On private marriage contracts

Warning: First Read Everything Here, only participate or read on if you are sure you understand the risks.

Based on the commentary and excerpt Federico made on studiolo, I've added the book Nudge: Improving Decisions about Health, Wealth, and Happiness by Thaler and Sunstein to my reading list. Since the book seems relevant enough to this site and has been mentioned before, I may eventually write a review. The post by Federico is made up mostly of excerpts from Chapter 15 of the book "Privatizing Marriage".

In addition to this I recommend reading the following excellent essays:

Sister Y's The Right to Marry
A Really, Really, Really Long Post About Gay Marriage That Does Not, In The End, Support One Side Or The Other also recommended by CharlieSheen

The reason the particular topic he talks about caught my interest is because the proposed solutions by Thaler and Sunstein seem somewhat similar to the one I argued for...

Marriage is a personal or religious arrangement, it is only the states business as far as it is also a legally enforceable contract. It is fundamentally unfair that people agree to a set of legal terms and cultural expectations that ideally are aimed to last a lifetime yet the state messes with the contract beyond recognition in just a few decades without their consent.

Consider a couple marrying in 1930s or 1940s that died or divorced in the 1980s. Did they even end their marriage in the same institution they started in? Consider how divorce laws and practice had changed. Ridiculous. People should have the right to sign an explicit, customisable contract governing their rights and duties as well as terms of dissolution in it. Beyond that the state should have no say, also such contracts should supersede any legislation the state has on child custody, though perhaps some limits on what exactly they can agree on would be in order.

Such a contract has no good reason to be limited to just describing traditional marriage or even having that much to do with sex or even raising children, it can and should be used to help people formalize platonic and non-sexual relationships as well. It should also be used for various kinds of non-traditional (for Western civ) marriage like polygamy or other kinds of polyamours arrangements and naturally homosexual unions.

...and Vladimir_M argued convincingly against. Here...

However, are you sure that you understand just how radical the above statement is? The libertarian theory of contracts -- that you should have full freedom to enter any voluntary contract as far as your own property and rights are concerned -- sounds appealing in the abstract. (Robin Hanson would probably say "in far mode.") Yet on closer consideration, it implies all sorts of possible (and plausible) arrangements that would make most people scream with horror.

In any realistic human society, there are huge limitations on what sorts of contracts you are allowed to enter, much narrower than what any simple quasi-libertarian theory would imply. Except for a handful of real honest libertarians, who are inevitably marginal and without influence, whenever you see someone make a libertarian argument that some arrangement should be permitted, it is nearly always part of an underhanded rhetorical ploy in which the underlying libertarian principle is switched on and off depending on whether its application is some particular case produces a conclusion favorable to the speaker's ideology.

...and here.

I think this would be a genuine cause for concern, not because I don't think that people should be able to enter whatever relationships please them in principle, but because in practice I'm concerned about people being coerced into signing contracts harmful to themselves. Not sure where I'd draw the line exactly; this is probably a Hard Problem.

The speaker has an ideological vision of what the society should look like, and in particular, what the government-dictated universal terms of marriage should be (both with regards to the institution of marriage itself and its tremendous implications on all the other social institutions). He uses the libertarian argument because its implications happen to coincide with his ideological position in this particular situation, but he would never accept a libertarian argument in any other situation in which it would imply something disfavored by his ideology.

Well, there you go. Any restriction on freedom of contract can be rationalized as preventing something "harmful," one way or another.

And it's not a hard problem at all. It is in fact very simple: when people like something for ideological reasons, they will use the libertarian argument to support its legality, and when they dislike something ideologically, they will invent rationalizations for why the libertarian argument doesn't apply in this particular case. The only exceptions are actual libertarians, for whom the libertarian argument itself carries ideological weight, but they are an insignificant fringe minority. For everyone else, the libertarian argument is just a useful rhetorical tool to be employed and recognized only when it produces favorable conclusions.

In particular, when it comes to marriage, outside of the aforementioned libertarian fringe, there is a total and unanimous agreement that marriage is not a contract whose terms can be set freely, but rather an institution that is entered voluntarily, but whose terms are dictated (and can be changed at any subsequent time) by the state. (Even the prenuptial agreements allow only very limited and uncertain flexibility.) Therefore, when I hear a libertarian argument applied to marriage, I conclude that there are only two possibilities:

The speaker is an honest libertarian. However, this means either that he doesn't realize how wildly radical the implications of the libertarian position are, or that he actually supports these wild radical implications. (Suppose for example that a couple voluntarily sign a marriage contract stipulating death penalty, or even just flogging, for adultery. How can one oppose the enforcement of this contract without renouncing the libertarian principle?)

The speaker has an ideological vision of what the society should look like, and in particular, what the government-dictated universal terms of marriage should be (both with regards to the institution of marriage itself and its tremendous implications on all the other social institutions). He uses the libertarian argument because its implications happen to coincide with his ideological position in this particular situation, but he would never accept a libertarian argument in any other situation in which it would imply something disfavored by his ideology.

Multiheaded12y200

http://lesswrong.com/lw/9q5/on_saying_the_obvious/

(In general: looking at your current behavior here and on twitter, you might be beginning to spiral around full-crank mode right now. You've seen it happen to me several times; I know what signs to look out for. Take heed, and go have some fun/work on stuff/etc before returning to political back-and-forth.

