The Construction and Application of Relational Jurisprudence:Reconceptualization of Spousal Fidelity Agreements as an Example
There are three presuppositions underlying the dispute over legal validity of spousal fidelity agreements:the misalignment between the family relationship and the contractual model,the opposition between the weak ethical nature of property attributes and the strong ethical nature of personal attributes,and the mismatch between the legal compulsion and the emotional relationship.The three presuppositions are based on the tension of individual-family dualism,and the validity of fidelity agreements is undecided as a result.However,the relational jurisprudence breaks existing presuppositions.The relational contracts theory realizes the connection between marriage and the contract model,which provides a basis for fidelity agreements'reference to the contract law.The emphasis on the relational structure reveals the common ethical nature behind personal and property relationships.The"relational dispute resolution"focuses on the fact of the relationship itself,not just the text of the agreement.The judicial goal is to maintain virtuous relationships and discourage vicious relationships,not to regulate individuals.The premise of agreement validity is"relational autonomy"rather than"individual expression of intent".The value basis is"relational goods"rather than"individual interests".On that basis,fidelity agreements can be categorized as"normative agreement"and"cumulative agreement".And the litigation procedure and the mediation procedure are applied according to the dispute resolution requirements.Thus the judicial attitudes towards emotional relationships will neither be incompetent avoidance nor paternalistic intervention,but an effective response and feedback adjustment.
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