Kant\'s Sexual Contract

Kant’s Sexual Contract Ryan Patrick Hanley

Marquette University

Kant’s views on sex and marriage deserve the renewed attention of political scientists for three reasons. First, Kant’s theory of marriage was shaped by his engagement with Rousseau’s political thought and especially his Social Contract—a key if unappreciated side of his engagement with Rousseau. Second, Kant’s application of Rousseau’s political theory to marriage suggests an egalitarian view of marriage’s nature and function that helpfully illuminates marriage’s role in a liberal society of free and equal persons. Third, in appropriating Rousseau’s egalitarianism for his theory of marriage, Kant transfers his foundational concern with equality from the public to the private sphere: a move that suggests liberal political institutions require more than mere commitment to procedural neutrality for their perpetuation but require also a commitment to equality best cultivated by certain types of private associations and personal relationships.

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urning to Kant to learn about sex seems perverse; turning to Kant on sex to learn about politics even more so. Yet Kant’s views on both sex and marriage in fact deserve scholarly attention—and especially the attention of political scientists—for three reasons. The first concerns Kant’s sources.1 As I argue below, Kant’s theory of marriage was decisively shaped by his engagement with Rousseau’s political writings and with his Social Contract in particular—a key though unappreciated side of Kant’s well-known transformative engagement with Rousseau’s thought. The second concerns Kant’s substantive views. Kant’s application of Rousseau’s political theory to marriage suggests a strikingly egalitarian view of marriage’s nature and function—one that can helpfully illuminate marriage’s role in a society of free and equal persons. The third concerns the implications of Kant’s position. In particular, in appropriating Rousseau’s egalitarianism for his theory of marriage, Kant brings Rousseau’s theory of public right to bear on his own concept of private right and in so doing transfers his foundational concern with equality from the public to the private sphere. My development of these claims below challenges several familiar positions taken by other students of Kant’s political philosophy and his views on gender. By and large, his views on gender are today nearly

universally regarded as regrettable; for many if not most, they seem to testify to either a reactionary conservatism or a bourgeois complaisance that sits uncomfortably next to the liberal Kant that most contemporary theorists find vastly more attractive. Yet by attending to what I argue is the Rousseauan provenance of Kant’s conception of marriage, I hope to show that Kant’s views are not nearly as regrettable as they have been often thought and that his political theory of marriage stands as one of the most radically egalitarian and authentically ‘‘Rousseauan’’ moments in his practical philosophy. Put differently, in what follows I hope to suggest one way by which the tension between Kant’s liberal politics and his seemingly illiberal views on gender might be resolved. In so doing, I also challenge a common view of his debts to Rousseau. Scholars have long known that Kant’s views on gender were shaped by engagement with Rousseau’s Emile and Julie. So too scholars have long known that Kant’s debts to Rousseau also extend to his reading of the two Discourses and Social Contract. But not yet noted, so far as I know, are the debts of Kant’s marriage theory to Rousseau’s political theory. Hence the claim I defend below: that Kant’s theory of the sexual contract is fully intelligible only in the light of his engagement with Rousseau’s theory of the social contract. To this end, the article proceeds in four parts. The first part reviews some of the principal objections

I use the following abbreviations for Kant’s work: A 5 Anthropology; AA 5 Kants gesammelte Schriften; G 5 Groundwork; LE 5 Lectures on Ethics; MM 5 Metaphysics of Morals; O 5 Observations on the Beautiful and Sublime; R 5 Remarks on the ‘‘Observations.’’ Quotations are to the editions published in Kant 1995–2013, except for R, in which case quotations are to the translation in Kant 2011.

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The Journal of Politics, Vol. 76, No. 4, October 2014, Pp. 914–927 Ó Southern Political Science Association, 2014

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doi:10.1017/S0022381614000462 ISSN 0022-3816

kant’s sexual contract to Kant’s marriage contract that have been raised by recent commentators. The second part provides a brief overview of Rousseau’s conception of the social contract, focusing on elements of significance for Kant’s sexual contract (and without making any claims to comprehensiveness). In the third part, I examine Kant’s theory of the sexual contract, distinguishing his anthropological theory from the theory developed in his practical philosophy and specifying precisely how and where the latter version borrows from Rousseau’s social contract. Here I present specific evidence for Kant’s debts, arguing first that Rousseau’s distinction between the ‘‘false contract’’ built on domination and deceit and a true or legitimate contract built on equality is precisely replicated in Kant’s own key distinction between sexual relationships built on mutual exploitation and reciprocal domination, which are to be condemned, and sexual relationships built on equality which are to be welcomed. In addition, and even more importantly, Kant’s marriage contract is built on a set of propositions that it is reasonable to think he would have known principally from his engagement with Rousseau’s political theory, including the need to legitimize social institutions that are necessary though problematic; the claim that this legitimization requires transcending the propensity of the weak to be dominated by the strong; the claim that avoidance of such domination requires a mechanism whereby equality can be established; the claim that such equality is only established through a willing alienation of the entire selves of each party to this contract; the claim that the final product of such alienation is a unified common will; and the claim that participation in this common will enables parties to the contract ultimately to regain themselves. Having presented this evidence, the article draws two conclusions: that Kant’s theory of the sexual contract suited to a society of free equals demands to be understood in light of his engagement with Rousseau’s political theory of the social contract rather than Rousseau’s theory of gender and gender relations per se; and that Kant’s efforts to apply Rousseau’s political theory to gender relations are much more radical than any theory of gender relations developed by Rousseau, and perhaps more radically egalitarian on the whole than other elements of Kant’s own practical philosophy.

Kant and Marriage: Contemporary Critiques German letters has a proud tradition of lambasting Kant’s views on marriage; Brecht’s ironic disdain,

