Bryan Caplan  

Women, Liberty, and the Gilded Age: A Reply to My Critics

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There's been a lot of pushback against my claim that women were freer during the Gilded Age than they are today.  I'm standing my ground.  Replies to leading criticisms:

1. I'm ignoring marital rape.  To be blunt, this issue is almost entirely symbolic.  While it's a heinous crime, I seriously doubt that more than a small fraction American women in 1880 worried about being raped by their husbands.  And even if I'm dead wrong, the modern U.S. is scarcely better.  Marital rape is now illegal in all 50 states, but it's rarely prosecuted and leads to very few convictions.  Marital rape convictions are so rare, in fact, that I couldn't find any statistics; if you know of any, please post them.

2. Cohabitation was illegal too.  As Andrea argues in the comments:
Before the middle of the 20th century, it was illegal in every state of the US to cohabit without being married. I'm not sure how regularly it was prosecuted, but this was a legal system that also had laws against adultery, fornication and sodomy on the books and regularly enforced them, so I think we must assume this really did have some teeth, at least in some times and places.

Regarding coverture, that changes everything. The combination of the two meant that women of the time effectively faced a choice between all the legal disadvantages marriage imposed on them, and being legally barred from having any fulfilling romantic relationships at all.

If cohabitation was vigorously prosecuted in 1880, this argument would be fairly convincing.  But as far as I can tell, it was not.  The only prominent examples of 19th-century enforcement on google were thinly-veiled attacks on Mormon polygamy.  The laws might not have been as irrelevant as they are in modern Virginia (where they're still on the books!), but even in 1880, they made little difference.

3.  You couldn't contract around the contracting rule.   As my old friend Jacob Levy puts it:
A prenuptial agreement could not make a married woman into a legal contractor.

From any even vaguely libertarian perspective, the inability to contract is a massive restriction of liberty.
This is a good example of the difference between the law and social reality.  If a women in 1880 wanted to write a contract, I think she did the same thing a woman in 2010 would do - talk about it with her husband.  If he refused, she did the same thing she'd do today: complain, argue, bargain, etc.  A man in 1880 was legally allowed to make a contract without his wife's approval, but in practical terms, his problem was the same as it is today: If your wife puts her foot down, it's almost impossible to move forward.

In a similar vein, suppose a women in 1880 told her intended husband that she planned to keep working after the wedding, keep her income for herself, etc.  If he later changed his mind, what could he actually do?  About the same thing he'd do today - complain, argue, bargain, etc.  If you want me to believe that coverture reduced women's freedom, I want evidence that more than a handful of husbands in this situation turned to the law to extract their wives' obedience.

4.  This brings me to Jacob's other argument: I'm underestimating the power of the law. 
The allocation of legal rights might not matter in entirely happy and consensus-based marriages. But as soon as there is strain, it matters. Which spouse can threaten which with divorce, for what reasons, and with what consequences for child custody and resources, matter massively and deeply for intramarital decisionmaking.
"Might not matter in entirely happy and consensus-based marriages"?  This strikes me as a severe understatement.  I say the law is usually irrelevant in unhappy and conflictual marriages, too.  Unless you're already on the verge of divorce, invoking the law just isn't a very useful way to win a fight with your spouse.  Since divorce was much more difficult in the 19th century, the law probably mattered even less than it does today.

Jacob goes on:
More broadly: in a world in which contraception and communication about same are criminalized, in which fornication was a criminal offense, and in which pregnancy could prove fornication on the part of a particular woman but not a particular man, marriage was... less than entirely voluntary.
Once again, the key question is the extent to which these laws were enforced and changed behavior.  How many Gilded Age women were actually prosecuted for fornication?  Laws against contraception and reproductive education were probably a bigger deal, but it's still easy to exaggerate their impact on women's freedom.  How many young women in 1880 didn't know how to avoid pregnancy?  How many actually would have used the crummy contraceptives of the time even if they were perfectly legal?

5. General complaints about libertarianism.  Many of my critics bring up standard complaints about libertarians ignoring social pressure, discrimination, etc.  I'm afraid I'm just going to give stock libertarian replies: (a) There's a fundamental human right to non-violently pressure and refuse to associate with others, and (b) Market forces have a strong tendency to weed out discrimination.  I know that non-libertarians won't be satisfied, but the point of my post was to show that women had more libertarian freedom in 1880 than they do today, not convert skeptics to libertarianism.


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COMMENTS (73 to date)
rapscallion writes:

Libertarians are usually quick to point out that laws don't have to be enforced frequently to be very costly and substantially alter behavior. E.g., a small number of antitrust prosecutions doesn't imply that many corporations aren't being prevented from taking advantage of economies of scale, imposing large costs. So the fact that cohabitation and sodomy laws weren't enforced often doesn't appear to mean much by itself.

I think there was some well-known economist who kept emphasizing that the unseen effects of laws were important, or something like that.

rapscallion writes:

Actually, the last line of the first paragraph should read "...sodomy laws weren't prosecuted..."

Zac Gochenour writes:

Bryan, I know you asked for conviction rates, but a cursory search reveals some incidence rates which might have to be good enough. "An analysis of data from the National Violence against Women Survey, sponsored jointly by the U.S. Departments of Justice and Health and Human Services and the Centers for Disease Control and Prevention, estimated that 1.5 million women and 834,700 men are raped and/or physically assaulted by an intimate partner each year. Of all surveyed women age eighteen and older, 1.5% said they were raped and/or physically assaulted by a current or former spouse, cohabiting partner, or date in the year preceding the interview, compared to 0.9% of all surveyed men. Of the women, 7.7% reported being raped by an intimate partner at some point in their lives."

From the same source, "some researchers estimate that nearly two million marital rapes occur each year and that this form of rape is more common than both stranger and acquaintance rape. Although the legal definition varies from state to state, marital rape is generally defined as any sexual activity coerced from a wife unwilling to perform it. Research on marital rape indicates that 10% to 14% of married women have been raped by their partners and that marital rape accounts for about 25% of all rapes." (http://www.libraryindex.com/pages/2057/Rape-Sexual-Harassment-Around-World-MARITAL-RAPE.html)

I think you are fighting a losing argument regarding spousal rape. I'm basing this more on intuition than anything. Not only was it legal back then but it was probably just not considered morally wrong by many, if not most, men (hence, no law). So it seems to follow that it would have been more common, likely far more common. I think that is a very legitimate concern.

Hope that positively adds to the discussion. Bryan, I do not think your argument is clear because you have not identified the ways in which women are less free today. Perhaps they pay a larger percentage of their income in taxes. But it seems apparent that women of the Gilded Age had fewer legal rights, more social restrictions and stricter expectations about behavior, and fewer opportunities for education and career.

Perhaps I could be more sympathetic to your argument if you were saying that women weren't as unfree as is commonly perceived. In fact, I'd agree with that completely. Too much stock is put in things like voting or the ability to contract independently. You might say that on a lot of important margins women were just as free than as today. But _more_ free? I just don't see it.

student writes:

"If you want me to believe that coverture reduced women's freedom, I want evidence that more than a handful of husbands in this situation turned to the law to extract their wives' obedience."

Ever heard of Nash bargaining? You don't need to actually turn to the law to extract obedience. All you need is the ability to make a credible threat.

