folder Filed in Essays, Political Theory
Should Adultery Be Illegal? A Libertarian View
CJay Engel comment One Comment access_time 9 min read

Recently in a libertarian Facebook the issue of adultery was brought up. Should adultery– sexual unfaithfulness in marriage– be illegal on the grounds that it is a breach of contract? It is good that we consider things like this once in a while as it provides an excuse to go back to the fundamentals and correct some rhetoric that often comes up in quasi-libertarian circles, especially as it relates to crime and victims.

Libertarianism is a theory that seeks to answer the question of which acts of coercion are permissible, and which are impermissible, in society. 99% (or whatever percent of the population are not in Congress) of people agree that you cannot go over to a random person’s house and kill that person because you feel like it. This is an example of impermissible force. Probably the same percent of people agree that a person or group of people can, in spotting a rapist in the act, rush over and pull that rapist off his or her victim. This is an example of permissible coercion. Somewhere between these two extremes is a standard that is to be employed to determine whether most, if not all, types of coercive action are allowed. Rothbard once noted:

For it should never be forgotten that a libertarian society does not mean the total absence of coercion but only the absence of coercion against noncriminals. Those who invade the rights of others by violence deserve their proper check and punishment by the force of law.

Without here defending the reasons or the application, the libertarian theory is that the only types of coercion that are permissible are those that are in defense of property (a person’s body is included in this category), or are otherwise in response to a previous initiation of aggression. Stated from the opposite perspective, no individual is legally allowed to aggress against another individual’s property unless the latter had initiated— or is currently initiating— aggression. This is the source of our “rights.” What we mean by rights, strictly speaking, is purely in terms of what others are not allowed to do to us. The initiation of aggression is, in the libertarian view, the meaning of crime.

Therefore, for example, technically speaking, people don’t have a right to life in a positive sense. That is just a historically convenient phrase to articulate the fact that no other person should be legally allowed, to aggress against one’s life. If someone did have a right to life in a positive sense, what that would mean is that one has the right to force someone else to keep him alive. But people don’t have positive rights, they have negative rights.

Thus a libertarian society is one in which the initiation of force is illegal and all voluntary acts are legal.

Putting a side for a moment the more technical details of whether a “government” should be a state (minarchism) or provided for organically on a free market (anarcho-capitalism or propertarianism), let’s just, for the sake of the argument, claim that it is the role of “government” to be an entity dedicated to take part in permissible types of aggression. That is, the government is theoretically intended to aggressively act on behalf of a victim of a crime (the right to self-defense being delegated by the victim to this entity) or to aggressively act in a punitive sense against a criminal (prosecution).

If something is illegal, this means that the action can be legitimately responded to with coercion. If something is legal, this means that the action cannot be legitimately responded to with coercion– the actor is free to act in this way.

Now then, should adultery be illegal or legal? That is to ask: should adultery be responded to with coercion or with non-aggression? After all, adultery certainly has painful ramifications. But is an entity that responds to aggressors the one that should respond?

The answer, of course, depends on whether adultery is a violation of a spouse’s property right. If one’s spouse has an affair, has the adulterer aggressed against the innocent spouse? The framing of the problem immediately resolves the sometimes foggy language of whether the spouse (or children) was hurt by the deed. Of course (s)he was hurt. So, perhaps were other family members. Emotionally and spiritually especially. But that is not the proper question. We are hurt by each other— by our friends and colleagues and teachers and bosses and so on— all the time. But does someone have a right to be free from all types of loosely defined “hurt?” Indeed not. Thus, the proper question refers to whether an adulterer aggresses against the property of his or her spouse.

On strictly libertarian terms (which of course rejects utilitarian rationale), the most obvious answer is no, and the logical ramification is that adultery, while despicable, should indeed be legal.

Marriage and Contract

However, there is a common objection that usually comes up here. It is this: “marriage is a contract and since contracts can, if broken, be backed up by aggression, the marriage contract broken by adultery can be backed up by aggression. Therefore, adultery can be made illegal.”

In order to consider this, we must first define a contract according to libertarian property theory.

In libertarian theory, perhaps distinct from other traditions, there is a difference between a promise and a contract.  Murray Rothbard explains the libertarian theory of a contract:

[T]he right to contract is strictly derivable from the right of private property, and therefore that the only enforceable contracts (i.e., those backed by the sanction of legal coercion) should be those where the failure of one party to abide by the contract implies the theft of property from the other party. In short, a contract should only be enforceable when the failure to fulfill it is an implicit theft of property. But this can only be true if we hold that validly enforceable contracts only exist where title to property has already been transferred, and therefore where the failure to abide by the contract means that the other party’s property is retained by the delinquent party, without the consent of the former (implicit theft). Hence, this proper libertarian theory of enforceable contracts has been termed the “title-transfer” theory of contracts.

Our contention here is that mere promises are not a transfer of property title; that while it may well be the moral thing to keep one’s promises, that it is not and cannot be the function of law (i.e., legal violence) in a libertarian system to enforce morality (in this case the keeping of promises).

Marriage, however, is a bond that is not sealed on the basis of property title transfer, thus marriage does not fit the definition of a contract.

Marriage, because its bond between man and wife is spiritual/intellectual, that is to say, it is dependent on mankind’s volition and does not include the physical transfer of property title, is more akin to a Covenant (or oath/promise). Marriage is an intellectual bond or oath between husband and wife that does not depend on any property brought into a hypothetical estate. Marriage legitimately exists “for richer or for poorer” and regardless of whatever physical ills may present themselves on the life of the couple. There was no transfer of property title on which the marriage relationship depends. Some may say that there is indeed the presence of property at play (such as a house). But the marriage relationship itself is independent of the property in the same way that the friendship between two friends is independent of a TV they brought together.

A marriage covenant, like an oath or a promise, is intellectual and built on faith (meaning belief), not backed by the threat of aggression.

Now, it is certainly possible for the marriage covenant to at the same time include a contract. In which case, it is entirely possible that an affair could be responded to with aggression. Let me give a hypothetical. Let’s say that the husband and wife (again, their marriage covenant is independent of a possible contract) agree that the man will buy his wife a car on the condition that she does not have an affair with another man. If the wife does have an affair after the man buys the car for her, then libertarian contract theory indicates that the wife has implicitly stolen the car for not upholding her end of the contract. In this case, adultery can be responded to with coercion. And any sort of scenario can be created in which the husband and wife mutually contract to a certain set of agreements.

But what is being claimed is not that a contract cannot exist in marriage, but rather, in the case where there is not a contract, there is still a legitimate marriage covenant. The addition of a contract merely creates a situation in which Mr. Jones and Mrs. Jones have both a contractual relationship (in the same way that two teenagers may have), and a covenantal relationship as well. The marriage itself is not the contract and therefore in the absence of a contract specifying terms relating to adultery, the covenant relationship does not necessitate coercion in response to an unfortunate occurrence of adultery.