I. The law needs love: marriage as the actualization of freedom

In the introduction to Outlines of the Philosophy of Right, Hegel articulates his theory of freedom, wherein he examines the nature of the will. He posits: ‘The will is free, so that freedom is both its substance and its goal, while the system of right is the realm of freedom made actual, the world of spirit [Geist] brought forth out of itself as a second nature’ (PR: §4, 31, §26, 44). The will constitutes the embodiment of free self-consciousness; this implies that the agent possesses the capacity to pursue her objectives, make decisions and undertake actions in accordance with the goals she has established for herself, thereby acting independently and autonomously. Freedom encompasses recognition and compliance with the normative principles that an individual establishes as second nature. ‘Freedom of the will […] constitutes the concept or substantiality of the will, its weight, so to speak, just as weight constitutes the substantiality of a body’ (PR: §7, 34). Hence, freedom is not simply the absence of constraints or the capability to act upon one’s desires; it is a process of self-determination and realization. It entails the actualization of one’s own will within the framework of a community.

Hegel further elaborates on this concept in the initial section of Ethical Life (Sittlichkeit), wherein the will achieves its most concrete actualization: ‘ethical life is the concept of freedom developed into the existing world and the nature of self-consciousness’ (PR: §142, 137). In Ethical Life, the collective will is regarded as free when it is actualized through concrete and comprehensive self-conscious practices and relationships, which encompass social relations and institutions (PR: §144, 137). The family,Footnote ⁴ which includes the marital relationship, the natural and social reproduction of offspring, property, education, and its dissolution, fulfils individual and collective freedom to the extent that it is integrated within a prevailing social order (PR: §153, 142). This order socializes the immediate and natural relations into more intricate and mediated forms of organization.

The family serves as the primary sphere of this complex entity, where individual identity relies on one’s membership in the household’s unity. ‘The family, as the immediate substantiality of spirit, is specifically characterised by love, which is spirit’s feeling of its own unity’ (PR: §158, 144). This initial and immediate connection fundamentally shapes our collective identity in a manner distinct from citizenship or political engagement. It embodies a temporal and spatial setting defined by coexistence and collaboration, whereas civil society and the state are marked by competition and conflict. ‘Hence, in a family, one’s disposition is to have self-consciousness of one’s individuality within this unity as the essentiality that has being in and for itself, with the result that one is in it not as an independent person but as a member’ (PR: §158, 144). Membership in this community requires mutual recognition among its affiliates. The family fosters lasting connections where individuals recognize each other as unique through love. It embodies a shared identity that transcends any individual, serving as a space where property-owning individuals can emerge and thrive (Hutchings Reference Hutchings and James2017).

According to Hegel, the ideal family comprises a married couple with children, property and assets. He describes marriage as ‘the immediate ethical relationship’, emphasizing its significance as a bond of love, ‘characterised as rightfully ethical [rechtlich sittliche] love, and this eliminates from marriage the transient, fickle, and purely subjective aspects of love’ (PR: §161A, 145). Hegel delineates four historical concepts of love: 1) ‘feeling’, 2) ‘ethical life in the form of something natural’, 3) ‘the consciousness of [one’s] unity with another’, and 4) ‘the most tremendous contradiction’ (PR: §§158–58A, 144). Moreover, he correlates these four definitions of love with four distinct definitions of matrimony: 1) ‘physical side or natural character’ or ‘a sexual relationship’, 2) ‘civil contract’, 3) ‘love as a feeling’, and 4) ‘rightfully ethical [rechtlich sittliche] love’ (PR: §161A, 145).

