If you don’t see what I am saying, check your contract lenses

February 9, 2013 § 39 Comments

Some folks[1] seem to be under the impression that contracts are rarified highly formal agreements which occur in the presence of lawyers and detailed written stipulations.  Nothing could be further from the truth.  Contracts are ubiquitous in all human societies.

Any time one human being makes an offer, another human being accepts the offer, and consideration – something of value – is exchanged, that is a contract.  When you go to the grocery store you enter into, not one contract, but a contract for each and every individual item you purchase.  The selling company offers you a product at a price; you accept the offer; consideration (money and product) are exchanged.

Contracts are not limited to monetary consideration.  Any consideration at all will do.[2]

Now it is true that many trivial contracts never make it to the sovereign for adjudication, when there is a dispute.  Sometimes people work things out for themselves.  Sometimes the wronged party decides that it isn’t worth pursuing justice over a small matter.  Sometimes a whole genre of ‘reality TV’ is spawned based on resolving trivial contracts.  But the fact that many trivial contracts are not adjudicated by the sovereign – because the parties decide not to petition the sovereign – doesn’t mean that they are not contracts.

Steve Nicoloso was kind enough to distill the essence of the “get the government out of the marriage business” position to this:

 I want contracts enforced. Period. Full stop. All of them. By the letter. Enforce, enforce, enforce! Whether its called a “marriage” or a “pumpernickel”…, I want it enforced.

Take away the fig leaf. Just let the government enforce contracts. It would be great if they enforced marriage qua marriage. But if they’re not going to do that, then at least they can enforce contracts qua contracts.

The problem with this is that marriage qua marriage is (among other things) a contract.  If two people exchanging gum for a nickel is a contract – and it is – then marriage is certainly a contract.  It is not possible for government to be in the business of enforcing all contracts while at the same time not being in the business of marriage qua marriage.

I should say that the fact that I highlight the precise area where (in my view) disagreement arises does not imply disagreement in other areas.  I appreciate Steve and other commenters taking the time to engage with the issue, a great deal of what he says (and they say) on the subject is valuable and true, and his comments are well worth reading.

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[1] Other recent posts on the subject of advocating “getting the government out of the marriage business” are Marriage and the death of reason, All the king’s horses and all the king’s marriages, What if only usurers could marry?, and What not to do about tyranny.

[2] Commenter ‘Our Heroine’ and I had an exchange over whether baptism is a contract in this thread.  Qua covenant with God, baptism is not a contract.   The Sanhedrin may have gotten away with taking God to court, but that isn’t something we can do.  But there may be contracts ancillary to baptism which give rise to some tort action, and in any event the point is that contracts are ubiquitous and adjudicating them is part of the very essence of governance, in all societies.  That is why disavowing governance becomes the other ‘bookend’ in this disputation.

§ 39 Responses to If you don’t see what I am saying, check your contract lenses

  • It is not possible for government to be in the business of enforcing all contracts while at the same time not being in the business of marriage qua marriage.

    Thank you for distilling down the area disagreement Zippy, which (as I would have expected) is not large. By “GOOMB” I mean the government needs to get out of the business of supposing that it knows what marriage is and will settle scores according to its own (likely perverted) norms of justice in spite of the actual contract–whether written or verbal. Of course in a post-official marriage society, most of those contracts had better be written. Since marriage is probably the least trivial contract imaginable, this is not hard. I am saying that the marriage contract should be enforced just like every other contract.

    The area of disagreement seems to me to be what is the nature of the “government” being in “the marriage business”. You seem to take it to mean that the government recognizes and enforce marriage contracts, i.e., like actually today. But the reality is that the government does the first but abjectly refuses to do the latter. They “recognize” marriage in the sense of giving certain powers to spouses for instance to act on behalf of each other in most cases, get a tax break or whatever. But they don’t enforce those contracts. On the contrary, governments routinely tear them up… often even when they’re in writing.

    So that’s what I mean when I say GOOMB: The government should stop pretending to know the terms of a marriage contract better than those who actually signed (or vowed) it; thereby stopping the tearing up of contracts, just because they happen to be marriages and the terms thereof do not conform to the judge’s own vague (usually feminine) feelings of social justice. They’ll still be “in the business of marriage”, but only tangentially and only when invited as an impartial arbiter of a dispute about contracts. If one of the signatories wants out of the contract, he or she is going to have to suffer the consequences for doing so spelled out in the contract.

