Should marriage be privatised?

Reason, Cato’s David Boaz, and the Austrian Economists all link to a fascinating article in the New York Times about the privatisation of marriage. The article’s author — a historian — asks why people need the permission of the state to marry.

For most of Western history, they didn’t, because marriage was a private contract between two families. The parents’ agreement to the match, not the approval of church or state, was what confirmed its validity.

For 16 centuries, Christianity also defined the validity of a marriage on the basis of a couple’s wishes. If two people claimed they had exchanged marital vows — even out alone by the haystack — the Catholic Church accepted that they were validly married.

The view of marriage as a private contract between individuals is very similar to the Islamic conception of marriage which, like a conventional contract, consists of an offer, acceptance and, I suppose, consideration (in the form of mahr etc).

The privatisation of marriage is usually discussed in the context of same-sex marriage but it also has ramifications for Muslims. If marriage was simply a contract, the parties could define whatever terms and conditions they wished — describing, for example, how divorce would be handled, how property would be split, how disputes would be judged, and so forth. In the case of Muslims, this might be in accordance to the shariah rulings on these matters; or, in the case of others, it might be based upon pre-nuptial negotiation with the conditions individually tailored.