Cato’s Robert Levy argues that it is, in The moral and constitutional case for a right to gay marriage. He argues:
Thomas Jefferson set the stage in the Declaration of Independence: “[T]o secure these Rights, Governments are instituted among Men.” The primary purpose of government is to safeguard individual rights and prevent some persons from harming others. Heterosexuals should not be treated preferentially when the state carries out that role. And no one is harmed by the union of two consenting gay people. … Whenever government imposes obligations or dispenses benefits, it may not “deny to any person within its jurisdiction the equal protection of the laws.” That provision is explicit in the 14th Amendment to the U.S. Constitution, applicable to the states, and implicit in the Fifth Amendment, applicable to the federal government.
I’m skeptical of the validity of the legal arguments being appealed to here, and also to the wisdom of trusting the central state for protection of individual rights. As to the former, it seems far-fetched to believe that Jefferson or other Founders believed the Declaration or Constitution to enshrine a right to gay marriage, or to things like sodomy or miscegenation (re sodomy, see my Supreme Confusion, Or, A Libertarian Defense of Affirmative Action). After all, slavery was legal, Jefferson was a slaveowner, and sodomy was not looked on kindly [update: see Jefferson's A Bill for Proportioning Crimes and Punishments, proposing "Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro' the cartilage of her nose a hole of one half inch diameter at the least"]. This is not to justify these odious views, but rather to recognize that the Founders were not libertarian, contra mythologizing. As for the Equal Protection Clause of the Fourteenth Amendment, again, it seems unlikely the the Framers and ratifiers of that amendment, in the late 1860s, interpreted it so broadly as to protect such rights. After all, if the Equal Protection Clause were so broad, why wouldn’t it have prohibited discrimination against blacks and women in voting? Obviously, it didn’t, since these had to be provided for in subsequent amendments to the Constitution (the 15th and 19th). The Fourteenth Amendment and its Equal Protection Clause were obviously not as broad as some modern libertarian centralists might like. It it was not broad enough to prevent the blatant racial and sexual discrimination in voting law, it’s ludicrous to suggest it was broad enough to cover the very modern idea of gay marriage and to prohibit treating it differently from heterosexual marriage.As for the latter point, about the strategic wisdom of relying on the central state for protection of individual rights–it is futile to expect a paper Constitution, construed by the state, to serve as a significant and effective limit of that state. Indeed, as Hoppe has argued, the Constitution served as a means of expansion of state power. This is not surprising, given the nature of the state. As Hoppe observes (in Reflections on State and War):
the state is defined as an agency with two unique characteristics. First, it is a compulsory territorial monopolist of ultimate decision-making (jurisdiction). That is, it is the ultimate arbiter in every case of conflict, including conflicts involving itself. Second, the state is a territorial monopolist of taxation. That is, it is an agency that unilaterally fixes the price citizens must pay for its provision of law and order. … Predictably, if one can only appeal to the state for justice, justice will be perverted in favor of the state.
Thus, because
the government is the ultimate judge in every case of conflict, including conflicts involving itself … instead of merely preventing and resolving conflict, a monopolist of ultimate decision-making will also provoke conflict in order to settle it to his own advantage. That is, if one can only appeal to government for justice, justice will be perverted in the favor of government, constitutions and supreme courts notwithstanding. Indeed, these are government constitutions and courts, and whatever limitations on government action they may find is invariably decided by agents of the very same institution under consideration. Predictably, the definition of property and protection will be altered continually and the range of jurisdiction expanded to the government’s advantage. The idea of eternal and immutable law that must be discovered will disappear and be replaced by the idea of law as legislation – as flexible state-made law.
Hoppe, The Idea of a Private Law Society. (See also Hoppe, On the Impossibility of Limited Government and the Prospects for a Second American Revolution; and Anthony de Jasay, Against Politics, pp. 5, 19, 22, and ch. 2 et pass., discussing the impossibility of limited government when the state itself construes its own authority, as discussed in my review of same on pp. 86-87.)
Similarly, as J.H. Huebert writes in Book Review of Restoring the Lost Constitution: The Presumption of Liberty by Randy E. Barnett:
Mr. Barnett’s well-reasoned and well-supported arguments for a limited federal government make up a large portion of the book, but I make short shrift of them here because, despite their appeal, they are almost entirely useless. The Ninth Amendment and the Commerce Clause are not, as he says, “lost”–they have been in the Constitution all along. Courts have distorted these provisions not because judges have not had Randy Barnett to explain their true meaning. Courts have done so because they are part of the very federal government Randy Barnett seeks to limit. In general, judges and those who appoint them have no reason to want to limit government. … Have not judges been responsible for some of the most outrageous expansions of government power? And, after all, are judges not a product of the same political system that gives us legislators and presidents? What president would appoint judges who would tell him he cannot do anything he wants? What Senators would confirm a judicial candidate who tells them that everything they have ever done in office is unconstitutional? The whole enterprise of libertarian constitutional theory ignores all we have learned from public choice economics about the incentives of government actors.
(See also Barnett’s response, Libertarianism and Legitimacy: A Reply to Huebert, and Huebert’s rejoinder, No Duty to Obey the State: Reply to Barnett. For more skepticism of centralizing state power in the vain hope of protecting individual rights, see The Libertarian Case Against the Fourteenth Amendment; Barnett and the Fourteenth Amendment; Randy Barnett’s Proposed “Federalism Amendment”; The Unique American Federal Government; Libertarian Centralists; To Hell with Heller; also More on Kelo and Federalism, and Doherty on Kelo.)
Levy has a point about the morality of this issue, however. I’ve set forth my thoughts on this before in The Libertarian Case for Gay Marriage. The basic idea is this. There should be no state. In a stateless world, marriage would be just one of many voluntary relationships, with contractual aspects. The contractual aspects would be recognized and given effect by the private legal system(s). People could refer to various relationships by whatever words they wanted, and other people would be free to respect, or sneer, at the “legitimacy” of others’ relationships. And even if there is a state, there is no need for it to decree and regulate marriage. If it is going to monopolize the legal system, it can give effect to contracts and consensual arrangements without “blessing” the relationship to which the contractual aspect pertains.
