Bryan Caplan  

Women's Liberty in the Gilded Age: Further Replies

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The Looting Scenario... Postcard from the Gilded Age...
SydB asks a fair question:

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?

At least for libertarians, the massive liberty advantages of 1880 were (a) much lower taxes, and (b) much less economic regulation.  I'd particularly emphasize free immigration.  Even the Chinese Exclusion Act wasn't passed until 1882.

Zac faults me on marital rape:
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."
Two key points:

1. While the survey you cite doesn't break down the numbers, rape by all "intimate partners" - defined as "current or former spouse, cohabiting partner, or date" - is probably a lot more common than rape by spouse.

2. I asked for conviction numbers because I claim that modern legal changes had a trivial effect on marital rape.  However much marital rape impinged women's freedom in 1880, there's little reason to think it impinges it less in 2010.

Jacob Levy attributes a strange model to me:
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.
No, Jacob.  I never said - and don't think - that such behavior is "impossible."  My claim, rather, is that there is a broad range of behavior within marriage where the letter of the law makes little difference.  For major decisions, couples usually seek each others' permission, and when they don't, the main threat isn't legal action; it's domestic strife.  For the extreme behavior that you mention, I agree that the divorce threat is important. 

Of course, in a regime where divorce is very hard to obtain, men and women can get away with much worse behavior.  But this just strengthens my point that looking at the letter of the law in 1880 doesn't tell us much.  The law might say that a woman needs her husband's permission to work, but he couldn't easily divorce her for ignoring him.

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'm not one of those libertarians.  Yes, in pure economic theory, it's conceivable that the absence of convictions shows that everyone is so terrified of the punishment that you never have to inflict it.  In the real world, however, the absence of convictions usually shows the opposite - that you can break the law with impunity.  If antitrust prosecutions (public and private) were indeed extremely rare, I'd conclude that the laws didn't make much difference, and tell libertarians to allocate their mental effort to more important infringements of human liberty.  And that's what I'm telling libertarians about Gilded Age laws against e.g. cohabitation and fornication.


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COMMENTS (17 to date)
SydB writes:

Thanks. People seem to be having difficulty distinguishing between the argument (a) women had more libertarian rights and (b) women were better off. Most of the discussion seemed to spin around B instead of A.

I suppose for extra-clarification, I'd phrase the discussion in the following terms: what restrictions did the government--federal or local--place on women in 1880--versus now. Both in principle--written law--and practice--how those laws were interpreted and carried out.

Daniel Kuehn writes:

But surely tax rates and regulation are only a part of the picture.

Presumably the right to own property supercedes all that. I know there has been some discussion of this, but I haven't been following this debate too closely. Why are we even talking about taxes and regulation without first laying out the property rights regime?

David C writes:

Well, I'm a lot less skeptical than I was of your argument. I wonder if you would change your mind if perfect enforcement was assumed for both 1880 and 2010. But I wish you had responded to what I thought was the strongest criticism from just quickly skimming the comments. You may have missed it, so here it is again.

"During the era of coverture, a woman could NOT make a legally binding contract with her husband. Marriage made the two people into one, legally speaking, and one could never make a contract with oneself. The binding prenuptial is a modern, post-coverture creation, one that was only being developed in the late nineteenth century.

Sure, couples still made such agreements, even in the colonies, but they were rarely if ever enforced by the courts, and husbands could and did renege on them once they got married. Nothing held them to keep their promises to their wives. See Hendrik Hartog's Man and Wife in America: A History for much more detail on this. The eHow article is just plain wrong here, or at best misleading.

The article you cite from eHow is simply mistaken, to add to the other well-justified criticisms above, regarding cohabitation, marital rape, contraception, and the wife's loss of all property and future earnings to her husband." Jason Kuznicki

Prakhar Goel writes:

"rape by all 'intimate partners' - defined as 'current or former spouse, cohabiting partner, or date' - is probably a lot more common than rape by spouse."

Why this distinction between spousal rape and just rape?

It seems to me that the important consideration when deciding whether women were free or not would be to consider rape in general and not as a matter of law (which after all are just words) but as a matter of fact. What were the chances that a woman would be raped in 1880 compared to now. How about 1910?

Any look at crime numbers indicates that rape is a much more common problem now than before.

