Judge Posner! I am apalled! Stephen Colbert, in his defense of polygamy, managed to bring up the following argument, and yet it's notably absent in your discussion. I don't know what that says...
Anyway, the argument is as follows: since some men will have multiple wives, that will reduce the number of available women, it will force the men below the top to improve their relative positions so they too can have wives. This would men that men would invest more in education and actually increase their output; while not all men can improve their relative position, obviously, it could lead to a sort of arms race of men working to be more attractive financially and in other ways. [Colbert recommended working on cuddling skills.] Those at the very bottom, then, probably don't deserve wives, anyway - even in "backward" cultures, one must be well enough to support an extra wife before one can have one. [I won't even go into how the usual shortage of men in traditional societies has led to polygamy in such places. I don't think it's a cause of economic backwardness, but an effect.]

Then why have any institution of marriage at all....so the argument must progress.

To be honest, what is being advocated is not the abrogation of a governmental restriction of such arrangements, but rather government recognition of the legitimacy of these relationships. Anyone can jump orver a broom, throw a glass in a fireplace, chant to moon, etc. and declare themselves "married". Who prevents that?

There are, however, clear reasons why the government should recognize a simple bi-gender committed relationship among child-producing adults.....the perpetuation of the state. The single pairing arrangement is simple the most simple, stable, and perhaps also the optimal relationship for child-rearing.

Remember, these days one does not need to be "married" to have sex. However, if you want a committed relationship, perhaps it is best not to spread yourself too thin.

There are a lot of arguments about the question of marriage!!! But as for me, I have nothing against polygamy ( I liked this very much during my visit to Dubai !), though I wouldn't want to divide a husband among othere women!!! :) As for the homosexual marriages, I'm against, because I find this abnormal to love the same sex and build even the family!!! :) These are my own opinions conernincg the above problems!!!

There is another issue involving polygyny. This is that in polygynous societies there are of necessity going to be some males who have no access to wives and no prospect of such access. Young unmarried males are a volatile segment of society and increasing the number of such persons may well lead to political instability. This can occur because such males are themselves a force for instability or because governments must become more oppressive to maintain order. This may be the source of the political oppression observed in many Islamic countries. In my book Darwinian Politics: The Evolutionary Origin of Freedom (Rutgers Press, 2002) I calculate that if wives were allocated based on incomes, than for the contemporary U.S. at least 15% of the males would be unmarried and unmarriageable. The creation of a large class of restless males is an externality. In other words, the social structure of a society is a public good in that we all live in the same society. I do not believe it is a coincidence that modern liberal democracy evolved in monogamous societies. Moreover, while Becker is of course correct in arguing that polygyny would increase the value of women, it is also true that in many polygynous societies male relatives capture this value through charging bride prices and males retain strict controls over females.

Judge Posner mentions that polygamy may aggravate inequality. Although this may be true in the short run, if we think about integrenerational effects, it seems that spreading out the investments of particularly wealthy/successful individuals across more children would tend to lessen the advantages of those children, which would actually dampen inequality. Thoughts?

Why no mention of polyamory or group marriage? Though rare, it has been practiced by hunter-gatherer tribes. The big advantage of polyamory in modern society is that it would provide a way of reestablishing the sort of tribal and/or extended family that has typified most of human existence. Arguably, a modern tribal system, with multiple adults sharing childrearing responsibilities would offer many advantages to the children produced by a group marriage. There would also be economic advantages to the adults/parents through job/career diversification and leveling out risks: if one person loses a job in a 2-career family it has a big impact; if one person loses a job in a 6-career, 6 person group marriage, the impact is small.

Typically, successful immigrant groups in the U.S. leverage extended family arrangements to allow them to pool their efforts/resources and quickly gain affluence. If extended families can still be shown to be economically viable in the modern world then making it easy to create such institutions "from scratch" by group marriage should be beneficial as well.

If polygamy is legalized, then how long until polyamory follows suit (after all, what's good for the goose is good for the gander)?
And, if polyamory is legalized, are we heading down a slippery slope from which we cannot extricate ourselves?
The reasonable compromise worked out in places such as New York City--in which recognized and legalized domestic partnerships exist for homosexual and heterosexual couples living together--may be the best bet here. Such a setup recognizes the uniqueness of marriage as an institution involving one man and one woman while, at the same time, affords recognition and legal protection to all others.

