Hylomorphism and Contemporary Personal Ontology

I wrote this paper for a Philosophy of Mind class while completing my MA in Philosophy.  This was submitted on November 30, 2010 and remains as I submitted it (apart from formatting changes).

In rereading the paper, I would change many things.  In fact, I believe that some serious objections can be raised against my argument at crucial points which would defend the hylomorphist view.  Please read the paper below before these notes, which won't make any sense otherwise.

The most important change I would make is that I think the hylomorphist could say that   "your soul informs and configures immaterial substances that function similarly to material substances.  As such, you do exist in the afterlife; it is not your soul thinking your thoughts, but you."  I had charged that this was ad hoc, but I do not think so now.  Why? 

If we look at the Bible, the account of Jesus' post-resurrection body is that it had properties that were not strictly "material" as we know.  He could pass through walls or disappear completely and reappear in another location.  He also "ascends into heaven", and so his "body" is in heaven, where presumably, no merely material (as we know) entity could exist.  However, he could be touched and he could eat in his post-resurrection body, so he could interact with the material world as we know it, though he was not bound by it. Catholic Christians would also point to the doctrine of Mary's assumption into heaven, "body and soul".  Consequently, such a move is not ad hoc for a Christian that already believes these things, and it makes sense of scripture and doctrine for how Jesus' post-resurrection body could interact in the physical world while also passing into heaven and having an after-life existence.

This move also has other explanatory power.  For example, it explains how we as material beings could have an afterlife (i.e., we configure immaterial substances in heaven).  Since we are a body-soul composite on this view, you do exist in the afterlife as a soul-configuring-immaterial-substance into-a-body-composite.  You are the thing that thinks in the afterlife, which traditional theology requires and which is in accordance with the Thinker Thesis.  So I do not think that this is ad hoc anymore, and as such, it is a good move for the hylomorphist to make.

Regarding my comment about the soul coming into existence only with the emergence of psychological properties, I believe a lot of issues can be avoided by asserting that a human soul can have potential properties and powers that are not yet actualized or realized.  This allows for a human soul to come into existence at conception, which makes the most sense for the hylomorphist, since the soul is the configuration of the body (and the body begins at conception).  For example, I remain a human even though my rational powers are not always active (e.g., sleeping, unconcscious).  What is important is that I have the potential to exercise rational powers in the course of my normal development, and this is perhaps what distinguishes my human soul from the souls of other animals and plants.

The hylomorphist should also not be afraid to say that souls can have defects.  Since the hylomorphic soul is the configuration of the body, if the body is deformed or abnormal in some way, the soul is as well.  The soul can configure and be configured in an imperfect or incomplete manner while still being a soul.  A broken car engine is still a car engine and not just a hunk of metal, even if it is defective in some way.  Indeed, the Christian can easily embrace this view since he or she already takes the soul to be defective morally and rationally.  It is not a big step to also say that the defect extends to a flawed or incomplete configuration of the material body was well.

I admit I am still bothered by the issue of identity in which one's configurational state could be instantiated in multiple places, or about how to resolve Parfit division cases.  However, these are issues not unique to the hylomorphic view, so I don't think it suffers any distinct disadvantage here.  It seems nobody has a really good response to these concerns.

Below is the paper.  Enjoy :)

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          In recent years there has been a renewed interest in the question: what are we?  Such a question seeks to understand the fundamental ontology of humans.  The traditional view throughout history has been that we are a soul of some kind.  Most of us are familiar with the Cartesian conception of the soul as an essentially thinking and immaterial substance.  Such a view has close ties to the Platonic conception of souls and it remains in its many modern versions the most popular position of those who believe in a soul.  However, the term “soul” has been used in many different ways throughout history.  For instance, Aristotle used the term “soul” in his characterization of humans as completely material beings.  Thomas Aquinas adopted and Christianized this approach and it remains the official view of the Catholic Church today.  This alternative understanding of the soul as being the configuration or organization of the body is part of the view, called hylomorphism, that we are identical to a body-soul composite.  In this paper, I will show that a hylomorphic view of you as a body-soul composite in the tradition of Aquinas can be consistently held once it is modified and updated to fit into a contemporary scientific and metaphysical framework.  However, I will argue that it cannot adequately counter several decisive objections.  As such, if not implausible in and of itself, it is certainly less plausible than a modified dualist view, animal view, or psychological view of what we are.  Thus, it should be rejected in favor of one of these other positions.

           Hylomorphism, as espoused by Aristotle, claims that the soul is the form of the body.  The form of the body is the configuration and ordering of the matter composing a human.  This particular arrangement and ordering of matter is what accounts for our capacities and powers as completely material human animals.  In contemporary terms, Aristotle’s view can be characterized as a version of non-reductive physicalism.  Lower-level individuals and properties make up higher-level individuals and properties (e.g., psychological) when they are joined together in complex causal relationships. These higher-level properties are not reducible to the properties of the lower-level realizers that make them up.  Notice that on Aristotle’s view, the soul is not separable from the body, nor is the body separable from the soul.  Each essentially depends on the other for its existence, for the soul just is the way the body is configured, and the body must have a configuration (McMahan 11).  Consequently, there is no disembodied afterlife possible because there is no immaterial thing that we could survive as.  It is at this point that Aquinas departs from Aristotle.  The soul is no longer merely a description of the configuration of the body.  Instead, it is the principle that configures, orders, and enlivens the body.  It is therefore separable and distinguishable from the body and can survive the death of the body. 

          Aquinas, as a Christian, is trying to affirm the goodness and existence of both the material and immaterial worlds by claiming that we are material beings that can also survive in a disembodied state in the afterlife.  Thus, Aquinas is attempting to walk a fine line in joining the material and immaterial into one substance: a human being.  A human being is a composite of matter and soul, and out of the configuring, ordering, and enlivening of matter by the soul, a single substance emerges: you.

          What does this mean?  First, this means that you have a soul essentially.  What is the soul?  This is surprisingly difficult to answer.  Aquinas uses many different terms to describe the soul, not all of which seem compatible.  First, the soul is called the form of the body, “the form in virtue of which the matter informed by it (that is, the matter-form composite) constitutes a living human body” (Stump 508).  Thus, we might think of the soul as a sort of universal that is instantiated into different groups of matter to create human beings.  That is, there is a universal “human soul,” but each and every human being has a soul that is an abstract particular instantiation of the general “human soul.”  Second, the soul is also thought of as a configurational state of the body (Olson, What are We? 174).  But on Aquinas’s account, the soul is not a static state; it is dynamic.  It is “something that includes the functioning of and the causal interactions among the parts” (Stump 509); it makes a body alive and capable of actions and functions (Leftow 127).  Thus, we might think of the soul as the principle of life and mental activity in a body.  It is what makes a body a body, for a body is essentially living (Leftow 136).  Related to this, we might say that the soul is a bundle of causal powers, and a human soul exists in a bunch of matter when that matter has the essential causal powers characteristic of humans (Leftow 126).  Thus, we can say that the soul is the sum total of all of the different causal relations resulting from a very specific organizational state of the matter composing your body.

          Such a view of the soul is attractive.  There is no mind-body problem since there is no interaction of immaterial and material substances.  The soul and body together form a single material substance (where substances are ordered or configured groups of matter) (Leftow 123).  There is no pairing problem since the soul just is the configurational state of the body.  This view also fits well with functionalist views of the mind that rely on non-reductive making-up relations between lower-level and higher-level properties.  Finally, it affirms an “emergent” view of life in which non-biological matter can give rise to living biological matter when properly organized.

          However, such a view does not seem to allow for disembodied survival, despite Aquinas’s assertions that it does.  If the soul is a configurational state of matter, then it does not seem that a configurational state can exist without its matter (Stump 513).  Furthermore, the soul not only exists in the afterlife, but has mental capacities and volition (Eberl 339).  But how is this possible if the soul depends on the body for the exercise of its capacities?  Clearly, one’s cognitive activity depends in some way on the brain, despite Eberl’s insistence that “intellective cognition and volition… do not depend upon any bodily organ to function” (Eberl 342).

          Second, the view offers no explanatory power.  As Leftow states, “all my soul ‘does’ to me, in enlivening me, is be there” (Leftow 132).  Similarly Stump claims, “there is no efficient causal interaction between the soul and the matter it informs, and all cognitive functions can be implemented in the body” (Stump 518).  What use is there in hypothesizing a soul then, since it does not explain anything?  Furthermore, if the soul is just the sum total of all the causal relations and properties of the material making up an individual, then Aquinas can no longer say that the soul is an immaterial particular.  Rather, the soul is purely descriptive; it is not any thing.  This also concedes that there is no property of the body (e.g., psychological properties) that cannot be realized by lower-level properties, leaving us with no reason to assert, as Aquinas does, that the human soul is created directly by God.

          Third, the soul is not sufficient for identity.  It seems that another individual could have the exact same soul as you.  Indeed, identical twins have the same configurational states initially, so they have the same soul initially (apart from differing spatial locations).  Or if we think of the soul as a universal or form that is instantiated into individuals, then these twins do share the same soul, though not the same instance.  Furthermore, each twin can die, yet the form will still exist.  Thus, when we die, we cease to exist even though the form that we participated in continues to exist.  Consequently, any future instance of the form would be a numerically different individual from us, so we could never come back into existence.  We could revise Aquinas’s account to say that the soul is a particular instance of a universal that is further individuated by changes in the body (after all, identical twins are not qualitatively identical).  However, it is difficult to understand how an instance of a universal that becomes modified could exist outside of the material world as an abstract entity and not become another universal.  For example, there may be a particular configurational state in the afterlife qualitatively identical to the one you had before you died (indeed, it exists only because of you).  But God could configure two groups of matter with this same configurational state at the resurrection.  Which one would be you?  Thus, there is nothing that is essentially unique and persists through life, death, and resurrection with which we can identify you.

