Bryan Caplan  

All-Volunteer Matrimony

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Happy April Fools Day... Evolution and Economics...
The end of the draft is arguably the greatest policy success of libertarian economics.  Libertarians still have plenty of complaints about the U.S. military.  But libertarian complaints about the way the military treats its manpower have virtually ceased.  It's an all-volunteer military.  How could any libertarian continue to object?

Well, it depends.  Yes, every soldier now joins voluntarily.  But once you join, you surrender many basic rights - most notably the right to quit:
In a civilian job, if you don't like your boss, or don't like the job, you can simply quit. Not so, in the military. I get email all the time from recruits who just graduated basic training and/or technical school (job training), asking how they can "quit" the military. The short answer is that you can't -- unless it is for a valid hardship reason (i.e., someone in your immediate family is terminally ill, and your presence is required). The military can throw you out for several reasons, but you can't simply quit because you don't like it.
How should libertarians morally evaluate military-style employment?  Unless you believe in the curious doctrine of inalienability, the answer is clear: There's nothing wrong with it.  If you object, don't consent.  Once you consent, the contract is morally binding - and ought to be legally binding.  The only problem with military-style employment, in fact, is that no one but the military can offer such contracts.  In Libertopia, the right to make such deals would be open to everyone.

But who would want such a contract?  The most historically obvious answer is: People contemplating marriage.  In many societies, parties to a marriage surrender many basic rights - most notably the right to quit ("divorce").  These contracts are often explicitly "one-sided": Under the doctrine of coverture, for example, a woman could not own property, make contracts, or accept employment without her husband's permission.  Under current legal doctrine, similarly, men find it extremely difficult to get custody of their kids in the event of a divorce. 

Why would anyone in his or her right mind consent to such a deal?  The same reason soldiers consent to join the military: The deal has off-setting advantages that outweigh the drawbacks.  The most obvious reason to consent to a lop-sided marital contract: To win the hand of a higher-quality mate.  To steal the words of Luke 14:11, "For whosoever exalteth himself shall be abased; and he that humbleth himself shall be exalted."

How should a libertarian morally evaluate such marriages?  Exactly the same way you evaluate our all-volunteer military.  Unless you believe in inalienability, the correct answer to critics is, "If you object to these marriages, don't get one."  Once you consent, the contract is morally binding - and ought to be legally binding.

For libertarians, the problem isn't the contracts that are allowed, but the contracts that aren't allowed.  If a society only allows marriage with coverture, that's not freedom.  But when a society forbids marriage with coverture, that's not freedom either.  The purist solution is the privatization of marriage.  But does that mean that all systems of government marital law are equally unlibertarian?  I think not.  Later this week, I'll explain why.


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COMMENTS (26 to date)
KenF writes:

I think many readers won't quite realize what you are advocating. You are advocating allowing people to sell themselves into slavery without restrictions on the terms of the slavery contract.

So, for instance, you advocate a utopia where women can elect to sell themselves as sexual slaves-for-life, and such a contract should be legally binding. So, if a woman wanted to run away from her commitment, the owner would be in his rights to hunt her down and return her to servitude, as long as this was provided for in the initial contract.

It would be helpful to make this a little more clear for your readers, because they might assume something else when reading your blog post.

david writes:

Which is how Libertopia logically terminates in a property-owning monarchy.

Willem writes:

The inalienability link is not working.

I would find it troubling to suppose you can bind all future selves without any way to renege.

I would open the possibility that a future selve develops in a way that you had not forseen. One should not be able to bind others, and if that other happens to be the selve, one should not bind yourself (at least not towards infinity).

Matt writes:

This post is a perfect encapsulation of what makes us on the left suspicious of doctrinaire libertarians - and of their claims that they want to increase freedom. "Yes, if poverty drives you to sell yourself into slavery to a massively more powerful organization that can kill you if you change your mind, that's what I call freedom!"

Telnar writes:

I'm not normally in favor of limitations on the right to contract which are suggested to protect people from themselves, but this example is far too extreme for me.

The average 18 year old is likely to be severely overconfident in estimating how well short run relationship behavior predicts long run relationship behavior (in part because life circumstances will change in ways that an 18 year old will find hard to visualize). Combining that with potentially disastrous consequences from mistakes, and I'm in the inalienable camp on this one.

