Coverture and Liberty

In which we return to a time that Bryan Caplan appears to love… blindly. Inexplicably. Sort of embarrassingly. I mean the nineteenth century.

Back in 2010, Bryan wrote that the legal regime of coverture must have been pretty good for women. Sure, they forfeited all their legal rights, but look at how many of them got married anyway! And if they didn’t like it, they could surely have contracted around it. If they didn’t, they must have been happy.

This, as I pointed out, was factually incorrect. Lots of women got married, but they had no power to change the terms of the contract. Lots of men wanted to change those terms, too — today we call them “liberals” — but even they couldn’t do it: The law said the man and woman became one being, and the husband was the head. A husband could no more make a contract with his wife than he could make a contract with his left elbow. And marriage destroyed any contracts they may have previously made together.

This time around, Bryan gets coverture basically right: It was rights-restricting and non-negotiable. But now he argues that it still wasn’t worse than volunteering for the military. Thus, he says, if you want to have a marriage with coverture today, you should be free to have it.

How should a libertarian morally evaluate such marriages? Exactly the same way you evaluate our all-volunteer military. Unless you believe in inalienability, the correct answer to critics is, “If you object to these marriages, don’t get one.” Once you consent, the contract is morally binding – and ought to be legally binding. For libertarians, the problem isn’t the contracts that are allowed, but the contracts that aren’t allowed. If a society only allows marriage with coverture, that’s not freedom. But when a society forbids marriage with coverture, that’s not freedom either.

I think he’s wrong here too. There’s some triggering stuff in what follows, and also a lot of hardcore libertarian theory. Feminists, you’ve been warned.

First of all, as Bryan’s commentariat has noted, volunteer military service is for a fixed term — usually four years. After that you can leave, quite unlike a marriage. There are also ways to get out of the military contract besides “death do us part.” Marriage under coverture didn’t have any of these. Even if you were divorced, you had to wait until your former spouse died if you wanted to remarry.

And, while you do risk death in the military, you do not face the various civil and legal disabilities that existed under coverture: We don’t forbid soldiers from executing every other contract. We allow them to vote, to acquire and dispose of property, and to sue in court. In general we extend to them as many civil rights as we possibly can, consistent with the nature of their military service.  Military service also doesn’t mean giving someone legal permission to rape you. That’s a big difference.

The military contract is in many ways easier than coverture. It also exists for a compelling social reason — national defense — which coverture does not.

Finally, Bryan wants to argue that marriage with coverture is just another kind of contract, and that if we take the freedom of contract seriously, we ought to allow coverture — even if we find it personally distasteful or foolish. I don’t agree here, either.

The liberty of contract is a complex liberty; it includes both negative and positive elements. The negative liberty in a contract is the freedom of consenting individuals to profess agreement with one another about a course of action. The positive liberty in a contract is the power of those individuals to invoke state force in support of their plans.

Libertarians who take contract really seriously need to recognize that every contract is an exercise of government power. A libertarian government isn’t necessarily going to exert its power in all times and all places. Rather the opposite, in fact. A libertarian government will be (or should be) exceedingly choosy about how it exercises its power. As F. A. Hayek wrote,

There is indeed a sense in which freedom of contract is an important part of individual freedom. But the phrase also gives rise to misconceptions. In the first place, the question is not what contracts individuals will be allowed to make but rather what contracts the state will enforce. No modern state has tried to enforce all contracts, nor is it desirable that it should…

Freedom of contract, like freedom in all other fields, really means that the permissibility of a particular act depends only on general rules and not on its specific approval by authority. It means that the validity and enforcibility of a contract must depend only on those general, equal, and known rules by which all other legal rights are determined, and not on the approval of its particular content by an agency of the government. This does not exclude the possibility of the law’s recognizing only those contracts which satisfy certain general conditions or of the state’s laying down rules for the interpretation of contracts which will supplement the explicitly agreed terms…

So long as [the contract’s] consequences can be predicted from a general rule and the individual is free to use the available types of contracts for his own purposes, the essential conditions of the rule of law are satisfied (The Constitution of Liberty, chapter 15, section 6).

A coverture contract fails for both of the reasons in the bold section: Its consequences cannot be predicted from any general rule, but only from the husband’s whims. And the wife is not free to use the contract (or any other contract!) for any purpose of her own. Indeed, under coverture, her purposes never count for anything.

A state that respects individual liberty is therefore bound to deny requests to enforce a coverture contract. It’s not just that we should be free to set up contractual marriages between legal equals (although, yes, we should). It’s also that coverture doesn’t belong on the menu, because it denies equality before the law.

Coverture impermissibly elevates one person’s will above another, forever, without recourse, and for no reason that touches on any public necessity. We’re better off without it, and, to be honest, I don’t even see this as a terribly difficult question. We deny coverture for the very same reason that we dispense with contracts to sell oneself into slavery. As I’ve written in the past, go ahead and write your slavery contract. Will a libertarian state enforce it? No. It won’t. Not even if that contract has a sexual dimension, as with coverture.

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133 thoughts on “Coverture and Liberty

  1. I’m kinda at a loss.  I mean, you don’t need to be terribly well-versed in libertarian thinking to know that libertarians aren’t going to be on board with this… do you?  I mean, really?


        • A certain naive Rothbardian/Nozickean kind of libertarian will. A lot of “paleo-libertarians” look forward to the minimal state just so that there is space for private associations to have their own nasty agenda.


          • Agreed. This notion that I sometimes find myself having – that libertarians care about liberty! – keeps running into the realities of what some libertarians seem to want to argue: that liberty is living in a world without a state system, regardless of what happens without one. It’s how you end up with people pointing to various times in American history as being great examples of what our government could be (like various points in the 1800s) without acknowledging how awful those time periods were for everyone who wasn’t a fairly well off white male.