This is not to take a cheap shot at or dismiss any ideas behind whatever you've been arguing in this time - they deserve proper disagreement and taking apart IMO - just a warning that their direction might be getting a bit monomaniacal.)

[anonymous]12y10

Please don't take my twitter account too seriously tho, I mostly have fun there. I hope you of all people notice when I do self-parody.

11[anonymous]12y

Thank you for telling me you think so, I consider your warning quite important evidence on whether I am going into such a spiral.

[-]fubarobfusco12y670

Contracts never have merely two parties. They are never "private" in the sense implied above. A contract requires a third party to enforce the contract against either party at the other's appeal. The existence of the enforcing party is a suppressed premise in almost all contracts, and the consent of that third party is rarely explicitly discussed.

Asking for unbounded "freedom of contract" means asking for the existence of a third party who consents to enforce any contract, and has the power to enforce any contract; in other words, a third party that is amoral and omnipotent; one with no objections to any contract terms, and sufficient power to enforce against any party.

The state, in a democratic republic, cannot be such a third party, because it is not amoral — it has moral (or moral-like) objections to some contract terms. For instance, today's republics do not countenance chattel slavery; even if a person signs a contract to be another's slave, the state will not consent to enforce that contract.

I suggest that, given what we know about humans, the creation of an actual amoral and omnipotent third party would constitute UFAI ....

[-]Desrtopa12y110

This is a very good point, but while we can't reasonably expect the government to impartially enforce all contracts presented to it, we also can't reasonably tolerate a government that won't recognize or enforce any contracts.

To take an excerpt from one of the linked essays

some couples have specifically contracted for the rights marriage traditionally gave them (but no longer does). In the California case Diosdado v. Diosdado, 97 Cal.App.4th 470, a husband and wife contracted that if the husband had an affair with another woman, he would pay the wife $50,000 on top of the divorce settlement, and vice versa. The husband did in fact have an affair, but the California court refused to honor the couple's agreement. The strong California public policy of no-fault divorce, the court said, prohibited courts from even enforcing the voluntary contracts of a mature adult couple

This is not a contract that goes beyond my intuitions of what it would be reasonable for the state to enforce. It seems we've come to a point where the state (or at least, some states) will refuse to enforce contracts for marriage with terms which it would readily enforce if they were business agreements. Certainly there are stronger economic reasons for making business contracts enforceable than marriage contracts, but I don't think it follows that marriage agreements should be less enforceable, and I have doubts that this is an optimal state of affairs.

4A1987dM12y

I would have framed it as a bet: I bet you $50,000 that you will cheat on me before I ever do. I think the government of my country would refuse to enforce that (gambling is restricted, I can't even access the websites of certain prediction markets as my ISP will block them), but I would've expected the US to have no problem with that.

8Eugine_Nier12y

Gambling is illegal in the US except in specially licensed casinos.

0Desrtopa12y

Not exactly. There's no federal law against gambling, and states have their own restrictions. But restricted is not the same as illegal; states that do not allow licensed casinos do not necessarily have any laws against citizens making bets with each other over which money changes hands, when done on a non-commercial basis. And of course, there are other forms of licensed gambling, including that which is run by the state.

3Eugine_Nier12y

Well, US regulators are attempting to declare intrade illegal.

3fubarobfusco12y

Sure — what you're saying is that you don't like the specific judgments, or standards of judgment, used by the enforcing party known as the state of California. Which (as you note) is not the same thing as saying that you don't want an enforcing party to make any judgments. FWIW, it is not clear to me that "receiving $50,000 if the other spouse sleeps around" is actually one of "the rights marriage traditionally gave them", so I think the essayist is stretching the truth there. (Further, there are n different "traditions" of marriage going into a multicultural society: Catholic marriage is not the same as Anglican marriage, that being one of the major reasons there exists such a thing as Anglicanism ....)

[-]SisterY12y170

Traditionally, "divorce" was a cause of action with a plaintiff and a defendant - a winner and a loser, an aggressor and a victim - and alimony (in the form of cash payments) was the prize the victim/winner won for proving one of the limited grounds for divorce (generally desertion, adultery, or cruelty).

6Desrtopa12y

It's certainly not a specific right ever guaranteed by the institution of marriage, but there used to be some rather strong legal hammers wielded against adultery (especially against that which was committed by women,) and some couples would like to have some comparable hammer on hand for their own relationships.

3blacktrance12y

It follows, then, that someone who advocates unbounded freedom of contract in a democratic republic wants the state to be such a third party and for it to not have objections to any contract terms.

[-]fubarobfusco12y190

Well, yes ... or maybe they are confused and do not understand the implications. A lot of political positions are easy to argue in the absolute when you do not expect to get elected and therefore do not expect to have to implement them.

1Decius12y

Now suppose the existence of an amoral, demiomnipotent third party that can determine if a person understands the implications of an agreement and is free from coercion, will formalize any contract iff all parties understand the implications of said contract and are free from coercion, and enforces all formalized contracts only at the request of any party to the contract. Is that UFAI, FAI, or neither? I've left 'coercion' undefined for now; if your answer hinges on a precise point within the reasonable definition space, try to find that line.