Through the definitions provided, Hegel establishes the foundational concepts for his descriptive analysis of modern bourgeois marriageFootnote ⁵ and its normative ethical ideal while identifying his adversaries. Love is first associated with ‘the moment of natural life’, a concept that can be linked to natural law theories. These theories underscore the significance of sexual reproduction and the fulfilment of inherent biological needs. The second aspect pertains to the conception of love as an emotion, associated with the romantic perspective presented by Schlegel in his work, Lucinde, or the state of being in love (PR: §164, 147). The third refers to the civil contract in Kant’s Metaphysics of Morals (PR: §§161–61A, 145). The fourth elucidates Hegel’s theory, which encompasses these three moments in a permanent tension. According to Hegel, the subjective aspect of marriage originates from the immediacy of the particular inclinations of two individuals, characterized by attraction, desire and sexual drive, as well as the experience of love (PR: §162, 145). Its objective source lies in the voluntary agreement of two independent individuals whose mutual choice transforms them into a single legal entity. This conversion involves the relinquishment of the fleeting and variable nature of sexual attraction, the submission of their individual wills, and the acceptance of collective identity within the civil contract and the wedding ceremony (PR: §161, 145). Only through self-restraint of their subjective individuality can individuals liberate themselves (PR: §162, 164), for only then can they attain an objective ethical union and self-conscious love (PR: §161, 145). Following this reasoning, Hegel asserts that marriage constitutes an ‘ethical duty’ and represents the primary form of belonging and communal existence (PR: §162R, 145). Marriage, defined as ‘the immediate ethical relationship’, encompasses the moment of natural life,Footnote ⁶ particularly human sexual reproduction, and a spiritual union that embodies freedom and ethical unification through self-conscious love (PR: §161, 145). One of the strengths of Hegel’s theory is his extensive analysis of love and marriage, which emphasizes the importance of sensitivity and emotions. He recognizes that one of the most fundamental attachments is the sexual drive and desire. For him, most marriages initiate at this level; however, if the relationship remains solely at the physical dimension or natural disposition, as many systems of natural law suggest, marriage persists in its ‘crude’ and least developed form. This type of union is primarily a physical relationship aimed solely at procreation and pleasure. Although Hegel accepts this dimension, he believes the couple’s connection should not be based solely on necessity. The human urge to connect with others, which forms the basis for establishing partnerships, must be differentiated from the instinct to mate and fulfil that desire (PR: §19R, 40).

The distinction between marriage and concubinage lies in the fact that the latter primarily fulfils a natural desire, whereas, in marriage, such satisfaction is secondary (PR: §163A, 146). The ethical obligation of marriage prevents us from entering relationships solely to meet specific sexual desires or for the immediate gratification of sexual intercourse.Footnote ⁷ To prevent arbitrary behaviour or a lack of control over our actions, sexual impulses should not dictate our interactions with others. When a sexual relationship is not based on mutual consent, it devolves into abuse or violence, as it reduces individuals to mere instruments.

Hegel also dismisses the romantic notion of love—the intense attachment that comes with being in love—as the sole basis for marriage. For him, passion is contingent (PR: §162R, 145) and a fleeting particular whim (PR: §163, 146). Given their inherently fluctuating and potentially transient nature, emotions cannot be a foundation for marriage. Individuals may experience a cessation of love for one another in the same manner as they initially fall in love; emotions are inherently unstable. Being in love entails a conditional relationship with the object of affection. Therefore, if marriage is predicated upon an emotional state, it risks being diminished, at best, to a mere internal attachment and, at worst, serving as an impediment to a more ethical form of love. Hegel challenges Schlegel’s understanding of love and marriage in his Lucinde, which directly criticizes bourgeois conventional sexual ethics and middle-class decorum. In this work, Schlegel criticizes loveless marriage, labelling it as a mere form of concubinage. He argues that it promotes the superficiality and ritualism of the marriage ceremony. In contrast, he views love as a deep, passionate connection between two individuals (Daub Reference Daub2012). Hegel argues that Lucinde reduces love to merely sensuous desire and subjective feeling, overlooking the essential social and material aspects of its development within institutions. In contrast to Schlegel, Hegel asserts that the ceremony plays a fundamental role in establishing the family unit. By entering into this significant association, the solemn declaration of consent by the involved parties facilitates social recognition from the broader community. It represents the formal completion and actuality of marriage (PR: §164, 147), as social recognition is the primary means of objectifying intrinsic dispositions.Footnote ⁸ The spiritualization, or socialization, of the natural connection is not solely an internal process; instead, it is expressed externally through ceremonial practices. For Hegel, the wedding ceremony goes beyond a mere ritual. Within it lies the ethical core of marriage: as an act that binds the couple, it is a performative act. This signifies that the civil declaration of mutual consent serves as a speech act through which the couple forges an ethical bond and enables a new identity. By declaring ‘I do’, a man assumes the role of a husband, and a woman assumes the role of a wife (Pateman Reference Pateman, Mills and F1996: 219). This proclamation transforms them into a married couple, establishing a lasting and exclusive bond. The social function of the ceremony must not be conflated with the ‘civil requirement’ of the civil contract. In such an instance, the purely legal act would compel the couple, who are in love, to assign a quantitative value to the formal ceremony, thereby reducing love to a mere procedural formality that forces the parties to relinquish their autonomy in favour of exchange relations or mutual subordination to each other’s needs (PR: §164, 147).