        • It follows logically from an obsessive application of the non-aggression principle. Caplan’s own post links to Walter Block rejecting even Rothbard‘s proposed limitations on what rights can be given up via contract. If you thought Rothbard was too extreme…

          A problem is that finagling the NAP so that granting the enforcing authorities (which may not be a state – lots of capitalist anarchists in the vicinity) moral legitimacy in discretionarily deciding, after-the-fact, what parts of a contract may be enforceable opens one up to a vast array of left-wing policies – especially if it is based on a philosophical interpretation of relative power entering into the contract, or, worse, the acknowledgment of positive liberties as Kuznicki has done here. The existing legal doctrine of unconscionability already bothers a number of mainstream, CATO type of libertarians, never mind the Lew Rockwell type.

          I daresay American libertarians in particular obsess over it because the end of the Lochner era, marking the beginning of acceptance of the constitutionality of myriad labor-market interventions, was caused when SCOTUS accepted the argument that inequality of bargaining power is so frequent that the 14th amendment no longer provides freedom of contract so strong that legislatures cannot overrule it. This being the switch in time that ‘constitutionalized’ the entire New Deal, there is a great deal of partisan motivation to reject the whole idea altogether, as the dissent did.


          • This has always puzzled me. I mean the notion that contracts are some sort of free-floating concept independent of some sort of coercive authority. Jason’s point about how an enforcing agency decides to enforce contracts and what sorts of contracts should be enforced it seems to me is a key element of any real conception of liberty. Or for that matter, concepts of property as well. Taking NAP as a first principle to me seems to be rather wrong-headed, but perhaps this lack of understanding is why I’m not a libertarian.


            • One of the annoying aspects of this whole discussion is that there really is an interesting philosophical problem in here somewhere.

              It’s a sorites problem — of the form “How many grains of sand make a heap?”

              You can make a contract to do some work and get some money.  No work, no money.  That’s trading a little bit of your self away, but we all find it relatively permissible.  Contracts make the world go round.

              You can’t, however, make a contract to sell everything about yourself, forever, with no conditions.

              Somewhere in between, the grains of sand became a heap, and heaps are a bad thing.  Bryan, though, is standing on an agglomeration of all the sand in the world and insisting that “heaps” aren’t even a thing.


                • I don’t think this is a problem unique to libertarians. In fact, we might say that this is the problem of politics: we need to group together in order to survive and thrive, and so questions of freedom/liberty and coercion are inevitable, as are related questions like legitimacy. These questions arise pretty much anytime two or more humans associate, and we could probably define people’s political orientations by simply noting where they see the heaps begin in different types of associations. Granted, some things, like contracts, make the Sorites problem more apparent, but it’s not less present in, say, how we choose to enforce the First Amendment, or how we choose to regulate carbon emissions.


                  • I see it as a question of what we as a society should aim to maximize.

                    If I wanted the power of contract to be as strong as possible, I would certainly allow coverture contracts, slavery contracts, killing by contract, and lots of other contracts besides.  I just wouldn’t delude myself that I’d be maximizing liberty.  Obviously I wouldn’t be.

                    If I wanted the power of property to be as strong as possible, I’d allow people to own slaves, and wives, and children, and probably quite a few other things too.  But again, I wouldn’t claim that I was maximizing liberty.

                    We libertarians do profess that we want to maximize liberty.  But it seems plain to me, at least, that we can’t get there by maximizing some other thing instead.  “Liberty” can’t be boiled down to property or contract, even if we do (I think rightly) find that liberty is advanced by having some fairly robust protections for both of these other things.


                    • Right, and I think similar bargains are made by pretty much every political view. Like I said, it’s where you see a pile of sand instead of some individual grains that suggests who you are, politically. And it’s not just where you see piles, but which piles you’re willing to excuse to keep other collections of sand from becoming piles. I, for example, am not a big fan of government or authority in general, but because we live in a society that, from my perspective, creates all sorts of piles from one direction (property, markets, etc.), I tend to favor a some government-produced sand, sometimes reaching the level of piles, as a balance, check, or even pile-destroying force from the other. This is sort of the opposite of a libertarian, but it’s still all about piles of sand.


                  • I don’t think this is a problem unique to libertarians.

                    Oh, neither do I.  That’s why I said, “Everybody’s got one”.

                    Granted, some things, like contracts, make the Sorites problem more apparent, but it’s not less present in, say, how we choose to enforce the First Amendment, or how we choose to regulate carbon emissions.

                    Right, exactly this.  This is why I can’t self-identify as a liberal, or a conservative, or a libertarian, really.  Everybody’s framework has to get fuzzy at the edges.  And yet most people who identify as liberal or conservative get obsessed enough with the framework to ignore this… and indeed, where they often claim the most clarity is precisely where I think their framework gets the fuzziest.


        • No one really supports coverture in the sense of thinking that it’s a great thing that everyone, or even anyone, should do.

          Rather, Caplan is rejecting the doctrine of inalienability—the idea that there are certain rights that you can’t sign away. The argument for inalienability is, essentially, that no one could ever have any legitimate reason for wanting to sign away those rights, and that anyone choosing to do so must ipso facto be incompetent to make that decision.

          This isn’t necessarily wrong, but it’s disturbingly close to the kind of thinking that leads to a lot of left-wing bullshit and very real restrictions on our freedoms. In the case of kidney sales, this sort of thinking has led to the deaths of tens of thousands of people.

          Now, there are important differences between coverture or slavery contracts on the one hand and kidney sales on the other, and there are legitimate arguments for banning the former but not the latter. But it is a legitimately slippery slope, so I don’t think it’s entirely irrational just to say that, barring externalities, we don’t want government to be in the business of deciding what sort of transactions and contracts are legitimate and what sort are not.


          • The appeal to a slippery slope only works if staying at the top of the slope is obviously better than staying at the bottom, which is not at all obvious.

            Recall that inalienability is what moderate libertarians rely on to prevent people selling themselves into slavery and companies very logically binding themselves into monopolistic arrangement, and so forth until one obtains the property-owning monarchy that owns everything one needs to live and therefore everyone too.