SydB writes:

I'm confused. The conclusion that "women had more libertarian freedom in 1880 than they do today" is argued by only looking the law or situation in the 1880s.

Huh?

That's like saying "man A is thinner than man B because man A weighs 150 lbs."

Where's the comparison? Did I misread something?

Tracy W writes:

You miss the problem with contracting law. It was that a married woman couldn't write a contract in her own right. I have run my own business, in a city large enough that most of my clients did not know my husband at all (we work in different sectors), this was not a problem as I could agree contracts without him. If I had had to get his agreement, that would at best have increased my contracting costs, and probably cost my some time-sensitive contracts.

I also notice you did not address the illegality of contraception or of information about contraception.

Kurbla writes:

Hm. Bryan answered one of my criticism, but not other. One he didn't answered is:

"From libertarian point of view, it shouldn't be important how libertarian feels about losing voting rights, but how individual feels about losing voting rights."

It is logically complicated, but very important argument. For majority of us, being forced to wait five minutes in a small room per year is small loss of freedom. But, for those with claustrophobia, it is enormous loss of freedom that might overshadow all other freedoms they might have. If we want to estimate degree of woman freedom, we must ask women how they feel about their freedom. We cannot simply impose our criteria of freedom and say "Oh, your loss of freedom is not that important. You only think it is important because you didn't understood that well."

He answered my other criticism, i.e. social pressure on women. He says (a) There's a fundamental human right to non-violently pressure and refuse to associate with others.

I do not really accept that right. But, even if one does accept, it still doesn't mean that women are equally free in society in which they are exposed to non-violent pressure and in one in which they are not exposed to such pressure. Bryan actually confirmed that when he added his (b) free market tends to weed out the discrimination. That means that he recognizes that discrimination is the problem, even if he believes that discrimination is fundamental human right.

Just another note: I could hardly imagine some European classical liberal advocating such ideas as Bryan does. It is *completely different* view.

Kurbla writes:

Let us compare two societies, one imaginable:

  • USA

  • Desertopia, which is very like current USA, but with 1% lower taxes, and with women exposed to the worst possible but still non-violent pressure: males are owners of all worthy land; women are allowed to live on that land and have access to food, water, etc only if they sign slavery-for-life contract. If they do not sign that contract at age of 21, they are allowed to "exit" - but only place they can physically exit on a whole continent is desert similar to Sahara at its worst. They can homestead freely in that desert. No women survived in desert for more than one day.

Which one of these two societies would be more free for women? It seems that, according to Bryan definition, Desertopia would be more free.


better writes:

X2

Bryan, I do not think your argument is clear because you have not identified the ways in which women are less free today. Perhaps they pay a larger percentage of their income in taxes. But it seems apparent that women of the Gilded Age had fewer legal rights, more social restrictions and stricter expectations about behavior, and fewer opportunities for education and career.


Perhaps I could be more sympathetic to your argument if you were saying that women weren't as unfree as is commonly perceived. In fact, I'd agree with that completely. Too much stock is put in things like voting or the ability to contract independently. You might say that on a lot of important margins women were just as free than as today. But _more_ free? I just don't see it.

Bryan,

"Better" makes a good point when noting that you don't really specify how women are "less free" than they were in the Gilded Age.

The counterpoint to your claims is made best in "No Constitutional Right to be Ladies" by Linda Kerber covers issues you discuss. I strongly suggest you give it a read.

Jacob T. Levy writes:

Bryan, this is getting even worse.

As "student" says above, legal rights matter a long time before the law is called in. When everyone knows what the law says, they adjust accordingly.

It's not even cute naiveté on your part to think that a couple has to be on the verge of divorce before the parties think about, or invoke, ideas about who would get child custody or who would be impoverished by the settlement, and I can't even say "I'm happy for you that you've never witnessed a marriage in which such things happened," because I just don't believe it's true.

As far as I can tell you're offering a model of marriage in which, say, ongoing adultery, or abuse, or sinking into gambling debt, or a husband spending his paycheck on alcohol before he comes home to contribute it to the household, are just impossible-- unthinkable. Because, after all, if his wife put her foot down, it would be impossible to move forward on such behavior. But the rest of us know that such things do happen in the world we inhabit-- and that the willingness of women to put up with them is affected by the terms on which divorce is available. A woman who'll lose everything in a divorce puts up with it for longer. A man who'll lose everything in a divorce is more susceptible to having his behavior corrected by a credible threat.

And if all of that is true for officially- and culturally-frowned on behaviors, it's surely even more true for matters where the public culture reinforces the husband-- the husband who makes all decisions about contracts or employment unilaterally, or the one who prevents his wife from entering into the marketplace at all.

jean writes:

If marriage was usually a agreement between consenting adults (it is doubtful in the case of early marriages), it is also true that law acted as state enforced cartel of men controling the mariage market.

I don't agree with you on the unimportance of law. Law gave a huge bargaining power to husbands.
If a woman fled home, she would have no way to sustain herself as everything needed the husband approval.

Besides, a lot of jobs were forbidden to women.

Steve Roth writes:

>Unless you're already on the verge of divorce, invoking the law just isn't a very useful way to win a fight with your spouse.

You are correct that "invoking the law," ie. citing statutes, isn't very useful.

But I know from personal and many personally related experiences that the push-comes-to-shove scenario ripples back very powerfully into the pre-litigious situation.

What you can negotiate is inevitably determined by what you *would* get if you went to court. If one parent knows -- even semi-consciously -- that they can get the kids or the money, they are in a very powerful position to push the other one around in all sorts of ways.

Suggesting otherwise is really contrary to reality.

chris y writes:

If a women in 1880 wanted to write a contract, I think she did the same thing a woman in 2010 would do - talk about it with her husband.

Puhleese! My wife enters into dozens of contracts of which I know nothing whatsoever, subscribing to magazines and websites, agreeing to membership terms at a gym, etc., etc. She does this without my knowledge because she is free to use her own damn money to do so - she entered into a contract with her employer to get it. In 1880 her money would have been mine.

If your relationship is so broken that you would prefer that your partner should have to nag and plead for the unconsidered expenses of ordinary life, then I'm honestly sorry for both of you.

Ano writes:

You are actually arguing that "it wasn't as bad as you think during the Gilded Age."

Unless you are saying it would increase women's freedom to reinstate coverture laws, you are not actually arguing that "women were freer during the Gilded Age than they are today."

Barry writes:

What's amazing is that when one reads Bryan's argument, it's almost all argument by assertion. He *thinks* or *believes* something was true back in the late 1800's, and then applies it to a hypothetical present-day, without any further support.

Basically, in the end Bryon is just showing by GMU is not a good place to study economics.

Ano writes:

Let me invoke the "efficient libertarian hypothesis."

Libertarian writers are not clamoring for the laws that applied to women in the 1880s to be applied to both men and women right now. (Maybe couples would play rock-scissor-paper to see who got to own the property and the other spouse in their marriage).

Therefore, such laws are actually not an improvement in freedom over the status quo, since an efficient libertarian movement would already have advocated for such a position.

Brian Shelley writes:

Are women not free today?

The extraordinary number of single mother families, where they have lost a second income and lost split parenting responsibilities.