Paul makes an interesting point that is often made in reference to the discussion about homosexual unions which is that we have little practical capacity to prevent effective polygamy. The only real question (after Lawrence v. Texas anyway, and baring considerations of the powers of Child Protective Services) is whether to offer the benefits and protections of lawful marriage and not really whether to allow people to choose to live in a polygamous arrangement.

At any rate, the massive public antagonism towards legalized polygamy does not seem to be matched by a willingness to pass and enforce laws preventing equivalent behavior - otherwise Hugh Hefner and a clutch of other celebrities would have been in big trouble long ago.

But despite allowing informal polygamous arrangements, imagine the difficulties that would arise in Family Law if an attempt were made to formalize such marriages. The more spouses and children, the more permutations of potential legal conflicts. Judicial economy alone probably speaks sufficiently against polygamy to advocate its proscription.

Some Islamic cultures still permit polygamy, as did the Jewish tradition prior to the 11th century and the many fatwas and talmudic tractates discussing what should happen with inheritance and division of authority, custody, and property in the diverse possible events of death, divorce, or family conflict give us some idea of the legal complexities involved.

The talmud (in maybe a kind of prehistoric clan partnership-law view of the family - which come to think of it may be a more suitable legal framework when there are many people involved in an organization) considers the situation when, in the event of the death of all adults in a polygamous family, and if the will specifies actual sums (as opposed to fractions) to be distributed to the orphans, but there are insufficient family assets to pay the sums, then all orphans will receive equal shares.

If the need for that, and a multitude of other solutions for various problematic situations, is not a good enough argument against legalizing polygamy - I don't know what is.

The only legitimate reason that I can think of for making polygamy illegal is that too often polygamy would result in families with more children than they could reasonably support. A while ago, I saw a show about a Mormon polygamist who had something like ten wives and twenty-six children. Because the family was on welfare, taxpayers had to foot the bill to support the children, and the total cost to the state was some outrageous amount. Of course, this family arrangement would have been perfectly legal if this man was not married to any of women, but certainly “legalized polygamy” would increase the number of such families. Theoretically, polygamy could only be allowed for families with a requisite amount of income or a cap could be placed on the number of allowed children per wife, but such a rule would raise the politically untouchable subject of how much money a family should need to have a child.

I think the main reason that polygamy flourishes in backward societies is that women in those societies do not have much bargaining power. Since they are dependent on men for their survival, their choices of men are limited to those who can support them. Because the demand for these men probably drastically exceeds their supply, the women are left without a choice. And the men are in a strong enough bargaining position to be able to demand multiple wives (e.g., Hugh Hefner has enough “sexual bargaining power” to have three gorgeous girlfriends that are willing to share him; I don’t (damn! :( ).

Posner and Becker raised some interesting questions with respect to marriage and the family. The monogamous marriage institution evolved to what it is today particularly because men did not want to compete for a limited resource (women) with alpha males, and women wanted men to have partial responsibility for their burden (children). Since the only way to ensure that a man took care of his own offspring was to have only one partner, the marriage contract evolved the way it has today. In today’s modern society the bargain has changed, and women bring more to the negotiating table then they have before.

The modern woman need not marry for financial security or for physical protection. As women brought more to the marriage negotiating table, the bargain started to be fair. The main reason why a woman has more privileges, is better treated in the home, and household duties are shared, is because women bargained for it during the marriage contract. Thus, we have equalized the distribution of right between men and women, which may be one of the few cases where equity and efficiency went hand in hand.

All of Posner and Becker’s analysis made a fundamental assumption: men prefer multiple wives, while women prefer monogamy. Furthermore, both Posner and Becker assumed a less equal playing field that may exist in today’s society. I do not necessarily agree with these assumptions. I think that women may be predisposed to preferring multiple partners almost as much as men. After all, adultery occurs by both sexes—I am not sure of figures or the distribution, however.

But if we invert those previous assumptions, we could possibly have an entirely different idea of polygamy. Those individuals that prefer polygamy may marry into marriages of that sort: we could see 2 husband and 2 wives sharing one (big) bed. Since women bring almost the same bargaining chips, and are soon to bring just as much, then there is no reason why women might not have multiple husbands. Maybe polygamy would further equalize and bring efficiency. That is, two unwealthy men can marry a wealthy woman, and vice versa. Economies of scale might make bigger households more efficient, if household labor is specialized.