            • Of course, the argument against allowing such contracts—that no reasonable person would want them anyway—is also the argument for why it doesn’t do much harm to allow it—no reasonable person would want to do it anyway.


  2. This may be helpful—American Founder James Wilson in his famous “Lectures on Law,” circa 1790. He doesn’t think much of the Roman Way [see link below].  Then he writes

    By the precepts of Christianity, and the practice of the Christians, the dignity of marriage was, however, restored..Peculiar as it is, however, among human institutions, it seems not uncongenial to the spirit of a declaration from a source higher than human — “They twain shall be one flesh.”

    The punchline: ” if they were permitted to give testimony against one another, another maxim of the law would be violated — No one is obliged to accuse himself.”

    Perhaps that’s where that custom comes from, then.

    Full text here:

    And an excerpt:

    The most important consequence of marriage is, that the husband and the wife become, in law, only one person: the legal existence of the wife is consolidated into that of the husband. Upon this principle of union, almost all the other legal consequences of marriage depend. This principle, sublime and refined, deserves to be viewed and examined on every side. Among human institutions, it seems to be peculiar to the common law. Peculiar as it is, however, among human institutions, it seems not uncongenial to the spirit of a declaration from a source higher than human — “They twain shall be one flesh.”

    Even of the common law, this was not always a principle. We are told by the learned Selden, that the Saxon wives were never one with their husbands; nor were they, as wives, under the view of the frank-pledge: a Saxon wife was obliged to give pledge by her friends, that she would do no wrong. She passed as an appurtenant to her husband, rather than one in unity with him: and her estate was rather appurtenant to her than to him: for if she failed in her good carriage to her husband, she was to make him amends out of her own estate; and if that was insufficient, then her pledges were to make satisfaction for her.50 This interposition of friends between husband and wife, in matters respecting either their conduct or their claims, seems alien to the delicacy and nearness of the matrimonial connexion. On very pressing emergencies, indeed, it is necessary that the law should interfere, and on such emergencies we shall see that it does interfere; but the general presumption and the universal wish ought to be, that, between husband and wife, there subsist or may subsist no difference of will or of interest. Such accordingly, during many centuries past, has been the language of the law. Bracton, in the reign of Henry the third, informs us, that “husband and wife are as one person, because they are one flesh and blood.”51 Littleton, whose sayings are of such high authority, tells us repeatedly, “that the husband and the wife are but one person in the law.” 52

    In pursuance of this principle, a crime, except treason and murder,53 committed by the husband and wife, shall be charged against him solely; because the law will suppose that she acted under his influence or coercion. In pursuance of the same principle, a husband and wife cannot be witnesses for or against one another: if they were permitted to give testimony for one another, one maxim of the law would be violated — No one can be a witness in his own cause: if they were permitted to give testimony against one another, another maxim of the law would be violated — No one is obliged to accuse himself.


  3. I’ll get to all the libertarian stuff in a minute, but for now I just want to ask one question: what’s the motivation for arguing that women should be subject to coverture laws? What’s the point? To see how far off the rails libertarian theory can run?

    [Btw, this is why some people think that libertarianism can be fairly caricatured as … well … you know.]


    • I think the point is to prove that one isn’t cowed by the “PC police”, and is instead a bold freethinker going where (near-inevitably) his principles take him.  But then, I’m not very charitable.


      • This is part of it.  The contrarian streak in the libertarian movement is wider than necessary for either tactical purposes or even just libertarian purity.

        But also part of it:  The desire to posit a libertarian golden age relatively close at hand.  Why they settled on the nineteenth century, I have no idea.  My golden age?  The twenty-second century.


        • The contrarian streak in the libertarian movement is wider than necessary for either tactical purposes or even just libertarian purity.

          I think that’s the problem I have with the linked argument (other than the one mentioned earlier). My conception of libertarianism is this: advocacy for the type of governmental and social institutions which maximizes individual liberty. The type of libertarianism which equates restrictions on liberty with governmental coercion is, in my mind, flimsy, juvenile, and intellectually stagnant. And wrong. Of course, the downside of my conception of libertarianism is that it dovetails nicely with conventional liberalism in that restrictions on liberty that obtain outside of government are still bad and ought to be eradicated (if possible).

          So, I can see the desire of libertarians to try to identify government as the causal source of all liberty restrictions. But that seems wrong, for the reasons you’ve mentioned in the thread. If liberty means anything at all, it means individual autonomy, which entails not only the right to contract, but equality before the law. In my mind, a person cannot – or in the language of Caplan, ought not be able to – contract that away. The idea that a person could seems to me to be the very antithesis of what the libertarian project ought to be about.


        • The contrarian streak in the libertarian movement is wider than necessary for either tactical purposes or even just libertarian purity.

          I thought someone was campaigning for the Understatement of the Year Award when I read that.


        • The contrarian streak in the libertarian movement is wider than necessary for either tactical purposes or even just libertarian purity.

          This is arguably inevitable. Libertarianism attacks enough sacred cows that you essentially can’t be a libertarian without being a contrarian.


        • Also, I suspect that this is partly in response to the utterly asinine way in which the left uses the Gilded Age as a rhetorical device. Any time someone suggests rolling back federal regulations or spending, it’s a pretty good bet that some leftist who thinks he’s clever is going to say, “You mean like in the Gilded Age? When [insert complaint about the Gilded Age that has no causal relationship whatsoever to the topic]? What are you, some kind of [insert appropriate accusation]?”

          Obviously the best response here is to point out that the leftist is a fishing moron and that the two things are severable. But I can see it leading to “Well, how big a deal was coverture, really?”


            • Pierre and Brandon:  I think I’m confused here. The post which Jason is responding to was written by a libertarian who references – for some reason or another! – the Gilded Age!

