The Rights of Women and the Sexual Relations/Part 1/12. Is Marriage a Contract?
IS MARRIAGE A CONTRACT?
Even among those who hold most liberal views with regard to divorce, but few can free themselves from the old conception that marriage is a contract. A liberal American paper expresses this idea in the following words:
"Marriage is a civil contract. It is not indissoluble, for the law has provided for divorce. They decide only in extreme cases, which as a rule decide themselves. The marriage contract, like all other contracts, ought to be dissoluble with the consent of the contracting parties. We go even farther: it ought to be dissoluble on the mere application of one of the two parties, for as soon as it becomes oppressive for one it becomes ruinous to both, and ought to cease at once."
If marriage were, as this paper says, a relation of contract, that which constitutes the essence of marriage would have to be created with it by the contract, which nobody would maintain; but if it is only a personal relationship, it requires, like other personal relationships, for instance friendship, neither an "application" for a divorce, nor any other formal separation, not even an agreement between the married parties, but both parties are actually free at any moment to discontinue the relationship.
This last is, indeed, the only correct principle as far as the two married persons are concerned. For marriage is nothing more nor less than a free union of two persons who love each other and who, just because they love each other, find in this union the satisfaction of their emotional and sexual needs. Without love, without harmony, without mutual indispensability, no marriage is possible; with these, it needs not the protection of the law, which is an offence, a humiliation to it. A contract binds the contracting parties to mutual obligations which conform to its aim and are within the reach of possibility; but no person can put himself under an obligation to love, for that is a matter of taste, the gratification of which does not depend on the will of the person who has thus bound himself. A man whom a woman loves passionately to-day can have become an object of disgust to her a year hence. Shall she continue to love him acccording to contract, or shall she sacrifice herself to the contract? The conception of a contract in marriage presupposes the possibility of forcing a person to fulfil the condition on which the life of marriage depends, which is love. For no marriage is made by a merely forced living together, by forced economic communism without love; otherwise the mere imprisonment together of two persons of different sex would be a marriage.
Married people who no longer love each other, no longer have anything personally to do with each other, any more than other people who have no personal relation to each other. It is as though they had never known each other; yes, as though they had always hated each other. What reasonable ground, therefore, can there still be to keep them together, and what reasonable object can there be in such bondage?
To sanctify marriage, or to attempt to fetter it by means of a contract, is to thoroughly misconceive its nature, and to attempt in a roundabout way to force the very opposite of its aim. If marriage were a contract, the marriage relation, as already observed, would have to be the result of the contract; but the exact opposite is the case: the marriage relation already exists through love, before that which is called the contract is created by the marriage ceremony, etc.
If married persons wish to enter a contract, with regard to their economic relations for instance, let them do so as persons; as a married couple they cannot do it. Two lovers, for instance, who wish to live together, that is, to be married, bind themselves by contract to divide equally their common property in case of an eventual separation. Such a contract has nothing in the least to do with the real marriage; on the contrary, it appertains to a time when the marriage has ceased, and regulates in that case the external affairs of the once-married couple. But as long as the marriage continues, it has as little efficacy as there is need for it; for marriage is love in action, and that presupposes complete harmony in all dispositions, and complete community of all interests.
That marriage has hitherto been considered as a relation of contract indicates nothing but a want of confidence in marriage. The consciousness that under present perverse conditions true marriages are a rarity dictated the equally perverse precautionary measure of putting marriage into a strait-jacket, so that where love is wanting, its apparent result, the union, can at least be insisted upon.
To form a marriage by contract appears to me about as if two people bound themselves before a notary and witnesses to be happy or to try to be. We marry out of interest, out of inner need, as one feels an interest or a necessity to eat, drink, walk, or read books, etc.; and now comes this topsy-turvy world and expects us to bind ourselves by contract to eat when we are hungry, to drink when we are thirsty, to take down our Goethe when we want to read something beautiful, to kiss when we feel an amorous inclination, etc. Recently an intellectual woman wrote to me: "Of all incomprehensible things, I know none more incomprehensible than marrying." But this woman is "eccentric," and has as little respect for the statute-book as for the Bible. She will not go to heaven for this reason, and she has not yet found heaven on earth either — on account of this marrying.
But now we come to another point. It lies in the simple question: Would the idea of "marrying," and of "marriage contract," ever have come up if women could look out for their own subsistence, if they were economically independent of men? Would the idea of "marrying" and of "marriage contract" ever have come up if no children resulted from marriage, or if the children reared and educated themselves?
I believe that after some reflection those questions will be universally answered in the negative. It is the necessity incumbent on us in present conditions to save women and children from helplessness, from ruin, and not the nature of marriage, that brought society, which did not wish to be burdened with the care of women and children, to change marriage into an obligatory relationship controlled by law. And it is also this economic consideration on the part of society which invented the illegitimate procreation of children, and has made the birth of a human being whose germ has not been blessed by a priest or an official a disgrace. Because a Héloïse may chance to be poor and her child may possibly need the support of society, this society stamps the mother a harlot, and clothes its niggardliness in the hypocritical robe of moral indignation at so much depravity. If Héloïse wishes to escape her fate, she must change her love for Abélard into an article of contract, and get the attestation of a priest that she is no vagabond. Abélard, forthwith under police control, is now forced to care for "wife and: child," and alarmed society can once more sleep' quietly beside its strong-box.
This legal interference with the natural, purely personal relationship of marriage is a very simple consequence of the pernicious state of society, which suppresses its women and casts out their children, instead of making the former independent and educating the latter at the general expense.
I can very easily conceive of a state of society — indeed, I cannot conceive of a better future without a state of society in which the increase of humanity through the birth of a healthy child, sprung from free marriage, is considered not only as no misfortune and no disgrace, but as a piece of good fortune and an honor; in which a free sexual union controlled by no law and no police will have crowded out all hypocrisy and all prostitution; in which conduct is regulated bya sense of beauty cultivated from childhood and by the bond of true love, but not by an unnatural morality and forced relations; in which the institutions of the State are in duty bound to receive every mother with her child if she stands alone or if she, in union with a man, has not sufficient means for support and education; in which the State institutions, in the well-apprehended interest of society itself, as model institutions of education and culture, are accessible to all alike, free of charge, etc.
Only in such a state of society true marriages, which now are accidental exceptions, will be the rule, and "divorce," which now causes so much trouble in the world, will be an unknown thing. In the absence of the hitherto prevailing considerations of the "consequences," especially of the economic embarrassments, complete liberty to look for and find the true object of their affections will make women incapable of still allowing themselves to be dehumanized as prostitutes, either in relations of "contract" or in maisons de joie, and men, in the companionship of free women, will look back with disgust to the times when, by the aid of money or force, they trod the dignity of half the human race under their feet in order to unfeelingly satisfy mere sensual lust in the arms of an unfeeling being.