Regulation of Marriage in Light of Freedom to Contract: A Rabbinic Perspective

This paper addresses the fundamental question of marriage: status or contract? American law evolved from British common law, which, in turn, had its origins in Catholic law—a status-based system where the power to marry was vested in the church. However, in recent history, American law has shifted towards increased freedom to contract in marriages. Despite the clear positive motivators for such a shift, taking the freedom to contract to its logical extreme could threaten the integrity of marriage as an institution of commitment. The Rabbinic system provides guidance to the American system on this issue. Despite a commitment to a contractual framework, Rabbinic marriage maintains a distinct character of marriage, preserved by the marital finance contract, distinguishing it from mere cohabitation contracts. Similar categorial contract distinctions exist in American law. Therefore, American law has the opportunity, and impetus, to set marriage as a distinct option within a menu of alternatives in structuring relationships.