Revising the Libertarian Understanding of Marriage

I think that many Latter-day Saint libertarians have fundamentally misunderstood marriage. As a libertarian this refers to me — I once thought of marriage as a civil contract, and I once supported the position that the government should remove itself completely from marriage. This is the way libertarians have often thought about the issue:

We should take all of the legal benefits and obligations of marriage (survivorship, duty to fidelity, duty of care and support, autonomy in family affairs, etc.) and unbundle them from the idea of “marriage.” Marriage would then be a solely religious commitment that has no legal consequences or implications whatsoever (any more than baptism does). Couples who marry could privately contract with each other (via a civil union) for the legal entitlements that marriage usually entails. Judges could not enforce any such obligations unless the partners explicitly consented to them by contract. Such civil unions or private contracts would be available to anyone who so wanted to commit themselves, be they man and woman, man and man, sisters, roommates, best friends, etc.

At least, that was the general idea. I bought into it for a long while. Not anymore.

The central principle of marriage is that certain duties and privileges are taken on by default in the conjugal union. That is, that parents have inherent obligations to their children, as well as to each other — duties and privileges that are conferred upon the individuals by nature and nature’s laws when they unite for the purposes of creating new life. Those duties precede and transcend the government — just like “property rights” do.

Governments don’t create property rights, but they do acknowledge them, and provide recourse for those wronged in those rights. In the same way, governments do not create the duties and privileges of marriage, but they do acknowledge them, and can provide recourse when those duties are neglected or those privileges abridged. Such recourse can and should balance the wrong against liberty concerns, in the same way we try to balance recourse for property infringement against liberty concerns.

To claim that all marriage is simply private contract implies that these duties and privileges are artifacts of contract — that parents have no natural duties to their children or to each other unless explicitly agreed to by contract. Do we really want to make that claim? What a scary world! If we believe those duties and privileges are natural endowments by nature, then the “all marriage is private contract” position is as non-sensical as the claim that we have no natural right to property, and no recourse when our property rights are infringed, unless we explicitly contracted to those rights with the person who infringed them.

To extend those duties and privileges to non-conjugal unions (same-sex marriage) implies that they are grants of the state and artifacts of political action. It would thus put to rest the idea that the duties and privileges of marriage — including the autonomy of the family in civil affairs — is a natural endowment by nature and nature’s laws (as a consequence of conjugal union). This is equally scary. Now, we can recognize that some of the privileges of marriage are grants of the state (tax breaks, etc.), but many are not (family autonomy in civil affairs, duty to fidelity, duty of care and support, survivorship, etc.). But do we really want to claim that all of them are?

In addition, such a view does not require that we support marriage licensure, or any probing government intrusion into the conjugal union. The idea is that the duties and privileges of marriage do not require government approval. Even before marriage licensure, couples who marry by ecclesiastical authority alone could still seek recourse from civil authority if the privileges of marriage are abridged or trespassed by other parties, etc. Such an understanding of marriage is supported by the fact that conjugal unions that are not formally registered through civil marriage, but which lead to offspring and a domestic life ordered to the care and raising of children, are often granted those same privileges through what has been called common-law marriage. Again, this illustrates the idea that the duties and privileges of marriage precede both state action and contract, but which state action can formally recognize and respect (even if solemnized only by ecclesiastical authority). Also, the fact that childless couples face lower barriers to separation and divorce in most jurisdictions illustrates that the state is recognizing duties and obligations that arise from the conjugal union and procreation.

From this perspective, non-conjugal unions can contract for those same duties and privileges — but for non-conjugal unions, they are the creation of contract, not a natural endowment, so an explicit contract is necessary. Thus civil unions are permissible, but are philosophically distinct from marriage. Marriage doesn’t require the contract, but civil unions do. On the surface they may look the same in function, but one is artifactual, while the other is natural. And one can hold this distinction while making no moral judgments against same-sex civil unions; one can even celebrate them, but still understand that the duties and privileges of such unions are created by contract, while the duties and privileges of conjugal unions are natural endowments as a consequence of procreation, and that they are thus philosophically distinct and thus treated differently in the eyes of law (in civil unions, we look at the words of the contract, but for marriage, we consult the natural law).

