Marriage And The Limits Of Contract by Jennifer Roback Morse, Ph.D.
Marriage And The Limits Of Contract by Jennifer Roback Morse, Ph.D.This article first appeared in Policy Review, April 13, 2005
Reproduced under the Fair Use exception of 17 USC § 107 for noncommercial, nonprofit, and educational use.
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State impartiality in a free society
This is not the posture of a night watchman state
Social costs of private conflicts
Marriage is a naturally occurring, pre-political institution that emerges spontaneously from society. Western society is drifting toward a redefinition of marriage as a bundle of legally defined benefits bestowed by the state. As a libertarian, I find this trend regrettable. The organic view of marriage is more consistent with the libertarian vision of a society of free and responsible individuals, governed by a constitutionally limited state. The drive toward a legalistic view of marriage is part of the relentless march toward politicizing every aspect of society.
Although gay marriage is the current hot-button topic, it is a parenthetical issue. The more basic question is the meaning of love, marriage, sexuality, and family in a free society. I define marriage as a society's normative institution for both sexual activity and the rearing of children. The modern alternative idea is that society does not need such an institution: No particular arrangement should be legally or culturally privileged as the ideal context for sex or childbearing.
The current drive for creating gay unions that are the legal equivalent of marriage is part of this ongoing process of dethroning marriage from its pride of place. Only a few self-styled conservative advocates of gay marriage, such as Andrew Sullivan and Jonathan Rauch, seem to understand and respect the social function of marriage. Marriage as an institution necessarily excludes some kinds of behavior and endorses other kinds of behavior. This is why the conservative case for gay marriage is so remarkable: It flies in the face of the cultural stampede toward social acceptance of any and all sexual and childbearing arrangements, the very stampede that has fueled so much of the movement for gay marriage.
This article is not primarily about gay marriage. It isn't even about why some forms of straight marriage are superior to others. Rather, the purpose of this article is to explain why a society, especially a free society, needs the social institution of marriage in the first place. I want to argue that society can and must discriminate among various arrangements for childbearing and sexual activity.
The contrary idea has a libertarian justification in the background: Marriage is a contract among mutually consenting adults. For instance, libertarian law professor Richard Epstein penned an article last year called Live and Let Live in the Wall Street Journal (July 13, 2004). In it, he treated marriage as a combination of a free association of consenting individuals and an institution licensed by the state.
But the influence of the libertarian rationale goes far beyond the membership of the Libertarian Party or the donor list of the Cato Institute. The editors of the Nation, for instance, support gay marriage but do not usually defend the sanctity of contracts. This apparent paradox evaporates when we realize that the dissolution of marriage breaks the family into successively smaller units that are less able to sustain themselves without state assistance.
Marriage deserves the same respect and attention from libertarians that they routinely give the market. Although I believe life-long monogamy can be defended against alternatives such as polygamy, it is beyond the scope of a single article to do so. My central argument is that a society will be able to govern itself with a smaller, less intrusive government if that society supports organic marriage rather than the legalistic understanding of marriage.
Libertarians have every reason to respect marriage as a social institution. Marriage is an organic institution that emerges spontaneously from society. People of the opposite sex are naturally attracted to one another, couple with each other, co-create children, and raise those children. The little society of the family replenishes and sustains itself. Humanity's natural sociability expresses itself most vibrantly within the family. A minimum-government libertarian can view this self-sustaining system with unadulterated awe.
Government does not create marriage any more than government creates jobs. Just as people have a natural “propensity to truck, barter and exchange one thing for another,” in Adam Smith's famous words from the second chapter of The Wealth of Nations, we likewise have a natural propensity to couple, procreate, and rear children. People instinctively create marriage, both as couples and as a culture, without any support from the government whatsoever.
The sexual urge is an engine of human sociability. Our desire for sexual satisfaction draws us out of our natural self-centeredness and into connection with other people. Just as the desire to make money induces business owners to try to please their customers, so too, the desire to copulate induces men to try to please women, and women to try to attract men. The attachment of mothers to their babies and women to their sex partners tends to keep this little society together. The man's possessiveness of his sexual turf and of his offspring offsets his natural tendency toward promiscuity. These desires and attachments emerge naturally from the very biology of sexual complementarity with no assistance from the state.
