Bryan Caplan  

Weighing the Coerciveness of Marital Law

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I've been having an extended Twitter discussion about the history of women's liberty with Cato's Jason Kuznicki (@JasonKuznicki), the Atlantic's Megan McArdle (@asymmetricinfo), and others.  I find some of the issues hard to address in 140 characters, so I'm moving my thoughts here.

Many libertarians (see here and here for example) claim that women in the Anglo-American world were much less free in the Gilded Age than they are today.  I infamously disagree. (See here, here, and here for starters).  The Gilded Age was inferior to the present in many ways.  People were a lot poorer, technology was far less advanced, and values were unpleasantly stodgy.  But from a libertarian point of view, the Gilded Age also had major advantages: Far lower taxation, far less economic regulation, and never forget near-open borders

Given these unisex advantages, libertarians who want to argue that women were on balance less free during the Gilded Age need to find some large off-setting impositions on women's freedom.  What might these be?  The most popular answer points to marital law.  Under the doctrine of coverture, a married woman was not free to own property, make contracts, or accept employment without her husband's permission.

As a matter of legal history, coverture was already dead by 1880.  But my opponents could just push back the year a bit and resume the debate.  I challenge their basic premise.  As I recently explained, the doctrine of coverture seems no more "coercive" than the volunteer army.  If you don't want to waive your rights, don't accept the deal.

Jason Kuznicki's not happy with this response.  In his view, making people choose between marriage and liberty is a "coercive choice."  Is he right?  The path to an answer is surprisingly convoluted, but it's worth the effort.

For starters: You could say that marriage should be entirely private, so any government involvement in marriage whatsoever is coercive.  If so, I agree.  You could add that some kinds of government involvement are more coercive than others.  If so, I agree again.  The key open question is: What are the factors that make marital law more or less objectionable from a libertarian point of view?

I offer the following factors for your consideration:

1. Freedom of contract.  If the government defines marriage in any one-size-fits-all way, Jason's critique is worth considering.  The government is saying, "Either get married our way, or don't get married at all."  However, the more latitude parties have to renegotiate the standard terms, the less objectionable the government's role becomes.  In the extreme case, the government's definition of marriage is merely a default rule - and we're one step away from freedom.

2. Legality of substitutes.  Suppose the government has one unalterable definition of marriage.  If all other arrangements resembling marriage are illegal - cohabitation included - this is very coercive indeed.  If all other arrangements resembling marriage are unenforceable, there's still a serious problem.  But if arrangements resembling marriage are legal and enforceable, the government's definition of marriage is only mildly objectionable.  In the extreme case, suppose the government rigidly defines marriage, but recognizes all "schmarriage" contracts between consenting adults.  Government is depriving people of the word "marriage," but that's it.

3. Degree of enforcement.  Suppose the government has one unalterable definition of marriage, and officially bans all other arrangements resembling marriage.  If it strictly enforces its laws, then this is very coercive indeed.  The less it's enforced, the less coercive it becomes.  At the other extreme, if the laws against other arrangements are never enforced, then it's hard to see the big deal.  Virginia still officially bans cohabitation.  But since the law is a dead letter, it's no more than mildly coercive.

4. Customary defaults.  Default rules are far less objectionable than mandatory rules.  Still, as Sunstein and Thaler emphasize, rule-makers can use defaults to "nudge" people in their preferred direction.  Contrary to Sunstein and Thaler, however, this doesn't make nudging inevitable.  The simplest alternative to nudging is deference to ordinary language.  Unless parties say otherwise, assume that they're using words in the customary way.  Rothbard puts it well:
[I]f a man simply sells what he calls "bread," it must meet the common definition of bread held by consumers, and not some arbitrary specification. However, if he specifies the composition on the loaf, he is liable for prosecution if he is lying.
The same goes for marriage.  If government insists on setting the default rule, the least objectionable path is to defer to ordinary language.  If the common definition of "marriage" includes monogamy, favorable custody rules for women, or coverture, then that should be part of the default.  The more marital default rules ignore ordinary language in favor of some vision of what marriage ought to be, the more objectionable.

My ultimate goal is to compare the shortcomings of marital law in the Gilded Age and today.  Before I go on, though, what do you think about my four criteria?  Any objections?  Anything to add?  I'm happy to hear all comments, but I freely admit that this is essentially an intra-libertarian debate.  So I'm particularly interested in libertarian critiques, revisions, or additions to my proposed criteria.


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COMMENTS (23 to date)
rapscallion writes:

The 4 factors seem reasonable, but if you're ultimate goal is "to compare the shortcomings of marital law in the Gilded Age and today," I'd hasten to add that forcing people to adhere to a rigid dichotomy of legal regimes places a much more onerous burden on them the more that economic and social factors pressure them toward one of the regimes. In economic parlance, lower budget sets can make dichotomous choices disproportionately more burdensome.

