statements can be made in relation to our contemporary understanding of romantic love:

• • Love has become an existential goal, a means to happiness and fulfilment. It is the central paradigm for ordering intimate relationships between people, including sex and marriage;
• • The rhetoric of love asserts that it is above all other social rules, and trumps social, cultural, traditional, economic, family, religious, and, class conventions and expectations. It is its own law;
• • The context in which love is played out is oppressive to women and to same-sex couples. These contexts are patriarchy, the private-public division, and heterosexuality; and
• • Love is embedded in concepts of nature that inevitably link back to stereotypical gender roles and heterosexuality.

Marriage

Love has become a dominant idea in modern society and has come to dominate much of our social thinking, including how we think about the institution of marriage. This is true despite the fact that, for many, the traditional, religious and patriarchal meanings of marriage remain. For an overwhelming majority, when all other reasons for marrying have largely evaporated, the one that remains is love. While love can exist without marriage, marriage is considered the ultimate expression of two people’s love. It is this connection with love that has strengthened the institution of marriage. Despite the various challenges to marriage thrown down in the latter part of the twentieth century, it remains a central goal for many people, and is widely regarded as a good in society.7 Once marriage became disconnected from economic need, religious and family obligation, realigning itself with romantic love, it found a new audience. Not only has it remained popular for heterosexuals, but, as we have seen, it has become a goal for same-sex couples.

The cases of Garcia, Re Kevin, and the same-sex marriage debate have revealed a number of significant themes in relation to the legal discourse of marriage. Marriage is to be understood in conjunction with sexual identity and sexual intercourse, gender and sexuality, procreation and family, and, not least, in conjunction with business, economic and commercial interests.

Historically, sex has been seen as central to marriage. To be valid, a marriage had to be consummated, and procreation was considered its central purpose. With the rise of the romantic marriage, sex has come to be connected with mutual satisfaction and expression of love. This shifting narrative has been shown via analysis of the marital immunity of rape. The narrative came to a decisive point with the case of Re Kevin, where the Family Court unequivocally said that sexual intercourse was not a defining feature of marriage. However, I have argued that, given Re Kevin’s facts and its heteronormative reading of marriage, it must be read cautiously.

To say that sex is no longer relevant in the modern legal discourse of marriage would be misleading. The shadow of the law that stated that a man could never be guilty of raping his wife faintly remains. Courts have continued to see a pre-existing relationship as relevant to the question of consent. Cases continue to show that there is a nexus between being married (or being in a relationship) and a lower threshold of consent. Empirical studies suggest that on this issue the law is merely reflecting a significant social attitude that still connects marriage with a man’s right to have sex.

Nevertheless, it cannot be denied that law has shifted ground considerably in relation to sex and marriage. It has gone from saying that a valid marriage requires consummation, and from saying that a husband can never be guilty of raping his wife, to saying that sexual intercourse is irrelevant to the legal status of a marriage either way. Sex is part of marriage only as a result of mutual consent. Justice Brennan in R v L alludes to love as the means by which sex is negotiated between a married couple.

Garcia considered the relationship between marriage, business and economics. The economic aspects of marriage have a history as dark as that relating to sex. In the past, marriage reduced women to non-economic actors, incapable of owning and controlling property and, indeed, being seen as property themselves coming completely under the control of their husbands. The Garcia case resonated with the bad old days of marriage in the sense that, on the surface, the Court was endorsing the idea that a woman does not and should not necessarily have an informed involvement in her husband’s or the family’s business affairs.