  • Zippy says:

    Steve:
    I am saying that the marriage contract should be enforced just like every other contract.

    That is exactly what is happening now though: the government is enforcing contracts – including marriage – according to its official hermeneutic, which includes its interpretations of words, its understanding of reasonable expectations, its understanding of what is and is not enforceable, its understanding of what it means when people stand in front of witnesses and make certain promises, its understanding of what is and is not a basic human right, etc. That’s not the problem.

    The problem is that the official hermeneutic is bad, false, substantively wrong. There is no escaping this problem short of expatriation.

    So that’s what I mean when I say GOOMB: The government should stop pretending to know the terms of a marriage contract better than those who actually signed (or vowed) it; thereby stopping the tearing up of contracts, just because they happen to be marriages and the terms thereof do not conform to the judge’s own vague (usually feminine) feelings of social justice.

    But the government gets involved in contracts precisely when those who actually signed or vowed it are in dispute with each other.[*] So you can’t appeal to the hermeneutic of one or the other party to resolve the specific dispute. You have to appeal to a hermeneutic of truth, and judgement over what is true cannot be (literally cannot be) taken away from the sovereign — unless, again, the sovereign is simply to not be involved in enforcing contracts at all, in which case he is no sovereign at all.

    Perhaps a better practical approach would be to propose specifically Catholic binding arbitration in Catholic marital disputes as a specific feature of Catholic marriage, much like Moslems use in Canada (IIRC) in order to have certain of their contracts judged under Sharia. I’m not a lawyer though and I don’t know how feasible that would be, and binding arbitration still gets done in the shadow of the positive law: all it really does is provide an interim step with limited authority delegated by the state. My guess is that the “good of the children” trump card would render anything like that rather moot.

    I think at bottom, marriage traditionalists like us want a different government. Certainly. But saying that the government should get out of the marriage business is like saying that the government should get out of the private property business. It is a libertarian fantasy, a fantasy of a system of property that functions smoothly with no sovereign to settle contract disputes between citizens. We know that that looks like already: we call it gangland, anarchy. Welcome to Somalia.

    [*] It also of course influences what deals are and are not made: all contracts ever are instances of what Dalrock calls “bargaining in the shadow of the law”. Without the shadow of the law there would be no enforceable contracts at all. You can’t fix the law without fixing the law.

  • If a man and a woman have prenup, and it says that if the woman wants out (i.e., files for divorce), then the guy gets the kids, all shared assets, and is liable for no future payments to her, and it says the same vice-versa, what are the chances that that contract is going to be honored in family court? I ask because I don’t know. I’ve heard that it has almost no chance. The mere existence of no-fault divorce makes even the question unlikely, but let’s say it was contested because of this prenup. My gut tells me, along with what I’ve heard, that I think the government would tear up this contract. All I’m asking for is enforcement of the contract. If it says the woman owes the man 200 head of cattle; if it says anything that is not in itself immoral or illegal, then I say: enforce the contract. That is (AFAIK) not is what is happening today. I’m looking for ways to improve the odds. That’s all.

    I do like that idea of separate adjucation. Where parties agree irrevokably and forever to submit to a third authority. Since it does an end run around no-fault divorce, I don’t see how it could hold up. But if it works for Muslims in Canda or the UK, then it might work for us.

  • Zippy says:

    Steve:
    All I’m asking for is enforcement of the contract.

    If all you are asking for is enforcement of the contract, then you are asking for the government to be very much in the marriage business and to do the right thing. That is entirely different from advocating that the government get out of the marriage business.

  • Chevalier de Johnstone says:

    It’s really odd to see people on a Catholic blog making the Puritan anti-Catholic argument for why marriage ought (supposedly) to be a secular civil contract and not a matter for the Church (which would necessarily make it not a secular civil contract – render to Caesar and all that.)

