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Arguing about justice

 | 
Axel Gosseries
, 
Philippe Vanderborght

Marriages as assets? Real freedom and relational freedom

Anne L. Alstott

Résumé

Dans Real Freedom for All, Ph. Van Parijs caractérise les emplois comme des ressources externes rares, pouvant légitimement être taxées en vue de financer une allocation universelle. Étonnamment, Van Parijs note en passant qu'une taxe sur une autre ressource rare, les partenaires de mariage, pourrait être justifiée sur des bases semblables. Cet article revisite l'analogie entre les emplois et les mariages, et conclut que les partenaires de mariage ne sont pas rares en théorie – bien qu'ils le soient en pratique. De ceci, on déduit que la meilleure option en la matière pour un État consiste a prendre des mesures (incluant une allocation universelle, un service national, la régulation des sites de rencontres, et une libéralisation des lois sur le mariage) visant a assurer l'accès aux partenaires de mariage pour ceux qui souhaitent se marier. En l'absence de telles reformes, une taxe sur les partenaires de mariage pourrait être défendue comme second-best.

Note de l’auteur

My thanks to Axel Gosseries and Yannick Vanderborght, who offered insightful comments on an earlier draft.

Texte intégral

1Δ In Real Freedom for All (hereafter RFA), Philippe Van Parijs advocates a tax on wages. Jobs, he contends, constitute a scarce resource that -- like inherited wealth – should be taxed in order to fund the highest possible basic income. The same logic, it would seem, could justify taxing other scarce goods -- like marriage partners. Van Parijs considers the analogy and concludes that husbands might indeed be sufficiently scarce to warrant taxation. But Van Parijs stops short of proposing a tax on husbands. Surely you dont intend to do so?

2ϕ I agree that a tax on husbands seems outlandish, not to mention outdated, but it raises a serious point. The analogy between jobs and marriages serves in RFA only to test the soundness of the argument for a wage tax. But the opportunity to form intimate partnerships is an important component of real freedom and today, that freedom is unequally distributed. Taxing marriage may be a political nonstarter, but the idea invites us to consider the justice of the distribution of opportunities for intimate partnerships.

3Δ But the analogy between jobs and marriage partners seems obviously flawed. Marriage is an emotional relationship, not a commodity to be bought and sold. And while jobs produce money to be taxed, marriage produce intangible satisfaction, comfort, and love.

4ϕ But jobs also involve close, personal relationships and fulfill emotional as well as monetary needs. Both marriages and jobs also involve economic and social exchange structured by law.

5Even so, I agree that the analogy between jobs and marriages can be pushed too far. The core of Van Parijs’s claim is that the employment market does not clear because of efficiency wages and other structural impediments. It doesn’t make much sense (and indeed is a bit offensive) to ask whether the marriage ”market” exhibits similar features. Do women (or men) pay above-market ”efficiency wages” to secure the loyalty of their partners? I admit I don’t know how to think about that question.

6Δ So you concede that the analogy fails?

7ϕ No. The scarcity question strains the analogy, but a return to first principles casts light on the question of what a fair distribution of opportunities to marry might look like. Real freedom in economic life requires fair background conditions and access to a variety of life options. We can think of real freedom in forming relationships – or "relational freedom" – as also requiring (1) fair background conditions and (2) access to a variety of relationship options.

8These principles imply that a just society ought to provide everyone with the resources needed to sustain relationships and with fair opportunities to meet people, without unfair barriers due to race, class, or ability status. These principles also suggest legal reforms that would enable people to choose a wider variety of relationships – not just conventional marriage but a spectrum of ”check the box” relationships including a range of legal rights and obligations.

9Δ That sounds complicated, and I have a hunch that check the box relationships could advantage the powerful at the expense of the vulnerable. But at least youve given up on the marriage tax!

10ϕ Your hunch is right, and I have some preliminary thoughts about how to combine freedom and protection for the vulnerable. But I havent abandoned the marriage tax entirely. I conclude that marriage partners are not scarce in principle: that is, it is possible to craft first-best arrangements that guarantee everyone a fair chance to marry. But, given the unfair conditions that today deny some the legal rights and economic resources they need to marry, a tax on those who can and do marry has some appeal.

