[From "Philosophy and Sex", 3rd ed., Baker, Wininger, and Elliston, eds. (New York: Prometheus Books, 1998)]
The current era is one of that vulgar form of hedonism rejected by philosophical hedonists such as Epicurus and John Stuart Mill.1 Apologists thinly disguise the tawdriness of a hedonism of biological pleasures by appeals to individual rights and autonomy. Far too frequently these appeals merely mask a refusal to accept responsibility. This failure to accept personal responsibility is periodically atoned for by ritualistic and ill-conceived attempts to help the poor and underprivileged people of the world.
One of the central focuses of the current vulgar hedonism has been sexual liberation. Premarital intercourse, gay liberation, no-fault divorce, open marriage (read, "open adultery"), polygamy, and orgies all have their advocates. About the only forms of sexual behavior yet to have strong advocates are pedophilia and bestiality. Any day now one may expect grade-school children to assert their right to happiness through pedophilia and animal lovers to argue that disapproval of bestiality is unfair to little lambs.
The result, especially in Western society, is an emphasis on sex that is out of all proportion to its significance for a eudaemonistic life-that is, a life worth living, including elements besides pleasure. The only ultimate test for the value of a life is whether at its end it is found to have been worth living. It is difficult to conceive of a person's thinking his life significant because it was a secondrate approximation to the sexual achievements of the notorious rabbit. However, many people seem to think such a life offers the highest ideal of a "truly human" existence, forgetting Aristotle's insight that reproduction is characteristic of all living things, not just humans.2 Consequently, the institution of marriage has been attacked for hindering the achievement of this vulgar hedonistic ideal.
Attacks on Marriage
Not all attacks on the institution of marriage have been based solely on the vulgar hedonistic ideal. A more broad ranging, although no more plausible, attack has recently been made by John McMurtry. His attack is directed not against marriage per se but against that form of it found in Western societymonogamy. McMurtry does not merely find that monogamous marriage hinders the achievement of the vulgar hedonistic ideal. He also claims it is at least one of the causes of the following social ills: (1) Central official control of marriage "necessarily alienates the partners from full responsibility for and freedom in their relationship."3 (2) Monogamy restricts the sources of adult affection and support available to children.4 (3) It "systematically promotes conjugal insecurity, jealousy, and alienation. ..."5 (4) It "prevents the strengths of larger groupings."6 (5) It stimulates aggression, apathy, frustration, lack of spontaneity, perversion, fetishism, prostitution, and pornography.7 (6) It serves to maintain the status quo and capitalism.8 (7) It supports the powerlessness of the individual family by keeping it small.9 (8) By promoting many small families it creates a high demand for homes and consumer goods and services.10 (9) It makes it necessary for many more males to sell their labor than would be necessary if monogamy were not practiced.11 (10) By limiting opportunities for sexual satisfaction it channels unsatisfied desire into support for various institutions and interests.12 (11) Finally, it promotes financial profit for lawyers, priests, and so forth, in marriage and divorce proceedings.13 Such a catalog of evils omits only a few social problems such as political corruption and environmental deterioration, although even they are hinted at in numbers 8 and 11.
Many people have hoped that the simple-mindedness that attributes all or most or even many of society's ills to a single factor would disappear. At one time private ownership of the means of production was the bete noir of society.14 Recently it has been replaced in that role by unlimited population growth.15 Both of these beasts have been slain by the St. George of reasonableness.16 McMurtry has called forth yet another single-factor beast. There is no reason to suppose this one to be any more powerful than its predecessors.
No attempt will be made in this essay to examine in detail McMurtry's criticisms of monogamous marriage. In general they are characterized by a lack of historical and sociological perspective. It is unclear whether he is attacking the ideal of monogamous marriage as it perhaps existed a hundred years ago or as it exists today. Yet this difference is crucial. A century ago divorce was not widely recognized or accepted; today that is not true. When divorce was not recognized, concubinage and prostitution were quite prevalent, as was simply abandoning one's family.
Such practices certainly mitigated the effect of the strict social rules that McMurtry discusses. Also, he criticizes monogamy for limiting the access of children to adult affection and support, since they must rely upon their parents alone for care. But in the extended family, which existed until the urbanization of society, that limitation was considerably less common than it may be at present.