For Hegel, marriage also transcends the contract; he claims: ‘to subsume marriage under the concept of contract is thus quite impossible; this subsumption—though shameful is the only word for it—is propounded in Kant’s Doctrine of Right’ (PR: §75R, 78). For Kant, marriage is a contractual ‘union of two persons of different sexes for lifelong possession of each other’s sexual attributes’ (MS: §24, 277) that can only be considered morally acceptable in accordance with the formula of humanity. The sole means to uphold the right of humanity and its mutual respect entails ‘that while one person is acquired by the other as if it were a thing, the one who is acquired acquires the other in turn; for in this way each reclaims itself and restores its personality’ (MS: §25, 278). Kant ensures the morality of this relationship by requiring that each individual willingly consents to utilize the other’s sexual attributes for mutual benefit, thus preventing objectification. Hence, ‘a marriage is a relation of equality, equality both in their possession of each other as persons […], and also equality in their possession of material goods’ (MS: §26, 278).

Hegel considers this type of association and interaction to be similar to the transactions between individuals managing a business; it represents a relationship based exclusively on convenience (PR: §79, 80, §164, 147). He depicts Kant’s juridical conception of marriage as cruel, a relation in which ‘the parties are bound by a contract of mutual caprice, and marriage is thus degraded to the level of reciprocal use governed by contract’ (PR: §161A, 145). In a contract, the parties involved are considered self-sufficient individuals, and the agreement established sets the conditions governing the exchange between two or more independent individuals. In this form of association, each individual retains their abstract (or negative) freedom, which is defined as the ability to make choices without constraints. This includes the arbitrary will to select options at their discretion, analogous to the process observed in the exchange of commodities. This relationship remains immediate and external, as it aligns the parties with a shared intention and establishes the interaction conditions, yet it does not truly unify them.

Kant and Hegel agree that human sexual exchange should go beyond mere inclination, making it resistant to individuals’ instrumentalization (i.e., objectification, commodification, etc.). The contract sets clear boundaries regarding the use and exploitation of sexual attributes and practices, thus protecting the individuals involved. As a result, according to Kant’s definition, marriage can only take place between individuals who are capable of granting and receiving explicit consent through a contract aimed at mutual benefit involving the provision of sexual services. If either party were coerced or forced into marriage, it would violate the principles of a free union and a free relationship.Footnote ⁹

However, from Hegel’s perspective, conceiving marriage as a private contract intended for the provision of sexual services diminishes its significance, reducing it to a form of sexual commerce governed by positive law. This viewpoint undermines both the subjective dimension of emotional experience and the objective social and institutional aspects of love, relegating them to nothing more than a regulated sexual exchange. What Hegel opposes is Kant’s reduction of marriage to a sexual transaction defined by the contract. The distinction between the Kantian and natural law models lies in Kant’s regulation and safeguarding of the maximization of mutual benefit while simultaneously preventing the mutual instrumentalization of individuals. For Hegel, this alone is insufficient, for the establishment of a singular negative principle (a limit) hinders the creation of an ethical unity rooted in an ethical and self-conscious commitment. For him, the marriage contract represents only one aspect of the overarching institution of marriage, which should ultimately promote familial integration; thus, it should be regarded as an arrangement that can no longer be viewed merely as a legal procedure among autonomous and self-reliant individuals (PR: §163, 146).