The extraordinary rate of poverty amongst unmarried women, who do not have the time to improve their educational opportunities because of child care concerns. Losing their jobs because of child care inconvenciences. Can't earn overtime because of child care concerns.

The high rates of child molestation amongst single mother families with live-in boyfriends.

Single women parents who face losing government benefits or tax breaks if they marry, so they are not afforded the same legal protections as married women in the event of a split, such as alimony and community property.

Single female parents lose relational leverage because an unmarried man knows he faces less legal recourse by not marrying.

Single female parents face a society with an overabudance of unemployable men. Relationship choices are poor, so they end up having to financially support unemployable men if they want some semblance of a fulfilling romantic relationship.

Behold, the Golden Age for poor women in America!

[Broken url fixed--Econlib Ed.]

rickstersherpa writes:

Well, at least you admit that you are maintaining your position out of pure ideological conviction and arguement without any historical or empircal support. As with most libertarians, you represent (either by birth or group association) an upper middle class white milieu (I know, I was once part of that milieu). You take the inherited social capital you obtain for granted or the result of your own merit. And libertarianism tells you that you don't have to be guilty about those born without the same privileges and opportunities.

You pretty much admit in your argument that you are merely hypothezing about marriage and women choices in 1880 America. It is just a dream world for you. In the actual America of the 1880s, the professions were barred to women (the exceptions and pioneers being so noteworthy that novelty was remarked on at the time and is written up in histories of the period). You completely ignore the force of "custom" and "social pressure," which are just as coercive as any law. For middle class women, marriage or celibate spinsterhood was the only respectable choice and a pregnancy outside of marriage was a "public scandal." For working class women, work as domestics or in factories, and if they "fell" then it was on to prostitution, a flourishing service industry of the period.

No woman, or man for that matter, would trade places with anyone living in the actual 1880s, whether they were struggling to make a living on a farm using only animal and human labor on a farm in the face of falling commodity prices, or in a city without public (e.g. Government)sanitation systems and as result they were death traps loaded with infectious diseases of cholera, typhoid, dysentry, syphilis, and TB. Meanwhile, local governments and customs enforced ferocious sexual and racial discrimination, including the use of extra-legal violence (also known as lynching) used to repress dissent, worker organization, and racial minority groups (Blacks in the South, Chinese on the west coast). But believe what you want to believe, and disregard the rest.

Finally, the chief engine of economic growth of the period, railroad construction, was a Government subsidize and supported industry, at both the Federal and State level.

"...four of the five transcontinental railroads were built with assistance from the federal government through land grants. Receiving millions of acres of public lands from Congress, the railroads were assured land on which to lay the tracks and land to sell, the proceeds of which helped companies finance the construction of their railroads. Not all railroads were built with government assistance, however. Smaller railroads had to purchase land on which to lay their tracks from private owners, some of whom objected to the railroads and refused to grant rights of way.
"http://memory.loc.gov/learn//features/timeline/riseind/railroad/rail.html.


I note how the big fellows always got assistance, and that in the busts of 1873 and 1893, it was the weaker, indebted railroads that went bust.

http://history1800s.about.com/od/thegildedage/a/financialpanics.htm


Snorri Godhi writes:

To paraphrase Kant (as quoted in The Road to Serfdom), a woman is free if she needs to obey no person but solely the laws. With this concept in mind, I am bemused by Bryan's claim that the laws as written weren't very important in determining the actual freedom of women a century ago: if laws weren't important, then women were not free.

OTOH Bryan's critics neglect an important way in which American women are less free today: not only they face higher taxes, they also face more regulations. The burden of regulations tends to be heavier on women and minorities, even when the regulations are meant to help them.

On the balance, I think that American women are probably more free today. However, in the Gilded Age they at least could look forward to increasing freedom, while the current trend is one of decreasing freedom. (And not only for women.)

If we take a more global view, otoh, there are reasons to be optimistic: most of the rest of the world has become more free in the last century. The main exceptions, at a guess, are Britain, Canada, Sweden, North Korea, Burma, and perhaps Argentina.

Timothy Burke writes:

Excellent work. "I googled the 19th Century and everything looks like it was pretty durn good for women. Case closed. Thank you Google!"

It's pretty hard to get the shameless to feel guilt, unfortunately. But seriously, just in case there's some twinge left, consider reading a little history just to find out empirically if the thought experiments you're cooking up on contract, marriage, rape, prosecutions and threat of prosecution, and so on have anything even remotely to do with the life of real women in the real 19th Century in the real United States.

Surely you have access to the catalog of that strange thing called a library. If you need help learning how to use it, go ahead and post a follow-up and I'm sure some readers will help you out.

Barry writes:

Timothy, you forgot to mention that a university, a real university, has these people known as 'historians'. Bryan could have lunch with them, and discuss his ideas.

B.B. writes:

Re: cohabitation.

You are forgetting about "common law marriage."

It was not unusual in frontier areas for a couple to take up house together, just like people do now.

The law's response was to declare you automatically legally married after 7 years of such cohabitation. What happened if the couple separated before 7 years? Presumably, there was no marriage, only cohabitation.

Charlie writes:

It's a very interesting tact Brian is taking. I'm sitting in Riyadh, Saudi Arabia. There are several prohibitions against women's rights here, including covering hair and clothes, not being allowed to drive, and several others. I don't get the impression they are prosecuted that often, especially on western women. But they have dramatic effects on the way western women behave.

Driving is a simple example. Western women aren't allowed to drive, so they don't drive, so they don't get prosecuted. You can't use low prosecution rates as evidence their freedoms haven't been curtailed.

Barry writes:

"You can't use low prosecution rates as evidence their freedoms haven't been curtailed."

And I'm sure that torturing the odd black man to death had a major impact on the behavior of thousand of other black people.

And total ostracism against an 'uppity woman', forcing her to leave town in disgrace (or pushing her down into horrible circumstances) had a powerful effect on the behavior of women.

nicole writes:
To be blunt, this issue is almost entirely symbolic. While it's a heinous crime, I seriously doubt that more than a small fraction American women in 1880 worried about being raped by their husbands. And even if I'm dead wrong, the modern U.S. is scarcely better. Marital rape is now illegal in all 50 states, but it's rarely prosecuted and leads to very few convictions.

But what happens in the modern US if a woman is raped by her husband, or otherwise abused? She can get a divorce, or she can simply leave, and use her own money to, say, rent an apartment. Both avenues were closed off to women in the 1880s. Even if a woman managed to sneak enough money to run away, her husband and any potential landlords would know she was not legally allowed to do so.

If a women in 1880 wanted to write a contract, I think she did the same thing a woman in 2010 would do - talk about it with her husband. If he refused, she did the same thing she'd do today: complain, argue, bargain, etc. A man in 1880 was legally allowed to make a contract without his wife's approval, but in practical terms, his problem was the same as it is today: If your wife puts her foot down, it's almost impossible to move forward.

And what if you wife has absolutely no power to put her foot down about anything? What could "putting her foot down" possibly mean in a marriage where only one party held the property, and part of that property was the other party? The wife can't leave, she can't refuse you sex, she can't refuse you children (at least not without grave danger), and you can beat her.

