The Philosophy of Law: Private Right, §§ 23 and 24: What Is Acquired in the Household?; The Natural Basis of Marriage
Private Right, §§ 23 and 24: What Is Acquired in the Household?; The Natural Basis of Marriage
The Acquisition that is founded upon this Law is, as regards its objects, threefold. The Man acquires a WIFE; the Husband and Wife acquire CHILDREN, constituting a Family; and the Family acquire DOMESTICS. All these objects, while acquirable, are inalienable; and the Right of Possession in these objects is the most strictly 2lcrsoJlfl of all Rights.
The domestic Relations are founded on Marriage, and Marriage is founded upon the natural Reciprocity or intercommunity (commercium) of the Sexes. This natural union of the sexes proceeds either according to the mere animal Nature (vaga libido, vcnus vulgivaga, fornicatio), or according to Law. The latter is MARRIAGE (matrimonium), which is the Union of two Persons of different sex for life -long reciprocal possession of their sexual faculties.—The End of producing and educating children may be regarded as always the End of Nature in implanting mutual desire and inclination in the sexes; but it is not necessary for the rightfulness of marriage that those who marry should set this before themselves as the End of their Union, otherwise the Marriage would be dissolved of itself when the production of children ceased.
Kant’s note: Commercium nexua.lt est uux membrorum ft facn/fahtm texualiwn altering. This ‘UBUX’ is either natural, by winch human beings may reproduce their own kind, or unnatural, which, again, refers either to a person of the same sex or to an animal of another species than num. These transgressions of all Law, as ‘crimina carnix contra ncUuram,’ are even ‘not to be named;’ and as wrongs against all Humanity in the Person they cannot be saved, by any limitation or exception whatever, from entire reprobation.
And even assuming that enjoyment in the reciprocal use of the sexual endowments is an end of marriage, yet the Contract of Marriage is not on that account a matter of arbitrary will, but is a Contract necessary in its nature by the Law of Humanity. In other words, if a man and a woman have the will to enter on reciprocal enjoyment in accordance with their sexual nature, they must necessarily marry each other; and this necessity is in accordance with the juridical Laws of Pure Pieason.