Shahar Lifshitz

The Pluralistic Vision of Marriage

In what manner should the state design spousal institutions and affect the choice spouses make between these institutions? The existing legal discourse is polarized between two opposite approaches to this question: one supporting public channeling, the other preferring private neutrality.The public-channeling approach is based on a monolithic-perfectionist philosophy that posits the state’s authority and duty to foster certain ways of life and prefer them over others. The application of this approach in the spousal context means that the regulation of spousal relationships should be based mainly on public interests and shared moral values. The public-channeling approach perceives marriage as a public institution and stresses the state’s role in channeling spouses into traditional, legal marriage.In contrast, the private-neutral approach is based on a liberal-neutralist philosophy. According to this view, the liberal state must adhere to a neutral approach toward various lifestyles and refrain from preferring one over another. The application of this approach to spousal law means that the state must respect the spousal patterns selected by the parties and is not to channel spouses toward any specific spousal pattern. In its radical versions, this approach seeks to abolish marriage as a legal institution, or at the very least to replace the perception of marriage as a public institution with a contractual account of marriage.Unconvinced by either approach, this chapter lays out the foundation for a new model – the pluralistic model. This approach is based on perfectionist liberal philosophy that emphasizes the inherent value of pluralism as well as its role in enhancing individual autonomy. It underscores the idea that individual autonomy means not only the absence of formal limitations on individuals’ choices, but also the existence of a range of plausible options. In light of the values of autonomy and pluralism, modern liberal approaches emphasize the duty of the liberal state to create a diversity of social institutions that enable the individual to make genuine and meaningful choices among various alternatives. This chapter argues that in the spousal realm, the pluralistic approach posits an alternative to both the private-neutrality and the public-channeling approach. On the one hand, similar to the public approach, the pluralistic approach rejects the pure, private vision of marriage and insists on the active role of the state in the design of marriage as well as alternative spousal institutions. On the other hand, in contrast to the collective, social, and often traditionalist moral values that guide the public approach, this approach seeks to design spousal institutions in light of the liberal values of pluralism and autonomy. Furthermore, whereas the public approach seeks to channel people toward one social institution (e.g., traditional marriage), the pluralistic approach requires the state to contribute to the creation of a diversity of valuable spousal patterns that will offer spouses a meaningful choice between the different possibilities.This chapter explores the pluralistic approach by discussing three publicly debated topics: (1) the regulation of cohabitation relationships; (2) the legitimacy of legal privileges for civil marriage; and (3) the judicial acknowledgment of alternative marriage systems to conventional marriage, such as religious marriage or covenant marriage. Finally, this chapter discusses Israel’s supposedly pluralistic system of spousal institutions. This case study sheds light on the risks inherent in adopting the pluralistic model without implementing the limitations and criteria that will be recommended in the present chapter.

Blinding the Law: The Potential Virtue of Legal Uncertainty∗

In legal scholarship, it is almost self-evident that “certainty” is an advantage for regulation. “Uncertainty,” on the other hand, is usually viewed as an inevitable by-product of vague legal standards that may be justified by the prohibitive cost of creating bright-line rules or by the inability of the legislature to account ex ante for the complexity of a particular situation. This article challenges the conventional view and proclaims the advantages of legal uncertainty.In legal scholarship, it is almost self-evident that “certainty” is an advantage for regulation. “Uncertainty,” on the other hand, is usually viewed as an inevitable by-product of vague legal standards that may be justified by the prohibitive cost of creating bright-line rules or by the inability of the legislature to account ex ante for the complexity of a particular situation. This article challenges the conventional view and proclaims the advantages of legal uncertainty. It recognizes some of the drawbacks that may arise due to uncertainty and hence illustrates several refinements and limitations regarding the use of a “veil of uncertainty” mechanism to improve its potential benefits for lawmakers.

Marriage Against Their Will

This article addresses the regulatory regime governing the relationships between unmarried cohabitants. In the article I challenge the conventional divide between conservative and liberal approaches: on one hand, moral condemnation of non-marital conjugal relationships and public policy in favor of marriage lead conservatives to reject the application of marriage law to cohabitating partners. On the other hand, drawing on principles of freedom, tolerance and equality, liberals tend to equate the mutual legal commitments of cohabitants with those of married partners. I break with conventional analysis by offering a novel liberal model that separates between the mutual obligations of cohabitants and married partners. The proposed model is based on a pluralist constitutional theory that underscores the responsibility of the liberal state to create a range of social institutions that offer meaningful choices to individuals. The article thus argues that the law should develop two distinctive legal regimes-one for marriage and another for cohabitation - and provide couples with substantive freedom to choose between them. The article offers arguments rooted in morality and efficiency to support the proposed bipolar default systems and the role of marriage as screening mechanism. It further delineates the refinements and limitations necessary to address liberal objections to the distinction between marriage and cohabitation within the pluralist approach. Hence, the article offers a detailed and comprehensive legal model that unlike existing all-or-nothing approaches, selectively applies marriage law to cohabitation and distinguishes between different types of cohabitants.The article further illustrates how the pluralist theory goes well beyond standard cohabitation law to provide a framework for an innovative spousal relationship regulation. It demonstrates the potential contribution of such a framework by analyzing three publicly disputed topics: same-sex marriage and civil unions; covenant marriage; and secular regulation of religious marriage.