          Fourth, even supposing that one can make sense of this soul, what about our relation to our bodies?  Aquinas wants to affirm that this soul that exists in the afterlife is you.  However, as Olson notes, “if it is hard to understand how an organism could persist without being an organism, that is nothing compared to understanding how an organism could persist without being a material thing at all” (Olson, What are We? 175).  One cannot be wholly material at one time and wholly immaterial or abstract at another time, especially since material individuals seem to be essentially material, just as immaterial or abstract individuals seem to be essentially immaterial or abstract  (Olson, “A Compound” 84).  If we are wholly material animals, as Aquinas’s wishes to affirm, then we cannot exist as immaterial beings or as abstract entities, and so we cannot exist in a disembodied afterlife.

          Finally, virtually anyone attracted to this view will want to say that you begin to exist at conception.  However, such a position, as Aquinas himself admits, is not possible.  For the “rational” soul does not exist at conception.  The zygote does not have the sufficient configurational complexity to give rise to mental states.  The rational soul at the earliest comes into existence midway into the pregnancy when the fetus could be said to have psychological properties that distinguish it from other animals.  Thus, you come into existence only with the rational soul (Leftow 128).  Furthermore, since the rational soul is supposed to be that which individuates us from other animals, then either we must say that many humans (e.g. babies, toddlers, vegetative humans, mentally disabled humans) do not have a rational soul, or we must say that many animals (e.g. primates) do have rational souls.  Since the form’s job is “to give its bearer the power to do the acts characteristic of members of a particular natural kind,” if a human does not have these rational characteristics, then she does not have a soul and is therefore not a member of our kind (while some other animals arguably are) (Leftow 133).  As such, the rational soul does not distinguish us from plants and animals while still including non-rational or irrational human beings.

          It seems that only by conceiving of the soul as an immaterial substance can the soul do all of the work that Aquinas wishes it to do in a way that is appealing and at least slightly plausible.  The rest of the paper will assume this revision.  However, one can still maintain the essence of the hylomorphic view with this revision. You are essentially a body-soul composite; you have a soul essentially and a body essentially, but you are identical to their composition.  The soul, under this revision, is a basic immaterial substance that is simple (i.e., indivisible) and spatially located with one’s body.  However, the soul is mutable in the sense that it can acquire properties in virtue of its relationship to a particular body (more on this later).  Furthermore, the soul does not have psychological properties essentially.  In fact, it does not have psychological properties contingently either.  You, the body-soul composite, have psychological properties contingently; neither your body nor your soul has psychological properties.  Instead, your soul has the property that, when joined to a suitably complex body, the lower-level properties of both the body and the soul will make up the higher-level mental properties.  Thus, rich psychological properties are “emergent” properties that come into existence only at higher levels of organizational complexity in a composite.  These properties can be explained by the properties of the body and the soul, but are not reducible to the properties of either. 

          You also have a body essentially.  One can still think of the body as matter that is informed by a soul.  As such, your body is partially individuated by its relationship to your soul because it only exists as a living organism in virtue of having a soul.  The soul is that which governs, guides, organizes, and gives life to the matter with which it is associated.  These are all causal notions and not merely descriptive.  Thus, the soul turns matter into an organism, which is an essentially living thing.  While the body is dependent on the soul for its existence, it is not wholly individuated by the soul (at least initially).  One’s body has distinct features from all other bodies even without reference to the soul.  For example, it has a unique spatial location, it has a unique organizational structure, and it has (in most cases) a unique genome (Eberl 345).  It is because of this initial bodily individuation that your soul is individuated from other souls. 

           What is one’s existential history on this view?  Briefly, the soul is created directly by God and joined to the egg at the exact moment of fertilization.  The egg and sperm cease to be governed by the soul of the parents (or perhaps just the mother) when fertilization takes place, at which point the new human soul takes over the configurational operations of the fertilized egg.  This new human soul is an instance of a universal “human soul.”  This instance however is immediately individuated by being joined to a specific fertilized egg in a specific location with a specific genetic structure (Eberl 352).  Given the souls mutability, it bears the imprint of the body and of you - the body-soul composite.  Over the course of your life, your soul changes and acquires new contingent properties.  Your configurational structure, DNA, knowledge, and experiences come to be “imprinted” on the soul, as though it contained a copy of a code that exhaustively captures your life, history, and essential properties.  With the development of a central nervous system and brain, the soul’s properties and the body’s properties working together begin to make up rich psychological properties.   At this point, your soul has become “fixed” to the brainstem (though it spatially extends throughout your body), where it will remain fixed until you die.  The soul relates primarily to the organism as a whole, though it works in every part of the body, including the brain, which is construed as a part of the animal. 

           When the material of your body decays and the soul can no longer keep it structured and configured, the soul detaches from the body and the organism ceases to exist, as do you.  Your soul (though not you), exists in the afterlife and is continuously sustained in its mental activities by God (Stump 516).  At the proper time, God causes your soul to inform new material, at which point your soul will be reunited with your body and you will come back into existence.  The matter which constitutes your body can as a whole be properly called your body, not in virtue of having the same atoms that composed your body before you died.  Rather, the body is your body because it is informed by your soul, the unique part of you that persists through time.  Together, the body and soul create your contingent rich psychological properties (e.g., memories, beliefs), whose imprint has been retained in the soul and has been sustained by God. 

           Though this is a fairly rough sketch of the view, it is sufficient for our purposes.  Let’s briefly consider the support for the view.  First, this hylomorphic view supports the intuition that you were once a fetus.  Since your soul is created and joined to your body at conception, you begin to exist at conception.  Second, it maintains the intuition that one can survive the death of one’s body in the sense that one has an immaterial soul whose mentality will be maintained even while separated from a body.  No materialist view can readily maintain this (although one can affirm the resurrection of the body).  Third, this view provides a straightforward account of your identity over time: you essentially depend on your soul (and the body which it informs) for your existence.  Thus, your soul grounds your identity.  Materialist views have significant difficulty in accounting for identity over time in virtue of the fact that one’s material and mental properties change quite often in the span of one’s lifetime.

           Such supporting reasons could be developed, but they are not new and are not unique to hylomorphism.  The traditional dualist can make these same claims as well.  As such, I will briefly turn to reasons that support hylomorphism over traditional (Cartesian) dualism.   First, unlike dualist views that identify you with the soul, hylomorphism claims that you are identical to a composite of body and soul.  Consequently, our ordinary ascriptions of physical properties to human beings are literally true.  Second, on the hylomorphic view given, one ceases to exist at death.  I do literally die when my soul ceases to inform my body, and I shall remain dead and non-existent until my soul is rejoined to a body.  The view is thus more in keeping with the Christian hope in the resurrection of the body and in affirming the goodness of material existence.  Third, this hylomorphic view affirms that cognitive activity and properties depend on the properties of the body (e.g., a functioning brain) in addition to the properties of the soul.  It is thus more in accord with science and everyday experience.

          Hylomorphism does share a few objections with dualism.  First, it presupposes God’s existence in creating your soul and so is not as simple as other views.  Second, it posits a unique causal relationship between immaterial and material matter that is potentially at odds with conservation of energy laws and scientific views of fundamental forces.  The hylomorphist can appeal to any dualist responses to the objections.  However, the hylomorphic view also suffers some disadvantages that traditional dualism does not.  For example, like other materialist views, hylomorphism does not avoid the Paradox of Increase.  You are composed of material parts that change over time and so it is difficult to say how you maintain your identity over time (except by grounding identity in the soul).  The dualist avoids this problem.  However, the paradox rests on controversial premises about identity over time and the problem is not unique to hylomorphism so I will not elaborate further. 

          More importantly, the hylomorphic view cannot avail itself to the strongest argument for dualism:  the Unity of Consciousness.  As modified to critique the hylomorphist, the argument proceeds as follows. 

1. None of the parts of a body-soul composite has a unified conscious experience.  
2. I have a unified conscious experience.
3. I am not a part of a body-soul composite.  (1, 2)
4. Something that consists of parts cannot have different properties from those belonging to its parts.
5. If a body-soul composite has a unified conscious experience, then one of its parts must have a unified conscious experience. (4)
6. A body-soul composite does not have a unified conscious experience. (1, 5)
7. So I am not a body-soul composite. (2, 6)

Since a similar argument can be run against any material view, the dualist concludes that you must be an immaterial and simple soul.

           The hylomorphist (and any materialist) should reject premise (4).  This premise relies on a reductivist account of properties in which higher level properties are not only explicable by but also reducible to lower level properties, and this is false.  Composite objects do have properties that their parts do not have.  A knife has the property of being sharp though none of its composing atoms is sharp.  To attribute “sharpness” to an atom is to make the mistake of applying a higher-level property to a lower-level individual when only higher-level (that is, more organizationally complex) individuals can have higher-level properties.  Thus, a body-soul composite can and does have a unified conscious experience, even though none of its parts do.  Perhaps the dualist will claim that there is something unique about consciousness in which it can only be instantiated in a single basic substance.  If this is true, the hylomorphist is no worse off than any materialist view.  She can say that consciousness is instantiated in the soul (thus affirming (5)), but it is the body-soul composite, and not the soul, that thinks since the properties of the body and the soul together realize consciousness (more on this later).  In any case, the hylomorphist cannot readily use this argument in her favor.

          What of other living things on this view?  Do plants and animals have souls?  If we say that all living organisms require a soul, from plants to mammals to insects to bacteria, then the soul does almost no explanatory work except as being that which gives life to an organism.  All other properties will result from the material complexity of that organism.  If we say that only humans have souls, then it seems arbitrary to assert that higher level primates do not, for our differences seem to be of degree and not in kind (McMahan 11).  There are many moves here that the hylomorphist can make to distinguish humans from other living things.  Since none of them seems to be forced by anything that the hylomorphist is committed to, I will not elaborate further.