But this is not the only sense in which the institution of marriage arises spontaneously. In every known society, communities around the couple develop customs and norms that define the parameters of socially acceptable sexual, spousal, and parental behavior. This culture around marriage may have some governmental elements. But that cultural machinery is more informal than legal by far and is based more on kinship than on law. We do things this way because our parents did things this way. Our friends and neighbors look at us funny if we go too far outside the norm.
The new idea about marriage claims that no structure should be privileged over any other. The supposedly libertarian subtext of this idea is that people should be as free as possible to make their personal choices. But the very nonlibertarian consequence of this new idea is that it creates a culture that obliterates the informal methods of enforcement. Parents can't raise their eyebrows and expect children to conform to the socially accepted norms of behavior, because there are no socially accepted norms of behavior. Raised eyebrows and dirty looks no longer operate as sanctions on behavior slightly or even grossly outside the norm. The modern culture of sexual and parental tolerance ruthlessly enforces a code of silence, banishing anything remotely critical of personal choice. A parent, or even a peer, who tries to tell a young person that he or she is about to do something incredibly stupid runs into the brick wall of the non-judgmental social norm.
The spontaneous emergence of marriage does not imply that any laws the state happens to pass will work out just fine. And it certainly does not follow that any cultural institutions surrounding sexual behavior, permanence of relationships, and the rearing of children will work out just fine. The state may still need to protect, encourage or support permanence in procreational couplings just as the state may need to protect the sanctity of contracts.
No libertarian would claim that the presumption of economic laissez-faire means that the government can ignore people who violate the norms of property rights, contracts, and fair exchange. Apart from the occasional anarcho-capitalist, all libertarians agree that enforcing these rules is one of the most basic functions of government. With these standards for economic behavior in place, individuals can create wealth and pursue their own interests with little or no additional assistance from the state. Likewise, formal and informal standards and sanctions create the context in which couples can create marriage with minimal assistance from the state.
Nor would a libertarian claim that people should be indifferent about whether they are living in a centrally planned economy or a market-ordered economy. No one disputes the free speech rights of socialists to distribute the Daily Worker. It does not follow that impartiality requires the economy to reflect socialism and capitalism equally. It simply can't be done. An economy built on the ideas in The Communist Manifesto will necessarily look quite different from an economy built on the ideas in The Wealth of Nations. The debate between socialism and capitalism is not a debate over how to accommodate different opinions, but over how the economy actually works. Everything from the law of contracts to antitrust law to commercial law will be a reflection of some basic understanding of how the economy works in fact. Somebody in this debate is correct, and somebody is mistaken. We can figure out which view is more nearly correct by comparing the prosperity of societies that have implemented capitalist principles with the prosperity of those that have implemented socialist principles.
There are analogous truths about human sexuality. I claim the sexual urge is a natural engine of sociability, which solidifies the relationship between spouses and brings children into being. Others claim that human sexuality is a private recreational good, with neither moral nor social significance. I claim that the hormone oxytocin floods a woman's body during sex and tends to attach her to her sex partner, quite apart from her wishes or our cultural norms. Others claim that women and men alike can engage in uncommitted sex with no ill effects. I claim that children have the best life chances when they are raised by married, biological parents. Others believe children are so adaptable that having unmarried parents presents no significant problems. Some libertarians seem to believe that marriage is a special case of free association of individuals. I say the details of this particular form of free association are so distinctive as to make marriage a unique social institution that deserves to be defended on its own terms and not as a special case of something else.
One side in this dispute is mistaken. There is enormous room for debate, but there ultimately is no room for compromise. The legal institutions, social expectations and cultural norms will all reflect some view or other about the meaning of human sexuality. We will be happier if we try to discover the truth and accommodate ourselves to it, rather than try to recreate the world according to our wishes.
