just finished a new typesetting for Kevin Carson’s “The Iron Fist Behind the Invisible Hand.” Part of this will go into this month’s Market Anarchy zine, “The Subsidy of History.” The rest will also be available as a long-form, separate booklet.

Replying to my brief parenthetical comment about default outcomes in case (c) that don’t uncritically privilege parents of an adult son or daughter over someone she has been living with for years, you write:

TracyW: You do realise that sometimes people do live on platonic terms with flatmates for years?

Right, which is why common-law marriage has historically depended on features other than simply the cohabiting in order to determine an intention to be treated as married, with the kinship relationships that come along with that. In particular, it has usually depended on (1) a recognition that the relationship is probably sexually “consummated,” and (2) the public “habit and repute” of the couple to present themselves as husband and wife, even without any definitive public announcement or witnessed formal ceremony. (If your idea is that existing forms of state marriage have only been recognized where the high standards of formal public ceremony you mentioned above were met, then of course your idea is a historical fantasy.) I didn’t go to great length to specify these “non-platonic” features of the relationship because I was answering on the assumption that I could take your characterization of the relationship, when setting up the hypothetical, more or less in good faith, but if you didn’t intend for those “non-platonic” features to be assumed in discussing the hypothetical, then we can go back and talk about different possible cases.

In any case, in societies with governments, it has typically been believed that simply privileging A’s parents over B in the absence of a formal marriage ceremony, no matter how intimate and how long-standing A and B’s relationship may have been, would be obviously unjust, so they have adopted legal conventions and customs that recognize a marriage in many cases where there had been no formal ceremony,(*) and somehow, even though in the past it was actually far more common for unrelated people to live in the same house with each other, folks largely managed to figure out ways around problems like crazy flatmates you’d never want to marry, etc. But a society without government is of course not a society without any local customs or conventions, and if A and B live in an anarchic community then the community they live in will no doubt have developed local customs about determining the default next-of-kin which are no less adaptive and creative than what people came up with under states. (Indeed, they might well come up with some new conventions that do a better job than the traditional customs, e.g. in recognizing and taking seriously the forms of intimacy in same-sex relationships where presumptive next-of-kin status might be reasonable, or possibly in considering other kinds of intimacy other than sexual intimacy, etc.)

But, in any case, no matter how crazy or unsuitable the conventions that might be developed in an anarchic community, those who do not like the default customary outcomes will not be constrained to stick with those customary outcomes by any territorial monopoly on legal recognition; they will be free to explicitly designate that they don’t want the default customary outcome. (So if A really has good reason to worry about her crazy flatmate, or crazy live-in sex partner, or whatever, being recognized as next-of-kin, even though they don’t publicly indicate any intent to be treated as next-of-kin to each other, etc., then it is open to A, and up to her, to make some effort to explicitly designate someone else.)

(* States have been moving against this trend recently, and many, especially in Europe, have eliminated many categories of “irregular” marriage from their codes in the past few decades. But this is a historical exception, not at all the rule; and it should be no surprise that the general trend in modern states has often been to demand totalistic licensing, and compliance with formal ceremony at the expense of substantively just outcomes. So much the worse for nationalized marriage.)

TracyW: Modern Western states provide numerous other legal conventions, entities, etc, for those who wish for alternatives to the current norm. One can set up partnerships, trusts, living wills, power-of-attorney, etc. For example monasteries and nunneries for example still operate in modern Western societies and must have some legal set-up to own or rent property.

I am aware of all of these mechanisms, and some others you didn’t mention. (For example, in the past some gay couples would actually have one partner legally adopt the other in order to kludge their way around the range of next-of-kin issues involved in the absence of marriage.) I have some reasons for thinking that these are not fully adequate as solutions. (Both because of some significant legal gaps because of what they can and cannot cover in normal cases, and also because of the extraordinarily high and discriminatory transaction costs they can impose in setting them up, etc.) But this is of course simply taking the course of denying that there is any significant problem currently with respect to gay marriage. If you want to believe that, I will disagree with you, but the disagreement has nothing essentially to do with a disagreement about anarchism, government, polycentricity, monopoly, or any of the other issues you’ve tried to tie it to; it’s a disagreement about the need for gay marriage (or other alternatives to the dominant model), not a disagreement about whether or not market anarchy can successfully recognize it.