Even if you discount the importance of "thick" libertarianism (and I would like to echo the commenter yesterday who hoped Roderick Long or Charles Johnson would take up this issue) and think it's okay to noncoercively pressure people to act a certain way, you should recognize that the pressures were there and were real. That you think the average marriage in the 1880s involved the same interpersonal relationship as your upper-middle-class, highly educated marriage today seems absurd and like a huge failure of imagination.

Gwen writes:

I've been sitting here trying to address your arguments for about half an hour now. I can't really come up with a response to the claim that marital rape is too marginal to matter to the debate - at least not in terms that aren't too over-emotional and, frankly, rude. So I'm not going to deal with that point. But I have some other disagreements with your thesis, which I think I can put more rationally. Basically I think you're mistaken about (a) the nature of law and (b) the relation between legal and social norms concerning marriage in 1880. I also think that one of your basic factual premises - about the capacity of the parties to contract out of coverture - is just inaccurate, though I'm willing to be corrected on that point.

So, first, I agree with the commentators above that you seriously underestimate the importance of legal rules outside the context of actual litigation. People rely on legal norms to structure their decision-making, much more often than they rely on them to enable litigation or even threats of litigation. To take an example almost at random: if you are a bank in England, and a married man asks you for a mortgage on a property co-owned with his wife, you are highly likely to take certain industry-agreed steps to ensure that the wife isn't being unduly influenced into agreeing to the mortgage. She doesn't need to threaten litigation to make you do that - the chances that she will be well-informed enough to do so are extremely slim - and the chances of her actually litigating are probably even slimmer. It doesn't matter - the legal rules on the matter have created an institutional framework that make it standard practice for a bank to take those steps. Similarly, if you're an individual buying a house in the UK and you want it in your sole name but someone else is contributing a 50% share of the price, your lawyer will almost inevitably ask you if you want to declare a trust and, if not, to make a declaration that there is no trust. If you're getting married in Germany, your lawyer will ask you questions about the distribution of your assets that no English lawyer would ask you because pre-nuptial agreements are enforceable over there and not enforceable over here. Etc, etc, etc. Law creeps into and conditions social and institutional frameworks very easily, even in contexts where it doesn't dictate them entirely and where the existing social framework imposes a set of norms that diverge from law's own norms. Given that, it seems reasonable to believe that coverture would have contributed to restricting female agency and choice and creating an inequality of bargaining power between husbands and wives whether or not anyone ever actually went to court.

Secondly, you're presupposing a gap between the norms dictated by "social reality" and legal norms for which there's absolutely no evidence - in fact, what evidence there is goes the other way. Your argument requires us to believe that the entire legal system of the period was set up around a scheme of values that ordinary individuals in society didn't accept - so a woman and a man in 1880, just like a woman and a man in 2010, would see their relationship as one involving two freely-contracting individuals with the right to complain, bargain, argue and negotiate terms in exactly the same way. That seems, to put it at its mildest, historically unlikely. This brings us to the marital rape topic, by the way. The issue is not that women in 1880 were "worried about being raped by their husbands." The issue is that, in 1880, there was no mainstream legal or social vocabulary for the concept of "raped by my husband". You may think it's a heinous crime now but, in 1880, the legal system of any common law country and the local vicar and the majority of ordinary people would have seen it as a contradiction in terms. Given those social constraints, and given that being raped is nevertheless a horrible experience, I think it's reasonable to suggest that women in 1880 who lived in that social context were more unfree then - not just because the law provided them with no recourse against rape, but because society provided them with no resources against it or even to discuss it.

Finally, I'd be grateful if you'd cite a more precise source for the claim that pre-nuptial agreements and contracts that *enabled one to exclude coverture* were possible for American women in 1880. Really? I'm not an American lawyer - I'm British - but I find it extremely counter-intuitive that the US would have departed so fundamentally from the common law conception of marriage as early as 1880. And I can't find any confirmation for that in the sources available to me. The one US legal treatise I have access to at the moment, which dates from 1920 (E Peck, The Law of Persons and Of Domestic Relations), says what I would expect any common law textbook of the period to say, which is exactly the opposite: marriage is not a contract but "a status; defined by law, entered into by contract" (Peck, p 123). That is, the parties are free to choose whether or not to marry, but they are absolutely not free to determine the terms of marriage - those are defined by law and include the coverture rule. (So Peck says at 124, distinguishing marriage from contract, "Parties who form a contract relation can fix its terms to suit themselves; but in marriage the parties consent only to enter into the relation, the law fixes absolutely its terms.") So I'm afraid I don't see the evidence for the claim which underpins so much of your argument - i.e. that women at the time "were allowed to write alternative agreements" that expressly excluded coverture. It's possible, perhaps, that your source is referring to marriage settlements which created trusts in favour of the women and her children (which would have existed in a tiny minority of cases where there was enough wealth to make it necessary to create a dynastic arrangement and which would have been drafted by men in the woman's family and men in the man's family). But a settlement only vests legal title to some of the property in either the husband or in some other man (usually a lawyer or a relative) and obliges him to use the property in the interests of the woman and her children; it's an entirely paternalist arrangement and one the woman couldn't terminate and one that gave her no power to actually manage the property herself - so it's vastly overstating the case to describe such a settlement as a means of 'contracting out' of coverture. If US states before the twentieth century actually recognised agreements that enabled the parties to contract out of a rule as basic as to the institution of marriage as coverture ... wow. I'd love to know if that's true, just as a point of legal history. But I find it hard to believe, in the absence of clear primary legal sources. Care to cite some?

smintheus writes:

You appear to have little historical training and even less capacity to think historically. It's not just that your thesis is preposterous on its face. You barely attempt to address seriously the many obvious objections to it.

Ano writes:

Making poorly-though-out "counterintuitive" arguments is risky. It can be a fun way to get some buzz going about your blog, and to generate engagement with others as you have an ongoing conversation about your post. On the other hand, you risk making a fool of yourself over an argument you don't even really believe*, but is now an important part of your google footprint.

* See my comment above about the "efficient libertarian hypothesis" for why I don't believe that Mr. Caplan even thinks it is true that "women were freer during the Gilded Age than they are today."

HopalongCassidy writes:

"If a women in 1880 wanted to write a contract, I think she did the same thing a woman in 2010 would do - talk about it with her husband."

You are right, Bryan. What kind of Godless she-devil would draw up a contract without the consent of her husband, in the year 2010?

In a just world, I would find a way to make sure that this masterpiece ended up in the inbox of all of your female undergraduates, so that you could have a lively class discussion about why they would be better off without the right to vote. It would make a good class discussion. I suspect it would end with you losing your job, but at least you would have struck a mighty blow for liberty.

Benthead writes:

I'd be interested to know: are some of the criticisms here of Bryan Caplan's argument lodged from a libertarian perspective? Or would most libertarians agree?

If so, Mr. Caplan has just performed a pretty devastating critique of his own position. As a historian of this period of US history, I'm confident you wouldn't find a single scholar--liberal or conservative--who would agree that the white women of 1880 were freer than those today. And that's by virtually any measure of freedom--but especially those prized by libertarians.

So that leaves some unhappy logical implications for Mr. Caplan:
1. historical knowledge will disprove libertarian assertions about freedom; or
2. libertarian assertions, if correct, are really about something other than the general optimal conditions of freedom for a population.

