Writing in 1797, Kant’s exploration of the doctrine of right or the pure theory of right, strays into some interesting tangents here and there, including a couple of pages about a topic that Kant himself had very little personal experience: sex. Naturally, a lot of Kant’s views are coloured by the time he is writing, but nonetheless an examination of his claims – and an expansion of them in line with contemporary thought – offers some interesting perspectives. (I suggest suspending judgement on Kant’s views as written until we see what they actually imply today).
“Sexual union” Kant states “is the reciprocal use that one human being makes of the sexual organs and capacities of another”. He further suggests that this is either a natural or an unnatural use, the latter being “either with a person of the same sex or with an animal of a nonhuman species”. Kant claims:
Since such transgressions of laws, called unnatural (crimina carnis contra naturam - “carnal crimes against nature”) 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.
Harsh words! Contemporary liberals, as de facto allies of alternative sexuality (at least as far as homosexuality), vilify this line of argumentation, and Kant does not so much develop this part of his argument as assume that everyone is more-or-less in agreement with his assumption here. It was, after all, the end of the eighteenth century – society was coming to terms with the end of feudalism, and was in no way ready to think about sexuality outside of the context of procreation, and “unnatural” sex is by definition not procreative.
Kant claims that natural sexual union can occur “either in accordance with mere animal nature or in accordance with law” the latter being marriage “that is, the union of two persons of different sexes for lifelong possession of each other’s sexual attributes”. He does not suggest that having children is a necessary requirement for marriage:
The end of begetting and bringing up children may be an end of nature, for which it implanted the inclinations of the sexes for each other; but it is not requisite for human beings who marry to make this their end in order for their union to be compatible with rights, for otherwise marriage would be dissolved when procreation ceases.
Even if it is supposed that their end is the pleasure of using each other’s sexual attributes, the marriage contract is not up to their discretion but is a contract that is necessary by the law of humanity…
In other words, Kant proposes that ‘no sex before marriage’ is “necessary in accordance with pure reason’s laws of right”. His argument is intriguing: Kant claims that when one person uses another’s sexual organs for enjoyment (which is a “natural use”) they make themselves into a thing – that is, they give up their autonomous will (the hallmark of humanity that grounds Kant’s ethical system) and become like animals i.e. things as opposed to persons. Ordinarily, treating people as mere things is forbidden by Kant’s ethics, however, he allows one condition that might make it permissible:
…that while one person is acquired by the other as if it were a thing, the one who is acquired acquires the other in turn; for in this way each reclaims itself and restores its personality.
In other words, it’s okay to use someone for sex as long as the other person is also using you for sex. Kant requires, however, that this is possible only under the condition of marriage – which seems strange by today’s standards. His argument against the alternative rests on the idea that a rightful contract for sex could not possibly hold since:
…everyone will admit that a person who has concluded such a contract could not rightfully be held to the fulfilment of her promise if she regrets it… Accordingly, either party can cancel the contract with the other as soon as it pleases without the other having grounds for complaining about any infringement of its rights.
Or, to put it another way ‘no means no even if you earlier said yes’. Since contracts between people are, at least in terms of the theory of right, binding, Kant sees the inability to make a contract for sex (other than a marriage contract) as the reason why marriage is a requirement for sex: it is the only kind of contract that can legitimise consensual sex in his eyes, and the fact that this also prepares the way for the raising of children (the natural, but not required, outcome of conjugal intercourse) this satisfies Kant as to the justice of his position.
Now Kant did not believe that ethics was something that could be worked out entirely in advance, but rather held that there was a metaphysical aspect to moral thinking which, being untestable but reachable by reason, could be worked out in advance. But this metaphysics of morals could only be made into an actual moral or legal system by taking into account what he terms a “practical anthropology” i.e. the empirical study of the nature of humanity. Since our practical anthropology has come along quite considerably since Kant’s time, we can reasonably update Kant’s claims in line with contemporary empirical views on the human animal.
One of the biggest changes in this regard is the divorce between sex and procreation. We not only no longer think of children as a necessary consequence of sex, we no longer think of sex as a necessary prerequisite for children – think, for example, of surrogate mothers. However, since Kant does not rely on this relation for any of his claims (even though his thinking is obviously underlined by it) this aspect of contemporary times doesn’t really bear on his ‘sexual ethics’. We can, perhaps, now assert at the very least that viewing (potentially) procreative sex as ‘natural’ and all alternatives ‘unnatural’ understates the nature of mammalian sexual biology. Canadian biologist Bruce Bagemihl has presented compelling evidence that what he terms biological exuberance in respect of sex is the norm; homosexual and bisexual behaviours occur in some 300 different species, and procreation is just one of many functions that this sexual activity serves (others including group cohesion and lessoning of tensions).
Another change that should be taken into account is in the way we now think about contracts with serious implications. If, for instance, we enter into a long-term contract with (say) a telephone service provider, we are allowed (say) a month in which to cancel this contract without prejudice. Once these kinds of clauses are accepted, Kant’s argument against non-marital contractual sex disappears: the fact that either party can (as he suggested) cancel a verbal contract for sex at any time needn’t invalidate the nature of that contract as long as it stands. As such, therefore, consensual sex becomes an extremely short-term substitute for a marital contract, allowing both parties to use the other’s ‘sexual attributes’ for enjoyment, even though so doing reduces both parties to the status of a thing (or, which is equivalent in Kant’s metaphysics, an animal). The breaking of the connection between sex and procreation via contraception does weigh in on this, and it may be possible to argue that this kind of ‘casual sex contract’ implies the use of contraception.
If our practical anthropology allows for homosexual sex – and the case for this has become quite strong, whether or not (as some people believe), homosexuality is genetically determined – then these two rightful contracts for sexual enjoyment extend naturally to gay people who are just as capable of exercising their autonomous will such matters. Certainly, the ‘casual sex contract’ presents no different issues once homosexuality ceases to be an “unmentionable vice”. Marriage too seems to extend naturally here – after all, Kant already allows that raising children is in no way a prerequisite for marriage. At the very least, it is implied by Kant’s pure theory of right that a contractual relationship equivalent to marriage must be allowed between a homosexual couple (once our practical anthropology validates this kind of sexual relation). That this relationship should be called marriage is neither a metaphysical nor an empirical matter, however, and the issue of what to call such a contract is thus a matter for individual legislatures to wrestle with according to the will of the people it represents.
Kant never married and, we can safely assume, was a virgin his entire life, but his thoughts on sex are not as dated as they may first seem. The idea of a contractual basis for rightful sexual congress is one that we still deem moral today – as indicated by the outrage that accompanies a verdict of rape. We can use each other for sexual enjoyment, even though in so doing we become ‘mere animals’ or ‘things’, solely on the provision that we are consensual equals when we agree do so. This is one of many examples demonstrating how Kant’s metaphysics of morals are as apt today as they were two centuries ago.