The Substance and the Shadow

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where I recently spent a short vacation, is a magnificent country
in the northwest of Spain. With its dramatic coastline, mountains
and forests it is so unlike the Low Countries where I live: an ideal
place for a total change of atmosphere – at least as long as
one does not pick up a local newspaper. Unfortunately, I did pick
up a local newspaper and immediately found myself confronted with
the kind of nonsense that I would have read, if I had stayed at
home. The major news item was the legalisation of homosexual marriage
by the Spanish parliament. A spokesman for the socialist majority
reportedly hailed the event by saying that he had no doubt that
it would make Spain a more decent country. There apparently was
no need to explain this rather direct charge of indecency against
the many countries that are not yet about to adopt this top-of-the-bill
shibboleth of enlightened progressivism. To the enlightened progressives
nothing is more obviously wrong than denying people access to an
institution merely because of their sexual preferences or inclinations
– especially if that institution is marriage. There also was
no need to put the issue of u2018homosexual marriage' in the context
of the now almost two centuries old attack on marriage and other
basic institutions of Western civilisation, such as personal freedom,
private property, and the Church. After all, it is rather silly
to get in rapture about the right of homosexuals to marry while
acknowledging that what really counts is that the institution of
marriage now is little more than a cultural dodo. Yet, that is what
counts for those enlightened progressives, few as they are, who
still know where their ideas come from.

in England nor America would a proposal to abolish marriage be tolerated
for a moment; and yet nothing is more certain than that in both
countries the progressive modification of the marriage contract
will be continued until it is no more onerous nor irrevocable than
any ordinary commercial deed of partnership. Were even this dispensed
with, people would still call themselves husbands and wives; describe
their companionships as marriages; and be for the most part unconscious
that they were any less married than Henry VIII. For though a glance
at the legal conditions of marriage in different Christian countries
shows that marriage varies legally from frontier to frontier, domesticity
varies so little that most people believe their own marriage laws
to be universal. Consequently here again, as in the case of Property,
the absolute confidence of the public in the stability of the institution's
name makes it all the easier to alter its substance."

words, indeed, written by no less a luminary than G.B. Shaw in his
(1903). Altering – a euphemism for destroying
– the substance of a basic institution is all a pragmatic revolutionist
wants. Unlike his ideological brethren, who like to fight about
words, he does not care about the names of things. As long as the
cat kills the mice, its colour is of no significance to him. The
issue of homosexual marriage (and, in its wake, homosexuals being
granted the right to adopt children) has caused a lot of uproar
precisely because many people actually believed, as Shaw said they
would, that the laws of marriage with which they were acquainted
were not just a bundle of legal rules but a reflection of the very
nature of marriage. That belief, however, betrays a fundamental
confusion about the nature of marriage.

is an understandable confusion. Indeed, it would be unreasonable
to expect many people to see through the pervasive propaganda that
teaches them to look at the prevailing legal arrangement as if it
defined the institution of marriage. To them, marriage is what the
legal rules say it is, because the authorities, the media and the
schools tell them that is how it is. However, that is not how it
is. The legal rules define what we may call u2018the legal institution
of marriage', but they do not, and cannot, define the institution
of marriage, which is not a legal institution at all. Let me try
to make this clear by recounting a few things about my own marriage.

a sense, I got married twice…on the same day and to the same woman.
That is to say, we went through two ceremonies. In the morning we
were married in church and a couple of hours later we were married
legally in city hall. At first that seemed like an unnecessary duplication
because much of the ceremony in the city hall was a replay of what
had happened in the church. In fact, it took me a number of years
to find out that the two events were quite different and, in particular,
that the church wedding was not just a superfluous embellishment
for the sake of tradition. As a non-believer I did not see the point
of a church wedding but my future father-in-law insisted on it.
u2018Paris vaut bien une messe.' Eventually, the church wedding –
simple as it was: just a few relatives and friends in a small wooden
church – proved far more significant than the ceremony in the
richly adorned Renaissance city hall of my hometown.

