Free Love

69
The Southern Journal of Philosophy (2009) Vol. XLVII
Abstract
By revisiting Hegels Philosophy of Right, I mount a Hegelian defense
of same-sex marriage rights. I first argue that Hegels account of the
Idea of freedom articulates both the necessity of popular shifts in the
determinations of the institutions of right, as well as the duty to
struggle to progressively actualize freedom through them. I then
contend that Hegel, by grounding marriage in free consent, clears the
path for expanding this ethical institution to include all monogamous
couples. Lastly, I close by sketching the specifically Hegelian reasons
we ought to actively struggle to expand the institution of marriage.
One would likely be hard pressed to find a substantial number
of contemporary Hegelians who remained steadfastly opposed to
extending marriage rights to same-sex couples. However, one
assuredly would be harder pressed to find substantial support
for such an extension in Hegels texts. Not only does Hegel
never explicitly raise the possibility of same-sex relationships,
1
his account of ethical marriage invokes rigid sex roles that would
likewise find little support among contemporary Hegelians. Those
who are both sympathetic to Hegels arguments concerning right
and accepting of more contemporary views on marriage, of
course, usually claim that these views represent major lapses
2
in the consistency of Hegels philosophy that serve as quaintly
repugnant reminders of the social practices of [his] day.
3
Thus,
they claim that the archaic letter of Hegels text should not
preclude the possibility that same-sex marriage may be consis-
tent with the eternal spirit of the Hegelian theory of right in
general, and marriage rights in particular.
Free Love: A Hegelian Defense of
Same-Sex Marriage Rights
Jim Vernon
York University
Jim Vernon is Assistant Professor of Philosophy at York University.
He is the author of Hegels Philosophy of Language and various articles
on nineteenth and twentieth century Continental philosophy.
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For reasons that will become clear in the following, the move
from letter to spiritfrom what is merely in Hegel to what is
consistently Hegelianstrikes me as the correct one; however,
merely demonstrating the consistency of that spirit with a recent,
contingent development in the marriage practices of some
nations does not amount to a Hegelian defense of same-sex
marriage. Such a defense would need to further explain why
Hegelians should support and/or join any struggles to expand
marriages definition to include same-sex couples, rather than
simply accept its ethicality once institutionalized in a society. In
fact, in order to mount a complete defense, one would need to
explain why Hegelians need to take sides in ethical debates at
all, as well as the general grounds according to which sides
should be taken in current struggles over the definition of all
rights, including that of marriage. That is, a Hegelian case for
same-sex marriage rights can only be fully mounted if the
Hegelian theory of right can affirm (1) the necessity of struggles
over the institutions of right, (2) the general duty to enhance or
expand actualized rights over time in and through struggles over
changes to ethical institutions such as marriage, and (3) the
specific duty to struggle to extend marriage rights to same-sex
couples.
As a contemporary Hegelian supportive of struggles for
same-sex marriage rights, my aim in what follows is to defend
all of these claims by revisiting Hegels Philosophy of Right.
4
In
the first section, I will argue that Hegels account of the Idea of
freedom articulates both the necessity of popular shifts in the
determinations of the institutions of right as well as the duty to
struggle to increasingly actualize freedom through them. In the
second section, I will explore the specific right to marry, con-
tending that Hegel, by grounding marriage in love and freedom,
rather than any natural function or social tradition, clears the
path for expanding this ethical institution to include all mono-
gamous couples, thereby expanding the actualization of freedom.
This will give us reason to question not only the limits Hegel
places on who may marry but the sex roles he claims are neces-
sary to its functioning. I close by sketching the specifically
Hegelian reasons we ought to struggle to expand the institution
of marriage to include same-sex couples. That is, I shall defend
the right and duty to expand the institutional actualization of
freedom, the compatibility of same-sex marriage with Hegels
account of marriage rights, and the rationale for struggling to
actualize same-sex marriage rights in custom and law.
1. The Actualization of Freedom
As everyone knows, the Preface to Hegels Philosophy of Right
asserts that philosophy can only comprehend the rationality of
its own time and, thus, makes no vain claims to superior knowl-
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edge about how future societies ought to be; however, as
everyone (who has read the rest of the book) also knows, Hegel
additionally claims that one must not confuse the prevailing
circumstances and existing institutions (3R) of right with
that which is right in itself, and his text occasionally offers
what look like prescriptions based on the nature of right. This
apparent paradox, of course, has often led interpreters to empha-
size one of its sides over the other, leading to claims that Hegels
theory of right is fundamentally conservative, even reactionary,
or fundamentally progressive, even revolutionary.
5
There is good reason, however, to think that Hegels position
is not paradoxical at all, but arises directly from the Idea of right
grounded in free will. For Hegel, the Idea of right is twofold: it
encompasses both the rational concepts of right as well as their
actualization in concrete social life (1). If the concepts of right
were not discernable within actual social structures, but repre-
sented independently developed prescriptions for a just society,
then nothing would distinguish them from merely subjective
feelings or abstract thoughts. It would, thus, be vain to call these
concepts rational, or their actualizations right, for such feelings
and abstractions are always already drawn from, and influenced
by, their social reality and can claim no ethical superiority to
the structures they critique. Conversely, if there was no ration-
ality in contemporary social structures, they would represent
merely transitory contingencies, and no society would contain
more right than any other. Therefore, if there is to be a science
of right, there must be rational concepts of right that can be
discerned in existent social structures.
The two-sided nature of right is demonstrated through the
Introductions account of freedom. Famously, Hegel claims that
the rational basis of right is spirit, that spirit is intelligence
which produces itself as will and that the will is free (4). The
arguments for these claims are too intricate to rehearse here;
6
however, it is at least intuitively plausible that the very idea of
right presupposes free social agents as its rational ground. The
science of right, then, proceeds from the nature of free will.
The will is only truly free if it is abstractable from any and
every possible willed content. If the will were necessarily tied to
any particular objective determination, then it would by defini-
tion be an externally determined, limited, and unfree will. Thus,
the very concept of freedom presupposes the limitless infinity
of absolute abstraction or universality of the will, which is
abstractable in principle from every limitation, every content,
whether present immediately through nature, through needs,
desires and drives, or given and determined in some other way
(5).
