Marriage A Basic Civil Right of Man - FLASH The Fordham.pdf

Fordham Law R eview Volume 37 | Issue 1 Article 2 1968 Marriage: A Basic Civil Right of Man Henry H. Foster, Jr. Recommended Citation Henry H. Foster, Jr., Marriage: A Basic Civil Rig ht of Man, 37 Fordham L. Rev. 51 (1968). Available at : /flr/vol37/iss1/2 This Article is brought to you for ree and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law R eview by an authorized administrator of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact tmelnick@. MARRIAGE: A BASIC CIVIL RIGHT OF MAN HENRY H. FOSTER, JR.* I. INTRODUCTION S IR Henry Maine advanced the thesis that the movement of the progressive societies has hitherto been a movement from status to contract. He noted the gradual dissolution of family dependency and the growth of individual obligation in its place. The individual is steadily substituted for the Family, as the unit of which civil law takes account, he said, and [w]e seem to have steadily moved towards a phase of social order in which all these relations arise from the free agreement of individuals. 1 Although Maines hypothesis, when made, had greater validity as an explanation for the breakdown of patriarchal cultures and the gradual substitution of principles of equality for those of subordination,2 recent decisions of the Supreme Court may support his thesis that traditional state control of the marital status has to give way to current noti