Should Polygamy Be Legal?--Posner's Comment

Becker has posed an intriguing question: if a woman thinks she would be better off as a second or third (or nth) wife rather than as a first and only wife, or not married at all, why should government intervene and prohibit the arrangement? From an economic standpoint, a contract that makes no one worse off increases social welfare, since it must make both of the contracting parties better off; otherwise they would not both agree to the contract. The question has achieved a certain topicality because of the movement to legalize homosexual marriage. One of the standard objections to such marriage is that if homosexual marriage is permitted, why not polygamous marriage? The basic argument for homosexual marriage is that it promotes the welfare of homosexual couples without hurting anybody else. That seems to be equally the case for polygamous marriage. But is it? My view is that polygamy would impose substantial social costs in a modern Western-type society that probably would not be offset by the benefits to the parties to polygamous marriages. (For elaboration, see my book Sex and Reason (1992), particularly Chapter 9.) Especially given the large disparities in wealth in the United States, legalizing polygamy would enable wealthy men to have multiple wives, even harems, which would reduce the supply of women to men of lower incomes and thus aggravate inequality. The resulting shortage of women would lead to queuing, and thus to a high age of marriage for men, which in turn would increase the demand for prostitution. Moreover, intense competition for women would lower the age of marriage for women, which would be likely to result in less investment by them in education (because household production is a substitute for market production) and therefore reduce women's market output. Of course, forbidding the wealthy to buy a particular commodity is usually inferior to taxation as a method of reducing inequality. Yet we do forbid the buying of votes, which could be thought a parallel device to forbidding the "buying" of wives: one vote, one wife. We think that vote buying would have undesirable political consequences. So might polygamy. In societies in which polygamy is permitted without any limitation on the number of wives, wealthy households become clans, since all the children of a polygamous household are related through having the same father, no matter how many different mothers they have. These clans can become so powerful as to threaten the state's monopoly of political power; this is one of the historical reasons for the abolition of polygamy, though it would be unlikely to pose a serious danger to the stability of American government. In polygamous households, the father invests less time in the upbringing of his children, because there are more of them. There is also less reciprocal affection between husband and wife, because they spend less time together. Household goverance under polygamy is bound to be more hierarchical than in monogamous marriage, because the household is larger and the ties of affection weaker; as a result, "agency costs" are higher and so the principal (the husband, as head of the household) has to devise and implement means of supervision that would be unnecessary in a monogamous household. (An additional factor is that women in a polygamous household have a greater incentive to commit adultery since they have less frequent sex with, and affection for, their husband, so the husband has to watch them more carefully to prevent their straying.) This managerial responsibility deflects the husband from more socially productive activities. A woman who wanted a monogamous marriage could presumably negotiate a marital contract that would forbid the husband to take additional wives without her consent. However, she would have to buy this concession from the husband, which would make her worse off than if he were denied the right (in the absence of a contractual waiver of it) to take additional wives. Allowing polygamy would thus alter the distribution of wealth among women as well as among men. Against all this it can be argued that polygamy would be uncommon in a society such as that of twenty-first century United States. But the less common it is, the fewer the benefits to be anticipated from legalizing it. And I am not sure that it would be all that uncommon. Although few American couples want to have more than two or three children, a polygamous union is not a couple. If a couple has three children, the ratio of adults to children is 2:3. In a polygamous household consisting of a husband, two wives, and four children, the ratio of adults to children is higher: 3:4. So the per-parent burden is less, even though there are more children. Because polygamy is illegal everywhere in the United States, few Americans think of it as an option. If it were made respectable by being legalized, who knows? There are 400 American billionaires, and several million Americans with a net worth of at least $6 million. Nor, with most women working, is it obvious that a man would have to be wealthy in order to attract multiple wives, though presumably men who wanted to be polygamists would have to be able to offer some financial inducements, since most women would prefer to be a man's only wife. As more and more men attempted to become polygamists, the "price" they would have to pay for a wife would rise, so polygamy would be a distinctly minority institution. But it would not necessarily be trivial in size or harmless in its social consequences, which would be likely to exceed those of homosexual marriage. Polygamy is banned in most advanced societies and flourishes chiefly in backward ones, particularly in Africa. This is some evidence against legalizing it.

Comments

[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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