Contract as Particular Law

A valid contract even has the status of a particular law among the contractors.[1] The contractors form a community ordered to a common end, the well-being and benefit of all involved in the contract. The members of the contractual community give their unanimous consent to the contract, and it thus has the legal character. For it is the will of the legislator, in this case the entire contractual community, solemnly expressed by means of the contractors formulation of the contract, it aims at the good of the entire contractual community over which it enjoins, and it is in accord with justice and reason insofar as it is a valid contract, for validity requires that it be in accordance with divine and natural law ad normam CLIF 12 §204, and if a statute does not violate these, it must needs be just. Therefore, since the contractors form a community, the whole people of such community has the right to make law for themselves, and this legislative right is properly exercised by means of contract, which thereby has the status of a particular law among the contractors.

(written circa April 2013)

---

[1] Post inspired by Lon L. Fuller, Anatomy of the Law

Cf. CLIF 12 §2

The Propriety of Contract in Natural Marriage

Some object to the incorporation of formal contract into natural marriage. They say that, since marriage is prior in time to the state, state sanction by contractual enforceability is an ahistoric superfluity. In their view, the state should get out of the matrimonial contract business altogether and leave natural marriage in its natural state.

Marriage must be ratified by formal contract for the same reason that private contracts must be made under legal conditions. People can make an agreement to do anything they want any time they want without the approbation of the law, but with such approbation it becomes legally enforceable, thus adding an external, communal element in which the agreement must be respected and an additional guarantor of its duration.

A fortiori the matrimonial contract must it be made in a context wherein the “’til death do us part”—an essential property of marriage as “indissolubility” (cf. Canon 1056, 1983 CIC)—becomes legally enforceable, for two persons could agree to totally give themselves to each other for the rest of their lives and thereby constitute a natural marriage, but without the element of legal enforceability, there is a de facto get-out-of-jail-free card that precludes the full realization of the lifelong irrevocability of the matrimonial contract, arguably impeding authentic matrimonial consent.

Then there is the inherently communal element of marriage, since it is upon marriage that the state and all other communities are founded. That the matrimonial contract takes place in the context of a legal community in which such contract has binding force and judicial enforceability corresponds to the inherently communal nature of marriage.