But the state has not done this. It has not only coopted the legal system–in taking on the role of defining, approving, regulating, and licensing the status of marriage itself, it has stated that it will give effect to the contractual regime (hospital visitation rights, coownership, medical power of attorney, default inheritance rules, etc.) accompanying a romantic (or other) relationship only if it qualifies as “marriage” as the state defines it; and then the state restricts marriage to heterosexual couples. I.e, it is the state that says “it must be ‘marriage’ for us to recognize contractual aspects of your relationship. If it’s not ‘marriage’ (as we define it), then we do not recognize it.” This is what the state has no right to do: they force you to pay for and be subject to their legal system; they outlaw competition; and then they tell you that this system will not honor your contractual arrangements. This is the same as banning or penalizing the behavior you are trying to contract about, and the state has no right to do this. The state must recognize and enforce the contractual regime set up by free individuals, if it is going to coopt that field. Now, if the state simply said, “call it a ‘civil union,’ and we’ll recognize it,” then the gay marriage advocates would have no complaints. But so long as the state continues to insist that only “state-approved-marriage” will be able to protect its contractual aspects in the legal system, so long as the state coopts the courts and the contract-enforcement system, then they have no right to exclude people from that protection. If “marriage” is the only legal classification for which the state will recognize civil effects of a relationship, then the state must allow gay relationships (or any kind of relationship–friends, spinster sisters, whatever) to qualify for “marriage” too.
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“In a stateless world, marriage would be just one of many voluntary relationships, with contractual aspects. The contractual aspects would be recognized and given effect by the private legal system(s).”
We have to assume that in a stateless society private legal systems will stem from the ethical standards of that society. If you refer to “Foundations of Morality” by Hazlitt you will see that the ethical standards of society form naturally but are distinct and objective in the end, just like water is distinctly different from hydrogen and oxygen.
With the outcome being objective at that point (the actual appearance of a system of morality) the ethics is then easily incorporated into the private legal system that is adopted by that society.
In other words, the system of morality which has as its goal social cooperation precedes, comes before, the legal system. If a private legal system already exists but does not reflect the morality of that society it will not be chosen and an alternative will be sought.
Your quoted statement above assumes that the legal system takes precedence over the ethical basis of society. That seems to be a bias. A bias that transfers the current poor practices into the future. If that is the case then relative to the alternative, civilization will not advance. Based on my understanding of the human reality, in contrast, civilization will continally advance.
Koerber:
“NSK: “In a stateless world, marriage would be just one of many voluntary relationships, with contractual aspects. The contractual aspects would be recognized and given effect by the private legal system(s).”
“We have to assume that in a stateless society private legal systems will stem from the ethical standards of that society. If you refer to “Foundations of Morality” by Hazlitt you will see that the ethical standards of society form naturally but are distinct and objective in the end, just like water is distinctly different from hydrogen and oxygen.”
So what? One ethical standard is pacta sunt servanda: agreements are respected. It’s none of your business why I want Joe to have the right to visit me in the hospital or make decisions for me or co-own a house with me. Another one is mind your own damn business. So what if most people think sodomy or whatever is “unethical,” whatever that means. One’s lifestyle is distinct from one’s legal dealings. For example say i want to buy a house in San francisco. Because I’m gay. So what if that’s my motivation for engaging in this legal transaction? The legal system will of course recognize the purchase agreement and my ownership of the house. They need not ask why I’m buying the house. Likewise with civil effects of private relationships.
“Your quoted statement above assumes that the legal system takes precedence over the ethical basis of society.”
No, it just presupposes a libertarian society would give legal effect to capitalist acts among consenting adults. This is not that difficult. You seem to think that freedom imperils your personal religious views. Nonsense. Freedom is a prerequisite for your right to practice your religion.
Hear, hear!
Re: original understanding, I was trying to make a joke but forgot the NOK.
Rather than discuss how ethics forms you try to make the claim that I am stating a personal preference. Typical strategy of a lawyer. It goes as follows: If you can twist the argument into a form that you can attack then that is what you will do. And you do it by starting with “So what.” Yes instead of discussing how ethics form in society you find a way to try to stop that from happening.
This ‘lawyer strategy’ itself can easily be seen as unethical. How is distorting and disrupting an honest discussion conducive to the long-run social cooperation? Needless to say this kind of practice will also be discarded in the future.
A classical liberalism society will evolve naturally and if you read “Foundations of Morality” by Hazlitt you will understand better how the subjective values of the whole population of the current and past generations take on a form which then becomes an objective reality which then is the basis for determining what is moral or immoral.
So your attempt to distort what I am saying by claiming that I am expressing my personal religious views does not come from anything that I have contributed to this discussion. That is something that you have ‘invented’ either because you misunderstand what I shared or because you deliberately want to misrepresent what I shared so you can practice your ‘lawyer strategy’ to justify your point of view.
I am not saying that your point of view is invalid. I am saying that you are playing games with my sincere effort to share the insights of Henry Hazlitt in “Foundations of Morality” specific to the issue that you raised.
Prof. Kinsella,
I am reading your links and find your arguments against Sandefur compelling- and highly educational. Thanks for blazing the trail.
Of course, now I am reading Sandefur too. Within the first ten minutes of perusal I find a couple of things jumping out (besides the ad-hom’s against Lew Rockwell et al. Of course, there were many arrows going the other direction! But I, having played lots of team sports, have come to expect trash talk as part of the game- and do not see a crisis of civility. The absence of predator drones puts things in perspective. Although outright lying is a problem of character).
Sandefur did stand up for Mrs. Kelo during the fascist episode in New London, CT. He should get kudos for that. Okay. However, in his comments against the Supreme Court he predictably uses the American Revolution defense, and true to your criticism, Sandefur makes sure to use the word ‘rebel’ instead of ‘secede’:
“Government exists to protect people’s property rights, not to violate them. When it undertakes development by seizing people’s property and giving it to others, it commits exactly the kind of injustice our Founding Fathers rebelled against two centuries ago. On Tuesday, Americans rebelled against it again.”
In fact, he uses it twice. (I admit to being anecdotal.)
Sandefur self-proclaims Randian libertarianism. A big problem with this, one of the many you point out, is that he does not see government as an initial violation of person.
I am starting to think that Sandefur, Yaron Brook and other believers in the state, are actually logically consistent- just along contradictory premises. That Objectivism married to the state necessarily leads to neoconservative conclusions. What say you?
