Wedding a Critical Legal Pluralism to the Laws of Close Personal Adult Relationships

Abstract

Among private lawyers trained in Western European or Western European-derived legal traditions there is broad consensus about the central features of law. This consensus crystallizes around the features that distinguish law from other normative systems (exogenous criteria of identification), and around the features that distinguish Western European law from other legal orders (endogenous criteria of identification). This paper presents alternatives to both orthodoxies: it adopts a legal pluralist conception of normativity itself, rejecting the tenets of monism, centralism, positivism and prescriptivism that together define conventional conceptions of law’s domain (law’s sites); and it adopts a legal pluralist conception of legal normativity in particular, rejecting both institutionalization and formalization as litmus tests for identifying legal rules (law’s modes). As a ground for exploring the legal pluralist heresy we have chosen a central concept of private law – marriage. Consistently with critical legal pluralist methodology, which emphasizes heterogeneity, flux and dissonance in the normative lives of human agents and which is especially attuned to trajectories of internormativity, we organize this inquiry around (and in counterpoint to) the liturgical form of the Roman Catholic wedding ceremony. Ultimately what is heresy in one normative order may be apostasy in another; and what is apostasy in one may be revelation in a third. In a legal pluralist cosmology, eschatological questions are always present and must always be subject to attornment because they can themselves never be finally decided.