Grossi-Law, Love and Marriage

ANU Press
Chapter Title: Conclusion: Law, Love and Marriage
Book Title: Looking for Love in the Legal Discourse of Marriage

Book Author(s): Renata Grossi
Published by: ANU Press. (2014)
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5. Conclusion: Law, Love and
Marriage
Despite sustained criticism, love has remained a central discourse in western
societies. Marriage, despite looking at times like becoming obsolete, has proven
itself to be an entrenched and powerful social institution. This book has tested
the extent to which these two concepts interact with each other within the
ambit of a third powerful institution: law. In the process, this book has said
something about law, about love, and about marriage.
Law
This book challenges the understanding we have of law. Thinking about law and
love has important consequences for thinking about the relationship between
reason and emotion in public life, and, in turn, thinking about the role that
emotion plays in law. Law and emotion scholarship asserts that emotions are
important for public life and for law, informing both theory and practice. This
book has adopted this position and tested it in relation to the legal discourse of
marriage, showing how such an analysis can lead to a better understanding of
the legal institution of marriage.
The dominant paradigm of law stems from positivism. Positivism removes
emotion from law in rejecting morality and rights as irrelevant, embracing a
scientific paradigm and exalting and striving for objectivity above all else.
However, positivism’s view of law has been challenged by critical approaches
which have made ‘space’ for emotion as a result of a number of central assertions
about law.
Critical jurisprudence has insinuated emotion in law through a number of
challenges. Critical jurisprudence scholarship has challenged the idea that law
is and can be objective by claiming instead that law is political (CLS), sexist
(feminism), racist (CRT), and heteronormative (queer). Critical jurisprudence
has challenged the idea that objectivity is required for the legitimacy of law
and has argued instead that objectivity is the law’s downfall (CLS). Critical
jurisprudence has also legitimated emotion by arguing against the public and
private divide (feminism) and by legitimating the subject of law and storytelling
(feminism, CRT, queer and post-modern). Finally, emotion is legitimated by
critical jurisprudence via its rejection of a unitary and metaphysical paradigm
of law (postmodernism, CLS). Despite the achievements of critical jurisprudence
and law and emotion scholarship, law is still considered to be separate from
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Looking for Love in the Legal Discourse of Marriage
emotions generally, and from love even more so. This view impoverishes
our understanding of law in general and its specific enterprises, such as the
regulation and construction of marriage.
Love
The idea of love has existed at least since classical times. Its importance in
everyday life grew under the influence of Christianity, during the courtly period,
and the romantic period. Christianity raised the idea of love to something divine.
The courtly tradition began a process of equating it with freedom, personal
happiness and sexual satisfaction. These ideas were spread to the masses during
the romantic period, and today we can speak of love as being a reason for life
itself. Equality, freedom, agency, progress, enlightenment and humanism are all
words used in this book in association with love. Love has come to symbolise
the opposite of power and control; a society based on love is assumed to be a
more free and humane one. These features of love make it an interesting partner
for marriage, which has more often had the opposite associations. However, love
is not without its critics. While many have sung love’s praises, it has also been
described as a ‘modern monster’ which ‘fails to satisfy’ and ‘easily turns into a
destructive force’.1 Moreover, the assumption that love will make our society a
more humane one is disputed.
Feminists have seen love as oppressive, a vehicle by which women are enslaved
in relationships of domesticity and dependence.2 Love’s problem lies in the
extrinsic environment in which it is played out: the institution of marriage,
patriarchy, the private and public division, and its association with sex all
contribute to make love a ‘curse’ for women.3 However, to acknowledge these
extrinsic factors is not to let love itself off the hook. Intrinsically love’s own logic
of self-satisfaction and self-government are destructive. Its ideology is circular,
chaotic and unruly:4 love itself is therefore a problem.
For queer theorists, love’s extrinsic ‘problem’ is heterosexuality. Love is
understood as embodying heterosexual rituals and scripts of domesticity and, as
such, excludes same-sex relationships.5 In this way, queer theorists are challenging
the rhetoric of romantic love which claims that love breaks down barriers. In
fact, their critique is that love is not romantic enough because it excludes ‘non-
heterosexual’ love. Furthermore, love itself is mostly understood as a physical and
1 Beck & Beck-Gernsheim, cited by C Smart, Personal Life (Polity Press, Cambridge 2007) 62.
2 See the arguments made by De Beauvoir, Firestone, Smart, Freidman and Langford discussed earlier.
3 De Beauvoir, The Second Sex trans H M Parshley (Alfred A Knopf, New York 1953) 669.
4 See W. Langford, Revolutions of the Heart: Gender, Power and the Delusions of Love (Routledge, London 1999).
5 See Calhoun and Johnson, discussed earlier.
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5. Conclusion: Law, Love and Marriage
natural feeling, as a ‘merging’ with another, our other half,6 as a means to attain
goodness, or a supernatural, mythical feeling. In these ways it is understood as
being embedded in discourses of merger and of nature. This discourse inevitably
becomes linked to stereotypical gender roles and to heterosexuality.
The following four statements can be made in relation to our contemporary
understanding of romantic love:
• Love has become an existential goal, a means to happiness and fulfilment. It
is the central paradigm for ordering intimate relationships between people,
including sex and marriage;
• The rhetoric of love asserts that it is above all other social rules, and
trumps social, cultural, traditional, economic, family, religious, and, class
conventions and expectations. It is its own law;
• The context in which love is played out is oppressive to women and to same-
sex couples. These contexts are patriarchy, the private-public division, and
heterosexuality; and
• Love is embedded in concepts of nature that inevitably link back to
stereotypical gender roles and heterosexuality.
Marriage
Love has become a dominant idea in modern society and has come to dominate
much of our social thinking, including how we think about the institution of
marriage. This is true despite the fact that, for many, the traditional, religious
and patriarchal meanings of marriage remain. For an overwhelming majority,
when all other reasons for marrying have largely evaporated, the one that
remains is love. While love can exist without marriage, marriage is considered
the ultimate expression of two people’s love. It is this connection with love that
has strengthened the institution of marriage. Despite the various challenges to
marriage thrown down in the latter part of the twentieth century, it remains
a central goal for many people, and is widely regarded as a good in society.7
Once marriage became disconnected from economic need, religious and family
obligation, realigning itself with romantic love, it found a new audience. Not
only has it remained popular for heterosexuals, but, as we have seen, it has
become a goal for same-sex couples.
6 This view can be traced all the way back to the myth of Aristophanes, discussed earlier.