Gwen writes:

@Benthead

Or 3. The ordinary English meaning of the word "freedom" - as used by historians, lawyers, most people who speak the language and Mel Gibson when he's got his Scottish on - is incorrect and the libertarian definition, whatever it is, is correct.

I'm not a libertarian but I believe that's the case actually being argued here. As to what libertarian freedoms consist in - since they don't include such negative liberties as not being raped, robbed, or (in some circumstances) beaten - I can't comment. But I have to say they don't sound very appealing.

liberty writes:

Caplan writes: "This is a good example of the difference between the law and social reality. If a women in 1880 wanted to write a contract, I think she did the same thing a woman in 2010 would do - talk about it with her husband.

If he refused, she did the same thing she'd do today: complain, argue, bargain, etc. A man in 1880 was legally allowed to make a contract without his wife's approval, but in practical terms, his problem was the same as it is today: If your wife puts her foot down, it's almost impossible to move forward."

Do you really believe that both equally had to ask the other in 1880?? In 1880, the law said the the woman must ask her husband, and that the husband need not ask his wife. The husband made all the decisions, by law, and owned all of the property. Even if there were some way around this, how do you think this "nudge" of a "default" set of rights to just one parter affected culture and society? How do you think it affected the kinds of contracts that women would be able to obtain when they walked in to a business, as opposed to when they sent their husband, who did not need permission?

And women could not get around this - no matter what their prenuptial said, women would not be able to enter contracts--that means she could not run the business that she and her husband may have owned, even if he went away, because she could not deal with the suppliers (negotiate prices); she could also not make a deal with a landowner when the couple wants to expand their property, or purchase cows from a new seller in the area, it would always have to be her husband (how could the seller know that she had her husband's permission?); since she could not vote or run for office she also could not engage with the local "men's club" where they discuss the politics of the day, make business deals, trade pieces of property (and maybe wives for a laugh!)

Your description sounds like a fantasy to me; 1880 was not like that. Husbands at that time never asked for their wives permission. Have you read any book of the time or read any history that would suggest that men frequently ran home from their businesses where they worked to their home where their wife was caring for the children, to ask her permission to sign a contract the way that she legally had to if she wanted to enter a contract? Running or working a business, one may have to sign dozens of contracts per day (e.g., when doing payroll for contractors, or ordering new supplies), the husband could do this every day, but the wife could not do this without permission from her husband. Hence, the wife was stuck at home with the children, and could not engage in business or politics, because it was against the law for her to do so.

Women were stripped of all rights - the right to contract, the right to vote or run for office, the right to own property, etc, particularly when married, so that the only legally accepted role was to raise the children and care for the house. This was cloaked in "tradition" (and sometimes "religion") just as when Muslim women cover their bodies head to toe. As this was law, it was even stricter than if was only culture, and the two worked in tandem.

Men ran the business, ran politics, owned the property, and were generally much more abusive to their wives at home than today (hitting was considered acceptable in many areas) who could not and did not engage in any of these things. Women were not seen as equals, but more like property; they not seen as intelligent, or capable of handling worldly affairs such as business or politics. The law most certainly was part of the reason - and so you cannot say that it was probably not enforced or that men also had to ask their wives - this is simply not the case.

You may notice that this has left a mark even today as we see far fewer women than men in business (where they needed contracting rights) and politics (where they needed the right to vote). Women only really started taking part in worldly affairs, one might note, after the pill and the sexual revolution of the 1960s, when it also became more normal to co-habitate and not marry and not spend one's whole life raising children.

No, women were NOT equally or more free back when they had no rights. That should be obvious.

Tracy W writes:

Oh, you did comment about contraception, very briefly but my mistake for not noticing. And not very impressively - a libertarian arguing that restrictions on speech aren't a big deal?

Contraceptives in 1880s included condoms, which also offered some protection against STDS (syphillis). Plus, how much of the poor state of contraceptive knowledge back in 1880 was that it was illegal to sell or provide information about them? How many 1880s women would have wanted to use contraceptives if Ladies Journals had been writing articles about them for the last 50 years? How much cheaper would have condoms been, if the market had been far broader, transportation legal, and advertising doable?

Jacob T. Levy writes:

Gwen, Bryan spoke imprecisely. You couldn't contract out of coverture. As I've been stressing, no prenup could alter the married woman's status as incapable of entering into contracts. But in both the US and the UK there were ways of protecting property in the woman's family-- substantially through trusts, which come under equity not under common law.

To be the beneficiary of a trust isn't to *own*-- coverture made the status of landowner unavailable to a married woman. But the artfully-constructed trust can operate very much like ownership, especially if supplemented by contracts between the bride's family and the groom.

There was no way to protect income earned by the woman during the marriage-- no prenup could change those rules.

Gwen writes:

Jacob,

Thanks for that. I did suspect that he meant family settlements (i.e. 19th century family trusts) rather than actual contracting-out. However, my point was that I don't think that beneficial entitlement to property under a 19th century settlement really equates to ownership as we now understand it (at least while the husband was still alive). At least not to the extent that justifies calling such a limited arrangement "contracting out of coverture".

As I said in my comment, such a trust would give the wife no powers of management of property, let alone any dispositive powers. (As a feme covert, presumably no powers at all could be vested in her since she was not a legal subject for the purposes of the law of property). So she wouldn't be able sell the assets and she couldn't make decisions as to investment without the consent of the trustees (who would, as I said, be male members of her own family or of his. Or him.) A life estate might entitle her to income but, as I understand it, that income would be controlled, again, by the husband during his lifetime. The point of a family settlement was to preserve capital for the sake of (male) children and to provide some degree of paternalist care for married women. It did not give married women financial autonomy - and that's what we're talking about here, isn't it? Freedom?

Again, I'm talking very much from the point of view of an English lawyer. It's possible that American trusts law of the period permitted beneficiaries more autonomy. My very limited knowledge of current US law doesn't bear that out though - isn't it the case that you guys actually give trustees more control than we do, since you don't have the rule in Saunders v Vautiers? :) But now I'm getting side-tracked into points of detail. The point I was making is that it is misleading to describe the rights of a woman under a marriage settlement as remotely equivalent to the rights of a single woman who owned property at the time (or any woman who owns property now). There was some safeguarding of her interests but absolutely no protection of her autonomy.

Benthead writes:

@ Gwen

"Or 3. The ordinary English meaning of the word "freedom" - as used by historians, lawyers, most people who speak the language and Mel Gibson when he's got his Scottish on - is incorrect and the libertarian definition, whatever it is, is correct."

True, this would resolve the logical conundrum. It requires only a positive libertarian definition of "freedom" that would make the historical assertions prove his case.

Like you, though, I'm having a hard time trying to imagine what that definition is. Hence my question about whether Mr. Caplan fairly represents the libertarian perspective.

I'm genuinely curious. As a historian, I always applaud thought experiments that test political tenets against the historical record. But Mr. Caplan's experiment seems to be so far from what I know about this moment in history that I'm flummoxed.

liberty writes:

"I'd be interested to know: are some of the criticisms here of Bryan Caplan's argument lodged from a libertarian perspective? Or would most libertarians agree?"