Distinguishing between competing understandings of “natural freedom” will clear up one source of confusion in this debate. Jean-Jacques Rousseau presents a view of natural freedom quite different from the modern economic libertarian understanding. In Part I of A Discourse on Inequality Rousseau describes sexual pairing in the state of nature:
“As males and females united fortuitously according to encounters, opportunities and desires, they required no speech to express the things they had to say to each other, and they separated with the same ease. The mother nursed her children at first to satisfy her own needs, then when habit had made them dear to her, she fed them to satisfy their needs; as soon as they had the strength to find their own food, they did not hesitate to leave their mother herself; and as there was virtually no way of finding one another again once they had lost sight of each other, they were soon at the stage of not even recognizing one another.”
Rousseau could be describing the modern hook-up culture, down to and including the reluctance of hook-up partners to even talk to each other. He seems to define “natural” as acting on impulse and “freedom” as being unencumbered by law, social convention, or even attachment to other people.
Libertarians cannot accept these definitions. Being free does not demand that everyone act impulsively rather than deliberately. Libertarian freedom is the modest demand to be left alone by the coercive apparatus of the government. Economic liberty, and libertarian freedom more broadly, is certainly consistent with living with a great many informal social and cultural constraints.
Rousseau specifically depicted a state of nature that is not only pre-political, but nonsocial. Whether he intended this as a description of some long-lost, pre-social time, or as a goal to which the good society should aspire, his version of the state of nature is surely unnatural in this sense: A widespread nonsystem of impersonal sexual couplings has never occurred in any known society. In no known society have the ruling authorities, whether governmental or informal, been completely indifferent to the forms sexual couplings take, or the context in which sexual activity takes place. Nor has any belief system, whether religious or philosophical, ever claimed that sexual activity is intrinsically meaningless, having only the meaning individuals privately assign to it.
We now live in an intellectual, social, and legal environment in which the laissez-faire idea has been mechanically applied to sexual conduct and married life. But Rousseau-style state-of-nature couplings are inconsistent with a libertarian society of minimal government. In real, actually occurring societies, noncommittal sexual activity results in mothers and children who require massive expenditures and interventions by a powerful government.
Let me construct a hypothetical family to illustrate what I mean. In contrast to Rousseau's mythical state of nature, my hypothetical family occurs all too frequently in real-life modern Western democracies.
A man and woman have a child. The mother and father have no permanent relationship to each other and no desire to form one. When the relationship ceases to function to their satisfaction, it dissolves. The mother sues the father for child support.
The couple argues through the court system over how much he should pay. The woman wants him to pay more than he wants to pay. The court ultimately orders him to pay a particular amount. He insists on continuing visitation rights with his child. She resists. They argue in court and finally settle on a periodic visitation schedule to which he is entitled.
The agreement works smoothly at first. Then the parents quarrel. At visitation time, the mother is not home. He calls and leaves a nasty message on the answering machine. They quarrel some more. She says his behavior is not appropriate. He smokes too much and overindulges the child in sweets. She says the child, who is now a toddler, is impossible to deal with after visits. He quits paying child support. The court garnishes his wages to force him to pay. He goes to court to try to get his visitation agreement honored. The court appoints a mediator to help the couple work out a solution. The mother announces that she plans to move out of state. He goes to court and gets a temporary order to restrain her from moving. She invents a charge of child abuse and gets a restraining order forbidding him from seeing the child.
Say what you like about this sort of case. You may think this is the best mere mortals can do. You may think this contentiousness is the necessary price people pay for their adult independence. You may blame the mother or the father or both. Or perhaps you think this is a nightmare for both adults as well as for children. But on one point we can all agree: This is not a libertarian society.
Some libertarians might focus on the specific activities of the family court, regarding them as grotesque infringements of both parties' privacy. Agents of the government actively inquire into, pass judgments upon and intervene in the most intimate details of this couple's life. Or we might view the entire existence of the court system as an outrageous subsidy to this couple, paid by the rest of society. When the woman asks for the state's help in collecting child support, the state provides this service at no charge to her. When she makes a charge of child abuse, the state keeps the man away from her and her child. If the charge is proven to be unfounded or frivolous, the state does not require her to pay compensation for its expenses or the man for his losses.
The state solicitude for the mother and her child is a direct result of father absence. Without a father's assistance, this woman and her child are more likely to become dependents of the state. The state believes, quite reasonably, that it is more cost-effective to help the mother extract assistance from the father than to provide taxpayer-funded financial assistance. Aggressive programs for tracking down “dead-beat dads” become a substitute for providing direct payments through the welfare system as conventionally understood.