However, while the abstraction of the will from every content
is required for its freedom, its transition into differentiation,
determination, and the positing of a determinacy as a content
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and object is no less necessary (6). If the universal will always
remained infinitely abstract, it would never will at all, but
always remain a merely implicit potency. It could only retain its
abstract infinity by willing exactly nothing and therefore would
be neither willing nor free. Thus, the universal freedom of the
will is only demonstrable in abstraction from all content, but its
free willing power is only actualized through some objective
determination (an action, an institution, etc.).
On the one hand, then, the free will is universal, infinite,
abstract, and indifferent to all determinations, while on the other
it is actualized through specific, willed, and objective determina-
tions. Holding strictly either to the abstract universality of the
free will, or to its concrete actualization results in a false
conception of freedom; it is only their unity that is the truth of
the will (7). It is the failure to grasp this unity, Hegel argues,
that allows the truly free will to be customarily confused with
the arbitrary will, which contingently chooses its determina-
tions from out of a pregiven, objective content (e.g., being free to
fulfill a particular desire out of the many we contingently have)
(15R). While this view of freedom is often invoked in theories of
right (and must be guaranteed in any rational, Hegelian state), if
the possible determinations of the will were all external in this
sense, then the will could never actualize itself as determinately
free, but only implicitly so, for it would give itself no content,
but would be nothing but the merely implied, infinite choosing
power behind a contingent, external determination. Such affir-
mations of the pregiven, no matter how uncoerced, can never
essentially actualize right, for they inherently place an external
limit on the free will that selects or affirms them.
Thus, the concrete actualization of freedom cannot arise
simply by affirming a pregiven objective determination, for a
truly free will must be actualized in and through a self-given
content. That is, the free will only achieves concrete actualiza-
tion in real contents that proceed from the nature of freedom
(21). It is for this reason that the will essentially achieves
actualization in the social and political institutions of ethical
life (Sittlichkeit, connoting the customary or legal morality of a
community), that is, those that constitute the family, civil
society, the state. These institutions both objectively exist inde-
pendently of the subjects who fill them (i.e., as the objective,
determinate structures of custom and law), and yet simul-
taneously do not exist except insofar as individuals willfully
actualize themselves through them (i.e., take them up and find
themselves at home within them). Thus, they are objectively
existent determinations of the will, but self-given ones, for they
exist in and through the willful actions and attitudes of free
individuals. The institutions of civil society actualize free
subjects as individuals (for they proceed from individually
willed action and attitude), and yet do so by linking them with
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others in objective structures (for they actualize us within
structures that are not individual, but social). They actualize, in
short, concretely free individuals in and through their objective,
institutional connections with other free individuals in the
mutual promotion of freedom. The free will is only truly actual-
ized as freethat is, free will in and for itselfthrough these
institutions, for in them the wills object is itself, and not
something it sees as other or as a limitation (22). As such, the
absolute determination, or, if one prefers absolute drive, of the
free spirit is to make freedom into its object (27), that is,
the drive to posit the institutions that actualize human freedom
and to posit itself through them. In sum, the universal, infin-
itely free will that grounds right is indifferent to content and,
thus, is an abstract will requiring actualization through a self-
given yet objective determination, implying that the wills
essential actualizations are the concrete social institutions that
are manifested through and actualize the wills freedom.
That said, Hegel cannot be implying that willing subjects
must develop the institutions that actualize freedom ex nihilo,
and not simply because each willing subject is born into a
society with already existing social structures. Freedom in itself
is an abstraction with no content, determination, or actuality,
and thus nothing concrete can arise from it. In fact, as Hegel
famously argues, if the pure abstract will is ever immediately
brought into actuality, it becomes the fanaticism of destruc-
tion, demolishing the existing social order and annihilating
any organization which attempts to rise up anew (5R). Thus,
if the will is to actualize itself by giving itself determinations,
and the essential actualizations of freedom are the institutions
of right, then freedom can only be actualized through institu-
tions that already exist. However, Hegel equally cannot be
arguing (even if it sometimes sounds like it, e.g., 14647) that
the free will can be actualized by simply choosing to find itself
at home within contemporary institutions as they exist. If one
simply took on the objective determinations of contemporary
institutions as they were, then this would amount to an external
determination of the will. At worst, this would remove all
freedom, forcing us to assent to a firm slate of pregiven institu-
tions, while at best it would reduce us to the merely arbitrary
will, which selects its actualization from a slate of pregiven
choices.
7
Thus, the free will in itself can found nothing but
destruction, but cannot truly be for itself by simply affirming
some or all of the pregiven social institutions within which it
finds itself. What we need, then, is a way of grasping the will as
that which (a) freely actualizes itself by positing its own
determinations, but (b) does so only through social institutions
that exist independently of it.
If the will is to be actualized as free, then it must find itself
at home within existent institutions, but it cannot do so within
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the institutions as pregiven, or else it will become merely
arbitrary or unfree. Thus, if the will is to actualize itself as free,
it must do so through an institution of right whose existent
determinations are altered by the free actualization of wills
through it. That is, the will can only be actualized through the
institutions of ethical life, but because they exist independently
of the will, it must mitigate the determining effect that such
institutions have on freedom by altering their determinations,
thus grounding them again in the will. In other words, it is in
the ethical alteration of the determinations of ethical institu-
tions that the will concretely actualizes itself. An existing
institution of right, altered by the individual wills that actualize
themselves through it, manifests a genuinely self-positing
actualization of freedom. The question, then, is how freedom is
actualized in practice.
