Rad Geek People's Daily

official state media for a secessionist republic of one

On people as possessions

Here's a pretty old post from the blog archives of Geekery Today; it was written about 14 years ago, in 2008, on the World Wide Web.

Did you know that your marriage license is a property title to your spouse’s body and affections? Just ask Jake Knotts, conservative Republican and arbitrary legislator over the state of South Carolina:

COLUMBIA — Men and women who seduce married people could be sued by jilted spouses under a proposal that won initial approval from S.C. lawmakers Thursday.

You know, we protect our automobiles. We protect our homes. There’s laws to protect everything, and we just need laws to protect the family, said the bill’s sponsor, Sen. Jake Knotts.

— Jim Davenport, Myrtle Beach Sun Times (2008-04-18): Bill aims at marriage interlopers

Here’s where the bill is at:

The S.C. bill says someone can recover unspecified damages if they prove wrongful conduct between their spouse and the defendant during their marriage and that the defendant caused them loss of affection or consortium of their spouse.

The bill was approved by a Senate subcommittee on the heels of a study this week that found divorce and out-of-wedlock births cost S.C. taxpayers $469 million each year and $112 billion overall for U.S. taxpayers. The study was done by groups that advocate more government action to bolster marriages.

The chairman of the subcommittee said failed marriages are damaging society and there should be repercussions for interlopers in marriages.

Whatever we can do to strengthen the bonds of matrimony, we ought to try, said Sen. Larry Martin, R-Pickens.

— Jim Davenport, Myrtle Beach Sun Times (2008-04-18): Bill aims at marriage interlopers

You might have thought that the best way to strengthen a marriage is to be kind and respectful to each other, to talk things out that need to be talked out, and generally to treat your spouse like a free and equal human being rather than as one of your precious possessions. You might also have thought that a husband or wife remains her own person after the wedding, and can do what she will, even if she makes choices that are foolish, hurtful or wrong, because her spouse has no enforceable claim on anything more than she freely gives of herself. But Knotts, Martin, and their colleagues think you ought to be able to call out the force of the State in order to punish interlopers, if you don’t want other people touching your things.

I’ve heard no word yet whether or not the South Carolina senators are considering an amendment to the criminal code for branding cheaters with a scarlet A.

Rad Geek’s Note. The study is The Taxpayer Costs of Divorce and Unwed Childbearing: First-Ever Estimates for the Nation and for All Fifty States. The principal investigator is Benjamin Scafidi. The Marriage-Nationalization groups that sponsored it are the Institute for American Values, the Institute for Marriage and Public Policy, the Georgia Family Council, and Families Northwest. I mention this because one of the ways that the press spreads bogus research and dumbs down the discourse is by presenting out-of-context factoids from uncited studies by anonymous experts or groups, without giving any of the information a reader would need to get started on following up on the claim. In these days it’s trivial to put a brief note in print and even more trivial to add a link to a story posted on the web. I’ll do it here if the Responsible News Professionals won’t do it themselves.

30 replies to On people as possessions Use a feed to Follow replies to this article · TrackBack URI

  1. TGGP

    Why are taxpayers paying anything for divorce? This reminds me of the trans-fat, smoking, seat-belt and helmet legislation justified by medical costs.

  2. Laura J.

    Seems like divorce would cost the state even less if the state wasn’t involved in it.

  3. John K.

    “You might also have thought that a husband or wife remains her own person after the wedding, and can do what she will, even if she makes choices that are foolish, hurtful or wrong, because her spouse has no enforceable claim on anything more than she freely gives of herself.”

    Oh, I don’t know. I think there’s worse laws and state actions to get worked up about. Already in the common law there’s something called unlawful interference with a contract, and marriage is a contract, and even in an anarchist society contracts would be enforceable. I bet that in a polycentral legal order there will still be standard forms of contracts, because people generally won’t want to explicitly negotiate in the run-up to the marriage what happens if one of them commits adultery. And even in an anarchist society you’ll still have the problem of what to do about non-parties to the contract who knowingly interfere with and cause the breach of a valid contract. All this law is doing is specifying the terms which govern the standard marriage contract offered by the State. I presume that people are nevertheless free to draw up a pre-nup that varies from the standard contract by saying that if either party commits adultery they will be held harmless and that the person the party commits adultery with will likewise be held harmless, etc.