          However, the hylomorphist must take a stand on marginal cases of humans: newborn babies, the mentally disabled, and those in vegetative states.  While Aquinas’s conception of the human soul would have trouble with these cases, the view I have proposed does not.  By construing the soul as an immaterial substance, we can say that all human beings, including marginal cases, have a human soul without defect.  However, the matter to which the soul is joined is either immature and needs to develop in its organizational complexity, or its initial organizational complexity has a flaw that is beyond the power of the soul to correct.  Thus, marginal cases pose no problem in distinguishing human beings from other animals.  All human beings have a soul that when joined to a properly organized body, will allow that human being to instantiate rich psychological properties.  It is having this kind of soul (a “rational,” personal, or human soul) that grounds the (moral and ontological) distinction between humans and other animals.

          Nothing said so far has been largely in favor or opposed to the view.  However, the hylomorphic view so construed faces devastating objections from the Thinker Thesis and the Too Many Thinkers argument.  First, the view denies the Thinker Thesis, which asserts that you are the individual that thinks your thoughts and instantiates rich psychological properties.  The problem is that Aquinas believes that your soul thinks your thoughts in the afterlife even though you do not exist.  If this is the case, then it seems that you, a body-soul composite, only derivatively think in virtue of having a thinking part; your soul, a numerically different thing from you, is the thinker in the strictest sense (Olson, “A Compound” 76).   While one could deny that the soul does any thinking in the afterlife, such an admission gives up any attractiveness of the view over dualist, animal, or psychological views.

          In response, Eberl argues that a human being can be composed of a soul alone (Eberl 340).  Thus, when your soul departs from your body, you depart with your soul and are composed solely by it.  This possibility makes no sense.  A soul is not an organism, a body, nor a composition of soul and body.  It is simply a soul.  As such, you cannot be composed by it alone.  Another unsatisfying response is to say that after death, your soul informs and configures immaterial substances that function similarly to material substances.  As such, you do exist in the afterlife; it is not your soul thinking your thoughts, but you.  This response is extremely ad hoc, for there is no independent reason apart from the assumption that the hylomorphic view is true that would suggest that such a thing is possible, let alone plausible. 

           If one wishes to maintain the hylomorphic view, then I think the best response is to deny the Thinker Thesis.  We should revise the proposed position to say that, strictly speaking, it is your soul that thinks your thoughts; it is the substance (and not the body-soul composite) in which your thoughts are instantiated.  This move allows the view to cohere with and make use of the Unity of Consciousness argument.  You think in a derivative sense by having a thinking part (a soul) whose mental activity depends on the properties of your body.  When the body dies and the soul departs to God, then God sustains the (limited) mental activity of your soul even though you do not exist (Stump 519).  You only come back into existence at the resurrection when your soul once again is united to a body and it is at this point that you regain the full use of your cognitive and other capacities.  However, this move runs against the very strong intuition that you are the soul in this case.  As Olson notes, this “would mean that psychological continuity was not sufficient for you to persist: here would be a case in which your soul is uniquely psychologically continuous with you as you were when you existed, yet without being you” (Olson 175).  This is nearly unacceptable.

           This problem is further aggravated by the Too Many Thinkers argument.  The argument runs as follows:

1. There is a body-soul composite that has a mental property instance in the spatial region of my body.
2. There is a brain which has this same mental property instance in the same spatial region of my body.
3. The brain and the body-soul composite are not identical.
4. Therefore, there are two individuals which have the same mental property instance in the same spatial region.
5. But there is only one individual that has this mental property instance in this spatial region.
6. (4) and (5) form a contradiction.  Therefore, (1), (2), (3), or (5) is false. 

The hylomorphist should reject (2).  The brain does not have this mental property.  It is instantiated in the hylomorphic composite, although the brain (along with the soul) provides the lower-level properties necessary for such a higher-level property to be realized.  However, this response faces the objection that it is the brain-soul composite that instantiates the mental property and not the body-soul composite.  Thus, we should say that you are a brain-soul composite.  In response, the hylomorphist can say that the soul relates primarily to the body as a whole and to each part of the body derivatively.  So although it is the set of properties of the brain-soul composite that realizes the mental properties, this composition is derivative of the body-soul composition (Leftow 133).  Thus, mental properties are instantiated in the body-soul composite, even though they are realized by the properties of the brain-soul composite. 

            However, given what I said about the Thinker Thesis, this response is not available to the hylomorphist since the mental property is instantiated in the soul.  So perhaps we should say, as Stump does, that “human cognitive functions are to be attributed to the whole composite and not to the soul alone, although the composite exercises functions by means of the soul” (Stump 519).  But now the Too Many Thinkers argument can be rerun, asserting that the brain, and not the soul, instantiates mental properties.  The hylomorphist can follow the dualist in asserting that, although there is correlation of brain activity with rich psychological properties, those properties are instantiated in the soul (though the brain provides some of the properties necessary for their realization).  This response pushes hylomorphism further from the scientific mainstream.

            If the hylomorphic view was not yet dead, Parfit Division cases seem to provide the final nail in the coffin.  Suppose that your perfectly healthy and functioning cerebrum was removed from your body, split in two, and put into two other perfectly functioning bodies with brainstems but lacking cerebra.  What has happened to you?  If we do not flatly reject the nomological possibility of such a thing occurring, then under the proposed hylomorphic view, only two possibilities seem plausible.  First, your soul stays with the brainstem of your body, and so you are the composite of your soul and your body (which lacks a cerebrum).  The difficulty with this response is that we have the intuition (and some evidence to suggest) that your psychology would go along with each half of your cerebrum.  Your psychology would now be realized by the properties of two other souls (in conjunction with the properties of your previous cerebral hemispheres) and instantiated by two other body-soul composites (or two other souls).  Meanwhile, your soul would have no psychology.  Further suppose that you die while these two other body-soul composites continue to live.  Then your psychology continues to exist while you cease to exist, but it now occurs in three places: in two human beings on earth and by your soul in the afterlife.  Alternatively, suppose that the two other human beings die.  It seems that the psychology of their souls will be radically discontinuous in both the afterlife and at the resurrection.

            The hylomorphist can say that the psychology of these other human beings is qualitatively identical to your psychology, but it is not your psychology. Your psychology stays intact as imprinted onto your soul, although you have no mental activity without your cerebrum.  Your soul will continue its mental activity once you die, and this continued psychology will be instantiated by you in the resurrection.  As for the psychology of the other two human beings, it seems that there are two possibilities.  First, these human beings will instantiate psychology qualitatively identical to yours, but once they die, God will wipe away the discontinuous psychology and restore their original psychology that existed prior to the cerebrum transplant.  It will be this psychology that each soul has and that each being will have at the resurrection.  However, this would mean that any psychology gained or life experienced by these souls would be wiped away.  Suppose that each human being went on to live long, healthy, and happy lives involving many significant relationships.  Should this all be wiped away?  It seems not.

            A better response is to say that the souls of each human being would reject the brain transplant.  Similar to any other organ transplant, the body (and soul) can reject parts that do not fit with the biological functioning of the organism.  The properties of your cerebrum needed for the realization of psychological properties would not match those imprinted on the souls of the other human beings.  As such, each soul would reject your hemisphere, and consequently, no psychological properties would be realized.  However, it does seem that psychological properties would be realized if a transplant were to take place, and so this response does not seem plausible.

            The second possibility of what happens to you is that your soul goes with one of the two halves of your cerebrum, and so you are a composite of your soul and one (but not both) of the bodies now having one half of your cerebrum as a part.  This would mean that your soul is tied to your psychology and is not essential for the continuing governance of your body’s life.  Instead of being fixed to the brainstem, your soul would be attached to one of your cerebral hemispheres.  Which one?  There does not seem to be a good answer since both have parts with properties that play an important role in realizing your psychology.  Suppose, however, that your soul does go along with one hemisphere.  What about the other hemisphere and body?  There is no soul in that hemisphere or in that body, yet it still seems plausible that that body will be a functioning organism that instantiates psychological properties.  It is ad hoc to say that God will create another soul for this new organism.  In addition, your soul would now have two bodies imprinted on it.  Which body would be yours at the resurrection?  Perhaps the soul would reject the new body as in the prior possibility, and so the body including one half of your cerebrum would not have any mental life.  However, this seems doubtful.  Since none of these questions has a plausible answer, it seems best to reject this possibility as well, thus leaving us with no plausible account of what happens in these division cases.

            As shown, the hylomorphist has many bullets to bite if she wishes to hold onto the view.  The most devastating of these is that it denies the Thinker Thesis, its answer to the Too Many Thinkers argument pushes the view outside the scientific mainstream, and it offers no good response to the Parfit division cases.  Given the many difficulties it faces it seems best to reject it.  Where should one go from here?  The preceding view can be easily modified into a contemporary dualist account by saying that you are the soul in every scenario.  One can also return to Aristotle’s account as a form of animalism. However, I think that the Thomistic hylomorphist should instead embrace a constitution or psychological view of you over both dualism and animalism.  This view strikes me as the most in keeping with Aquinas’s goals and can satisfy his major commitments.  Indeed, many concepts that Aquinas employs have an almost direct translation into the contemporary psychological accounts.  The rational soul that is the configurational state of the body is very similar to the person that is constituted by an appropriately complex animal. Both the soul and the person come into existence midway into pregnancy, and both have psychological properties essentially.  Both are particulars that depend on bodies but are distinguishable from them (and can potentially survive in the afterlife with God’s help).  Both also distinguish us from other animals.  Thus, I recommend that the hylomorphist should reinterpret (and revise as necessary) Aquinas’s account into a psychological or constitution view of human beings, or simply abandon hylomorphism for other more favorable views. 

 

Works Cited and Consulted

Eberl, Jason.  “Aquinas on the Nature of Human Beings.”  The Review of Metaphysics 58.2
           (2004): 333-65. Philosopher’s Index. Web.  1 Nov. 2010.

Leftow, Brian. “Souls Dipped in Dust.” Soul, Body, and Survival: Essays on the Metaphysics of
           Human Persons. Ed. Kevin Corcoran.  Ithaca, NY: Cornell University Press, 2001. 120-38.
           Print.

McMahan, Jeff. The Ethics of Killing: Problems at the Margins of Life. New York: Oxford
           University Press, 2002. Print.