915 Hegel’s finger wagging, and Nietzsche’s casual dismissal are all well known to contemporary scholars (e.g., De Laurentiis 2000; Kneller 2006, 447–48; Singer 2000, 188). Several critics have sought to develop and to deepen these critiques in different and perhaps incompatible ways. Some have found in his views an internalization of bourgeois conceptions of property right and ‘‘an unthinking endorsement of the prejudices of his day’’ (Mendus 1992, 167), culminating in ‘‘rationalizations for the political subordination of women’’ (Kneller 2006, 453). Others see Kant as hopelessly na¨ıve: ‘‘as extravagant and idealistic as anything that the 19th Century Romantics were later to imagine’’ (Singer 2000, 179). And this is to say nothing of his views on sex and on women more generally—views that even his most careful readers have found inescapably ‘‘‘misogynistic’’’ (Wood 2008, 236; see also Soble 2003). Without aspiring to enter into the fray over Kant’s views on sex and sexuality in their totality, my more modest aim in what follows is to provide evidence for thinking that one prevalent strain of critique of his views on marriage is misguided and can be remedied by illumination of its debts to Rousseau. Thus in response to the claim that Kant’s theory of marriage is prejudicial to women, what follows below argues that delineating the differences between Kant’s anthropological and practical accounts of marriage, together with delineation of the debts of the latter account to Rousseau’s political theory rather than his gender theory, reveals good reasons to believe that Kant’s theory of marriage is not only not antifeminist (e.g., Herman 1993; Kneller 2006, 460), but also that it was specifically intended to ‘‘protect human beings—especially women—from degrading treatment’’ (Wood 2008, 226). In so doing, my defense does not go quite so far as to argue, as has recently been done, that Kant’s theory of marriage offers either an ‘‘especially’’ or ‘‘remarkably romantic picture’’ (Beever 2013, 340, 352). But I do hope to give further reasons to think that Kant understood himself to be providing a ‘‘useful tool for building equality between the sexes’’ (Kneller 2006, 470)—a tool for which Rousseau supplied the parts and Kant supplied the form. By attending to the provenance of Kant’s theory of the sexual contract, we specifically see that however conservative his position on monogamous heterosexuality may seem, his arguments are anything but conventional and aim to show that only absolute equality breaks a cycle of domination and secures the conditions in a sexual relationship whereby the

916 humanity and dignity of all parties can be adequately respected. A second critique of Kant’s position also demands mention. Even if it can be shown that Kant intended his marriage contract to be beneficial to women, it might yet be asked whether it is in fact capable of alleviating the conditions of women in practice. This concern finds particular expression in Pateman’s work. Like other critics of Kant’s seeming antifeminism, including Okin and Mendus, Pateman sees Kant’s treatment of women as both influenced by Rousseau and in disaccord with his general commitment to human dignity—a treatment that, in Okin’s words, leads Kant ‘‘to violate the most fundamental tenets of his ethical theory when he discusses women’’ (1982, 78–79, 82; cf. Mendus 1992, 167; Pateman 1988, 168; Wilson 2004, 106). For reasons presented above and argued more extensively below, this view does injustice to Kant’s intentions and also misconstrues the true influence of Rousseau on his thought. But a second side of Pateman’s critique poses a serious challenge. The key claim on this front is that Kant’s marriage contract exacerbates rather than alleviates inequality insofar as it merely reifies existing inequalities in a way that lays the grounds for perpetual subordination and ‘‘merely confirms the natural sexual inequality of birth’’ (Pateman 1988, 169, 171–72), thus guaranteeing ‘‘subordination of woman within the marriage relationship and her effective exclusion from all political life’’ (Mendus 1992, 179). In what follows, I argue that there is a crucial sense in which this critique is legitimate. In focusing almost exclusively on the formal conditions of the marriage contract, Kant’s legalistic or procedural approach to alleviating gender inequality fails to give due attention to the social and political norms and institutions needed to guarantee the equality of both parties to the contract and thereby sustain it over time—the sort of social and political norms and institutions to which Rousseau, unlike Kant, is especially sensitive. On such grounds, his formal theory of marriage contract can be deservedly criticized. But it is important to see the degree to which Kant’s shortcomings on this front constitute a sin of omission rather than commission. While Kant might legitimately be faulted for having failed to describe the empirical conditions necessary to support this contract in actual practice, this oversight should not be mistaken for a defense of inequality—a position that it was in fact the chief intention of his theory of the marriage contract to argue against.

ryan patrick hanley

Rousseau’s Social Contract(s) Justifying the claim that Kant’s sexual contract is constructed from materials supplied by Rousseau’s social contract requires a brief review of the key elements of Rousseau’s social contract. Foremost among these is the fact that Rousseau’s social contract is better spoken of in the plural than the singular, as much of the dynamic of his political theory lies in the fact that his political works defend a sort of contract that can replace or ‘‘legitimize’’ (Rousseau’s term) the destructive false contract that has been established in fact. Rousseau describes this first false contract in his two key texts of 1754–55: the Discourse on the Origin of Inequality and the Discourse on Political Economy (as it came to be called).2 In each text he describes what ‘‘was, or must have been, the origin of society and laws’’ (SD 3:54; OC 3:178). As they make clear, this origin lies in the swindle of the poor and weak by the wealthy and strong—a swindle that served only to reify the ostensible ‘‘right of the stronger’’ (SD 3:52; OC 3:176). In the Political Economy, Rousseau ‘‘summarize[s] in a few words’’ this first false compact: ‘‘You need me, for I am rich and you are poor, so let us come to an agreement between ourselves. I shall permit you to have the honor of serving me on condition that you give me what little you have for the trouble I shall take to command you’’ (DPE 3:165–66, italics in original; OC 3:273). And in the Discourse on Inequality, he argues that a necessary consequence of this compact was the establishment of domination by the stronger as civil society’s foundation, as it ‘‘gave new fetters to the weak and new forces to the rich,’’ and ‘‘for the profit of a few ambitious men henceforth subjected the whole human race to work, servitude, and misery’’ (SD 3:54; OC 3:178). Rousseau’s account of the origins of political society thus defines a problem for those living in political society today, and it is clearly this problem that he aims to address in his later work. In the Social Contract, Rousseau explicitly shifts his focus from inquiry into how civil society came to be to the question of ‘‘what can make it legitimate’’ (SC 4:131; OC 3:351). For Rousseau, this ‘‘legitimate and reliable rule of administration in the civil order’’ is moreover defined as one commensurate with our natural limits and which takes ‘‘men as they are and 2

I use the following abbreviations for Rousseau’s work: DPE 5 Discourse on Political Economy; OC 5 Oeuvres completes; SC 5 Social Contract; SD 5 Second Discourse (Discourse on Inequality).

kant’s sexual contract laws as they can be’’—by which he means one that reconciles ‘‘what right permits with what interest prescribes, so that justice and utility are not at variance’’ (SC 4:131; OC 3:351). The legitimate and reliable rule is thus charged with respecting natural self-interests—and particularly the desire for those goods necessary for self-preservation—while also mitigating the scope of self-interest which threatens at all times to degenerate into justifications of the specious ‘‘right of the strongest’’ or ‘‘right of slavery’’ that Rousseau claims conflates and thus confuses the distinction between the empirical physical necessity of yielding to force and a legitimacy or right that is a product of the morality consequent to our freedom (SC 4:133–35; OC 3:355–56). How then is this to be accomplished? To use Rousseau’s own words (replete with obvious significance for Kant), how are we to solve the ‘‘fundamental problem’’: to ‘‘find a form of association that defends and protects the person and goods of each associate with all the common force, and by means of which each one, uniting with all, nevertheless obeys only himself and remains as free as before.’’ How, that is, are we to discover a form of association that enables the individual to use the ‘‘force and freedom’’ that are ‘‘the primary instruments of his self-preservation’’ without at the same time compromising himself or others? (SC 4:138; OC 3:360) Rousseau’s own answer is the social contract—of course a highly complex mechanism that demands a much more careful and detailed treatment than can be offered here. But in light of the themes identified above and the treatment of Kant to follow, several particular elements of Rousseau’s description demand attention. The first is Rousseau’s claim that ‘‘properly understood, all of these clauses come down to a single one, namely the total alienation of each associate, with all his rights, to the whole community.’’ This alienation is in fact total in two senses: first, it requires that each party to the contract ‘‘gives his entire self ’’—that is, it requires the alienation of one’s self in one’s entirety or totality; second, it requires that ‘‘each one’’ does so—that is, it requires such an alienation from the entirety of individuals who are party to the contract. Only if both grounds are met can it be said that ‘‘the condition is equal for everyone,’’ and that form of equality established which would make it possible to transcend a social order built on domination—a claim Rousseau rationalizes on the grounds that ‘‘since the condition is equal for everyone, no one has an interest in making it burdensome for the others.’’ Rousseau further

