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10/22/2006

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Andrew

“Posner is Senile,” you are absolutely right. Only someone who hates Africans would think that overpopulation in Africa was a problem. There have never been too many hungry mouths to feed in Africa. Clearly, Judge Posner hates Africans.

Also, your reference to Uganda was dead on. Since one African country is not “backwards” (which is probably debatable…), obviously, none of them are. Everyone knows that polygamy is the true sign of an advanced society.

JFK

A few thoughts:

I believe there are several reasons to question whether legalizing polygamy would distort the ratio of marriageable men and women enough to have such dire effects. First, women outnumber men in the United States. This suggests that a certain percentage of the female population could enter into polygamous marriages without unduly restricting the marriage options of lower income males. Second, polygamy would, presumably, allow women to marry multiple husbands. To the extent they did so, it would tend to offset the gender imbalance of the harem scenario you suggest. Thirdly, the stability of such harem arrangements in American society is questionable, particularly given the incentives for divorce – marital property, for one.


The conclusion that polygamy by the wealthy will aggravate inequality is also questionable. As was pointed out elsewhere, polygamy tends to de-concentrate wealth. The wealth of a single individual with multiple spouses would tend to be fragmented through divorce and inheritance. Fragmenting large estates may or may not be economically beneficial, but it would tend to de-concentrate wealth, and to some degree, reduce inequality rather than aggravate it.


You suggested a number of costs associated with polygamous marriages, including agency costs. However, a polygamous marriage, particularly one that raises children, may offer substantial cost savings (a family of scale?). There may be significant savings in childcare and housing expenses.


However, one very real problem with polygamy is not with its practice by the wealthy, but by the poor. Potential cost savings notwithstanding. Ghana, for an example, has experienced severe problems of poverty in women and children as a result of the marital estate being excessively fragmented upon the death of the husband. See Jeanmarie Fenrich & Tracy E. Higgins, Promise Unfulfilled: Law, Culture, and Women’s Inheritance Rights in Ghana, 25 FORDHAM INT’L L.J. 259. To the extent that the fragmentation of the marital estate leads to economic dislocations, significant costs could be externalized to the public through increases in social services and increased crime, the usual accoutrements of poverty. However, the African experience may not translate to the United States. The African marital estate, for the poor, is primarily farmland, which is particularly susceptible to the problems of fragmentation. By contrast, most American poor have no net estate to pass, or fragment, whatsoever.

Political Umpire

Why is there an assumption that polygamy only consists of men with multiple wives, rather than women with multiple husbands?

In the UK a year or so ago a female academic "outed" herself as someone in several concurrent and consensual relationships. I forget which term she coined to describe the situation. It seemed the others were involved in this as well, leading to a very convoluted set of arrangements.

ben

JFK

To the extent that the fragmentation of the marital estate leads to economic dislocations, significant costs could be externalized to the public through increases in social services and increased crime, the usual accoutrements of poverty. However, the African experience may not translate to the United States.

Assuming both the value of the estate and the size n of the harem can be observed by the n+1th prospective wife, this harm will be avoided by a rational prospective wife concerned about her small share of the estate on her husbands death. The risk of an early entrant wife's share being diluted by an unexpectly large number of future marriages can be managed either by contracting for a maximum number of future marriages, or by divorce.

Paul Hager

I really don't understand the arguments against the various forms of polygamy/polyamory based upon contractual complexity or inheritance problems. Contractually, a group marriage could function like a partnership, an LLC, or some similar kind of arrangement that already exists in the business world. The BIG issue here is that conjugal rights are part of the polyamorous marriage contract. Clearly, there are some issues relating to children in situations where spouses opt out or divorce but, like business arrangements, there could be buy-outs or other agreed-to settlements.

