Free Thoughts Blog

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, theyforfeited 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.

In our newest video from a 1999 International Society for Individual Liberty event in Costa Rica, Ramon Diaz tells the story of Austrian economist Friedrich Hayek’s life, including Hayek’s debates with John Maynard Keynes in the 1930s at the London School of Economics and the founding of the Mont Pelerin Society in 1947. Diaz also talks about what he considers to be Hayek’s greatest contribution to economics: the principle of spontaneous order.

Ramon Diaz made his career as a journalist, university professor, and economist. He teaches at the National University in Montevideo, Uruguay and served as the Chairman of the Central Bank of Uruguay from 1990 to 1993. Additionally, Diaz was the president of the Mont Pelerin Society from 1998 to 2000.

After far too long away, I’m finally returning to my series on the philosophy of political obligation. I’ve already introduced some of political obligation’s central concepts and explained why it matters. Now I’d like to begin exploring the major theories that attempt to explain how we might come to owe political obligations to the state. (Links to further posts in this series can be found in the “Theories of Obligation” section below.)

Let’s start with a story.

Small Town Life

You were born and raised in the United States, specifically a small town in Montana, where you’ve lived all your life and have no intention of leaving. You’ve got a spouse, two kids, some land, and cattle. There’s really nothing remarkable about you, in fact–except your taste for raw milk, which you don’t buy from anyone but instead get straight from your own cows.

Now, being a citizen of the United States, the federal government believes you owe it certain obligations, chiefly to support it through taxation and to obey its laws. The government of Montana feels the same. So when Montana passes a new tax–three dollars per head of cattle, say–in order to fund improvements to your town’s roads, it expects you to pay up. If you don’t, you’ll violate your political obligation and Montana’s agents will come after you.

Further, the FDA doesn’t much care for raw milk, so Washington’s made it illegal. The political obligations (they say) you owe them mean you’d better stop drinking it now or their agents will come after you, too.

So you’re facing a situation where the law says you face two specific political obligations: to pay a tax on your cattle to support road construction and to stop drinking raw milk. But do you in fact have these obligations? Clearly you don’t have freestanding moral (i.e., non-political) obligations in regard to either. There’s nothing immoral about drinking raw milk. And you don’t owe for road improvement in the way you would owe a contractor you hired to build you a garage. You didn’t ask for improved roads, after all, and you don’t even really want them. The roads they have now work just fine.

Theories of Obligation

Theories of why we have political obligations tend to fall into five broad categories: consent, gratitude, fair play, association, and natural duty. Here I’d like to very briefly introduce each and note how it might apply to the two hypothetical obligations introduced above. In subsequent posts, I’ll explore each in more detail, illustrating how proponents of the theory would use it to support the existence of general political obligations–and then show how each fails to meet the challenge.

The consent account is perhaps the easiest. Here, you have obligations because you consented to them. You agreed to obey the law and support the state by some statement or action you took. This could mean something as obvious as saying, “I agree to obey the laws and support the state.” But it needn’t be that explicit. You might have appeared in a crowd, with an agent of the state standing up front. The agent said, “Anyone who doesn’t consent, raise your hand.” By not raising your hand, you (perhaps) consented, thus creating political obligations. In our Montana story, maybe you consented to pay for road improvements by driving on the existing roads regularly when you went into town to run errands. Maybe you consented to obey the state’s laws–including the law against consuming raw milk–when you decided to remain in the United States instead of moving to some other country where raw milk consumption faces no prohibition.

Gratitude (covered in two posts: part 1 and part 2) gets around the need for explicit or implicit consent by arguing that, because the state gave up something to create a benefit for you (e.g., by paying for roads), you owe the state a debt you must repay. Clearly this theory applies to the roads example, but it’s not immediately clear how it would obligate you to avoid raw milk. We typically repay debts by giving back in kind what was received (money for money, help a friend move in return for the time he helped you move, etc.). “Obedience” doesn’t seem to fit.

The legal philosopher H. L. A. Hart set out fair play rather clearly in a 1955 essay: “When a number of persons conduct any joint enterprise according to rules and thus restrict their liberty,” he wrote, “those who have submitted to those restrictions when required have a right to a similar submission from those who have benefited by their submission.” Building roads was a joint exercise in which the residents of Montana restricted their liberty by paying taxes for their construction. You benefit from this submission, so fair play says you need to similarly restrict your liberty. Again, however, this doesn’t jump out as an answer to the why you need to obey the raw milk ban.

In an association-based theory, you have a duty to obey laws and support the state based on your association with or membership in a political community. In the same way you have duties to your family members, your friends, and your neighbors, you also have duties to your fellow citizens, even in “associations” as broad as the United States. If the association account works, it applies to both the road tax and the raw milk ban.

Finally, a natural duty account argues that we have a moral duty to obey the state not because we benefited from it but simply because the state or its institutions are just or because doing so creates a better world. Like association-based accounts, the natural duty account is rather thick, meaning that, if correct, it obligates us in a much broader fashion than fair play or gratitude.

Of course not all theories of political obligation fit neatly into these five categories. A popular trend in modern scholarship, for instance, is to draw from two or more, using the strengths of one to fill in for the weaknesses of another.

In the next post I address consent theories in more detail. Consent unquestionably creates obligations–even political obligations–but ultimately does so in far too narrow a way to support the kind of broad obligations necessary for the legitimacy of most governments.

Mao Yushi, one of China’s most outspoken and influential activists for individual rights and free markets, has been named the 2012 winner of the Cato Institute’s Milton Friedman Prize for Advancing Liberty. The award will be presented on the evening of May 4 at the Washington Hilton, and will include a keynote address by New Jersey Governor Chris Christie and special remarks by John Stossel. Established in 2002 and presented every two years, the Milton Friedman Prize for Advancing Liberty is the leading international award for significant contributions to advancing individual liberty.

Cato has more information about Mao here. At Libertarianism.org we published not too long ago one of his essays, “The Paradox of Morality,” in which Mao explains the role that markets play in bringing about concord and cooperation.

In our newest video, Tibor Machan (who is portraying Aristotle and dressed in a toga) talks about skepticism in philosophy and offers a few quick critiques of postmodernism.

Machan is professor emeritus of philosophy at Auburn University, the R.C. Hoiles Chair of Business Ethics and Free Enterprise at the Argyros School of Business & Economics at Chapman University, and an adjunct scholar at the Cato Institute.

This lecture was given at the 1995 World Libertarian Conference of the International Society for Individual Liberty in Athens, Greece. Machan contends that a common strain running through philosophy has been an expression of skepticism for observed reality and that postmodern thought conveys a degree of separation between the perception of a thing and the thing itself.

Today George H. Smith brings us the fourth in his series on the critics of state education. He explores the Voluntaryist critique of those who support free trade in religion and commerce but advocate state interference in schools as well as the debate between J. S. Mill and Herbert Spencer about the proper role of government in education.

When fellow free-traders, such as Richard Cobden, supported state education, the Voluntaryists took them to task for their inconsistency. Those who embrace free trade in religion and commerce but advocate state interference in education, argued Thomas Hodgskin (a senior editor of The Economist) in 1847, “do not fully appreciate the principles on which they have been induced to act.” “We only wonder that they should have so soon forgotten their free-trade catechism,” wrote another Voluntaryist, “and lent their sanction to any measure of monopoly.”

Read the rest here.