On private marriage contracts

by [anonymous] 3 min read12th Jan 2013109 comments

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Warning: First Read Everything Here, only participate or read on if you are sure you understand the risks.

Based on the commentary and excerpt Federico made on studiolo, I've added the book Nudge: Improving Decisions about Health, Wealth, and Happiness by Thaler and Sunstein to my reading list. Since the book seems relevant enough to this site and has been mentioned before, I may eventually write a review. The post by Federico is made up mostly of excerpts from Chapter 15 of the book "Privatizing Marriage".

In addition to this I recommend reading the following excellent essays:

The reason the particular topic he talks about caught my interest is because the proposed solutions by Thaler and Sunstein seem somewhat similar to the one I argued for...

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.


...and Vladimir_M argued convincingly against. Here...

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.

...and here.

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:

  1. 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?)

  2. 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.

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