    On its face the clause this politician is proposing to add to the standard contract and liability of interlopers in the contract does not seem outrageous. If you want to cheat on your spouse, “fine,” but you should tell him or her first. Otherwise you’re committing fraud, a form of aggression. Likewise, it seems obvious to me that if you know a woman is married and has made certain promises to her spouse and you decide to induce her to break those promises, you’re committing aggression against the husband. That doesn’t make either party to the marriage mere “property.”

  4. quasibill

    “Otherwise you’re committing fraud, a form of aggression.”

    Not necessarily. It’s easy to throw out the term “fraud” without actually knowing what is required. Fraud requires a knowing misrepresentation, or a failure to inform when there is an affirmative duty to do so. I don’t see any affirmative misrepresentation – the spouse most likely did intend to keep her wedding vows when she made them, and only later determined to breach them. But that later breach does not automatically turn her initial promise into a misrepresentation.

    You can argue that marriage creates such an affirmative duty, but I don’t think that it is a foregone conclusion in that respect. It could go either way, and I think it would be a highly fact-intensive question (is there emotional or physical abuse involved? etc.) even if you favored the implied duty.

    “Likewise, it seems obvious to me that if you know a woman is married and has made certain promises to her spouse and you decide to induce her to break those promises, you’re committing aggression against the husband.”

    Wow, that’s pretty expansive definition of aggression. Under this standard, we could hold musicians and video game designers for the actions of criminals (they induced them to actually commit violent acts, instead of merely inducing them not to keep a promise). I don’t agree with the current tort of interference with contract (it’s a relatively recent tort, also) for the same reason. Encouraging another party to breach a contract is not aggression in any way – the party to the contract is responsible for their own actions.

  5. Araglin

    Rad,

    I want to partially-concur with John K. on this one. Because contracting for marriage is and never will be complete, there will be a legitimate place for the law to supply default or off-the-rack terms to fill the gaps in contracting.

    As long as the cheating party remains within the marriage association (i.e., has not manifested to the other spouse his/her present intention to separate), there does not seem to be anything contrary to natural justice about holding the cheating spouse civilly liable for the “breach” of the marriage contract. From this point, it is not much of a stretch to also hold liable a third party who either induces the spouse to “breach” the marriage contract, or is otherwise complicit therewith.

    While you rightly state that no person has an enforceable claim on the body or affections of another person, one may have a claim over some subset of the worldly goods of a person (as a result of what one does with one’s body or affections), so long as the particular associational bond endures. It may be that, while I remain the agent of another, I must obey my principal’s lawful commands and generally act in his or her best interests (or face civil liability therefor). However, upon my declaration to my principal, that “I quit,” the duty of loyalty, previously enforceable by money damages, terminates instantly. Even under the circumstances, however, one would remain liable for any injury caused by acts or omissions which occurred (or failed to occur), prior to one’s quitting.

    That said, I would worry in the case at hand, that the default marriage terms are not, properly, to be determined by reference to what persons getting married in South Carolina would have wanted had they bothered to fully spell-out their intentions in a marriage instrument, but on the particular (and perhaps parochial) vision of the legislators as to what a marriage “should be.”

    I would also worry about the retroactive application of new laws (which would have the effect of changing the default rules) to marriages entered into at a time when other default rules generally prevailed.

    Thanks, Araglin

  6. Bob Kaercher

    I second quasibill. My understanding is that in an anarchist society the breaking of contracts that [I]imply theft of property[/I] would justify legal action. I don’t see how a marriage contract implies that one partner can rightly claim control of the other.

    And what is this nonsense of “inducing” someone to cheat on their spouse??? That’s a bit of a stretch.

  7. Araglin

    Bob,

    I emphatically agree with you that no partner has a right to control the other.

    To clarify, my position is not that anything has been stolen when the spouse cheats. It’s more analogous to any promised undertaking to perform a service, or to forbear from performing a disservice:

    Suppose I enter into a contract with you wherein I agree to mow your lawn. If I therafter refuse to mow it, can you force me to take up the mower and do as I promised? No.