The bottom line is that there is a deep-seated prejudice against polygamy in the U.S. I suspect that the history of the Mormons and the Utah territory post-Civil War is a big part of the explanation. Mormonism was/is a proselytizing Christian heresy, for starters - definitely not endearing to mainstream Christians. The Mormon practice of polygamy was an easy way to attack the sect and anti-Mormon propaganda centered on the idea that polygamy was functionally equivalent to slavery. This identification was very powerful - the Federal Government actually outlawed (unconstitutionally) polygamy in order to provide a weapon to use against the sect. Note that this came AFTER the Utah territory gave women the vote - a right women in the U.S. weren't guaranteed until the 19th Amendment. Polygamy and women voting were viewed as a threat elsewhere in the U.S. and it was easy to characterize the wives as being slaves who voted the way their husbands directed.

As indicated above, the peculiar history of the Mormans in the U.S. helps to explain why discussions of polygamy today tend to focus ONLY on polygyny and how polygamy "victimizes" women, thus perpetuating a 19th century, anti-Morman "meme".

jimbino

All my life I've considered children an irritation and shunned married women and marriage-minded women. From my point of view, allowing polygamy would take a lot of them off the streets, raise my chances of encountering interesting women, and make my bar conversations far more interesting.

David

As one other commentator pointed out (I think), I wonder why Posner defined polygamy as one husband with multiple wives and ignored other possible combinations. If it were legal for a man to take multiple wives, equal protection principles would, seemingly, require giving women the right to take multiple husbands.

I think that Posner very usefully discusses how the question of polygamy is different from that of gay marriage. Arguably, the entire premise of polygamy is inconsistent with that of an egalitarian society. But then again, there doesn't seem to be much popular clamoring for polygamy, so even if legalized, it would probably not have much of an impact.

As a final thought, there seems to be little point in having the government regulate the nature of interpersonal relationships between consenting adults. And, no one is arguing that the law should ban relationships involving multiple partners. The only question is whether they should be given the legal sanction of "marriage." Policy arguments aside, I doubt that the nation is inclined to entertain that notion seriously.

Chairman Mao

Judge P,

What in your opinion would be the result if society sanctioned both polygamy and polyandry?

Gilding the Lily

Family law, particularly divorce, is already messy and hard on the entire family, not to mention the offspring.

Imagine the courts' difficulty in administering divorce cases among polygamous relationships. Does the father figure's existing family keep the children of the divorced wife? What happens if he divorces 6 of his past wives and then marries 5 others... can he possibly afford to support his existing family and his past spouses?

Considering the current status of american marriages, it is not difficult to imagine these types of scenarios. I think this would cause chaos in the courts.

Zbicyclist

Harris (summarizing Colbert) probably provides the best societal argument against polygamy -- it potentially destabilizes a society in which the total number of men and women are roughly equal. So, for every man with three wives, there are two other sexually frustrated men with nobody.

Isn't there evidence that societies which have too many unattached males tend to be particularly violent societies?

To be fair, this argument can be used against a lot of personal arrangements that aren't "standard". For example, it would be very difficult to argue that having kids out of wedlock is somehow "societally stable".

Oren

I don't suppose polyamorous groupings merit any serious thought?

ZZTop

So, for every man with three wives, there are two other sexually frustrated men with nobody.

If this is a sound argument, then why shouldn't the state forced people to give it up? Indeed, if "preventing sexual frustration" is a legitimate state interest, why not have state-sponsored campaigns to promote promiscuity? Why not have a nationwide data-mining program that matches you with compatible sex partners? It would certainly reduce the transaction costs of gettin'-it-on. Sounds like public safety to me!

ben

ZZTop

Good response.

To Zbicyclist I'd add that a) those two men are frustrated as a result of womens' choices. Is Zbicyclist suggesting the state abrogate their right to choose for the sake of those men's satisfaction? b) Mildly incidental, but there actually aren't two men permanently deprived. Women date, and some will otherwise prefer to be single.

Jake

Judge Posner,

Thank you, again, for your rationality. "Freedom of contracts" arguments aside, as made by your colleague, you are certainly correct in assessing the enormously high agency costs of polygamy.

Anonymous

Polygamy became legal in Saskatchewan, Canada over a decade ago.

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