If the institutions of right only exist insofar as individuals
actualize their wills through them, then they are essentially
determined in and through the ways different individuals seek
to change them. Moreover, because the will is infinitely free, the
institutions of civil society can in principle be altered by free
individuals in any possible fashion, not just in accordance with
right. Thus, as individual willing subjects freely interact with
contemporary institutions, the former inevitably alter, or at
least seek to alter, the latter in a wide variety of ways, from the
most reactionary to the most revolutionary. Each individual
subject makes a partial and relative judgment
8
regarding the
manner in which the institution should be altered in order to
best actualize freedom, and the interaction of these wills
determinately produces the objective contemporary institu-
tions of right for any given society. In a sense, then, there are
no simply pregiven social institutions, because each exists as
the result of the contingent expressions of will performed by
distinct individuals; however, there are determinate, objective
social institutions given at any given time, because the mutual
interaction of these actualizations produces the dominant,
concrete institutional determinations that inform customary
social life and law. As such, while there will be determinately
existing, dominant institutions of right at any given time, we
can expect these institutions to alter over time because of the
very nature of the free, willing individuals who fill them.
Of course, nothing in this inevitable alteration implies that
any of the arising social institutions actualize freedom. While
alteration is both a necessary fact of social institutions as
willed by free individuals, and a necessary condition of the
actualization of freedom in and for itself, it alone does not
ensure the latter. However, since the actualization of freedom
requires us to decrease the restrictions pre-existent institutions
place upon freedom, we can justifiably claim that it is only those
alterations that decrease these restrictions that truly concretize
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the freedom from which they proceed, that is, that actualize
freedom within their time. In other words, alterations to the
institutions of right truly actualize the will when they reduce
the external restrictions placed on freedom in the ethical
institutions of contemporary social life. An institutional change,
then, enhances freedom when it opens up more possibilities for
concrete institutional change. Thus, the will can only become for
itself what it is in itself by (a) actualizing its freedom through
an existent social institution, and (b) willfully reducing that
institutions limitations upon our freedom to alter it. The will
can only actualize itself as free through existing institutions
that it willfully alters to limit freedom less (by expanding,
enhancing, or otherwise increasing the degree of freedom
actualized by that institution), thus regrounding them in the
free will, thereby enhancing that institutions ability to
actualize freedom in general and for all.
Still, nothing in this implies that free subjects actually will
will the actualized freedom of the will. The will is (in part)
abstractly free and, thus, free to affirm any particular determin-
ation, even those of reaction that inhibit freedom or those of
revolution that seek to eliminate the institutions that can
actualize it. Moreover, while all changes to institutions of right
must by definition be willed, the will is free to will emancipa-
tory reforms for nonemancipatory reasons (to please a god, to
take revenge on oppressors, etc.). This, of course, explains the
raging debates and struggles that continually arise in every
free society regarding the institutions of right. Nothing in the
Idea of freedom guarantees an emancipatory outcome in these
struggles, and nothing in Hegels theory of right even necessi-
tates that emancipatory alterations be willed in order to
actualize freedom. For the Hegelian, freedom is, and can only be,
actualized if (a) the forces of arbitrary reaction and terroristic
revolution both fail in their quests, and (b) social institutions
are determinately altered to limit free will less. So long as the
essential institutions of right undergo willed, emancipatory
change, freedom is actualized for its time.
Nevertheless, it remains both the right and the duty of all
free rational beings to struggle to expand the actualizations of
freedom afforded by contemporary social institutions by bolster-
ing them as institutions of right. Practically, then, social insti-
tutions are the target of a wide variety of contingent struggles
for change, but it is the duty of all free agents to side with
contemporary movements, whatever their origin or rationale,
that seek to enhance the freedoms currently enshrined in the
institutions of right. Of course, precisely because they arise
contingently, no particular movement essentially actualizes
freedom. If freedoms actualization were tied to any particular
movement, it would amount to an external determination of
freedom. Rather, because our duty lies in freely bringing about
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institutional change through the existent institutions, and
because these institutions arise from social struggles over their
nature, we must temporarily ally ourselves with particular
movements that propose concrete, winnable, emancipatory
institutional changes, regardless of their justification or origin.
In other words, it is our duty to incessantly determine and side
with existent social movements that plausibly strive to objec-
tively reduce the restrictions to freedom present in the central
institutions of ethical life.
Thus, the Hegelian view is neither reactionary (for it does
not seek to entrench existent or previous institutions), nor
revolutionary (for it does not seek to overthrow or replace
existent institutions); nor is it inherently conservative (for it
may side with institutional determinations that mark a progress
on previous ones), or progressive (for it may temporarily side
with archaic determinations against contemporary, yet more
restrictive ones). It is, however, essentially activist, for it both
affirms our inalienable right and calls us to our duty, to side
with the emancipatory social movements that seek to enhance
and expand the actualization of freedom afforded by contem-
porary institutions against the existent forces that would either
hinder such expansion or eliminate the institutions that actu-
alize it. In short, it takes sides with freedom in all contemporary
struggles over the institutions of right.
As such, the pairing of claims with which this section opened
is not paradoxical at all, for Hegels theory of right neither
affirms nor rejects contemporary social institutions as they
exist. Rather, it demonstrates both the essential social institu-
tions through which free struggles over the nature of right are
necessarily waged, as well as the rational duty to take sides in
those struggles in order to help bring the institutions of right
into further accordance with their ground. Hegel deduces from
the free will both the objective social institutions that must
exist in order for freedom to be actualized, as well as the duty
to continually strive to enhance the freedom actualized by them.
The philosophy of right neither contents itself with demon-
strating the ethical rationality of contemporary institutions, nor
seeks to overreach its own time into some proposed utopian
future; the task of both the philosopher and the free being in
general is to comprehend the vital struggles over institutions of
right, and the sides to be taken in them, within its own time, for
the will is only truly free when it actualizes its own freedom
through existing institutions by struggling to expand the free-
doms they actualize. This, then, is the Hegelian spirit in which
we should read Hegels claim that the Idea of the will is in
general the free will which wills the free will (27).
In sum, it is the duty of all free agents to struggle to expand
the freedom actualized by the institutions of right by siding with
freedom in contemporary struggles over the nature of these
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institutions. Our test case for this duty, of course, concerns the
current struggles over the institution of marriage, to which we
now turn.