    But that does not mean that you cannot recover damages from me? That depends on the (perhaps tacit) terms of the agreement.

    It may be that the contract involves the transfer to you of title to certain of my assets, conditioned upon the non-performance of the promise to mow your lawn. So long as the promise to mow your law is fulfilled, title to all of my assets remain in me. However, if or to the extent I fail to so fulfill the promise, the asset transfer becomes complete, entitling you to seize the subject assets and sell them in partial conpensation for the broken promise. Likewise, mutatis mutandis with the promise of a spouse to “forsake all others.”

    As for “inducing” others to breach a contract, I wouldn’t argue that all third persons with whom a spouse cheats could be legitimately held liable, but only those who know or have reason to know of the marriage (and its anti-infidelity terms). If one comes across another in a bar, wearing a wedding ring, that perhaps ought to put one on notice that that other is married, and if one thereafter takes her up to one’s hotel room, one might be liable at law therefor. Whereas, if that other had previously removed her ring and persuasively pretended to be single, then a different result would most likely obtain.

    Hopes this sounds less preposterous…

  8. JOR

    “Encouraging another party to breach a contract is not aggression in any way – the party to the contract is responsible for their own actions.”

    Just out of curiosity, what do you think of those libertarians who think it’s perfectly fine to hire a hit man to kill someone, as long as you don’t do the dirty work yourself?

  9. Rad Geek

    John K.,

    Oh, I don’t know. I think there’s worse laws and state actions to get worked up about.

    Well, yeah, but it doesn’t have to be the worst law or worst state action in the world for me to think it’s worth writing about.

    On the question of contract enforcement, I disagree with you, for reasons I’ll mention below. But let me first say that one of my main concerns here was not just the policy details of this law, but (just as much, probably more) with the rhetoric used to explain and justify the bill. (In several media reports, the bill was described as letting you sue a seducer who stole your spouse. Consider also, for example, You know, we protect our automobiles. We protect our homes. There’s laws to protect everything, and we just need laws to protect the family. One of these things is not like the other….) If you’re right, then it may be possible to incite a spouse to breach a contract for certain services she had agreed to render (however, see below…); but even then, patriarchal power trips notwithstanding, it is impossible to steal affections, spouses, families, etc., because it’s impossible for the alleged victim to own those. Having a rightful claim for the rendering of a service, or to damages if the service goes unrendered, is not the same thing as owning the service, or the fruits of the service, that you expect to get.

    Already in the common law there’s something called unlawful interference with a contract,

    Like quasibill, I don’t accept this as a legitimate tort. A contract only imposes binding duties of justice on those who have willingly agreed to the terms of the contract, not to unrelated third parties. If there is a violation of justice involved in adultery, the responsibility rests solely with the cheater, not with partners who never made any vows to the wronged spouse.

    and marriage is a contract,

    It’s extremely common for libertarians to say this. But I’m not at all convinced that this is true. Marriage vows look a lot more like reciprocal open-ended promises to me rather than a well-defined quid pro quo contract. If marriage is a contract, then what is it a contract for? To mutually love and honor? To be in love with, and/or to be in love only with, your spouse? To have sex with, and/or to have sex only with, your spouse? Till death do you part, or only until the marriage is formally ended by a third-party arbitrator, or until the marriage is formally ended by consent of both spouses, or at-will for each spouse? All of these are things that are conventionally promised in a contemporary American marriage. But none of the things promised and given in currently conventional marriage are things which are alienable from the person making the vow–affections, affectionate actions, sexual consent, and emotional or sexual monogamy are all things that must continually be freely given, rather than so many goods that are just turned over once and for all. There is no such thing as a contract for any of these things where specific performance can be enforced (otherwise, that would allow for, e.g., contracts to have sex that can be enforced by raping the party of the second part in case of a breach). For the contract to be enforceable there must be some explicit provision for an alienable bond that is turned over as consideration in case the terms involving inalienables are breached. But as far as I know, the marriage ceremony (by itself) involves nothing of the sort. Certainly mine didn’t. Without any alienable consideration involved at all, what you have is not a contract, but rather a pair of very open-ended promises which may be immensely important emotionally and morally (certainly my wife’s and mine are to us), but which don’t amount to any kind of enforceable contract, and which, if broken, only end an at-will association which had been freely made between the spouses. And thank goodness for that, too! I, for one, have no desire at all to impose any enforceable demands on my wife for intimacy or affection or monogamy any longer than she wants and chooses to give those things freely out of her own desire, and not out of feeling like she needs to obey the terms of some contract.

