"This is the generation of the great LEVIATHAN, or rather, to speak more reverently of that mortal god, to which we own under the immortal God, our peace and defense." -Thomas Hobbes: Leviathan
This post is part of a series of posts which started out as a single unified whole, but was later found it to be incredibly long, thus I’ve decided to break it up into parts so that people can simply refer to the parts they are interested in. Although one must remember that they were originally intended to be read as a whole and some of the points here may have its explication in some of the earlier posts. However, one must read the first post which provides the necessary background and fundamentals for the whole discussion. You can access the second post here.
Some Preliminary Definitions
There are limits to the extent to which the state can enforce or apply a law. I shall call one of them “ontological”, which is limits to do with the objects and realities referred to by the law. The other I shall call “epistemic”, having to do with the extent to which the law or court can reliably determine or establish such facts in a court of law.
Examples of “ontological” phenomena or facts of relevance which limits the application of marriages include, the limits of incest, age, race, socio-economic class, etc. While the law does consider the bounds of incest and age to be relevant considerations for the validity of marriage, the law does not consider such factors as such race or socio-economic class to be a relevant factor and the marriage law is not restricted by socio-economic class.
As far as epistemic limitations are concerned, there are limits to which the court can, for example, determine whether someone truly believes in simply because the court does not have the ability to read minds. The decline of criminalisation of heresy came about because Protestant jurists and theologians argued that it is impossible to determine whether or not someone really believes in a particular doctrine. Especially if one employs coercive measures, a person’s profession of faith would be nominal and very likely to be fake. As such, there are certain facts in this world which is virtually possible for any court of law to establish. These are “epistemic” limitations.
If it is true that the central end of marriage is its procreative significance, then what about the marriage of infertile couples?
Recall once more the distinction between a public institution and individual acts and intentions. There is a huge difference between the justification for a principle or general institution, and the justification for every particular application of that principle or institution.
For example, it is one thing to justify the institution of prisons as deterrence for crime by arguing that it deters because it is undesirable. Yet the justification for the institution is not negated by the fact that some criminals do not find prison undesirable and some people in fact likes to go to prison because, say, it protects them from the retribution of outside gangs or enemies on the outside. Yet we still apply the institution and rule to everyone who offends against the law anyway even if the principle does not apply for some particular applications of it. The law does not scrutinise the motives of everyone who is convicted and condemned of a crime to see whether or not to apply the punishment to them. Simply because the institution is justified by such and such principles does not mean that we invoke the same principles in deciding its application. In deciding how to apply the institution other principles are considered. If, say, we let people off prison if they say they like it, then every condemned criminal will just say they like it to be let off, etc.
The same sort of reasoning would hold generally for infertile couples or old couples, etc. One can maintain the procreative justification for the institution of marriage itself without needing to apply that justification to every application of it. Thus, for example, we can argue that it is impractical and intrusive of the state to require that every couple submit to a fertility test to receive a marriage licence. Heck, the state doesn’t even scrutinise ancestry or whether or not we may be accidental siblings before they issue the licence.
Therefore, while procreation does rightly justify the institution itself, it is not a principle which is to be invoked to justify every application of the rule. Prima facie the institution proceeds ahead and if in particular cases there are problems, that’s what annulments are for: To declare the non-existence of the marriage after the discovery of the fact.
Some Considerations for why it is Impractical, if not Impossible, for the Law to Scrutinise Fertility
To approach this question, one must realise that there are both ontological and epistemic difficulties as to determining the exact meaning of “infertility”. The law has traditionally not felt the need to deal with this issue at length by virtue of the fact that they did not possess the advanced medical science which we do today for determining and predicting the fertility of couples. For all intents and purposes of the law, a couple’s fertility would be virtually on par with “mental intentions”, private and hard enough to determine what it means and even harder to establish such facts reliably.
