Law and Marriage

Marriage, in what is evidently its most popular version, is now on the one hand an intimate ‘relationship’ involving (ideally) two successful careerists in the same bed, and on the other hand a sort of private political system in which rights and interests must be constantly asserted and defended. Marriage, in other words, has now taken the form of divorce: a prolonged and impassioned negotiation as to how things shall be divided. — Wendell Berry

Wendell Berry. I’d be plenty happy to see more Wendell Berrys in the world. But, sometimes, apparently slam-dunk comments like these wend their way up from Berry’s Gutenberg printing press to approving corners of the internet, and I have to pause for a moment. Because, as is the case here, I feel a bit of a reflex to be vigilant — the big picture seems so right so fast that the temptation is to stipulate the seemingly little things.

The marriage-as-politics bit, here, for instance, seems like a little thing — a ready-made analogy to ring around the neck of a longtime cultural corruption indicator that many of us still haven’t tired of bemoaning, and for good enough reason. But, actually, treating contemporary marriage in the manifestation Berry wants to critique as a “sort of private political system” does quite a bit, on closer inspection, to send us down what I think is a very false critical path — one that might even play into the hands of the forces we wish to array ourselves sharply against.

The assertion and defense of rights and interests, I have to venture to say, isn’t politics — not necessarily. You can find it, for instance, in one of the least political places on earth, the room where contractually required arbitrations are performed. Divorce court, perhaps above all, stands as a living monument to how tirelessly (and at what cost) we’ve worked to export the assertion and defense of rights and interests out of politics and into law. Increasingly, I think, law is being set up as an opposite to politics, an antipolitics — again, not because people don’t fight over what they think they are entitled to want and what they think they need, but because the way in which they do is supervised and managed by a system of rules and regulations promulgated in a way that itself is divorced from actual political practice.

The contestations over relational power that Berry sees as characterizing marriage today must not be confused, I think, with the kinds of contestations you get under conditions of actual political practice. This sort of conflation seems to me roughly similar to that involved in calling gladiators warriors, and gladiator matches war.

UPDATE: Peter Suderman reminds me that I should link to this depressing item. “The Marriage Ref” is, as far as I can tell, pretty final proof that our model of acrimonial marital arbitrage is far from political.