Of course “partnerships, trusts, living wills, power-of-attorney, etc.” could be set up and reocgnized in the polycentric institutions of a market anarchy as well or as poorly as marriages or any other kind of agreement. If (for the sake of argument) I granted that the state really does handle these tolerably well, and if these really do suffice to handle alternative models of marriage or kinship, then their availability might give left-wing market anarchists some reason to abandon the specifically left-wing considerations in favor of their radical approach to problems of state marriage (e.g., it might undermine a specifically gay-liberationist case for getting the state out of it). But it hardly affects other, independent reasons that market anarchists have for favoring the radical approach (i.e., it doesn’t do anything to undermine the general libertarian case for getting the state out of it).

Now as a few of your questions have indicated, perhaps you didn’t understand that Gary was in fact an anarchist, or that he was introducing positions for which he has both specifically left-wing and also specifically libertarian reasons for advocating. (Or that he intended for the libertarian reasons to apply quite broadly, i.e. to disputes over land, contracts, etc. quite broadly, not only to questions about marriage.) If you didn’t realize that, well, now you know. Or perhaps you fundamentally misunderstood what getting the state to depart from recognizing marriages means. (Certainly, some of your questions seem to indicate that you think Gary is proposing a society in which nobody pays any attention to formal ceremonies, rather than simply a society in which formal ceremonies no longer require the backing of a territorial monopoly.) Or you may perhaps want to have an argument which is not about recognition and dispute resolution in a market anarchy, but instead about the details of the left-wing case that there are significant political problems in state marriage as it currently exists (e.g. problems having to do with gay couples or people with other alternatives in mind), which one might want to take either a reformist or a radical approach towards. If so I’m happy to leave that argument for someone else to take up with you.

In any case dragging the conversation into a general discussion of the basic mechanisms of dispute-resolution under market anarchy seems like a change of subject, when the subject is really your views on gay marriage rather than Gary’s views on what to do about it.

Me: A does not need parental agreement to designate someone else as his proxy for medical decision-making (or any other kind). It’s not a “right” that they have to waive (A is their child, not their property); it’s a privilege that they have as long as A still consents to give it to them.

TracyW: But A is unconscious, and unable to consent to anything.

It is hard to know what you’re trying to get at at this point, unless you are simply forgetting the question in debate, or changing the subject without saying so. You asked about what A should do “if A is thinking ahead of time, and wants to sign a contract to keep his parents out of the decision.” Of course if A is thinking ahead of time, then the answer is what I said: A doesn’t need the consent of A’s parents. If you want to change the question to ask what A’s supposed to do once A is already unconscious (?!) then of course the answer is that A no longer has a chance to do anything about it, and disputes will have to be handled according to the customary social processes we’ve been discussing. But that’s not a problem that’s unique to anarchy; in any sort of society at all, with or without government, if you don’t make any effort to get an outcome other than the conventional default, then you’re going to be stuck with the conventional default. The question then becomes whether the conventions available ought to be based on the unilateral authority of a territorial state; or whether it ought to be based on something else (e.g. freely-developing local custom, etc.).

TracyW: Indeed, what happens under your polycentric, overlapping outlets if one of those legal outlets is heartily opposed to same-sex sexual relationships? …

Then they most likely won’t recognize it. And people who want to have their same-sex sexual relationships impact decisions about next-of-kin then they will no doubt make some effort to ensure that the “outfit” certifying their relationship is one that doesn’t have a hearty opposition to same-sex sexual relationships. (If you want to have a same-sex marriage, and you also want to get married in the Catholic Church, you’re probably going to have a problem. But not a problem that can really be solved without either you or the Catholic Church to make an unacceptable concession on a question of conscience. So probably you will have to get married elsewhere. But part of the point of polycentrism is to ensure that there are at least plenty of elsewheres to get married.)

If your question is, what’s to keep the hospital from operating on the Catholic Church’s views about your marriage, rather than operating on the views of the place where you got married, then my answer is that in an anarchic society it would be pretty odd to expect hospitals to select a completely arbitrary authority to certify or nullify a marriage, rather than selecting the outfit the married couple had actually chosen to certify it. If you’re asking what’s to keep a doctor who has, or a hospital which is run by people who also have, hearty religious or moral opposition to same-sex marriage from only listening to outlets whose authority they accept (say, a Catholic hospital might only accept marriages within the Catholic Church, or might only accept marriages that meet some of the RCC’s criteria, etc.), then the answer is that in an anarchic society nothing will forbid the hospital from doing that (in the sense of outlawing it), but nothing will forbid people from seeking care from other hospitals or other doctors, and if this is likely to be a problem for same-sex couples then those couples can always take some care to ensure that their medical providers will be people who do recognize their marriage. (Similarly, if you want to get contraception, you will probably have to take the care to look for an apothecary who is willing to sell it, etc.) If your question is what’s to keep an outfit that’s really heartily opposed to same-sex relationships from forcibly intervening to stop the decision from being made by a tolerant outfit that allows them, and a doctor who accepts the tolerant outfit’s certification, then the answer falls under the general answer to questions about why non-governmental defense associations won’t go to war with each other whenever they have a dispute. (You might see Roderick Long’s shorter discussion of this in Libertarian Anarchism: Responses to Ten Objections for a start; this is also widely discussed in more or less all market anarchist literature about private dispute-resolution and defense agencies.)

TracyW: The question is what counts as an explicit waiver. … Given the high incentives to lie when large sums of money are involved, a community might want to set a high level of proof as to what counts as an agreement, for example, maybe two witnesses. Or maybe as well as the witnesses, some respected member of the community there who can check that the legal forms are followed, and who has a reputation in the community to worry about. Plus everyone involved could sign a piece of paper, which could be put on record somewhere known.

Maybe you’re right about this, and maybe you are not. But whether you’re right about this or not, you do seem to have lost track of what we’re arguing about. Of course I never said (and Gary never said) there was anything necessarily wrong with people choosing to use something like the presence or absence of a public, documentable marriage ceremony as part of determining the most reasonable choice for next-of-kin in case of situations (b) or (c). The claim Gary argued for is the claim that publicity, documentation and ceremony in this regard needn’t, and shouldn’t, have anything in particular to do with state recognition. Nothing at all that you describe in this passage (witnesses, disinterested or respected officiant, formal ceremony, written and authenticated documentation) requires a territorial state be involved at any point in the process. If your argument is that marriage may in some cases be a useful social institution, which need not have anything to do with a state, then that’s not an argument against Gary’s position. If your argument is that marriage must be licensed by a state to be useful, you haven’t given any argument at all for that conclusion.

TracyW: If you want to abolish the state entirely, that’s one thing. But if you’re still going to have a legal system, recognising marriages strikes me as a logical thing for it to do.

This involves an elementary mistake. If Gary thought that the only form of “legal systems” available were monocentric legal systems administered by territorial states, then he would be “contemplating a role” for the state in adjudicating land disputes (say). But he doesn’t think that. So inferring that his comments about a “legal system” entail a role for a government to administer the legal system is premature. (Gary is in fact an anarchist and advocates the general and complete departure of the state from legal systems, not only in the case of marriage.)

TracyW: With over-lapping, competing, polycentric outlets, what’s the process for deciding if A made such a commitment to his girlfriend?

I don’t want to be rude, but a question like this strikes me as little more than a belligerent lack of imagination. Can you really not figure out some minimally creative way that people might try to deal with this? You might start by asking around. Or you might count on the parties to the dispute to provide evidence of a past public commitment one way or t’other by A (since, if they intend to have their claims taken seriously, they have an obvious incentive to point out the basis for those claims). In your imagined case, if we presume that we’re living in a community where the local norm is that the next-of-kin will be presumed to speak and decide for a patient who is unable to speak or decide for herself, then, given that context, either (a) A has taken it upon herself to publicize an explicit waiver of this presumption, and to vest the decision-making with someone else; or (b) A has taken it upon herself to publicize an explicit choice that someone should be considered her next of kin (for example B, which A might have done when she married B), or (c) A has not taken it upon herself to do either of these things. Ex hypothesi, we were supposed to assume that (a) was not the case, but you said nothing about whether (b) had been done or things had been left to (c). If (b) had been done, then of course there is a perfectly clear answer, and whoever did the publicizing of A’s marriage to B would presumably also have an interest in making it known should the question ever come up whether B really was A’s next of kin. (And in any case B would have every reason to point the doctor to these folks if the doctor had any questions.) It would then of course be up to the publicizing folks to produce any documentary evidence that the situation might call for. (Maybe they didn’t keep any documentary evidence of a public ceremony. If so, they’re evidently not very good at documenting marriages, and I expect anyone who seriously cared about the outcome would want to entrust the formalities with somebody else.) In case (c), then it seems like A didn’t really care too much about making sure that B would be able to make decisions for her, and the best that we can do is to rely on whatever local conventions may have developed for sorting these things out. (If A is a grown adult, and A and B have been living together for years, with or without explicit commitments about next-of-kin issues, then I suspect a local convention that strongly favors the parents in the absence of any explicit declaration is likely to lead to some pretty unjust outcomes. But then that’s a reason to develop some different social conventions.)

And if A is thinking ahead of time, and wants to sign a contract to keep his parents out of the decision, how can he do so in a way that will stick if his parents don’t agree to any such contract?

Easily. A does not need parental agreement to designate someone else as his proxy for medical decision-making (or any other kind). It’s not a “right” that they have to waive (A is their child, not their property); it’s a privilege that they have as long as A still consents to give it to them.

I agree that in an anarchist society there would be definite interest for both parties to agree on an arbitrator when signing a contract, which would get around the problem with polycentric, overlapping outlets …

Well, this seems like an odd way to put it. I deny that there is any “problem with polycentric, overlapping outlets” to be solved. Choosing one outlet among many is not the same thing as solving a “problem” with having many outlets; when I say, “Let’s go to Cottage Inn for dinner tonight, not Blue Nile,” that’s not exactly solving some “problem with polycentric, overlapping” competition in food.

So why seek the departure of the state from this particular area?

Well this seems simply like a flat denial of the central problem that Gary’s comments were introduced to discuss (the problem that gay couples, among others, have in dealing with these issues by means of a marriage through the exsting legal system). Because it is not actually something the state does reasonably well. Notably, the state currently engages in extensive discrimination against those who attempt to make use of existing legal forms for handling these situations; it fails to serve the specific real-world needs that you claim it is serving “reasonably well” for significant numbers of couples. There are three ways of trying to deal with these problems: you could deny that these forms of discrimination really are a problem (i.e., there’s some good reason for them); or you could try to deal with them by urging the state to make those legal forms of recognition more general and universally available, without changing the monopolistic control over the recognition of marriages (and family relationships more broadly); or you could try to deal with them by getting rid of the monopolistic control over the recognition of marriage (so that other kinds of social entities, non-institutionalized social processes, social conventions, etc. could emerge to handle it, for those who wish for an alternative to the current norm). But given left-wing market anarchist commitments to LGBT liberation (among other left-wing values), a left-libertarian is hardly going to deny that there is any problem here. And given left-wing market anarchist commitments to anarchism, there seem to be some strong reasons to favor the radical and anti-statist solution over the reformist and statist solution. One reason being the great likelihood that, whatever reforms you may be able to make in the short-term under the right circumstances, anarchists typically point out the likelihood that any monopolistic, politically-administered social entity is going to be captive, to a lesser or greater degree, to dominant social norms and political power structures. Thus, when you write:

It strikes me as much more convenient for there to be a central registry of marriages.

… I’m inclined to doubt that it really is as “convenient” as you think it is for everyone concerned. It might seem more convenient, if you haven’t got any worries about subjecting the definition of marriage to a uniform, centralized community monopoly in a moral and religious environment where many people have deeply conflicting ideals about marriage. But many people (LGBT people among them, not to put too fine a point on it) may have some reasons for thinking that community monopolies will tend to reflect some pretty strong bias in favor of the dominant ideals of marriage in the community, and may not allow a space for alternative ideals. Certainly this has been the outcome so far.

n8chz:

BTW, just how confident are you that, once ALL the stuff that's got to go is gone, the going rate for entry-level labor will pay for the going rate for entry-level housing and other necessities?

Well I think there is very little anyone can confidently predict for sure, but if you want to take a look at likely tendencies, then (1) I'd say that in freely competitive markets there's a something-more-than-coincidental relationship between available incomes and the cost of basic housing, because one of the basic pressures on bidding for houses are the incomes available in the communities where you'd be living. Of course there are many other issues that affect housing prices, notably the markup from development rackets, landlords, property taxes, the effects of land speculation, etc. but then precisely the sorts of liberation from Land Monopoly that I mention above would, I argue, have the effect of dramatically reducing, if not simply eliminating, exactly those sorts of factors. (2) In any case one of the major effects of the kinds of liberated markets that I'm calling for is an across-the-board dramatic reduction in recurring housing costs, so that far more people would own their housing free and clear, many would be able to gain housing without any cash expenditure at all through the direct exercise or exchange of personal labor, etc. Other fixed costs of living (e.g. medical costs, credit, access to culture and entertainment, food costs, etc.) would also be dramatically decreased, all forms of taxation and monopoly rents would be eliminated; and to a great extent transferred into grassroots, worker-controlled organizations such as mutual associations, co-ops, unions, or to ad hoc or informal-sector arrangements, rather than being in the hands of powerful for-profit corporations. So aside from any economic reasoning about the connections between incomes and housing demand curves, I'd also rest a fair amount of confidence in simply the absolute magnitude of reductions in fixed costs of living to ensure that working folks would generally be in much less precarious positions when it comes to covering the costs of living (housing included).

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