On a separate note, I find Sandefur’s criticisms of Mises.org/LRC more telling of Sandefur’s white-washed view of plurality than anything else. Sure, Gary North may want Christian government, others may be anti-gay (like Bruce Koerber), and some may even want to impose private centered IQ or racial segregation. All of these things are indeed troublesome to my personal values. What it comes down to is the apriori respect of liberty that LRCers have for their fellow man: this apriori condition is missing in Sandefur’s assumptions. I feel more safety and commonality in league with LRC/Mises types for that reason.
Even though Sandefur, like Reason and Cato, sells cultural tolerance, it is, rather, a sale of a particular portion of pop culture to the chagrin of minorities, backed-up by the state. What other result may be expected from centralized power?
It is as if Sandefur is saying that the the only thing wrong with Tito of Yugoslavia was that he did not dictate libertarianism. I am starting to understand the Lincoln apologetics.
Maybe it is appropriate to label the Sandefurian ‘libertarians’ as bigoted in the means.
jesse james
gay people are digusting,i happened on a site i could
not believe my eyes.I certainley hope GOD is not watching.you people are???????????????????
Um, could you provide the URL, by any chance?
Purely for the purposes of academic research.
Fallon,
I respectfully disagree with your assessment. Is it not possible to discuss the “Foundations of Morality” by Hazlitt with regards issues that fall in the realm of ethics without being labeled anti-this or anti-that?
If I were to say that Hazlitt was an Austrain economist would you think that I claimed that he was born and raised in Austria?
Fallon, thanks for your comments. I do commend people for helping others to vindicate their rights, including many of the cases Sandefur has taken on. I am wholeheartedly in favor of a victim using whatever means they can including asking the federal courts to stomp on the states. The problem is this is a hazard for the advocate–he starts to believe his own arguments. Try to persuade the Supremes to incorporate a liberty if it helps you win your case. Fine. But to repeat your lawyers’ brief outside the context of that case as if it’s objecively true is just dishonest. I think Sandefur is barely a libertarian, if he’s one at all, to be honest. He’s a libertarian-leaning Republican, or classical liberal leaning neocon, it seems to me.
Bruce: I’ve read and liked Hazlitt’s book; and agree with much of it (if I recall, that’s the one where he says manners are minor morals; great aphorism). But I am a libertarian (as Hazlitt was). You are free to believe (or not; I don’t know if you do, and don’t care) that homosexuality is “unethical”. I am a libertarian, and I sure as hell believe in personal liberty and freedom, tolerance, mutual respect, individual rights, and the sanctity of contract. I honestly do not know what point you are trying to make. I am not denying the importance of ethics. would you please just be clear, concise, and explicit, and say what you are trying to say? ARe you saying the private legal system of a free society should, or would, not let a gay partner visit his lover in the hospital? That they could not co-own property? What exactly are you saying?
Stephan,
The private legal system of a free society will sustain the morality of the society. It may be that ostracism is the extent of the disincentive for immoral behavior.
There appears to be a spectrum of possibilities. At some point the degree of immorality would necessitate a legal proceeding. This is not any different than with other immoral acts, like stealing. Not unless it is chronic or huge is it necessary for legal action. Minor degrees can probably best be handled in other ways that lead to behavior modification.
Individual rights and responsibilities have context. That context is the morality of the society – the whole population of the current and past generations which has become an objective reality against which judgments can be made.
What I am saying is that neither you nor I can authoritatively say what is moral or immoral. In the future when there are classical liberalism societies it (the moral code, so to speak) will be evident and it will function effectively to promote social cooperation in the long-run.
Bruce, what is up with all of these appeals to a non-existent “society” as a collective divorced from the individuals within said group?
Do you reject methodological individualism?
If you cannot, then who can? What is his name?
Also, you did not answer Stephan’s clear and simple question.
To Mr. Kinsella,
The difference between original intent of the writers of the words and the original meaning of said words is not a meaningless distinction. Spooner makes the point that although it may have been the intent of the Philadelphia Convention to protect slavery, they fail to use the word “slavery” even once in the Constitution, and therefore, despite whatever original intent the Founders may have had, we must admit that they failed miserably to include in the Constitution a protection of slavery. Spooner’s position was so convincing that it influenced Frederick Douglass to give up on the Garrisonian view that the Constitution was a pro-slavery document. I do not consider the adoption of Spoonerian textualism to be a reinvention of the wheel.
I made no comment about the first amendment applying to states. It appears that the first amendment is the only one that is restricted to the federal level (although I surmise it would have been also applicable to the state and local levels if the definition of “Congress” at the time of the ratification of the first amendment had been popularly understood to mean all legislative bodies, rather than merely the federal legislature).
I think you are too hasty in proclaiming that marriage is not an establishment of religion. It’s certainly an establishment, so the question amounts to this: is it a religious establishment? Perhaps it is, and perhaps it’s not, but either way, the question of whether the establishment of marriage is religious or not is, in fact, a religious question, and therefore not one for the federal state to decide. In other words, the federal state has no authority under the first amendment to define marriage as being either a religious establishment or a secular establishment. Further, DOMA is unconstitutional under the first, ninth, and tenth amendments (and even if you accept the Borkian position that the ninth amendment doesn’t exist, it would still be unconstitutional under the first and tenth amendments).
But, of course, all of this is irrelevant in light of the more important view that no state on Earth, regardless of what its constitution and bylaws may say, has any legitimate authority to step in and define for someone else the terms of her/his/their marriage(s). Surely we agree on this point.
To Gil, who writes, “A cigar up the clacker? That’s one of the dumbest things you’ve ever wrote K. Tibuk”:
I do not believe that Mr. Tibuk’s comment was dumb at all. Insofar as a “marriage contract” does require a continuation of union, it is indeed illegitimate. Further, why would one need a “marriage contract” in a regime founded on natural law? One wouldn’t. One may, of course, need a contractual agreement regarding how to divide property should a divorse take place, but one would not really need a “contract” in order to create a marital bond.
To Mr. Koerber, who writes, “I pointed out at least one very obvious characteristic (biologic extinction) of homosexuality that is proof that it is short-run rather than long-run”:
Homosexuality would not cause extinction, and therefore you have no argument that it is bad for the long-run of social cooperation.