Critics argued that the Court’s decision did not reflect the new narrative of marriage where the wife was a free, autonomous individual capable and willing to act independently of her husband, not only in general ways, but also specifically in the spheres of business and economics. The majority of the judges did not dispute this narrative of marriage but argued that it was incomplete. The majority decision maintained that marriage is an economic union and, importantly, that upon marriage a husband and wife’s economic interests are united. However, the judgement also endorses the idea that marriage is an emotional union based on trust and confidence, and the existence of these factors means that marriage justifiably leads to people acting ‘ignorantly’ as opposed to ‘self-interestedly’. While love was never mentioned in the case, I have argued that ‘trust and confidence’ can be interpreted as aspects of love. The Court refused to create a situation where the trust and confidence that usually exists in a marriage would be replaced with suspicion and self-interest, which would be tantamount to pulling down a central pillar of marriage. In centralising trust and confidence in marriage, the Court in Garcia acknowledged both the good and the bad about love. People such as Mrs Garcia do everything for their husbands, for love — people do that, women do that, and when it goes wrong the law will help. But that help was not to be at the expense of eroding the romantic aspects of marriage. The aspects that translate into people behaving in ‘non-rational’ non ‘self-interested’ ways. Relief could only be given under the ‘special equity of wives’ because this principle alone retained and nurtured the special features of marriage as a relationship of trust and confidence as avatars of love. Garcia also points to a broader issue in relation to marriage and economic interests. The law selectively honours individual economic interest in marriage. If marriage is a life-long union then there is some sense in seeing it as an economic union. But if marriage is a love union which only lasts as long as the love does, then the law must learn to acknowledge, measure and allocate individual economic interest.

If Garcia alluded to love via trust and confidence, Re Kevin can be interpreted as further building the case for love in marriage. Re Kevin challenged some central assertions about the meaning of marriage. It refuted that the central reason for the relationship is procreation and asserted that sexual capacity and sexual intercourse are not central to marriage. As such, the decision went further than law had before towards constructing marriage as a love relationship. The decision can be understood as an affirmation of the importance of love in marriage. If the decision in Re Kevin looked like liberalising marriage, the federal legislative response against it was swift. In amending the Marriage Act and in overriding the ACT’s Civil Union Act the federal government reasserted that marriage is more about procreation than anything else, and, as such, must be between a man and a woman, and cannot be between same-sex couples. Love is important, but not the most important thing in marriage. However, proponents of same-sex marriage are now using love to break down the legal door barring their entrance to marriage.8

In the light of the discussion in this book, to what extent can we say that love is part of the legal discourse of modern Australian marriage? We have seen that the popular rhetoric of love has colonised marriage. Even in the most conservative of institutions, such as the monarchy, marriage needs to be presented within the romantic love discourse in order to fulfil social conventions.9 As such, one would expect to find love within the legal discourse, but it is barely visible there. The legal discourse of modern Australian marriage presented in this book shows that marriage is still understood according to some of its traditional associations: that marriage is, and should be, between a man and a woman (Re Kevin, same-sex marriage debate), and that, upon marriage, economic and business/commercial interests become united (Garcia). However, some traditional links have also been broken: sexual intercourse and procreation are not the defining characteristics of marriage (R v L, Re Kevin), and sexual intercourse in marriage is subject to mutual consent (R v L). As we have seen, love is explicitly visible in this discourse in the context of the same-sex marriage debate, where it is pitted against procreation as the central defining characteristic of the institution, and it is explicitly visible as a means by which sexual relations are negotiated (R v L). At the same time, love can be inferred in the discourse via the assertion that trust and confidence are elements of love (Garcia). Moreover, when the legal discourse rejects all traditional meanings of marriage, the silence left behind can implicitly be filled by romantic love (Re Kevin). The impact that the presence of love has on marriage is debatable. While its rhetoric of freedom, liberty, equality and agency all inevitably leave a mark, love has not shown itself to completely displace the traditional meanings of marriage.

Over the years covered by the legal episodes explored in this book, the legal discourse of marriage has clearly shifted. There are many reasons for this shift, including the entry of love into the discourse. Given the progressive nature of romantic love, this leads to hope for a redefinition of the institution of marriage along more progressive lines. However, before one can gauge the significance that love might have on the institution of marriage, something needs to be said about the discourse of love that emerges from the analysis in this book.

