A Puzzle in Divorce Law

by on August 13, 2013 at 6:27 am in Economics, Law, Religion | Permalink

It’s easy to see why a divorce law might arise that allows men relatively easy divorce, as in the Old Testament which lets men divorce almost at will (as written, interpretations differ) but gives women no right to divorce at all. It is also easy to see why a society might adopt mutual consent under which both parties must agree in order to get a divorce or no-fault unilateral rules in which either party can get a divorce without the consent of the other. What is difficult to understand, however, is why a society would adopt divorce laws that make it difficult to get a divorce even when both parties want a divorce. Who benefits from such rules? And yet this was the common situation in England and the United States  up until say the end of the 19th century. In England, for example, it took an Act of Parliament to get a divorce. One might argue that such rules benefit children but aside from the questionability of the premise this view would also have to answer how it is that children have political power?

Hat tip to Sasha Volokh for bringing the question to mind with an apropos quote on divorce from a 19th century British judge.

Pensans August 13, 2013 at 6:36 am

Since you lack any familiarity with the theological background which grounded it, think of marriage as creating a status relationship, like being someone’s brother. Even if two brothers don’t want to be brothers anymore, they still are. The advantages of status relations are not individualistic so you probably cannot understand them after years of economics.

Oz Ozzie August 13, 2013 at 8:05 am

+1 that’s right, economist = selfish rotten scoundrel?

Sammler August 13, 2013 at 10:34 am

Women’s suffrage likewise never got off the ground, since they couldn’t vote it in. And don’t even get me started on abolitionism.

MC August 13, 2013 at 1:01 pm

That the words “child” or “children” are not even brought up in this blog post pretty much says it all.

AD August 13, 2013 at 1:19 pm

They did say “children.” See the last sentence of the first paragraph.

MC August 13, 2013 at 2:54 pm

My mistake, I somehow skipped over that sentence. Nonetheless, it’s fascinating that he objects to having the interests of the unenfranchised (and weakest among us) taken into account under the law.

John August 13, 2013 at 9:13 pm

That’s a pretty uncharitable interpretation. Alex is expressing skepticism that consideration of people without political power affected political outcomes. I don’t see where he says that this kind of consideration would be a bad thing.

Joe Torben August 14, 2013 at 3:12 am

It’s fascinating that you didn’t even read this short post, yet you know that if A and B want to divorce, their children C and D, of whom you know absolutely nothing, would be better of if A and B stayed married.

Andrew` August 14, 2013 at 3:29 am

Positive economics is.

mrmandias August 15, 2013 at 5:57 pm

There is a thing called social science, by which the fascinations like yours can be dispelled. My guess is that MC has read some of it.

Jim August 13, 2013 at 2:13 pm

that you didn’t even read this short post pretty much says it all.

A Berman August 13, 2013 at 6:39 am

Perhaps societies that made it harder to divorce succeeded and prospered compared to those that didn’t. This would be consistent with why Traditional Judaism interprets the Old Testament as requiring the assent of the woman (who can refuse the divorce papers).
Children may not have direct political power, but they have the power to passively destroy your civilization if you don’t tend to them.

Z August 13, 2013 at 9:25 am

Given the success of the English people, compared to their population, the evidence tends to support your thinking. All human societies have a few primary necessities, things that are essential to their existence. One of them is replication of new members through procreation. Monogamous heterosexual marriage turns out to be the best way to achieve this. Then again, maybe wishful thinking will turn out to be a superior model.

JCW August 13, 2013 at 10:42 am

Polygamous Mormon families, among other historical examples, would suggest that monogamous heterosexual marriage is NOT the best way to replicate new members. The early Mormon community built an extremely stable society, with recognizable “Western” or “English” or whatever-you-want-to-call-it cultural and legal institutions while promoting extremely high birth rates in a structure that could economically sustain it.

Dan Weber August 13, 2013 at 11:05 am

What do you do with all the extra men?

A more accurate question would be “what do all those extra men decide to do, and how do you deal with it?”

The Other Jim August 13, 2013 at 11:31 am

Well, in the Middle East, the cure for extra men from polygamy is jihad and anti-Semitism.

I’m not a Mormon history expert, but I know that these were not options for them. Which may have contributed to the demise of polygamy.

bluto August 13, 2013 at 12:30 pm

Which is just exporting them as an externality to other societies.

AD August 13, 2013 at 1:27 pm

It was a rather small percent of marriages that were polygamous (Maybe 6% of the marriages, from what I’ve heard) and it was regulated by church leaders. You couldn’t just start marrying lots of women willy-nilly. I know of specific cases where the men took on another wife only because they were strongly encouraged to do so by their superiors.

So, yeah, I think it would be hard to replicate and doesn’t necessarily provide a strong case against the claim that promoting heterosexual monogamous relationships is best (even if this claim were false).

dirk August 13, 2013 at 1:43 pm

Don’t forget the popularity of pederasty in the Middle East.

mulp August 13, 2013 at 4:16 pm

“Which may have contributed to the demise of polygamy.”

No, it was Congress that dictated religious belief on Mormons.

Warren Jeffs is a victim of Texas religious persecution, sanctioned by the Republican Congress of 1861, and signed into law by President Lincoln (Morrill Anti Bigamy Act 1862). With multiple laws passed by Congress further persecuting the Mormons for their religion practice, and ultimate for their beliefs (Poland Act 1874, Edmunds Act 1882). Congress ultimately legislated the confiscation of the property of the LDS Church (Edmunds-Tucker Act 1887).

And the Supreme Court ruled clearly the Congress can dictate limits in religious practice in Reynolds v. United States (1879), and LDS Church v. United States (1890).

Thus, it is amusing and aggravating to listen to Republicans and conservatives talk about religious liberty and “traditional marriage” when it was largely Republicans who defined “traditional marriage” by legislating it.

The Romney family was among many Mormon families to flee US territories for Mexico to escape religious persecution. It wasn’t until 1890 and 1900 that the Mormons changed doctrine sufficiently to escape the jackboot dictates of Congress, and thus the Mormons in Mexico returned to the US. Without their extra wives.

What drove the Republican Party to target Mormons is unclear to me, but it sure wasn’t women’s rights. Mormons had legislated women the right to vote to gain some high ground perhaps, but Congress required women be disenfranchised in 1882.

Steve Sailer August 13, 2013 at 5:11 pm

In FDLS communities, the patriarchs dump the unwanted 16 year old boys on small towns in Utah before they can begin to undermine the elders’ cartel monopolizing the women.

Trust me, you do not want a polygamous community in your area. While monogamous Mormons are pretty good neighbors, polygamous Mormons are terrible neighbors, engaging in massive welfare fraud.

Roy August 13, 2013 at 11:46 am

This worked during the early phase of Mormonism because women converts outnumbered the men in the early days, anyone familiar with the topic has seen these statistics, in fact they are widely remarked upon and many have suggested that the surplus of women at Nauvoo was one of the drivers of the adoption of the theology of “spiritual wifery”. Once Mormonism became a self replicating religious community this started causing problems, but it is my understanding today that women make up a disproportionate number of both initial converts and also converts who stick around.

Z August 13, 2013 at 12:30 pm

But it brings a whole bag full of other problems that far outweigh any benefits, real or imagined. Slavery has worked quite well in isolated cases, but no one in their right mind would argue on behalf of slavery either.

KWA August 13, 2013 at 10:54 am

How can you assert this as a matter of self-evident fact? Is it your argument that the ascendance of the English in the 18th and 19th centuries was caused, at least in part, by strict divorce rules and strict support for monogamous marriages? Is there any indication that the English were more monogamous than the Irish, Germans, Poles, or the rest of Europe?

Is there any indication that loose sexual or marriage mores limited the Chinese from being a Great Power?

Taeyoung August 13, 2013 at 12:33 pm

Loose sexual or marriage mores? China?! The fact that concubinage was legal doesn’t mean that China was some kind of sexual paradise, other than in the imaginations of the orientalists or their degenerate modern descendants — the hippies and adherents to new age “eastern” philosophies dreamt up in the West. You look at classic popular literature, like The Water Margin, and it’s full of sexual infidelity being punished brutally with murder. By the heroes. People who are loose sexually are always getting punished horribly in Chinese literature — their life essence is getting drained away like that one poor man in the Dream of the Red Chamber, or they’re castrating themselves, like in the Carnal Prayer Mat, or (at the meta level) their enemies are using their lasciviousness to kill them, like with the poison supposedly put on the leaves of the original edition of the Golden Lotus to poison a lustful and corrupt official who had killed the author’s father. And that doesn’t even involve those wacky Taoists, obsessed with keeping all their precious bodily fluids to themselves.

