Libertarianism, Liberalism

Polygamy is NOT the New Monogamy

[The following is a guest post by Lauren K. Hall, Assistant Professor of Political Science at Rochester Institute of Technology.]

Christopher Freiman thinks it might be time to legalize polygamy now that same-sex marriage is a legally protected right nation-wide. I’m not so sure.

Freiman’s main contention is that “all of the standard objections to polygamous marriage can apply to heterosexual monogamous marriage as well.” This is true in a sense, but only if your objections are so broad as to be almost meaningless.

In reality, heterosexual or homosexual marriage is facultatively different from polygamy. The most obvious difference is that heterosexual marriage (to focus on his example) is a form of monogamy. Apart from the practical concerns of having to reformat the entire tax code, benefits structure, and the problems plural divorce and child custody would create for family courts, there are other more foundational reasons to be suspicious of extending marriage rights to polygamous families.

Polygamy is just different from monogamy. (When I use the term “polygamy” I really mean polygyny, or a man having multiple wives, since polyandry has been rare in the human experience.) So what does men having multiple wives do?   A few important things. The most dangerous is that it skews sex-ratios of available mates. Polygamy creates a dearth of fertile women and a surplus of unmarried men, since powerful men pull fertile women out of the marriage pool. The sex-ratio problem is particularly problematic in insular or closed societies where a dearth of women creates downward pressure on the age of marriageable women, encouraging child-marriage. The surplus of unmarried men is dangerous since such men must resort to ever more competitive and aggressive behaviors to secure mates, including in some cases, rape and abduction. Additionally, polygamy fractures paternal investment in offspring and leads to increased investment in sons at the expense of daughters.

Because marriageable females become scarce, polygamy concentrates reproductive power in the hands of powerful or wealthy men who can afford to buy or coerce women into relationships and control unmarried males. The scarcity of women may also lead to an increase in sex-trafficking as women are brought in from other communities to meet demand. The economic language is intentional here, since polygamy tends to support the treatment of women as commodities, to be bought, sold, and controlled by male relatives.

The reality is that polygamy, unlike monogamy of any stripe, is associated with externalities that are difficult for liberal societies to cope with. While it is difficult to untangle the various causal mechanisms at play, polygamy is associated with everything from increased maternal and infant mortality to increased incidences of child-marriage to decreased political power and educational levels for women. These patterns are seen not only in polygamous societies in developing countries, but also in polygamous communities in the U.S. and, interestingly, in polygamous primate species. Across the board, polygamy is associated with lowered health, education, and status outcomes for women. Monogamy, conversely, has no consistently negative social externalities of this kind.

There are, of course, alternatives to outright bans on polygamous unions. Availability of education for women and the existence of a strong middle class tend to be negatively correlated with polygamy. Unfortunately for the libertarian argument, however, the research on polygamy demonstrates that, while education of women and liberal attitudes probably help prevent the spread of polygamy, the most effective tool is banning it, either through the passive failure to recognize such marriages or through the more active pursuit of polygamous families in criminal trials. I don’t condone the latter, partly because it seems unnecessarily punitive and may drive such behavior underground, exacerbating abuses. But just because the active governmental role has issues does not mean the passive refusal to recognize such marriages is similarly problematic. In fact, it seems bizarre from a libertarian perspective to make the argument that once we allow some forms of government sanctioning of marriage that we must allow government to sanction all marriages, however deleterious their effects.

There’s another discussion to be had about serial monogamy and the effects of de facto polygamy on children, but leaving that aside, at the very least we should resist the idea that every family form is just as good as any other. We should also resist the contention that equal rights claims demand that we recognize any and all marriage forms just because. Monogamy is one of the bourgeois virtues that make liberal societies possible and because liberal societies require certain types of people, there are some decisions that individuals make that we do not have to either recognize or condone. If we care about voluntary cooperation and protection of individual rights, family forms that destroy both of those goods should be scrutinized and judged. Libertarianism does not entail relativism.

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  • Slim

    You really think a couple powerful, wealthy men are going to snatch up so many women in marriage that it creates a nation-wide problem? This is fanciful thinking in our day and age. Polygamy is rare, and if legalized would still be rare.

    • Sean II

      I wonder why they – Lauren in this thread, a bunch of people in the last one – immediately went to “wealthy men would cartelize women”. Why suppose it would all come down to wealth? Why not consider the full basket of advantages in sexual competition?

      Sure, wealth has been a dominant factor in observed polygamist societies, but only because those cases happen to come from subsistence-economy hellholes. No big surprise there. In a world where everybody’s scratching for yams, who wouldn’t throw a wink at Onkonkwo? Although even in such societies, parents seem to need a lot of coercion to stop their daughters from marrying for reasons other than money.

      So really, why would anyone assume that a pattern which only just barely prevails amidst third world poverty and superstition, is predictive of what polygamy would look like here, in 2015, when we’ve got Tinder and all the yams we can handle?

      The anti-polgymay people could have stayed closer to a true argument if they’d simply said “Some people are more attractive than others, for any number of reasons – wealth, fame, game, looks, charm, intellect, sense of humor, kindness of heart, etc. We can’t just let those people win, and keep winning, in the grand competition for mates.”

      But of course that is what they’re saying, and it is absurd. It leaves them in the awkward position of defending monogamy on the grounds that it obliges lots of people to settle for inferior goods in the marketplace of love, and thereby leaves fewer revolting creeps in the reminder bin of loneliness.

      Rousing call to action, that.

      • Lauren Hall

        There’s actually much more robust argument for monogamy than just forcing people to settle for “inferior” goods, but even if that was the only argument, we’re not talking about criminalizing serial polygamy or divorce or any other way in which we already diverge from strict monogamy. My modest proposal is that we not jump straight to legally recognizing polygamous marriages without thinking through the possible consequences. We can disagree on whether those consequences are sufficient enough to all government to discriminate, but the simplistic call for more government involvement in marriage because we’re already involved in marriage seems problematic. Particularly when such a call fails to recognize potential consequences.

        • Sean II

          Okay, but as you said elsewhere: what all this polygamy talk is really doing is pushing us to reckon with a general solution: get the state out of marriage.

          In which case the argument for piecemeal reform becomes moot.

          • Bongstar420

            God forbid marriage not be a state recognized distinction. Then religious people would feel less powerful. After all, if law= morality, then what they think is right and wrong should be law.

        • Bongstar420

          Maybe we should dissolve marriage rights and make it a symbolic distinction.

          For instance, why can’t you make a contract allowing friends to visit in the hospital or give them custodial rights over some aspect of your life in such circumstances?

          At this point, the term marriage is only there to validate the dominate christian culture. Its the only reason gays are an issue

      • Bongstar420

        Most women cannot see their man as “superior” unless he has something more than other men….and what good is genius without immense wealth?

    • Lauren Hall

      The sex-ratio imbalance is less about the nation-wide effects, since you’re right that polygamy would likely be limited to particular communities. But those communities are likely to be insular and isolated, and the problems of sex-ratio imbalances are exacerbated under those conditions.

      • Libertymike

        Given the contemporary zeitgeist, upon what basis would you contend that the enclaves of polygamy would remain insular and isolated?

        • Lauren Hall

          Because polygamy is usually associated with particular traditionalist religious groups who often eschew modern and liberal values. You may be right, of course, that such communities would eventually open up given the current climate, though modernization does not create much less demand for polygamy in countries where it is legal. I’ll admit though that there are many other variables at play.

          • Bongstar420

            As a liberal, I want 3 kinky wives. And since I am top 5% in many metrics, I deserve it….but instead, I get poverty imposed on me by the current ownership class who does not approve of my ideas. God forbid that the owners who profit only be the elite intellectuals in our population (not currently most rich people).

      • Bongstar420

        There is no way rich old dudes could keep their wives properly sexed.

        They have to keep them in a prison situation the same way dictators keep their wives locked up in harems.

    • Bongstar420

      A billionaire could easily pull 10 wives. Just look at your average dictator. They have that or the equivalent (mistresses). Its not the power of the state that gets dictators their pune. Its the amount of wealth they command.

  • Mabuse

    I think that you assume too much from the historical evidence, for instance the assumption that polygyny is the only family form that we are talking about here. The fact of the matter is that modern liberal societies are fundamentally different from the types of societies that produced the pathologies that you fear, for reasons that go far beyond simply banning polyamory (because that’s what we’re really talking about, there are a whole range of family forms banned currently, assuming that polygyny is the be all and end all of this debate is foolish). The animating idea of the marriage equality movement was that marriage was primarily about the public recognition of love, so if you accept that one can form equally strong romantic bonds with more than one person at the same time then you need to argue, from a moral standpoint, why those bonds don’t deserve public recognition, and in fact should be publicly suppressed.

    • Lauren Hall

      I don’t disagree that polyamory presents far fewer problems than traditional polygamy. I suppose I’m mainly questioning why we need government recognition of clearly problematic forms. Additionally, since publicly recognizing polygamous marriages would require an entire overhaul of the tax code, family courts, and other institutions, it seems like the more consistent libertarian argument would be to use that energy to simply get rid of government recognition of marriage altogether.

      • Libertymike

        The only libertarian argument is to insist that the following words penned by Margaret Marshall no longer reflect the state of the law:
        “In a real sense, there are three partners to every civil marriage: two willing spouses and an approving State.”
        Goodrich v. Dept. of Public Health, 440 Mass 309, 321 (2003).

        • TracyW

          The state gets involved when a relationship ends (as all relationships eventually end, by divorce or by death), and there’s a dispute over the distribution of property that the interested parties can’t solve. (The state’s actions in disputed cases also affects the negotiations in cases where the interested parties can come to an agreement themselves).
          The state gets involved in marriage for the same reason as the state gets involved in wills, or in bankruptcy proceedings, or in civil cases over contract enforcement. This is a fundamental role of the state.

          • Bongstar420

            How about marriage not include property?

            Lets see how many women want that.

      • Bongstar420

        Married people shouldn’t get tax breaks. Children should be provided with means outside of parent capacity. Its wrong to limit children to the proclivities of the parents. Why do poor children deserve the upbringing their poor parents force on them?

    • TracyW

      But having equally strong romantic bonds with more than one person at the same time isn’t the same as marriage. Marriage, in the West, is about an exclusive commitment to another person.

      The whole legal structure is set up around that exclusivity. The government doesn’t expect evidence of strong romantic bonds to conclude someone’s married (with the exception of immigration cases), you could have not seen your spouse for five years, been living with a different man, and hate your spouse’s guts, and still legally be married.

      As for recognising numerous equal romantic bonds, polygamists are free to buy houses together, write wills leaving each other as beneficiaries, set up trust funds, etc. The Catholic Church has been running nunneries where everyone is married to God for centuries. The legal system doesn’t deny recognition to these commitments, it just doesn’t translate them to marriage because marriage, in the West, is about an exclusive commitment.

