On the civil law, Part 1: General issues.

In the past few months, I’ve heard the issue of gay marriage being debated on a number of fronts, like “civil rights,” “the sanctity of the institution,” and so on. But on thinking about it, I’ve realized that there’s a separate issue involved: The existence of civil law. Since this seems to have implications substantially beyond this one issue, I thought I’d put some notes about it here.

This first part is of a general nature: It’s about the whole idea of civil law and why it’s important. Part 2 will talk about the applications of this idea to specific political issues.

A great number of human customs arose among people living in small societies that didn’t travel much and didn’t deal with other societies much, except occasional trade and occasional violence. It worked, as long as everyone involved was farming or otherwise tied down to the land in an area, and there wasn’t much travel going on. The past several centuries have changed this, of course; people live in cities now more than in the countryside, and even in the most remote areas travel has increased, people interact with people all the time, and thanks to the new media, everyone’s really in contact with a “worldwide civilization.”

The enormous difficulty this creates is that groups with very different ideas of how life should be lived are now forced to live next door to one another. The “traditional way” of dealing with this is that one group would be dominant, and everyone else would live essentially by the graces of that group; different people might have power in different places, and whenever the power switched (like in Spain during the Reconquista) the members of the previous majority group could count on suddenly becoming (very) second-class citizens, up to and including persecution, forced exile, or simple massacre.

It’s obviously not a horribly good solution. In the present era, we’re seeing this come up again in the form of a conflict between (for lack of better words) “Western Society” and “Islamic Fundamentalism;” two groups who used to live far apart, suddenly turned into next-door neighbors by television and travel, with very different ways of dealing with one another, right now fighting to have absolute say over how life should be lived in their own areas.

However, a few hundred years ago – quietly, at first, in 17th-century Europe, and then throughout the Western world – a fundamentally new idea about how to handle this came up. This is the idea of civil law: that there should be a civil administration separate from the religious and cultural laws of the individual tribes.

The idea of civil law, as I understand it, is this: The role of the government is to maintain civil order, and to that end it ought to establish and enforce such laws which assist this, but no more. (So for instance it is in the common interest for the government to prohibit murder and make contracts enforceable.) In all matters where reasonable people can disagree, or where there is otherwise no compelling government interest in legislating, the government ought not to legislate. Individuals are free to enter into covenants and laws more restrictive than that imposed by the government, and the government agrees to not enforce anything beyond its own laws.

For an example of this, consider the laws of marriage and divorce. A marriage ceremony is really two ceremonies: a civil marriage, which is in essence a type of contract between the two partners, and a religious ceremony. The government sees a common type of agreement and formalizes it in its law of contracts; the civil marriage is useful for handling matters of property, insurance and so forth. The religious ceremony is the ceremony for the group in which the people belong; it represents an additional set of restrictions. In a case of divorce, therefore, the civil marriage is simply a contract and can be severed by the mutual consent of the partners; this is the only aspect that the courts can (or should!) deal with. If the partners had an additional religious marriage, there are further issues: as far as the Catholic church is concerned, for example, the religious marriage is indissoluble, and no matter what the legal documents say the church still considers the two people married, whereas in many Protestant denominations, there is a procedure for dissolving a religious marriage as well.

The key point is this: It is in the government interest, for regulating matters of contract and so on, to define a civil contract of marriage. It would not be in anyone’s interest if the government were to define this contract to be a specifically Catholic or Protestant contract; at least, not if both Catholics and Protestants are expected to live in the same country together, under a common civil law.

The purpose of the civil law therefore is to provide a uniform backdrop against which multiple groups may live together, essentially bound by the common agreement to preserve the public order. It means that the religious laws of any particular community will not be enforced by the civil courts. (Although if two people belong to the same community, disputes they have in matters of their own communal law can be resolved by courts of their own community, which the parties agree to honor.) Conversely, the practice of any individual community will not be obstructed by the civil courts, so long as it does not threaten the public order.

I believe that this is one of the basic principles underlying the American Constitution, most visibly in the ninth and tenth amendments, but also in the first amendment’s establishment clause. And most importantly, this is the idea which has allowed a broad range of social groups to come to America and live together, despite not always agreeing.

The alternative to civil law is something almost too frightening to contemplate. Right now, I can live next door to a devout Shi’ite and a fervent atheist, and we agree (despite having three rather different religious views) not to kill each other, and can even transact business if we wish, or sit in the same coffee shop. If any one of these religious laws were to be enacted into the civil code – well, consider the Taliban and extrapolate it. Yes, there are many groups which would favor different flavors of the above.