    For reference on Church teachings regarding the holy sacrament – not the secular civil contract – of marriage, we can turn to the 24th session of the Council of Trent, in which the Church responded in part to Protestant reinterpretation of Church marital doctrine.

    http://history.hanover.edu/texts/trent/ct24.html

    AFAIK couples married in a civil ceremony – the kind over which the Legislature of the United States of America or any of its States can possibly have any authority – the Church considers (if they cohabitate) this to be adultery. A dispensation must be granted for such a couple to marry and have their marriage recognized as valid within the Church.

    As to the enforcement of contracts…there are myriad situations in which you can make a promise to another human being and no local, state, or Federal government has any obligation or interest to enforce it for you. Some things are legal contracts and other things are contracts. There is a difference. State and federal government interference in the marriage contract is nowhere in the Constitution – heck for decades after the establishment of the U.S. you could have multiple wives in some states.

  • Steve Nicoloso says:

    It’s really odd to see people on a Catholic blog making the Puritan anti-Catholic argument for why marriage ought (supposedly) to be a secular civil contract and not a matter for the Church

    Not sure who’s proposing that. The trouble is that the Church has no power, in western liberal democracies, to enforce what she teaches. If an errant spouse goes to the civil magistrate to demand a divorce, she cannot (statistically speaking) be denied. It doesn’t matter that the Church might excommunicate her, even if it would. And if it did, it probably would simply engender her even more sympathy with the civil magistrate… that misogynist, patriarchal, eeeeevil Church… here are cash and prizes.

    In fact, I am deliberately avoiding the “ought” of which you speak.

    I am merely suggesting that if we could get the civil magistrate to enforce marriage contracts, in the same, more even-handed manner that it enforces most other kinds of contracts society would be better off for it. In order to do this, I propose that the state eliminate it “special” interest in marriages (and more to the point: divorces) as a case of contract law so special that it routinely tears up the contracts.

    So of course, officially the state is very much in the “marriage business” as before, but it now adopts a neutral stance in that business: Marriages are (for we the state) contracts, just like any other contracts. We adjucate disputes in them on the (preferably explicit) terms of the contract. After all, you were consenting adults…

    As I have said about half a million times, for me this is nowhere near an ideal, but only an improvement–and an improvement which has some non-zero probability of being implemented in the current regime.

  • Zippy says:

    @Chevalier de Johnstone:
    It’s really odd to see people on a Catholic blog making the Puritan anti-Catholic argument for why marriage ought (supposedly) to be a secular civil contract and not a matter for the Church (which would necessarily make it not a secular civil contract – render to Caesar and all that.)

    Marriage is both/and (sacrament and contract) not either/or. When two people contract marriage, as Canon law calls it, they are entering into both a sacrament and a contract.

    Or we can just go with that anti-Catholic puritan St. Thomas Aquinas:

    Further, in matrimony there is a contract between husband and wife. Now in every contract there must be expression of the words by which men bind themselves mutually to one another. Therefore in matrimony also the consent must be expressed in words.

    I answer that, As stated above (A[1]), the marriage union is effected in the same way as the bond in material contracts. And since material contracts are not feasible unless the contracting parties express their will to one another in words, it follows that the consent which makes a marriage must also be expressed in words, so that the expression of words is to marriage what the outward washing is to Baptism.

    State and federal government interference in the marriage contract is nowhere in the Constitution …

    Gonna go with sola constitution, eh?

    If someone were just arguing that under federalism the federal government should stay out of the marriage business that would be a different discussion entirely. Bringing it up here though is just a red herring: an attempt to make authoritative sounding noises that don’t actually address any point of contention. Rather like linking to Trent, sans any explanation as to why we should view Trent (contra Canon law and St. Thomas Aquinas) as defining marriage as sacrament-but-not-contract.

  • Gwen says:

    As a matter of common law, marriage isn’t a contract, though: it’s a status, albeit one acquired by voluntary consent. The distinction is that the parties don’t get to define the terms, which are fixed by law; the parties can elect to accept those terms or they can elect not to get married, but the classical common law didn’t give them the option of designing their own marriage. Jurisdictions that enforce pre-nuptial contracts have modified that principle, of course, but that’s a recent innovation.