    Obviously, if there is an explicit negotiated contract including some quid pro quo consideration for faithfulness to the terms of the marriage (as is the case in most pre-nuptial agreements), then that can establish a contract. But in that case the contract is the negotiated pre-nuptial agreement, not the marriage itself. And in those cases, again, the only terms that can be enforced by specific performance are those that involve alienable considerations (e.g. provisions for money or other forms of property to be exchanged).

    Likewise, it seems obvious to me that if you know a woman is married and has made certain promises to her spouse and you decide to induce her to break those promises, you’re committing aggression against the husband.

    How? You’re not aggressing against him, and he doesn’t have a legitimate proprietary interest in anything that his spouse gives you (her emotions, sexual consent, etc. all remain hers, not his, even if she has promised to make use them in a certain way, and even if she has made an enforceable contract to make use of them in a certain way). Even if she is somehow violating his rights (which I deny; see above), that does not mean that a third party is also violating his rights by cooperating with her in doing it.

    Doing so may very well be completely unethical, but not a violation of any enforceable rights.

    Araglin,

    As I mention above, I deny that marriage, as conventionally practiced, is a contract or could ever be construed as a contract. It involves a pair of vows, but not all reciprocal promises are contractually binding.

    While you rightly state that no person has an enforceable claim on the body or affections of another person, one may have a claim over some subset of the worldly goods of a person (as a result of what one does with one’s body or affections), so long as the particular associational bond endures.

    O.K., but then the issue isn’t alienation of affection by the seducer anymore, but rather the deceptive use of alienable property by the spouse.

    And, anyway, how often is a concrete agreement for like this–for a quid pro quo exchange or sharing of property as part of the marriage–really a part of contemporary marriages? My wife and I never made, and never wanted to make, an agreement like that.

  10. Rad Geek

    JOR,

    If I hire out a hit on you, the issue is not just that I’m inducing the assassin to violate an obligation that she has to you, but that I’m violating a pre-existing obligation that I have towards you — not to kill you against your will. I have that obligation already prior to any agreements anyone made. But if I convince your spouse to sleep with me, I’m not violating any pre-existing obligations that I had to you. Your spouse agreed to the terms of your marriage; I didn’t. If they are binding on anyone, it’s only on those who actually did agree to them.

  11. JOR

    Charles, but you’re not killing me. You’re inducing someone else to try and kill me.

    Now maybe there’s nothing unjust in adultury. Maybe there’s nothing even wrong or dishonorable about it. But in any case case that’s a separate question from whether inducing someone to do something wrong or unjust is, itself, wrong or unjust.

  12. Araglin

    Rad,

    Thanks for your thoughtful reply. I think I probably agree with everything you’ve said. Upon reconsidering the issue, I do think it is defensible to simultaneously deny a right for the jilted spouse to recover against the third party “interloper,” as you have done, while at the same time refusing to commit to the view that only one who physically performs right-violating actions can properly be held liable therefor (which latter view, probably professed by Walter Block, was adverted to by JOR). There seems to be an important distinction between a person who induces a hitman to commit agression (itself a rights-violating activiity) or is otherwise complicit in the violation of a person’s rights, and the seductive actions of an “interloper” who merely induces the married person to violate a promise to remain faithful, which happens to be linked via certain contractual conditions to the transfer of title to certain assets. There WOULD, then, be a case against the “interloper,” if he/she after their tryst, assisted the unfaithful spouse in absconding with the now-fully-transferred assets.

    The one place we may disagree is as follows:

    I think that a party who breaches a contract for services can justly be held liable for reasonable damages at law for failing to perform as promised (on the conditional-transfer theory), even when there is not an explicit provision specifying agreement as to exactly how much money (or other alienable goods) will be forfeited upon the failure to do as promised, so long as the recovery of reasonable damages is part of the “standard” or conventional apparatus invoked when an an agreement is made.

