People seem happily to call marriage a “contract,” but really it isn’t. In the case of a contract, people get to set the terms. Some might insist on fidelity, others not. Some anticipate children; others, from choice or physical impediment, would not. People might choose their own financial arrangement rather than leaving it to common law or community property, depending on the state of eventual residence. Some might, if they were drawing up their own “contract,” set the term as less than a lifetime commitment.
In fact, the state sets the terms of a marriage, creating what in feudal times the law would have called a status, not a contract. We still have legal status, for example infancy and military service, but lawyers do not study status law as such. Marriage law thus gets analogized to contract. Tradition and religion combine with state power to make marriage subject to set rules and expectations, but one must be careful, particularly if one has a libertarian bent, not to apply contract law to the institution. It is a poor fit.
Ps. Re Sayers, a vote here for The Nine Tailors, where accidental bigamy plays a role. Query: why, if marriage is a contract, is polygamy and polyandry illegal? Strange to limit a contract to two, and only two parties.
I do NOT want to enter the argument as to whether it is or is not well-characterized as "being a contract," but to the extent that "a contract is involved"--that contract is capable of having a lot more tacit agreements tied to it than is even POSSIBLE between most parties. The two parties are spending THOUSANDS of face-to-face hours together a year!
Not just of prostitution. According to an Iranian student of mine, if I remember correctly, it's also a way of letting a woman travel with a man without violating the rules about separation.
I'm pleased to learn that you're a fan of Sayers! But I wouldn't pick Busman's Honeymoon as one of her best; it seems to me to be one of her lesser efforts. My own top choice would be Gaudy Night, which is not merely my favorite mystery but one of my favorite novels; followed by The Nine Tailors, though I'm also very fond of Murder Must Advertise, perhaps partly because it was the first Wimsey novel that I read.
I'm currently rereading her collection of essays Unpopular Opinions, a copy of which resides in the local university library; I'm struck by how sophisticated her understanding of historical linguistics is, and entertained by her Sherlockian essays, especially the one about what university Holmes attended and what courses he took.
Women initiate most divorces, so it's hard to say that divorce isn't working out for them. For every Don Draper example there are a lot of schmucks that get screwed in divorce.
Marriage is mainly about children. If you provide more incentive for people to both have children and be married I think a lot of this will resolve itself. As of now there is a huge incentive not to be married (state welfare support, state enforced alimony/child support).
I am amazed that neither you nor any other commenters took your original commenter to task for not complaining of the husband having affairs and breaking the marriage vows. Surely that was a lot more common, judging from all the stories and movies and complaints about one-sidedness.
One reason the social attitude was one sided was that the husband couldn't get pregnant. There was still the danger that he would divert resources towards his non-marital partner and his children by her and the threat to the emotional bond with the wife, but not the additional threat of misidentified paternity.
There is a further complication that women become more attracted to a man that can sleep with other women, while a woman becomes less attractive when she sleeps with other men. Women have to balance their attraction for cads with their jealousy, while women having affairs is basically all bad.
That makes some evolutionary sense. A woman wants sons who are good at seducing women, but neither a man nor a woman wants daughters who are easily seduced. The scarce input is wombs, not sperm.
These days it seems to me that merely having sex with someone other than your spouse, if no pregnancy results, does no tangible harm to anyone, so the law should ignore it. It may cause some mental distress, but there are many things a person may do that cause mental distress to his or her spouse, and in general the law leaves them to sort it out between themselves.
(However, I have no personal experience of infidelity in my own marriage.)
Should it be possible to write an enforceable contract against it?
Sexual intercourse has emotional concomitants that support pair bonding — or undercut it if with someone other than your mate. That is a reason for some people to care about it.
A contract enforced by law? I suppose it depends on what the contract stipulates. If two people are crazy enough to sign a contract stipulating that the contract-breaker should be hung, drawn, and quartered, then no, I don’t think it should be enforced by law. If it merely stipulates that the contract-breaker should be immediately divorced without financial benefits, perhaps that’s acceptable.
Not the same thing, but under Rabbinic law a wife who refuses to sleep with her husband can be divorced and forfeits the property, roughly dowry, that would normally go to her if divorced. So one can have enforceable contracts about sex.
That should depend on the marriage contract. Ideally, a variety of standard marriage contracts should be available, and the couple should agree on which contract they both accept. (Or they could write their own if not satisfied with the standard one.)