McMurtry seems to be unaware of the social realities of modem society. He emphasizes the law as it is written rather than the law in action. It is generally recognized that despite the wording of statutes, marriages can in practice now be dissolved by mutual consent.17 Nor is adultery usually prosecuted in those states in which it is still a crime. Nor does McMurtry present any sociological evidence for the various effects that he claims monogamous marriage has. Sometimes the evidence may well be against him. For example, he claims that monogamy supports the high demand for homes. Yet, for a century in Ireland monogamy coincided with a low demand for new homes. Couples simply postponed marriage until the male inherited the home of his parents, and those who did not inherit often did not marry.18
Underlying McMurtry's view of monogamous marriage is the Kantian conception of the marriage contract. According to Kant, marriage "is the Union of two Persons of different sex for life-long reciprocal possession of their sexual faculties."19 McMurtry takes the following principle to be the essential ground of monogamous marriage: "the maintenance by one man or woman of the effective right to exclude indefinitely all others from erotic access to the conjugal partner."20 Since by "possession" Kant meant legal ownership and the consequent right to exclude others, these two views come to the same thing. They both view marriage as chiefly concerned with private ownership of the means to sexual gratification, thus combining capitalism with vulgar hedonism (although Kant was not a hedonist).
Such a view of marriage is pure nonsense. However, it has more plausibility in today's era of vulgar hedonism than it did in Kant's time. Historically, the official aims of marriage, according to the Catholic Church-which was the only church during the period of the establishment of monogamous marriage in Western society-were procreation and companionship. There was also a tendency to view it as a legitimate outlet for man's sinful nature.21 It is this latter element that Kant and McMurtry have taken as the chief one.
In addition to the avowed purposes of marriage there were the actual social functions that it performed. The family unit was the basic social unit, not only for the education of children (that is, socialization, not formal schoolingwhich has only become widespread during the past century), but also for the production of necessities, including food and clothing, and for recreation. These historical functions of the extended-family unit based on monogamous marriage have been undermined by the development of industrial, urban society.22 Consequently, the moral and legal status and functions of marriage require reexamination in the light of current social conditions.
Before undertaking such a reexamination it is necessary to distinguish between rules of marriage and attendant social rules. They are mixed together in the traditional social institution of monogamous marriage, but there is no necessity for this mix and it is probably unjustified. In particular one must dis tinguish between penal laws prohibiting various forms of sexual union-homosexual, premarital, adulterous-and private arranging laws granting legal recognition to the marital relationship.23 Private arranging laws do not prescribe punishment for offenses; instead, they enable people to carry out their desires. People are not punished for improperly made marriages; instead, the marriages are invalid and unenforceable. Laws against fornication, prostitution, cohabitation, and homosexuality are almost always penal. Objections to them cannot be transferred directly to the marriage relationship. All of these penal laws could be abolished and monogamous marriage could still be retained.
It may be claimed that despite their nonpenal form, marriage laws do in fact penalize those who prefer other forms of relationship. If homosexual and polygamous relationships are not legally recognized as "marriages," then persons desiring these forms of relationship are being deprived of some degree of freedom. When considering freedom one must be clear about what one is or is not free to do. Consider, for example, the case of gambling. One must distinguish between laws that forbid gambling and the absence of laws that recognize gambling debts. The latter does not deprive people of the freedom to contract gambling debts; it simply does not allow the use of legal enforcement to collect them. Similarly, the absence of laws recognizing polygamous and homosexual marriages does not deprive people of the freedom to enter polygamous and homosexual unions. Instead, it merely fails to provide legal recourse to enforce the agreements of the parties to such unions. The absence of laws recognizing such marriages does not deprive people of a freedom they previously had, for they were never able to have such agreements legally enforced. Nor have people been deprived of a freedom they would have if there were no legal system, for in the absence of a legal system no agreements can be legally enforced. If there is a ground for complaint, then, it must be one of inequality-that one type of relationship is legally recognized but others are not. However, a charge of inequality is warranted only if there are no relevant reasonable grounds for distinguishing between relationships. To settle that issue one must be clear about the state's or society's interests in marriage.
