How Not to Marry your Grandmother: Is a Practice-Dependent Justification of Marital Establishment Possible?

The practice-dependent method was developed initially in response to questions of global justice, but is intended to reach, and is beginning to be utilised, beyond this debate. Practice-dependence aims to be distinct from its opposite, practice-independence, by claiming that practices are relevant not just in the context of application, where pre-existing norms are employed in specific cases, but also in the context of the development and justification of the norms themselves. Instead of understanding norms as applying uniformly to distinct practices, we should, in some cases at least, view norms as depending on or being conditioned by the practices they apply to. In this paper, I consider the normative significance of marriage as a practice. Most liberal approaches to the question of a just marital system are what we would term “practice-independent” – that is, they attribute no value to extant practices. Instead, they attempt to generate normative principles without reference to practice, and those principles are then considered as prior to practices and as capable of dictating that practices change or disappear if they are not consistent with principle. Due to the fact that practice-independent approaches abstract from current practice, they tend to propose more expansive forms of institutions that not only replace marriage but also extend across the broader range of practices that humans in caring relationships are engaged in. Although they deliver a more inclusive system, practice-independent approaches can face objections for being culturally insensitive: as Stephen Macedo’s comment that “nobody wants to marry their grandmother!” illustrates, the marital innovations proposed by practice-independent theorists stretch the meaning of marriage beyond the understanding of participants. These practice-independent approaches to marriage can be contrasted with more practice-dependent arguments, which credit the contemporary practice of marriage with some value, beyond the practical consideration of convenience, which in some way conditions the principles we choose to govern relationship regulation. In this paper, I defend practice-dependence against charges that it lacks distinctness as a normative method. In response, I present the method as distinct from Dworkinian interpretivism by being committed to an internal value claim. I then argue that practice-dependence is also distinct from the method of reflective equilibrium, as is not committed to achieving overall coherence. I argue that practice-dependence is committed to a weak normative claim, and a limited scope claim, and present an argument to demonstrate that it is an appropriate method for constructing principles for practices that display complexity, controversy, and conflict, marriage included. I present an account of the plural values to be found in practices, and the value of marriage specifically. Finally, I turn to further challenges regarding the method, arguing that history does not always condemn a practice, that we can factor in the ways that culture can affect the consent and perceptions of participants, and finally, that practice-dependence has adequate resources to ensure fairness for non-participants.