              While many Americans were freer in the Gilded Age than they are today, plenty were not.  But precisely who belongs on the list of people who have more libertarian freedom in 2010 than they did in 1880? 

              Liberals characterize libertarians as fawning over the Gilded Age because lots of libertarians fawn over the Gilded Age.


              • Name a few major, influential libertarians who fawn over the Gilded Age. It doesn’t count if they claim that certain classical liberal principles of economics were prevalent during an earlier period. I don’t know of any libertarians who fawn over the Gilded Age, per se, with all that the Gilded Age entails, do you?


                • I predicted a few years ago, when the word libertarian was being used in MSM, and some pundits were actually discussing libertarian ideas during prime time, that a reaction from both Left and Right would seek to smear and marginalize libertarianism, and I was right.


                • Does Bryan Caplan count?

                  Mike, I’m not really in a position to argue this point with you, since I’m not as familiar with libertarian literature as you are. But what I am completely willing to concede is that any libertarian who is serious about liberty and advancing libertarian principles would reject the idea that the Gilded Age is some sort of libertarian ideal. What I won’t concede is that lots of LINOs demonstrate their lack of seriousness by repeatedly doing just the opposite.


                  • Did you even read the linked piece? Or at least the first two sentences?

                    I largely agree with David Boaz’s recent attack on libertarian nostaglia. While many Americans were freer in the Gilded Age than they are today, plenty were not.

                    It’s not clear how you could read that and conclude that Caplan fawns over the Gilded Age, per se, with all that the Gilded Age entails.

                    And even if you find a libertarian who thinks that the Gilded Age was just plain awesome, it’s almost certainly due to historical ignorance rather than to being a LINO. Look, it’s like when leftists call themselves “progressives.” Putting aside how sickeningly self-congratulatory that term is, do you really take it as an unqualified endorsement of the historical Progressive movement?


                    • Brandon, he also said this (if you read to the end of the piece):

                      Women of the Gilded Age were very poor compared to women today.  But from a libertarian standpoint, they were freer than they are on Sex and the City.



                    • And I need to say something about this:

                      … rather than to being a LINO

                      If you’re using this acronym in reference to my use of it in a previous comment, then I’ve got to apologize if it gave offense. I’m not a libertarian, and it was definitely presumptuous of me use that term as if I’m entitled.




                    • This is repeatedly Caplan’s problem: he substitutes his own priorities about what is and isn’t important in a life for EVERYBODY’s feelings about what is and isn’t important in a life. So one small example might be that he doesn’t vote, so surely women who weren’t allowed to vote in the Gilded Age didn’t have it so bad. But just because he has peculiar beliefs about particular issues doesn’t then mean that every other person on earth shares those beliefs.

                      More broadly, there is simply no formulation in which women are freer in the Gilded Age than they are today. None. But if he genuinely believes this nonsense, Caplan ought to explain which he’d rather be: a woman today or a woman then.


              • You’re kind of making my point for me. Libertarians fawn over certain aspects of the Gilded Age—aspects which are entirely severable from the aspects that we all agree are bad. Leftists often pretend that they are not severable—that if we want to bring back the economic freedom of the Gilded Age, we must also want to bring back governmental discrimination against blacks, women, homosexuals, etc.


                • Leftists often pretend that they are not severable—that if we want to bring back the economic freedom of the Gilded Age, we must also want to bring back governmental discrimination against blacks, women, homosexuals, etc.

                  One of is clearly confused about Caplan’s argument. On my view, he’s not arguing for re-introducing governmental discrimination against women. He’s advocating for the repeal of laws preventing the private discrimination of women.



      • I don’t know why you consider that an uncharitable explanation. It’s really, really important that we have people like that. Consensus needs to be challenged, And in cases where the consensus is enforced by the PC police, that’s often the only kind of person who will challenge the consensus.


        • Basically, I would bet that the average person who indulges in this trope ascribes a lot more power to the “PC police” than I do.  IMHO, sexist discourse isn’t seriously verboten in modern society (hell, look at the recent Limbaugh flap–if even that could find defenders, than arguing for coverture is small ball).  So making this argument is kind of like coming out as a gay marriage supporter in the Castro.  As Reddit would put it, “SO BRAVE”.


  4. Marriage can’t be a contract.
    Any contract has to provide for auditing provisions, or it’s not enforceable.

    I remember reading about the domestic exception which was evolving during the 19th century. One of the early cases was a woman in New York seeking a divorce from her husband, who had fled to Wisconsin to prevent it. The New York court ruled favorably to the Mrs. & the Wisconsin court ruled favorably to the Mr. The federal suit was dismissed under Rule 12.
    I’ll see if I can find that.


    • Barber v. Barber, 1858.  I wrote about it in my paper “Law, Legislation, and Local Minima.”

      In brief, if the wife had standing to sue, then she wasn’t married to the husband — thus not entitled to a divorce or an alimony.  But if she didn’t have standing to sue — because she was still married — then the court had to dismiss her case, even though her husband really had abandoned her.


      • There was only one catch and that was Catch-22, which specified that a concern for one’s own safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn’t, but if he was sane, he had to fly them. If he flew them, he was crazy and didn’t have to; but if he didn’t want to, he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.

        “That’s some catch, that Catch-22,” he observed.

        “It’s the best there is,” Doc Daneeka agreed.


      • You’re pretty sharp, Jason.
        My sources tell me that this was derived from British Ecclesiastical Law rather than British common law.
        And also that the domestic exception is a discretionary abstention. In fact, the paper argues against it.


        • The Court did a good deal of spluttering about how Mr. Barber was a very bad person.  In the end they rather mysteriously discovered an exception to the rule of coverture that prevented conduct like his.


  5. This seems to me to be one of those times where someone has a thesis they are very invested in being correct, and is scrambling hard to make an argument that twists its way around historical facts to the contrary.

    The libertarian model may (or may not) be the best government framework in the long run, but tying your argument that it is so to the claim that women were far freer/as free in the 19th century as they are today (or freer than men were in the 19th century due to military service) will not only convince entirely no one, but might make you look like a misogynist to boot.

