Thoughts from
San Diego on Law, Politics, and Culture

 
Still More on Polygamy
By Gail Heriot

Julie Carlson, a former Peace Corps volunteer, wrote to me in response to my earlier posts on polygamy. Her comments are very interesting and come from actual observation:

"I lived in Liberia (West Africa) for 2 years as a Peace Corps volunteer back in the early 1980s. During that time I knew many people who lived in polygamous relationships and some who were married to only one person. You said that the conventional view is that it weakens the hand of women. In some respects I agree, but in a culture where birth control is almost non-existent, having more than one "co-wife" helps space out child bearing for all the women. [unlike say, a typical woman in the early 1900's in America who had one husband and gave birth to 10, 12, or 15 children.] There are also the very real social benefits (help with child-rearing, cooking, cleaning) especially in an environment where just getting water back to your kitchen can be a big deal. But the downside came for women who married a man with the expectation that she would be his only wife, and he (usually for economic reasons - i.e. he moved up in the world) decided later on to take another wife. That could be a very ugly situation, full of pain for all involved. When I was there, Liberia was in transition from a more traditional culture to one that was more modern. It was in the mish-mash of the two that things became messy - young girls having children out of wedlock, older men preying on young girls, etc."

For some reason, I was particularly intrigued by the problem of the woman who married with the expectation that she would be her husband's only wife, only to be disappointed when he decided to take a second. Is this a problem that can be eliminated up front by contract law? Or is the difficulty of enforcement one more reason to be wary of polygamy?

I'm inclined to think that while strong contract law would help, in the end it's impossible to give complete protection to a first wife when her husband is hell bent on getting a second wife in a society that permits polygamy, unless you are willing to go the extreme of forbidding divorce. But the basic problem is not unique to polygamous societies. We have it here too. It's the problem of the first performer.

In a sense, marriages are like long-term contracts. Over the long haul, most good marriages are characterized by roughly equal benefits and sacrifices. But in the short run, such equality is rare. One spouse may work for years at a not-so-great job to put the other spouse through college or medical school. Had the sacrificing spouse not been married, he or she might have finished his or her own schooling instead. But the sacrifice is made to benefit the marital "community." In the long run (if there is a long run), they will both benefit.

In traditional marriages, it is more often the wife who performs first. (There are plenty of exceptions; my own ex-husband (bless him) helped make it possible for me to go to law school.) The most common way she does it is by bearing and and taking primary responsibility for rearing the couple's children. Doing so means that she has to interrupt her career (or at least give it less attention than she would otherwise). Children also make it somewhat more difficult for her to find another mate if her husband decides that he has made a mistake and wants out. And in addition to the problem of children, a wife is somewhat more inclined to make sacrifices to further her husband's career than a husband is to further his wife's. His career successes, on the other hand, are more likely to occur later in his career.

If the late performer can exit costlessly before his (or her) turn comes to perform, it's unjust, unless appropriate adjustments can be made. Sure, one could argue that newlyweds should be wary of "investing" in a marriage that might not last. But in the end, we want people to invest in their marriages. Two people collaborating can do more for themselves as a couple than they can for themselves individually. That's why we have contract law--to protect expectations thereby giving people the confidence to make these sacrifices. And that's part of why we have laws concerning dissolution of a marriage; a lot of it is about protecting that "first performer."

In a polygamous culture, the "first performer" problem may play out as Julie describes. Wife No. 1 had every reason to believe she would be the only wife. Indeed, that's what her husband told her way back when, and it mattered to her, so she had the whole deal put in writing. She now has spent the proverbial best years of her life bearing and rearing their seven children, the oldest of which are now adults, cooking their meals and generally making it possible for her husband to succeed in life. She's in no position to start over. One day her now-sucessful husband tells her that he wants a new wife. She points to the "marital contract," but he tells her that if she won't agree to "contract reformation," he will divorce her. Is he bluffing? Maybe, but she caves in any event. Wife No. 2 moves in the next day. Now Wife No. 1 must share "the profits" of her earlier sacrifices with a third party.

But the story is a familiar one in under legal regimes requiring monogamous marriages too. The difference is that when the late-performing spouse "breaches the contract" in a society that does not allow polgamy, it's often to demand a divorce (often with the intent of acquiring a trophy wife) and not just to demand an additional spouse. In some ways that's worse since it is an all or nothing sort of thing. In some ways it's better, since it will involve a clean break and avoid the humiliation of being the less-loved spouse for the rest of her life. Fundamentally, however, the problems are similar. And the challenge for domestic relations law is do the best it can to do justice in such a situation.

Does all this mean that I favor permitting polygamy, since it is not clearly and unequivocally worse than monogamy? Well ... no. But I do find the similarities and differences between the two systems interesting as they relate to the first performer issue.
posted by Gail at 2/15/2005 08:15:00 PM