2. Marriage
That the institution of marriage is undergoing change in most
free societies is uncontroversial. However, even in those societies
where a new determination of the institution has been marked
in dominant customary morality and law, struggles and debates
surrounding the nature and import of marriage continue
unabated. Thus, the contemporary Hegelian, confronted with a
competing set of partial and relative judgments concerning the
definition of marriage, is faced with the question: which side
should a free subject take in these struggles? Which develop-
ments or regressions, in other words, would actualize freedom
through the institution of marriage? Obviously, the answer to
this will depend upon how marriage proceeds from the concept
of right grounded in free will, and so we must begin by examin-
ing Hegels general account of the right (and duty) to marry.
Marriage is the immediate concept of the family, which is
the immediate spirit of ethical life. Recalling that ethical life
consists of the objective social institutions of custom and law
that concretely link us with others in the mutual actualization
of freedom, we can say that the family determines the most
immediate, yet ethical connection we have with others that
actualizes us as free individuals. If the family is the most
immediate bond that we have with others, then the most basic
form of the family would be such a bond with only one other
person, for that is the minimal number needed to actualize
ourselves in an objective, communal structure. If we are unable
to form an objective ethical bond immediately with one other
free subject, then we are plausibly unable to forge mediated
ethical connections with any others.
This most basic unity, moreover, can only be ethical if it
allows for a self-given determination and, thus, cannot be one
we have been entered into without our consent (e.g., child-to-
parent, brother-to-sister). This, of course, is the essential ground
of Hegels defense of the incest taboo. Rather than simply
asserting the oft-cited difficulties such unions pose for breeding
(problems that disappear if the couple decides not to have
children), Hegel rightly claims that marriage is only free if the
participants have a distinct personality of their own in relation
to one another (168). That is, if one has either been raised (in
a blood or nonblood family) with parents, siblings, etc., or even
later meets a blood relation who, while not habitually familiar
as a relation, genetically shares a number of contingent physical
and psychical features, then one will already share too much
with them to have the proper distance to freely forge a union
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with them.
9
Thus, marriage must arise between individuals who
encounter each other freely.
Finally, the most basic ethical union must be an objective
institution that can be determinately posited in custom and law
and, thus, cannot arise in the more casual and fluid associations
(e.g., friends, acquaintances, neighbors, etc.) that often mark our
relationships with others. Rather, the most basic, immediate
institution of ethical life must be the freely chosen union formed
by two separate individuals who newly determine themselves as
free in and through the relation, that is, each must find their
substantial end as free willing agents in and through their
institutional bond with the other.
In sum, then, the most basic ethical bond is that wherein
two distinct individuals freely choose to actualize their freedom
in and through their institutional relationship with each other,
and to find the end of their freedom in the bond forged, that is,
marriage. Marriage, then, has its objective origin [in] the free
consent of the persons concerned, and in particular their consent
to constitute a single person and to give up their natural and
individual personalities within this union (162), and thus
consists essentially of mutual love, trust, and the sharing of
the whole of individual existence (163).
10
It might at first seem odd that Hegel calls this relation
love, which seems to signify a feeling, or inclination, rather
than the consenting, ethical decision of free individuals. However,
what is at issue is the free choice to actualize ones freedom in
and through ones institutional bond with another, to not under-
stand that freedom as distinct from ones connection with
another, and thus to partake in the mutual promotion of a
shared life of freedom. Thus, ethical marriage concerns a freely
chosen bond within which each partner finds their own free
essence in and through the other. As such, while the love at
issue is not romantic, and not primarily emotional, it is a self-
conscious spiritual union of mutual attachment, trust, support,
and concern and, thus, is an essentially loving relationship.
If marriage is the institution that provides the most
immediate actualization of freedom, then it must liberate the
individuals who forge the spiritual bond from the immediate,
pregiven determinations external to it that unfreely lead us
into, or prevent us from entering into, union with others. That
is, marriage, proceeding from freedom, is only ethical insofar as
it is not tied to the external (i.e., unfree) social and natural
determinations that involuntarily bring and bind us together, or
keep us apart. Marriage is the most basic form of ethical bond
only if, and specifically because, it removes the most basic
natural and social external restrictions to free ethical union
with others. Marriage, then, is a right because it proceeds from
universal freedom but also a duty because it removes external
restrictions to freedom that otherwise would impede its actuali-
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zation. By extension, then, our duty regarding any contemporary
struggles surrounding the specific determinations of the institu-
tion of marriage is to side with movements proposing changes
that remove the existent restrictions to freely willed love from
which marriage liberates us, and against those proposing
changes that would institutionally tie marriage to determina-
tions external to its free ground. In other words, all willing
subjects have a right to freely love whomever they choose, and a
corresponding duty to actively free love from any and all
existing external restrictions. Of course, it is just because
marriage is an immediate, particular, loving relation between
two unified in spirit and body for the mutual promotion of a
shared life that its ground can easily be confused with deter-
minations that are essentially exterior to it. It is not surprising,
then, that Hegels discussion of marriage begins with pointed
critiques of the social and natural restrictions to love that have
been, still are, and are likely to continue to be, mistaken for
marriages ground. Thus, it is through these critiques, rather
than Hegels positive, particular determinations for marriage,
which, given the above analysis of institutional definition,
struggle, and change, are destined for revision, that we can
determine not only what Hegel means by ethical, free marriage,
but the side we ought to take in the current struggles over its
definition.
Hegel begins by targeting two views of the social origin of
marriage: the dutiful arrangement of ones family (or others)
(162) and the popular conception of a romantic love particular
to the couple (162R). On the former view, marriage is that
through which all subjects are in some way essentially actu-
alized (socially, religiously, etc.), and thus it is the duty of
others, regardless of the inclinations of any particular indi-
vidual, to externally coerce all nonmarried individuals to marry
(by forced arrangement, familial matchmaking, friendly scheming,
etc.). On the latter view, marriage is not an actualization of
human essence; to the contrary, it is grounded in the contingent,
unique romantic inclination of two particular individuals toward
each other (soul mates, the stars aligned, God played a hand,
etc.).
