Yes it can

Calpundit writes that marriage "simply can't be privatized" and points a post by Atrios as an explanation. As Modulator states, Atrios hasn't explained anything other than to show what laws pertain to marriage. Atrios highlights in bold certain 'rights' which he says would "be difficult or impossible to establish by private contract" such as:

  • Making medical decisions for your spouse if he or she becomes incapacitated and unable to express wishes for treatment.
  • Filing for stepparent or joint adoption.
  • Applying for joint foster care rights.
  • Suing a third person for wrongful death of your spouse and loss of consortium (loss of intimacy).
  • Suing a third person for offenses that interfere with the success of your marriage, such as alienation of affection and criminal conversation (these laws are available in only a few states).
  • Claiming the marital communications privilege, which means a court can?t force you to disclose the contents of confidential communications between you and your spouse during your marriage.
  • Receiving crime victims' recovery benefits if your spouse is the victim of a crime.
  • Obtaining domestic violence protection orders.
  • Obtaining immigration and residency benefits for noncitizen spouse.
  • Visiting rights in jails and other places where visitors are restricted to immediate family.

Umm...how exactly would these 'rights' be difficult to implement via contract?

If it's a formulation issue, the individuals getting married can tailor their contract toward whatever specific formulation they can mutually agree upon. If it's an enforcement issue, third parties, whether they be the state or otherwise, can be specified in the contract to perform its enforcement.

I don't see the hangup. One way to think of state marriage as it exists today is as a contract itself, as spelled out by laws. This contract specifies obligations and powers of the partners involved, what happens to jointly owned property upon divorce, who gets custody of the children upon divorce, who adjudicates divorces, and who enforces the decisions made. However, it is a one-size-fits-all contract with few exceptions.

The only difference with marriage privatization is that the contract is flexible and negotiable to specific mutually agreed upon terms. So I really don't understand how marriage "simply can't be privatized". Any of the above bulleted terms that pertain to formulation can be spelled out via contract. Any of the above bulleted terms that pertain to enforcement can be similarly dealt with via contract.

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Jonathan Wilde: [Privatizing

Jonathan Wilde: [Privatizing Marriage ?]Umm...how exactly would these 'rights' be difficult to implement via contract ?

If there is no ?State?, then who exactly are you suggesting enforces the contract?

Jonathan Wilde: If it's a formulation issue, the individuals getting married can tailor their contract toward whatever specific formulation they can mutually agree upon. If it's an enforcement issue, third parties, whether they be the state or otherwise, can be specified in the contract to perform its enforcement.

Are you talking about this Reality, or a reality where Anarchy is the rule?

In an Anarchist society what if I try to sue you for the wrongful death of my spouse and you don?t subscribe to the same ?private security force? (i.e. country) that I do? I guess that means I am S-O-L?

Jonathan Wilde: I don't see the hangup. One way to think of state marriage as it exists today is as a contract itself, as spelled out by laws. This contract specifies obligations and powers of the partners involved, what happens to jointly owned property upon divorce, who gets custody of the children upon divorce, who adjudicates divorces, and who enforces the decisions made. However, it is a one-size-fits-all contract with few exceptions.

People get ?Married? because they like the term ?Marriage? (they like the connotation it implies, the years of tradition, marriage as an ?institution?, etc.), but the fact of the matter is that you can simulate every single ?benefit? that marriage entitles you to via other forms of legal contracts (business partnerships, living wills, as some examples).

Jonathan Wilde: The only difference with marriage privatization is that the contract is flexible and negotiable to specific mutually agreed upon terms.

Ever heard of a prenup agreement?

Jonathan Wilde: So I really don't understand how marriage "simply can't be privatized". Any of the above bulleted terms that pertain to formulation can be spelled out via contract. Any of the above bulleted terms that pertain to enforcement can be similarly dealt with via contract.

I think you are allowing the homosexual lobby to control your mind. Next thing you know you?ll be putting those frilly little umbrella?s in all of your drinks.

For the most part I agree

For the most part I agree with you. But I do think that there is a catch or two. First, any contract can be challenged in a court of law. Let's say you have a contract with your partner that he has oversight of medical care decisions in case you are incapacitated (i.e. in a coma)but your mother (who never approved of your gay lifestyle) decides to launch a challenge - then it would be up to a Judge, which may or may not be sympathetic. Same would go in primacy of the distribution is property on your death. Maybe your contract will hold up against a siblings challenge but maybe not. As it stands today, wills get challenged all the time. I recently acted as executor for my father in laws estate and know from first hand experience

Lastly, only marriage confers post-mortem benefits like Social Security, or military pay benefits. My father in law was engaged to his soon to be second wife but bcse they were never officially married, she has been unable to get any of his military benefits including pay and health care.

Hey, is that my old "pal" Serpent? Haven't seen you around much.

Also, except for the

Also, except for the adoption issues (which could be covered with a seperate contract) power of attorney allows all of these things.

Hey Garth! How you doing

Hey Garth! How you doing buddy?

Mr. Balko banned me from his Blog without so much as saying a word. I don?t think he liked being exposed as (or accused of being) a liberal pretending to be a libertarian, but ? who knows what his real motivations were?

I?ve been posting some over at No Treason. You should stop by some time. John Kennedy runs a good blog. BTW, I just bookmarked your site. I?ll have to stop by and chat sometime. I thought you were one of the more interesting posters over at Balko?s.

Garth: For the most part I agree with you. But I do think that there is a catch or two. First, any contract can be challenged in a court of law. Let's say you have a contract with your partner that he has oversight of medical care decisions in case you are incapacitated (i.e. in a coma) but your mother (who never approved of your gay lifestyle) decides to launch a challenge - then it would be up to a Judge, which may or may not be sympathetic. Same would go in primacy of the distribution is property on your death. Maybe your contract will hold up against a siblings challenge but maybe not. As it stands today, wills get challenged all the time. I recently acted as executor for my father in laws estate and know from first hand experience.

Yeah, I agree with what you are saying. I think you have to look at law as an evolutionary process. No matter how hard you try you just can?t seem to ever create the perfectly invincible organism (i.e. contract). Regardless of your efforts some slick lawyer or greedy claimant can always attempt to circumvent the original intent of the agreement.

Garth: Lastly, only marriage confers post-mortem benefits like Social Security, or military pay benefits. My father in law was engaged to his soon to be second wife but because they were never officially married, she has been unable to get any of his military benefits including pay and health care.

I stand corrected.

However, I would point out that business partners can take out life insurance policies on each other. And personally, I?m not banking on the notion that I?m going to be receiving large social security payments at some point in the future. As for the military, I didn?t think you were allowed to be openly homosexual in the army, so I don?t see why military benefits would be an issue?

In an Anarchist society what

In an Anarchist society what if I try to sue you for the wrongful death of my spouse and you don?t subscribe to the same ?private security force? (i.e. country) that I do? I guess that means I am S-O-L?

Read: Police, Courts, and Laws--on the Market.

Well, I skimmed through that

Well, I skimmed through that article, and I didn?t see what I was looking for so perhaps you can point me in the right direction Mr. Ghertner.

Suppose that You and I exist in an Anarchist society ? there is no ?State?, no ?Government?.

Okay, now suppose that I wrong you in some fashion. Maybe you come into my restaurant, and me or one of my waitresses spills a whole pot of scalding hot coffee in your lap.

Now you don?t have any ?contract? with me, and lets assume that we both subscribe to different ?private security forces? (or maybe none at all).

How would you go about pursuing a claim against me? Who arbitrates the claim? Which of us decides who arbitrates the claim? Isn't whichever one of us who doesn't get to decide being forced to do something against their will (just like when you have a government?) What happens if I am unwilling to cooperate?

The Serpent: How would you

The Serpent: How would you go about pursuing a claim against me? Who arbitrates the claim? Which of us decides who arbitrates the claim?

If I had a claim against you I would tell my agency, my agency would investigate, and if they think I have a case they would then contact your agency. If your agency agrees, they wouldn't protect you from my agency. If they don't agree we would go to a third party arbitrator

The Serpent: Isn't whichever one of us who doesn't get to decide being forced to do something against their will (just like when you have a government?) What happens if I am unwilling to cooperate?

All law requires force, if it didn't it wouldn't be law. The difference between anarchy and a government is that the government forces you to pay for the service whether you want to or not. While in anarchy you choose the agency you want to belong to

The answer to your question

The answer to your question is in the article I provided.

Here is a short answer, if you do not wish to read the actual article.

The solution to these kinds of problems is that the protective agencies form agreements with each other about which arbitration agencies to use prior to this kind of conflict.

In cases where there is no such agreement made prior to the incident, the arbitration companies will still find it in their interests to reach a mutually agreed-upon solution, because the alternative is a violent resolution of the conflict, which is unprofitable.

Back to marriage... I can

Back to marriage...

I can see how private contracts can cover most of Jonathan's bulleted list without too much of a change in the status quo. At the most, the holder of a government pension may be required to identify a beneficiary for death benefits, instead of assuming it is the state-licensed spouse. Or the pension company (government or private) may simply pay benefits to the estate of the policy holder and let a written will settle the matter of distributing them.

The biggest obstacle I see to the state getting out of the marriage business is immigration. After all, it would be hard to imagine the INS relaxing laws that define what family members of US citizens/residents are and are not allowed to stay within "the government's" territory.

But not impossible. I had to agree (in a private contract with the government) to support my immigrant wife for her first five years in the US before she was allowed to live with me or her children, and I had to prove that I had the means to do it. We also had to be interviewed by the Consular to make sure that she approved of our fourteen-year relationship. INS could always demand the first condition and drop the second. Then someone could bring four dependents to the country if he proved he could support his five-member household. It wouldn't matter if it was his four wives, or a wife, two children and a mother-in-law, or a husband and two children.

Of course, I am gritting my teeth as I suggest this. I don't believe the state should be involved in immigration either (beyond perhaps making sure that fugitives aren't crossing into or out of the boundary of their jurisdiction, and even the 54 states and territories of the US don't seem to feel they need this). I'm just wondering what the minimal obstacles are for removing the state's licensing of personal relationships.

The Serpent: How would you

The Serpent: How would you go about pursuing a claim against me? Who arbitrates the claim? Which of us decides who arbitrates the claim?

The Mongoose: If I had a claim against you I would tell my agency, my agency would investigate, and if they think I have a case they would then contact your agency.

What if I don?t have an agency, or what if I have directed my agency not to cooperate with You and your agency?

The Mongoose: If your agency agrees, they wouldn't protect you from my agency. If they don't agree we would go to a third party arbitrator.

You can go to some third party negotiator! I want nothing to do with it.

(Sounds like you?ve just been screwed, and I didn?t even need a ?government? to do it.)

The Serpent: Which of us decides who arbitrates the claim? Isn't whichever one of us who doesn't get to decide being forced to do something against their will (just like when you have a government?) What happens if I am unwilling to cooperate?

The Mongoose: All law requires force, if it didn't it wouldn't be law.

Yeah, and where the Force enters the equation, is the same place the Government enters the equation. So long as you don?t need to use any force you don?t need a government.

In other words, your anarchist system should work fabulously in fantasy-land.

The Mongoose: The difference between anarchy and a government is that the government forces you to pay for the service whether you want to or not. While in anarchy you choose the agency you want to belong to.

More accurately -- The difference between anarchy and a government is that (ideally) the government forces you to accept the consequences for your actions regardless of whether you want to or not. Whereas Anarchy allows you to pretend that you don?t have to accept (pay) the consequences for your actions.

What if I don?t have an

What if I don?t have an agency, or what if I have directed my agency not to cooperate with You and your agency?

Then you and your agency would be "fight[ing] a hopeless war against the rest of society." No protective agency would last very long if it chose to resolve its conflicts with violence rather than peaceful arbitration.

You can go to some third party negotiator! I want nothing to do with it.

Then you agency would force you to go. Alternatively, see above.

Yeah, and where the Force enters the equation, is the same place the Government enters the equation.

Wrong. You are not differentiating between just and unjust uses of force. Self-defense is a just use of force. Coercion is not. Anarchy neither requires nor promotes coercion. Government does.

If you didn't want to

If you didn't want to negotiate with me, they would probably just pay off my agency because it may be cheaper for them to do that. And then they would raise your rates. Much the way insurance works. So you see, you would be paying the consequences. Don't you just love capitalism?

Micha, his agency wouldn't

Micha, his agency wouldn't necessarily force him to negotiate, they may negotiate with my agency without him. And just raise his rates. If he doesn't pay they could either seize his property or just refuse to protect him any further. If he continues to behave like this with other agencies he would be blacklisted from all agencies. Come to think of it, no actual force has to be involved at all. Just the threat of being blacklisted would most likely get him to cooperate

Micha Ghertner: Then you and

Micha Ghertner: Then you and your agency would be "fight[ing] a hopeless war against the rest of society." No protective agency would last very long if it chose to resolve its conflicts with violence rather than peaceful arbitration.

What war is my agency fighting? Refusing to deal with your agency is not war, it is just refusing to deal with your agency. If you want war, it is going to have to be YOUR agency that declares it.

Besides, what makes you assume that I even belong to an agency? Or maybe my agency is run by Tony Soprano?

Micha Ghertner: Then you agency would force you to go.

You mean JUST LIKE THE CURRENT GOVERNMENT DOES NOW?

How is that any change in the status quo? How is that ?Anarchy??

Serpent: Yeah, and where the Force enters the equation, is the same place the Government enters the equation.

Micha Ghertner: Wrong. You are not differentiating between just and unjust uses of force.

No, you are not differentiating between Just and Un-Just use of ?Government?.

All you are doing is making the exact same (fallacious) argument I hear against hand guns. To you all ?government? is evil, just like the anti-gun crowd believes that all ?hand guns? are evil. The tool itself (the mechanism) is neutral. It has no motivation or purpose in and of itself. It only serves the purpose of the consciousness that wields it.

Instead of focusing on the real problem which is Immoral Individuals you want to create a convenient and simple-minded scapegoat in the form of an inanimate object or mechanism.

Micha Ghertner: Self-defense is a just use of force. Coercion is not. Anarchy neither requires nor promotes coercion. Government does.

Law enforcement requires coercion (just like your private security forces would require it above). Unless you are prepared to assert that enforcing the law is immoral then your argument that coercion (or government) is always immoral is flawed.

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The Mongoose: If you didn't want to negotiate with me, they would probably just pay off my agency because it may be cheaper for them to do that. And then they would raise your rates. Much the way insurance works. So you see, you would be paying the consequences. Don't you just love capitalism?

Yeah, but like I said, what if I didn?t ever hire an agency to begin with? Then I guess your agency would have to compensate you itself, and then it would raise your rates, and the rates of its other customers.

Refusing to deal with your

Refusing to deal with your agency is not war, it is just refusing to deal with your agency. If you want war, it is going to have to be YOUR agency that declares it.

Yes, it will be my agency. If I have a claim against you, and you or your agency refuse to cooperate with the investigation, there are a number of possible options. If the claim is small, my agency might simply reimburse me and write off the loss rather than engaging in a full-scale conflict with your agency. If the claim is large, my agency might take whatever it believes to be my property directly from you, until you are willing to cooperate.

Besides, what makes you assume that I even belong to an agency? Or maybe my agency is run by Tony Soprano?

If you do not belong to an agency, then the solution is simple. My agency will offer you the choice: either provide evidence responding to my claim, or prepare to have your property taken as reimbursement. The mafia question is already addressed in the previously cited article (as are all of your questions, incidentally).

Micha Ghertner: Then you agency would force you to go.

You mean JUST LIKE THE CURRENT GOVERNMENT DOES NOW?

How is that any change in the status quo? How is that ?Anarchy??

Because you agreed to the arrangement when you signed a contract with your agency. You agreed to follow its rules. You knew these rules before you joined.

No, you are not differentiating between Just and Un-Just use of ?Government?. All you are doing is making the exact same (fallacious) argument I hear against hand guns. To you all ?government? is evil, just like the anti-gun crowd believes that all ?hand guns? are evil. The tool itself (the mechanism) is neutral. It has no motivation or purpose in and of itself. It only serves the purpose of the consciousness that wields it.

Government is not simply a neutral tool. It is funded through taxation, which is necessarily unjust. It maintains a monopoly on the use of force, which is fundamentally unjust. While it is true that many of the things government does could be done in a way that would not violate justice of a private organization did them instead, that does not absolve government of its guilt.

Law enforcement requires coercion (just like your private security forces would require it above). Unless you are prepared to assert that enforcing the law is immoral then your argument that coercion (or government) is always immoral is flawed.

Law enforcement does not require coercion. Law enforcement require force (hence, law enforcement). Responding to coercion is not coercion. Responding to coercion is self-defense, i.e. a just use of force.

The Serpant: Yeah, but like

The Serpant: Yeah, but like I said, what if I didn?t ever hire an agency to begin with? Then I guess your agency would have to compensate you itself, and then it would raise your rates, and the rates of its other customers.

Ah, I'm glad you understand the concept of insurance. The Mongoose is pleased. :)

If the agressor can be pressured into paying (or forced if you perfer that term) then that will happen. if not, then the rest of that agencies customers will carry the cost. That's what insurance is all about.