The Cultural Power of Law and the Cultural Enactment of Legality: The Case of Same-Sex Marriage

This paper examines the legal consciousness of same-sex couples with respect to marriage. Data from an interview-based study of 71 members of same-sex couples reveal strong consensus on the desirability of having samesex relationships legally recognized, and considerable variation in couples'attempts to enact marriage culturally through various practices, including the use of marriage-related terminology and public commitment rituals. I argue that some of these efforts to enact marriage culturally should also be read as attempts to enact legality in the absence of official law. The findings from this study challenge the idea that marginalized social actors will tend toward a resistant legal consciousness: Rather than seeking to avoid and evade legality in their everyday lives, most same-sex couples seem to embrace legality for its practical and symbolic resources, even as they stand "against the law" in their opposition to the exclusion of same-sex couples from the institution of legal marriage. Approaching marriage from the perspective of same-sex couples, this research demonstrates that the legal and cultural aspects of marriage are deeply intertwined. Cultural enactments of marriage enact legality even in the absence of official law, and many actors ascribe to law a cultural power that transcends its specific benefits and protections, the power to produce social and cultural equality.     

Cohabitation,Registration, and Reliance: Creating A Comprehensive and Just Scheme for Protecting the Interests of Couples' Real Relationships

This paper argues that courts and legislatures should recognize and protect adult relationships other than marriage, in two ways. First, couples in committed, cohabitating relationships should be protected when their relationship dissolves—even if they are not formally married. The law in this area is currently inconsistent and confusing, and should be cleaned up to reflect the reality of the lives of committed couples in need of legal protection. Second, all states should establish a registration scheme along the lines of Colorado's designated beneficiary law, which allows couples to flexibly design their legal relationship. This status should include specific arrangements about the ownership of property over the course of a long relationship, and should also be expanded to allow people to enter into more than one such relationship at a time, as long as the rights and obligations are not inconsistent. Given the number of couples operating outside of traditional marriage today, these two reforms will increase certainty of legal outcome and better protect the reliance interests of those in committed relationships.     

Regulation of Cohabitation and Marriage in Canada

Marriage in Canada had lost much of its legal significance because of the extension of many of the incidents of marriage to unmarried cohabitants of the same or opposite sex. This process has resulted in large part from decisions of the Supreme Court of Canada that discrimination on the basis of sexual orientation or marital status is constitutionally impermissible. In a decision that seemed to many a surprising reversal of this trend, the Supreme Court of Canada in 2002 ruled that legislators could constitutionally exclude unmarried couples from family property laws. The effect of this decision has been to revive the legal significance of marriage. At the same time, courts have resurrected the social significance of marriage by accepting the argument of same-sex marriage advocates that a "separate but equal" civil union institution would not respect the constitutional guarantee of equality and by endorsing the constitutional right of same-sex couples to the symbolic value of marriage as a public and legal celebration of a relationship. Same-sex marriages may now be legally celebrated in three Canadian provinces, and the federal government has made a commitment to open up civil marriage to same-sex couples across the country. While some same-sex couples and unmarried cohabitants have fought for spousal or marital status, others have sought to avoid the burdens associated with spousal status. After the same-sex marriage debate is concluded, Canada will be ready to move on to consider whether all of the legal privileges and burdens now assigned to those in conjugal relationships, whether married, unmarried, same-sex or opposite-sex, can be justified.     

Abolishing Marriage: Can Civil Partnership Cover it?

This paper argues that all adult intimate relationships should be regulated under one single statute. This statute should be the Civil Partnership Act 2004 (which currently applies to same sex couples). The Matrimonial Causes Act 1973 (which applies to opposite sex couples), should be repealed; it should not be amended to include same sex couples. There would, as a consequence, be no such thing as (legal) marriage. Marriage as a legal construct is a heterosexual and patriarchal institution and is therefore so fundamentally flawed it is beyond the possibility of successful reform or repair. The present system of having two distinct legal means of relationship recognition is akin to sexual apartheid and is therefore unsustainable in the long term. Having a legal system which recognises only one form of legal partnership would therefore formally end a discriminatory system. Despite its drawbacks, Civil Partnership does not have the same extent of symbolic and practical degree of flaws as Marriage.

