- 1 Ferraris 2009: ix. Translations from the Italian in this article are mine. An English version of t (...)
1The title that Maurizio Ferraris gives to the preamble or preface to his book on documentality can be rendered into English as “Marriages and years in jail”1, and the word for marriages appears in the second line of the text proper in a list of paradigmatic social objects, which also includes money and artworks, mortgages, the price of oil and tax codes, the Nuremberg Trial and the Swedish Academy of Sciences and many more to fill up the nine lines that make up the first paragraph of prose in the book. We may infer, then, not only that marriages are paradigmatic social objects for Ferraris, but that they are prominent even among the paradigmatic cases.
2In addition to having rather less experience of marriage than Ferraris has, I do not belong to any of the salient categories of expert on this institution. In particular, I am neither a lawyer nor a theologian; nor, less saliently, am I a social historian nor yet an anthropologist. Rather, I possess most of the disqualifications to talk about marriage that accrue to someone who is in two minds about whether he is currently married, who tends to think that most forms of marriage should be outlawed, whose day job is teaching philosophy, and whose ulterior aim in this article is not so much to get clear about marriage, but rather to see whether Ferraris’ account of documentality as the essence of social objects offers an appropriate account of an institution that he takes to be a prominent paradigmatic instance of a social object.
3Despite these disqualifications, the suspicion that I shall pursue and try to make plausible, even to those who have more experience, are more expert on the matter, are less uncertain of their own status and are less hostile than I am to the institution, is that the theory of Documentality that Ferraris deploys to explain social objects does not give an appropriate account of marriage. My suspicion is that the deployment of that theory to give an account of marriage is not appropriate because, in a short-cut phrase, it puts the cart before the horse in the order of what others who do the same day job as I do call “conceptual priority”.
4Rather than outline Ferraris’ theory of Documentality, which Ferraris has himself done in many formats and from many points of view, and which I am sure will be done with greater penetration than I can muster by the other contributors to this number of the “Rivista di estetica”, we may kick off with some elementary observations concerning marriage.
5The reason why it occurred to me to express one of my disqualifications to talk about marriage by referring to my being neither a lawyer nor a theologian is that there are at least two very different conceptions of marriage doing the rounds in the culture in which Ferraris and I find ourselves, one of which is jurisprudential and the other of which is theological.
6The one that falls into the area of expertise of lawyers, is a conception on which marriage is fundamentally a sort of contract. In many societies, the sort of contract involved is conceived as like an agreement of sale between two families, where one of the partners to the marriage is purchased for the benefit of the other and in return for some remuneration. I shall not be particularly concerned with this model because it is no longer supposed to be a live option in the society where Ferraris and I live. But it is worth mentioning because, at some point in the history of Western Europe, the sort of contract involved in marriage came to be reconsidered and began to be modelled on a species of contract by which a company or partnership is formed in the business world. With this shift in emphasis, the parties to a marriage voluntarily codify reciprocal promises in such a way that, if either defaults, the other may dissolve the association and, in certain cases, demand recompense. The more modern legal-contractual understanding of what a marriage is thus implies that, unless divorce is possible, marriage has no meaning, because otherwise the promises would be unenforceable.
7The other basic conception of marriage, which is the specialist area of theologians as well as of experts in specifically canon law, is that when a marriage is celebrated, we have to do with a sacrament. On this conception, in addition to the spouses, a third party is involved, namely God, whose role is to be guarantor of the vows made. For this reason, we sometimes hear it said that, if divorce is possible, then marriage has no meaning. On this conception, the dissolution of the union between the parties can only be allowed by showing that, in one way or another, at least one of them was not in a position to make at least one of the vows that they apparently made. Nullity or annulment is not divorce, but rather the establishing of an incapacity to enter into the union in the first place.
8Though the two basic conceptions of marriage just outlined admit of a great variety of elaborations, the conceptual difference between them seems to be clear enough. Indeed, the difference is so marked that it seems to me to be misleading to suppose that, corresponding to the word “marriage”, there is just one sort of institution. For this reason, I am inclined to say that the word is ambiguous, just as it is ambiguous as between the sense in which it is used to refer to certain sorts of ceremony and that in which it is used to refer to the social unit that emerges from such ceremonies. While this latter ambiguity is unlikely to cause conceptual confusions, there is reason to think that the former does. Indeed, it has.
9The sort of confusion I have in mind can be exemplified by formulations of the supposedly unitary nature of marriage such as we find in a document that is very influential in the country that Ferraris and I inhabit, namely the Constitution of the Italian Republic of 1948, the first sentence of whose 29th article may be translated as follows:
The Republic recognises the rights of the family as a natural society founded on marriage.
10Article 29 tells us nothing about the components that go to make up the natural society that is the family. But, assuming that the family has to do inter alia with relations of parent to offspring, the succeeding articles proceed to tell us something about the rights recognised to it as well as the duties incumbent on its members. Our present purpose in citing it, however, is to remark on the peculiarity of the formulation concerning the basic or “conceptual” characteristics of this object.
- 2 Cf. Pol., I, ii 1252a34-b14. Where Aristotle proceeds on the assumption that the family or househo (...)