    I’d say that, at its heart, marriage is more like the feudal relation of lord and tenant than it is like a bargain between parties in the marketplace. The incidents of tenure were defined by the law, not the parties, and the voluntary element came in when the tenant did homage and the lord accepted him – the law didn’t give either of them the option of creating a tenure and then changing all the incidents. More modern examples of ‘status rather than contract’ relations are parent-child and certain kinds of fiduciary relationship (eg company directors, charitable trustees). Whether or not acceptance of the status is voluntary – doubtful, in the parent-child case – there is not much scope for consensual changes to the actual meaning of the relationship.

    This isn’t just a pedantic point, I think, because the contract/status distinction has implications for enforcement – for example, it means “intention of the parties” is not a relevant consideration when determining the rights and obligations of the status-holders. The question is what the institution is, as a matter of law, which turns on why the state recognises it in the first place. Contract might be a substitute for marriage as a method of regulating sexual relationships but it is an alternative, not just another word for the same thing.

  • Zippy says:

    Gwen:
    The distinction is that the parties don’t get to define the terms, which are fixed by law; the parties can elect to accept those terms or they can elect not to get married, but the classical common law didn’t give them the option of designing their own marriage.

    The fact that the term “marriage” has a meaning doesn’t make contracting it not-a-contract. Same with a contract to “adopt the status of” director — or CEO, or janitor, or slave for that matter.

    “Status” seems to just refer to words which have a definite meaning: when contracting X, X is understood to have a definite meaning. But that is how language works: words have meanings and can’t just be arbitrarily redefined without destroying the capacity to make definite statements at all. So we are back to nominalism again.

  • Cane Caldo says:

    “If someone were just arguing that under federalism the federal government should stay out of the marriage business that would be a different discussion entirely. Bringing it up here though is just a red herring: an attempt to make authoritative sounding noises that don’t actually address any point of contention.”

    I know you feelin’ me dawg.

  • Robert King says:

    The aspect of the government being “in the marriage business” that I have problems with is that the State does not only recognize and enforce marriage contracts, it issues a marriage license. That is, the government presumes to define what is and is not marriage and to authorize who may and may not enter into such a contract. This level of regulation makes marriage the State’s “business” rather than one of many sorts of private business/agreement/contract for which the State merely resolves disputes – based on the individual natures of the individual contracts.

  • Zippy says:

    Robert:
    … it issues a marriage license.

    Yes, we’ve talked about that in other threads here and elsewhere. One could certainly propose that marriage licenses and/or keeping of vital records be curtailed. But putting hope in that bureaucratic trick changing what happens when spouses take each other to court or when criminal activity is uncovered is misguided, precisely because all contracts are made in the shadow of the law and very few require licenses or specific record keeping.

  • Zippy says:

    Cane:
    I know you feelin’ me dawg.

    Word.

  • Zippy says:

    And by “one could certainly propose that marriage licenses and/or keeping of vital records be curtailed” I mean that one can rationally propose it and debate its merits. (I think those merits are few, as far as preserving the institution of marriage goes).

    This is distinct from proposing that the government “get out of the marriage business” in a general or nominalistic libertarian sense, which is quite literally irrational.

  • Robert King says:

    I must have missed the discussion on other threads.

    At the risk of repeating what others may have said, a license is hardly the same thing as keeping vital records. A license is a permission, without which the State can refuse to recognize what is licensed.

    This is, I think, where all the talk of “rights” to marriage and “equality” in marriage comes from: that the State issues a license. Same-sex couples object to not being issued a marriage license, and thereby argue that they are being discriminated against.

    In doing so, the State defines marriage as merely a contract, and, for that matter, a contract defined and entirely adjudicated by the State. It leaves no room for recognizing the differences between, say, a Catholic marriage (indissoluble till death) and a Mormon marriage (sealed for time and eternity) and a secular marriage in which the couple vows to be faithful “as long as we both shall love.”

    This is a problem: that the State claims authority over marriage.

  • Gwen says:

    I think you’re equivocating between two quite distinct concepts of what a “contract” is. It could mean one of 2 things: 1) any legal relationship arising by consent or 2) a sub-category of legal relations arising by consent, which has certain specific features, the most critical of which (for these purposes) is that the content and scope of the relationship is itself voluntarily defined by the parties. The first is the approach of Civilian legal systems and (I think) Canon law and it means that a bare gift of property, for example, counts as a ‘contract’ as does marriage. Common lawyers, on the other hand, define contract in the second sense as a sub-category of voluntary relation (requiring offer, acceptance, consideration) and classify other voluntary transactions either as, roughly, property (consequences of a gift) or status (consequences of getting married, becoming a trustee, or doing homage to a lord). I took it from your reference to offer and acceptance and consideration that you were using the common law definition.