Introduction

11Although real freedom encompasses the freedom to form a family of one’s choosing, family life isn’t central to Philippe Van Parijs’s Real Freedom for All (”RFA”). To be sure, a central claim of the book (as the surfer on the cover reminds us) is that freedom permits individuals to choose a mix of market and non-market activity. The highest sustainable basic income, Van Parijs argues, would enable individuals the greatest possible freedom to do whatever they might like to do. Some will surf, some will take jobs, and some will devote themselves to a marriage partner or to children.

12The characterization of family as one among many pursuits is sensible given Van Parijs’s project. But I want to suggest that key premises of RFA imply special attention to the freedom to form intimate partnerships. Not, I hasten to add, because marriage is more valuable than other good lives that individuals might choose; I intend to retain a commitment to state neutrality. Rather, it is Van Parijs’ conception of assets – scarce resources external to individuals – that invites special attention to marriage.

13Van Parijs suggests that both jobs and marriages ought to be understood to be assets, that is, resources that are (1) external to individuals and (2) scarce. I concur that marriages constitute external resources. But I differ from Van Parijs on the scarcity point: although I agree that jobs are (on plausible accounts of economic theory) scarce, I contend that marriages, in principle, need not be scarce.

14Today, social, legal, and economic conditions render marriage a scarce and expensive good – one that some willing individuals simply cannot attain. The situation is especially dire in the United States, which is my focus, but similar concerns may arise in other industrialized countries. Alternative institutional arrangements, I suggest, could ameliorate, even eliminate scarcity in opportunities to marry and to remain married. There is at least a colorable claim that justice requires such measures, and I offer a few suggestions for legal reforms that could begin the project.

Jobs and marriages as assets

15In chapter four of RFA, Van Parijs characterizes jobs as scarce external resources, with scarcity taking on a specific meaning. Scarcity doesn’t simply mean that jobs are rivalrous goods in finite supply. If jobs were scarce only in that sense, they – like apples, toasters, or beachfront land – would properly be allocated in the marketplace. Individuals would bid (using a combination of talent, training, effort, and wages), and jobs would go to those most committed to and able to hold them. But Van Parijs points out that many economists believe that the labor market does not operate in neoclassical fashion. They posit that the market wage is set at a level which leaves an excess demand for jobs by workers – that is, more workers would be willing to invest the talent, training, and effort needed but cannot do so because the market does not clear.

16Van Parijs’s point, then, is that the market auction for jobs does not perform as well as the auction for apples or toasters, because there is an element of luck in the final distribution of jobs. An employed person is paid too much relative to the price that would equate to the social price. By contrast, a jobless person is not only paid too little (zero, in fact) but has no job at all. She can take another job, but she has not had a fair opportunity to deploy herself and her assets to purchase her desired way of life.

17The remedy proposed in RFA is to redistribute the economic rents that the employed earn. In principle, Van Parijs suggests, the state should issue tradable jobs permits to everyone (RFA: 108-09). In this regime, better jobs (higher salaries, greater power, more social standing) would cost more, because more people would bid on them. The consequence, he cheerfully acknowledges, is the effective (partial) taxation of returns to talents (RFA: 124). A second-best but more practical solution, Van Parijs concludes, would be a wage tax, which would generate revenue to increase the basic income. A tax would leave the employed with less money than if jobs were untaxed, and the jobless would have a higher basic income to direct toward their next-best options (RFA: 115-16).

18At the end of chapter four, Van Parijs addresses a challenge to the jobs tax:

But does the logic of our approach not take us beyond the realm of what is usually regarded as commodities? Suppose, for example, that there is a shortage of marital partners, whether for a purely demographic or a cultural reason. More women, say, wish to have a husband than there are men wishing to have a wife... How should a real-libertarian handle this situation? (RFA: 127)

19The marriage analogy at first seems ”obviously absurd” (RFA: 127), and the reader expects Van Parijs to distinguish marriages from jobs. But instead, he embraces the comparison, asserting that marriages, like jobs, represent external resources that, in principle at least, could permit some individuals to appropriate for themselves economic rents that should be more widely shared. In the end, Van Parijs doesn’t propose putting this insight into practice: he concludes that a tax on marital partnerships could invade privacy for the sake of relatively little revenue.