Here, Hegel asserts that a loving relationship is crucial for fostering a profound connection and a lasting commitment. This connection enables individuals to set aside their personal interests or self-centred views and collaboratively construct a new legal and ethical identity together. It is no longer two separate individuals but a collective entity with shared life goals, children, property and assets. The family signifies more than merely a collection of individuals; it functions as a shared environment and timeframe that nurtures singular individualityFootnote ¹⁰ and unique identities, which are fundamental for legal and political recognition. Marriage and family provide future members with the capacity to manage and develop shared assets, allowing them to participate in civil society as independent agents capable of buying and selling goods and services in the market while also holding full political rights and responsibilities within the political sphere. Spouses and parental relationships constitute the initial experience of engaging in collaborative endeavours with others. Otherwise, marriage would hold no precedence over other relationships, such as friendship, in establishing the foundation of modern society.Footnote ¹¹ The primary distinction between Kant and Hegel is that, according to Kant, marriage is a moral obligation necessary for responsible sexual relations. In contrast, Hegel views it as a civic responsibility essential for social recognition and political engagement (Lazos Ochoa Reference Lazos Ochoa2024).Footnote ¹²

Consequently, for Hegel, social institutions established by the contract cannot attain freedom without the intrinsic ethical commitment of the parties involved. Marriage transcends a mere legal contract between independent individuals, delineating the parameters of their interaction (PR: §163, 146). Marriage and family represent both a subjective and objective relationship that thrives when spouses and children view themselves as more than mere legal personalities (Loick Reference Loick2014: 940). Familial relationships are constituted by affective and ethical bonds shaped by self-conscious love. Marriage constitutes a unique contractual agreement wherein the two parties obligate themselves to relinquish their inherent (or negative) freedom and independence, thereby subordinating their natural impulses (such as passion and individual whims) to ‘the level of a natural moment destined to be extinguished in its very satisfaction’ (PR: §163, 146). In the inverse movement, the spiritual or social bond of marriage ascends, attaining a heightened state of unity that is ‘indissoluble in itself’, transcending the nature of a mere contractual relationship. Marriage ‘is precisely a contract to transcend the standpoint of contract’ (PR: §163, 146).

Hegel’s overarching criticism of the civil contract of marriage is that any community defined primarily through legal principles overlooks or undermines the ethical foundations of individual subjectivity and intersubjectivity. For Hegel, the predominance of the legal domain becomes concerning when it suppresses other constitutive forms of intersubjective relations (Loick Reference Loick2014: 949). The core of family and marriage is weakened by an excessive focus on legal codes that only address the sexual or passionate aspects, stripping away their ethical significance. The legal aspect of the contract replaces the internal commitment of romantic love with an external law, which is also insufficient. If social relationships and practices can achieve and realize freedom, another element must connect and unite individuals beyond external laws or internal emotions. Thus, the contract needs ethical and self-conscious love.

II. Love needs the law: the paradox of marriage

Hegel’s rejection of the contractual theory of marriage is fundamentally linked to his critique of natural law theories and the romantic concept of love. In the institution of marriage, the inherent sexual reproductive drive, the mutual desire for one another and the fervour of infatuation are manifestly immediate and external. Marriage is an ethical bond formed by the union of two individuals into a single will. This union transcends individual self-interest, fostering a collective ethical existence within the familial structure through progeny and shared assets (PR: §161, 145). Moreover, marriage is rooted in love; it elevates the couple beyond the arbitrariness of contractual agreements (PR: §163, 146). For Hegel, love is our most fundamental relationship with others. This relationship begins from an external connection driven by sexual urge and desire, later transforming into a deep bond characterized by passion and intimacy. However, a love relationship only evolves into an ethical connection when the couple comes together in a sustained self-conscious love (PR: §158A, 144).

