Marriage, the State, and the Natural State of Marriage

Arts and Letters Daily has a provocative teaser for its link to this Policy Review article by Jennifer Roback Morse entitled “Marriage and the Limits of Contract”: “Do we even need marriage?” 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. Articles like these demonstrate why it is that libertarian political beliefs and traditional notions of morality make an odd couple indeed–but more on that later.
From the first sense in Morse’s article, I knew I was likely to disagree with everything she wrote. “Marriage,” she states, “is a naturally occurring, pre-political institution that emerges spontaneously from society.” She continues this theme throughout her piece: “Marriage is an organic institution that emerges spontaneously from society,” “Government does not create marriage any more than government creates jobs,” and so forth.
I dispute every claim in her first sentence. “Naturally occurring?” If naturally occurring, then why is it that marriage has undeniably changed in Western society within the past five hundred years? Women are no longer “betrothed”; they can now own property in their own name; “breach of promise” torts have gone out of style; and divorce is actually permitted, not shameful. And these are just changes within the Western European model (and specifically the Anglo-American tradition). Women who passed through the Meiji Restoration in Japan and, as a result, lost their ability to own property, Muslim wives divorced at their husband’s pleasure, Chinese concubines, and Indian wives who committed sati (better known to our readers, probably, as suttee) would be surprised to learn that marriage is a natural and equivalent institution. Indeed, one suspects that Greek wives of Pericles’ time would be scandalized by the ability of contemporary American women to work in public, converse with men not of their family, and even hold superior political positions to their husbands. (Roman wives after Caeasar would be less shocked at our sexual mores; just ask Messalina about fidelity.)

“Pre-political” is another troublesome term. Clearly it is not “pre-political” in the sense that it is necesssary for the existence of a political system; as Morse admits, a (in her view flawed) political system can exist without a strong institution of marriage. Nor is it “pre-political” in the sense that it exists in the same form before and after the invention of a recognizable state or bureaucracy: The clear changes in women’s status in law over the past two hundred years in the United States alone easily demonstrates this.
Indeed, it is difficult to see how marriage is not a political institution in many important ways. Any institution that disposes alike of property and people (property through dowry or inheritance; people through the the deprival of women’s liberties in most marriages in most societies at most times) is hardly unpolitical. It is striking that Morse fails to adduce evidence that “pre-political” (tribal or “Big Man”) socieities have institutions functionally equivalent to marriage as it exists in the West today. (I would hypothesize that the underlying economic structures are so different that such an institution as contemporary Western marriage could not evolve in such a society.)
As for the “spontaneously from society” part, it is true that every society has some constellation of institutions to regulate “sexual activity and the rearing of children” (Morse’s definition of marriage), but as hinted at above, these institutions may appear in radically different–and even unconnected–shapes in different societies at different times. Marriage laws are often more concerned with the woman’s sexual activity than the man’s; men have frequently enjoyed both the legal and the customary ability to engage in intercourse outside of marriage. (See, again, Caesar.) This is clearly not what Morse is arguing for: She stands foursquare for monogamy.
Even the linking of monogamous marriage with the rearing of children is more tenuous than she suggests. Child rearing is often a class-defined phenomenon: The institution of the governess in Victorian England, or of wet nurses and servants more generally, offer an unambiguous example wherein a marriage institution disposes of child rearing in a manner completely different from that we expect today. Similarly, Catholic orphanages in Italy in the nineteenth centuries (to take an example with which I am, alas, only marginally familiar) served an important role in child rearing, especially when sexual mores had broken down. For that matter, it is unambiguously true that parents in the West today do not rear their children in anything resembling the manner they would have done so in, say, the eighteenth century: The shift from an agricultural to a postindustrial economy, the development of universal education, and the breakdown of informal, household provision of services (through multigenerational households or stay-at-home mothers) have all surely had their toll.
What emerges from this brief discussion is a depiction of the monogamous, stable, servant-free, legally-recognized marriage as the specific cultural and legal construction of one (large) society that seeks to meet both natural urges (including, especially, what Morse rightly calls the species’ “natural propensity to couple, procreate, and rear children”[1]) while also reacting to the needs of a modern economy.[2] But of course this does not undercut Morse’s specific policy recommendations, which are directed at the very society for which the institution has been constructed; it merely denies her critique’s aspirations to universality.
What are Morse’s specific proposals? Marriage, having a spontaneous element and being also a way to regulate prepolitical urges, is a way of constructing self-sustaining units of society that require little or no state intervention. The dissolution of marriage, which she views in politico-legal terms, not socio-economic, “breaks the family into successively smaller units that are less able to sustain themselves without state assistance.” If a society supports the marriage institution, it “will be able to govern itself with a smaller, less instrusive government.”
Thus Morse views the supposed deconstruction of marriage into “a bundle of legally defined benefits bestowed by the state” (again, as opposed to her conception of marriage as “natural” and “spontaneous”) is a cause for concern. By making rights explicit, this shift creates grounds for state intervention; she illustrates this by remarking upon the tawdry spectacle of custody cases. More generally, she criticizes “statist” analyses of marriage that take into account the provision of services performed by the household instead of the private, marketized sector or the state: Apparently even remarking that Swedish and American mothers have different chores to do because of their governments’ policies is statist.[3]
What is most puzzling about Morse’s libertarian argument is its traditionalist turn. Adapting a typical conservative culturalist critique of the welfare state (one not without merit, as the Scandinavian model sugggests), she writes

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.

But how to reconcile this reliance on the wisdom of the Volk with the necessarily individualist viewpoint of the libertarian? It is, I suspect, impossible: Nobody who fully accepts libertarian (or rationalist) principles can countenance the wholesale replacement of an instrusive state with regulation by Mrs. Kravitz. There may be Burkean wisdom in them thar institutions, but to deny the possibility of change and organic adaptation through the raised eyebrow and the appeal to tradition is ludicrous.
Libertarians themselves offer a vision of ‘freedom’ that is, perhaps, unsatisfactory; certainly Nussbaum, as discussed yesterday, would have a problem with a completely libertarian regime, inasmuch as economic institutions can have a real impact on substantive freedom. (Sen is even more scathing: It is possible, he argues, to have even a gigantic famine without anyone’s libertarian rights being violated.) But any attempt to reconcile the received wisdom of the ages about marriage–wisdom based on the lessons learned in a social context that no longer attains–with the rationalist, anti-naturalistic arguments of the libertarian is doomed to failure. Even more so when we consider that the winning of specific legal rights for women (the more oppressed of the genders in a heterosexual marriage) has nearly always been unequivocally a sign of progress: Morse’s analysis, for instance, points toward the ending of “liberal” divorce laws, but is there anyone who wishes to return to the Bad Old Days of pre-reform marriage? 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.
[1] Some readers may have concerns that this statement disregards multiple modes of sexuality as theorized by Kinsey et al and argued in some detail within the constraints of a rational choice model by Posner in Sex and Reason. It does, and I am sorry for it: as Posner summarizes here, changes in the institution of marriage have strong and sometimes counterintuitive effects on the expression of sexuality. However, I beg readers’ indulgence: A comparative and historical account of heterosexual marriage, broadly understood, is taxing enough both of my expertise and the readers’ patience.
[2] For more on the effect of economic changes on conceptualisations of ‘rights’ see e.g. Habermas, “Remarks on Legitimation through Human Rights,” anthologized in various places.
[3] The interested reader will find all the analysis of this argument he cares for in the work of Gosta Esping-Andersen, whose books, however, should not be read whilst operating heavy machinery.