From the bare concept detailed above, we can readily see
that each of these views gets part of marriage right,
11
which
explains their enduring appeal. Marriage, on Hegels account as
much as on the external arrangement view, is a duty for all
free beings because it actualizes our essence; however, because
the essence actualized in marriage is freedom, it cannot be
externally imposed upon anyone. It is a limitation that it is our
duty to take up, but it must be self-given, otherwise it is not our
liberation. Conversely, while the romantic view of marriage
correctly requires the completely free consent of the individuals
involved, it falsely defines love as an aberration achievable only
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by the few and rare, rather than the actualization of our free
essence through an ethical relation open to all. As Hegel puts it,
the romantic view credits the prepartnered subject with a
pervasive element of frostiness that is only brought to the
heat of passion and love through a total contingency possible
only in these particular individuals (162R). As such, while the
romantic view of marriage reflects the free choice of the indi-
viduals involved, it implies that this freedom is actualizeable
only accidentally, as if through luck. As such, it drains freedom of
its connection with ethicality, human essence, and duty.
In short, both views essentially separate the love that
grounds marriage from the two-sided ethical Idea of freedom
the arrangement view by coercing all to enter the institution
prior to their free consent and the contingency view by crediting
the couples freely chosen love to individual chance circum-
stances. The former opens marriage up to all, and as a duty, but
without grounding it first and solely in free consent, while the
latter grounds marriage in free consent, without opening it up
to all, thus eliminating it as a duty. Thus, neither truly pairs
the right to love with the dutiful actualization of freedom.
This helps makes clear why free marriage is not just a right
possessed by all, but a duty that all ought to take up. Without
an institution to actualize freedom immediately in a loving
relation, individuals would be subject to, and likely succumb to,
familial, religious, or other social pressures that produce obliga-
tory relations between subjects that fail to essentially actualize
freedom. Thus, free marriage is a right all must possess. How-
ever, the voluntary bond between partners must not appear,
either to the partners or to others, as a matter of individual
contingency, for it essentially actualizes our freedom, and is not
a lucky, romantic aberration from the otherwise sound social
practice of arranged marriage. Romantic marriage, while positing
the voluntary nature of the bond, does nothing to erode the
constraining power of coerced marriage because it portrays free
love as contingent, rather than essential, and marriage only
actualizes freedom by removing external obligations to bond
with another without stripping that bond of its objective ethi-
cality. Thus, we do not simply have the right to marry whom we
choose; we have the duty to actively seek loving relations with
another, as well as to open the right up to others.
12
The essence of marriage is made even clearer when Hegel
considers the role that natural determinations can play in
externally constraining free love. On the one hand, he argues,
love can ground marriage only in cases where the natural
[sexual] drive is reduced to the modality of a moment of nature
which is destined to be extinguished in its very satisfaction
(163). That is, even if the natural sexual drive customarily
receives release in marriage, it cannot be the end for which the
institution exists, otherwise the free consent of the partners
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would become a mere means for securing sexual release, and
the partners would be externally determined, or enslaved by
lust, the need for procreation, human contact, or other natural
drives. Without subordinating such drives to the spiritual bond
shared by the couple, marriage is not loving, but merely func-
tional, and neither partner will freely enter into, or exist within,
marriage. On the other hand, love cannot be free when this
bodily moment is completely suppressed, that is, in the monastic
attitude which defines the moment of natural life as utterly
negative (163R). This is obviously not because marriage must
or even should serve some natural function but, rather, because
the complete separation of love from nature inevitably endows
[natural drives] with an infinite importance (163R), which
prevents the partners from truly bonding (e.g., for one would
always fear the sexual arousal that could arise at any moment).
Both natural drives and the ascetic fear of them constitute
external blocks to the free bond between partners, and thus
should play no determining role in the nature of marriage.
Again, Hegels account makes clear the dual nature of mar-
riage. If the ethical duty to marry were to rest upon any natural
function (e.g., lust, species reproduction, innate inclination for
human contact, etc.), then even in arbitrarily choosing a partner,
all would be enslaved to their merely natural particularity. The
obvious Hegelian consequenceeven if Hegel refuses to see it
is that marriage is only an ethical actualization of freedom if
the participants have the right to marry whomever they please,
regardless of sex, breeding capacity, etc. (to say nothing of other
external determinations like race, social status, age, etc.).
13
If
any natural function is satisfied through marriage, then it can
only be present as an accidental consequence belonging to the
external existence of the ethical bond, which may even exist in
mutual love and support (164, my emphasis), if the bond is to
retain its ethicality. Conversely, if we do not incorporate our
natural urges into loving relationships, then our freedom will
remain restricted by either actualized or feared natural deter-
minations. Thus, marriage releases us from natural determina-
tion, without thereby denying that our natural determinacy
can acquire intellectual and ethical significance [erhlt
intellektuelle und sittliche Bedeutung] (165).
14
Thus, marriage
is a duty, lest we either become enslaved to our drives or forgo
loving connection with others over fear of determination by our
natural being.
In sum, then, marriage is our right because through it we can
freely choose a partner with whom we can actualize our freedom
while giving release to our natural drives (if present), but it is
also our duty, because without it, we would choose (or avoid)
partners as a result of external determinations. We can say,
then, that the right and duty of marriage consists of the free,
mutual decision of two people to forge a common life together,
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not simply irregardless of, but in order to free themselves and
their love from, the expectations of their religious traditions,
birth families, and romantic inclinations, as well as from bio-
logical imperatives, lustful urges, and ascetic fears.
This, of course, explains the surprise of the modern reader
upon discovering that Hegelwithout immanent justification
proceeds immediately to declare the ethical necessity of (a) a
socially recognized marriage ceremony (163), (b) the hetero-
sexual nature of the union (164) and (c) fixed sex roles within
it (165). For starters, while marriage arguably requires vows
that are open in order to demonstrate to all that the individuals
involved are taking up their right and fulfilling their duty to
freely love each other, nothing in the public declaration ensures
the recognition and confirmation by the family and community
(163) that Hegel claims the ceremony is required to secure. To
the contrary, if others do not already grasp marriage as grounded
in free love, then they are likely to see it as the victorious con-
summation of family coercion, biological necessity, traditional
values, religious obligation, or other external determinations.
Thus, the recognition of the ceremony cannot represent the
formal conclusion and actuality of marriage (163) for it is
likely to bolster institutional determinations of marriage external
to free love.
