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.

§ 59 Responses to Uncontracts and the seductiveness of selective anarchy

  • Chad says:

    I started writing a comment over there before I had read your post here. I’ll be honest in that I have a hard time fully grasping positivism and other parts of your writing as individual posts, and am just now starting to pull the ideas together to make some solid understanding.

    Please let me know, either here or there, if I’m seeing this correctly.

  • Zippy says:

    I replied there to keep the reply in the same place as yours. Hopefully I didn’t miss the point of your comment too much.

    I’ll be honest in that I have a hard time fully grasping positivism and other parts of your writing as individual posts, and am just now starting to pull the ideas together to make some solid understanding.

    It isn’t easy to see because of all of the smoke and mirrors we live in and among. Liberalism thought it could solve the problem of conflicting visions of the good by acting as a metaphysically neutral referee, treating each distinct vision of the good as equally free. But there is no such thing as a metaphysically neutral referee. A referee presupposes certain rules and background conditions to begin with, and sets of rules and procedures and prior conditions are never morally neutral: they always favor certain things over other things.

    So the conflict between different visions of the Good hasn’t been eliminated or made benign: it has just been driven underground, and the body count and legions of lost souls have gone up by orders of magnitude. Instead of setting about making reality a more peaceful and free place as liberals suppose, liberalism has set about stamping out the Good, the True, and the Beautiful. The ultimate in metaphysical neutrality is Nothing.

  • Cane Caldo says:


    I started writing a comment over there before I had read your post here. I’ll be honest in that I have a hard time fully grasping positivism

    I do to. I can’t say what Zippy means, but I can tell you what I read him mean:

    Positivism is rejection of the wisdom that we don’t know what we don’t know, and that we know nothing except as it has been revealed and confirmed to us by authority. It is the philosophical rejection of faith, spirit, and authority; which are fundamentally interdependent.

    That’s about as succinctly as I can put what I understand, and I welcome Zippy to correct my understanding of what he means.

  • Zippy says:

    Another way to think about positivism is that it represents an attempt to deny metaphysics or to make metaphysics into something inconsequential.

    Slightly more strictly speaking it is an attempt to assert a ‘nothing but’ relation between something ontologically real and some formal representation.

    But the limits of language make it inherently difficult to discuss the limits of language.

  • sunshinemary says:

    I used to wonder if abolishing legal (state-based) marriage would solve all our problems, but I realized that the existence or non-existence of state-issued marriage licenses really has little effect on the problems we are experiencing as a society. The state has to enforce laws when people disagree; in the case of a husband and wife (whether “legally married or not) splitting up, if one of them takes the children and runs, that state has to enforce the law (no kidnapping). It’s no different than if you live with a roommate who is just your friend, not your spouse, and your roommate steals something of yours; the state will have to enforce the law (no stealing other people’s stuff). There is no getting around that without selective anarchy, even for married people.

    Abolishing legal marriage will not cure what ails us (neither does keeping legal marriage). The legality of marriage is a distraction from the real problem here.

  • Mike T says:

    More importantly, virtually no one really means it when they say “get the state out of marriage.” I’ve shut up a few libertarians by observing that that has only one meaning (there is no educated and rational dissent on this one point): marriage is beyond the adjudicative authority of the state. That means the state’s response to any court petition is “get this #$%^ out of my court room” without any exception.

  • Mike T says:

    That said, there is merit to moving marriage law into the realm of formal contract law wherein marriage is adjudicated strictly as a set of assets governed by two mutually consenting adults under contract. One such example is that if a wife decides she wants to violate her terms of the contract, there is no baggage of common law or family court protections intended to protect women 500 years ago when men had far greater social and legal authority than they do today. She can be much more equitably punished in a civil court than a family court, and as no fault divorce is the norm and women initiate about 70% of all divorces this is an important fact.

    (By the way, every time I bring up that imbalance in divorce filings on W4, the response is “well some men file too” and some crap about how a man can trade his wife in for a younger model. This… despite the fact that I am citing actual statistic showing that most of them it actually is the woman destroying the marriage.)

  • jf12 says:

    I think this is on topic, although I think this opinions about contractual stuff is the sort of topic I have to pretend to be interested in usually. Instead of plain old who-said-what-to-whom gossip, which might have at least a lurid or sensational aspect, it’s metagossip about who-believes-who-should-have-said-what-etc.

