This post is part of a series of posts which started out as a single unified whole, but was later found it 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 points here may have its explication in some of the earlier posts. However, one must read the first post which provides the necessary background and fundamentals for the whole discussion by explaining and justifying marriage as a social institution for uniting the attachment creating significance of sexual acts with love and care for the offspring of such acts.

Ye (Somewhat) Comprehensive Guide to Marriage as a Social Institution (I): The Heterosexual Essence of the Order of Marriage

It is None of Society’s Business Who I Sleep With and For What Purpose or Reason!

Perhaps so. But this is not only an argument against marriage as a social institution for the uniting of sexual actions with procreation, but it is an argument against the very idea of marriage itself. Marriage, as a public social institution, by definition concerns itself precisely with who you sleep with and imposes obligations concerning who you may have sex with. And although of course marriage as a social institution does not concern itself with whatever subjective meaning sexual acts may have for you, and thereby you are free to read whatever meaning you want into your sexual acts, but marriage does impose a boundary which such subjective meanings maybe allowed to have. As already noted, a marital promise will require you to forsake your passion and happiness in service and duty to your spouse and children, even if you entered into the marriage because of happiness or passion. The marriage itself transcends this reason and becomes an obligation and reality unto itself and unto its own ends. As Hegel puts it, it is a contract which transcends the standpoint of contract, a marriage exists precisely to create something more lasting and permanent than just passion and happiness, and makes it very costly and difficult, if not impossible, to get out of the marital tie.

This is one reason why laws governing marriage unashamedly defines sexual acts in all its carnal physical and cringe-inducing detail. It is precisely the business of marriage to concern itself with who you sleep with, and thereby provide substantive meaning to those obligations entailed by the promise to marital fidelity, by defining what adultery is in the most gross, physical and explicit manner, that they might have a working legal and public definition to determine whether or not an adultery has occurred which offends against the public objective martial promise, and might thereby serve as a ground for its dissolution. (It is an interesting question as to how places which institutionalises same-sex marriage, especially in English speaking nations, is going to deal with laws concerning adultery which constitutes ground for the dissolution of marriage. To define adultery, they will need to define what are the homosexual sex acts which constitutes adultery, and they’ve no idea how are they going to be able to do that, as the English are now beginning to discover.)

So to say that it is none of society’s business what you do with your sexual organs is  to say that there should not be the social institution of marriage in the first place, which precisely creates promises and obligation which tells you what you can or cannot do with your sexual organs. Let us recall the example of friendship at the start. Who you are friends with is truly none of society’s business, nor does society care who you are friends with. You do not register your friendship with the state, nor does the state bother to ask you who are you friends with or record or “affirm” such relationships. But the only reason why society would take an interest in one’s sexual acts, enough interest to create an entire social institution with laws and obligations regulating its behaviour, is precisely because of its ultimate procreative significance. Once we severe the link between procreation and sex, there is in effect no reason at all for the institution of marriage, to ask people to register their marriage with the state would be on par to asking them to register their friendships with the state, a waste of public resources at best, an intrusion into a private affair at worse.

It is interesting to observe that in the not too distant past, many gay activists and advocates would have never have imagined getting married, considering the institution of marriage to be an oppressive bourgeois institution which imposes limits upon one’s sexual freedom. And as we have seen, the reason why marriages imposes such limits upon one’s sexual freedom is precisely to direct the eros of sexual acts into the love and care for the offspring of such eros. Without this procreative context, the restriction in effect makes very little sense, to sever more and more of the link between sexual eros and care for its offspring is to move towards the Omelas ideal.

In short, there is simply no reason for society to create an entire system of laws just to keep two people together. The only reason why marriage exists as a social institution is precisely of its social significance, e.g. the continuation of a society via procreation, and the direction of the eros of sexual acts towards these ends.

What about Premarital Sex? If Society was truly interested in forcing all sex into procreation, why don’t they censure premarital sex?

Firstly, historically premarital sex was not really considered to be an evil in itself anyway. Even the Old Testament with its most draconian sexual regulations did not consider premarital sex to be a sin needing atonement or sacrifices. However, and this is a rather widespread phenomena, they did require that couples who had premarital sex be married. In many societies, social stigma and norms do make copulating couples marry without the censures of the law, this being one of the reasons why most society’s civil laws had never bothered to write a requirement for copulating couples to get married.

If society had any interest in premarital sex, it would be once more its procreative significance, that is, the woman who got pregnant by such sexual acts. Of course in the days before widespread abortion or contraception, this occurred rather frequently with premarital sex and more often than not, they were simply made to marry to force the couple to take responsibility for the child. Although curiously enough, before the Christianization of Europe, it was acceptable for classical Romans and Greeks woman to simply dispose of the illegitimate infants in the wilderness, the practice known as “exposure” or “exposing” the infant to the wild. But in cultures which places a higher value in progeny and life, such as Chinese and Christian cultures, this was simply not an acceptable option.

Therefore the question before us is how far can or should the social ends of marriage, that of uniting the eros of sexual acts with its procreative significance, be extended to those have not entered the institution of marriage, that is, to what extent should this social institution determine the sexual behaviour of those who are unmarried.

