A statement that appears to assure a performance and form a contract but, when scrutinized, leaves to the speaker the choice of performance or non-performance, which means that the speaker does not legally bind himself or herself to act.
Legel Dictionary.Com: Illusory Promise
Given the recent hooha over the Supreme Court of the United States striking down the “Defense of Marriage Act” which defines marriage according to heterosexual norms, as well as it being PinkDot SG today, I thought that it would be good to revisit the roots of this issue and to clear away the true causes which enabled this most recent development.
The argument which I would be making here is that gay marriage is possible only because of several other developments which has occurred earlier, and if these developments had not occurred, gay marriage would not have been possible at all to begin with. The culprit which I would want to name is no-fault divorce, and after making my argument, I would like to propose a way forward independently of the need for governmental or political action.
Marriage as an Objective Institution
One of the great paradoxes of our times is the failure to recognise that marriage is concerned with regulating sexual behaviour and yet the common refrain that what people do in the privacy of their beds is not the state’s or civic society’s business.
The absurdity of this claim would be evident at once when we consider that among the criteria for an annulment is non-consummation, and (traditionally at least), one of the very few justifications for a divorce is adultery. Marriage as a civic institution is precisely concerned with who you may or may not sleep with, censuring sexual relations with those outside of marriage, and acknowledging such acts as an offense against the institution of marriage.
Thus, the undertaking of a marital promise or vow is precisely to undertake a duty and obligation toward sexual fidelity, which promise or obligation holds regardless of the changes in the subjective affections of its participant, it is “objective”, it is a norm unto itself which the participants bows before. As Hegel once puts it, marriage is a contract to transcend the standpoint of contract, an agreement to go beyond agreement and adopt a set of objective obligations and promises which transcends one’s subjectivity and to which one’s subjectivity must bow before. The law, for example, is not concerned with how much a husband is “in love” with his young secretary, adultery is adultery, and being in love is an irrelevant consideration to the validity and force of the promise, and such an adultery, no matter how loving, contradicts the obligations undertaken by the husband in a marriage.
The Advent of No-Fault Divorce and the Destruction of the Marital Promise
However, the innovation of no-fault divorce and, what amounts to the same thing, the radical loosening of the criteria of divorce, would have effectively destroyed the marital promise.
In the past, the only justification for a divorce are “faults” or wrong-doing by either party, known as “fault” divorces. Adultery, physical abuse and abandonment are among the very few justifications for divorce, and without such objective offenses, the courts would not and could not grant a divorce. And besides the courts, social stigma against divorce enforced the objectivity of the marital promises which norms its subjective participants.
However, a “no-fault” divorce is a divorce which is granted simply on the say-so or whims of anyone of its participants, independently of whether an objective fault or offense had occurred against the marriage. Thus, people could simply end their marriage as and when they feel like it.
It is clear that “no-fault” divorce has effectively destroyed any meaning there is to the very idea of a promise, nevermind a marital promise. In contract law, a promise or contract which contains the condition or clause which goes, “provided I feel like it”, is not a real contract, a contract which cannot be effectively enforced in any court of law. The legal term for this is illusory contract. Thus, for example, a promise which goes “I promise to provide such and such goods and services to you, provided I feel like it” or “I promise to meet you at 5 pm provided I want to”, is not a promise at all, because it is a promise which doesn’t contain any objective obligations, but which performance is rendered optional to the choice of its participants, and therefore an illusory promise.
Thus, a “no-fault” divorce, for all intents and purposes, turns a marital promise into an illusiory promise. It is a promise to be married “provided I feel like it”, which is no promise at all. Even in countries and nations which does not technically have “no-fault” divorces have such loose criteria for divorces (such as a year or two of separation, etc) that it is effectively “no-fault” for all intents and purposes, because as long as one can get a divorce without any objective fault or wrong-doing on the part of either parties and simply because one wants to, then it is effectively “no-fault” and falls under the category of “I promise to be married provided I want to or am happy.”
From No-Fault Divorce to Gay Marriages
If the marital promise rests on an objective basis, then the criteria for its dissolution must always rest on an objective basis, not simply because “I don’t feel like” being married anymore. However, the subjectivising of the criteria of marital dissolution, that is, allowing marriage promises to be dissolved on a subjective whim, is at the same time the subjectivising of the marital promise itself. If marriage was simply something which occurs “inside” of me independently of what happens outside of me objectively, then what does bodies, and gender difference for the matter, have to do with it?
This can be seen in the very practical sense of one of the old “objective” basis for a divorce: adultery. Courts of law in the past had a rather specific objective meaning to adultery, it defined adultery in all its cringe-inducing biological and bodily detail with penises and vaginas, etc. (Penetration is penetration is penetration…) Thus, for example catching your husband masturbating to porn is not adultery and not a ground for divorce, but catching him in bed with another woman is.