Olson, Eric. “A Compound of Two Substances.”  Soul, Body, and Survival: Essays on the
           Metaphysics of Human Persons. Ed. Kevin Corcoran.  Ithaca, NY: Cornell University Press,
           2001. 73-88. Print.

---.  What Are We?: A Study in Personal Ontology. New York: Oxford University Press, 2007. 
           Print.

Stump, Eleonore. “Non-Cartesian Substance Dualism and Materialism without Reduction.” Faith
           and Philosophy 12.4 (1995): 505-31. Print.

Liberalism, Marriage, and Children

I wrote this paper for a Political Philosophy class while completing my MA in Philosophy.  This was submitted on May 11, 2012 and remains as I submitted it (apart from formatting changes).

As this is still a very controversial subject, let me make a few notes on this, lest I be misconstrued.  This was written before the Supreme Court determined that gay marriage was a constitutional right and as such, it does not discuss the arguments for or against gay marriage contained in that decision. 

Also, I do not argue whether gay marriage is in itself moral or immoral.  Rather, the point of this paper is to try to understand what the purpose of marriage is as a civil institution in our liberal society.  Based on society's legitimate interest in marriage, I argue for the best conception of "marriage" from the standpoint of that legitimate interest, namely, that it is primarily an institution geared towards the successful rearing of children.  Consequently, any civil benefits and recognition should be tied to the actual rearing of children, instead of the sex, status, number, etc. of the partners involved in that marriage. 

In other words, from the perspective of a liberal society and government, I believe that what I call "parental unions" are the only types of "marriages" that should be civilly recognized, subsidized, and promoted by the government.  All other marriages or unions should be left to private associations to recognize and affirm.
 _______________________________________________________________________________

Introduction

 

            What is marriage?  This question has been at the forefront of political debate in recent years due to the continuing political controversy surrounding the issue of whether gay couples should be allowed to marry.  However, controversy over the meaning and purpose of ‘marriage’, and with it, the ‘family’, are not new.  For example, feminists have criticized the traditional gender-structured family for many years as unjust, calling for laws that promote and enforce the equal division of wage and household labor between men and women.  Even if questions regarding what ‘marriage’ or the ‘family’ are were settled, it would still not be clear what society should do in response.  Competing political and social theories will call for differing treatments of the family, even if they share the same conception of the family.  For example, a libertarian view will call for minimal state action in regulating the family, while a more mainstream liberal view may call for a great deal of regulation.  It is the purpose of this paper to discuss the meaning and purpose of ‘marriage’ and ‘family’ from the perspective of a broadly Rawlsian political liberalism.[1]  I will first explain what this political liberalism is, followed by an explanation of a few definitions of ‘marriage.’  Using the framework of political liberalism, I will critique these definitions, noting where they agree.  Based on this agreement, I will argue for what I call ‘parental unions’ that focus on and support the state’s primary legitimate interest in the way children are raised and their subsequent welfare.  After considering common objections that such a view may raise, I conclude that a politically liberal state can, should, and is limited to promoting the welfare of children through parental unions.

 

Political Liberalism

 

            Political liberalism, as advocated by Rawls, is a political philosophy that seeks to articulate principles of justice that apply only to society’s basic structures and which do not depend on any comprehensive doctrines (e.g., religion, controversial moral claims, views of the good life) for their support.[2] Instead, these principles derive from the use of public reason in order to maintain neutrality amongst competing reasonable conceptions of the good.[3]  Public reason consists of an overlapping consensus of political views that are forged through agreement and compromise[4] and grounded in publicly available facts and political values.  These publicly available facts are “widely accepted” and “non-controversial” facts concerning human nature (e.g., scientific facts) and social and economic structures (Exdell 450, 457).  If the government enacts legislation that is not supported by public reason, even if it reflects the actual truth of an issue, it is an illegitimate action.  This action violates the shared values that society is founded upon by imposing a comprehensive view of the good upon society at the expense of those who disagree; it violates liberal neutrality.[5] Limited by this constraint, political liberalism can be supported by many differing reasonable conceptions of the good life, and so it can sustain a political community that is marked by a plurality of comprehensive moral, religious, and philosophical views while recognizing the epistemic limitations and limited proper role of the government.[6] 

 

            As a further constraint on legitimate state action, the state is limited to regulating the public actions of individuals.  When the actions of an individual have only private consequences, these actions are to be off limits from state intervention.  Given the fact that our membership in any particular society is largely involuntary, and since there are many reasonable views about how one ought to live one’s life, a governmental restraint that allows for the maximum amount of liberty consistent with similar liberty for others and also allows for a plurality of reasonable views is ideal.  Individuals are then left to develop their reasonable comprehensive views through the use of private associations, which are joined voluntarily and hence, exercise the use of free choice.[7]

 

            As a consequence, individuals in a society have a duality of roles: a public role and a private role, and each role requires differing (though not necessarily incompatible) values to meet their differing responsibilities.   As citizens, they must understand themselves and have the resources (educational, financial, psychological etc.) to be free and equal participants in developing and maintaining a just framework for their society. While as private individuals, they must understand themselves to be persons who can freely choose and pursue their own vision of human flourishing even if others (be they the powerful or the majority in the society) insist that their world view is based on falsehoods or lacks virtue. (Wijze 271)

 

            However, it is important to point out that individuals are first and foremost citizens of the state, and secondarily, members of private associations.[8]  This means two things.  First, the rights of citizenship trump those of private associations when there is a conflict, thereby constraining the ways in which an individual can be treated by others, including those most personally related to him or her.[9]  In other words, an individual cannot be alienated from his or her rights, even by associates, friends, or family members.  Comprehensive views of the good life must be reasonable, and if they violate a person’s rights, they are inherently unreasonable. 

 

            Second, the (legitimate) responsibilities of citizenship trump those of primary associations when there is a conflict.  Liberal values (e.g., tolerance, liberty) need not be enforced to their utmost in the private sphere.  These values are primarily important in the public and political sphere, but lose their centrality in the private sphere, where citizens are free to promote other values and views of the good life.  However, such values must be encouraged in the private sphere as is needed to sustain the “long term viability and integrity of a liberal political community” (Wijze 258).  That is, citizens are required to develop the political values and life skills necessary in order to sustain the community as a whole, even if such values and skills are not needed or valued personally.  Altogether, political liberalism gives weight to basic rights and personal freedom, while at the same time it promotes uncontroversial shared understandings of the good of society and enacts these into laws.  As such, it seeks to achieve an ideal balance of personal freedom with the needs and goals of the community.

 

 

What is Marriage?

 

            Using this framework, we can assess proposals regarding what ‘marriage’ is for the purpose of how it should be promoted (or not) by the politically liberal state. Consider some definitions:

 

A.    The “Conjugal” or “Traditional” View: Marriage is the union of a man and a woman  who make a permanent and exclusive commitment to each other of the type that is naturally (inherently) fulfilled by bearing and rearing children together. The spouses seal (consummate) and renew their union by conjugal acts—acts that constitute the behavioral part of the process of reproduction, thus uniting them as a reproductive unit. Marriage is valuable in itself, but its inherent orientation to the bearing and rearing of children contributes to its distinctive structure, including norms of monogamy and fidelity. This link to the welfare of children also helps explain why marriage is important to the common good and why the state should recognize and regulate it. (Girgis, George, and Anderson 246)

 

            The “Conjugal” or “Traditional” view takes marriage to be primarily about the sort of relationship that is naturally oriented towards procreation and child rearing.[10]  This is a pre-political relationship that does not get its nature from the state.  The state may regulate marriage and put constraints on it, but its fundamental nature is not purely conventional.  Instead, it expresses a moral reality that involves natural privileges and responsibilities.  The state should reflect and support this moral reality through marriage law since the state cannot change what marriage in fact is.[11]

 

B.     The Minimal Marriage View: “The central idea is that individuals can have legal marital relationships with more than one person, reciprocally or asymmetrically, themselves determining the sex and number of parties, the type of relationship involved, and which rights and responsibilities to exchange with each” (Brake 303).

 

            The Minimal Marriage view takes marriage to be a social or legal construct.  To view marriage as a social construct is to believe that, for the private sphere, “its very existence, the limits that define it, and the types of behavior that are acceptable and not acceptable within it all result from political decisions” (Okin, Justice 129).  Similarly, “[t]he state constitutes the family structure through its laws, defining which groups of people can count as families, defining the privileges and rights of family members, defining what marriage and divorce are, what legitimacy and parental responsibility are, and so forth” (Nussbaum, 61). 

 

            If marriage is a social construct, it can and should be constructed to suit individual needs.  Brake claims that Minimal Marriage would “consist only in rights which recognize (e.g., status designation, burial rights, bereavement leave) and support (e.g., immigration rights, caretaking leave) caring relationships” (Brake 307).  Caring relationships are those that involve “physical or emotional caretaking or simply a caring attitude (an attitude of concern for a particular other)” where the parties “know and are known to one another, have ongoing direct contact, and share a history” (Brake 307).  Since every individual may have different wishes relating to how emotional, economic, and social needs are met, the benefit system should be structured to allow for individuals to be flexible in meeting their needs, or to follow more traditional arrangements if they so desire.[12] So, for example, person A may choose to grant immigration rights to person B (e.g., person A’s lover) while granting caretaking rights to person C (e.g., person A’s grandparent), where persons B and C are different people.  This allows person A to give and receive rights and duties to different individuals to serve her varied personal needs and desires. 

 

C.     The “Revisionist” View: Marriage is the union of two people (whether of the same sex or of opposite sexes) who commit to romantically loving and caring for each other and to sharing the burdens and benefits of domestic life. It is essentially a union of hearts and minds, enhanced by whatever forms of sexual intimacy both partners find agreeable. The state should recognize and regulate marriage because it has an interest in stable romantic partnerships and in the concrete needs of spouses and any children they may choose to rear. (Girgis, George, and Anderson 247)

 

            The “Revisionist” view may or may not take marriage to be a social construction.  Some “Revisionists” may view marriage as a moral reality grounded in the love of two people for each other (regardless of sex), while others may take it to be a purely social construction that nevertheless, should be limited to two people.  Consequently, the “Revisionist” position represents a middle ground between “Traditional” marriage and Minimal Marriage.