917 elaborates on this in what immediately follows, insisting that the perfection of the contract consists entirely in the fact that ‘‘the alienation is made without reservation,’’ for ‘‘if some rights were left to private individuals,’’ the state of nature in which one judges for one’s self may always persist (SC 4:138–39; OC 3:361). In this sense, Rousseau’s proposed contract aims above all else to establish the absolute equality necessary to avoid the threat of perpetual domination that he regards as the necessary consequence of inequality; in this sense, his insistence on equality is central to his project of protecting the citizen ‘‘against all personal dependence’’ (SC 4:141; OC 3:364). Thus the contract serves to establish the proposition Rousseau insists ‘‘ought to serve as the basis of the whole social system’’: ‘‘it is that rather than destroying natural equality, the fundamental compact on the contrary substitutes a moral and legitimate equality for whatever physical inequality nature may have placed between men, and that although they may be unequal in force or in genius, they all become equal through convention and by right’’ (SC 4:144; OC 3:367). The second key point concerns Rousseau’s account of what we gain from this total alienation and the equality that it produces. Rousseau emphasizes two specific goods in particular: legitimate possession and full development. On the first front, his claim is that only through mutual complete alienation can legitimate possession be established. Hence the seeming ‘‘paradox’’ to which he calls our attention: ‘‘what is extraordinary about this alienation is that far from plundering private individuals of their goods, by accepting them the community thereby only assures them of legitimate possession, changes usurpation into a true right, and use into property’’ (SC 4:143; OC 3:367). Herein lies his account of the origin of property rights within civil society, but for present purposes, what is most significant in this account is the mechanism by which this transfer is brought about and rendered ‘‘advantageous’’ to all parties and enables them to ‘‘have, so to speak, acquired all they have given’’ (SC 4:143; OC 3:367). In accounting for this transformation, Rousseau explains that ‘‘as each gives himself to all, he gives himself to no one; and since there is no associate over whom one does not acquire the same right one grants him over oneself, one gains the equivalent of everything one loses, and more force to preserve what one has’’ (SC 4:139; OC 3:361; cf. SC 4:143; OC 3:367). Rousseau’s subtle but key claim here is that the precise reason why we need not fear total alienation, provided that it is also reciprocal, is that in acquiring the other to whom we have

918 alienated all of our rights, we not only gain the entirety of the other, but we also regain our entire alienated self—which is, in a sense, ‘‘inside’’ that other to whom we have alienated ourselves. In this sense, the act of reciprocal alienation is absolved of the charge that it produces a net loss. But equally importantly, the act of reciprocal alienation is at once a net gain insofar as in so doing we each acquire the alienated selves of others, albeit in such a manner that precludes abuse of that privilege, as the others at once acquire rights over us and hold our alienated selves as collateral. All told: x need not fear alienation of x to y because x acquires y that now contains x within it—and all of this at the same time that x acquires y as a consequence of y’s alienation and is simultaneously by y acquired along with the reacquisition of the alienated y. This unpacking of Rousseau’s dense account suggests a third key point: the end product of this association is a thick web of connections that can be regarded as a unified general will, participation in which is of genuine benefit to the individual. Thus: ‘‘instantly, in place of the private person of each contracting party, this act of association produces a moral and collective body, composed of as many members as there are voices in the assembly, which receives from this same act its unity, its common self, its life, and its will’’ (SC 4:139; OC 3:361). It is, however, important to see what is and is not being claimed here. Rousseau is not suggesting that the act of union leads to a total renunciation of private interests; as he makes clear, it is still possible for an individual to have ‘‘a private will contrary to or differing from the general will he has as a citizen’’ (SC 4:140–41; OC 3:363; cf. Cohen 2010, 35–37; Hanley 2013, 52). Rather, what Rousseau suggests is that participation in this common union makes possible new opportunities for development unknown to the merely natural or pre-political individual governed solely by self-love. Thus his claim that in the transition to civil society, a ‘‘remarkable change in man’’ is produced, substituting ‘‘justice for instinct in his behavior and giving his actions the morality they previously lacked’’ (SC 4:141; OC 3:364). The significance of this moment in our cognitive development and Rousseau’s account of such has been recently noted (Hanley 2012). Here we emphasize only the part most relevant to Kant: namely that the newly discovered ‘‘morality’’ of civilized man consists entirely in overcoming the impulses of passion and the capacity to determine right through reason; thus we are told that ‘‘only then, when the voice of duty replaces physical impulse and right replaces appetite, does man, who until that time only considered himself,

ryan patrick hanley find himself forced to act upon other principles and to consult his reason before heeding his inclinations’’ (SC 4:141; OC 3:364). This is a complex point; rather than trying to unpack it fully here, we can only note that it is the very act of entering into this community that compels the cognitive shift. Living in a state of unity with others compels us to consider not just our own well-being but also that of others, and it is this shift that compels our pursuit of right through reason and our rejection of mere inclination as a sufficient ground for our actions. In sum, Rousseau’s social contract contains four key elements: first, it aims to ‘‘legitimize’’ necessary though problematic existing social institutions through their reformulation; second, it aims to mitigate the propensity of such institutions to reify physical inequalities and serve as justification for the domination of some by others; third, it establishes equality predicated on total alienation of the self as the optimal means for both transcending the threat of domination and establishing legitimate ownership through reciprocity; fourth, it establishes a unified will, participation in which is both practically and morally beneficial. As we shall see, these same four points form the core of Kant’s justification of the sexual contract.