In the past there was only one way to reliably establish infertility. Even for couples who after many many years of trying to conceive and failed to do so, one may more or less suspect a medical fault, but there was simply no empirically objective way of proving it and thus rarely if ever became a live issue to be brought to the attention of the law and the courts. The one method which is far more reliable and objective for establishing infertility, even given the state of the medical science of the past, and which has been encoded into the law even unto this day, is that of the inability to consummate a marriage. Thus, impotency or any other inability to have sex is in fact a proper grounds for an annulment of a marriage. It is vital that one notes the difference between an annulment and a divorce. While a divorce acknowledges that a marriage did exist but was now being dissolved because of some act or condition which damages or destroys the marriage, an annulment is a declaration that a marriage never existed in the first place, that is, the marriage was invalidly contracted from the start. Reasons for annulment includes discovery that one’s spouse is a relation of one within the bounds of incest, or persistent refusal to consummate a marriage, etc.
Thus the continued existence of impotence or inability to consummate a marriage as a grounds for an annulment is an indirect evidence of how marriage does by definition concern itself with carnal physical sexual acts, and by that, with issues of fertility and sterility.
However, it is only with the advent of modern medical science that infertility has become something which is capable of a public established meaning, and the law is beginning or in the process of coming to grips with such a concept. But we must note some difficulties there exist with this concept.
First, there is an ontological question. What exactly does constitute “infertility” or “sterility”? While there does exist clear cases, but many cases exist in the ambiguous range, such as low sperm count, or simply extreme difficulty in conceiving. If, for example, one can only conceive by going through extremely costly and repeated attempts IVF treatments, prohibitively costly enough as to be out of the reach of most people and to become for all intents and purposes practically “infertile” and unable to have children, is such a case to be considered “infertile”? There is therefore a difficulty in introducing an as yet to be determined concept into the law, and a concept which is not capable of a tolerably clear legal usage, cannot be invoked to contradict what are clear social ends of marriage. Remember, difficulties in particular application of a principle or rule does not by itself negate the rule.
It would also be instructive to note some court cases which have grappled with the issue of infertility. In the South African case of Van Niekerk v Van Niekerk 1959 4 SA 658 (GW), a man applied for an annulment of his marriage with his wife as a result of discovering that his wife was sterile because of a previous operation she had before they were married which rendered her sterile and permanently unable to have children. The judge looked to the Roman-Dutch law to come to his conclusion, and in the Roman-Dutch law the impotentia procreandi, or the inability to procreate, was considered to be a ground for setting aside the marriage if the defect had existed at the time of the marriage, and found that this was also the position of the South African law. Thus there is already some grounds for believing that in fact ancient societies had considered procreation to constitute one of the essential ends of marriage and that the inability to do so invalidates the marriage in itself.
Other nations may not take the position of the South Africa, but in many parts of the Western world, infertility is considered to be a legitimate ground for a “fault” divorce, being a condition which does damage if not outright destroy the essential social ends of marriage. Thus there is a cumulation of evidence to suggest that even when the concept of infertility or sterility became a legally live issue, there is a presumption of the law to consider that such a thing, if it permits of a coherent and consistent reading, to in fact constitute a condition which does contradict the ends and integrity of marriage. And if this is so for a concept as ambiguous as infertility and sterility, there is simply absolutely no doubts regarding homosexual couples which are by definition infertile and sterile and thereby their “marriages” would by definition be void and null and a “fault” from the start.
(Although this raises an interesting question as to if medical technology should one day make it possible for homosexual couples to make a test tube baby out of their own genes, thereby integrating their sexual attachment with procreation of a child made out of this erotic union, the question is whether homosexual couples would therefore be considered “essentially” infertile and sterile, a relationship which contradicts the essential ends of marriage. I consider that to be an open question which we shall address when, or rather if, such a technology ever becomes a possibility.)