led me to distinguish the meanings of my two marriages was the experience
that the legislators were constantly tinkering with the rules that
defined the legal institution of marriage as well as with the many
other rules that attached legal consequences of one sort or another
to being legally married. Fiscal rules, rules about social security,
financial liability, the status and care of children, inheritance,
divorce, and many other things – all of these have changed dramatically,
and some of them repeatedly, since the time we were married. It
gradually dawned on me that I had given a blank cheque to a bunch
of politicians – some of whom were not even born at the time – to interfere
ad libitum with my marriage. What made the realisation so galling
was the fact that I had walked into the trap blindly, but with open
eyes. Had I not freely consented to legally marry my wife, even
if my consent had been less than well informed about the legal repercussions?
In going through the wedding ceremony in city hall I was presumed
to have said yes not just to my wife but also to the State. Moreover,
in that apparent ménage à trois the State obviously
was the dominant partner. It made the rules without consulting either
of us. But that was not all. Over the years it made it ever easier
for me to divorce my wife and for her to divorce me but it did not
make it easier to divorce myself from the State. To put it bluntly,
I unwittingly had married the State while, legally, my liaison to
my wife was little more than an easily revocable contract of cohabitation.

as far as my wife and I were concerned, our legal marriage was no
more than a permanent reminder of our subjection to the powers that
be. Eventually it turned out that I just as well might have married
a man. In due time, some political genius no doubt will make the
argument that the legal prohibitions of bigamy and polygamy/polyandry
are evidence of unconscionable discrimination – and then it will not
be long before the truly enlightened discover that the human rights
of animal lovers are not respected until they are legally authorised
to marry their precious pets. Maybe that will not happen during
my lifetime, but who is taking bets?

for us, the substance of our marriage was not to be derived from
the ceremony in city hall but from our other wedding, the one in
the church. That was the wedding where my wife and I exchanged vows
to stand by one another, in good times and in bad, for the rest
of our lives, and to raise the children we intended to bring into
the world to the best of our abilities. We exchanged these vows
in the presence of a priest who witnessed them, declared them valid
and binding, and blessed us. Thus we were married in the
Church, not to the Church. To this day the Church has not
informed us that it has changed either the meaning of marriage or
any of the responsibilities and obligations that it entails.

wedding was a momentous occasion. It required absolute seriousness
of purpose and resolve, not just a desire to have a public record
of one's love, affection, infatuation or other sentiment or interest,
however fleeting it might turn out to be. It implied unconditional
commitment and dedication to the extent that the failings and shortcomings
of one spouse would not eo ipso free the other from his or
her obligations. Unlike the legal wedding, it did not come with
a string of escape clauses that effectively would have nullified
the meaning of the commitment that we were ready to undertake. In
a word, it inaugurated a true marriage; a bond, founded in the intention
to raise a family, that was not meant to be broken, come what may.

day – it was in the late sixties; I was still a student then
– I was travelling by train to Ostend to catch the ferry to
Dover, in England. Sitting opposite to me there was an Englishman
in his thirties. He obviously was eager to talk. He asked me what
I did in life and, when he heard that I was completing my studies,
what my field of study was. "Philosophy of law? Well, I do
not know anything about that. Give me an example of a problem that
would be of interest to a philosopher of law." I did not want
to get into anything technical, so I said: "Don't you think
it is curious that the same people who insist that one spouse should
be able dissolve a marriage on his or her simple demand also insist
that it should be almost impossible for an employer to terminate
the labour contract of any one of his workers?" He gave me
a rather disdainful look. "I see." Then he folded open
his newspaper and hid behind it for the rest of the journey.

the commonest mistaken idea about marriage is that it is a contract.
It is not; it is an institution. One may enter into it as it is,
or stay out of it, if one cannot muster the strength to assume the
responsibilities and obligations it imposes. However, one cannot
modify, or agree to modify, those responsibilities and obligations
to satisfy one's own preferences, desires or interests. This is
as true for a real marriage as it is for its legal parody. Obviously,
once there is a marriage one needs to make all kinds of practical
arrangements by means of more or less explicit contracts or reliance
on more or less prevalent customs. However, these arrangements are
incidental to the marriage; they are not the marriage itself. In
fact, to the extent that there is freedom of contract, the contracts
incidental to marriage as a rule are available to those who want
to live together without the commitments, responsibilities and obligations
of marriage.

inanity of the legal marriage in the Western world today is that
it has very nearly become, as Shaw predicted, u2018no more onerous nor
irrevocable than any ordinary commercial deed of partnership' –
a prediction that already erroneously presupposes that marriage
is a contractual arrangement. In a purely formal sense, to be sure,
the legal marriage still is an institution that one can enter into
u2018as it is'. However, no one can know how long it will remain u2018as
it is' while everybody can know that at any moment it will be what
the ruling opinion (the opinion of the rulers) declares it to be.
Thus, in entering into that institution, one commits oneself to
nothing more definite than obedience to whoever rises to power in
the State. Apart from that, the legal marriage is no more than a
nexus of incidental revocable contracts. It is not a marriage at

was not always that way. The legal marriage started out as the secular
authorities' formal recognition of the act of marrying – an act over
which they had no jurisdiction, no legislative power. That recognition
was a prelude to the State's involvement in enforcing the obligations
of marriage, but it did not immediately challenge the pre-eminence
of the Church in matters relating to marriage. At some time, however,
the enlightened decided that the State could serve as well as the
Church as the guardian of the institution of marriage. The legal
wedding ceremony, witnessed by a representative of the State, was
set up as an alternative point of entry to the institution of marriage,
then promoted to an essential condition for the legal recognition
of marriage. In the process, in many countries, the Church lost
its role as the guardian of the institution of marriage. Church
weddings, now devoid of any legal significance, became a ceremonial
sideshow in which the priest merely is a hired extra, no longer
a witness to the seriousness of purpose without which the event
becomes a lark, if not a farce. Under those circumstances the vows
of marriage are merely private declarations of intention, implying
virtually no commitment that one could not simply repudiate or contractually

course, unlike the Church, which regards human affairs u2018in the light
of eternity', the State is only the organisation of prevailing ruling
interests. Whatever it touches is transformed into a means for gratifying
those interests. Marriage is no exception. To the extent that marriage
became an institution defined by the laws of the State it ceased
to be marriage in the true sense of the word. Its substance was
altered beyond recognition while its shadow took its name.

of that happened long before the issue of homosexual marriages cropped
up. So, why is there all this brouhaha about homosexual marriages?
Homosexuals can, as they always could, vow to be eternally faithful
to one another. They can, as they always could, make contractual
arrangements that are not substantially different from those that
married couples would make. All they have gained is the legal permission
to participate in a state-organised arrangement that for them is
as devoid of the content of marriage as it has been for heterosexual
couples for some time now.

a victory that is! But it is not a victory for the homosexuals.
The victors are those pragmatic revolutionists, the likes of G.B.
Shaw, whose goal always was the destruction of the institution of
marriage, even if this was to be accomplished by making the name
universally available on simple demand.

true marriage entails irrevocable commitments and obligations from
one person to another that override the claims of that abstract,
anonymous Society into which our enlightened progressive revolutionists
like to project their visions of power and perfectibility. Above
all, a true marriage implies that children are born to the personal
union of their parents and not to that political union of society,
the State.

the enlightened progressives, all of that is anathema. Their ultimate
goal never was just the socialisation of the means of material production;
it always was the socialisation of human persons, the creation of
a New Man, no longer an independent natural person among his likes
but a dependable social resource, an anthropomorphic machine with
an operating system defined by his social superiors.

these progressives, the fear of God is an abomination because they
sense that, shorn of all dogmatic adornments and mythological trappings,
the primary meaning of God is u2018no man' – while the fear of other men
is precisely what drives the progressive mindset. Hence comes their
urge to deny others their otherness, their right of being an independent
source of action. Hence come their desire to bring everything human
under control and their fascination with genetic manipulation and
its distant promise of a made-to-order mankind that, purged of anything
unpredictable, will be able to enjoy its future in the present.
Short of the fulfilment of that promise, our enlightened progressives
can only hope to further erode the substance of personal life and
the institutions that express and enable it.

strategy is simple. It starts from two observations: 1) The capacity
and the willingness to undertake one's own commitments and obligations
are what makes one a free person in the first place; 2) Those personal
commitments and obligations are sometimes irrevocable and always
more or less onerous. Hence it is imperative, and should be relatively
easy, to make people believe that an onerous freedom is no freedom
at all and that they are entitled to a u2018truly free' life, one that
is free from commitments and obligations and the costs they entail – a
sort of extended adolescence in which one can do whatever one wants
while Society, acting in loco parentis, picks up the tab.
As in the case of marriage, the confidence of the public in the
stability of the name makes it all the easier to alter the substance
of freedom. Good thinking, G.B.!

12, 2005

van Dun [send him mail]
teaches philosophy of law at the Universities of Ghent (B.) and
Maastricht (Nl.).

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