lunedì 10 ottobre 2016

Vendere la moglie all'asta

La vendita della moglie all’asta è una pratica barbara? Forse, ma nella storia riveste lo statuto di antesignana del divorzio. La nostra mancanza di prospettiva storica è sempre foriera di sorprese. Eppure il Peter Leeson di “Wife Sales” parla chiaro.
Ecco la sua tesi:
…  We argue that wife sales were an institutional response to an unusual constellation of property rights in Industrial Revolution-era English law… That constellation simultaneously required most wives to obtain their husbands’consent to exit… and denied most wives the right to own property… Our analysis of wife sales as a mechanism of indirect Coasean bargaining supports the view that such sales enhanced the welfare of Industrial Revolution-era English wives… A sufficiently unhappy spouse will be willing to pay his or her marital partner enough to secure the right to exit marriage when one or both spouses has veto rights over the decision to divorce…
Per una donna era praticamente impossibile divorziare. Se solo avesse potuto pagare il marito le sue opportunità di farlo si sarebbero accresciute, senonché con il matrimonio perdeva le sue ricchezze e la possibilità di stipulare contratti economici validi. Ecco, con la vendita all’asta poteva trovare qualcuno in grado di contrattare e pagare il divorzio in suo nome. Sempre fermo il fatto che poteva porre il veto alla vendita.
… the wives who participated in wife sales chose to participate, and even those who seemed to do so reluctantly had the power to veto their sales….
La vendita della moglie all’asta non era una procedura misogina ma una procedura anti-misogina in un contesto misogino.
… Wife sales permitted unhappy wives to trade marriages they valued less for marriages they valued more…
La teoria riceve indiretta conferma dal fatto che la pratica era particolarmente diffusa nei paesi considerati avanzati.  
… For over a century wife sales occurred throughout the world’s most economically civilized nation during an era of unprecedented growth and progress: Industrial Revolution-era England…
Ma conserva anche dei problemi: in fondo il divorzio di fatto poteva contare su procedure alternative.
… The existence of numerous “ordinary” methods of de facto divorce in Industrial Revolution-era England, such as judicial separation and private separation agreement, poses a puzzle
Una prima risposta:
… Historians have suggested an answer to this puzzle: wife sales were public…   English law imposed marital obligations on spouses, such as husbands’responsibility for debts their wives incurred on their behalf. To relieve themselves of these obligations in their community’s eyes, divorcing spouses needed to inform community members, such as potential creditors, that their marital obligations to one another had ended.
… This “explanation” for wife sales is unsatisfying in a simple but crucial way… Spouses could place ads in newspapers
Ricordiamoci che in quelle società la donna single aveva fondamentalmente gli stessi diritti dell’uomo:
… feme sole... Such a woman could own property, enter contracts, and enjoyed freedom of her person. In these respects, legally, she was like a man..
Se invece sceglieva di sposarsi, in cambio della protezione ricevuta, diventava praticamente una proprietà del marito:
… all the property she owned before marriage, and all that would have come into her possession as an unmarried woman, such as inheritance, her wages from working, and the revenues generated by real estate she formerly owned, became her husband’s exclusive property.  A married woman also lost the right to enter contracts….Her husband could beat her “within reason.” He could have sexual relations with her on demand. And he could “restrain a wife of her liberty”— i.e., imprison her in his home— “in case of any gross misbehaviour,” where he determined what constituted grossness… In return for surrendering her property rights to her husband, a woman who married received a legal claim to her and, if she had any children, her children’s, maintenance from her husband.
Tuttavia, le donne preferivano di gran lunga sposarsi, soprattutto perché sul libero mercato del lavoro i loro servigi erano poco apprezzati. La cosa, del resto, conveniva anche agli uomini:
… Compared to men, Industrial Revolution-era women’ s employment prospects were slim and the wages they earned were low. Many working-class women couldn’t earn enough to support themselves… Men also benefited from marriage. They enjoyed the economies of scale that marriage conferred…
Per quanto riguarda il divorzio, c’era un abisso tra teoria e pratica:
… In theory, Industrial Revolution-era English law granted husbands and wives the right to exit marriage— with or without their spouse’s consent— under only two circumstances: adultery and life-threatening cruelty. In practice, husbands tended to enjoy unilateral property rights over marriage…
Il divorzio vero e proprio era molto costoso e accessibile quindi solo agli uomini (che detenevano la ricchezza):
… After obtaining a judicial separation, the typical husband seeking a private Act of Parliament sued his wife’s lover for criminal conversation in a civil court. Victory here was helpful to proving to Parliament that his wife was an adulterer. Having satisfied Parliament of as much, the Act-seeking husband secured a divorce from his wife that freed him of all…nancial obligations to her and permitted both spouses to remarry. The cost of this process was enormous… a private Act of Parliament could run into the thousands of pounds. In 1871 a successful unskilled laborer earned a mere 75p a week…
dati parlano chiaro, solo con una famiglia di provenienza estremamente facoltosa ed influente alle spalle la donna poteva spuntarla:
… An unhappy wife could also seek divorce through a private Act of Parliament. But… the obstacles to success she faced were far greater… of the 338 persons who attempted to divorce their spouses using a private Act of Parliament in the 157 years from this instrument’s inception in 1700 to its termination in 1857, only 8 were wives. 318 husbands petitioned successfully, but only 4 wives did so…
Restava l’arma delle separazioni o divorzi di fatto. Per gli uomini tutto era facile, nella sostanza valeva il ripudio:
… An unhappy husband could obtain a judicial separation by proving his wife had committed adultery. In this case the court would award him an alimony free separation. Even without such proof, he could obtain a judicial separation indirectly by manipulating the law’s operation. He did this by kicking his wife out of his house… Under English law husbands were required to supply their wives housing. This was part of their maintenance obligation. If a husband exiled his wife, his wife could, through an agent, sue her husband for restitution of conjugal rights — the right to cohabit — in an ecclesiastic court. The husband could then refuse to allow her back into his home, at which point the court would award a separation and alimony for the wife. If he was unsatisfied with paying his wife alimony, a husband could wait for his wife to slip and sue her in an ecclesiastic court for adultery. This freed him from future alimony payments…
Per le donne la musica era diversa:
… For an unhappy wife, separating from her spouse judicially was much harder. In principle the law allowed wives to sue for judicial separation on the grounds of adultery or life-threatening cruelty… An  important constraint on an unhappy wife’ s ability to use judicial separation to divorce her husband was the fact that judicial separation left her in a state of feme covert
Anche la fuga solitaria non era una via praticabile:
… Wives were in large part their husbands’property. Thus the law permitted husbands to forcibly return deserting wives to their homes where they could con… ne them to prevent future escape…
La fuga con l’amante era altrettanto problematica:
… elopement posed another problem for unhappy wives: it could be hard to build relationships with lovers willing to run away with them in secret. Husbands exercised close oversight over their wives…
L’unica scappatoia era l’accordo:
… The…nal means of de facto divorce in Industrial Revolution-era England was private separation agreements. These agreements were contracts between spouses relieving them of some of marriage’s obligations….
Ma senza possibilità di conguaglio gli accordi disponibili si riducevano drasticamente. Inoltre c’era il problema della validità di questi contratti.
… Unfortunately, not all unhappy wives were able to use private separation agreements for this purpose. Until the 1840s, such agreements were not reliably enforceable… This meant, for example, that a husband who agreed to separate from his wife under a private contract but subsequently changed his mind might forcibly seize her to reestablish cohabitation or, similarly, sue for the restitution of his conjugal rights and do so successfully…
Se questo è il contesto, comincia a profilarsi come razionale la possibilità di vendere la moglie.
… If transaction costs were low, when a wife valued life outside her marriage more than her husband valued life inside it, she could simply buy the right to exit the marriage from him… crucial assumption: wives must have something with which they can buy the right to exit marriage from their husbands…. Wife sales achieve this by leveraging the property rights of third parties: “suitors” who value unhappy wives more than wives’current husbands value them… To identify the suitor whose valuation is highest, inefficiently married couples sell their better halves at public auctions… Wives’veto power over their sales is crucial to such an arrangement’…
Il geniale artificio beneficiava soprattutto i meno abbienti. La procedura adottata era simile a quella impiegata per il bestiame.
… Industrial Revolution-era English wife sales were used overwhelmingly by working-class couples…. Next his wife was auctioned o ¤ amidst cattle and horses. An auctioneer prefaced the bidding by extolling the virtues of the wife on the block… The wife sale terminated one marriage and began another. To formalize such sales, the parties involved sometimes procured the services of a lawyer… “in many instances the wife appears to have been retained because she did not like her purchaser”… The necessity of wives’consent to be sold to new husbands explains the happiness many wives displayed at their sales’ conclusion…
Spesso era l’amante a comprare. Il che spiega anche come molte vendite si concludessero saltando l’asta vera e propria.
… For example, one couple decided that they should resort to a wife sale “hav[ ing] lately lived together on unpleasant terms, in consequence of the wife having a strong ‘affinity’ for a man on the opposite side of the street” (The Illustrated Police News, November 19, 1870)… The frequent existence of a ready and likely high bidder— a wife’ s lover— explains why some wife sales were transacted without auctions
Altre volta la moglie era riscattata da membri della famiglia di origine.
… In other cases wives’winning bidders weren’t men seeking new mates at all. They were wives’ family members
Bisogna anche considerare cos’era il diritto nella GB dell’epoca: le procedure informali consolidate avevano molto più valore di oggi, specie in quei paesi anglo-sassoni che sacralizzavano la “common law”:
…  while the law did not consider divorces or marriages achieved through wife sales legitimate, several jurists expressed confusion about whether wife selling per se was prohibited… it was founded on a custom preserved by the people, a custom, perhaps, that it would even be dangerous to pass a law which abolished it”… Religious authorities’attitudes toward wife sales were equally confused. Some religious authorities condemned wife selling. But others seemed to condone it, if not in word, in practice…
L’asta delle mogli fu un’istituzione molto apprezzata a giudicare dal successo riscosso, evidentemente produceva soddisfazione diffusa. Andò calando allorché la legge cominciò a riconoscere dei diritti patrimoniali alle mogli. Tutto cio’ è in linea con la teoria.
…Between 1735 and 1899 the mean wife in our sample sold for £ 5.72, though prices vary signi… cantly by decade. In every decade, however, both mean and median wife prices are positive… Wife sales decline when English law grants wives property rights… This new legal environment greatly diminished the importance of wife sales as means for unhappy wives to purchase the right to exit their ine ¢ cient marriages from their husbands indirectly. In consequence, wife sales declined precipitously…Although wife sales didn’ t become exceptional until the turn of the 20th century, their usage may have begun to go into decline some 17 years before the…rst English legal change granting wives some property…
Chissà che la vendita all’asta della moglie non fu anche un antidoto al femminicidio. In fondo è un modo di concludere una relazione senza ferire l’orgoglio maschile. Oggi che conosciamo meglio le dinamiche di questo crimine sappiamo quanto sia preziosa una simile risorsa.