|The divorce industry?|
1. The granting of enhanced administrative powers should generally be avoided.
2. Activist government requires (almost by definition) enhanced administrative powers.
3. Therefore, activist government should generally be avoided.
I then outlined some rough and ready criteria for assessing whether activist government was appropriate or legitimate. There were five criteria, the violation of any one of which would, at least prima facie, be sufficient to invalidate legislation on republican grounds. The first two of these criteria are perhaps the most important, and yet they are probably the ones most often violated:
1. Is there a problem, and can it plausibly be solved? (The second part of the question is intended to eliminate administrative wild goose chases, such as “the war on drugs”, “the war on terror” and “the war on poverty”. The first part of the question is meant to draw attention to the fact that something is not necessarily a problem just because an activist or an entrepreneurial politician says it is.)
2. Is government the appropriate or best-placed agency to solve the problem? Or alternatively: Is there a robust and exclusive rational connection between the nature of government as such and the nature of the problem?
Conveniently, as I was writing that, a new provincial law came into effect in Ontario that illustrates my point. The law requires that couples who want a divorce must first attend an information session on alternatives to the standard legal methods of obtaining one. According to Chris Bentley, Ontario’s Attorney-General, “going to court and having a court battle in family proceedings can be enormously costly, take a lot of time and probably most significantly be very emotionally damaging to children and to the two individuals.”
No doubt his assertion is correct. For our purposes, we can take Mr. Bentley’s assertion as his statement of the problem for which he feels his legislation is the solution. So according to my criterion, our first step must be to ask, “Is there really a problem?” According to Mr. Bentley, the problem is one of expense for litigants, as well as emotional turmoil for them and their children.
Divorce horror stories abound. And yet, from what I can tell (admittedly not having been divorced myself), often much of the extra turmoil and expense associated with messy divorces can be attributed to the adult principals in the affair not behaving much like adults. Lawyers are expensive. One doesn’t need a government-mandated information session to figure that out. And it gets more expensive the more one chooses to make the process more difficult than it needs to be. Most of the people entering the process know all this, at least on some level. Any additional pain and expense they undergo is largely of their own making. The causes are natural human selfishness and pettiness, with an admixture of anger, resentment, betrayal, and desire for vengeance. These are natural human feelings that can overcome rational thought and make one undergo a litigation process no rational person would ever want to enter. But, again, I stress that the problem here is not ignorance of the fact that divorce is expensive and stressful. If anything, a forced information session might simply add another level of complication and humiliation to the process. This is especially true for those couples (and they do exist) who are rational, and who would otherwise manage to effect a clean break. As for stress on children, not every couple who divorces even has children. I don’t have statistics on this, but I’ll bet the proportion of divorcing couples who are childless is quite significant.
In short, if there is a problem here, it is mostly of a self-imposed and/or private nature. I don’t see an interest here that government must protect, at least where no children are involved. I see no economic externality which government must correct, and if harm is occurring, it is mostly self-harm. As such, it is not obviously a problem for which government interference is a desirable or effective solution.
On the other hand, it might be argued that the purpose of the government-mandated information sessions is to educate couples on the options for alternative and less painful methods of separating. They simply may not know that there are other options besides the traditional and expensive legal route. Again, I would reply that this might be the case. These people may profit from the information the sessions provide. But should they not be responsible for seeking this information out themselves? Why is it my and your duty to provide them with this? If they desire a cheaper and less painful divorce, they thereby have an interest and an incentive to seek it out themselves. If the horse is thirsty, it will seek out water and it will drink it. And if the horse isn't thirsty, although you can lead it to water... well, you know how the rest goes.
Besides the fact that the parties themselves should be responsible for making their own divorces less painful, there are at least two other reasons why the government should not be involving itself in this area. First, there are presumably professionals that specialize in alternative dispute resolution. They are the ones that would profit from people seeking divorce alternatives. Don’t they therefore have some economic incentive to educate the public, through advertising, just like any other business? Why must the government be responsible for bringing business to them? This legislation in effect subsidizes their industry. In fact, it is precisely this subsidy that leads me to suspect a certain degree of rent-seeking behind this legislation, a suspicion by no means allayed by the suddenness and lack of discussion surrounding its implementation.
Second, even if you believe there is a role here for government intervention, cannot the goal of public information be just as well-served by posting information on a website or sending a pamphlet to people who file for divorce, rather than forcing them to attend information sessions as if they were outpatient sex offenders or congenital morons?
This program will cost money: “The program is directed specifically towards saving time and legal fees for couples hoping to get divorced, he [Bentley] said – although he hasn't been able to quantify those savings yet…. The attorney general's office will spend an extra $5.3-million a year making the program mandatory at all courts, bringing the total cost of the initiative to $8-million a year.”
In other words, since it costs people money to get a divorce, this legislation spends taxpayer money to help them save money. Again, at the end of the day we’re talking about a subsidy, this time to divorce seekers in addition to divorce counsellors. In reality, it’s probably not a very wise or effective subsidy, since there are cheaper ways of providing the same service.
Let’s say that information pamphlets would cost 50 cents each to print (it’s probably a lot less). Since there are around 13 million people in Ontario, the $8 million that will be spent under the new legislation could instead ensure that every man, woman, and child in Ontario receives a pamphlet informing them about alternative dispute resolution. There would even be spare pamphlets left over in case you lose yours. A mass mailing could be done just once, rather than spending $8 million year after year. Heck, we could save some trees by having the pamphlet available as a downloadable pdf. And I suspect that the pamphlets would be just as (in)effective as the information sessions, but without the paternalism and hassle involved in the latter.
Some readers might not be impressed with these savings. After all, they might say that $8 million is a tiny fraction of Ontario’s overall budget, nothing to be concerned about. This is a common and fallacious line of argument, and it frankly drives me crazy when I hear it. By this logic, we could increase spending indefinitely, so long as each increment is a so-called “tiny fraction” of the budget. Eight million here, eight million there… At some point the budget will swell so large, that the $8 million becomes a tinier and tinier fraction of the whole, until one day we’re surprised to find ourselves bankrupt.
It should be added that some divorcing couples have good reasons for going the traditional legal route. Alternative options might not work for everyone. Forcing these people to go through this process seems, again, a needless and humiliating complication forced on them by a well-meaning but paternalistic government.
And we might reasonably question how “well-meaning” the measure really is. When I see measures like this that have so little justification, methinks I again smell the telltale stench of rent-seeking. As I demonstrated in my previous post, Cicero can be helpful in these situations. We should ask ourselves the same question he advised asking in his speech Pro Roscio, “Cui bono?” (“Who profits?). Put into current English, Cicero would say “Follow the money”. We’ve already noted that the legislation effectively involves subsidies to two different parties. One subsidy goes to couples seeking divorce; they are provided with information (at taxpayers’ expense) on how to cut down on their legal costs. Another subsidy goes to the alternative dispute resolution industry, which now has the government working in sales and marketing on its behalf. In this instance government is playing the role of carnival barker, but one that has the power to force you to see the bearded lady or the two-headed calf.
Here’s a better analogy: It would be as if the government forced potential car buyers to sit through a commercial for General Motors before they were allowed to buy a car. The commercial will, of course, tell them how wonderful General Motors cars are, along with how expensive and liable to breakdown the competitors’ cars are. The question is, will such tactics be effective? Some may be convinced to buy a GM car (and of those, some would have bought a GM car in any case, without the commercial). Others may be resentful at being forced to sit through the commercial and will refuse to purchase a GM car, on principle.
Is it asking too much to expect people in the market for a car or a divorce to seek out what they think is the best deal? Is it wise or desirable for the government to play consumer advocate? It is especially undesirable when the government clearly advocates for a specific brand or product, as the result of a process of rent-seeking by interested parties.
If there has been rent-seeking, I doubt very much it is coming from citizens seeking divorce. If there were a significant groundswell of average citizens who were sincerely asking for cheap and painless divorces, we probably would have heard more about it. This legislation was brought into force so quietly that it is more likely the result of lobbying by a less legitimate and more organized interest: the dispute resolution industry. Simply Google the terms “Ontario”, “alternative”, and “divorce”, and you will see that such an industry exists.
Finally, there might be a moral hazard argument here, although it would be a counterintuitive one. Let us assume that, speaking generally, divorce is a bad thing. By this I mean that we would rather that our society had fewer of them than more. We would prefer it if marriages were generally happy and divorces unnecessary. We take it as given that divorces involve emotional pain. As it stands, they also involve substantial financial expense. Let us further assume that some subset of couples are currently unhappy, but that under the right circumstances they could avoid divorce and remain married. Not all couples who are unhappy are destined to be unhappy, and not all couples who divorce need to divorce. In other words, there are currently unhappy couples who are faced with the choice of (i) working things out with each other and struggling towards a married modus vivendi with each other, or (ii) getting a divorce. These are couples who could go either way. Some will choose (i) and some will choose (ii). Now, what will happen if the government facilitates cheaper and less painful divorces? I predict that at least some of those couples who would have chosen (i) will now choose (ii). The divorce rate will probably go up, though admittedly not by a lot. More importantly, more divorces will happen that need not to have happened.
Of course, it could be objected that if (ii) is now cheaper and easier, this would undercut the original premise of the argument that divorces, being expensive and painful, are generally to be avoided. After all, if the divorce rate goes up, but people are happier than before, then no harm done, right? The moral hazard is no longer really a hazard, as such.
I suppose this depends on one’s view of marriage. If you believe that marriage is simply a transactional arrangement of convenience whose sole purpose is to provide utilitarian gratification to two parties (a sort of open-ended mutual financial and sexual prostitution contract), then naturally you might advocate that dissolving the contract when it is no longer of benefit to the parties should be made as easy as possible. Those who think there is something more to marriage than this might be uncomfortable with the idea that marriage should be too easily terminable. For the latter, easy divorce is a moral hazard and makes bad policy.
Whether you believe divorce should be made easy or difficult, one might still have reasonable doubts about the idea of being forced to subsidize what is essentially a private interest, and one can reasonably balk at the idea of government playing an activist role in such an interest.