I'll See You in Court

Robert Murphy, like any other ingenious villain or revolutionary (is there really a difference?), attempts to draw upon certain political sympathies over at The American Conservative. Those familiar with some of his other works will find familiar arguments being made, but with half the sugar and twice the brevity. Unimaginable as it may seem, some commenters are giving Murphy the squinty-eye...and still others seem to wonder what planet he came from. I'd like to explore some of the comments made by someone in the latter group, one "philadelphialawyer":

"Please. Marriage is the worst example the author could pick. Marriage is a contract and a civil status. That’s all the government cares about and is concerned with. The religous aspect of it is of no moment to the government."

You know that famous book, "Men are From Mars, Women are From Venus?" There should be a similar book, switching out the gender-dichotomies for political-dichotomies...and possibly using planets that are further apart to more realisitically aproximate the differences. I feel like I'd be very capable of writing that book. I also feel like I'd be very capable of shipping my first copies to every lawyer in Philadelphia. I know that, maybe, when some people envision "government" what they really are thinking of is something more ideal or abstract - like some kind of Platonic structure converging with reality through the aether. But it's hard for me, as a living, breathing human being, to square that with reality. And, in actuality, marriage is almost the perfect example to illustrate Murphy's point (which is probably why he chose it). While we may hold government to some set of ideal and neutral standards regarding contract and "civil status" (as an asside, you can replace "civil" with "tax" and it will give you better context), the truth is that the people who enact and enforce these rules are placed there by the public - a public which is largely informed by their own particular culture(s). So guess what happens to an institution who not only claims a legal monopoly over the drawing up of such contracts, but also confers benefits and priveleges based on such handling at the expense of everyone else - you get a fight between cultural institutions over what should qualify for such priveleges. And, more to the point, in any particular jurisdiction only one particular view may prevail. So, quite contrary to the notion that political matters remain a-cultural, we actually see roughly the opposite. And, if you don't believe me, or if you haven't opened a newspaper lately, then try obtaining a marriage license with a non-opposing gender. What's that you say? They wouldn't grant you such a license?! Absurd! And why not? Because the law states that licenses are only to be granted to heterosexual couples? It seems so strange that legal custom today seems roughly concurrent with religious custom. After all, the government has no concern for religious custom! Only the people who control the government have concern for that...and we all know that's completely coincidental! Next thing you're going to tell me that governments can be preferential in the context of race or gender! Seriously though, is there anyone with more than one brain cell who believes that public policy is divorced from the cultural values of the voting populace?

"The author talks about “private sector arbitration” to determine who is married and who is not, analogizing to contract dispute resolution in business situations."

I think there is a misunderstanding about the function of arbitration in the context that Murphy is applying it. The functionality he is assigning to arbitration here lies within the context of disputes between the two (or more) parties involved in the contract - not in determining who is married or not.

"An arbitrator, no less than a court, applies legal principles. And, in general, it is the courts and other government institutions that make the legal principles. An arbitration decision flatly contrary to law is unenforceable, null, and void."

Again, Muprhy's focus is not so much in regards to the contract-resolution or enforcement thereof with regards to marriage. Or at least he's not choosing to make such arguments in this particular article. His larger point is that the benefits and priveleges conferred by such contracts with regard to government(s) results in, amongst other things, a heightened state of cultural and social warfare that wouldn't exist otherwise.

"Without a background legal regime, “arbitration” would either be unenforceable, or a crapshoot, or both. Or, arbitration would entirely replace the legal regime, but then it would simply be a different legal regime, no different than the dreaded courts."

The first statement here is a non sequitur. The second statement is simply non-sensical. You can believe that there are bad consequences to removing the current state-based template of justice from the picture. But that's quite different than saying that contracts simply couldn't be enforced without such an institutional monopoly. In fact, the only way that makes sense, from a logical perspective, is if you draw the premise for your argument from your conclusion - if the only people who can do X are removed, then no one can do X. Well, some of us believe it's possible for other people to do X. Saying that a market-driven system of arbitration would be (institutionally) no different than the current system of justice is baffling on it's face. Even if you believe that it wouldn't be a beneficial move, clearly the incentives and dynamics would be incredibly different. Any standard economic analysis of markets, monopolies, and public choice theory will at least get you that far. And, even then, that doesn't mean that contract disputes would be ultimately resolved with any significantly different results. Again, Murphy's argument isn't about the contract itself but rather its political implications given the current (political) regime.