In the era before easy access to birth control and before the average woman could command a large enough wage to feed herself and her children, almost all women who wanted to lead normal lives and have sex had little choice but to get married. This seems to me the biggest reason that something like coverture would’ve been so oppressive. A woman’s choices were: starve, let a man have control of your assets, or the nunnery. This also implies that reinstating coverture in the modern era, though still bad, wouldn’t be as oppressive since not marrying is a much more viable option.

I also think failure to appreciate the vast wealth differences (owing to modern technology and medicine) between the past and today is one of the reasons you get so much pushback when you argue that people in the past were, “freer.” They may well have been more formally free per the law, but they were also vastly poorer, had to make horrible tradeoffs, and no sane person nowadays would want to trade places with anyone back then.

Peter H writes:

There's an important factual question missing from this. To what extent was a woman's decision to marry in the late 1800s and early 1900s voluntary? That is, what portion of marriages were "arranged" or otherwise coerced. Particular attention should be paid to the age of the women being married by arranged marriages. Many were not at the age of majority or in any reasonable capacity able to fend for themselves economically. If a 15 year old young woman is married to a man 10 years her elder who was chosen by her father (whom the young woman still lives with at the time of choosing) I have a very hard time seeing that as voluntary.

I'm not an historian, so I can't tell you if arranged marriages were very common in this period, but it's an important point. In fact, if we're bringing it back to the draft comparison that was lighting up Twitter, I think it's somewhat comparable to conscription. Given the dangers of childbirth back then, it may have been a greater threat to the woman's life even.

Lars P writes:

Was there really much an unmarried woman could do in society back then without being a pariah?

What jobs were actually open for a life long career?

Could she hope to have children?

Evan writes:

@rapscallion

I also think failure to appreciate the vast wealth differences (owing to modern technology and medicine) between the past and today is one of the reasons you get so much pushback when you argue that people in the past were, “freer.” They may well have been more formally free per the law, but they were also vastly poorer, had to make horrible tradeoffs, and no sane person nowadays would want to trade places with anyone back then.

This is an excellent point. I sometimes try to make the comparison mentally easier by imagining that in addition to regulations passed by humans there are also "regulations" that are "passed" by nature.

The modern era has more regulations of human origin than the past did. But many of nature's "regulations" have been "repealed." Humans can now travel much faster, communicate much more easily, and be much healthier than was previously "allowed."

No doubt one reason people in the past seem less free is that they suffer under so many of nature's regulations, even if other humans are regulating them less.

In the era before easy access to birth control and before the average woman could command a large enough wage to feed herself and her children, almost all women who wanted to lead normal lives and have sex had little choice but to get married. This seems to me the biggest reason that something like coverture would’ve been so oppressive. A woman’s choices were: starve, let a man have control of your assets, or the nunnery.This also implies that reinstating coverture in the modern era, though still bad, wouldn’t be as oppressive since not marrying is a much more viable option.
You could argue that other regulations unrelated to marriage, like what jobs a woman was allowed to have, caused women to make choices that are unpalatable in a less regulated environment.

This brings me to my big question for Bryan:
Suppose that in a third world country a person has three choices, work in a sweatshop, become a prostitute, or starve. They choose to work in a sweatshop. Then the government passes a law against sweatshops, reducing the choices to prostitution or starvation. The person chooses prostitution. Would it be legitimate to say the law coerced that person into prostitution in some way, even though it didn't regulate prostitution directly?

Let's say that back in the Gilded Age a woman had three choices, get a high-paying job and be wealthy, get a low-paying job live a life of poverty, or get married with a contract that gives her husband a great deal of control over her, but gives her more wealth than the low-paying job would give her. Then let's suppose that various labor regulations prohibit the woman from choosing option one. If she chooses option three, when she would have chosen one in an unregulated environment is her marriage not coerced in some fashion? Even though the law doesn't regulate marriage directly?

Andy writes:

I think it is hard to argue that marriage was completely voluntary in the 19th century. Even now there can be significant pressure to get married, particularly among some social classes. Government laws are not the only ways of curtailing freedom, after all.

Dave Churvis writes:

You seem to be confining your argument only to oppression sourced by government entities. However, if you expand your arguments to include oppression by the Church and by societal attitudes in general, there would be no way for you to make the argument that women are less free bow than in the past with a straight face.

Freedom from government coercion is of course an absolutely necessary component of overall freedom, but it is by no means the most important. I would argue, for instance, that as a gay man, I am much more oppressed by society's attitudes toward me and the threat of extra-legal violence from homophobes than I am by something like DOMA. In this sense, my freedom is definitely threatened, but since the threat does not come from the government, your argument seems to be that the threat either doesn't exist or is irrelevant.

