Working Paper No. 12-77:
An Anthropology for the Family Law of Indis/solubility
Date Posted: November 2012
Abstract (below) | Full text (most recent) on SSRN
American law on marriage can be crafted in one of two ways: from “within” and from “without.” Despite its ascendancy today, an outside-in method of lawmaking is destined to make significant mistakes due to a failure to rely on and take seriously human anthropology. By ignoring anthropological evidence, modern family law relies instead on a disfigured “freedom” divorced from two crucial elements: truth and solidarity. In contrast, an inside-out method of lawmaking, as proposed by Alfonso Cardinal Lopez Trujillo, orients its laws toward real freedom linked to truth and solidarity and therefore limits its laws to those that reflect anthropological evidence about the nature of human persons and of human unions. The latter method’s chances for success are better today than ever before thanks to the availability of a greater depth and range of this type of evidence. Focusing specifically on lawmaking regarding the indis/solubility of adult sexual relationships, this article proposes and examines categories of evidence for exploring an anthropology of human marriage, describes the mistaken anthropology underlying the proposal of modern family law authors to dethrone marriage, analyzes the flaws of their outside-in approach, and suggests ways to bridge the differences between the two methods of lawmaking, while also acknowledging the obstacles to such an effort.