Bhandary, A. (2018), Arranged Marriage: Could It Contribute To Justice? Journal of Political Philosophy, 26: 193-215. https://doi.org/10.1111/jopp.12144
The value of autonomy is a hallmark [특징] of liberal doctrine. It would seem to follow that liberals must reject the practice of “arranged marriage” on the grounds that the “arranging” component of the practice eschews [피하다] autonomy and individuality. However, in policy debates in Great Britain, the difference between “arranged marriage” and “forced marriage” has been defined as the presence of autonomy or free choice for an arranged marriage, and their absence in cases of forced marriage. A paradox seems to result: arranged marriage is defined as a marriage practice that both rejects autonomy and requires autonomy.
In this article, I will show that the resultant [그 결과로 생긴] paradox arises from the inadequacy of the autonomy analysis rather than from any intrinsically puzzling feature of arranged marriage. I then offer an alternative normative framework to assess arranged marriage’s potential contribution to a just society. My tri-metric analysis for arranged marriage includes the autonomy of the participants (Metric 1), as well as two societal metrics: the fairness of the distribution of caregiving labor (Metric 2) and the degree to which the society meets its members’ legitimate needs for care (Metric 3). [193]
1. The Autonomy Paradox for Arranged Marriage
For practical purposes, we need an applicable test for free choice. For normative purposes, we also need an account of freedom. But the conditions that constitute infringements on freedom, and the ability to ascertain the presence of those conditions, become particularly complex in the case of practices that have broad based adherence within a culture. When individuals reject dominant norms, they customarily incur significant burdens in their private lives, such as disappointing their parents or becoming excluded from social circles; they may also receive direct professional penalties such as lower pay.15 In this section, I will not attempt to settle what counts as a consent-undermining factor. Instead, I will show that the issue of ascertaining the presence or absence of consent is more complicated than policy debates about arranged marriage have been able to capture.16 When a person rejects a practice that is culturally customary, that action can have repercussions on his or her relationships and sense of cultural identity. In addition, it can result in a care deficit when the practice plays a vital role in a system of securing the social primary good of care. [196]
I define arranged marriage in a way that is informed by some actual instances of arranged marriage without making any empirical claims about the frequency of these characteristics. The basic characteristics of this provisional definition of arranged marriage are that it is a heterosexual marriage that rejects autonomy and individualism as the guiding values for marriage, it identifies the extended family, not the nuclear family, as the basic family unit, and it correspondingly incorporates a value of respect for elders into the marital and familial practices. The practice of arranged marriage is also loosely characterized by the following elements: the prospective spouse is identified by parents and community members, who match social class, linguistic group and regional origin, and who consider educational attainment and age. The prospective couple’s degree of familiarity is limited in some way. In the most restricted forms, they do not meet at all, and then the restrictions lessen so that the betrothed meet, but they do not speak, or they might spend time together accompanied by a chaperone, and today, they might “date” for some period of time after the introduction and prior to the wedding. The label “arranged marriage” has been claimed by participants of a wide variety of marriages, and today the most latitudinarian forms are effectively identical to “matchmaking” by friends, family, or online services, and therefore distant from traditional constructions of arranged marriage [197]
1.1 The U.K. Debate about the Distinction between Forced and Arranged Marriage
In 2013, over a thousand cases of forced marriage were reported, a majority of which were from South Asian communities. In 2014, Great Britain passed a law making forced marriages illegal. The British Home Office defined forced marriage to include: “a spectrum of behaviors [behind the term forced marriage], ranging from emotional pressure, exerted by close family members and the extended family, to the more extreme cases, which can involve threatening behavior, abduction, imprisonment, physical violence, rape and in somecases murder.” [197]
The law that made forced marriage illegal had to define a contrasting class of acceptable marital practices. In their analysis of this debate, Anne Phillips and Moira Dustin note that the British Home Office defined the contrastive and acceptable practice of arranged marriage as a marriage in which “families take a leading role in the selection of partners, but [in which] potential partners always retain the right to say no” (my emphasis added). As Phillips and Dustin argue, identifying the line that differentiates between the two practices among a set of core legal cases is a complex matter. Legal precedents expanded the criteria used to grant a marriage a “decree of nullity”—meaning that the consent was not legitimate—from the threat of physical harm, to psychological duress, to moral pressure. There are sound reasons to broaden the criteria beyond a reasonably held fear of physical harm, or to define physical harm more broadly to include psychological and emotional effects, but as the laws expand to include these effects, it becomes more difficult to differentiate between force bordering on coercion [강제] and cases of compliance with a cultural norm. [198]