Also, that survey, even though it is from the NIJ and CDC gives absolutely crazy numbers (one in six!) --- they don't pass the laugh test. They also don't compare well to the FBI Uniform Crime Reports. According to the CIA Factbook entry on the US, there are ~103 million females aged 15--64 in the US. The survey claims a similar number (~100 million) of total women in the US. However, it claims that some 1.5 percent of women suffered rape or physical assault (ie. 1.5 million). The FBI UCRs give a total of 1.5 million for all violent crime incidents in 1998 (the date of the survey) against victims of both sexes and across a wide swath of violent crimes including robbery and aggravated assault.

The two results are clearly not congruous and given the more rigorous nature of the FBI UCRs (and experience, age, scrutiny applied, etc...,though of course they have scope for improvement), the survey should be thrown out of this discussion. It should have never been brought up in the first place.

David Maddock writes:

But surely most women in the 1880's were not in a position to benefit directly from your cited "massive" advantages.

liberty writes:

"Any look at crime numbers indicates that rape is a much more common problem now than before."

NO! Any look at the numbers indicate that rape is more commonly REPORTED now, although it is still the #1 most under-reported crime (aside from non-consensual incest/molestation, which fall in the same category as rape).

If rape could not even be prosecuted - it would not be likely to be reported, would it? The numbers tell you NOTHING.

liberty writes:

"But surely most women in the 1880's were not in a position to benefit directly from your cited "massive" advantages."

You mean people that can't own property, work, start a business, or enter contracts don't benefit from lower burden of taxation and regulation? Hmm... maybe you have a point there.

To the extent that they might benefit indirectly, it would be no different from the way that slaves benefited indirectly due to higher growth. So, I suppose that Caplan will argue next that slaves were also freer than blacks of today.

Gwen writes:

In other words, you are taking the position that the negative liberty of not being taxed is an important "freedom" whereas the negative liberty of not being raped with impunity is not an important freedom. Unusual. Or so I hope.

Philo writes:

Bryan takes the standard libertarian view, that there is a fundamentally important distinction between affecting others' behavior by physical force or the threat of physical force (coercive) and influencing them by other means (non-coercive). The legal way of influencing them, by instituting laws that require or forbid certain behavior, on pain of formal punishment, would seem to fall into the "coercive" category, since such laws are threats to use physical force. But note that threats count as coercive only if they are *credible*. As Bryan reminds us, some laws, though *on the books*, are not actually enforced. Verbally they constitute threats, but the threat is not credible; so these laws are not really coercive.

Fair enough; but a boundary-line problem looms: how great does the probability of enforcement have to be for the law, or any other threat of force, to count as *coercive*? The fact that the coercive/non-coercive distinction is a more or less arbitrary point on a probability continuum shows that this distinction is not really of fundamental importance for political theory.

Rachel writes:

I’ve followed with interest the back-and-forth here. I do have a few questions.

1. Regarding spousal rape: Was rape within marriage considered a problem in 1880? Did a woman have legal recourse if she were raped by her spouse? Was there a strong societal stigma associated with reporting spousal rape?

2. In 1880, did a woman generally leave a marriage with financial resources? Or by law did she walk away with nothing? I’m guessing this might vary with things like infidelity… but how about spousal rape, physical abuse, verbal abuse, or alienation?

3. In 1880, did divorced/separated women generally get custody of children? If there was a strong legal norm of NOT giving women custody, this could significantly alter a woman’s actual mobility.

I recognize that these questions might revolve more around societal norms than actual law. But if societal norms unfairly discriminate, isn’t corrective law appropriate? Further, are societal norms that limit choice less bad than law/regulation that limits choice?

bil. writes:

Bryan's point is even stronger if you extend the analysis beyond taxation and economic regulation.

Drug prohibition and other violations of a woman's freedom of ingestion would be a prime example of this. In 1880, a woman could easily buy cocaine or morphine (and Heroin after 1895).
Today:

In 2008, there were a reported 2,622,694 arrests of women, of which 240,600 (9.17%) were for drug offenses. (Note: Arrests covered 11,713 agencies submitting 12 months of arrest data for 2008 with an estimated population of 230,897,506 Americans.
Source:
Federal Bureau of Investigation, "Crime in the United States 2008," Uniform Crime Report, Washington, DC: Federal Bureau of Investigation, Sept. 2009), Table 40.
http://www.fbi.gov/ucr/cius2008/data/table_40.html


Bryan's claim that interpretation and enforcement of laws is an important consideration as well. Returning to prohibition for an example - the substance known as "GHB" is a Schedule 1 (and 3) substance, and hence illegal to own in any amount. GHB is also found in our bodies and in meat products. Thus, "by law" any woman consuming, buying, or transporting meat or meat products (or simply entering our country or crossing a state line) is committing a criminal act. So those arguing that the level of enforcement doesn't matter might not find that it strengthens their case.

