Jennifer Roback Morse: Marriage and the Limits of Contract

Years ago, I attended a Liberty Fund seminar in which Jennifer Roback Morse was one of the faculty. The latest edition of Policy Review magazine contains an article by her. Here are some excerpts:

Marriage is a naturally occurring, pre-political institution that emerges spontaneously from society. Western society is drifting toward a redefinition of marriage as a bundle of legally defined benefits bestowed by the state. As a libertarian, I find this trend regrettable. The organic view of marriage is more consistent with the libertarian vision of a society of free and responsible individuals, governed by a constitutionally limited state. The drive toward a legalistic view of marriage is part of the relentless march toward politicizing every aspect of society…

My central argument is that a society will be able to govern itself with a smaller, less intrusive government if that society supports organic marriage rather than the legalistic understanding of marriage.

A NATURAL INSTITUTION

Libertarians have every reason to respect marriage as a social institution. Marriage is an organic institution that emerges spontaneously from society. People of the opposite sex are naturally attracted to one another, couple with each other, co-create children, and raise those children. The little society of the family replenishes and sustains itself. Humanity’s natural sociability expresses itself most vibrantly within the family. A minimum-government libertarian can view this self-sustaining system with unadulterated awe.

Government does not create marriage any more than government creates jobs. Just as people have a natural “propensity to truck, barter and exchange one thing for another,” in Adam Smith’s famous words from the second chapter of The Wealth of Nations, we likewise have a natural propensity to couple, procreate, and rear children. People instinctively create marriage, both as couples and as a culture, without any support from the government whatsoever…

In every known society, communities around the couple develop customs and norms that define the parameters of socially acceptable sexual, spousal and parental behavior. This culture around marriage may have some governmental elements. But that cultural machinery is more informal than legal by far and is based more on kinship than on law. We do things this way because our parents did things this way. Our friends and neighbors look at us funny if we go too far outside the norm.

The new idea about marriage claims that no structure should be privileged over any other. The supposedly libertarian subtext of this idea is that people should be as free as possible to make their personal choices. But the very nonlibertarian consequence of this new idea is that it creates a culture that obliterates the informal methods of enforcement. Parents can’t raise their eyebrows and expect children to conform to the socially accepted norms of behavior, because there are no socially accepted norms of behavior. Raised eyebrows and dirty looks no longer operate as sanctions on behavior slightly or even grossly outside the norm. The modern culture of sexual and parental tolerance ruthlessly enforces a code of silence, banishing anything remotely critical of personal choice. A parent, or even a peer, who tries to tell a young person that he or she is about to do something incredibly stupid runs into the brick wall of the non-judgmental social norm.

STATE IMPARTIALITY IN A FREE SOCIETY

The spontaneous emergence of marriage does not imply that any laws the state happens to pass will work out just fine. And it certainly does not follow that any cultural institutions surrounding sexual behavior, permanence of relationships, and the rearing of children will work out just fine. The state may still need to protect, encourage or support permanence in procreational couplings just as the state may need to protect the sanctity of contracts...

No libertarian would claim that the presumption of economic laissez-faire means that the government can ignore people who violate the norms of property rights, contracts, and fair exchange...all libertarians agree that enforcing these rules is one of the most basic functions of government... Likewise, formal and informal standards and sanctions create the context in which couples can create marriage with minimal assistance from the state.

Nor would a libertarian claim that people should be indifferent about whether they are living in a centrally planned economy or a market-ordered economy...It does not follow that impartiality requires the economy to reflect socialism and capitalism equally. It simply can’t be done...The debate between socialism and capitalism is not a debate over how to accommodate different opinions, but over how the economy actually works...Somebody in this debate is correct, and somebody is mistaken. We can figure out which view is more nearly correct by comparing the prosperity of societies that have implemented capitalist principles with the prosperity of those that have implemented socialist principles.

There are analogous truths about human sexuality. I claim the sexual urge is a natural engine of sociability, which solidifies the relationship between spouses and brings children into being. Others claim that human sexuality is a private recreational good, with neither moral nor social significance. I claim that the hormone oxytocin floods a woman’s body during sex and tends to attach her to her sex partner, quite apart from her wishes or our cultural norms. Others claim that women and men alike can engage in uncommitted sex with no ill effects. I claim that children have the best life chances when they are raised by married, biological parents. Others believe children are so adaptable that having unmarried parents presents no significant problems. Some libertarians seem to believe that marriage is a special case of free association of individuals. I say the details of this particular form of free association are so distinctive as to make marriage a unique social institution that deserves to be defended on its own terms and not as a special case of something else.

One side in this dispute is mistaken. There is enormous room for debate, but there ultimately is no room for compromise. The legal institutions, social expectations and cultural norms will all reflect some view or other about the meaning of human sexuality. We will be happier if we try to discover the truth and accommodate ourselves to it, rather than try to recreate the world according to our wishes.