Thats not to say that everyone in China was chaste. But at the level of sexual and marital mores, China certainly can’t be said to have been “loose,” certainly not any looser than the European powers.

Bunker Brown August 13, 2013 at 1:26 pm

+1

philemonloy August 13, 2013 at 9:55 pm

+1

It’s changing fast nowadays though…

Z August 13, 2013 at 12:38 pm

If you want to be a success, adopt the habits of those who are successful. That’s wisdom passed from generation to generation in all times and all places. The English were the most successful species of human so you probably will not go wrong adopting their habits. Given that they have abandoned those habits and fallen into despair, I suggest your species of human avoid that error.

Why would you choose otherwise?

saywut August 13, 2013 at 6:30 pm

So… colonize other countries and profit off of the despair of others? Good advice, Z.

Willitts August 13, 2013 at 10:27 pm

The losers were called “conquerors” before they themselves were conquered.

Tired of revisionist historians painting loser societies as innocent, peaceful victims.

Further or Alternatively August 13, 2013 at 6:52 am

There’s no mystery to the question of how it is that children have political power. One reason children – or at least arguments based on the interests of children – have political power is that people like children and try to look after them. Just look at various other arrangements that the law has tended to prevent or restrict consenting adults from engaging in: e.g., prostitution, drugs, pornography, abortion, auction of adoption rights. The protection of children (or foetuses) feature as a motive in argument each of these cases too.

In a similar way, animals, future generations, the environment generally, historical and cultural artefacts have political power too – and they don’t grow up, inherit property and vote.

dearieme August 13, 2013 at 6:59 am

What you say was true of 19th century England. But not of Scotland of course, where divorce was simpler and cheap enough for ordinary people to afford. And yet few chose to do so.
“Although the General Register Office had to keep a record of divorces, which were noted on the original marriage schedules, divorce was not discussed in the annual reports of the Registrar General until 1920, and the divorce statistics indicate why this was so. In the decade between 1855 and 1864, the first 10 years of registration, the average number of divorces in Scotland each year was only 17. By 1905-14, the figure had risen to an average of 222 per year, a more rapid rise than could be explained by the growth in population, but still such a small figure that the Registrar General did not think it worthy of comment.”

Athrelon August 13, 2013 at 7:06 am

“What is difficult to understand, however, is why a society would adopt divorce laws that make it difficult to get a divorce even when both parties want a divorce. Who benefits from such rules?”

Binding contracts are qualitatively different than contracts that are severable at will. Marriage without easy divorce incentivizes a mindset of “working things out” internally and high time preference for investing in the relationship, since you’re definitely stuck with the same person long-term. This is quite different from a marriage of convenience with no such incentives. This should be very straightforward for an economist to grasp.

In fact some may take it further and claim that easy divorce (in which only one party needs to consent to the divorce) has simply removed the possibility of “real” binding marriage: http://theviewfromhell.blogspot.com/2012/07/the-right-to-marry.html

Rob August 13, 2013 at 8:50 am

I came here to say “commitment device,” but Athrelon has essentially beat me to it

Dangerman August 13, 2013 at 9:34 am

Excellent answer.

My favorite reply to people who assume rational homo economicus on this subject is: why did Odysseus lash himself to the bow, even when he knew that in the future that he would want to NOT be lashed to the bow?

Finch August 13, 2013 at 9:45 am

> “Who benefits from such rules?”

I think Athrelon pretty much has it. People considering marriage benefit from these rules. People enter into contracts that restrict their future behavior all the time. They do so for a price. Change the restrictions and you change the price, the set of people interested in the contract, the circumstances under which they’d enter it, etc.

Further or Alternatively August 13, 2013 at 10:56 am

Yes – and also people already married benefit from not changing the rules after they have married. If you chose to get a ’till death us do part’ marriage (and still want that), you won’t want the law changing so that all you have is a less-valuable ’till convenience do us part’ marriage. That would be a retrospective cheapening of the institution you entered into. The problem is that you can only have flavour of marriage on the market at the moment – you don’t get to keep the one you first chose.

Ben Mathew August 13, 2013 at 11:25 am

I think this is the correct explanation.

JC August 13, 2013 at 1:13 pm

Maybe I’m missing your point, but I don’t see how staying in a crappy marriage is good for the couple who’s stuck in it, regardless of whether they thought it was a good idea when they entered into it. It’s not clear that such people will ever work things out – they could just be stuck together and be miserable.

And I don’t see how not having such a form of binding marriage has any effect on couples who genuinely want to stay together because they can still choose to do so.

dirk August 13, 2013 at 2:12 pm

What is a crappy marriage? A marriage that has been crappy recently? Most couples decide to get married because their most recent experience together as of time of marriage was pretty good and their prediction for the future was that the marriage would not turn crappy. If the marriage turns crappy at some point later, one thing it proves is that the couple was wrong regarding their earlier prediction. Is there any reason to believe this same couple will be better at predicting, at time of divorce, their futures, than they had been at the time of marriage?

On another point, perhaps the reason a society would want to make it difficult to divorce has little to do with considerations for the couple or their children, but for considerations of society at large. Monogamy is not our nature; but it can be our culture. Is it better for a society to have a large percentage its adults single?

Martin August 13, 2013 at 2:19 pm

Marriage with an easy divorce is still a commitment device. If both parties have to agree, then one party can appropriate almost the entire surplus of the other from divorce (i.e. ending the relationship). Investing in the relationship under marriage would then be more attractive than investing in the relationship without the marriage when compared to ending the relationship.

Note however that marriage with and without easy divorce raises the problem of moral hazard. For once you’re locked in, you can free-ride on the efforts of the other without any real consequence. In the former you can appropriate the surplus once the other party wants to extract itself from the relationship, in the latter the other party is stuck. In the former though it is easy enough to modify the marriage contract ex ante to reduce this surplus.

Furthermore note that if the marriage without an easy exit is desirable for both, then it is straightforward for the parties to mimic this in their contract. So why do we not observe clauses to that effect in contemporary marriage contracts? Or do we?

Andrew Smith August 13, 2013 at 2:29 pm

Athrelon explains one big flaw well.

This explains the second:

“One might argue that such rules benefit children but aside from the questionability of the premise this view would also have to answer how it is that children have political power?”

A. That premise is not questionable. Study after study shows that children do considerably better with both parents under basically all conditions that don’t involve parents committing felonies.

B. Every member of society has an enormous interest in kids growing up to be functional and productive.

Not a strong post for Alex.

Marie August 13, 2013 at 6:27 pm

Thanks for dragging us back through the looking glass for a minute.

Marie August 14, 2013 at 8:56 am

Sorry, I meant onto the right side of it!

Matze August 13, 2013 at 7:07 am

Why should anyone have to benefit from these rules? That’s not how religion works, at least not always…

Further or Alternatively August 13, 2013 at 7:09 am

There’s no mystery as to how children (or at least arguments based on children’s interests) have political power. People like children and try to support (what they consider to be) their interests. Arguments over various other things that the law prevents or restricts often make reference to the interests of children (or foetuses): drugs, prostitution, pornography, auction of adoption rights, abortion and so on. Animals, the environment and historical and cultural artefacts have political power in a similar way.

dearieme August 13, 2013 at 7:10 am

“British judge”: specifically he was an English judge.

“Athough Scottish divorce law was apparently more even-handed, both between the sexes and between social classes, than the law of England, in practice divorce was difficult for social and financial reasons. The Church of Scotland had since the Reformation accepted divorce on the grounds of adultery, and later added the grounds of desertion for more than four years. From 1830, Scottish divorces were decided by the Court of Session, like other cases in civil law. Both men and women could seek divorce for adultery or desertion. This was different from the law of England, where men could divorce their wives for adultery, but women did not have the same right until 1923, unless there were other serious offences involved. Divorce for desertion was not possible in England until 1937.

Scottish divorces were cheaper than English ones, and were certainly not confined to the higher classes. Very poor people could claim financial help from the Poor Law authorities if they had a good case against their spouses. In the 1890s, it was said, a Scottish divorce could cost as little as £12.”