 

            Notice that these views all demand that the state intervene in the family and enact marriage law, claiming that the state has a legitimate interest in doing so, while also demanding a sphere of private autonomy, free from government interference.[13]  In order to determine just where to draw the line between appropriate and inappropriate state action, we must determine what constitutes a legitimate state interest in accordance with political liberalism.  Three such interests are proposed in the foregoing definitions of marriage: (i) the welfare of children, (ii) the welfare of adults, and (iii) the stability of relationships in general.  Since the benefits that fall under (iii) will generally also fall under (i) and (ii), I shall only consider (i) and (ii), starting with (i).

 

 

 

The Welfare of Children

 

            Marriage is believed to promote the welfare of children.  The state has a legitimate interest in the welfare of children for two reasons.  First, self-sufficient, socialized, healthy, and moral citizens are primarily formed through families. “Societies rely on families, built on strong marriages, to produce what they need but cannot form on their own: upright, decent people who make for reasonably conscientious, law-abiding citizens” (Girgis, George, and Anderson 270).  This is one of the reasons why publicly funded education is so important.  It provides access for all children to the education necessary for becoming responsible, productive, and democratic citizens.  Such education will not only teach facts about the world, but will promote certain political values, including “civility, tolerance, trust, compromise, and sense of fairness - and legislatures may act to encourage practices that foster qualities of character supportive of democratic institutions” (Exdell 452). However, such education can only be effective in cooperation with a supportive and healthy family, which is the most important factor in a child’s formation.

 

            Second, children are especially vulnerable in comparison with adults due to the fact that they do not choose their family relationships voluntarily.  Abbey observes that “[p]articipation in both the family and society starts involuntarily for children with their birth or adoption, so that our first membership of families is not a consensual act” (Abbey 13). Given the fact that “the family in which each of us grows up has a deeply formative influence on us – on the kind of persons we want to be as well as the kind of persons we are,” society needs to place constraints on the kinds and actions of families so that children are not harmed or abused, both physically and emotionally (Okin, Justice 184).  While a family does have considerable freedom in how it raises its children, it may not “prevent its members (and the children of its members) from obtaining the requisite civic education required for them to be (or become) fully effective free and equal citizens in a democratic society” (Wijze 261).  Thus, for the same reasons that rights and liberties are protected in civil society for all citizens, the state has a legitimate interest in protecting its youngest citizens from potentially damaging family life: so that they may choose (so far as is possible), the way they wish to live their lives.

 

 

The Welfare of Adults

 

            Marriage is also believed to promote the welfare of adults.  However, it is not immediately clear that the state has a legitimate interest in promoting or maintaining marriage for this reason.  Many of the benefits that marriage provides for adults are or could be provided for in other ways.[14]  Adults are already able to live together and engage in whatever sexual acts they prefer.  Visitation rights, rights of inheritance, shared health insurance, etc. could all be provided for through legal arrangements like power of attorney.[15]  Nor are adults involved in families against their will. Adults consent to enter into marriage of their own choice, and so they choose which families to be a part of.  Furthermore, adults are past the age of reason and as such are entitled to the greatest extent of freedom possible within a politically liberal society.  Consequently, paternalistic policies that shape them, for their own good and for the good of the state, seem inappropriate.  Given this there seems to be no adult-centered reason why the state must get involved in promoting marriage; all of marriage’s benefits and responsibilities for adults can be provided in other ways without a distinct legal category of marriage.

 

            Furthermore, adult relationships need not be oriented towards children, but this seems to be the essential and common legitimate state interest that justifies such regulation of sexual relationships.  Girgis, George, and Anderson assert that

 

the state has an interest in marriages that is deeper than any interest it could have in ordinary friendships [because] [m]arriages bear a principled and practical connection to children.  Strengthening the marriage culture improves children’s shot at becoming upright and productive members of society.  In other words, our [reason] for enshrining any conception of marriage [is] the deep link between marriage and children. Sever that connection, and it becomes much harder to show why the state should take any interest in marriage at all. (Girgis, George, and Anderson 271)

 

To support this claim, Girgis, George, and Anderson provide a thought experiment: “imagine that human beings reproduced asexually and that human offspring were self‐sufficient. In that case, would any culture have developed an institution anything like what we know as marriage? It seems clear that the answer is no” (Girgis, George, and Anderson 286-7).  What this shows is that children are what matters when it comes to marriage law.

 

            However, others disagree.  Brake, defending the Minimal Marriage view, believes that the state has a public reason to provide, and is even required to provide, Minimal Marriage because “the social bases of caring relationships are primary goods [which] are bases for claims of justice” (Brake 326).  Primary goods, as Brake defines them, “are those goods essential to the development and exercise of the moral powers and to the pursuit of varied conceptions of the good” (Brake 327).  Caring relationships clearly satisfy this definition, for close caring relationships are necessary for moral and physical health and development.  Rights and privileges can be socially distributed so as to create and sustain these relationships, and these are precisely the rights and privileges which Minimal Marriage provides (Brake 330).

 

            Furthermore, Brake claims that “[c]aring relationships sometimes need support and protection which the state is uniquely able to provide. Maintaining such relationships normally (although not always) requires frequent contact and shared experiences” (Brake 331).  As such, the government must provide entitlements, particularly to those relationships whose continuance depends on such entitlements, because the government itself is often a threat to these relationships through the obstacles it erects (e.g., “immigration restrictions, relocation of civil servants and military personnel, and prisons”) (Brake 331).  Thus, caring relationships are not only justifiable through public reason, but they are a requirement of justice.

 

            Contrary to Brake, I do not think that caring relationships or the social bases upon which they (alone) rely should qualify as primary goods.  Many things are essential to the development and exercise of moral powers and the pursuit of conceptions of the good.  For example, the physical forces that hold our bodies together are essential for our existence, and hence, for our pursuit of the good, but these should not count as primary goods.  Similarly, I may have expensive tastes (e.g., plovers eggs) or religious needs (e.g., expensive pilgrimages) that are essential to my full development and exercise of moral powers and my full pursuit of my conception of the good,  yet these do not seem to be the proper object of governmental concern.  So what marks a primary good?  Issues of justice can only arise from the circumstances of justice, which are a (i) moderate scarcity of social advantages and (ii) conflicting claims of mutually disinterested persons (Rawls 128).  Without scarcity, there would likely be no conflict amongst persons, and hence, no need for distributive justice.[16]  So we may roughly characterize primary goods as those societal goods that are (1) moderately scarce, (2) are the subject of conflict, (3) are distributable, (4) are necessary for our sufficient moral and social development as citizens, and (5) are necessary for our pursuit of a sufficient conception of the good.[17]  Only those goods that meet these criteria should count as primary goods to be subject to state distribution and control.

 

            Some of these criteria are not satisfied by caring relationships or their social bases.  While some particular caring relationships may be difficult to acquire and sustain, caring relationships in general are not.  The social bases underlying these caring relationships are also not scarce or difficult to acquire. As already noted, most of these rights and duties (or the goods they provide) are or can be established (or accomplished)[18] through other legal means and hence, they need not be tied to marriage law specifically.  Similarly, there are not any substantial conflicting claims regarding caring relationships.  Two men may fight over a single woman, but given the fact that there are many eligible women available, the losing man has no grounds for claiming that his rights have been violated.  Thus, I may have a right to caring relationships per se (since these are needed for our sufficient moral and social development as citizens), but I do not have a right to any particular caring relationships (since it is doubtful that any particular relationship is so needed or could not be replaced).[19] As long as the government does not infringe upon this general right, no injustice has been committed. Given that traditional marital benefits are available through non-marital legal means and private associations, and the fact that caring relationships are the result of an individual’s free choices and are therefore his or her (and not the government’s) responsibility, Brake’s argument strikes me as being very weak.  Thus, I conclude that the welfare of adults, while important in its own right, is not something that the state has a legitimate interest in that would warrant governmental intervention for the purposes of marriage law.

 

 

Critiques of these Views of Marriage

 

            Having determined that the politically liberal society has a legitimate state interest in, and only in, the welfare of children (both for its sake and for the children’s sake) for the purposes of marriage law,[20] we can now critique the offered views of marriage.  Regarding the “Traditional” view, notice that the link between procreation and child rearing is never argued for, but only assumed.  This assumption is made virtually explicit when Girgis, George, and Anderson claim that “[c]hildren… can have only two parents – a biological mother and father.  There are two sexes, one of each type being necessary for reproduction” (Girgis, George, and Anderson 272).  However, this conflates the procreative or biological sense of parenting with the rearing sense of parenting, and the rearing sense of parenting does not require two parents, one of each sex. 

 

            Granted, procreation and rearing naturally and generally occur together, but in many cases they do not occur together at all.  Adoptive parents did not produce their children, nor do many biological parents raise their children.  Indeed, the fact that one can procreate does not imply that one can or should raise a child.  Teenagers are able to produce children long before they are sufficiently emotionally or economically mature to handle such a responsibility.  Similarly, the fact that one cannot or does not produce a child does not have any significant bearing on whether or not one can effectively raise a child.  Singles and sterile couples can and do raise healthy and happy children, while many procreative couples fail to do so.  Indeed, while only a male-female couple can naturally produce children, one, two, or more individuals can raise a child (and regularly do).  Even in the traditional family, a child is not raised solely by the child’s mother and father.  Grandparents, aunts, uncles, siblings, and even close family friends all play a part in raising a child.  Teachers, religious figures, athletic coaches, and many other adult role models also play a part in raising a child.[21]  The parent or parents usually play the primary role in raising the child, but not the exclusive role.  So while it is true that only two individuals can organically unite at a time for procreative purposes,[22] one, two, or more individuals can raise a child.  Consequently, it is a mistake to equate procreation with child rearing.