20In RFA, marriage poses a logical challenge to the jobs tax: either marriages are assets, just as jobs are, or else there must be some principled distinction. But the question is of more than analytical interest. By liberal tradition, family formation takes place offstage, according to a process that is private and in some sense natural, or at least outside of deliberate institutional design. But if families are assets, it may follow that the liberal state needs to correct the distribution of opportunities to form and sustain families.

21I will suggest that although Van Parijs’s specific analysis (which, we should keep in mind, occupies only six pages out of more than three hundred) may be mistaken at points, his argument helps point the way toward legal, social, and economic changes that should accompany the search for real freedom for all.

Are marriages external resources?

22But before considering the implications of the analogy between marriages and jobs, I want to pause to consider the soundness of the analogy. In RFA, external resources are subject to just distribution. Van Parijs, like Dworkin, endorses an auction mechanism: backed by a basic income, individuals can bid in the marketplace for external resources they wish to use, which might include land, financial wealth, and technology, among other things.

23The contrast is to internal resources. Van Parijs, extending Bruce Ackerman’s idea, adopts the criterion of undominated diversity, which sanctions individual ownership of a wide variety of talents, skills, emotional traits (like ambition and persistence), and accomplishments. One’s internal endowments meet the criterion of undominated diversity if at least one other person considers them superior to her own (RFA: 73).

24At first glance, marriages seem nothing at all like the objects created by nature or technology. They appear, instead, to be internal goods that reflect our vision of the good mixed with our talents, skills, and emotional capacities. They involve intimate relationships with other unique individuals, and the mix of love, economic security, sexual attraction, and companionship that anyone seeks in a marriage is surely her own.

25But jobs, Van Parijs argues, share many of these qualities. People select jobs according to some idea of what is good (or at least palatable) to do with one’s life, as well as an idea of what is possible, given one’s talents and skills. Job choice is highly personal and can have an emotional element. And every job involves maintaining a relationship with specific individuals.

26I would add that marriages, like jobs, are structured by laws and by the socioeconomic conditions created by laws and markets. Although liberal political theory sometimes treats the family as private, feminists and advocates for same-sex marriage have pointed out that legal and social structures help distribute the opportunity to marry – and, indeed, the meaning of marriage. Conversely, although intimate relationships exist outside marriage, they occupy the unprotected legal space that constitutes the absence of marriage. The law enforces a set bundle of rights and obligations inside marriage – and few personal obligations outside it.

27Wealth and class position also shape opportunities to marry. On average, upper-class couples tend to stay married and to rear children in long-term, stable marriages. By contrast, lower-class couples marry at lower rates and, when married, divorce at higher rates. Among lower-class families, nonmarital partnerships tend to be relatively unstable, and single mothers rear a large percentage of children.

28How should we think about class inequality in marriage and family stability? Two perspectives dominate policy debates. Some economists condemn (or at least worry about) nonmarriage among of the poor because it tends to cause or worsen poverty. Marriage, these analysts point out, enables risk-pooling and role-specialization that can enhance lifetime earnings (Thomas & Sawhill 2005). Conservative moralists reach the same conclusion from different premises, reasoning that the immoral behavior of the poor (in not marrying) leaves them worse off. By contrast, other commentators note that causation also runs the other way. Low earners may be less attractive partners for risk-sharing, while the poor health, unemployment, stress, and pressing needs of others that often co-occur with poverty can undermine even determined efforts to sustain stable marital relationships (Edin and Kefalas 2005).

  • 1 Relationships that endanger children ought to be out of bounds. But existing studies that insist on (...)

29The ideal of real freedom suggests a third perspective. Freedom remains central: the decisions people make about family life (like the decisions they make about economic life) should generally be respected. People who choose not to marry should be able to do so.1 Thus, real freedom rejects any state-sponsored moral concern about non-marriage and single parenthood, and it suggests a certain skepticism about consequentialist claims that conveniently reinforce conventional moralism.