A radical individualist might argue that the state should allow this couple to sink or swim on its own. If the man abandons her, tough luck for her and her child. If she kicks the man out, for good reason or no reason, tough luck for him. The social order simply cannot afford to indulge people who can't get along with their closest and most intimate family members. If the state would get out of the family business or charge people the full cost for the use of its services, fewer people would get into these contentious situations. People would be more careful in forming their intimate childbearing unions.
But our current ideological environment makes this position impossible, however much it might appeal to the radical individualist. The political pressures for the state to intervene on behalf of the unmarried mother are simply overwhelming. The welfare state is so entrenched that singling out unmarried mothers at this late date is not plausible. Given that reality, it is not realistic to expect the state to cease and desist from all the activities of the family court, no matter how intrusive or highly subsidized they may be.
Nor does the sense of financial entitlement exhaust the entitlement mentality. Unlimited sexual activity is now considered an entitlement. Marriage is no longer the only socially acceptable outlet for sexual activity or for the rearing of children. It is now considered an unacceptable infringement on the modern person's liberty to insist that the necessary context of sexual activity is marriage with rights and responsibilities, both implicit and explicit. It is equally unacceptable to argue that having children outside of marriage is irresponsible. Women are entitled to have as many children as they choose in any context they choose. In this sense, children have become a kind of consumer good. Choosing to have a child is a necessary and sufficient condition for being entitled to have one. Given this social and cultural environment, it is completely unrealistic to think that we can muster the political will to deprive unmarried parents of the use of the courts to prosecute their claims against one another.
Contrast this scenario with intact married couples. Not deliriously happy married couples with stars in their eyes at all times. Just ordinary, everyday, run-of-the mill married couples.
No one from the state forces them to pool their incomes, if they both work. If they have the traditional gender-based division of household labor, no one forces the husband to hand over his paycheck to his wife to run the household. No one makes the wife allow him to take the kids out for the afternoon. No one has to come and supervise their negotiations over how to discipline the children. When he's too tough, she might chew him out privately or kick him under the table. When she lets them off the hook too easily, he might have some private signal for her to leave so he can do what needs to be done.
The typical married couple has regular disagreements over money, child-rearing, the allocation of household chores, how to spend leisure time, and a hundred other things. Every once in a while, even a stable married couple will have a knock-down, drag-out, (usually) private quarrel. But they resolve their disagreements, large and small, perhaps a dozen a day, completely on their own with neither supervision nor subsidy from any court.
A skeptic might respond to my example of the dysfunctional noncouple by saying that their actions arise naturally from the society. Their spontaneous actions are entitled to the same libertarian endorsement as those of a married couple.
A sophisticated analogy with the market must go beyond a ritual incantation of “leave us alone.” Adam Smith recognized in the tenth chapter of The Wealth of Nations that “people of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.” Smith understood that the “natural” tendency to cheat the public must be checked by legal and social norms. The law must prohibit some economic behavior. Equally important, the culture as a whole must socialize people into accepting self-imposed limits on their self-interested behavior. The need for laws and socialization did not lead Adam Smith to conclude that the market is a mere social construct that can be carelessly discarded.
Likewise, the observation that men and women alike sometimes fail to live up to the ideal of lifelong married love does not prove that marriage is unnatural. We must ask ourselves the question about the family that Adam Smith taught us to ask about business: How can we direct natural human motivations into socially constructive channels? The answer is to create a cultural and legal order that supports and sustains lifelong married love as the normative institution in which to beget, bear, and rear children. Random sexual encounters, dissolved at will, are not socially responsible when children are involved.
When Adam Smith's modern follower Friedrich Hayek championed the concept of spontaneous order, he helped people see that explicitly planned orders do not exhaust the types of social orders that emerge from purposeful human behavior. The opposite of a centrally planned economy is not completely unplanned chaos, but rather a spontaneous order that emerges from thousands of private plans interacting with each according to a set of reasonably transparent legal rules and social norms.
