Disputación sobre el fundamento y el alcance del derecho a contraer matrimonio

Abstract

This paper ensues from the debate raised by a previous article, «The right to wedded life in contemporary society», 2010, included as a chapter of the Doctoral Dissertation on Juridical Science, «Idea Iuris Logica», 2015, which was a compilation Thesis, whose concluding section was a set of 48 propositions, five of which were given over to the right to marry, viz.: (1) it is one of the most essential human rights; (2) it is partly a freedom right but also a welfare right; (3) as an associative right it implies the power not just to start a joint life but also to remain therein and not to be forcibly ousted without due reason; (4) a suitable legal implementation calls for the existence of several cohabitation contracts or covenants of different degrees of mutual commitment and duration, with the possibility of a life-long or perpetual bond for those who choose it; and (5) the current lgislation both in Spain and elsewhere is quite unsatisfactory. Those propositions aroused a heated controversy, ten main objections being levelled at my claims. They broach such issues as same-sex marriage, the clash between an undisturbed wedded life and the rights of children, the purportedly necessary anarchy presiding over any two-membered society, which would entail a permanent right to abandon the partner without cause (repudiation), the significance of marriage as against friendship or togetherness in general and the suspiciousness of perennial commitments. Now I thoroughly go into all ten objections and shore up my assertions with further reasons. Then I canvass historical experience, namely the soviet attempt at demolishing family relations in the period 1917-1935, which was doomed to fail; I consider ethnographic evidence, and last I examine the polemics brought about by the UN Human-rights Council Resolution 29/22, passed on 2015-07-02, for the protection of the family. My conclusion is that the West has now chosen the disastrous path blazed out by the Bolsheviks 90 years ago.