1.2 From Physical Threats to Moral Pressure
In its spare approach to what undermines consent, it was similar to Chandran Kukathas’s minimalist libertarian claim that government should not interfere with a minority cultural group’s practices if its members “acquiesce” in it. For Kukathas, the conditions needed to demonstrate acquiescence are present if the person is not physically detained and has formal freedoms to leave the society, and there is an external liberal society into which the person may exit. [198]
The courts ruled that the woman did not truly consent because her financial dependence on her parents created undue pressure. Financial dependence was also a factor in the 1993 case Mahmood v. Mahmood. [198-199]
In a case the following year (Mahmud v. Mahmud 1994), a son was told that refusing to marry a spouse selected for him caused his father’s death and brought “shame and degradation on his family.” The court ruled in this case that consent can be vitiated by moral pressure. [199]
These legal cases make progress when they include moral pressure and psychological duress as factors that undermine consent. Free choice is not undermined solely by a threat of physical violence. However, the task of actually identifying when a person experiences psychological duress is more complicated than cases of explicit threats of physical violence, and these difficulties hold a fortiori when a person rejects a practice that is customary within their culture or social group. [199]
For culturally customary practices that secure care—such as marriage practices, kibbutzim, or communes and extended familial systems—a person’s refusal to participate in the practice can result in significant moral pressure from his or her community. Moreover, if participating in arranged marriage is a way to communicate loyalty to one’s family and community, and rejecting an arranged marriage is interpreted as a kind of disavowal of one’s cultural community and parents, then psychological duress will result for many people who reject this practice when it is customary in that person’s society. The more general form of this problem is that rejecting a culturally customary practice predictably causes psychological duress, and therefore consent to socially customary practices cannot be established. [199]
1.3 Conceptions of Autonomy
Oshana’s substantive conception of autonomy folds socio-relational conditions into the account of personal autonomy when she stipulates that people are autonomous only if they have the relevant capacities, and they have robust freedoms to do what they wish to do in ways that are granted and recognized by others. Although I agree with Oshana that social and political freedoms and restrictions strongly influence individual action, there is a pressing reason to maintain a conceptual separation between external freedom and the capacities of autonomy, which is that people who are oppressed by institutions are surely capable of autonomy. A person who is a member of a group that is widely oppressed—such as women of color or black men—may also be a highly autonomous and powerful person. The author Toni Morrison, for instance, is clearly more autonomous than many members of non oppressed groups. Therefore, I reject any account of autonomy according to which all oppressed people are necessarily non-autonomous. [201]
An account of autonomy as skills makes it possible to obtain the requisite conceptual separation between social conditions and individual agency. Diana Tietjens Meyers’s account of feminist autonomy skills creates this conceptual separation while also identifying the skills that are needed to increase autonomy competency from an oppressed social position.36 Autonomy skills are additionally well-suited to my analysis of arranged marriage because theorizing about autonomy as a set of capacities does not merely specify a Western way of life. Autonomy skills, or capacities, are not what Serene Khader calls the Western value of “enlightenment freedom,” and therefore they are compatible with tradition. [202]
Moreover, an understanding of autonomy as capacities makes it possible to theorize a multi-layered relationship between external freedoms and autonomy, neither of which is sufficient for the other one. Even when a person attains a competent level of autonomy fluency, the underlying distributive arrangement and its manifestation as a cultural status quo will influence the effective freedom a person has to reject aspects of that arrangement. Therefore, greater theoretical and practical insight will result from evaluating autonomy and the distribution of care as distinct but interactive features of the practice of arranged marriage. A society’s internal distribution of care influences its meaning, its level of burdensomeness, and the true possibility of entering into or exiting social arrangements. As a consequence of these interdependent relations, we cannot hope to fully comprehend the normative status of arranged marriage by evaluating the autonomy of its participants. Normative assessments of culturally customary practices such as arranged marriage must extend beyond the participants’ autonomy to the distributive justice of the basic structure of a society. [202]