11On the one hand, the family is presented as a “natural society”. Such a formula may find its roots in a tradition of Thomistic thought that ultimately acknowledges Aristotle’s Politics as a source2, and it may well be that some of the framers of the Italian Constitution were indeed echoing that tradition. If, then, the family is a natural society, one might suppose that it has no need to be founded on anything other than nature, and specifically on human nature, whatever that might turn out to be. On the other hand, article 29 says that the family is founded on marriage. But it is left open what is meant by saying that this natural society is founded on marriage. If the distinction between the legal and the theological conceptions of marriage is as clear as I think it is, then either the family is founded on a contract or it is founded on a sacrament. That is to say, according to the Italian Constitution, this supposedly natural object is founded on – which presumably means that it derives from and cannot exist without – either a conventional act or a supernatural fact.
12Both of these options seem to me to be absurd, though in slightly different ways.
13To say that a natural object, such as the family, is founded on a conventional act, such as a contract, seems to leave hardly any role for the act to perform. If we suppose, for instance, that a tree is a natural object, we might try to look for some sense in which it could be founded on some conventional act. But we would soon find that there is none: even if it is a matter of convention in English that the natural objects that are trees are called “trees”, their being trees is not founded on that convention, but rather, if they are in anyway founded on anything, their being trees is founded on their nature as trees.
- 3 The sacrament in question does not turn the bread into improper sustenance for vegetarians – thoug (...)
14Conversely, to say that a natural object, such as the family, is founded on a supernatural fact, such as a sacrament, seems to leave hardly any role for nature to perform. Though, as I said at the outset, I am no theologian and do not know in any detail what powers should be attributed to sacraments by those who believe in them, my impression is that, if a certain sacrament is efficacious, then it is so quite irrespective of any natural facts. For instance, I think it would be heterodox for a Christian to believe that the natural characteristics – such as the nutritional qualities – of the host in the Eucharist are in any way changed by the fact that its substance becomes that of the Body of Christ3.
15It is not my present aim to quibble with the Italian Constitution (or even to take it seriously as a document), but rather to offer the formulation of the first sentence of its 29th article as an example of what I earlier alluded to in referring to the idea of putting the cart before the horse in the order of conceptual priority. If, that is, one were to think of the family as a natural society, then one would be pretty much committed to saying that marriage is founded on – derives from and cannot exist without – the family. For myself, I have only a hazy and second-hand notion, derived from some reading in Aristotle and St Thomas, of what might be meant by describing something as a “natural society”, but it seems rather that the commitments that are formalised by the making of promises or by the taking of vows in some ceremony of marriage must pre-exist the ceremony.
16One reason why marriage should be regarded as founded on the family, rather than in the conceptual order that the Italian Constitution proposes, is that, otherwise, we would have to allow that forced (“shotgun”) and arranged marriages should count as full instances of this kind of social object. This is a reason against thinking that the family is founded on marriage because it does not seem that a marriage that involves coercion of one or more of the parties gives rise to a full instance of the kind in the following fairly precise sense. Because coercion does not bind, but only compels, a coerced party to a forced or arranged marriage can cite the coercion as a ground for not being bound by the promises or vows proffered in the ceremony. It is in this sense that such a ceremony does not give rise to a natural society, but only to a coerced one. If the result of such a ceremony is not a natural society, whatever such a social formation might be, it is not a family and cannot be made one by any ceremony whatever.
17Though Maurizio Ferraris does not invoke the notion of a natural society in his various reflections on the relation between marriage and documentality, it seems to me that he attributes to some inscriptions of acts the sorts of foundational powers that article 29 of the Italian Constitution attributes to marriage. In doing so, he appears to be putting the cart before the horse in what we have somewhat grandiosely been calling “the conceptual order”. Let us see how this comes out in some key passages of Documentalità, starting with some considerations about a sort of union that is not, at the time of writing (May 2010), contemplated by Italian law.
- 4 I shall continue to leave this phrase in quotation marks because I treat it as a mere transliterat (...)
- 5 Ferraris 2009: 135.
18The sort of union in question goes by the abbreviation “Pacs” corresponding to the French for a “pact of civil solidarity” and adopted in that form also in Italian. By the French law 99-944 of 15th November 1999, the parties to a Pacs acquire certain rights germane to those of the next of kin, such as those of succession to property, to rental contracts and to pension payments, and of being consulted in medical decisions concerning the other party. A similar arrangement was passed into Spanish law on 30th June 2005. Like French and Spanish law, Italian law can be characterised as forming part of the regime of the Roman Law which, to put it provisionally, gives pride of place to writing, inscribing and registering. For this reason, proposals to introduce a sort of Pacs into Italy tend to emphasise that it should take the form of a written document drawn up before an official and transcribed into the registers of “civil status”4. As Ferraris properly says, if the form of the Pacs were adopted in Italy, “it would have rules, which would be debated by the legislative in a non-arbitrary way”5.
- 6 I have some, presumptive, reason for supposing that, in Italy, there is no legislation that makes (...)
19Although, as we have noted, article 29 of the Italian Constitution does not specify the characteristics of the parties to a marriage, it has been established practice, and one might suppose prescribed by some law of which I am frankly willing to remain ignorant6, that at least one and not more than one should be male, that at least one and not more than one should be female, and that there should be no more than two parties in total. While the schemes adopted in France and Spain, as well as most of the proposals made in Italy, accept the upper numerical limit, excluding thereby unions that are polygamous, polyandrous or promiscuous, they do not specify the sex of either or both of the parties. That is, both may be male, both may be female, or they may be one male and one female, these, allegedly, being the basic combinations (a point on which it is not to our present purpose to reflect).