Given the ontological difficulties which presently still exist for determining exactly what does constitute infertility, it is simply impossible for the state or the law to provide a systematic or working definition of infertility/sterility whereby they can systematically determine the “fertility” of the couple. Thus the law is content merely to judge these cases as they arise by a case by case basis in order to be able to take into account the full complexities of the situation before coming to a judgement. Otherwise, the law practically takes a “don’t ask don’t tell” policy towards a couple’s fertility with regards to marriage.
In addition to the ontological difficulties, there also exists epistemic difficulties in determining infertility or sterility. Let us recall our example of laws against incitement of racial or religious hatred. There are thousand of ranting blogs or tweets which contain such sentiments, but neither the state nor the law bothers to prosecute all of them, only those which has become sufficiently widespread to occupy a significance place in our social consciousness and attention, whereby the social gains of prosecution outweighs the legal cost of doing so. Likewise the fact of infertility or sterility is a more or less virtually socially “invisible” fact, something which could only become public knowledge by going through costly and thorough medical examination, if the couples even bother to at all. Unlike one’s sex which is a publicly evident and a tolerably objectively clear and determinable fact, the presence of infertility and sterility more or less barely registers upon our social consciousness given the difficulties of its detection. Thus there are virtually no social gains or benefits in turning infertility/sterility into a standard legal concept for determining the validity of a marriage and for systematically testing every couple for their fertility/sterility, and the public reinforcement of the social ends of marriage are neither enhanced by such procedures nor diminished by their marginal existence in the law.
Even if the social end of marriage is the union of the eros of the sexual act and care of offspring, not all couples intentionally enter into marriage with the purpose of starting a family nor is this ideal always realised especially in hard and unloving homes, etc.
Now, should intentions to get married for ends other than those argued for in this series ought to a relevant factor in precluding their marriage? As we have noted right from the first post, private intentions of the participants in a social institution are to be distinguished from the public purposes and ends of a social institution. The answer, prima facie, seems to indicate no.
The problem with “intentions” is both ontological and epistemic. First, as far as mens rea or intentions are concerned in the law, it must have a concrete and specific meaning which could be publicly fixed. While in murder or criminal cases such “intentions” to commit a crime have a tolerably clear meaning because of the specificity of such acts, but the “intention” to choose the social ends of marriage has a much more nebulous meaning because of marriage as an institution and life encompasses too many phenomena to allow us to form a working common definition as to what an intention to select such ends entails. If you feel apprehensive or an aversion to having children, does that count as an “intention” not to have children? Are feelings intentions? What if you simply have no opinions but defer to your partner’s judgement, does that count as an “intention”? Furthermore, unlike a murder case whereby an intention is fulfilled by a deed, the intentions in a marriage are essentially open-ended and changeable. One may be adverse to having children at the start, but may change their minds and have them later on and etc.
Thus, in addition to the ontological difficulty as to what exactly counts as an “intention” as far as the ends of marriage are concerned, there is also the epistemic difficulty of determining such a fact in an open court of law. Even if we grant that there are such ontological facts such as intentions in marriage, it is still impossible for the state to read minds or formulate any reliable public test to determine or establish such private intentions (is the state going to threaten to dissolve your marriage after 5 years without a child? A couple could just lie about such intentions and not carry it out.). Therefore as a whole, the law does not concern itself with such “private intentions”. The university for example does not, and cannot, determine whether you intend to go through the whole university education, for all they know you may merely intent to just enter for one semester to shut your parents up and them flunk everything and go on to music school, but the university has no way of knowing such intentions. So likewise does the state concerned itself only with the publicly available and objectively determinable features of the couple such as bounds of incest, age, etc, and a public consent whereby one signs on the dotted line to be wed to one’s partner, but the state has no reliable or credible way of testing for couples private intentions to have children.