WHAT'S NATURAL

...When Adam Smith’s modern follower Friedrich Hayek championed the concept of spontaneous order, he helped people see that explicitly planned orders do not exhaust the types of social orders that emerge from purposeful human behavior. The opposite of a centrally planned economy is not completely unplanned chaos, but rather a spontaneous order that emerges from thousands of private plans interacting with each according to a set of reasonably transparent legal rules and social norms.

Likewise, the opposite of government controlling every detail of every single family’s life is not a world in which everyone acts according to emotional impulses. The opposite is an order made up of thousands of people controlling themselves for the greater good of the little society of their family and the wider society at large...

SOCIAL COSTS OF PRIVATE CONFLICTS

The demand that the government be neutral among family forms is unreasonable. The reality is that married-couple families and childless people are providing subsidies to those parents who dissolve their marriages or who never form marriages. Libertarians recognize that a free market needs a culture of law-abidingness, promise-keeping, and respect for contracts. Similarly, a free society needs a culture that supports and sustains marriage as the normative institution for the begetting, bearing, and rearing of children. A culture full of people who violate their contracts at every possible opportunity cannot be held together by legal institutions, as the experience of post-communist Russia plainly shows. Likewise, a society full of people who treat sex as a purely recreational activity, a child as a consumer good and marriage as a glorified roommate relationship will not be able to resist the pressures for a vast social assistance state. The state will irresistibly be drawn into parental quarrels and into providing a variety of services for the well-being of the children...

THE NAKED INDIVIDUAL

The alternative to my view that marriage is a naturally occurring pre-political institution is that marriage is strictly a creation of the state. The Supreme Court of Massachusetts notoriously asserted this position. If this is true, then the state can recreate marriage in any form it chooses. Implicit in this view is the decidedly non-libertarian view that the state is the ultimate source of social order…

This statement brings the statist worldview front and center. Under this vision, the most basic relationships are not between husband and wife, parent and child, but between citizens and state. The family is not the natural unit of society. The most basic unit of society is not even the libertarian individual, embedded within a complex web of family, business and social relationships.

Rather, the natural unit of society is the naked individual, the isolated individual, standing alone before the state, beholden to the state, dependent upon the state…

The libertarian preference for nongovernmental provision of care for dependents is based upon the realization that people take better care of those they know and love than of complete strangers. It is no secret that people take better care of their own stuff than of other people’s. Economists conclude that private property will produce better results than collectivization schemes. But a libertarian preference for stable married-couple families is built upon more than a simple analogy with private property. The ordinary rhythm of the family creates a cycle of dependence and independence that any sensible social order ought to harness rather than resist…

But for this minimal government approach to work, there has to be a family in the first place. The family must sustain itself over the course of the life cycle of its members. If too many members spin off into complete isolation, if too many members are unwilling to cooperate with others, the family will not be able to support itself. A woman trying to raise children without their father is unlikely to contribute much to the care of her parents. In fact, unmarried parents are more likely to need help from their parents than to provide it.

In contrast to the libertarian approach, “progressives” view government provision of social services as the first resort, not the last. Describing marriage as a “privatization scheme” implies that the most desirable way to care for the dependent is for the state to provide care. An appreciation of voluntary cooperation between men and women, young and old, weak and strong, so natural to libertarians and economists, is completely absent from this statist worldview.

This is why it is no accident that the advocates of sexual laissez-faire are the most vociferous opponents of economic laissez-faire. Advocates of gay marriage are fond of pointing out that civil marriage confers more than 1,049 automatic federal and additional state protections, benefits and responsibilities, according to the federal government’s General Accounting Office. If these governmentally bestowed benefits and responsibilities are indeed the core of marriage, then this package should be equally available to all citizens. It follows that these benefits of marriage should be available to any grouping of individuals, of any size or combination of genders, of any degree of permanence.

But why should libertarians, of all people, accept the opening premise at face value? Marriage is the socially preferred institution for sexual activity and childrearing in every known human society. The modern claim that there need not be and should not be any social or legal preference among sexual or childrearing contexts is, by definition, the abolition of marriage as an institution. This will be a disaster for the cause of limited government. Disputes that could be settled by custom will have to be settled in court. Support that could be provided by a stable family must be provided by taxpayers. Standards of good conduct that could be enforced informally must be enforced by law.

Libertarians do not believe that what the government chooses to bestow or withhold is the essence of any social institution. When we hear students from Third World countries naively ask, “If the government doesn’t create jobs, how we will ever have any jobs?” we know how to respond. Just because the government employs people and gives away tax money does not mean it “created” those jobs. Likewise, the fact that the government gives away bundles of goodies to married couples does not prove that the government created marriage.