Published in: on February 15, 2004 at 15:52  Comments (7)  


  1. Yup.
    I like how Scott Brison, a Canadian MP from Nova Scotia, put it:

    “The idea basically is to get government out of the marriage business altogether. The government would issue civil unions to anybody who intended to live together as a unit. This civil union would confer all the legal benefits that marriage currently entails.
    Leave marriage to the churches. It would be a purely symbolic union, and anybody can marry anybody else (as to who recognizes that union, is up to the individual). It would make you married in the eyes of God, Ganeesh, the neighbour’s dog.. whoever you care to be recognized by, but would carry no legal weight.”

  2. Although I’m not arguing at all that government should get out of the marriage business. (cf. other post) It’s a legitimate branch of contract law, and there are a lot of good reasons that these contracts need to be regulated and treated differently from other ones – children, for example. My argument is that, absent any compelling interest in prohibiting a class of people from entering into such contracts, the civil law ought to permit them, and if any specific social group objects to such contracts, they’re under no obligation to like them, enter into them, or even recognize them within their own canon law, but nor is the civil society obligated to mirror such a belief (no matter how widespread!) in the civil code, as civil code is dictated by pragmatics rather than abstract moral principles.

  3. I think it boils down to a basic question of semantics.
    The most serious reservations to allowing gay marriages to proceed is that it weakens the “institution of marriage”. It would seem the easiest route to placating those who feel this way would be to rename the thing that embodies the civil functions of what is now known as marriage to something else, thus removing this objection while providing the same functional equivalence in a civil legal sense.

  4. Thanks to the Universal Life Church, the religious aspect of marriage is a totally meaningless piece of window dressing. It is possible to have a completely secular marriage. I know I did. In this sense, a marriage is not two ceremonies at all; it’s simply a civil contract which is still accompanied in many cases by a customary religious ceremony.

  5. Now that you mention it, how is the institution of marriage “weakened” by the recognition of gay marriage, as is claimed? The idea of uniting two people who want to be together seems only strengthened by allowing it. I’m forced to wonder what aspect of marriage they want to support if not that . . . the property exchange? dowries? politics between families? *shrug* It’s definitely not childbearing, as childless couples’ marriages are still recognized and accepted.
    The problem with using a different term is that it leads to Jim Crow type behavior; and I personally dislike placating the people who march in trumpeting inflexible beliefs.

  6. Civil law is cultral law
    This started out as part of a response to “Part II” then I realized it made more sense here.
    “The purpose of the civil law therefore is to provide a uniform backdrop against which multiple groups may live together, essentially bound by the common agreement to preserve the public order.”
    The backdrop is where all of the interesting business goes on. For there to even BE a backdrop requires a minimum level of commonality. This commonality IS the culture, or rather where different cultures meet and if they aren’t close enough they can’t form a backdrop. If you picked up the Middle East and placed it in the Mid West, civil law would be a “challenge.” The gap between the two cultures is so large it doesn’t allow for much of a backdrop, or civil law, to be well formed. The same is true (to a lesser extent) if you dropped Alabama circa 1860 into the Bay Area today.
    Above you made a comment saying:
    “…nor is the civil society obligated to mirror such a belief (no matter how widespread!) in the civil code, as civil code is dictated by pragmatics rather than abstract moral principles”
    How widespread something is part of being pragmatic. If civil does not mirror a view that is widely held, what views does it support?
    “Compelling” is defined by the times that a law is enacted. That in fact is how culture IS codified into law because “Compelling” is always talking about the world you currently inhabit, not the world as it was, as it will be or as it should be. If you look at the history of laws that a culture does not support what you see a list of damaged laws, Prohibition being a great example.

  7. Re: Civil law is cultral law
    That’s a good point, and one well worth taking into account. With regards to the specific example of the Middle East, I’d argue that one of the biggest problems in the region is the lack of a clear notion of civil law – in all of these countries (Israel only slightly less than the Arab states), civil law and religious law is closely tied together.
    Perhaps a good way to state this is that, when you find substantial divisions within a culture (as e.g. in the United States on many issues), the government should avoid legislating on either side in it unless it has a pressing need to do so. I tend to see Prohibition as an example of active legislation (i.e. prohibition of a common practice) done in precisely such a case of division.

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