    More pointedly, I don’t think that unless a contract is drafted to specifically explain the canonical, libertarian title-transfer theoretical basis for the obligation to pay damages, that a person who undertakes to perform a service can rightly simply walk away (after giving back whatever he has already received in exchange).

    Here, as elsewhere, when there is not a fully-spelled out contract, the actual, enforceable terms of a contract will largely have to be “discovered” by referenced to the data of custom, convention, tradition, and/or other circumstantial evidence of the likely intent of the contracting parties.

    Given the existence of the above-described standard terms (allowing reasonable damage for breached promises to perform a service), if one wants to reserve the right to so walk away, it is probably incumbent upon one to spell that out is a “limitation of remedies” provision.

    During times of rapid social change, and cross-cultural mixing, with radically different visions of the good vying for adherence, such conventional or customary data probably fail to usefully serve this gap-filling function, because there is now a mad proliferation of different concepts about what a normal (not pre-tailored) marriage is. In this sense, I think that cultural heterogeneity and cultural dynamism, while in many ways wonderful, can indeed “increase transaction costs.”

  13. quasibill

    “Just out of curiosity, what do you think of those libertarians who think it’s perfectly fine to hire a hit man to kill someone, as long as you don’t do the dirty work yourself?”

    Personally, I’d say morally (ethically) wrong, but not a rights violation. (and in fact, in my favored jurisprudence, the purported hitman would be free to keep your money and just walk away).

    But I recognize that it is a close call, and that depending on the subjective weighting of different values, different communities could develop different standards on the topic. It’s sort of a “hard cases make bad law” issue – I think this one single circumstance is sufficiently different from all other circumstances that I don’t want to draw a fundamental principle from it. I think it’s a mistake to try and create a broad rule from such unique circumstances; much better to treat it as the exception to the general rule, if you’re so inclined to value the hitman contract as a rights violation.

  14. Araglin

    Quasibill,

    You yourself have seemed to have staked out a different position in the context of discussions of corporations and limited liability. In that context, you appeared to defend holding a person liable for lending his car to a visibly-drunk person, who later hits someone. Is the difference that in that case, the drunkard is using your property (car) to cause the damage, whereas, here, presumably the hitman is using his own gun? What if he takes the money you give him to buy bullets? To me there ought to be secondary liability not only for putting property into the custody of another who predictably uses it to violate the rights of others, but also for those who otherwise use others as means to commit rights-violations (one who solicits a rights-violation or is otherwise an accessory before the fact).

    I’d be curious to see how you sort these issues out. Perhaps your preferred juriprudence concedes without apology the inevitably ad hoc nature of many ground-level legal rules.

  15. quasibill

    Araglin,

    You are correct in identifying the issue as one of causation. If I merely hire someone and say I will pay them after the hit, or pay them before without them using the money to commit the hit, then I have not contributed materially to causing the death. So, yes, I agree with you that there is a difference when property transfers occur that predictably result in harm to another, but as I mention below, I’m not going to say this standard is objectively correct, merely that it is my preference. My reasoning has changed slightly since I made the corporation arguments, but my basic point there is still valid – I am categorically against both automatic immunities and automatic liabilities. Each case should be judged according to the merits of the precise circumstances.

    “Perhaps your preferred juriprudence concedes without apology the inevitably ad hoc nature of many ground-level legal rules.”

    Absolutely. I think there are some general principles that can be posited that best serve the interest of peaceful co-existence, but where “the rubber hits the road,” other values tend to get added to the balance, and since the weight of these values is to a large extent subjective, I think it is a mistake to try and posit the existence of universal rules that apply even to the hard cases. I have my preferences in those regards, but I’m not going to claim that my preferences are objectively correct.

    I’ve recently come around to preferring a system based more or less explicitly on morality (at least for intra-community disputes): “lawyers” will not be arguing arcane legal precepts, but whether what their client did was in conformance with community mores and morality. I think in many instances, this is what happens anyway, even with the superstructure of legal abstractions added on.

  16. John K.

    My rather flippant first sentence in my comment above notwithstanding, I certainly do see this as a topic worth your while to write about. It’s provoked an interesting discussion. The flippancy was more or less a reaction to your [moderate] outrage at the proposed statute, which I see as not all that terrible or unjustifiable, at least on its face. I do agree with you that the rhetoric used to justify the proposed statute is reprehensible, as affection etc. is indeed not “property.”

    I unfortunately don’t have time at the moment to contribute a substantial response to your substantial and thoughtful response, except to say that what I see as maybe the biggest problem with the statute is how it might be applied in the real world. One can imagine situations where the husband is a real abusive jerk and the wife would be better off without him. Are you liable under this statute if you’re friends with the wife and you support her in her troubles and suggest she get out of a bad relationship and in the course of your friendship you get romantically attached, and your friendship and counsel is a contributing factor to her leaving the husband? I think the ambiguity of real world situations such as these and the associated problems with getting down to the truth of the matter is why most states have moved towards “no-fault” divorce.

    But what I had in mind in my comment above was actual adultery, under the nose of the deceived cuckolded spouse. For an innocent or relatively innocent party, that can be the cause of serious unjust emotional suffering, and our common law does provide for monetary compensation for such harms unjustly inflicted (e.g. in cases of libel, etc.). In principle therefore, where the fault of one party is clear, I’d prefer that the wronged party be generally favored in any divorce settlement. I also don’t see anything necessarily wrong or outrageous in principle with holding outside parties liable for knowingly and actively participating in the wrongful breach of important promises by one of the parties to a marriage contract (i.e. actual adultery), although there are certainly practical problems with such an approach.

    People in a marriage contract remain free persons, and the nature of the contract as most people understand it today is that either party is free to leave it at will. But it’s a serious wrong if you don’t have the courtesy to let the other party to the contract know that you’ve “left” and instead commit adultery behind his/her back. It’s likewise a serious wrong if you’re having sex with someone whom you know is deceiving his or her spouse in this manner. It’s just wrong to knowingly participate in someone else’s wronging of another person (and isn’t the difference between participating in someone else’s wronging of another and you yourself wronging that other person just semantic?), and it’s not obvious to me that such wrongs are not at least in principle compensable.

  17. JOR

    quasibill – okay, I figured as much.

    Personally though, I take just the admission that paying for an assassination is even considered a hard case at all, to be a good argument against plumb-line libertarianism. It seems to me that if I induce someone to do something evil, I’m at least an accomplice to that act. (And, I don’t think that making violent video games or movies counts as ‘inducing’ for this purpose).

  18. John K.

    To maybe put it in a shorter version: I agree that a husband or wife does not have a proprietary interest in his or her spouse having sex with him or her, so that “loss of affection or consortium” makes little sense. The wife remains free to refuse to have sex with the husband whether or not she’s committing adultery with someone else. So the injury to the wronged spouse whose spouse’s affections have been alienated is not that he or she is not getting sex anymore from the spouse. Rather, I see the injury more in terms of the spouse’s lost opportunities with other potential mates in reliance upon the false assumption that his or her spouse is likewise “forswearing all others,” and in terms of the deep insult and treachery that inheres in this particular kind of injury.

  19. Rad Geek

    JOR,

    Charles, but you’re not killing me. You’re inducing someone else to try and kill me.

    Depends on what you mean by killng me, I guess. I am causally contributing to your killing, in a very direct way, although I’m not pulling the trigger, and although I would not have succeeded in getting you killed but for the voluntary cooperation of the third party who does pull the trigger. But I’m willing to call that participation in killing you, just as I’m willing to say that, e.g., the owner of a store participates in selling me a screwdriver even if she didn’t personally make the exchange at the check-out counter.

    In the case of hiring out a hit, I’m directly participating in an action that I personally have an obligation of justice not to participate in (with or without any contractual arrangements). If I sleep with someone else’s husband or wife, then, whether or not I’m participating in something that they have accepted an obligation of justice not to participate in (in virtue of some contract), I’m not participating in something that I have accepted an obligation of justice not to participate in (since I never made any contracts at all).

    For what it’s worth, I do not intend to suggest that there’s nothing wrong with knowingly sleeping with somebody else’s spouse. The point is that if you’re being unscrupulous, the scruples that you ought to be exercising are scruples related to a virtue other than justice, and (therefore) not enforceable.

  20. John K.

    Rad Geek:

    I guess our difference of opinion comes down to: while you recognize that we have an obligation of justice not to participate in killing someone (e.g. through hiring out a hit) with or without any contractual arrangements, you don’t recognize a similar obligation of justice independent of any personal contractual arrangement not to participate knowingly in adultery. For me, however, it’s not obvious why you would have an obligation of natural justice in the one case but not in the other. E.g., catching your spouse in the act of committing adultery has long been considered a mitigating factor lessening the culpability of killing the spouse and/or the interloper on the spot. Killing the interloper in such a situation is considered an overreaction, and so is still punished by the law even if the punishment is mitigated. If the interloper did not know that the person he was sleeping with was married, then the “interloper” is of course innoncent. But if the interloper was aware of the marriage, then I for one think he or she is deserving not necessarily of death but of a severe beating or something analogous, and if the wronged spouse administered such a beating upon catching the interloper and the adulterous spouse in the act I don’t think the wronged spouse would be guilty of any crime. Recognizing the justice of such a retaliatory beating suggests the justice of civil liability in place of the beating.

    If I screw somebody’s wife I’m kind of screwing the husband too. While the wife presumably has consented, the husband presumably hasn’t. I’m willing to bet that most married people would rather have you punch them in the face or steal their car rather than screw their spouse behind their back.

  21. JOR

    Charles, my intention wasn’t to dispute whether adultery is unjust, or otherwise immoral. I don’t think it’s ever unjust, but I do think it’s usually immoral. My aim was just to figure out of quasibill (and I guess whoever else wanted to answer) really held the position that inducement to do something unjust is not itself unjust.

  22. quasibill

    As I was pondering this last night, I had a thought: If the point (or a point) of the law is to allow for peaceful coexistence, a contract to hit another is at odds with that fundamental purpose, and therefore categorically different from other contracts and speech. That could easily be a justification for treating it differently from other contracts.

    Just wanted to note it. Thanks everyone for the challenging conversation here.

  23. Rad Geek

    John K.,

    E.g., catching your spouse in the act of committing adultery has long been considered a mitigating factor lessening the culpability of killing the spouse and/or the interloper on the spot.

    I’m familiar with the legal precedent on excusing men for jealousy murders and assaults. I disagree with that legal practice; I think that it’s patriarchal, barbaric, and unjust.

    If I screw somebody’s wife I’m kind of screwing the husband too.

    No, you’re not. Her body is her own, not her husband’s. You’re not doing a thing to anything that rightfully belongs to him.

    JOR,

    That’s fine. What I’m trying to point out is a distinction between two different kinds of inducement, which may complicate the debate over the principle you’re considering: (1) inducing a person to do something that would be unjust for you (as well as for her) to do, as against (2) inducing a person to do something that would be unjust for her (but not for you) to do.

    quasibill seems to want to argue that neither (1) nor (2) is an injustice per se (although he’ll allow exceptions to the general rule where it makes enough difference to the possibilities of peaceful social coexistence). You seemed to want to suggest that both (1) and (2) are injustices. My (tentative) view is that (1) is an injustice in itself but (2) is not (although it may very well be immoral for other reasons).

  24. John Markley

    Good lord. There are probably metaphors to talk about marital fidelity that are even more distasteful than “we protect our automobiles,” but I’d have to think a while to come up with one. And this guy probably feels really good about himself for upholding the dignity and sanctity of the institution, too.

  25. John K.

    “Her body is her own, not her husband’s.”

    But I think this is somewhat at variance with what most people traditionally understand to be the terms of the marriage when they enter into it and while it lasts. This may not be your conception of marriage, but what really matters is the conception and assumptions that are held by the society at large and especially by those members of society who enter into marriage.

    A spouse does not “own” his or her spouse’s body, and doesn’t have the right to have sex with the spouse whenever he or she feels like it, but does have a right to expect, based usually on explicit promises or vows, that the spouse will not sleep with other people. While certain rights are inalienable, I do think that the right to have sex with people other than your spouse is alienable (at least while you stay in the marriage relationship), and this is precisely what most people generally do when they enter into marriage.

    So as distasteful as framing it in terms of “property” may be to you (and to me — there must be a better word), I suppose that a husband and wife, according to the most prevalent conception of marriage, “own” each other’s bodies in the above very limited sense. They’ve mutually transferred this limited right of “ownership” voluntarily, and are free to undo that mutual transfer — upon notice to the other party. In the absence of such notice, the transfer stands.

    I don’t think the best response to someone who has transgressed against this limited (but individually and societally important) “ownership” (geez — what’s the better word I’m looking for?) is to kill them or beat them, and seeking money damages against them actually seems pretty pathetic and silly. But I do think that a playa who disregards this “property” right of others — when most people who enter into marriages understand themselves to have given and received this right — does so at his peril, and rightfully so.

    So damn, I guess I sound closer to that legislator who compared automobiles to marriages than I thought. But not really. Simply recognizing the obligations and rights of matrimony does not necessarily entail reducing those rights and obligations to the level of one’s rights to a mere commodity, as that legislator’s rhetoric suggested.

  26. Mike Enright

    Rad–

    Marriage as an at will association seems a bit strong. Do you think ther is a difference between marriage and living together? From your explanation, I can’t see why marry–other than any legal benefits.

  27. Rad Geek

    Mike,

    My view is that marriage is at-will in the sense that it imposes no contractually binding obligations of justice on either spouse beyond the point at which either chooses to end the marriage. Spouses do have moral duties to each other that can’t just be ended at-will, but those duties are duties of a different kind from the duties involved in a binding contract.

    The difference between just living together and getting married is that marriage involves exchanging promises. All other things being equal, the spouses ought to keep their word to each other. But not because they are contractually bound to do so.

  28. John K.

    Hey everybody, my apologies to the proprietor of leftlibertarian.blogspot.com, to whom I inadvertently linked my name in my comments above. My blog, which I’ve neglected for the past couple months, is actually leftlibertarianquaker.blogspot.com. Was in too much of a hurry I guess and forgot I was a Quaker.

  29. quasibill

    As I was reading Roderick Long’s post on Ruwart, I realized that child porn and “snuff” films are other boundary conditions relevant to this conversation – what do you say about the person who buys such films? Is he materially contributing to the prior crime? Is he materially contributing to future crimes?

    What if the revenue generated comes from advertising on a website that publishes such films or pictures (in other words, the customer visits the site for free, but the advertiser pays the filmmaker based on some pagehits formula?)

    What about forming a group that is a consumer’s cooperative for such films? No production, but willing to pay for the films?

    Does the answer depend on the temporal relationship, as I posited for the hitman (I argued that as long as my money wasn’t used to further the hit, I should not be liable), or can causation be expanded?

    I think I’m going to stick by my prior position that boundary cases like this shouldn’t be shoehorned into the broad rules – that they should be treated as exceptions, and that there isn’t really an objectively right answer for them (though there could be objectively wrong answers).

  30. Araglin

    Quasibill,

    Thanks for introducing this topic to the discussion. The major difference that occurs to me is that, unlike in the hitman case, there is no sense in which one’s contribution (via purchasing such horrible materials) may be considered a but-for cause of the relevant rights violations (whether past or future). Because of this feature of the case, I think that many libertarians would categorically say that, despite the moral repugnance of this behavior, there is absolutely no way to stop it aside from moral suasion, ostracism, etc. However, at this point, I think that Professor Long’s recent article entitled “On Making Small Contributions to Evil” may be of use in explaining possible means by which one could coercively enjoin this sort of behavior…

    Unfortunately, I haven’t seen much of anything in the way of discussion of the Professor Long’s article, so I have not clue as to what people think of its line of argument.

Post a reply

By:
Your e-mail address will not be published.
You can register for an account and sign in to verify your identity and avoid spam traps.
Reply

Use Markdown syntax for formatting. *emphasis* = emphasis, **strong** = strong, [link](http://xyz.com) = link,
> block quote to quote blocks of text.

This form is for public comments. Consult About: Comments for policies and copyright details.

Anticopyright. This was written in 2008 by Rad Geek. Feel free to reprint if you like it. This machine kills intellectual monopolists.