The rest of this essay is concerned with the purposes or functions of the marriage relationship in which society has a legitimate interest. It is not possible here to set out and to justify the purposes for which governments may legislate. It is assumed that the state may act to facilitate citizens' engaging in activities that they find desirable and to protect the welfare and equality of all citizens, including future ones. Government has an especially strong responsibility for the welfare of children. Of course, these legitimate governmental or social interests and responsibilities must be balanced against other interests and values of citizens, including those of privacy and freedom from interference.
There is no attempt or intention to justify penal laws prohibiting forms of relationship other than monogamous marriage. Indeed, it is generally assumed that they ought not be prohibited and that more people will enter into them than has been the case. In such a context, monogamous marriage would become a more specialized form of relationship, entered into by a smaller proportion of the population than previously. Underlying this assumption are the general beliefs that many people are unqualified or unfit for a marital relationship and ought never to enter one and that many people marry for the wrong reasons. If true, these beliefs may explain why both marriage and divorce rates have been steadily rising in most Western countries during this century.24
Promoting Interpersonal Relationships
Alienation from others and loss of community are perceived by many to be among the most serious ills of modern, mass society. In such a situation it seems unlikely that many would deny the need for intimate interpersonal relationships of affection. The importance of such relationships for a good or eudaemonistic life have been recognized by philosophers as diverse as Aristotle and G. E. Moore.25 In considering such interpersonal relationships to be among the most valuable elements of a good life, one must distinguish between the value of a good and the strength of the desire for it. Many people have a stronger desire for life than for such interpersonal relationships, but they may still recognize such relationships as more valuable than mere life. Life itself is of little value, but it is a necessary condition for most other things of value.
Among the most valuable forms of interpersonal relationship are love, friendship, and trust. These relationships are limited with respect to the number of persons with whom one can have them. Classically, there has been a distinction between agapeic and erotic love. Agapeic love is the love of all mankindgeneral benevolence. The concept of erotic love is more limited. In today's world erotic love is apt to be confused with sexual desire and intercourse. But there can be and always has been sex without love and love without sex. Personal love is more restricted than either agapeic love or sexual desire. It implies a concern for another that is greater than that for most people. Hence, it cannot be had for an unlimited number of other people.26 Similar distinctions must be drawn between friendship and acquaintance, trust of a political candidate and trust of a friend.
Such interpersonal relationships require intimacy. Intimacy involves a sharing of information about one another that is not shared with others. Moreover, it often involves seclusion from others-being in private where others cannot observe.27 In some societies where physical privacy is not possible, psychological privacy-shutting out the awareness of the presence of others-substitutes. Consequently, these valuable interpersonal relationships require intimacy and usually physical privacy from others, and at the very least nonintrusion upon the relationship.
Moreover, these forms of interpersonal relationship require acts expressing the concern felt for the other person. In most societies acts of sexual intercourse have been such expressions of love and concern. It is not physically or psychologically necessary that sexual intercourse have this quasi-symbolic function, but it is a natural function of sexual intercourse. All that is here meant by "natural" is that in most societies sexual intercourse has this function, for which there is some psychological basis even though it is not contrary to scientific laws for it to be otherwise. Intercourse usually involves an element of giving of oneself, and one's sexual identity is frequently a central element of one's self-image. It is not, however, sexual intercourse that is intrinsically valuable but the feelings and attitudes, the underlying interpersonal relationship, that it expresses. Nonsexual acts also currently express such relationships, but sexual intercourse is still one of the most important ways of doing so. If sexual intercourse ceases to have this function in society, some other act will undoubtedly replace it in this function. Moreover, sexual intercourse will have lost much of its value.
