More on Marriage

A commenter on my previous post suggests that what has changed may be law, not technology:

Since the 1970s, divorce courts have ruled consistently against men even when a woman violates her marital vows, such as by committing adultery. Adultery is essentially a form of fraud and theft -- a reneging on a contract where the one owes chastity to the other. Typically, there was some punishment, even perhaps physical punishment, for women who committed adultery. The result is that government has essentially made marriage, in the traditional sense, illegal. It is illegal for a woman to take a vow of chastity in the USA which is legally enforceable.

He links to a very long essay on the topic.

His claim that traditional marriage is now illegal is an overstatement; it is still legal to promise fidelity to your spouse. It is legal to enforce that promise by non-legal means — social, moral or religious pressure, the threat of retaliation within marriage. The contract is not illegal, it is legally unenforceable.

Wise Children

“It is a wise child who knows his father.”

Until very recently, the only way a man could be certain that the children his wife bore and he helped rear and support were his was for him to be his wife’s only sexual partner, the term of the marriage contract whose loss the commenter deplores. Now all it takes is a good lab. Paternity testing has eliminated one of the facts on which past institutions for human reproduction were based.

That does not eliminate the value to the husband of his wife’s chastity but it makes the situation more nearly symmetrical between husband and wife. An affair by the wife may lead to a weakening of the emotional bond with her husband, just as an affair by the husband may lead to a weakening of the emotional bond with the wife, in either case threatening diversion of resources and disruption of the marriage. But there is no longer the asymmetrical risk that, arguably, explained the greater emphasis in traditional society on female than on male fidelity.

Another relevant change is easy divorce. That too raises both the questions of both cause and effect. One explanation of cause, the explanation suggested by the commenter’s linked essay, is ideology. An alternative starts with the problem to which traditional marriage was, arguably, the solution.

I Gave Him the Best Years of my Life: The Problem of Opportunistic Breach

Two firms agree on a long-term joint project. One will research and design a new product, the other will produce and market it. The first, having done its part of the job, hands over the designs — and, in a world without enforceable contracts, the second firm dissolves the agreement, produces and markets the product, and keeps the money.

A couple marries. For the next twenty years, the wife is bearing and rearing children—a more than full-time job, as those who have tried it can attest. The husband supports the couple but not very well, since he is still in the early stages of his career.

Finally the children are old enough to be only a part-time job and the wife can start living the life of leisure that she has earned. The husband gets promoted to vice-president. He divorces his wife and marries a younger woman.

It makes a better soap opera than my first story but the economics are the same. In a traditional marriage, the wife performs her part of the joint project early, the husband late. That timing, combined with easy divorce, creates the potential for opportunistic breach—encouraged by the fact that most men find women more attractive at twenty-five than at forty-five.

Once women recognize that problem, as by now they have, they adjust their behavior accordingly. One way is to become less specialized to the job of housewife, to have a career and hire someone else to clean the house and watch the kids. Another is to postpone or spread out childbearing, so as to make the pattern of performance by the two partners more nearly the same. Both adjustments fit, and may help explain, changes of recent decades, including the increase in both age at first marriage and age at first child.¹

The economic explanation of the effect of easy divorce suggests a possible explanation for why it happened. In most past societies, infant and childhood mortality made it necessary for a woman to produce multiple children in order that two would survive to adulthood. Now it only takes two. That change, plus the shift of much of what used to be household production to the market, meant that a woman no longer had to specialize to the full time job of being the wife of a particular man and the mother of their children.

The enforceable long-term marriage contract had costs as well as benefits, most obviously the cost of making it hard to correct a mistake in choice of spouse. The cost is still there, the benefit has been reduced by the reduction in sunk cost. Divorce is still costly for both partners but not as costly as it was two hundred years ago. That may explain the decline in the institution.

Alternatives

One alternative to either a traditional or a no fault system is to allow a couple to choose what rules their marriage will be under. That was to some degree true of marriage in Islamic law, since a contractual agreement such as a commitment by the husband not to take a second wife without the permission of the first wife was enforceable. The one modern example I know of is Louisiana marriage law; a couple marrying in that state can choose an ordinary marriage or a covenant marriage. The former has no fault divorce. The latter permits divorce only for cause.

Another alternative to the extremes of fault and no fault divorce is to permit divorce by mutual consent.² That looks like a clear improvement over a strict fault system² but it may in practice be possible for either partner to convert mutual assent de jure into unilateral divorce de facto. The problem is illustrated by al-Tanukhi, a ninth century Arab judge who produced a volume of anecdotes for the entertainment of his contemporaries.

A woman stood waiting on the road for the Vizier Hamid ibn 'Abbas and complained to him of poverty, asking alms. When he had taken his seat, he gave her an order for two hundred dinars. The paymaster, unwilling to pay such a sum to a woman of her class, consulted the vizier, who said that he had only meant to give her two hundred dirhems. But as God had caused him to write dinar for dirhem, gold for silver, so the sum should be paid out as it was written.

Some days later, a man put a petition into his hand, wherein he said that the vizier had given his wife two hundred dinars, in consequence whereof she was giving herself airs and trying to force him to divorce her. Would the vizier be so good as to give orders to someone to restrain her? Hamid laughed and ordered the man to be given two hundred dinars. (The Tabletalk of a Mesopotamian Judge)

Under Islamic law a wife could not divorce her husband. She could, judging by the anecdote, make being married to her sufficiently unpleasant to force him to divorce her. That alternative is still available, in a modern society, to either a husband or wife who wants to pressure the other partner into agreeing to a divorce. It is arguably more available than in a traditional society, since the decline of well defined gender roles makes it harder to treat the terms of the marriage contract as clearly defined and enforceable.

A similar issue exists with a system that requires fault — a couple that wants to divorce may be able to convert de facto consent to de jure fault. In a society with a legal but not a social requirement of male fidelity, the husband can produce the necessary fault by confessing to adultery, real or fictional.³

Back to Polyandry

A commenter points me at an interesting variant of polyandry still practiced, illegally, in India, one that solves some of the problems with the institution:

One brother stays home with the woman, working in agriculture for a year or so, while the other moves to a larger city thousands of miles away to work as a manual laborer where pay is better. Then the brothers switch places.

After reading your post, I realized this arrangement also ensures that if the woman becomes pregnant, they know fairly reliably who the father is. The physical distance also ensures that there is no sexual jealousy.

I learned this from someone who had moved to the city from such an arrangement. He said this practice essentially ensures that the woman (who is often married at the young age of 14 or older) does not have affairs. It is seen as preferable to be intimate with a husband's sibling than with someone outside the family. Additionally, others in the village know the woman is "protected," so they are less likely to pursue her. Secondly, children are taken care off even if the father knows they are not his, because after all they are still his own blood (through brother). Grandparents too have no reason to discriminate against grandkids.

Another commenter links to a Wikipedia article on polyandry in India that discusses variants of fraternal polyandry, past and present.

1. The argument here is borrowed from “Marriage, Divorce, and Quasi Rents; or, ‘I Gave him the Best Years of my Life’” by Lloyd Cohen. 16 J. Legal Stud. 267 (1987)

2. The argument is that a divorce desired by both parties is obviously a good thing. That ignores the possibility of a divorce that is in the interests of parents but not their children, whose consent is not required.

3. Readers familiar with Busman’s Honeymoon, one of the two best of Dorothy Sayers’ detective novels, may recognize the passage I am thinking of.