Finally, we consider property to be a natural right, but that doesn’t mean that there are no important philosophical debates to be had about the boundaries of those rights, or when government should or shouldn’t provide recourse. For example, are ideas “property”? Are works of fiction “property”? Are performances “property”? Many argue that if we expand the definition of property rights beyond the natural endowment by nature and nature’s laws, we end up undermining the very idea of property and, in fact, perhaps even abridging property rights. This debate can have statutory implications — we might support laws that limit the definition of property if courts began to grant property status to non-property, and by so doing abridged real property rights.

In the same way, the debate over the extent and boundaries of the duties and privileges of marriage becomes a legitimate debate — just as government has to delimit the definition of property in order to provide recourse for people, it must also delimit the definition of marriage. And such a debate might very well have statutory implications. We just hope that the law defines both according to their natural law definitions.

For Latter-day Saint libertarians, this approach has the added advantage of allowing us to fully and unabashedly support the leaders of the Church in their support of traditional marriage, without relinquishing our understanding of government and libertarianism.

30 thoughts on “Revising the Libertarian Understanding of Marriage

  1. Very astute, especially the analogy to property rights.

    Everyone recognizes that ‘getting government out of the property’ business would hurt property ownership, not free it.

  2. I think theocratic libertarian might be a better description of your position – you generally support a libertarian approach as long as a few fundamental key points of your world view get special accommodation.

    I find the idea that “nature” somehow confers property rights to be rather unsupported by the data. Looking at recorded human history the most common determiner of property rights has been might. He (or on rare occasions she) who is strongest simply took what they wanted – and in many parts of the world this is still the case. Property rights have any meaning at all only because a given society agrees to use its common institutions to create, record, and protect them.

    I think the opposite conclusion – making marriage a creature of the state and then recognize the sealing ordinance as the critical step LDS folks need to take to have their marriage become (potentially) a celestial union – makes a lot more pragmatic sense since that way we don’t need to institutionalize discrimination in our government’s laws. And from a purely pragmatic point of view we are absolutely going to have to figure out how to “deal with” same sex marriage as a Church because that is the trend in many areas of the world.

  3. Well done LDSP. I think just about everybody knows in their hearts that there is a definition of “marriage” that has existed throughout time that is different than “living together,” “sharing a house,” or “being together because we love each other.” Just about every society in history has recognized that marriage is much more than these things. Changing the definition of marriage does not change its important function as a building block of a healthy society. You are correct that this “natural” definition of marriage is something that nature and nature’s laws give us, just as nature and nature’s laws gives us rights to life, liberty and property.

  4. John,

    I find the idea that “nature” somehow confers property rights to be rather unsupported by the data

    You may be right. But there is a strong tradition of classical liberalism and natural law libertarianism that disagrees, and believes that property rights are an endowment of natural law. This goes straight back to Lockean theory. Now, you can disagree, but remember that I’m speaking from within that tradition, and I’m speak to others in that tradition. So your outsider’s perspective is noted, but irrelevant.

    I think theocratic libertarian might be a better description of your position

    Nowhere in this post did I use doctrine or theological belief to justify the position. Natural law reasoning is not the same as doctrinal reasoning. Again, there is a robust natural law tradition that goes all the way back to Plato by which one can analyze these ideas. Plato, Socrates, Plutarch, Solon, Aristotle, and myriads of others with no exposure to Christian thought arrived at the conclusion that there is a natural duty that a father has to both his children and their mother — that said duties are not the creation of the state, but an endowment of nature.

    You can disagree with natural law reasoning, natural law libertarianism, etc., but don’t do so by maligning it as “theocratic,” especially when God was not ever once invoked when forming the argument.

  5. I enjoyed the research that shows partners are fundamentally less uncertain/unhappy when they know they are bound to the one with whom they share a home.

    I’m intrigued that the pilgrims actually were fighting to make marriage a secular thing. They did not agree that it should be part of the Church. Which is why it sucks to be descended from pilgrims – they didn’t do things in the Churches of their day, so records are hard to find, if indeed they ever existed.

    I agree that society has a responsibility to protect its future children. The studies I’ve seen indicate that non-traditional family configurations are correlated with negative outcomes, though obviously individual examples on both sides will differ from the general result. Alas, for this position to be strong, society ought never have allowed same gender families to adopt or artificially engender children. Yet society did allow this.

    When I was in Italy, the state had to recognize the marriage, and temple marriages weren’t recognized. So everyone would get married in public first and then go off to the temple to be sealed.

    I will be interested to see how the courts rule on the various same-gender marriage cases being pushed through the courts.

