Divorcing marriage?

By skepticlawyer

When I wrote my Reason Foundation brief on equal marriage, I focussed (understandably) on the empirical arguments both for and against same-sex marriage, leaving rights arguments to one side (what do you expect? I’m a positivist). However, in one section, I addressed (albeit briefly) the common libertarian argument that we should ‘get the state out of marriage’ or have ‘marriage by contract’. I pointed out (with some supporting arguments) that this would be almost impossible to do.

Now, this may be something of a niche argument, of no interest to our regular readers here, but it is big time in the US, mainly because some libertarians there are personally conservative, or are anarchists. This means (in the case of the former, and if they have any wit) they realise that they’re losing the wider arguments on things like abortion and gay marriage, and wish to at least preserve their religious traditions from dismemberment at the hands of the state. If the state is deprived of its powers of definition, they figure, then–as a consequence–100 flowers of all definitional colours will indeed bloom.

With this I have some sympathy: the state can take things apart efficiently (and sometimes does so with good reason, as with Thatcher shutting the pits), but putting something together in its place is rather awkward (hence all those parts of the north, Wales, and Scotland where people haven’t worked for 25 years… since the mine closures, basically). Yes, I know, Thatcher has been in the news rather a lot this week.

Confronted with something that they dislike (same-sex marriage), the response of people in this difficult position is, rather than playing a defensive game, to suggest that the state get out of marriage altogether, leaving everyone to their own definitions. There’s a problem with that, however.

It’s really difficult to do.

Reason.com’s Scott Shackford contacted me this week to talk about the points I raised in my paper on this issue. He sets out the basic argument:

Getting the government out of marriage entirely is a fairly common libertarian solution to the thorny question of recognizing non-traditional relationships. It’s seen as a path for helping simplify a complex tax code that results in absurd incentives and penalties. It robs the state of its paternalistic authority to put its stamp of approval on private relationships and places them firmly in the hands of citizens.

But as a legal matter, separating marriage from the government entirely may be just too much, at least in the United States. Helen Dale, a three-time fellow at the Institute for Humane Studies and a classical liberal trained in different types of legal systems, wrote a brief in defense of same-sex marriage recognition for the Reason Foundation (the non-profit that publishes Reason.com and Reason Magazine). As a “libertarian aside” in her brief (pdf), she detailed how America’s significant use of common law in family courts—that is, the accumulation of case law built up over years of precedents—may be a huge hurdle to such a broad libertarian goal.

Without quoting myself, the basic problems are these:

1. Contract law in common law countries is a complex, coherent, evolved system that has always largely excluded ‘intimate relationships’ from its purview. Marriage, in the common law (partly due to its Christian heritage) was always ‘something more’, and not at base wholly contractual. The existing law of marriage would need to be repealed (x50 in the US, of course), and new statutes mandating contractual marriage would need to be enacted instead. At the same time, fundamental common law principles, evolved in a Hayekian manner, would need to be reversed statutorily, as I mention in my paper:

Every lawyer in a common law jurisdiction ought to remember, from his or her first year contract classes, the presumption against intention to create legal relations when the parties are in an intimate relationship.

That presumption would need to be statutorily reversed, with, of course, unknown consequences.

2. Roman law did indeed define marriage as a contract – it was a ‘system of contract marriage’, which many libertarians like. However, it set up a number of defaults designed to protect the weaker party (typically the woman) that could not be contracted around. Two classic examples? Roman couples could not have joint checking accounts (the jurists thought it encouraged men to bully their wives), and if a husband borrowed dowry money from his wife and then went bankrupt, he had to repay her before he repaid secured creditors–ie, the bank. In other words, the Romans stuck exactly the sort of complex, protective rules that we use in family law…in contract law. Libertarians may want contract marriage, but if they copy the Romans, the state will just apply the complexity currently buried in family law to the law of contract, not marriage.

3. Many supporters of privatising marriage don’t realise that some of the religious marriages that they think will be permitted contractually… won’t be. In Sharia, a woman’s testimony is worth half that of a man’s, and she is routinely heavied into the relationship. Well, even without any intervention from feminism, both England’s common law (duress) and Roman law (vis ac metus) make any contract formed in those circumstances void, not just voidable (where the contract remains on foot unless knocked over by the party hard done by). Even without duress, the ordinary law of contract would take a good long look at some of the family structures tolerated in Sharia and may well find find undue influence (England and Rome), facility and circumvention (Rome) and unconscionable dealing (England and the Commonwealth). And in case you think either the Romans or the English have been infected by the shade of the National Organisation for Women, those contract vitiating doctrines are in some cases thousands of years old, or at least hundreds.