Hegel describes a profound bond characterized by a loving unity, where both individuals actively desire and commit to each other, to a shared life and collective identity. Yet, ethical love contains an inherent contradiction. ‘Love […] is the most tremendous contradiction; the understanding cannot resolve it since there is nothing more stubborn than this point [Punktualität] of self-consciousness which is negated and which nevertheless I ought to possess as affirmative’ (PR: §158A, 144). Hegel conceptualizes this reciprocal relationship in terms of (re)cognition. Ethical love constitutes a way of recognizing the distinct individuality of oneself, another person and their relationship. When I engage in ethical love towards another individual, it is their unique individuality that I genuinely appreciate. Ethical love integrates these distinct components, resulting in a novel entity—the loving couple—and a new community. Self-conscious love cultivates a unique bond, irreducible to any of its components, that did not exist previously (Novakovic Reference Heisenbergforthcoming: 34).

The contradiction within love arises from the tension between singular individuality and the achieved indissoluble unity.Footnote ¹³ The contradiction stems from the lovers’ initial desire to merge their identities with one another. Yet, despite their wishes, they find that their relationship enhances their individuality. Furthermore, unification presumes the separation of the elements to be united and, at the same time, entails overcoming and maintaining their separation. Ethical love generates and reconciles this contradiction, for what may be perceived as self-restriction is, in fact, their liberation; ‘because in it they attain their substantial self-consciousness’ (PR: §162, 145). The gap between annihilation and enrichment can only be bridged through mutual (re)cognition. Each partner recognizes the other as both an independent individual and a fundamental part of their shared life. Each individual achieves a more profound sense of unity with the other, while simultaneously gaining an awareness of their own independence. Marriage provides insight into the relationship between differentiation and particularity required by civil society, as well as the unity and universality needed for state membership (Pateman Reference Pateman, Mills and F1996: 214).

Furthermore, ethical love includes self-consciousness. Love, as an emotional and embodied experience, is characterized by sexual drive, desire, passion and the feeling of being in love. It is the ‘spirit’s feeling of its own unity’ (PR: §158, 44), indicating that love encompasses both an affective and cognitive experience of this unity. The cognitiveFootnote ¹⁴ aspect of love is crucial for developing human consciousness. Self-conscious love fosters self-knowledge mediated by the knowledge of the other and, at the same time, cultivates an awareness of oneself as inherently linked to other individual(s). In this state of interconnectedness, I acknowledge the other as a distinct individual with whom I share a relationship. Hence, my affection for another is concurrently an expression of love for the bond that unites us. In this sense, love relationships are a cognitive process of self- and collective knowledge. Knowing myself involves being aware of the transforming nature of relationships and making a deliberate commitment to integrate this awareness into my self-identity and life.

Hegel’s core argument for the appropriateness of marriage (husband and wife) and family (parents and children) to actualize freedom relies on his assertion that these relationships are the first significant affective and cognitive experiences of freedom made actual. The Outlines lead us from an abstract, deficient and nascent individual will to a concrete, comprehensive and developed collective will. Freedom is characterized by the absence of arbitrariness and contingency, as well as by practices and relations that are self-determined, autonomous and self-conscious. For Hegel, ethical and self-conscious love actualizes freedom only when the loving relationship achieves unity beyond the mere satisfaction of physical urges and mutual desire and realizes social relations and institutions. The couple’s unity involves giving up individual self-sufficiency and self-interest for a shared life and common identity, elevating the fleeting nature of infatuated passion into a lasting bond embodied in children and assets. Additionally, it transforms the emptiness and abstraction of contractual agreements defined by the capacity to make choices (abstract freedom) and consent into a binding relationship rooted in ethical and self-conscious commitment (concrete freedom), achieved in relationships with others.

Love is a concrete and inclusive experience fully realized through social practices and institutions. For Hegel, it encompasses the marriage contract, the wedding ceremony, procreation, property and assets, children’s education, the dissolution of the family, and its reproduction in subsequent generations. The originality of his arguments stems from his dedication to articulating a more complex theory that integrates all the elements examined by his contemporaries (PR: §164R, 147). Hegel articulates his ideal notion of marriage in at least two claims: first, marriage transcends the standpoint of the natural inclination to achieve self-consciousness by sublating the capricious and contingent sensory and emotional attachments of corporeality and emotion into a cognitive experience of self- and collective knowledge. Second, marriage also supersedes the legal viewpoint into the ethical realm, moving beyond the formality and abstraction of consent to establish a lasting commitment rooted in reciprocity and recognition (PR: §176, 154). Hegel’s normative notion of marriage offers a deeper insight than natural law, romanticism and contract theory, as it shows the fundamental role of love and the constraints of law in actualizing freedom.