If these interpersonal relationships of personal love and trust are of major value, it is reasonable for the state to seek to protect and foster them by according legal recognition to them in marriage. The specific forms of this recognition cannot be fully discussed. However, there is some basis for treating the partners to a marriage as one person. Historically, of course, the doctrine that the parties to a marriage are one person has supported the subjugation of women in all sorts of ways, for example, in their disability from owning property. But there is an underlying rationale for joint responsibility. Two people who, without a special reason such as taxes, keep separate accounts of income and expenditures do not have the love and trust of a couple who find such an accounting unnecessary. Moreover, in such a joint economic venture there is no point to allowing one party to sue the other. Only the advent of insurance, whereby neither spouse, but a third party, pays, makes such suits seem profitable. Another recognition of these relationships-albeit one not frequently invoked-is that one is not forced to testify against his or her spouse. More important is that neither party is encouraged to violate the trust and intimacy of the relationship, for example, by encouraging one to inform authorities about bedroom comments of his or her spouse.28
The character of these valuable forms of interpersonal relationship provides an argument against according marriages of definite duration legal recognition equal to that accorded those that are intentionally of indefinite duration. For it to be "intentionally of indefinite duration," neither partner may, when entering the marriage, intend it to be for a specific period of time, for example, five years, nor may the marriage contract specify such a period. The following argument is not to show that marriages for a definite duration should not be recognized, but merely to show that they should not have equal standing with those intentionally of indefinite duration. The basic reason for unequal recognition is that interpersonal relationships that are not intentionally of indefinite duration are less valuable than those that are.
Suppose one were to form a friendship with a colleague, but the two mutu ally agree to be friends for only three years, with an option to renew the friendship at that time. Such an agreement would indicate a misunderstanding of friendship. Such agreements make sense for what Aristotle called friendships of utility, but in the modern world these friendships are business partnerships.29 While there is nothing wrong with business friendships, they do not have the intrinsic value of personal friendships. In becoming close personal friends with someone, one establishes a concern and trust that would be seriously weakened or destroyed by setting a time limit to the friendship. It is sometimes claimed that time limits may be set because people will only be together for a while. But one need not see a person every day or even every year to remain friends. However, extended separation usually brings about a withering away of the friendship.
Similarly, the personal relationship of love and trust in marriage is of lesser value if it is intentionally for only a definite period of time. Moreover, the entering into a relationship that is intentionally of indefinite duration and legally recognized symbolizes a strength of commitment not found in other types of relationships. While two unmarried people may claim that there is no definite limit to their mutual commitment, their commitment is always questionable. Entering into a marital relationship assures the commitment more than does a mere verbal avowal.
There are two common objections to this argument. First, it is sometimes said that there may be special reasons for making marriages of short, definite duration, for example, if one partner will only live in the area for a while. But a personal love that is not strong enough to overcome difficulties of moving to another area and possible sacrifices of employment is not as close and strong as a love that can. Many married couples make such compromises and sacrifices. Second, it is sometimes claimed that commitment is in fact stronger when not legally reinforced, when one does not need the law to support the relationship. However, this claim overlooks the fact that when a married couple's relationship rests substantially upon their legal obligations, their relationship has already begun to deteriorate. The strength of commitment is established by the willingness to enter into a legal relationship that cannot be broken simply, without any difficulties. A person who is not willing to undertake the risk of the legal involvement in divorce should he desire to terminate the relationship is probably unsure of his commitment. Moreover, the legal relationship provides security against a sudden and unexpected change in one's life-the breakup of the social aspects will take some time, giving one a chance to prepare for a new style of life. Even then the change is often very difficult.
Hence, if marriage is for the purpose of providing legal recognition of some of the most valuable interpersonal relationships, it should grant more protection and recognition to those intentionally of indefinite duration than to others. Such a conclusion does not imply that divorce should be impossible or exceedingly difficult. Friendships frequently do not last forever despite their not being intended for a limited period of time. The same may happen to a marital relationship. So while this argument supports not according legal recognition to relationships intended to be of definite duration equal to that accorded those intended to be of indefinite duration, it does not support restrictions on divorce in the latter case. Moreover, the average length of time of marriages has increased considerably since the seventeenth century. When a couple married then, one of them was likely to die within twenty years. With today's increased life expectancy, both parties may live close to fifty years after they marry.30 Obviously, with such an increased possible length of marriage, there is a greater chance for marital breakdown and divorce. One may expect more divorces in marriages that have lasted twenty to twenty-five years simply because there are more such marriages. Nevertheless, such marriages are intentionally of indefinite duration-for life.