2bogus12y

It's less unfriendly than fubarobfusco's example, but still not quite optimal, since refusing to enforce some contracts (most obviously, contracts which inflict technical externalities on third parties) increases utility. You could weaken this conclusion by assuming that the AI can drive all transaction and contracting costs to zero, since then all Coasian-optimal contracts are made. But even that result assumes, e.g. that inequalities in marginal utility are not relevant (since otherwise a utilitarian AI will want to "redistribute" wealth - broadly understood - and use imperfect contract enforcement to do so). Information asymmetries may also be a problem: it's possible that Coasian reasoning can be extended to yield a constrained Pareto optimum in such cases, but I'm not at all sure about that. Even then, what if the AI is better informed than the agents are? Agents with self-control problems can incur "internalities" to themselves. Of course self-control issues can be mitigated if the agent alters her own behavioral tendencies and sets up appropriate incentives (acting as a "principal" to herself in a principal/agent setup): nevertheless, if such possibilities are inherently limited, then imperfect enforcement of contracts could increase the agents' utility in the long term. Strategic considerations also pose a severe challenge to Coasian reasoning and freedom of contract more generally: if we allow all contracts, then extortion attempts may qualify as contracts and then agents will want to extort each other or evade shakedowns, and pay resource costs to do so. Plus there might be other stuff I haven't thought of.

0Decius12y

What would be an example of a penalty clause that 'inflict(s) technical externalities on third parties'? I might add the stipulation that those parties must also be parties to the contract. I'm not asking that this entity actually do anything beyond the specific tasks related to contract enforcement that it has been assigned. It isn't intended to bring about immortality or make perfect predictions about the future or prove that it is physically possible to fulfill a contract (I assume that every formalized contract would have a penalty clause which is provably possible, such as a monetary debt or a lien) I did also throw in a magical 'free from coercion' clause, specifically to sidestep extortion. It's a patch that I can't figure out how to make more elegant; if "If I don't get money now the bank will foreclose on my house, so I agree to work for [employer] for three years in exchange for a fair large advance" is allowed, why isn't "If I don't pay off [bookie] now, he will break my legs, so I will agree to [oppressive treatment by third party for below-market compensation]" or even "I agree to submit to [oppression] by [extortionist] in exchange for one cent and not getting shot."

1bogus12y

My comment was not restricted to "penalty clauses", it includes contracts more generally. Obviously we can think of contracts which would cause negative externalities if they were enforced, e.g. through a penalty clause. Refusing to enforce some of these contracts increases utility. Re: extortion, it's not clear what the correct decision-theoretic analysis is. One might think that the real issue is not so much with the extortion itself (since this is in fact a contract to which Coasian arguments should apply), but with any attempt to expend real resources in order to improve one's bargaining position: Given that someone is willing to break my legs unless I pay him off, a contract where I pay him off and he refrains from breaking my legs is Pareto efficient and may even maximize utility if, say, the extortionist happens to have a high marginal utility of wealth compared to myself. (Of course, this is a rather convenient assumption: the real point is that pure transfers of resources do not have bad properties in the general case.) But it is obvious that losses are involved: agents now have a perverse incentive to acquire the potential to extort others (where they didn't have such an incentive before), and victims have an incentive to boost their own bargaining power by acquiring means of defense or by pre-committing not to pay off extortionists (and this is quite costly as well: it means that negotiation can break down, and extortionists will then want to make good on their threats). The notion that extortion is avoided if contracts are "free from coercion" is not unproblematic. "Free from coercion" generally means respecting property rights. But how are property rights to be assigned in the first place? Should a railroad operator have the "right" to throw sparks onto a nearby field, or should the field owner be allowed to forbid trains from passing near her property unless they are fitted with a costly spark preventer? Note that here, either of the agents may see

1roystgnr12y

Enforcing contracts if and only if they had the informed consent of all contracting parties doesn't sound "amoral", exactly - that seems like a very limited subset of the space of all possible contracts, even, with the remainder of that space treated as "immoral".

4fubarobfusco12y

Right, but that wasn't the sort of thing I was talking about. I won't voluntarily help enforce a contract in which a starving person sells their eyeballs¹ to a rich person in exchange for a sandwich, even if the parties have informed consent. I don't think most other people in my society would, either; and I expect that if such a contract came before a judge or jury, it would be thrown out as unconscionable — a moral judgment. ---------------------------------------- ¹ Literally; not in the metaphorical sense used by bad advertising companies.

-1roystgnr12y

I already understood you; let me try a similar example until the converse is true. Most other people in my society would help enforce a contract in which a young person is drafted to serve in the military or taxed to give money to the elderly without his consent. A libertarian would not - a moral judgment. Your claim that the "freedom of contract" view is "amoral" ignores all similar moral decisions. You could make a good case for "immoral", based on a morality that weighs the dangers of military inadequacy or the suffering of transfer payment recipients more highly than an individual's right to control their life or money, but that exposes the fact that people have to choose a system of morality and that the ones who believe in "freedom of contract" have indeed already started to do so. But that was (I thought) just a nitpick about vocabulary. Ironically your example weakened your excellent argument slightly. Asking why society should enforce contracts which society wouldn't consent to enforce was a very good point, but in your hypothetical case (and now, I see, many others) would it matter? Rich men can afford to enforce their own contracts; in practice all the government and society would need to do would be double-checking that they didn't have cause to interfere. When defining "cause" in this hypothetical it would still be important to specify the underlying system of morality; although there are certainly many decision theories that make it impossible for Parfit's hitchhiker to precommit to pay, IIRC most consider that to be a bug.

