Wilfried Rault, ” Between law and symbol. The social customs of the civil pact of solidarity “, French Review of sociology, 2007
In the space of thirty years, the institutional frameworks of the couple’s life have changed considerably. The model of marriage-an institution, a rite of passage naturalized and essential, meaning both access to marriage, the family and entrance into adulthood, has gradually given its place to a diversity of forms of community life. “The contract entered into by two natural persons of full age, of opposite sex or the same sex, to organize their common life” (Art. 515-1 of the Code civil), the civil solidarity pact is a part of the movement of diversification of the forms and uses of the frameworks of privacy. Established by the law of 15 November 1999, the Pacs was registered for France in the european dynamic of legal recognition of same-sex couple that is initiated by Denmark (1989) Norway (1993) Sweden (1994) Iceland (1996). Compared to most of those european laws that are earlier, it has the specificity to apply also to couples of different sex who wish to establish a legal framework for their union without resort to marriage.
Wilfried Rault defends the following hypothesis : borrowing both to the foundations of the marriage and to the spirit of certain provisions characteristics of the free union, the Pacs, akin to an intermediate object, containing potentially multiple meanings. Dedicated to differentiate itself from the marriage, it does not, however, an aggregate form of recognition to same-sex couples. The author demonstrates that the Pacs is characterized by a paradox : supposed to recognize the same-sex couple, the modalities of its institutional recognition under the control of a logic low social visibility.
The development of the civil solidarity pact responds to two policy objectives distinct. It was motivated both by the desire to recognize the same-sex couple, but, more widely, to promote a new form of life common to both sides of the marriage.
It is a principle of ” differentialist “, to distinguish very clearly the new text of the marriage, which has inspired the writing of the law 99-944 : the pacs is a new possibility for couples to frame their union. Its uniqueness is embodied by the fact that the Pacs does not alter the civil status of persons. This provision enshrined the civil pact of solidarity in the movement for the empowerment of individuals vis-à-vis the couple (Singly, 1993), to the extent that it represents a form of alliance in which the formal identity of the people is not an identity of marriage. The Pacs is therefore a form of recognition of the couple who does not have an entity conjugal above the individual. Moreover, unlike the marriage, the articles establishing the PACS make no allusion to the fidelity. In addition, the terms and conditions of rupture are emblematic of the principle differentialist having printed the text, the pacs that may be broken by mutual agreement, by contrast with the terms of the divorce to a joint petition involving a court proceeding.
The logic differentialist is also at work in all dimensions of institutionalised of the pacs. The distinction appears first in the choice of an institution different from the one that hosts the candidates for the marriage since it is the court of first instance and not of the town hall. The partner of a civil partnership is a court clerk. In these conditions, the Pacs may lend itself to a privatisation maximum, in the sense that a “tightening” exclusive of the device on the torque is possible, and that any marriage without witnesses is void. All of these factors of differentiation, a clear demonstration of the will of the legislator to create another form of union.
As a recognition of a new form of common life, the Pacs, however, is not devoid of ambiguity. The lack of registration of conjugal status on the civil status closer to the Pacs of a concubine improved the record to the district court tends to reduce the social visibility of this alternative.
The ambiguities of the Pacs as a form of recognition of same-sex couple
The Pacs is a recognition of the same-sex couple, but it is mitigated by several provisions. The law on the civil solidarity pact formally recognizes the same-sex couple, because of its explicit in the civil Code. This recognition is embodied then in the fact that the Pacs is a provider of rights of various orders and imposes obligations on the parties and third parties to which same-sex couples could not access before. These effects are both patrimonial and extra-patrimonial. The Pacs will mark the passage from a logic of tolerance of homosexuality to a logic of recognition. In this sense, it can be seen as a sign of institutionalization and a destigmatization of homosexuality, and a movement of the equalization compared to the heterosexual couple.
However, elements bear witness to a partial recognition of the same-sex couple. If individuals in same-sex couple see of course their union legally recognized, for all that, they still have necessarily a status of single. The link is a homosexual remains, from this point of view, registered in the private sphere and is therefore the subject of a lesser legitimacy that the union is heterosexual.
In the same way, if the Pacs is a provider of rights (and obligations), these rights are reduced compared to those afforded to heterosexual couples in marriage. Finally, strictly confined to the couple, the Pacs does not recognize situations of same-sex parenting. Thus, the Pacs is characterized by a paradox : supposed to recognize the same-sex couple, the modalities of its institutional recognition under the control of a logic low social visibility.
The second part of the article is very interesting : Wilfried Rault is interested in the uses of pacs : what meaning do the actors ? He distinguishes four figures ideal-typical of the pacs, depending on whether contractors are more or less meaningless.
Often, the Pacs can respond to a problem of a strictly legal nature or practice. It comes to solving this problem (the one of the geographical proximity for example, under penalty of separation), while preserving, for couples of different sex, the ideal wedding for a later date. In this context, pacser does not undermine the symbolism of marriage which would be undermined if it was seen for material reasons and in some precipitation-related deadlines that accompany the practical issue to solve. The specific terms of registration are, in this perspective, the appropriate meaning exclusively legal endorsed by the Pacs from the point of view of the contractors. The Pacs can respond to the same type of aspiration to same-sex couples : we can choose to respond to such a specific issue and do not deploy practices of symbolisation in order to preserve a marriage that you hope to come. In all these cases, the Pacs is mobilized because it does not carry the true meaning of extra-legal for those who choose it, and that it does not shadow a wedding planned or desired in the longer term. The contractors do not build the civil solidarity pact as a device establishing their union. It can be described as a asymbolique marital of this double fact.
Conversely, the Pacs may be highly invested. In its most typical, in reality, rarely encountered, it is a true marriage alternative for same-sex couples. The Pacs, therefore, is not reduced to its practical dimension and legal, but invested symbolically. To the opposite of the previous type, the civil solidarity pact is a dimension instituante. It finds its translation in a ritualization to be understood as the mobilization of sequences symbolic that aim to give meaning to the Pacs.
Symmetrically, we can distinguish two other poles, which is based on a distance vis-à-vis the marriage. The Pacs is valued for its features that make it a device widely private and alternative. The Pacs asymboliques antimatrimoniaux mean that this use refers, in its typical figure, exclusively on a legal basis and is devoid of any surplus of meaning. It makes sense in a distrust vis-à-vis the marriage, but also of any form of institutionalisation of the marriage bond, which would by its celebration of ritualized. This is why the contractors will keep for any staging that would change the tone of the Pacs :
Finally, the Pacs may be chosen because it symbolizes the affirmation of another mode of common life. In this perspective, the elements that make the Pacs as an alternative to marriage (the maintenance of one identity statutory individual, the terms and conditions of rupture, the absence of denotation religious) are valued. In its most differentiating, the Pacs may provide to the contractors a real anti-marriage. The third family are excluded from any celebration or even any announcement, the ritual obligations which the marriage returns are satirized. The marriage and its staging traditional are the figures against which is built the direction of the Pacs.