The tradition of professionalism is absent in the ABA's recommendations to improve the well-being of lawyers.
There is ample evidence to suggest that marriage and the family are ailing, with adverse consequences for children. Today about forty percent of children in the US are born to unwed mothers. About half of all first marriages end in divorce. Such divorces take a great toll on children. Less than 10 percent of married couples with children are poor, while about 40 percent of single-parent households are poor. Children growing up in single-parent families are three times more likely to have learning and behavioral problems. Merely growing up with two parents does not guarantee a comfortable and nurturing childhood, but it does confer great advantages, even after correcting for income.
Many factors underlie the current state of marriage in the US. I believe that one of the most important stems from a change in our understanding of the nature of marriage. Put simply, do we regard marriage as a contract or a covenant? To get married today, you merely need to obtain a license and solemnize the union before a licensed official. No waiting period is prescribed, there is no requirement for a public declaration or celebration, and others, including the parents and family of the bride and groom, need not even be notified. Should the parties wish to protect their assets, they can execute a prenuptial agreement, and to terminate the contract, they can take advantage of no-fault divorce laws, through which a court will ensure an appropriate division of marital property.
Once marriage comes to be regarded primarily as a contract, its fate is sealed. Contract law is grounded in such principles as offer and acceptance, consideration in the form of goods and services, and mutual intent. On this account, marriage can be regarded largely as a piece of paper whose terms the parties abide by only so long as each derives sufficient benefit from the other. As a potential contractor thinking about whether to get married, I might weigh some highly practical considerations, such as: would my would-be spouse enrich my bank account, my career, my reputation, my health, and my bed sufficiently to warrant the sacrifice of freedom it would entail?
In one of the greatest short stories ever composed, Leo Tolstoy’s “The Death of Ivan Ilyich,” the title character, a successful judge, weighs the decision whether to marry in just such terms:
Ivan Ilyich said to himself, “Really, why shouldn’t I marry?” [She] came of a good family, was not bad looking, and had some little property. Ivan Ilyich might have aspired to a more brilliant match, but even this was good. He had his salary, and she, he hoped, would have an equal income. She was well connected, and was a sweet, pretty, and thoroughly correct young woman. To say that Ivan Ilyich married because he fell in love with [her] and found that she sympathized with his views of life would be as incorrect as to say that he married because his social circle approved of the match. He was swayed by both these considerations: the marriage gave him personal satisfaction, and at the same time it was considered the right thing by the most highly placed of his associates. So Ivan Ilyich got married.
As one might expect based on such a prologue, Ivan Ilyich’s marriage does not turn out well. He sees marriage as a matter of his own pleasure and convenience. He is focused not on what he would bring to the union or how he and his spouse might grow together, but how the marriage might advance his own objectives. He has no desire to see matters from his wife’s perspective, to enter into her experience of their shared life, or to sacrifice any part of his life for her welfare. He expects her to function as an appendage of himself, and when this does not happen, trouble begins to brew. Before long, Ivan Ilyich and his wife spend most of their time avoiding and despising one another.
Of course, changing the laws and customs around marriage would not necessarily prevent or remedy such bad unions. Human beings are, after all, human, and just as people fall into love they can fall out of love. Some marriages undoubtedly do represent genuine mismatches, contributing nothing to anyone’s happiness or flourishing. Yet the way we understand marriage, how we prepare for it, and how we conduct it once we are married have a powerful effect on to whom, where, when, how and above all why we get and stay married. Ignorance and misunderstanding can take a great toll. To reduce prospects for failure and promote better marriages, we need a better vision of marriage than contract.
Covenant is such a vision. It differs from contract in several important senses. For one, contract comes from Latin roots meaning to draw together with. To contract implies that two or more people are being bound by something without which they would not necessarily join. The contract itself could be seen as a rope or cord that binds them. By contrast, covenant’s etymology comes from roots meaning to come together. Covenant, in other words, suggests that the two parties belong together, that it is somehow in their nature or appropriate in some larger context for them to join. A contract implies that both parties could get along separately, but a covenant implies that they are made for one another.