    Toni Tennille filed for divorce from Daryl Dragon in January. It’s still a go. Although the Captain’s only public comment about it was “Huh? What? Nobody ever tells me anything! Gah!”, Tennille was slightly more forthcoming at the outset. In her charming cozy mansion she bought for herself, and her cats, several years ago, within the same interview she floated the two separate ideas that
    1. They haven’t really been together as husband and wife for years anyway.
    2. They could be doing for insurance fraud purposes.

  • mojohn says:

    I’m an attorney with 30+ years experience dealing with general contract law. I have indirect experience in “family law,” mainly as moral support to friends who have found themselves caught in the divorce mill. In that capacity, I have seen what are represented to be typical court pleadings and thus have a fairly decent grasp of what goes on in “divorce court,” at least in a couple of “fly-over country” states.

    I find it interesting that Zippy designated as an “uncontract” a marriage in which some level of government isn’t involved in enforcing the parties’ obligations.

    In commercial and consumer[1] contracts, the parties are free to agree that disputes among them will be resolved by binding arbitration, rather than through traditional litigation. The parties can also designate (either by name or by qualification criteria) who will serve as arbitrators. They can also agree to the policies/procedures the arbitrators will follow in hearing evidence and rendering their decision. Finally, well-written arbitration clauses in contracts state that the only time the courts can be involved is to enforce the arbitrators’ decision if a party doesn’t voluntarily comply.

    If a contract contains a valid arbitration provision, the law states that courts may not overturn the arbitrators’ decision, but must enforce the decision as written if requested to do so by a party to the arbitration.

    With that as background, I don’t see any reason – from a conceptual standpoint – why a court wouldn’t uphold a judgment terminating a marriage contract if rendered by arbitrators pursuant to a covenantal marriage contract with a valid arbitration clause.

    The contract could provide as follows and likely not run afoul of public policy:
    * Define the roles and responsibilities of husband and wife, citing to the Bible frequently to show its teaching is the foundation for the family

    * Designate arbitrators from among the elders of the church {I recommend three: one chosen by the husband, one chosen by the wife, and the third chosen by the other two arbitrators}

    * Explicitly state that by entering into a convenant contract marriage, the parties are waiving their rights to enforce the other party’s obligations under the contract through the civil court system

    * State that if one of the spouses “quits” the church in which the arbitrators are elders, they consent that those elders will still serve as arbitrators

    * Specify the conditions that must exist in order for either of the parties to seek termination of the contract {acts the parties believe are based on Scripture, such as physical sexual infidelity and perhaps abandonment}

    * Identify the “evidence” a party would need to submit to the arbitrators to prove that a contract-termination event has occurred {pictures, confession, testimony under oath by witnesses, etc.}

    * Allow the parties to change the contract by mutual written consent, in case both of them agree to attend a different church

    * Outline who will get primary custody of any minor children {should be the spouse who isn’t “at fault”}; visitation; division of property, etc.[2]

    There are probably other agreements the parties should consider, but the above should be sufficient for discussion purposes.

    * The couple should, prior to marriage, be members in good standing of a local church, whose leaders are willing to serve as arbitrators.

    * The couple should not simultaneously or at any time thereafter enter into a civil marriage.

    * I make no predictions as to whether a court may – in spite of current arbitration law – refuse to enforce the arbitrators’ decision, but even were that occur, the parties are in no better or worse situation than they would have been had they bypassed covenant/contract marriage and opted instead for civil marriage.

    * This post is intended to be a theoretical discussion of the treatment of covenant marriage if it ever implodes and I do not intend it to be taken as formal legal advise by any reader of this blog.


    [1] A few more hoops must be addressed in contracts with consumers to assure the consumer received value for agreeing to binding arbitration and those principles would likely apply to a marriage contract of the type discussed above.

    [2] These items should be as equitable as possible, and make sure any children are taken care of financially

  • Zippy says:

    You do realize, though, that in order to overhaul family law and implement a complex system of arbitration that the State has to be very much in the marriage business, right? And that this would have to include dealing with things like sexual intercourse as part of the terms of commercial contracts, which generally falls under the criminal law (e.g. prostitution, rape) now. And that other non-consenting parties (most notably children) who have not consented to arbitration are involved. Etc, etc.