Love Again

In Re Kevin the Family Court of Australia rejected some traditional notions of marriage. The Court rejected the idea that marriage required sexual activity and capacity to be valid, and it rejected procreation as the central defining reason for marriage. In rejecting these traditional aspects of marriage, the case came closer than any other legal act to insinuating love as a reason for marriage. However, the case can also be read as sustaining the traditional association of marriage with heterosexuality, asserting that marriage is fundamentally a heterosexual institution and, even if love is part of it, that love itself is also understood as heterosexual. Kevin and Jennifer were accepted as legally married because they loved each other, and because their love closely replicated normative heterosexual love. The scripts of this love are procreation, family, domesticity and marriage.

The same dynamics are evident in the same-sex marriage debate. The argument over same-sex marriage has become an argument over whether marriage is about procreation or love. Proponents of same-sex marriage believe that a win for love marriage is a win for same-sex marriage, but this denies the heteronormativity of romantic love. The predominant way of understanding romantic love in our society and culture is primarily as a union between two people, a merger of two soul mates, which, as such, is embedded in nature and inevitably heterosexuality.

Re Kevin and the same-sex marriage debate contest the notion that marriage is grounded in biology and procreation, but do not disturb those very same notions where they exist in our understanding of love. There is therefore a great circularity that occurs in the argument that always comes back to heterosexuality as the basis for both marriage and love. The analysis in this book points to an important failure in the way we understand romantic love which goes to the heart of its philosophy and renders it incapable of delivering the great progress, freedom and equality which it promises. As long as the notion of merger continues to be dominant in our understanding of love, love cannot separate itself from nature and therefore from scripts of reproduction, sex difference and heterosexuality. We have seen how this is disadvantageous to same-sex love, which is accepted only when it reproduces the scripts of heterosexuality. Even in the context of trans-sexuality, something more than a physical change in sexual identity is required: domesticity, family, parenthood and marriage are all important aspects in the construction of a loving couple.

While feminist critiques of love have focussed mainly on patriarchy and the private and public divide, a nature paradigm is also significant for their critique. Freeman showed clearly how the merger paradigm of love works against women.10 If love is to deliver the promises that Solomon and others claim it makes, then it seems that it must reconceptualise itself away from the idea of merger. In this way, it can once and for all sever the connection with nature, biology, reproduction and parenthood. In this way, both heterosexuality and gender roles, which have been so damaging to women and to LGBTI couples, can be disrupted.

The features of love evident in the legal discourse do not match love’s rhetoric of liberty, equality and progress. In the legal discourse love is constructed within other constructs such as nature, family, gender and sexuality. Furthermore, romantic love appears to be embedded in a discourse of complementarity and merger that inevitably are tied up with power. For ‘non-heterosexuals’, therefore, love is yet another barrier that can only be overcome to the extent that one can fool nature and ‘act’ the part.

Given these conclusions about the meaning of love, we can either work to reduce its hold over the modern imagination or work towards redefining it to accommodate these criticisms. Despite the critiques of love, few are willing to jettison it. Its connection with individual freedom and autonomy makes it a hard idea to reject. Love is part of who we are, and we cannot go back to a time before it. As Langford says, it is neither possible nor desirable to return to a time when personal relationships were not seen within the paradigm of romantic love. ‘No remedy’, she argues ‘is to be found in a reactive return to the regulation of love along traditional lines. Justice and humanity cannot thrive through the imposition of a repressive moral order and the institutionalisation of oppressive practices.’11 Also, as Illouz argues, we must not forget that the dominance of love has directly correlated with a decline in men’s power over women and with an increase in equality between men and women.12 The many legal changes that have occurred in the laws of marriage have coincided with the period of history where intimate relationships have been influenced by the liberalising egalitarian and radical ideology of love. The answer must therefore lie in reconceptualising love. For Illouz and Langford, the answer lies in a love which reflects women’s experiences and desires as much as men’s, and a love which embodies a more ethical ideology. For queer theorists, what is needed is a love that moves away from heterosexuality. For both feminists and queer theorists, moving love away from the discourses of nature and biology are beneficial.

