The Evolution of the Love Contract

From the 1804 Civil Code to dating apps, what we call loving in France has been constructed as a historically situated contractual regime. Analysing it through its social functions allows each person to exercise their freedom with discernment, without reducing love to what this framework describes.

The love contract as a historical construction

When we speak today of couples, of fidelity, of monogamy, we often assume these forms describe something eternal, or at least very ancient, in human experience. Historical anthropology, since Philippe Ariès, suggests on the contrary that what we call a couple in contemporary France, that is, the union of two consenting adults, supposedly exclusive on the sexual and emotional level, founded on romantic feeling, and organised around a shared patrimonial project, is a relatively recent historical construction whose institutionalisation can be dated.

The 1804 Civil Code establishes marriage as a republican institution, separated from canon law and from divine law. The political aim of this separation is to transfer the legitimacy of union from the religious register to the state register, within the revolutionary project of founding a purely human law. Civil marriage then regulates two things that the revolutionaries considered essential, the transmission of patrimony, which can no longer pass through divine law and noble primogeniture, and the legitimacy of children, which determines inheritance rights. The patriarchal monogamous couple becomes the basic cell of a new social organisation, in which private property is transmitted through legitimate filiation.

This analysis is not mine, it is shared by historians of the family, from Philippe Ariès in Centuries of Childhood (1960) to Martine Segalen in Sociologie de la famille (1981). In their work, the contemporary monogamous couple appears as a dated institution, one that fulfils precise social functions, and that could have been something else in another political configuration.

Fourier’s counter-revolutionary project

Charles Fourier, in the same period, offers a radical critique of this construction. In Le nouveau monde amoureux (The New Amorous World), written in the 1810s and 1820s but unpublished until 1967, he defends the idea that human passions are multiple, varied, distributed according to each person’s affinities, and that compulsory monogamy mutilates them. His successive editors long kept this thesis at a distance, so disturbing did they find it.

Fourier instead proposes an organisation in which amorous passions could find expression in diverse forms, socially recognised, without shame or secrecy. He imagines institutions, which he calls phalansteries, where collective life would be organised to allow this affective and sexual diversity, with respect for each person. His thought is strange and systematic, sometimes outlandish in its detail, but his critique of monogamy as a patrimonial institution still holds.

Fourier was marginalised for two centuries, partly for moral reasons (his thought scandalised his time), partly for political reasons (his critique of monogamy struck at the heart of the bourgeois order). He is being rediscovered today by theorists of non-monogamous love, who see him as a precursor, and his gesture also anticipates the ethnological approach to the love contract, which takes monogamy as an institution to be analysed through its social functions, rather than as a moral norm to be judged.

Foucault’s analysis of the sexuality dispositif

Michel Foucault, in The History of Sexuality (1976-1984), takes up this analysis within a more systematic conceptual framework. He shows that sexuality, as we think of it today, is not a natural given that would have been more or less repressed depending on the era. It is a dispositif, that is, an articulated set of discourses, practices and institutions that produces sexuality as an object of knowledge and of power. This dispositif has a datable history, beginning in the 17^th century and intensifying in the 19^th.

For Foucault, the bourgeois monogamous couple is a product of this dispositif, not its precondition. It was constructed, as an object of discourse and as an institution, at the same time as psychiatry, paediatrics, sexology, eugenics, and the other forms of knowledge that regulate bodies. From then on the monogamous couple appears as one historical form among others, one that succeeded in naturalising itself to the point where it has been mistaken for the order of things.

This Foucauldian analysis, crossed with the contributions of feminism, opens an ethnological view of our contemporary amorous forms. Rather than judging them or defending them, we can try to understand how they came to be constituted, what social functions they serve, and what lives they make possible or prevent.

Three feminist extensions: hooks, Chaumier, Illouz

Several women authors have extended this analysis by giving it a political reach. bell hooks, in All About Love (2000), shows that the contemporary monogamous couple often rests on an impoverished definition of love, reduced to exclusive attachment and emotional dependency. She argues for an ethics of love that would include community, friendship, family ties, in an extended form of affective life that does not reduce everything to the uniqueness of the partner.

Serge Chaumier, in L’amour fissionnel (Fissional Love, 2004) and in several subsequent works, analyses the contemporary transformations of forms of union in France. He describes the spread of serial monogamy, that is, the succession of exclusive but successive relationships, which is becoming the dominant form. In practice, this seriality has replaced lifelong monogamy, without the moral discourses and legal institutions having taken the measure of this change.

Eva Illouz, in Why Love Hurts (2012) and The End of Love (2020), extends these analyses within a sociological framework. She shows how the liberalisation of amorous choice since the 1960s has combined with the marketisation of relationships to produce precarious forms of attachment, in which each partner lives with the permanent awareness that the other could at any moment be replaced. This precariousness weighs differently on men and on women, on the upper and the popular classes, and produces specific inequalities that need to be named.

What dating apps have changed since 2010

To these already dense analyses must be added what has been happening since the 2010s with the spread of dating apps, a transformation that is not a simple technical change. According to the available studies, more than half of new amorous relationships in France and in most Western countries are now formed through an app, and the proportion is still higher among people under forty and among those living in urban areas.