20In Italy, every marriage to which the Republic recognises rights is at least a civil marriage and involves a transcription in the registers of “civil status”. If what we have said above about the basic models of marriage is not wildly wrong, we would expect that a civil marriage should be regulated in the light of the notion of contract. In practice, of course, it is not, given the ease with which what I have proposed as a clearly marked distinction between basic conceptions can be confused. It is at the discretion of the parties to superadd a sacrament to a civil marriage. Many sacraments, such as those conducted in various churches, synagogues and mosques, are recognised by the Republic as encompassing also civil marriages so long as they end with the same sort of transcription in the registers of “civil status” that characterises a civil marriage. Such sacraments may or may not contemplate rules about the sexes of the parties.
21For a heterosexual couple, such differences as there may be between a civil marriage and a Pacs are those that derive from the ways in which, in practice, the regulation of civil marriage is contaminated by considerations that do not derive from the notion of a contract but from that of a sacrament, such as the arbitrary imposition of times and terms for dissolution. In particular, it might seem that the sacraments that do regulate the sexes of the partners have had an undue influence on the consolidated practice of celebrating civil marriages. It is the opportunity for the parties to a same-sex union to confer on each other the rights characteristic of a next of kin that is the novelty in a Pacs.
22Because some people, including but not exclusively many adherents of what is taught in many churches, synagogues and mosques, think that a same-sex union cannot be a “natural society”, they oppose the recognition of next-of-kin rights to the parties to such a union. I rather suspect that it is very hard to know of a given domestic arrangement that, as a matter of fact, is to the mutual satisfaction of those involved in it (and in this differs from a marriage in which one or both parties is coerced), that it cannot be a natural society. And I strongly suspect that anyone who claims to be in a position to know such a thing about same-sex unions in general is self-deluded or, in the specific case, in the grip of a prejudice. At the very least, of the couples of my acquaintance, among those that seem to me to correspond most closely to the little I understand about natural societies, at least one is a same-sex union. In consequence, I remain unconvinced by the argument against recognising next-of-kin rights to the parties to a same-sex union on the grounds that it cannot be a natural society; but the point is marginal and I leave it there.
23In this connection, Maurizio Ferraris’ documental theory of social objects gets it at least half right when he says:
The fact that in the ongoing social debate also other unions [sc. than marriage] (such as Pacs) aspire to documentality is as good an illustration as there could be of the centrality of the documental function […] For the argument on which the proposal of Pacs is based is not that of the sharing of a life, which is entirely possible without Pacs, but rather the enjoyment of bureaucratically established rights, such as that of receiving a portion of a defunct spouse’s pension and the like, which documentality alone can ensure7.
24What is right about this is that the stipulation of a Pacs (like the marriages with which we are acquainted by established practice) has as its primary aim the transfer of a packet of rights of the sort that devolves to a next of kin. But the point at which it seems to me to put the cart before the horse is where it supposes that this transfer can only be effected by documents and, in particular, by transcription in a register of “civil status”. For that transcription seems to be but a pale reflection and an after-thought relative to the pre-existing aim or purpose, namely that of transferring the rights. While the documents in question can be produced as evidence of that aim or purpose, their existence does not constitute or embody it. Even if it is true (and it probably is) that bureaucrats will only be moved to act on the rights for which the beneficiary of a transfer can produce documentary evidence, it is the fact of the transfer that makes those rights the rights of their holder. The transfer is not itself a document, though it can be documented by one.
- 8 Ferraris recognises this fact en passant at ibidem: 190. It is a pity that he does not explore its (...)
25I go further. Suppose, as is supposed in some judicatures, that we can individuate at least one sufficient condition for the existence of a family or natural society. A candidate-condition that is taken seriously in some Common Law regimes is stable cohabitation8, whether that in turn be established by the sharing of bed and board for a certain period or by “habit and repute” (as Scottish law has it). In such a regime, there need be no documents. Though bureaucrats may mutter and may be unmoved to recognise rights, it can easily seem that the stability of the arrangement is tantamount to the mutual transfer between the parties of the rights which Ferraris rightly sees is the aim of the Pacs.
26Of course, such arrangements will be open to abuse. Abuse here would be a claim to be the beneficiary of rights on the part of a person who had not participated in a union meeting the conditions for the existence of a family or natural society. Yet if we admit the possibility of abuse, are we not thereby allowing for at least the possibility of there being just claims in such cases? Cases, that is, in which a party to a union has, in point of fact but in the absence of documents, matured the next-of-kin rights through the stability of the cohabitation? If so, it is not by documents that such rights are matured, but by the existence of the union.
- 9 A major reason why I am, as I said at the outset, in two minds about how married I am is that I am (...)
27It may be incautious of the parties to what we might, with only slight impropriety, call a common-law marriage not to furnish themselves with appropriate documents (a biological testament or relative power of attorney) to deal with the extreme conditions (incapacitation or death of one of the parties) in which the previous existence of the union can be put in doubt by bureaucrats and others. It may, moreover, be a better approach to the question of the devolution of pension and rental rights to establish a right of transfer even in the absence of civil marriage or Pacs, for instance as part of the paperwork in the setting up of a pension fund or rental agreement. That is, everyone should have the right to nominate anyone or no-one as the legatee of their rights in such cases9. Though I do not have at my disposal a winning algorithm for establishing rights here, it seems that, if a marriage of the contractual or sacramental sort involves the automatic nomination of beneficiaries, then there are rights that can be transferred. And it is not at all clear why the person whose rights are being transferred should not have control over the transfer. Just as the children of a marriage have inheritance rights in virtue of the marital status of their parents, so the offspring of a common-law marriage may (and, in some judicatures, do) have some claims on their parents’ property in case of decease. It may nevertheless be prudent for the parents to draw up wills to be clear on the matter.