From Social Contract to Sexual Contract In what follows I aim to demonstrate the influence of Rousseau’s theory of the social contract, as reviewed above, on Kant’s theory of the sexual contract. That Rousseau was a principal influence on Kant’s practical philosophy is of course well known; as several commentators have recently demonstrated, Rousseau’s writings on women decisively influenced Kant’s precritical views on women and gender (see especially Kneller 2006, 450; Shell 1996, 81–105 and 2002 and 2009, 39–84); especially striking on this front is the degree to which Kant embraced Rousseau’s conception of the way in which eros well-directed promotes moral development (see e.g., LE 23; AA 27:49–50 and LE 28–29; AA 27:63; Shell 2009, 70). Equally well appreciated by scholars today is the significance of Kant’s ‘‘Rousseauan Revolution’’ for his discovery and subsequent explication of his theory of freedom and autonomy (see especially Ameriks 2012, 39–42; Velkley 2002, 49–50, 56–58 and 2012, 91, 93–98). But what is not yet well appreciated is the way in which Kant’s engagement with Rousseau on this latter front shaped

kant’s sexual contract his views on the former front. In this vein, my aim in what follows is to demonstrate how Kant’s engagement with Rousseau’s theory of freedom shaped his own practical theory of marriage in his critical writings and perhaps enables him to overcome his more familiar ‘‘Rousseauan’’ views on gender relations—a suggestion that would lend further evidence to the claim that in the 1760s ‘‘Kant’s attention increasingly shifts from the moral theory of Julie and Emile books I–IV to Rousseau’s political theory, as described in Emile book V and especially the Social Contract’’ (Frierson 2012, 73–75; cf. Ferrari 1979, 188n55 and 211–13; Velkley 2002, 50) and also provide further reason to consider Kant’s mature political philosophy a genuine contract theory, even if indeed ‘‘a peculiar one’’ (O’Neill 2012, 27; cf. Riley 1983, 99; H. Williams 1986, 128; D. Williams 2007, especially 476). Implicit in this formulation is the suggestion that Kant’s understanding of the marriage contract, and indeed gender relations more generally, demands division into two discrete modalities: first, what might be called an anthropological view of gender relations predicated on assumed inequalities between the sexes—a view on prominent display not only in Anthropology but also in the Observations and Herder ethics lecture notes—and second, a more specifically legal or practical view in which marriage relations are grounded in the renunciation of inequalities via the willing acceptance of equality between partners—a view developed in the Rechtslehre and the later ethics lectures.3 Now, the very fact that Kant treated marriage in two such different modalities raises several crucial questions, including especially the question of the possibility of substantive coherence of the two treatments (Varden 2013) and the question of the possibility that, insofar as one of the modalities is largely (though not exclusively) associated with Kant’s early writings and the other is largely associated with his later writings, Kant’s theory of marriage evolved over time. Both questions deserve the attention of specialists. But given limits of space, the present treatment limits itself on this front to recognition of the fact that even if certain elements of Kant’s theory of marriage evolved over time,

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I am extremely grateful to Patrick Frierson for clarifying the distinction between the anthropological and the political views and encouraging me to emphasize this distinction. I am anticipated in it by Helga Varden, who helpfully calls attention to the ‘‘divide’’ in Kant’s writings on women, noting that his most sexist remarks tend to be found in his anthropological writings, whereas those in ‘‘his moral-freedom’’ writings are quite different (see Varden 2013, especially 2–3, 5).

919 his restatement of the anthropological view in the Anthropology itself—a ‘‘late’’ text coeval with his principal statements of the practical or legal view that is our primary focus here—suggests that Kant thought it not inconsistent to hold both the anthropological and the practical views at once. How he would have justified this is hard to know and can only be a matter for speculation given the absence of any direct statement from him on this front, but it may be that his simultaneous treatment of marriage from the perspective of these two different modalities is only a particular instantiation of his broader capacity to regard the human being simultaneously from empirical and transcendental perspectives.4 Yet however this may be, my focus in what follows is the substantive implications of the fact that Kant in fact treated marriage from two different perspectives, one anthropological and inegalitarian and one practical and egalitarian, and that each bears the mark of careful engagement with Rousseau. Kant’s take on gender relations to be found in the Observations has been the target of much critical commentary; indeed it is this text that furnishes many of the most ‘‘perfect sound bites of Kantian misogyny’’ (Frierson 2011, xxix). Indeed, without denying that the Observations and Remarks offer a crucial window into Kant’s views on gender differences as well as a key window into the evolution of his views on these fronts (see especially Shell 2009), their views on women are largely viewed as unacceptable by contemporary standards. At the same time, the blanket condemnation of Kant on these topics may well be misdirected, since much of what he defends in his anthropological writings—and specifically his claims regarding the implications of gender differences within marriage—he seems to provide a remedy for, if not entirely renounce, in his practical writings. That is, much of the force and value of Kant’s critical view stems from its capacity to provide a remedy to the ills consequent to positions he defended comments on gender in his anthropological work. And chief among these is the emphasis his anthropological work places on the concept of mutual domination as the foundation of all gender relations. Kant’s claims on this front are grounded in his conviction of the irreducible differences between men and women. In the anthropological writings, Kant indeed continually recurs to the concept of natural gender ‘‘difference,’’ rejecting the notion of a monistic 4

I am very grateful to an anonymous reviewer for suggesting this possibility.

920 human nature (O 40; AA 2:228; cf. R 107; AA 20:62). It is this point of departure—aside from any substantive qualities that Kant ascribes to either male or female—that marks his first step down the path to which he will in time offer an alternative. But for now his claim is simply that ‘‘the two sexes should not be mixed up’’ (LE 23; AA 27:50). And this denial of sameness between men and women leads him to regard sexual and marital union as a means of remedying the incompleteness of either male or female taken separately; thus employing a species of what has been compared by Kant scholars to contemporary feminist notions of ‘‘natural complement’’ (Kneller 2006, 451; cf. Shell 1996, 88), Kant claims that marriage establishes ‘‘not mere unity, but union, for a single purpose, the perfection of the marriage’’ (LE 23; AA 27:50; cf. R 178; AA 20:162). In itself, this claim is neither terribly novel nor terribly controversial. But Kant’s gloss on it exposes a clear if not immediately evident danger. As he notes, so far from merely ameliorating the differences and inequalities that bring the sexes together, the unity that emerges from a combination of unequals depends on the persistence of such inequalities for its later functioning and indeed has the potential to exacerbate such inequalities. Kant clarifies his position in his ethics lectures: Now to this end nature has endowed the pair with different gifts, whereby one has dominance over the other. The woman allures, the man arouses; the woman admires, the man loves; and so each prevails over the other, and there is union without tyranny on the husband’s part, or servitude on that of the wife, but by way, rather, of mutual dominance. Thus the ultimate goal of the bond between the two sexes is marriage. (LE 23; AA 27:50)