I think many or even most of the comments here are probably posted by people with libertarian sympathies, and many by libertarians (like myself). I think Bryan stands alone in these views - he does not speak for libertarians more broadly.

Jacob T. Levy writes:

My criticisms are libertarian ones. We have yet to see any other libertarians rallying to Bryan's flag on this one.

Kerry Howley writes:

I can't find any value in a concept of freedom so profoundly abstracted from lived reality. But in any case, if you asked libertarian or anarchist women of the time about marriage, you would be unlikely to get Bryan's sunshine-and-milkshakes impression. Here's Voltairine de Cleyre in 1890:

"He beheld every married woman what she is, a bonded slave, who takes her master’s name, her master’s bread, her master’s commands, and serves her master’s passion; who passes through the ordeal of pregnancy and the throes of travail at his dictation, not at her desire; who can control no property, not even her own body, without his consent, and from whose straining arms the children she bears may be torn at his pleasure, or willed away while they are yet unborn."

Perhaps Bryan could have explained to de Cleyre how free she really was.

Will Wilkinson writes:

Bryan, You need to deal with the fact that in the late 19th century girls were raised to be dependent and subservient. It is an all-too-common flaw of libertarian just-so-stories to ignore the developmental prerequisites for autonomous choice. One way to deny individuals the ability to choose really freely is to raise them in a way that cultivates and reinforces preferences that fit comfortably within a social and legal order of paternalistic control and systematic inequality of status and rights.

One time-honored criticism of paternalism is that it often renders individuals unfit to make choices on their own behalf, thereby reinforcing paternalistic laws and norms by making them seem necessary. Do you think this is an ineffective criticism of paternalism? I take it that you would be unwilling to endorse slavery even if slaves could be raised to consent to their chains?

Also, about your last sentence:

"I know that non-libertarians won't be satisfied, but the point of my post was to show that women had more libertarian freedom in 1880 than they do today, not convert skeptics to libertarianism."

I think you should understand that to the historically well-informed, you have offered perhaps the most convincing possible case for rejecting your conception of "libertarian freedom"

Matt writes:

I'm not sure I agree, but I understand where this is coming from. I just finished a report on how the invention of the automobile affected women and feminism. This was at the turn of the century, 1900-1909. The report wasn't scientific by any means, but I really got the impression that most women got what they wanted. The same paradigms that exist today between the two sexes existed back then: a guy thinks he's in control because he can always put his foot down and the woman thinks she's in control because she can nag and hold out. There is a tension between who is really in control of the relationship.

I for one am always going to believe that influences in a marital context are greater on average then those in societal context. So if you can get your husband to do whatever you want, does it matter what the legal rights are?

Jacob writes:

Bryan,

Like always, you have made some good points that I haven't previously considered, even if I don't agree with some of your conclusions. I contend, contrary to DeLong's recent post, that you are definitely NOT the stupidest man alive.

Cheers,
Jacob

Will Wilkinson writes:

Bryan, You need to deal with the fact that in the late 19th century girls were raised to be dependent and subservient. It is an all-too-common flaw of libertarian just-so-stories to ignore the developmental prerequisites for autonomous choice. One way to deny individuals the ability to choose really freely is to raise them in a way that cultivates and reinforces preferences that fit comfortably within a social and legal order of paternalistic control and systematic inequality of status and rights.

One time-honored criticism of paternalism is that it often renders individuals unfit to make choices on their own behalf, thereby reinforcing paternalistic laws and norms by making them seem necessary. Do you think this is an ineffective criticism of paternalism? I take it that you would be unwilling to endorse slavery even if slaves could be raised to consent to their chains?

Also, about your last sentence:

"I know that non-libertarians won't be satisfied, but the point of my post was to show that women had more libertarian freedom in 1880 than they do today, not convert skeptics to libertarianism."

I think you should understand that to the historically well-informed, you have offered perhaps the most convincing possible case for rejecting your conception of "libertarian freedom"

Gwen writes:

Oops, I've just checked the law on this point (always a good thing to do before making legal claims rather than after!) and a feme covert could exercise a power of appointment in her own right at common law. But I still think that your usual matrimonial settlement would have been very unlikely to vest such powers in the woman; and the whole point of having such a settlement is to prevent either the woman or her husband from frittering away the capital, by keeping it under the control of the trustees.

Lydia writes:

You're using statistics collected by the government to prove your point? Do you also collect government checks to fund your research?

byomtov writes:

This is a good example of the difference between the law and social reality.

This strikes me as a strange sort of argument for libertarians to make, since they typically seem not to appreciate the coercive power of social reality as opposed to law.

Market forces have a strong tendency to weed out discrimination.

No, they really don't, and citing your own poor argument in support of your claim really is not very convincing, especially in light of the actual history of discrimination.

roversaurus writes:

Wow,

Most of the commenters here have a great deal of trouble with reading comprehension.

Bryon, I suggest you break your post in to smaller sections. There are far too many commenter errors to address them all at once.

Just the one entered while I was typing.
Saying that - market forces do NOT weed out descrimination - is enough for a single post and discussion that could hopefully educate that person.

Andrew G. writes:

Wow Lydia, of all the criticisms that could be made you chose that one?

Steve writes:

@ Snorri Godhi:

'If we take a more global view, otoh, there are reasons to be optimistic: most of the rest of the world has become more free in the last century. The main exceptions, at a guess, are Britain, Canada, Sweden, North Korea, Burma, and perhaps Argentina.'

You appear not to be able to tell the difference between social democracy and military dictatorship. I think what this really is is a list of countries that you don't like. 'Free', here, is short for 'free to pursue policies that I approve of'.

As to the main article, the lack of historical perspective is mind-bending, but I have nothing further to add (Gwen has summed it up best).

Jacob T. Levy writes:

I *think* someone above is posting under my name to make fun of me for doing anything here other than calling Bryan names...? Anyway, "Jacob" above is not me.

[FYI, to Jacob T. Levy: The person going by the nick of Jacob above in this thread has been posting under that nick on EconLog--and legitimately so--for a long time. It is a matter of coincidence that his nick and yours coincide in this thread. I do not think there is any intent to make fun of you or abuse your nick. It's probably just the first time you and he crossed paths and posted in the same thread.--Econlib Ed.]

Joshua Lyle writes:

byomtov,

Market forces have a strong tendency to weed out discrimination.

No, they really don't.
Yeah, they really do. Check out Peter Leeson's work, or Byran's Labor Econ lectures, or his appearance on EconTalk on the subject of discrimination. Its a much better supported position than this one, and, of course, those amount to much better support than you've presented here.
especially in light of the actual history of discrimination
You mean the actual history of discrimination in which states frequently intervened to keep the market from weeding out discrimination? Not getting you much, that.

SydB writes:

Mr Wilkinson: Mr Caplan lives in a Libertarian Utopia (in other words, he's a non-profit professor), so he doesn't get the idea that libertarian nirvana doesn't exist in the real world.

Also please note: Mr Caplan has never, as far as I can tell, provided us with a comparison of the libertarian freedom of women then and now. Only then. Where's the comparison? In other words, if I focus on what Mr Caplan wants--libertarian freedom--he's said nothing.

