Kant’s Sexual Contract

Author(s): Ryan Patrick Hanley

Source: The Journal of Politics, Vol. 76, No. 4 (Jul. 21, 2014), pp. 914-927
Published by: The University of Chicago Press on behalf of the Southern Political Science
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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.

T
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 engage-
ment 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 par-
ticular, 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

1
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.

The Journal of Politics, Vol. 76, No. 4, October 2014, Pp. 914–927 doi:10.1017/S0022381614000462
Ó Southern Political Science Association, 2014 ISSN 0022-3816

914

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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 con-
tract, 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 anthro-
pological 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 exploita-
tion 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 domi-
nated 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,
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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 naı̈ve: ‘‘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 inescap-
ably ‘‘‘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 differ-
ences 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 treat-
ment’’ (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 heterosex-
uality 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 antifemi-
nism, including Okin and Mendus, Pateman sees
Kant’s treatment of women as both influenced by
Rousseau and in disaccord with his general commit-
ment 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 criti-
cized. 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 over-
sight 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.
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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 neces-
sary consequence of this compact was the establish-
ment 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 signif-
icance for Kant), how are we to solve the ‘‘funda-
mental 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 associa-
tion that enables the individual to use the ‘‘force and
freedom’’ that are ‘‘the primary instruments of his
self-preservation’’ without at the same time com-
promising 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 ration-
alizes 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
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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 empha-
sizes 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 alien-
ation 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 account-
ing 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 signif-
icance 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 discov-
ered ‘‘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,
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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 prac-
tical philosophy is of course well known; as several
commentators have recently demonstrated, Rousseau’s
writings on women decisively influenced Kant’s pre-
critical 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 concep-
tion 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 engage-
ment 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 ques-
tion of the possibility that, insofar as one of the
modalities is largely (though not exclusively) associ-
ated 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,
3
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 antic-
ipated 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).
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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 anthro-
pological 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 differ-
ences 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 unaccept-
able 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 specif-
ically 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 sub-
stantive 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 posi-
tion 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
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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 con-
stitute 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 sat-
isfaction 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 pre-
cedence’’ 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 chal-
lenge 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 chal-
lenges 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 prob-
lem. 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 concep-
tion of the sexual contract. In this sense, Kant’s
practical theory marks not only an important state-
ment 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
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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 objec-
tification 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 great-
est unhappiness, simply to satisfy their own inclina-
tion 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 posses-
sor 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 else-
where 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 mem-
ber 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 condi-
tion 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 debase-
ment 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,
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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 com-
mentator 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 atten-
tion. 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 appreci-
ation 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 prob-
lem 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 circum-
stances, 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
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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, illegit-
imate 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 anthropo-
logical 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’’ succes-
sion 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 under-
estimated. 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 recip-
rocated 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
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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 acquisi-
tion, 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 perpe-
tuity 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 Rous-
seau, 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 pro-
moting 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 mar-
riage 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
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925
neither spouse can rationally will the other’s suffer-
ing, 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 perpet-
ual 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 be-
tween 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
926
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 fundamen-
tal 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, Rous-
seau 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 inten-
tions via an argument that is ‘‘tortuous—and contra-
dictory’’ 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
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ryan patrick hanley
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.