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A Kantian Conception of Rightful Sexual Relations: Sex, (Gay) Marriage, and Prostitution

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This paper defends a legal and political conception of sexual relations grounded in Kant's Doctrine of Right. First, I argue that only a lack of consent can make a sexual deed wrong in a legal sense. Second, I propose that all other legal
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   Social Philosophy Today  , Volume 22   199  A Kantian Conception of RightfulSexual Relations:Sex, (Gay) Marriage, and Prostitution H ELGA V   ARDEN Abstract: This paper defends a legal and political conception of sexual relations groundedin Kant’s  Doctrine of Right  . First, I argue that only a lack of consent can make a sexual deedwrong in the legal sense. Second, I demonstrate why all other legal constraints on sexualpractices in a just society are legal constraints on seemingly unrelated public institutions. Iexplain the way in which the just state acts as a civil guardian for domestic relations and as acivil guarantor for private property and contract relations—and thereby enables the existenceof legally enforceable claims. Throughout the aim is to demonstrate that Kant’s relationalconception of justice entails that legally enforceable claims regarding sexual deeds are fullyjustifiable only insofar as they are determined and enforced by a public authority that we mayrefer to as a liberal democratic welfare state. I. Introduction T his paper defends a legal and political conception of sexual relations groundedin the Doctrine of Right  in Kant’s Metaphysics of Morals  . 1 First, I argue that onlya lack of consent can make a sexual deed wrong in the legal sense. 2 According toKant’s relational account of justice, consent is necessary to make any sexual actionsrightful. This means that insofar as the actions in question are exactly deeds  , andconsequently are attributable to legally responsible persons who have voluntarilyundertaken them, they cannot be justifiably outlawed. The only consensual sexualrelations that can be outlawed are those involving persons who are incapable of consent in the legally significant sense, such as children.The relational nature of Kant’s account of right also underwrites my secondclaim, which is that all other legal constraints on sexual practices in a just societyare constraints on the public institutions within which they operate. This argumentbegins with Kant’s general view that we have a strict duty to enter civil society,  Science, Technology, and Social Justice 200 since just relations are possible only within a  public  , liberal legal framework. Inparticular, I argue with Kant that certain public institutions are required in orderfor consensual sexual relations to give rise to legally enforceable claims. I suggestthat the stronger interpretation of Kant on this point maintains that the state mustact as a civil guardian for domestic relations and as a civil guarantor for privateproperty and contract relations in order to give rise to legal claims concerningsexual deeds.Finally, I show that Kant’s systematic position has an important contribution tomake to the current debate over homosexual marriage and the legality of prostitution. After an exploration of Kant’s position on domestic right (“status relations”), I showwhy denying homosexual couples the right to marriage is not primarily an issueof equal rights but rather an issue concerning the right of one person to establisha rightful domestic sphere together with another. By means of an exploration of Kant’s arguments concerning rightful private property and contract relations I arguethat though there is nothing legally impermissible about consensual trade in sexualservices as such, the rightfulness of the industry depends upon the public institu-tions within which it operates. In my view, these conclusions are not readily seenbecause the interpretive tradition has focused too much on Kant’s comments aboutthe immorality of sexual actions. I suggest, contrary to most Kant interpretationsand even to Kant himself, that these conclusions regarding homosexual marriageand prostitution actually follow from Kant’s theory of justice. II. Kant’s Account of Rightful Sexual Relations Kant defends a relational conception of justice. This relational conception of justiceis developed from what Kant takes to be the starting point of any liberal theoryof justice, namely each individual’s innate right to freedom. The innate right tofreedom is understood as the right to “independence from being constrained byanother’s choice . . . insofar as it [the choice] can coexist with the freedom of everyother in accordance with a universal law” (6:237). 