And yet few people did it. “Although the General Register Office had to keep a record of divorces, which were noted on the original marriage schedules, divorce was not discussed in the annual reports of the Registrar General until 1920, and the divorce statistics indicate why this was so. In the decade between 1855 and 1864, the first 10 years of registration, the average number of divorces in Scotland each year was only 17. By 1905-14, the figure had risen to an average of 222 per year, a more rapid rise than could be explained by the growth in population, but still such a small figure that the Registrar General did not think it worthy of comment”.

http://www.gla.ac.uk/schools/socialpolitical/research/economicsocialhistory/historymedicine/scottishwayofbirthanddeath/divorce/

m August 13, 2013 at 7:21 am

The same reason people want to forbid others of seeing porn, or of having gay relationships. People think you should live like they live. If you do different things and aren’t punished, that means I will not be punished as well and my behaviors isn’t optimal. but since this means I’m dumb and I don’t want to think that, I push for laws that forbid u.

Or, if you prefer to think in game theory terms. the market for divorced people was terrible. but people know they aren’t intertemporally consistent. So, they tie their hand a in the future. Limiting options may make you be better in the long run.

RPLong August 13, 2013 at 8:00 am

Right. It is the world’s oldest “nudge.”

John Thacker August 13, 2013 at 9:51 am

Indeed, they could easily argue, like the “nudge” folks, that plenty of people want a divorce in the heat of the moment, but end up regretting it if they get one.

Tom T. August 14, 2013 at 7:15 am

Sure, but that’s true of marriage as well, especially if there’s no divorce available.

Ben Wheeler August 13, 2013 at 7:37 am

Marriage exists to insure that children have the best chance of becoming adults.It does this by aassigning to every child a man who is legally and financially obligated to help the mother raise it. Societies that failed to do this had too few men of fighting age and were conquered by those that did. Exact mechanisms do not matter. If the laws of marriage served this purpose, they survived.

Tracy W August 14, 2013 at 7:42 am

Yet the Ancient Romans and Muslims had/have much more liberal divorce laws than 18th century England.

JonF August 17, 2013 at 10:03 am

Children generally (always?) went with their fathers in the event of divorce– just about everywhere until very recently. So am an who divorced his wife would still be directly responsible for supporting his children, and in his own household. Moreover extended families were much more a factor in pre-modern societies, and children also could expect support from grandparents, uncles etc.

dearieme August 13, 2013 at 7:38 am

I’ve made several attempts to post a comment on this thread, and failed. Wot’s up?

Careless August 13, 2013 at 8:03 am

Seems like one of those days when MR comments take an hour to show up

Andrew` August 14, 2013 at 3:47 am

Stop making lazy comments.

Further or Alternatively August 13, 2013 at 8:14 am

I’ve had the same problem and ended up saying the same thing twice.

Donald A. Coffin August 13, 2013 at 10:55 am

Sometimes I have to hit CTRL-SUBMIT to post; sometimes, I don’t.

Dan Weber August 13, 2013 at 11:13 am

Great Lagnation.

Rahul August 13, 2013 at 7:46 am

“how it is that children have political power?”

So how is it that pedophilia, child labor, child marriage, child neglect, child abandonment etc. are all illegal? Animals don’t have political power either, doesn’t mean we allow all sorts of animal abuse?

Sumeet August 13, 2013 at 8:42 am

All of those are illegal because parents, animal law activists have political power. In case of divorce those parents are on the other side of the table.

Further or Alternatively August 13, 2013 at 10:46 am

No, Rahul’s point still holds. Some people want to employ child labour and would benefit from doing so. In many countries, those people are outvoted by those who think that child labour would hurt children. There are (adult) people on both sides of the table.

It’s the same with divorce. Some people want to get divorced. Some (other) people think children are hurt when that happens – people care about children other than their own children. There are adult people on both sides of the table and different societies reach different conclusions.

John Schilling August 13, 2013 at 10:51 am

Only the parents who want a divorce right now are clearly on the other side of the table; for the rest, marriage sans divorce is a useful commitment device.

More importantly, parents are not the dominant political power block in this equation. That would be the grandparents. They actually vote.

Aaron August 13, 2013 at 7:50 am

Oy. Why have there been laws against animal cruelty? Involving sexual morality? Restricting commerce on Sundays? Religion! A belief that recognition of sacred duties (even forced recognition) improves society. Not really a tough question.

John August 13, 2013 at 10:22 am

I’m interested… what religious laws have protected animals more than, say laws that have been passed in the most atheistic societies such as Sweden and Norway? (please don’t take this as facetious, I mean it out of actual curiosity)

Eric August 13, 2013 at 1:53 pm

The Indian sacred cows come to mind. ( A quick skim of Wikipedia yielded the following Ghandi quote: “The central fact of Hinduism is cow protection.” )

I’m sure there are other animal worshippers who also protect their gods.

Marie August 13, 2013 at 6:34 pm

Kosher laws on slaughter, etc., are pretty strong. Of course, if you look at animal protection to mean protection from use (being eaten), then that won’t be convincing at all; but considering the age of the law, seems to me it’s pretty extraordinary. If modern facilities all used strict kosher practices (and the spirit of the laws, not just the letter) we’d sure have a more humane food system. I’ve always wondered, too, about prohibitions against pork — the conventional wisdom is that this was about parasites and food contamination, but it seems to me not unlikely that a guy raising hogs saw they had more in common with dogs than with cattle.

Tracy W August 13, 2013 at 8:00 am

An argument I’ve heard was that it was in the financial interests of the Church – if people died without heirs they were much more likely to leave their wealth to the church. So the Church took various measures to reduce the likelihood of heirs, including also banning sex on various holy days. If you and your spouse can’t stand the sight of each other you’re less likely to have legitimate children.

This explanation isn’t entirely convincing to me though. With the Reformation married priests and bishops had incentives more aligned with the lay population and yet it took centuries for divorce laws to be changed.

dan1111 August 13, 2013 at 9:34 am

Do strong marriage laws really reduce the likelihood of having heirs? I find this highly unlikely. I would expect just the opposite. On the whole marriage encourages having children, and singleness discourages it. Even today, with looser sexual mores and far more opportunities for people to meet and interact, studies show that married people have sexual intercourse more than single people. And besides the likelihood of having more children, having a two-parent household in the 19th century and earlier would probably significantly increase the children’s survival.

Furthermore, strict restrictions on divorce within Christianity (as well as other teaching on sex) can be traced back to the New Testament, which is widely acknowledged by scholars to be written in the first century. Textual analysis leads many scholars to believe the prohibition on divorce really came from Jesus. In the first century, there was no organized church structure to accept donations from heirs, so it doesn’t make sense as a motivation.

Unfortunately, the church has been corrupted by money at times, but in this case the argument just doesn’t work.

Tracy W August 14, 2013 at 6:19 am

Before modern medicine, if you and your spouse were infertile and you really wanted kids, getting a divorce and trying again with a new spouse might work. (Eg Henry VIII trying to get a male heir).

Or if the married couple just couldn’t stand each other – apparently the Prince Regent and his wife Charlotte spent only one night together. She conceived a baby girl. The two then lived separately. Their daughter died in childbirth in early adulthood. So the Prince Regent didn’t have a legal heir.

As for laws coming from Jesus or not, a lot of nominally Christian countries have had laws departing from what scripture looks like requiring, eg “ursury” laws that ban interest above a certain percentage rather than interest altogether. When pragmatics conflict with religion, religion doesn’t always win, which many devout Christians openly lament.

Marie August 14, 2013 at 8:55 am

Unfortunately in the case of usury it’s not just the secular governments ruling Christian populations that have gone over. There’s little in Church teachings, or in the teachings of most Christian denominations, on this subject these days. Have to go back to Belloc to hear the laments. It is a crying shame.

JonF August 17, 2013 at 10:06 am

It’s worth noting here that Eastern Christendom (where Roman law and governance survived intact) always allowed for divorce and remarriage– though the number if canonical marriages, even in the event of widowhood, was limited to three.

Taeyoung August 13, 2013 at 12:35 pm

Were bastards allowed to inherit? I mean, without being legitimised.

ohwilleke August 13, 2013 at 3:01 pm

No. Bastards were not allowed to inherit. And, testamentary freedom (i.e. the freedom to write a will that disinherits someone or leaves something to someone who would not inherit in the absence of a will) has only gradually come into being (for personal property first and for real property only later). Many countries tracing their legal traditions from Continental Europe still allow disinheritance only upon a showing of good cause.

Urso August 13, 2013 at 3:03 pm

Yes, the Catholic Church has long been famous for its extreme antinatalist stance. *blank stare*

Marie August 13, 2013 at 6:38 pm

I laughed, too, after having heard a version of “The Pope is forcing women to breed his army to take over the world” my whole life.