It is not my impression that the draft or taxation operate on the basis of contract. ("Social contract" is a fiction — we're talking here about actual contracts, entered into by two contracting parties, and enforced by a third; as in the example of marriages in the original post.) Sorry, I think we are using "amoral" to mean different things. It was not my intention to say "libertarians are amoral" but rather that the absolute-freedom-of-contract position demands that the enforcing party not be moved by any objections to any possible contract terms. I thought this was perfectly clear; apparently not. In order for parties A and B to have "absolute freedom of contract", the enforcing party C (e.g. the state — or a cooperative, the neighbors, a Nozickian private agency, or what-have-you) must ask no questions beyond "Is this really a contract between A and B?" If so, enforce it; if not, don't enforce. If C is ever moved by objections to contract terms and ever declines to enforce, then A and B do not have absolute freedom of contract with respect to C's enforcement. Only in extreme cases.

-11[anonymous]12y

-12[anonymous]12y

[-]MixedNuts12y130

Standard argument: Wouldn't be enforced. Powers of attorney get ignored all the time - I don't have numbers but anecdotes abound. Even things that are identical to marriage in all but name don't get enforced: in New Jersey in 2007, at least 14% of civil unions aren't recognized by employers. And that's inside the country which recognizes them; how do private marriage contracts work for immigration purposes?

6Manfred12y

Though on the other hand, most people won't know that. Unenforceable contracts are in fact a totally standard tool to try and get people you have power over to do what you want.

4[anonymous]12y

Why not? If you remove say the world marriage as proposed by say the authors, civil contract is all that is left. Edit: I'm surprised at the down voted, I'm pointing out that societal standards of enforcement do change.

[-]OrphanWilde12y110

This disregards the common-law policies on contract; namely, that contracts involving illegal activity are unenforceable. I don't believe most people, libertarian or otherwise, who regard government as the arbiter of contracts, would see such contracts as you mention as -being- enforceable.

A second safety feature in contracts is default, again a common-law policy, which states that contracts -can- be ignored, for a monetary penalty equal to the value of the contract, less the value already attained, by the non-defaulting party.

These two common-law concepts act as necessary safety valves on any potential contract. (They can also be the source of some injustices, however.)

5[anonymous]12y

People have strong disagreements about what should and should not be illegal. Libertarian arguments can be used to legalize a lot of activity currently considered illegal. Vladimir_M points out that this argument is used almost exclusively to drive ideological agendas.

[-]GLaDOS12y60

Are you sure you are being consistent here considering what you have noted about gender/sexuality related discussions on this forum? Or do you just think that this is less true of marriage than similar subjects. Perhaps because so few people here are married?

[-]ygert12y60

(Suppose for example that a couple voluntarily sign a marriage contract stipulating death penalty, or even just flogging, for adultery. How can one oppose the enforcement of this contract without renouncing the libertarian principle?)

I want to talk about this. I do not feel that the contract described here is unacceptable. I find it strange to come to terms with how it might be the case. Would someone mind enlightening me about why they would feel it unethical to engage in a contract of the sort?

(By the way, I understand the practical objections to such... (read more)

To probe intuitions further. Should it be illegal to sign a contract with someone to assist in your suicide?

2Oligopsony12y

Given the possibility of coercion, it should be at least very heavily regulated. (But how involved can such a procedure be that you'd need to hire someone on a contract basis? In a sane society you'd petition for barbituates, be investigated to ensure you aren't being coerced, and receive them. I'd hate to live in a world where I couldn't even afford my own suicide.)

3[anonymous]12y

You might be too disabled to to perform your own suicide. Reliable and safe suicide can be hard to do, see Sister Y's blog for more discussion of this. Even if you make it so the state is the one acquiring the service on behalf of the patient, someone will have as part of his contract assisting suicides.

1[anonymous]12y

At this point I would like to quote: I find it amusing to note that despite us having the benefit of hindsight in the form of quite a bit of information about their civilization and the advantage of great advances made in the sciences since then, ancient Romans where still saner on some things than we are. Also Robin Hanson might want to review his ancient Roman law for insight into how a future of competing emulated human minds might look like. If I bought an em that chaotically self-destructs in less than six months of subjective time I would very much like a refund too.

0Oligopsony12y

Wouldn't it be more surprising if we were saner than some society in every single respect? But yes.

1loup-vaillant12y

First, my opinion: I think some contracts should not be enforced (or allowed to be made in the first place), precisely because of the practical consequences you cited. For instance, if you allowed people to enslave themselves, some would, and some of those will live a crappy life because of a mean master, and I don't like that. Now I don't think there is any deeper moral principle. It's just simpler to act indignant and stick to one-sided, simple arguments. If you argue about the badness of some consequences, you also have to accept any goodness that could arise. And then you need to decide if the Bad out-weight the Good. And then to convince others of your conclusion. Such a reasonable way of doing things is completely demolished by one-sided soldier arguments in some settings (typically when one has to convince a wide audience in less than a minute).