7 See Finnis, discussed in chapter four. There is also a discernable pro-marriage movement which has
emerged arguing that marriage makes people ‘happier, healthier and wealthier’, protects the wellbeing of
children, and that the whole of society and should therefore be protected and upheld by governments. See,
for example, ‘The Marriage Movement’s Statement of Principles’ at http://www.americanvalues.org/pdfs/
marriagemovement.pdf accessed 28/10/2010. See also L C McClain, ‘What Place for Marriage (E)quality in
Marriage Promotion?’ in Bernstein (ed), Marriage Proposals 106–144.
109
The cases of Garcia, Re Kevin, and the same-sex marriage debate have revealed
a number of significant themes in relation to the legal discourse of marriage.
Marriage is to be understood in conjunction with sexual identity and sexual
intercourse, gender and sexuality, procreation and family, and, not least, in
conjunction with business, economic and commercial interests.
Historically, sex has been seen as central to marriage. To be valid, a marriage had
to be consummated, and procreation was considered its central purpose. With
the rise of the romantic marriage, sex has come to be connected with mutual
satisfaction and expression of love. This shifting narrative has been shown via
analysis of the marital immunity of rape. The narrative came to a decisive point
with the case of Re Kevin, where the Family Court unequivocally said that sexual
intercourse was not a defining feature of marriage. However, I have argued that,
given Re Kevin’s facts and its heteronormative reading of marriage, it must be
read cautiously.
To say that sex is no longer relevant in the modern legal discourse of marriage
would be misleading. The shadow of the law that stated that a man could never
be guilty of raping his wife faintly remains. Courts have continued to see a pre-
existing relationship as relevant to the question of consent. Cases continue to
show that there is a nexus between being married (or being in a relationship)
and a lower threshold of consent. Empirical studies suggest that on this issue the
law is merely reflecting a significant social attitude that still connects marriage
with a man’s right to have sex.
Nevertheless, it cannot be denied that law has shifted ground considerably
in relation to sex and marriage. It has gone from saying that a valid marriage
requires consummation, and from saying that a husband can never be guilty
of raping his wife, to saying that sexual intercourse is irrelevant to the legal
status of a marriage either way. Sex is part of marriage only as a result of mutual
consent. Justice Brennan in R v L alludes to love as the means by which sex is
negotiated between a married couple.
Garcia considered the relationship between marriage, business and economics.
The economic aspects of marriage have a history as dark as that relating to sex. In
the past, marriage reduced women to non-economic actors, incapable of owning
and controlling property and, indeed, being seen as property themselves coming
completely under the control of their husbands. The Garcia case resonated with
the bad old days of marriage in the sense that, on the surface, the Court was
endorsing the idea that a woman does not and should not necessarily have an
informed involvement in her husband’s or the family’s business affairs.
Critics argued that the Court’s decision did not reflect the new narrative of
marriage where the wife was a free, autonomous individual capable and willing to
110
act independently of her husband, not only in general ways, but also specifically
in the spheres of business and economics. The majority of the judges did not
dispute this narrative of marriage but argued that it was incomplete. The majority
decision maintained that marriage is an economic union and, importantly, that
upon marriage a husband and wife’s economic interests are united. However,
the judgement also endorses the idea that marriage is an emotional union based
on trust and confidence, and the existence of these factors means that marriage
justifiably leads to people acting ‘ignorantly’ as opposed to ‘self-interestedly’.
While love was never mentioned in the case, I have argued that ‘trust and
confidence’ can be interpreted as aspects of love. The Court refused to create a
situation where the trust and confidence that usually exists in a marriage would
be replaced with suspicion and self-interest, which would be tantamount to
pulling down a central pillar of marriage. In centralising trust and confidence
in marriage, the Court in Garcia acknowledged both the good and the bad about
love. People such as Mrs Garcia do everything for their husbands, for love —
people do that, women do that, and when it goes wrong the law will help.
But that help was not to be at the expense of eroding the romantic aspects of
marriage. The aspects that translate into people behaving in ‘non-rational’ non
‘self-interested’ ways. Relief could only be given under the ‘special equity of
wives’ because this principle alone retained and nurtured the special features
of marriage as a relationship of trust and confidence as avatars of love. Garcia
also points to a broader issue in relation to marriage and economic interests. The
law selectively honours individual economic interest in marriage. If marriage is
a life-long union then there is some sense in seeing it as an economic union. But
if marriage is a love union which only lasts as long as the love does, then the law
must learn to acknowledge, measure and allocate individual economic interest.
If Garcia alluded to love via trust and confidence, Re Kevin can be interpreted as
further building the case for love in marriage. Re Kevin challenged some central
assertions about the meaning of marriage. It refuted that the central reason for
the relationship is procreation and asserted that sexual capacity and sexual
intercourse are not central to marriage. As such, the decision went further than
law had before towards constructing marriage as a love relationship. The decision
can be understood as an affirmation of the importance of love in marriage. If the
decision in Re Kevin looked like liberalising marriage, the federal legislative
response against it was swift. In amending the Marriage Act and in overriding
the ACT’s Civil Union Act the federal government reasserted that marriage is
more about procreation than anything else, and, as such, must be between a
man and a woman, and cannot be between same-sex couples. Love is important,
111
but not the most important thing in marriage. However, proponents of same-sex
marriage are now using love to break down the legal door barring their entrance
to marriage.8
In the light of the discussion in this book, to what extent can we say that love is
part of the legal discourse of modern Australian marriage? We have seen that the
popular rhetoric of love has colonised marriage. Even in the most conservative
of institutions, such as the monarchy, marriage needs to be presented within
the romantic love discourse in order to fulfil social conventions.9 As such, one
would expect to find love within the legal discourse, but it is barely visible
there. The legal discourse of modern Australian marriage presented in this
book shows that marriage is still understood according to some of its traditional
associations: that marriage is, and should be, between a man and a woman
(Re Kevin, same-sex marriage debate), and that, upon marriage, economic
and business/commercial interests become united (Garcia). However, some
traditional links have also been broken: sexual intercourse and procreation
are not the defining characteristics of marriage (R v L, Re Kevin), and sexual
intercourse in marriage is subject to mutual consent (R v L). As we have
seen, love is explicitly visible in this discourse in the context of the same-sex
marriage debate, where it is pitted against procreation as the central defining