However, does this imply that rightfully ethical and self-conscious love does not necessitate the law? Although Hegel upholds the family’s origin in the marriage contract as a fundamental institution grounding modern society, he dismisses nearly any additional role for the contract within the family. He attributes too little importance to the law and its institutions. Hegel’s sublation of the marriage contract into the love commitment shows itself to be the suspension of the law to secure the rights of only one party over the other, leading to the foreclosure of the conditions of freedom for women. Marriage, conceived as an agreement that transcends the standpoint of the contract to embrace ethical and self-conscious love, fosters a type of inequality that establishes a hierarchy that threatens freedom.

On the one hand, by recognizing that women must enter into the marriage contract to be part of the free social order, Hegel acknowledges their equality and rationality. According to Kant and Hegel, a social order is deemed universally free when all (contracting) parties possess equal status. Excluding any member undermines the order’s legitimacy, as legal relationships are crucial for individual freedom. Contractual relations are a fundamental aspect of a legitimate society, as they safeguard the individual’s right to self-determination and facilitate mutual recognition. Hegel required the contract to ensure the freedom of choice that underlies marriage and the family. If either party were coerced or forced, their union could not stand for a free relationship and ethical commitment. However, in contrast to Kant, Hegel has also shown that the law is insufficient if it remains an abstract principle that regulates practices and relations externally. Hegel demonstrates that contractual relationships and the capacity of choice are indispensable for individual freedom, yet they are insufficient to achieve collective freedom. He contends that positive law alone cannot sufficiently ensure social coexistence, as it fails to establish profound and stable relationships.

Furthermore, social relations cannot persist when based solely on contractual agreements, which depend on the self-interested and self-centred motives of individuals seeking to maximize their own profits and interests. Hegel’s alignment with social contract theories extends to the acknowledgement that social institutions possess legitimacy solely when they foster individual freedom of choice. However, Hegel’s conception of an ethical order suggests a more ambitious notion of social freedom that transcends the individualistic, purely self-interested agent into a more enduring voluntary commitment beyond mere temporal and conditioned agreements. Therefore, to prevent the dominance of abstract law over ethical relations, he advocates for binding relationships grounded not only in the respect for positive law but also in the mutual (re)cognition of one another (ethical ground), which, at this stage, is realized as love. By demonstrating the limitations inherent in the contract, Hegel aims to establish a more fundamental, broad and enduring form of association to guide and secure social interactions within familial relationships. In the broader context of the Outlines, family life serves as a crucial foundation, both at the affective and cognitive level, for subsequent stable and enduring economic interactions in civil society and political participation in the state.

However, on the other hand, by rescinding the contract and proposing to overcome it, Hegel subtly introduces an unequal relationship that guarantees its unification based on a hierarchy. In contrast to his normative ideal of love and freedom, Hegel connects a (presumed) descriptive conception of modern bourgeois marriage with a (presumed) descriptive conception of conjugal love. These idealized notions involve subordinating one of its members’ individuality and legal personality to an overarching unity established upon a hierarchy derived from an alleged natural sexual difference.Footnote ¹⁵ Hegel’s concept of marital love presupposes a natural sexual difference that leads to sexually differentiated human capacities (PR: §165, 148). In this sense, Hegel aligns with Kant’s argument, which affirms the authority of ‘the law to say of the husband’s relation to the wife, he is to be your master […] This cannot be regarded as conflicting with the natural equality of a couple if this dominance is based only on the natural superiority of the husband’ (MS: §26, 279). The distinction between the male sex, which is autonomous and capable of conceptual thinking and purposeful agency (referred to as free universality), and the othered sex, whose knowledge and will are restrained to the realm of opinion, inclination and emotion (designated as concrete individuality) led Hegel to conceive of the couple as an unequal yet complementary unity (PR: §§166R–166A, 148). This gendered dichotomy of social positions and roles reinforces stereotypes that portray women as inherently emotional and men as rational. Men, or husbands, derive their life purpose from professional and political engagement. In contrast, women, or wives, discover their vocation within the family, as they are naturally more suited for caregiving roles and deemed unsuitable for the public arena (PR: §166, 148). Therefore, by denying women’s participation in public and intellectual life, they are relegated to a position of dependence on men.