(1) Only about 2% of the population are homosexual.
(2) Because homosexuals do not (usually) reproduce, they do not (usually) pass on the genes that yield homosexuality, and therefore will never come to constitute any huge percentage of the population.
(3) Because homosexuals will never constitute a huge percentage of the population, heterosexuals will continue indefinitely to constitute a huge percentage of the population, therefore ensuring the continuation of civilisation for as long as society remains civil. Thus, the fact that homosexuals do not usually reproduce indicates that your fears of extinction will actually not take place (or, at least, will not be caused by the prevalence of homosexuality.
(4) Even if homosexuals somehow could come to constitute 99% of the population, the 1% of heterosexuals will continue to reproduce, and thus you would still be incorrect. The only way homosexuality could even theoretically lead to the extinction of the human race is if homosexuals somehow magically come to comprise 100% of the population.
(5) Finally, even if homosexuals do somehow magically come to comprise 100% of the population, this still wouldn’t make homosexuality immoral in accordance with the Hazlittian view, because although it likely would lead to the lack of further human reproduction, human reproduction is not a requisite for social cooperation. Would we say that social cooperation has ceased to exist in the unlikely event that all of the heterosexual females on Earth suddenly, of their own volition, choose to cease procreation? Would we say that we must force these women to have sex, that employing this force against these women in the name of “protecting social cooperation” would be in any way moral? Of course we wouldn’t. Rape is unethical, no matter the scenario. Social cooperation is only necessary for as long as humans continue to choose to exist; forcing humans to continue to exist in order to promote social cooperation perverts the entire purpose of promoting social cooperation.
In conclusion, you are wrong, Mr. Koerber.
Sincerely,
Alex Peak
DixieFlatline,
I refer you to Hazlitt’s book. He uses the example of the market price. Even though all value is subjective and originates with each individual, the market price is objective. Would you somehow think that the market price is divorced from the individuals because of the market price is objective? It is not. It is wholly the result of the subjective valuations of individuals.
Likewise in ethics there is no ‘divorce’ between the individuals that make up the society (and who have subjective ethical views) and the objective standard that emerges.
You said, “If you cannot, then who can? What is his name?” I refer you to Hazlitt’s book. It is thorough and fascinating.
But to answer your question I pose a question. Which of all the individuals who are participating in the market and who have subjective valuations is the one who decides the market price? What is his name? This is the question that you ask but with regards ethics. It probably seems like a silly question when you think about the economy and yet that is what you are asking about ethics.
“Non-existent society” – It is true that the classical liberalism societies that will form in the future are non-existent presently. But the description of the ethics of societies given by Hazlitt in “Foundations of Morality” apply to the past and the present and the future. Of course the presence of the State distorts the processes.
Peak:
I know it is not. I have written on this many times. This is a quite obvious point. The intent of the framers can be evidence for what the original understanding was, but it is the original understanding that is what is relevant. I am not sure why you are telling me such an obvious thing.
Spooner, bless him, was making a lawyer’s argument, and a strained one it was. If he had carried the day with this argument, and persuaded the Supremes to just flout the law and free the slaves–fine by me. But don’t pretend it’s the law. I have written on this elsewhere. I repeat it here so that my meaning is not mistaken:
The Constitution was not libertarian at all. It was the result of an illegal coup. It established a central state which has grown–predictably–to the leviathan we have now.
Completely ridiculous. What does it mean to “apply”? If the state violates the 2nd amendment, what did that mean? That it got kicked out of the Union, for breach of Treaty? If that were true I’d be urging Texas to ban all handguns… kick us out, please! Or did it mean that the federal courts had the power to overturn state law? Well, that sounds like a federal power, don’t it? Where is that power enumerated in that fine Constitution? I don’t see it. Or is it implied in the 2nd Amendment? Wo ho, that would violate the tenth, would it not? And it would convert a set of limits on the federal government into a grant of power to the feds.
I think the argument is ridiculous and libertarian wishful thinking. But I do agree the Constitution nowhere empowers the federal government to define marriage. However, the states don’t need an enumerated power in the federal Constitution to recognize marriage.
I doubt it is unconstitutional under the First; another lawyer’s argument, a stretch, libertarian wishful thinking. But I agree it is unconstitutional simply because there is no enumerated power authorizing such a federal law.
Depends on what you mean by “define.” “Defining” by itself violates no rights. I wish Congress would spend all day writing a dictionary.
Any contract that binds persons regarding future commitments are invalid contracts.
Thus most of the “the contract aspect” of marriage is invalid. Some parts, regarding the ownership of joint property can be viewed as a simple partnership and dealt with but that is not the defining aspect of a marriage.
The defining aspect is the future commitments.
One party can’t even end the partnership for gods sake. And in some cases, even the will of both parties isnt enough to desolve the marriage. Either the church or the state don’t let the parties divorce each other, usually in order to protect the sanctity of marriage, whatever that means. And if there are small children involved the worse it gets.
And even if a divorce is sanctioned, one party, usually the women is thought to have a right to the husbands future earnings.
This is totally different than dealing with the joint property gained during the marriage. This is totally illegitimate even if the man promised to pay the woman. It is illegitimate because no one can promise or trade anything that is inalienable.
And I am not writing these because I had a bad personal experience. I am married to my second wife and my first marriage ended very very easily and in a civil manner.
Alex Peak,
If you put it in the context of “The Foundations of Morality” – the evaluation of whether something is good for social cooperation in the long-run – does not mean that everyone everywhere has to act in that manner.
If stealing is considered immoral, for instance, that does not mean that it is only so if everyone everywhere steals.
The interesting aspect of ethics that Hazlitt elucidates has to do with how he runs a parallel analysis with economic science. Short-run economics is bad economics. Short-run economics looks only at the effects on some, not all, and only during some incomplete time period. In parallel, a flawed ethical system would see how behavior effects only some and/or in the short-run.
The test that Hazlitt uses and discovers to be a product of human social evolution regarding its ethical system (assuming that it is not interfered with by all the false signals created by the State) is social cooperation in the long-run.
So to test whether something is moral or immoral that test is applied. Theft is immoral because it is disruptive of social cooperation in the long-run. If when applying the test there appear obvious disruptive tendencies with regards social cooperation in the long-run then a red flag goes up. These will probably be deemed immoral by society as its ethical system forms.
