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Laissez-Faire Marriage
Should the state be involved in marriage? Writing in the NYTimes professor of history Stephanie Coontz notes:
The American colonies officially required marriages to be registered, but until the mid-19th century, state supreme courts routinely ruled that public cohabitation was sufficient evidence of a valid marriage. By the later part of that century, however, the United States began to nullify common-law marriages and exert more control over who was allowed to marry.
By the 1920s, 38 states prohibited whites from marrying blacks, “mulattos,” Japanese, Chinese, Indians, “Mongolians,” “Malays” or Filipinos. Twelve states would not issue a marriage license if one partner was a drunk, an addict or a “mental defect.” Eighteen states set barriers to remarriage after divorce.
It's no accident that the state began restricting and intervening in the marriage contract at the same time as it was restricting and intervening in economic contracts. It was of course the evil Oliver Wendell Holmes Jr. who dissented in Lochner v. New York and who also upheld forced sterilization laws in Buck v. Bell (writing that "three generations of imbeciles in enough.") Economists don't like to talk about social externalities but the connection between economic and social regulation is very clear in the progressives.
I think it's time to restore freedom of contract to marriage. Why should two men, for example, be denied the same rights to contract as are allowed to a man and a woman? Far from ending civilization the extension of the bourgeoisie concept of contract ever further is the epitome of civilization. Our modern concept of marriage, for example, is simply one instantiation of the idea of contract.
People will claim that this means a chaos of contracts for every form of marriage. This is wrong factually and also conceptually misguided. Factually, we already allow men and women to adjust the marriage contract as they see fit with pre-nuptials. Moreover, different states offer different marriage contracts with some offering more than one type. Partnerships of other kinds have access to all manner of contractual arrangements without insufferable problems.
More importantly, the chaos of contracts argument is fundamentally misguided. The purpose of contract law is to give individual's greater control over their lives. To make contract law a restraint on how people may govern themselves is a perversion of the social contract. To restrict people from accessing the tools of civilization on the basis of their sexual preference is baseless discrimination.
It is time to restore
freedom of contract to marriage, Laissez-faire for all capitalist acts between consenting adults!
Thanks to Daniel Akst for the pointer.
Posted by Alex Tabarrok on November 30, 2007 at 07:45 AM in Economics, History, Law, Philosophy, Religion | Permalink
Comments
Alex, nicely done! You encapsulated the possible objections, as well as the response to them, deftly indeed. Basically i agree, except I do still think the state must have some role for marriage to remain functional if not also meaningful; just as other forms of contracts must meet certain standards to be enforceable, so with marriage too some kind of parameters probably will be required.
Posted by: Dan Akst at Nov 30, 2007 7:53:07 AM
Dan...'the state to make marriage meaningful'? I...umm...howzat?
Posted by: shawn at Nov 30, 2007 8:11:45 AM
...
There is excellent freedom of contract to marry. However, many people (hovering around 50%, in the polls I recall) have stated a desire to withhold benefits from the state, which normally encourage certain couples to marry [similar to how many object to the same sort of benefits being given without caution to immigrants]
You've burned an excellent straw man though.
Posted by: Chi at Nov 30, 2007 8:19:27 AM
Laissez-faire marriage sounds like a wonderful idea, why should we restrict the right to contract. The reason people marry is to procreate, although this option is absolutely available in the free market social relationships, we somehow like to vertically integrate, foreclose that market and create a bilateral monopoly called marriage. We do this simply to secure our interests in trading affection with the other person and also to secure the property rights we have over our children. I believe that if we allow a laissez-faire marriages most of these benefits will be lost. We should keep the supply of marriages restricted to keep the value high enough.
