What’s So Special About Legalized Sex? (Or, How Can Two Wrongs Make a Right?)

Abstract

In this essay I reassess a long-standing sore point within Kant’s moral and legal philosophy – viz., his position on heterosexual sex and marriage. My own standpoint is consciously retrograde. In opposition to recent revisionist efforts by feminist scholars to defend Kantian models of marriage, I believe early critics of Kant such as Christian Gottfried Schütz and Friedrich Bouterwek were right: his position on sex and marriage is not salvageable. Human sexual activity is not inherently or necessarily objectifying, humans do not devolve into animals bereft of rationality, free will, and responsibility when they engage in sex, and the institution of marriage does not necessarily resolve the inherent problems Kant sees in sex. Finally, his notorious effort to forge a third division of private law – “personal right of the thingly kind” – is not only enigmatic but ultimately incoherent.

Love and marriage, love and marriage,

Go together like a horse and carriage.

This I tell ya, brother, you can’t have one without the other….

Try, try, try to separate them, it’s an illusion.

Try, try, try and you only come to this conclusion:

Love and marriage, love and marriage,

Go together like a horse and carriage.

Dad was told by mother you can’t have one

You can’t have none.

You can’t have one without the other.

If a man and a woman want to enjoy each other’s sexual attributes they must

necessarily marry [müssen sie sich nothwendig verehlichen].

Kant’s views on sex and marriage certainly rank among his most severely and frequently criticized positions on applied ethics issues – perhaps topped only by his well-documented racism. However, in the latter case, several commentators have argued recently that in his later years Kant finally saw the errors of his ways and came around to a much less objectionable position.1 No such “second thoughts” arguments are likely to be forthcoming when it comes to his beliefs about sex and marriage. Also – here too, unlike his positions on other applied moral issues such as punishment or homosexuality2 – Kant’s views on heterosexual sex and marriage were strongly criticized right from the start by his contemporaries. They do not just appear objectionable when viewed through the lens of current moral attitudes. For instance, Christian Gottfried Schütz (1747 – 1832), who corrected the proofs to the second edition of Kant’s Anthropologie in pragmatischer Hinsicht (see letter from Schütz of May 22, 1800, Br 12:307),3 remarks, in another letter written to Kant: “You cannot really believe that a man makes a thing out of a woman [zur Sache macht] by engaging in marital cohabitation with her, and vice versa. You seem to think marriage is no more than a mutuum adiutorium [mutual subordination]” (Kant to Schütz, July 10, 1797, Br 12:180).4 Michel Foucault cites this same text in his own early work, Introduction to Kant’s Anthropology (1961), first published posthumously in both French and English in 2008, remarking that Schütz “was concerned to find, reading Kant’s Metaphysics of Morals, ownership amongst individuals so closely modeled on the main forms of rights over things. […] Schütz refused to accept that in matrimony ‘the woman becomes a thing which belongs to the man’” (Foucault 2008, 40). And, as I remarked in an earlier essay on Foucault’s interpretation of Kant’s anthropology, “if we read between the lines a bit, we may be able to detect intimations of Foucault’s own later interests in practices of power in this discussion” (Louden 2013, 168).

Hegel, in his Philosophy of Right, also strongly criticizes Kant’s position, when he claims that “marriage cannot be subsumed under the concept of contract, this subsumption – which can only be described as a disgrace, one must say [Schändlichkeit, muß man sagen] – is proposed by Kant (Metaphys. Anfangsgründe der Rechtslehre)” (Hegel 1970, 157/§ 75, see also 310/§161 Zusatz).5 And so it went for many years. Kant’s position on marriage “is shallow and even repulsive” (Aris 1936, 102), “notorious, an embarrassment to moral philosophers and philosophers of law alike” (Mendus 1992, 175), etc. But the tide began to turn after the appearance of Barbara Herman’s influential 1993 essay, “Could It Be Worth Thinking About Kant on Sex and Marriage?” Writing partly under the influence of feminist theorists Andrea Dworkin and Catherine MacKinnon, whose views, she suggests, are “very Kantian” (Herman 1993, 56), Herman argues that Kant is correct in holding “that sexual activity is unavoidably morally problematic” (Herman 1993, 63). Suddenly, scores of commentators started not only thinking about Kant on sex and marriage, but many also began to “forge a Kantian ideal of […] ‘moral marriage’” (Denis 2001, 27; cf. 3), arguing that “the kind of marriage contract Kant advocates need not be regarded as deeply flawed” (Wilson 2004, 118), that Kant’s views on sex and marriage “are relevant and instructive for contemporary discussions of sexual ethics” (Brake 2005, 59), that “Kantian marriage can indeed survive the criticisms it has received by contemporary thinkers” (Papadaki 2010, 292), and that “there is value in retrieving and reconsidering […] [Kant’s model of marriage] even today” (Kneller, 2006, 470).

The present essay is consciously retrograde. I think Schütz was correct in criticizing Kant’s account of sex and marriage back in 1797, and I also believe that Friedrich Bouterwek, in his 1797 review of the Rechtslehre,6 was right in arguing that Kant’s “new phenomenon in the juristic sky” (AA 20:449; see also MS 6:359) – viz., the strange concept of “personal rights of the thingly kind” (see MS 6:276) which he forged to try to explicate his model of marriage – not only does not represent an advance in thinking about sex and marriage, but is also fundamentally inconsistent with one of the core tenets of Kant’s moral philosophy. Persons (even persons who are married to one another) cannot “possess each other as things” (Bouterwek 1799, 1199), for persons and things are qualitatively different substances with radically different moral and legal properties. Although Kant’s views on this topic are certainly “worth thinking about” (Herman 1993, 49 – I would not be writing this essay if I did not believe so), I see little in them that can or should be salvaged. And while the fundamental criticisms of Kant’s views on sex and marriage that I shall be presenting are not new (they track back to Schütz and Bouterwek), I do hope to convince the reader that they are nevertheless sound.

The Nature of Human Sexual Activity (According to Kant)

As noted earlier, Herman sees Kant as being committed “to the uncomfortable claim that sexual activity is unavoidably morally problematic” (Herman 1993, 63), and this “pessimism” about human sexuality (Kneller 2006, 458) is a feature that resonates strongly in many of the recent quasi-defenses of his position. Indeed, if we look at some of Kant’s own statements, “morally problematic” and “pessimism” are underdescriptions of his actual position. Here are a few examples:

there lies in this inclination a degradation of the human being [Erniedrigung des Menschen]; for as soon as anyone becomes an object of another’s appetite, all motives of a moral relationship fall away […]. This is the reason why we are ashamed of possessing such an impulse, and why all strict moralists […] have sought to repress and dispense with it [unterdrücken und zu entbehren]. […] [T]his inclination is a principium for the degradation of humanity. [H]umanity is here set aside. […] [E]ach partner dishonors the humanity of the other. […] Thus humanity […] is dishonored and put on a par with animal nature. […] All philosophers censure this inclination […]. [T]here is something contemptible in the act itself, which runs counter to morality [in der Handlung selbst etwas verächtliches, was wider die Moralität läuft]. (Mo-Collins 27:384 – 386)

[I]t seems as though all sexual inclination would run counter to morality. […] In the first place, sensual congress of the sexes is a phenomenon in the...