Vol. 10 No. 4 (May 2000) pp. 298-300.
ALONE TOGETHER: LAW AND THE MEANINGS OF MARRIAGE by Milton C. Regan, Jr. New York: Oxford University Press, 1999. 296 pp.
Reviewed by Rebecca Mae Salokar, Department of Political Science, Florida International University.
Marriage - shared happiness and intimacy, fondness, warmth and partnership or a lifelong burden, shared crises, responsibilities and self-imposed restrictions on personal liberty? The mere utterance of the word "marriage" evokes a range of emotions and thoughts from those who have experienced it, from those who desire it, and from those who would rather avoid this civil and religious arrangement that remains entrenched in contemporary society. However, all would agree that marriage as an institution has changed over the past 30 to 40 years. And, if Vermont's civil union law is any indication, change in this field will be the watchword of the new millennium.
How the contemporary marital relationship is addressed in our legal fora is the focus of ALONE TOGETHER by Professor Milton C. Regan, Jr. In a well-documented text, Professor Regan explicates the theoretical underpinnings of modern marriage, provides a framework for understanding the inherent tensions of the contemporary marital arrangement. He then uses that framework to examine three areas of law. Organized into four parts of two chapters each and a conclusion, the author walks the reader through the wealth of existing research-social, political, legal, and economic - on family law including works from feminist theory, rational choice, and jurisprudential texts as well as mainstream liberal and communitarian literature. If a student wanted an introduction to the issues and dilemmas imbued in family and marital law, this book would provide an excellent summative source. However, be forewarned. It is not an easy read for those unfamiliar with the territory.
Professor Regan sketches out the dilemma of modern marriage and the complexities that this relationship poses for the law early in his first chapter. He asks whether a wife should be permitted, prohibited or alternatively, required by the state, to testify against her husband when her own personal interests are at stake. At the root of the question is whether one can fit the notion of marital obligations and responsibilities to a communal relationship within the liberal paradigm of the self? The answer for Regan is no. And rather than force two "fundamentally different orientations that are irreducible to one another" (p. 5), he argues for adopting an analytical framework that allows for both an "external" stance (the liberal or self-interested position) and "internal" stance (the communal or associational identity) to the marital relationship. These opposing positions must both be recognized and considered contextually, he posits, in the application of law to marital controversies (p. 30).
Invoking this analytical framework,
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Professor Regan then examines three areas of the law and explores how the internal/external typology can both enrich our understanding of legal development to date and suggest directions for legal change. Part II focuses on how economic theory, specifically the rational choice model, has been utilized not only to describe marriage as a contract and consensual arrangement by individuals whose decisions can be cast in the cost/benefit model of the market paradigm, but how the legal dissolution of that contract has also been imbued with the liberal or individuated perspective. Exposing the implications of economic theory in the context of divorce law, Regan argues that the external perspective can provide some insight to the nature of marriage. However, it is also limited in its explanation of the relationship and cannot fully account for the richness of the prosocial nature or internal stance implicit in a marriage.
In Part III, Regan examines a different facet of our law with respect to marriage. Marital or spousal privilege has long provided couples a safe place within marriage where no court or state could reach. Historically, this privilege was found in two aspects of common law - the privacy of confidential spousal communication and the protection against adverse testimony by a spouse. In these chapters, Regan grapples with legal concepts that are historically rooted in the "internal" or communitarian perspective of marriage. He attempts to understand contemporary changes in these laws as a function of the cultural shifts affecting marriage.
Divorce is once again the theme with the focus on the property awards made as a result of a marital dissolution in Part IV. The changes in divorce settlement law, according to Regan, are examples of a transition from what was once an internal perspective by the courts to an external stance found in the development of the no-fault divorce. The employment of property rhetoric, the language of investments and disbursements, in the marital arrangement not only fails to fully recognize the contributions of both partners, but also seriously undermines the ability of a court to provide economic justice to both parties at the time of divorce. Traditionally, as the literature suggests, women are not fully recognized by the courts for their contribution to the marriage. They are habitually the "losing" party in divorce settlements. Regan recognizes an alternative "rhetoric" where courts view marriage within the framework that accounts for both the internal and external stances of its participants, and provide a remedy that transitions the parties from a communal relationship to an individual one.
I found the conclusion to be the most original and concrete thinking imbedded in ALONE TOGETHER. Here Regan explicitly recognizes the interplay between culture and law. He moves beyond the theoretical machinations about the marital relationship to its implications for issues like child custody, the gendered nature of marriages and divorces, and the preservation of the marital relationship from state intrusion. How the internal-external framework can address these other complex issues will certainly prove to be fodder for a future work by Regan or a graduate student. However, ALONE TOGETHER successfully sketches out a paradigm that encompasses the rich literature on family law by recognizing the core dilemma inherent in the marital relationship.
When I agreed to review this book
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the Vermont courts had just ruled that its state government must address the inequities imposed by the traditional definition of marriage as only between a man and a woman. As a lesbian who never expected to experience marriage in legal terms, I delved into ALONE TOGETHER expecting an education on the legal aspects of civil matrimony. What I came away with is a rich understanding not only of marriage as an institution within the legal arena, but also of intimate relationships more generally. Although formal marriage might be grounded ineligious practices and civil history, the internal/external framework posited by Professor Regan can be applied to intimate relationships of all kinds. And, the real test for states like Vermont will be whether they can break with the associated pitfalls of family law identified in ALONE TOGETHER to develop new approaches to resolving the controversies that arise in intimate relationships.
Besides an audience in the arena of family law, ALONE TOGETHER should be of interest to those engaged in economic
theory, liberal and communitarian theory as well as those studying the interaction of law and culture.