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Friday, September 21, 2007

Jonah Goldberg Fits My Theory

At National Review's Corner, Jonah Goldberg recommends to readers to "Sign up now for cheatneutral.com." The British site proposes to neutralize one party's infidelities by selling "offsets," in the form of another person's promise not to cheat.
Jealousy and heartbreak are a natural part of modern life. And sometimes, no matter how hard we try, it's just not possible to be faithful.

At Cheatneutral, we believe that we should all try to reduce the amount we cheat on our partners, but we also realise that fidelity isn't always possible.

That's why we help you neutralise your cheating. Your actions are offset by a global network of fidelity, developed by us. By paying Cheatneutral, you're funding monogamy-boosting offset projects - we simply invest the money you give us in monogamous, faithful or just plain single people, to encourage them to stay that way.

When you use Cheatneutral, we'll email you a Cheatneutral Offset Certificate, so you can prove to your loved one that your playing away has been successfully offset. Then, you and your partner are both happy, a broken heart is mended, and you can feel good about yourself again, all thanks to Cheatneutral.

And when you need to cheat again, we'll be here for you.
Of course, this satirizes environmental trading such as the carbon offsets that Al Gore uses to justify his enormous energy expenditures.

But the fact that Goldberg thinks this makes any sense helps to illustrate my prior post about the differences in how libertarians, conservatives and liberals view harms that should be illegal. To recap, libertarians require a defined victim who has been clearly coerced or forced into a position; conservatives think such harm can be done to a generalized order even if all the parties most concerned were consenting; and liberals also require a defined victim, but set the standard of "coercion" at a much lower level, such that a society that sexually objectifies women is deemed to have "coerced" some women into prostitution.

Now we know why Goldberg thinks cheating is wrong -- not because of the hurt it causes a specific person, but because of the generalized moral badness it puts into the ethical atmosphere. Ah, conservatives. Meanwhile, to libertarians it's only cheating if the other person actually is hurt by it; otherwise, it's just an "open relationship." And to the economically literate person, the whole comparison is quite puzzling because the whole problem of pollution is of negative externalities, for which offsets are a (perhaps weak) attempt to compensate, whereas sex with multiple partners has "externalities" only in a public health sense.

Aside from public health, however, there is not much reason for a libertarian to restrict sexual behavior between consenting adults. Professor Richard Epstein's support for a legal prohibition on prostitution is thus an odd lapse in his general libertarianism. He has remarked [1](), "In addition [to public health concerns,] I may be sufficiently old-fashioned, but prostitution seems problematic because many of these men are married. They took vows which said 'exclusive unto thee' and now they're in breach of the marriage contract. The law of inducement of breach of contract is generally a recognition of the inadequacy of direct remedy against the other contracting party. Sometimes you have to go after third parties. Much of the common law responds exactly to those circumstances, when you can't get the right wrongdoer it may well be necessary to accept broad restrictive practices."

As Mary Anne Case has noted [2], this makes a very large assumption: that enough of prostitutes' customers are married men whose relationship entails a promise of sexual fidelity and that such promise is broken primarily because of the availability of prostitutes. (In actuality, the much greater threat of divorce is caused by a spouse's straying through an unpaid, romantic relationship that could form a second marriage; prostitutes, in contrast, are a limited substitute for a spouse.)

Indeed, the law already recognizes the one-to-one harm done by infidelity by finding fault with the adulterous spouse in divorce cases. Environmental harms are more difficult to quantify and find specific victims of. Mrs. Goldberg need not give a damn whether the entire staff of National Review is sleeping around; her concern is with her own spouse. I do care a great deal about everyone who pollutes the air I breathe and water I drink, however, because they all have done a tiny, incremental harm to me. Even if I suffer a harm such as aggravated asthma, I cannot sue any individual one of them, because the harm cannot be assigned to a single person's actions. And so we end up with ridiculous, non-justiciable suits by the state of California against automakers.

[1] 41 UMIALR 49.

[2] 18 HVJLPP 369.
The flaws in this chain of reasoning are almost too obvious and numerous to catalogue. To begin with, not all men are married; surely if adultery is the harm it would be possible to prohibit only adulterous prostitution. Moreover, we do not treat marriage, let alone the vows recited during the marriage ceremony, as an enforceable contract; even if we did, we do not specifically enforce, we do not permit speculative damages; we certainly do not criminalize inducement to breach, indeed, we often permit breach. Moreover, we do not allow free contracting over the terms of the marriage contract; if we did, there are many reasons to suppose that not all couples would bargain for fidelity. What the anti-prostitution argument tells us, however, is the strength of Epstein's commitment to traditional marriage even when it contradicts libertarian principles as well as sociobiological evidence.

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