Likewise, the opposite of government controlling every detail of every single family's life is not a world in which everyone acts according to emotional impulses. The opposite is an order made up of thousands of people controlling themselves for the greater good of the little society of their family and the wider society at large.
Whether a couple loses the ability to negotiate, or whether they never had it in the first place, the dissolution of their union has significant spillover effects. The instability in their relationship is likely to be detrimental to their children. The children of unmarried or divorced parents are more likely than other children to have emotional, behavioral, and health problems. As these children become old enough to go to school, they absorb more educational resources than other children because the school has to deal with lowered school achievement, poor school attendance, and discipline problems. As these children mature, they are more likely to get into trouble with the law, commit crimes, abuse drugs, and end up in jail.
These costs are more than purely private costs to the mother and father. The costs of health care, schooling, and mental health care are not entirely private in this society, no matter how much libertarians might wish they were. In modern America, a child who cannot behave in school is a cost to the local school district as well as to all the other children in the classroom. A seriously depressed person or a drug-addicted person is likely to make demands on the public health sector. If the child ends up in the criminal justice system, as the children of unmarried parents are significantly more likely to do, he or she will be a significant cost to the state.
The demand that the government be neutral among family forms is unreasonable. The reality is that married-couple families and childless people are providing subsidies to those parents who dissolve their marriages or who never form marriages. Libertarians recognize that a free market needs a culture of law-abidingness, promise-keeping, and respect for contracts. Similarly, a free society needs a culture that supports and sustains marriage as the normative institution for the begetting, bearing, and rearing of children. A culture full of people who violate their contracts at every possible opportunity cannot be held together by legal institutions, as the experience of post-communist Russia plainly shows. Likewise, a society full of people who treat sex as a purely recreational activity, a child as a consumer good, and marriage as a glorified roommate relationship will not be able to resist the pressures for a vast social-assistance state. The state will irresistibly be drawn into parental quarrels and into providing a variety of services for the well-being of the children.
The alternative to my view that marriage is a naturally occurring pre-political institution is that marriage is strictly a creation of the state. The Supreme Court of Massachusetts notoriously asserted this position. If this is true, then the state can recreate marriage in any form it chooses. Implicit in this view is the decidedly non-libertarian view that the state is the ultimate source of social order.
Listen to this self-described progressive bring the implicit connection between the expansive state and the deconstruction of marriage out of the shadows. Writing in the Nation in March 2004, New York University Queer Studies professor Lisa Duggan addressed the marriage promotion portion of welfare reform:
“Women and children...(according to the welfare reform model) should depend on men for basic economic support, while women care for dependents — children, elderly parents, disabled family members, etc. Under such a model, married-couple households might 'relieve' the state of the expense of helping to support single-parent households, and of the cost of a wide range of social services, from childcare and disability services to home nursing. Marriage thus becomes a privatization scheme: Individual married-couple households give women and children access to higher men's wages, and also 'privately' provide many services once offered through social welfare agencies. More specifically, the unpaid labor of married women fills the gap created by government service cuts.”
This statement brings the statist worldview front and center. Under this vision, the most basic relationships are not between husband and wife, parent and child, but between citizens and state. The family is not the natural unit of society. The most basic unit of society is not even the libertarian individual, embedded within a complex web of family, business and social relationships. Rather, the natural unit of society is the naked individual, the isolated individual, standing alone before the state, beholden to the state, dependent upon the state.
The libertarian approach to caring for the dependent is usually described in terse form as “let families and private charity take care of it, and get the government out of the way.” This position is sometimes ridiculed as unrealistic or attacked as harsh. But the libertarian position, once fully fleshed out, is both humane and realistic.
The libertarian preference for nongovernmental provision of care for dependents is based upon the realization that people take better care of those they know and love than of complete strangers. It is no secret that people take better care of their own stuff than of other people's. Economists conclude that private property will produce better results than collectivization schemes. But a libertarian preference for stable married-couple families is built upon more than a simple analogy with private property. The ordinary rhythm of the family creates a cycle of dependence and independence that any sensible social order ought to harness rather than resist.