28If there is a “conceptual” point here, it is that, if we can individuate some sufficient conditions for the existence of a family (whether we call it a “natural society” or not), when those conditions are met as a matter of fact, then that arrangement may itself constitute the nomination of beneficiaries and heirs. In consequence, just as civil marriage ought to be superfluous as a safeguard for the parties to a heterosexual union and for the products of their sexual activity, so Pacs ought to be superfluous as a safeguard for parties to a homosexual union and for their offspring, however arrived at.
- 10 Ferraris 2009: 144 etc., this thesis is sixth in the list of eleven given in the book’s epilogue ( (...)
29If the drift of my argument so far is correct, it appears that we have at least one case of a social object – the prominent and paradigmatic case of a marriage founded on a union – that does not strictly require documents for its existence. For this reason, we may doubt the generality of the claim that is so characteristic of Ferraris’ theory of Documentality, namely that “there is nothing social outside the text”10.
- 11 In Ferraris 2010a, Ferraris refers to his first presentation of the theory at Saarbrücken in Janua (...)
- 12 Searle 1995; see Ferraris’ criticisms of in his 2009, chap. 3.2; an earlier version of this polemi (...)
30The undoubted appeal of Ferraris’ theory of Documentality derives in the main from two sources. One is the variety, difficulty and importance of the matters to which the theory draws attention at a crucial passage of technological change like that which we have been experiencing with the increasingly widespread use of cellular phones and internet-attached personal computers. These are matters that do need to be addressed and that Ferraris has been addressing with acuity, profundity and wit for the better part of a decade now. Without the theory of Documentality, which Ferraris has been elaborating since 200511, many of these matters would have been hard to see and even harder to see as interconnected. The other main source of persuasiveness of the theory is that its basic and recurrent appeal is to a recognisable sort of object, namely an inscription; thus, the basic law of social objects that Ferraris proposes is that such objects are identical to inscribed acts. Where the theory of social objects promoted by Searle calls on such notions as “counting as” and “collective intentionality”12, each of which seems to generate more problems than it solves, Ferraris’ theory requires only that we appeal to what Austin once called a moderate-sized piece of dry goods, namely the physical support on which something is written and the writing to be discerned on that support. In this sense, Ferraris’ theory has the attraction of pointing to a concrete particular located in space and time, with which we are all familiar enough.
31In its turn, the centrality given to documents seems to rely on an intuitive use of a certain sort of regress argument to explain the nature of social objects, which we may proceed to consider in relation to the question of the status of marriage and therefore in isolation from the various, difficult and important matters concerning the interpretation of technological change. Without going into the general nature and varieties of regress arguments, we may say that Ferraris’ employment of the form goes something as follows. In order to explain any social object, we have to individuate a document that constitutes it; even when that document in turn derives from some social object, the social object from which it derives is itself constituted by a document. That is to say, Ferraris’ claim is that, in any series <document-socialobject-document-socialobject-document> of arbitrary length, the ultimate explanatory term will be a document. The explanatory regress can only be halted by pointing to a document, so that in the absence of documents there are no social objects.
32In order to illustrate how only documents can ultimately explain social objects, Ferraris offers the following thought experiment:
- 13 Here follows a list not unlike that in Ferraris first paragraph of p. ix alluded to in my first pa (...)
- 14 Ferraris 2009: 182, emphasis original.
Imagine a marriage in which all the participants are suffering from Alzheimer’s and that takes place in a world in which writing has not yet been invented. The rite goes ahead as prescribed (supposing for the sake of argument that these forgetful people are able to reproduce the rite); at the end of the ceremony, we have an additional husband and wife on the face of the Earth; and everyone goes home happy (except that they wonder why they are so damnably happy). The following morning, the forgetful spouses wake up and ask each other who they are and what they are up to. Nothing helps them in the task: no memory, obviously; nor yet any of those reminders [quei promemoria] that society has invented to keep track of the social objects that it has established, whether they be marriages […13]. It should be noted that if just one of the participants in the rite, whether it be one of the spouses, a witness, the person officiating or a mere guest, were to remember, we still would not have a social object, but just an individual memory. This is why, inscription, as a memory that is in principle accessible to more than one person, plays such a crucial role in my theory14.
- 15 Ferraris [unpublished ms].
33In another version of the same thought experiment15, Ferraris imagines that, rather than suffering from Alzheimer’s, the participants drink at the reception a drug called “amnesine” that wipes out their memories of the wedding. This is less ageist and obviates the difficulty of imagining the rite performed by people with neither writing nor memory. Ferraris then asks in what sense the couple should be counted as husband and wife.
- 16 Cf. Ferraris 2009: 144-5.
34For the purposes of the thought experiment, the lack of a reminder “that is in principle accessible to more than one person” is meant to be sufficient to show that it makes little sense to say that the couple should be counted as husband and wife: the social object that is the marriage would not have been kept track of and consequently would not exist16. What is right about this is that, on the one hand, if the couple did not behave as husband and wife, we would not be surprised. And it is also right in drawing attention, on the other hand, to the fact that, if the couple began or continued to cohabit stably, then we would not be able to explain that behaviour by reference to the ceremony of which no trace remained. If, however, it is possible that stable cohabitation should be their behaviour, then it seems to me to make perfect sense to say that they should be counted as husband and wife. For sure, it is hard to see why they might begin cohabiting after a ceremony they have forgotten, but, if they were already doing so before the rite, force of habit might be enough to overcome the effects of Alzheimer’s or amnesine, and habit, in turn, is enough to make a marriage.