3 The innate right to freedomis relational in that it conceives of justice as arising only amongst interactingpersons, and it understands the rightfulness of their interactions as consistingin the relation established between them when they interact. Kant argues that aperson’s innate right to freedom is respected only if her choices, or the ways inwhich she sets and pursues ends with her rightful means (her body, her causality 4  and her rightful possessions), is never subject to another person’s arbitrary choice,but only to universal law. 5 That is, a person’s freedom is subjected to another’s arbitrary  choice when the other  person decides how she uses her rightful means,namely by forcing her to use her body, to act or to use her private property ina certain way. To have one’s freedom or one’s ability to set and pursue ends of one’s own subjected to another person’s arbitrary choices in this way is to be   A Kantian Conception of Rightful Sexual Relations201 enslaved, according to Kant. Such wrongful subjection of one person’s freedom toanother person’s arbitrary choice involves not only subjecting a person to another’s contingent  wishes and desires; the restrictions upon them as interacting personsare also asymmetrical  . In contrast, rightful restrictions are universal  restrictions.Interacting persons are constrained by universal restrictions if these restrictionsare non-contingent and symmetrical. Non-contingent restrictions do not embodyany particular person’s private conception of what constitutes good restrictions,and universal restrictions limit the interacting persons’ actions symmetrically orin the same way. Therefore, Kant’s conception of justice is inherently relational inthat it characterizes political freedom as the absence of arbitrary (contingent andasymmetrical) imposition of might amongst interacting persons by demandingthat interacting persons are constrained only by universal (non-contingent andsymmetrical) restrictions.Given that Kant grounds his theory of justice in each person’s innate rightto freedom, it is most surprising to discover that his analysis of sexual practices isfundamentally informed by a distinction between natural and unnatural acts. Inthe “Doctrine of Right” Kant argues that Sexual union is . . . the reciprocal use that one human being makes of the sexual organsand capacities of another. . . . This is either a natural use (by which procreation of abeing of the same kind is possible) or an unnatural use . . . with a person of the samesex. . . . Since such transgression of laws, called unnatural . . . do wrong to humanityin our own person, there are no limitations or exceptions whatsoever that can savethem from being repudiated completely. (6: 277) ‘Natural’ sexual union refers to sexual deeds involving two persons of oppositesex who make reciprocal use of each other’s sexual organs and capacities in away that is consistent with procreation. To engage in any other sexual practices,Kant appears to argue, conflicts with our innate right to freedom, because it is anunnatural use of our sexual organs and capacities. Heterosexual acts are the onlynatural acts, whereas all other acts are unnatural—including, of course, homo-sexual acts. 6 If this is the correct interpretation of Kant here, the problem is thathe must be mistaken about his own theory. The reason is that homosexual acts,or acts not in line with procreation, are not in conflict with one’s innate right tofreedom. The innate right to freedom gives one a right to independence from hav-ing one’s freedom subjected to another person’s arbitrary choice, but there is nosuch wrongful subjection in consensual  sexual interactions amongst morally andlegally responsible persons. 7 That is, according to Kant’s legal and political theory,sexual relations are rightful as long as they are consensual. So even if we can givean explanation of why consensual homosexual practices involve a morally  moreobjectionable subjection to animal desires than heterosexual practices consistentwith reproduction, 8 it simply appears irrelevant to the legality  of these actionswhether or not they are in agreement with some teleological conception of human  Science, Technology, and Social Justice 202 nature. 9 Rather, I suggest that Kant’s considered opinion must be that a morallyand legally responsible person has the right to choose any particular sexual endtogether with another consenting legally and morally responsible person. A personcan, of course, change his mind at any point, and if his sexual partner does notrespect his change of heart, then he is being wronged (raped). 10 But insofar as hevoluntarily and continuously consents, the sexual deed must be legally permissibleif we are to be consistent with Kant’s account of justice. 11  For this reason I do not think that Kant’s own position can claim that certainsexual activities, such as same-sex practices, anal sex, oral sex, three- or more-somes,filming sexual activities, or providing sexual services in return for money, are legallyproblematic in themselves. In my view, Kant’s distinction between natural andunnatural acts must be thrown onto the already considerable pile of unsustainableprejudicial attitudes towards non-traditional and non-heterosexual sexual prac-tices held by prominent thinkers in the history of legal and political philosophy.Contrary to what seems to be the case, if we remain faithful to Kant’s systematiccommitment to the individual’s right to freedom, it is impossible to consider thesex (a biologically-based distinction) or gender (an identity-based distinction) of sexual partners as relevant when determining the legality of their