characteristic of the institution, and it is explicitly visible as a means by which
sexual relations are negotiated (R v L). At the same time, love can be inferred
in the discourse via the assertion that trust and confidence are elements of love
(Garcia). Moreover, when the legal discourse rejects all traditional meanings
of marriage, the silence left behind can implicitly be filled by romantic love
(Re Kevin). The impact that the presence of love has on marriage is debatable.
While its rhetoric of freedom, liberty, equality and agency all inevitably leave a
mark, love has not shown itself to completely displace the traditional meanings
of marriage.
Over the years covered by the legal episodes explored in this book, the legal
discourse of marriage has clearly shifted. There are many reasons for this shift,
including the entry of love into the discourse. Given the progressive nature of
romantic love, this leads to hope for a redefinition of the institution of marriage
along more progressive lines. However, before one can gauge the significance
that love might have on the institution of marriage, something needs to be said
about the discourse of love that emerges from the analysis in this book.
8 For example, one of the major groups agitating for same-sex marriage in Australia is called ‘Equal Love’.
The emphasis on the idea of love has been evident during the 2010 federal election campaign in Australia. A
hypothetical advertisement made for the Greens clearly states that if you are a supporter of same-sex marriage,
then you believe that marriage is about love. ABC Gruen Nation episode 3, 10/07/2010 ‘The Pitch: Republic of
Everyone’ http://www.youtube.com/watch?v=O4jI1atQwp4 accessed 23/08/2010.
9 We saw the impact love had on the royal wedding of Prince Charles and Lady Diana. It was also the only
discourse that justified their divorce. The thing that saved Prince Charles from total unpopularity was that he
did it all for his love for Camilla.
112
Love Again
In Re Kevin the Family Court of Australia rejected some traditional notions of
marriage. The Court rejected the idea that marriage required sexual activity and
capacity to be valid, and it rejected procreation as the central defining reason for
marriage. In rejecting these traditional aspects of marriage, the case came closer
than any other legal act to insinuating love as a reason for marriage. However,
the case can also be read as sustaining the traditional association of marriage
with heterosexuality, asserting that marriage is fundamentally a heterosexual
institution and, even if love is part of it, that love itself is also understood as
heterosexual. Kevin and Jennifer were accepted as legally married because
they loved each other, and because their love closely replicated normative
heterosexual love. The scripts of this love are procreation, family, domesticity
and marriage.
The same dynamics are evident in the same-sex marriage debate. The argument
over same-sex marriage has become an argument over whether marriage is about
procreation or love. Proponents of same-sex marriage believe that a win for love
marriage is a win for same-sex marriage, but this denies the heteronormativity
of romantic love. The predominant way of understanding romantic love in our
society and culture is primarily as a union between two people, a merger of two
soul mates, which, as such, is embedded in nature and inevitably heterosexuality.
Re Kevin and the same-sex marriage debate contest the notion that marriage
is grounded in biology and procreation, but do not disturb those very same
notions where they exist in our understanding of love. There is therefore a great
circularity that occurs in the argument that always comes back to heterosexuality
as the basis for both marriage and love. The analysis in this book points to an
important failure in the way we understand romantic love which goes to the
heart of its philosophy and renders it incapable of delivering the great progress,
freedom and equality which it promises. As long as the notion of merger
continues to be dominant in our understanding of love, love cannot separate
itself from nature and therefore from scripts of reproduction, sex difference and
heterosexuality. We have seen how this is disadvantageous to same-sex love,
which is accepted only when it reproduces the scripts of heterosexuality. Even
in the context of trans-sexuality, something more than a physical change in
sexual identity is required: domesticity, family, parenthood and marriage are all
important aspects in the construction of a loving couple.
While feminist critiques of love have focussed mainly on patriarchy and
the private and public divide, a nature paradigm is also significant for their
critique. Freeman showed clearly how the merger paradigm of love works
113
against women.10 If love is to deliver the promises that Solomon and others claim
it makes, then it seems that it must reconceptualise itself away from the idea of
merger. In this way, it can once and for all sever the connection with nature,
biology, reproduction and parenthood. In this way, both heterosexuality and
gender roles, which have been so damaging to women and to LGBTI couples,
can be disrupted.
The features of love evident in the legal discourse do not match love’s rhetoric of
liberty, equality and progress. In the legal discourse love is constructed within
other constructs such as nature, family, gender and sexuality. Furthermore,
romantic love appears to be embedded in a discourse of complementarity
and merger that inevitably are tied up with power. For ‘non-heterosexuals’,
therefore, love is yet another barrier that can only be overcome to the extent
that one can fool nature and ‘act’ the part.
Given these conclusions about the meaning of love, we can either work to
reduce its hold over the modern imagination or work towards redefining it to
accommodate these criticisms. Despite the critiques of love, few are willing to
jettison it. Its connection with individual freedom and autonomy makes it a hard
idea to reject. Love is part of who we are, and we cannot go back to a time before
it. As Langford says, it is neither possible nor desirable to return to a time when
personal relationships were not seen within the paradigm of romantic love. ‘No
remedy’, she argues ‘is to be found in a reactive return to the regulation of
love along traditional lines. Justice and humanity cannot thrive through the
imposition of a repressive moral order and the institutionalisation of oppressive
practices.’11 Also, as Illouz argues, we must not forget that the dominance of love
has directly correlated with a decline in men’s power over women and with an
increase in equality between men and women.12 The many legal changes that
have occurred in the laws of marriage have coincided with the period of history
where intimate relationships have been influenced by the liberalising egalitarian
and radical ideology of love. The answer must therefore lie in reconceptualising
love. For Illouz and Langford, the answer lies in a love which reflects women’s
experiences and desires as much as men’s, and a love which embodies a more
ethical ideology. For queer theorists, what is needed is a love that moves away
from heterosexuality. For both feminists and queer theorists, moving love away
from the discourses of nature and biology are beneficial.
10 As stated earlier, Freeman says that merger represents a significant reduction in personal autonomy,
this impacts much more on women than on men because of the social context that love is played out in. M
Freeman, ‘Romantic Love and Personal Autonomy’ in French P A & H K Wettstein (eds), Midwest Studies in
Philosophy, XXII (1998): The Philosophy of Emotion (University of Notre Dame Press, Indiana 1998) 169–178.
11 Langford, Revolutions of the Heart 151.
12 E Illouz, Why Love Hurts: A Sociological Explanation (Polity, Cambridge 2012) 5.
114
Earlier, I alluded to the possibility that the formulation of love offered by