If people enter into such contracts, it's because they prefer to be in them. Why do your preferences override theirs?

People want to defect in a one-shot prisoner's dilemma, but would be better off if there was a law against it.

0blacktrance12y

I don't see how this is relevant. People would prefer not to be able to defect in a prisoner's dilemma - that's their own preference.

If slavery contracts are banned, work-for-money contracts will be offered instead. People who prefer slavery to starvation will prefer that to slavery, and so are better off despite the removal of an option they previously took. For further detail of how this sort of thing works, see here

But not everyone who would have gotten a slavery contract would get a work-for-money contract. Also, while one side (the slaves/employees) are being made better off, the other side is being made worse off.

At the cost of all of the people who prefer slavery>starvation>work. What makes people with that preference order inherently irrelevant?

Their rarity.

How large of a minority is irrelevant to oppress? If someone develops a nonsensical (to you) value function, does that make them irrelevant?

First, I challenge that. They may not be fully aware of what they are getting into. Second, the very possibility of such contracts could bend the society into generalizing them. For instance, if voluntary slavery is permitted, it might become the only way, but for an elite few, to get a job. Why not? My preferences do take other's preferences into account, to the point I would mostly let them live their lives in peace. But the buck has to stop somewhere. For instance, when 2 persons' preferences conflict (like, they are at war), my preferences says something about acceptable resolutions of the conflict. Having both parties risk their lives is not acceptable. I would strip them of their weapons if I could.

0ygert12y

OK. I can accept that. In the theoretical sense I think that basic libertarian principles are extremely obvious, and it's strange to me that people refuse them out of hand. Of course I know that in practice you also have to weigh the potential negative effects, and sometimes that does outweigh the value of giving people freedom of choice, and sometimes it doesn't. This seems to be the criteria that should be used when deciding if to ban things like this. As such, I do agree with what you are saying. In particular, your point about why people don't in practice weigh the possibilities in this way seems sadly accurate.

1maia12y

I don't know about anyone else, but I don't think anyone should be killed for being adulterous, even if they entered into a contract that stipulates such. Flogging I don't care as much about.

5Desrtopa12y

Even if the individuals in question want badly not to be adulterous, but the only way they expect to be able to hold themselves to that commitment is by the knowledge that their life literally depends on it?

[-]SisterY12y130

Possibly more realistically, the person may realize - from observing the world - that the only way he or she will be able to maintain monogamy is through social (not just government) enforcement of the marriage contract - not that his or her life literally depends on it, but that his or her social death will result from violation of the contract. And people care a whole lot about social death. This aspect of social support of marriage is already gone from all but a few recent immigrant communities in the United States. Even if marriage were government-enforced for reals, collusion (pretending grounds for divorce existed) and stretched notions of "cruelty" were already common before no-fault swept the nation. The government maybe slowly changes its enforcement toward the enforcement of whatever limping modern non-tribal community happens to exist.

Anyway. People are sometimes harmed by getting extra choices. And people are sometimes harmed by losing choices.

[-]Multiheaded12y50

At some point, this thing which does not seem like coercion, becomes a clear case of coercion. When the power used to gently nudge is absolute, no matter how slight the suggestion, its victim remains intimidated by the knowledge of the unlimited power behind it. Thus, because government necessarily sits in a position of almost unlimited power over the individual, any lifestyle suggestions they make are not compatible with libertarian ideals.

Variations of this idea have been running through my head for the last few months as I've been trying to re-evalua... (read more)

2[anonymous]12y

They aren't from what I read. This article cites several essays. To understand what Vladimir is commenting on I suggest you follow the links to the original thread.

3Multiheaded12y

Why, I've read it and understand what he's commenting on. I've seen arguments for unlimited enforcement of all private contracts building on the framework of "property rights" - for example, in Moldbug's idea of "Pronomianism". I agree with Vladimir that 1) this would be the "consistently libertarian" position, and that 2) it's kind of batshit insane (to put it mildly) and that attempting to put it into practice would terrify and outrage practically everyone. Therefore, I find it more meaningful to call the authors' platform "liberal"/"progressivist" rather than "libertarian". The title of "Libertarian paternalism" in particular sounds like it would involve various social-conservative points, explicit support for traditional marriage, etc - but it doesn't. I'd bet that the authors were simply aware of how massively uncool/conformist/stale calling something "liberal" or "progressive" would sound nowdays, so they slapped a mostly arbitrary level on a system of (rather reasonable, hardly novel) "Prog" policy suggestions.

To put it another way:

9fubarobfusco12y

As I hinted above, the "right" being asked for here is (in libertarian terminology) a positive right to others' help in enforcing the contract ... against those others' objection that they would not willingly choose to help enforce it. In other words, the question that may need an answer is not "Why don't I have the right to enter into such a contract?" but "Why should anyone help the other party enforce it against me?" An ideological "freedom of contract" answer runs into an opposing "freedom of association" response.

Because I ask them to. Indeed why not outsource this? Why not have the state allow people to pay non-government agencies to enforce contracts the government does not wish to.

4Multiheaded12y

State monopoly on legitimate violence is a Schelling point for all modern states, both autocracies and democracies. If you break it up, the problem of distributing the right to use violence so that it wouldn't just lead to tyrannies and chaos must practically be solved from scratch for the modern world.