practices. For theremainder of this analysis I simply ignore the prejudice and instead concentrate onwhat I take to be the philosophically interesting aspects of Kant’s explicit discussionof rightful sexual relations between persons. Those aspects are, first, Kant’s argumentthat legally enforceable claims with respect to adult sexual relations (domestic orotherwise) can give rise to enforceable claims only within civil society, since onlycivil society can enable legally enforceable  claims between persons. Second, withinthe state of nature any use of coercion against another person, such as against one’sspouse or against someone with whom one has contracted for sex, is wrongful,since it is an arbitrary (contingent and asymmetrical) use of might. III. Rightful Domestic Sexual Relations between Adults Kant’s explicit discussion of enforceable legal claims with respect to our domesticsexual relations is found in his account of what he calls “status relations.” 12 Kantenumerates three types of status relations: those arising when parents obtain children,when husbands obtain wives, and when families obtain servants (6: 277, cf. 27:642). 13 At first glance it is most puzzling why Kant puts these three relations in thesame category. Why does Kant judge there to be a similarity or link between theseapparently very different relations? In my view, Kant considers these relationshipssimilar to one another and distinct from all other legal relationships in that theyinvolve legally enforceable claims concerning the private life of another person. Thisis why Kant explains that a status relation is a relation between persons in whichone person has the right to ‘make arrangements’ affecting another person’s private   A Kantian Conception of Rightful Sexual Relations203 life (6:259) and why he argues that status relations concern ‘what is mine or yours domestically. ’ He also claims that the right to make arrangements for another is the‘most personal’ of all rights (6:277). In fact, one of Kant’s more remarkable claims isthat this  personal  kind of right, or this type of “possession,” can be analysed neitherin terms of property right nor in terms of contract right. 14 This is because propertyright cannot capture that it is a person who is the “external object” of possession,whereas contract right cannot capture how “personal” rights result in one personobtaining legal standing or status in relation to how another  person conducts herprivate life. Therefore, neither property nor contract right can provide the frameworkwith which to analyze this type of right.It is not hard to understand why property right cannot be the mode to analysethe marital relation between husbands and their wives. After all, if it were, then wewould possess persons as things—and this is slavery. But why can we not analysemarriage as a contractual relation? Similar to the problem with a property analysis,a contractual analysis of marriage would make the marriage contract into a slavecontract. This is why Kant argues that in status relations consent cannot do thelegitimating work it does in contracts. 15 The problem is that status relations giverights to  persons rather than rights against  persons, which means that one personobtains a standing with regard to how another person lives her private life. Theproblem is that a person cannot, even if consenting, enter into a relation where herown person is no longer subject to her own choice but rather to another person’sarbitrary choice. Such asymmetrical subjection is slavery. Hence, even if a womanconsented to subject herself (her private life) to her husband’s arbitrary choices inthis way, their agreement cannot be a legally enforceable contract. To restate, wivesare morally and legally responsible persons, and their consent is necessary for right-ful relations. Yet their consent to give their husband a standing with regard to theirprivate lives is insufficient to give rise to legally enforceable claims. The problem isnot only that wives perform a rather open-ended set of (morally permissible) tasksthat can be loosely understood as supporting their husbands. And the problem isalso not only that wives are legally bound to assist their husbands themselves  , in thesense that wives cannot sub-contract their tasks to others in the same way that, forexample, a carpenter can hire another carpenter to do the job for him. Rather, thereason why the kinds of agreements involved in domestic relations are classified byKant as belonging to the category of  status  is that husbands obtain legally enforceableclaims against the private lives of their wives. In other words, through marriage thehusband obtains a certain status in relation to his wife’s private life. He obtains aright that she shares her domestic sphere, including her sexual life, with him onlyand that he has a say in how she lives her private life. The reason why contract rightcannot be the vehicle for analyzing the marriage relation is that a contract that givesthis kind of right is essentially a slave contract. Thus, a status relation regulated bycontract right is not legally enforceable because it is tantamount to slavery.
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