- 17 See especially the distinctions drawn in chapter 5 of ibidem: 280-304.
35In terms of Ferraris’ regress, the thought experiment is meant to show that, in the absence of an inscription or document, it is impossible for a social object to exist. But it seems to me that the inscriptions and documents to which he appeals can only have the force they do because of the social objects that they register. Ferraris is fully alive to the fact that not all documents constitute social objects in the ways that inscriptions in official registers are supposed to17, but it remains unclear, even from his thought experiment, that the final explanatory term has to be a document.
36To see why this unclarity remains, consider a marriage that is not vitiated in the way that the thought experiment is meant to show. The parties to the ceremony, with the permission of the person officiating, generate a document that registers their change of “civil status”. The force of that document derives from its being valid and, derivatively, from its being recognised as such. By “validity” here I mean that the person officiating was properly invested with the power to grant or refuse permission to generate the document and had properly investigated whether each of the parties to the ceremony was eligible to generate the document (being uncoerced, of appropriate age and “civil status”, of sound mind and whatever else is deemed appropriate). This validity is not a matter of documents but of powers and eligibilities, though those powers and eligibilities may themselves be attested by documents. The documents that attest the powers and eligibilities in turn have to be valid in order to transmit validity to the document that issues from the marriage ceremony. Thus, if the person officiating is a mayor, her being a mayor may be attested by a certificate of the electoral returning officer. Yet that certificate did not make her mayor: if anyone made her mayor, the electors did by voting for her.
- 18 Ibidem: 22.
- 19 Ibidem: 264 (emphasis on the key word original).
37Ferraris is of course not unaware of this notion of validity, as when he concedes (alluding presumably to a judge) that a divorce only becomes “a genuine social object when it is expressed to someone who has the appropriate rights and duties”18, and when he later says that “social objects also [sc. in addition to documents] require a collectivity of persons who regard the content of certain inscriptions as binding in certain ways, which is to say as valid”19. It seems to me that these concessions are absolutely correct. But they are also fatal to the explanatory ultimateness attributed to documents: the bindingness and validity of documents must be prior to the documents themselves and will explain why the documents have the force they do.
38What I am suggesting is that, at least as regards marriage ceremonies, it is possible to make out a regress in which the final explanatory term is not a document but a social fact on which the validity or otherwise of some document may depend. Suppose, then, in an amnesine case, that is, where the memories of the participants were erased and no document was generated but the powers and eligibilities were in order, we ask whether the couple are married irrespective of their behaviour after the ceremony. Ferraris invites us to say that they are not. My suggestion is that, if the person officiating was properly invested and the parties were eligible, that historical fact is sufficient for it to be the case – irrespective of whether anyone can access the fact – that they are married. Even if no-one actually has access to the fact of the matter, the occurrence of the marriage was the fact of the matter.
39Perhaps I can give three clues why this alternative to Ferraris’ verdict should be a plausible understanding of the situation. One is that, supposing “alethine”, an antidote to amnesine, were found and administered to at least two (Ferraris’ favoured number) of the people present at the ceremony, then they could confer with the others and report what they now recall. The possibility of such a counterfactual seems to be sufficient to show that the marriage continues even if it is not recognised. Not all social objects have to be actually recognised for them to exist. As it happens, Ferraris himself seems to recognise this consideration when he imagines an Alzheimer/amnesine-type marriage which is followed by the discovery of a video registration of the ceremony, saying that,
it would be bizarre to claim that, before discovering what had happened, they were not married and that they became man and wife only once the documents attesting what had happened came to light20.
40Ferraris infers from the bizarreness of making the marriage depend on the discovery of the document, that it is the continued existence of the video that sustains the marriage. I, on the other hand, want to say that a supposed video is a mere witness to what had happened: what continues to exist is the marriage itself, whether or not anyone has any trace of it.
41A second clue to why I suspect that not every regress has to end with appeal to a document, lies in the fact that, though the marriage was frustrated in its aim or purpose, the amnesine was drunk after the completion of the ceremony, and a temporally later occurrence cannot change an earlier one. Given that the marriage did take place, nothing can now change that fact.
- 21 Ibidem: § 1.3, n. 15 on 370 (to 47).
- 22 Cf. Ibidem: § 4.2.
42And, third, if we are thinking about a pre-literate society in which marriages are routinely performed without the generation of documents, the presence of such a framework institution, practice or “form of life”, as Wittgenstein might have put it, is sufficient to confer substance on the ceremony come what may. Again, this is a point that Ferraris is aware of21, but he proposes that the traditions themselves should be regarded as that form of writing that he calls “archiwriting”22.
- 23 Cf. Derrida 1967: 216-229 (eng. tr.). I have never been able to tell whether Derrida took his own (...)
- 24 Though it would take us too far afield to consider the matter either in detail or for its broader (...)