De facto states do not have monopoly on violence. Also de jure private security firms do have some room for violence. Also there is the minor issues of Government being this huge amorphous blob, that agents and institutions should have access to violence if and only if they belong to this strange set doesn't seem like necessarily something that helps to prevent tyrannies and chaos. Also choosing between many small tyrannies and one big one I see good pro-liberty arguments for the former.

2Decius12y

De jure security firms are specifically licensed for the violence that they do.

Most of the examples given are things governments already do enforce in other types of contracts. And many are things governments used to enforce in marriage contracts.

2fubarobfusco12y

Can you give an example of a non-marriage-related contract that specifies a penalty for one party having sex with someone other than the other party? I'm aware of employment contracts that specify termination of contract for disreputable sexual behavior, but that's not really the same thing. Possibly the closest thing might be employment contracts for porn actors which require them to use protection against STDs, but I'm not sure if those apply to their non-professional sex acts. Yes, policies change; as do societal norms. Governments once enforced all sorts of conditions on marriage that are contrary to social norms today. For instance, in many Western societies a man could have his wife prosecuted and punished by the state with physical violence for being unsubmissive to him. This is no longer the case — and it certainly cannot be altered by contract, since it was a criminal matter ... and since the punishment required a society willing to participate in, e.g., mocking and throwing filth at the condemned "scold". The institution of marriage has changed in ways that cannot be reverted by mere consent of the spouses, since the surrounding society has changed. Moreover, governments reject many sorts of claims on enforcement power which they once accepted, both within and beyond contractual matters. Governments in the West used to enforce slavery as a property right; they no longer do so — does that mean that they no longer enforce property rights at all? Similarly, they once enforced racially discriminatory covenants on real estate, but no longer do so — does that mean that they no longer enforce any covenants on real estate? They used to enforce the right of fathers to marry off their daughters against the daughter's wishes; they no longer do so — does that mean they do not enforce any parental rights? In each case, no; rather, the enforcing party is picking and choosing which sorts of claims to enforce, on the basis of what I've called moral-like (see above; no

Actually I don't see much of a problem with fathers marrying off their daughters against their wishes because arranged marriages work out quite well by most metrics. And yes fathers losing that right was part of a grand march in taking away most parental rights, in may ways it represents the crossing of an important Schelling fence. Today's exist only as very weak things since children are now legally de facto property of the state not parents.

You seem to be mistaking arranged marriage for forced marriage. This is a grievous error of fact about human social practices; it is not a difference of opinion or values.

The difference between arranged and forced marriage is mostly one of degree. Indeed many studies trying to measure the outcomes of arranged marriages don't really have good ways to screen out forced marriages, some don't even attempt to. I think historically most Western people who used the legal right of forced marriage where closer to the arranged part of that spectrum. But you know what? I just realized that I simply assumed the latter was the case without good reason. Which tells me that I should drop the conversation and continue it another time, when I'm perhaps more clear headed and have done some more study of history.

3Decius12y

If the difference between arranged and forced marriage is one of degree, than the difference between employment and slavery is also one of degree.

I don't think this carves reality at the joints. Not only are border cases hard to tell apart in many societies most of the instances cluster around where we would deem border cases.

-2Decius12y

Arranged marriages, like work, often involve driving external factors that don't amount to 'coercion'. Forced marriages, like slavery, always involve coercion. (The definition of coercion is the border dispute here). Do you concur? Or is there a continuum of marriage where "It sure would be nice to have grandkids someday" is only a matter of degree different from "If you refuse you will be stoned to death" or even "You have married this person."

6Eugine_Nier12y

What about a more realistic scenario: if you refuse, you'll be disinherited?

-4Decius12y

More realistic than reality? All four of those are things which currently happen. If there is a continuum, they are all on it. I would put 'You will not gain a legal right to the property which I currently have the legal rights to.' on the arranged side rather than the forced side. Where would you put it, assuming a qualitative difference between the two (or more) categories?

2GLaDOS12y

It isn't?

Is slavery immoral? Is employment immoral? Can morality be a matter of degree?

4GLaDOS12y

Probably. Possibly. Yes.

Can you describe something which is a difference of kind instead of a difference of degree?

-1[anonymous]12y

Must ... resist .... urge to troll ... by steel maning that. :)

4TimS12y

What are you talking about? As a lawyer, I think I qualify as a relevant expert.

I said that I think a plausible steel man of the position that the abolition of slavery was closely tied to the abolition of other kinds of private property can be made. Not obviously from a legalistic perspective but from a moral and cultural one. But that I think that would be trolling.