物上瑕疵担保责任、履行障碍法与缔约过失责任

物的瑕疵担保制度是否被规定在《合同法》中,是一个有争议的问题,瑕疵担保制度在本质上是一种不完全履行的类型,但其具有独立的制度价值,所以在德国民法典中成为与履行障碍法并列的制度,即使在德国债法改革后也是如此。瑕疵担保制度与不完全履行、缔约上过失等制度,在调整合同后义务以及合同前义务上,存在竞合关系,如何确定它们之间的界限,端赖于具体的价值衡量,基于瑕疵担保制度独有的对买卖双方利益的重新衡量,瑕疵担保制度的调整领域呈现扩张趋势。     

From lack of status to contract: assessing the French Pacte Civil de Solidarité

It has been suggested that the nature of marriage could be varied by private contract. In France a similar effect has been achieved by allowing couples to enter into an institution delimited by law but regulated by contract. Thousands of cohabiting couples have chosen to register a Pacte Civil de Solidarité . This suggests a strong desire for a real alternative to marriage and raises important issues about commitment in modern relationships. It is speculated that PaCS is likely to rank below marriage but above cohabitation in terms of relationship quality, stability and protection of the weaker party.     

EQUALITY,DIGNITY, AND SOCIAL HARMONY: EXPLORING THE RATIONALES AND MODELS FOR RECOGNIZING SAME-SEX RELATIONSHIPS IN LAW

One of the major changes that has taken place over the past twenty to thirty years has been the extension of the legal recognition and protections for same-sex relationships in a wide range of countries. A number of jurisdictions, including China, are considering the approach that they will adopt. This article seeks firstly to consider the justifications for the legal recognition of same-sex relationships by the state. Three main, compelling rationales are identified which are rooted in notions of the equality of all persons, the dignity and liberty of individuals to form close personal relationships, and the social benefits of recognizing close, personal relationships of same-sex couples. The second part of this article then turns to consider the manner in which same-sex relationships should be recognized. Four models are identified: a “Partial Rights” model; a “Civil Partnerships” model; a “Marriage Equality” model, and a “Diversity of Relationships” model. Reasons for and against these particular models will be examined. In the conclusion, it shall be argued that the choice of model that has been adopted can be seen to depend on a number of factors: the manner in which equality is conceived in that society; the understanding of same-sex relationships therein, and the religious and cultural opposition to same-sex relationships in that society. The models are also not states of affairs that are fixed for all time and many countries have progressed from less extensive forms of recognition to wider recognition over time. Ultimately, it shall be argued that the rationales underlying the recognition of close personal relationships in the law support the “Marriage Equality” model or the “Diversity of Relationships” model. This article thus seeks to provide an understanding of the rationales and models for recognizing same-sex relationships that have been adopted around the world: Its focus is thus comparative but may, in this way, be useful to lawmakers and advocates for legal reform in this area in China and other jurisdictions around the world.     

论身份关系协议对民法典合同编的参照适用

婚姻、收养、监护等有关身份关系的协议存在"参照适用"民法典合同编的空间。"身份关系协议的性质"是身份法律行为及相应身份权利义务关系所展现出的身份共同体特点,也是"参照适用"时对被引用法条限制或者修正变通的判断标准和解释依归。"身份关系协议的性质"具体包括鼓励缔结婚姻、维护夫妻等身份关系和谐安定、实现夫妻乃至家庭共同利益、养老育幼、未成年子女利益最大化等价值追求。应该区分不同类型的身份关系协议、区分同一类型身份关系协议中不同内容约款、区分身份关系协议的内部效力与外部效力,分别讨论"参照适用"的空间。不能脱离身份关系协议的"整体"来看待忠诚协议、离婚财产分割协议或者夫妻财产约定中的所谓"赠与条款"这个"部分",身份关系协议原则上应该作为一个整体,且形成继续性民事法律关系。     

Regulation of Cohabitation, Changing Family Policies and Social Attitudes: A Discussion of Britain Within Europe

This article considers the differing legal and policy responses to the common trends of family restructuring away from marriage within Britain and Europe. Conceding that Europe is in the process of losing heterosexual marriage as a universal epicenter of family law at the very time when legal harmonization within Europe is being promoted, it goes on to explore the best way forward for regulating same- and different-sex cohabiting couples. It concludes that the legal response to these trends should be "de-moralized" but principled. A plurality of legal regulative structures to accommodate the now diverse family forms that are found within our less marriage-centric societies should be put in place providing at least some default protection for all families, yet allowing people to opt out and make their own arrangements.     