Davis writes:

"1. Regarding spousal rape: Was rape within marriage considered a problem in 1880? Did a woman have legal recourse if she were raped by her spouse? Was there a strong societal stigma associated with reporting spousal rape?"

Wrong question, no, and wrong question.

"Spousal rape" is a modern concept. In 1880 a husband had every right to obtain sex from his wife, regardless of what she wanted. This was not considered rape of any kind until well into the 20th century, and was certainly not viewed as wrong in 1880.

So perhaps it is better to say that the answer to your first question is no - spousal rape was not a "problem" then in the same way that watching TV is not a "problem" now. There was simply no problem to see in it, regardless of its frequency.

The third question is "wrong" in the sense that there was nothing to report. It would be as if I walked into a police station today and reported that you looked at me funny -- their response would probably be "So what?"

Doctor Science writes:

To supplement Davis' reply to Rachel:

Until approximately the 1970s, both law and custom in the US and UK (AFAIK; IANAL, but I am old enough to remember) stated that by consenting to the marriage, the wife had automatically consented to any future act of vaginal intercourse at any time of the husband's choice. If he forced her to have oral or anal intercourse (or anything you'd generally call "kinky stuff"), she could divorce him on the grounds of "unnatural acts", or words to that effect.

2. In 1880, did a woman generally leave a marriage with financial resources? Or by law did she walk away with nothing? I’m guessing this might vary with things like infidelity… but how about spousal rape, physical abuse, verbal abuse, or alienation?

I don't think you understand the basic parameters. Divorce was a *crime* -- that is to say, the dissolution of a marriage was a crime, and someone had to take the fall. I recommend reading this NY Times article from 1909 about the Astors' divorce, to get the flavor of the times.

Divorce was difficult, humiliating, expensive, and rare. It was less rare in Western states, and California always had a notably high divorce rate -- when I was young in the 1960s, divorce was uncommon, and more than one divorce generally meant you were from California.

3. In 1880, did divorced/separated women generally get custody of children?

Rarely. The strong default was for the children to remain with their father -- they *belonged* to him.

Eric Rasmusen writes:

"Of course, in a regime where divorce is very hard to obtain, men and women can get away with much worse behavior."

What a strange statement. If divorce is hard without fault but easy if there is fault--- the traditional American law --- then men and women can't get away with bad behavior. In the current system, there's no penalty at all for bad behavior,unless it's egregious enough that you lose custody--- but even then, it's best interests of the child, not wrong to the innocent spouse that matters.

I'm skeptical that the men routinely got custody either, unless the woman was at fault. I know my great-great grandfather didn't when his wife divorced him for intemperance, in Illinois around, I suppose, the 1870's.

MissaA writes:

@Syd B
Thanks. People seem to be having difficulty distinguishing between the argument (a) women had more libertarian rights and (b) women were better off. Most of the discussion seemed to spin around B instead of A.

How is libertarinism relevant to real people, if it is so disconnected from their interests and personal well-being? Or is the whole thing just a thought experiment?

MissaA writes:

What a strange statement. If divorce is hard without fault but easy if there is fault--- the traditional American law --- then men and women can't get away with bad behavior.

But you have to be able to prove that behaviour. Given evidentiary issues, and the tendency to believe the testimony of men over that of women, divorce with fault would have been difficult for women. So it was very difficult to get divorce due to fault. And that's not even considering the stigma associated with divorce that made it an undesireable course of action, regardless of one's partner's behaviour.

MissaA writes:

I'm skeptical that the men routinely got custody either, unless the woman was at fault. I know my great-great grandfather didn't when his wife divorced him for intemperance, in Illinois around, I suppose, the 1870's.

"At the beginning of the nineteenth century, laws in countries such as England and the United States affirmed an almost absolute paternal right to custody of children born within wedlock, reflecting the elevated legal status of the husband/father within the institution of marriage."
See: http://faculty.law.ubc.ca/boyd/Ch1final.htm

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