We are all born as helpless infants, in need of constant care. But we are not born alone. If we are lucky enough to be born into a family that includes an adult married couple, they sustain us through our years of dependence. They do not get paid for the work they do: They do it because they love us. Their love for us keeps them motivated to carry on even when we are undeserving, ungrateful, snot-nosed brats. Their love for each other keeps them working together as a team with whatever division of labor works for them.
As we become old enough to be independent, we become attracted to other people. Our bodies practically scream at us to reproduce and do for our children what our parents did for us. In the meantime, our parents are growing older. When we are at the peak of our strength, stamina, and earning power, we make provision to help those who helped us in our youth.
But for this minimal government approach to work, there has to be a family in the first place. The family must sustain itself over the course of the life cycle of its members. If too many members spin off into complete isolation, if too many members are unwilling to cooperate with others, the family will not be able to support itself. A woman trying to raise children without their father is unlikely to contribute much to the care of her parents. In fact, unmarried parents are more likely to need help from their parents than to provide it.
In contrast to the libertarian approach, “progressives” view government provision of social services as the first resort, not the last. Describing marriage as a “privatization scheme” implies that the most desirable way to care for the dependent is for the state to provide care. An appreciation of voluntary cooperation between men and women, young and old, weak and strong, so natural to libertarians and economists, is completely absent from this statist worldview.
This is why it is no accident that the advocates of sexual laissez-faire are the most vociferous opponents of economic laissez-faire. Advocates of gay marriage are fond of pointing out that civil marriage confers more than 1,049 automatic federal and additional state protections, benefits and responsibilities, according to the federal government's General Accounting Office. If these governmentally bestowed benefits and responsibilities are indeed the core of marriage, then this package should be equally available to all citizens. It follows that these benefits of marriage should be available to any grouping of individuals, of any size or combination of genders, of any degree of permanence.
But why should libertarians, of all people, accept the opening premise at face value? Marriage is the socially preferred institution for sexual activity and childrearing in every known human society. The modern claim that there need not be and should not be any social or legal preference among sexual or childrearing contexts is, by definition, the abolition of marriage as an institution. This will be a disaster for the cause of limited government. Disputes that could be settled by custom will have to be settled in court. Support that could be provided by a stable family must be provided by taxpayers. Standards of good conduct that could be enforced informally must be enforced by law.
Libertarians do not believe that what the government chooses to bestow or withhold is the essence of any social institution. When we hear students from Third World countries naively ask, “If the government doesn't create jobs, how we will ever have any jobs?” we know how to respond. Just because the government employs people and gives away tax money does not mean it “created” those jobs. Likewise, the fact that the government gives away bundles of goodies to married couples does not prove that the government created marriage.
The advocates of the deconstruction of marriage into a series of temporary couplings with unspecified numbers and genders of people have used the language of choice and individual rights to advance their cause. This rhetoric has a powerful hold over the American mind. It is doubtful that the deconstruction of the family could have proceeded as far as it has without the use of this language of personal freedom.
But this rhetoric is deceptive. It is simply not possible to have a minimum government in a society with no social or legal norms about family structure, sexual behavior, and childrearing. The state will have to provide support for people with loose or nonexistent ties to their families. The state will have to sanction truly destructive behavior, as always. But destructive behavior will be more common because the culture of impartiality destroys the informal system of enforcing social norms.
It is high time libertarians object when their rhetoric is hijacked by the advocates of big government. Fairness and freedom do not demand sexual and parental license. Minimum-government libertarianism needs a robust set of social institutions. If marriage isn't a necessary social institution, then nothing is. And if there are no necessary social institutions, then the individual truly will be left to face the state alone.
Jennifer Roback Morse is a research fellow at the Hoover Institution, and the author of Smart Sex: Finding Life-Long Love in a Hook-up World, and Love and Economics: Why the Laissez-Faire Family Doesn't Work, both from Spence Publishing. This article first appeared in Policy Review, April 2005. Email polrev@hoover.stanford.edu.
| EJF Home | Find Help | Join the EJF | Comments? | Get EJF newsletter |
| Families And Marriage Book | Abstract | Family site map | Family index |
| Chapter 1 — Marriage, The Bedrock Of Civilization |
| Next — Marriage Movement At The Crossroads by Carey Roberts |