Posted by: tspnevski at Nov 30, 2007 8:27:12 AM
At least on the face of it, freedom of contract alone is an insufficient principle when the existence or terms of the contract strongly affect third parties. The law requires the state, and some private parties, to make special provision for spouses; a possible response is to say for consistency, that all such provisions should be done away with. Thornier though are regulations enforced not by law, but by more. Most find the third party in an adultery morally culpable in a way the third party in the sexual infidelity of an umarried person is not. Finally, and probably thorniest, several parties not party to the marriage contract have an interest in it, the most notable of these being dependents.
Posted by: Cyrus at Nov 30, 2007 8:27:31 AM
A semi-idle query: in Massachusetts, if a woman married to another woman has a child, does a presumption of paternity apply to the mother's partner?
Posted by: Cyrus at Nov 30, 2007 8:32:04 AM
Excellent post.
Posted by: Mark at Nov 30, 2007 8:36:00 AM
Is the state actually restricting your ability to form a contract with another party regarding your domestic arrangements, or is it merely restricting which such contracts it calls marriage contracts? And for that matter, why should others be under any obligation to apply a particular name to a contract they had no part in making?
Posted by: Robert at Nov 30, 2007 8:58:12 AM
Agree on all counts.
Posted by: Stephen W. Stanton at Nov 30, 2007 8:59:24 AM
tspnevski says "The reason people marry is to procreate..."
If you mean "the only reason," this is demonstrably and obviously untrue.
Posted by: Andrew Perraut at Nov 30, 2007 9:10:00 AM
Just curious about such freedoms to contract--should a father be allowed to marry his daughter? What if the daughter is adopted? If not, why should they be denied such freedoms etc etc.
Posted by: marktwain48 at Nov 30, 2007 9:10:48 AM
Allowing this sort of freedom makes a lot of sense to me. Two areas that bear careful scrutiny would be a) informed, uncoerced consent by adults (e.g. some polygamists have preyed on young girls with little true freedom to opt out) and b) requirements (bonding?) to provide for affected children -- a potential externality of such contracts.
FWIW, your hypothesis linking marriage restrictions to economic regulation doesn't ring true to me. The people who are most vocal in infringing on personal freedoms are often the same ones who are most eager for laissez-faire treatment of corporations (or at least that's the way the political alliances seem to work out these days).
Posted by: A student of economics at Nov 30, 2007 9:12:40 AM
What is "laissez-faire" about demanding that the state get involved in "same-sex" relationships by treating them the same as marriages? Men are free to make whatever contracts they want to with each other. They just can't bind the state to enforce marriage rights when the state has no interest or legitimate power to do so. Marriage, after all, is not a relationship between a man and a woman. It is a relationship between an individual and the state. The relationship between a man and a woman who get married is (ideally) called "love".
Posted by: Robert Speirs at Nov 30, 2007 9:15:10 AM
What is "laissez-faire" about demanding that the state get involved in "same-sex" relationships by treating them the same as marriages? Men are free to make whatever contracts they want to with each other. They just can't bind the state to enforce marriage rights when the state has no interest or legitimate power to do so. Marriage, after all, is not a relationship between a man and a woman. It is a relationship between an individual and the state. The relationship between a man and a woman who get married is (ideally) called "love".
Posted by: Robert Speirs at Nov 30, 2007 9:15:18 AM
Alex,
Opponents of the freedom of contract to marry will often cart out the critique that allowing things like gay marriage have really negative implications for insurance contracts, traditional rules of heritability of assets, etc. In other words, this is another form of the chaos of contracts argument. Eerily, I have heard this complaint from self-professed classical liberals, not folks I would traditionally define as conservative or religious adherents.
Posted by: wintercow20 at Nov 30, 2007 9:16:34 AM
I think the state has an interest in children, but no interest in the arrangements between consenting adults. I think the state should automatically create a marriage in fact whenever a child is born. Only these marriages would qualify anyone for any type of benefits from the state, and all benefits would be tied to the burden and responsibility of raising the child.
Posted by: Randy at Nov 30, 2007 9:45:57 AM
I have heard the "marriage is a contract" argument applied by an extreme social conservative against no-fault divorce. The idea in that case was that no other contract allows one party to a contract to withdraw unilaterally to their financial benefit and marriage should be no different.