A FREE SOCIETY NEEDS MARRIAGE

The advocates of the deconstruction of marriage into a series of temporary couplings with unspecified numbers and genders of people have used the language of choice and individual rights to advance their cause. This rhetoric has a powerful hold over the American mind. It is doubtful that the deconstruction of the family could have proceeded as far as it has without the use of this language of personal freedom.

But this rhetoric is deceptive. It is simply not possible to have a minimum government in a society with no social or legal norms about family structure, sexual behavior, and childrearing. The state will have to provide support for people with loose or nonexistent ties to their families. The state will have to sanction truly destructive behavior, as always. But destructive behavior will be more common because the culture of impartiality destroys the informal system of enforcing social norms.

It is high time libertarians object when their rhetoric is hijacked by the advocates of big government. Fairness and freedom do not demand sexual and parental license. Minimum-government libertarianism needs a robust set of social institutions. If marriage isn’t a necessary social institution, then nothing is. And if there are no necessary social institutions, then the individual truly will be left to face the state alone. A free society needs marriage.

ADDENDUM I:

Paul Musgrave, of In the Agora blogsite, writes a critical review of this article, including these words:

…The article, though, is less a profound challenge to conventional thinking about morality, sexuality, and marriage than a smug reassertion of traditional beliefs dressed up in libertarian clothes…

What is most puzzling about Morse's libertarian argument is its traditionalist turn…

Such concerns, and others which will suggest themselves to the reader, demonstrate why Morse's article is, in addition to being theoretically and empirically unsound, a poor guide to the formulation of policy.

Read the entire posting to get the full extent of his argument.

Roback Morse responds . Since it can be difficult to access her April 12 posting, here it is:

I tried to make a libertarian case for social conservative positions on marriage, but some libertarians aren't having any part of it. First, here are the parts of my argument. Marriage is a natural, pre-political institution that has arisen spontaneously in every known society. I define marriage as society's normative context for having sex and for rearing children. The modern position is that society does not need ANY normative institution for either sex or child-rearing. Anything people happen to come up with is just fine: no particular sexual or family relationships should be privileged by the state, or by the wider culture.

Observing that marriage has taken different forms in different times and places does not in any way diminish the importance of this point. No society has ever claimed that sexual activity is a morally neutral activity. No society has ever been indifferent to the context in which children are raised. Until now.

This modern position is not sustainable, and it certainly can not be the foundation of a minimal government. Some forms of family are demonstrably better than others at raising mature adults who have the self-command necessary to keep a free society going. I would not have thought that this was a controversial point at this late date. The collapse of the family unit calls forth an increased demand for government services to support the family, both the dependent children, and the dependent elderly. This is no longer a theoretical possibility: it is an established fact, well-known to everyone who works in the area of marriage and family.

Paul Musgrave's listings of different forms of marriage does not answer the basic points: 1. Something like marriage, sustained by both legal and social institutions, has occurred in every known society, and 2. some work better than others. To claim that we are morally required to strike a posture of neutrality among forms of marriage, and child-rearing arrangements is to say that we are morally required to suspend judgments about which arrangements work well, and about what our goals are as individuals and as a society. This, I take it, is one of the points of the gay marriage debate. But if the argument is that justice requires us to be neutral, then there is really nothing left to debate.

I have argued many times for instance, that cohabitation is an extremely bad idea, even if it is perfectly legal. Saying that a choice is legally available does not help much in deciding whether it is in fact a good choice.

By the way, Judge Posner's economic analysis doesn't really do the job either. He offers an account of why socially acceptable standards of sexual conduct have evolved over time. Much of what he says is perfectly correct. However, his claim that modern sexual behavior is morally neutral is incomplete in an important way:

To the extent that as a result of economic and technological change, sex ceases to be considered either dangerous or important, we can expect it to become a morally indifferent activity, as eating has mainly become (though not for orthodox Jews and Muslims). At this writing, that seems to be the trend in many societies, including our own. This is not historically unprecedented; many cultures have been far more casual about sex than our own—ancient Greece, for example.

He underestimates the psychological costs of casual sex. And, he doesn't seem to realize that the sexual revolution has a moral code of its own. The sexual revolution itself tells us what we ought to consider a cost, and what we ought to consider a benefit. This is a well-known problem of utilitarianism as a moral theory. There are many situations in which costs and benefits are ambiguous in some way. In those cases, the "cost-benefit" calculus does not offer a complete answer, and has to supplemented by some other theory telling us what to consider a cost worth avoiding, and what to consider a pleasure worth pursuing.

For instance, women are supposed to discount any longing they might feel for permanence in a relationship. Men are supposed to suppress any feelings of jealousy that might indicate possessiveness. And any woman who has second thoughts about her abortion, well, she is supposed to keep those feelings to herself. Those feelings are costs people are required to bear as a badge of loyalty to the sexual revolution.

It is my observation that there are many "walking wounded" out there, people who have been harmed in various ways by the claim that sex is just for fun, and that no harm can come of it, as long as it is voluntary and properly contracepted.