Giddens might help to fulfil some of these promises. Giddens has formulated
love as an emotional tie that can be independent of extrinsic factors, including
sexuality. This is a love that is entered into and structured along individual
lines, disconnected from marriage or even monogamy. This formulation of love
moves away from nature and is democratic and inclusive. However, it also leaves
itself wide open to the criticism that it is potentially exploitative and unethical.
In the discourse we have seen, it appears to be difficult therefore to reconcile a
freer and open love with a more caring and ethical one, and yet this seems to be
what is needed.
Feminism and queer critique have identified many problems with love, but
they have also provided insights that will help to recover and fulfil its radical
and liberating potential. Feminists have identified the liberating potential of
romantic love. Illouz, Radway, Pearce, Stacey and Langhamer, among others,
have shown how women use love exactly to achieve what Solomon and Giddens
have argued can be the case. Love provides a means by which women can
subvert patriarchy.
Queer theorists who have retained love at the same time as opposing its
heteronormativity are also a big part of this project. Warner, Berlant, Johnson,
Slavin, Binnie and Bell, all cited in this book, have argued that relationships,
described by Berlant as being on the ‘edges’, can all be described as love.
It might well be that law can also help to create this new discourse of love.
Garcia, for example, reflected a view of marriage that was built upon love and
mutuality, and which nurtured both. Garcia accepted that love is anarchical
but refused to either jettison it or to leave its wounded victims unprotected. Re
Kevin must also be part of this re-reading of love. While I have argued that the
social construction of love as heterosexual — embedded in concepts of family
and domesticity — are paramount in the reading of this case, it must not be
forgotten that the case breaks the connection between love and nature. Kevin
‘becomes’ a man, is not ‘born’ one, he falls in love and marries and defies the
‘nature’ connection that exists in both love and marriage.
The eventual recognition of same-sex marriage could also achieve this aim, and
can be read as a decisive breaking down of marriage as a heterosexual institution.
Same-sex couples will bring to the institution an understanding of love that is
not necessarily steeped in scripts of family, procreation and domesticity. Indeed,
they will join heterosexual couples who are also interested in breaking down
these connections. There are feminists (both men and women) who marry,
there are people who do not have children who marry, there are couples who
115
reject and act against gender stereotypes who marry. Same-sex married couples
and non-traditional heterosexual couples will join forces to reflect a different
meaning to love and marriage.
The way we read Re Kevin and the legal recognition of same-sex marriage is crucial.
According to the reading that they replicate heterosexual scripts, love’s radical
potential is diminished; but if we read them as validations of ‘other’, less traditional
expressions of love then they recover and reinforce love’s radical meaning.
Love and Marriage