30But the ideal of real freedom cannot countenance the existence of barriers to marriage and family formation: if people want to marry, to stay married, and to rear children in household with a stable cast of adults, they should be able to do so. On this view, class barriers to marriage arbitrarily and unfairly exclude people from doing what they might like to do.

31So marriages, like jobs, involve a mixture of internal and external resources. We bring our emotions and our intelligence, our talents and deficits, to relationships just as we do to our jobs. But the social, legal, and economic possibilities of relationships are defined and enforced externally to us, just as they are for jobs. The hardest and most interesting questions relate to a second aspect of Van Parijs’s analogy between jobs and marriages – his assumption, made in passing, that marriages, like jobs, are scarce.

Are marriages scarce?

32Van Parijs argues that jobs pose a special problem of distribution, because the auction does not clear the market. Efficiency wages, the minimum wage, and employment regulation can set a market wage above the equilibrium level, with the consequence that jobholders are paid too much (relative to the true market-clearing wage), and some people who would have jobs in equilibrium are involuntarily unemployed. The resulting shortage of jobs, Van Parijs explains, can co-exist with a low rate of overall unemployment, because people denied their first choice of jobs may take a second-best option (RFA: 109).

33The scarcity question, then, requires a precise analysis. We can grant that marriage partners are scarce in the sense that human beings are limited in quantity. But is there reason to suppose that the "marriage market" fails to function in the same way that the jobs auction fails, leaving a shortage of marriage partners – in the sense of unmet demand for marriage partners by those willing to pay the "market price"?

34These questions seem odd, even offensive, and it is tempting to dismiss them. Marriages aren't bought and sold on the market, and it isn’t at all appealing to suppose that they should be. We sometimes speak of "the marriage market," but to do so risks seeming sexist, invoking ideas of women as commodities to be bought and sold by men.

35Van Parijs assumes, for purposes of argument, that marriages are scarce, because more women than men would like to be married. But this isn't (and isn't intended to be) an empirically – or theoretically – grounded assertion, because (once again) the marriage question is only an analytical challenge in RFA.

36It is tempting, but too easy, I think, to dismiss the question of scarcity in the marriage context. In what follows, I will try to reconstruct a version of the scarcity claim as it relates to marriage. My goal is to show that while marriage today may be a scarce good, institutional reforms might alleviate, even eliminate scarcity.

37To begin, even though the notion of a marriage "market" may seem off-putting, we do understand marriage to be a species of transaction, an exchange. Even taking into account variations, most marriages aim to provide economic security, intimacy, care, and/or a social identity. Taking this list as a starting point, we can begin to think about a "marriage market" in a less crass way. Marriages confer benefits and impose obligations; the exchange of promises (and ongoing acts) of reciprocity, trust, and care constitute a transaction of a kind.

38We can return, now, to the question whether marriages are scarce. A more precise question, following Van Parijs, is whether marriage partners are scarce: any (qualifying) couple can conclude a marriage, and so there is no shortage of marriages, given willing individuals. But are there some people who wish to be married and cannot find a partner?

39A critical point is that ordinary scarcity (the fact that marriage partners aren’t in infinite supply) doesn’t justify taxation. Ordinary scarcity implies only that an asset ought to be subject to market distribution. Instead, we must ask whether there is a shortage of marriage partners in the same way that there is a shortage of jobs. Are there ”efficiency wages” in marriage? Do marriage laws impose a ”minimum wage”? Might desirable spouses demand an above market price to build loyalty?

  • 2 Keep in mind that the failure to find a partner due to ones (lack of) talents or skills or physica (...)

40These questions return us to the realm of oddity. We cannot observe whether the market in marriage partners clears, because neither the actual market ”price” (the content of the marginal exchange) nor the market-clearing ”price” is observable. Compounding the difficulty, we cannot detect quality differences among potential partners that would lead to differences in price. The resulting ambiguity defeats the analysis: when we speak with a friend who says he wishes to marry but cannot, we cannot tell whether he faces a shortage of partners. Perhaps our friend is about as attractive as the average person, and about as loyal but is holding out for an above average match. In that case, his continuing single status doesn’t reveal a market failure. Instead, he simply refuses to pay the going rate or lacks the talents, skills, or values to do so.2

41At this point, the analysis seems to reach a dead end. We can’t differentiate those single people who face a true shortage of partners from those who simply have caviar tastes but a hamburger budget.