 

             For the purposes of the state and marriage law, the ability of a family grouping to raise a well-adjusted and self-sufficient child is what matters.  Contrary to Girgis, George, and Anderson,[23] the fact that same-sex partnerships cannot procreate does not preclude them from having an essential orientation to raising children, provided that these partnerships provide caring and loving homes.  While the fact that these children are not biologically their children may impose a barrier to such a possibility, it is not an insurmountable barrier.  And as long as a condition of parenting is that couples or groups are legally bound by beneficial relational norms, then it seems like they too will be able to provide a stable and harmonious home for children.

 

            Girgis, George, and Anderson cite empirical data that suggest that “children fare best on virtually every indicator of wellbeing when reared by their wedded biological parents” (Girgis, George, and Anderson 257).  However, this conclusion is contested because this data can be interpreted in other ways.  Brake claims that, as we might expect, “marriage sometimes benefits, but sometimes harms, children” (Brake 317).  Children in high-conflict and abusive families actually benefit from divorce, whereas children in low-conflict families are generally pretty healthy, regardless of whether those who raise them are their biological parents (Brake 317).  As Brake claims, “[w]hat matters greatly to child psychological development is continuity of care, which is available in polygamous, same-sex, single-parent, and extended families” (Brake 318). 

 

            Struening also argues that marriage itself does not promote child wellbeing to any significant extent.  She cites studies that claim to show that “most children do not suffer serious, lasting problems” from growing up with one parent and that in such families “on outcomes such as cognitive ability and mental health the size of the [harmful] effects are quite small” (Struening 246).  The most significant factor regarding “negative effects” in single parenting seems to be “low income,” which accounts for half of these effects (Struening 246).  While marriage may be important, it is correlated with other factors (e.g., education, better jobs) that are also important and may explain its importance, and as such, may explain why children of married parents fare better than children of unmarried parents (Struening 246).  And, as Brake has also observed, marriage may be worse for women and children if the father is violent and abusive, unfaithful, prone to crime, or using drugs (Struening 247).

 

            If Brake and Struening are correct, then what matters for healthy child development is low-conflict in the parenting relationship, continual care, and a sufficient socioeconomic status, and this is what the government should promote and attach benefits to.  The biological relationship of the parents to their children or the ability of the parents to procreate is not important for state purposes.  And as a matter of political liberalism, the state can only be concerned with the ability of parental groups to rear children when it comes to such family law.  Children have certain inalienable rights guaranteed to them by the state.  But so long as these are not violated, it is very difficult to place a constraint on the size or nature of a family who raises a child.  As Wijze notes,

 

within these constraints the nature of the family, be it monogamous, polygamous, homosexual, communal or nuclear, or whether it is organised on liberal, feminist or traditional lines, is of no interest to political liberalisms. Provided a particular family form ‘can raise children to the necessary standards of civic virtue,’ and educate them to ‘respect the equal rights of citizens,’ then its internal organisation is a non-political matter and of no interest to the state. (Wijze 275)

 

            Consequently, legislating the “Traditional” view of marriage would violate liberal neutrality.  Girgis, George, and Anderson claim that “any marriage law at all communicates some message about what marriage is as a moral reality.  The state has an obligation to get that message right, for the sake of people who might enter the institution, for their children, and for the community as a whole” (Girgis, George, and Anderson 268).  But if a marriage law unnecessarily takes a position on what is good, then governmental neutrality has been lost.  It does not matter that the “Traditional” view of marriage may be right.  Political liberalism does not aim for comprehensive truth, but for overlapping consensus and accommodation of reasonable pluralism. “Traditionalists” would make the state the arbiter of moral truth and increase its paternal capacities.  Do we really want the government to use its coercive power to enforce such moral truths, especially considering that this would violate other freedoms (e.g., religious freedom, freedom of conscience)?  From the political liberalist perspective, this would be an inappropriate use of state power.  Thus, while the “Traditional” view of marriage may in fact be correct, it cannot be endorsed legitimately by the state, for it goes beyond the state’s legitimate interests and violates neutrality.

 

            Next, consider the Minimal Marriage view.  We have seen that, insofar as it relies on promoting the welfare of adults for its justification, it is unjustified.  In fact, nowhere does Brake tie marriage essentially to children, and from her definition and discussion of Minimal Marriage, it appears to be an institution primarily for adults, and only secondarily and incidentally for children.  Without being purposely oriented towards children, Minimal Marriage fails to be of legitimate interest to the state, and consequently, cannot be promoted or provided by it.  The Minimal Marriage view can rectify its difficulties by tying marriage explicitly to children.  The promotion of the welfare of children would give the state a legitimate interest in Minimal Marriage and would sharpen and focus the aims of marriage and the reasons for state benefits to marriage.  Thus, until Minimal Marriage is modified to focus explicitly on children, it cannot and should not be promoted by the state.

 

            Finally, consider the “Revisionist” view.  First, it arbitrarily excludes other types of potentially valuable relationships by limiting marriage to couples.  It would exclude, like the “Traditional” view, “those seeking open, temporary, polypolygynous, polyandrous, [or] polyamorous… unions.  After all, people can find themselves experiencing sexual and romantic desire for multiple partners (concurrent or serial)” (Girgis, George, and Anderson 250).  But for the purposes of the state, such an exclusion appears to be arbitrary, since the state does not have a greater interest in the love of couples as opposed to the love of groups.  This is especially true considering that, as already argued, such groupings of multiple individuals can effectively rear children as well as couples can, and this is a legitimate interest of the state.  Thus, for the purposes of the state with respect to marriage law, there is no relevant difference between couples and larger groups of individuals; if couples are allowed to marry, larger groupings must also be allowed.  Second, like the Minimal Marriage view, the “Revisionist” view lacks any necessary connection to children; it is fundamentally oriented towards the welfare of adults (with children largely as an afterthought or an additional bonus to add to the happiness of the adults).  Since any benefits that such a relationship has for adults are or can be provided for by other legal means, this view fails to have a legitimate state purpose to support its recognition in law.  Thus, without a principled reason for excluding other types of relationships and without a legitimate state interest in the welfare of adults through marriage, the “Revisionist” view has the problems of both the “Traditional” and Minimal Marriage views without their benefits. 

 

 

An Alternative to Marriage: Parental Unions

 

            So what should marriage law look like?  Nussbaum nicely suggests that we should approach this question “by thinking how we may balance adult freedom of association, and other important interests in pursuing one's own conception of the good, against the liberties and opportunities of children as future citizens” (Nussbaum 62).  In accordance with this approach, and in seeking to build a marriage-like law based on an overlapping consensus of views, I believe that the state should focus on supporting and promoting healthy parental relationships; it should support parental unions and thereby get out of the marriage debate completely.  Dropping the use of the term “marriage” for public purposes would emphasize the fact that it is the parental aspect of relationships that the state is concerned with when it comes to family law, since the state has a legitimate state interest in the welfare of children.  The state is not concerned with marriage itself, nor need it take a stance on what marriage is.  Thus, the state can avoid much of the current debate which hinges on how to properly define “marriage.”

 

            Such parental unions would be different from the “Traditional”/“Conjugal”, Minimal Marriage, and “Revisionist” views in important ways.  First, legal benefits would not be attached to the adult relationship itself.  All three of these views would allow (even require) the state to provide automatic benefits to adult couples or groups, even in the absence of any actual rearing of children. But the state does not have a legitimate interest in romantic coupling for its own sake, so benefits should be tied to the actual rearing of children and groupings that are oriented to and fulfill that purpose.[24]  Second, since all groupings can be oriented in this way, no one would be excluded from the benefits tied to such a relationship.  That is, unlike the “Traditional” and “Revisionist” views, parental unions would not be restricted to adult couples.  Instead, singles and larger groups of individuals can form and be parts of parental unions, and thereby, receive the benefits associated with such unions.

 

            Third, many of these benefits would be like those that Brake offers as part of Minimal Marriage and which are part of traditional marriage arrangements (e.g., status designation, burial rights, bereavement leave, immigration rights, caretaking leave, shared healthcare, rights of inheritance, and visitation rights).  These would automatically be granted to members of the parental union, and so while available to the public at large, they would be more easily accessible to those in parental unions.  Such ease of accessibility would make parental unions easier to sustain and thereby indirectly promote the welfare of children.  Other benefits, however, would be different from those offered by Minimal Marriage, and would be more extensive and aimed directly at the wellbeing of children (e.g., subsidized childcare, subsidized education for children and parents, job training for parents).  These would not be available to the general public and would need to be related to significantly promoting the welfare of the child.

 

            Fourth, such benefits of parental unions would be attached to the actual rearing of children and the fulfillment of parental responsibilities and relational norms.[25]  That is, unlike the “Traditional,” Minimal Marriage, and “Revisionist” views, many benefits would be conditional and so would not be automatically granted.  For example, the state could promote, incentivize, and attach benefits to traditional marital norms (and perhaps other norms) like sexual exclusivity (in the case of parental unions formed around a sexual relationship) and permanence (in the case of all parental unions) for the sake of children.  Thus, the benefits of parental unions would not be an all or nothing matter, but would vary according to the ways in which a given union met certain conditions that benefit children.  Given the state’s legitimate interest in children, this is not an unjust limitation of adult freedom.  On this view, the choice to raise a child is “less a right and more a responsibility, or a trust, and it [should] be exercised only in ways that promote the child's interests” (Kymlicka 89-90).  In becoming parents, adults voluntarily choose to limit their freedom for the sake of children.  This is fair since children are not free to choose their parents and so they are in an involuntary and asymmetric relationship.  These children cannot withdraw from the relationship at all, whereas the adults can.  Insofar as we are trying to maintain a balance of power and given that these parental union’s sole purpose is to benefit and protect children, these norms seem justified. 