If marriages retained its objective basis, gay marriages would have been impossible simply because gay marriages simply have no definition of consummation or adultery. Not all “gay sex” is necessarily penetrative and there is no unified meaning or definition of what constitutes gay sex. If a man catches his “partner” masturbating in the presence of another masturbating man on the same bed, would that constitute “adultery”? Who is to say? What this essentially implies is that sexual monogamy would be simply be written out of the meaning of legal marriages as marriages have no way of enforcing sexual monogamy since it has no legal definition of adultery. The monogamous nature of marriage would essentially be destroyed.
One can of course circumvent this by saying that “gay adultery” is simply whatever one of the partner say it is. But this would simply collapse back into the subjectivising of the marital promise again. It is says that “I promise to be married unless my partner is sexually unfaithful, and that occurs whenever I think he is being unfaithful or if I am not happy with how s/he is”, etc. Would thinking that your partner’s “heart” is with someone else constitutes adultery? Would thinking that your partner’s love had “gone cold” also constitute adultery? Such “subjectivity” simply amounts to the same thing.
The hopeless contradictions of this are obvious in the UK’s latest bill to legalise same-sex marriage which can be seen in this article.
…Civil servants, confronted with the embarrassing task of working out what defined the consummation of a homosexual relationship, faltered. Since homosexual acts have no existential purpose and no procreative result, consummation is a meaningless concept. From this it followed that the Government could come up with no definition of adultery in a homosexual marriage. A law designed to be equal, is not. Under the Bill, non-consummation will not be grounds for divorce in same-sex marriage. Nor will adultery.
By accident, then, the Government is introducing, for the first time, a definition of marriage which has no sexual element. Yet it refuses to face the logical consequence of this surprising innovation.
Of course, once more it is important to emphasize that this is a matter of shutting stable doors after horses have bolted. Once the marital promise has ceased to be governed by objective norms, which dissolution requires an objective meaning, then it doesn’t matter that same-sex marriage does not have an objective meaning of adultery or consummation, because paradoxically, marital promises have nothing to do with sexual fidelity anyway, but is simply a pure act of will or desire, effectively eviscerating it of any meaning as a promise.
It is also clear incidentally that same-sex marriage could never be “equal” to heterosexual marriage, as long as heterosexual marriage retains its definition of consummation and adultery, which are impossible definitions in a same-sex marriage. The only way you can “equalise” same-sex marriage with heterosexual marriage is to eliminate adultery and consummation from the legal estate of heterosexual marriages. But this wouldn’t matter anyway, since divorces have longed ceased to have an objective basis.
A Non-Political Solution to the Problems of No-Fault Divorces: Pre-Nup Contracts Against Divorces
Suppose we accept that the government is not going any time soon to penalise eliminate no-fault divorces, and that the civic and political realm are not going to anytime recognise the objectivity of marital promises, what can we do in the interim? What we need is a solution which imposes a prohibitive cost and penalty for getting a divorce, and since the state no longer is going to enforce this penalty by the force of the law, the question is whether we can create such a penalty via imposing a financially ruinous cost to getting a divorce, so much so that it becomes for all intents and purposes, prohibitive.
I was watching a Law and Order episode last night where apparently a divorce lawyer had a clause which completely cuts off financially the adulterous partner in the event of a divorce on those grounds.
Well, it is a TV programme so I’m not sure of the legality of that in America, but this clause seems to suggest a solution to our problems.
If we conceive of marriage as essentially an objective and publicly instituted promise/contract, in Hegel sense of a “contract to transcend the standpoint of contract”, then it would be a publicly enacted contract containing promises of future obligations and actions as we have already established. That’s why it’s called a vow, a promise, it is the undertaking of obligations and duties to render certain services or actions into the future, in the words of the Book of Common Prayer marriage liturgy, “Wilt thou love her, comfort her, honour, and keep her in sickness and in health; and, forsaking all other, keep thee only unto her, so long as ye both shall live?… to have and to hold from this day forward, for better for worse… etc”
Now an interesting part of the marriage liturgy involves this part where only the man will say, “WITH this ring I thee wed, with my body I thee worship, and with all my worldly goods I thee endow: In the Name of the Father, and of the Son, and of the Holy Ghost. Amen.” Thus, contained with the martial promises is the endowment or giving of all material goods. Of course, this “giving” is not a loss, for they are now one family via marriage and thus share the same property.
