Sunday, March 9, 2008

Death to Adulterers (Optional)

One of the more tiresome aspects of being a libertarian is being told by leftists that you’re a crypto-conservative of the worst kind who wants a new aristocracy of corporate overlords to crush women and ethnic minorities, and then being told by conservatives, often later that same day, that you’re a crypto-leftist of the worst kind who believes in the abolition of morals and the fostering of a world of anti-social nihilists who sell drugs and pornography to children.

As I’ve said time and again on this blog but perhaps never explicitly enough: Most people are very, very stupid and irrational, and those who are considered “the intellectuals” are little better, most of them priding themselves in a very pigheaded way on their refusal to understand ideologies different from their own. I rarely get angry at or frustrated by people who disagree with libertarianism, but there’s no excuse for pretending not to understand it even when it’s (wearily) explained to you over and over again, e.g.:

“INTELLECTUAL”: So you want a world where a rich person can just throw some unsuspecting little old lady off the top of a skyscraper and there’s no penalty for it?

LIBERTARIAN: No, the whole point of the philosophy is that the law should prevent one person assaulting another, so that’s exactly the kind of scenario I’d want prevented instead of the government wasting time on thousands of trivial, wasteful programs while it bungles basic policing.

“INTELLECTUAL”: So the old woman being thrown to her death doesn’t matter to you at all? Some of us have consciences!

And on it generally goes, the “intellectual” quite possibly being a respected magazine editor or future City Council candidate, since he or she is obviously so much more “mainstream” than the libertarian and therefore more respected.

But I will say this, by way of conceding that libertarianism could facilitate some (good) extreme outcomes of both far-left and far-right varieties: With all political factions so focused on government (and its expansion or contraction) in our era, libertarians perhaps don’t often enough try to excite people with the idea of what a diverse and complex array of interesting, personalized contracts would be possible, with all their subtle social ramifications, if we lived in a world of strict contract enforcement, as libertarians would like. For now, let’s take a right-wing example.

The first reaction of most social conservatives to hearing that marriage would cease to be a state function under a libertarian law code is often alarm: Everything becomes a prenuptial agreement crafted by the two parties! The gays could marry on equal legal footing with straights! Three people could marry! Horrors!

But of course, it’s not legal formalities that determine how most people spend their romantic lives together, insurance actuarial tables would still track whether some sorts of unions deserved to be taken more seriously as binding and long-term commitments than others, religions would be free to sanctify the unions they wanted to and ignore others, and — best of all from a social-conservative perspective — marriage contracts could once more carry extreme penalties for violating them, so long as the two parties agreed to it.

In a world where the sanctity of contracts meant, for instance, that we each had the right to sign and enforce contracts that said adulterers can be stripped of all their wealth, imprisoned, or even executed — again, so long as both parties knowingly and willingly entered into such contracts — I suspect that those gentle, romantic flowers we call women would quickly gravitate toward men willing to sign such contracts and away from cads who said, “Hey, baby, we all make the occasional mistake, so why not leave this marriage contract a little more open-ended?”

You want social conservatism, you blowhard Republican church-attender? There’s some real social conservatism for you, courtesy of contracts and competitive social pressure. You want diversity and liberation, you whining Democratic hippie? Go marry three grad students and a local homeless man and explicitly pool all your property, without penalties for cheaters. Libertarianism certainly isn’t the thing stopping any of you.


Koli said...

Great post, Todd!

As someone who has recently had this conversation with you, though, I feel the slight need to defend one aspect of the “crypto conservative” charge. It’s not the theory that any part of libertarianism as a philosophy requires or entails it, but the fact that so many libertarians fit that bill and the fact that the libertarian movement has solidly aligned itself with conservatism — lock stock and barrels of crude — that gives some potential sympathizers some pause.

Libertarians who gleefully celebrate any new “scientific” study that “shows” black people are more violent and women are less intelligent don’t help the matter. I realize that this has nothing to do with libertarianism, but many libertarians for some reason — perhaps because they have become so reflexively anti-liberal over regulations and taxes — do seem to sign on to almost every conservative agenda.

It’s nice to see posts like this one that brings it back to the real idea. Makes you want to take libertarianism seriously again. Nice job.

By the way, I don’t know what idiot (much less what “intellectual”) thinks a philosophy based on freedom and property rights leads to letting Warren Buffet throw Grandma off the Empire State Building with impunity. A rational but compassionate person might make the less fatuous point that in the libertarian view, the owner of the building is free to expel Grandma (using the street-level exit, of course), and no one is required to care whether that means she will freeze to death because she’s homeless. More importantly, that we should NEVER consider raising taxes to pay for shelters for people like Grandma because her rights end where her property ends and for her that just happens to be limited to her person and the clothes on her back. I’m not making this point. I’m saying this is more likely the point than the “grandma-thrown-off-the-skyscraper” idea that really worries people about libertarianism.