    But the important point is that, in the case of a contract in the strict common law sense, what words mean ultimately depends on what the particular parties mean by them. If you want to use “egg” to mean “diamond” in your contract, you simply have to add a clause expressly stipulating that, for the purposes of your deal with X, any references to “eggs” are to be taken to be references to diamonds. That certainly isn’t the natural meaning of the word “egg”, but the law doesn’t care; when it’s figuring out your obligations under the contract, it’s looking for (what the other party could reasonably have thought to be) your intention and an express clause like that would undoubtedly achieve the result of persuading the court that you both knew that a promise to supply 10 eggs was a promise to supply 10 diamonds.

    Marriage isn’t like that, however. The marrying couple can stipulate till they’re blue in the face that “adultery” in their agreement means only “paying money out of the family account to a third party”. It won’t matter. The law defines what counts as adultery for the purposes of the law of marriage and divorce and it pays no attention to what the parties would like it to mean. Similarly, you cannot have a tripartite marriage in English law however hard you try. You can’t, subject to the coming legislation, have a marriage between two men or two women or a man and a woman already married to someone else. If we were in the normative territory of contract law, these results would be inexplicable: if the law is trying to figure out, and enforce, the intentions of the parties why would it ignore their express statements? Answer: because it isn’t trying to identify and then enforce intentions. It’s doing something else. If we were to determine that enforcing marriages would be like enforcing contracts, that would be a transformation in the law – even in those jurisdictions which have ceded some territory to contract thinking in the marriage context by allowing pre-nups to modify (some) elements of the incidents of marriage. I’m not offering any comment on whether that would be a good thing or not – I don’t know and haven’t done the intellectual work to figure it out, it depends largely on the social facts in the jurisdiction considering the change – but, descriptively, it’s not what common law systems do at the moment.

  • Zippy says:

    Robert:
    At the risk of repeating what others may have said, a license is hardly the same thing as keeping vital records.

    Agreed. Those were just two distinct aspects of the state “being in the marriage business” which came up. Some folks seem to think that the fact that the state tracks who is and is not married is a crucial point.

    In doing so, the State defines marriage as merely a contract, and, for that matter, a contract defined and entirely adjudicated by the State.

    I don’t agree that requiring a license for something makes it merely a contract. I have a pilots license (issued by the federal government actually), but that doesn’t make slipping the surly bonds into “nothing but a contract”.

    This is, I think, where all the talk of “rights” to marriage and “equality” in marriage comes from: that the State issues a license. Same-sex couples object to not being issued a marriage license, and thereby argue that they are being discriminated against.

    You have a point that the licensing process may add to liberal outrage over discrimination. But the idea that getting rid of licenses – with the law still not substantively recognizing sodomite pairings as “marriage” – would placate liberals, is I think very doubtful.

  • Robert King says:

    Zippy:
    This is distinct from proposing that the government “get out of the marriage business” in a general or nominalistic libertarian sense, which is quite literally irrational.

    Perhaps I don’t run in the right circles, but no one I’ve talked with means GOOTMB in a “general or nominalistic libertarian sense” – probably because it is obviously irrational when you pursue it in that direction.

    It is exactly the “business” of claiming authority to define and license that is worth discussing, in terms of whether the government should be in that business or not.

    I don’t see anything more chaotically irrational about a judge saying, “Ah, we have a marriage contract here. So, what are the terms of the contract?” than there is about a judge saying, “Ah, we have a purchase contract here. So, what are the terms of the contract?” In a homogenous society, the terms may be able to be assumed, as they have been for millennia. But in a pluralistic society – and particularly one that is pluralistic about the definition of marriage – it makes sense for the law to begin by asking questions rather than issuing licenses.

  • Zippy says:

    Robert:
    How is “pluralism about the definition of marriage” distinct from (selective) nominalism?

