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.
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What in this argument restricts 'marriage' to two persons only?
Posted by: Richard at March 23, 2009 11:21 AMRichard - heh, I guess that, seeing as I titled this post "Kant's Argument for Monogamy," I should've addressed that. Anyway, Kant is quite explicit on that point:
MM 279:
For the same reasons [i.e. the argument for monogamy above], the relation of the partners in a marriage is a relation of equality of possession, equality both in their possession of each other as persons (hence only in monogamy, since in polygamy, the person who surrenders herself gains only a part of the man who gets her completely, and therefore makes herself into a mere thing), and also equality in their possession of material goods.
Lectures 167-168:
But let us pursue this aspect further and examine the case of a man who takes two wives. In such a case each wife would have but half a man, although she would be giving herself up wholly and ought in consequence to be entitled to the whole man.
It occurs to me that Kant is here talking about traditional polygamy. If three people were all married to each other on equal terms, it isn't clear that they would run afoul of Kant's argument. It is only when two women each marry the same man (or two men each marry the same women) that they violate this principle of equality.
Posted by: Kenny at March 23, 2009 2:33 PMOne more thought - if three people all married each other, then necessarily at least one pair of persons of the same sex are married. Kant's argument against same-sex marriage (he does have one, sort of) rests on entirely different considerations.
Posted by: Kenny at March 23, 2009 2:37 PMCan't I also acquire the rights to a person via a purchase - or more accurately - a rental agreement in which the rights to one person is temporarily acquired by the another with cash, or dinner and a movie, or a promise to finally clean the garage?
Furthermore, can't I acquire the rights to another by offering the same rights to myself for just an evening or ten minutes or so? It doesn't directly follow that the arrangement has to be permanent.
Posted by: Sage at March 24, 2009 3:26 AMThe former arrangement is precisely what this argument is supposed to disallow. The reason is that the person loses legal personality in such a transaction and so, until the offer of sex is either fulfilled or withdrawn, the person has no contractual obligations, being treated as a "mere thing."
The latter is a bigger problem and the answer is yes - sort of. Kant allows divorce for 'irreconcilable differences,' so people could marry and divorce frequently; however, it is not clear whether you would really be acquiring complete rights if you intended in advance to divorce. Furthermore, Kant requires that there be joint property in marriages, so you would really screw yourself up that way.
Posted by: Kenny at March 24, 2009 9:04 AMWhat are these "entirely different considerations" that you speak of with respect to Kant's "sort of" argument against same-sex marriage?
Posted by: anon at March 24, 2009 10:46 AMAnon - Kant believes for complicated and not entirely clear reasons (I try to give an account in my paper) that 'unnatural' sex
(that is, all sexual conduct in which one's desire is not directed to the genitals of the opposite sex) necessarily offends against one's dignity (this also includes masturbation). The reason seems to have something to do with the teleology of sexuality.
Perhaps I will write a post on this in the future, or perhaps I will post my paper.
Posted by: Kenny at March 24, 2009 11:12 PMI'd be interested to read it in full but from the short summary you gave it seems like your interpretation of Kant's argument is concerned with certain sex acts motivated by certain desires, not with same-sex marriage as a social institution.
Posted by: Anonymous at March 29, 2009 3:14 PMAnon - That's precisely correct. Here is a quote that I should've given in the first place. This comes from immediately before Kant's discussion of marriage:
unnatural [sexual] use takes place either with a person of the same sex or with an animal of a nonhuman species. Since such transgressions of laws, called unnatural (crimina carnis contra naturam) or also unmentionable vices, do wrong to humanity in our own person, there are no limitations or exceptions whatsoever that can save them from being repudiated completely (MM AK 6:277).
It is only much later that he describes how these 'vices' (allegedly) "do wrong to humanity in our own person," and his discussion is not very complete. The line of thought here, however, seems to have something to do with the fact that Kant's argument (described in my earlier post) has created a presumption against the permissibility of sexuality in general, but no ethical system could require all human beings to swear off sex entirely, because this would result in extinction. Therefore, there must be some kind of exception which allows for reproduction. As it turns out, this exception is NOT limited to all and only those cases in which reproduction is actually likely to succeed, or whether this is the purpose selected by the individuals involved. Rather, reproduction is nature's purpose in implanting sexual desire in us and sexuality in accordance with nature's design (subject to "the limiting condition of practical reason") is permitted, whether or not we adopt nature's end as our own.
This line of thought won't offer any support for the permissibility of homosexuality or beastiality (Kant consistently lumps the two together), therefore, Kant sees no reason for carving out an exception to the general prohibition on sexuality for them. The "sees no reason" thing is part of my reason for saying he only sort of has an argument. As I read it, his discussion in the Doctrine of Virtue has a similar problem: he can't think of any end of practical reason which could be served by sexual expressions which are not at least potentially reproductive, and therefore holds that such expressions amount to a (prohibited) suspension of practical reason and slide back into animality (or worse). Does that make any more sense?
Posted by: Kenny at March 29, 2009 3:32 PM