Relational freedom and scarcity

42A more promising approach is to return to first principles. Real freedom in economic life consists in offering every person "the greatest possible opportunity to do whatever she might want to do." (RFA: 25). Real freedom thus requires both (1) fair background conditions and (2) access to a wide array of opportunities. Basic income serves both agendas by equalizing material resources and providing a catalyst for a vibrant market economy offering a variety of life options.

43These two principles begin to suggest a notion of real freedom to form relationships – relational freedom. Begin with fair background conditions. Basic income could enhance relational freedom by helping break down class barriers to relationship formation. But basic income may be insufficient, if remaining barriers deny individuals access to possible marriage partners or to the emotional development and life stability they need to offer themselves as plausible partners.

44Imagine a very appealing person who happens to have a low income. Call her Justine. Attractive, responsible, and personable, Justine wishes to marry and would easily find a marriage partner if she were middle-class. But her education in inferior schools has left her to the tender mercies of the lowwage labor market. She scrambles to put together thirty hours a week of work at fast-food restaurants, and, like many other low-income workers, she is often unemployed and has no savings. Her family members face similar disruptions, including risks of homelessness, disability, and illness that are higher than for the middle class.

45With these disadvantages, Justine is perhaps not such an attractive marriage prospect after all. Compounding her situation, Justine is mostly likely to meet others much like herself – at work, at school, and around the neighborhood. Pooling income with a partner could smooth cash flow, but if Justine is very risk-averse, she may worry that if the partner experiences a major crisis, she could lose everything she has worked for.

46Justine’s situation reflects multiple injustices. Some could be redressed by basic income, which could offer Justine (and her potential partners) geographic mobility and a cushion against unemployment and other crises. Measures to promote access to a variety of other potential partners and to combat discrimination in relationship formation would also be needed. Educational reforms and employment reforms could help enhance class mobility and break down discriminatory barriers.

47But measures to promote relational freedom could require cost and effort beyond those required to enable fair opportunities in the economic marketplace. Possibilities include programs like mandatory national service for young people, which might, among other goals, aim to mix young adults from diverse backgrounds at a time of intense interest in relationship formation. Online dating technology holds both promise and pitfalls, because it can permit wider interactions than most of us manage in day-today life – or can be used to create filters and barriers to narrow our interactions with others. These specific policies may – or may not – survive a closer examination. But the core idea is that society ought to pay due attention to the legal and social structures that enhance or constrict opportunities for relationship formation.

48It may seem that relational freedom demands too much of the state. If the law should do more to foster intimate relationships, why shouldn’t it promote other relationships as well? Suppose that Sheila, a competitive swimmer, wants very badly to train with a specific coach, Coach X, but he trains only a few swimmers each year. Doesn’t society owe it to Sheila to do all it can to redress the shortage of Coach X’s time?

49But our two principles imply limits on what society owes Sheila. She ought to receive a basic income, and she ought to grow up in conditions that give her a fair chance to choose and act upon a vision of the good. She ought to have an equal chance to bid on the swim coach’s time. Even so, the swim coach should be able to set his own terms, including not only a swimmer’s ability to pay his fee but also the swimmer’s talent and personality. The larger point is that society need not (and should not) maximize Sheila’s chance at working with a top swim coach, any more than it should maximize Justine’s chance of marrying. Instead, the goal is to provide fair access to a variety of life options.

50The second principle points out an additional deficiency in background conditions: a just society should offer a variety of options for structuring peer relationships, but U.S. marriage law offers (in effect) just two: marriage and everything else. Most states offer just one version of marriage, leaving other relationships largely unregulated; and most states do not recognize efforts to set the terms of intimate relationships by contract.

51The law could offer a broader set of options for defining financial and legal obligations. The law might, for example, provide a "check the box" menu to allow conjugal and nonconjugal couples to specify the duration of the relationship, expectations for support during the relationship and afterward, and the desired arrangements for property ownership, inheritance, and health care proxies and visitation (Kavanagh 2004).