Of course if you disagree with the discovery of Hazlitt (you said “Social cooperation is only necessary for as long as humans continue to choose to exist; forcing humans to continue to exist in order to promote social cooperation perverts the entire purpose of promoting social cooperation.”) then you would not be able to use this tool to further your understanding of ethics.
I would have to say that the imaginary ethics of “as long as humans continue to choose to exist” is very much at odds with human nature and even the nature of lower forms of life – animals. If that is what you think is superior to what Hazlitt has discovered then I have no reason to even pause to ponder.
Kerem Tibuk wrote:
“Any contract that binds persons regarding future commitments are invalid contracts.”
Congratulations. You’ve just rendered contracts completely useless, which would make capitalism as we know it unworkable.
“This is totally different than dealing with the joint property gained during the marriage. This is totally illegitimate even if the man promised to pay the woman. It is illegitimate because no one can promise or trade anything that is inalienable.”
Wealth, even wealth not yet earned, is not inalienable.
Tibuk:
“Any contract that binds persons regarding future commitments are invalid contracts.”
You seem to be unaware of the title transfer theory of contract. See my A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability. It might behoove you to familiarize yourself with it before discoursing with libertarians on normative contract issues.
A “marriage contracts” is simply a set of co-ownership, permission, and default inheritance rules (e.g., permission for one’s partner to made make medical decisions on your behalf when you are incapacitated, to make funeral arrangements, visitation rights in the hospital, co-ownership of property and disposition rules for said property upon dissolution of the relationship, default rules on who inherits what from the other in the case of death, and so on). This has nothing to do with slavery.
“Thus most of the “the contract aspect” of marriage is invalid. Some parts, regarding the ownership of joint property can be viewed as a simple partnership and dealt with but that is not the defining aspect of a marriage.”
So you assert in crude and simplistic fashion. A marriage is a relationship. There is no “marriage contract,” strictly speaking. Rather, the relationship itself implies a set of contracts, property dispositions and permissions. The law only enforces the latter. It should have nothing to do with the private relationship itself.
“One party can’t even end the partnership for gods sake.”
You are equivocating in your use of “partnership”–does you mean legal, or relational? In libertarian land any party may end the relationship at any time, of course. There is no voluntary slavery, after all. And when it ends, this triggers certain pre-agreed upon property title transfers. Title transfers are not slavery either. Again, if you are familiar with the libertarian theory of contract you might get this.
” And in some cases, even the will of both parties isnt enough to desolve the marriage. Either the church or the state don’t let the parties divorce each other, usually in order to protect the sanctity of marriage, whatever that means.”
What does this have to do with anyting? The state’s practice is irrelevant to what libertarianism advocates. As for the church, it cannot “prevent” someone from divorcing. What are you talking aobut?
“And even if a divorce is sanctioned, one party, usually the women is thought to have a right to the husbands future earnings.”
So? This is merely a property title transfer. If you don’t like this rule then just have a pre-nuptual agreement changing the default rules.
“And I am not writing these because I had a bad personal experience. I am married to my second wife and my first marriage ended very very easily and in a civil manner.”
TMI!
Valid contracts are only those contracts that, there are two alienable goods which are exchanged on certain terms. Human beings can only be enforcers of contracts but never a part of it.
Contracts that promise future labor or a percentage of future labor are not valid contracts.
There was a movie, or a real past event, when the wedding was called off at the last minute and the bride to be sued the groom to be for damages for example. Broken promises are not unlawful acts, just immoral ones.
Tibuk: “Contracts that promise future labor or a percentage of future labor are not valid contracts.”
Contracts don’t promise labor. They promise money. This is perfectly valid. Ever heard of a “loan”? Same idea: I give you $1000 NOW (full title). In exchange, you give to me $1010 of your FUTURE MONEY in (say) a year. Nothing wrong wtih this. It has nothing to do with labor–I don’t care where you get the future-$1010 from.
HM:”Canada allowed gay marriage sometime ago. You know what happened ? Nothing. Nada. Zippo.”
Canada made it illegal for pastors to preach against homosexuality decades ago. Some went to jail for it. That’s what radical homosexuals want in the US. They already have achieved the financial benefits of same sex unions in most states. All that is left for them is the silencing of the last small enclave of critics–a few pastors. Making homosexual marriage legal would be a major step in that direction. Once achieved, radical homosexuals will begin suing churches for violating their non-profit status and getting invovled in politics.
I tried to stay out of the debate because I don’t consider it legitimate for the state to interfere with the contracts of their citizens, so for me the whole issue is a false dilemma fallacy.
However I got intrigued by what Kerem Tibuk is saying. I am not sure I understand his claim. In his opinion, are also non-disclosure and non-compete agreements invalid? Shares that pay dividends? Revenue-sharing patent and copyright agreements?
> Contracts that promise future labor or a percentage
> of future labor are not valid contracts.
What does this even mean? It does not make any sense. Future with regards to what? The present? That would invalidate all employment contracts.
“Contracts don’t promise labor. They promise money. This is perfectly valid. Ever heard of a “loan”? Same idea: I give you $1000 NOW (full title). In exchange, you give to me $1010 of your FUTURE MONEY in (say) a year. Nothing wrong wtih this. It has nothing to do with labor–I don’t care where you get the future-$1010 from.”
Marriage is a contract that requires certain labor or rather behavior. That is why they are invalid. They are not contracts regarding the exchange of future goods against present goods as you claim.
Marriage is a type of co slavery. It is like two individual self owners selling themselves to a corporation where the previous self owners are now equal shareholders of a company that now owns two people. And the worst part is 51% is needed for a decision every time, at least in principle
fundamentalist:
“Canada made it illegal for pastors to preach against homosexuality decades ago. Some went to jail for it. That’s what radical homosexuals want in the US.”
This may be true. What has this to do with gay marriage? The state ought to enforce private agreements. It should not impose on churches, however.
Kerem Tibuk:
“Marriage is a contract that requires certain labor or rather behavior. That is why they are invalid. They are not contracts regarding the exchange of future goods against present goods as you claim.”
Nonsense. Marriage is just a private relationship, where two people cohabit, usually romantically, and have promised to support and love each other for life. It is a status, or relationship. It is not unlibertarian at all. There is nothing wrong with making promises.