    (I can come up with proposed ways myself, but the ones I can come up with do not, again, actually accomplish anything that “get the government out of the marriage business” moral traditionalists want it to accomplish).

  • Robert King says:

    But the idea that getting rid of licenses – with the law still not substantively recognizing sodomite pairings as “marriage” – would placate liberals, is I think very doubtful.

    For once we are in full agreement. Happily, I am not concerned with placating liberals.

    I am concerned with maintaining a forest of law thick enough that we may use it to protect ourselves from the devil. This of course requires that the law not itself be devilish.

  • Zippy says:

    Gwen:
    I think you’re equivocating between two quite distinct concepts of what a “contract” is.

    And I think you are attempting to draw a distinction which does not exist, to wit:

    a sub-category of legal relations arising by consent, which has certain specific features, the most critical of which (for these purposes) is that the content and scope of the relationship is itself voluntarily defined by the parties.

    It is literally not ever the case that a contract between citizens of a governed state is made outside of the shadow of the law, with all terms specified ex nihilo by the parties and the relationship completely defined by the contract which they breath into being ex nihilo. And if that isn’t what you mean then you haven’t drawn a categorical distinction.

    But the important point is that, in the case of a contract in the strict common law sense, what words mean ultimately depends on what the particular parties mean by them.

    Yes, well, nominalism, as I’ve been saying all along.

    If all of the words in the contract mean just what each party says they mean, nothing more, nothing less, then there is literally no way for the sovereign to adjudicate the contract in a dispute. Party A will claim that the words mean what he says they mean; Party B will claim that the words mean what he says they mean; and having prescinded from using objective terms with objective meaning, the sovereign will have abdicated all authority to adjudicate between them: postmodern anarchy.

  • Robert King says:

    Zippy:
    How is “pluralism about the definition of marriage” distinct from (selective) nominalism?

    Pluralism is simply the state of having many disputed sides to an argument which goes beyond the mere purview of law. The law is not qualified to decide matters of philosophy or morality, only of law. So the law can recognize that there are a plurality of arguments without passing judgment on which is right or wrong. This is a matter of practicality.

    Our current system of law and government – at least in some areas – seems to think that it has the authority to define reality. This is the fruit of nominalism. It is exactly nominalism that is the problem, the idea that the law has authority to define – rather than the humility to recognize – human relationships.

  • Zippy says:

    Robert:
    The law is not qualified to decide matters of philosophy or morality, only of law.

    In order to decide matters of law though government officials have to make substantive judgments of right and wrong. This cannot be avoided, and you seem to be hinting at legal positivism here (which makes the opposite presumption). But there is no solution to the ‘demarcation problem’ between law and morality.

  • Gwen says:

    You’re right that there can be no ultimate distinction – in that the objective meaning of words will come into the task of interpreting all agreements and the court will have to draw on its own understanding to determine the meaning of any contract in front of it – but I think there is a difference in terms of what the court thinks it’s doing (ie the norms that guide the court). In the contract case, the court does think it’s searching for the particular meaning of this deal between these parties; it looks at the express words, and the “matrix of fact” and all sorts of contextual factors. If Party A says “we meant diamonds” where the words of the contract say “eggs”, the court will be skeptical because it takes the ordinary meaning of the word to be what the parties must, objectively, have intended. But if A can prove that he and B really did mean diamonds for eggs – eg because it is slang in their particular industry or because of a specific clause to that effect – the court will happily depart from the ordinary meaning of the word. It conceives of its task as simply finding out what the parties meant and “ordinary” objective meanings of words are only a guide to that work. In the marriage case, on the other hand, the court ordinarily disregards any peculiarities of the particular relationship between the parties (and indeed any express stipulations by them). In enforcing the obligations of the parties, it looks to the legal definition of marriage *even if* it knows full well that the particular parties have tried to depart from the definition. That’s the normative difference, which would be abolished if common law courts did start interpreting marriage vows in the manner that the normally interpret contracts.

  • Zippy says:

    Gwen:
    but I think there is a difference in terms of what the court thinks it’s doing

    I am perfectly willing to believe that modern jurists think they are doing something rational and consistent but in fact are not. I rather expect it to be the case.