15
Second, while the natural determination of the sexes may
gain an ethical significance in marriage, biological distinctions
can play no role in determining the ethical nature of the insti-
tution. If (as Hegel insists) marriage is not grounded in the
need to reproduce, need not result in reproduction, and in fact
need involve no sexual relations at all, then there is no ethical
justification for requiring representatives of both natural
sexes in any particular marriage, or in the determinations of
the institution. The ethicality of marriage arises only from the
degree to which it actualizes the universal freedom of the
participants and, thus, has no relation to the biological history
or legacy of the species. Thus, even if there is a rational neces-
sity for the natural division, it should not constitute a
restriction to free, ethical love.
16
There are assuredly those (drawing on 173) who will claim
that Hegelian marriage must also have an essential relation to
procreation and raising children and, thus, requires a hetero-
sexual couple. Given his already cited arguments on both the
externality of biological determinations to the ethicality of
marriage and the possibility of sex-free marriages of mutual
support, however, it would seem more consistent with the spirit
of his text to focus on the rights of existent children to a proper
and supportive upbringing, as expressed in 17475. On this
reading, expanding marriage to include same-sex couples
increases the likelihood that loving (adoptive) families will exist
within which children who lack living or loving parents can
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secure the upbringing to which they have a right. Of course, for
the species to flourish, children must be born, but their birth
does not require that the parents who raise them necessarily be
the donors of their genetic material or even that their concep-
tion occurs through sex. More importantly, successful procreation,
sexual activity, and even the presence of the sex drive are all, as
Hegel implies, essentially contingent and, thus, can play no role
in determining the ethicality of marriage. What ultimately
matters, for the Hegelian, is the actualization of the freedom of
individuals once existent, not the contingency of their coming
into existence. Thus, while (contra 173) marriage does not
require the production or rearing of children, the existence of
children as free (in line with 17475) requires dutiful, loving
couples to care for them and raise them into freedom, and there
is no ethical requirement that these couples represent both
sexes.
Finally, since sexual division plays no role in determining
the marital relationship, marriage cannot be divided rigidly into
sex roles. In fact, nothing in the concept implies there need be
fixed roles of any kind for either partner, so long as each duti-
fully takes the relationship to be their substantial end.
17
Nothing implies that they must act for that relationship in any
particular ways, to say nothing of ways that would result from
whatever biological determinations they possess. In fact, it
seems clear that if the partners were to enter the relation with
their wills regarding the institution still essentially determined
by their natural being, then neither would enter the relation
freely, and thus their marriage would not be ethical.
Thus, none of Hegels positive claims about the nature of
marriage can be currently understood as corresponding to its
concept, for, if implemented, they would constitute restrictive,
rather than emancipatory changes. However, in positing them
when he did, Hegel subtly takes the side of freedom within
struggles over an institution that was then much more deter-
mining than it has become. In arguing for the necessity of a
marriage ceremony, for example, Hegel separates the religious
aspects of the ceremony from the discussion of right (164),
18
focusing instead on language as the objective ceremonial
medium,
19
thus placing the emphasis solely on the free vow of
the couple, rather than on the traditional structures of marriage
recognition. He also separates the essence of marriage from
consummation in intercourse or conception, and in fact from
any single chief end (163R), locating its essence in the bond
itself, rather than in any goal from which it derives or to which
it leads. Thus, even while arguing for the essential hetero-
sexuality of marriage, he carefully separates natural determina-
tions of sex and procreation from ethical consideration prior to
marriage, through which alone they obtain spiritual signifi-
cance. Moreover, even though he defends the necessity of rigid
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sex roles, he nonetheless refuses to place them in hierarchy,
making the work of both partners of equal importance (cf. 166,
166R). Finally, he closes his discussion of the family by
defending the (albeit highly qualified, by todays standards)
right to divorce, on the grounds that, just as no compulsion
external to the couple should coerce a couple into marriage, so
no merely legal or positive bond should keep them together
once their love is lost and the partners are totally estranged
(176). Thus, Hegel demonstrates the consistency of the free,
mutual decision to end a loving relationship with the free,
mutual decision to enter into one. In each case, Hegel carefully
separates ethical marriage from its external trappings. Thus,
although Hegels views now seem conservative or even reaction-
ary, for their time they arguably took sides with freedom in
emancipatory struggles against then contemporary movements
that sought to tie marriage to natural, religious, legal, and
romantic determinations external to its essence.
What, then, is the essence of the institution of marriage? If
it lies not in biological necessity, social tradition, family legacy,
religious obligation, spiritual mastery of the body or romantic
love, what essential determination for marriage remains that
can guide those who seek to side with freedom? Hegel, despite
the shortcomings of his account that we find in hindsight, is
clear and correct on the matter: Marriage is essentially mono-
gamy [Die Ehe ist wesentlich Monogamie] (167). Marriage is
not essentially monogamous, in addition to having some other
essential determinations; its ethicality consists solely in
institutionalizing the free decision of two partners to surrender
[themselves] to this relationship, whose truth and inwardness
consequently arise only out of the mutual and undivided
surrender of their personality (167). Thus, marriage is simply
ethical monogamy that lasts as long as the love between
partners does, and nothing more. However, as already noted, it
is just because marriage is the wholesale joining of two for the
promotion of a freely shared life that it will always be easily
confused with biological, traditional, religious, ascetic, and other
determinations. While the essence of marriage is simply ethical
monogamy, marriagelike any other ethical institutionis
destined to be the perpetual target of various struggles over its
determinations. Thus, whatever determinations are currently
attached to marriage in its dominant institutional form, it is
the duty of all who will the free will to side with those deter-
minations that free loving monogamy from those that restrict it
because (in Hegels emphatic, and curiously worded summation),
[m]arriage, and essentially monogamy [Die Ehe, und wesentlich
die Monogamie] is one of the absolute principles upon which the
ethical life of the community is based (167R).
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3. The Hegelian Defense of
Same-Sex Marriage
By defining marriage as freely willed monogamy tied to no
external social or natural determination, Hegel clearly demon-
strates the ethical possibility of same-sex marriage. All that
remains is for us to specify why a Hegelian should not simply
accept same-sex marriages should they arise, but actively
struggle to alter the dominant institution of marriage to include
them.
We must begin by noting that same-sex marriage should not
be supported in order to ensure equal treatment under the law,
to ethically sanction the reality of variations in biological
sexuality, or to allow the romantic love of all particular couples
to be recognized. None of these cohere with the ethical essence
of marriage, and thus none can form the ground for defending
the extension of the right. For the Hegelian, what truly matters
are the possible consequences for the institution of marriage as
an actualization of freedom, as it can be taken up by all, of
altering its determinations in custom and law by extending the
right to same-sex couples; that is, what matters is what the
institutionalization of same-sex marriage concretely posits
about the ethical institution of marriage.
First, same-sex marriage demonstrates that a monogamous
family bond can be forged in the absence of a procreative
relationship, thereby positing that marriage is not ethically
grounded in biology. As such, it helps to reduce the natural
restrictions to free love that continue to constrain it. Second, it
prevents people with nonheterosexual urges who grow up under
such constraints from despising their drives and/or bodies, and
eschewing all sexual contact, while simultaneously allowing
them to channel those desires into an ethical relation, thus
reducing potential ascetic and/or romantic blocks to loving
monogamy. Third, and most generally, given the forces that
struggle against it, it demonstrates that ethical marriage can
and should exist in and as opposition to all goal-oriented
traditions regarding coupling (most of which depend upon
natural function or religious tradition), thus mitigating the
effects of all external social restrictions to love. In short,
extending the right to marriage to same-sex couples posits free,
loving monogamy as all the things it essentially is, against all
the things it essentially is not; it frees love to be all that it
should be, and from all that it has historically been forced to be.
The irony, then, is that we should struggle to support same-
sex marriage, not for the reasons that are usually brought forth
in its defense, but precisely for all the reasons that its oppo-
nents condemn it (i.e., that it destroys marriage as the natural
and/or religious and/or traditional foundation of civil society).
Of course, even if those who struggle for same-sex marriage are
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ignorant of, or even hostile to, this Hegelian reasoning, this is a
matter of indifference to the view articulated here. As every
good Hegelian knows, freedom is not actualized through the
efforts of philosophers who comprehend reasons work in history;
to the contrary, as we have shown above, freedoms work is
accomplished by individuals who unconsciously serve right and
reason through their partial, limited perspectives and actions
(cf. 348).
20
While all assuredly have a duty to grasp the willing
essence of right and to side with freedom by supporting eman-
cipatory struggles, freedom is actualized if this struggle is won,
irregardless of the contribution Hegelians make to it. Thus, our
duty is to side with the emancipatory movements seeking to
institutionalize same-sex marriage, even if those movements
seek to defend romantic, biological, or other determinations
external to freedom.
In sum, the Hegelian defense of same-sex marriage does not
simply seek to open the existent, traditional institution up to
more individuals, ensuring its equitable application under law;
it dutifully seeks, through the expansion of marriage rights to
same-sex couples, to expand the degree of freedom actualized by
the ethical institution itself by reducing the customary and
legal restrictions to free, loving monogamy. Moreover, it does not
seek to validate free sexual options for all, including that of
marriage; to the contrary, it calls all individuals to their duty to
seekfor however long it lastsa loving partnership with
another for the mutual promotion of actualized freedom from
external, immediate determination. The Hegelian defense of
same-sex marriage, in short, is the defense of free, loving
monogamy as the ethical institution in and through which all
individuals can, and should, find their first, immediate libera-
tion from social and religious traditions, biological and romantic
impulses and pregiven institutions of right. Of course, given the
infinite nature of freedom, nothing guarantees that this struggle
(even if won within our time) will actually eliminate these
traditional restrictions; to the contrary, we should expect them to
continue to return, in both their traditional and modified forms,
to externally determine marriage. However, it remains our duty
to side with emancipatory struggles within our time. Thus,
within the current struggles over the definition of marriage
taking place throughout the world, we should struggle to grant
marriage rights to same-sex couples, just because it is our duty
to continually struggle to liberate all individuals from the
external biological, social, and romantic restrictions that
prevent them from loving freely.
Notes
1
In his uncharitable Hegel and Homosexuality, Philosophy Today
45, no. 5 (SPEP Supplement 2002): 7591, Kirk Pillow attempts to use
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Hegels account of sexual difference, and the role it plays in marriage,
to reconstruct what it seems likely [Hegel] would have thought [about
homosexuality] had he thought about it (75). While there is much of
interest in his intricate discussion of Hegels philosophy of nature, his
account of marriage makes no attempt to grasp its Hegelian essence,
for his entire discussion lacks any mention of freedom. As such, it is of
no interest to those who seek to understand the nature of Hegelian,
ethical love.
2
Richard Dien Winfield, The Just Family (Albany: SUNY, 1998),
32.
3
Allen W. Wood, Hegels Ethical Thought (New York: Cambridge,
1990), 243.
4
G. W. F. Hegel, Elements of the Philosophy of Right, trans. H. B.
Nisbet, ed. Allen W. Wood (New York: Cambridge, 1991)/Werke 7
(Frankfurt am Main: Surhkamp, 1970). Citations will be to numbered
paragraph in the form (23). Hegels own remarks will be denoted by
an R, in the form (24R). To avoid controversies surrounding their
authenticity, I have elected not to refer to the student lecture note
additions.
5
This, of course, is one of the ways in which Hegels followers
immediately split into the conservative Right and progressive/
revolutionary Left. For discussion, see the editors Introduction to
Lawrence S. Stepelvich, ed. The Young Hegelians: An Anthology
(London: Cambridge: 1982), 115. For a more recent defense of a
conservative Hegel, see, e.g., Jonathon Robinson, Duty and Hypocrisy
in Hegels Phenomenology of Mind: An Essay in the Real and the Ideal
(Toronto and Buffalo: University of Toronto, 1977). For more
progressive readings, see, e.g., Wood, Hegels Ethical Thought, or
Fredrick Neuhouser, Foundations of Hegels Social Theory: Actualizing
Freedom (Cambridge, MA: Harvard, 2000). My own reading, as we
shall see, is that Hegels view is neither inherently progressive, nor
conservative, although it does make critical reflection on, and action
within, the social order a duty of all free beings.