In today’s busy society, a large household with a large adult to children ratio, may be much more efficient. Household labor can be better specialized and divided, children can have more time with their parents, the household equity and income could be huge, etc. By dividing up household duties and rearing children in such a way, might yield productive results in the industry as well as both men and women can devote more time to production.

So long as the playing field is fairly equal (as it is starting to in modern America) and the preferences of men and women are comparable (with respect to polygamy and monogamy) then polygamy might prove beneficial to society. The societal benefits might surpass the costs (by a lot).

One difficulty with polygamy is that it reduces variety in the gene pool. This may affect the genetic health of the population. How does this affect the market for mates?

Polygamy is way down the list of things that I would lose sleep over if it were legalized. As has been pointed out earlier, one of the key issues with legalizing polygamy would be what benefits the government would offer.

With gay marriage, with answer is simple: the government would offer exactly the same benefits offered to other married couples. With polygamous marriages, there would be the question of how to generalize these benefits to more than two people.

Not only would this affect family law, as has been mentioned, but it would also affect tax law and immigration law among others. Given the likely incidence of polygamy I doubt it would matter what government benefits were offered from a practical perspective but I imagine that it would make for some big news stories.

For example, what if some multi-millionaire goes to china and comes back with a hundred Chinese wives/fiancees? Do they all get citizenship? Are they being exploited? What level of support does the multi-millionaire have to be able to provide to get approved for the fiancee visas? Suppose most of the wives go out and get jobs, do they all file one big joint tax return?

Some of these problems could be eliminated by limiting the size of polygamous unions. For example, if my information is current, Indonesia limits a man to four wives. Then again, if you have a limit, where should it be 4, 10, 50 100?

I am struck by the statement, "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 problem is that prohibiting certain types of contracts may result in even greater social welfare. So even when thinking in terms of maximizing social welfare, we cannot afford to take consensual contracts for granted.

Sorry to hammer on Posner again, but his argument this week is strikingly unpersuasive. His objection is grounded in a list of private costs and benefits. But Posner’s own reasoning stated elsewhere says that unless market transactions impose externalities on others there is no room for government to improve welfare through regulation or bans. Since no externalities or market failures appear on his list of the costs of polygamy, Posner’s objection fails (poor men finding it harder to attract women under polygamy is the product of market transactions and are not externalities – and in any case why put more weight on the welfare of poor men under polygamy than the welfare of women who lose the freedom to choose under monogamy).

His argument is so clearly against the economic principles he applies elsewhere that I believe there is more to this argument than meets the eye – either political constraints on what he can say on this emotive topic, or a personal objection based on his own morals. If either is correct, it might have been preferable to point to these as reasons, or opting out of a post for a week, than to fudge it.

We should be grateful in one sense: he managed not to relate polygamy to global warming!

It seems to me that we already have de facto polygamy in the middle and upper middle class. Since husbands and wives are both wage earners in most families, they are usually forced to hire an adult, or nanny, to look after the children - never mind the hiring of professional cleaners, etc. So, in effect, the family is now 3 adults plus children - even if one of the adults might be temporary and has nothing to do with sex or reproduction.

Taking a larger view of legalizing polygamy, the question that comes to mind is: why is the state even interested in regulating relationships? I suggest that the state sticks it nose into this business because of the benefits of stable relationships. There are few, if any benefits to promiscuity, and the state needs to minimize it to help its citizens spend their time and resources becoming more productive – and hopefully happier. As such, the state ought to be strongly in favor of any sort of marriage that helps to establish lasting bonds.

Of course nobody seems interested in the religious rights of those who want to marry more than one person. Face it, that is the only reason this has even come up. If you look at the original Supreme Court rulings, it all comes down to religious bias.

All this "economic reasoning" is sidestepping the bigger issue. No matter how much it might help or hurt society, does a person have the right to marry more than one person because that is what their religion dictates? I mean, really, how many non-religious people have married more than one person at the same time in at least the history of the United States? If the majority of people are against Polygamy than will a majority of people get involved if it was suddenly legal?

