it may be thought surprising that one should have a right to do that which one ought not.so i'm curious what your argument is. do you think that newspapers should not have a right to free speech? or do you disagree with the argument above (and think that free speech should only apply to people who say things that are "ok")?
is it not better to confine rights to that which it is right or at least permissible to do?
but to say this is to misunderstand the nature of rights. one needs no right to be entitled to do the right thing. that it is right gives one all the title one needs. but one needs a right to be entitled to do that which one should not. it is an essential element of rights to action that they entitle one to do that which one should not. to say this is not, of course, to say that the purpose of rights of action is to increase wrong-doing. their purpose is to develop and protect the autonomy of the agent. they entitle him to choose for himself rightly or wrongly.
but they cannot do that unless they entitle him to choose wrongly.
On the one hand there is a longstanding legal presumption that if two people think they got married, they did get married, even if the proceeding by which this was accomplished was suspect. On the other hand, judges have also felt, jeez, we can't let just anybody solemnize marriages, we gotta have rules.Some enterprising lawyer might want to look into that.
This ambivalence has resulted in decisions on both sides of the fence. In Fisher vs. Fisher the court ruled a marriage by a ship's captain valid; in an 1898 case in California, Norman vs. Norman, the court ruled the opposite. It's important to note that in Fisher the court did not specifically single out ships' captains (as opposed to say, mailmen) as having the power to perform marriages; rather it ruled that, absent a statute to the contrary, and subject to certain other conditions, an exchange of vows between consenting parties constituted a valid marriage--as I read it, whether there was an officiant or not. In other words, marriage by ship's captain, or by anybody other than a recognized minister, JP, etc., was a type of common-law marriage.
There are still some states that recognize common-law marriage. Typically all that's necessary is that the parties (1) be legally free to marry (e.g., no undissolved prior marriages); (2) properly consent; (3) "cohabit" (do it); (4) live together; and (5) let the neighbors think they're married. (Contrary to common belief, it is not necessary that the couple live together for seven years.)
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Is it really okay for the Washington Post to publish this stuff? I mean sure, it's legal, but shouldn't they be held to a higher standard? That this insert comes in the paper lends it an air of credibility rightly or wrongly.
posted by McBain at 12:42 PM on November 21, 2004