The Romans (early) and the English and Americans (later, but still a long time ago) decided that you just can’t treat women (or anyone) like that when contracting with them, regardless of what your sky fairy of choice mandates.

4. One of the reasons contract law works so well is because it evolved: it’s a genuine instance of spontaneous order in the Hayekian sense. Sweep it away and replace great chunks of it with untried legislation and you will have litigation from arsehole to breakfast-time as the courts attempt to make sense of it. It is this that both I and Professor Richard Epstein refer to in Scott Shackford’s Reason.com piece: a mass of new law will have to be enacted, worked through and litigated; it will cost a fortune and clog the courts for years. Libertarians who advocate it seem to have forgotten Hayek’s point that one test of an efficacious legal system is how few cases come to court: cases that go to trial should, by definition, be hard cases. Here’s Professor Epstein:

Things do not get any easier when the subject turns to external attribution rules that are commonly tied to spousal status. Do your shares and mine count as a single holding sufficient to create a control block under tax or securities law? Or are they to be considered separately so that this designation cannot be applied? What about reporting rules for various kinds of conflict of interest situations in business or biomedical research? If there are intermediate statuses that people can adopt, all of these external groups are going to have to develop criteria to apply their own provisions. It will prove to be messy, costly, and inefficient.

5. Unlike Roman law, the common law of marriage treated women like shit (sorry, you can’t dress this up) for a very long time. The effect of this — once courts realised how bad it was — was a series of discretionary interventions into the law in an attempt to make something so lopsidedly male-dominated fairer. When Lord Denning did it, it was so egregious it came to be called ‘palm tree justice’, a phrase familiar to generations of English and Commonwealth law students.

Unfortunately, fairness has not been the result: rather, there has been a monstrous growth in discretion, which makes the law unpredictable and leaves people in a position where they cannot make important life plans. Although men complain about being fleeced on divorce in common law countries, the real problem is a system that is utterly discretionary: no-one knows where he or she stands. The civilian (Roman) systems are better, but they deprive parties of choice in crucial ways: rules, not discretion. The sharia system of inheritance, for example, would be impossible in France, Scotland, or Germany: it discriminates too heavily against women. This is because it is impossible, in a civilian country, to disinherit one’s spouse or children or distribute among them unequally: much of civilian succession law operates mechanically, on the basis that one needs to know what the law will be in advance. This particularly applies to the law of intestacy.

Once again, this is not because ancient Roman lawyers were influenced by a bunch of rabid feminists; they were interested in coming up with laws that worked, and which protected Roman citizens’ liberty and capacity. In many cases, these rules are thousands of years old: when European countries dumped Canon law and primogeniture (as Adam Smith argued they should in Wealth of Nations), they just went back to the ancient Roman bedrock. In common law countries, of course — without the same focus on rules — the most urgent battle is simply to improve and clarify existing marriage law; that in itself is a large and difficult task.

How does this difference between Roman rules and English discretion look in practice? Read this salutary tale from England (with some pointed Scots commentary free of charge) to see how it goes:

BBC correspondent Jane Peel said the court was saying that when a couple have not made their intentions clear, each of them is entitled to what it deems to be fair [in English law].

“The financial contributions that couples have made are relevant but there are many other factors which enable the court to decide what shares were either intended or were fair in all the circumstances,” she added.

William Healing, family law partner at Kingsley Napley, said more clarity was needed in the law.

“Despite the Supreme Court achieving a fair result for Ms Jones, the law remains grey and unclear,” he said.

“This case involved an ordinary couple who were forced to fight through four levels of court.”

Mr Healing added that the difference between the two court rulings of the amount that Mr Kernott would have been entitled to was £90,000.

The family lawyer called for an overarching law, such as in Scotland, to “protect the weaker party in unmarried couples and to provide certainty”.

In Scotland, the law recognises that a couple who live together as if married (or in a civil partnership) have had rights and obligations between them.