The relationship has contractual effects, which are also not unlibertarian. You are talking complete nonsense here, kitbook.
Historically/traditionally daughters are the property of their fathers and marriages are arranged to benefit both families. Read your Bible!
Kinsella,
“Nonsense. Marriage is just a private relationship, where two people cohabit, usually romantically, and have promised to support and love each other for life. It is a status, or relationship. It is not unlibertarian at all. There is nothing wrong with making promises.”
I don’t think you know what marriage is.
The defining aspect of marriage is not the promises. Two people romantically involved but not married also make promises and share the same thing.
The defining aspect is the consequence of breaking promises. If there is a penalty because of broken promise, this act is not just and actually an act of aggression.
I am not saying promises are not important or people shouldn’t keep their promises. I am saying broken promises are not unlawful acts. Unlawful acts are only those act that involve aggression against person or property.
I will say it again.
Marriage is a type of co slavery. It is like two individual self owners selling themselves to a corporation where the previous self owners are now equal shareholders of a company that now owns two people. And the worst part is 51% (actually 51% is not possible it should have been 100%) is needed for a decision every time, at least in principle
Peter,
First I want to make clear, invalid contract means that you can not enforce the terms of the contract by use of force. Not that promises shouldn’t be kept. There is a line between unlawful and immoral and this issue is about that line.
Copyright contracts are about usage of certain alienable property so it is different then a contract based on a future promise of labor. They are more like apartment lease contracts. When you lease an apartment on certain conditions, like you will not use it as a brothel, what is being exchanged is money versus the usage of the apartment, not you
Some people might get confused, because some think copyright contracts create IP. But this is false. IP exist, and there can be full ownership or conditional ownership regarding it. Just like tangible property.
Non compete agreement, if I understand it correctly don’t involve a certain property but a promise on a general act, thus they would be invalid.
So are the non disclosure agreements
Labor contracts are invalid to the extent of future promises. They are guidlines of the exchange and the exchange of the alienable goods and services is the important aspect.
Humans can not be a part of the exchange in a contract. They can only be enforcers. Valid contracts are only those contracts that there are two alienable goods that are being exchanged.
Thank you Kerem for the explanation, which as usually with you, explains nothing and only confuses. You pull arbitrary definitions out of the air, coarsely associate them and draw useless conclusions. Your sentences are void of meaning and do not enable one to formulate a theory.
> First I want to make clear, invalid contract means that
> you can not enforce the terms of the contract by use
> of force.
In other words, they are practically useless.
> Copyright contracts are about usage of certain
> alienable property so it is different then a contract
> based on a future promise of labor.
You are incorrect in your explanation. If you sell rights to your book or song, it is common to receive a percentage of sales. The sales are not your labour, they are labour of the one who you sell your rights to. Therefore, such a contract is about a percentage of one’s labour.
> They are more like apartment lease contracts.
Except that apartment lease contracts rarely contain remuneration linked to the revenue of the tenant. And if they would, according to your “theory”, that would make them invalid.
> … what is being exchanged is money versus the
> usage of the apartment, not you …
You need to clarify what you mean by “usage of you” and how to distinguish it from “non-usage of you”. Otherwise, it is redundant.
> Some people might get confused, because some
> think copyright contracts create IP.
No, it is you who gets confused because I used copyright and patents in an example. In this thread, I did not make any claim regarding validity of copyright or patents, I merely use them to demonstrate that your claims make no sense.
> Non compete agreement, if I understand it correctly
> don’t involve a certain property but a promise on a
> general act, thus they would be invalid.
So, any promise of a future act is invalid? That makes not only all employment contracts but also all service contracts invalid, and also all contracts which only bind one party. I start to doubt you actually understand what you’re saying.
> Labor contracts are invalid to the extent of future
> promises.
This just confirms my interpretation. Absent this part, there is nothing left in the contract.
> They are guidlines of the exchange and the
> exchange of the alienable goods and services is the
> important aspect.
I recall from the course in labour law I took during my studies that an employee owes “labour”, not goods or services. How do you reconcile that? Besides, first you say that promise of future act is invalid, but then you say that exchange of a service is ok. That is a contradiction.
> Humans can not be a part of the exchange in a
> contract.
Again, this sentence has no meaning. What does it mean “part of the exchange”, and how does one distinguish it from “not being part of the exchange”? Human action is by definition part of any exchange. How does one distinguish those that are “good” and those that are “bad”?
Actually, this exchange gives me some insight into your mind. There are no theories. You just dreamed up some model of reality and then make up arguments to match it. Except your model is too vague and misrepresents or ignores large parts of human interaction. So you have to dodge confrontations and your sentences must lack precision in order to avoid cognitive dissonance.
Peter,
“> First I want to make clear, invalid contract means that
> you can not enforce the terms of the contract by use
> of force.
In other words, they are practically useless.”
No they are not useless unless you think the law should regulate every behavior and there is no difference between unlawful and immoral. I think otherwise. But since you dont know much about ethics, morality, law etc it may seem that way to you.
“> Copyright contracts are about usage of certain
> alienable property so it is different then a contract
> based on a future promise of labor.
You are incorrect in your explanation. If you sell rights to your book or song, it is common to receive a percentage of sales. The sales are not your labour, they are labour of the one who you sell your rights to. Therefore, such a contract is about a percentage of one’s labour.”
Standard copyright contracts are not the same thing as selling all the rights of the work. I was defining and talking about the copyright contracts regarding the consumer usage.
What you are talking about doesn’t need a copyright contract at all. An author can sell all the rights of his novel to a company in exchange for a percentage share of that company and keep receiving a share of the profits. This is neither a copyright contract nor a labor contract and totally irrelevant to the subject.
And you dont seem to grasp the difference between labor which is inalieanble and the product of labor which is alienable.
Since you are programmer I will give you an example. You can create a code, which alienable from you, and sell it. You can not sell your future labor services using a contract (you can but the contract wouldn’t be enforceable). That would be akin to voluntary slavery.
“> They are more like apartment lease contracts.
Except that apartment lease contracts rarely contain remuneration linked to the revenue of the tenant. And if they would, according to your “theory”, that would make them invalid.”
Again irrelevant. The issue is the conditional usage.
“> … what is being exchanged is money versus the
> usage of the apartment, not you …
You need to clarify what you mean by “usage of you” and how to distinguish it from “non-usage of you”. Otherwise, it is redundant.”
You are not the code you wrote, but you are what you would or would not do. Code or any product or service you already produced is alienable from yourself. You can exchange it and go on with your life. Your future performance can not be separated from yourself.
Can you follow.
This exchange should firstly and most importantly give insight into your mind. You should realize that when you dont know something you should try your best at understanding it, instead of getting into arguments for the sake of arguments.
@Kerem Tibuk:
> No they are not useless unless you think the law
> should regulate every behavior and there is no
> difference between unlawful and immoral.
What are you talking about? Contract enforcement is “regulation”? What is the point of a non-enforceable contract? There is none. Then it’s not a contract.
> But since you dont know much about ethics, morality,
> law etc it may seem that way to you.
Since you do not know much about logic, it might be pointless to debate you.
> Standard copyright contracts are not the same thing
> as selling all the rights of the work.
Vague, can be interpreted in many ways.
> What you are talking about doesn’t need a copyright
> contract at all.
Indeed! It was just an example.
> This is neither a copyright contract nor a labor
> contract …
What is the distinction between “labour contract” and “non-labour contract”? All contracts involve some labour.
> … and totally irrelevant to the subject.
Which is?
> And you dont seem to grasp the difference between
> labor which is inalieanble and the product of labor
> which is alienable.
Another confusion. How do you distinguish between those? You arbitrarily say that action A is “labour” and action B is “product of labour”. You do not explain anything.
> You can not sell your future labor services using a
> contract (you can but the contract wouldn’t be
> enforceable).
Of course you can, I do it all the time. Now you even created three categories: labour, product of labour and labour services. What is the difference between them? And why do you use the word “future”? It’s redundant. You can’t sell past activities, and present is only possible if all related activities happen at exactly the same time (which in most cases is physically impossible).
> That would be akin to voluntary slavery.
Can you make an understandable distinction as to what promise of activity is valid and what is invalid? Now you just have some garbled nonsense. All contracts, per definition, revolve around human action.
> Again irrelevant. The issue is the conditional usage.
Now you created yet another category. What is “conditional usage”? Conditional usage of what? Where are the conditions? What conditions are permissible and what not?
> You can exchange it and go on with your life.
If the contract says so, yes. So?
> Your future performance can not be separated from
> yourself.
What is the meaning of this argument?
If you think you can fool me into believing that there is a meaning behind your arguments and merely I am unable to comprehend it, you need to try harder. Your arguments fail to make any sense at all.
Peter,
The issue is alienability. I have said all I can and I dont have time and patience to teach you this stuff.
Go and read “Ethics of Liberty” by Rothbard http://mises.org/rothbard/Ethics/Ethics.asp
Maybe then you can understand the position and decide whether you agree or not.
Kerem Tibuk:
“I don’t think you know what marriage is.”
Well don’t tell my wife!
“”The defining aspect of marriage is not the promises. Two people romantically involved but not married also make promises and share the same thing.”
I’m not a statist so don’t define marriage by some state classificaiton or blessing. A marriage is a relationship between two people where they solemnly commit to each other. If two people do this and hold themselves out as spouses, they are married, in my view.
“The defining aspect is the consequence of breaking promises. If there is a penalty because of broken promise, this act is not just and actually an act of aggression.”
You are babbling incoherently. Please think before you write.
“Marriage is a type of co slavery.”
You really are making yourself sound pretty unintelligent here, dude.
“The issue is alienability. I have said all I can and I dont have time and patience to teach you this stuff.”
I of course also oppose the idea of alienability of bodies, as I’ve written as well. It is clear that marriage is not any form of slavery. You are just very confused (or have very messed up views about marriage)
Dear Kerem, thank you for the link. It looks like an interesting book and one day I might read it wholly. Now I just read the parts that seem relevant to our discussion. While so far Rothbard’s argumentation has not persuaded me about the invalidity of voluntary slavery contracts, your claims are very different from his claims. His claims at least make sense. If I understand them correctly, they are not relevant for marriage contracts, only in case these would have infinite duration. In the strictest interpretation of the principle, rather than a marriage contract being invalid per se, disagreement would lead into ending of the contract. Which is, coincidentally, also what actually happens in reality and we call it divorce. From my limited knowledge of the concept, most major religions and countries permit divorce. Therefore, there is no such problem as you paint it.
Mr. Koerber writes, “Even though all value is subjective and originates with each individual, the market price is objective.”
It might be more correct to say, “Although all value is subjective and originates with each individual, the market price is intersubjective.” It is st6ill dependent upon the subjective valuations of individuals.
Mr. Koerber continues, “Likewise in ethics there is no ‘divorce’ between the individuals that make up the society (and who have subjective ethical views) and the objective standard that emerges.”
I tend to view ethics as a bit more distinct from the intersubjective considerations of society. To borrow an argument from Rothbard, imagine a world in which virtually everyone hates and fears redheads. Obviously, the intersubjective consensus may be that all redheads should be executed so as to protect society. Yet, would not the libertarian violently reject such a proposal? If so, then it stands to reason that the libertarian believes in some objective standard of ethics that goes beyond the intersubjective whims of the mob.
To me, Mr. Koerber writes, “If stealing is considered immoral, for instance, that does not mean that it is only so if everyone everywhere steals.”
But stealing directly impedes social cooperation regardless of the scale on which it takes place, while you wish to claim that homosexuality impedes social cooperation because society would not exist to cooperate in the event that homosexuals came magically to comprise 100% of the population.
In other words, this comment you have now provided defeats your own argument.
(1) I reject the view that social cooperation would have been impeded even if society magically became 100% comprised of homosexuals.
(2) Even if I were to accept your flawed perspective that social cooperation will have been somehow impeded if society magically becomes 100% comprised of homosexuals, surely the existence of a 2% (or even 20%) homosexual minority in no way impedes social cooperation, in total contradistinction to stealing, which does impede social cooperation regardless of upon what scale it takes place.
Mr. Koerber sums up as follows:
“I would have to say that the imaginary ethics of ‘as long as humans continue to choose to exist’ is very much at odds with human nature and even the nature of lower forms of life – animals. If that is what you think is superior to what Hazlitt has discovered then I have no reason to even pause to ponder.”
My understanding of ethics is based primarily on Murray N. Rothbard’s book The Ethics of Liberty, which is of course available here for free in .asp, .pdf, and .mp3 formats.
This view of ethics is founded on certain axioms, primarily the axiom of self-ownership. Every person naturally owns her or his own body, and thus, she or he also naturally owns the product or her or his own labour. Thus, property in alienable things is an extention of property in the inalienable body.
This leads to the nonaggression axiom. If I have a negative right to my life, my body, and my justly-acquired alienable things, then it stands to reason that no person has any positive right to deprive me of these for any reason, and that any such act either causing me to become deprived of that to which I have a natural right must be, naturally, unjust or unethical.
So, do I have a right to kill myself? Yes, because I own my own body, and any attempt to prevent me from controlling my property as I see fit is a violation of natural law, and thus an unethical act. (I have written about suicide in greater detail here.)
Now, what happens if I decide to cease living? Have I thereby violated anyone’s rights? So long as I kill myself on my property, no. Therefore, suicide cannot be unethical. Nor would it magically become unethical if all on Earth suddenly chose, of their own volition, to off themselves.
Sure, social cooperation would cease at that point, since society would cease to exist. Yet is it “at odds with human nature” that humans are naturally self-owners and thus naturally have the right to determine whether or not they wish to continue to exist?
I submit that forcing a person to continue to live against her or his will–that is at odds with human nature, for it assumes that one person can have a higher claim to another individual than the individual has to her- or himself. Forcing a person to live against her or his will is, in short, a gross violation of ethics.
Mr. Kinsella,
Perhaps there was some miscommunication, then, and perhaps it was my fault. If so, my apologies.
In any event, it is my current opinion of myself that I would probably do the same as you, were I to somehow make it onto the Supreme Court, i.e., make rulings based primarily on considerations of natural law. Perhaps I would suppliment this, as Spooner does, with statutory or Constitutional considerations where I believe it helps to reinforce natural law, but where the natural and the statutory diverge, I would side with, as best I can, the natural. Whatever fetish I may have for presenting constitutional arguments is just that, a fetish. I suspect I would be the first Supreme Court Justice that would heavily cite Rothbard in my opinions.
You ask, “If the state violates the 2nd amendment, what did that mean?”
The second amendment does nothing but provide Americans with an statutory/constitutional argument that they can then present to a court that might otherwise ignore their natural right to keep and bear arms. Of course, chances are, a government-monopoly court may ignore a person’s natural right to keep and bear arms even if the arms-bearer uses the Constitution as the basis for her argument–but then, it’s not my intent to argue that the Constitution is an effective bulwark against tyranny, only that it, in theory, guarantees the defence of this basic right.
“Or did it mean that the federal courts had the power to overturn state law?”
The federal courts are, being a government-imposed monopoly, an illegal institution according to natural law. But then, according to natural law, so are government regulations on guns in the first place. So, if the illegal monopoly courts overturn the illegal gun restrictions, I will not object, even if said courts employ the inferior constitutional argument instead of the superior natural law argument.
“Or is it implied in the 2nd Amendment? Wo ho, that would violate the tenth, would it not?”
If I were still a constitutionalist libertarian, I would have argued that, yes, it is implied in the second amendment, and I would further say that this is not a new federal power, but rather a power that the federal state has always had (in the same way that any person or any organisation on Earth naturally has the authority to fight rights violations).
I would modify that argument slightly now, but this alteration would not fundamentally alter what my perspective on the right to keep and bear arms. Consider the following line of thinking, and let me know if you see any flaws with it. It’s quite possible that I’m overlooking something here, but until my misstep(s) is (or are) pointed out to me, I fear this is my perspective:
(A) If thing-X is a natural right, than any person and any group of persons has a just authority to defend said right.
(B) The right to keep and bear arms is a natural right, mentioned in the Constitution, but a natural right all the same.
Therefore, (C), any person or group of persons may defend this right against the “state-level” state that may try to infringe upon it.
(D) Persons are free to defend their rights directly, or to seek assistance from others.
Therefore, (E), a person has a right to seek assistance from another human against an aggressor, even if said aggressor is a gang calling itself “the state of Maryland.”
(F) A person is free to accept assistance from anyone, even from criminals (i.e., aggressors), so long as no aggression is committed by the side fighting for defence.
(Example: If I’m running down a hall, being chased by Joseph Stalin who intends to kill me, and I run by Hitler who is holding a pistol, and I yell to Hitler, “Shoot Joe! Shoot Joe!” and Hitler does so, I have done nothing wrong despite the fact that I have asked a criminal to assist me; and the reason I have done nothing wrong is that, despite Hitler being a criminal, he did not aggress against anyone in the course of his assisting me. An absurd example, of course, but yeah.)
Therefore, (G), if I wish to seek the assistance of the criminal band calling itself “the United States of America” in order to force the criminal band calling itself “the State of Maryland” to not violate my natural rights, I’m free to do so, as long as the criminal band calling itself “the United States of America” does not violate anyone’s natural rights in the process. (And, of course, it cannot be said to be violating the State of Maryland’s natural rights since the State of Maryland has no natural rights to infringe upon.)
So, is this approach still completely ridiculous? If so, please do show me where it errs.
Finally, you write, “A marriage is a relationship between two people where they solemnly commit to each other.”
Minor correction: two or more people.
Sincerely,
Alex Peak
I strongly believe that Gay Marriage is a Constitutional Right…although Moral its a Right for two to inter into the union.
Why? It clearly states that the Religion and State cannot converse upon each other. Roe Vs Wade a classic example, where you have a moral (religious) right/view and a Constitutional Right. Although Abortion can fall into many ideological ideas of murder, yet Constitutionally its a right to a mother to decide what she wants to do to her body.
How does Gay Marriage fall in…simple..Morally according to many Bibles depending on who wrote it (and mind you it was written by MAN, and who is to say God is really against Homosexuality..hence none of us has been able to ask him…its a belief)
Marriage is therefore in my humble opinion is a Constitutional Right giving to us in the Constitution..No were is is written that the Union of Marriage is ONLY between Man and Woman…
I truly hope when this goes before the Supreme Court this year the Justices give the same respect to the law as they did with Roe Vs Wade.
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