But of course marriage isn't just a contract - it's a social and cultural institution with thousands of years of baggage. People marry for all sorts of terrible reasons, perhaps number one being that they believe society expects them to. Frame marriage as "just a contract" and you will have to deal with that baggage too.
Posted by: Andrew G at Nov 30, 2007 9:46:23 AM
The previous rule was actually non lassaiz-faire. By recognizing cohabitation as marriage the state made it impossible for two people to live together without marriage. And this was a harsh restriction when divorce was incredibly difficult. Similarly a man might prefer to live with his girlfriend without acknowledging their children (and she might be willing to accept that arrangement rather than nothing).
The old system of registered marriages and no cohabitation rights allows the most freedom of contract. With this system the couple can pick whatever they want. However, that's been pretty much eroded by modern law. Now men are forced to support their illegitimate children (regardless of any pre-existing arrangement between the parents). And some states give cohabitors rights to support too.
Posted by: Rachel at Nov 30, 2007 10:00:20 AM
Having economists talk about legal questions is almost as entertaining as having lawyers talk about economic questions.
Marriage is not a contract. Never has been. Marriage is a civil status, and civil status is regulated by the state. Always has been.
The term "marriage contract" is a historical term that relates to contracts between people that *accompanied* marriage -- and those have always been free. The modern "pre-nup" is a good case in point.
Learn first, then talk.
Posted by: Tim of Angle at Nov 30, 2007 10:07:00 AM
I think marriage traditionalists should embrace laissez faire marriage. If traditional (heterosexual, monogamous, procreative, customarily religious) family arrangements are, as claimed, superior to same-sex or other innovations, then they should outperform those innovations in the cultural market.
Posted by: kdwmson at Nov 30, 2007 10:18:32 AM
Would a laissez-faire approach allow two men to marry two other men? Or a 35-year-old woman to marry a 9-year-old boy?
Posted by: Clark at Nov 30, 2007 10:19:24 AM
Great post.
Henry Sumner Maine agrees:
“[T]he movement of the progressive societies has hitherto been a movement from Status to Contract.”
Sir Henry Sumner Maine, Ancient Law (1861), p. 141.
Statists are dragging society backward.
Posted by: Daniel Klein at Nov 30, 2007 10:23:27 AM
Alex Tabarrok makes a good point about prenuptial agreements. Wintercow20 and Tim of Angle are on my wavelength, however.
Since the beginning of the gay marriage debate I have asked without success whether anyone has ever catalogued the rights and responsibilities which come from marriage in the States. Does anyone know what "marriage" means? I hear about things like hospital visitation rights, freedom from having to testify against a spouse, parental rights and obligations, and so on; but I don't know that all these facts have ever been compiled in one place.
I'm a software engineer. Before you rewrite a software application, you need to document the legacy version down to the last word of code, reverse-engineering the current version of the software if need be. If we're going to rewrite the marriage convention, or if we're at least going to replace this incessant and unconverging debate with some tangible action and a plan for the future, we will need to do the same.
Posted by: Hovie at Nov 30, 2007 10:27:46 AM
Andrew, procreation is obviously not the only reason why people marry but probably the most important. If you read the rest, I said that marriage is a bilateral monopoly to secure our investment in specific assets produced by the marriage.
Tim of Angle -- you are confusing the terms here. "Husband" and "Wife" is a social status, and marriage is a contract that sets the conditions for this social status.
Posted by: tsonevski at Nov 30, 2007 10:28:11 AM
One can preclude intergenerational incestuous marriages under this by declaring "One familial contract per pair." I.E, if you have a relationship with another person that could be formed by adoption (a contract relationship), you can't form another. So since no one adopts cousins, cousins could marry; but people adopt children, so no one with a parent/child relationship could marry.
Posted by: jb at Nov 30, 2007 10:28:36 AM
