Polygamy, Nature, Jefferson and Volokh

Liked Arguments from Nature

UCLA Professor Eugene Volokh, et alii coniurati, recently received the imprint of the Washington Post for their important libertarian law blog, The Volokh Conspiracy. Volokh’s recent salvo against the naturalness of heterosexual, monogamous marriage will no doubt ingratiate him to his new more liberal readership.

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Volokh criticizes a Liberty Counsel press release, entitled “Virginia AG abandons natural marriage.” Volokh writes: “Really? What is so natural about exclusively one-man-one-woman marriage, as opposed to polygamy …?” Volokh proceeds to argue that because (a) polygamy is historically common behavior, and (b) naturalness consists of common behavioral patterns, so therefore, (c) polygamy is natural.

Volokh’s argument has all the force of a response to the Declaration of Independence which denied that the Laws of Nature entitle any people to independence because many people have, in nature, been denied independence. That is, Volokh’s argument does not even engage the position it opposes.

Those, like Jefferson or Liberty Counsel, who press the idea of “natural” as a guide to behavior plainly do not reduce nature to regular physical behaviors, as Volokh does. They speak of “the natural” normatively rather than descriptively. For example, to say that a car, according to its nature, transports people safely from place to place does not mean that cars crashes are not among the most frequent causes of serious injuries in modern society. It means that it is not in keeping with a car’s nature that they injure people when they are made in order to transport them safely. When Jefferson says that natural law entitles the colonies to independence, he makes no comment on whether most colonies have historically been afforded independence. He says something about the purpose for which governments exist among men. And, when a natural-law advocate says that man is not naturally polygamous or adulterous, he makes no necessary comment on whether men frequently have had multiple wives or cheated on their spouses. He says it is not in keeping with being a man to do so.

Volokh concludes “… the important point is that choosing what sorts of relationships to legally recognize as ‘marriage’ is a matter of social choice, not a ‘natural’ or ‘ontological’ matter.” Showing that marriage laws have varied, as Volokh does, says nothing about whether the shape of marriage law is merely a matter of social choice. Laws have varied on almost every subject, but this does not license us to reduce their shape to a mere matter of social choice. Does Volokh think that all the historic variations in the law of life, liberty and property makes all such issues mere matters of social choice? I don’t believe he does.