A first effect is the constitution of the self as profile. To use an app, one must produce a representation of oneself in the form of a card, made of photos, a description, listed interests, displayed expectations. This representation obliges each user to think of themselves as a product to promote, as a card that must be optimised in order to be chosen. This objectification of the self, previously reserved for professional contexts, becomes a massive experience of contemporary amorous life.

A second effect is algorithmic selection. Apps use algorithms to propose presumed compatible matches to their users, and these algorithms encode criteria that remain largely opaque to the users themselves, who sees whom, in what order, at what frequency. The amorous encounter, which from the 19^th century on has presented itself as the irruption of chance or destiny into a life, is now mediated by a calculation whose logics remain largely hidden.

A third effect is the trivialisation of rapid replacement. The app is, by construction, a seemingly inexhaustible reserve of potential partners, and when one relationship disappoints, the other profiles are one swipe away. This structure modifies the very disposition to invest in a relationship, because the awareness of permanent alternatives is encoded in the device. Psychologists speak, after Barry Schwartz, of the paradox of choice, by which the larger the range of options, the less satisfying the commitment to any chosen option.

This effect does not exhaust users’ experience of dating apps. Many people who have met through this channel form lasting couples and do not aspire to change ; the app was the means of the encounter, but it did not determine what followed. The statistical pressure of replacement exists, and coexists with individual trajectories that free themselves from it.

A final effect concerns the temporalities of singlehood and couplehood. Formerly, leaving a relationship meant a period of social withdrawal, the time to recover and to find again a circle in which encounters might be possible. Today one can be exchanging messages with a dozen people two days after a break-up, and this compression of the time of transition produces effects that we are only beginning to study.

The concept of a contractual regime of love

To think this whole, I propose the concept of a contractual regime of love. At a given historical moment, this regime is the combination of several things, the legal forms of union (marriage, civil partnership, cohabitation, singlehood), the social norms around fidelity, duration, sexuality, the material institutions that make encounters possible (places of socialisation, applications, intermediaries), the implicit expectations about what a relationship should bring, and the social sanctions that accompany transgressions.

This regime evolves through gradual modifications, sometimes through ruptures, without there being any stable essence to return to. Recent transformations mark the emergence of a new contractual regime, whose contours are settling at this very moment, rather than an end of the couple. Lifelong monogamy has given way to a generalised serial monogamy, in which one strings together successive exclusive relationships. Encounters, which used to pass through direct social circles, are now mediated by the algorithms of the apps. Commitments are lived in a conscious precariousness, where the implicit promise once bore on duration. Openly non-monogamous forms, finally (open couples, polyamory, explicit non-exclusive relationships), are gradually spreading and remain a minority, even as they grow.

To think these transformations without judging them is to give oneself the means to understand them, and to decide with full awareness the manner in which one is inscribed in them. Anyone entering amorous life in France today enters this regime, whether they want to or not, whether they are aware of it or not, and seeing it clearly allows them to take their place within it with discernment, rather than being led into it without their own awareness.

Living in a relationship without fading

Analysis in terms of a contractual regime describes the frameworks within which we inscribe ourselves, without saying what is lived within them. An amorous relationship is lived in the body, in the daily attention to the other, in the joy of being with a person or in the weight of an argument, and an analysis in terms of choices between options grasps only a part of this. Reducing love to a series of rational decisions within a given social framework leaves aside what makes it an experience.

The encounter, in particular, goes beyond the matching of profiles. To meet a person is to allow oneself to be transformed by them, to accept that they open us to ways of seeing and feeling that we would not have had without them. An encounter can also close us, lock us into roles that leave us no room. The quality of a relationship depends to a great extent on what the encounter does to each person, on the direction in which it carries them or closes them off.

There remains, within a chosen relationship itself, the question of the freedom that is exercised in it. The concessions one makes to the other are inevitable in any shared life, and their meaning depends on what they touch. One can give up tastes to share those of the other without losing anything essential, and one can also give up dimensions of oneself that end up extinguishing one. The frontier between openness to the other and the effacement of self is mobile, never traced in advance, and each person negotiates it day by day. No contractual regime resolves this question, which is worked out within the relationship itself.

An ethics of change without a morality of progress

This ethnological analysis invites an ethics of its own, one that does not judge any contemporary amorous form en bloc. Monogamy was not worth more than what preceded it, and non-monogamous love is not worth more than monogamy ; dating apps do not degrade humanity, nor do they free choices by some enchantment. Amorous forms change, this change responds to broader social, economic and technical transformations, and each person finds their place in it according to what they live and what they desire.

This stance is not moral relativism. It recognises that some practices harm people (relationships under coercion, manipulation, violence) and must be named as such in any possible contractual regime. It also recognises that some developments move in the direction of greater equality, such as the end of the conjugal duty or the criminalisation of marital rape in France in 1990, and deserve to be defended on that basis.

But it refuses the idea that there would be some ideal form of union to which one ought to return, or toward which one ought to progress. Amorous forms are multiple, they change, and philosophy can shed light on these changes without having to judge them en bloc.

To anyone who today wonders how to live an amorous life, within which framework to situate themselves, how to reconcile their desire with their commitments, philosophy has no answer to give. It can only offer tools for thinking the situation, concepts that help to see what one does when one loves, and what the institutions, the technical dispositifs and the social norms do to our ways of loving without our always noticing it.

The political function of a philosophy of love today is to make legible the implicit norms that weigh on lives, so that each person may exercise their freedom within them with full awareness.