Contemplationist writes:

Bryan

As a libertarian, I was really curious and excited to see how you might deliver a blow to conventional wisdom again. However, this post is an utter failure in that regard. You may ultimately turn out to be correct, but this is so far out of mainstream libertarian arguments (e.g. discounting coercive law , discounting default hard paternalism against women, lack of power of attorney compared to modern standards)

As libertarians, we tend to find arcane and ridiculous regulations and connect them to actual destruction of wealth and coercion against non-harmful behavior. How exactly is this post libertarian in any way, shape or form?

As a side note to comments who are not libertarians, I would submit that you take not argument by authority, but the conceptual framework of libertarianism to argue against the position.

lark writes:

I am incredulous that this is a serious topic of discussion.

Gwen writes:

the actual history of discrimination in which states frequently intervened to keep the market from weeding out discrimination?

By, for example, enforcing laws like the coverture rule. I don't accept the thesis that The Market alone will save us all from discrimination and other forms of inter-personal unpleasantness, but I do appreciate the irony of the invocation of that idea in the context of this particular discussion.

Snorri Godhi writes:

Steve:
You appear not to be able to tell the difference between social democracy and military dictatorship. I think what this really is is a list of countries that you don't like. 'Free', here, is short for 'free to pursue policies that I approve of'.

1. You appear to be unable to distinguish between "less free than a century ago" and "not free". A list of unfree countries today would be much longer than the list I gave.

2. FYI I do like Canada, or parts of it. Also Scotland and parts of England (never been to Wales or Ireland).

3. North Korea is not a military dictatorship.

4. If you think that I hate social democracy, why do you think I did not include Germany? the Netherlands? Belgium? France? Denmark? Norway?
[Actually I dislike some of these countries, but to the best of my knowledge they are more free now than they were a century ago.]

Peter writes:

"Puhleese! My wife enters into dozens of contracts of which I know nothing whatsoever, subscribing to magazines and websites, agreeing to membership terms at a gym, etc., etc. She does this without my knowledge because she is free to use her own damn money to do so - she entered into a contract with her employer to get it"

I don't know about you but my wife does this with my money as any long time married man knows: what's hers is hers and what is mine is hers; what sort of fantasy marriage are you living in :)

Mike writes:

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Simon K writes:

Bryan, are you really going to take this further? Its a ridiculous argument. It makes no logical sense and further its only rhetorical use it pernicious. Contrarianism is fine, but to be interesting it needs to come from a solid logical or factual base of some kind, and this just doesn't.

There are two kinds of liberal arguments about freedom you can make that are logically coherent - formal and consequential.

On the one hand, and usually beloved of right-libertarians, are purely formal legal arguments. You are free to do X providing the law allows you to do X and there are laws preventing others from interfering with your doing X. It doesn't matter that I can't afford to eat kobe beef every day, I am still formally free to do so. This quite clearly fails as a formal legal argument - the law did not allow married women to own property, enter into contracts or peruse lawsuits, and did not even protect their bodily integrity against their husbands. They could not formally contract out of these arrangements because any contract would be unenforceable against their husbands once they were married. They could enter into an agreement, of course, but that's not a formal legal thing any more.

Which leads us to consequential arguments about freedom usually beloved of left-libertarians and liberals. In such arguments I'm only free to do X if I'm actually able to do X, regardless of whether or not there is a law against it, and sometimes regardless of whether there is. In these terms very few people are free to eat kobe beef every day. We could interpret Bryan as making a consequentialist argument that in practice 19th century women were more free than today because they were in fact able to do more. But even if we somehow try to compensate for technology and wealth this doesn't work either. Quite clearly women's freedom was in practice much more constrained. They had less choice in work, education and recreation than men. The costs of escaping the framework of lifelong marriage with your husband as guardian were huge and the benefits constantly at risk because there simply were no laws to support a woman who wanted to live an independent life.

What this is instead is third kind of argument about freedom that generally has no place in liberal thought of any kind - freedom by consent. It would have been possible for a 19th century woman to negotiate an arrangement with her partner whereby she exercised control over same part of the resources that were legally his, and for him to abide by the agreement. Neither of them would have been breaking the law although the arrangement would have had no legal protection it would probably have presented almost-insurmountable legal obstacles in practice. But it would require the consent of her husband. If he withdrew it, there's be nothing she could do about it. Is she free providing he doesn't do so in practice? That seems to be what you're claiming.

This kind of argument has no place in liberal thought because it opens the door to every kind of authoritarian arrangement. Monarchy is just as good as a Republic, because after all a good monarch wouldn't interfere in his citizen's freedom. A tenant farmer in a feudal nation is just as free as a freeholder because he could negotiate with the landlord for full control in practice. The Greek cities could have maintained their freedom if they'd just joined the Persian empire. See? Its just not convincing.

Amy writes:

Bryan, if a law were passed that said that you were required to hand over your entire paycheck (and all of your personal property, including the rights to your book and other published works) to your wife, who would own it, and that you were not permitted to own your own property, would you argue that your level of freedom would be unaffected by that change? You could still cajole, persuade, or threaten marital disharmony in order to get your wife to give you an allowance, after all. But if you left her (which would be frowned upon, if not outright illegal), you would be entitled to take with you none of what you had created or earned. And if you tried to take "your" money back from her or disobeyed her, she could beat you senseless, and both the law and your neighbors would think her justified. That wouldn't make you feel less free?

zeno2vonnegut writes:

The most egregious revelation of this discussion is the unfortunate evolution of women in the last 120 years from sweet docile helpmates desiring neither higher education nor professional membership nor any scope beyond the family hearth to termagants who are unashamed to flaunt their intellectual superiority to GMU economics professors.

eyelessgame writes:

[Comment removed pending confirmation of email address. Email the webmaster@econlib.org to request restoring this comment and your comment privileges. A valid email address is required to post comments on EconLog.--Econlib Ed.]

tadhgin writes:

"the point of my post was to show that women had more libertarian freedom in 1880 than they do today"

Well I gotta get me some of that libertarian freedom then... the one that gets you legally raped (cos I would never belong to that "small fraction" of victims of a gross violation of my rigts) without the freedom to contract (I'd reach an understanding with my spouse because he would know that my nagging was so much badder than the full coercive power of the state) and without the freedom to own property (cos I would contract all potential issues with my father and spouse in advance covering all potential circumstances such that I would have no regrets).

Thank god you stopped me from wanting that progressive and liberal freedom that's being hawked around these days. My blind spots would have made me think I would have been better off until you cleared things up....

Miguel Madeira writes:

"Since divorce was much more difficult in the 19th century"

No further comments.

byomtov writes:

Yeah, they really do. Check out Peter Leeson's work, or Byran's Labor Econ lectures, or his appearance on EconTalk on the subject of discrimination. Its a much better supported position than this one, and, of course, those amount to much better support than you've presented here.
especially in light of the actual history of discrimination
You mean the actual history of discrimination in which states frequently intervened to keep the market from weeding out discrimination? Not getting you much, that.

I've checked out Bryan's lectures. They're stupid, or rather, they consist of abstract reasoning under unrealistic assumptions designed to prove a point.

As to state laws, you need to learn a lot. Even under Jim Crow state laws did not generally mandate employment discrimination. I repeat - Jim Crow laws had little to do with employment discrimination. Got it? Good.