43I am rather unsure whether Ferraris is using the notion of archiwriting in quite the way that can be found in the thought of its inventor, Ferraris’ late friend Jacques Derrida, who seemed to think that there is a primitive sort of writing that is in one way or another inscribed directly on some object that may be the unconscious or may be the brain (the difference is not negligible)23. If I understand it, this archiwriting is not in any specific language, such as English or French, and thus may be regarded as pre-linguistic. To the extent that we have to do with some inscription that is not fully linguistic, it might be wondered how it can be appealed to for an explanation of writing properly so-called. What we are still owed is an argument for thinking that it is useful to think of such things in terms of writing at all24.
44In short, an apparently forceful illustration of why documents are needed to generate social facts may suggest, on the contrary, that social facts are necessary to generate documents with certain types of efficacy. Though it goes beyond my limited purpose in considering marriage, I am inclined to suspect that the practice of generating of documents is just one form of life pretty much on a par with many others, such as performing marriage ceremonies or electing a mayor, and that the practice itself is not endowed with the particular foundational powers that Ferraris attributes to it.
- 25 Ferraris 2009: § 5.3, n. 7 on 406 (to 322).
45With his emphasis on the accessibility (at least in principle) of documents to at least two persons, Ferraris aims to exclude from the status of social object any arrangement that is not in some way published or public. This leads him, in all consistency and in an interesting endnote appended to the sentence following the passage I have cited at some length about Pacs from p. 322 of Documentalità, to invite us to reflect on a pair of cases that he is committed to treating as degenerate or imperfect forms of marriage25.
46One is the case, derived from Mozart’s Don Giovanni, in which the eponymous bounder invites Zerlina to a “most secret marriage” with just the two of them alone in a little house. For Ferraris, this supposed marriage can be no such thing, because there would be no witnesses, no papers, no register and no third party officiating the ceremony. For the documental theory, some adequate subset of these are necessary for the constitution of the social object in question, with at least some emphasis on the written elements. Now I agree with Ferraris that Zerlina would be well advised not to accept Don Giovanni’s invitation. But this is not because no marriage whatever could emerge from “quel casinetto”, but rather because the peasant girl would be at a severe disadvantage in trying to assert her rights as wife against a male aristocrat if he decided to welsh on such promises as he made.
- 26 Ferraris 2009: § 2.3 n. 19, on 381 (to 125).
- 27 Thus sings one of the skeletons recounting the Corpse Bride’s story.
47In another endnote to Documentalità26, Ferraris proposes for our consideration an intriguingly analogous wedding, but this time with supernatural overtones. This arises out of the predicament of Victor Van Dort in Tim Burton’s 2005 film The Corpse Bride, who has failed to commit to memory a rather Jewish-flavoured set of vows involving candles, cups and hands that he is supposed to recite in his marriage to Victoria, the bride fixed on by his parents. In despair, Victor goes wandering in the woods to try to reconstruct the form of words required. When he does get the formula right and slips the wedding ring that he has in his pocket onto what he thinks is the branch of a tree, he is taken aback to find that what he took for wood is in fact the bony knuckles of the Corpse Bride, who had been waiting, since a disappointed elopement, “for someone to ask for her hand”27. She erupts from under the snow, proclaiming “I do” as if that were the answer to a priest’s or registrar’s question “do you…”, and pursues Victor until a moment at which she can say to him “you may kiss the bride”.
- 28 Ferraris 2009: § 2.3, n. 19, on 381 (to 125).
48What primarily concerns Ferraris about the Corpse Bride marriage is the difference between turning a man into a husband and turning a man into a pig. Where the former can be done with a form of words like those of a wedding ceremony, the latter requires magic. The point is well taken, as is its converse, namely that magic is insufficient to turn a man into a husband. But it is interesting to note that Ferraris comments that “after all, the marriage is not that different from a normal wedding”28. This is an odd thing for him to say, given his theory. In first place, since Victor and the Corpse Bride are the only persons present in the wood, we would expect him to say that it should be assimilated to the Don Giovanni - Zerlina case: without witnesses and registrations, we should have no marriage on the documental theory. Secondly, Victor is merely rehearsing a ceremony rather than performing one. If the saying of the words were enough, then every error-free rehearsal of a wedding would be a wedding. Thirdly, when Victor uses second-person pronouns in his recital, their most natural indexing would be to Victoria, as stood proxy for by the branch of the tree: Victor has not asked for the hand of the Corpse Bride. And, in any case, the Corpse Bride’s response to the ring on her finger is part of a different ritual, specifically one in the Christian tradition, from the one that Victor is preparing for. We shall see shortly what Ferraris’ “official” view on formal correctness in ceremony performance is.
- 29 In Italian, the word “nipote” covers a multitude of sins, as the English word “nepotism” attests.
- 30 Ferraris 2009: § 5.3, n. 7, on 406 (to 322).
49The other sort of case that is degenerate for Ferraris and that is cited on p. 406, n. 7, has as its background the Italian practice of publishing in newspapers notices of condolence when a person dies. The idea is that family, work colleagues and other interested parties publicly express their grief by way of writing. What Ferraris evokes is an instance in which, after the messages of the widow, children and nephews-and-grandchildren29, there could appear “the final salute of a lady defining herself as the deceased’s ‘wife before God’”30.
- 31 For the trajectory of his development on the point, see Antiseri 2009.
