S1316 The Formation of Marriage: Interaction of Law, Culture and Religion
Coester Michael
The course will deal with central aspects of marriage from a comparative perspective. The perspective will be vertically comparative insofar, as the historical development and attitudes to each aspect will be analyzed. In addition, the horizontal comparison will concentrate on different attitudes, models and rules in the contemporary world. It is the goal of the course to introduce to the students the common models of regulation of marriage all over the world and to make them aware of the inevitable interdependence of law, culture and religion in this field.
(The literature referred to in the reading assignments is cited in abbreviated form; for full citations see “Bibliography”)
1. week:
I. Introduction
1. The importance of marriage in contemporary societies
2. Importance and function of formation of marriage
3. Formation of marriage as a course subject
II. The power of decision making
1. Introduction
( Reading assignments: Glendon, Transformation 1-18; Glendon, Marriage 664-667; Cretney, History 35-37; Coester, Ency. 3-4 (Nr.1-2); 104-107 (Nr.161-167)
2. State v. Religions
a) The concept of marriage in various religions
b) The struggle for competence
( Reading assignments: Glendon, Transformation 19-34; Coester, Ency. 4-10 (Nr. 3-14); Witte 1-15, 134-140)
2. week:
3. State v. Families
4. Families v. Spouses
III. Especially: The freedom to marry
1. History
(Reading assignments: Coester, Ency. 7, 13 (Nr.18), 15-26 (Nr.24-35); Glendon, Transformation 75-84; Witte 23, 36, 209-215)
3. week:
2. Contemporary models and principles
a) Personal consent of both spouses as foundation pillar of marriage
b) Parental consent
c) Representation of one or both spouses
( Reading assignments: Witte 51-61; Ebrahimi, ISFL 2005, 322-325; Cretney, Principles 1.003; Cretney, History 63; Coester, Ency. 80-84 (Nr.129-134))
4. week:
3. The clash of cultures in times of globalisation and mass migration
a) Forced marriage
b) Dowry: Bridewealth or sale of the women?
( Reading assignments: Lee v. Lee, 3 SW2d 672 (1928); Cretney, Principles 2-043 to 2-045,Welstaed, ISFL 2007, 74-76; Sutherland, ISFL 2009, 410-411; Palmer, ISFL 2005, 180-184; Ebrahimi, ISFL 2005, 330-333; Malhotra ISFL 2007, 106,115-116)
5. week:
IV. Control at the gateway to marriage
A. Marriage impediments - general observations
B. Who may marry?
1. Age
a) Minimum age
b) Maximum age
c) Postmortal marriage
( Reading assignments: Glendon, Marriage 682-684; Cretney, History 57-62; UNICEF-Declaration on child marriage, 2006; Saldeen, ISFL 2006, 440-441; Coester, Ency. 15-20 (Nr.24-29), 24-25 (Nr.35), 26-29 (Nr. 37-38))
6. week:
2. Mental capacity
3. State of health
4. Marriageable status
a) Existing marriage bond
b) Effects of former marriage
c) Status of celibacy
( Reading assignments: Coester, Ency. 39-47 (Nr.54-69); Glendon, Marriage 672-675; Witte 17-20, 48-52; Ebrahimi, ISFL 2005, 336)
7. week: Presentation and discussion of student papers (mid-term exam)
8. week:
C. Restrictions on the choice of partner: Who may marry whom?
1. General observations
2. Consanguinity
3. In-law-relatives (affinity)
4. Social relationships
5. Differences between the partners ( religion, race, gender)
( Reading assignments: Glendon, Marriage 675-676; Cretney, History 41-46; Malhotra, ISFL 2007, 106-109; Loving v. Virginia, 388 U.S. 1 (1967);Coester, Ency. 60-62 (Nr.91-93); Ebrahimi, ISFL 2005, 334)
9. week:
V. Polygamy
1. Terminology and social phenomena
2. History
3. Contemporary observations
a) Contra and pro polygamy
b) Recognition of polygamous marriages in monogamous systems
c) Escape devices in multicultural states
(Reading assignments: Glendon, Marriage 672-675; Cleveland v. US, 329 U.S.14 (1946); Ebrahimi, ISFL 2005, 341-352; Bailey, ISFL 2007, 56-61; Sinclair, Family Life 826-837.
Suggested readings: Malhotra, ISFL 2004, 196-203; Canadian Report “Polygyny”, 2006)
10. week:
VI. Marriage Ceremony
1. Preliminary control
a) Basic idea and subject of control
b) Health issues
c) Sham marriages
d) Mechanisms of control
- Traditional means
- Preliminary state control
- Registration: the transformation into legal marriage
(Reading assignments: Glendon, Marriage 677-680; Wade, Modern L.Rev. 45 (1982) 159-178; Coester, Ency. 64-69 (Nr. 96-104).
