Differences in a Minor Archive: Feminist Activists and Scholars on Cohabitation

Abstract

In an act of minor comparativism, this article studies feminist writings on unmarried cohabitation from Canada’s jurisdictions of the common law and civil law. It examines activist texts and legal scholarship for and against regulating cohabitants. Reading the English-language literature from the common-law provinces and the French-language literature from Quebec, it reports differences in substance, in emphasis, and in what is common sense. Differing approaches to ideas of freedom, autonomy, and choice run throughout. The Quebec literature shows disagreement between activists and scholars. Over time, that literature has moved towards the view in the common-law literature. Lessons for comparatists relate to varieties of difference, the definition of legal sources, the asymmetrical role that legal traditions play in majority and minority contexts, and the limits of law in explaining differences. Given the unreliability of initial observations of difference and sameness, comparatists should read a broad range of sources with care and humility.