  6. I still do not like the idea of government telling me which of my relationships must be “approved” by government and which are not/cannot be.
    I have no problem with government passing laws to ensure parents are responsible for their children.
    However, the problem with having government acknowledging marriage, opens the door for government to mandate relationships. And if government takes over marriage, then it can define what marriage is not only legally, but also in the religious and personal realms, also. Because government is involved in marriage, it is forcing photographers and cake makers who are religiously opposed to gay marriage to either submit to government force, be fined/imprisoned, or shut their business doors.
    That is the danger anytime someone wants government involved. It works great while government is moral and agrees with your personal religious beliefs, but when government embraces some other moral/amoral concept, then there are victims.
    If government was not involved in so many things, then there would not be a need. Government even picks winners and losers in marriage. They offer tax incentives for some relationships, while paying others to remain single and raise children alone. This is a problem that did not start recently with the gay marriage issues, people. This began when we started paying out welfare to encourage minority and poor women to produce children without a father in the home (so government could be the father and husband).
    Better to open up freedom, get the government out of the way, and allow religious people to worship as they see fit, without Big Brother telling them what to think, believe, and marry.

  7. Ldsp, as far as I can see, your argument of the natural state of marriage boils down to the idea that the rights of common law marriage precede state recognition and contract.

    But isn’t a common law marriage by definition a non-conjugal relationship? What makes marriage marriage, is that some authority, either eccelsiastical, tribal, or governmental, grants a relationship the title of “conjugal.” There is no marriage without a contract, although that contract can be drafted by a non-state authority. But it must be an authority. It is not “natural.”

    Of course parents of children have a natural right and duty to raise the children they bring into the world. But what if the children are adopted? The natural right only comes AFTER a contract has been signed and agreed upon.

    And the natural rights of a lesbian couple, (with the help of a sperm bank) are the same as a common law marriage. The lesbian mother is the genetic parent, endowed with a natural right and duty to raise the child she created. Would it not behoove the state to recognize and protect these natural rights as well, even though they come through more “creative” ways of procreation?

  8. Ram, we could list all kinds of relationships government tells you are not permissible. Others govt ignores others govt favors.

    While I agree with your disdain for govt cohesion of behavior to a certain degree, that ship sailed long ago, if it was ever in the harbor to begin with.

  9. Rameumpton:

    I still do not like the idea of government telling me which of my relationships must be “approved” by government and which are not/cannot be.

    Me too. I hate that idea. That’s why nothing in my post above hints at such a system.

    Let’s read posts like these with more nuance, please.

  10. On a semi-related note, I’m finding that fewer and fewer people carefully read the things they come across these days. A friend of mine posted this earlier today, and someone responded, essentially, that the I seem to be under the delusion that governments create marriage, and that I have forgotten that marriage is not a creation of the state. Given that this was my entire thesis, it just illustrated to me how sloppy we sometimes are when reading and responding to ideas.

    Nate, although he disagrees, actually understands my thesis, and took the time to think about it. I really appreciate that. He seems to get what I’m saying.

    Nate: There is no marriage without a contract, although that contract can be drafted by a non-state authority.

    I disagree. I think that this is often how we’ve made sense of it, but this article is proposing that we look at it differently. This article is proposing that inasmuch as contracts aredrafted, if they include commitments to fidelity and duties to care and support, they are only reinforcing duties that would still exist without those contracts if the couple moves forward into a conjugal union that leads to procreation.

    That is, this article proposes that we think of those duties as arising as a consequence of the sexual intercourse that leads to childbirth. I believe — and I think that most people would agree — that fathers have a natural duty to care for their offspring, even if they did not contractually agree to it. While adoption is a special circumstance where a father willfully steps in to such duties, do we really want to say that no fathers are so obligated to their biological offspring unless at some point they signed their name to a paper? And I think a similar analysis could be held regarding the obligations the father has to his children’s mother.

    So I disagree, Nate — I think the duties of parents to their children are natural duties, and I think the duties of parents to each other are as well. We often solemnize the union and layer onto those duties reinforcing agreements — but those duties exist absent those agreements.

    As far as a lesbian mother who is impregnated from a sperm bank, one would oppose those services from this position for the very reason that they deprive children of their natural right to both a father and a mother. It is simply wrong to do that, and wrong on the same level that theft or assault is wrong, and the state might have every prerogative to discourage it.

  11. Rameumpton,

    Because government is involved in marriage, it is forcing photographers and cake makers who are religiously opposed to gay marriage to either submit to government force, be fined/imprisoned, or shut their business doors.