Koli said...

In the interest of being self-critical, I should add, there is of course no reason for a perfectly principled libertarian to substantively agree with the proposition that “black people are more violent” (or not) or that “women are less intelligent” (or not) without actually being “crypto” anything. As long as he/she equally supports others’ freedom to hold opposing views (and the freedom to live by those views and the freedom to try to persuade — without coercion– others to adopt those views), a libertarian can, without being inconsistent, actually be a “liberal” or a “conservative” on many substantive values.

jenny said...

I suspect that those gentle, romantic flowers we call women would quickly gravitate toward men willing to sign such [anti-adultery marriage] contracts and away from cads who said, “Hey, baby, we all make the occasional mistake, so why not leave this marriage contract a little more open-ended?”

i’m all for getting the gub’mint out of the marriage business entirely and allowing consenting adults (in pairs, triads, quads, what have you) contract away as they please.

i am, however, still mildly surprised when otherwise intelligent people assume sexual fidelity is an necessary component of marriage. both the “death to adulterers” and “occasional mistake” contractual examples are based on that (IMO faulty) assumption. at any rate, warren buffet – whether he desires to throw grandma off the ESB or no – would almost certainly disagree.

(koli – why’d you bring up warren, anyway? he hardly seems a libertarian standard-bearer to me…)

Koli said...

why’d you bring up warren, anyway? he hardly seems a libertarian standard-bearer to me

That’s exactly why I brought him up. Todd had characterized someone’s misguided idea of libertarianism as allowing “a rich person” to throw little old ladies off of skyscrapers. What better way to poke at that than by making the “rich person” in the hypothetical a big-government Democrat? I probably should have said Ted Kennedy.

Yancey Ward said...


I realize you understand the distinction, but I think it needs to be spelled out just a little more starkly: one cannot be a libertarian and a crypto-anything. Of course, there are a lot of people who pass themselves off as libertarians, but are not in reality- these people are confused or mendacious. Libertarians themselves should call such people more often than they do.

However, I do commend your 1:20 p.m comment. comment/clarification.

Todd Seavey said...

Well, that depends what you mean by crypto.

Brain said...


Notwithstanding your ridiculous straw man argument against throwing Grandma off the ESB, I would think most people, myself included, would find your Libertarian vision of marriage fairly appalling. It seems half-baked.

Let me start off by asking you an a priori question — what is definient about our current regime of rules regarding marriage and relationships that you are seeking to correct?

Furthermore, given your libertarian system — who would adjudicate and enforce these marriage contracts? Yes, this is a loaded question, but I do want to pin you down on specifics.



Todd Seavey said...

As with all libertarian legal changes, the goal is to move from a one-size-fits-all state system to diverse private contracts formed by the individuals involved, ideally privately enforced but enforced by a residual minimal state if need be — the point is to make as much contractual rather than monopolistically state-imposed as possible.

Brain said...


Who would be these private enforcers and judges? If you are going to increase contractual activity, then it would seem enforcement and judgement would also increase, and with that the state’s traditional involvement, or some private proxy. Assuming you do not want to increase state power, then who will take the state’s place?

As it stands, most of the “solutions” of private contracts are already available to people in handling the business of marriage. A durable power-of-attorney and pooling of assets make an excellent substitute for most of the legal effects of marriage.

I would submit to you that people, in general, want LESS contracts and judges and lawyers and enforcers.

The argument over state and religiously sanctioned marriage also suggests why libertarianism is unappealing to most people. As we can postulate that private contracts can already substitute for the legal consequences of marriage, we are stuck on the social question. When people argue about marriage, they are not saying “to each his own”, but rather, “to each mine own”.

Whether they are wrong in that is up for argument, but you have not made a convincing case that your alternative, a radical departure from tradition, is much better. If anything, your radical proposal harkens to the worst excesses of “rational revolution” that the proto-conservatives such as Burke so aptly argued against.



Todd Seavey said...

Not sure you’re getting the point here. Enforcement of contracts and law could be done either by private arbitration firms and security guards or, if there were one, a residual minimal state, but that’s a side issue not specifically related to the marriage issue.

The point of the marriage contracts is to let people fashion the deals they want — and if you don’t want that, uh, I can’t help you.

Brain said...

Well, let us leave aside the question of enforcement and jurisdiction. I would not want to trouble your grand solution with actual practical details. Though why you prefer Wackenhut to the NYPD is beyond me.