Telnar writes:

I would add feasibility of substitutes. For example, a law which bars local growing of fresh fruit is a bigger imposition on freedom in a world where long distance transportation of goods is rare and expensive than it would be in a world where bulk cargo is routinely shipped over long distances.

Similarly, limiting the use of the word "marriage" to relationships which comply with particular government rules matters more if there is strong social disapproval for relationships which do not use that word.

RonB writes:

One bit of anecdotal evidence,marriage is more than just government rules. Government can set the standard that others follow, what are the de facto rules. In 1978 my girlfriend and I purchased a house together. In our discussion with a Farmers Insurance Co agent to obtain home owners insurance he told us we were lucky, Farmers Ins. had only recently started writing homeowners insurance for unmarried couples.

Matt Skene writes:

I agree with Dave's comment that freedom from legal constraints isn't the only, or even most important, component of personal freedom.

Suppose tomorrow Saudi Arabia changed its laws so it had near open borders, very low tax levels, and high levels of economic freedom. Would you seriously think it would be a smart idea for American women to emigrate to Saudi Arabia in order to obtain higher levels of personal freedom?

The reason today is so much better for women than the Gilded Age is that Americans have achieved great moral progress over that time period. A society where people truly value personal freedom will almost always be better than a society where people don't. Even people who don't like what you do with your life will typically refuse to interfere with that life, and others are increasingly unwilling to look the other way when the few remaining bigots try. A society that lacks those values probably can't be a free society for anyone who's choices about their lives aren't tolerated, no matter what the legal structure is. A society that has those values will almost always be a free society in the aspects of your life that matter most to you, even if the laws aren't what we wish they would be.

Alex writes:

I'm not sure about #4. A default rule that enforces prevailing social norms is probably worse, because it even further reduces people's incentive to resist those norms. At the very least, a default that favors bad norms is worse than a default that favors good ones.

Emily writes:

I looked at the Census data on marital status back to 1880. The big differences were that women were getting married younger, widowed younger, and divorced less. But the never-married proportion was significant, and not *that* much smaller than it is now. Between 9 and 11% of 35-49 year-old women hadn't been married in 1880, 1900, 1910, 1920, and 1930. That figure was 14% in 2010. I'd expected to see a bigger change. It's possible that the women who weren't getting married then were doing so because they didn't think they could, and now they're opting out because they don't want to, but I want to see more evidence of that.

Daublin writes:

I like your comparison to military service, but note that the time period matters. A military contract is, what, four years? Marriage is for life. If people were routinely signing up for lifelong military contracts, I'm sure there would be a strong movement for a military version of divorce.

On the flip side of this analogy, it might make sense for marriage law to require a minimum time commitment of something like four years. It would add some seriousness back to an institution that is currently nearly meaningless.

Regarding defaults and the question of whether a marriage contract is voluntary, one must consider whether it's practical despite what the law says. A non-standard contract is weird, and will require vigorous fighting for, and it will require sacrificing some political capital within the marriage and within the local communinty ("you got your weirdo marriage; stop bothering me about X"). As well, even once one formally gets a non-standard marriage agreement, many people in the community are going to assume it's the standard agreement. You can't really sue everyone all the time.

Steve Sailer writes:

The big shell game in feminist thought is the assumption that feminists represent Women. In reality, they represent one kind of women in a struggle with another kind of women. To see this, just notice how feminists juggle whether they are blaming Men or Society. If they can blame Men, they blame Men. If they are blaming other women, they blame Society.

Steve Sailer writes:

If the current technology was such that sex = babies, then you need a legal and social system of control to prevent random families, with all the disastrous consequences for society as a whole.

If the technology improves that sex > babies, then a lot more individual choice is feasible. As we see, the upper middle class flourishes under this new regime. On the other hand, for the underclass even today sex ~ babies, but we've junked the old systems for regulating sex, and thus we end up with huge numbers of poorly socialized children raised by single mothers and supported by the state, with all the crime and drama that go along with that.

rapscallion writes:

Emily,

I don't think that's right.

This Census publication:

http://www.census.gov/prod/2003pubs/c2kbr-30.pdf

mentions in that there was no, "never married" category in early Censuses, and shows in Table 4 that in 1950 3.4% of 35-59-year-old women were never married, compared to 16.3% in 2000.

I think late nineteenth century Never Married rates can only be estimated. Figure 1.13 of this paper estimates about 7% of women older than 45 were never married in 1880.

http://conservancy.umn.edu/bitstream/96235/1/Frahm_umn_0130E_11387.pdf

rapscallion writes:

Woops. That's 11% Never married 25-34-year-olds in 1950 versus 30% in 2000.