I don’t think a single marriage contract should be decided by the government and imposed on all married people. (In that situation, people do at least have the option of not getting married at all; but some are likely to find both options unsatisfactory.)
The government is the one taking on the expense of enforcing the marriage contract. Who do you think would make sure people pay their alimony? A court, at public expense.
As such, it can decide what contracts it wishes to take on the expense of enforcing.
The government doesn’t pay for anything: it’s funded by taxes, which come from the people. The people should decide what contracts they want to make with each other. Although, as I already commented above, the government can decide not to enforce contracts that it objects to.
There is no enforcement of contracts without government. Government has a monopoly on force. Your property rights are only enforceable if the government will enforce them. Even enforcing them yourself requires the consent of government, which can deny it to you and prevent your enforcement.
The people could lobby government to introduce new marriage contracts. For instance, existing marriage contracts were extended to same sex couples. It until that happens there is no enforcement mechanism regardless of what people agree to amongst themselves.
I think it unlikely that having lots of different kinds of marriage contracts would make things easier.
I doubt that “lots of different kinds of marriage contracts” would be necessary or helpful. Maybe, say, about three different standard contracts, and people could agree to delete clauses from the standard contract that they didn’t want. But it seems insufficient to offer people only a one-size-fits-all contract or no contract at all. Like giving people a choice between only two political parties. Both options may well be unappealing.
A problem still to be resolved even under no-fault divorce is the much less than equal treatment (for at least the bottom 4 quintiles of income) between males anf females. The deck remains partly stacked for females, based apparently, on long ago beliefs about men and women and fathers and mothers.
People seem happily to call marriage a “contract,” but really it isn’t. In the case of a contract, people get to set the terms. Some might insist on fidelity, others not. Some anticipate children; others, from choice or physical impediment, would not. People might choose their own financial arrangement rather than leaving it to common law or community property, depending on the state of eventual residence. Some might, if they were drawing up their own “contract,” set the term as less than a lifetime commitment.
In fact, the state sets the terms of a marriage, creating what in feudal times the law would have called a status, not a contract. We still have legal status, for example infancy and military service, but lawyers do not study status law as such. Marriage law thus gets analogized to contract. Tradition and religion combine with state power to make marriage subject to set rules and expectations, but one must be careful, particularly if one has a libertarian bent, not to apply contract law to the institution. It is a poor fit.
Ps. Re Sayers, a vote here for The Nine Tailors, where accidental bigamy plays a role. Query: why, if marriage is a contract, is polygamy and polyandry illegal? Strange to limit a contract to two, and only two parties.
It is a contract, but not a freely negotiated one. That's true of lots of contracts in modern law.
Some contracts are not just unenforceable but illegal, such as a contract in restraint of trade or, in some states, a surrogacy contract.
I do NOT want to enter the argument as to whether it is or is not well-characterized as "being a contract," but to the extent that "a contract is involved"--that contract is capable of having a lot more tacit agreements tied to it than is even POSSIBLE between most parties. The two parties are spending THOUSANDS of face-to-face hours together a year!
> Some might, if they were drawing up their own “contract,” set the term as less than a lifetime commitment.
Lots of people do this for marriage. In particular, temporary marriages with a dowry are the halal version of prostitution in Iran.
Not just of prostitution. According to an Iranian student of mine, if I remember correctly, it's also a way of letting a woman travel with a man without violating the rules about separation.
I'm pleased to learn that you're a fan of Sayers! But I wouldn't pick Busman's Honeymoon as one of her best; it seems to me to be one of her lesser efforts. My own top choice would be Gaudy Night, which is not merely my favorite mystery but one of my favorite novels; followed by The Nine Tailors, though I'm also very fond of Murder Must Advertise, perhaps partly because it was the first Wimsey novel that I read.
I'm currently rereading her collection of essays Unpopular Opinions, a copy of which resides in the local university library; I'm struck by how sophisticated her understanding of historical linguistics is, and entertained by her Sherlockian essays, especially the one about what university Holmes attended and what courses he took.
Women initiate most divorces, so it's hard to say that divorce isn't working out for them. For every Don Draper example there are a lot of schmucks that get screwed in divorce.