Let us consider what you consider the meat of your argument, that marriage rules should be determined by the individuals getting married, not by society at large, certainly not by the state. The trouble with this “solution” is that it does not address the essence of the controversy.

The whole controversy over homosexual marriage is not one of individual choice. In most places, homosexuals may arrange private contracts that replace most of the conveniences afforded by traditional marriage. Lack of state sanction only affects state benefits, and I cannot imagine that you are upset that a broader population lacks eligibility survivor benefits through Social Security.

The impetus for activists seeking to have gay marriage legitimized is to force legal, and therefore social acceptance of their lifestyle. They don’t yearn for individual liberty, but for broad community approval.

So I just don’t see how your proposal solves anything. I am reminded of the Marxists seeking to transform Russian society during the revolution. Theirs was a theory for an industrialized society, yet Russia was mostly agrarian, but nevertheless the Bolsheviks pushed through their ill-fitting reforms because they could not conceptualize beyond their limited ideology.

To mix metaphors a bit, let us consider the great Don Shula as a counterexample. Of Don Shula, Bum Phillips said, “He can take his ‘uns and beat your ‘uns, and he can take your ‘uns and beat his ‘uns”. The great Don Shula, who won two Super Bowls with a grinding running attack and brutal defense, relied on Dan Marino’s arm and a wild passing game in his later years because that’s what his players could do and that’s what the situation called for.

One starts to quail a bit when the libertarian answers every question with the rallying call of “Laissez Faire, Contracts, and Less Government!” Your axioms are far from proven, and your theorems are limited in practical applicability. I look forward to the day when you have your Ronald Reagan moment, and turn away from the dark side.

: )



dave said...

Brian, I think in todd’s example on marriage, all marriage would be contract based, and homosexuals would be on par with heterosexuals in that case equally.

Todd, you’re the first libertarian I’ve ever heard of whose solution to government inefficiency is More Lawyers. Instead of one Elliot Spitzer, 100 million Elliot Spitzers for each and every client of each investment house out there.

Todd, would you support a system which allowed an old lady to sign a contract that if she cheated on her husband, he’d be able to throw her off a building? Cause, the title of your post suggests yes.

Jacob T. Levy said...

“More lawyers” is a dirty little secret of libertarianism. It is, for example, a necessary result of replacing any given regulatory apparatus (such as OSHA or the EPA) with tort law.

and, incidentally, the urge to replace the *criminal* law with tort law is what prompts the murderous-Buffet stories in the first place– it seems to lead to the consequence that the great wrong of a rights-violation can and should be compensated with a check made out to the survivors and heirs.

(NB: I have some sympathy with both of those replacements, though less than I used to.)

Todd Seavey said...

Not only do I agree that lawyers would become more important (by some measures) in the absence of regulation, but I have long said that problems like manmade global warming — if it ever becomes clear that it is one, which is not now the case — should be dealt with through class action suits instead of regulation, ideally.

And at the risk of scaring people or simply making myself look like I’m far craftier than you even begin to suspect, I put the word “unsuspecting” in front of “little old lady” in the original entry above precisely to allow for the contractual, preplanned throwing of little old ladies, which I would consider legally legitimate, though not necessarily a good idea, obviously — much that is a bad idea should be legal, as with romance.

And, yes, Brain, I am trying to remove official government endorsement from marriage, whether straight or gay, since it should be a private contractual matter, orientation notwithstanding — let society bicker over the merits of various sexual positions or cohabitation arrangements, but don’t give the state with its taxes and jails the final word for individuals who may disagree with it.

Todd Seavey said...

And I should just add that it’s not clear there’d be a net increase in lawyers, since their current prominence is partly driven by the need for regulatory compliance and the mushiness of contracts/property rather than by the proliferation of ironclad contracts, though it’s complicated.

If the market wants lawyers, though, let there be lawyers.

dave said...

But that means but for the word ‘unsuspecting’, far from pretending not to understand, “INTELLECTUAL” understands you quite clearly. I believe it is you who is pretending not to understand that Intellectual is concerned about some irrational idiot being thrown off of a building, with consent or not, rather than whether they’re suspecting it. (And what of the people on the ground??)

Todd Seavey said...

I assume you’re joking, dave — and if you’re not, I intend to change the occurrences of “INTELLECTUAL” above to “dave,” so think very carefully.

Lee Bailey said...

Just read your article on Political Mavens.