0Multiheaded12y

I also think it's plausible. I don't think that would be trolling, I think that would be a highly useful way to examine one's values and ethics. Including your own views. Consider the hardcore "reactionary" position on such relations of dominance and social control: http://phdoctopus.com/2012/03/02/liberty-for-the-few-slavery-in-every-form-for-the-mass-the-deep-roots-of-the-birth-control-freakout/ And the "compassionate conservative" one (from an interview with a British author whom you've linked to, Roger Scruton): http://www.guardian.co.uk/theguardian/2010/jun/05/roger-scruton-interview As you can see, the latter view is inconsistent - as you have said yourself many times before, rallying against the futility and weakness of "mere conservatism", with its aquiescence to nearly any reform. The former view - no government or outsider should restrict a subject's control over his inferiors and subordinates, to do so in any one case is to threaten the whole structure of hierarchy and dominance - certainly seems to be a stable Schelling point. And to prevent any drift from that point, you'd need a ruthless zero-tolerance policy of enforcement. So what is your judgment here? Any bullets you'd bite on the subject of hierarchy and dominance? ^ (1) The line in italics, although excluded in the linked quote, appears in the source text (Cannibals All: Slaves Without Masters). I assume that you can recognize the significance. Universalism - as a theistic creed or as a secular one - really did make tyrants "fear for their domination."

I was thinking of making a strong pseudo-Marxist argument in this direction, so I'm not sure how relevant it would be to my own views. A different plausible Schelling point is the preservation of existing hierarchies but opposing the creation of new ones. Note that Americans spoken of had previously rejected the hierarchy of aristocracy without rejecting in general stratification by class, wealth, education, nationality, beauty, ancestry, race, gender, merit or ability. Some of these are preserved to this day. Overall a society without hierarchies is something that I doubt would be optimally matched to human values and I might even find disturbing. At the very least it would have high costs. I however need to think about these issues more before committing myself to biting any bullets.

He might actually be right homophobia arising as an adaptive norm in past societies if homosexually is indeed caused as a side effect of a mother's infection with a pathogen.

0[anonymous]12y

I was thinking of making a strong pseudo-Marxist argument in this direction, so I'm not sure how relevant it would be to my own views.

You should note this is a left-wing take on a a reactionary position, not writing done by an actual reactionary. And that this is a left-wing take on the conservative positions of the author, not a summary written by the author himself. You will find plenty of ungood thoughts and writings in the original sources no need to add an additional layer of interpretation to them.

0A1987dM12y

Ah. (I had taken “by steel manning that” to be modifying “resist” rather than “troll”, and couldn't make sense of it.)

1GLaDOS12y

It is a libertarian approach to doing progressivism. Those have been tried in the past, most notably much of the progressivism in the first half of the 19th century was libertarian in approach, but I would argue they have been systematically underused at least in the 20th century. Not that I'm a dirty prog mind you. (~_^)

[-]magfrump12y20

Is there no room in this dilemma for locally libertarian opinions?

I don't feel like I have a specific vision of what ideal policies look like, nor do I believe that people should be able to enter into contracts with death penalties, but I do believe that on the margins almost every existing policy would tangibly benefit in its stated purpose from becoming more flexible.

I will acknowledge the possibility that my brain is lying to me about how I actually feel, but almost every policy change I strongly endorse is libertarian in the sense of reducing interventions and full libertarian consequences squick me out.

This is a political subject. Reasonable proposals are prohibited- you have to pick one or more extremes.

[-]DanArmak12y20

Such a contract has no good reason to be limited to just describing traditional marriage or even having that much to do with sex or even raising children

Incompatible values. Some people hold values that say e.g. having sex outside marriage is evil in and of itself. And of course to qualify, "marriage" has to have certain properties that they will recognize. Similarly, some people do not accept (in a values sense) the separation of church and state.

Some people who object to widening the scope of what is legally considered "marriage" d... (read more)

[-]MileyCyrus12y20

You should start a blog.

7[anonymous]12y

I don't think that would be a good idea. I'm unhappy enough with my Twitter feed. Though I do want to encourage people to read more blogs by LWers. I make lots of posts referencing material mostly outside the site to counteract what I think is a big problem of the community. In any case this is a community blog devoted to refining the art of human rationality. I don't think this is inappropriate on the Discussion section considering what used to be discussed on Overcoming Bias.

[-]Eugine_Nier12y10

Jennifer Morse has a series of articles about why this won't actually work here, here, and here.

Here are some quotes that should give you an idea of her point.

Disputes that arise between the contracting parties must be resolved by an overarching legal authority. Let’s face it: that overarching legal authority always will be some agency of the government. “Getting the government out of the marriage business” amounts to refusing to define marriage on the front end. But the state will end up being involved in defining what counts as a valid marriage or pare

... (read more)

[-]Desrtopa12y10

The relation to private marriage contracts is a bit tangential, but there is one element of some prenuptial agreements that I'd like to see become a standard element of the marriage institution. I think it would be much more sensible if divorce settlements in cases where only one spouse is an income earner were capped at some level based on costs of living, in such a way that nobody would be able to become rich by marrying a rich person and then divorcing them.

I've spoken to a number of people who've argued that some rich people do some really reprehensib... (read more)

[-]DanielLC12y10

In any realistic human society, there are huge limitations on what sorts of contracts you are allowed to enter

If you shouldn't be allowed to sign a conventional contract with those terms, why would you be allowed to enter a marriage on those terms? Are there any particular terms marriage should allow but contracts should not?

Suppose for example that a couple voluntarily sign a marriage contract stipulating death penalty, or even just flogging, for adultery.

I've heard there are prenups that say that if you commit adultery, you pretty much lose all your money. Unless you're very poor, that's probably worse than flogging.