Protecting the Welfare of Children
Another area of pervasive social interest that has historically centered in marriage concerns the procreation and raising of children. Society has an interest not only in the number of children born but their quality of life. This fact is in deep conflict with the current emphasis on the freedom of individuals to make reproductive decisions unfettered by social rules and restrictions. Moreover, it is an area in which social control has traditionally been weak. Child abuse is widespread, and efforts to prevent it are mediocre at best. There are few general legal qualifications or tests for becoming a parent. Yet parenthood is one of the most potentially dangerous relationships that one person can have with another. If one is a poor college teacher, then at worst a few students do not receive a bit of education they might have. But as a parent one potentially can ruin completely the lives of one's children. At the least, they may develop into psychological misfits incapable of leading responsible and rewarding lives.
Essentially, there are three areas of social interest and responsibility with respect to procreation and the raising of children. First, there is a social interest in the sheer number of children born. The current emphasis on population control makes this interest abundantly clear.31 Second, there is a social interest in the potentialities of children. This area includes concern for genetic and congenital birth defects and abnormalities. Over 5 percent of all children born have a genetic defect. The possibility of genetic control of those who are born will soon take on major significance. Already, approximately sixty genetic diseases as well as almost all chromosomal abnormalities can be detected in utero, and adult carriers of about eighty genetic defects can be identified.32 Given the possibility of genetic control, society can no longer risk having genetically disadvantaged children by leaving the decision of whether to have children to the unregulated judgment of individual couples. Some social regulations with respect to genetic screening and, perhaps, eugenic sterilization are needed. While potential parents have interests of privacy and freedom in reproductive decisions, the social interests in preventing the suffering and inequality of possibly defective children may outweigh them in certain types of cases.
Third, the care and development of those who are born is a social interest and responsibility. This interest has been recognized for some time in the form of children's homes and compulsory education. However, increasing knowledge about childhood development extends the area in which social interests and responsibility may be reasonably involved. To give an example at the most elementary level, the nutritional diet of children during their first three years is crucial for their future development. So also is their psychological support. The welfare of future generations is not a private but a social matter. It is a proper task of society, acting through its government, to ensure that the members of the next generation are not physical or psychological cripples due to the ignorance, negligence, or even indifference of parents.
Historically, society has attempted to control procreation through the institution of marriage. Society's means were primarily to stigmatize children born out of wedlock and to encourage the having of many children. It is now recognized that no useful purpose is served by stigmatizing children born out of wedlock as illegitimate. (However, some useful purpose may be served by not according children born out of wedlock all the rights of those born in wedlock, for example, inheritance without parental recognition.) The emphasis on having as many children as one can has also disappeared. It is not this historical concern with procreation that is misplaced in modern society but the forms that the concern has taken.
If society has the responsibility to protect the welfare of children, then some social regulation and control of human reproduction and development is justified. Such regulation and control need not be effected by penal laws. For example, social concern has traditionally been expressed in adoptions through regulations to ensure that those who adopt children are fit to care for them. That some regulations have been inappropriate and not reasonably related to the welfare of children is not in question. Rather, the point is that there has been regulation without penal laws, or at least without resorting primarily to penal laws. Nor can social regulation and control be solely by legislation. Legislation alone is usually ineffective; it must be supported by informal social rules and expectations.
Not only has modern biomedicine made sex possible without procreation; it has also made procreation possible without sex. The techniques of artificial insemination and fertilization, embryo transfer, ova donation, ectogenesis. and cloning now, or soon will, make it possible for people to reproduce without sexual intercourse.33 Hence, not only may one have sex for pleasure, but one may reproduce for pleasure without sexual intercourse. Not only may people reproduce outside marriage; they are not even biologically required to have intercourse. Thus, sex and marriage may become dissociated from reproduction.
