Friday, August 24, 2007

Reid on Marriage: Its Relationship to Religion, Law and the State

Charles J. Reid, Jr., Univ. of St. Thomas School of Law (Minnesota), has posted a new article, Marriage: Its Relationship to Religion, Law, and the State. It is forthcoming in Jurist. Here's the abstract:
This Article draws inspiration from the work of Fr. John Lynch, especially his studies of canonical influence on secular legal orders. Fr. Lynch appreciated that, in common with other legal systems, canon law was not a self-contained system of rules that should be studied in isolation from other intellectual currents. He further understood the pervasive influence canon law has had on western law generally, secular as well as sacred.
While the paper's purpose is broad – to examine the relationship of religion, the state, and marriage, it is largely historical in focus and concerned with the ways in which medieval canon law both directly and through the mediation of early-modern Anglican canon law, influenced American jurists and judges of the nineteenth and twentieth centuries. It has a philosophical dimension also, in its contention that this historical record reflects an inevitable human reality – that law and religion, marriage and the state not only have historically influenced each other but that they must do so, as a condition of a healthy society.
Marriage has been associated, within the western tradition, for nearly two millennia, with religious insight. In all societies, marriage is signified by some form of symbolic action or exchange; it reflects commitments not only by the individuals involved, but by larger communities, whether they be family, church, locality, or something larger or smaller than these groups. Marriage is a commitment that embraces not only the good of the parties, but points to something larger – a given society's sense of the ultimate.
Law itself points to a larger substantive vision of the good. For this reason, some, like Harold Berman, argue that the law itself has a religious dimension that we deny at the risk of imperiling the soundness of a society's legal order. And this religious dimension of law, this sense that the law must embody some larger, more transcendent understanding of right and wrong, also lies behind and animates much of the contemporary debate over marriage. Legislative or judicial attempts to sever the traditional bonds among marriage, religion, and law, are, for these reasons, doomed to failure, in either the short or the long term.