Contract requires some consideration, some incentive to enter into the agreement. In addition to goods and services, such consideration might include actions, such as protecting and caring for another person. But each party expects something from another, which is the reason they are entering into the arrangement. By contrast, a covenant does not imply any specified performance. Covenants are fundamentally priceless. Moreover, a covenant is not about compensation drawn from wealth or property accumulated in the past but the promise of a transformative good to come that could not be realized if the two parties remained separate from one another.
Contracts assume that the parties can remain as they are abiding by their terms as they go forward. But a covenant assumes that they will undergo growth and development. The covenant will provide the context for a transformation in their identity through the relationship. For example, one of the covenants in the Book of Genesis provides that humankind will be fruitful and multiply, invoking the responsibilities of marriage and parenthood into which each spouse and parent is called to grow. Another, to assume dominion over the earth, implies taking on the responsibilities of a steward, not merely to exploit but to tend and care for creation.
No one can enter into a covenant without experiencing a call to grow and develop into a different person. We might say that contracts are performative, while covenants are both formative and transformative. We become adults in part by assuming the responsibility of adults, and the same goes for marriage and parenthood. To get married or become a parent without experiencing any change in who one is or what one aspires to is to find oneself in the predicament of Ivan Ilyich, whose lack of growth and development as a human being amount to a kind of death.
Those who enter a covenant do so not merely for a specified period of time but for their whole lives, as well as the lives of their predecessors and offspring. This helps to explain why the Book of Genesis contains so many genealogies—what happens in the time of Adam and Eve, Noah, and Abraham and Sarah includes their parents and grandparents, their children and grandchildren. A covenant, in other words, is bigger than any one person. It would be truer to say that each human life takes on meaning and significance through the covenants in which it is situated than to say that any one person chooses to enter into a covenant.
These features of covenants help to explain the qualitative difference between marriage viewed as a contract and marriage understood as a covenant. For one thing, men and women are naturally attracted to one another. We do not need an inducement to get human beings to take an interest in one another, an interest which runs the gamut from delight in looking at one another to imagining what it would be like to talk, embrace, and perhaps even share a life together. In the Biblical context, God created humankind as man and woman, implying that two different kinds of human beings are necessary to complete the picture. Our longings testify to this complementarity.
It is in fact through leaving their parents and “becoming one flesh” that human beings attain a new degree of wholeness, reminiscent of the account of love in Plato’s “Symposium.” There Aristophanes describes halved creatures who desperately long to reunite with their counterparts. Basic biological functions such as procreation and survival of the species are not possible if men and women do not join, but neither are covenants such as marriage and parenthood. We need such covenants not just to survive but also to flourish, for it is not only in keeping but also in making promises that we become fully aware and responsible human beings.
Consider another tale of marriage badly misunderstood, Shakespeare’s “Romeo and Juliet.” Today it is common to regard the two star-crossed lovers as one of the highest expressions of romantic love. The title characters are teenagers who have known each other for but a single night. They experience life in the immediacy of the moment, over hours and days, as opposed to more mature perspectives, which think in terms of years and lifetimes. They think not of what would be good for their families, their community, or their faith, but strictly about their own passions and the storybook life they imagine for themselves. To commit to one another, they suppose, they must renounce everything.
“Romeo and Juliet” has long and rightly been known as a tragedy, but perhaps for the wrong reasons. The central problem is not that social conditions prevent the happy union of the two lovers. It is instead that the two lovers seem to lack a serious understanding of the covenantal nature of marriage. They think marriage is all about them, supposing that they are at the center of the universe’s orbit, and that they can somehow detach themselves from other responsibilities. In fact, however, their youthful understanding of love is both incomplete and immature. They fail to understand that marriage is less about the fulfillment of desire than its education, and in this they betray its fundamentally covenantal character.