The Feasibility and Desirability of Legal Censure of Premarital Sex

Now, no matter how undesirable or wrong one might think premarital sex is, there is simply the practical question as to whether or not the state can realistically criminalise such acts. There are many social goods and evils which are not feasible for the courts to enforce or censure, such as truth-telling or keeping promises. It is simply not practically possible for the legal system to attempt to prosecute all liars or promise breakers by virtue of the fact that the facts of such cases are impossible to establish (what did he really say to you? Did he promise this? What are his words exactly? Where’s your evidence), and further more, the social gains from such prosecution would be marginal compared to the astronomical legal cost of trying every such case in a court of law. Society and the courts only becomes interested in a lie or a promise only when it has measurable, public and objective effects, such as libel/slander which could lead to a loss in reputation, sales, etc, or a contract or business/official transaction where it is a promise concerning measurable and objective goods and services promised which is not delivered, in addition to such objective effects being significant enough to justify the legal cost of submitting such cases to the legal process.

The same could be said of premarital sex, that the facts of such cases are impossible to determine and establish, especially if it is consensual and they are probably going to deny everything, the social gains from such criminalisation are quite marginal compared to the legal cost and complexities of trialing such cases. Thus upon these practical considerations alone, the state censure of premarital sex would be practically impossible to enforce. And just like lies and promises, the state is only concerned with premarital sex when it has public objective effects, that is, when a pregnancy out of wedlock occurs, then the state is concerned with who is the biological father and progenitor of the child to impose the obligations of child support, etc. However, because we’ve inherited the Western understanding of marriage whereby consent constitutes its essential premise, therefore it is impossible for our laws to force the biological father to marry the mother without his consent. Otherwise, the policing of premarital sex has, as already been noted, been entrusted to society itself via the subtle localised pressures of stigmas and social disapproval, etc.

But then now we come to the much more interesting question of whether or not all sexual acts should necessarily be directed towards the ends of procreation, that is marriage and family. Even if premarital sex is not a wrong in itself, there is still the question as to whether the traditional social stigma and pressure of forcing or pressuring copulating couples towards marriage should remain.

Now, it could be, not unreasonably, be argued that the social ideal of marriage should be restricted only to those who participate in the institution of marriage, and that everyone else outside of it should be free to do as they please with their sexuality. This argument is strengthened further by considering the fact that the “public consequences” of sexual acts can be significantly curbed, if not eliminated altogether, by the availability of contraceptives and abortion, and thereby there isn’t any real grounds for making it normative for sexual acts to be directed towards marriage. While it is proper and right for married couples to direct their sexual acts towards each other, but on the other side of the great “I do” divide, no such restrictions should or do hold.

But it is an open question whether this great divide in the significance of sexual acts pre-“I do” and post-“I do” could be sustained in any coherent manner. The point of restricting sexual acts to within the marriage is premised upon the phenomenon that sexual acts do create significance and attachment between copulating couples, significance and attachment which is built up in preparation for the eventual care of offspring of this erotic tie and attachment. The argument that the entire region before the “I do” frontier should simply be allowed to roam free with as many partners as possible, is precisely a denial of the attaching and relationship creating significance of sexual acts. From sexual acts as relationship building and reinforcing actions, they become simply passing pleasures to be experienced and sampled in all its varieties and richness, or at least, passing encounters with with a multitude of strangers. It is important to be reminded that the idea of monogamy and sexual exclusiveness is a difficult cultural evolution and achievement of the Christian civilisation. The very practice of keeping concubines and the fact that Roman husbands used to be able to legally keep concubines and visit prostitutes without the threat of divorce is a testament to the possibility of a culture whereby the attachment and relationship building significance of sexual acts have been divorced from marriage itself, a culture whereby sex is purely about pleasure which we may freely indulge in without relationship significance, and marriage was purely concerned with procreative significance of sexual acts and nothing else. If one denies that sexual acts do possess these attaching and relationship building significance, then it is hard to see why in fact we should consider adultery to be an offense against marriage, and not simply posit that a married couple can sleep with anyone they like, as long as they only have children with each other, a true reductionism of martial sexual acts to procreation, the purely “instrumental” understanding of martial sexual act as just a means to procreation.

Fortunately, as it has already been noted, this issue is not one which would impinge upon the state as there is no realistic possibility or capability of the state to prosecute premarital sex. However, to the extent that the state has influence over the character formative institutions, e.g. education, social services, etc, the civic society as a whole do, and should, promote social policies which guides and enhances the attachment and relationship building significance of marriage and discourage sexual practices which nullifies or negates these significance.

As long as the institution of marriage still remains a meaningful one, this ideal would continue to haunt the social consciousness, and although we cannot force the biological fathers to wed the mothers of their child, we would still judge that something has been lost here, and we would still believe such an arrangement to be regretted, and as much as charity and aid should be provided to help single parents, whether through charities of civic society or the state, the state should and does actively discourage such arrangement through its norm setting institutions.

Here are the next posts:

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

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