This conception of marriage is founded not on mere difference or complementarity, but on ‘‘mutual dominance.’’ The suggestion, that is, is that the same differences that bring the sexes together will also be perpetually exploited by the other sex in accord with those ‘‘different gifts, whereby one has dominance over the other’’ in light of the ‘‘inclination to dominate’’ that the Anthropology takes to be universal (A 401–402; AA 7:305). Much of the account of gender in the Anthropology indeed is given to working out the consequences in marriage of this universal desire to dominate in light of Kant’s insistence on sexual inequality. Thus Kant presents marriage here essentially as an attempt of men to govern at home in accord with ‘‘the right of the stronger,’’ with women laying claim to men in accord with ‘‘the right of the weaker to be protected’’ (A 400; AA 7:304; cf. LE

ryan patrick hanley 28-29; AA 27:63), even as they artfully manipulate men (A 400; AA 7:304; cf. R 76; AA 20:15–16) in a manner that men are said secretly to enjoy (R 111; AA 20:68; R 175; AA 20:160). And it is this precise system of perpetual mutual domination that Kant celebrates, insisting that ‘‘one partner must yield to the other, and, in turn, one must be superior to the other in some way,’’ for in ‘‘the progress of culture, each partner must be superior in a different way’’ (A 399–400; AA 7:303). Kant presents this as a net gain. Yet it is difficult to avoid the suspicion that such a union, founded on a cycle of perpetual and reciprocal domination, is unlikely to be very stable (to say nothing of whether it is likely to be fulfilling, or functional, or healthy . . . ). Indeed, the propensity for this marriage of reciprocal domination to degenerate into simple tyranny is recognized even by Kant himself in the course of his anthropological account. Thus the key passage on marriage in Observations: In marital life the united pair should as it were constitute a single moral person, which is animated and ruled by the understanding of the man and the taste of the wife. For not only can one trust the former more for insight grounded in experience, but the latter more for freedom and correctness in sentiment; yet further, the more sublime a cast of mind is, the more inclined it also is to place the greatest goal of its efforts in the satisfaction of a beloved object, and on the other side the more beautiful it is, the more does it seek to respond to this effort with complaisance. In such a relationship a struggle for precedence is ridiculous, and where it does occur it is the most certain mark of a crude or unequally matched taste. If it comes down to talk of the right of the superior, then the thing is already extremely debased; for where the entire bond is really built only on inclination, there it is already half torn apart as soon as the ought begins to be heard. (O 51; AA 2:242)

This is a striking paragraph. In it Kant provides his fullest defense of the union that is built on the foundation of complementary differences. Yet it also makes explicit the looming danger: namely that a relationship based on mutual dominance always threatens to degenerate into ‘‘a struggle for precedence’’ based merely on ‘‘the right of the stronger.’’ Kant of course blithely brushes off such concerns here, calling such a relationship, were it to come about, simply ‘‘ridiculous’’ and ‘‘crude’’ and ‘‘debased.’’ Yet his castigations ring hollow as attempts to assuage the worry he himself has invited, for given all he has done to persuade us of the universality of the love of domination as well as its centrality in marriage, we cannot but be disappointed by his complacent response to the dangers of reciprocal dominance with

kant’s sexual contract little more than name calling. At the same time, there is reason to believe that Kant himself came to be dissatisfied with treating marriage strictly within the horizons of the anthropological modality. In his practical account, Kant would squarely face the challenge that he so casually dismisses in the Observations and the Anthropology and aim to establish a remedy with significantly greater normative force.

The Revised Sexual Contract With this in mind, we turn to Kant’s practical theory of the sexual contract as presented in the Rechtslehre in particular. This contract tends to be regarded in terms of the solution it offers to the specific challenges that sexuality poses to Kant’s vision of human dignity (e.g., Herman 1993, 54–59). And rightly so—Kant himself presents his political theory of the sexual contract as a remedy for precisely this problem. Without denying this well-appreciated fact, what remains to be seen is the way in which this sexual contract uses resources provided by Rousseau and the way in which it provides a remedy not just to the general problem of sexuality but to the specific problem exacerbated by the anthropological conception of the sexual contract. In this sense, Kant’s practical theory marks not only an important statement of the place of marriage within the liberal state and the way in which it can establish rights claims capable of being legally enforced (see Varden 2012, 202–207), but it is also a shift in his own theory—and indeed a shift that exonerates him of a familiar charge. Kant’s theory of marriage has been criticized for being grounded in ‘‘reciprocal superiority’’ or ‘‘a dynamic of mutual exploitation’’ (Wood 2008, 235). But while this is a legitimate critique of Kant’s anthropological theory of marriage, his practical account of the sexual contract, I hope to show, necessitates rejection of this interpretation as holding for his theory of marriage tout court. Kant’s political accounts of the sexual contract all follow the same trajectory: a presentation of the problems posed by sexuality, an insistence on the necessity of sexuality, and a defense of monogamous heterosexual marriage as the sole solution for the problems posed by sexuality in light of its necessity. Kant throughout casts the first of these elements, his diagnosis of the problem, in terms derived from his own ethical theory. As is well appreciated, Kant’s consistent concern is that sexual desire and sexual activity have the potential to reduce persons to

921 things—a concept familiar from the Groundwork and receiving explicit restatement in the early stages of the Rechtslehre (e.g., G 79; AA 4:428; cf. MM 378; AA 6:223). Yet it is important to note from the outset that Kant’s principal concern is that such desires and activities tend to the dehumanization and objectification of the desirer as well as the desired. The familiar problem is thus only half of the problem: that ‘‘those who merely have sexual inclination love the person from none of the foregoing motives of true human affection, are quite unconcerned for their happiness, and will even plunge them into the greatest unhappiness, simply to satisfy their own inclination and appetite.’’ Here the problem is clearly that desire can reduce the human being to the mere ‘‘object of another’s enjoyment,’’ in which the other’s (and especially the woman’s) ‘‘humanity is of no concern’’ (LE 155–56; AA 27:384–85). Of course Kant also thinks that sexual desire dehumanizes its possessor as much as its object; thus his claim that simply in the course of sexual activity in which one partner either makes ‘‘natural use’’ of the sexual organs of the other and/or allows their own body to be used specifically for the purpose of their own or another’s pleasure, ‘‘a human being makes himself into a thing, which conflicts with the right of humanity in his own person’’ (MM 427; AA 6:278). The way in which this violates fundamental principles of Kant’s ethics is too familiar to require further elaboration. But what does require elaboration is exactly why Kant is so troubled by this. Kant knew well that sexuality is as necessary as it is problematic, in two senses: first, of course, in the sense of its teleological function in propagation of the species (hence ‘‘the end of nature’’ he often invokes (MM 427; AA 6:277), but also in the sense of the ‘‘enjoyment’’ or ‘‘pleasure’’ that he suggests is also part of the ‘‘natural use’’ of sexual organs (MM 427; AA 6:278). Thus in the Herder notes, Kant claims that procreation is ‘‘the main end, but not the only one,’’ as we also have by nature ‘‘an inclination to immediate pleasure’’ (LE 22; AA 27:48; Soble 2003, 69). Herein then lies a second teleological ground for resisting renunciation of sexuality; as Kant makes clear elsewhere in his lectures, ‘‘a person who did not have this impulse would be an imperfect individual’’ (LE 156; AA 27:385). Kant thus finds himself in the uncomfortable position of needing to discover a remedy for an institution that is at once inherently exploitative and unavoidably necessary. His solution of course is marriage. But even at the start, we need to be clear about what Kant does and does not expect of marriage. It has been said that Kant’s theory of