52One potential problem is that a check-the-box regime could permit some individuals to disclaim obligations to vulnerable people. No-fault divorce, for instance, expanded freedom for women and men to exit relationships. But it also left many women poor. How, if at all, should the law respond to the possibility that check-the-box relationships could improve the situation of the powerful at the expense of the vulnerable?

53The problem merits careful analysis, but as a first cut, we can imagine default rules or mandatory terms that could protect women (or men) engaged in traditionally female roles. These protections are most important when children enter the picture, since it is childcare rather than household work that seems, today, to cause the large gap in economic achievement by gender. Accordingly, protections for care work might be built into the laws governing parental obligations. Parents’ obligations to children should not be set in a "check-the-box" manner (because children cannot consent), and the law could layer in obligations by parents engaged in less care work to those engaged in more.

54These questions require further consideration, but their depth and immediacy suggests that relational freedom has promise as a framework for thinking about the institutions that define marriage and other relationships. Scarcity, it seems, isn’t the critical point. Marriage partners may, indeed, be scarce for some people today, but if better institutions could extend to everyone a fair chance at marriage and other relationships, then scarcity is an artifact of present injustice rather than – as in the case of jobs – an inevitable failing of market distribution.

Conclusion: a marriage tax?

55Van Parijs’s discussion of marriage concludes that wives in possession of husbands should be taxed. I am less certain that marriage partners are scarce in principle, but I agree that under current social and legal arrangements they are scarce. I have begun to sketch a first-best approach, which would seek to equalize background conditions and expand the legal menu of relationship options. Society might also, as a second-best or interim matter, impose a marriage tax.

56We needn’t imagine a highly salient (and therefore highly unpopular) line on the income tax form: "Are you married? if so, pay an additional $1,000." Instead, a marriage tax could be built into the rate schedule. Some couples in the United States already pay a marriage tax, but the present tax targets middle-class couples. A concern for relational freedom suggests that wealthy couples likely reap economic rents from current arrangements. Different-sex couples also benefit, today, from laws that enable them to marry while denying same-sex couples the same options. The marriage tax isn’t, of course, a practical political agenda, but it does offer food for thought: marriage-law reform might proceed apace if wealthy married couples otherwise faced a sizable tax burden.

Bibliographie

References

DWORKIN, Ronald (2002), Sovereign Virtue, Cambridge, MA: Harvard University

Press. EDIN, Kathryn & KEFALAS, Maria (2005), Promises I Can Keep. Why Poor Women Put Motherhood Before Marriage, Berkeley: University of California Press.

KAVANAGH, Matthew M. (2004), 'Rewriting the Legal Family: Beyond Exclusivity to a Care- Based Standard', Yale Journal of Law and Feminism, 16 (1): 83-143.

THOMAS, Adam & SAWHILL, Isabel V. (2005), 'For Love and Money? The Impact of Family Structure on Family Income', The Future of Children, 15 (2): 57-74.

VAN PARIJS, Philippe (1995), Real freedom for all : what (if anything) can justify capitalism?, Oxford: Oxford University Press.

WALDFOGEL, Jane (1998), 'Understanding the Family Gap in Pay for Women with Children', Journal of Economic Perspectives, 12 (1): 137-156.

Notes

1 Relationships that endanger children ought to be out of bounds. But existing studies that insist on the superiority of the two-parent family cannot completely control for the fact that two-parent families are richer and that people who stay married likely differ psychologically from those who do not.

2 Keep in mind that the failure to find a partner due to ones (lack of) talents or skills or physical appearance is not (necessarily) unfair, according to the criterion of undominated diversity.

Auteur

Anne Alstott is a professor of law at the Yale Law School. She is the author of numerous articles on social policy and the family, including 'Is the Family At Odds With Equality? The Legal Implications of Equality for Children', S. Cal. L. Rev. (2008); 'Private Tragedies? Family Law As Social Insurance', Harv. L. & Poly Rev. (2010); and 'Family Values, Inheritance Law, and Inheritance Taxation', Tax L. Rev. (2009). She is also the author of two books: No Exit: What Parents Owe Their Children and What Society Owes Parents (Oxford U. P., 2004), and (with B. Ackerman) and The Stakeholder Society (Yale U. P., 1999).

© Presses universitaires de Louvain, 2011

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