Cheating In The Context Of Marriage And Coase
I'm not a principled advocate of monogamy; it's not for everyone, and I am after all a fan of Big Love. I am however a principled advocate of honoring your contracts and promises. If you don't want to practice monogamy, here's an idea: Don't agree to it. If you want a non-traditional marriage, write a contract for it. Don't accept the standard-issue version, then pretend that you didn't have a choice.
I agree with Bryan: Once you make a promise, you should keep it. Dan Savage also agrees with Bryan; I quoted Savage qualifying his argument against the norm of monogamy: "Which is not to say that people shouldn't honor their commitments."
So Dan, Bryan, and I are all in agreement: People should honor their commitments. But what Dan and I are questioning, and Bryan seems to miss, is whether the default rule of a life-long commitment to a single partner is a wise commitment to make, or a wise commitment to reinforce through social pressure. As Tom points out in the comment thread to Bryan's post:
[P]rivate contract theory doesn't help justify Bryan's simple judgments about cheating. They make more sense in the context of people who choose to make strong public commitments of fidelity, as in covenant marriages. And they might make sense if Bryan wants to start putting some great value on the boilerplate statements about 'sickness and health' made during the wedding, or if he was was approaching it from some religious or ethical system that was premised on fidelity or on a conservative idea that a stable society requires that all publicly-recognized unions include a commitment to monogamy. But he isn't.
Private contracts have lots of terms, express and implied, and they are subject to modification. So it's very hard for the public to know the terms of the contracts and say who is in breach.
One of the things the Coase theorem teaches us is that in a world of positive transaction costs (which is in fact the world we inhabit), initial property allocations can be very important. And so too, in a world of positive transaction costs, default rules in contracts can be very important. And so too, in a world of positive transaction costs, default assumptions implicit in social norms can be very important.
And surely, for many people, signing a prenuptial agreement different from the standard default option represents a significant transaction cost. As Bryan himself argues in one of the posts he links to:
If you think that Nudge doesn't matter, take a look at marriage. Only 5-10% of marriages have prenups; everyone else goes with the "default option" - the family law of the state in which they reside.
Why do people go with state law? You could say, "State laws are so wisely crafted that no one would want anything else," but that's laughable. The real reasons, as Heather Mahar explains, are (a) people underestimate their probability of divorce, so they barely plan for a likely event, and (b) asking for anything other than the default option is a bad signal...
Bryan goes on to argue for his preferred policy outcome: Eliminate default rules entirely by getting state governments out of the business of writing default rules for marriage.
There are a few problems with this. First, even if the government got out of the marriage business, people would still be just as bad at estimating their probability of divorce. Well, maybe not just as bad. Perhaps if people were forced to think more about the possibility of divorce in the process of writing a prenup, they might better estimate the correct probability of their own relationship's demise. But the optimistic bias would still exist.
Second, getting the government out of the marriage business wouldn't necessarily eliminate default rules. People may just prefer not having to think about unhappy things like possible divorce, and therefore favor whatever boilerplate marriage contract the market is most likely to offer. And the market is most likely to offer those contracts that reflect existing social norms. But these social norms are precisely what Dan Savage and I are questioning! A social norm in favor of monogamy in marriage would still exist, all else being equal other than removal of government from the marriage business - just as a social norm in favor of monogamy in dating relationships still exists, even though in dating relationships, the government does not play (as) noticeable a role in shaping expectations.
Leaving the norm of monogamy unchallenged assumes that it is the most efficient one for resolving social conflict. But Bryan doesn't make this assumption and neither do I. As Dan Savage pointed out, "Elevating monogamy over all else—insisting that it, and it alone, is the sole measure of love and devotion—destroys countless marriages, families, and careers." Were it not for the expectation of monogamy, seeking other sexual or emotional partners would not be considered an act of cheating, infidelity, unfaithfulness, or disloyalty. Were it not for the expectation of monogamy, there would be no conflict, and thus no reason to feel lied to, get a divorce, and disintegrate the family structure.
There might still be conflict involving issues of jealousy, and as I said in my post, it is an open question whether jealousy can be overcome, or if jealousy is so deeply ingrained (biologically and/or culturally) that it would be a futile task to try. But surely the social norm in favor of monogamy reinforces this feeling of jealousy; if people didn't expect their partners to be monogamous, partly because society expects partners to expect this of each other, people wouldn't feel as jealous when their partners failed to conform to a non-existent social expectation.
By analogy, our society does not have a social norm against having more than one child (fortuitously, given Bryan's pro-natalist position). Yet even without this social norm, children are often jealous of the attention their parents give to their siblings (attention being a scarce resource). Imagine how much more jealous these same children would be of their siblings (and how much angrier these children would be at their parents) if their parents violated the social norm in a society with a norm against having more than one child.