922 marriage seeks to describe ‘‘a viable relationship within which human beings might relate to one another sexually without their being treated as things because of their sexuality’’ (Singer 2000, 183). If the suggestion is that Kant regarded marriage as a means by which spouses might cease treating each other as means, it seems misguided. Even in Groundwork, Kant never calls it wrong to treat others as means; his claim of course is that it is wrong to treat others ‘‘merely’’ as means and not also ‘‘at the same time’’ as ends (e.g., G 79–80; AA 4:428–29). So too with sexuality: what is needed is not a way of prevent sexual partners from treating each other as means (impossible, he thinks, given the nature of sex) but a process that ‘‘restricts our freedom in regard to the use of our inclination, so that it conforms to morality’’ (LE 156–57; AA 27:385–86). Kant’s answer is marriage, defined as ‘‘the union of two persons of different sexes for lifelong possession of each other’s sexual attributes’’ (MM 427; AA 6:277). For the natural use that one sex makes of the other’s sexual organs is enjoyment, for which one gives itself up to the other. In this act a human being makes himself into a thing, which conflicts with the right of humanity in his own person. There is only one condition under which this is possible: 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. But acquiring a member of a human being is at the same time acquiring the whole person, since a person is an absolute unity. Hence it is not only admissible for the sexes to surrender to and accept each other for enjoyment under the condition of marriage, but it is possible for them to do so only under this condition. (MM 427; AA 6:278)

The parallel passages from Kant’s ethics lectures further illuminate his aims here: The sole condition, under which there is freedom to make use of one’s sexual impulse, is based upon the right to dispose over the whole person. This right to dispose over the other’s whole person relates to the total state of happiness, and to all circumstances bearing upon that person. But this right that I have, so to dispose, and thus also to employ the organa sexualia to satisfy the sexual impulse—how do I obtain it? In that I give the other person precisely such a right over my whole person, and this happens only in marriage. Matrimonium signifies a contract between two persons, in which they mutually accord equal rights to one another, and submit to the condition that each transfers his whole person entirely to the other, so that each has a complete right to the other’s whole person. It is now discernable through reason, how a commercium sexuale may be possible without debasement of humanity or violation of morality. Marriage is thus the sole condition for making use of one’s sexual impulse. If a person now dedicates himself to the other,

ryan patrick hanley he dedicates not only his sex, but his whole person: the two things are inseparable. If only one partner yields to the other his person, his good or ill fortune, and all his circumstances, to have right over them, and does not receive in turn a corresponding identical right over the person of the other, then there is an inequality here. But if I hand my whole person to the other, and thereby obtain the person of the other in place of it, I get myself back again, and have thereby regained possession of myself; for I have given myself to be the other’s property, but am in turn taking the other as my property, and thereby regain myself, for I gain the person to whom I gave myself as property. The two persons thus constitute a unity of will. Neither will be subject to happiness or misfortune, joy or displeasure, without the other taking a share in it. So the sexual impulse creates a union among persons, and only within this union is the use of it possible. (LE 158–59; AA 27:388; cf. LE 378–79; AA 27:638–40)

Kant’s account has prompted jabs; one recent commentator says, in glossing it, ‘‘as you can tell, Kant never married and probably never had sex’’ (Reeve 2005, 8). But ad hominem attacks aside, these lines are in fact both philosophically and politically significant insofar as they reveal the ‘‘Rousseauan’’ elements of Kant’s account. Four specific elements deserve attention. The first concerns Kant’s approach to the very challenge of sexuality. As suggested above, Kant’s very concern with marriage is the product of his appreciation of the fact that sexuality is at once a problematic and a necessary institution. Kant could be challenged for taking as his point of departure the notion that sexuality ought principally to be regarded as a problem to be solved. Leaving to others to question the reductionist aspects of this view, such a view at least seems to be in some sense still with us; see, for example, the first line of J. M. Coetzee’s novel Disgrace, whose protagonist opens by reflecting (quite mistakenly and tragically, we soon learn) that ‘‘he has, to his mind, solved the problem of sex rather well’’ (Coetzee 2000, 1). And it is in the hopes of solving this problem that Kant proposes marriage as the ‘‘sole condition’’ on which we can ‘‘make use’’ of our natural inclinations (cf. MM 427; AA 6:277–78). And here lies a first identifiably Rousseauan element of his project: his suggestion that the constitutive feature of this ‘‘sole condition’’ is ‘‘a contract’’ in which parties ‘‘mutually accord equal rights to one another’’ to establish a condition that reconciles the natural demands of our sexuality with the principles of morality and right can be seen as commensurate with Rousseau’s own concern to ‘‘legitimize’’ structures of governance that are at once problematic and necessary via the establishment of a specific type of contract.

kant’s sexual contract Yet this structural parallel is ultimately of less significance than the deeper substantive similarities in the two accounts. In particular, the mechanisms of the sexual contract that Kant describes bear more than a family resemblance to those Rousseau describes. First, Kant replicates Rousseau’s insistence on total alienation in both senses emphasized by Rousseau. Thus in insisting that ‘‘each transfers his whole person entirely to the other, so that each has a complete right to the other’s whole person,’’ Kant reiterates both Rousseau’s insistence that the giving of the self needs to be complete and unreserved and his insistence that the giving needs to be universal by each party to the contract; anything less than this raises the possibility that natural inequalities could be allowed to persist and even gain moral authority in the civil state that has been established precisely to mitigate the threat posed by physical inequalities. Further, like Rousseau, Kant recognizes the consequences of falling short on either front—that is, if only one alienates and the other does not or if the alienation of either is less than absolute: ‘‘if only one partner yields to the other his person, his good or ill fortune, and all his circumstances, to have right over them, and does not receive in turn a corresponding identical right over the person of the other, then there is an inequality here.’’ Kant’s identification of the chief problem as specifically one of ‘‘inequality’’ is itself striking insofar as it points away from any convenient suggestion that Kant’s aim with regard to marriage is simply to secure the grounds for the respect for human dignity. While certainly true, Kant’s decision to frame this question as one of specifically securing the conditions of equality and avoiding inequality points rather to Rousseau and his particular concerns. Kant, no less than Rousseau, is particularly worried by precisely the threat of the cycle of domination and subjection consequent to inequality and especially that form of moral inequality in which natural physical inequalities are taken as grounds for legitimating an ostensible right to superiority. So far from being legitimate, this state of reified inequality Kant associates with the most pernicious forms of sexual relations, such as concubinage, defined as the condition in which one possesses the entirety of another while this other possesses only a part of the superior party (LE 158; AA 27:387–88)—an account that reads as much as a development of Rousseau as an indictment of precisely the theory of reciprocal domination and inequality that Kant himself earlier defended. Indeed with little exaggeration it seems fair to say that the only vestige of the anthropological view of marriage that Kant preserves in the ethical