As for the differentiation between polygyny and polygamy it all has to do with the power structure in society. A matriarchal society- polygyny; patriarchal-polygamy and so it goes. There is just one problem when it comes to inheritance in such extended families. The question is who gets what? In the past, it was said that in this family a "brother slays a brother" or a "sister slays a sister". Lots of blood shed before the property is handed out.

Perhaps the old Church fathers were right in developing and establishing monogamy. Even if it resulted in primogenture. Which wasn't broken until the founding of the U.S.

Assuming continued non-enforcement of adultery and cohabitation regulations, what exactly do polyfidelitous families want that can't be accomplished with a well-drafted partnership agreement? This is the same question I ask in the gay marriage scenario. I'm not saying there aren't answers to that question, but the stakes may be smaller than we assume.

I enjoyed the logic of "Sex and Reason", but this blog post seems to raise strawman arguments. I don't know of anyone outside Utah who is arguing that it should be legal to have multiple wives but not multiple husbands. I don't whether Posner is familar with Robert Heinlein's line marriages, or, the Tibetan custom of brothers marrying one wife so the land stays in the family.
Came here via a link at hasen's election law blog.

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

That seems wildly inaccurate. Our society allows a spouse who leaves a marriage to take a goodly chunk of marital assets with her. If we allowed polygny, I doubt the very rich and very licentious would start marrying multiple wives; they would just do what they do now- buying or seducing easy sex from bueatiful women without the government imposed cost on failing to keep a spouse happy.

The "clan" argument also seems specious. Clans are more dangerous when kept together by means of family wealth tied up in private foundations, irrevocable trusts and family homes in Nantucket than they are by mere blood. If the clan fear is compelling enough for government intervention into family planning, why not a confiscatory estate tax?

The other arguments are similarly off-the-cuff and ill considered.

I would think that in supporting government intervention into the volutary ordering of affairs among individuals, Judge Posner would cite compelling reasons. Unbridled licentiousness, clannish behavior, poor parenting are all part of the human condition irrespective of polygamy.

.....I understand Paul's feeling that anyone can call themselves married and so we are not discussing "intervention". But our government has decided to shower the married, as defined, with thousands of little advantages. In drawing the definition of marriage, it necessarily supercedes voluntary statements of marriage, taking from "unmarried" and giving to "married", and that is what I mean by intervenes.

I think the "clan" argument holds as much sway as any against polygamy. One result of legal polygamy would be (the potential for) hundreds of "sons of Bill Gates", all within 30 years age of one another and each starting out with tens of millions at their disposal when their father thinks they are ready to carve their niche in the world. Potentially, they could compete with one another - but more likely at least a few dozen would likely cooperate. Even if only a half-dozen succeed and cooperate to dominate 2 or 3 major industries, do we really want that kind of concentration of power?

If a single clan manages to dominate 50% of the commercial sector, they could easily overturn the government by financial coup - in effect this has happened in small South American countries more than once.

Diversity = stability, stability = prosperity

Posner:
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 [...]

Are there any practical examples of this process in recent history? It doesn't seem to be the case in today's Muslim countries that allow polygamy. Of course, the reason could be that they place the limit of at most four wives per man. But then this is not a valid argument against such limited polygamy.

Furthermore, is it really uncontroversially clear that such a source of checks on the government's monopoly of political power would necessarily be a bad thing?

Joe Merchant

I take it you are strongly in favor of polygamy, since spreading Gates' wealth among 30 children, as opposed to 0 to 2, is a de-concentration of wealth.

Stability is necssary for prosperity but not sufficient.

All objections to polygamy are rooted in animus.

The Posner Must Be Crazy: Polygamy is banned in most advanced societies and flourishes chiefly in backward ones, particularly in Africa. This is some evidence against legalizing it.

Posner continues on his anti-African crusade this week. Not too long ago, it was good for malaria to kill off Africans. Now, if Africans do it, it must be bad. Nevermind the fact that Uganda, a former British colony, has polygamy and a legal institution analogous to ours it uses to manage it. Uganda is by no means backwards. Its commonlaw is our commonlaw.

I imagine next week the topic will be, "The Genocide in Darfur: Optimization in Action".

Islamically men are allowed to marry up to 4 wives at one time. Putting an upper bound on it may stop very wealth men buying their own harems with dozens of women for their pleasure.

“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.

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.

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.

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.

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".

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.

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.

Judge P,

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

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.

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".

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

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!

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.

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.