    (BTW, I am not saying that Caplan is a misogynist – have no idea.  But I am saying saying if he doesn’t want 21st century women to think him one, he might want to way away from this battle.)


  6. I usually hate it when folks throw the “P” word around but, seriously, there is so much male privilege steeped in the assumptions behind why he thinks it’s okay to argue this stuff in public that it makes me feel like Freddie.

    Jesus Christ, dude. Think about your mother. Think about your sister. Think about your daughter (if you don’t want to think about your wife (and if you ain’t married, think about your nieces)).

    This is a blind spot the size of the swing of Tiger Woods.


    • Yeah.  My take on the Limbaugh-Flluke thing was originally that he just royally pissed off anyone who has a mother, a wife, or a daughter.  But I underestimated the power of partisanship.


    • It’s not clear to me that any reasonable person would take personal offense from Caplan’s post. It’s not as though he said that women should be forced into coverture. If his wife were the kind of person who would take this sort of thing the wrong way, I doubt she would have married him.

      And it kind of sounds like you’re saying that he should be less concerned with the truth than with signaling that he’s on the side of the angels. Criticizing an argument because it’s logically wrong is fine, but criticizing it because it’s socially wrong strikes me as problematic.


      • Re-examine his argument and swap out “men” for “women” and “women” for “men” in your head.

        Think about men trading away their agency, their property, and their self-determination. Think about what the law would assume if there were ever a conflict between the two of them. Think about what might happen if, for example, there was violence and who would automatically be assumed to be the initiator of the trouble.

        Well, if they wanted to come home and do whatever they felt like, maybe they shouldn’t have thought with their other head.

        Hey, it’s just a joke. Maybe if they weren’t such bastards their wives wouldn’t be in a bad mood all the time.

        If he wanted a divorce, doesn’t that just indicate that he’s a quitter on top of how much bad judgment and poor impulse control he has? It’s not like he was likely to find someone else who was willing to put up with his shit. (He’s put on weight too.)

        What coverture entailed *IN PRACTICE* hasn’t even been scratched with the snide comments there… but I thought that making analogies to violence in a marriage would detract from my point. (But you know what coverture entailed *IN PRACTICE* when it came to violence? Stuff that reasonable people should take personal offense at.)


        • You mean if someone said that I should have the option to enter into a contract? Caplan just did. Again, he didn’t say anyone should be coerced into it. He didn’t say that it’s a great thing that we should all go back to. He said it should be an option because people should have the right to enter into any kind of contracts they want. It’s a specific aspect of a very general principle. Now, Jason has a point about how under common law specific performance can’t be compelled, and maybe there are good reasons for that. But while that might make Caplan’s argument wrong, it doesn’t make it morally beyond the pale.

          I really can’t see taking personal offense at the suggestion that I should have an option that I don’t have now.

          Think about what might happen if, for example, there was violence and who would automatically be assumed to be the initiator of the trouble.

          I think you’re trying to describe some hypothetical parallel universe, but…that’s kind of the case for men now. I used to read a feminist blog pretty regularly, so I’ve seen most of the above said in earnest. Whatever. No skin off my nose. What I do find offensive is that they want to force their stuff on me—to limit my options.

          It’s also worth noting that Caplan wants to give women radically more freedom on several other dimensions. I don’t think he should get less credit for that just because he also wants to extend it to men as well.


            • The absence because no one wants to marry into a coverture marriage isn’t coercion.

              The absence because someone decided to make it illegal as a form of marriage, is those people “forcing their stuff” on whoever wants to have a coverture marriage, for whatever reason.


              • Do you also think it’s terrible that there is an “absence” of slavery as a form of private property?

                No?  That’s not a bad absence?

                I thought you libertarians believed in private property!

                Now, predius, take all those things you’d say in response to the above, and apply them to coverture.  The parallel is exact, down to the last detail.  We forbid coverture in marriage because liberty means not being subject to the arbitrary will of any other person.  That’s why slavery is bad, and that’s also why coverture is bad.  Now throw in two more facts.  First, you need a very invasive, very coercive government to make either system work, and second, neither of these institutions will survive long in practice without a whole lot of other laws that coerce bystanders into cooperating with them.

                If you and your wife wish to play at coverture marriage, you may do so (you may also play at slavery if you like, and I hear it’s actually pretty fun).  But as long as you share a government with me, I will object when it forces anyone else to comply with your little game.


                • Good response.  Seems that the arguments in loose defense of Caplan’s position assume that government enforcement is the only factor in determining individual liberty.  Societal, cultural, and religious norms are often more powerful than the local law.  If coverture marriage was made an option, I can easily imagine religious fundamentalists of various stripes pressuring their daughters and sisters into it.  We still have arranged marriages, the far side of the quiverfull and convenant marriage movements, fundamentalist LDS, and insular jewish communities that require a get for a true recognized divorce.  Can Caplan et al not forsee how many of these self isolated communities would jump on coverture marriage as being religiously proper?


            • Sorry – who wants to “force their stuff on me” again? How is the absence of coverture marriage in modern society “forcing their stuff” on anybody?

              That might not have been entirely clear. I was referring to the economic and regulatory agenda of the feminist left, not to the absence of coverture, which is just fine with me.


          • I really can’t see taking personal offense at the suggestion that I should have an option that I don’t have now.

            Of course not.  The problem though is that coverture never was just one option among many.

            Historically, coverture was a part of a system of oppression.  Coverture interlocked with lots of other oppressive legislation to deny half of humanity anything like what we might term freedom or liberty.  This system even did its work in ways that an exceedingly narrow and doctrinaire contractarian should find highly objectionable.

            I’ll have more to say about this in a future post, but to pluck coverture out of this system, examine it in isolation, and then proclaim that the nineteenth century was a freer time for women is not just factually incorrect.  It is so factually incorrect that it does indeed become offensive.


