Marriage is Much More than a Mere Contract
David Hume stands at a transitional point in the history of Western thought on marriage. Marriage had, for more than a millennium, been vested with a primarily spiritual significance, whether as a sacrament, a covenant, or some other sacralized concept. By Hume’s time, however, many had begun to explain marriage in desacralized terms. Foremost among these new conceptions of marriage was an understanding of the marital bond as primarily contractual. Not only does Hume stand at a transitional point, he is himself a transitional figure. While Hume readily grants that consent, as to a contract, is the essence of the marital union, he remains doggedly conservative and noticeably concerned about how a primarily contractual model of marriage seems a slippery slope into all manner of societal instability. This short essay aims to give an overview of David Hume’s comments on marriage, highlighting the tension between his conservatism and his contractarianism.
Hume did not write much on marriage: only two essays are explicitly dedicated to the subject, and one is satirical. But where he does discuss marriage, Hume’s basic concern is this: if the institution of marriage is debased by a purely contractual model, freely allowing deviations from its monogamous and presumptively permanent structure, social trust within the society will be radically undermined.
As a passing comment in one essay, Hume gives an account of the naturalness of marriage, framing it in language reminiscent of some state of nature inquiries:
Nature has implanted in all living creatures an affection between the sexes, which, even in the fiercest and most rapacious animals, is not merely confined to the satisfaction of the bodily appetite, but begets a friendship and mutual sympathy, which runs through the whole tenor of their lives. Nay, even in those species, where nature limits the indulgence of this appetite to one season and to one object, and forms a kind of marriage or association between a single male and female, there is yet a visible complacency and benevolence, which extends farther, and mutually softens the affections of the sexes towards each other.
So, marriage arises because of naturally arising mutual affection between the sexes. Far from the basic relations between the sexes being oppositional or rivalrous, there exists between males and females (whether animal or human) a disposition of “complacency or benevolence” which draws them into firmer relationships with one another.
Hume has little more to say about the naturalness of marriage other than that it “has for its end the propagation of the species.” He cribs a traditional natural law argument for monogamous marriage (made by everyone from Aquinas to Locke), pointing out that “the long and helpless infancy requires the combination of parents for the subsistence of their young; and that combination requires the virtue of chastity and fidelity to the marriage bed.”
But elsewhere his reasoning is less traditional. Absent from his reflections on marriage is even a perfunctory reference to God, theology, or the Christian faith. Against the naturalness of the marital bond between a man and woman, Hume’s contractarianism leads him to suggest that marriage is purely a construct of positive civil law:
As marriage is an engagement entered into by mutual consent . . . it must be susceptible to all the varieties of conditions, which consent establishes, provided they be not contrary to this end . . . And as the terms of his engagement, as well as the methods of subsisting his offspring, may be various, it is mere superstition to imagine, that marriage can be entirely uniform, and will admit of only one mode or form. Did not human laws restrain the natural liberty of men, every particular marriage would be as different as contracts or bargains of any other kind or species.
Marriage, though derived from the natural law, cannot be maintained without civil law. To put it another way, marriage contracts would vary so widely that the natural institution of marriage would not even be recognizable as part of the law of nations. This is certainly a radical claim, and Hume will spend the rest of the essay attempting to talk himself off this contractarian ledge.
Polygamy and divorce are, for Hume, the most obviously negative results of a purely contractarian approach to marriage since contracts admit any number of different deviations and lengths. He attempts to argue for polygamy and divorce, putting forth what he judges to be the best arguments in need of refutation. As a putative case for polygamy, Hume suggests that monogamy is a kind of tyranny to which society and the laws subject men. Polygamy instead frees men “from the slavery of women” (or from their slavish desire for women) by sating their unruly passions.
But this arrangement is not without its downsides. In a polygamous marriage, man must become, in relation to women, “like a weak sovereign, being unable to support himself against the wiles and intrigues of his subjects [i.e. women].” Consequently, the polygamist “must play one faction against another, and become absolute by the mutual jealousy of the females.” So, freed from the tyranny of monogamy, the polygamist becomes a tyrant over his wives.
Against this, Hume asserts the basic equality of the sexes, saying that “the sovereignty of the male [over his wives] is a real usurpation, and destroys that nearness of rank, not to say equality, which nature has established between the sexes.” Hume fears that marriage inequality, like any tyranny, will be detrimental to a peaceful citizenry: “Tyrants, we know, produce rebels, and all history informs us, that rebels, when they prevail, are apt to become tyrants in their turn. For this reason, I could wish there were no pretensions to authority on either side; but that every thing was carried on with perfect equality, as between two equal members of the same body.”
The tyranny of polygamy is also a kind of slavery “where women have not the free disposal of themselves, but are bought and sold, like the meanest animal.” If these considerations were not decisive, polygamy also eliminates the natural affection between the sexes, as “the lover is totally annihilated; and courtship, the most agreeable scene in life, can no longer have place.”
So much for the detriment to relations between men and women. What of society as a whole?
Polygamy, fears Hume, places men in a constant state of distrust toward other men. Because the polygamous man lives in constant fear that one of his harem will be unfaithful to him, the social bonds of male friendship are eroded, as men try to keep other men away from their wives. Consequently, a general state of loneliness pervades the society. “No wonder then, that Solomon, living like an eastern prince, with his seven hundred wives, and three hundred concubines, without one friend, could write so pathetically concerning the vanity of the world. Had he tried the secret of one wife or mistress, a few friends, and a great many companions, he might have found life somewhat more agreeable.” Monogamous marriages, or at least monogamous liaisons, are critical to sustaining necessary social trust within a society.
In addition to the general state of distrust that they introduce into society, polygamous marriages also inevitably lead to the neglect and poor education of children, one of the chief ends of marriage. Hume says that children reared and educated among slaves—by which he means wives—forget the natural equality of mankind, and thus are trained from a young age to become either tyrants or slaves themselves. “Barbarism,” therefore, “appears, from reason as well as experience, to be the inseparable attendant of polygamy.”
Moreover, the children will inevitably be neglected, eventually coming of necessity under the care of relatives or the state. Hume elsewhere registers a similar deep concern about such arrangements:
The great difference, for health, industry, and morals, between an education in an hospital and that in a private family, should induce us not to make the entrance into the former too easy and engaging. To kill one’s own child is shocking to nature, and must therefore be somewhat unusual; but to turn him over to the care of others, is very tempting to the natural indolence of mankind.
In other words, not just in the disruption of social trust, but also in the temptation to indolence provided by state welfare picking up the slack in child rearing, polygamy is little more than a slippery slope to an unstable society.
Turning to the question of divorce, Hume makes two significant points in favor of voluntary (what today would be called no-fault) divorce. First, since the marriage is nothing but a contract formed on the basis of mutual love, why could it not be dissolved if mutual hatred grows between the couple? This is a risk one incurs upon entering a marriage, for “it often happens, that they are mistaken in this particular [of choosing whom they will marry]; that they take for their half what no way corresponds to them; and that the parts do not meet nor join in with each other, as is usual in fractures.” Thus, if marriage is to be reckoned as just another contract, there is no reason the parties should be forced to remain in the contract if the terms become disagreeable.
The constraint of a permanent marriage that can’t be dissolved at will erodes genuine love. Variety is the spice of life, but since polygamy isn’t allowed, divorce is the only option for being set free from marriage. “In vain you tell me, that I had my choice of the person, with whom I would conjoin myself. I had my choice, it is true, of my prison; but this is but a small comfort, since it must still be a prison.”
Hume, answering these arguments, makes several points. First, it is true that “the heart of man naturally delights in liberty” and hates being confined in the prison of marriage. But, if the heart of man “submits to a necessity [i.e. permanent, monogamous marriage],” he “soon loses an inclination, when there appears an absolute impossibility of gratifying it.” Hume also suggests that marriage is a unique type of love; it is a “calm and sedate affection,” a friendship. Marriage “chiefly subsists by friendship, the closest possible,” and springs “from long acquaintance and mutual obligation.” This is to be distinguished from the kind of love that needs liberty to flourish. Such was the love of Heloise for Abelard, says Hume, when she refused to marry him “in order to preserve this passion.” More substantively, Hume is very concerned about the likely effect that voluntary divorce would have on the couple’s children. Voluntary divorce, he argues, “renders [the parents’] posterity miserable,” since it deprives the children of the care and affection of their parents.
Lastly, Hume is concerned, yet again, with the destabilization of social trust that voluntary divorce would produce. If voluntary divorce is on the table, he reasons, the spouses must be holding something back: “[N]othing is more dangerous than to unite two persons so closely in all their interests and concerns, as man and wife, without rendering the union entire and total. The least possibility of a separate interest must be the source of endless quarrels and suspicions. The wife, not secure of her establishment, will still be driving some separate end or project; and the husband’s selfishness, being accompanied with more power, may be still more dangerous.” The wife, conscious of the possibility of voluntary divorce, is left, as the weaker of the two, feeling insecure, as if she could be put out on the street at any moment.
One suspects that Hume found the arguments in favor of polygamy and voluntary divorce difficult to answer, given that his arguments against the practices seldom directly answer the arguments he himself has contrived in their favor. Having committed himself so strongly to a contractarian model of marriage, such that the only way traditional marital norms can be preserved is by positive law, perhaps Hume found himself hard-pressed to respond to arguments in favor of polygamy and voluntary divorce without abandoning his contractarianism. Also, his almost Hobbesian preoccupation with social stability pushes him to present an almost entirely utilitarian rationale for the structure of the marriage institution, rarely considering the natural structure of marriage or its distinct ends other than the propagation of children. Thus, Hume finds himself stuck between contractarianism and conservatism, and it’s unclear which of the two is driving the other.
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