Considering the relationship between love and marriage is not an easy task.
At first, it would appear that the two are opposites: love is freedom, marriage
is oppression; love is anarchical, marriage is ordered and rule bound; love
is individualistic, marriage is a unity of a man and a woman; love is selfish,
marriage is altruistic; love is about pursuing personal satisfaction, marriage is
about giving and caring for others; love lasts for as long as it does, marriage is a
life-long institution.
But this is too simplistic a reading of both institutions. Neither love nor marriage
are static concepts. This book has shown that there are at least two readings of
both love and of marriage. Love, we have seen, is a discourse of both freedom
and of oppression. One breaks down social barriers while the other reinforces
them. Marriage can be read both according to its traditional, patriarchal,
religious and — we need to acknowledge — old common law meanings, as well
as along its more modern feminist and queer equality/difference meanings. The
influence that love has on marriage depends upon the readings we take for both
of the institutions.
If we take the radical reading of love, then its association with marriage can
be a sign of the marriage institution also becoming radicalised, more equal,
more able to deliver satisfaction to each of its parties, more open to individual
negotiation, less embedded in rules and expectations, more free, less tied to
gender stereotypes, less focussed on biological and natural readings, less
heterosexual, less family, less monogamous.
If we take the oppressive reading of love, that it simply mirrors heterosexuality,
and in turn domesticity and family, that it is structured along conservative
views of ‘nature’ gender and sexuality, and that it is still largely religious
and patriarchal, then the connection of love and marriage does very little to
change the traditional meanings of marriage. Love simply reinforces marriage
116
as a life-long union, whose primary role is procreation, the reinforcement of