Tracy W August 14, 2013 at 7:46 am

I laughed, too, after having heard a version of “The Pope is forcing women to breed his army to take over the world” my whole life.

The idea that the views of medieval English bishops were always identical to 20th century Catholic Popes is pretty amusing I agree.

Marie August 14, 2013 at 9:04 am

I meant that to be humorous, but I’ll be more direct — that’s propaganda, not history. There’s plenty of legitimate criticism of the Church, this sort of thing is closer to Dan Brown and Jack Chick.

Tracy W August 14, 2013 at 3:26 pm

I’m sorry, but what do you think I’m arguing here? How is it close to Dan Brown and Jack Chick to think that, say, 19th and 20th century Popes might well have very different policies to 13th century English bishops? Some noticeable differences between the two situations are:
– 600-700 years of history, including the European discovery of the Americas, the Industrial Revolution, and the rise of Protestantism in Northern Europe.
– the greater spread of education and economic activities, meaning that younger sons who won’t inherit land from their fathers but want wealth now have much more alternative ways to get it than joining the Church, and the professional civil service meaning that rulers don’t have to get all their scribes and the like from the Church, thus taking away at least some of the non-religious incentives for corrupt people to join the Church for worldly means.
– the different interests of a Pope, who is responsible for the whole of the Catholic Church, versus an English bishop who naturally has a more local focus (not to deny of course the existence of widespread trade and travel across medieval Europe, most famously in the Crusades but not limited to that).
You yourself point out that there’s plenty of legitimate criticism of the Church, it strikes me as entirely possible that the Church may have responded to such criticism in the past, and possibly even improved by doing so.

Of course these reasons to think that the Catholic Church may well have changed in some ways is not evidence in and of itself that the Catholic Church changed its thinking on marriage. But Urso’s idea that merely citing the current views of the Church was some sort of dramatic riposte to the argument does strike me as amazingly ignorant of history and very close to propaganda. Not as daft as Jack Chick’s ideas, but then it’s very hard to be as loony as Jack Chick. As for Dan Brown, well, it’s been a long time since I’ve read The Da Vinci Code, so I don’t really have any basis for comparing Urso’s silliness to Brown’s.

Marie August 14, 2013 at 7:56 pm

I think what you are arguing is that the Church once forced people to stay married because it meant fewer heirs and therefore more inheritances could go to the Church, making it more rich and powerful; and that now the Church forces people to stay married because they then have lots of children that will be Catholic and increase the riches and power of the Church.

But I also think that you are not actually arguing it, you just find Goody’s argument credible. I don’t think you should.

Marie August 14, 2013 at 8:39 pm

Sorry not to address that you are trying to distinguish between bishops and Popes, also. I don’t see how the distinction fits in, though, since neither then nor now do local bishops make the rules about who can and cannot marry. So, all Popes.

Tracy W August 15, 2013 at 11:50 am

I think what you are arguing is that the Church once forced people to stay married because it meant fewer heirs and therefore more inheritances could go to the Church, making it more rich and powerful; and that now the Church forces people to stay married because they then have lots of children that will be Catholic and increase the riches and power of the Church.

Really? What a bizarre reading. I said absolutely nothing about the modern Catholic Church, until Urso made his comment, and then I laughed at the idea that the views of the modern Church were some sort of dramatic riposte to a statement about views of the medieval church, and, in response to your question, outlined some of the major differences between the two time situations. I’ve however said nothing about the modern day Church’s views. You and Urso have made various statements about the modern Church’s views, but I’ve left you to it.

Sorry not to address that you are trying to distinguish between bishops and Popes, also. I don’t see how the distinction fits in, though, since neither then nor now do local bishops make the rules about who can and cannot marry. So, all Popes.

Hmm, I forgot that not everyone knows that in medieval times the Church had an important role to play in government, as it was the best source of literate men who could carry out the administrative work. For example, Thomas Becket, the Archbishop of Canterbury, whom Henry II accidently had murdered (“Will no one rid me of this turbluent priest?”), was also Henry II’s Lord Chancllor, indeed most medieval English Chancellors were clergymen. The Wikipedia list of past Chancellors of England by itself indicates the political importance of the Church in making policy. http://en.wikipedia.org/wiki/List_of_Lord_Chancellors_and_Lord_Keepers
Furthermore, the senior English clergy sat in the House of Lords, apparently even dominating its numbers. http://en.wikipedia.org/wiki/Lords_Spiritual. And below this, the clergy took a lot of much more administrative offices at lower levels of government.

On the other side, the ability of the Pope to control medieval bishops in far away places could be sharply limited – consequently the Gregorian Reforms where the Pope sought to assert his authority over the church, and deny that of secular kings, and furthermore the Gregorian reforms sought to limit the independence of bishops, which of course was resisted from time to time (as I mentioned earlier, there is good reason to suspect that many men who entered the medieval church were motivated by the desire to accumulate wealth and/or political power, rather than devout reasons). And of course, the further you were away from Rome, the easier it was to just ignore what the Pope said, and do your own thing. To some extent, medieval Popes had to pick their battles with their bishops.

As I’ve said, all this doesn’t completely rule out the possibility that medieval English bishops held the same views as the modern day Catholic Church, but it does indicate that we can’t automatically assume consistency.

But I also think that you are not actually arguing it, you just find Goody’s argument credible.

Hmm, I’m not sure I do find Goody’s argument credible, particularly not having read the original book where he made it. As I said before, the long lack of divorce reform post-Reformation makes me doubtful.

Tracy W August 14, 2013 at 6:24 am

Yeah and the Catholic Church has been utterly unchanged for the whole of its existence. The word “Counter-Reformation” for example conveys absolutely nothing to European historians.

Urso August 14, 2013 at 12:27 pm

I mean, you’re the one making hilariously outlandish claims about bizarre church-driven conspiracies without so much as a link to support them. And if your concept of the Counter-Reformation is that it is the time period when the Catholic Church went from anti-baby to pro-baby, I don’t even know where to begin.

Tracy W August 14, 2013 at 2:03 pm

Good thing then that I haven’t proposed a single one of the things you mention here then, isn’t it?

Tracy W August 14, 2013 at 3:29 pm

I’ll add, if you’re interested in the original idea, as opposed to making up strawmen, I can’t recall where I first read the idea myself but some Googling turned up Jack Goody as the main proponent, see The Development of the Family and Marriage in Europe http://www.amazon.com/Development-Family-Marriage-Present-Publications/dp/0521289254

Marie August 14, 2013 at 7:38 pm

This Jack Goody?

http://newleftreview.org/II/7/jack-goody-how-ethnic-is-ethnic-cleansing

Does the book you linked to actually contend that the Catholic Church forced rules on people like *not marrying close relatives* so that it could get more rich and powerful?

Tracy W August 15, 2013 at 11:43 am

Beats me, I haven’t read the book. As I said, I can’t recall where I first read the idea.

Benny Lava August 13, 2013 at 8:05 am

I’ve actually heard an interpretation of the gospel that asserts that was what Jesus was saying: that in ancient times a man could simply divorce a woman at will but Jesus wanted it to be mutual consent. Like turning both keys on a nuclear submarine (insert Seinfeld video here).

Of course most will disagree with this interpretation but I think it has merit. Especially since Jesus specifically condones divorce in the case of infidelity.

8 August 13, 2013 at 8:07 am

Divorce is like obesity. It spreads like a virus throughout the society.

tj August 13, 2013 at 9:31 am

Pretty much this. If divorce is difficult to obtain, “marginal” marriages will stay intact and work toward some sort of solution to their problems. As it is, divorce has become so easy and commonplace that it’s now an “early” resort rather than measure of last resort.

Gunnar Tveiten August 13, 2013 at 2:23 pm

That depends on your definition of “intact”.

I’ve got friends in the middle east whose parents are still “married”, but who live on separate addresses, and have for a decade, and whose interaction with eachother is as close to zero as practically possible.

But sure, they’re “married” so all is well, then.

You ignore that divorce can in some cases be preferable to a nonfunctional marriage. That isn’t to say that it should be the first choice when problems show up.

Marie August 13, 2013 at 6:49 pm

I think the argument is that those usually aren’t the only two options, and ease of divorce can make it seem like they are.