 

            Consider an example[26] to illustrate this view.  Suppose that two people take the “Traditional” view of marriage to be correct and that they want to enter into a traditional marriage contract.  However, this couple is infertile and is not planning on adopting children.  The parental union view would say that this couple is free to make all of the appropriate legal arrangements that are traditionally associated with marriage, and they are free to have their preferred private association marry them.  However, the state will not formally recognize any change in either person’s legal status, nor will they receive any additional benefits because of this change in their relationship.  Suppose now that this couple, against all odds, happens to have a child, or instead, it decides to adopt children.  At this point, many additional benefits, potentially conditional on the fulfillment of certain responsibilities, will be available to the couple in order to help it raise its children.  The state will formally recognize a change in each person’s status, since they will now have entered into a legally recognized and protected parental union. 

 

            Thus, such parental unions would be supported and promoted by the state to further its legitimate interest in the welfare of children, and beyond this, the state would stay out of marriage law (for it does not have a legitimate interest in the welfare of adults via romantic relationships).  That is, the parental union view is not a revised version of marriage, legal or pre-political.  The nature of marriage, as a pre-political institution, is left to private associations to decide and act on within legal constraints.  Instead, parental unions are an alternative to the legal institution of marriage, which should be abolished and replaced by the legal institution of parental unions.

 

 

 

Objections to Parental Unions

 

            Having articulated the parental union view, we can consider some objections to it.  First, “Traditionalists” will worry that by failing to promote “real” marriage and its norms, society will inevitably be forced to bear the burden of raising children.  For instance, Girgis, George, and Anderson worry that “the further erosion of marital norms would adversely affect children, forcing the state to play a larger role in their health, education, and formation more generally” (Girgis, George, and Anderson 262).  However, as has already been argued, the state can promote and require such norms for couples or groups who decide to raise children.  These need not be inherently tied to marriage, but to the raising of the child.  Consequently, opposite-sex couples, same-sex couples, and groups of closely associated individuals could form a parental union that commits themselves, for the purpose of raising a child, to norms of permanence and exclusivity.  These norms have their rational basis[27] and purpose in child rearing, and the state can promote them for their importance in child rearing.

 

            Second, “Traditionalists” will worry[28] that such a law will teach that being raised by one’s biological mother and father is not superior to any other family situation (e.g., single, same-sex, or group), when in fact it is.  However, whether or not this is the case is an empirical question.  It may well be that the traditional family is better for raising a child in general.  However, this does not mean that in any given instance this is the best situation for the child, nor does it mean that any other family arrangement is intolerable.  Just so long as a child is reared in a family that is sufficiently loving and stable, and as such, raises an acceptably healthy and well-adjusted child that will become a responsible citizen, the state’s legitimate interests will have been served.[29]  To demand more would be to violate liberal neutrality.

 

             Third, feminists may worry that my proposal does not do enough to protect women and children.  In a just society, “the structure and practices of families must afford women the same opportunities as men to develop their capacities, to participate in political power, to influence social choices, and to be economically as well as physically secure” (Okin, Justice 15).  However, feminists like Okin believe that gender-structured marriages do not make this possible.  Influenced by gender roles, girls anticipate that they will become the primary caretakers of children, and choose less demanding careers (if any at all) in order to accommodate this role.  Consequently, they do not choose highly demanding careers (e.g., doctor, lawyer, politician, university professor) nearly as often as men do, and consequently, fail to be equally represented in these influential public positions.  Women marry men whose greater earning potential, advancement in their careers, and lack of contribution to household and parenting work gives them power and control over their wives.  And in the event of separation and divorce, women are left with the burdens of a broken marriage with few benefits.  Thus, gender-structured marriage makes women extremely vulnerable to abuse, manipulation, and dominance by men.[30]

 

            Perhaps this would not be such a concern if women voluntarily chose to enter into such marriages.  But such voluntariness is suspect to some feminists, believing that “women have been socialized to have compliant or subordinate preferences,” so that their voluntary choices are largely the product of men’s desires for them (Levey 129-30).  Accordingly, women would not choose such gender roles for themselves were it not for the unjust societal expectations, which are created by men.  Even if women do legitimately voluntarily enter into a gender-structured marriage, women are not free to voluntarily leave that marriage, due to the existence of property, children, legal and economic obligations, and other duties.[31]  This is problematic when such involuntariness keeps one trapped inside a physically or psychologically damaging family relationship.  Okin reports that “[m]any women, especially full-time housewives with dependent children, have no way of adequately supporting themselves, and are often in practice unable to leave a situation in which they and/or their children are being seriously abused” (Okin, Justice 152).  However, even if women voluntarily enter into these marriages and can voluntarily leave them, such choices may still be problematic from the standpoint of justice.  Arneson points out that “the cumulative effects of many separate ‘private’ marital decisions may significantly disadvantage some persons even if few transactions considered in isolation impose costs of such magnitude that they trigger justice concerns” (Arneson 314-5).  In other words, if the fact that many women voluntarily choose gender-structured marriage places significant obstacles in the path of other women’s decisions to pursue other options, then these voluntary choices may be unjust in total, for they lead to injustice, even when they appear just considered on their own.

 

            Not only are women made vulnerable by marriage, but children are as well.  In gender-structured marriages, young girls do more work than their brothers, teaching both sexes that women should do more household labor than men.[32]  This is a problem because the family is supposed to teach children the moral values they need to sustain and flourish in a political liberal society.  If justice is not taught within the family, it seems unlikely that it will develop within our society as a whole, for the family is the foundation of society.[33]  Furthermore, as has already been mentioned, children are even more vulnerable because of the involuntary nature of their inclusion into the family.   As Nussbaum notes, “children are simply hostages to the family in which they grow up, and their participation in its gendered structure is by no means voluntary” (Nussbaum 60).

 

            However, it seems that parental unions can meet feminist concerns.  First, women and children are guaranteed to be protected by the rights and liberties of society, placing limits on the dangers of family life; family life cannot violate these rights.  So while family life is not necessarily defined by governmental law, it is constrained by it, thus preserving the public and private natures of the family.[34]  While it is an empirical question, it is reasonable to believe that through the use of mandatory education and the protection of other basic civil rights, men, women, and children of both sexes will meet the minimum acceptable standards for what it means to be a fully-functioning and self-supporting member of society.[35]  Feminists may be right[36] that the gender-structured family is unjust, subjected to the highest moral truths, but the political liberal only needs to show that its injustices are tolerable and are outside the scope of the state’s legitimate authority.  For political liberalism, it is just, for “a just family is one which respects the civil rights and liberties of all the individuals within it and promotes the capacities of individuals to become fully cooperating members of society” (Wijze 280).

 

            Second, the state can enact measures to make sure that such dangerous divisions of labor are made truly voluntarily, in just conditions, and are relatively unlikely to lead to any further injustices.[37] A voluntary action can involve no physical, social, psychological, or economic coercion, and it must be made within a society whose basic structures are regulated by justice.[38]   In order to bring this about, parental unions could adopt many of the same policy changes that Okin proposes for marriage: (1) the mandatory provision of high-quality daycare by large companies, and its subsidization by the government to make such daycare affordable the poor,[39] (2) mandatory paid leave for pregnancy, birth, and post birth child care for men and women,[40] (3) mandatory provision of flexible and part-time work while children are under the age of seven,[41] (4) mandatory after-school programs,[42] (5) mandatory equal-splitting of all earnings within a household involving children,[43] and (6) an increase in alimony and child-support payments to ensure that both post-divorce homes have the same standard of living.[44]  Each of these policy proposals is aimed directly and indirectly at the wellbeing of children, and so can be supported on that basis.  Furthermore, such policy proposals will indirectly protect women from the dangers of gender-structured marriage.

 

            Third, supposing that women’s and children’s rights have been respected and that many of the foregoing policy changes have been implemented within a parental union structure, the politically liberal state cannot do much more without violating liberal neutrality.  If  “a citizen freely chooses to live in a family where there is an unequal division of labour on gender lines, but does so because it fits with her values and beliefs, a political liberal state must respect and protect this personal choice because they are intimately connected to a citizen's basic civil rights and liberties” (Wijze 279).  And one cannot simply say that such “voluntary” choices are suspect.  As Levey argues,

 

our gendered behaviors are not a feature beyond our control. At least, such behaviors are as much in our control as anything can be. If women end up less well-off in economic and social terms than do men because they make different choices than men, because they do not choose the same kind of social and economic payoffs, then liberalism is limited in how it can respond. Choices and the conceptions of the good that underlie them may be debated in the cultural marketplace, but they are not the state's business and therefore not the business of political philosophers either. (Levey 140)

 

All of our choices are adaptive to a certain degree, and given that the foregoing policy changes would make the conditions in which these voluntary decisions are made just, this is as far as political liberalism can act in rooting out gender-structured marriage. 

 

            Furthermore, this is as far as the state should act.  Acting further would not only violate liberal neutrality, but would also prevent “unequal” but mutually beneficial relationships.    Arneson points out that in societies without gender–structured marriage, “if a man and woman differ in their tastes and talents with respect to paid labor, child rearing, and housework, there will be in general many deviations from [an equal division of labor] that would be better for both parties than [an equal division of labor]” (Arneson 320).  This is particularly true because while in such a society men and women may on average make about the same wage, any two particular “potential mates would likely have different potential earning ability” (Arneson 325).  For the sake of promoting the welfare and liberty of adults and children alike, such “unequal” marriages must be allowed so long as they do not compromise the state’s legitimate interest in children.  Thus, I conclude that feminist concerns can be met by parental unions.

 

            Fourth and finally, some may complain that my proposal does not go far enough and get the state out of marriage-like law altogether.  However, I agree with Girgis, George, and Anderson that complete “marriage privatization would be a catastrophe for limited government.  In the absence of a flourishing marriage culture, families often fail to form, or to achieve and maintain stability.  As absentee fathers and out-of-wedlock births become common, a train of social pathologies follows” (Girgis, George, and Anderson 270).  Relationships need regulating.  But I believe that it is not so much the sexual relationship that needs regulating by the state as much as it is the parenting relationship that needs regulating.  These are closely connected, but not inseparable, and it is the latter that the state has a legitimate interest in through its interest in the welfare of children.  If the state promotes good parenting and the formation of stable and loving parental relationships, it seems likely the catastrophe that Girgis, George, and Anderson are worried about will be avoided.

