Before exploring some common rationales, it is worth noting thatcritics of the social contract model of the state and of freedom ofcontract have used the example of marriage against contractualprinciples. First, Marxists have argued that freedom of contract iscompatible with exploitation and oppression—and Marxistfeminists have taken marriage as a special example, arguing againstcontractualizing it on these grounds (Pateman 1988,162–188). Such points, as we will see, suggest the need forrules governing property division on divorce. Second, communitarianshave argued that contractual relations are inferior to thosecharacterized by trust and affection—again, using marriage as aspecial example (Sandel 1982, 31–35, cf. Hegel 1821, §75,§161A). This objection applies not only to contractualizingmarriage, but more generally, to treating it as a case for applicationof principles of justice: the concern is that a rights-basedperspective will undermine the morally superior affection betweenfamily members, importing considerations of individual desert whichalienate family members from their previous unselfish identificationwith the whole (Sandel 1982, 31–35). However, although marriagesare not merely an exchange of rights, spousal rights protect spouses'interests when affection fails; given the existence of abuse andeconomic inequality within marriage, these rights are especiallyimportant for protecting individuals within, and after, marriage(Kleingeld 1998, Shanley 2004, 3–30, Waldron 1988).


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