One response: The tighter laws and customs than simple contract are there…to call a halt to families that are morbidly dysfunctional and a destructive force in the lives of children. It isn’t a perfect solution…but it does cut back on the worst of this social nightmare. A good example of the result of simple contract enforcement in marriage is that extreme community in Arizona where the women and young girls have become no more than trophies among the men…”the one with the most in the end wins”. Since they have been left to become the nightmare they are now by vertue of people thinking,”Well they aren’t HURTING anyone…”, they have IN FACT HURT THE CHILDREN THEY RAISED…

The purpose of family is to raise well balanced kids to adulthood, who can then function in the larger world. Everything else is frills and adult compensation. To allow adult whims to impose upon the core purpose of the family is to EXPAND the human despair we all ready have. The mess the came out of the 60s experimental families should inform everyone that family is not the place to preform experiments. Russia learned that lesson during the early Socialist years, when they attempted to wipe the family out in favor of the Collective…and the Israeli Kibbutz have found that they can not keep children separated from their parents to foster a community-family. It INCREASES, rather than decreases, the soap-opera of communal communities.

As much as general concepts appear to have logical results on paper….when they fail to take into account the TOTALITY of human nature they are more hurtful than helpful. This is why most people reject the Libertarian Concept…it fails to take the totality of human nature into account. They may not be able to articulate their reasons for doing so…but that is the root of it. Where ever the Libertarian Solution is applied, the harshest of human emotions is played upon and accentuated, because people are left to their own devices. The best of human nature is not supported or accentuated by wider community norms found to be the most functional for humans to live by over the large tracks of time…Not a place most folks would want to live.

The harsh worlds of the Simplistic Solution given to us by the Communist-State-Nanny or the Libertarian-Every-Human-For-Themselves are not Utopias….they are the opposite. Even in a Dictatorship compassion and freedom would be better served in daily life.

Plus: We DO have Contract Law Primary in the US….that’s what all the lawyers are running around doing…they are part of the enforcement of that SECTION of our society. I think everyone else is of the opinion they are doing MORE than enough NOW.


Todd Seavey said...

Well, I’ll bet Lee — and anyone worried about all those old ladies opting to be hurled off buildings — won’t be happy to hear that Dr. Jack “Death” Kevorkian plans to run for Congress in Michigan, it’s just been reported. But I’ll have to turn my attention to other matters for now and just leave this conversation thread with the question: If law, not voluntary social interactions, is the solution to the admitted problem of child neglect, exactly what laws are you proposing, Lee? Make divorce illegal? Make it illegal to be an incompetent parent?

What non-libertarian solution is there to this immense and vague problem with which you’ve somehow tarred libertarianism specifically, a solution not available to libertarians? This seems to me another one of those cases where libertarians are getting blamed for a problem no one can fully solve, like when libertarians are called callous for, say, not thinking there should be a law against rudeness (supposedly making us _pro_-rudeness), even though _no_ political faction proposes plausible anti-rudeness laws (per se).

johnny five said...

I suspect that those gentle, romantic flowers we call women would quickly gravitate toward men willing to sign such contracts and away from cads who said, “Hey, baby, we all make the occasional mistake, so why not leave this marriage contract a little more open-ended?”

a day late and a dollar short here, but worth saying: i can’t believe that you, of all bloggers, would fall prey to the ridiculous feminist lie that philandering men are the biggest threat to the institution of marriage.

modern marriage is a bad joke that serves to transfer money, wholesale, from men to women. over 70% of all divorces are initiated by women, who then proceed to collect checks so that they can ‘maintain the standard of living established during the marriage’.

the example you SHOULD be putting forward is that of a contract that tells the wife that, should she begin to feel ‘bored’ or ‘unfulfilled’ and want a quick escape valve, she can leave with nought but the things with which she entered the marriage and/or earned herself.

obviously, such examples are included under the umbrella you’ve put forth, but your implication that men are largely responsible for the decline of marriage is, in a word, sickening.

Wow said...

Let’s say there’s a chance you could prevent innocent old lady from being thrown off a building, by donating one day a year to some volunteer activity. Say it was true that you could do that. As a libertarian, would you do it, and/or would you advocate someone else doing it? Remmber, this is a CHANCE – you don’t know for sure that it would prevent the situation, but you know there is some chance it could.

I ask that because a few weeks ago, you applauded a news report showing that a couple of con artists were marsquerading as homeless, the implication being that you should NOT give money to anyone, because they MIGHT be con-artists who make their money by lying on the sidewalk looking sick all day.

When the possibility was mentioned of reading the Times Neediest Cases articles, which describe why someone needs help and fell through the cracks, not one of your commenters responded – making it clear that perhaps libertarians enjoy trying to actually PREVENT us from using our freedom to help others, by making it seem as though the evidence is stacked in favor of us being conned.