    So those kinds of proposals are actually proposals for a complete overhaul of family law in current conditions, with the government very much and very intimately “in the marriage business”: kind of a “constitutional convention” for family law held under the current weltanshauung.

    That’s sure to go well. And framing it as a proposal for the government to “get out of the marriage business” is just self-deception.

  • mojohn says:

    Zippy, I respectfully disagree. I am convinced that entering into a contract/covenant marriage without a corresponding civil ceremony does effectively “get the government out of the marriage business,” as current law doesn’t give courts discretion to honor (or reject) arbitrators’ decisions. No overhaul of the current system is needed. And it doesn’t involve any kind of “formal request” to get the government out of the marriage business.

    You’re right. The whole system probably can’t be reformed now or in the foreseeable future, this is a “straight-face” argument to minimize (eliminate, in my estimation) state involvement. If it works, the parties get the benefit of their bargain (as stated in the covenant/contract). If not, they’ll get what they would have had they not gone to the trouble. So, I see my proposal as a no-harm no-foul proposal to push back against Marriage 2.0.

  • Zippy says:

    I mean, do you expect the State to treat children as property in a commercial contract, just as an example? Do you expect the State to treat sexual infidelity as a property violation? Do you expect to treat future income of both spouses as an annuity to which they have joint title? Are imputed values to be assigned to those annuities?

    IOW, how does this “hands off” (hah!) approach do anything except invite even more complexity and even more liberal shenanigans and even more micromanagement?

  • Zippy says:


    current law doesn’t give courts discretion to honor (or reject) arbitrators’ decisions

    Is there precedent for binding arbitration in a case of sexual infidelity? Child custody?

    What this does is throw everything that is unique about marriage up for grabs legally, hurling all precedent specific to marriage out the window. I guarantee that that won’t go well.

  • mojohn says:

    To supplement my comment at 4:36 pm:

    If nothing else, proposing a covenant/contract marriage to one’s intended will have the inevitable impact of flushing out his/her intent to be bound in marriage for life (or at least until occurrence of genuine fault).

  • Zippy says:


    If nothing else, proposing a covenant/contract marriage to one’s intended will have the inevitable impact of flushing out his/her intent to be bound in marriage for life (or at least until occurrence of genuine fault).

    So it is basically a prenup.

  • mojohn says:

    Zippy, not sure why you called sexual infidelity and child custody “property” interests.

    Who can doubt (or argue against the fact) that marriage is an economic, as well as social, institution. Parties enter into contracts like this all the time in the context of employment. Arbitration of employment disputes is permissible. A fairly common provision in employment contracts is what’s called a “morality clause.” If the employee engages in defined immoral conduct, the employer can sever the relationship.

    Regarding child custody/provisioning, I stated in a footnote that visitation, child support, etc. should be addressed in a way that is equitable. I see no reason a court would invalidate an arbitration award granting primarly custody to the father with visitation to the mother with the father only paying the mother for their support while in her custody. But again, even if I’m wrong here, how are the parties worse off?

  • mojohn says:

    @Zippy at 4:40:

    Yes, proposing a contract/covenant marriage would have the same effect as proposing a pre-nup as far as flushing out “gold diggers.” But it would also flush out whether one’s intended believes in the Biblical definition of marriage – something pre-nups don’t do (at least to my knowledge).

  • Zippy says:


    I see no reason a court would invalidate an arbitration award granting primarly custody to the father with visitation to the mother with the father only paying the mother for their support while in her custody.

    You see no reason, but can you cite precedent?

    But again, even if I’m wrong here, how are the parties worse off?

    I could easily see the terms in a “traditionalist prenup” being used against the innocent spouse later as evidence of “abuse”.

  • mojohn says:

    @Zippy at 4:39: “Is there precedent for binding arbitration in a case of sexual infidelity? Child custody?”

    To my knowledge, no. But the law views arbitration favorably, and I am aware of no precedent in which a court has ruled arbitration in domestic relations cases to be unalwful. And, provided a covenant/contract addresses the issues mentioned in my original comment, I have little doubt that the arbitrators’ decision will be upheld.

    Yet again, I say that even if courts declare domestic relations arbitrations to be contrary to public policy, what will the parties have lost???

  • Zippy says:


    But the law views arbitration favorably, …

    … in commercial contracts, within the pretty well-defined scope of property and tort. In criminal and family law, not so much.

    … what will the parties have lost???

    The proposal boils down to “what can you lose by having a prenup?”, as far as I can tell. Other than the risk of it being used against you later as evidence of abuse, there is also the matter of deluding yourself into thinking that by entering into one you have done something significant to protect traditional marriage.

    I view prenups as a kind of “shit test” that men do to women sometimes. And if you have to shit test your prospective wife, she really shouldn’t be your prospective wife.

  • mojohn says:

    @Zippy at 4:54:

    * “I could easily see the terms in a “traditionalist prenup” being used against the innocent spouse later as evidence of “abuse”.”

    Sure. With a filing fee, anybody can get a court’s attention for a little while anyway. But how persuasive would the “guilty” spouse’s argument be? After all, the contract/covenant was entered into at the height of their infatuation with each other. Not persuasive at all.

    * “You see no reason, but can you cite precedent?”

    No. I can’t. That’s why I made my proposal as a thought-experiment. To my knowledge, there are no cases reported in which a marriage was dissolved . And, because courts only decide “cases and controversies,”[1] there won’t be until a couple enters into a contract/covenant marriage, one of them violates the covenant, the other party initiates arbitration, the violator refuses to comply, and the innocent party goes to court to get an enforcement order.

    [1] Case and controversy means that courts will not take up hypothetical or test cases not based on a genuine conflict/convertroversy between at least two people.

  • mojohn says:

    @Zippy at 5:01: “… in commercial contracts, within the pretty well-defined scope of property and tort. In criminal and family law, not so much.”

    And the basis for your opinion regarding family law???

  • Zippy says:


    To my knowledge, there are no cases reported in which a marriage was dissolved

    So the folks who are investing in this kind of legal instrument are so far just the kind of folks who have no need for it.

  • Zippy says:


    And the basis for your opinion regarding family law???

    You said yourself that there is no precedent for it. It isn’t as if binding arbitration is a new idea.

  • mojohn says:

    Look, Zippy. I’ve been reading “manosphere” blogs for the last couple of years and I hear oceans of complaints from men (and a few women) about “the system.” And I agree – the system sucks.

    I made my proposal believing it is preferable to light a candle than curse the darkness. I’ve provided the candle. It’s up to men considering marriage in this day and time to light it. If they don’t, they’ll be playing the matrimonial lottery. If they light up, at least they’ll give their “family law” lawyer (boy, if that isn’t a misnomer) a straight-faced argument to make if the marriage implodes.

  • mojohn says:

    @Zippy at 5:05.

    Duh. Arbitration itself isn’t new. Although its application in marital law likely is.

    At least I’m arguing based on established precedent that upholds arbitration in a whole host of relationships, including (what I believe) is the closest relationship that can exist between people other than marriage – employment.

  • Zippy says:

    That’s fine, but lets not kid ourselves that the candle is a bonfire. It’s a prenup that attempts to cover unprecedented areas using dubious and unprecedented legal arguments (e.g. that binding arbitration can be applied to child custody, which I very much doubt given that the standard is ‘what is good for the children’ or some such). It isn’t a legal process for getting the State out of marriage.

  • mojohn says:

    @Zippy at 5:14

    As I wrote initially, and repeated a time or two thereafter, the parties would need to make sure that child custody/support issues are equitable, which would likely be in their best interest. If dissolution of the contract is only permitted for cause (adultery; actual physical abuse), who could with a straight face argue that placing the children in the primary custody of the innocent parent isn’t in the children’s best interest?

    And my proposal would have the practical effect of getting the state out of the marriage business. No marriage license up front; no involvement in its dissolution, except to enforce the arbitrators’ decision. In other situations where binding arbitration has been upheld time and time again, I’ve never heard complaints that the courts were “meddling in the parties’ business” merely by enforcing an arbitrator’s decision.

    Probably my last word.

  • mojohn says:

    @Zippy at 5:14: “…but lets not kid ourselves that the candle is a bonfire.”

    Zippy, given your formidable logical skills, I’m disappointed at your straw-man argument.

  • Zippy says:


    who could with a straight face argue that placing the children in the primary custody of the innocent parent isn’t in the children’s best interest?

    Someone who thought sheltered homeschooling was abusive and that the children needed to be in public schools for proper socialization, to learn tolerance of others, etc. And got the social workers and psychologists in the room to testify to that effect.

    I really don’t know why this isn’t obvious.

  • Zippy says:

    It is precisely the things that are in the super-prenup that will be used against the innocent spouse. If anything the lack of a marriage license will just weaken his custody claim, if that (lack of a marriage license) is integral to the legal strategy.

  • mojohn says:

    @Zippy at 5:22

    This will only happen if a court, rather than enforcing a binding arbitration decision, invalidates the decision. Presumably, the innocent spouse would appeal (else why go to the trouble of creating a contract/covenant marriage) and and we’d find out fairly quickly from an appeals court of the trial court overstepped its bounds by not honoring a freely-entered-into arbitatration clause.

    Again, the spouse who opposes divorce in Marriage 2.0 will face exactly the same arguments. So what does he have to lose (your fear-mongering notwithstanding)???

  • mojohn says:

    Sorry for the misspellings and duplicate words. Wish WordPress had spell and grammar check!

  • jf12 says:

    As far as I know any agreements which are entered into specifically to circumvent legal recourse and operate “outside the bounds of law” are legally invalid, and therefore any of the parties can file a court claim to that effect abrogating the agreement. Which does in fact call into question the theoretical basis of all “binding arbitration” exclusionary clauses, but theoretical considerations never actually compelled the law’s action or inaction.

  • jf12 says:

    IOW Zippy’s right.

  • Zippy says:

    I’d summarize as follows. We’ve got the super-prenup (SPN) approach versus the conventional approach (C).

    The legal advantage of SPN over C is the possibility that binding arbitration will ‘stick’ when dealing with unprecedented (as far as arbitration goes) things like child custody, adultery, etc.

    The legal disadvantage of SPN is that it leaves a documentary trail of religious fundamentalist misogynist intolerance and abuse, and, since there is no marriage license, it weakens the father’s custody claim in regular family court should arbitration fail.

    Beyond that I do think that prenups tend to be problematic in general, but that is a broader discussion.

    In any case this approach should not be advertised as “getting the state out of the marriage business”, because it doesn’t do that.

  • mojohn says:

    @Zippy at 5:39 – As to weakening custody claim, that’s a theoretical and not practical concern. A DNA test will conclusively identify the parents. And, I don’t believe I advertised my “musings” as “getting the state out of the marriage business.” So, another disappointing straw man.

    @jf12 at 5:37 and 5:38

    “As far as you know.” My proposal is a reasoned opinion based on personal knowledge of and experience in arbitration and contract law. I don’t know that arbitration in family law will be upheld because there’s no law out there on point. But you have even less reason to assert that it won’t be upheld. Stated another way, unless you have a law degree from a US law school and have done actual research on the subject, I don’t see where you get off so blithely stating your conclusions that I’m wrong and Zippy is right with such certainty.

  • Zippy says:


    And, I don’t believe I advertised my “musings” as “getting the state out of the marriage business.” So, another disappointing straw man.

    I don’t see how the actual subject of the OP could be a straw man; and you might want to check on who is using your computer, because someone else must have posted this using your handle:

    And my proposal would have the practical effect of getting the state out of the marriage business.

  • mojohn says:

    Zippy, I said “practical” not “legally.” From my perspective, there is a difference.

  • Mike T says:


    Throwing everything up as a contract with all matters treated as property violations may be bad in many respects, but mojohn has some interesting points, particularly on arbitration. Ideally, the state would in fact for Roman Catholics defer to the Roman Catholic Church’s ecclestiastic courts and put the armed fist of the state behind its arbitrations when such arbitrations are reasonable (ex when RCC canon law is reasonably followed). That’s one example that comes to mind. For protestants, it would be messier, but there we have enough big denominations that the state could easily defer to denominational arbitrations. That’s particularly true of churches like the Southern Baptists, Presbyterian Church in America, Anglican Church and the conservative Mennonite conference.