I’d venture to say that every marriage out there has had times of dysfunction. When divorcing is difficult (not necessarily legally — the difficulty can be religious, personal, family, social, cultural, work-based, whatever) the marriage sometimes stays intact and dysfunctional, but sometimes stays intact and regains its health. When divorce is “easy”, the second scenario cannot play out, so the divorced often never realize that the dysfunction might not have been permanent.

You may not consider this enough of a good in comparison with the bad of extending truly damaging marriages, of course. But the idea is that hurdles to divorce serve a function not just in sustaining numbers of married but in correcting dysfunction within marriages.

F.F. Wiley August 13, 2013 at 8:21 am

Interesting, although you don’t have to go back to the 19th century to find laws banning divorce in Anglo-Saxon nations – Ireland didn’t legalize divorce until 1996.

Norman Pfyster August 13, 2013 at 11:18 am

I think the Irish would take it as an insult to be called “Anglo-Saxon.”

Justin August 13, 2013 at 8:26 am

Since Odysseus, people have recognized the value of making a commitment more credible by reducing the set of future choices. I can imagine a human capital model in which husband and wife ‘contract’ for goods/services, where value of goods/services changes over time. Inability to divorce can solve a market failure on an unenforceable contract.

Tracy W August 14, 2013 at 7:48 am

On the other hand, ancient Rome, ancient China and Islam had/have much easier divorce laws than 18th century England.

John August 13, 2013 at 9:08 am

Could one reason be that this was to protect women? if in practice the status of women made it relatively easy for their husbands to coerce them, via violence or the threat of violence, you might choose to disregard their stated wishes, if you felt there was a risk they couldn’t speak openly. Put another way, if in practice allowing easy divorce if both parties wished it, gave violent men a free licence to divorce, then society might wish to prevent that to protect their wives.

ohwilleke August 13, 2013 at 2:49 pm

Also, to protect the state from having to support divorced women.

Keep in mind that in the era of mutual recrimination doctrine in divorces, it was routine for women to keep getting pregnant from their honeymoon until menopause. Most women married young and those who didn’t die in childbirth or from other pre-modern causes like contagious diseases would be pregnant at least six to eight times in a lifetime, nurse for a year or two each time and see most of their children die before reaching adulthood. Household chores including making your own clothes, washing clothes without laundry machines, making almost all of your food from scratch, and raising a whole lot of kids. A married woman had a quite difficult time (on average, certainly there were exceptions) maintaining a viable means of economic self-support, especially in cities where growing your own food was not viable and simply having a place to live meant needing to pay money rent and not just a share of your crops or hiding in obscure corners of depopulated rural land.

Also, the mutual recrimination doctrine is not really the same as a mutual agreement and desire to be divorced. Mutual recrimination is an affirmative defense of someone who is at fault but doesn’t want to be divorced. A wife at fault has an economic incentive to raise the husband’s fault to prevent herself from being punished for her own fault and lose his economic support. The alternative to divorce by mutual consent that was practiced at the tie was to be aware that the a spouse had a mistress or paramore, and that a spouse maybe even supported that household, and to tolerate the situation anyway. A cuckolded husband was deemed the father of his wife’s children, but didn’t have to treat a child he knew wasn’t his well (Social Services wouldn’t punish him if he mistreated the child).

Under the early law of judicial divorce (divorce was only available legislatively until the 19th century at common law when judges were given the authority to issue divorces without special legislation), a husband has a duty to support a spouse, but not to support a spouse whom he divorces on the grounds that she is at fault (e.g. due to adultery). The theory of fault based divorce is basically contractual. A spouse can cease to fulfill their side of the marriage contract with judicial permission if the other spouse is not living up to their side of the deal. Fault based divorce seeks to create an incentive to meet marital behavior norms.

But, a decision of a husband to divorce a wife imposes an externality upon the rest of the society, which would have to find a way to support the woman that he was previously obligated to support and the woman divorced on fault grounds was often unattractive to unmarried men in the marriage market (why marry a woman judicially certified to be a lousy wife?). So, divorce in this situation should be used sparingly in cases where the goal of creating an incentive to meet marital behavior norms is not advanced, from the state’s perspective. Otherwise, the poor houses would be full of divorced women incapable of making money to support themselves (this was a far from hypothetical possibility in this era – crammed and dismal poor houses were the norm in 19th century urban Anglo-America).

The economic dependency issue was less pressing in the case of widows who often had an inheritance arising from their faultlessly terminated marriage to buffer them from economic privation – although the notion of starving widows and orphans was a historical constant until life insurance was invented in the late 19th and early 20th centuries – also most of the time widowers outnumbered widows due to deaths in childbirth, so marriage made it possible for a society with a weak social safety net to survive so long as divorce did not screw this up.

Also, keep in mind that in mutual recrimination cases, the fact that a couple is not divorced does not mean that they would still live together as a happy family. Generally, the alternative when a divorce was not granted but the couple was incapable of living peacefully and happily together under one roof was “separation from bed and board.” In other words, the wife got herself an apartment and the husband was obligated to pay her the equivalent of alimony. But, ties to children severed in a divorce, and inheritance rights of the wife that would end in a divorce remained in place and both parties were prohibited from having sex with anyone else, thereby increasing the number of people that the household’s scarce resources had to support.

Protecting children was secondary to not having to have to support them along with their mothers in poor houses.

Alison Cummins August 13, 2013 at 10:40 pm

Thank you.

Tom T. August 14, 2013 at 7:22 am

What is the legal claim that an abandoned wife would bring to require support from her husband?

ohwilleke August 14, 2013 at 3:25 pm

In the earlier era, a lawsuit against a husband for nonsupport would typically be brought by someone (a workhouse or a benefactor) against the husband for reimbursement of the costs of support incurred, a bit like a modern suit by a state welfare agency seeking unpaid child support from a father who has failed to pay child support while his kids are on welfare. Also, some jurisdictions had criminal statutes for failing to support a spouse similar to modern criminal statutes for child neglect.

The wife could instead sometimes sue for separation from bed and board (to be set up in an apartment with a stipend while still married, for example, in a prosperous family) or under later fault based divorce statutes, could assert non-support a fault justifying divorce and receive disproportionate property awards plus alimony (which would be presumed to be for life unless good cause for another time period were present).

Tom West August 13, 2013 at 9:09 am

For people with real power, marriage was how you sealed long-term alliances and contracts. Any easily repudable marriage reduces the strength of this particular contract option. The less powerful simply get pulled along for the ride.

Protagoras August 13, 2013 at 10:52 am

This was also my guess. There are a lot of practices which make sense for high-status people which are copied by lower status people (or sometimes imposed on them by law, as perhaps in this case) even though the reasoning doesn’t actually make sense for the lower status people. In the realm of marriage practices, another example is the dowry; dowries seem to originate as part of a practice of rulers trying to buy the long-term loyalty of son-in-law henchmen. For everybody else they just turn daughters into a burden, but the practice spread down the status chain in many societies anyway.

Tom T. August 14, 2013 at 7:25 am

People with real power had the most access to divorce (or annulment), though.

Tracy W August 14, 2013 at 7:54 am

This doesn’t seem convincing, the Ancient Romans for example had much easier divorce laws and yet used marriage as a way of sealing long-term alliances and contracts. I vaguely recall that sometimes they’d divorce in order to remarry for political reasons.

athEIst August 13, 2013 at 9:17 am

The Church of England(created so Henry VIII could get a divorce) was against divorce! Such hypocrisy has never been surpassed.

mrmandias August 15, 2013 at 6:01 pm

Technically it was created so Henry VII could get an annulment.

Ignacio Concha August 13, 2013 at 9:31 am

We did not have divorce in Chile until 2004. Seriously!

Prior to that, married couples who wanted out could get an annulment, but it required them to lie to the court by stating that neither of them were domiciled in the district where they got married and, therefore, the officer who married them had no jurisdiction. Becasue parties had to lie, both spouses had to agree to the annulment. This caused some couples to stay married because one of the spouses would withhold consent to go through with the annulment.

On the other hand, once both parties agreed, annulments were fast and cheap. Today we have a divorce law, and it is a little longer to get divorced, even if both parties agree. If one party does not want a divorce, the other one may request a divorce by stating a cause. A popular reason for divorce is having been living apart for a year or more, which is an easy requirement to meet.

I remember the debates at the time and the reason the law could not be changed. I think the conservatives were enough to delay the passing of the divorce law, and because annulments were easy and cheap and most people were able to eventually convince the reluctant spouse, the pressure for the divorce law was not as great as one would have imagined.