Earlier, I alluded to the possibility that the formulation of love offered by Giddens might help to fulfil some of these promises. Giddens has formulated love as an emotional tie that can be independent of extrinsic factors, including sexuality. This is a love that is entered into and structured along individual lines, disconnected from marriage or even monogamy. This formulation of love moves away from nature and is democratic and inclusive. However, it also leaves itself wide open to the criticism that it is potentially exploitative and unethical. In the discourse we have seen, it appears to be difficult therefore to reconcile a freer and open love with a more caring and ethical one, and yet this seems to be what is needed.

Feminism and queer critique have identified many problems with love, but they have also provided insights that will help to recover and fulfil its radical and liberating potential. Feminists have identified the liberating potential of romantic love. Illouz, Radway, Pearce, Stacey and Langhamer, among others, have shown how women use love exactly to achieve what Solomon and Giddens have argued can be the case. Love provides a means by which women can subvert patriarchy.

Queer theorists who have retained love at the same time as opposing its heteronormativity are also a big part of this project. Warner, Berlant, Johnson, Slavin, Binnie and Bell, all cited in this book, have argued that relationships, described by Berlant as being on the ‘edges’, can all be described as love.

It might well be that law can also help to create this new discourse of love. Garcia, for example, reflected a view of marriage that was built upon love and mutuality, and which nurtured both. Garcia accepted that love is anarchical but refused to either jettison it or to leave its wounded victims unprotected. Re Kevin must also be part of this re-reading of love. While I have argued that the social construction of love as heterosexual — embedded in concepts of family and domesticity — are paramount in the reading of this case, it must not be forgotten that the case breaks the connection between love and nature. Kevin ‘becomes’ a man, is not ‘born’ one, he falls in love and marries and defies the ‘nature’ connection that exists in both love and marriage.

The eventual recognition of same-sex marriage could also achieve this aim, and can be read as a decisive breaking down of marriage as a heterosexual institution. Same-sex couples will bring to the institution an understanding of love that is not necessarily steeped in scripts of family, procreation and domesticity. Indeed, they will join heterosexual couples who are also interested in breaking down these connections. There are feminists (both men and women) who marry, there are people who do not have children who marry, there are couples who reject and act against gender stereotypes who marry. Same-sex married couples and non-traditional heterosexual couples will join forces to reflect a different meaning to love and marriage.

The way we read Re Kevin and the legal recognition of same-sex marriage is crucial. According to the reading that they replicate heterosexual scripts, love’s radical potential is diminished; but if we read them as validations of ‘other’, less traditional expressions of love then they recover and reinforce love’s radical meaning.

Love and Marriage

Considering the relationship between love and marriage is not an easy task. At first, it would appear that the two are opposites: love is freedom, marriage is oppression; love is anarchical, marriage is ordered and rule bound; love is individualistic, marriage is a unity of a man and a woman; love is selfish, marriage is altruistic; love is about pursuing personal satisfaction, marriage is about giving and caring for others; love lasts for as long as it does, marriage is a life-long institution.

But this is too simplistic a reading of both institutions. Neither love nor marriage are static concepts. This book has shown that there are at least two readings of both love and of marriage. Love, we have seen, is a discourse of both freedom and of oppression. One breaks down social barriers while the other reinforces them. Marriage can be read both according to its traditional, patriarchal, religious and — we need to acknowledge — old common law meanings, as well as along its more modern feminist and queer equality/difference meanings. The influence that love has on marriage depends upon the readings we take for both of the institutions.

If we take the radical reading of love, then its association with marriage can be a sign of the marriage institution also becoming radicalised, more equal, more able to deliver satisfaction to each of its parties, more open to individual negotiation, less embedded in rules and expectations, more free, less tied to gender stereotypes, less focussed on biological and natural readings, less heterosexual, less family, less monogamous.

