Coupling in and out of the Law
Precisely because courts proceed in this way, a significant share of contestation between and about couples in American law turns less on what actually happened than on what relationship prevailed when it happened, and what separated that relationship from others it resembled in some regards. As we saw earlier, outside of the legal process couples and third parties to coupling regularly engage in practices that resemble legal practices without mimicking them precisely; they deploy somewhat different matrices, distinctions within those matrices, and doctrines to justify those distinctions. To put it another way (and a bit more accurately), American courts parallel ordinary practice as they guard the boundaries between proper and improper forms of intimacy. Their relational work interacts with that of everyday social life.
Formation of intimate couples, as we will soon see, poses fewer problems for American law than do caring and household interactions. The law has available the model of a two-party contract and frequently applies that model to intimate pairs. When caring connects pairs of people other than spouses or involves multiple parties, however, standard contract models fit less well, and legal practitioners must exercise greater ingenuity as they translate from everyday practices to legislatures and courtrooms. In practice, intimate couples often pose serious problems to people in adjacent social relations. Is this person an appropriate partner for our daughter? Can the profession tolerate these sorts of relations between its members and their clients? Will this office romance disrupt the firm? Coupling poses problems, paradoxically, precisely because it almost always has strong implications for third parties.
Some of the relationships we have examined under the rubric of coupling involve caring: sustained provision of life-enhancing attention by at least one of the parties. Shifting the focus to caring, however, raises questions this chapter has barely touched: who has the right or obligation to give life-enhancing care? To receive care? What compensation, if any, does the provision of care justify? Does commercialization of care inevitably corrupt it and the relationships within which it occurs? Such questions arise more or less equally in ordinary practice and in legal disputes. They call up some of the same social processes we have observed in coupling: boundary drawing, matching of relations and transactions with media, assignment of existing relations to morally charged categories, and claims of third parties to intervene. The following chapter enters the world of intimate care.