The official reasons, were because “of the kids”, to protect “the weaker spouse” and to force people to take marriage and their commitment to family seriously. Interestlingly, once the divorce law was approved, the number of marriages in Chile has plummeted and the number of children born out-of-wedlock has stayed very high. Thus, the law was passed at a time of social changes.

ohwilleke August 13, 2013 at 7:48 pm

In the same vein, it is worth noting that towards the end of the marital fault era, it became common for spouses who were sick of each other to have one make up fake fault grounds that the other spouse would not deny even though they were not true (or to simply have an affair with the full intent of getting caught to create fault grounds). In short, collusive divorces were common. But, this strategy only worked when the economic consequences of a fault based divorce weren’t too severe, or could be circumvented, for example, by creating a trust for the children that the wife had de facto ability to access as their guardian.

In Chile and the U.S. alike, workarounds driven by economic and interpersonal realties deeply corrupt the system long before good government reforms legitimate what was already happening and try to return the policy area to the influence of formal policymakers.

bellisaurius August 13, 2013 at 9:31 am

Laws, in our minds, are always forced on some abstract ‘other’. Much as a criminal never thinks they’ll get caught, my guess is most people don’t think they’ll get divorced. This means having the law on the books, that on net makes all parties less happy is the easy part.

Also, given the existences of dowries and political marriages, outside parties don’t want the couple to split because it messes up their planning. Children are pawns… well at least until they control and army and start plowing through a couple wives…

Aidan August 13, 2013 at 9:38 am

“It is a truth universally acknowledged, that a single man in possession of a good fortune must be in want of a wife.” Marriage is a contract, one which serves primarily to pass on wealth and social status from one generation to the next. The more permenant and unbreakable such a contract is, the more trustworthy and valuable it becomes. The king’s first son born in wedlock will inherit his throne, come what may. That’s clear. Once you start acknowledging the legitimacy of multiple marriages with multple first-born sons things become more complicated. Society as a whole benefits from stable, trust-worthy contracts (especially when wars of succession are a major part of political life).

Tom T. August 14, 2013 at 7:24 am

There’s still only one first-born son. Similarly, society never prohibited a widower from remarrying and producing more children from a second marriage.

Marie August 13, 2013 at 9:40 am

Problem’s in your premise, that marriage is a matter of law. Law comes second.

If marriage had only ever been about law, there’s really no reason for it to have existed in the first place. You can create an entire scheme of laws about property and responsibility independent of sexual, procreative, or romantic relationships.

You can severe marriage ties if you conceptualize marriage as a contract. If you conceptualize it as a state of being, you cannot. In Christian tradition there are many states of being that cannot be reversed — you are baptized or not, you can’t be baptized a second time. Once a priest, always a priest. That sort of thing.

In the first situation, the choice comes at any point in the marriage, and the law is simply about who gets to make the choice, at what point, and under what conditions.

In the second situation, the choice comes before entering into marriage. In those societies, freedom is contingent not on being able to divorce, but on being able to freely enter or not into marriage in the first place.

It also has to be distinguished, cultures that do not allow or make divorce difficult don’t necessarily require the married parties share lives, residences, or goods. It’s an entirely different animal from the contract marriage.

Cyrus August 13, 2013 at 9:44 am

1. The Church opposes divorce and has political power.
2. In an economy where inherited wealth is important, easy divorce and remarriage complicates orderly inheritance. Orderly inheritance is in the interest of those who for this generation are managing the interest of a quantity of inherited wealth, who also have political power.

But really, if as the discussion prompt appears to assume, historical context is outside the scope of the inquiry:

If a society has unilateral no-fault divorce, one may easily ask what is the remaining point of marriage?
Counterpositive: a society where a pro-marriage view has policital weight may reasonably oppose easy unilateral divorce.
In practice, mutual consent is not readily distinguishable from unilateral divorce: if one party wants a divorce but needs mutual consent, there is an incentive to treat the other spouse badly enough to create consent.
Therefore, the same society that opposes unilateral divorce may also oppose divorce by mutual consent.

Mark Brown August 13, 2013 at 9:52 am

It is a straight-forward application of Jesus’ teaching by a culture that understood it. No mystery about it. And the benefit is a paternalistic cultural one to the couples themselves. Many marriages today end in divorce because that is the easy path and we believe in my happiness now at all costs. The culture then took a longer view and through the teaching function of the law said – stick with it and work it out. There were and are many married couples that if they were told to ‘work it out there is no easy exit’, if just by the passage of time, often found out the storm was passing. The benefit was given to the couples who worked it out by a culture and people who had different understanding of happiness and the good life.

Felipe August 13, 2013 at 9:53 am

Who benefits from such rules?

Ruling families that need the alliance-marriages to last for as long as possible?

Tom T. August 14, 2013 at 7:26 am

But ruling families had the most access to divorce or annulment.

John 4 August 13, 2013 at 10:25 am

Well, I don’t know. I thought that, in a free society, citizens should be free to make binding lifelong commitments/contracts with one another. I think the better question is, why would society disallow that?

Marie August 13, 2013 at 7:35 pm

That’s. Clever. I’m stealing it for my next conversation in trw on this topic.

Tom T. August 14, 2013 at 7:30 am

Every society allows that. No society structures marriage as a non-renewable term of years.

The question is why society would require such a commitment from people who don’t want it.

Tracy W August 14, 2013 at 8:01 am

People sometimes commit murder or suicide to get out of binding lifelong commitments when said commitments go bad.
There is some evidence that easier divorce laws leads to a lower death rate.
http://www.ssc.wisc.edu/econ/Durlauf/networkweb1/temp/Divorceweb.html

Marie August 14, 2013 at 9:52 am

And people commit murder and suicide when they get divorced.

As long as anyone has the absolute right to leave a relationship, retaining the legal status of married doesn’t create any rational reason for murder or suicide. In situations where a person is trapped having to cohabitate or depend upon a bad person, and marriage is not in any way a necessary pre-condition for this, bad things do happen.

Tracy W August 14, 2013 at 3:40 pm

Yep, people sometimes do commit murder and suicide when they get divorced too. Which is why it’s important to look at the overall murder and suicide rates, which does seem to indicate that, overall, easier divorce saves lives.

As for the lack of any rational reason, that may be so, but the problem with suicide or murder is that you only need to be irrational for a brief moment to make an irreversibly bad decision, as long as that irrational moment is combined with access to the means.

Marie August 14, 2013 at 7:29 pm

The study you reference addresses only unilateral divorce, which is what you would see in the case of women in an abusive, controlling marriage, and in no way addresses a situation in which a woman is able to freely leave an abusive husband but is still forced to remain legally married to him. It has almost nothing to do with the premise being discussed, but if you offer as a side argument that there have been some spouses who have escaped murder or suicide by leaving the abusive spouse (often through divorce), that’s certainly so.

Tracy W August 15, 2013 at 11:05 am

It has everything to do with the premise being discussed. No one is talking about the law forcing married couples to share living quarters even if they hate each other, you’re raising a red herring.

If there’s evidence that legalising some different form of divorce increases the overall murder/suicide rate, please feel free to provide it. The study I dug up is a perfectly apt at answering the question of why society might have an interest in allowing people a peaceful way of escaping from binding lifelong commitments.

Spencer August 13, 2013 at 10:27 am

Come on, this is an economics blog.

Until the late 1800s virtually the only way to gain or lose wealth was through land ownership and
this was very much involved with marriage. Consequently there were major economic reasons to make marriage permanent.

After the industrial revolution other means of gaining or losing wealth turned land ownership into a minor means of holding wealth. Consequently, the importance of marriage in the distribution of wealth declined sharply. So divorce could become more liberal because marriage was not so economically important

Andrew` August 14, 2013 at 3:42 am

Don’t get married to a just so story. Why couldn’t they amicably split property?

Nicholas Marsh August 14, 2013 at 5:01 am

I agree absolutely that the answer is in the role played by marriage in consolidating wealth within families. But in Britain that didn’t stop with the industrial revolution. By then, as you say, the landed gentry were being eclipsed by the new industrialists. But the newly rich still needed marriage as they craved the social status that came with being members of the aristocracy.

So, to talk an example, the industrialist would marry off one of their children to the children of an aristocrat. The aristos got a huge pile of cash they could use to repair their pile in the country, and in return the industrialist got invited to all the right parties, and their heirs got a title. In such a relationship the industrialist wants to be sure that the marriage is going to last. A divorce after five years would be a very bad deal.