If the couple separate then either can claim against the other for any economic disadvantage that he or she has suffered in the interest of the family unit, and for any economic advantage that the other person has gained.

Philippa Cunniff, a partner at family law firm Turcan Connell, said Scottish courts allow for a greater degree of certainty than the courts in England and Wales.

“It is almost inconceivable that a case of this nature would have ended up in the Supreme Court had it been decided under Scots law,” she said.

That Scots law has come up with good rules for both cohabitants and married people is deeply Roman. Rules, not discretion, and not just for married people: but also, less choice. Sometimes, too much choice can be a bad thing.

6. Finally, there is a general failure on the part of many libertarians to understand the extent to which law administered by a private body (ie, the Medieval Church) can be as statist and controlling — in fact, more so in that case — than laws administered by a state. Indeed, there’s a serious argument to be made that state licensing of marriage represented a net gain for liberty over what had previously existed. Private does not necessarily mean ‘better’ or ‘freer’. This is the sort of thing that needs to be examined and considered on the merits, not on the source of legal authority.

And of course, all of this needs to be enforced. Which gets back to the litigation point…

So, as Scott Shackford points out: divorcing marriage is rather harder than you think. It’s not impossible (I refuse to be the sort of lawyer who is a simple roadblock, who says, you can’t do that; ‘never say never’ is what I told Scott). But it’s hard, and those making the proposal need to go into it with their eyes open. Libertarians who advocate privatising marriage are in many cases being glib, and are in crucial respects unaware of the evolved traditions of the common law that they purport to defend. 


  1. Posted April 11, 2013 at 8:18 am | Permalink

    We are going on a marriage binge! My post tomorrow will deal with why Muslim women can often get a better deal at a Sharia tribunal than under English and Welsh family law. Plus an aside on the market for marriage partners.

    On the “just make it a private contract point”, I have been curious as to why folk think that would, for example, protect hospital visitation rights–which are based on public recognition of connections, not private agreements.

  2. Posted April 11, 2013 at 8:45 am | Permalink

    Oh, the marriage law of England and Wales (and, by extension, most of North America save Quebec) is a mess. I suspect that in some cases the mandated sums under a sharia contract (if properly drafted) would work similarly to the operation of ius relictae in Roman law: set statutorily, and so guaranteed in advance.

    Sharia marriage would not be as good for women as marriage in a Roman law country, because the Romans assumed marriage equality (between the genders here, obviously) when it came to property owning capacity and inheritance, but it would not surprise me that Sharia manages at least some of the time to be better than the Christian common law. No wonder Lord Denning sat under his palm tree handing out money to abandoned wives and the like.

  3. Posted April 11, 2013 at 8:52 am | Permalink

    What an interesting piece — thank you!

  4. Mel
    Posted April 11, 2013 at 11:07 am | Permalink

    I agree with Don. Thanks for another very interesting post.

    My major thought is that most people who subscribe to ideologies, regardless of whether they’re left or right, make emotive, intuitive type judgments about issues and actually don’t want to think through the ramifications in a logical manner.

    You’ll never achieve the popularity of Catallaxy or Andrew Bolt unless you stop making sense and start throwing some of that red meat to the true believers.

    But hopefully you’ll influence more of those folk who are themselves influential.

  5. TerjeP
    Posted April 11, 2013 at 11:11 am | Permalink

    As an atheist I used to think the solution to all this was to simply never get married and to simply “live in sin”. However the state won’t even allow that option without declaring it to be a de facto marriage. And there is in fact a considerable cultural cost in opting out of the institution, not to mention concerns by the other party, and their family, about your commitment and suitability regarding procreation. So in the end I married. And for similar reasons my kids got Christened. I feel like a sellout and do wish for a better system, but I don’t expect one. Even the proposed charter cities and sea steading initiatives generally seek to import British common law. So we are in essence unable to escape our history. Or at least not easily.

  6. Posted April 11, 2013 at 2:45 pm | Permalink

    Some interesting points there, particularly the fact that contract law is ill formed to governing personal relationships.

    So we are in essence unable to escape our history humanity.

    Any ideology that attempts to construct a system premised on an abstract or simplified ideal of what it means to be human will be found lacking when applied to the messy reality of humanity.

  7. TerjeP
    Posted April 11, 2013 at 3:46 pm | Permalink

    Including the current system. We can do better.