the heterosexual family, the economic union of two people, and arguably the
reinforcement of stereotypical gender roles and of patriarchy.
The same question must also be asked in reverse: what does marriage do for love?
Again, the question depends on the interpretation of marriage. Staying with the
traditional meanings, if we connect marriage to love, it diminishes its radical
potential. This is the very concern that has been shown by feminists and queer
scholars who have opposed same-sex marriage. Marriage is too conservative an
institution, its past is too dark and too oppressive for those who have a radical
outlook and radical aspirations in their own love lives to be aligned to it. What
this suggests is that the radical potential of love will be lost when it is aligned
to marriage. But what if we see marriage in the modern guise many want it
to assume, as an equal relationship where personal freedom and satisfaction
are obtainable? In this model, marriage and love simply reinforce each other’s
radical potential.
The legal analysis undertaken in this book reflects the careful manouvering
that is occurring in society in relation to the meaning of marriage. The law
has stomped on some of the worst aspects of the legal effect of marriage (sex,
marital rape), but it tiptoes around others (same-sex marriage). It also reflects
the tensions that exist in relation to the meaning of love. Yes, love is great, yes
we all can have it (Re Kevin), but it can have consequences that are not so great
(Garcia and same-sex marriage). This might mean that love is not all we need to
make marriage a progressive institution.
Law Again
Going back to our starting point, and knowing what we know about the
dominance of the positivist rhetoric of law, it would have been surprising to find
a more open discussion of love in the legal discourse of marriage. For the courts
to have engaged openly with love would have been to depart from ‘objective’
reasoning and application of law. Critical jurisprudence has done quite a good
job of challenging the positivist view of law which excludes emotion. What
remains is for that work to penetrate the many layers of law more deeply and
more convincingly.
If we are serious about fostering an engagement between law and emotion, we
must also consider how that engagement can take place. Returning to the law
and emotion scholarship with which this book began, we can identify several
trends. We see scholarship that describes emotions that exist in different legal
processes. We also see scholarship that calls for the inclusion of emotion in legal
processes such as judging. Very little is said in these works about how this could
117
actually occur. We see methodologies of law, such as therapeutic jurisprudence

