Marriage Beyond Procreation - In Search Of a Regulatory Paradigm

Abstract

Today, a conception of marriage that is based on procreation as its central defining feature would be unacceptable to many. In this article, the author does not take any position on this issue. Rather, the focus of this article is to explore the very rationale for the State's involvement in marriage. Drawing on the notion of a paradigm case in philosophy, it is argued that it is procreation in a comprehensive sense, as it happens in the real world - a fairly long gestation period, the process of birth and a fairly long period of the offspring's dependency on adult support - that provides a coherent and compelling regulatory paradigm case for the State recognition and regulation of marriage. For this purpose, the author has analysed the content of current "marriage law" and offer a thought experiment regarding procreation. Based on this, it has been demonstrated that if the conception of marriage is extended beyond the context of procreation, the case for the State's recognition and regulation of marriage can no longer be supported - in particular, its prohibition on multi-person and polygamous marriages. Consequently, if continued State involvement in marriage is still advocated, it can only be done based on the articulation of an alternative regulatory paradigm. No such proposal is currently on offer, leaving the issue in a state of regulatory paradigmatic limbo.