If we take the oppressive reading of love, that it simply mirrors heterosexuality, and in turn domesticity and family, that it is structured along conservative views of ‘nature’ gender and sexuality, and that it is still largely religious and patriarchal, then the connection of love and marriage does very little to change the traditional meanings of marriage. Love simply reinforces marriage as a life-long union, whose primary role is procreation, the reinforcement of the heterosexual family, the economic union of two people, and arguably the reinforcement of stereotypical gender roles and of patriarchy.

The same question must also be asked in reverse: what does marriage do for love? Again, the question depends on the interpretation of marriage. Staying with the traditional meanings, if we connect marriage to love, it diminishes its radical potential. This is the very concern that has been shown by feminists and queer scholars who have opposed same-sex marriage. Marriage is too conservative an institution, its past is too dark and too oppressive for those who have a radical outlook and radical aspirations in their own love lives to be aligned to it. What this suggests is that the radical potential of love will be lost when it is aligned to marriage. But what if we see marriage in the modern guise many want it to assume, as an equal relationship where personal freedom and satisfaction are obtainable? In this model, marriage and love simply reinforce each other’s radical potential.

The legal analysis undertaken in this book reflects the careful manouvering that is occurring in society in relation to the meaning of marriage. The law has stomped on some of the worst aspects of the legal effect of marriage (sex, marital rape), but it tiptoes around others (same-sex marriage). It also reflects the tensions that exist in relation to the meaning of love. Yes, love is great, yes we all can have it (Re Kevin), but it can have consequences that are not so great (Garcia and same-sex marriage). This might mean that love is not all we need to make marriage a progressive institution.

Law Again

Going back to our starting point, and knowing what we know about the dominance of the positivist rhetoric of law, it would have been surprising to find a more open discussion of love in the legal discourse of marriage. For the courts to have engaged openly with love would have been to depart from ‘objective’ reasoning and application of law. Critical jurisprudence has done quite a good job of challenging the positivist view of law which excludes emotion. What remains is for that work to penetrate the many layers of law more deeply and more convincingly.

If we are serious about fostering an engagement between law and emotion, we must also consider how that engagement can take place. Returning to the law and emotion scholarship with which this book began, we can identify several trends. We see scholarship that describes emotions that exist in different legal processes. We also see scholarship that calls for the inclusion of emotion in legal processes such as judging. Very little is said in these works about how this could actually occur. We see methodologies of law, such as therapeutic jurisprudence and restorative justice, that attempt to use emotions to achieve justice as an alternative to the adversarial system. Finally, we see work that takes the lens of love to challenge not what law does but how law thinks. This has been the approach taken here.

Law that is understood in an emotional vacuum is the poorer for it. Law as a social discourse needs to be viewed through an emotional lens as much as any other. This book has shown the dynamic that exists in the legal discourse between love and marriage, arguing that the impact of love on marriage can help to move the institution away from its oppressive nature and help to create a more equal relationship based upon mutual needs and wants. Love can be associated with mutuality rather than individuality. When it comes to same-sex marriage, an analysis of the issue through the lens of romantic love helped to show a side which has hitherto been little discussed, and has helped to clarify aspects of the argument. To show the role love plays in defining marriage, and to show the features of that love, will make a contribution to the same-sex marriage debate. Such an insight will enable law reformers to more clearly articulate their demands, and their opponents to more clearly frame their opposition. The debate is thus enriched by the inclusion of emotional analysis.

We have come to accept that political, historical, sociological, and philosophical perspectives are all important to law. We need to add emotions to that perspective. To show why it is so, and to indicate something of how it can be done, has been the contribution of this book. Thinking about law within an emotional framework makes law more engaged with the community it serves and, as such, better able to understand it, and deliver it justice. Understanding the emotions involved in human institutions such as marriage enables law-makers and law reformers to more clearly articulate their claims and demands. Understanding legal issues through an emotional paradigm increases understanding of the issues themselves, and consequently leads to better legal decision-making at all levels. Including emotion in law dramatically changes for the better the perception we have of law. To believe that emotions can be divorced from law isolates it from an essential aspect of human behaviour; to remarry law and emotion returns law to where it belongs, back to its humanity.