6
The demonstration of minds development from feeling and
intuition through representation and language to free thought as the
actualization of spirit as will is the task of Hegels Philosophy of Mind,
trans. W. Wallace (New York: Oxford, 1971)/Werke 10, esp. 44082.
7
It is surprising how often this tension is overlooked in com-
mentaries on Hegel. For example, Charles Taylor, Hegel (London:
Cambridge, 1975), while acknowledging that, qua free, Spirit must
ultimately rebel against anything merely given (369, my emphasis),
nevertheless argues that that the crucial characteristic of Sittlichkeit
is that it enjoins us to bring about what already is (376). Among
existent commentaries, the view I will defend is perhaps closest to
Neuhousers idea of Hegelian substantive immanent critique (274).
However, he is concerned merely to show that criticism and alterations
of the institutions of right is merely compatible with Hegels account,
while I aim to show that it follows directly from the logic of it, and as
both a right and a duty.
8
Jay Lampert, Hegel in the Future (unpublished). See also John
Russon, The Metaphysics of Consciousness and the Hermeneutics of
Social Life: Hegels Phenomenological System, The Southern Journal
of Philosophy 36, no. 1 (1998): 81101. While it is unlikely that either
Russon or Lampert would embrace the side-taking, prescriptive view
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of Hegel that I will defend here, my account of the intersubjective
development of, and conflict over, social institutions is indebted to the
hermeneutic pluralism that they articulate.
9
Recent research on the prevalence of genetic sexual attraction
amongst reunited genetic relatives separated at birth seems to bolster
Hegels case even when relatives are not raised together. See, e.g.,
Genetic Sexual Attraction, available at http://www.guardian.co.uk/
theguardian/2003/may/17/weekend7.weekend2.
10
Winfield (The Just Family, 97102) claims that a Hegelian theory
of marriage, grounded in free consent, must allow for the ethical
possibility (however rarely it could be achieved) of polygamous unions.
As I read Hegels account, aside from the practical problems with
sharing ones whole individuality equally with several others, such a
union involves too many terms to ground the basic ethical institution.
Just as the Judgment, in Hegels logic, must begin with the deter-
minate linking of two terms, from which to build more complex unities
(cf. Science of Logic, trans. A. V. Miller [London: Allen & Unwin, 1969],
62236/Werke 30117), so too must ethical life begin with the union of
the minimal number through which we can be linked with others.
Moreover, if such a union can be either monogamous, or polygamous,
without affecting its ethicality, then it seems too indeterminate to be
clearly posited as a unified institution. I am willing to grant that there
may be a plausible, Hegelian argument to be made for ethical
polygamy; however, given the practical and conceptual difficulties it
poses, it seems to me unlikely. Of course, any just state should permit
such contingent unions, lest it impose marriage on individuals from
the outside; polygamous marriage simply should not be institu-
tionalized until cases both for its unity and immediacy can be made.
11
Hegel, however, incorrectly denies that the romantic conception
captures anything of the essence of marriage.
12
Both Neuhouser (Foundations of Hegels Social Theory, 27678)
and Winfield (The Just Family, 8890) defend the right of all couples,
regardless of sexual orientation, to marry on grounds at least com-
patible with those I will defend here. Both, however, also claim that
marriage is not a duty and stop short of claiming it would be a
Hegelian duty to struggle open marriage rights up to all. Hegel,
however, is clear that the substantial determinations [of ethical life]
are duties which are binding on the will of the individual qua free
(148).
13
The aforementioned ethical taboo on incestuous, pre-existent
relationships, of course, still applies. Hegel also bars such ethical
relations/duties to children and others who lack the willing capacity
sufficient to freely enter it (cf. 174).
14
Of course, marriages will always be composed of individuals of
some natural sex, thus determining particular marriages as hetero-
sexual or same-sex; however these natural determinations are external
to the ethicality of the institution of marriage. Thus, while biology, in
some way, determines the natural existence, and perhaps the drives, of
the individuals who marry, it does not determine their freedom, or by
extension the familial institution in which it is actualized. The ethical
question, then, is not whether sex or nature plays a role in
determining whether one seeks a hetero- or same-sex partner, but
whether they determine the nature of the institutional bond.
15
Stephen Houlgate, An Introduction to Hegel: Freedom, Truth and
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History (Oxford: Blackwell, 2005), in particular, insists on locating the
ethicality of marriage (and divorce) in the recognition of society,
claiming that marriage cannot be simply entered into or dissolved at
will (197). While Hegel does imply this, it conflicts with his location of
marriages objective ground in freedom, a ground suppressed in
Houlgates reconstruction.
16
While there is no room to adjudicate the validity of his highly
contentious claim here, Hegel does argue for the rational division of
animal species into two sexes in the Philosophy of Nature, Volume 3,
trans. and ed. M. J. Petry (London: Allen and Unwin, 1970)/Werke 10,
35069. As I have argued, however, because right is grounded in
freedom, nothing in this natural division determines the nature of any
ethical institution, and so nothing in his account of marriage rests on
his questionable account of nature.
17
While acknowledging, arguably more than any other commentator,
that Hegelian marriage arises from free consent, and thus arises more
from the state of mind present in the couple than from a feeling, a
living arrangement, an activity, etc., Edward C. Halper, Hegels Family
Values, Review of Metaphysics 54, no. 4 (June 2001): 81558, nonethe-
less mistakenly argues that the spouses must occupy fixed roles drawn
from natural differences between the sexes in order to forge a stable
unity of differently willing agents.
18
Cf. Hegels parenthetical remark: That the church enters [into
the ceremony] is a further determination which is not to be discussed
here [ist eine weitere, hier nicht auszufhrende Bestimmung] (164,
trans. modified).
19
On the intersubjective objectivity of language, see my Hegels
Philosophy of Language (London: Continuum, 2007), 4681.
20
For an excellent discussion of the work done in the unconscious
service of freedom, see Wood, Hegels Ethical Thought, 22636.
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