Uncontracts and the seductiveness of selective anarchy
June 15, 2014 § 59 Comments
The libertarian delusion that the State can and should get out of the marriage business is expressed by commenter mdavid in the donalgraeme thread:
The State easily could “get out of the marriage business”. It would be simple for the state to say that husband and wife are considered one flesh for legal consideration. The only thing they would need to do is decide if a marriage is recorded or not. If it is, they back out away just like if I was doing something to myself, all property would be owned jointly. If the married couple keeps bugging the police or disturbing the peace, the state could merely arrest both, just like if I was yelling in public they could arrest me. Identical to my home utilities like power or sewer; the company doesn’t care if me or my wife do something without the other’s say-so, they treat us as one person.
The idea here seems to be for the State to create a special kind of contract; lets call it an uncontract. An uncontract is a petition to the State to decline to resolve any later disputes that arise between the parties. Since this uncontract is supposed to be labeled ‘marriage’, presumably it has to address (or unaddress) matters of criminal law like theft also. So if the State is really supposed to decline to make substantive judgments about disputes or violations between the parties, that has to mean that it will decline to enforce any criminal law whatsoever also.
So basically what the advocates of the State “getting out of the marriage business” are asking for is a kind of selective anarchy.
It is arguable that the no-fault divorce regime is already a kind of selective anarchy, since marriage in the shadow of no-fault divorce is in some real senses less than a contract: either party can ‘secede from the union’ at any time and for any reason. The complaint then appears to be that no fault divorce doesn’t go far enough: that we need the selective anarchy of uncontracts for marriage, but the State isn’t giving it to us quite good-and-hard enough yet. The State hasn’t insisted on metaphysically neutral politics quite enough. The State hasn’t become liberal enough.
Modern people are always being seduced into thinking that the solution to problems caused by liberalism is more liberalism: that we just need our liberalism to be more authentic. The idea of the uncontract is, like the antidemocratic-but-still-liberal neoreactionary notion of “exit over voice“, just another manifestation of how this always terminates in anarchotyranny.