          • You’re talking about folks doing stuff “in theory”. I’m talking about how this shit has played out whenever it’s been attempted “in practice”.

            Here’s an analogy for you: Marxism.

            You know how Marxism on a governmental scale always ends up with a pile of bodies?

            Coverture, in practice, ends up with one person owning another.

            Your “in theory” questions ask about stuff like “well, in ancient Greece, slavery was actually not that bad! Educated slaves were tutors of children, they got to sit at the table, they got wine!”

            Sure. What was the history of slavery in the US like? Do you really think that you are entitled to have me not be reminded of slavery in the US when you start talking about how nice it’d be to allow the option of slavery in the US and start talking about the Greek system?

            You don’t get to talk about the upsides of 18th century coverture without me thinking about the downsides… and then you don’t get to feign offense when people get offended that you wave them away when you dismiss their questions about the downsides with a discussion of the importance of “choice”.


  7. So where’s the follow-on argument that slavery and indentured servitude, if done with sufficient contracts is okay, too?

    I mean, seriously…what the flying fuck? Is he serious?


    • I saw those via Sully. It comes off better when it comes from a woman.

      When a man makes these arguments, it’s hard for the obvious rejoinder of “then why dont you voluntarily take on that kind of role in your marriage, company and society” just hangs in the air and makes everybody uncomfortable.


  8. Out of curiosity, would Caplan agree to similar conditions for men? In other words, would he endorse this same scenario, except reversed genders?


    • To be clear, Caplan never endorsed coverture as the legal default. He just said that–given the ability to opt out–it wasn’t as bad as the non-optional regulations and taxation to which women (and men) are subjected today. He said that the first-best option would be separation of marriage and state.

      And his more recent post was explicitly not gender-specific.


      • The non-optional regulations and taxation to which people are subjected to today? What non-optional regulation and taxation? He has options. He just doesn’t want to utilize any of them, because the cost for doing so outweigh the benefits that he would accrue.


  9. Yeah, Caplan really can be too contrarian for his won good sometimes.  There are occasions where I wonder if he says some things just because he wants to see the expressions on people’s faces.


  10. And yet you Libertarians continue to associate with the right wing, “conservative” types who would like nothing better than to push society back to 1950s-era or earlier coverture relationships and lack of women’s rights. The same movement from which Misogynist Romney, Rick Sanctimonious, and the “Quiverfull Movement” and “Promise Keepers” developed.


  11. Fine post, but I find it a statement of just how screwed up libertarianism is (particularly with regards to anyone who isn’t white, male and well-off; ‘male’ being the important category for this specific post) that you actually need to make a post outlining why depriving married women of all legal rights is a bad thing.


      • Which is it, do you agree with Katherines statement about libertarianismism, or do you think Bryan is an exception? I can’t believe you agree with Katherine. Incredible. And you call yourself a libertarian? I don’t get this. Really, I don’t. What exactly do you think of libertarianism, and why do you call yourself one? Or, am I mistaken and you’ve never really claimed to be a bonafide libertarian, just civil libertarian-leaning on certain issues? Perhpas you think it’s a problem, anyway, identifying oneself as a libertarian. So you think libertarianism is screwed up, particuarly as it excludes all others except white males in its ideology. I just don’t know what to say. No wonder the Kochs are concerned about Cato. I don’t mean to be harsh, but this is surprising.


        • Mike, if you don’t mind, I’d like to ask you a question. Let’s say there are two conceptions of freedom, or liberty, that may be relevant in political discussions. The first is a concept of freedom based on the personal will. Freedom, on this view, is lack of constraint on individual action. So maximal freedom is obviously equated, in some way, with the absence of constraint. Another conception of freedom is more political. This view might be characterized as the maximal set of permissible actions consistent with another person’s freedoms. On this view, freedom is inherently limited to a consistent set of principles, or types of actions, none of which by definition restrict or limit another persons exercise of their freedom.

          On the first definition, maximizing individual freedom will necessarily mean eliminating constraints on individual behavior, usually understood as those imposed coercively on the individual by external sources. On the second definition, maximizing liberty is more of a balancing act, and is internal to the conception of liberty, since what constitutes one person’s freedom may entail – and unintentionally at that! – a restriction on another person’s exercise of their freedoms. And if so, then that action is excluded from being included in the set of basic liberties ascribed to all.

          Now, the question: do you think some libertarians conflate the two concepts?


        • I don’t mean to be harsh, but… oh please.

          I am both an economic and a civil libertarian.  Bryan Caplan and I probably agree much more often than we disagree.

          I do not agree that “libertarianism excludes all others except white males in its ideology.”  I also note that you, and not Katherine, seem to have been the first one to say as much.

          I do however think that there are a few very wrongheaded tendencies within the libertarian movement.  They’re not found in the majority I don’t think, and they’re by no means necessary bits in the ideological apparatus either.  They can be extracted without any harm, and when that’s the case, I will happily do it.

          One of these is the tendency to idolize nineteenth century, an era that libertarians really should have overwhelming — and rock-solid libertarian — reasons to reject.  Bryan’s guilty of that here, and I’m calling him on it.

          I’ll have a post later tonight explaining why in more detail.  I would advise not calling the Kochs to tattle until then, if you can possibly help it.


      • Jason,

        This is what Katherine wrote:

        “Fine post, but I find it a statement of just how screwed up libertarianism is (particularly with regards to anyone who isn’t white, male and well-off; ‘male’ being the important category for this specific post) that you actually need to make a post outlining why depriving married women of all legal rights is a bad thing.”

        You said — Sadly I agree. What did she mean by the white males comment and what are you are agreeing with? You act like I made up what I wrote, that I wasn’t responding to what Katherine wrote, or what you said you agree with. This is dishonest.