There's a reason that military contracts are for 4 years rather than a 20 year carreer and that the military has a variety of ways to release soldiers from their obligations when it recognizes that they are unsuited for the military life. I doubt the institution of fixed term enlistment would be stable otherwise.

While it's true that a marriage contract style which was found to have oppressive effects would eventually be resisted by most potential spouses, the very long lags before that problem might be discovered make me inclined to have the legal system exercise at least a little paternalism in protecting people from giving up far more of their rights than there's any recent precedent for.

Kevin writes:

Matt:

This post is a perfect encapsulation of what makes us on the left suspicious of doctrinaire libertarians - and of their claims that they want to increase freedom. "Yes, if poverty drives you to sell yourself into slavery to a massively more powerful organization that can kill you if you change your mind, that's what I call freedom!"

Are you more free if a massively more powerful organization (read: the government) can prevent you from making such a contract in the first place? If so, in what way?


Telnar:

There's a reason that military contracts are for 4 years rather than a 20 year carreer and that the military has a variety of ways to release soldiers from their obligations when it recognizes that they are unsuited for the military life."

Would you be OK with the same marriage contracts if they were limited to 4 years, and had the same discharge structure as the military? (Note: the military isn't, as far as I know, actually obligated to let anyone leave before their time). If not, why?

KenF writes:

I woke up this morning after last night, reading and commenting on this blog post, with one hope in my heart. That hope is that this is Bryan's April Fool's joke.

Bryan Caplan writes:

Thanks for pointing out the broken link, Willem.

Telnar writes:

Kevin:

The military has standard policies for dealing with recruits who prove to be unsuited to military life, so while they aren't obligated to release any particular person, there are constraints which make them unlikely to hold someone to the contract out of spite or for other irrational reasons.

Since individual spouses don't have the scale to build credibility through past action, the best analog that I can see to the military situation would be if the marriage contract, in addition to being limited to 4 years, spelled out what the day to day experience of married life was expected to be like and then courts could intervene if actual experience was very different from that projection.

Philo writes:

If *I* can't trade away some of *your* rights/freedoms, why should *my eighteen-year-old self* be able to trade away some of *my fifty-year-old self's* rights/freedoms? (There is a plausible answer, but it doesn't support your doctrine of absolute freedom of contract.)

Collin writes:

The 'Santorum libertarian' is trying to explain how the loss of marriage and divorce rights is actually more freedom seems weird. Why most people don't think of covenant as more freedom because it wasn't. Society did not give women the choice if they wanted to establish a career or being a wife & mother. The heorines in Jane Austin books spent all their time choosing the right husband not developing their skills to start a business. (Oddly enough Jane did not get married and hand over all assets to her husband.)

If you were courting the one of the Duggar's kids, it might signal to the father that you good marriage material if you believe covenant in the marriage contract. (If they decide to follow old marriage laws I don't care.) However I don't see how a belief in covenant as being an effective courting line.

Hume writes:

Bryan,

What are the reasons for claiming that individuas have the moral capacity to alter the existing normative landscape of rights and duties by entering into agreements? In addition, what are the reasons for thinking that coercive force ought to be used in order to enforce such agreements (at this point, they become legal contracts)? What are the underlying values that support the moral ideas of agreement, promise, obligation, etc.? How can it ever be rational/reasonable/moral to do something simply because you agreed to do it at a previous point in time? Arent we supposed to act on the basis of the balance of reasons that support such action?

Of course, I do not follow Goodwin in this latter claim, but you must present a framework for understanding the moral power of self-binding, and I wonder if you are capable of providing a framework that supports the claims you make in this post vis-a-vis military contracts.

mobile writes:

It's funny that "marital" and "martial" are almost the same word.

quadrupole writes:

Typically, contracts have recourse to property, not person. I can contract to do something, but if I don't, you can't make me, you can just come after my property to compensate for my lack of performance.

KenF writes:
contracts have recourse to property, not person.

Bryan advocates contracts that not only bind your person, they also determine the disposition of any children you have during the course of the contract.

So, for instance, Bryan advocates allowing women to sell themselves into sexual slavery and for the owner to be able to have custody of any children born during that servitude.

