December 2, 2016

Should Adultery Be Legal? A Libertarian View

By In Articles, Philosophy, Political Theory

I want to briefly touch on the issue of adultery in a libertarian society, especially since it continues to come up in the Reformed Libertarian Facebook group. It is good that I do this as it is a great reason to go back to the fundamentals and correct some rhetoric that often comes up in quasi-libertarian circles, especially as it relates to crime and victims. I suppose this is sort of a subcategory of the various articles we have done on marriage and the state in general. Some of the principles mentioned here have been explained in other places.

Libertarianism is a theory that seeks to answer the question of which acts of aggression or coercion are permissible, and which are impermissible, in society. 99% of people agree that you cannot go over to a random person’s house and kill that person because you feel like it. This is an example of impermissible aggression. Probably the same percent of people agree that a person or group of people can, in spotting a rapist in the act, rush over and pull that rapist off his victim. This is an example of permissible aggression. Somewhere between these two extremes is a rubric that is to be employed to determine whether most, if not all, types of aggressive action are allowed.

Without here defending the reasons or the application, the libertarian theory is that the only types of aggression that are permissible are those that are in defense of property (a person’s body is included in this category), or are otherwise in response to a previous initiation of aggression. Stated from the opposite perspective, no individual is legally allowed to aggress against another individual’s property unless the latter had initiated— or is currently initiating— aggression. This is the source of our “rights.” What we mean by rights, strictly speaking, is purely in terms of what others are not allowed to do to us. The initiation of aggression is, in the libertarian view, the meaning of crime.

Therefore, for example, technically speaking, people don’t have a right to life in a positive sense. That is just a historically convenient phrase to articulate the fact that no other person is legally allowed (or should be legally allowed, our current abortion laws notwithstanding), to aggress against one’s life. If someone did have a right to life in a positive sense, what that would mean is that one has the right to force someone else to keep him alive. But people don’t have positive rights, they have negative rights.

Putting a side for a moment the more technical details of whether a “government” should be a state (minarchism) or provided for on a free market (anarcho-capitalism or propertarianism), let’s just, for the sake of the argument, claim that it is the role of “government” to be an entity dedicated to take part in permissible types of aggression. That is, the government is theoretically intended to hold the right only to aggressively act on behalf of a victim of a crime (the right to self-defense being delegated by the victim to this entity) or to aggressively act in a punitive sense against a criminal (prosecution).

Thus a libertarian society is one in which the initiation of aggression is illegal and all voluntary acts are legal. If something is illegal, it is backed up by aggression (permissible aggression is that which responds to the initiation of aggression). If something is legal, it is not backed up by aggression.

Now then, should adultery be illegal or legal? That is to ask: should adultery be responded to with aggression or with non-aggression? After all, adultery is indeed a terrible sin against God and one’s spouse, so it does certainly need a response. But is the entity of aggression (“government”) the one that should respond?

The answer, of course, depends on whether adultery is a violation of a spouse’s property right. If one’s spouse has an affair, has the adulterer aggressed against the innocent spouse? The framing of the problem immediately resolves the sometimes foggy language of whether the spouse (or children) was hurt by the deed. Of course he was hurt. So was the church, the community. Emotionally and spiritually especially. But that is not the proper question. We are hurt by each other— by our friends and colleagues and teachers and bosses and so on— all the time. But does someone have a right to be free from all types of loosely defined “hurt?” Indeed not. Thus, the proper question refers to whether an adulterer aggresses against the property of his or her spouse.

On strictly libertarian terms (which of course rejects utilitarian rationale), the most obvious answer is no, and the logical ramification is that adultery, while despicable, should indeed be legal.

Marriage and Contract

However, there is a common objection that usually comes up here. It is this: “marriage is a contract and since contracts can, if broken, be backed up by aggression, the marriage contract broken by adultery can be backed up by aggression. Therefore, adultery can be made illegal.”

In order to consider this, we must first define a contract according to libertarian property theory.

In libertarian theory, perhaps distinct from other traditions, there is a difference between a promise and a contract.  Murray Rothbard explains the libertarian theory of a contract:

[T]he right to contract is strictly derivable from the right of private property, and therefore that the only enforceable contracts (i.e., those backed by the sanction of legal coercion) should be those where the failure of one party to abide by the contract implies the theft of property from the other party.