Emily writes:

@Rapscallion: The samples I'm using are the 10% sample from 1880, 5% from 1900, 1% from 1910, 1920, and 1930, and 2010 ACS (what ipums calls the default samples). The variable is MARST, marital status. The only new code present in 2010 that isn't in the others is "separated." The rest are the same, including what the Census calls "never married/single." It's true that "never married" was not a response in 1880, but single, married, divorced, and widowed were. At any rate, nothing you've said necessarily conflicts with what I said. In 1880, 7% of women older than 45 vs. 9% of women between 35-49 - that seems possible. And like I said, women are certainly delaying marriage, which is why I looked at an older group. I didn't look at 1950 and I'm done working with microdata for the night. But if you want to look at this yourself, it's available at http://usa.ipums.org.

Evan writes:

@Steve Sailer

The big shell game in feminist thought is the assumption that feminists represent Women. In reality, they represent one kind of women in a struggle with another kind of women. To see this, just notice how feminists juggle whether they are blaming Men or Society.
Making blanket generalizations about an entire family of ideologies is no different from the way some types of feminists make blanket generalizations about Men.

On the other hand, for the underclass even today sex ~ babies, but we've junked the old systems for regulating sex, and thus we end up with huge numbers of poorly socialized children raised by single mothers and supported by the state, with all the crime and drama that go along with that.
Oddly though, crime has been falling since the early 90s. Which is about when the first few generations of the children born under the less regulated sexual mores began to reach adulthood. It's possible that something else caused the fall and crime might be even lower under a more restrictive sexual system. But still, it's something to think about.
Collin writes:

Bryan, You seem to missing:

1) In the Gilded Age the US government did have little to enforce laws but the local communities did most of the controlling of behavoir. It was the community/state that set the morals of marriage, men & women's roles and standards of relationships. I tend to think the US as a local theology through WW1 and Prohibition is being the first change of local vs. federal control.

2) You seem to wish that society would have stricter divorce laws and you are trying rationalize these wishes. Overall the government has minimal to say on couple who wish to divorce and places a lot emphasis on judges to work the separation of property, children and pets. If a couple were to for harsher divorce proceedings with upfront contract, then I sure the court would take that into account.

Mo writes:

Isn't it a bit naive to compare Guilded Age immigration to today. If the nature of immigration was the same today as it was then (primarily Western European, with Slavs and Chinese as secondary groups), people would have a more open borders view of immigration and would likely only try to have restrictions on Chinese immigrants ... much like they did in the Guilded Age.

Vipul Naik writes:

Couple of points:

(1) The degree of coerciveness of a law at the margin depends on how well off people are.

For instance, a 50% tax on earnings is more "coercive" in an economy where people are living at a subsistence level than in a modern first world economy.

(2) I think you should separate out the question of the coerciveness of marital law from the inegalitarianness (?) of marital law. A law could be highly coercive, yet egalitarian in its treatment of the sexes. Or, a law could be somewhat inegalitarian in its treatment of the sexes, yet be only mildly coercive. I understand that you're trying to concentrate on the coerciveness of the law (esp. for women) not on its inegalitarianness per se. But many others are concerned about the inegalitarianness per se, not the coerciveness.

Paul Rian writes:

Hah.. very amusing to read the comments by those who equate libertinism with freedom. It has been well documented that women's suffrage, that first of the radical changes to the established consensus to devastate Western civilization since the dawn of the 20th century, drove much of the expansion in government theft and other crimes against individual liberty. But hey.. without it, how else could the 18th Amendment have been passed? 'Freedom'- gotta love it.

And as for putting the drop in crime since politics enabled the resumption of a semblance of proper policing and sentencing to sexual libertinism- it's not just "possible that something else caused the fall and crime might be even lower under a more restrictive sexual system.".. it's a fact. Black Americans and even the Irish were far safer before their values were corrupted by the culture of petty flower power kids mad at daddy.

John David Galt writes:

I guess I am not quite your kind of libertarian, since I support many unalienable rights, including the right to quit any employment (and I don't see that even military service merits an exception -- indeed, I don't think it's possible for any moral person to voluntarily join the military if it means he won't have the option to refrain from participating in wars or operations he considers to be immoral). And frankly, I think my position is the more common one among libertarians.

Marriage, though, is a horse of a different color, because its original and most important purpose is to publicly commit the participants to stick around until they've properly raised any children they may produce -- and allowing them to break that promise has serious bad externalities, not only on the children but on anyone else who may be called upon to support them, and/or may be harmed if a child (or the other parent) is forced into a life of crime to support him/herself. I believe this justifies government enforced child support for children conceived in wedlock (only). But I do not believe it justifies other government interventions, especially lifetime alimony.

As for sexual libertinism: That is not a problem in itself. It has become a problem today because the welfare laws subsidize women to bear children out of wedlock, and compel men to support such children even if the man has not agreed to any such thing and the woman had the option to give the child up but chose not to. Eliminate that subsidy (and child support enforcement against men who did not agree to it by getting married) and those irresponsible women will stop having kids. It's that simple.

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