 

 

 

Conclusion

 

Is neutrality possible when it comes to the marriage debate?  Many[45] explicitly do not believe so.  Unless the state gets out of marriage law completely, the state will have to decide, for political purposes, what “marriage” will be.  Believing that the state need not, and should not, take a stance on what “marriage” is, I have argued for an alternative to and replacement of the legal institution of marriage.  These parental unions serve the state’s legitimate interest in the welfare of children by promoting healthy parenting relationships and by focusing on the rearing of children.  This view abandons the public marriage debate and leaves questions over the nature of “marriage” to private associations.  Such a view is as neutral as can be while still promoting the state’s legitimate interests from the perspective of political liberalism.  I therefore conclude that a politically liberal state can, should, and is limited to, promoting the welfare of children through parental unions.

 

 

 

 

Works Cited and Consulted

 

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            Families.” Political Theory 35.1 (2007): 5-28. JSTOR. Web. 15 Feb. 2012.

 

Anderson, Elizabeth. “What is the Point of Equality?” Ethics 109.2 (1999): 287-337. JSTOR.

            Web. 20 April 2012.

 

Arneson, Richard. “Feminism and Family Justice.” Public Affairs Quarterly 11.4 (1997): 313

            330. JSTOR. Web. 15 Feb. 2012.

 

Brake, Elizabeth. “Minimal Marriage: What Political Liberalism Implies for Marriage Law.”

            Ethics 120.2 (2010): 302-337.  JSTOR. Web. 15 Feb. 2012.

 

Card, Robert. “Gender, Justice Within the Family, and the Commitments of Rawlsian

            Liberalism.” Public Affairs Quarterly 15.2 (2001): 155-171. JSTOR. Web. 15 Feb. 2012.

 

Deslaurier, Marguerite. “Two Conceptions of Inequality and Natural Difference.” Canadian

            Journal of Political Science  37.4 (2004): 787-809. JSTOR. Web. 15 Feb. 2012.

 

Exdell, John. “Feminism, Fundamentalism, and Liberal Legitimacy.” Canadian Journal of

            Philosophy 24.3 (1994): 441-463. JSTOR. Web. 15 Feb. 2012.

 

Girgis, Sherif, Robert P. George, and Ryan T. Anderson. “What is Marriage?” Harvard Journal

            of Law & Public Policy 34.1 (2010): 245-287. Web. 15 Feb. 2012.

 

Hinton, Timothy.  “Liberalism, Feminism, and Social Tyranny.” Public Affairs Quarterly 21.3

            (2007): 235-253. JSTOR. Web. 15 Feb. 2012.

 

Kershnar, Stephen. “For Discrimination Against Women.” Law and Philosophy 26.6 (2007):

            589-625.  JSTOR. Web. 15 Feb. 2012.

 

Kymlicka, Will. “Rethinking the Family.” Philosophy and Public Affairs 20.1 (1991): 77-97.

            JSTOR. Web. 15 Feb. 2012.

 

Lever, Annabelle. “Must Privacy and Sexual Equality Conflict? A Philosophical Examination of

            Some Legal Evidence.” Social Research 67. 4 (2000): 1137-1171. JSTOR. Web. 15 Feb.
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Sandel, Michael. Liberalism and the Limits of Justice. New York: Cambridge, 1998.  Print.

 

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Footnotes

 

[1] Such a view may or may not be correct.  Sandel argues against political liberalism because it is not always reasonable or possible to “bracket” our moral or religious beliefs for political discussion, and doing so will “impoverish” our political discourse and “and rule out important dimensions of public deliberation” (Sandel 196).  Answering his objections would take another paper, and it is not the purpose of this one.  Since there are reasonable responses to his objections, I will assume that political liberalism is a coherent view and, as such, I will use it to frame and assess the marriage debate. 

[2] (Abbey 6)

[3] (Card 164)

[4] (Wijze 277)

[5] (Exdell 462), (Wijze 272)

[6] (Wijze 258)

[7] (Abbey 13)

[8] (Abbey 16)

[9] (Hinton 244)

[10] (Girgis, George, and Anderson 247)

[11] (Girgis, George, and Anderson 250)

[12] (Brake 312)

[13] This reflects the strange nature of the family in that it is fundamentally political while also fundamentally private.  This is why it is so difficult to determine how we should treat the family: “[a]s citizens, we have good reason to require that all associations measure up to the demands of political justice, while as members of families, we have equally good reason to want our families to have freedom to flourish without governmental interference” (Hinton 244).

[14] While it is true that there are advantages to having default arrangements of rights and responsibilities, these advantages seem to be practical in nature.  For example, most people will want their spouses to have certain rights and responsibilities, so it makes sense to have these as a default.  However, I am concerned with the theoretical issue of what rights and responsibilities seem to be intrinsic to the purpose of marriage insofar as the state is concerned.  Such rights and responsibilities should be granted, not for merely practical purposes, but for their own sake as necessarily connected to the state’s interest in marriage.  Thus, it is important to keep the theoretical and practical issues separate so as to know what the state must do versus what the state may do regarding marriage law.

[15] (Girgis, George, and Anderson 281)

[16] For example, if money did grow on trees (ignore inflation), there would likely be no need for the government to redistribute it since money would be abundantly available to everyone.

[17] In (4) and (5) I depart from Rawls’ view that primary goods are (1) things that can be distributed and that (2) people want, whatever else they want.  Instead, I follow Anderson’s views in “What is the Point of Equality?” in which primary goods are roughly those objective capabilities needed to function as citizens in society. Thus, Rawls’ view is modified to reflect this focus.

[18] For example, so long as it is not impossible (or perhaps extremely difficult) for a person to immigrate, it is not obvious that one should automatically be allowed to immigrate to a country simply because one marries a current citizen of that country.

[19] An exception would be natural relationships like parent-child or sibling relationships.  These should be protected and given entitlement benefits, mainly because they are involuntary relationships and as such are not the result of choice.  However, for relationships that are the result of choice, it is difficult to maintain that the government should subsidize or provide special privileges for them in the absence of any legitimate state interest.  Such relationships are like expensive tastes that the government need not provide for.  So while I admit that it is cold comfort to tell a person that it is ok that his or her lover will not be able immigrate since he or she can always find someone else, I still do not think that it is the state’s business to rectify this situation.  Just because some people want certain rights and privileges is not a legitimate reason for the state to provide these for them.  And given that such cases will be very rare in the presence of widely applicable immigration laws, I do not think this is a legitimate concern.

[20] I am assuming that legal marriage, as a publicly defined, enforced, and separate legal category with unique public rights and duties should only be available if it serves some legitimate state interest.  As has been argued, many, if not all, of the traditional important adult benefits and responsibilities of marriage can be or are provided by the state through other non-marital means.  Thus, there is no need to have a separate legal category insofar as adults are concerned since the lack of public marriage poses no significant obstacle to adults in carrying out their plans and pursuing their various conceptions of the good.  However, prima facie, it seems that such legal marriage does provide unique rights, benefits, and duties concerning children, and so the state should have something resembling marriage law to provide these to and for children.

[21] As Nussbaum similarly argues, “village groups, extended families, women's collectives, kibbutzim, these and other groups have been involved in raising children; [we should give] favor to those groupings that seem most capable of rearing children, compatibly with other requirements of justice” (Nussbaum 61). 

[22] (Girgis, George, and Anderson 272)

[23]  “same-sex partnerships…cannot be marriages because they lack any essential orientation to children: They cannot be sealed by the generative act” (Girgis, George, and Anderson 257).

[24] Brake herself embraces this view (though she goes a bit further) by asserting that, “financial benefits for parents and incentives to stability should attach to parenting, not marriage” (Brake 319).

[25] Some responsibilities of parenting would be automatic, particularly if the child was naturally conceived.  For example, child support would be an automatic responsibility of parents.  Minimal benefits might also be automatic in these circumstances (e.g., visitation rights).  However, the biological parents of a child could then enter into a parental union and acquire additional benefits and responsibilities.

[26] Thanks to Jason Hanna for providing this interesting example.

[27] Contrary to (Girgis, George, and Anderson 279).

[28] (Girgis, George, and Anderson 263)

[29] I agree with Brake: “Society does not and cannot require that parents be ideally suited to maximize children’s well-being (there would not be enough parents).  There is, rather, a high threshold requirement precluding neglect and abuse and requiring nurturing” (Brake 318).

[30] (Okin, Justice 139)

[31] (Abbey 14).   It is important to note that such relationships do not meet Goodin’s criteria for an acceptable asymmetric relationship, in which an acceptable asymmetric relationship is one in which the subordinate party can withdraw from the relationship without severe cost in order to avoid exploitation (Card 163, Okin, Justice 137).

[32] (Okin, “Political” 36)

[33] (Okin, Justice 135)

[34] (Wijze 271)

[35] (Wijze 277)

[36] But they may also be wrong.  Okin admits that “there are no shared understandings on [the subject of gender] in our society, even among women” (Okin, Justice 68).  Anti-feminist women support traditional gender roles, and feminists themselves are divided by those who wish to completely eliminate gender and those who take “the devaluation of women’s qualities and activities by a male-dominated culture” to be the problem (Okin, Justice 68).  For the state to enforce any view over the others would be to assert the truth of one comprehensive view over another, and this is something the state cannot do.    

[37] (Abbey 19), (Wijze 280), (Hinton 244)

[38] (Wijze 280)

[39] (Okin, Justice 177)

[40] (Okin, Justice 176)

[41] (Okin, Justice 176)

[42] (Okin, Justice 177)

[43] (Okin, Justice 181)

[44] (Okin, Justice 184)

[45] (Girgis, George, and Anderson 263, 286),  (Levey 128), (Sandel 198),  (Okin, “Political” 32), (Okin Justice 111)