Contracts never have merely two parties. They are never "private" in the sense implied above. A contract requires a third party to enforce the contract against either party at the other's appeal. The existence of the enforcing party is a suppressed premise in almost all contracts, and the consent of that third party is rarely explicitly discussed.
Asking for unbounded "freedom of contract" means asking for the existence of a third party who consents to enforce any contract, and has the power to enforce any contract; in other words, a third party that is amoral and omnipotent; one with no objections to any contract terms, and sufficient power to enforce against any party.
The state, in a democratic republic, cannot be such a third party, because it is not amoral — it has moral (or moral-like) objections to some contract terms. For instance, today's republics do not countenance chattel slavery; even if a person signs a contract to be another's slave, the state will not consent to enforce that contract.
I suggest that, given what we know about humans, the creation of an actual amoral and omnipotent third party would constitute UFAI ....
This is a very good point, but while we can't reasonably expect the government to impartially enforce all contracts presented to it, we also can't reasonably tolerate a government that won't recognize or enforce any contracts.
To take an excerpt from one of the linked essays
some couples have specifically contracted for the rights marriage traditionally gave them (but no longer does). In the California case Diosdado v. Diosdado, 97 Cal.App.4th 470, a husband and wife contracted that if the husband had an affair with another woman, he would pay the wife $50,000 on top of the divorce settlement, and vice versa. The husband did in fact have an affair, but the California court refused to honor the couple's agreement. The strong California public policy of no-fault divorce, the court said, prohibited courts from even enforcing the voluntary contracts of a mature adult couple
This is not a contract that goes beyond my intuitions of what it would be reasonable for the state to enforce. It seems we've come to a point where the state (or at least, some states) will refuse to enforce contracts for marriage with terms which it would readily enforce if they were business agreements. Certainly there are stronger economic reasons for making business contracts enforceable than marriage contracts, but I don't think it follows that marriage agreements should be less enforceable, and I have doubts that this is an optimal state of affairs.
Traditionally, "divorce" was a cause of action with a plaintiff and a defendant - a winner and a loser, an aggressor and a victim - and alimony (in the form of cash payments) was the prize the victim/winner won for proving one of the limited grounds for divorce (generally desertion, adultery, or cruelty).
Well, yes ... or maybe they are confused and do not understand the implications. A lot of political positions are easy to argue in the absolute when you do not expect to get elected and therefore do not expect to have to implement them.
Standard argument: Wouldn't be enforced. Powers of attorney get ignored all the time - I don't have numbers but anecdotes abound. Even things that are identical to marriage in all but name don't get enforced: in New Jersey in 2007, at least 14% of civil unions aren't recognized by employers. And that's inside the country which recognizes them; how do private marriage contracts work for immigration purposes?
This disregards the common-law policies on contract; namely, that contracts involving illegal activity are unenforceable. I don't believe most people, libertarian or otherwise, who regard government as the arbiter of contracts, would see such contracts as you mention as -being- enforceable.
A second safety feature in contracts is default, again a common-law policy, which states that contracts -can- be ignored, for a monetary penalty equal to the value of the contract, less the value already attained, by the non-defaulting party.
These two common-law concepts act as necessary safety valves on any potential contract. (They can also be the source of some injustices, however.)
(Suppose for example that a couple voluntarily sign a marriage contract stipulating death penalty, or even just flogging, for adultery. How can one oppose the enforcement of this contract without renouncing the libertarian principle?)
I want to talk about this. I do not feel that the contract described here is unacceptable. I find it strange to come to terms with how it might be the case. Would someone mind enlightening me about why they would feel it unethical to engage in a contract of the sort?
(By the way, I understand the practical objections to such...
Possibly more realistically, the person may realize - from observing the world - that the only way he or she will be able to maintain monogamy is through social (not just government) enforcement of the marriage contract - not that his or her life literally depends on it, but that his or her social death will result from violation of the contract. And people care a whole lot about social death. This aspect of social support of marriage is already gone from all but a few recent immigrant communities in the United States. Even if marriage were government-enforced for reals, collusion (pretending grounds for divorce existed) and stretched notions of "cruelty" were already common before no-fault swept the nation. The government maybe slowly changes its enforcement toward the enforcement of whatever limping modern non-tribal community happens to exist.
Anyway. People are sometimes harmed by getting extra choices. And people are sometimes harmed by losing choices.
At some point, this thing which does not seem like coercion, becomes a clear case of coercion. When the power used to gently nudge is absolute, no matter how slight the suggestion, its victim remains intimidated by the knowledge of the unlimited power behind it. Thus, because government necessarily sits in a position of almost unlimited power over the individual, any lifestyle suggestions they make are not compatible with libertarian ideals.
Variations of this idea have been running through my head for the last few months as I've been trying to re-evalua...
Is there no room in this dilemma for locally libertarian opinions?
I don't feel like I have a specific vision of what ideal policies look like, nor do I believe that people should be able to enter into contracts with death penalties, but I do believe that on the margins almost every existing policy would tangibly benefit in its stated purpose from becoming more flexible.
I will acknowledge the possibility that my brain is lying to me about how I actually feel, but almost every policy change I strongly endorse is libertarian in the sense of reducing interventions and full libertarian consequences squick me out.
Such a contract has no good reason to be limited to just describing traditional marriage or even having that much to do with sex or even raising children
Incompatible values. Some people hold values that say e.g. having sex outside marriage is evil in and of itself. And of course to qualify, "marriage" has to have certain properties that they will recognize. Similarly, some people do not accept (in a values sense) the separation of church and state.
Some people who object to widening the scope of what is legally considered "marriage" d...
Jennifer Morse has a series of articles about why this won't actually work here, here, and here.
Here are some quotes that should give you an idea of her point.
...Disputes that arise between the contracting parties must be resolved by an overarching legal authority. Let’s face it: that overarching legal authority always will be some agency of the government. “Getting the government out of the marriage business” amounts to refusing to define marriage on the front end. But the state will end up being involved in defining what counts as a valid marriage or pare
The relation to private marriage contracts is a bit tangential, but there is one element of some prenuptial agreements that I'd like to see become a standard element of the marriage institution. I think it would be much more sensible if divorce settlements in cases where only one spouse is an income earner were capped at some level based on costs of living, in such a way that nobody would be able to become rich by marrying a rich person and then divorcing them.
I've spoken to a number of people who've argued that some rich people do some really reprehensib...
In any realistic human society, there are huge limitations on what sorts of contracts you are allowed to enter
If you shouldn't be allowed to sign a conventional contract with those terms, why would you be allowed to enter a marriage on those terms? Are there any particular terms marriage should allow but contracts should not?
Suppose for example that a couple voluntarily sign a marriage contract stipulating death penalty, or even just flogging, for adultery.
I've heard there are prenups that say that if you commit adultery, you pretty much lose all your money. Unless you're very poor, that's probably worse than flogging.
"In particular, when it comes to marriage, outside of the aforementioned libertarian fringe, there is a total and unanimous agreement that marriage is not a contract whose terms can be set freely, but rather an institution that is entered voluntarily, but whose terms are dictated (and can be changed at any subsequent time) by the state."
If true, this is a new thing. In the past the terms were dictated by the church. I doubt you will find unanimous agreement today that the views of the church are irrelevant to marriage. So perhaps the total and un...
Several thoughts:
a) Isn't the solution to qualify the "libertarian argument" by limiting it's scope to "any terms that don't break the law"? (Of course "libertarian" is a poor adjective choice since a legal contract very much relies on a powerful state backing the enforcement of any breach to mean anything--the concept of a libertarian contract is an oxymoron.)
b) What do suspected ulterior motives on the part of those advancing the "libertarian argument" or the fact that sincere libertarians are a fringe minority ha...
Why does state recognition of marriage matter so much to people?
Sure, there are some benefits, the most important of which in my mind is joint custody of children (which is also a good justification of state involvement in marriage), but it appears to matter a lot more than the state involvement justifies.
Why do gays wait for state recognition? Why don't they just hold a wedding and call themselves married, without state recognition or even a private contract? The only time I've ever heard of this is Colin Turnbull.
Supposedly, when the Renhe government pol...
Since it is relevant to the subject I'd like to second a recommendation made by CharlieSheen:
I found this article interesting overview of examples of unintended consequences of past changes, that makes a case for being very cynical of this particular kind of argument:
It seems to me the problem here is that the private contracts would be enforced in the hypothetical model. Libertarians seem to propose that the legal benefits of marriage as opposed to the arbitrary spiritual components are the aspect of marriage to be agreed upon. I disagree.
I think that people should be allowed to create private contracts for any issue, but only if those contracts are not enforced. Both parties must remain willing participants throughout the process. Also, if the state deems any contracts unacceptably offensive, or contrary to public in...
Marriage is a personal or religious arrangement, it is only the states business as far as it is also a legally enforceable contract. It is fundamentally unfair that people agree to a set of legal terms and cultural expectations that ideally are aimed to last a lifetime yet the state messes with the contract beyond recognition in just a few decades without their consent.
Consider a couple marrying in 1930s or 1940s that died or divorced in the 1980s. Did they even end their marriage in the same institution they started in? Consider how divorce laws and practice had changed. Ridiculous. People should have the right to sign an explicit, customisable contract governing their rights and duties as well as terms of dissolution in it. Beyond that the state should have no say, also such contracts should supersede any legislation the state has on child custody, though perhaps some limits on what exactly they can agree on would be in order.
Such a contract has no good reason to be limited to just describing traditional marriage or even having that much to do with sex or even raising children, it can and should be used to help people formalize platonic and non-sexual relationships as well. It should also be used for various kinds of non-traditional (for Western civ) marriage like polygamy or other kinds of polyamours arrangements and naturally homosexual unions.
However, are you sure that you understand just how radical the above statement is? The libertarian theory of contracts -- that you should have full freedom to enter any voluntary contract as far as your own property and rights are concerned -- sounds appealing in the abstract. (Robin Hanson would probably say "in far mode.") Yet on closer consideration, it implies all sorts of possible (and plausible) arrangements that would make most people scream with horror.
In any realistic human society, there are huge limitations on what sorts of contracts you are allowed to enter, much narrower than what any simple quasi-libertarian theory would imply. Except for a handful of real honest libertarians, who are inevitably marginal and without influence, whenever you see someone make a libertarian argument that some arrangement should be permitted, it is nearly always part of an underhanded rhetorical ploy in which the underlying libertarian principle is switched on and off depending on whether its application is some particular case produces a conclusion favorable to the speaker's ideology.
I think this would be a genuine cause for concern, not because I don't think that people should be able to enter whatever relationships please them in principle, but because in practice I'm concerned about people being coerced into signing contracts harmful to themselves. Not sure where I'd draw the line exactly; this is probably a Hard Problem.
The speaker has an ideological vision of what the society should look like, and in particular, what the government-dictated universal terms of marriage should be (both with regards to the institution of marriage itself and its tremendous implications on all the other social institutions). He uses the libertarian argument because its implications happen to coincide with his ideological position in this particular situation, but he would never accept a libertarian argument in any other situation in which it would imply something disfavored by his ideology.
Well, there you go. Any restriction on freedom of contract can be rationalized as preventing something "harmful," one way or another.
And it's not a hard problem at all. It is in fact very simple: when people like something for ideological reasons, they will use the libertarian argument to support its legality, and when they dislike something ideologically, they will invent rationalizations for why the libertarian argument doesn't apply in this particular case. The only exceptions are actual libertarians, for whom the libertarian argument itself carries ideological weight, but they are an insignificant fringe minority. For everyone else, the libertarian argument is just a useful rhetorical tool to be employed and recognized only when it produces favorable conclusions.
In particular, when it comes to marriage, outside of the aforementioned libertarian fringe, there is a total and unanimous agreement that marriage is not a contract whose terms can be set freely, but rather an institution that is entered voluntarily, but whose terms are dictated (and can be changed at any subsequent time) by the state. (Even the prenuptial agreements allow only very limited and uncertain flexibility.) Therefore, when I hear a libertarian argument applied to marriage, I conclude that there are only two possibilities:
The speaker is an honest libertarian. However, this means either that he doesn't realize how wildly radical the implications of the libertarian position are, or that he actually supports these wild radical implications. (Suppose for example that a couple voluntarily sign a marriage contract stipulating death penalty, or even just flogging, for adultery. How can one oppose the enforcement of this contract without renouncing the libertarian principle?)
The speaker has an ideological vision of what the society should look like, and in particular, what the government-dictated universal terms of marriage should be (both with regards to the institution of marriage itself and its tremendous implications on all the other social institutions). He uses the libertarian argument because its implications happen to coincide with his ideological position in this particular situation, but he would never accept a libertarian argument in any other situation in which it would imply something disfavored by his ideology.