In short, a contract should only be enforceable when the failure to fulfill it is an implicit theft of property. But this can only be true if we hold that validly enforceable contracts only exist where title to property has already been transferred, and therefore where the failure to abide by the contract means that the other party’s property is retained by the delinquent party, without the consent of the former (implicit theft). Hence, this proper libertarian theory of enforceable contracts has been termed the “title-transfer” theory of contracts.

Our contention here is that mere promises are not a transfer of property title; that while it may well be the moral thing to keep one’s promises, that it is not and cannot be the function of law (i.e., legal violence) in a libertarian system to enforce morality (in this case the keeping of promises).

Marriage, however, is a bond that is not sealed on the basis of property title transfer, thus marriage does not fit the definition of a contract. In my two-part series on marriage I pointed out that, historically speaking, there were five broad categories of the theory of the nature of marriage:

  1. Marriage as Sacrament in the Roman Catholic Tradition
  2. Marriage as Social Estate in the Lutheran Reformation
  3. Marriage as Covenant in the Calvinist Tradition
  4. Marriage as Commonwealth in the Anglican Tradition
  5. Marriage as Contract in the Enlightenment Tradition

I agree with the Calvinist tradition. Marriage, because its bond between man and wife is spiritual and intellectual, that is to say, it is dependent on God and man’s volition and does not include the physical transfer of property title, is a Covenant. Marriage is an intellectual bond or oath between husband and wife that does not depend on any property brought into a hypothetical estate. Marriage legitimately exists “for richer or for poorer” and regardless of whatever physical ills may present themselves on the life of the couple. There was no transfer of property title on which the marriage relationship depends. Some may say that there is indeed the presence of property at play (such as a house). But the marriage relationship itself is independent of the property in the same way that the friendship between two friends is independent of a TV they brought together.

Now, it is certainly possible for the marriage covenant to at the same time be a contract. In which case, it is entirely possible that an affair could be responded to with aggression. Let me give a hypothetical. Let’s say that the husband and wife (again, their marriage covenant is independent of a possible contract) agree that the man will buy his wife a car on the condition that she does not have an affair with another man. If the wife does have an affair after the man buys the car for her, then libertarian contract theory indicates that the wife has implicitly stolen the car for not upholding her end of the contract. In this case, adultery can be responded to with aggression. And any sort of scenario can be created in which the husband and wife mutually contract to a certain set of agreements.

But what is being claimed is not that a contract cannot exist, but rather, in the case where there is not a contract, there is still a legitimate marriage covenant before God. The addition of a contract merely creates a situation in which Mr. Jones and Mrs. Jones have both a contractual relationship in the same way that two teenagers may have, and also a covenantal relationship that is far more restricted in the eyes of God.

But What About 1 Corinthians 7:3-4

In a common last attempt to prove property rights in the spouse, the following passage is usually cited:

The husband should fulfill his marital duty to his wife, and likewise the wife to her husband. The wife does not have authority over her own body but yields it to her husband. In the same way, the husband does not have authority over his own body but yields it to his wife.

However, this verse, far from making the body of a spouse a property possession, actually refers to the obligation that men and women have to constantly and voluntarily submit themselves to each other. In other words, the point of this verse is not that a woman must literally give ownership title to her husband (or husband to his wife), but rather that there is an obligation to always be “yielding” (which implies that the ownership of the body remains with the person) one’s body to the other in a voluntary manner. While it may, according to this verse, be morally wrong for one spouse to withhold his or her own body from the other, it is not legally wrong on the basis that the man or woman cannot request the government to force the spouse to have sexual relations with him or her. By way of another example, if the woman had property ownership in her husband’s body, there would be no illegality at play if the woman decided to lock her husband in a closet indefinitely, and so on. In other words, this verse isn’t about property ownership theory, it is about submitting to one another. And of course, this is a great prooftext for the sinfulness of adultery; just not the illegality of it.

The response to a sin like adultery should be taken care of by the spouse, by small groups, by the local church body, and so on. It should not go ignored. There is pain, there is frustration, and sometimes, God willing, there is restoration. A “government” though, the entity that has the rightful legal ability to use aggression is simply acting beyond its scope if it seeks to render punishment against an adulterer as a result of the marriage covenant being broken. A marriage covenant, like an oath or a promise, is intellectual and built on faith, not backed by the threat of aggression.

Written by C.Jay Engel

Editor and creator of The Reformed Libertarian. Living in Northern California with his wife, he writes on everything from politics to theology and from culture to economic theory. You can send an email to reformedlibertarian@gmail.com