Composed as part of the development of arguments concerning ‘Public Reason and the Practice of Polygamy in Bountiful BC’ for Phil 431, Spring 2010.
Polygamy must be illegal to allow victims (that is those entered into and sustaining such arrangements not entirely of their own will) a means for exit and recourse.
If one were to place themselves behind John Rawls Veil of Ignorance, and to negotiate a society in which polygamy were legal, and upon lifting the veil find themselves in that arrangement where they were not entitled to their fair share of the entire affections and goods of another to whom they had pledged all their affections and productive capacity, but only to a slight fraction thereof, would find their liberties duly repressed.
This differs primarily from the question of monogamous same sex unions in that unjust division of primary goods. For as monogamy is necessary for equality of gender so it must be ensured no unions be allowed in which one gender is grossly favoured over the other. A same sex union, by contrast to polygamy, is only an expressed individual preference in conjugal union and as such does not place the development of the other gender — in the case of homosexual union simply that excluded gender — at a serious disadvantage in (1) access to their portion of material and financial wealth; or (2) liberty within household decision making; or (3) the replication and working towards of egalitarian self-respect, as must be the case with any polygamous union.
How does this come about? Polygamous unions put the one in favour over the many, the one in this case usually being a man and the many usually being women. This relationship can only exist as a sort of tyrannical rule whereby the women combined have less power than the man. Were it otherwise (that is the man had matching or less power than the women combined) they would overthrow him and set up a new rule where the duties of child care and rearing were placed instead unduly upon him. Where there is but one man and many women, and each woman has many children, this is of course impossible.
Why would a woman not want to have an equal partner in her child rearing, and in such a relationship lose none of the joy but only the toil, instead of only a fraction of equal partnership? Any appeal to arguments of rightness or aptitude are baseless, a man has as much obligation and capacity to care for the needs of a child (to shelter, nourish and love) as does his wife. Where his physicality limits him he can pursue a proportionate increase of other tasks instead.
Why then might we think a woman would choose to be but one of many and not an equal? She might rightly (and freely) choose of religious belief or of preference, it is true, yet these beliefs must be strong in foundation and force to have her invariably give up control over a family’s resources and take on as well a disproportionate amount of the toil in raising her children. Would she really be all that likely to come to this decision without coercion? Without a rhetoric that told her this man was her better in ways that far outweighed her increased labour and lost autonomy? It may be possible and such a woman may well exist, but it is not for this woman that polygamy much be illegal, but for the others.
In reality the state cannot stop mature and politically free individuals from pursuing such a conjugal life together, just as it cannot in actuality stop the pursuit of contraband. Yet it has been acknowledged that if there are such goods which are deleterious to recipient or peddler their trade must be deterred. So it is with polygamy. The heroine addict or prostitute can never be kept entirely from their craving and craft, nor is it feasible or in the interests of positive law and polity to confine them so long as they choose freely. Instead it is the pusher and the keeper of the bawdy house who are the proper targets of prosecution and punishment. These are the true criminals, and the addict and call girl most often the unknowing (and unacknowledged) victim.
If one must be allowed to destroy their lie with drink, smoke or gambling, then so individuals cannot be stopped from their individual pursuit of polygamy. But as the illegal sale of restricted goods and services brings a heavy penalty, so it should be with they who keep many spouses. Then, and only then, will they be forced to ensure genuine consent on the part of their many partners to avoid the wrath of the law.
The means of recourse must now be addressed: Polygamy, like assault and rape, must be a charge brought against one individual by another. Having thus this avenue to the proving of criminal intent and action, any spouse — legal or otherwise — would have grounds by which to seek civil compensation under the common law of the land.
This serves again to distinguish the case of polygamy from that of same sex union, whereby two individuals come together by complete consent declared before the law and may part by consent or by the breaking of their original contract, such as is the case with adulterous behaviour. Polygamy must be preserved as extra-legal otherwise all those in conjugal union stand to lose their recourse upon proof of adultery.
We arrive finally at one last possible scenario which stand to be addressed; that of polygamous union as deleterious to self respect. Perhaps we should allow legal polygamy to be practiced with the express consent of every party involved in the union. The problem then of adequate and egalitarian self-image and respect (that of the many partners having supposedly been addressed) arises instead amongst the children of such a union.
We can easily prove this if we consider the uncommon practice of polyandry (of having many husbands at one time). These children, being arguably predisposed to favour the type of union in which they were raised, and risks themselves to deamaged self-image. For would not the sons of one mother who’s fathers’ expressly joined with her, likely think themselves at maturity worth not the affections of one entire woman, but only a portion thereof? Would not their concepts of worth and capacity likely favour the female sex?
Regardless of this likelihood its probability is enough; their (the sons, or any child) express consent for such unequal partitioning of liberty and labour not being obtainable at the time of union, such a union cannot be allowed.
Thus we have come to a full and complete position whereby the practice of polygamy, as distinct from any other conjugal (monogamous) union is incongruent with the equal partitioning of primary goods and liberties necessary for well ordered democratic polity and as such should be condemned as illegal and enforced by the authorities designated to be the executioners of laws. These arguments, such as they are made, coincide with the cirterion of reciprocity, being reasonable in construction and interpretation and not grounded on any comprehensive doctrine, but on the simple preservation of democratic society in the practice of public reason.
I invite your comments.