Thus, what does it mean to include a prenuptial clause which would empty the faulting party of all material possessions? It is quite simply a fulfilment of the promise or contract made. The promise which each party makes to the other is to endow each other of all their material possession, this promise, by virtue of being objective, is an obligation which binds upon each party anterior to their subjectivity, to which their subjectively must submit to. Thus, in short, they are bound objectively and publicly to fulfil the terms of the promise whether they feel like it or not, that is what a promise by definition is, an undertaking of an obligation which fulfilment is a duty.
Thus, this is fine as long as they both subjectively and willing fulfils the promise, i.e. by remaining married. However, in the event that one breaks the promise or the vow via a marital fault, e.g. infidelity, abandonment, physical violence, etc, and a divorce is initiated on that grounds, the failure of one party to fulfil the promise does not negate the objectivity of the promise which is anterior to subjective actions, it must still be fulfilled. Thus, the financial emptying of the faulting party to the innocent party is simply the fulfilment of the promise to “endow” the goods of the faulting party to the innocent party. The only thing is, because the faulting party refuses to remain married, the faulting party, in so abandoning his marital promises and contracts, does not receive anything goods or benefits from the contract on the innocent party’s part.
In a sense, this is analogous to the Westminster Calvinistic idea that God does all things for his glory. Thus, either we glorify him by worshipping him willingly, and thereby share in the enjoyment of his glory, or we will glorify him anyway unwilling if we don’t want to worship him, by him displaying the awesome glory of his wrath in his fearsome vengeance upon those who refuse to pay him his rightful homage, to the praise of his glory, thus either way, God will be glorified.
Thus, the objectivity of a marital promise means that it will be fulfilled either way, willingly or unwilling. Willing, by keeping to the marital vows and contracts, and sharing all of one’s goods in common, unwillingly, whereby the prenuptial clause will force the fulfilment of the promise anyway and make the offending “endow” all his/her goods whether he or she fills like it or not…I guess at heart, I am still a relentless and rigorously legalistic Calvinist, so obsessed over covenants, promises and laws, and his sovereign ability to fulfill it damn the subjective resistance…
So for those couples serious about a substantive wedding vows. Don’t waste money on extravagant wedding theatrics.
Discuss how to make those martial commitments “real”, as in, real with real penalties and consequences for either party who dares to violate those martial promises. Seek out a lawyer or whatever to draft a prenuptial agreement or some form of contract which would punish severely the faulting party for initiating a divorce, such as not getting a single farthing, automatic loss of custody of all children, etc. A similar arrangement would apply to the party who initiates a divorce on a “no-fault” ground, whereby “fault” is defined in very specific terms.
Arrange such a contract to show that you truly mean business, are truly serious about your marriage vows, by calling upon yourself all these calamities if you do not honour your martial promise. After all, people used to swear upon God and hope to die if they aren’t true to it, while we can’t execute people for not fulfilling their marriage vows, but hey! We could at least reduce you to financial ruin.
After that, just get married with the form of the Book of Common Prayer 1662 version, complete with warnings about the Dread Day of Judgement and not satisfying carnal lusts and appetites like brute beast with no understanding, etc.
Conclusion: Some Theological Observations
There was a time of course when social stigma and discipline would not require such a measure. But in an age where churches shudder before issuing excommunications and where in any case, in a society of strangers, one can simply change one’s church’s affiliation and move on to another church after getting a divorce, such a civic measure would become all the more necessary.
On a more theological note, the traditional Protestant “Two-Kingdoms” doctrine had always located “marriage” in the civic and not ecclesiastical sphere, and as such, was ambivalent towards the idea of churches directly policing marriage. Melanchthon in his Apology of the Augsburg Confession pointed out that if ecclesiastical courts, that is, bishops, have the right to adjudicate over questions of marriage, they have this by human not divine right, as secular rulers and not by the commission of the Gospel.
Thus, I think that such prenuptial facilities would be essentially a financial and civic affair. Thus, it is a contract which is open to everyone, not just Christians, who are serious about real marriages.
Of course, churches can encourage such a prenuptial contract by recommending it to all couples who seek to get married in their churches. While churches cannot compel couples to be married under such a scheme, but I think this would go a long way towards demonstrating one’s intent towards taking those marriage vows seriously with actual substantive content and not just as a expression or fuzzy romantic gesture.
It is interesting to note that during the reign of Constantine, he allowed citizens to seek legal redress through the church’s bishops instead of the usual civic judges. So fair and impartial were the Christian judges that eventually, most of the citizenry rather seek justice in those ecclesiastical courts rather than in the corrupt civic courts. That was how eventually the ecclesiastical courts ended up with so much jurisdiction over civic matters.
Perhaps if the Church as the entire body, not merely the institutional church or the sacramental and preaching ministry, offered these facilities for “True Marriages” fulfilling their worldly vocations as insurance agents, bankers and members of civic society in the true Protestant style of vocations, we might go a long way towards commending the practices of true marriages to the world.