    But if A can prove that he and B really did mean diamonds for eggs – eg because it is slang in their particular industry or because of a specific clause to that effect – the court will happily depart from the ordinary meaning of the word.

    … except that under the shadow of the law, the law’s understanding of terms takes precedence. In every contract, always. For example the state isn’t going to fundamentally depart from its own conceptions of property, money, time, promise, death, body, age, citizen, etc in favor of radically different concepts of those things asserted by one or both of the parties to the contract.

    There are also semantics issues, issues of jargon within particular domains, as there virtually always are when nominalism is in play. That is a sidetrack, but it is part of what makes nominalism seem plausible and why it has deceived so many people for so many centuries. Whatever labels are assigned, contracts are made in the substantive shadow of the law: the law necessarily employs countless substantive concepts which cannot be banished by an infinite-regress requirement to look up the word “dictionary” in the dictionary so that we can find out where to go to look up words, and which cannot be conjured away by postulating a demarcation between law and morality which does not exist.

    In the marriage case, on the other hand, the court ordinarily disregards any peculiarities of the particular relationship between the parties (and indeed any express stipulations by them).

    That isn’t just true of marriage. It is true of many other substantive things, things which cannot be extracted from these rarified nominalist contracts that libertarians think are possible but are not in fact: property, money, time, promise, death, body, age, citizen, lies, taxes, rights, parent-to-child, child-to-parent.

    Nominalism wants for there to be turtles all the way down. But there are no turtles.

  • Gwen says:

    Modern jurists do, so far as I’m aware, think they are doing different things when they enforce contracts as opposed to when they determine the consequences of marriage (or the creation of property rights). I’m not sure that there is philosophical mistake there – it seems intuitively appealing that a bargain (A promises he will do X if B does Y) is morally different from a vow (A promises to become some other type of person: a husband, a villein or a monk) – but that isn’t relevant to my argument, which is that it would in fact be a change in the positive law if the courts treated ‘the terms of a marriage’ in the same way that they treat ‘the terms of a contract’. The immediate practical consequence would be that an unusual term in a marriage contract – eg that the relationship could be dissolved if the husband quit his job or the wife gained more than forty pounds – would be void and unenforceable on the status model of marriage and, provided the language was clear, perfectly enforceable on the contract model. You may of course think the positive law is incoherent in drawing a distinction between the law of contract and the law of marriage (family law / the law of persons / the law of status) but it would nevertheless make a genuine, practical difference if the courts decided that marriage fell within one of those categories rather than the other.

    As a side-note, the distinction between the status-conferring marriage and the bargain-creating contract isn’t particularly modern. Marriage is a lot older than the rule that allows an informal promise to be enforced if, but only if, consideration is provided for it (which creates the classic offer + acceptance + consideration definition of contract which you adopt) and the two streams of authority were not mingled until the modern innovation of the pre-nuptial contract. [Marriage settlements etc are of course older but they aren’t pre-nuptial agreements because they don’t try to vary the standard incidents of marriage but only to create an additional structure to manage the wealth of the couple and their children etc in addition to the standard structure.] Even Bracton treats the law of man and wife under a different heading from the law of enforceable covenants and agreements to sell property. That’s a historical aside, which doesn’t have much relevance to the substantive argument but I thought I’d note it since you seem to be operating from the premise that offer + acceptance + consideration is an ancient (natural law?) notion while status is a modern and rather suspect concept, whereas my understanding of English legal history suggests quite the reverse. The law was happily dealing with guardianship and tenures and marriages and estates in land for centuries before it properly got to grips with the idea that an informal contract to do something might be enforceable just because the promisor had supplied consideration for it.

  • Gwen says:

    (I’m sorry for the typos and mistakes – I’m on my phone and in a bit of a rush. I meant “promisee” not “promisor” in that last sentence!)

  • Zippy says:

    Gwen:
    think they are doing different things when they enforce contracts as opposed to when they determine the consequences of marriage (or the creation of property rights).

    As when a contract confers the status of property owner, for example, every time you buy a toothbrush.

    since you seem to be operating from the premise that offer + acceptance + consideration is an ancient (natural law?) notion while status is a modern and rather suspect concept

    Not at all. My only point is that you’ve failed to draw a categorical distinction between contract and status such that contracts which confer status are not contracts.