    Nothing of the sort is at all permissible from the perspective I describe in my post. Someone can oppose all of these things, and still see marriage the way I describe above.

    They offer tax incentives for some relationships, while paying others to remain single and raise children alone.

    Nothing of the sort is at all implied by or inherent to the perspective I describe above. Someone can oppose such tax incentives and benefit programs, and still see marriage as I described above.

    Better to open up freedom, get the government out of the way, and allow religious people to worship as they see fit, without Big Brother telling them what to think, believe, and marry.

    As a staunch libertarian, I agree — I’m actually an advocate for a stateless society. And such is perfectly compatible with the view I describe above.

    The view I describe above is as compatible with everything you believe as a libertarian as property rights are. I’m not convinced you thoughtfully read through the argument I made.

    The argument is simple: a father has duties to his wife and children that are not created by contract, nor are they created by the state. Just like the duty to respect the property of others is not created by contract, nor created by the state. The state can and should minimally acknowledge both.

    Nothing in such a position even requires that marriages be “approved” by governments. Nothing in such a position requires marriage licensure. Nothing in such a position requires tax incentives for married couples. All it means is that the state recognizes a natural duty that a father has to his children and their mother (by providing recourse to them if he neglects those duties) — and does not recognize a comparable duty between a man and his non-conjugal sexual partners, unless they contracted into those duties.

  12. LDSP, that’s a fair response. However it hinges upon the assumption that it is the child that has rights to a father and mother, not the parent for the child, as a single parent has just as much right as a couple.

    I’m not sure I agree that it is “natural” for a father to have any right or responsibility towards offspring. I believe this is cultural imprinting, not genetic. Men naturally wish to have sex with multiple women without regards to consequence, and when culture dictates they must also care monogomously for the woman and the child, they are usually far inferior domestically to a mother. Fathers need their responsibilities spelled out for them, they are not instinctual, as they are for the self-sacrificing mother.

  13. Nate, the difference essential comes down to the fact that I am more persuaded by natural law reasoning than you are, and you are less persuaded by natural law reasoning than I am. You would probably be a legal positivist, I would be an adherent to natural law theory.

  14. I guess that is true, because I believe the natural man is an enemy to God, and that includes for me, the natural law. Natural law is Darwinism, to value your own offspring more than the offspring of others. Cultures respond to natural law by subduing it and bridling it, not by bowing to it. “Bridle your passions that you may be filled with love.” That I guess is why I am not libertarian. I don’t believe in innalienable rights.

  15. I recall making promises to God that impinge on the idea of “legally and lawfully married”. So for me, the basis for marriage must necessarily address this from that standpoint. Whether or not the classical philosophies or governments of men recognize this point makes an interesting study, but I believe the basis for any rationale that fails to consider the traditional marriage issue beginning from that perspective is like starting at bat with two strikes.

  16. Nate: WOAH, you have no clue what “natural law” is, in the tradition of natural law legal theory. You are severely misinformed and ignorant on these matters. There is a robust intellectual tradition that claims that we can discern what is right and wrong using moral reasoning — this is natural law theory. The moral reasoning of natural law theory often contradicts our baser instincts, and calls us to “bridle our passions.”

    You are overlaying a tradition that has nothing whatsoever to do with classical natural law theory on top of everything I say, and it is leading you in some wildly different directions. Classical natural law theory has nothing whatsoever to do with our baser animalistic instincts. Darwinism is, historically, the antithesis of natural law legal tradition.

  17. LDSP, it seems your defense is to attack nate, me and others and insist we are not reading what you wrote, or are ignorant. Not a strong defense.

    As it is, I recognize what you are stating, and it would work in a Utopian society. However, in reality, it doesn’t work. That is where Libertarian concepts come in. Minimal government involvement is required, because nature has it that government entities grow bigger and encroach on everything. Natural law is not as natural as you intend it to be.

  18. ldsphilosopher,

    I would recommend that you do a separate posting and give people a thorough treatment of what Natural Law really is, because these folks are totally confused.

  19. LDSP, thanks for clearing me up on Natural Law, which I now know a little bit about, having read the wikipedia entry. My views might corrospond to Hobbes who believed that man in his hatrual state contains only liberties, no laws, or to Aquinas, who didn’t believe man could be moral unless he also possessed his seven ennumerated virtues in their fulness. Or Hume, who dismissed an appeal to nature as legitimate grounds for politics. I’m more drawn to moral relativism and empiricism. What makes the LDS church the “true” church is not an appeal to natural principles, but an appeal to authority. A democratic government is successful, only when the people are collectively “good” as the Book of Mormon says, “woe be it when the people choose evil.” But the ideal of the Book of Mormon is always the good king, “if you could always have a good king” it would be the best.