The Hindu marriage system in Bangladesh: addressing discrimination

As a social and legal institution, marriage is recognized in every society and by every faith. The author examines the institution of marriage amongst the Hindu community of Bangladesh. After the independence of Bangladesh, no legislative measure has been taken to address the Hindu marriage system. From a gender as well as a religious perspective, the whole spectrum of Hindu marriage has often been criticised as being discriminatory, particularly towards women. Despite the fact that the Constitution of Bangladesh has clearly abolished all forms of gender and religious discrimination, these provisions are not reflected in reality. As a signatory of various international conventions, Bangladesh is also under an international obligation to materialise the notion of equality in its municipal system. This article analyses the various lacunae of the prevalent Hindu marriage system in Bangladesh and their underlying reasons. It also makes recommendations in order to achieve Bangladesh’s constitutional and international obligations toward gender equality.     

UNTIL DEATH DO US PART? WHY COURTS SHOULD EXPAND PRENUPTIAL AGREEMENTS TO INCLUDE TEN‐YEAR MARRIAGES

It has become apparent that marriage, while still strongly valued by society and government, has become less appealing to Americans as a whole. The changes taking place in society, whether economic or moral, have resulted in married couples becoming the minority in the United States. This decrease demonstrates that there is a need for reform, and that couples need to be provided with new options that will incentivize them to choose this union over cohabitation. This Note will discuss how expanding prenuptial agreements to allow couples to contract to the length of their marriage may help to accomplish that goal. This expansion will give couples the ability to tailor their relationship to fit their individual expectations and quell the reservations commonly associated with formalized relationships. Furthermore, such an expansion would be consistent with current law regulating premarital agreements and would still allow state governments to remain involved in regulation, making it less drastic of a reform than privatization.     

The Tide in Favour of Equality: Same-Sex Marriage in Canada and England and Wales

The tide in favour of legal equality for gay and lesbian individualsand couples continues to roll forward on both sides of the Atlantic.In Canada, the federal Parliament recently passed legislation(the Civil Marriage Act) (CMA) that extends the legal capacityto marry for civil purposes to same-sex couples throughout thecountry. This change in the law was driven not by the executiveand legislative branches of government but by the courts, interpretingand applying the Canadian Charter of Rights and Freedoms (theCharter). On the other side of the Atlantic, in England andWales, the Westminster Parliament in 2004 passed legislation(the Civil Partnership Act) (CPA) that will enable same-sexcouples to obtain legal recognition of their relationships,and to access most of the legal rights and responsibilitiesoffered to married couples. However, unlike the Canadian legislation,civil marriages between same-sex couples will still not be legallyrecognized. This article considers whether the English courtswill also facilitate the legal recognition of same-sex civilmarriage, like their Canadian counterparts. The author concludesthat, in light of recent case law, there is an increasinglystrong argument that the opposite-sex marriage requirement inEngland and Wales violates Article 14 (the equality provision)of the European Convention on Human Rights (ECHR), which isincorporated into UK law by the Human Rights Act, 1998. However,the author also concludes that there are a number of reasonsto be cautious that a positive result would flow, at this point,from a domestic court challenge to the opposite-sex marriagerequirement.     

重复保险法律问题研究

我国《保险法》对重复保险的概念仍应采用广义说,但必须明确体现保险合同的生效期间重合这个要件。没有必要将重复保险适用范围扩及至人身保险。重复保险的通知条款应包含通知的内容、时间、通知义务的例外情形及违反通知义务的法律责任等内容。对重复保险的法律效力针对投保人的主观意图进行区分。对重复保险保险金给付的上限标准应以保险价值为限更为科学。重复保险的损失分担,应采连带赔偿规则,同时应注意重复保险中“合同另有约定”条款的规定及协调。     

The Significance of Marriage: Contrasts between White British and Ethnic Minority Groups in England

It is widely believed that the institution of marriage enhances communal wellbeing, and governments in the United States and the United Kingdom have expressly adopted policies designed to "promote" marriage. These policies, however, are little informed by evidence about how people who marry are using the institution, or how entering or not entering marriage affects people's ideas about the rights and obligations they owe within intimate partnerships. An Oxford study has sought to explore these issues. The study allowed special attention to be paid to the way individuals with differing ethnic backgrounds responded to the investigation, and the current article reveals the results. They show that marriage is used in a variety of ways, and that these uses may vary between ethnic groups. The evidence suggests that the usefulness which people find in marriage may depend on cultural and individual factors that are independent of the goals that government policies seek to promote.     

