…marriage, so far as its essential basis is concerned, is not a contractual relation. On the contrary, though marriage begins in contract, it is precisely a contract to transcend the standpoint of contract, the standpoint from which persons are regarded in their individuality as self-subsistent units. The identification of personalities, whereby the family becomes one person and its members become its accidents is the ethical mind…

… marriage must be regarded as in principle indissoluble, for the end of marriage is the ethical end, an end so lofty that everything else is manifestly powerless against it and made subject to it. Marriage is not to be dissolved because of passion, since passion is subordinate to it… Legislators, however, must make its dissolution as difficult as possible and uphold the right of the ethical order against caprice.

G.W.F. Hegel, Elements of the Philosophy of Right

This post was written as a single unified whole, but later was found to be incredibly long, thus I’ve decided to break it up into parts so that people can simply refer to the parts they are interested in. Although one must remember that they were originally intended to be read as a whole and some of the later points may have its explication in some of the earlier posts.

The Difference between Public Institutions and Private Intentions

One of the most common claims when the issue of same-sex marriage comes up is that marriage is a purely “private affair” or “personal decision”, and it is no one’s business what two consenting adults decide to do together, etc.

However, if marriage is a strictly “personal decision” or “private affair”, why does the state bother to publicly recognise and codify such a “private affair” into civic public laws? Why not simply exterminate the entire institution from the law altogether and simply let individuals and localised communal groups handle this “strictly personal decision” (as they have for most parts of human history) without bothering the state?

After all, friendship is also a personal and private thing between individual persons, and upon making new friends, we do not register our friendships with the state nor does the state bother itself with what friendships are formed in the nation. So if marriage is a purely personal private thing, why do we bother to register our marriages with the state and why does the state bother to provide the legal categories to recognise such relationships in the law and regulate it? (Hold on to the friendship analogy for it would be frequently used throughout the discussion.)

This claim simply betrays one of the most common confusions regarding the discussion on marriage. The failure to distinguish between marriage as a public social institution with public social purposes and the private intentions and subjective meanings of the individuals who participate in the institution of marriage. To be sure, there does exists broad convergences between the the ends of marriage and the intentions of the people who enter into it, and to a large extent, most people do enter into a marriage for the purposes for which the institution exists. But the social ends of the institution exceeds and transcends the individual intentions and purposes of its participants. It possesses its own meaning, its own integrity and its own purpose, independently of the intentions of the people who enter into it.

To put it simply, it is the difference between the purpose of the university, and the intentions of the undergraduates and professors who are part of the university, it is the difference between the army and the people who enter the army, the difference between a hospital and the people who are part of the hospital, etc.

Example: The University’s Purpose and the Undergraduate’s Intentions

It would be necessary to underscore this point by drawing an analogy to the university, for this distinction will become vital when it comes to discussing the issues of reproduction, adultery, infertile couples, etc. Without understanding this distinction, the issue would quickly become confused. This necessity is made more urgent by the fact the public media and popular conception has entangled highly subjectivised and romantic notions of “love” with sexual relationships and marriage, making the distinction between the social public purpose of marriage and the individual private intentions of couples all the more difficult to grasp.

The purposes of the university itself can be said to consist of mainly research and education. The purpose for which individuals enter the university however can be varied and many, some of which coincides with the purposes of the university, some of which are quite irrelevant to the ends of the university.

For example, some people may not be interested in an research or education, they think that most of the stuff they will learn in the university will be utter nonsense (*cough*arts*cough*) or useless for what they intent to do in the future, e.g. open a business, but they seek to enter purely for the purpose of getting the certificate as a safety fallback should they require employment. And then some may enter just to please their parents and make them proud, although they maybe more or less indifferent towards the subject matter for which they are studying. Others may want to enter the university as a means of financial social advancement, to attain that sense of personal achievement for moving out from their poorer socio-economic background into a better socio-economic group.

But these various intentions and purposes of the individual undergraduates are not to be confused with the ends and purpose of the university itself. The university does not exist just to provide you with a certificate, or to make your parents proud or to help you advance from one socio-economic class to another. The university exists to do research and education, and it does not concern itself with your subjective private intentions, but only with those objective public features about yourself which would enable you to serve the ends of the university, the most prominent being scholastic aptitude and academic ability.

Therefore the university admits only those who possess the objective characteristic necessary to meet the ends of the university, and bestows its degrees only upon those who satisfies and passes the examinations and tests set by the university which provides evidence (not conclusive ones to be sure!) that the undergraduate has in fact met one of the goals of the university, i.e. been educated. But in general, the university does not concern itself or require anything beyond these objective traits and normally does not scrutinise too closely the subjective intentions of the participants in the institution.

