I’m going to be as charitable as I can be to Bryan Caplan about coverture. I think he was largely ignorant of the history of coverture when he first started writing. His choice of sources (eHow and Wikipedia) suggests as much, anyway. And the alternative — thinking that he was well aware of what follows below — would be a whole lot less charitable. It would mean he was quite dishonest in saying that women could just bargain their way out of coverture, and thus obviously they were happy when they remained within it.
I think Caplan probably intuited that the issue was a teachable moment about contracts, Coasean bargaining, and default rules, and he jumped to that conclusion in part because these concepts really are so interesting. But in part he also jumped because of his ignorance about what coverture really meant, even in 1880, his putative ideal date.
Here’s what Caplan still doesn’t seem to get. Even if we’re being excruciatingly careful about chronology, and even limiting ourselves to the situation on the ground in 1880, women still faced legal disabilities that would make Caplan’s proposed solutions completely impossible.
Married women’s property acts were (mostly) in force by 1880, but women still could not contract with their husbands about anything. Contracts made between husband and wife were almost always void, and contracts agreed to before a marriage were invalidated by the act of marriage itself. Historian Hendrik Hartog writes:
[T]he predominant legal position was that contracts between husband and wife, in particular contracts that varied significant terms of the marital relationship, were presumptively unenforceable and void. Even when judges ruled in favor of the validity of such agreements, they did so with a long (and usually long-winded) preface that set the scene as one where such agreements were, necessarily, inconsistent with marriage as it ought to be understood. (p. 82)
To give one fairly significant state-level example, this situation prevailed in New York until 1916. (p. 214) And this demolishes Caplan’s claim that contracts or the mere threat of contracts would bring 1880 marriages into something like an equal power relation, if only the parties so desired. Such an equal power relation was completely impossible until the early twentieth century at the very earliest.
What about legally unrecognized negotiations? What about the informal power to make your marriage partner’s life more or less pleasant? Even here, the claim doesn’t hold.
That’s because men had all kinds of legally established bargaining power that they could bring to bear on any informal negotiations. In 1882, again in New York, a court declared that custody of children was always at the disposition of the husband, and never at the disposition of the wife. The wife could only have custody at the husband’s pleasure (ibid). Husbands could surrender that custody whenever they liked, but even afterward, they could reclaim it if they wanted. Such power makes a theory of informal bargaining between equals into a fairly sick joke.
Below the fold, I’ve got some further noodling about a hypothetical or two.
If we’re remaining charitable, and if we’re inclined to forgive Caplan his ignorance, we’re still left with an interesting question. Given an abstract theoretical situation not at all like real coverture, but rather of the type Caplan imagines, are the default rules really just so many words on a page? In other words, do bargaining costs ever reach zero in the real world? If not, why not?
It is exceedingly strange, for example, that Caplan remains so worried about soft paternalism in our own day, but that he would have been unconcerned about soft paternalism aimed at women in a hypothetical state of coverture-plus-bargaining. (Conversely, it is strange to see left-liberals keen on soft paternalism that will make us stop smoking or eat right, while at the same time they are incensed at the softest aspects of paternalism toward women. I’d be inclined to consistency here, and to rejecting them both.)
Perhaps this muddies the waters a bit, but let’s consider a default rule that’s far afield from our discussion. I think it illustrates an important principle much more clearly than the above. The default rule is as follows:
- The testimony of a Jew is not admissible in court.
Now, this is a horrible default rule, but happily it can be contracted around! All the Jew needs to do is swear on a Torah (like a Christian, mutatis mutandis), while also standing on a chair, wearing a funny hat, wearing a belt of thorns, and/or standing on the skin of a pig (very unlike a Christian).
Now, obviously, this makes everything right and equal again, doesn’t it? I mean, you’ve got your bargaining? And your formal legal equality? And the Jew’s testimony is admissible now? All right and good, no?
Before you accuse me of an overactive imagination, this practice was entirely real. It was called the oath more Judaico, and it was in force in some parts of Europe as late as 1916.
The oath more Judaico illustrates an important principle regarding default rules: The state’s choice of default rules never is cost-free. Default rules are how the state does signaling, and signaling has costs. Default rules don’t always constitute the physical power structure, although they certainly can. Default rules do, however, constitute the psychic power structure. In this they impose costs, and these, while hard to quantify, are hardly unreal. Coverture-with-bargaining — that hypothetical that’s never existed in the real world — would be a lot like the oath more Judaico in this sense. It’s a loud, clear signal to people who might be inclined to presume, or try to construct, full equality before the state. It would say, “No, not really.”
Reference: Hendrik Hartog, Man & Wife in America: A History. Cambridge, MA: Harvard University Press, 2000.