Marriage is mainly about children. If you provide more incentive for people to both have children and be married I think a lot of this will resolve itself. As of now there is a huge incentive not to be married (state welfare support, state enforced alimony/child support).
https://www.channel3000.com/news/national-and-world-news/fact-check-biden-again-falsely-claims-inflation-was-9-when-he-became-president/article_644a153a-f0f7-5fc0-9b97-13ea93e2b123.html
I think you should read this to refute biden's claims https://www.politifact.com/article/2024/may/09/fact-checking-joe-biden-on-the-economy-in-cnn-inte/
Hey I have a question I read someone claiming their Biden was better than economy in Trump could you respond https://metacrock.blogspot.com/2024/05/trump-was-bad-for-economy.html?m=1
None of this has anything to do with the post you are commenting on.
I am amazed that neither you nor any other commenters took your original commenter to task for not complaining of the husband having affairs and breaking the marriage vows. Surely that was a lot more common, judging from all the stories and movies and complaints about one-sidedness.
One reason the social attitude was one sided was that the husband couldn't get pregnant. There was still the danger that he would divert resources towards his non-marital partner and his children by her and the threat to the emotional bond with the wife, but not the additional threat of misidentified paternity.
There is a further complication that women become more attracted to a man that can sleep with other women, while a woman becomes less attractive when she sleeps with other men. Women have to balance their attraction for cads with their jealousy, while women having affairs is basically all bad.
That makes some evolutionary sense. A woman wants sons who are good at seducing women, but neither a man nor a woman wants daughters who are easily seduced. The scarce input is wombs, not sperm.
These days it seems to me that merely having sex with someone other than your spouse, if no pregnancy results, does no tangible harm to anyone, so the law should ignore it. It may cause some mental distress, but there are many things a person may do that cause mental distress to his or her spouse, and in general the law leaves them to sort it out between themselves.
(However, I have no personal experience of infidelity in my own marriage.)
Should it be possible to write an enforceable contract against it?
Sexual intercourse has emotional concomitants that support pair bonding — or undercut it if with someone other than your mate. That is a reason for some people to care about it.
A contract enforced by law? I suppose it depends on what the contract stipulates. If two people are crazy enough to sign a contract stipulating that the contract-breaker should be hung, drawn, and quartered, then no, I don’t think it should be enforced by law. If it merely stipulates that the contract-breaker should be immediately divorced without financial benefits, perhaps that’s acceptable.
Not the same thing, but under Rabbinic law a wife who refuses to sleep with her husband can be divorced and forfeits the property, roughly dowry, that would normally go to her if divorced. So one can have enforceable contracts about sex.
I think this view is false.
If someone cheats it ought to be grounds for marriage dissolution on favorable terms to the one that was cheated on.
That should depend on the marriage contract. Ideally, a variety of standard marriage contracts should be available, and the couple should agree on which contract they both accept. (Or they could write their own if not satisfied with the standard one.)
I don’t think a single marriage contract should be decided by the government and imposed on all married people. (In that situation, people do at least have the option of not getting married at all; but some are likely to find both options unsatisfactory.)
The government is the one taking on the expense of enforcing the marriage contract. Who do you think would make sure people pay their alimony? A court, at public expense.
As such, it can decide what contracts it wishes to take on the expense of enforcing.
The government doesn’t pay for anything: it’s funded by taxes, which come from the people. The people should decide what contracts they want to make with each other. Although, as I already commented above, the government can decide not to enforce contracts that it objects to.
There is no enforcement of contracts without government. Government has a monopoly on force. Your property rights are only enforceable if the government will enforce them. Even enforcing them yourself requires the consent of government, which can deny it to you and prevent your enforcement.
The people could lobby government to introduce new marriage contracts. For instance, existing marriage contracts were extended to same sex couples. It until that happens there is no enforcement mechanism regardless of what people agree to amongst themselves.
I think it unlikely that having lots of different kinds of marriage contracts would make things easier.
I doubt that “lots of different kinds of marriage contracts” would be necessary or helpful. Maybe, say, about three different standard contracts, and people could agree to delete clauses from the standard contract that they didn’t want. But it seems insufficient to offer people only a one-size-fits-all contract or no contract at all. Like giving people a choice between only two political parties. Both options may well be unappealing.
The Indian marriage doesn't actually work, since she's more likely to become pregnant at either end and there's no enforced break
A problem still to be resolved even under no-fault divorce is the much less than equal treatment (for at least the bottom 4 quintiles of income) between males anf females. The deck remains partly stacked for females, based apparently, on long ago beliefs about men and women and fathers and mothers.