        • Perhaps this is thick libertarianism, which in most cases is dishonest obscurantism disguised as nuanced thought. Drilling down to why a Mickey Mouse concern receives so much scrutiny, several explanations are believeable. The subject and the author under consideration are both small in relation to a larger understanding of liberty. Modern liberalism’s social template at least relieves the underlying sense of unworthiness when whole, large groups of humans are stripped of individuality and made to fit a social theory of justice, and, within the theory, the identities of the participants are protected from the crude realities of diversity. Even when concerns for the unfortunate and oppressed are best dealt with as individuals set forth in the liberty to see and respond or go blind and hide, the Social Liberal would often rather feel better in meaningless posture and group-conformity than participate in the hard work of creative, generative interdependency that’s against the grain of the status quo. 



        • What did she mean by the white males comment and what are you are agreeing with?

          I am agreeing with the blindingly obvious fact that the libertarian movement is overwhelmingly white and male. Or had you not noticed?

          I disagree however with the inference that you made, namely that I think this represents an ideological problem.

          I’m very sorry you think that women’s equal legal status to men is a “Mickey Mouse” problem.   Honestly, it’s attitudes like this that keep libertarianism a fringe movement, instead of the major political force that it should be.  Our intellectual ancestors, the classical liberals, certainly didn’t dismiss women’s equality as a phony concern, and it deeply disappoints me to find that you do.


          • “I’m very sorry you think that women’s equal legal status to men is a “Mickey Mouse” problem. Honestly, it’s attitudes like this that keep libertarianism a fringe movement, instead of the major political force that it should be. Our intellectual ancestors, the classical liberals, certainly didn’t dismiss women’s equality as a phony concern, and it deeply disappoints me to find that you do.”

            You are really dishonest aren’t you? When someone confronts your ideas and you feel offended, you twist your foe’s words to smear and disparage. This is weak and despicable. I was calling Caplan’s over-the-top defense of a principle that’s not a danger presently Mickey Mouse, and if you were honest, you would realize that I care about women’s rights as much as I care about all rights — I’ve stated this clearly many times. I can’t believe you’d stoop to this. You ,sir, are pathetic, and it’s this dishonesty that is ruining this place — you are piss poor representative of libertarianism.


            • Is it possible — like, just a little bit thinkable — that maybe you misread my original comment?  And that I, being a bit sore about the whole thing, misread you in turn?

              Nah.  It can’t be that.  It must be that one of us is evil.

              Let’s keep writing nasty comments at each other until we figure out who it is.


              • I didn’t call you evil, but nice try to set things straight — more baseless accusations. I said you are dishonest, but calling you “evil” makes me seem more rightwing fanatic like, I understand. I at least asked for clarification in my first response, but you got snooty. If you read what Katherine wrote, and how you replied, you can see how I was flabbergasted. Even if you meant that libertarians are mostly white, what has that got to do with what they believe about women’s rights? You can see the confusion. And you can see where Katherine was implying that you have to support women’s rights against libertarians who care nothing about them. If you weren’t agreeing with that implication, you would have corrected Katherine by making it clear that Caplan is not representative of libertarians. People have to be responsible for what they write and imply — and it’s obvious what Katherine was implying and what you agreed with.

                You are just like Julian Sanchez when you demean my responses as if I’m an unreasonable fanatic who doesn’t understand higher levels of thought. It’s amusing.


                  • This whole thing is such a straw man, as if libertarians have a problem with women having the same legal protections as men. It’s fucking laughable. I’ve always thought of you as bright and level-headed, but this is ridiculous. It’s like when some on the Right had a problem with government forcing the Catholic Church to provide coverage that’s against the Church’s beliefs, then all of sudden the whole Right Wing, according to the Left, is an enemy of women’s rights and out to eliminate contraception. It’s almost too weird to take seriously, but the fact that these accusations are made by supposedly serious thinkers is dangerous enough to refute without any equivocations.


                • I don’t know what Julian ever said to you, but in general I take great pride in being compared to him.

                  If you wish to draw distinctions between “evil” and “dishonest [and] despicable,” that is of course your perfect right.  The truth is that I don’t understand why we’re fighting here.  I still don’t.  I tried to defuse things with humor, and clearly I failed.

                  Libertarianism has an image problem.  The problem, bluntly, is that people like Katherine are overjoyed when they discover stuff like Bryan Caplan writing about coverture.  It confirms all their worst prejudices about him, about you, about me, and about libertarianism.

                  Now, I value negative political liberties above all other political considerations because I think that these conduce to human potential for everyone — all colors, genders, religions, and everything else.

                  Left-liberals don’t agree, but that’s a different debate from the one that they, the left-liberals, would like to be having.  They’d much prefer to discover some secret bigotry within you and me and then be done.  It would make things very easy for them.

                  I don’t intend to make it easy, because I don’t believe that my ideology depends on that sort of bigotry.

                  What Bryan is doing is wrong on several levels.  It’s wrong most importantly in terms of libertarian theory, because it certainly sounds as if he’s endorsing a lot of things that no libertarian could possibly endorse.  It’s also wrong in terms of public relations, because it’s politically odious.

                  Now, some libertarian positions really are politically odious, but they’re also solidly libertarian, so I’m happy to enunciate them myself:  We should sell heroin in drugstores.  Let’s open the borders.  Free banking would be awesome. Et cetera.

                  I know those things don’t win me any friends.  I say them because I believe them.  But to say something that’s both unlibertarian and unpopular?  Why?  Just… why?


  12. Would that more conservatives would yell when conservatives say something dumbassed and that said dumbassery ought to be embraced by more conservatives.

    Would that more liberals would yell with liberals said something dumbassed and that said dumbassery ought to be embraced by more liberals.

    As it stands, a libertarian said something dumbassed and that said dumbassery ought to be embraced by more libertarians… and good on the libertarians who said that this was a dumbassed thing to say.

    Sadly, libertarians will still be asked “did you complain about (whatever)?” the next time libertarians complain about a conservative/liberal dumbassed statement made at a high level.