Political Liberalism, Marriage and the Family

Can and should political liberals recognize and otherwise support legal marriage as a matter of basic justice? In this article, we offer a general account of how political liberals should evaluate the issue of whether the legal recognition of marriage is a matter of basic justice. And, we develop and examine some public reason arguments that, given the fundamental interests of citizens, could justify various forms of legal marriage in some contexts. In particular, in certain conditions, the recognition of some form of legal marriage may be the best way to protect the fundamental interests of women as citizens in freely chosen associations. Or, it may be that, in certain conditions, to secure the social conditions necessary for gays, lesbians and bisexuals to be free and equal citizens, some form of legal marriage can or should be recognized.     

THE “END” OF MARRIAGE*

This article addresses four different meanings of the “end” of marriage. It rejects the broad interpretive assertion that Lawrence v. Texas and Goodridge v. Department of Public Health signal the destruction of the institution of marriage, though both are criticized for politicization and feeble legal analysis. Those decisions have provoked a backlash that may contribute to a rediscovery of and re‐valuation of the importance of the institution of (conjugal) marriage, as passage of state marriage amendments suggests. If Goodridge and Lawrence show that genderless unions are the ultimate form of marriage, they would lead to the end of democratic society as well as of the institution of marriage. The fragmentation of marriage by reduction to functional relationships is myopic. While current developments may make it harder for the institution of marriage to thrive, the institution of marriage is “here to stay.”     

The Sex Right: A Legal History of the Marital Rape Exemption

How did the American legal elite come to reject the husband's privilege to rape his wife. What is the significance of that rejection. This essay traces theories justifying the marital rape exemption from the 17th century, focusing on the period focusing World War II. The history illustrates how the postwar legal elite's limited progressivism created inconsistent arguments that left the exemption open for attack, an attack that came from within the 1970s feminist movement. Radical feminist rhetoric about sexuality, rape, and marriage pulled away the last layer of theoretical support for the exemption and denounced the sex right it left exposed underneath. Connections in the 1970s, both literal and conceptual, between radical feminists and the legal elite allowed the feminist movement to discredit the exemption within that elite. To interpret the significance of that rejection, I consider how legal language affects people's senses of self. I argue that legal words like "rape,""marriage," and "husband" validate and inform people's, specifically husbands', identities in marriage. By changing the meanings of those legal words, legal reform can eventually change human behavior.     

The unmarried couple in post-communist Romania: a qualitative sociological approach

Over the last few decades, ‘new’ contemporary couple relationships have been at the heart of international research on the cultural meanings and reference values that organize life couple nowadays. What is the situation in Romania? After the fall of the communist regime, the rise and development of new forms of couple relationships (other than the legitimate nuclear family that was widely accepted during the former political regime) have become more and more visible. During the transition to a market economy and pluralistic democracy, the development of living together outside marriage and the progressive spread of democratic values, as well as the slow but deep redefinition of the institution of marriage, have been obvious. Yet there have been insufficient efforts in tracking and reporting these transformations. This article presents some results of the first qualitative sociological investigation dedicated to cohabiting unmarried couples in post-communist Romania. In order to have a greater understanding of cohabitation at a macro level, it first focuses on the way cohabitation is presented in the Romanian demographic literature. Second, the analysis is followed by a micro-level study based on qualitative field research conducted in Bucharest with young people living as part of cohabiting opposite-sex couples.     

《婚姻法解释（三）》中有关房产规定的争点问题探讨

婚后父母出资为子女购买不动产的权属界定和婚前一方贷款所购不动产离婚时的处理是《婚姻法解释（三）》所规定的两个引起较大关注和争议的问题。对这两个问题的处理,不能完全根据物权法的原理来作出规定,而应基于婚姻法的价值目标和立法目的,充分考虑到婚姻关系的身份性特征,做到＂法理＂与＂情理＂相结合,从而达到夫妻个人利益与婚姻家庭利益的均衡。     

法人侵权责任能力的理论预设与制度设计——以法人本质理论为线索

我国民法学界以法人实在说承认法人的独立意志为理由,论证了法人承担侵权责任能力的合理基础,继而对拟制说进行批判,而事实上法人承担侵权责任完全是基于特定利益衡量的立法构造,与其意志的有无没有必然的关联。法人的侵权责任是法人机关的侵权责任,从形式逻辑的角度而言,它与法人的工作人员的侵权责任是有本质区别的,但就立法构造而言二者区分并无实际价值,在法人侵权责任具体承担方式上应该采取让法人机关与法人承担连带责任的方式。