50Without denying that the lady in question is bereaved and upset, Ferraris is less than convinced that her self-description is appropriate, because he thinks that she lies under the same delusion as those who place the spirit (interpretation) before the letter (meaning). Without wanting to enter into this larger debate, on which I find myself almost entirely in sympathy with Ferraris’ robust rejection of the hermeneutic mode in recent Continental philosophy31, I am inclined to give a different account of the poor lady’s plight. If I understand the direction of his thinking, Ferraris would say that being “married before God”, but in secret, is not really being married at all because lacking the appropriate documents. But I think there are at least four ways in which the generic description furnished in Ferraris’ endnote can be unpacked to arrive at differing assessments of what, if anything, has gone wrong in such a case.
51One hypothesis is that God does not exist or does not care one whit about what humans do, and so what I earlier called the sacramental conception of marriage is a mere error. I suspect that Ferraris is simply assuming that this is the case; and he may be right. But dependence on so controversial a premise might make his account of a paradigmatic social object less than satisfying to some people. At least there is this: though the documental theory configures marriage as nothing over and above a social object, there are many people who think otherwise and, in particular, who think that there must be something incomplete in a marriage that is not “before God”. Even without going so far as to say that a civil ceremony is nothing but a figleaf for concubinage, such a view might raise suspicions in some quarters about Ferraris’ purely social account of the matter.
52In the other three scenarios, we may concede to the lady – and to the many others – the existence of a deity one of whose pastimes is to underwrite humans’ marriage vows, and put on hold questions about why He or She might be interested in doing so. First, assuming the God called on by monogamous Christians (this being a default position among those who publish their inconsolability in Italian newspapers), there is the case in which the affair between the lady and the dear departed was consecrated prior to the latter’s public and documented marriage. Here, assuming that there is a “trace” – perhaps of the nature of archiwriting – in the mind of God, we seem to have a recognisable instance of a documental marriage, even though the mind of God may be inscrutable to men. In line with his theory of traces (“icnology”32), Ferraris ought to recognise this marriage as such, and to say that the subsequent public ceremony was bigamous. Vice-versa, if the secret affair began after the public ceremony, then, if the Christian God were a witness, He would have been a witness to bigamy (because of the “civil status” of the “gentleman”), and would presumably take exception to His name’s being taken in vain by the lady in the newspaper. The fourth case is that in which we have a God who takes a relaxed line polygamy (and perhaps even polyandry); here, we would have two marriages, irrespective of temporal sequence, both in perfect order, one a matter of public contract underwritten by documents and the other a sacrament with divine endorsement.
53Before winding up our ruminations, we may consider another couple of cases of marriages that present potentials for aberration.
- 33 Ferraris, oral presentation of Documentalià, Milan University, 17th February 2010.
54One sort of case that Ferraris has occasionally described as an illustration of the power of documents is that of the posthumous marriage33. In French law, the parties to a marriage appear to be required to prepare for the civil ceremony by collecting certifications for the purpose. If all this paperwork is in order, then they may proceed without further ado to the marriage. But it sometimes happens that one or other party dies between the completion of the bureaucratic obstacle course and the date set for the marriage. In such a case, the surviving would-be spouse is at liberty to present at the town hall and proceed with the ceremony. Even without the ritual expression of consent of the deceased party, the marriage is deemed valid because the documents on which it is based or, indeed, that constitute its validity are themselves valid. In such a case, the bride or groom acquires instantaneously the “civil status” of widow or widower, with the rights of inheritance and so on that we alluded to in considering Pacs.
- 34 Ferraris 2009: § 5.1, n. 36 on 404 (to 304).
55While Ferraris flourishes posthumous marriage as a proof in favour of the documental theory of social objects, an alternative reaction might be that of Dostoevskij, as cited by Ferraris34, that the French are infatuated with documents. That is to say, if the documental theory of social objects has as a consequence that posthumous marriage is marriage in the full sense and cannot give much of an account of what might be aberrant in it, Dostoevskij might want to say that the theory must be defective in one way or another. For instance, a judicial regime that makes the marriage ceremony nothing more than the cherry on the top relative to the collection of other documents may have muddled a necessary condition, such as we have in the reading of the banns, with a sufficient condition of the passage in question. Though such muddles are common enough, it may be that the possibility of posthumous marriage was deliberately – even humanely – chosen with a view to reducing the distress of a bereaved fiancé(e). And one might wonder why other Roman Law judicatures that give succour to documental considerations – such as those of Spain and Italy – do not take quite the same line as the French. Though I do not pretend to know for sure what is aberrant in the institution of posthumous marriage, the fact that the surviving party is not for even one instant married, but passes instantaneously from celibacy to widowhood, seems to me a warning sign that something is amiss.
56As part of his resistance to the idea that a social object can be constituted by the merely subjective intentions of the participants, Ferraris takes a firm position on what we have already called the formal correctness of marriage ceremonies as necessary to the validity of the document generated. If the form or style of words is not respected, the ceremony misfires. Thus,
if, instead of saying “yes”, someone said “certainly”, the marriage would not be valid (difference of styleme, with sameness of objects); but it wouldn’t be valid either if, in pronouncing the ritual formula, he spoke in a falsetto voice, putting on a Tuscan accent or imitating Neapolitan or Bergamasque dialect (difference of oral styleme, with sameness of written styleme)35.
57Now, I can understand why, in a judicature that has set out a single text that must be followed for the validity of marriage, this may be a fair reflection of the rules within some legal systems, such as some of those that fall within the ideology of the Roman Law. But I am not yet convinced that those systems are not just codifications of an infatuation with documents. In particular, I harbour the suspicion that the infatuation in question takes on the hue of a masochistic obsession when promoted by those who have nothing to gain from attributing power to the bureaucrats to insist on proper paperwork.