  • Zippy says:

    Mike T:
    Arbitration in family law was in the air last decade (e.g. http://korteweg.wordpress.com/2012/12/12/lessons-from-the-2003-2006-sharia-debate/ ), and it is clear from a political standpoint that it will not be permitted to infringe on “women’s rights”. It is possible that someone might use arbitration to throw sand in the gears of the family courts, but at best that’s all it would be and it is more likely in my view that someone who tries will just end up with their name on a court precedent crushing dissent.

  • MarcusD says:

    There’s an interesting discussion over at: http://dalrock.wordpress.com/2014/06/13/escoffier-on-modernity

    For those interested.

  • jf12 says:

    @Zippy, great find about sharia family contracts.

  • mojohn says:

    @Zippy at 9:59

    The situation described in the linked blog arose in the context of using Sharia law as a parallel to the Canadian common law courts. Attempting to “graft” foreign law onto an existing nation’s laws is problematic in the extreme. That’s why there’s been a move recently in the States to explicitly state that judges are not to consider Sharia law when making decisions in cases before them.

    But that’s not what I proposed. US law already recognizes the validity of binding arbitration and encourages its use, so no “grafting” is necessary.

    Whether encouragement to use arbitration to resolve disputes will carry over to family law is an open question. I think it has a reasonable chance – those who object do so not having studied the law.

    Settling the question of arbitration to resolve family questions will require one or more test cases. So, it may very well be that a trial court – asked to enforce an arbitrator’s decision in a family law context – may ignore existing law about arbitration and substitute its own judgment instead. It would be up to the aggrieved party to appeal until a final decision is rendered by an appellate court.

    Yes, it’s possible that the aggrieved party may come away on the wrong side of a “court precedent crushing dissent.” But, I say again, how would that be worse than being sucked into the divorce grinder and being crushed “without a fight?”

  • Zippy says:

    I’ve explained how it could be worse. But you apparently haven’t even read your own words in this discussion, so I don’t really expect you to have read mine.

  • mojohn says:

    Zippy, I find your words unpersuasive. That doesn’t mean I didn’t read them.

  • Zippy says:

    So to reiterate, the (apparently unpersuasive) answer to “how could it be any worse”:

    1) By taking this approach you leave a documentary trail of what the family courts already consider to be “abuse”; a documentary trail that can be used against you.

    2) You spend money on lawyers to plan (possibly counterproductively) for the time when your wife betrays you. I imagine the cost to do it well would be nontrivial: this isn’t exactly a boilerplate employment contract. If you are inclined to do this it is a strong indication that one or both of you are unsuitable for marriage.

    3) By not getting a marriage license certain claims in family court may be weakened.

    4) To the extent religious arbitration in marriage and family law has been “trial ballooned” it has been resoundingly rejected.

    My assessment:
    Sure you could try this, but it is not without both cost and risk: there are ways a reasonable person might expect it to blow up in your face. And it is not a way to (practically, legally, or otherwise) get the state out of the marriage business. Finally, if this is where your focus and resources are being devoted it is a strong indication that you are not ready or suitable for marriage yourself, or at best you do not have a suitable prospective spouse.

    mojohn’s message:
    What could it hurt? It practically gets the state out of the marriage business! Go hire a lawyer!

  • mojohn says:

    Zippy, thanks for the oppurtunity to exhange thoughts with you. Iron sharpening iron and all that.

    I wish you the best as you continue to stimulate thinking about authority and how it expresses itself in real life.

  • Zippy says:

    Thanks for the discussion mojohn.

  • Novaseeker says:

    Isn’t a more fundamental problem that family courts in many states (perhaps most, but I have not done a survey) are courts of equity, either expressly or by their own view, and therefore will bend over backwards not to enforce the letter of contracts if they consider the result to be inequitable? Much of the precedent around pre-nups has come from this background, which is why they tend to be much harder to enforce than your garden variety commercial contract.

  • Zippy says:

    That sounds about right. I’m no expert, but my take on family law is that it is more like criminal law than contract or even tort law: the concern is more with “what is right” than with “what the parties formally consented to”.

    And frankly that is a good thing in the abstract. The problem with family law is its perverse concept of what is right, not that it isn’t liberal enough.

  • Zippy says:

    Also it makes sense that it would be that way, since children are not voluntary parties to their parents’ marriage. Making family law even more liberal as some sort of solution validates the modern view of children as a woman’s fashion accessory.

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You are currently reading Uncontracts and the seductiveness of selective anarchy at Zippy Catholic.