With regards to the failure of the realisation of the ideal, the law upholds many ideals which are often not realised, in Singapore examples include the criminalisation against incitement of racial and religious hatred, speeding, tax fraud, etc. However, notwithstanding the laws, racial and religious hatred still continues to exist, clever accountants and lawyers are able to find loopholes around tax laws to evade taxes, drivers still break the speed limit, etc. This is simply because there are certain limits to which the state of any public system of courts and laws can go to enforce a law. It is impossible for the state to censure or read every tweet, blog or facebook post in the bid to censure every possible racist or anti-religious language or monitor every car on the road, including the fact that the state has no ability to read people’s minds in the attempt to discover the hatred within. For reasons of practicality and in view of the social benefits, the state will normally prosecute only high profiles cases which are widely known and watched by society. But the ideal and social standard remains as encoded in law, despite the inability of the state to completely enforce it.
Thus, while the institution of marriage has its order and ideal the union of the eros of sexual acts with the love and care of its offspring, but there are practical limits to which the state can enforce this ideal. The state, for example, has no standard criteria for determining what constitutes a caring family, nor is it possible for them to police every family in the attempt enforce this ideal.
What the state can do is to recognise certain objectively determinable acts which clearly and directly constitutes an offense against the institution of marriage, and recognise such acts as a proper grounds for divorce. Such acts include adultery (and the law actually has an explicit working definition for this!), physical abuse, desertion, mental illness, etc. A divorce obtained on these grounds are called “fault divorces”, divorces based on faults which offends against the institution of marriage. As a rule, without these objectively determinable offenses against marriage, the law cannot and will not grant a divorce, and in general do not consider such subjective factors like whether you are “happy” or “in love” with your spouse to be a relevant consideration for the integrity of the marriage.
(As a side note, the existence of “no-fault” divorces in recent years is highly problematic and can arguably be said to destroy the very meaning of the marital contract. “No-fault” divorces are divorces which are not based on any fault or wrong-doing, but the dissolution of the marital contract simply upon the basis that you don’t want to be married anymore. However, imagine a contract or promise which goes, I will do for you or give to you such and such, if I wanted to or if I feel like it. Such a contract in contract law is known as an illusory promise, a promise which in effect doesn’t bind at all because of this subjective clause, one which the legal system cannot enforce and which it would simply ignore. Thus, the existence of no-fault divorce effectively turns a promise to stay together into an illusory promise, because this promise contains precisely such an “provided I feel like it” clause and makes the legal enforcement of such a promise impossible. One can read more about it from this blogger’s rather insightful analysis here.)
Before we end this segment, it is important to note that most of human civilisation never considered “happiness” or “passion” to be a prerequisite or premise for the relationship forming significance of sexual acts. Many cultures today as they have in the past practice arranged marriages whereby couples grow to love one another after their marriage. As our former Minister Mentor put it after his wife passed away, in Eastern cultures you love those you marry, in Western cutlure you marry those you love. The idea that there does exists this special “romantic true love” of highly subjective passion which is the determining factor and reason for coupling can be considered to be pretty much an oddity of Western Romanticism and an aberration throughout human history. But most societies assume that it is sex which makes love (literally!), not really the other way round, and it is marriage which provides the context for the development of love.
Naturally most Westernised societies find such arranged marriages or marriages which does not have that “romantic” element to be literally inconceivable. But no matter how many stories there exist about unhappy arranged marriages or unromantic marriages, the simple fact is that the vast majority of such marriages are at least contented, if not happy, notwithstanding the fact that our romance saturated culture has not exactly lead to “happier” marriages either given our high divorce rates, and I would think that many still marry without the excess romantic baggage but out of a simple desire to settle down and start a family. While it would be ludicrous to suggest that we return back to the age of arrange marriages, but the central insight of this practice, that love is a practice and not a passion, cannot be lost, and we would be foolish to discard this insight simply because we cannot conceive living in the past, which is a rather stupid argument anyway because the people in every age has naturally adapted their thinking to their time which makes it difficult for them to adopt the mindset of another time. One should not confuse the lack of historical imagination for an insight into valuation.
Here is the next post: