Once people realised that marriage wasn’t enforceable, the marriage rate collapsed.
And frankly, I’d be creeped out by people who start a marriage for affection or companionship and already think about enforcing loyalty. It might be rational in the abstract, but signals many troubling things about the individual, such as low trust and an instinctively transactional view of relationships. (Marriages for economic reasons probably need a whole different set of norms, such as a historically seen unspoken tolerance for adultery.)
Well, perhaps I should start by saying that I don’t like distinction you draw between “affection and companionship” and “economic reasons.” The two are implicitly entwined. I will attempt to flesh out my position.
You don’t need marriage for “affection and companionship,” at least in the short term. You can just hang out. But most people want more than that. They want to build a life together. That involves making costly investments that will only bear fruit over time (e.g. buying a house, raising children, pension plans, etc). That involves making irreversible compromises—e.g. a shared circle of friends means you will have to be friends with people you wouldn’t otherwise be friends with, and not friends with people you would otherwise like to be; same goes with shared hobbies, etc. That involves specialization—perhaps one spouse will give up paid employment, or only work part-time. And so on.
But the problem with all these decisions is that they can lead to time-incompatible incentives. If Alice gives up work for a while to raise children while Bob focuses on his career, then ten years later Alice will be less pretty, less employable, and more dependent on Bob. Bob, meanwhile, can much more easily walk out on the marriage and start again. What’s to stop Bob reaping the benefits of Alice’s sacrifices, then checking out of the marriage?
And realistic people know that they won’t necessarily be thrilled with each other for every moment of their marriage. They will have rows, they will have disagreements, there will be times when the grass seems greener elsewhere. So you may find my attitude creepy, but I find your attitude evil—I think it’s quite wrong to go into a marriage without thinking about how to make sure it lasts. It’s partly about Alice making sure that Bob stays loyal to her, otherwise she’s wasting her time building a life with him. But it’s also about Bob(wedding) making sure that Bob(10 years later) stays loyal to Alice, otherwise he’s wasting his time. And vice versa.
So when you put the two sides of the problem together, you see it’s quite tricky. But at the same time, it’s super-rewarding if you can pull it off. Some people try to work around it to make the incentives less time-incompatible (e.g. women having children later) but this itself has its costs. The best solution is if Alice and Bob can bind their future selves to the marriage like Odysseus binding himself to the mast; that way they can both truly commit to the marriage, secure in the knowledge that the other party will too. And that will, paradoxically, mean that they create the best shared life together, and so will have least reason to leave the marriage.
But if, instead, Alice and Bob can’t bind their future self, then they can’t trust each other. Maybe Alice can trust Bob(wedding), but Bob(10 years later) is a different person—yes, people change during marriage, but not necessarily in ways their partner can control or predict. So because they can’t commit to the marriage securely, they won’t make the same kind of costly investments in their shared life. Which means their marriage will be worse, which means they will be more tempted to divorce, and so on in a vicious circle.
You don’t need marriage for “affection and companionship,” at least in the short term. You can just hang out.
Except that in pre-1970s cultures, er..., ‘affection and companionship’ outside marriage were, er..., frowned upon, to the point that when people were caught doing ‘affection and companionship’ they were sometimes made to get married at gunpoint by each other’s parents. (Hell, there even are anecdotes about 20freakin′14 I could tell for that matter, though not as bad as that.)
I’d be much less against unbreakable marriage if it was something the bride and groom spontaneously chose to do, clearly demonstrating tht they know what they’re doing, without any social stigma for not doing so.
That involves making costly investments that will only bear fruit over time (e.g. buying a house, raising children, pension plans, etc).
That’s also an argument against at-will employment: it is much harder to make plans for the future if my employer could fire me at any time for any reason or no reason. And yet people who oppose at-will employment tend to support divorce and vice versa. This suggests that their opposition is more due to Green vs Blue politics than on anything directly rational.
(My own view is that employment contracts which cannot be unilaterally terminated without just cause should be allowed but not required, and ditto with marriages; of course employees who want such a contract would probably end up paid less than those who are OK with at-will employment, for obvious demand-and-supply reasons.)
If Alice gives up work for a while to raise children while Bob focuses on his career, then ten years later Alice will be less pretty, less employable, and more dependent on Bob.
That sounds like a very bad idea to me: for example, what if Bob dies? or turns out to be a violent psychopath, even if he managed to hide it until the wedding? My inner libertarian says that so long as Alice freely chose to marry Bob that’s her own problem and she shouldn’t be protected from herself, but my inner paternalist isn’t that sure.
Bob, meanwhile, can much more easily walk out on the marriage and start again. What’s to stop Bob reaping the benefits of Alice’s sacrifices, then checking out of the marriage?
So, in terms of David Friedman’s classification of “love”, “trade” and “force” in The Machinery of Freedom, you say that “love” can’t be reliable in the long term, and I agree, but why is force better than trade? I think it may be better if Alice gave something to Bob so that he won’t want to check out of the marriage.
And realistic people know that they won’t necessarily be thrilled with each other for every moment of their marriage. They will have rows, they will have disagreements, there will be times when the grass seems greener elsewhere.
Yes. And yet some couple stay together for years, even decades, without getting married. Why can’t we trust present Alice and present Bob’s determination about whether the current crisis is temporary, rather than relying on past Alice and past Bob’s (probably unrealistic, especially given their age) assessment that all future crises would be?
Some people try to work around it to make the incentives less time-incompatible (e.g. women having children later) but this itself has its costs.
And yet places where women have children later don’t look that much worse to me. ISTM socioeconomical effects would largely swamp biological effects due to maternal age. (Search this for “maternal age”.)
Bob(10 years later) is a different person
Yeah, that’s not exactly an argument for making him accountable for Bob(10 years earlier)’s mistakes.
(Of course, I do not endorse the present-day US system where I hear someone who unilaterally walks out of a marriage can be entitled to a sizeable fraction of the other spouse’s property and future income.)
I don’t know who you’re arguing against, but it certainly isn’t me.
As I’ve stated Oh, at least a dozen times in this thread, I don’t want all marriages to be unbreakable. I just want people to be able to set the terms of their marriages as they see fit. No-one should be forced to remain in a marriage they don’t want to, but people who break marriage contracts should have to pay damages according to the terms of that contract, just as I can’t be made to live somewhere I don’t want to, but I will have to pay damages if I break the lease.
It isn’t force over trade. Contracts are trade. People must be held to the terms of their contract(or damages) or there is no trade.
So, you choose not to address the grandparent’s point about social stigma, and you want to add other ‘optional’ binding agreements which may themselves have social pressure pushing people to adopt them.
If you want people to find the process of divorce unpleasant, you can rest assured that most of them probably do.
So, you choose not to address the grandparent’s point about social stigma, and you want to add other ‘optional’ binding agreements which may themselves have social pressure pushing people to adopt them.
I didn’t think the grandparent made any point about ‘social stigma’ worth addressing. But, to be clear:
You don’t have any right to your neighbours’ good opinion.
If doing X would upset (or please) your neighbours, your choice (not) to do X is still voluntary. It just means you’re facing a trade-off. Welcome to adulthood.
More generally, I don’t think that social approval/stigma are bad things. They are the glue that binds civil society together. I can’t help notice that people when people speak negatively of social pressure, they never apply that critique generally. Should there be less social stigma against racism? Less social stigma against harassment? Suddenly, they’re not so sure.
If you want people to find the process of divorce unpleasant, you can rest assured that most of them probably do.
Actually, my focus is on making marriage more pleasant.
More generally, I don’t think that social approval/stigma are bad things. They are the glue that binds civil society together. I can’t help notice that people when people speak negatively of social pressure, they never apply that critique generally. Should there be less social stigma against racism? Less social stigma against harassment? Suddenly, they’re not so sure.
I’m a lot happier with social stigma when it attaches to acts and fades in proportion to time distance from the act, at some rate inversely proportional to severity, rather than attaching to immutable properties (whether or not they derive from some act). If I hypothetically get plastered and vomit strawberry Jello shots and half-digested guacamole all over my friend’s expensive Persian rug, chances are my friends are going to give me a lot of shit about it, and to be a little more cautious about inviting me to parties for a while… but I do not thereby become Gest the Puker, then and forevermore. Divorce has traditionally not had this property.
I might make an exception for crimes on the level of murder or rape, on the grounds that those are so severe that the stigma shouldn’t vanish in a normal lifetime. (Though on reflection, I doubt I’d think much less of him if my grandfather revealed that he’d killed a man in his youth.) But if we’re going to be treating marriage as a civil contract like any other, then breaking it is a civil matter, not something on that level.
If doing X would upset (or please) your neighbours, your choice (not) to do X is still voluntary. It just means you’re facing a trade-off. Welcome to adulthood.
For some value of “voluntary”, sure. Likewise, for some value of “voluntary” if I point a gun at you and ask you to do something, your choice whether to do what I ask or be shot is voluntary.
For better or worse, marriages as presently constituted in the West are not commercial contracts, but legal, social, and (optionally) religious arrangements conferring certain statuses on the partners in the eyes of the law, society, the relevant religious bodies, and each other. If you want a marriage contract such as you describe, there’s no point in complaining that marriage contracts as they exist are not that. It would take a legal historian to say authoritatively, but I am not sure they ever have been. There are various similarities and differences, but they are different entities.
What you would have to do instead, is design a contract such as you would wish a marriage contract to be, and consult with lawyers to see if it can be done in a manner that would be recognised by current law and practice as a valid contract incurring damages for its breach. If you find that it cannot be done, then you would have to agitate for such changes to the law as would be necessary to recognise it.
If that’s too big a job for one person, you could combine with others, register a domain—realmarriage.org is available—and begin a movement.
What you would have to do instead, is design a contract such as you would wish a marriage contract to be, and consult with lawyers to see if it can be done in a manner that would be recognised by current law and practice as a valid contract incurring damages for its breach.
Isn’t that what pre-nups are?
I don’t know to which extent the courts will be willing to enforce the “damages” portions, but pre-nups are valid contracts and fulfill much of the needs you’re pointing to.
Possibly, but pre-nups aren’t valid in some jurisdictions (the UK, for example).
Some other issues have occurred to me regarding the redesign of marriage contracts. If a marriage contract is to be simply an ordinary contract in the framework of contract law, then several issues arise, which Salemicus and others of like mind might not want. What, if anything is to distinguish a “marriage” contract from any other, if it can be drawn up between any two (or more) people of legal age to enter into contracts? If the contract says whatever the parties wish it to say, is there any longer such a thing as “marriage”? How shall “marriage” be defined for such purposes as widows’ pensions, the line of succession in intestacy, etc.?
Any contract can be varied or voided instantly by common agreement of the parties, because no third party has any legal standing to object. Thus marriage “contracts” of this sort would make divorce by mutual agreement instant. (If there is no other ground than decision to separate, it takes 2 years in the UK.)
The only alternative is to reform the law of marriage itself. This is not to say that it cannot be done, but it would be a long row to hoe.
Well, perhaps I should start by saying that I don’t like distinction you draw between “affection and companionship” and “economic reasons.” The two are implicitly entwined. I will attempt to flesh out my position.
You don’t need marriage for “affection and companionship,” at least in the short term. You can just hang out. But most people want more than that. They want to build a life together. That involves making costly investments that will only bear fruit over time (e.g. buying a house, raising children, pension plans, etc). That involves making irreversible compromises—e.g. a shared circle of friends means you will have to be friends with people you wouldn’t otherwise be friends with, and not friends with people you would otherwise like to be; same goes with shared hobbies, etc. That involves specialization—perhaps one spouse will give up paid employment, or only work part-time. And so on.
But the problem with all these decisions is that they can lead to time-incompatible incentives. If Alice gives up work for a while to raise children while Bob focuses on his career, then ten years later Alice will be less pretty, less employable, and more dependent on Bob. Bob, meanwhile, can much more easily walk out on the marriage and start again. What’s to stop Bob reaping the benefits of Alice’s sacrifices, then checking out of the marriage?
And realistic people know that they won’t necessarily be thrilled with each other for every moment of their marriage. They will have rows, they will have disagreements, there will be times when the grass seems greener elsewhere. So you may find my attitude creepy, but I find your attitude evil—I think it’s quite wrong to go into a marriage without thinking about how to make sure it lasts. It’s partly about Alice making sure that Bob stays loyal to her, otherwise she’s wasting her time building a life with him. But it’s also about Bob(wedding) making sure that Bob(10 years later) stays loyal to Alice, otherwise he’s wasting his time. And vice versa.
So when you put the two sides of the problem together, you see it’s quite tricky. But at the same time, it’s super-rewarding if you can pull it off. Some people try to work around it to make the incentives less time-incompatible (e.g. women having children later) but this itself has its costs. The best solution is if Alice and Bob can bind their future selves to the marriage like Odysseus binding himself to the mast; that way they can both truly commit to the marriage, secure in the knowledge that the other party will too. And that will, paradoxically, mean that they create the best shared life together, and so will have least reason to leave the marriage.
But if, instead, Alice and Bob can’t bind their future self, then they can’t trust each other. Maybe Alice can trust Bob(wedding), but Bob(10 years later) is a different person—yes, people change during marriage, but not necessarily in ways their partner can control or predict. So because they can’t commit to the marriage securely, they won’t make the same kind of costly investments in their shared life. Which means their marriage will be worse, which means they will be more tempted to divorce, and so on in a vicious circle.
Except that in pre-1970s cultures, er..., ‘affection and companionship’ outside marriage were, er..., frowned upon, to the point that when people were caught doing ‘affection and companionship’ they were sometimes made to get married at gunpoint by each other’s parents. (Hell, there even are anecdotes about 20freakin′14 I could tell for that matter, though not as bad as that.)
I’d be much less against unbreakable marriage if it was something the bride and groom spontaneously chose to do, clearly demonstrating tht they know what they’re doing, without any social stigma for not doing so.
That’s also an argument against at-will employment: it is much harder to make plans for the future if my employer could fire me at any time for any reason or no reason. And yet people who oppose at-will employment tend to support divorce and vice versa. This suggests that their opposition is more due to Green vs Blue politics than on anything directly rational.
(My own view is that employment contracts which cannot be unilaterally terminated without just cause should be allowed but not required, and ditto with marriages; of course employees who want such a contract would probably end up paid less than those who are OK with at-will employment, for obvious demand-and-supply reasons.)
That sounds like a very bad idea to me: for example, what if Bob dies? or turns out to be a violent psychopath, even if he managed to hide it until the wedding? My inner libertarian says that so long as Alice freely chose to marry Bob that’s her own problem and she shouldn’t be protected from herself, but my inner paternalist isn’t that sure.
So, in terms of David Friedman’s classification of “love”, “trade” and “force” in The Machinery of Freedom, you say that “love” can’t be reliable in the long term, and I agree, but why is force better than trade? I think it may be better if Alice gave something to Bob so that he won’t want to check out of the marriage.
Yes. And yet some couple stay together for years, even decades, without getting married. Why can’t we trust present Alice and present Bob’s determination about whether the current crisis is temporary, rather than relying on past Alice and past Bob’s (probably unrealistic, especially given their age) assessment that all future crises would be?
And yet places where women have children later don’t look that much worse to me. ISTM socioeconomical effects would largely swamp biological effects due to maternal age. (Search this for “maternal age”.)
Yeah, that’s not exactly an argument for making him accountable for Bob(10 years earlier)’s mistakes.
(Of course, I do not endorse the present-day US system where I hear someone who unilaterally walks out of a marriage can be entitled to a sizeable fraction of the other spouse’s property and future income.)
I don’t know who you’re arguing against, but it certainly isn’t me.
As I’ve stated Oh, at least a dozen times in this thread, I don’t want all marriages to be unbreakable. I just want people to be able to set the terms of their marriages as they see fit. No-one should be forced to remain in a marriage they don’t want to, but people who break marriage contracts should have to pay damages according to the terms of that contract, just as I can’t be made to live somewhere I don’t want to, but I will have to pay damages if I break the lease.
It isn’t force over trade. Contracts are trade. People must be held to the terms of their contract(or damages) or there is no trade.
So, you choose not to address the grandparent’s point about social stigma, and you want to add other ‘optional’ binding agreements which may themselves have social pressure pushing people to adopt them.
If you want people to find the process of divorce unpleasant, you can rest assured that most of them probably do.
I didn’t think the grandparent made any point about ‘social stigma’ worth addressing. But, to be clear:
You don’t have any right to your neighbours’ good opinion.
If doing X would upset (or please) your neighbours, your choice (not) to do X is still voluntary. It just means you’re facing a trade-off. Welcome to adulthood.
More generally, I don’t think that social approval/stigma are bad things. They are the glue that binds civil society together. I can’t help notice that people when people speak negatively of social pressure, they never apply that critique generally. Should there be less social stigma against racism? Less social stigma against harassment? Suddenly, they’re not so sure.
Actually, my focus is on making marriage more pleasant.
I’m a lot happier with social stigma when it attaches to acts and fades in proportion to time distance from the act, at some rate inversely proportional to severity, rather than attaching to immutable properties (whether or not they derive from some act). If I hypothetically get plastered and vomit strawberry Jello shots and half-digested guacamole all over my friend’s expensive Persian rug, chances are my friends are going to give me a lot of shit about it, and to be a little more cautious about inviting me to parties for a while… but I do not thereby become Gest the Puker, then and forevermore. Divorce has traditionally not had this property.
I might make an exception for crimes on the level of murder or rape, on the grounds that those are so severe that the stigma shouldn’t vanish in a normal lifetime. (Though on reflection, I doubt I’d think much less of him if my grandfather revealed that he’d killed a man in his youth.) But if we’re going to be treating marriage as a civil contract like any other, then breaking it is a civil matter, not something on that level.
For some value of “voluntary”, sure. Likewise, for some value of “voluntary” if I point a gun at you and ask you to do something, your choice whether to do what I ask or be shot is voluntary.
For better or worse, marriages as presently constituted in the West are not commercial contracts, but legal, social, and (optionally) religious arrangements conferring certain statuses on the partners in the eyes of the law, society, the relevant religious bodies, and each other. If you want a marriage contract such as you describe, there’s no point in complaining that marriage contracts as they exist are not that. It would take a legal historian to say authoritatively, but I am not sure they ever have been. There are various similarities and differences, but they are different entities.
What you would have to do instead, is design a contract such as you would wish a marriage contract to be, and consult with lawyers to see if it can be done in a manner that would be recognised by current law and practice as a valid contract incurring damages for its breach. If you find that it cannot be done, then you would have to agitate for such changes to the law as would be necessary to recognise it.
If that’s too big a job for one person, you could combine with others, register a domain—realmarriage.org is available—and begin a movement.
Isn’t that what pre-nups are?
I don’t know to which extent the courts will be willing to enforce the “damages” portions, but pre-nups are valid contracts and fulfill much of the needs you’re pointing to.
Possibly, but pre-nups aren’t valid in some jurisdictions (the UK, for example).
Some other issues have occurred to me regarding the redesign of marriage contracts. If a marriage contract is to be simply an ordinary contract in the framework of contract law, then several issues arise, which Salemicus and others of like mind might not want. What, if anything is to distinguish a “marriage” contract from any other, if it can be drawn up between any two (or more) people of legal age to enter into contracts? If the contract says whatever the parties wish it to say, is there any longer such a thing as “marriage”? How shall “marriage” be defined for such purposes as widows’ pensions, the line of succession in intestacy, etc.?
Any contract can be varied or voided instantly by common agreement of the parties, because no third party has any legal standing to object. Thus marriage “contracts” of this sort would make divorce by mutual agreement instant. (If there is no other ground than decision to separate, it takes 2 years in the UK.)
The only alternative is to reform the law of marriage itself. This is not to say that it cannot be done, but it would be a long row to hoe.