8SisterY12y

Re: "prenups": did you happen to read Konkvistador's links and the other comments explicitly discussing, with citations, the (lack of) enforceability of such premarital agreements? I.e., citation needed. ;)

[-]danlucraft12y00

"In particular, when it comes to marriage, outside of the aforementioned libertarian fringe, there is a total and unanimous agreement that marriage is not a contract whose terms can be set freely, but rather an institution that is entered voluntarily, but whose terms are dictated (and can be changed at any subsequent time) by the state."

If true, this is a new thing. In the past the terms were dictated by the church. I doubt you will find unanimous agreement today that the views of the church are irrelevant to marriage. So perhaps the total and un... (read more)

[-]peterward12y00

Several thoughts:

a) Isn't the solution to qualify the "libertarian argument" by limiting it's scope to "any terms that don't break the law"? (Of course "libertarian" is a poor adjective choice since a legal contract very much relies on a powerful state backing the enforcement of any breach to mean anything--the concept of a libertarian contract is an oxymoron.)

b) What do suspected ulterior motives on the part of those advancing the "libertarian argument" or the fact that sincere libertarians are a fringe minority ha... (read more)

[-]Douglas_Knight12y00

Why does state recognition of marriage matter so much to people?
Sure, there are some benefits, the most important of which in my mind is joint custody of children (which is also a good justification of state involvement in marriage), but it appears to matter a lot more than the state involvement justifies.

Why do gays wait for state recognition? Why don't they just hold a wedding and call themselves married, without state recognition or even a private contract? The only time I've ever heard of this is Colin Turnbull.

Supposedly, when the Renhe government pol... (read more)

5Nornagest12y

I can think of two big indirect benefits here. The first is perceived social legitimacy, which I don't think I need to elaborate much on: government recognition of a form of marriage implies formalized social approval of that type of relationship; "husband" and "wife" carry powerful private associations beyond "long-term girlfriend/boyfriend"; and in most modern societies the state's entangled enough with the institution of marriage that I'd expect a purely private claim to marriage status to feel like a cheat to many people. The second seems more interesting. One of the reasons that "wife/husband" legitimizes a relationship and carries implications of stability, status, etc. is that it's potentially expensive: not so much in the sense of initial cost (which is usually substantial, but also almost entirely private), as of dissolution cost. If you get married, at least one party to the marriage is signing up for an institution that they can reasonably expect to extract a lot of money if the relationship is ever dissolved: legal fees, alimony, et cetera. (Child support used to fall into this category too; not so much anymore, but the previous state of affairs probably still contributes to the social position of marriage.) The existence of these costs provides a very powerful and almost universally recognized signal of commitment, and of all the personal qualities that go with it. And many societies use that to informally gate positions: I've heard, for example, that it's hard to achieve higher officer ranks in the US military if you're not married, and similar conditions apply to at least some of the corporate hierarchies I've been exposed to. But most of these costs vanish if the union isn't legally recognized, and I'd expect a good chunk of the signaling value they carry to vanish with them.

6[anonymous]12y

Why is this? In Slovenia I see non-government institutions doing such marriages all the time and being taken seriously by others. The institutions in question being Churches, since religious marriages are not legally recognized here. Some people only do the "Church wedding", most also do the "State wedding". I don't see a strong reason why other non-government institutions couldn't carry the same kind of social legitimacy.

3NancyLebovitz12y

There are other issues-- marriage carries a bunch of legal implications which are frequently to the advantage of the married couple. Offhand, there's hospital visitation, default inheritance, and immigration rights.

2Nornagest12y

Right. Douglas_Knight seemed already to be taking direct benefits like these into account, so I was looking for indirect ones: situations where words like "spouse" never appear in a statement of policy, but social benefits from being married accrue anyway for less obvious reasons.

Said social legitimacy is itself frequently also legally enforced, e.g., there having been cases of Catholic adoption agencies being shut down because they refuse to let gay couples adopt.

[-][anonymous]12y00

Since it is relevant to the subject I'd like to second a recommendation made by CharlieSheen:

I found this article interesting overview of examples of unintended consequences of past changes, that makes a case for being very cynical of this particular kind of argument:

A Really, Really, Really Long Post About Gay Marriage That Does Not, In The End, Support One Side Or The Other

[This comment is no longer endorsed by its author]Reply

[-]pleeppleep12y-30

It seems to me the problem here is that the private contracts would be enforced in the hypothetical model. Libertarians seem to propose that the legal benefits of marriage as opposed to the arbitrary spiritual components are the aspect of marriage to be agreed upon. I disagree.

I think that people should be allowed to create private contracts for any issue, but only if those contracts are not enforced. Both parties must remain willing participants throughout the process. Also, if the state deems any contracts unacceptably offensive, or contrary to public in... (read more)

You realize that you can't quite call something a contract if it is not enforceable? The point of contracts is precommitment. What good would the kind of "contract" you describe bring?

-2pleeppleep12y

Freedom to make any sort of arrangement as long as all parties are willing. A "contract" would be a formal agreement. If you bring force into the mixture you'll end up with more problems than if you don't. You can't have everyone and their grandmother making arbitrary agreements and then using state power to coerce others into following through, so let them make arbitrary agreements and sort it out amongst themselves. Otherwise you get as much injustice as if you'd just allowed the government to dictate your affairs on a whim.