The Irrelevance of Passion and Being in Love with Marriage

It is important to note at this point that historically, no matter how many stories of passion there may exist throughout the ages concerning romantic lovers, romantic “love”, passion, happiness, etc, have often been considered irrelevant, or at least of very low priority, in the social purpose of marriage. In other words, marriage as a social institution did not exist to consummate or “affirm” love or passion nor make people happy; such elements do not constitute the public’s interest in marriage.

If anything, the public institution of marriage would frequently go against the interest of our happiness and passion by restricting the choice of our potential spouses, (no marriage within the bounds of incest, age limitations, etc), and by restricting our choice (and even number!) of sexual partners (i.e. the censure of adultery), even if we may be passionately “in love” or happy with such individuals who fall outside the bounds of such restrictions.

To be sure, many people do get married out of passion or because they are “in love”, but the public interest is not concerned with such subjective factors. Neither the state nor society considers “being in love” or “passion” to be a relevant prerequisite for getting married, and no marriage registrar or clergyman bothers to test for the passion of the couple seeking marriage. The form of the marital vow only asks and demands as to whether the couples would consent to love and care for each other, not whether they are in love. To love is a decision, an act of will, undertaking a responsibility and a promise regarding one’s future actions. To be in love is something which one suffers, in the here and now which one “cannot help” and not something which one rationally decides or takes responsibility for. The social institution of marriage is concerned only with the former, not the latter.

From here we may get a better sense of what is the social purpose of marriage. A marriage seeks to create an objective and permanent relationship which transcends the transient subjective features of the couples by imposing obligations which overwrites many of these subjective features, especially that of passion and happiness. The form of most marriages in the English speaking worlds still contains the formula of the Book of Common Prayer of the Church of England, which is doubtless familiar to most of us, whereby we vow to love and cherish “for better for worse, for richer for poorer, in sickness and in health”. This means that the obligations and duties of the vow takes precedence over our happiness and passion, and it would still hold and we would still be obligated to perform this duty long after our passion has run its course or even after we have ceased to be happy with our spouse (for better for worse!). As Hegel quote at the start of this post puts it,

…the end of marriage is the ethical end, an end so lofty that everything else is manifestly powerless against it and made subject to it. Marriage is not to be dissolved because of passion, since passion is subordinate to it…

Thus the essence of marriage does not consists of being happy or even being in love but in “the ethical end”, duty and obligation which surpasses these other considerations.

The Social Ends of Marriage: Sex and Procreation

The question becomes then what is society’s interest for recognising and enforcing this permanent relationship? Why does society or the state bother to impose these duties and restrictions upon couple, e.g. restricting their choice of sexual partners, etc? The answer is that society has a vested interest in its own continuation, persistence and survival across generations. As an entity which composes of people which transcends a single lifespan, it is concerned with the transmission of social and cultural capital unto the next generation, and thereby society’s interest in our sexual partners and in our sexual acts has to do mainly with its procreative significance and meaning.

I will justify this rather counter-intuitive claim (at least, counter-intuitive to our highly “Westernised” society) in a moment. But it is important to understand this statement rightly. It is not merely that society is concerned with procreation per se. In the dystopian movie, The Handmaid’s Tale, where 99% of the populace has become sterile because of pollution, the government literally regulates the behaviour and forces the rare fertile woman left into having sex with certain privileged man for the sole purpose of procreation. I assure you, this is not what I mean. I do not mean to say that society has a purely instrumental understanding of sex as a mere means of procreation disconnected from the attachment and relationship building significance of sex.

Rather, society is concerned with the organic unity of the attaching and relationship making significance of sexual acts and their procreative significance. To state in brief the main social purpose of marriage:

Marriage as a social institution seeks to unite the attaching and relationship creating significance of the sexual act with its procreative significance, that is, to direct the attachment to each other which comes with sexual acts into building a relationship which leads to the undertaking of the responsibility to love and care for their offspring who are, literally, created by this eros.

This account would explain a couple of features of marriages. For example, this is why marriage as a social institution forces couples to remain together even after the passion is gone for the raising of their children to adulthood. This also explains why the law, even in the most Western societies, today continue to recognise adultery as a legitimate “fault” grounds for divorce, because adultery is an offense against the marriage which seeks to direct all of the attachment significance of one’s sexual act purely towards the spouse. But before I discuss this at further length, I would need to justify this claim, or at least, make it more persuasive.

The Social Construction of Marriage

Now, it can be very easily objected that sex cannot simply be reduced to its procreative significance and that it possesses all kinds of highly personal and subjective emotional and passionate meaning, etc. However true this may be, especially given our current intoxication with romance, the public interest and the state isn’t concerned with these. Society and the state’s only interest in a sexual act is it’s objective, public meaning and significance, that is, it’s attachment creating significance, and society has an interest in sexual acts in relation to whether it is directed towards the love and care of children.

Consider for a moment if sexual acts have absolutely nothing to do with the resultant children, that is, if being a child was purely a matter of social convention, that is, society can arbitrarily decide whose parents one’s child is and who is to be responsible for it, why is there a presumption that the biological fathers have a duty towards the maintenance of children of which they have begotten, especially those out of wedlock and therefore those outside of the social definition? If being a child was purely a matter of social definition entirely disconnected from the biological sexual act which begot the child, then it would be perfectly irrational to expect and to force biological fathers who have undertaken no social responsibility to care for the mother and her offspring, to pay for the maintenance of the child which they begot since biological sexual origin has absolutely nothing to do with the care or responsibility of the child.

I am fully willing to grant that societies’ attempt to direct all of a couple’s sexual energy and actions to build up a relationship towards the duty of caring for the offspring of such a relationship is a social “construction”. This is not a universal norm for most of human history, being a very special particularity of European Christendom. In our not too long ago Chinese past, it was the norm among our grandfathers, at least the richer ones, to have multiple wives, including concubines. In classical antiquity, Roman husbands could freely visit prostitutes and their wives could not cite this as a ground for divorce! In classical Greek society, it was usual for adolescent boys to be given to adult male mentors, with their father’s permission, to be educated and to aid in the adolescent’s development of “manly” virtues which often involved sexual intercourse between them whereby the youth would be inflamed for erotic love of masculinity and grow in it as we can read from Plato’s Symposium.

However, even the Greeks who approved of this practice  of homosexual pederasty did not confuse it with marriage itself, and have kept retained the procreative significance of marriage as we can read in the same work,

When they reach manhood they are lovers of youth, and are not naturally inclined to marry or beget children,-if at all, they do so only in obedience to the law; but they are satisfied if they may be allowed to live with one another unwedded.

Thus, even in societies which freely practiced homosexuality, they never confused the private love and passion of homosexuality with the public ends and purpose of marriage, that is, the care of children. However such a society necessarily “fractures” a person between this private passion and his public duties, whereby individuals’ energy was simply directed towards the “happiness” and pleasure of each other, while their concern for the society of which they are part of, especially the duty care of future generations, was considered to be a mere “external” duty commanding no true interest or loyalty. As the Chief Rabbi Jonathan Sacks observed,

For the Greeks, the political was all. What you did in your private life was up to you. Sexual life was the pursuit of desire. Abortion and euthanasia were freely practised… The Greeks produced much of the greatest art and architecture, philosophy and drama, the world has ever known. What they did not produce was a society capable of surviving.

The Athens of Socrates and Plato was glorious, but extraordinarily short-lived. By now, by contrast, Christianity has survived for two millennia, Judaism for four. The Judaeo-Christian ethic is not the only way of being moral; but it is the only system that has endured.

A vital question which we need to ask ourselves is whether we as a society would want to retain the form of life which we have received from our Judeo-Christian heritage (through our British colonial administration), the form of life which creates an organic unity between the eros and attachment of sexual acts and the care of their subsequent offspring.

Now, it is entirely possible to imagine a sort of society whereby the care of children is in fact entirely disassociated from the eros which gave it life. In Ursula Le Guin’s The Ones Who Walk away from Omelas, she describes precisely such a society in these terms,

Surely the beautiful nudes can just wander about, offering themselves like divine soufflés to the hunger of the needy and the rapture of the flesh. Let them join the processions. Let tambourines be struck above the copulations, and the glory of desire be proclaimed upon the gongs, and (a not unimportant point) let the offspring of these delightful rituals be beloved and looked after by all.

(bold mine)

In such a society, children are literally the children of “all”, the entire society, they do not belong to the biological parents who begot them. Eros is truly disconnected from loving care. I am not aware of any such societies in existence, but I am inclined to believe that it is not a sustainable arrangement, or would require an astronomical, if not prohibitive, amount of social planning, centralisation and resources to maintain.

However, I may simply safely assume that most of you reading this do not believe that erotic sexual acts are to be dissociated from the love and care for the child begotten by such eros. And I believe that there are good reasons which grounds this intuition. We shall consider it from two points of view, that of the parent and that of the child.

The Social Directing of Eros into Parental Care

From the point of view of the parent, it is difficult, if not impossible, to deny the special particular significance of loving a child of one’s own created by the eros and marriage which binds the couple together. Even in popular culture, there still remains the saying of “I want to have your children” as one of the highest expression of desire for a permanent relationship. One’s sexual eros which attaches itself and cherishes the particular features, traits and characteristic of the beloved, both physical and personal, who likewise reciprocates this eros for oneself in all of one’s particularity, passes on to one’s children all these cherished particular traits and thereby in turn cherishes and seeks to nurture the child who was begotten out of each other’s eros, possessing those features and traits and characteristics which one cherishes in one’s partner in union with one’s own, a union literally embodied and incarnate.

To put this in more explicit and rigorous detail would require quite a long detour into philosophy. But for the purposes of this note, it is sufficient simply to note that we do think that one of the objective significance of sexual acts which society is concerned with is its procreative and child begetting significance, that there does exists a link between sexual eros and the love and care of children which is the product of such eros, even if for the broader public, this intuition is hard to explicate. But when one sees movies such as Up which contains the scene where the protagonist Carl who marries his childhood friend Ellie later discovers that she is unable to conceive as Ellie sits crying while the doctor explains with gestures her condition, we know that something important has been lost. If the love and care which one has for adopted children was qualitatively indistinguishable from the love and care for one’s own begotten children, then the grief of Ellie, and for all other woman who cannot conceive, would be incomprehensible, if not utterly irrational, for she can simply substitute with infinite ease begetting her own children with adoption. But this grief is one of the most powerful evidence for the intuition which most people still maintain for link between the eros which a couple has for each other and the care and love for the children which comes from such eros, an intuition as old as time and which may have some biological basis.

From the child’s point of view, it is important for the child to know his or her biological physicality and highly individual and personal traits which he or she was born with, are cherished by someone, cherished enough for that someone to have desired their perpetuation, they passing it on into him or her. Without this familial context, which endows our biological physicality and particular traits with a worth and value derived from our parent’s love for one another, our being as particular individuals would be subjected to the merciless, cold and uniform standards of beauty, worth and value of commercial world, as we are alienated from the particular selves we are and seek instead to simply conform to the winds of fashion out there. Thus, the needs of the children to be raised in a safe environment, justifies the unity of the significance of the sexual act and procreation.

The dangers of reasoning about “constructs” is that we assume that just because something is a construct therefore it is “infinitely plastic”, as if we could shape and change it anyhow we please without consequences. A car, for example, is a construct, our invention, but that does not mean that we can simply construct a car however we please ignoring the laws of physics, for we may end up with a car which explodes when we start the engine. And even if we can build a car which doesn’t explode in our faces, without proper regard for the conditions of the empirical world, we could still end up with a car which consumes a prohibitive amount of petrol to be practical.

Most of our most cherished things in life are constructs, art, music, money or currency, even morals, and being a construct is not their flaw but their glory. A life “purely natural”, a life devoid of all conventions and human constructs, is also a “solitary, poor, nasty, brutish and short” (Hobbes) as we descend into the “state of nature” “red in tooth and claw” (Shakespeare). To be sure, being a construct means that they are changeable, if not eliminable altogether. However, we need to ask ourselves if indeed in our iconoclastic zeal, we may lose something important, something precious in the process.

For if it true that that this organic relation between a couple’s sexual eros for each other, and the care and love which the couple has for the child, who are the literal offspring of this eros, is a social construct, that is, maintained by society’s imposition upon the biological parents of children, begotten by their sexual act, of parental responsibility and duty to care or at least provide for children, then the ideal of the tie between a couple’s eros and the care of their children would be lost if society did not seek to actively maintain this link. Society does this not only by making biological fathers pay for the maintenance of children out of wedlock, but mainly through the institution of marriage itself, which serves as the standard, the ideal, the order for the directing of sexual energy into building a relationship which provides for a home for the offspring of precisely these eros. To be sure, this ideal is sometimes not met, the order is often broken. But just because an ideal is not met or the order broken does not therefore imply that the ideal or order is not good, any more than the fact that a country’s laws are no good simply because they are broken, or a music composition is bad because it was poorly performed.

Even if we disagree with this ideal, the question is whether there is a credible workable and good alternative by which it can be replaced, and to the best of my knowledge, I do not think there is, save for the ideal of Omelas. In short, we have to choose between the ideal of the organic unity of eros and care, or the completely replacement of biological parents with a surrogate “social” parent of the collective whole, e.g. the state, etc. For the purpose of this discussion, I shall simply assume that the presumption will be for the former. To conclude this section, given the intrinsic purpose of marriage to tie together one’s sexual act with the children who are precisely the offspring of such actions, this is why marriage is an inherently heterosexual institution. Homosexual sexual actions and the relationship created thereby, by definition, does not lead to offspring, and thus cannot participate in the ends of marriage.

Let us then address some of the common objections which could arise out of this conception of marriage.

Marriage as a Social Institution (II): Premarital and Extramarital Sex and the Enforcement of the Marital Ideal

Marriage as a Social Institution (III): Lack of Intention to start a Family and Infertility

Marriage as a Social Institution (IV): Gay Rights, Adoption, Civil Partnership, 377A and Further Links on Other Related Issues