POSTNUPTIAL AGREEMENTS - UW Law School

WILLIAMS - FINAL 11/29/2007 4:07 PM
878 WISCONSIN LAW REVIEW
them to persist. If fiancés can create prenuptial agreements that define
their rights upon divorce in a way that violates their future moral
obligations to each other, there is no principled justification for not
allowing spouses to do the same.
There is a more fundamental problem with this critique as well. It
is not clear whether its premise—that contracts are corrosive to
communitarian values—is true. Contractual devices are not necessarily
in conflict with communitarian values. Although one common vision of
contracts is rooted in the market and market metaphors, this is not the
only possible vision of contracts. A contract, at its heart, is a promise.
Promises are fundamental to even the communitarian-feminist view of
marriage and the obligations that it imposes. Although obligation can
stem from interdependency alone, it is surely augmented by a promise
to voluntarily assume that obligation. This is presumably part of the
purpose of engagement rings. 249 Contracts provide another means of
making such a promise. In this way, contracts can actually further
communitarian aims by allowing spouses to enter into stronger
commitments than the state’s default contract provides for. 250 This is
precisely what spouses are doing when they seek to impose adultery
penalties on one another through pre- and postnuptial agreements.
Moreover, if there is really a broad consensus about what relationships
should be like, as communitarians must assume, then rational,
autonomous spouses will often choose to affirm these values in their
contracts. 251 “Communitarians would discount the possibility that
[couples] would embrace communitarian values in choosing their ends.
If commitment and responsibility are valued by many people in society,
however, these qualities may shape personal ends.” 252 Far from
undermining communitarian values, the language of contract, broadly
speaking, is consistent with the language of commitment and obligation.
249. Margaret F. Brinig, Rings and Promises, 6 J.L. ECON. & ORG. 203, 210
(1990) (analyzing demand for diamond rings in early twentieth-century America and
concluding that the strongest force behind their rising popularity was the abolition of
the common law breach of promise to marry action).
250. Jamie Alan Aycock, Contracting Out of The Culture Wars: How The Law
Should Enforce And Communities of Faith Should Encourage More Enduring Marital
Commitments, 30 HARV. J.L. & PUB. POL’Y 231, 232–33 (2006) (arguing that the state
should enforce contractual terms of marriage that either increase or decrease the
spouses’ level of commitment in order to respect the pluralism of today’s culture).
251. Scott, supra note 82, at 720–21. (“[I]n a liberal society, autonomous
individuals often will pursue their life plans by voluntarily undertaking legally
enforceable commitments to others. . . . The marriage relationship, as many understand
it, fits readily into this framework. . . . Indeed, a marital relationship that contributes to
personal fulfillment may be possible only with a level of trust that is conditioned on
binding commitment.”).
252. Id. at 691 n.16.