and restorative justice, that attempt to use emotions to achieve justice as an
alternative to the adversarial system. Finally, we see work that takes the lens
of love to challenge not what law does but how law thinks. This has been the
approach taken here.
Law that is understood in an emotional vacuum is the poorer for it. Law as
a social discourse needs to be viewed through an emotional lens as much as
any other. This book has shown the dynamic that exists in the legal discourse
between love and marriage, arguing that the impact of love on marriage can
help to move the institution away from its oppressive nature and help to create
a more equal relationship based upon mutual needs and wants. Love can be
associated with mutuality rather than individuality. When it comes to same-sex
marriage, an analysis of the issue through the lens of romantic love helped to
show a side which has hitherto been little discussed, and has helped to clarify
aspects of the argument. To show the role love plays in defining marriage, and to
show the features of that love, will make a contribution to the same-sex marriage
debate. Such an insight will enable law reformers to more clearly articulate
their demands, and their opponents to more clearly frame their opposition. The
debate is thus enriched by the inclusion of emotional analysis.
We have come to accept that political, historical, sociological, and philosophical
perspectives are all important to law. We need to add emotions to that perspective.
To show why it is so, and to indicate something of how it can be done, has
been the contribution of this book. Thinking about law within an emotional
framework makes law more engaged with the community it serves and, as such,
better able to understand it, and deliver it justice. Understanding the emotions
involved in human institutions such as marriage enables law-makers and law
reformers to more clearly articulate their claims and demands. Understanding
legal issues through an emotional paradigm increases understanding of the issues
themselves, and consequently leads to better legal decision-making at all levels.
Including emotion in law dramatically changes for the better the perception we
have of law. To believe that emotions can be divorced from law isolates it from
an essential aspect of human behaviour; to remarry law and emotion returns law
to where it belongs, back to its humanity.
118

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ANU Press

Chapter Title: Conclusion: Law, Love and Marriage

Book Title: Looking for Love in the Legal Discourse of Marriage

This book is licensed under a Creative Commons Attribution-NonCommercial-

Earlier, I alluded to the possibility that the formulation of love offered by

Love and Marriage

as a life-long union, whose primary role is procreation, the reinforcement of

actually occur. We see methodologies of law, such as therapeutic jurisprudence

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