  20. Rameumpton,

    I insist that you have not read carefully because I am talking about *minimal* *minimal* *minimal* government involvement. I’m talking about the bare, raw-bones, minimum. I don’t even believe in marriage licensure. I believe in a stateless society. I believe in libertarianism.

    You keep implying that I’m talking about big-government-marriage that depends on the innate goodness of people not to abuse it, but *I’m not.* That’s why it’s hard for me to believe you seriously read it. Because the criticisms you have are not criticisms of *my* view, but of someone else’s that I do not share.

    Consider: Bob and Jill get married by a priest. They make no formal contracts, they do not bring government into it at all. 5 months later, Bob dies. Does Jill have a proper claim on Bob’s property? Will the government recognize that claim? If so, then we have here a *bare minimum* acknowledgement by government of the marriage union (as a union that precedes both contract and government). That’s all I’m talking about. (More examples in next comment)

  21. Consider: Bob and Jill get married by a priest. They make no formal contracts, they do not bring government into it at all. They have a child. 2 years later, Bob runs away. Does Jill have a proper, natural claim to Bob’s financial support? Will the government recognize that claim, and provide recourse to Jill by summoning Bob to a court hearing? If so, then we have here a *bare minimum* acknowledgement by government of the duties of the marriage union (as a union that precedes both contract and government).

    Notice that the *only time* in which government gets involved in when one party lays a claim on the other. The government proactively enforces nothing. It just means that when a person named Jill comes to the courthouse with a baby in her arms, and says, “The father of my children abandoned us,” the court recognizes a legitimate claim that Jill has on Bob, whether or not Jill and Bob had a explicitly laid-out formal contract or a “state-sponsored” wedding. All that’s required is that Jill and Bob were married by a priest, acknowledging to the community that they were to become, conjugally, as one. [Well, perhaps no formal ceremony or priest is even needed — the duties arise with the conjugal union whether or not a formal ceremony occurred. The formal ceremony just makes it easier to demonstrate the conjugal union in court.]

    The idea here is that Bob’s duties to Jill arise from the conjugal union, not from contract or state recognition. We all recognize these duties as moral duties, innate to our station as fathers. The claim in this article is that the duty is no different in kind than the duty to respect another person’s property.

    A Jim can arrive at the courthouse and say, “Bob stole my horse,” and the court can recognize this as the sort of claim that they can provide recourse for. They can summon Bob to the court and compel him to return the property, if it is demonstrated that he indeed took the horse. So here we have state involvement in property rights — why is *this* government activity any more immune to the kind of “mission creep” you fear? It is not immune, of course, but I’m sure we both recognize that it is a legitimate exercise of government.

    I’m just saying that Jill’s courthouse claim is just as legitimate. And that we can limit the government’s involvement in both in comparable ways — we can always require a plaintiff (no proactive enforcement with the state as plaintiff), due process, evidence beyond reasonable doubt of theft (or of conjugal union), and a jury of peers if needed. If these checks and balances reasonably limit the government’s activity in matters of property claims, then why not marital ones too?

  22. LDSP, I agree that there must be some recourse in regards to children, which is what your latest explanation entails (and I noted that earlier). However, if two people live together and choose not to establish a contract, then I do not believe government needs to get involved later on when one dies or they separate. That is the concept of a contract, to establish claim to property and other rights.
    We must cause the people to be responsible for their adult relationships. In your proposed solution, the risk lies here: two people live in the same apartment. One moves out, and the other sues in court, making a claim that is not supported by any documentation. Now we impose financial requirements on the second individual, first to pay for legal representation in court, and second to provide any property to the first party as required by the court. The legalities will flood courts with contract-less demands, just as they have now.

    We seem to demand government to take care of everything for us, rather than to only step in when there are disagreements in a contract, etc. I am extremely wary of having government decide who gets the kids, or who is provided visitation rights, child support, etc. (I was a foster parent for many years and I also saw how the courts “managed” things with my wife’s ex).