"Of course, there would be nothing wrong, in theory, with a pre nuptial provision requiring arbitration in the case of separation and divorce. But, unlike most purely business contractual relations, marriage affects other people and actors, besides the party."

Is there anyone that believes that legal disputes about other kinds of contracts (including business contracts) don't affect third parties?

"How is a hospital to know who is married (and thus entitled automatically to visiting privileges and, in the absense of written documents to the contrary, to be the health care decision making proxy if the patient is incapacitated) and who is not? Is an arbitrator going to decide whether the gay partner of the patient is “really” the husband of the patient or not? And on what basis, if not on State law?"

These are the kinds of questions that drive men into the heart of madness. I can handle the indirect implication that people who want to overturn the current regime in favor of competing private arbitration have never had a spare second to consider what a hospital might do in the absence of government-licensed marriages. What's particularly disconcerting is the lack of imagination on the part of some of the people who ask these questions. You get the sense that they aren't so much interested in solutions to what they believe to be problems but rather that they are interested in throwing what they believe to be stumbling blocks in front of someone questioning what they perceive to be the "correct" model for the world. In any case, these questions, once again, are perfect examples of Murphy's point. Both hinge on the privelege and force wielded by actors and conferred by government regulation and licensing. In this case we have the government literally telling hospitals who may and may not have visiting or agency rights with regards to patients (resulting, by the way, in the heartache of millions of friends and families who do not currently garner such legal favor from the government). Is it not possible that a hospital, as a service provider, would not be able to meet the general demands of their customers? How far do you think a hospital would get if they made a habit out of denying their patients such services? Do you think it's less possible for legal customs to develop without the outright licensing of marriage? Even if not custom, why couldn't contracts which defer or share agency (marriage or otherwise) be constituted without the granting of government license or its accompanying priveleges? Why would an arbitor or hospital need to be concerned explicitly with what does or does not constitute marriage? Shouldn't they simply be concerned who has customary or contractual obligations concerning such things (whether these contracts constituted "marriage" or not for those dominated by such cultural considerations)? Why are these questions of contract and agency couched in what would be the otherwise religious prospect of "marriage"? And if the term "marriage" is to be believed to be completely devoid of religious meaning then why, again, is the licensing for such contracts and their subsequent priveleges being denied to homosexuals? Or polygamists for that matter? It's bad enough to be so locked up in a particular view of things that a person wouldn't be able to conjure simple questions like these to at least suspend their more simple objections, but to inderectly plea for the preservation of a system which so clearly systemically benefits some at the expense of others is something that I'll never grasp. Yes, please argue that it's the best, or that we could not do better, but don't pretend like the current system is a panacea; that the current regime has it all handled. It's worth noting that the commenter continues on with other examples; not being able to seperate the consequences or enforcement of contract from the ways in which government rewards and punishes certain groups or individuals based on these contracts, and how they inevitably must excert an increasingly liberal amount of control, regulation, and licensure over such interactions - fueling the cultural divide(s). He then goes on to make such laudible arguments as:

"Much as it may pain the author, there is such a thing as a public sphere."

Yes, and I hear that thieves (often unpersuasively) sometimes try to sway their victims to revoke claims of restitution by reminding them that there is such a thing as thievery. It really does settle the question of whether people should or shouldn't steal if you think about it long enough..... Other beautiful arguments include:

"We have culture wars because we have competing cultures, or perhaps more accurately, competing sub cultures. Those differences are not going to magically go away if we shrunk the government."

I like this one because it, if not briefly, actually makes me wonder if I perhaps just dreamed up this entire piece in my head. And that maybe this commenter isn't even real, but rather some figment of my subconscious working itself out - like the way that dreams so inconsistently put together fragmented parts of your memory in a quite inconguent way. But then I shake my head and realize I'm not sleeping. And then I skim Murphy's piece again half a dozen times trying to figure out where it might have been said that cultural conflict would disapear with a smaller government. Instead I find that he actually highlights that there are plenty of institutional/cultural conflicts further removed from government purview that are quite consistent and serious; albeit with not as much pointing of guns within that wonderful "public sphere." I wonder if there's something different about these other issues that keeps all those people in that "public sphere" thingy from pointing their guns so much. Someone should write an article about it...