  • Gwen says:

    Contracts conferring status are not contracts in the sense that standard doctrines of contract law do not apply to their interpretation and enforcement. For example, such “contracts” need not be for any consideration which the law recognises as such (eg I can gratuitously become a trustee or, in former times, a nun – I can still become a nun, of course, but it’s no longer a legally relevant status). Their terms are not determined by the ‘objective evidence of intention at the time of agreement’ principles that apply to other contracts. They often have terms that are fixed by law or that must fall within very narrow perimeters that are fixed by law. The obligations they create do not necessarily give rise to claims for damages in cases of breach of the terms (though the marriage debt once did, I believe). They are not always capable of enforcement via an order for specific performance. They cannot usually be vitiated by the doctrine of frustration, economic duress, mistake or misrepresentation; so, for example, there are rules that void a marriage but they are much narrower in scope than those that terminate contracts. They cannot be terminated by the mutual intention of the parties without recourse to a court.

    Those are some the differences I can think of at the moment. “Contract”, in law, describes a set of rules applicable to agreements that fall within the category (ie obligations arising by offer + acceptance + consideration) . Not every set of rights and obligations created by agreement fall within that category: gifts, marriages, and gratuitous covenants don’t. So it isn’t meaningless, from a doctrinal point of view, to say that courts ought to stop enforcing “marriages qua marriages” and to enforce them qua contract instead: enforcement qua contract is entirely different from enforcement qua marriage and such a proposal would, if enacted, bring about some radical changes.

  • Zippy says:

    Gwen:
    Contracts conferring status are not contracts in the sense that standard doctrines of contract law do not apply to their interpretation and enforcement.

    So a contract conferring the status of ownership isn’t a contract?

    Look, dumpster diving in (a particular) legal theory is great and all, but it doesn’t really address any argument I’ve made. So folks shouldn’t be left with the impression that it does.

    So it isn’t meaningless, from a [legal?] doctrinal point of view, to say that courts ought to stop enforcing “marriages qua marriages” and to enforce them qua contract instead: enforcement qua contract is entirely different from enforcement qua marriage and such a proposal would, if enacted, bring about some radical changes.

    “Entirely different” is, at the very least, a gross overstatement.

    I get it that the proposal is to treat marriage as – unlike, say, property ownership or parenthood – legally meaningless: to void it of all legal quiddity. But that, again, isn’t counter to any argument I’ve made. I’ve even proposed something similar with respect to usury.

    So I don’t think you have understood my argument.

  • Karenology says:

    Hi Zippy. Came here from thewomanandthedragon site because I wanted to ask you what you meant by this;

    “Christian doctrine is consistent with quantum mechanics.”

    How so? I’ve seen that claim made by other religions also (quantam physiques to be exact) so wondered what was your take on this.

  • Zippy says:

    Karenology:
    I’ve seen that claim made by other religions also (quantam physiques to be exact) so wondered what was your take on this.

    My broad point was that all truths are consistent with each other. In the context of that discussion, the point was that while (say) the history of ancient Rome is consistent with physics, it makes no sense to complain to historians that they have failed to adequately teach physics.

  • […] This view is mistaken.  It is true that some contracts are reversible by mutual consent.  But the vast majority of them are not. […]

  • […] business – to be metaphysically neutral on marriage contracts – which we’ve discussed here before. Short version: it isn’t a coherent possibility, and many people only cling to it […]

  • […] idea here seems to be for the State to create a special kind of contract; lets call it an uncontract.  An uncontract is petition to the State to decline to resolve any […]

  • […] Contracts are always definitely consensual.  Contracts are never completely consensual. One who has not grasped this essential political fact will remain one of liberalism’s useful idiots, waking up each morning still trapped in a dystopian liberal Groundhog Day. And it is impossible for a positivist, who confuses definiteness with completeness, to grasp this essential fact. […]

  • […] What is wrong with contracts between consenting […]

  • […] way to figure out whether a contract for gain is usurious or not is to look for contract terms which treat a personal guarantee as if it […]

  • […] way to figure out whether a contract for gain is usurious or not is to look for contract terms which treat a personal guarantee as if it […]

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