  8. kvd
    Posted April 11, 2013 at 4:14 pm | Permalink

    Any ideology that attempts to construct a system premised on an abstract or simplified ideal of what it means to be human will be found lacking when applied to the messy reality of humanity.

    desipis, we do that all the time. I think it’s called ‘civilisation’. But anyway.

    SL, outside your terms of reference, but have you given any thought to the (laymans’ words, no expertise) basic competence of the SC to actually decide either of these cases? I thought there had to be two parties at odds – with the court as final arbiter.

    The Administration seems to have said it wouldn’t pursue DOMA, but in ‘Windsor’ it appears to be using the ‘definition of marriage’ to pursue a taxation objective directly opposed to their own stated views. Almost as if they want the court to do what they were elected to do.

    To repeat, I hope Windsor wins. But not at the cost of diminishing the worth of the SC as final arbiter.

  9. kvd
    Posted April 11, 2013 at 7:54 pm | Permalink

    And then there’s the question of polygamous contracts or contracts for a limited time span (I marry you for one year, then we split). What do we do about those?

    I thought a fair percentage of marriages already do split – divorce – so that’s not really a new issue is it. Maybe get a dog, or if polygamous, a few dogs?

  10. Posted April 11, 2013 at 8:28 pm | Permalink

    [email protected], there’s also the matter of calculating damages for a broken heart, or for loss of love and companionship. Would the courts grant specific performance where one party is entirely innocent? How many would go to the effort of covering sufficient detail in their contracts and how many would be dependant on implied terms included on the basis of cultural marriage conventions (making divorce even more uncertain and costly)?

    Then you get to the fun questions such as whether adultery becomes tortious interference with the marriage contract.

  11. Posted April 12, 2013 at 12:14 am | Permalink

    [email protected]9, there’s also the matter of calculating damages for a broken heart, or for loss of love and companionship.

    In Roman law, this head of damage (typically in delict; Roman marriage contracts worked out remedies and custody in advance) was called ‘solatium’, which gives us our modern word ‘solace’.

    *Your legal factoid for the day*

  12. Posted April 12, 2013 at 7:26 am | Permalink

    The scenario I’m thinking of is this: a couple contract for a five year marriage with an option to renew. Three years out one of the parties wants to leave. What then? (There wouldn’t be specific enforcement – we won’t specifically enforce employment contracts because of concerns about autonomy).

    The Roman way around this was by means of liquidated damages, and it was never called marriage – it was always a form of concubinage. The man also always remained responsible for the upkeep of any children until they reached the age of majority (which had a nasty habit of floating up and down throughout Roman history, and sometimes could be set by the parents; this meant the child had to be formally ’emancipated’, something like freeing a slave, if mum & dad wanted to vary the age. Roman marriage was very modern, but… Roman parenting? Think Japan before 1945. Filial piety and all that).

  13. Posted April 12, 2013 at 11:57 am | Permalink

    LE, I imagine that agreements to marry would be treated the same as other ‘agreements to agree’ in that they wouldn’t be valid contracts. I suppose you can have a delayed marriage that occurs automatically where certain conditions are met (e,g, “if we’re still living together in 12 months time then we’ll be married under the following terms…”).

  14. John H.
    Posted April 12, 2013 at 12:52 pm | Permalink

    desipis, we do that all the time. I think it’s called ‘civilisation’. But anyway.

    I suspect the point is we must be realistic about the limitations of the ideas we hold regarding being human. Sure, we need these conceptual structures and they are useful but let’s not pretend they are fully comprehensive and can cover every circumstance. Psychology is replete with failures to generate valid models of being human. I think the very concept of “human nature” is problematic. We are remarkably versatile creatures and rational models are doomed to fail with often irrational beings. BTW, if you want a very interesting examination of just how much “human nature” varies read Beyond Human Nature by Jesse Prinz.

  15. conrad
    Posted April 13, 2013 at 6:21 am | Permalink

    Apart from legal problems, I think another problem is that lots of non-religious people seem to want to get married too, and if you take the State away, then it is not clear whether there would be a non-religious body with a enough credibility for them to get married by them. If you happen to believe that marriage is good for children over and above just the legal stuff (and many people would argue this — I’m personally more ambivalent) then this would be a bad thing as you would have less married people, presumably quite a lot less in places like Aus where people are not especially religious.

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