

Divorcing marriage? - jacques_chester
http://skepticlawyer.com.au/2013/04/11/divorcing-marriage/

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nhashem
I really liked this, namely because I had never thought about this from this
angle. The interaction most people have with marriage and the state is
taxation on income. It would seem like it wouldn't be too difficult to just
eliminate the option to file jointly and be done with it -- the state is no
longer involved with marriage!

This article does a good job explaining it's hardly that trivial. It reminded
me of Steve Yegge's blog post about legalizing marijuana[0], and a simple
concept becomes impossibly complicated when you consider all the practical
scenarios and edge cases. Hopefully, you'll never be in a situation where the
government has to rule on something like a disputed inheritance, but it has
and will do so, often basing its decision on previously established precedent.

What struck me was the logical step that this is a good defense against the
slippery slope arguments, because gay marriage is ultimately an incremental
step. We have laws and legal precedent for marriage between two people, and
we're effectively just saying those laws can apply to a marriage of two people
of the same gender. A typical Republican counterargument to the legalization
of gay marriage is that you open the door for marriage to be between multiple
partners, or between children, or animals, or whatever absurdity. It's
impossible for gay marriage to trivially lead to say, marriage to an animal,
because the state will have to define and rule on an entire cohort of new edge
cases. If you're gay and married and have a child and you die, it's pretty
uncontroversial that your partner would maintain custody of the child. But if
you are married to your dog and adopt a child and die, does your dog get
custody of the child? That's basically absurd.

So, I feel this essay gives me a good answer the next time a right-winger asks
me if the government allows gay marriage, what's to stop them from allowing
other sorts of bizarre marriage scenarios: the government would have to come
up with a bunch of different rules that are way more complex than gay
marriage, and we probably won't want to do that.

[0] [http://steve-yegge.blogspot.com/2009/04/have-you-ever-
legali...](http://steve-yegge.blogspot.com/2009/04/have-you-ever-legalized-
marijuana.html)

~~~
larsonf
Absolutely. These things are incremental and at each step we try to be as fair
and realistic as possible.

But what do you think about this?

I think there's something interesting in there, though. In some ways, this
argument really acknowledges that laws _really are_ tethered to reality. It's
not so much a matter that we can simply _will_ a legal situation into reality.
What's fascinating, though, is that this idea that things are sort of stuck in
the realities of the past-- that people really do like to be monogamous, that
kids really are something that people do, that inheritance issues are going to
be there--is a very conservative position relative the progressive approach,
which really does sort of say 'we can decide how to structure society'. I mean
when was the last time you heard someone say that 'we can educate this
demographic because there's 200,000 years of historical precedent'.

I don't care either way. But I'm just noting that there is a profound
conservatism within the push to state-defined marriage. Why _now_ want to
respect historical precedent as more or less permanent and yet disregard
tradition elsewhere?

~~~
jacques_chester
She mentions Hayek in passing several times, which is worth noting. He wrote
quite extensively about the difficulty of replacing "spontaneous order" and
evolved institutions with rational designs conceived from scratch.

The basic problem is that the law is complex because human relations are
irreducibly complex; and that the law takes human relations as its problem
domain.

This is essential and not accidental complexity.

Those of us in STEM professions are good at reducing complexity, but a lot of
the time we deal with complexity by simply discarding details in favour of
abstractions that cover _enough_ of reality that the cost of the mismatch is
below the cost of building a more accurate model.

Lawyers are rarely able to exercise such discretion. The courts are obliged to
give definitive answers.

------
r0s
All I get from this is a bunch of hand-waving that the problem is too complex
to consider, and libertarians are the only group that want marriage
privatized. Never mind the fairness of the law. I think this issue spans the
US as well, so I'll respond in that context.

Point for point:

1."the presumption against intention to create legal relations when the
parties are in an intimate relationship. ... That presumption would need to be
statutorily reversed, with, of course, unknown consequences."

Marriage is already the exception, it doesn't follow that a revision of
marriage law would reverse that convention universally.