    The courts should manage contracts, and ensure parents provide for their kids. Once courts step into the affairs of non-contractual events, then we risk government gaining more and more power. If you don’t believe this, check out some of the actions that occur under court supervision in regards to custody, parental rights, etc., right now.

  23. In your proposed solution, the risk lies here: two people live in the same apartment. One moves out, and the other sues in court, making a claim that is not supported by any documentation.

    Thus the purpose of having a public ceremony/wedding — it provides witnesses that you were forming a conjugal union with the person (instead of a merely roommate-situation).

    However, if two people live together and choose not to establish a contract, then I do not believe government needs to get involved later on when one dies or they separate.

    First, we’re not talking about just living together, we are talking about conjugal union — where a man and a woman engage in coitus and order their lives with the expectation of children. Let’s say that Bob and Jill have a ceremony with their priest, who declares them man and wife. They move in together, and have kids. Bob dies. Does Bob’s property just become public domain, free for anyone who wants it, or does it become Jill’s, to put to use in raising the children? Does it only become Jill’s if they signed an explicit contract before his death, or if he drafted a specific will? Or are survivorship rights naturally entailed by the conjugal union?

    In your world, Bob’s property would not go to Jill unless he drafted a specific will declaring her his survivor, or if they signed a legal contract noting that the property was also hers. Such a world is foreign to me. It’s a world where family means *nothing*, and contracts are everything. In such a world, family doesn’t really exist — only series of contracts. And if you failed to make a contract, or if you got your contract wrong, the innate idea of family has no bearing — you’re just in a loss.

    Contracts presume property rights, but what are property rights but a presumed entitlement to our property, and a presume duty to respect the property of others? We arrive at property rights through moral reasoning, a la Locke, Kant, whatever. Property rights are not the product of contract — we don’t get them because we contracted ourselves into them. They are assumed on a philosophical level, and we protect, enforce, and acknowledge them in courts of law because we universally acknowledge their status as natural rights.

    My question: why in the world do they get a privileged ontological status that allows no other natural right, such as survivorship rights for one’s conjugal partner? Why can’t we use the same moral reasoning that got us to property rights to conclude that children have a natural entitlement to the care of their parents, that parents have a natural entitlement to autonomy in family affairs, to teach their children as they please, and that spouses have a natural entitlement to survivorship rights in regards to their conjugal partner? Does it all need to be spelled out in explicit contract?

    And do we really want to live in a world where no family exists except as creation of contract? Where we recognize no group of people as a family, with none of the binding duties or unique privileges, unless they signed a notorized contract? To me, family is the fundamental unit of society. What does that even mean, if it has no binding force except and until it is formalized by an explicit contract? If that’s the case, then family isn’t the fundamental unit of society anymore — the ability to contract with my neighbor is really the only and most fundamental civilizing force.

    If families are the creations of contract, then why in the world can’t we make families whatever we want them to be? Families are not whatever we want them to be, because the idea of family precedes human contract, and is not a social construction. There is a real, moral reality of binding force called family that governments do not create. There is a real, moral reality of binding force called family that contracts do not create. And just like property rights, governments have every prerogative to respect that.

  24. Rameumpton,

    If you read any comment here, let this be the one.

    I’m aware of the abuses committed in the name of protecting children by social services and the like. I’m on your side. Nothing in the view I’ve described entails any of those abuses, or even permits them. In fact, it is under this view that such abuses are wrong and should be illegal. The government infringes on the family in hideous ways, proscribing and abridging the sacred privileges of parents. It is because the government doesn’t formally recognize families and marriage as much as it should that it commits these wrongs.

    One of the natural privileges of the conjugal union is autonomy in family affairs. As a parent, you have a natural right to the raising of those children. You have the right to bequeath your moral worldview, to support them, to teach them, to instruct and discipline them. You have a right to feed them. You have a right to make all the decisions regarding these activities. That is your natural endowment as a parent, and no government has the right to take that away.

    Very few organizations on this earth are given as much autonomy as families and marriage. Spouses have more discretion in determining the rules of their household than employers have over their businesses (employers are subject to a host of regulatory forces that families are not). The only pretext governments have generally dared to use to invade the sacred space of the home is the physical protection of children from abuse or extreme neglect (and, on rare occasions, the failure to provide an education for them). Whether or not these invasions of the home are warranted, the narrowness of the pretexts used for these incursions illustrates how thoroughly the family has so far resisted the state and jealously guarded its boundaries. No other association enjoys that much autonomy. Now, this is being eroded (re: social services), but not because the government recognizes marriage as a binding norm that precedes its influence (as you say), but because the government is failing to recognize marriage as a binding norm that precedes its influence.