Tom T. August 14, 2013 at 7:31 am

And yet it was the rich and powerful who had the greatest access to divorce.

Seth Roberts August 13, 2013 at 10:55 am

Who benefits from such rules? Those who enforce them. They create opportunities for bribes. It is not puzzling that lawmakers pass laws that increase their power. The puzzle is what restrains this.

Jr August 13, 2013 at 3:58 pm

Do you have any actual evidence that there was a lot of bribing going on? In the UK, with the possibility of Parliamentary dispensation, I can see the opportunity for bribes. But in Ireland, which had restrictive divorce laws until recently that was not possible either.

Justin August 13, 2013 at 10:56 am

Perhaps strong marriage laws also acted by reinforcing other cultural norms. For instance, society has a vested interest in limiting theft, murder, and untruthfulness as all of these give rise to social costs like courts, police, and lawyers. If your legal system derives popular support from a Judeo-Christian framework, then strengthening the framework in one area can have spillover effects. Given the Christian marriage command “what God has joined, let no man split asunder”, parliament can’t just ignore it without facing charges of hypocrisy (undermining their authority) or devaluing the Judeo-Christian “brand” (making the people less likely to respond to the governmental religious policy in place to limit crime).

Having divorce laws consistent with Christian divorce teachings conveys to the population that the rulers are serious about the Christian moral system. This seriousness then may signal either a willingness to bear costs to enforce this morality or positive social status to be gained by following the morality.

Dangerman August 13, 2013 at 11:00 am

We all know that Tyler reads Roissy, so now clearly Alex needs to read Dalrock.

http://dalrock.wordpress.com/

Spencer August 13, 2013 at 11:13 am

This is economics blog.

Until the industrial revolution virtually the only way to gain or lose wealth was through land ownership and marriage was heavily involved with this. But after the industrial revolution other means of gaining or losing wealth became more important and land ownership fell in importance.

So the role of marriage in wealth distribution fell sharply and that allowed more liberal divorce laws to emerge..

TallDave August 13, 2013 at 11:19 am

Well, violence too. But a good point.

Tracy W August 14, 2013 at 8:02 am

Yet the ancient Romans, pre-Communist era Chinese and Muslims had/have much easier divorce laws than 18th century England.

TomHynes August 13, 2013 at 11:17 am

In England, marriage and divorce only mattered for the small class of property owners. If you didn’t own an estate, nobody cared whether you were married or not.

Marriage in the property owner class was a deal between families, and there was a strong incentive to keep large estates together and to have clear succession.

Cyrus August 13, 2013 at 1:59 pm

Important quibble: marriage and legitimacy mattered for inheritance in pre-enclosure rural England well beyond the property owning class. One legacy of serfdom was a system of heritable but otherwise non-transferrable land-use rights among rural commoners.

Tracy W August 14, 2013 at 8:15 am

I’m curious what your evidence base is for this. I thought, from my high-school history classes, that we had extremely little evidence about life for even property-owners below the aristocracy, let alone the labouring classes (who made up the bulk of the population).
But I’d’ve thought that if I were a landless labourer, I’d be very eager to get my daughters settled with a husband who would take responsibility for my grandchildren, and social recognition of that obligation on him would be very important.
And in Adam Smith’s writings, he does say that the respectable poor do have a much higher standard of morality than the aristocracy, as they suffer much more from its lack. See http://www.econlib.org/library/Smith/smWN20.html#V.1.199
(There were of course the disrespectable poor, but I think I recall reading Adam Smith as regarding their children as much less likely to survive to adulthood, though I can’t find the passage).

Mark August 22, 2013 at 11:23 am

Alex’s post made me think of the following discussion of divorce in Adam Smith’s “Lectures on Jurisprudence”. I post it here because Tracy W makes a reference to his writings:

“The chief difference betwixt this distribution and that settled amongst the Romans was the great share the wife took in the inheritance. This arises from the difference betwixt the Christian and Roman marriage. Amongst the Romans the husband had the power of divorcing his wife on any pretence he thought proper. (This was indeed afterwards restraind to certain causes and the same priviledge granted to the | wife.) And divorces were always so frequent that the wife was greatly dependent on the husband and could not be considered as having any great connection with his goods. But some time after Christianity was established, marriages became almost indissoluble, as no divorce could be granted but by the spirituall court on account of some great transgressions. This rendering divorces not easily obtainable gave the wife a more respectable character, rendering her in a great measure independent on the
husband for her support. She was accordingly considered as a considerable member of the family, who had the same interest in the common stock as the master or the children; and from this it was that the wife after the demise of her husband came in for the same share as either of the other two parts of the family.”

I am not arguing that he is right, just thought others might find it interesting. And, since this is from the Lectures, it might be that Smith himself did not agree with it, but was merely noting commonly held belief.

(source: http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=196&chapter=55590&layout=html#a_919894 )

wd40 August 13, 2013 at 11:30 am

A cursory look at Western Europe and the America’s suggests that divorce became legal later in those countries where the Roman Catholic Church was more powerful (and where the Anglican Church was more powerful in countries that were mainly Protestant). The question then becomes why the Roman Catholic Church is against divorce. Part of the explanation is that the Roman Catholic Church upholds traditions; it acts as a break on changes in moral attitudes. This still leaves open the question regarding why it is a tradition in the first place.

ohwilleke August 13, 2013 at 2:53 pm

The church was the chief welfare provider. Fewer dependent women and children was important to the church budget.

JonF August 17, 2013 at 10:09 am

Before modern times divorce assumed that the children went with the father, and the wife went back to her family)– so divorce (which was allowed in Orthodox Christian lands) did not create charity cases for the Church.

sam August 13, 2013 at 12:09 pm

A solution to the credible commitment problem.

al August 13, 2013 at 12:10 pm

The environment doesn’t have voting power. An endangered species doesn’t have voting power. But somehow we have enacted laws that (at least try to) protect them.

The explanation for this phenomenon is that there are voters who want the environment and endangered species to be protected.

Same thing goes for children?

Of course, now that modern psychology/sociology/economics, Murphy Brown, the welfare state, etc have enlightened us and demonstrated that living in a two parent household is really not helpful in any way shape or form when it comes to child raising, no voter in America can see any reason for maintaining stringent laws against divorce.

Joe Smith August 13, 2013 at 12:11 pm

Even now, divorce leaves too many women and children in dire financial straits. Before the 20th century divorce or abandonment might have come close to a death sentence for many women and children. Society would have no interest in such outcomes. Men have no interest in supporting other men’s children and yet are loath to allow them to starve in the streets. Further, a bunch of single youngish financially desperate women would have been a threat to the stability of the marriages of the middle and upper classes. (The biggest “threat” to my marriage is a single mother of my acquaintance :-) ) If you are a responsible middle class man or woman in a more or less stable marriage you have lots of motivation for trying to bind the feckless to their bargains. (Also what Athrelon said.)

Alex Tabarrok August 13, 2013 at 1:37 pm

Alimony and child support would seem to be enough to cover these issues.

Dangerman August 13, 2013 at 2:51 pm

Except that those “solutions” create major disincentives for men looking to enter into the marriage contract.

Seriously, read up over here: http://dalrock.wordpress.com/#sthash.IGb61iqL.dpuf

Or, on this particular point: http://www.goodreads.com/book/show/15985426-men-on-strike

Joe Smith August 13, 2013 at 3:35 pm

That is all quite silly. There are men who do not want commitment and those men should not have children.

Dangerman August 13, 2013 at 5:00 pm

Um… of course there are. The question is: what about men who DO want commitment?

Marriage with no (or difficult) divorce used to be how society allowed for that.

Now, divorce plus alimony and child support = men have to pay for their end of the bargain, but not women. Remember: the vast majority of divorces are initiated by women.

Joe Smith August 13, 2013 at 6:20 pm

“the vast majority of divorces are initiated by women”

In my experience, once you factor out the divorces initiated by women because their husband is either cheating or beating on them (and blame those divorces on the husbands) the majority of divorces are caused by men. Formal divorce proceedings are probably mostly started by women because they have to start proceedings to force collection of maintenance and alimony.

Tom T. August 14, 2013 at 7:35 am

I don’t understand why the risk of alimony and child support upon divorce is any more of a disincentive for men to marry than the certainty of having to support a wife and child for a lifetime in the absence of divorce.

Joe Smith August 13, 2013 at 3:31 pm

Alex – you either live a very sheltered life or everyone you know has more money than they know what to do with. A man, a woman and two children can live more cheaply as one household than as two. A working class family in the 19th Century would not have had enough money to support two households. A modern family that does not have a large surplus will see a significant drop in their standard of living on divorce. Many men resent paying maintenance and that resentment grows over time and they stop paying. Modern families can “survive” divorce and so we see the rates of divorce rising as women became less financially dependent on men. In the modern world I am in favor of relatively liberal divorce laws but I am also in favor of ruthless enforcement of maintenance and alimony so that abandoned wives and children do not wind up on the public dole.

ohwilleke August 13, 2013 at 7:56 pm

Consistent alimony and child support awards have only been developed in the last few decades, long after no fault divorce turned the enterprise into a mass produced affair. Moreover, enforcement of these awards is spotting now and was even more capricious then.

JonF August 17, 2013 at 9:58 am

Alimony is rare outside the upper echelons of the class structure. Most women middle class and below have jobs/careers so there’s no need for a husband to support them after divorce (or vis-versa for that matter). I’ve known any number of people who divorced–and not a single divorce occasioned alimony.
Child support of course is another matter. And anyone who thinks it is not enforced in the most draconian way feasible (OK, short of the death penalty for deadbeats) has not been paying attention.

Al August 13, 2013 at 12:36 pm

… on the other hand, maybe it’s not about protecting the children. Maybe it’s about protecting the rest of society _from_ the children.

If a single parent household is more likely to require/demand society’s resources to raise the child, if a child raised in a single parent household is more likely to become involved in a criminal life style/join a gang/fail in school — then maybe this sort of rule against divorce was a “you broke it, you bought it” kind of thing.

Society was simply saying: we are not taking responsibility for your actions: “You had these kids and it is you who must raise them.”

Of course, this theory makes little or no sense in the case of a childless couple or a couple whose children are already independent adults. But this could be _one_ of a collection of reasons for such tough anti divorce laws.

Bernard Guerrero August 13, 2013 at 12:41 pm

This one looks easy. Regardless of the wishes of the two adults in question, the general societal interest would have been to make sure that the children were provided for, disciplined, etc with as little burden-sharing outside of the parents as possible. Anything that draws resources away from the bucket that can be applied to the existing children would raise the specter of the indigent mother and children becoming a burden on the state (and hence the taxpayers) and the children becoming poorly socialized nuisances or dangers.

Alex Tabarrok August 13, 2013 at 1:37 pm

Why not allow divorce but have alimony and child support?

dirk August 13, 2013 at 4:26 pm

Forget about the welfare of the children for a moment. What are the economic costs/benefits to a society in which 20% of adults are single vs. one where 45% of adults are? Consider that single adults drink more alcohol, use more drugs, commit more crimes, work less hard, that there are no benefits from a division of labor within single households and that real estate and other resources are used less efficiently in single households. What price that?

crs August 13, 2013 at 8:23 pm

I agree with dirk’s more macro view. The timing may not be quite right but the restrictive divorces laws might be related to the promotion of a Protestant work ethic. Marriages have an important insurance component … as a family helps privately absorb the shocks, such as labor market or health, of its members. A stable marriage (even if by force of law) encourages wealth building and other forward-looking behavior. And by the converse, divorce is a great destroyer of wealth and amplification of shocks. It seems likely that the societal interests at a certain stage in development, not individual ones can explain the inability to divorce.

Also I think the personal commitment device explanation is pretty weak … there are enough (unpredictable) shocks that can switch a marriage from positive to negative NPV for divorce make sense ex post but marriage ex ante. Society may prefer families to buffer their own shocks but that may not necessarily the optimum for individuals.

Urso August 14, 2013 at 12:30 pm

How precisely is this supposed to work in the 17th or 18th centuries? Garnish the dad’s W-2?

Givco August 13, 2013 at 1:31 pm

“What is difficult to understand, however, is why a society would adopt divorce laws that make it difficult to get a divorce even when both parties want a divorce. Who benefits from such rules?”

When that English judge wrote that opinion a divorced woman was likely to become ward of the state (e.g., sanitorium), a vagrant, beggar, or some other problem. That’s why the Parliament didn’t want divorces even where both parties wanted it so. In Catholic societies they could ship divorced women off to nunneries.

ohwilleke August 13, 2013 at 2:51 pm

Mostly true, except that Catholic societies didn’t allow divorce at all until the 20th century.

Marie August 13, 2013 at 7:48 pm

The Catholic Church still disallows divorce, but of course tons of Catholics themselves divorce.

Apu G August 13, 2013 at 3:25 pm

Change a few words in your question (marked below by asterisks) and you’ll get your explanation:

“What is difficult to understand, however, is why a society would adopt *marriage* laws that make it difficult to get a *marriage* even when both parties *(e.g. of the same sex)* want a divorce. Who benefits from such rules?”

A August 13, 2013 at 3:50 pm

I like Sam’s “A solution to the credible commitment problem.”

Plus:

Gilbert and Ebert (2002) offered participants the choice between prints of paintings by artists ranging from Van Gogh to El Greco. After participants made their selection, half of them were presented with the equivalent of a generous store return policy: they were told, “If you change your mind about which poster you want to take home before you leave today or even any time in the next month, you can just let me know and we will exchange it for you.” The remaining participants were informed that no such exchange would be possible and that their choice was final. Participants who knew they were stuck with the poster they had chosen responded by inflating their appreciation of it, seeing the poster in a more positive light than they had initially. In contrast, participants who knew they could exchange their poster anytime were deprived of this emotional benefit of commitment and found the poster no more attractive than they had before selecting it (see also Frey, 1981; Frey, Kumpf, Irle, & Gniech, 1984; Girard, 1968; Jecker, 1964). Interestingly, however, participants failed to predict this difference and thought they would be equally happy whether they could exchange their poster or not.

lukas August 13, 2013 at 3:59 pm

This is not just a case of high-status customs trickling down by imitation, I think. Hides cultivated by households centred on a husband/wife team were the basic building block of the rural economy in manorial feudalism, so the lords certainly had a strong interest in stable marriages among the peasantry.

Doug August 13, 2013 at 4:39 pm

Incentives–isn’t this an economics blog? If divorce may be had with the consent of both partners, an unhappy partner has an incentive to mistreat the other until they consent. Even if only the husband can consent, the unhappy wife has incentive to make life so miserable that the husband consents–even if the husband was otherwise happy. If both parties know divorce is not an option, the incentive is to make things the best they can be–which presumably involves a lower level of mistreatment than trying to obtain consent to a divorce. If one of the partners wants to make it work, and the other does not, this situation would seem to benefit the partner who wants to make it work.

Kent Lyon August 13, 2013 at 6:07 pm

Mr Tabarok obviously is not familiar with Jack Cashill’s writing on no-fault divorce in California (“What’s Wrong with California?”). Mr. Cashill makes a good case that California started going downhill with the advent of no-fault divorce decades ago; that the disruption of families had a spreading influence on the culture to the detriment and decline of the State.

DPG August 13, 2013 at 7:35 pm

Monogamy is a public good.

ChrisA August 13, 2013 at 8:26 pm

It was/is a morality thing not an economic incentive thing. Often countries have legal systems to enforce popular morals. For instance in many Islamic countries today it is illegal for someone to convert to another religion. A purely voluntary act, that in the west we would see as not a matter anymore for the law. But historically in the West there were also laws like this. Moral laws (like those against sodomy) appeal to group solidarity norms, creating an us/them dynamic, which overall cements current hierarchies.

My fathers parents were divorced and it took my mother a number of years to tell her parents about this fact, because it was seen as so shameful that they likely would not have allow the relationship between my mother and father to continue (by the time they learned, it was too late) This was in 1950′s Manchester.

prior probability August 13, 2013 at 10:08 pm

Fascinating post and comments, but perhaps all this “divorce talk” will become academic if civil marriage is abolished, as some have proposed

Andrew' August 14, 2013 at 5:14 am

You refer to a separation of church and state?

Marie August 14, 2013 at 8:50 am

Won’t ever happen, but considering the current state of things it would certainly be a fine solution. As this thread demonstrates, using marriage as a proxy for all sorts of different kinds of contracts between individuals only confuses the legality of the contracts and alters the understanding of the concept of marriage. We live in a secular nation, those of us who are religious need to let go of the idea that law will protect our beliefs and begin to protect them ourselves instead. All we can demand is that the law stay out of our way (of course, we’re likely not to get that).

Comments on this entry are closed.

Previous post:

Next post: