In my previous post on The Problem of Sex in Kant's Ethics, I ended with Kant's argument for monogamy, on which I declined to offer any commentary. I am going to offer a brief reconstruction here (go back to the previous post for the original text).
The argument can be understood as follows:
Premises 1-3 are certainly not uncontroversial but they are, I think, comprehensible, and Kant is committed to them. It is premise 4 that is the problem. In the rest of this post, I will briefly explain how I take this premise to work. I won't be providing a detailed argument for my exposition, or citing a lot of text (this is only a blog post!), but if there is a lot of interest I will consider posting my paper, "Preserving Personality: Applied Ethics in Kant's Metaphysics of Morals," in its entirety.
Kant denies that I can, by contract, give away my freedom, as by agreeing to be enslaved. The reason for this is that a person needs a certain degree of freedom in order to be a subject of external law: someone who has no rights under law, has no obligations under law. (How this jives with Kant's denial of the right of rebellion is unclear.) Therefore, a contract to be divested of my rights is a contract to no longer be bound by any contracts - a contradiction.
Furthermore, Kant claims that no one can have a right to another's "sexual attribute" without having a right to the whole person. This sort of right is absolute - in the Lectures on Ethics, Kant calls it "a right to dispose over the person as a whole" (Infeld, tr., p. 166). As such, any grant of sexual usage would violate the prohibition on slavery. That application to prostitution and concubinage is obvious, and Kant accordingly takes such contracts to be unenforceable. (However, he does not explicitly claim that the practices should be criminalized: the claim is only that if one party wants out she (and Kant himself DOES use the feminine pronoun) cannot rightly be compelled to obey the terms of the 'contract'.)
The odd claim, however, is that the same applies to ordinary non-marital sexual consent. The reason seems to be that such an agreement attempts to grant rights over the body without rights over the person and so the person is treated as a mere thing. If such a contract were allowed to be executed, the parties would be stripped of their legal personhood and so could not be compelled to keep the contract.
Kant claims that there is only one sort of enforceable contract related to sexuality and he calls this sort of contract a 'marriage.' This contract is a mutual acquisition of the whole person. Being 'my spouse' is one of the ways a thing can be "rightfully mine." Kant defines this as follows: "That is rightfully mine ... with which I am so connected that another's use of it without my consent would wrong me" (Metaphysics of Morals AK 245). Thus if my wife has a right to my person, any use I make of my person - that is, anything I do, think, will, etc. - without the consent of my wife wrongs her. Under ordinary circumstances, if someone had this sort of legal right over me, I would lack legal personhood. I therefore cannot agree to come into such a state. However, if I also acquire the same right over my wife, then her consent is one of the uses of her person to which I have complete right, so that if she consents to my action (or withholds consent) without my consent, she wrongs me. In this way, "the two persons become a unity of will" (Lectures 167), and I regain the same rights with respect to myself which I had initially.Posted by Kenny at March 22, 2009 6:55 PM
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