    We want the state to formally acknowledge those unions and associations, and treat them as having binding force in legal affairs. We want the state to acknowledge Richard and Joanna, with their daughters Rebecca and Shauna, as more than just four separate individuals, but as a embodying a family unit whose internal affairs are privileged and are to remain untouched absent grave circumstances. Given the way the family has so far resisted the regulatory influence of the state, we do not want the state to abandon the norms by which it has treated marriage and the family as a formal units worthy of acknowledgement and distinction.

    If we dismantle the entire idea of family, as an institution that arises from the conjugal union, which precedes government and is not created by it, and embrace instead the idea that family is simply the product of contracts (e.g., Bob signs a contract to take care of his two children, Jill signs a contract to take care of her two children, and they sign a contract with each other to grant survivorship, and they sign a contract to jointly care for the children, etc.), we are dismantling the very norms which give family its strength: the presumption that family is something greater than a creation of government, or words on the page of a contract. The assumption that family is something far more sacrosanct than anything a contract can generate. That the autonomy of the family exists qua family, not because the parents were smart enough to describe and notarize the details of their arrangement with the help of skilled lawyer (as if that would stop the government from interfering). Do you seriously imagine the abuses you fear happening less often if parental rights had to be claimed by notarized contract? Do you seriously imagine the abuses you fear happening less often, instead of becoming standard fare, if family autonomy was no longer a natural endowment by nature, but something that had to be explicitly arranged via contract?

    What gives family its strength is that it is not an artifice of man (e.g., government or contract), but a natural order that, so far, remains loosely recognized by most civilized peoples. That is being undone in this day and age. But the solution is not to make family even more an artifice of man (by recognizing no family privileges/duties unless arranged by explicit contract), but to restore the proper understanding of marriage and family, which is that it is not something that people can create or bend using words on a page, but exists prior to those words. Those words on a page can reflect and reinforce the norms of family, but they do not create them. Our only hope is in ensuring that governments never get the idea that it only has to respect family so long as the lawyers didn’t accidentally leave any loopholes in the family contract.

    Just look at how our government has treated the constitution — do you expect the government to treat family any better, if we make family all about contracts? No, what gives the constitution binding force is that its guiding principles (natural rights, natural law legal theory) are still understood and preached by at least a small contingent of the populace, as rights that preceded the constitution, which the Constitution only aims to reflect, but which it did not create. That’s what gives the Constitution moral force. Imagine what would happen if we believed that the Constitution created those rights, and that those rights could be be amended simply by amending the Constitution. Now imagine what would happen if we believe that contracts create families, and that families can be whatever our contracts make them. Oooh, that’s a scary world. I prefer to believe that if any contracts are necessary, they only strive to reflect an existing moral reality — a moral reality that I hope the government will acknowledge whether or not I have a contract to protect me and my family.

  25. It does feel like, because I have not embraced your “pure contract” theory of family, I must therefore embrace a big-government view, or at least a view that permits all the big, bad things that governments do.

    On the contrary, it is the very view I describe that gives us reason to believe those abuses are wrong in the first place. We believe those abuses are wrong because we believe in the family as something larger and more sacred than something that governments or contracts can create.

  26. Several good points here by LDSP. There is a natural law element to family privacy and family rights that supersedes government. Where we ignore this idea of family rights and rely instead on contractual agreements we open the door to the statist idea that children belong to the state and that there is nothing special about the family unit. This is the argument modern-day Europeans use, by the way, to prevent home schooling. In effect, they have bought into the idea that (to take Hillary Clinton’s horrible example), “it takes a village” and all people belong to the polity. If all people belong to the state than the state can do anything it wants to family units. No, people are individuals who are, by natural rights, part of a family unit until they become adults. LDSP’s view of the family is much more in line with historical human tradition than the modern-day dominant libertarian idea.

    Interestingly English common law supports LDSP’s view. This is why home schooling is even allowed to exist in the United States alongside a public school system, i.e., there is something unique about a family unit that supersedes the state. And thank goodness for that.

  27. It also explains why for many years there has been a deliberate attempt to use Federal statutory authority to supersede many areas of the common law in use in America since colonial times. The old English common law was a bulwark in defending the interests and natural law rights of “common” everyday Englishmen. It carried into American jurisprudence, and thank goodness, as Geoff said.

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