And no, states did not intervene to prevent market forces from eliminating discrimination. It existed where there were no such laws. And were the laws were present they were not handed down from on high. They were put in placde by racist legisatures, reflecting the will of an overwhelmingly racist society.

The fact is that, contra Caplan, employment discrimination is economically rational in an intensely racist society, such as the Jim Crow south. The blunder that Caplan, and you, and all the other libertarians who don't know any real history, make is assuming that productivity is a function solely of individual effort, skill, and diligence. It's not. It's also a function of societal norms.

Suppose, in 1956, you were charged with a serious crime in Alabama. Facing a jury that is probably close to unanimously racist, and a judge who is almost certainly racist, would you hire a black lawyer as your defense counsel, no matter how brilliant and hard-working? No. You wouldn't. And that was the problem.

Steve writes:

@Snorri Godhi

Inevitably, this is going to lead to us just disagreeing over what freedom is. Given that in your first comment, you mention 'regulation' as a major block to freedom, I think we're going to come at the issue from opposite angles. For a start, 'regulation' is such a catch-all term that it's meaningless as an impediment to freedom. Of course, there are regulations that do limit free choice of non-harming activities. However, do adequate fire safety regulations harm freedom? How about regulations stipulating minimum qualifications for medical staff? Hygiene regulations in food preparation? Etc, etc.

'North Korea is not a military dictatorship'

I know, I was referring to Myanmar, which clearly is.

You appear to be unable to distinguish between "less free than a century ago" and "not free". A list of unfree countries today would be much longer than the list I gave.

I'm aware of the distinction. I can't for the life of me divine what metric you're using to decide this. The two Asian countries have gone from the horrors of colonial rule (from Britain in the case of Myanmar, from Japan in the case of Korea) to military dictatorship in the case of the former, to a Stalinist planned economy and total social control, combined with a Turkmenbashi-style personality cult in the latter. You may feel this a decrease in freedom; it looks like going from the frying-pan to the fire to me.

The European choices are just baffling. Women could not vote at all in England, and not in national elections in Sweden, 100 years ago. Homosexual relations were illegal in both countries (and it wasn't long since Wilde had been imprisoned in Britain). Both countries had national service. Sweden is about to get rid of its national service, which is a decent argument for the exact opposite of your own. Britain would soon go from national service to conscription in sending millions of men to their deaths in a pointless war, hardly my definition of freedom. There's far less censorship in modern Britain, on any metric. Etc, etc.

Snorri Godhi writes:

Steve:
I can't for the life of me divine what metric you're using to decide this.

Mass murder, in the case of N.Korea and Burma.

The European choices are just baffling.

... to you.

http://www.theaustralian.com.au/news/opinion/thought-police-muscle-up-in-britain/story-e6frg6zo-1225700363959

http://www.dailymail.co.uk/news/article-1265065/Man-kills-row-work-non-PC-joke.html

http://en.wikipedia.org/wiki/The_New_Totalitarians

Steve writes:

Frankly, the links provided speak for themselves, but probably not in the way you think.

marcus writes:

The inanity of Caplan's main argument is cast into sharp relief by one simple bit of long division -- the number of people sent to Siberia divided by the total population of the Soviet Union (a small number which shows, by Caplan's reasoning, that the USSR was a free society).

MissaA writes:

@Matt
"I for one am always going to believe that influences in a marital context are greater on average then those in societal context. So if you can get your husband to do whatever you want, does it matter what the legal rights are?"

Of course it matters. If you have legal rights, you can do what you want autonomously. Without, you have to try to persuade your husband to do what you want.

mythago writes:

@Matt, the charming sexist fantasy that the woman is "really" the boss because she can "nag and hold out", besides being a fantasy, makes zero sense in the context of the 1880s. A woman can't "hold out" when her husband has the absolute right to have sex with her, and to take it by force if he wishes. She can't "nag" when she has absolutely no power to enforce her wishes, and her husband is free to shut her up with his fists. Particularly as she has no legal right to end the marriage at will.

Again, this all goes back to the original article by Boaz, which pointed out that Libertarians are not going to make inroads with people to whom they have said, in essence, "I reject your reality and substitute my own." How many women really are eager to embrace a philosophy that, according to Bryan, thinks it's no big deal if women are denied the vote, or are the legal property of their husbands? How are women supposed to accept that Libertarianism is an intelligent philosophy if we're told that it's not a big deal if our husbands pretty much own us, because we can stamp our feet and pout and get our way anyway? And while I realize that Bryan is hardly the Voice of Libertarianism, you only have to read the comments on Boaz's piece to see that's he's only the more reactionary end of a particularly clueless but significant wing of Libertarianism.

Latis writes:

Wow... just wow... It continually surprises me that people with this ignorance of history and the topics about which they are speaking attempt to make themselves seem like experts...

You are suggesting that because some or most people wouldn't have had a "run in" with or disobeyed the laws meant to restrict women's freedoms means that women were more free when they were in place rather than when there aren't the laws meant to restrict their freedom... but are ones that are meant to ensure that, that freedom not be taken from them?

Also with your comments about contracts you are ignoring an extremely important point... in 2010 if a woman wants to draw up a contract and her husband disagrees... SHE CAN STILL DO SO... in 1880 the woman who wanted to draw up that contract would be LEGALLY UNABLE to do so.

The woman that wants to work despite her husbands concerns in 2010 can STILL legally seek work (and the choice of work can't be decided for them) even if he does not relent... not so in 1880.

On top of this is your arguement of the prepondance of legal claims... but your references for 1880 legal stats are a cursory google search. Did you try somehwere where the older data is actually stored like legal or academic libraries perhaps before declaring that the lack of information meant it wasn't an issue back then?

Of course, even acknowledging your argument as to lack of data on actual legal action is also ignoring the fact that when a law exists it automatically tends to supress the behaviour for fear of persecution...So if persecution is systematically and legally encouraged/mandated for indulgance in an activity that constitutes the definition of restricted freedom, does it not? The fact that there was legal clout for restricting their ability to pursue the same things as their male counterparts is undeniably a restriction of their freedoms.

And I'm just going to sit here and sputter while you talk about marital rape being a non-issue in... particularly as it was legally condoned within the framework of the society of 1880...

If you want to argue that white males may or may not have been more free in 1880 than they are today, fine. That is a more complex issue and one that may be deemed to have some merit. But don't try to paste over issues that existed to try to convince people that laws curtailing the freedom and power of women had no effect whatsoever on their liberty (or even existed in a society in which they were more free as you seem to be arguing)... in fact if you don't want to look at the historical effect of such oppressive laws and societal oppression take a look at more modern examples such as South Africa or Afghanistan (the more extreme case).

If you want to make historical arguments please make intelligent well researched and well thought out ones... not defensive babble written strictly for the purpose of defending your fantasy of a nearly "perfect" historical libertarian society. If you want a truly libertarian society perhaps point specifically to the situation of a white male had in that society and argue that if all were treated as that you would have libertarianism (or closer to). However, if what you are arguing for is that you want a libertarian society for white males only then point to the 1880s as the paragon if you want but harbour no illusions as to what you are arguing for.

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