April 2, 2012 columns

Coverture and Liberty

Kuznicki discusses coverture and the limits of liberty of contract.

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 legal and financial 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.