923 account is the claim that ‘‘unity is tied to equality’’ (R 114; AA 20:73)—a claim which is put to quite different use here. In the practical account, equality indeed takes center stage; the entire goal of this new state, he insists, is that ‘‘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’’ and ‘‘also equality in their possession of material goods’’ (MM 428; AA 6:278). Anything short of this falls under the category of morganatic marriage—like concubinage and prostitution, illegitimate on the specific grounds that ‘‘the inequality of estate of the two parties’’ must ‘‘give one of them domination over the other’’ (MM 428; AA 6:279; Frierson 2013, 97–98). In short, without equality, it is impossible to establish the ‘‘community of free beings’’ that is the proper condition of the household (MM 426; AA 6:276)—a formulation that closely accords with the ‘‘free community of equals’’ that has been identified as the heart of Rousseau’s political project (Cohen 2010, especially 10–22, 59).5 In developing this claim, Kant precisely follows Rousseau’s conception of the beneficial effects of this new form of reciprocated giving as compared to the sort of reciprocity that defined the anthropological view of marriage. The centrality of reciprocity in Kant’s theory of marriage has long been appreciated and has been recently restated (Beever 2013, 351–52). But it is important to see the different ways in which reciprocity functions in the practical and anthropological accounts, a difference that comparison to Rousseau helpfully illuminates. Thus in Kant’s own quite strikingly Rousseauan formulation: ‘‘if I hand my whole person to the other, and thereby obtain the person of the other in place of it, I get myself back again, and have thereby regained possession of myself; for I have given myself to be the other’s property, but am in turn taking the other as my property, and thereby regain myself, for I gain the person to whom I gave myself as property’’ (cf. Herman 1993, 60). In emphasizing that such reciprocal and total giving results in a restoration of the self, Kant gives one of his clearest indications of his debts to Rousseau—a debt even clearer in the ethics lectures than the published account in the 5

Kant’s solicitude for establishing a ‘‘community of free beings’’ in the household does not seem on its face to extend beyond it given his troubling insistence on the incapacity of women for citizenship (e.g., MM 458; AA 6:314). But Varden has given good reasons to question this received view in explicating Kant’s view ‘‘that one cannot rightfully deny women the possibility of working themselves into active citizenship’’ (2013, 27; see especially 15–16, 27–30).

924 Rechtslehre, which limits itself to the observation that ‘‘in this way each reclaims itself and restores its personality.’’ Particularly important here is the way in which Kant reconceives the notion of ‘‘reciprocity’’ in the context of marriage. In his anthropological accounts of the contract, the focus was on the two partners’ reciprocal usage of one another; in this sense, the sort of reciprocity that mattered was conceived temporally and also in terms of an activity. Marital relations could be conceived of as reciprocal insofar as they represented an iterated succession of repeated ‘‘usings’’ of each by the other. Yet in the practical account the reciprocity that matters is not that of use but of possession, and one concerned principally with states of being rather than discrete acts. Put differently, the ‘‘first me, then you’’ succession of reciprocated acts of dominance that defined marriage in the anthropological account here gives way to a view of marriage as a condition in which both parties are the perpetual reciprocal possessors of the totality of each other’s person. The significance of this shift cannot be underestimated. Kant’s critics have taken his theory of marriage to task precisely on the grounds that ‘‘reciprocity does not imply equality’’ (Mendus 1992, 176; cf. 177 and 180). But while this may hold for Kant’s anthropological view of marriage conceived as reciprocated acts of domination, it does not hold true for his practical and more Rousseauan view of total and perpetual reciprocated possession. This latter view specifically insists on the necessary connection between reciprocity and equality, precisely because the equality that is the product of mutual possession mitigates the danger consequent to reciprocated acts of domination. The Social Contract insists that such states are unsustainable, since at the moment at which the force of the dominant recedes, there no longer exist any reasons to sustain the union (SC 4:133–34; OC 3:354–55). But when citizens form a mutual network of perpetual reciprocal possession, the dangers consequent to mutual possession are mitigated by the fact that possession is perpetually mutual, and hence the threat of potential abuses by any one possessor is restrained by that possessor’s own awareness of his vulnerability consequent to the fact that he is simultaneously and totally possessed by others. Kant’s careful replication of this position— evident in his insistences that we ‘‘get ourselves back’’ through this state of mutual possession and that a prerequisite for such is that ‘‘I hand my whole person to the other’’—suggests his agreement with Rousseau. This is further confirmed in his claim, in

ryan patrick hanley his ethics lectures, that this state of mutual and perpetual possession is what preserves the freedom of both parties to the contract. Thus his claim that ‘‘if the sexual inclination is to be recognized on the side permitted by morality, it must be able to co-exist with the freedom sanctified by humanity,’’ and ‘‘each of them can only remain free if, in the bond of common sexual possession of one another, and in precisely the degree to which each possesses the other, the one who allows the other to have dominum over them at the same time subjects that other to their own possession, so that they each recoup themselves. The two of them mutually acquire each other; each becomes dominus of the other and in that case remains also self-possessing, and is free’’ (LE 378; AA 27:638). The key claim here is that the freedom of each party depends on the fact that this is not a mutual succession of acts of dominance, but a perpetual state of reciprocal giving and taking ‘‘at the same time.’’ And Kant is clear that this state must truly be lasting; hence his reminder that ‘‘marriage is for this reason also a pactum commercii perpetui, that only therein does the property of one remain that of the other, so that it lasts enduringly and is not transitory, for otherwise it would not be an acquisition, but a temporary use, of the members of the other’’ (LE 379; AA 27:640). Kant thus denies a right to divorce, but for reasons very different than bourgeois paternalism. Kant’s logic regarding perpetuity of marriage is precisely Rousseau’s with regard to the perpetuity of the social contract: to fail to establish a condition in which right is perpetual and binding must lead to a condition in which all obligations cease at the moment in which the power of one over another is weakened—a condition fit only for masters and slaves, Rousseau and Kant agree. Thus it may be that the better model for civic friendship is less friendship itself (which almost always includes separation and distance; MM 586–87; AA 6:471–72) than the unity and equality to which the sexual contract properly conceived aspires.6 Furthermore, it is in willing subjection to a state of mutual dominance that Rousseau and Kant think genuine freedom lies. Thus Kant’s account of marriage as the ‘‘ground that restricts our freedom in regard to the use of our inclination, so that it conforms to morality’’ (LE 157; AA 27:386) replicates the way in which the stupid and limited natural savage is transformed into a being capable of the autonomous moral freedom worthy of a human 6

I am grateful to Shalini Satkunanandan for encouraging me to consider this point.