Suggested readings: Sinclair, Family Life 819-833; Palmer, ISFL 2005, 178-184)
11. week:
2. Marriage ceremony and rites
a) Function; basic elements and principles
b) Secular marriage
c) Religious marriage
( Reading assignments: Glendon, Transformation 71-75; Witte 30-41, 56-61; Cretney, Principles 1-005, 1-043; suggested: Shire Mazal Tov! 30-62)
12. week:
d) Dualism of civil and religious forms of marriage
(suggested reading: Charlsley, Rites 115-138)
e) Private marriage formation and religious background (Islam, Japan, China, customary marriage )
(suggested readings: Biggs, Maori Marriage 85-90; Sinclair, ISFL 2008,
402; Hinz, ISFL 2009, 316-320)
f) Informal marriage
-Historical roots
- Problems
- Conflicts between form and substance
g) De-facto marriage
VII. Consequences of defective marriage
1. Usual system
2. Annulment or divorce?
( Reading assignments: Coester, Ency. 76-80 (Nr.121-128), 111-112 (Nr.172-174); Ebrahimi, ISFL 2005, 322-325; Palmer, ISFL 2005, 173-184; Atkin,ISFL 2007, 217-225.
Suggested readings: Krause, Family Law 54-57, 61-63; Crotty, Family Life 59-63; Cretney, History 4-7; Sutherland, ISFL 2009, 412-413;Noor, ISFL 2007, 198-199; Coester, Ency. 72-74 (Nr. 115), 101-102(Nr. 159); Verdier, Ency 89-127; Sinclair, Family Life 819-825, 833-837)
Evaluation
1. Mid-term exam ( last week of March): Each student will have to write a take-home paper ( essay, approximately 5-6 pages) on a selected issue dealt with in class. The subject of the papers will be communicated to each student on Monday/Tuesday, March 11/12 ; the students will have to deliver their papers on Monday/Tuesday, March 25/26, and give presentations of their papers in the same week. The subject of the papers will depend on the number and the background of students enrolled in class. The grades will count 40% of the overall grade.
2. Final exam (exam week): Written in-class ( open book) exam, covering central problems of the course subject (60% of the overall grade).
Readings
The texts selected as reading assignments are taken from a large number of books, articles, and court decisions. As to the reading assignments, see “Syllabus” and “ Teaching methods”. The following bibliography presents only a selection of the material used in class; it is essentially limited to books of primary importance for the course subject - in general or with regard to specific issues.
Bailey/Kaufman, Polygamy in the Monogamous World (2010)
Beckwith, African ceremonies (Vol.1), 1999
Briggs, Maori marriage (1966)
Charsley, Rites of marrying: the wedding industry in Scotland (1991)
Coester-Waltjen/Coester, Formation of Marriage, in: International Encyclopedia of Comparative Law, Vol. IV: Persons and Family (ed. M.A.Glendon), Chap.3 (abbreviated cit.: “Coester, Ency.”)
Combs-Schilling, Sacred Performances: Islam, Sexuality, and Sacrifice (1989)
Cook/Kelly, Polygyny and Canada´s Obligations under the Human Rights Law (2006)
Cretney, Principles of family law (6th ed. 2003)
( abbreviated cit.: “Cretney, Principles”)
Cretney, Family law in the 20th century. A history (2005) (“Cretney, Hist.”)
Davis, Chinese families in the post-Mao era (1993)
Ebrahimi, Marriage law of Iran under Islamic perspectives, in: The international Survey of Family Law (“ISFL”) 2005, 315 – 352
El Alami, Islamic marriage and divorce laws of the arabic world (1996)
Glendon, Marriage and the State: The Withering away of Marriage, Virginia L.Rev. 62 (1976) 663 – 720 (“Glendon, Marriage”)
Glendon, The new Family and the new Property (1981)(“ Glendon, New family”)
Glendon, The Transformation of Family Law. State, Law and Family in the United States and Western Europe (1989) (“ Glendon, Transformation”)
Goldstein-Goldoni, Packaged Japaneseness: weddings, business and brides (1997)
International Encyclopedia of Comparative Law, Vol. IV: Persons and Family (ed. M.A.Glendon), Chap.11: The Family in Religious and Customary Laws (1997) ( with articles by Anderson ( Islamic family Law), Derret-Iyer(Hindu Family law), Falk ( Jewish family Law), Neuhaus ( Christian family Law), Verdier ( Customary family Law) (cited “Anderson, Ency.”, etc)
International Survey of Family Law (ed. Atkin), 1996 – 2009 (“ISFL”)
Jellison, It's our day (2008)
Kaufmann, Love, Marriage and Family in Jewish law and tradition (1992)
Kendall, Getting married in Korea: Of Gender, Morality, and Ceremony (1996)
McCarthy, Marriage in Medieval England (2004)
Sakai, Hindu Marriage Samshara (1993)
Shire, Mazal tov! The rituals and customs of a Jewish wedding (2002)
Turner, Australian aboriginal social organization (1980)
Witte, From Sacrament to Contract. Marriage, Religion, and Law in the Western Tradition (1997) (“Witte”).