2\. Non-libertarians (or even, non-strawman libertarians) also want marriage
decoupled from the state.

3\. "Even without duress, the ordinary law of contract would take a good long
look at some of the family structures tolerated in Sharia and may well find
find undue influence (England and Rome), facility and circumvention (Rome) and
unconscionable dealing (England and the Commonwealth)."

Marriage laws preventing abuse are redundant and can be cut.. what's the
problem?

4\. "a mass of new law will have to be enacted, worked through and litigated;
it will cost a fortune and clog the courts for years."

That's a salient point. I think we'll have to decide if equality is worth it.

5\. Interesting points to consider for a revision of current law.

6\. Irrelevant to the merits of state sponsored marriage.

Interesting perspective all around! I'd like to know more about ancient Roman
law.

~~~
jacques_chester
> _Marriage is already the exception, it doesn't follow that a revision of
> marriage law would reverse that convention universally._

You'd have to legislate to abolish the presumption, otherwise it will continue
to be applied. That's how the common law works. And having abolished the
presumption, all the law that flows from it is now thrown out and you start
from scratch. Actually, worse: _some_ will get thrown out and you will need to
make _two_ decisions in all the early cases -- _what_ still applies, and if it
doesn't, what is the new rule?

> _Marriage laws preventing abuse are redundant and can be cut.. what's the
> problem?_

Her point here is addressed to religious libertarians, who want the state out
of marriage so they can impose more onerous terms. She says that they wouldn't
get what they want anyhow; if you make it into a contract, then contract laws
will come along and void a bunch of religious practices.

The complexity is always going to be there. Moving it from the "family law"
heading to the "contract law" doesn't make the complexity go away. It will
just jam up the courts while everything is rehashed from scratch.

She often discusses contrasts between Roman and Common law, if that interests
you.

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3pt14159
Without state there shall be no order cried the politician.

No, what would happen is that you would get a series of contracts that are
universally used by a subset or group.

Essentially what it boils down to is this: Do I have the right to make an
agreement with an uncoerced, sober adult?

"Oh but she is a woman and didn't know better than to sign the pre-nup" ->
shouldn't matter, unless she was coerced.

"Oh but giving all your inheritance to male heirs is icky and doesn't give
with our values" -> shouldn't matter. Don't let them in the country if you
don't like the practices of their consenting adults.

As for the tax code stuff: That is what you get for taxing stupid things like
investments and income at different rates depending on the amount invested or
earned. Fix that.

~~~
gamblor956
1) Contract law is meaningless without the power of the state to enforce
contracts. Otherwise, it simply devolves into who has the most guns and is
willing to use them. This is great for the violent, but not so great for
everyone else. (See, e.g., the drug trade.)

2) Sobriety is not necessary to enter into a contract, but it is a factor that
could be examined to determine if a person actually intended to enter into a
contract. Coercion generally voids contracts.

3) Fraud is considered a form of coercion. Pre-nups are largely invalidated
not by the failure to sign a pre-nup but because the wealthier spouse (usally
the husband) has failed to diclose all their assets, which the courts
generally deem fraud because the party represents that they have made a full
and complete disclosure.

4) That's perfectly acceptable if you choose to do it in your will. It's just
not acceptable for the state to mandate that only males may receive
inheritances.

5) Agreed, but that's what you get when you let millionaires draft the tax
code.

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adrianlmm
I'm sorry, but that guy is wrong when he say that marriage is a contract, is
not, marriage is an alliance.

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adrianlmm
I'm sorry, but that guy is wrong when he sates that marriage is a contract, it
is an alliance.

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jacques_chester
For the record, since somebody will bring it up anyhow in a breathless blast
of conspiracy theorising: I host this website (along with a bunch of others).
No: I don't get money from the ads, the authors do.

I submitted it because Helen Dale is an excellent thinker and writer and
deserves a wider audience.

~~~
rayiner
Very interesting piece, and a great way to make the basic point: getting rid
of marriage would be like rewriting Windows.