I will assume that Bryan believes that the children themselves should have some legal protections, at least until they are at the age of consent. Once they reach the age of consent, they too would have the opportunity to sell themselves into sexual slavery for life.

Becky Hargrove writes:

This is a perfect example why I advocate the creation of wealth in terms of knowledge and skills at the level of local community. We cannot have true freedom in our lives unless we maximize the number of regular, engaged social and economic contacts locally throughout the course of our lives, so that we are not caught relying on a few as we age. If we do not do so, we become unwitting and passive consumers the older we get, dependent on money that may or may not be there. Our local self employment used to fulfill this vital function of lifelong engagement in community for us. Now we have to rediscover entrepreneurship on service based terms. Bryan, as you enter those later years, believe me you would be happier assisting and accepting the assistance of your community than you would the assistance of your sons and daughters. I know it does not seem so now, as neighbors do not even speak to one another. That has to change if we are to regain our freedoms. If we continue as cut off from our communities as we are now, our civilization will not survive.

Kevin Driscoll writes:

I've often found that comments from people named after famous philosophers/philosophical characters are the best here on EconLog. Today, I again feel vindicated in that belief.

@Philo I think this is an excellent point, but it goes to an unsolved question in philosophy, doesn't it? What constitutes my personal identity? If he wanted to, could Bryan make a plausible argument about a dualistic soul/mind (even if it is epiphenominal/non-interacting)?

@Hume I take your point to be that we have to have a meta-ethical theory that accounts for the ability of self-binding in some cases but not others. In that case, I certainly agree. Do we have recourse here to distinguishing between what is/should be legal and what is/should be moral? Are we tacitly endorsing an action/inaction distinction then when we say the government can allow rights to be taken away, but cannot take them away itself?

My point here might be (I am still thinking about it) that we have to also reflect on personal moral responsibility. To me, it is not a binary state; there are varying levels of 'responsibleness.' Consider how much less morally responsible an addict seems compared to a sober person due to psychological or physical compulsion. I would extend the same argument here. We might get away with restricting these kinds of contracts by arguing that those who would engage in them are not in a state of being morally responsible and thus cannot forfeit their rights (in the same way that we would not punish them as harshly for their other moral decisions). It has its problem, but it seems possible.

Nathan Smith writes:

Great post, Bryan, well said. My only difference is that I would advocate some form of inalienability doctrine. In fact, this question becomes a back door by which a whole teleology slips in. Clearly, people should be free to make agreements that bind them. But it seems inhumane not to ascribe some limits to the binding agreements they can make. So, how do we decide what agreements people can make? How do we adjudicate between present and past selves, if someone wants to back out of an agreement they previously made. *Telos.* We have some normative view of what human flourishing is, and we choose the types of agreements to honor, or not, based on some view of human flourishing and what contributes to it. Marriage is certainly part of human *telos,* so marriage commitments are binding-- up to a point. Probably most of us would think the Roman Catholics go too far in recognizing marriage as binding. Serving one's country, we judge to be part of human flourishing, so it's binding. Selling oneself into slavery is not part of human flourishing, ergo not binding. What about student debt? Do we allow students to overcommit themselves? Gay marriage can't just be defended in terms of freedom of contract, because freedom of contract should not be unlimited. It has to be defended teleologically (hint: not a promising project). Thanks for raising this question, it's a very important one.

In other news, I'll be blogging at openborders.info from now on.

Mark Little writes:

Well, gee. Bryan, I read your blog because I admire you, I broadly sympathize with (many of) your views, and I often find your posts informative. But sometimes I wish you were more clear.

When I first read this post I thought it unexceptional, if not profound. But then I read KenF's comments and realized I don't know if his reading is not more correct than mine.

What have we here? Forget coverture and look up the legal meaning of infancy. (Which is both good and bad--you can't contract but you're not responsible.)

Following Jefferson, we must recognize that some rights are indeed unalienable, while most rights we do want to be alienable. (If one would alienate oneself, one could not be party to a contract. But without alienability of rights, there would be nothing to contract about.)

A contract may be unequal (as the parties are often unequal), but a truly one-sided contract is legally no contract at all. To constitute a contract, an agreement must have a quid pro quo.

Black and white (libertarian?) philosophizing about the sanctity and permanence of contracts is contrary to law and reason. All deals are contingent. It is always assumed that some circumstances might cause one party or the other to defect. At common law, a contract requires a meeting of the minds, and if circumstances prove radically different than contemplated, the contract may be set aside.

Even the voluntary military recognizes this. You can quite the Army. If you don't measure up, you'll be fired. If it turns out you made a mistake in joining up, eventually they will let you go. (A voluntary military has a clear incentive to minimize costs in correcting recruiting mistakes--they don't want new potential recruits to face forbiddingly high risks in making the decision to sign up.)

Where does the recourse to bankruptcy fit in your scheme? Is there to be no statue of limitations on commitments made by youth?

I read today on the internet the claim that there are 60-year-olds still paying off student loans, and that there exist retirees whose social security checks are being garnished for student loan payments. This obviously is for long ago students who far predate the current higher education bubble, and the now bankruptcy-remote student loan laws. The current generation of indebted students must be in a far worse situation.

Is this fair? (They did sign the loan agreement, after all.) Maybe your promised follow up post will explain.

Tracy W writes:

It does strike me that there is a case of "keeping the peace" to protect people from making unbreakable long-term contracts. In that, otherwise, if circumstances will change, some people will kill to get out such contracts (This is based on my extensive reading of Agatha Christie and other golden-age detective novels where "My spouse won't give me a divorce" was sometimes grounds for the murder).

Yes, people could anticipate this before making the promise. But a non-zero number of times they don't.

keith Beacham writes:

Bryan,

You are trying too hard. There is a point at which excessive ruminating of any doctrine leads to obsurd conclusions.

Curtis writes:

Two points I would make:

1. States don't provide "default" marriage contracts. Rather, they provide something that might be better described as "required minimum terms" for marriage contracts. One required minimum term in some states: You can only marry someone of the opposite gender. Another required minimum term: You can only marry one person. A third: The marriage is for life, except in a certain number of limited circumstances that would allow dissolution of the marriage (which circumstances are, as a fourth required minimum, defined by the state). To call these "default" contract terms implies they could be changed by consenting parties, but typically they cannot, even with a prenuptial agreement -- otherwise homosexuals and polygamists wouldn't have much of a problem with regard to marrying who they want. To call these required minimum terms part of a "default contract" is a bit of a misnomer.

2. Practically speaking, the institution of required minimum terms of marriage contract by states encourages ignorance of what is being contracted. Going into marriage, people have different ideas of what it means to be married, and those ideas may be very different than the state's ideas. Perhaps people should take care to understand the agreement they are making, not just emotionally and relationally but legally, but many people -- especially those who are young -- simply don't. This is an important point, since I think many libertarians would say that one must be conscious of the things they are agreeing to if they are to be held morally and legally responsible. If states didn't provide a set of minimum required terms of contract, it would force people to be more thoughtful in drawing up marriage contracts with their partner(s), and thus would be a much more libertarian process.

Curtis writes:

Oops - my comment was meant for the other post here: http://econlog.econlib.org/archives/2012/04/weighing_the_co.html

Dan writes:

This is an interesting topic. It seems like a lot of men stay away from marriage on the grounds that, 'she will probably just divorce me and take everything.'

Women lose out in this case too, obviously, because the pool of marrying men is reduced.

As others have mentioned, you would need exceptions so that people in truly bad situations can get out. So you just stack things against them so they don't extract things easily if they are the leaver.

But what do we have then? Divorce law as it was for most of US history before the introduction of no-fault divorce.

What if couples had the option of getting married under the old system, i.e. the system prior to no-fault divorce, or under the system that replaced no fault divorce????

stuhlmann writes:

Since no one else brought it up, I will. The main thing that makes military service different is that it is a crime to quit in any but the authorized manners. If you sign a contract to play football for the Steelers, and you then decide to quit or switch teams before your contract ends, all the Steelers can do is to sue you for breach of contract - a violation of civil law. If you sign a 4 year contract with the military, and in the 3rd year decide that you don't want to leave your pregnant wife for another deployment to Afghanistan, you can go to jail for not complying with that deployment order. Missing a movement and desertion from the military are crimes, not just violations of a contract.

Thomas writes:

I'd say KenF's emphasis on women and children selling themselves into slavery seems a bit odd. I take it he's not experienced modern marriage and its aftermath.

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