      • Lauren Hall

        That’s a good point, TracyW. I think refusing government benefits for polygamists is quite different from criminalizing the act. And, as you say, we’ve recognized without legally recognizing all kinds of relationships.

        • TracyW

          I don’t see what the term “legally recognizes” means here. I’m pretty sure that being a nun and telling everyone that you’re God’s bride, is generally legal.

          • Bongstar420

            I’m married to a ghost.

            Totally legitimate claim> I am totally sane

      • Mabuse

        Not for nothing, but we do already have legal models for property sharing and allocation that we could apply to polyamorous marriages, partnership law for one, and the Dutch have a form of civil relationship contract that works just as well for relationships of three or more people as it does for two. I’m simply saying that, from a moral standpoint, why do people with polyamorous desires deserve less recognition from society that said desires and the lifestyles that develop from them are legitimate than homosexual people? Because that’s what the same-sex marriage debate was about, same-sex couples already had civil partnerships and various other arrangements that were legally equivalent to straight marriages, but the fact that they couldn’t use the same form of arrangement as straight couples marked them out as different, and that’s what they were upset about. Why should polyamorous people feel any less of a grievance in that respect?

        • stevenjohnson2

          Because a monogamous marriage is a survivorship while a polygamous marriage is a tontine…and it is folly to advocate enforcement of the latter.

          • Mabuse

            Are you suggesting that people in polyamorous relationships will try to kill each other? How removed from reality do you have to be to think that is a real risk.

          • stevenjohnson2

            Briefly, no.

            People in a tontine don’t have to try to kill each other, either. How far from reality do you have to be to think that is what always happened? Even worse, how far from reality do you have to be to think that husbands and wives never try to kill each other for the property? The point is that the relationships must differ. In a polygamous marriage, there is an inevitable asymmetry of costs and benefits and there is no simple way to compromise.

          • Bongstar420

            Simple. No money/wealth allocations in contract breaking.

          • Bongstar420

            Why should a spouse be entitled to assets they did not earn?

            If a wife is hired to clean dishes, then the husband should pay a salary rather than leave it to the court to determine value in retrospect. The same goes for the inverse.

            At least, I want them to be honest and admit they wouldn’t get married if no money was involved.

        • TracyW

          I’m simply saying that, from a moral standpoint, why do people with polyamorous desires deserve less recognition from society that said desires and the lifestyles that develop from them are legitimate than homosexual people?

          When you talk about “recognition from society” of desires and lifestyles as being “legitimate” what does that mean to you? Is it not being prosecuted for living together with several people with whom you’re playing hide-the-sausage? Is it being able to sign up to one single legal package of wills and power-of-attorney and property-rights-when-you-break-up rather than spending an age and a fortune with lawyers working out each bit separately? Is it having the right to have as many of your romantic partners immigrate to your country as you want? Is it the right to have spousal immunity from being forced to testify spread over as many romantic partners as you want? Is it not having anyone saying that they favour exclusivity in marriage, or saying “it’s wrong to cheat on people”?

          the Dutch have a form of civil relationship contract that works just as well for relationships of three or more people as it does for two

          Can you provide some support for this statement? I’ve just done a brief Google and the only thing I could find was news about three people entering into such a contract in 2005. One test case that has at the most only lasted ten years is insufficient to support your claim.

          …same-sex couples…couldn’t use the same form of arrangement as straight couples marked them out as different, and that’s what they were upset about. Why should polyamorous people feel any less of a grievance in that respect?

          That being in a polyamarous relationship means not being in an exclusive relationship, so of course it’s going to be different, and it makes people pointlessly unhappy to feel aggrieved about what can’t be changed? I mean, polygamous relationships may be better overall than monogamous relationships, they may be worse, they may be better for some people and worse for others, but I don’t see how a relationship involving three people can be the same as a relationship involving two.

          Are you implying that people should be banned from entering into exclusive monogamous relationships?

          • Bongstar420

            Its having the same rights and opportunities…not being a subclass which is discriminated against

        • Bongstar420

          Because christianity does not approve

      • Bongstar420

        Which is why marriage is very unappealing.

        Exclusive commitment to an unrealistic standard. Given no resistance to any alternative, what men freely choose 1 vagina for their entire life? I don’t mean the feeling, I mean actually doing it. The same is true for women. Most people are not only sexually attracted to a single person for life.

    • Bongstar420

      Most marriage is not fundamentally about love.
      Unless love is about having the partner with status you want.

  • There has to be a way to object to polygamy without having to appeal to alpha-male-vs.-beta-male just-so stories.

    • Sean II

      Shhh, man. You’re blowin’ the whole deal. You’re not supposed to admit these objections are being reverse engineered to suit a conclusion.

      The game here is: let’s pretend we have some other reason for disliking polygamy, apart from “Ew! So gross.”

      I mean, yeah, that’s clearly all it is. Consider:

      1) The people who now fret about “destabilizing society”, never seem to use those words in any other context. What whiplash they must have from becoming conservatives so abruptly. I mean, hey…divorce de-stabilizes society a helluva lot more than sister wives, because divorce is widespread while plural marriage almost certainly would not be. If we can use coercion to stop people from entering plural marriages in the name of social stability, why can we not use it to stop them exiting traditional marriages. The former is a mere speculative threat to civic life, the latter a proven wrecker of communities. (Of course I’m for using coercion in neither case, but this kind of diabolic advocacy is what it takes to flush the hypocrites from their motivated reasoning bunkers.)

      2) The people who now fret about rich men grabbing up all the ankle would, in any other context, rightly call someone a chauvinist for suggesting that women are so mercenary as to marry for money, forsaking all other considerations, on a scale large enough to transform society by leaving behind a reserve army of permanent bachelors. I don’t think Donald Trump could say anything more clumsily offensive about women if you got him drunk and put him on television…in Russia.

      So bullshit aside, this is an mistakable case of “Ew, gross. Quick, let’s find some sophisticated-sounding rationale for our disgust.”

      The problem, as everyone knows, is that “Ew gross [insert convoluted rationalization here]” is exactly what drove opposition to gay marriage, for thousands of years.

      Now didn’t we just have done with that. Must we go through it again?

      • Yeah. #2 especially.

      • Lauren Hall

        I was hoping my argument was less about “ew gross” than that there are externalities associated with polygamy that are not associated with same-sex marriages. Part of the reason SCOTUS decided as it did was that the opponents of gay marriage couldn’t find a single decent study to support any negative effects of allowing same-sex marriages. The same is not true of polygamy. Notice, I’m not arguing we outlaw it or pursue polygamists with criminal sanctions. I’m simply arguing that we can make distinctions between different kinds of marriages since we’ve already involved government. The common sense position would be to not recognize polygamy at all and, perhaps, eventually move to get government out of any and all intimate relationships between individuals.

        • Sean II

          I understand your claim about externalities, but actually that’s your weakest link. Let me explain:

          Say that you, me, Ryan, and Ryan’s wife are the only people left on earth. Say that instead of marrying me, you wish to become the second wife of Ryan. He’s got the guitar thing going, and that sure as hell trumps my wit in this desolate four person world.

          Now our little society has two choices:

          1) Allow this union, on the grounds that preventing it would deprive you of a most intimate personal choice.

          2) Prevent this union, on the grounds that it would be a negative externality for me, if the rules don’t pressure you into a sad marriage of convenience.

          Lauren, seriously, how can you claim that 2) is a negative externality while 1) is perfectly kosher?

        • Bongstar420

          Polygamy is going to be unhealthy in traditional contexts as are many traditional circumstances.

      • Bongstar420

        Whats gross about it? Sounds fun to me.

        I am only concerned about the rich to the extent that they hoard wealth and power at the expense of their peers and society. Us poors could still pull women in harems for on the fly bang sessions. We just couldn’t lock them down because they are expensive whores.

    • Lauren Hall

      They’re not just-so stories though. There is ample evidence that sex-ratio imbalances create real problems for both men and women. The book Bare Branches talks about some of these issues from a national security perspective, but there are many more. And the experience of the Lost Boys of Fundamentalist Mormonism is another real example from U.S. soil.

      • Sean II

        Nope, the parsimonious explanation of the Lost Boys is that it’s an argument against religious fundamentalism. Possibly also an argument against living in Utah.

        If polygamy were to exist apart from Jesus Magic, there’s no reason it couldn’t be sane.

        • Lauren Hall

          I’m not sure I follow. The whole reason the Lost Boys were exiled was because they had the potential to challenge the authority (and wives) of the dominant males. If there had been enough women to go around you wouldn’t have had to push large numbers of adolescent males out of the community.

          • Sean II

            No, the essential feature of Mormon cult society is not a shortage of women. That’s an incidental byproduct of the society’s other features.

            The essential feature is hierarchy and insularity, leading to a very creepy kind of homegrown human-trafficking. 15 year old girls do NOT choose to marry 65 year old men. Anywhere you see that happening you can be sure coercion is heavily involved.

            If the women in those communities had a choice – like women not born and kept in insular cults – they would choose to marry some of those Lost Boys, indeed they would certainly prefer it, and the boys would thus not be lost.

            Your argument here partakes of the same fallacy as this: “The free market clearly doesn’t respond to shortages, or else it would have brought food to the Ukraine in 1929.”

            See what I mean? Your using an example of polygamy that comes to us from an oppressive cult, and then claiming that polygamy itself must be oppressive. Dirty pool.

          • Kurt H

            It’s so weird to agree with Sean in a social issue debate . . . but, this is dead on target. The problem with traditional polygamous marriages is the traditional part (the part where women are property), not the quantity of sexual partners.

          • Sean II

            “It’s so weird to agree with Sean in a social issue debate.”

            Yeah, I’m a pro-choice, gay-friendly, anti-drug war thick libertarian atheist who believes our struggle to end state oppression will be for naught if people simply end up being oppressed by families, churches, schools, unions, and corporations…and I’m someone who favors legal equality for people of all races, religions, sexes, and gender expressions, stopping short only of open borders, and then only because I believe such a policy threatens all those other values.

            Clearly, I’m a monster.

          • Bongstar420

            You can’t end the effects of state oppression without ending oppression by the rich. The states oppression is an extension of the ownership’s oppression of the non-owners. Without the state, the rich will have even more discretion to oppress. The state has actually reduced oppression of the poor a lot as of recent and is mostly why there is anti-state sentiment among the rich.

          • Bongstar420

            Well, some girls still dig old dudes.

            Lets make sure they can’t get rich and see what happens after that.

            Will they like old dudes with nothing more than young dudes?

          • Bongstar420

            Dominant males typically do not deserve their positions. They are usually net extractors pulling the fleece over everyone they extract from. It isn’t like they dominate others for the benefit of the others. They do it for their benefit and others only benefit as an extension to that. In other words, society is a reflection of the dominant males and we serve their concepts…not the other way around, then they wouldn’t be dominant.

      • For the moment, let’s assume that sex ratio imbalances create real problems for men and women.

        Polygamy is an aberrant practice that appeals only to a small minority of the population. Can you provide an explanation for how allowing polygamy would meaningfully alter the sex ratio without relying on a caricature of what men and women want in their permanent relationships?

        • Bongstar420

          Most people shouldn’t be breeding anyways. I wish my dumb and poor parents didn’t breed and spawn my suffering. Life is not worth living turning a profit for the rich or being subjugated by others because they have stuff I wasn’t born with access to.

      • Bongstar420

        So women should be forced to marry poors because then the poor men wont show up to work in order to make the rich richer?

    • Bongstar420

      I don’t qualify as alpha. totally pro poly too

      Alpha just means rich dude or liar fake dom who acts like a dude women think should be rich

  • Ben Kennedy

    Of course all the SSM arguments apply… when some person can’t visit their dying second wife in the hospital, social media will erupt and people will change their facebook profiles to plaid, or some suitably colorful rainbow tartan. At the end of the day, you can’t counteract emotion-based issues with fact-based rational analysis of eternalities, as you just sound like a mean-spirited jerk. Not you personally, but anybody who finds themselves on the wrong side of the issue.

    • Bongstar420

      They will use the hospital visit to get the courts to award assets in divorce. Its why we talk about “love” in marriage but it very frequently ends up with a partner being awarded assets in divorce instead.

  • Michael J. Green

    We should also resist the contention that equal rights claims demand that we recognize any and all marriage forms just because.

    Well, “we” are libertarians, right? “Just because” is sufficient. I’ll accept that when someone wants to buy a gun, smoke a plant, BASE jump off a cliff, decorate their yard with crazy ornaments, etc. The onus is not on a polygamist family to justify their relationship, the onus is on you to explain why their arrangement should be forbidden. And this is not at all convincing, mostly in the same ways that gun control arguments are not convincing (other people misuse guns, so YOU can’t have one either!).

    The “passive refusal” sounds more acceptable at first, until you apply it to gay marriage and find a lot of the same problems.

    • It’s not the “we” that seems to be the problem, it’s the “recognize.” Some libertarians can’t seem to allow themselves to object to something on moral grounds while it is legal (or, in some cases, while they want it to be legal).

      But it’s easy, and it feels great. See, watch: I am morally opposed to hurting someone’s feelings, even though doing so is perfectly legal in most cases.

      I think there’s plenty of room for some people to voice their moral objections to someone else’s lifestyle. In a way, that’s part of a robust ethical debate that helps define and establish a community’s social mores. Great. In fact, it’s a much better way to discuss the matter than “shaming” people who disagree with your own moral sentiment, or running the polygamists out of town, or whatever other alternative might be out there. So let’s have the moral debate, and let’s even debate it using the framework of libertarianism.

      But let’s not conflate that with a libertarian legal treatment of polygamy.

      Morality and legality aren’t the same thing. I am morally opposed to things that make me “uncool” by libertarian standards (for example, i am extremely morally opposed to recreational drug use). Morally opposed.

      But regarding the role of the state, I’m for more liberty, even when that means allowing other people who aren’t me to make choices to which I am morally opposed.

      This is kind of important for some BHL topics because certain aspects of “social justice” will have to suffer if liberty is to be preserved. My argument for that is moral: possessing liberty is an important part of the general welfare. (a) Sometimes social justice runs afoul of liberty, and sometimes it doesn’t. (b) Sometimes liberty runs afoul of morality, and sometimes it doesn’t. How one reaches conclusions in light of those occasional trade-offs is what determines to what extent one is a “libertarian.”

      • Sean II

        “I am extremely morally opposed to recreational drug use.”

        Man, you’re really missing out there. One the best reasons to have multiple wives is that it improves your odds of a successful percocet seek.

        • Lauren Hall

          Having multiple wives might actually increase the need for that percocet.

          • Sean II

            Pow!

          • Libertymike

            Lauren played you like Winston did Lady Astor!

    • Lauren Hall

      But again, my argument is that this is not the same situation as gay marriage. The externalities are different and the government intervention required (totally overhauling the tax code, etc.) would be much more dramatic. The two are not functionally equivalent, which is why I don’t think we’ll see a groundswell to legalize polygamous marriage.

    • TracyW

      But no one is talking here about forbidding polygamous relationships. Already, if I recall my religious theology right, nuns regard themselves as all married to God, but the Catholic Church seems to have things set up so nuns can legally live together and share property and so forth.

      Now there are a bunch of rights in law about marriage that go beyond such property issues. But if such rights are extended to polygamous relationships they’d obviously cause significant policy problems: eg the right to not be forced to testify against your spouse would be a lot more dangerous if every member of a criminal gang could “marry” each other. (Not a problem for Catholic nuns as serving Jesus with a court summons keeps running into technical difficulties.) So applying the legal term “marriage” to polygamous relationships would require changing the definition of marriage in a way that adding same-sex couples didn’t.

    • Bongstar420

      Smoking a plant is really simplifying the issue.

      So prison for 3,4 Methylenedioxymethamphetamine is totally legit then? Of course, jail for synthetic drugs is different than for plants.

  • Chris Freiman

    Thanks, Lauren, for the thoughtful reply. A few quick comments. I’m wary of drawing general lessons from current polygamous practice. For one, I’m inclined to doubt that the practice would become widespread if given legal recognition (indeed, it seems like the harms you mention would serve as a powerful disincentive to enter these marriages). In any case, even if these marriages became more common, it’s not clear that we should expect them to look much like current polygamous marriages which typically take place within a particular cultural and moral context. Why not think that we would see more egalitarian and less hierarchical plural marriages if they were undertaken by more egalitarian and liberal practitioners?

    Moreover, even if (legalized) polygamy stays confined to small communities, there are benefits to legal recognition–namely granting legal protections to spouses who currently have none. As we know from other black markets, a lot of the harms to participants are the result of criminalization itself. Lastly, I’m not a relativist–I’m certainly open to the possibility that polygamous marriages tend to be worse for those involved. But as noted in my examples of the Smith family and Society for Traditional Gender Hierarchies, showing that a given kind of marriage is worse than the alternatives isn’t sufficient justification for depriving it of legal recognition. (Also, I am in favor of getting the state out of the marriage business entirely but that’s probably a discussion best saved for a different occasion.)

    • TracyW

      But if someone wants to enter into a legal relationship with multiple people to whom they are romantically attached, they have options now. They can set up a company together, or a non-profit trust, they can sign contracts saying that A will quit work to look after the kids and if any of A, B, C or D want out then A has to be paid so much for lost earnings, etc. (The Catholic Church presumably has its monasteries and nunneries on some legal footing, that might be a starting model.)

      Now there isn’t a standardised contract for this, like there is for marriage. But that’s because adding more people means opening a whole bunch of questions about settling property disputes that are new with no single mapping from existing marriage rules.

      Polygamous types would have to start by making those rules up for each situation. If a lot of people want to be polygamous, it strikes me that the logical thing is to let them try writing contracts and see what evolves. What evolves may look nothing like our marriage rules. There might be several stable legal forms of polygamous romantic relationships, none of which look much like marriage (and of course the legal form of marriage has changed significantly in the last 200 years too.)

      Basically, why do you think existing Western marriage is a good model for polygamous romantic relationships?

    • stevenjohnson2

      “Why not think that we would see more egalitarian and less hierarchical plural marriages if they were undertaken by more egalitarian and liberal practitioners?”

      That no one has ever figured out a way to do this in centuries of polygyny is sufficient reason to expect polygamous marriages to be hierarchical. You need an actual argument as to how to keep the husband’s greater number of choices in sex partners from translating into bargaining power, for instance.

      • Lauren Hall

        Exactly.

      • Kurt H

        The obvious solution is lack of sexual exclusivity in marriage. The “vagina shortage” argument collapses under polyamory. Freiman is correct that all traditional marriages (even monogamous ones) are hierarchical in nature. Such marriages are inherently a property arrangement where men own women.

        The institution of traditional marriage is obviously incompatible with gay marriage, since with gay men there is no woman to own, and with lesbians it would be unclear which woman was the owner, and which one property. Once we began thinking of marriage as a mutual agreement between free and equal persons, gay marriage follows as a matter of course — and eventually plural marriage will follow as well.

        Practically speaking, however, there is a tremendous amount of legal complications that would have to be worked out in the case of plural marriage. I suspect that the first step would have to be requiring a person to designate a primary spouse for legal purposes. But, that’s just implementation. There is no philosophical barrier to plural marriage any longer.

        • TracyW

          Once you’ve required a person to designate a “primary spouse” for legal purposes, what’s the legal difference between two people marrying each other and sharing a house together with a third person, which is perfectly legal right now, and “plural marriage”? The house sharers can have any sort of ceremony they want.

          • Kurt H

            That’s a first step. Eventually, the various aspects of marriage (joint property, power of attorney, visitation rights) would be separable and (where possible) non-exclusive.

          • TracyW

            Aren’t they already? Lots of people own property jointly with their business partners, or elderly parents give power of attorney to one of their children, or what not.
            Why should the government care if someone buys property jointly with someone to whom they’re romantically committed, versus with someone whose company they just enjoy, or with someone who they’re only just in it for the money?
            Basically marriage is a convenient package of property rights two people can sign up to all at once, along with some privileges that the government offers (eg taxes, immigration, spousal privilege from testimony) which would look totally different if there was no such commitment to exclusivity.

          • Kurt H

            I do not disagree with the general libertarian notion that marriage should be a category of law rather than one-size-fits-all package. I was simply trying to guess at the intermediate steps between here and there. And yes, I do think there will need to be intermediate steps.

          • TracyW

            Why shouldn’t marriage be (from a legal viewpoint) a one-size-fits-all package? If people want to buy a one-size-fits-all package, rather than a boutique set up, why would any libertarian try to stop them? I’m always surprised by libertarians who think that people should be denied the voluntary choice of entering into a legal package of rights we call marriage. Do they also favour banning buying furniture suites, or pre-fab houses?

        • stevenjohnson2

          Modern marriages are not traditional marriages, even if conservatives don’t know any better. I imagine modern marriage could be improved by a more consistent adherence to equality. But any philosophy that thinks polygamy is an exercise in equality is a barrier to justice I think.

          At this moment, any couple can choose to waive sexual fidelity, just as at this moment either or both separately can choose to seek other partners. Nonetheless, given the problems of children by those other partners and STDs and denial of services within the marriage while engaged in pursuit of other partners guarantee that sometimes courts will be forced to adjudicate suits for divorce. (Which by the way would be true if the parliamentary state and all its statutes were abolished, and all that was left were marriage contracts…Getting the state out of marriage seems to me to be a King Charles’ Head.) I can’t see how sexual fidelity can be ruled an unreasonable demand in marriage.

          • Kurt H

            Hold on steven, I was not arguing that sexual exclusivity should be prohibited — rather that the “vagina shortage” argument assumes (and relies upon) the notion that all marriages are closed.

            As for your claims for the necessity of such exclusions, concerns about children and STDs are substantially mitigated by various medical technologies that have been around for decades (you have almost certainly used some of these technologies, unless you are considerably more conservative than you let on, or a virgin). As for “denial of services,” I think that there is plenty of that occurring in officially exclusive marriages both with and without affairs. The problem with an affair is not that Tab A went into Slot B instead of Slot A. The problem is that a breach of trust occurred. Without an expectation of exclusivity, there is no breach of trust.

          • TracyW

            Currently Western marriage involves an expectation of exclusivity. Extending marriage to multiple partners changes that expectation of exclusivity. Legal polygamous marriages changes the meaning of existing and potential marriages in a way that same-sex marriage does not.

          • Kurt H

            An expectation, yes, but with no-fault divorce and adultery no longer being a crime there’s no legal requirement of exclusivity any longer.

          • TracyW

            Actually there still is. For example, generally in the West, if you marry a foreigner you can get them a visa to live in your country. But not if you marry multiple foreigners.
            If you die intestate (without having written a will), then a surviving spouse is entitled to something like 50% of your assets (depending on location). There’s no provision for multiple surviving spouses.
            If you and one of your ‘spouses’ decide to get divorced, and can’t agree on the division of your property, the court cases and legal rules for divorce in Western countries all assume only two spouses in question. (There may be some unofficial tribunes making rulings for a particular religious group somewhere which are exceptions, I am talking about the legal systems in the West here.)

          • Kurt H

            I was referring to sexual exclusivity, the notion that married persons cannot have sex with anyone else. We used to enforce that, and now we don’t.

          • TracyW

            Thanks for the clarification. Do you think that the other areas of exclusivity, the ones that I outlined, are also important?

          • Kurt H

            I don’t think those forms of exclusivity are necessary, but you would need rules for what happens in the absence of a will in these cases. That’s why I suggested that the first intermediate step would be a requirement to designate a primary spouse (the one that would take priority in cases of inheritance or power of attorney). Some of the aspects of the current marriage package could be given to all (visitation, for example) while others would need to be designated to particular spouses. Under the paradigm above, the current marriage contract would just be a special case where two persons designate each other as primary spouse and have no secondary spouses.

          • TracyW

            It would be a dull life if we only did what was necessary.

            As for your proposed solution, it strikes me as still maintaining an inequality between monogamous marriage and polygamous relationships, so can’t be argued for on the grounds of equality between the two.

          • Salient

            But it is plausible to see the proposed solution as a significant improvement (equality-wise) over the status quo, where plural marriages are banned. You seem to be assuming that acceptance of plural marriage based on consideration of “equality” (or maybe a preferable word would be justice/consistency/egalitarianism) requires completely identical treatment of plural and monogamous marriage, rather than some other notion of equality/egalitarianism (such as some sort of sufficiency). Does it?

            Another issue I wanted to raise about exclusivity is that it’s not clear why those who are bisexual should have to follow this rule of mono-exclusivity and choose one partner, especially if they are “born that way”, unless it goes back to logistics.

            And about logistics, I think we’re all in agreement that legal acceptance of plural marriage would raise a host of difficult questions and logistical issues for state and legal authorities, especially initially. But if that’s the case, then we should recognize that it is a logistical (rather than moral/normative) issue. Moreover, it’s unclear to me that these difficulties are insolvable a priori, that they could not be resolved with time, precedent, clever lawyers, and the judgment of judges and arbiters (e.g., binding arbitration), which is how many difficulties dealing with new types of law sort themselves out. Not everyone would be happy, of course, but very few people (except the lawyers?) are completely satisfied at the end of family law disputes anyway.

          • TracyW

            You seem to be assuming that acceptance of plural marriage based on consideration of “equality” (or maybe a preferable word would be justice/consistency/egalitarianism) requires completely identical treatment of plural and monogamous marriage, rather than some other notion of equality/egalitarianism (such as some sort of sufficiency). Does it?

            I’m assuming that because people here are arguing that we should recognise plural marriage on the basis of equality. If you know someone arguing for acceptance of plural marriage based on some other notion of equality/egalitarianism, please link to them.

            I am not aware of any person who is arguing that we should recognise plural marriage on the basis of some sort of sufficiency. I’ve been pointing out that we already have various legal tools, such as wills, trusts, etc which people already use to tailor legal arrangements to their own needs, eg I know people who own a vacation cottage for private use jointly with friends. I’ve also used the example of nuns and monks, the Catholic church has presumably run into all sorts of legal problems with monasteries and nunneries over the centuries (such as neighbours suing over property boundaries, people leaving the nunnery/monastery), and set things up legally to address them. No one has tried to argue that these options are insufficient, if you have some arguments I’d like to hear them.

            (The other argument I’ve heard is that making plural marriages illegal harms people, as they might be scared to seek help like going to a hospital for fear of getting prosecuted for their marriage, but there’s a big difference between not prosecuting people, and making it illegal.)

            Another issue I wanted to raise about exclusivity is that it’s not clear why those who are bisexual should have to follow this rule of mono-exclusivity and choose one partner, especially if they are “born that way”, unless it goes back to logistics.

            I’m not clear why anyone, regardless of sexuality, should have to choose one partner. To step away from the legal aspects of marriage for a moment to the emotional aspects, I like that my husband choose to commit to me, and only to me (in that way, obviously kids are different). If he *had* to follow a rule of mono-exclusivity, and if I *had* to follow a rule of mono-exclusivity, our marriage would be far less emotionally meaningful to me, and I hope to him.

            I know plenty of people, homosexual, heterosexual and asexual, who aren’t married and have no intention of getting married, for various reasons. Arguing that people should basically have to get married is a crank position, like building perpetual motion machines, and I’ve never even heard a crank argue that bisexual people in particular should have to get married. This concern of yours strikes me as strawmannish.

          • Salient

            Hi, my point with sufficiency is only that equality is a ambiguous term and doesn’t always entail complete identity. An advocate for a living wage does not argue for full wage equality, but that all employees, in virtue of some shared trait, should (equally) have the same minimum wage that is sufficient to live on. I also have not found such a sufficientarian (or prioritarian, etc.) type argument relating to plural marriage. I believe that Elizabeth Brake and others have argued that legal marriage benefits unfairly privilege marriage over other types of committed relationships such as polyamory and close friendships which can be as caring as marriage is, and that such benefits should be extended without needing to call those relationships marriage. Maybe one could argue that non-marriage committed relationships do not need to be seen as identical to marriage, but should be bumped up to marriage’s level of state benefit. I’m not sure though.

            I guess the reason I raised bisexual people is because they cannot pair up with one person in a legal relationship and fully express their sexuality in the same relationship. If one wanted to commit “exclusively” to two people, one person of each sex, they would have to choose one of those two in our current system to designate as spouse. This strikes me as unfair to them. I think it comes back to the issue of what is our shared understanding of marriage is, and the claim that the Western marriage involves an expectation of exclusivity with respect to certain state functions and recognitions. I think I agree, but it strikes me as kind of positivist / pragmatic and distant from the normative reasoning that seems to undergird much of the “meaning of marriage” debate and Kennedy’s opinion, especially in the conclusion where he talks about respect for the idea of marriage and equal dignity. The exclusivity expectation also seems contingent and tied to certain existing laws and policies that you cited. A libertarian response might be to introduce ideal theory and claim that those existing policies also should be abolished or amended; e.g. with respect to immigration and inheritance, most libertarians are for open borders and against inheritance taxes anyway. But that’s neither here nor there.

            Thanks for the discussion, this is an interesting thread.

          • TracyW

            I agree with you that equality is often an ambiguous term. I agree with you that it is often misused, but I am no mindreader. If someone asserts that we should legalise something on the grounds of equality, and don’t bother defining their terms, I’m going to use the ordinary definition in evaluating their arguments. On the Elizabeth Brake argument, tax benefits and immigration related marriage benefits are mitigations to underlying inequal tax and immigration policies: end the underlying inequality.

            Thank you for explaining the bisexual reference. I think though that that argument risks proving too much. I think Sean Connery in his early James Bond movies was pretty darn hot, if I never manage to sleep with him, does that mean I’ve failed to fully express my own sexuality? I think a bi person can be in a faithful monogamous relationship, and also be fully bisexual, just as a straight person’s straightness isn’t reduced by them being monogamous, although of course bis should have the legal right to not marry as well.

            As for the issue of committing “exclusively” to two people, one of each sex, I don’t see why they have to choose only one to marry. They could only sleep with those two, they could write a will that leaves all their possessions to be evenly divided between those two, they could buy a house with only those two, etc.

            The monogamous nature of Western marriage means that if someone wants to commit exclusively to one person, they can propose marriage to them. Converting marriage to include polygamy takes away that option: it changes the meaning of marriage for those who do want an exclusive marriage, as opposed to an “exclusive” one. That’s unlike same-sex marriage, which didn’t change the meaning of existing marriages, or potential future homosexual marriages.

          • stevenjohnson2

            Sorry, I wasn’t paying attention to your case against the “vagina shortage” as I already thought that was nonsense.

            Concerns about children and STDs alone mean an insistence on sexual exclusivity is a reasonable demand for the marriage contract, because “considerably mitigated” is not quite good enough, and worse, depends upon prudence which isn’t always found in people. I’m afraid we can no more expect universal fidelity in taking precautions than we can expect universal fidelity in its usual meaning.

            Yes, there are considerable “denial of services” in marriages, of all kinds, not just sexual services. There have been, are and will be spouses who deem denial just cause for divorce, and there you are, another court case.

            As for the general notion of getting rid of messy sexual infidelity as cause for divorce by removing the word from the dictionary? If one spouse is left behind night after night while the other is spending household money on the pursuit of another sex partner, they might as well be room mates.

          • Kurt H

            It’s strange how you think an open relationship poses greater dangers than people sneaking around, but nevermind.
            Regardless of whether plural marriage is actually a good idea, there doesn’t seem to be a coherent case for banning it. The case for a ban seems to rely inherently on presumed secondary effects of multiple marriages, not on the act itself. It reminds me a great deal of the argument for banning narcotics.

    • Lauren Hall

      I think those are good points, though I actually think the legal protections could work the other way. Right now women in unrecognized polygamous unions have legal custody of their children and can leave whenever they want, if they can overcome the social and coercive barriers to do so (I’m thinking of the Fundamentalist Mormon experience, but it would apply to fundamentalist Islamic communities as well, I think). If they were all legally married, however, exit becomes much more expensive and difficult. So I’m not sure the legal protection argument works as well given that we already offer protection against domestic partner abuse, for example, without the protection of marriage.

  • stevenjohnson2

    It’s not clear that we can conduct a cost-benefit analysis of the externalities. Which seems to be an obstacle to this kind of consequentialist argument against polygamy, I think.

    Isn’t it possible that the necessary inequality in a polygynous marriage between the husband and wife is in itself sufficient justification for rejecting legal recognition of polygamous marriages?

    • Lauren Hall

      I probably didn’t draw that point out clearly enough, but I certainly think that’s a huge part of the problem. At the same time, inequality alone probably wouldn’t be enough of an argument against polygamy since we allow people to consensually enter into very traditional patriarchal marriages all the time.

      • stevenjohnson2

        Do we? I don’t think we allow husbands to take women’s property when they marry, for instance. And I’m pretty sure wife beating and forced marital intercourse are deemed criminal assaults. Children are not automatically the husband’s property after divorce. Wives can sign contracts. They can even work outside the home. I think even if a woman chooses to emulate June Cleaver, it doesn’t make her marriage a traditional patriarchal one.

        But I am pretty sure that in a polygamous marriage, where for instance the number of children in her family depends not on her and her husband, but instead on her, her husband and her husband’s partners, is a lot closer to patriarchy, however untraditional. I think assigning equal rights to marriage partners is fair. And I think this commitment to fairness rules out multiple partners where we can’t figure any possible way to assign equal rights.

        Thanks for your reply.

  • Oddstar7

    Every argument for why “[p]olygamy is just different from monogamy” is also an argument for why heterosexual marriage (also known as marriage) is “just different” from same-sex “marriage.” After all, as long as polygamous marriages are all among consenting adults, where does society get off telling consenting adults what they can do?

    Interestingly, all your arguments are why polygamy is bad for society as a whole, but that’s the entire species of argument that libertarianism reject (which, not that anyone cares, is why I am not a libertarian).

    The simple fact is that the legal acceptance of same-sex “marriage” establishes a principle for our society that marriage exists only to gratify the egoistic individuals in the marriage, and not for any other reason. Once that principle has been accepted, there is simply no basis for rejecting polygamy. Same-sex “marriage” was the thick end of the wedge.

    • TracyW

      Western marriage, legally, is about sorting out property right disputes once the relationship ends (as it always does, by divorce or by death), plus a package of privileges that the state has chosen to add on top, to mitigate some of the downsides of the state’s laws and activities (such as immigration, or taxes).
      While the package of privileges could all be done away with, the first reason, sorting out property right disputes, is the proper job of the legal system (which of course could be independent from the state). This is a reason which is independent from gratifying egotistic individuals within the marriage.

      • Oddstar7

        I’m sorry, but that’s classic question-begging. Why do we as a society care in the slightest about distribution of property at the end of a relationship? People are perfectly free to write wills allocating their property as they see fit, and people are free to contract about distribution of property in the event of a break-up. If marriage were purely about allocating property between two individuals, that would be just about gratifying two (or more) egoistic individuals.

        The only reason society has an interest in marriage, as such, and therefore the only reason to privilege marriage in law, including writing laws about the allocation of property after the end of a marriage, is that society as a whole benefits from marriage, in fact not merely benefits from, but depends upon. Civilized society is marriage, in a very real sense. It is marriage that transforms a group of collocated clans into a nation, by binding two families or clans into one. Same-sex couplings simply cannot do that as a biological fact.

        • TracyW

          Because we live in a mutually dependent economy. Say we’re talking about a farm. The farm owner breaks up with her romantic partner, who claims a share of the farm and starts a legal fight.

          While the ownership of the farm is in dispute, money is wasted on legal costs and there’s a disincentive to make long-term investments in the farm. So farm output is likely to be lower, and thus there’s less food for the general public to eat. So we’re all worse off.

          But, on top of that, if the legal structure of the day doesn’t support people being able to make the decisions they want with their property, they’re likely to take steps to try to achieve their desired allocation, which is generally costly (eg when common law meant that a married woman gave all control of her money over to her husband, trusts developed so rich fathers could protect their daughters’ capital from spendthrift son-in-laws. This also diverts resources from more useful things.

          Property rights allocation matters to us all. My apologies for not taking the time to explain this before.

          • Oddstar7

            There’s really nothing to explain, because, once again, you’re just begging the question. Note the statement “[t]he farm owner breaks up with her romantic partner, who claims a share of the farm and starts a legal fight.” You’re assuming the romantic partner claims a share, but why?

            If the romantic partner invested in the farm and bought a share, then the end of the romantic relationship is completely insignificant. Investors in a common enterprise fall out with one another all the time. It does not usually impact the business at all, but when it does, it’s usually settled by the simple expedient of one or more parties buying out another party. Occasionally a case will end up in court, but there’s certainly no special legal institution for dealing with this minor problem, nor is there any need for one.

            If, on the other hand, the romantic partner has a share in the farm because he or she is the romantic partner, which is presumably what you are talking about, well, now we come to the question-begging. You’re assuming that this romantic relationship somehow creates some form of community property, but why? We only do that with married couples as part of the institution of marriage in the first place. The institution of marriage does not exist to serve the post-break-up property allocation. Post-break-up property allocation is only an issue because the institution of marriage exists. You are reversing cause and effect.

            There’s no inherent reason why a romantic relationship should have anything to do with property allocation. The law considers the property of a married couple to be joint property because it considers the married couple to be a single person. That is because the whole point of marriage, again, is to bond two families into one. There is no other purpose.

          • TracyW

            Okay, before we go into this second set of questions, have I first convinced you that society generally does have an interest in a good allocation of property rights when they’re in dispute? (By “good” I mean both reasonably fast and roughly in line with the past owner’s interests, noting there may be a tension between the two goals.)

            Secondly, yes, you are indeed right that the institution of marriage does not exist to serve property rights allocations. If you re-read my first comment on this subthread you’ll see I inserted the word “legally”, I have here been explicitly talking about the legal system’s involvement in marriage, not the purpose of marriage as a societal institution. I agree with you entirely that the institution of marriage drives the legal involvement, indeed, contrary to your assertion, nothing I said previously claimed otherwise. The legal system exists to serve the people, not people the legal system, I did not realise you might be in doubt on this question.

          • Oddstar7

            I’m going to deal with the second one first. I never contended that people exist to serve the legal system, and that is not the implication of anything I said, either. Are you deliberately misunderstanding what I am saying for rhetorical purposes?

            The problem with your argument is that you are saying that you are talking about the purpose of the legal system’s involvement in marriage, not the purpose of the societal institution of marriage. You claim that you recognize that the societal institution drives the legal involvement, but you fail to understand what that implies.

            Which brings us back to the first part: you are still begging the question. Leaving aside the general question of whether society has any interest in resolving property disputes (the answer, obviously, is sometimes), the problem is that the only reason there is a property dispute in the first place is because of the legal institution of marriage. A societal institution with no legal force has no power to create a dispute about property rights, which are inherently a legal matter.

            So you can’t claim that the purpose of the legal institution of marriage, as opposed to the societal institution of marriage, is to resolve property disputes, when the only reason the disputes exist in the first place is because of the legal institution of marriage. Abolish the legal institution of marriage, as many libertarians (Rand Paul, for example) have argued, and the property disputes disappear.

            Given that marriage causes property disputes, not resolves them, the question becomes: why should the law be involved in marriage at all? If your only goal is to resolve, or, better yet, avoid property disputes efficiently and reasonably fairly, it obviously should not. If you understand that the societal institution of marriage is vital to civilization, that it is civilization, then you might well conclude that the law ought to recognize and support the institution by, for example, combining the property of two married individuals into one.

          • TracyW

            . I never contended that people exist to serve the legal system, and that is not the implication of anything I said, either.

            Indeed. I explicitly said that “I agree with you entirely” that the opposite is true. My statement about the legal system exists to serve the people, not people the legal system was intended to reinforce my agreement with you.

            Are you deliberately misunderstanding what I am saying for rhetorical purposes?

            Actually I kinda get the feeling that you’re doing that. You appear to be taking quite an agressive approach to me (eg the statements like “you’re just begging the question”) and overlooking key qualifications that I’ve made, like how I inserted the word “legally” to make it clear I was talking about the legal aspects of marriage. And you’ve not apologised at any point for your misreadings of me. But it’s possible you’re also just being careless in your reading.

            the problem is that the only reason there is a property dispute in the first place is because of the legal institution of marriage.

            I very much doubt this. People are greedy, and tend to want more property. We see this even now, fraud and outright thefts still happen, or are attempted. The legal system is an attempt to peacefully settle property disputes.

            Let’s say there was no legal institution of marriage. Let us also assume that despite this lack of a legal institution, some people still chose to live together with people to whom they are romantically attached, work together, have kids. So, let’s take a conventional case: I’m going to use heterosexual examples to get the advantages of different pronouns, but you can generalise to all gender combinations. So, a farmer (a man) falls in love with a teacher (a woman) (this is roughly the story of one set of my grandparents). They decide to move in together, they have children together, she quits her job because of the pregnancies and to raise the children. Eventually he dies, relatively young, of a heart attack, leaving behind a valuable farm. The farm could be used to support the ex-teacher (not the widow as no marriage in this hypothetical world) and her still young children, or it could be claimed by some other person, say the farmer’s brother. Are you going to claim that, across the entire world, there is no possibility that any family arguments would ever develop about who gets the farm? Is the assumption that, without the institution of marriage, the farmer doesn’t give a damn about what happens to his romantic partner and the mother of his children in the event of his early death, and thus won’t take any steps to try to ensure that the farm goes to his romantic partner, rather than his blood relatives? Or is the assumption that there could never ever be a blood relative greedy enough to want to take the farm from the surviving romantic partner?

            Or, take another case. A couple decide to have children together (again in our hypothetical world with no marriage). They discuss childcare, and he makes verbal promises that if she quits her paid job and looks after the children, and supports his career, he’ll look after her. Ten years and three kids later, he dumps her for a new relationship, and refuses to pay her a cent above the minimum legal contribution he must make to the children. She has lost ten years of career development. Are you seriously going to say that, without the legal institution of marriage, the woman in question would not feel that he had breached his promises to her? Or, that were it not for the existence of marriage, no man would ever break his word? Or, that, were it not for the institution of marriage, no one would ever make promises in the first place?

            (Conversely, let’s imagine a couple, she gets “accidentally” pregnant, quits paid work despite his objections, dumps him with all the baby care on top of his work while she goes out to party, then, when he decides this is crazy and he’s moving out, with baby, claims that he made promises as in the first situation and thus she’s entitled to a large payment from him. Are you going to claim that in the absence of marriage, no one would ever lie in order to gain a large sum of money? ) (Again, both scenarios also apply if you change around the genders.)

            Now, these legal disputes could be solved in ways without marriage, eg wills, explicit contracts, etc. But our current society, by offering a standard marriage contract, offers a way for all sorts of people to sign up to a package of legal resolution, which not only saves money on lawyers, but, I think more importantly, means that people can sign up to a bunch of rules about what happens if they want a divorce, without having to negotiate such rules explicitly at the time when they’re madly in love. I think it’s a great innovation of our culture, that we have managed to portray proposing marriage as a wonderful romantic gesture when, from a legal viewpoint, a lot of it is about what happens when two people wind up hating each other.

            Another way of checking up on what I’m saying is to attend the civil courts for a bit. Civil courts deal with hordes of property disputes, between companies, between charities, between neighbours, between governments, between business partners, between employers and employees, between all sorts of combinations of the above, even though none of those relationships involve the two parties being married to each other. It strikes me as highly implausible that, were it not for marriage, romantic relationships would be the one sort of relationship that never ever led to a property dispute.

            Basically, your assertion strikes me as wildly implausible given human history.

            So, to recap my position:
            – disputes over property rights happen because people are sometimes greedy and sometimes dishonest, they happen across all sorts of relationships, including entirely non-romantic ones, they would happen regardless of whether marriage is recognised legally or not
            – society cares about resolving property disputes in a good way (by which I mean both timely and in line with the previous owner’s desires) because unresolved property disputes waste resources on things like lawyers and disincentivise long-term investments in raising productivity, which make us worse off as consumers, and if the legal system does not generally support the previous owner’s desires they’ll spend more resources trying to get closer to their desired outcome.
            – the legal system offering an legal institution of marriage allows people wanting to enter into an exclusive romantic relationship to sign up to it and save money on lawyers, and also avoid the emotional costs of having to explicitly negotiate what would happen in the event of a divorce, at the same time as they want to signal their undying commitment to each other.
            – the purpose of the legal system is to serve people’s interests and desires.
            – consequently, the courts should recognise a legal institution of marriage so as to do a better job of serving people’s interests and desires.

            Ther

            If you understand that the societal institution of marriage is vital to civilization, that it is civilization, then you might well conclude that the law ought to recognize and support the institution by, for example, combining the property of two married individuals into one.

            Perhaps. But we can also support the law’s recognition of marriage on rather more prosaic grounds.
            Incidentally, have you ever argued this position you state here with someone who is arguing that the law should not recognise marriage? And if so could you link to an example?

          • Oddstar7

            I’m sorry, when you wrote “[t]he legal system exists to serve the people, not people the legal system, I did not realise you might be in doubt on this question,” I took you to mean that you thought I might be in doubt on the question of whether the legal system existed to serve the people, not that you thought I might be in doubt on whether you believed that. I apologize.

            As to your other story about the farmer and the teacher, I maintain that there is no a priori reason why, absent the social institution of marriage, and absent a will, the farm should go to the teacher or her children. Absent that institution of marriage, the teacher is just a woman with whom the farmer was cohabiting, and who knows who fathered the children (I do not mean to suggest–Heaven forbid–that your grandmother ever cheated on your grandfather). The brother shared a mother with the farmer, so we know that they are related, so why shouldn’t the farm go to the brother? After all, if the farmer wanted his property to go to someone outside his family on his death, why wouldn’t he have written a will? Outside the assumption of marriage, there is no reason why the default rule should not be to the brother in this case. With the institution of marriage, there is a default assumption that the property will pass to the surviving spouse and any children, but you can contract around that with a will. Without marriage, there is no reason not to have an alternate default assumption that you can also contract around.

            In your second hypothetical, the case where the man promises to provide for the woman and breaches that promise, that is an enforceable contract without marriage. There is an offer and an acceptance, and there is consideration. The lack of a writing is not a problem, since this sort of contract does not come under most states’ statute of frauds. (It is more than a year, but it is an indefinite contract.) In other words, the arrangement, with a promise to provide for the other person, would be legally enforceable now, without marriage. Considering the extensive legal entanglements that already often ensue when a marriage breaks up, I’m not sure that there would be any loss of efficiency involved.

            In the third case, where she gets “accidentally” pregnant, sticks him with the baby, etc., and then falsely claims that he had promised to provide for her, is that that problem already exists under current law. Just as, in the previous hypo, the contract was enforceable, here too, if she can convince a jury that there was a contract, and that there was consideration, and that she was not in material breach herself, she can win a judgment. That’s under current law. The fact is, though, that we rely on juries to sort out complicated factual disputes where one or both sides may be lying egregiously. Do they always get them right? Probably not, but the problem you describe already exists.

            You are right that courts have to settle property disputes all the time, but the vast majority of those disputes arise because two or more parties entered into some sort of legal relationship with each other and the property. Creating an additional legal relationship, marriage, increases the opportunity for property disputes. The only reason to create that legal relationship is if it serves some societal end. By way of comparison, the existence of corporations as legal entities creates huge numbers of property disputes all the time; it would be much simpler, if all we cared about were settling property disputes efficiently, to abolish the corporate form. We do not do that because the corporation does serve a social good: it allows businesses to raise large volumes of capital much more efficiently and to continue business operations after the death or retirement of the present head of the business with the minimum of difficulty. That additional efficiency in the conduct of business outweighs the cost of the property disputes thereby created. But the fact remains that creating additional legal relationships creates property disputes; it does not resolve them.

            So, to respond to your summary of your position:

            –Property disputes do sometimes arise out of simple dishonesty, but those are actually a small minority of cases. In the vast majority of cases, both sides have an honest claim, based on a legal relationship of some sort. Creating additional legal relationships creates property disputes, because in the absence of a legal relationship, there can be no property claim, except through fraud.
            –Society does care about resolving property disputes, although the desires of the previous owner are of limited importance in that resolution. The law actually places very strong limits on how much control a person can exert over his property once his actual ownership terminates. See, for example, numerus clausus and mortmain.
            –The legal institution of marriage does allow people to do those things, but there is no a priori reason, absent the social institution of marriage, why the legal system should want to encourage people to do those things. Many people want to do certain things with their property, including dispose of it in certain ways, that we either do not allow at all, or that we do not make particularly easy. Clear property rights are a good thing, which means clear default rules of inheritance when an owner dies are good also. But the idea that the default has to be to a surviving romantic partner assumes the existence of marriage as a social institution and that that institution ought to be privileged by law. It would be just as clear and efficient to have a rule that causes property to go to the nearest matrilineal relative, with the option to contract around. Likewise, it would be just as efficient–actually, more efficient–to have a default that, in the event of a break-up, there is no assumption of any further financial obligations, unless there is a contract. Unmarried cohabiting couples break up all the time without property disputes. Divorcing couples are far more likely to end up in court fighting over property. It is the legal relationship that creates the dispute.
            –I did not mean to offend when I said that you were begging the question. I only meant that you were assuming the very thing that you need to prove: that we ought to have a legal institution that causes property disputes before we can speak of how that legal institution might be used to resolve those disputes.

            I hope that this clarifies my position, as I think you have clarified yours.

            To answer your question, no, I have never debated this position with someone arguing for the abolition of legal marriage. Reading over this and my previous comments, I think it might almost sound as if I were arguing for that position myself.

            What I would probably say is what I have said before: marriage is what transforms a group of collocated clans or tribes into a nation. As such, it is the bedrock and building block of civilized society. The state ought to promote marriage for the same reason that the state exists in the first place: without it, there cannot exist order, peace, and safety in a society any larger than a tribe.

          • TracyW

            Oddstar, this seems to have gotten very complex, so I’ve condensed quite a bit.

            Basically, you appear to agree with me that people should be able to write wills leaving their property to their romantic partner, if they so choose, and have those wills enforced.
            And you also appear to agree with me that people should be able to legally enforce some promises, such as a promise “If you quit paid work and look after our kids, I’ll loook after you.”
            I presume you agree that people in such situations should not have to rely on a court deciding to enforce a verbal contract (which is always doubtful), but should instead be able to write a written contract if they so choose.

            Given that we agree that people could write wills, and could write other contracts with their romantic partners, do you not think there is some value in the legal system being able to offer a standardised contract, one that covers both wills and other matters, that people could sign up to, if they want to? Obviously, given that this standardised contract would sometimes cover situations where one party had died, and thus would not be around to testify about their intentions, the legal requirements for a signed one should, like a will, be a bit tougher than the legal requirements for a contract to buy a TV or what not, eg you might want this contract to be not merely signed by both parties, but also witnessed. Do you see anything wrong with the legal system offering such a standardised contract as an option?

            I disagree with your claim that disputes arise because two or more parties entered into a legal relationship with each other and the property. You claim that corporations as legal entities cause huge numbers of property disputes all the time, but, before corporations were invented, there were lots of legal cases anyway, as any history of law will indicate. Or a brief read of the Bible.

            More generally, I don’t follow this claim. Purchasing property with someone, or having a child with someone, or sharing a house with someone, or buying a house next door to someone or starting a business with someone, obviously establishes a legal relationship even if that was not the express intention of the people in question. And my understanding is that the legal relationship is caused by the possibility of disputes in these relationships (for example, if you and I rent a house together, platonically, and then we have a fight and once you leave the house I change the locks and refuse to let you back in, you are likely to turn to the law for redress, and then the court gets to judge the reasonableness of my actions). Over time, case law gets built up about the proper legal relationship between flatmates. Or, to take a situation where no property is directly shared, between neighbours, eg legal rules about things like if the wall between two properties is falling down, who has to pay for fixing it. The legal relationship follow from the property disputes.

            I agree with you that the Australian de facto rules, which basically marries any couple who have lived together for two years, go too far, and I prefer the UK rules by which you’re only bound by marriage rules if you actually explicitly consented by getting married.

            You state that cohabiting couples often separate without property disputes. Yes, but there are two reasons for that: firstly cohabiting couples tend to be younger, poorer and in shorter-term relationships. That a couple who shared a rented flat for two years, both working full-time, with no kids, or that a couple with no assets, living on benefits, don’t seek legal help in ending their relationship is not surprising, that doesn’t mean that a couple who shared a farm or other business for twenty years and had three kids are going to be able to separate so easily, married or unmarried.

            A couple of other things: firstly, I talked about dishonesty, in your reply, you talked about simple dishonesty. I do not understand why you introduced the adjective, complex dishonesty strikes me as another route of getting to legal disputes.

            Secondly, when you say:

            I only meant that you were assuming the very thing that you need to prove: that we ought to have a legal institution that causes property disputes before we can speak of how that legal institution might be used to resolve those disputes.

            I think your claim that legal institutions cause property disputes is factually wrong. I have not the slightest interest in proving it, let alone in proving that we *ought* to have a legal system that causes property disputes. I am open to being proved wrong, but you’re going to have to do the intellectual work here, don’t try to place it on my shoulders.
            What’s more, if you do manage to convince me that the legal system causes property disputes, then my first response would be to abandon my argument for legal recognition of marriage, and start arguing for abolishing the legal system instead.

            I also have no idea how you got from asking me “why do we as a society care in the slightest about distribution of property”, which was the first time you accused me of a circular argument, to this specific statement about assuming that we have a legal institution that causes property disputes. The two claims strike me as very different.

          • Oddstar7

            This is getting long and complex, so I am going to take your points in turn, although I will not be quoting you in full:

            Basically, you appear to agree with me that people should be able to write wills leaving their property to their romantic partner, if they so choose, and have those wills enforced….Do you see anything wrong with the legal system offering such a standardised contract as an option?

            There is no need to have the legal system, meaning the courts, do this. Lawyers already do this for their clients. You can go to a lawyer and ask for a form will, form prenup, or what-have-you. Heck, you don’t even need to go to a lawyer anymore. You can easily find a form prenup or form will online. There are websites that will guide you through making one. There is obviously value to the person wishing to make such a contract in these services, and I have no objection to them.

            I disagree with your claim that disputes arise because two or more parties entered into a legal relationship with each other and the property. You claim that corporations as legal entities cause huge numbers of property disputes all the time, but, before corporations were invented, there were lots of legal cases anyway, as any history of law will indicate. Or a brief read of the Bible.

            That is true, because legal relationships of various sorts existed before corporations. Legal relationships have been around as long as law has been around. I was just using the example of how legal relationships, such as corporations, cause disputes over property. Almost all property disputes arise out of a preexisting legal relationship between the parties, whether they are lessor and lessee, buyer and seller, board and shareholder, giver and recipient, mortgagee and mortgagor, debtor and creditor, husband and wife, or what-have-you. Pretty much the only arguable exception I can think of is in cases of adverse possession. Seriously, read through any casebook for any law school property class, and you will find that almost all, if not all, the cases involved parties with a preexisting legal relationship. For that matter, all the property disputes at law (as opposed to military disputes over territory) in the Bible occurred where there was a preexisting legal relationship.

            More generally, I don’t follow this claim. Purchasing property with someone, or having a child with someone, or sharing a house with someone, or buying a house next door to someone or starting a business with someone, obviously establishes a legal relationship even if that was not the express intention of the people in question. And my understanding is that the legal relationship is caused by the possibility of disputes in these relationships….I prefer the UK rules by which you’re only bound by marriage rules if you actually explicitly consented by getting married.

            The key phrase there is “with someone.” Yes, if both of your names are on the deed, or the lease if it is a rental, you own the property jointly. You have entered into a legal relationship. You are now co-owners of a piece of property; that is a legal relationship. But your understanding is exactly backwards: it is the legal relationship that creates the potential legal dispute.

            Take your hypo in which we rent a house together Platonically. If your name is the only one on the lease, and you and I have no contract, then, as far as the law is concerned, I am simply your house-guest, and you may kick me out whenever you want. If we have a contract, that is a legal relationship that gives me the right to live in that house in exchange for some consideration (usually rent money), then we have a legal relationship (I am your tenant) and I have a case. Likewise, if both of our names are on the lease, we again have a legal relationship (we are co-tenants), and there is a case, that is a legal dispute. In the absence of a legal relationship with respect to the property, there is no legal dispute.

            As for your other hypo, about a dispute where a piece of property is directly shared, again, that is a preexisting legal relationship, one of shared property, that gives rise to the dispute. If the collapsing wall is clearly on my side of the property line, and the pieces aren’t falling onto your property or otherwise causing damage, then there is no dispute. I am entitled to let the wall collapse all I want, and I am responsible for repairing it if I want it repaired. It is true that if I am negligent in some way, and that causes you an injury, by say damaging your property, then you have a cause of action in tort. But that’s just a regular tort dispute: you allege that I am a tortfeasor. But that’s a tort case, not a property case.

            You state that cohabiting couples often separate without property disputes. Yes, but…a couple who shared a farm or other business for twenty years and had three kids are going to be able to separate so easily, married or unmarried.

            That may be true in many cases, but it is not uniformly true. That is, some cohabiting couples may have plenty of assets, and may have been together for sometime. Rich people do cohabit too, after all, and sometimes do so for lengthy periods. Poor people also get married (although it is becoming rarer).

            The reason there are typically no property disputes when a cohabiting couple breaks up is the lack of a legal relationship. Again, unless both of their names are on the lease (or some other contractual relationship), then the apartment (or house or whatever) belongs to one of them, and the other just has to leave. That person has no legal right to the living space, or to any other property in the other person’s name, and vice versa. It doesn’t matter whether they’ve been living together for twenty years. If they have no contract of some sort, and if they’re not married, and only one person’s name is on the lease, that’s the end of the matter. The apartment (or whatever) is that person’s. There is no legal dispute, because there is no legal relationship (that, incidentally, is why there was common-law marriage, but that no longer exists in most common-law jurisdictions).

            You do sometimes have a dispute over minor items like a piece of furniture or something, but that is generally because there is no clear deed or other record of ownership, and those disputes don’t generally end up anywhere near a court anyway. But, to be blunt, there’s no societal interest in disputes over such items.

            A couple of other things: firstly, I talked about dishonesty, in your reply, you talked about simple dishonesty. I do not understand why you introduced the adjective, complex dishonesty strikes me as another route of getting to legal disputes.

            By “simple dishonesty,” I did not mean simple as opposed to highly complex fraud. I was distinguishing between dishonesty, pure and simple, and a legitimate dispute over property where both sides have a reasonable belief that their claim is a good one. A dispute that arises out of fraud is simple in the sense that it’s purely a dispute of fact, not of law. One party makes a claim that it knows is false, and knows to be based on evidence that is forged or otherwise false. No true legal dispute arises in such a case; the matter will turn on whether the jury believes the fraudster or not.

            While there are property disputes that arise out of fraud or other dishonesty, and while some dishonesty can be very sophisticated, these disputes are disputes of fact, not of law.

            In a dispute of law, there is often little or no dispute over the facts. Many cases never get anywhere near a jury, because there is no dispute of material fact. There is simply a question of how to apply the law to a given set of agreed upon facts. That’s why most cases are either settled, or they are disposed of on summary judgment or a motion to dismiss.

            I think your claim that legal institutions cause property disputes is factually wrong. I have not the slightest interest in proving it, let alone in proving that we *ought* to have a legal system that causes property disputes. I am open to being proved wrong, but you’re going to have to do the intellectual work here, don’t try to place it on my shoulders.

            I think you may be confusing two different meanings of the term “legal institution” here. When I said that legal institutions cause property disputes, I meant institution in the sense of legal relationships (I have tried to be more consistent about using the term relationship in this comment), as in the institution of marriage. I did not mean that “the legal system…causes property disputes.”

            As to my contention that it is legal relationships that cause property, all I can say is that it is true, and, frankly, obviously so. You cannot have a true legal dispute over ownership of a piece of property unless both parties have something that could be a valid claim to the same piece of property. Without that, what’s the dispute about? If both parties have some kind of claim to the same piece of property, then they have a relationship.

            To put it very simply, if two persons cohabit without getting married and without any other legally recognized relationship, such as a lease or contract of some sort, and only one person’s name is on the lease or deed, and they break up, there is no legal dispute over who gets the house or apartment. The person whose name is on the lease or deed does.

            If the same couple gets married, it does not matter (there is some variation depending on jurisdiction, but this is generally true) whose name is on the deed or lease. In the absence of a prenuptial agreement or other contract, the law assumes that the property of either person is the joint property of the married couple. If they then divorce, the property will then be split between them. Now, that may sound simple enough, but things can get complicated. For example, if the couple owns a house, and one party wants to keep the house and is willing to give up claims on other property, like say the couple’s saving account, and the other party would prefer to sell the house and split the proceeds, that is a dispute that is going to have to be resolved, either relatively amicable through a settlement, or in court by a judge. Again, though, that dispute only exists because of the legal relationship. If they were not married, and only one person’s name were on the deed to the house, then there is no legal dispute about who gets the house. Do you see now what I mean when I say that it is the existence of the legal relationship that creates the dispute over property?

            What’s more, if you do manage to convince me that the legal system causes property disputes, then my first response would be to abandon my argument for legal recognition of marriage, and start arguing for abolishing the legal system instead.

            Again, it is not the legal system that causes legal disputes, except in the trivial sense that you obviously cannot have a legal dispute without a legal system of some sort. But legal disputes over property inherently arise out of legal relationships. Property itself is a legal relationship between an owner or proprietor and the property. When you say you own something, whether a piece of land, a car, a t-shirt, or something more abstract like a patent or a trademark, you are saying you have legal relationship to that thing. There is no physical tie between you and the thing you claim; ownership is not a physical thing you can touch or smell. It is a bundle of legal rights, that is, a legal relationship.

            As to why we should have such legal relationships if they give rise to legal disputes, well, it’s for the same reason we have any law. It’s for the benefit of society. We create a legal relationship between the farmer and his land so that the farmer will have an incentive to farm the land but also to improve it and invest in it, because if the land becomes more productive and more crops are brought to market, the whole society benefits.

            We created the corporation, a very complex set of legal relationships between and among people and property, because it helps mobilize capital for productive enterprises. Yes, these legal relationships generate lots of disputes, but they are worth it.

            Some legal relationships that existed in the past were believed to benefit society, but are no longer seen that way. That is why they have either been abolished or restricted. Again, see mortmain or numerus clausus.

            The law since ancient times has granted recognition to the social institution of marriage, making it a legal relationship, which can cause property disputes, because it was understood that society benefited from marriage, so much so that it was in society’s interest to make marriage a legal relationship so as to support and encourage the social institution. Now, however, the law is attempting to redefine the institution, without understanding what the institution is, how it benefits society, or why this redefinition imperils the institution.

          • TracyW

            You have shifted your claim from that the end of cohabiting relationships less often result in legal disputes to the claim that they never do (to paraphrase your statement that “To put it very simply, if two persons cohabit without getting married and without any other legally recognized relationship, such as a lease or contract of some sort, and only one person’s name is on the lease or deed, and they break up, there is no legal dispute over who gets the house or apartment. ” [emphasis mine]).

            This claim is factually wrong, for example this link covers a number of UK legal cases which cover the ending of cohabiting relationships. This article mentions a number of US court cases dealing with the same question.

            As for tenancies, search for “implied tenancy agreement”. And you yourself mention tort cases as a situation where a property dispute can arise despite no legal agreement between the parties. These are merely some of the reasons I don’t believe your claim that legal relationships cause property disputes.
            I am glad though that you are trying to argue for your position, as a change from telling me that I need to prove your position for you.

          • Oddstar7

            As to your statement that I have shifted my claim, I did so for illustrative purposes, because the first time, I said usually, because yes, some courts have started to recognize or create a legal relationship between cohabiters. I left that out the second time because I thought leaving it in without explaining it would just be unnecessarily confusing. I apologize.

            Secondly, what the courts are doing with cohabiting relationships in the cases you refer to is creating (or recognizing, depending on how you look at it) a legal relationship. (Really, they are sneaking common-law marriage, or something like it, back into the law. Whether you think it’s a good idea or not, that’s what they are doing.)

            Again, the same is true of implied tenancy agreements. All that means is that the court is finding that a legal relationship was created by actions.

            In other words, the fact that the courts are in some cases creating or finding legal relationships where in the past they might not have does not change the fact that the property disputes are arising out of legal relationships. The plaintiff has to claim a legal relationship to get into court; if the courts were to find that there was no legal relationship, the claim would be dismissed out of hand.

            As for tort cases, they are not property disputes. That is, they do not arise out of competing claims to the same piece of property. They can relate to a piece of property. As I said, if I negligently damage your property, that’s a tort and you can get a judgment against me. That is not a dispute over property. It happens to relate to property.

            Yes, there are exceptions, as I said. Adverse possession is one. Also, depending on the nature of a given jurisdiction’s recording statute, you can get a situation where two parties who have no direct legal relationship can get into a dispute, although you could say that they have an indirect one, although that can get pretty tenuous.

            But, honestly, that’s well besides the point. You keep looking for some hole in the idea that legal disputes over property that occur when a marriage ends arise in the first place because there is a legal relationship between the two married persons.

            Maybe the term that’s confusing you is the term “legal relationship.” I thought that would make it clearer, but let me try another way.

            A legal dispute over property may arise at the end of a marriage (whether through death or divorce), because the law says that, because the two persons were married, their property was all co-owned by them, and they both have a legal claim on all that property. If the law said, by contrast, that the fact that two persons had had some sort of ceremony, and then lived together for years, had children together, and so forth, was of no legal significance, then the social relationship between them would cause no property dispute.

          • TracyW

            The courts in a common-law country don’t go out and force legal relationships on people who were getting along quite happily without them. All thoses cases in the links I cited were where someone at considerable expense actively took their property dispute to court.

            Ditto with the implied tenancy agreement. If when I lock you out, you just shrug and abandon your possessions and move in with a mate, the courts are going to do nothing about it (unless the landlord gets involved for your non-payment of rent). You would have to seek legal redress to trigger the police or the court’s involvement and thus any implied tenancy.

    • Lauren Hall

      Well, that wasn’t the only argument made in the SCOTUS decision. Part of what the justices wanted SSM supporters to prove was that there are no real costs, societal or otherwise, to SSM. The supporters demonstrated that, but I don’t think polygamy could do the same thing. Now SCOTUS is not a libertarian body, obviously, so libertarians would require a different burden of proof and it’s possible (perhaps probable) that I haven’t met that.

      • Oddstar7

        Well, no, the supporters did not “demonstrate[] that.” The five-lawyer majority on the Court said that they did, but that’s only because those five lawyers do not understand what marriage is or know and do not care. Under the same burden of “proof” that was applied by those five lawyers, polygamy could definitely prove that there was no harm. After all, the persons involved are consenting, so they cannot be harmed. And if the rest of society doesn’t like it, well, that’s just religiously motivated animus, isn’t it?

        And if there is concern that the fact that some men’s having multiple wives will make it impossible for other men to ever have any realistic prospect of marriage, well, first of all, many men will never marry anyway. Marriage rates are declining over all, are they not? And those men are certainly free to compete for marriage partners in the marriage market. If they cannot out-compete someone who already has one or more wives, why should the law help them? Besides, who is to say that there won’t be women with multiple husbands, balancing things out? Isn’t it rather sexist to assume not?

        Yes, historical experience shows that you cannot just rule away human nature, and that polygamy would be a social disaster. But if the left wing of the judiciary has proven anything, it is their willful ignorance of historical experience and human nature.

        You probably are right that libertarians would require a different burden of proof than I would, although I suspect that most libertarians would use roughly the same burden that the Court used here and would arrive at the same result. That being said, you’ve certainly convinced me (technically, you didn’t because I already believed that polygamy would be a disaster for society, and you can’t convince someone of what he already believes). But, again, I’m not a libertarian. I’m just pointing out that every argument you used against polygamy work just as well as the arguments against same-sex marriage. That is, they are completely correct, but they won’t prevail.

  • j_m_h

    Do powerful men pull fertile women out of the pool or just beautiful women who may or may not be fertile?

    One would also have to consider the legal aspects here to as they then create something of a disincentive to too many wives so the argument about the pool of fertile women seems to erode. Likewise, if women are all just drawn to the power legalizing the relationship really doesn’t change things too much — they will be mistresses and still removed from the general pool.

    If I’m not mistaken (and admittedly this is an impression not something I’ve looked into) in cultures where polygamy is permitted aren’t marriages more arranged events where the women have much less choice in who they marry? What impact does that have on the general argument about fertility pools and possible mate ratios?

  • Prof. Kingsfield

    There is no difference in outlawing polygamy than outlawing same sex marriage. Both are/were a societal imposition of morality.

    • TracyW

      Banning murder is a societal imposition of morality. But I can see quite a few differences between banning murder and outlawing same-sex marriage.
      Polygamy might easily have harmful social effects that same-sex marriage does not, just as murder clearly has harmful social effects that same-sex marriage does not.
      Although my more fundamental objection is that same-sex marriage doesn’t change the meaning of existing and potential future heterosexual marriages, polygamous marriage does, because it takes away the expectation of exclusivity, which would require a lot of legal changes to the situation of monogamous marriages, or acceptance of legal inequality between polygamous marriage and monogamous marriage, in which case, hey, the equality argument for legalising polygamous marriage fails.

  • David Whitney

    I am no great political thinker, but there are flaws in this analysis:

    1. It’s not an analysis. It’s a laundry list of arguments against polygamy.
    2. As pointed out by others, the empirical evidence cited is drawn from countries and cultures radically different than our own.
    3. Our system of law has evolved as new technologies and methods of association have emerged. I’d like to see the author’s hypothetical arguments against the automobile or the internet.
    4. Almost every one of the negative consequences postulated by the author is already illegal in this country.
    5. The author assumes women are powerless and superficial in their choice of mates.
    6. I don’t see a single legitimate argument that trumps FREEDOM and TOLERANCE.

  • martinbrock

    Libertarianism does entail relativism (or subjectivism), but I’m not sure what the final assertion has to do with the rest of the article anyway.

    I don’t know how wealthy men coerce women into polygamy. You simply assert this coercion. Two women marry a wealthy man, as opposed to less wealthy men, for the same reason that one woman does. If statutory rents make men wealthy at the expense of less wealthy men (and they certainly do), that’s a problem for liberty, but the women marrying the wealthy man don’t seem to be the principal victims. They can always choose to marry a less wealthy man and share his living standard lowered by the rents.

    The rest of your argument is all about children, so it has nothing to do with childless marriage, and gay marriage is primarily about childless marriage. Countless people jointly responsible for children still may not marry.

    Siblings adopting a child still may not marry and may not file a joint income tax return even if one of them cares for the child full-time. A parent and a grandparent raising a child may not file a joint income tax return even if one cares for the child full time. Many cases of this kind exist, more and more all the time in fact, but only gay marriage is the great civil rights cause of this decade.

    Freiman is right about the implications of gay marriage for polygamy, and you are right about the implications of polygamy for children.

  • Ch Hoffman

    kids – especially boys – growing up without fathers is the shame of the urban environment and is one element of poverty that extends into rural America and is not restricted to whites

    what’s better – no father; or a father who’s shared with half-brothers and half-sisters.

    or do we still let Jesus decide on our marriage laws

  • Krishna Kirti Das

    Interesting discussion on marriage here. I don’t particularly care much for politics, but the recent SCOTUS decision has made this a lively topic, and marriage is a topic I care about.
    One thing that has been underemphasized in this thread is that marriage has not always been about romance. It has been about other things also — economics, building alliances (still very much apart of even monogamous marriage), and just taking care of dependents, like wives and children. That is, marriage is considered primarily about personal and civic duties and obligations, and as those who have endured in a marriage for a long time will attest, at a certain point (usually a year after marriage) the magic of romance wears off, and you are down to business, struggling to make ends meet.
    Traditionally, in societies in which polygamy has been practiced polygamy itself is rare because along with marriage is an expectation of maintaining dependents. Moreover, only a small number of men at any time will possess the resources to do so, because powerful men with access to uncommon levels of resources by definition are uncommon. If everyone is powerful than no one is powerful.
    Yes, people marry because they want to have sex and enjoy, but it has also been generally expected–in polygamous societies no less–that you have several obligations, duties towards others and society, that at a minimum must be met.
    This sense of duty, of obligation as the basis of marriage has largely been forgotten in modern Western society because the welfare state has stepped in to insulate people from the consequences, and opprobrium, for their neglect of others.

  • Strangefrond

    You seem to oppose state recognition of polygamy based on what you take to be the likely consequences for society as a whole. But I don’t think I would have been against gay marriage even if all your consequentialist arguments applied (say, in the case that only women would get gay-married and that they otherwise would have married men). The pro-gay-marriage position is that marriage has been enshrined in American jurisprudence as a basic right and that refusal to extend that right to certain people denies their dignity and the dignity of their relationships. When I go on OkCupid, I see tons of people identifying as “polyamorous” (and I exclusively look at women’s profiles, not men’s). To deny them access to the right to marry those they are in love with, under the logic of Obergefell, is to deny their relationships equal dignity. If so, I don’t think you can do that just because you don’t like the consequences. Yet the very goal of your policy seems to be to use the dignity-denying aspect of not extending marriage to them as a tool for marginalizing them. It’s not the state’s job to decide who deserves respect and who does not.

    One way to respond to me would be to explain how polyamory is not relevantly similar to other recognized sexualities. But I think you’re going to have a tough go of it.

  • Their luv cannot D nyed!

  • Monkey fat face

    Wow! I’m surprised at this. So, you want government to stay out of marriage but get involved when you want them too? If we truly want freedom from government we need to let people live their lives how they want. That includes being able to marry whoever they want. Look at society now. Eddie Murphy is on his ninth child with five different women. This is okay but multiple wives/husbands aren’t? There is abuse in any format of marriage. You want to punish society because other people are doing a form of marriage you don’t understand?
    A true libertarian wants government smaller even when people choose a different lifestyle then they agree with…..

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  • Bongstar420

    Polgamy is cured when women stop prefering wealthy, domineering males to extract wealth for their benefit at the expense of the others. There is no reason polygamy can’t mean two dudes and two ladies for example. I suspect that would be far more common than 1 dude with 4 ladies.

    Also, capping wealth accumulation would solve the problem of women marrying money. But you know libertarians worship the rich and they need men to be willing to work for that pune.