kant’s sexual contract being at the moment at which ‘‘the voice of duty replaces physical impulse and right replaces appetite,’’ and man is ‘‘forced to act upon other principles and to consult his reason before heeding his inclinations’’ (SC 4:141; OC 3:364). Yet Kant’s clearest indication of his debts to Rousseau on this front comes at the conclusion of the long passage from the ethics lectures quoted above. Kant here describes the bond formed by the sexual contract as constituting a ‘‘unity of will’’ in which each party to the contract shares in the joys and sorrows, pleasures and pains of the other. In insisting that the product of the mutual alienation of the selves of all parties to the contract is such ‘‘unity of will,’’ Kant replicates Rousseau’s claim that the product of the social contract is the body politic that receives from the contract itself ‘‘its unity, its common self, its life, and its will’’ (SC 4:138–39; OC 3:361). Yet for present purposes what matters is not the metaphysics of this process but its directly practical implications. In the first place, like Rousseau, Kant makes clear that in the legitimately constituted union, any preexisting natural physical inequalities cannot establish the grounds for superior moral authority; Kant insists that to the degree that there are any such natural inequalities they must be used responsibly and solely for the purpose of promoting the end of ‘‘the common interest of the household’’ and never the private interest of the husband (MM 428; AA 6:279). Perhaps even more importantly, Kant’s formal claim regarding spouses in marriages defined by unity of will is that ‘‘neither will be subject to happiness or misfortune, joy or displeasure, without the other taking a share in it’’ (LE 159; AA 27:388). This would seem to reflect Rousseau’s own marked insistence that in a free community of equals governed by the general will, pain felt by or harm done to any one member of the community is necessarily felt by or done to all. This is politically significant insofar as it establishes the grounds for demonstrating that it is not in the interest of a member in the free community of equals to pursue his interests at the expense of those of others; harming others in helping yourself ultimately only harms the self more deeply. Kant replicates this position in his view of the legitimate marriage contract. Translating Rousseau’s claim to the marriage sphere, Kant’s claim is that any pain felt by one spouse will be felt by the other: a fact with key practical implications. For if the marriage contract establishes a state in which each spouse suffers the pains of the other, it will then also be the case that

925 neither spouse can rationally will the other’s suffering, much less will to be its cause. Now, it was of course surely clear even to bachelor Kant that spouses in fact often hurt each other. The force of his claim then hardly lies in some suggestion that martial union is a state of altruistic tranquility. The upshot is rather twofold: first, that under the terms of the marriage contract harm cannot willingly be done by one spouse to another; and second, that harms which are in fact done can be recognized as done unwillingly and deserving of restitution. This second point, we might say, defines the grounds for that most ordinary of martial interactions: the apologies of one spouse to another after a fight. But the first point is more momentous. Kant’s theory of marriage, as we have seen, has been repeatedly excoriated for establishing grounds for reification of physical inequality and thereby perpetual violations of women’s dignity and personhood. But if indeed we take Kant at his word when he says that once united, each spouse will experience the pleasures and pains of their partner—an experience familiar to any who has rejoiced in their partner’s successes or suffered with their pains—it would seem that he both undermines any suggestion that his contract perpetuates subordination of women and that he seeks rather to establish compelling grounds for overcoming this subordination by demonstrating the true interest husbands have in minimizing the suffering and maximizing the happiness of their wives. At the very least, it seems evident that Kant’s marriage contract not only points to a rethinking of the grounds of bourgeois monogamy, but also to a creative rethinking of the way in which the union of married persons is fundamentally transformative of the entirety of our beings, including aspects both sexual and non-sexual—a fact that compels us to take seriously his claim that ‘‘the man cannot enjoy a single pleasure of life without the woman’’ (R 114; AA 20:73). All told, Kant’s theory of marriage seems explicitly intended to contribute to establishing equality between the sexes. But with this in mind, we need to return to a concern raised at the outset. Implicit in Pateman’s concerns, described above, is the worry that this formalistic theory of the marriage contract may not be sufficient unto itself to effectively remedy the practical problem of gender inequality. Put differently, however attractive and well-intended Kant’s theory might be, his strictly formal or procedural conception of the contract seems to require supplementation by attention to the social institutions and cultural norms necessary to guarantee that the procedures mandated

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by the contract in fact serve to promote the equality that it seems to be Kant’s aim to encourage. On this front, the comparison of Kant to Rousseau is especially helpful, and indeed for two reasons. First, Rousseau was deeply aware, as noted above, that the social contract enacted under conditions of fundamental inequality could well serve to exacerbate rather than alleviate inequality; this is in fact the fundamental point behind Rousseau’s critiques of the first, false contract, as noted above. In these discussions, Rousseau makes clear that the mere existence of a contract alone is insufficient to overcome inequality, and will, in certain circumstances, only reify it. Rousseau’s sensitivity to this possibility is one way in which his position differs from Kant’s. But it also differs in a second way. Kant’s formalistic approach to the contract replicates one side of Rousseau’s theory but not another. For while Kant’s theory accurately replicates the foundational commitments that form the core of Rousseau’s approach to the contract in Book I of the Social Contract, Kant lacks the sustained treatment of the social conditions and political institutions necessary to support a contract that are such a prominent part of Books III and IV of Rousseau’s Social Contract, as well as his practical writings on Poland and Corsica and Geneva. Kant’s failure to attend to such concerns renders his theory susceptible to the sort of objection that Amartya Sen has leveled against Rawls in suggesting that procedural approaches privilege a ‘‘transcendental institutionalism’’ that, in the absence of a sensitivity to political context, renders them unable to promote justice in practice (Sen 2009, 6ff). At the same time, this legitimate critique of Kant’s omissions on this front must be distinguished from a suggestion that Kant was anything but deeply committed to the cause of equality between spouses—hence the failings of his theory on this front need to be seen as a sin of omission rather than commission.

Conclusion Kant has been criticized for attempting to use the marriage contract as a tool for the subordination of women and then trying to justify his immoral intentions via an argument that is ‘‘tortuous—and contradictory’’ and predicated on several ‘‘very unconvincing theoretical maneuvers’’ that add up only to an ‘‘adept sleight of hand’’ (Pateman 1988, 170–71). Yet while his claims certainly require reconstruction, the accusation that they are trickery dedicated either consciously or

unconsciously to defending inequality in marriage is unfair. Whatever else might be said of his views on sex and gender, Kant’s practical theory of the marriage contract represents at once one of the eighteenth century’s most radically egalitarian views of marriage, and a key moment in his engagement with Rousseau’s political theory.

Acknowledgments For extremely helpful and generous comments on earlier drafts of this article, the author is very grateful to Patrick Frierson, Shalini Satkunanandan, Susan Shell, Helga Varden, and David Williams.

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Ryan Patrick Hanley is Associate Professor of Political Science at Marquette University, Milwaukee, WI 53233.