Law and Political Economy: Family Law Through A Classical Lens

On the Legal Anthropology of the LPE Movement

The New Digest is delighted to present a guest post by Paul Cupp, a J.D. student at the Antonin Scalia Law School at George Mason University.

“Mittagsrast bei der Ernte” (Lunch Break at the Harvest), Theodor Christoph Schüz 1861

Introduction

The past 50 years of conservative legal thought have been dominated by two kindred strains of ideology. First, there is libertarian originalism, most saliently promoted by the Federalist Society, which has a stranglehold over conservative bench appointments and clerkship placements. The other is an analytical framework that applies the tools of microeconomics to legal analysis, known as Law & Economics ("L&E"), with its intellectual fountainhead at the University of Chicago.

L&E has spread its influence to nearly every substantive area of the law but has its most natural affinities with contract and property law. The language of contract and property rights have in turn provided the lexicon through which family law is discussed.

The Origins of American Family Law

Since the early days of the American Republic, a particular form of contractual thinking took root in family law which, over time, has opened it to manipulation by market forces. The flattening of society produced by American republicanism eroded the inherently hierarchical nature of marriage, which more and more was defined as two autonomous individuals contracting together as opposed to the ontological status, and sacred bond, that results from that contract. Tapping Reeve, a prominent Connecticut judge in 1816, exemplified this attenuated understanding of marriage in his treatise on domestic relations:

"There is nothing in the nature of a marriage contract that is more sacred than that of other contracts, that requires the interposition of a person in holy orders, or that it should be solemnized in a church. Every idea of this kind, entertained by any person, has arisen solely from the usurpation of the Church of Rome on the rights of the civilian."[1]

While it would be a mistake to say all American jurists went to these extremes, and that there weren't remediations over time, this view of marriage has always resided in American law and has recently emerged as the dominant position. This definition has in turn lent itself to the categories presupposed by the foil of this essay, namely, Law & Economics.

Law & Economics: The "Rational Actor" Model

Law & Economics studies the incentives created by legal precedents through the lens of the "rational actor" model. The dominant feature of this model is its jettisoning of nearly all human characteristics of the "rational actor", leaving him with only a desire to satisfy his appetite, measured by "utility", and a disregard for whomever else that process will affect. Economists strain to convince others, most importantly their students, that they are aware of the limitations of the "rational actor" model. They recognize how a stripped-down model of the human person can never account for the entirety of human-economic experience. However, they often forget to reincorporate the human characteristics of the "rational actor" once they get down to drafting policy proposals or, in the case of L&E jurists, making legal decisions.

When marriage is defined solely in contractual terms it becomes particularly susceptible to the corrosive effects of the rational actor model. A disturbing 1988 case, in re Marriage of Wilson,[2] shows how an impoverished definition of marriage leads to vicious results. Tom Wilson divorced Elma Wilson after she suffered debilitating brain damage which left her unable to work. Five years later Tom petitioned a court to cease his alimony payments. The Court saw no legal reason for Tom to continue supporting Elma, so he was relieved of that duty. In the court's view, he didn't actually have that duty at all. In modern jurisprudence, the marriage contract is unilaterally revocable as soon as one of the rational actor's utility stops being maximized by it.

Even more disturbing is the way economic efficiency has been used to justify surrogacy and baby selling. Richard Epstein and Richard Posner, the two foremost scholars of L&E, have both argued for a rent-a-womb surrogacy market based on increased economic efficiency.[3] Posner's economic morality has even convinced him that adoption agencies should operate as profit-maximizing firms in order to allocate babies efficiently.

In recent decades left-wing legal academics, becoming more concerned with identity-based and critical legal studies, have essentially accepted the terms of the L&E paradigm. The whole field, both left and right, is now willing to think within the categories of "economic efficiency," with "normative values" getting short shrift. Even so, a ray of light pierced through the hegemony of L&E in 2020.

What LPE Gets Right: Politics and Economics are Inseparable

In Volume 129 of the Yale Law Journal, a group of four legal scholars published an ambitious article entitled: "Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis."[4] In addition to being a brilliant account of 20th-century legal history, the article gives a scathing critique of L&E, both by attacking its first principles and drawing attention to its undesirable results. The paper succeeds in explaining the disconnect between microeconomics and reality, exposing the invisible wall erected between economics and politics, and proposing a new framework of legal analysis now known as "Law and Political Economy" ("LPE"). In its diagnosis, the paper is strong. In its prescription, it succumbs to the same anthropological errors that doom the ideology it sets out to correct.

Let's start with what LPE gets right. LPE rightly points out that the L&E model builds an insular wall around itself by cutting off political considerations from economic ones. It does this by splitting legal decisions into two buckets: those that promote the "efficiency" of law, and those that promote the "equity" of law. Efficiency can be described as that which maximizes wealth. Equity is concerned with the "subjective" and "cultural values" that aren't easily reduced into an equation, rendering them useless to the economist. The efficiency-equity distinction is nothing but the re-emergence of Hume's infamous "is-ought problem": man can prove what "is" using empirical analysis, but any attempt to derive an "ought" from such knowledge is to impose one's subjective values on reality.

Many philosophers in the classical tradition have ably refuted such a proposition, so we won't carry out that refutation here. Suffice it to say that introducing this distinction into economics has given the field, and L&E by inheritance, a moral justification for its "wealth-maximizing" model, which disregards the moral quandaries it produces. The technical term used to paper over moral considerations is "externality." For the law-and-economist, externalities are for politics to deal with; economics is solely concerned with efficiency.

The atomization and social dissolution that such an approach has produced in society is well-documented and goes far beyond family law. For the readers now emerging from a deep slumber beneath a large rock, I'll simply refer you to a summary of the present state of affairs in an article[5] by the inimitable Phillip Pilkington in American Affairs. LPE captures this critique beautifully, but in doing so, the cracks in its own foundation start to appear.

What LPE Gets Wrong: Individualist Anthropology

When the authors of the LPE framework identify those most impacted by the ascendancy of a wealth-maximizing legal system, they put forth only minorities and women as the victims. This is fine and well and might even be true. But it can only be true as a consequence of another more fundamental entity being subverted by modern economics: the family.

The problem with identifying the marginalized groups of capitalism as only minorities or women, or any other identity group, is that it once again reduces humans to "individuals" in isolation from social ties. When we talk about women or the black community, we aren't talking about an actual group, but more of an abstract collection of people who share a common characteristic. I qualify this statement by recognizing that identity groups can maintain authentic solidarity between members. Even so, these abstract relationships do not compare with the concrete and primordial institution which is the family. A family has actual thick-bonded relationships and must be understood as a cohesive unit with concomitant rights and duties.

By viewing legal anthropology through the lens of individualism, LPE sets the stage for a recurrence of L&E's fatal errors. An ideology that only recognizes the needs of individuals can never make room for the primacy of the family and will tend to subvert the social virtues that are necessary to make societies thrive. LPE can only lead jurisprudence out of economic captivity if it conceives of the person as inherently embedded in relationships, instead of as a utility-maximizing individual.

The Subversion of Women and the Family

In her 2021 book, "The Rights of Women", Erika Bachiochi makes a strong start toward rearticulating humans, and specifically women, as inherently relational.[6] This is an understanding that legal systems once embodied, but have since discarded. Through her book, Bachiochi shows how the regnant economic jurisprudence has afforded immense freedom to women as individuals, but has destroyed it for women as mothers. By combining increased workforce participation with the "rights" to abortion and contraception, modern family law has allowed for the independent female to emerge. One can see how libertarian jurisprudence, which takes subjective right as its fundamental building block, dovetails perfectly with a jurisprudence of "economic efficiency." Legal precedents that prioritize individual autonomy over the common good create an untethered and atomized people. These atomized people make for a cheap labor force, dissolving family bonds into the frictionless mobility of human capital, which indeed is "efficient."

But this is precisely where the LPE diagnosis starts to break down empirically. Yes, the data shows women are more burdened by neoliberal jurisprudence than in prior times. Liberalized divorce laws leave many spouses out to dry, and women are disproportionately saddled with childcare costs after divorce.[7] So we must be specific: which women are carrying this burden? For those women who don't marry, or who put off childbearing, studies show that lifetime income has drawn nearly equal to their male counterparts.[8] The devil is in the details.

It's not that women as individuals have been disadvantaged by neoliberalism and L&E. Rather, these atomizing ideologies have impacted women precisely as mothers, and in their roles as members of a family. No-fault divorce combines with economic autonomy to produce a regime that favors individualism above the family.[9] Again, unless we understand the family as a cohesive social unit with a real ontological status, we won't be able to identify the most pernicious effects of modern economics on the law.

Revitalizing Family Law

While American family law has contained defects from its inception, there are still resources in its past that can be revived. In 1888, the Supreme Court cited marriage as the "foundation of the family and society, without which there would be neither civilization nor progress."[10] The late 1800s saw local jurisdictions protecting marriage as a public institution and building block of the common good.[11] European civil law systems have fared better in preserving the reciprocal rights and duties between spouses. Bachiochi notes that 19th-century civil law reforms did not presume the self-sufficiency of spouses, but rather "continued to recognize the need for familial interdependence, even as it was infused with a thoroughly modern aspirational message of spousal equality."[12] Reformed marriage law in Europe understood humans as always and everywhere embedded in relationships. While more recent developments in European civil law have eroded this healthy foundation, it remains a source from which American jurists can learn.

The classical lawyer, of course, has an even deeper tradition to pull from. To the chagrin of Judge Tapping Reeve, secular legal systems throughout the Middle Ages deferred entirely to ecclesiastical norms on marriage. The civil law only supplemented the canon law on the issue, and the Decretum itself states that the Catholic Church possesses sole jurisdiction over marriage law.[13] While this jurisdictional arrangement is not presently attainable, the doctrine itself can still be revived.

So much of the canon law's vocabulary on marriage is drawn from the Roman jurists that it is worth citing them here.[14] Modestinus is quoted in the Digest defining a "lawful marriage" as "the union of a man and a woman, a partnership for life involving divine as well as human law."[15] In Justinian's words, "marriage is a condition so holy as to bring immortality to the human race, by perpetually renewing it through the birth of children. . . [I]t is proper that we should give close attention to this subject. Other laws do not apply to all men or to all things or to all times. But marriage concerns the whole human race, which is renewed by marriage alone. And thus this topic deserves more attention in our laws than any other.”[16]

Drawing on the exalted definitions of marriage laid down by our forebearers, we can build family jurisprudence anew, but this time inoculated to the corrosive nature of "the economic style of reasoning."[17] Take and read.

Conclusion

To conclude, we can assert that unless LPE breaks free from its faulty anthropology, it will not provide a coherent path forward. Regardless, we have much to admire about its critique of L&E. LPE scholars have created a convenient opening for the classical jurist, who just so happens to possess the human anthropology that can save the LPE project from its own demise. The task now is the education of jurists in this rich tradition, in its family law aspects, and in its purpose of ordering society toward the common good.

[1] quoted in Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth-Century America 20, (1988)

[2] In re Marriage of Wilson, 247 Cal. Rptr. 522, 526 (Ct. App. 1988)

[3] Richard A. Epstein, Surrogacy: The Case for Full Contractual Enforcement, 81 Virginia Law Review 2305 (1995).; Elisabeth M. Landes & Richard A. Posner, The Economics of the Baby Shortage, 7 The Journal of Legal Studies 323 (1978)

[4] Jedediah Britton-Purdy et al, Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis, 129 Yale Law Journal 1600 (2020)

[5] Philip Pilkington, Capitalism’s Overlooked Contradiction: Wealth and Demographic Decline, American Affairs Journal Vol. 6.4 (2022)

[6] Erika Bachiochi, The Rights of Women: Reclaiming a Lost Vision (2021)

[7] Alstott, Anne L., Neoliberalism in U.S. Family Law: Negative Liberty and Laissez-Faire Markets in the Minimal State, Law and Contemporary Problems (2014), Yale Law School, Public Law Research Paper No. 511

[8] The State of the Gender Pay Gap 2020, PayScale.com (cited in Bachiochi, The Rights of Women)

[9] Bachiochi, 247.

[10] Maynard v. Hill, 125 U.S. 190, 208 (1888)

[11] Grossberg, 21-24

[12] Bachiochi, 254

[13] Helen M. Alvaré, Christianity and Family Law, in Oxford Handbook of Christianity and Law 438-39 (John Witte & Rafael Domingo ed., 1999)

[14] John J. Witte, Church, State, and Family: Reconciling Traditional Teachings and Modern Liberties 51 (2019)

[15] Dig. 23.2.1

[16] Justinian, Novellae, in Theodor Mommsen et al, Corpus Juris Civilis, 4th edn. (Berlin: Weidmann, 1912–22), vol. 3

[17] Elizabeth Popp Berman, Thinking like an Economist: How Efficiency Replaced Equality in U.S. Public Policy (2022)