However, there are strong reasons for restricting procreation primarily to marriages of indefinite duration, which does not imply that such marriages should be restricted to procreation. Marriage has traditionally been the central social institution concerned with procreation. Consequently, if society is to exercise some control over procreation in the future, it would involve the least change in conditions to do so through marriage. Moreover, there is considerable evidence that the disruption of family life contributes to juvenile delinquency. Whether divorce or marital breakdown (with or without divorce) is a prime cause of such delinquency does not matter. The point is that the disruption of home life does seriously affect the development of children.34 The chance of such disruption outside of a marriage that is intentionally of indefinite duration is higher than for that within. Moreover, there is some reason to believe that the presence of both mother and father is instrumental in the psychological development of children. In any case, the presence of two people rather than one provides the security that there will be someone to care for the children should one of the parents die. Generally, children are better off being with one parent than in a state orphanage, but better off still with both parents. Hence, for the welfare of children it seems best that procreation and child rearing primarily occur within the context of marriages intentionally of indefinite duration.
While society has a responsibility for the care and development of children, this general responsibility is best carried out if specific adults have obligations to care for specific children. In the past, the biological parent-child relation has reinforced the allocation of responsibility for specific children and has been a major factor in monogamy.35 The separation of reproduction and sexual intercourse threatens disruption of this assignment. For example, if gestation occurs in an artificial womb in a laboratory, there may be no "parents," only a scientific research group. More realistically, if a woman has an embryo from ova and sperm donors transferred to her uterus, it is unclear who are the child's parents. However, if there is to be optimal care for children, specific adults must have obligations for specific children. It cannot be left to somebody in general, for then nobody in particular is likely to do it. "Let George do it" is too prevalent and careless an attitude to allow with regard to children.
McMurtry's contention that monogamy restricts the care for children is not well founded.36 First, if there are no specific adults responsible for children, they may become "lost" in large groups and victims of the "it's not my job" syndrome. Second, monogamy per se does not cut children off from the support and care of others. One must distinguish the marital relationship from living arrangements. It is the isolated situation of the family that deprives children of such support. In many married-student housing complexes children have access to other adults. Even in general-residential neighborhoods with separate family housing units, such support is available if there is a sense of community in the neighborhood.
Given the social interests in and responsibility for the procreation and development of children, some more effective controls of parenthood appear desirable. If the primary locus of reproduction is to be within marriages of intentionally indefinite duration, then the easiest way to institute controls is to add requirements for people to enter such marriages. A few requirements such as blood tests are already generally prevalent. Alternatively, one might have a separate licensing procedure for procreation. Nonmarried couples and single people might also qualify for such licenses. Moreover, couples who want to marry but not have children would not have to meet requirements. However, the only requirements suggested below that might bar marriages are almost as important for those couples who do not have children as for those who do. If the requirements were tied to marriage they would be easier to administer. The only drawback is that unmarried people would not have to meet them. However, such requirements can and should be part of the medical practice of the "artificial" techniques of reproduction-artificial insemination and embryo transfer. And there are few if any effective methods, except generally accepted social rules, to control procreation outside of marriage.
One obvious requirement would be genetic screening. With modern medical techniques genetic problems do not imply that couples cannot become married, but they might be expected not to have children who are their genetic offspring. Artificial insemination and embryo transfer make it possible for almost everyone to have children, even though the children might not be genetically theirs. A general distinction between biological and social parenthood should be made, with legal emphasis on the latter.
More important, perhaps, is some general expectation of psychological fitness for family life and the raising of children. The difficulty with such an expectation is the absence of any clear criteria for fitness and reliable methods for determining who meets them. Perhaps, however, some formal instruction in family relations and child rearing would be appropriate. The Commission on Population Growth and the American Future has already called for an expansion of education for parenthood.37 It is only a bit further to require some sort of minimal family education for marriage. Probably the easiest method for ensuring such education would be to make it a required subject in secondary schools. If that were done, few people would have difficulty meeting this requirement for marriage.
There should not be any financial or property qualifications for marriage.38 Society's interest in and responsibility for the welfare of the population in general is such that governments should ensure an adequate standard of living for all persons. Were that to be done there would be no reason to impose any financial restrictions on marriage. Nonetheless, prospective parents should have more concern for their financial situation than is now frequently the case. The adequate care of children is an expensive task, financially as well as psychologically and temporally.