58Moreover I do not see why a couple may not agree in advance with the person officiating a form of words that they will follow in such a way as to ensure the generation of the marriage certificate. For instance, it seems to me perfectly legitimate for a prospective bride to refuse to make a promise to “obey”, when the groom is not so bound. Likewise, though the Roman Catholic Church and, not incidentally, the Italian Republic are averse to forms of solemnization that do not conform to the practices of the home team, in cases of mixed marriage, the introduction of elements from different traditions seems to me to offer opportunities for an enrichment of such occasions. On condition that the person officiating is empowered and prepared to accept some alternative form of words, then the marriage is as valid as can be.
- 36 Of course, the Church’s position is that the officiating role of the priest is such that, so long (...)
59As to Ferraris’ point about the difference of oral style, it is not quite clear why this should be invalidating for the purposes of generating the document that is the purpose of the performance. In the first place, for documental theory, it should be perfectly indifferent whether the persons aiming to register their marriage are in earnest or not. If I put on a falsetto to make my declaration, that is my business, for instance if I wish to signal to my spouse (who may even agree with me) that I regard the whole thing as a charade; so long as the witnesses hear it as the correct formula, that is sufficient. Secondly, the cases Ferraris cites seem to imply that a real Tuscan, Neapolitan or Bergamasque might be prevented from marrying within Italy because they are unable to speak “proper” Italian. And, thirdly, if I understand the history aright, until very recently the Roman Catholic service of matrimony, which also generated the civil registration, was in Latin and therefore (as the Articles of the Church of England have it) “in a tongue not understanded of the people”. That is to say, if linguistic conformity were necessary for validity, then we would have to say that an overwhelming majority of Roman Catholics who have ever passed through this rite were not married36.
60A final instance worth considering concerns the Pakistani cricketer, Shoaib Malik, who, in April 2010, married Indian tennis star Sania Mirza in one of the Gulf states (by what rite – whether Muslim or Hindu or some exotic mixture – it is not given to me to know). Before that wedding took place, there was an obstacle to be overcome in the fact that Malik was alleged to be married to a woman whom he claimed he had never met:
- 37 Chamberlain 2010. A referee for this journal reminds me that a Muslim man may marry a non-Muslim w (...)
Ayesha Siddiqui said she had sent him pictures of herself and they had talked on the phone. There were claims that she avoided meeting him because she had put on weight, and that they were eventually married on the phone.
At first Malik tried to wriggle out of it, but when Siddiqui’s family called the police, he admitted the marriage and, after negotiations between the families, a divorce was agreed37.
61Ferraris is an enthusiastic commentator on the changing roles of the telephone, and in particular of the mobile or cell phone38, astutely stressing the aspects under which the newer technology should be seen as constituting instruments for the production and registration of documents. And his theory of Documentality as the basis of social objects would impose some restrictions for the Malik-Siddiqui marriage to count as such. One such would have to be – in the light of his judgment on the Don Giovanni - Zerlina case – that the marriage conducted by phone would have to take place in some sort of conferencing mode, with witnesses and person officiating counting as “present” (in time, if not in space) in virtue of their being connected to both of the contracting parties. Another might be, in the light of the Alzheimer-amnesine sorts of cases, that at least one of those “present” did something to fix a record of the event accessible in principle by more than one person.
62From the fact that Malik thought it worth his while to try “to wriggle out of it”, we might infer that he supposed he had wriggle room because of a lack of appropriate documents, where “appropriate” would mean those recognised in registries in Pakistan. When he “admitted” the marriage to Siddiqui, then, it may have been that what made the difference was embarrassment, given his high public profile, at having the police called in (to do precisely what in a civil case, one wonders), rather than a piece of paper or an electronic trace. If so, the documentality theory should say that, once the families had made their peace, we have a divorce without a preceding marriage. Which strikes me as a little bizarre. In one sense, I am inclined to say that the agreement, whether written or not, to bring the Malik-Siddiqui liaison to a close is a proof that there was a pre-existing marriage. In another, it seems to me indifferent whether we say that that agreement constitutes a “divorce” or not.
63In short, it is far from clear that the documental theory of the nature of social objects is particularly helpful in guiding our thought about some, admittedly marginal, cases of marriage.
64The foregoing comments tend to suggest that, as regards marriage, the generation of documents is neither necessary, because a marriage can subsist even in the absence of documents, nor sufficient, because a supposed marriage can fail to subsist even in the presence of documents. One explanation of this might be that, in taking social objects to be derivative of documents, the theory of Documentality has made a determination about the conceptual order that may not be applicable to all social objects. In particular as regards marriage, the documental theory may have reversed the conceptual order and regarded one thing that may itself need to be explained, namely the power of documents in our culture, as the explanation of another thing that may (or may not) need to be explained, namely the existence of social objects. Though I do not myself subscribe to any interesting or general theory either of documents or of social objects, my impression is that Ferraris’ analysis of many social objects in terms of their relations to documents fits the case splendidly, but I do not think it negligible that the rather random sample of non-standard cases of marriage reviewed in the last section can be handled more plausibly if we are not in thrall to the thesis that, insofar as a marriage is a social object, its essence is the inscribed act by which it is instituted. In this sense, though Ferraris has elected marriage as a prominent paradigmatic case of a social object, even if it is not a direct counter-instance to his theory, it appears on reflection at least as rather more problematic for his theory than he seems to have foreseen.
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