    • I think what you’re presenting as a symmetry in outliers isn’t the case. A higher percentage of libertarians say dumbassed things than liberals or conservatives (well, maybe not conservatives…).

      I don’t mean that as a criticism, actually. Libertarianism has been coopted by a bunch of FYIGM types that are already in positions of privilege, and who think that further government intervention will only undermine it. So they argue, as you said upthread, from a place of privilege first, and fill in the Principles later. Tthat’s what I tell myself in my more charitable, lucid moments, anyway.


          • Actually, I’ll try to defend it in a weird way. Allowing that there is only a rough correlation between Dems/ Libs and Reps/Cons, consider the dumbassery of statements made by representatives of the two major parties (at both the national as well as state level!). Allowing that media personalities only fuzzily represent their audiences views, consider the dumbassery of statements made by ‘conservative’ media with ‘liberal’ media. Allowing that libertarians are a tiny fraction of the total internet culture, compare the dumbassery of libertarian statements to those made by libs or cons (and compare the libs and cons while your at it).

            Granted, it’s subjective. But I’m asking you to subjectively evaluate the categories.

            Caveat: I’m on record as saying that conservatives have gone insane. But I think I could (and have!) actually argue that!


            • No, I’m saying your sampling methodology is problematic, because you’re using the same methodology to sample populations that have differing correlations, and that’s kind of polluting your results.

              I’d guess that there are a lot of people who squishily identify with both Liberals and Conservatives.  I would guess that there aren’t quite as many people who squishily identify with either Libertarians or Socialists.

              I think Jason does have a point, up above, “The contrarian streak in the libertarian movement is wider than necessary for either tactical purposes or even just libertarian purity.”  That probably applies pretty well to Socialists, as well.  But the contrary factor is correlated with Socialism/Libertarianism mostly because it first requires you to be passionate enough about the whole problem sphere to identify as something, and then it requires you to be passionate and principled enough (for some meaning of the word, “principled”) to reject both of the status quo options and go third party, essentially.

              But I think if you were to correct for the contrary cusses who are mostly into either libertarianism or socialism to be contrary first… and then you cut out the outright nuts out of all four groups, you’d be left with a fairly consistent group of Thinkers who Occasionally Say Things of Dumbassery.  The contrary folk are probably saying Dumbassed things largely because they’re contrary, not because they’re libertarian.  Does that make sense?

              Now, since the libertarians and socialists are already “out there”, their Dumbassery will represent as off by two degrees towards the libs and cons, since most people are liberal or conservative.  So it seems dumbassed examples of dumbass political philosophy – double dumbass on you!

              I personally find people who are more mainstream but say dumbassed things to be more dumbassed, for various reasons.  But that may just be me.


      • I don’t mean that as a criticism, actually. Libertarianism has been coopted by a bunch of FYIGM types that are already in positions of privilege, and who think that further government intervention will only undermine it.

        The FYIGM smear doesn’t fit the data. Disagreements between the left and libertarians are largely about how much we should tax the wealthy to subsidize the lower and middle classes. The vast majority of people in both groups are not particularly wealthy. If anything, it’s the leftists who appear to be motivated by naked self-interest.


      • I think what you’re presenting as a symmetry in outliers isn’t the case. A higher percentage of libertarians say dumbassed things than liberals or conservatives (well, maybe not conservatives…).

        I submit that you merely believe this because you don’t recognize your own side’s dumbassery. As an outsider, I can assure you that it’s endemic.


        • FYIGM = Fuck You I Got Mine

          When you say you’re an outsider, I’m not sure what the means. One of the things I’ve been very keen on lately is this idea, presented by nonpartisan, that they have a perch from which to judge that both sides say equally dumbass things. I’m not sure I agree with that, primarily since adopting that view reinforces the idea that their non-partisanship is justified: both sides are crazy. I’m not sure the facts bear that out. I mean, almost every time a non partisan talks an equivalence between the two parties, it’s a false equivalence. And of course, from you’re point of view, the fact that I (a liberal) am making this claim is understood as further confirmation that I’m blindly partisan, and a result, even if  I presented a sound argument it would be rejected based on the presuppositions of NonPartisan Theory.

          I see no reason why a person who aligns themselves with a certain political orientation is rhetorically disallowed from making objective statements about politics or policy. And if that’s not true, then the so-called ‘nonpartisan’ is also disallowed from making those judgments.

          In the end, I think partisanship is used as a weapon by nonpartisans in exactly the same way nonpartisan’s think partisans use it.


          • “One of the things I’ve been very keen on lately is this idea, presented by nonpartisan, that they have a perch from which to judge that both sides say equally dumbass things.”

            FWIW, speaking as someone that publicly eschews both parties pretty loudly (and embraces a kind of pragmatism), I think this is an assumption that people assume of me but which is not the case.


          • I know what FYIGM means. I was proposing FYGMY as the left-wing version, which I elaborated on in the comment directly above the FYGMY comment. As I said, this fits the data better than the FYIGM smear, though obviously it’s not entirely fair in all cases.

            I’m an outsider to the left. That is, I can recognize left-wing dumbassery as such because I haven’t accepted it myself.


  13. Jason, Do you think the Kochs are libertarians?  I always thought of them as monopolists that would do and say anything to increase their net worth.  I am not trying to be difficult, just looking for clues.


    • I think they started out as libertarians.  I suspect that they have gravitated toward conservatism lately, in both its neocon and social conservative forms.  My evidence?  I joke about supporting Michele Bachmann, because for me it’s preposterous.  But they did it for real.


  14. Michele Bachmann is one of the reasons, if I were king for a day, I  would end gerrymandering for all time.  Another thing I would do is make the neocons tell the truth about foreign interventionism.


  15. This was an interesting read, and had some good points to consider.

    Query:  What’s wrong with a marriage contract including coverture but also including a limited term on the marriage, say 10 years?  Parties automatically revert to the state they were prior to the marriage.


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