Conclusion
It may be objected that neither the argument from interpersonal relations nor that from the welfare of children specifically supports monogamous marriage. While loving relationships cannot extend to an indefinite number of people, they can extend to more than one other person. Also, a polygamous union may provide a reasonable environment for procreation. Hence, neither of the arguments supports monogamous marriage per se.
Logically, the objection is quite correct. But it is a misunderstanding of social philosophy to expect arguments showing that a certain arrangement is always best under all circumstances. The most that can be shown is that usually, or as a rule, one social arrangement is preferable to another. Practically, polygamous marriage patterns will probably never be prevalent.39 For centuries they have been gradually disappearing throughout the world. If a disproportionate sex distribution of the population occurs in some areas or age groups (such as the elderly), then they may increase in significance. Unless that occurs, most people will probably continue to prefer marital monogamy.
More important, the burden of this paper has not been to defend the traditional ideal of marital union or even the current practice. Many of the traditional rules of marriage have been unjust, for example, the inequality between the sexes, both legally and in terms of social roles. Instead, it has been to defend social recognition of marriage of intentionally indefinite duration as a unique and socially valuable institution that society has interests in promoting and regulating. In particular, society has interests in and responsibility for promoting a certain form of valuable interpersonal relationship and protecting the welfare of children. Both of these purposes can be well served by monogamous marriage.
The image, then, is of a society with various forms of living together, but one in which marriage of intentionally indefinite duration would have a distinctive though lessened role as a special kind of socially and legally recognized relationship. There would not be laws prohibiting nonmarital forms of cohabitation. Divorce would be based on factual marital breakdown or mutual consent, with due regard for the welfare of children.
Monogamous marriage would recognize a special form of personal relationship in which reproduction and child rearing primarily occur. Given the social interest in decreasing procreation, many people might marry but not have children, and others might not marry at all. Details of the legal marital relationship have not been specified, nor could they be in this brief essay except with respect to the main social interests. Questions of inheritance, legal residence and name, social-security benefits, and so on, have not been specified. Changes in laws with respect to many of these matters can be made without affecting the arguments for the value of, social responsibility for, and interests in marriage. Above all, it is an image in which sexual intercourse plays a much smaller role in the conception of marriage and the good life in general, a society in which vulgar hedonism has at least been replaced by a broader-based eudaemonism.
Notes
1. Epicurus, "Letter to Menoeceus," in The Stoic and Epicurean Philosophers, ed. Whitney J. Oates (New York: Modem Library, 1957), p. 31. Epicurus even wrote, "Sexual intercourse has never done a man good, and he is lucky if it has not harmed him" (Fragment 8 in The Stoic and Epicurean Philosophers). John Stuart Mill, Utilitarianism, chap. 2, especially paragraphs 1-9.
2. De Anima 2.4.
3. "Monogamy: A Critique," The Monist 56 (1972); in Philosophy and Sex, 1st ed. (Amherst, N.Y.: Prometheus Books, 1975), pp. 107-18. This quote appears on page 111 of the 1975 volume (italics added). Subsequent references to McMurtry's essay are to pages in that edition.
4. Ibid., p. 111
5. Ibid.
6. [bid.
7. Ibid., p. 112.
8. Ibid., p. 114.
9. Ibid., p. 115.
10. Ibid.
11. Ibid.
12. Ibid.
13. Ibid.
14. Karl Marx and Friedrich Engels, "Manifesto of the Communist Party," in Basic Writings on Politics and Philosophy, ed. Lewis S. Feuer (Garden City, N.Y.: Doubleday, Anchor Books, 1959), especially p. 24.
15. Paul R. Ehrlich, The Population Bomb (New York: Ballantine Books, 1968).
16. Even new Marxists perceive other sources of problems. See Milovan Djilas, The New Class (New York: Praeger, 1964); and, more generally, Richard T. De George, The New Marxism (New York: Pegasus, 1968), chap. 2. The importance of population for pollution, with which it is most frequently connected, has been contested by Barry Commoner, The Closing Circle (New York: Knopf, 1971), pp. 133-35. Ehrlich now clearly recognizes that various causal factors are important, although he still disagrees with Commoner on the importance of population growth; see Paul R. Ehrlich et al., Human Ecology (San Francisco: W. H. Freeman and Company, 1973), chap. 7, esp. pp. 206, 213-15, 221.
17. Max Rheinstein, Marriage Stability, Divorce, and the Law (Chicago: University of Chicago Press, 1972), p. 251.
18. Edwin D. Driver, "Population Policies of State Governments in the United States: Some Preliminary Observations." Villanova Law Review 15 (1970): 846-47.
19. Immanuel Kant, The Philosophy of Law, trans. W. Hastie (Edinburgh: T. & T. Clark, 1887), p. 110.
20. McMurtry, "Monogamy," p. 112; italics in original omitted.
21. See John T. Noonan Jr., Contraception (Cambridge, Mass.: Harvard University Press, 1966), pp. 312-14.
22. Keith G. McWalter, "Marriage as Contract: Towards a Functional Redefinition of the Marital Status," Columbia Journal of Law and Social Problems 9 (1973): 615.
23. Robert S. Summers, "The Technique Element of Law," California Law Review 59 (1971): 736-37, 741-45.
24. Burton M. Leiser, Liberty, Justice and Morals (New York: Macmillan Co., 1973), p. 126; R[oland] Pressat, Population, trans. Robert and Danielle Atkinson (Baltimore: Penguin Books, 1970), pp. 84, 86; U.S. Commission on Population Growth and the American Future, Population and the American Future (New York: Signet, New American Library, 1972), pp. 102-103.
25. Aristotle, Nicomachean Ethics 9.9-12; George Edward Moore, Principia Ethica (Cambridge: At the University Press, 1903), pp. 188, 203-205.
26. It is thus misleading for McMurtry to write of monogamous marriage excluding "almost countless other possibilities of intimate union" with any number of persons (p. 109; my italics). On the limited nature of personal love or friendship see also Aristotle, Nicomachean Ethics 9.10.
27. For a discussion of these relationships and the need for privacy, see Charles Fried, "Privacy," in Law, Reason, and Justice, ed. Graham Hughes (New York: New York University Press, 1969), pp. 45-69.
28. See the discussion (in another context) of such a case in Nazi Germany by H. L. A. Hart, "Positivism and the Separation of Law and Morals," Harvard Law Review 71 (1958): 618-20; and Lon L. Fuller, "Positivism and Fidelity to Law-A Reply to Professor Hart," Harvard Law Review 71 (1958): 652-55.
29. Nicomachean Ethics 8.3. The vulgar hedonists treat marriage as a form of friendship for pleasure, but that is not the highest form of friendship.
30. Pressat, Population, p. 52.
31. For a more complete discussion see my "Limits to a Right to Procreate," in Ethics and Population, ed. Michael D. Bayles (Cambridge, Mass.: Schenkman Publishing Company, 1975).
32. Daniel Callahan, The Tyranny of Survival (New York: Macmillan Co., 1973), p. 219.
33. For a good general survey of these techniques and some suggestions for social controls, see George A. Hudock, "Gene Therapy and Genetic Engineering: Frankenstein Is Still a Myth, But It Should Be Reread Periodically," Indiana Law Journal 48 (1973): 533-58. Various ethical issues are discussed in Joseph Fletcher, The Ethics of Genetic Control (Garden City, N.Y.: Doubleday, Anchor Books, 1974). Successful human embryo implantation and growth to term after in vitro fertilization has been reported in Britain (see Time, July 29, 1974, pp. 58-59; and Newsweek, July 29, 1974, p. 70).
34. President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society (New York: Avon Books, 1968), pp. 184-89.
35. Daniel Callahan, "New Beginnings in Life: A Philosopher's Response," in The New Genetics and the Future of Man, ed. Michael P. Hamilton (Grand Rapids, Mich.: William B. Eerd- mans Publishing Company, 1972), pp. 102-103.
36. "Monogamy," p. 111.
37. Population and the American Future, pp. 126-33, esp. p. 133.
38. For some suggested financial requirements as well as others, see Jack Parsons, Population versus Liberty (Amherst, N.Y.: Prometheus Books, 1971), p. 349.
39. Even McMurtry appears to recognize this fact; see "Monogamy," p. 107.