According to Kant and Hegel, women possess legal identities that enable them to consent to marriage; however, following the (assumed) given natural order, they must relinquish their ability to consent. Hegel not only fails to acknowledge women’s ability to engage in legal relations and possess rights beyond the limits of the marriage contract and the family, but he ultimately concludes that women’s agency and personality must be confined to the household. Moreover, women’s identities are primarily defined through their familial relationships with men, specifically as wives, mothers and daughters. In contrast, men’s identities are associated with their roles as husbands and sons, as well as market actors and citizens. Through this separation and hierarchical structure, the husband attains additional rights, including the exclusive privilege to serve as the sole representative of the family, to exercise control over the family’s property, to bestow his surname upon the children, and to sever his wife’s ties with her family of origin (PR: §171, 151).

Hegel’s views on a natural sexual difference and women’s social roles contradict his original assignment of civil personality and modern agency to women. Although, for him, the family is perceived not as a natural association but rather as an ethical (social) one, the sexual difference nonetheless plays a significant role in his account of how men and women assume unequal social positions (roles) and disparate distribution of reproductive and emotional labour within the institution of marriage and the family (Hutchings Reference Hutchings and James2017: 105). More significant to the current argument is the connection between his rejection of contractual relations and the role he assigns to love within the family sphere. In an attempt to establish the boundaries of the law and the contract, Hegel takes a disruptive, argumentative step by conflating his normative ideal of love with his (presumed) descriptive concept of conjugal love characterized by a (presumed) natural sexual difference. The suspension of the law and the merging of self-conscious ethical love with conjugal love creates an unequal and hierarchical relationship that the contract aims to prevent. The emphasis on the complementary and harmonious unit based on love conceals the unequal distribution of labour, resources and power within marriage. Conjugal love, as idealized by Hegel, justifies women’s subordination within marriage and the family by depicting their disadvantages as part of a higher ethical unity. Gender roles and the sexual division of labour disproportionately burden women, who have historically been expected to prioritize familial and marital duties over their desires and ambitions. Furthermore, conjugal love reinforces the expectation that women should bear the emotional burden of nurturing relationships and family life. In this way, Hegel aligns with Kant by asserting the intrinsic link between the (assumed) natural sexual difference and the genderedFootnote ¹⁶ division of roles, identities, spaces and labour. In contrast to Kant, Hegel’s early dismissal of the contract sets him on a challenging journey, driving him to reintegrate the law and acknowledge the importance of the contract, as evidenced by the institution of divorce.

Marriage carries the spectre of divorce, and Hegel is aware and (surprisingly) receptive to it. For him, divorce is considered justifiable when the marriage has ceased to embody the ethical ideal it represents. Termination occurs when mutual affection has been irreparably lost and the ethical foundation of the marriage is no longer present. The end of a marriage is an unfortunate possibility arising from its emotional and needs-based foundation, which can become unstable over time (PR: §163A, 146). Hegel acknowledges that the affection between husband and wife can diminish over time, potentially leading to the dissolution of their bond and estrangement. The termination of marriageFootnote ¹⁷ constitutes more than merely a private matter; Hegel contests the idea that individuals should be allowed to divorce solely due to a diminishing desire to maintain the marital union. Instead, divorce should be regarded as the culmination of the erosion of the ethical foundation that grounds a relationship. Consequently, divorce is understood as the failure to uphold the ethical unity that marriage ideally represents. Whether this failure arises from internal conflicts, a loss of love, or external circumstances that disrupt the relationship, it remains unclear how a couple whose commitment and unity are rooted in affective and (re)cognition can fall apart within Hegel’s framework.Footnote ¹⁸ However, for the purposes of this argument, the central issue at hand is the role of divorce in the (dis)solution of marriage from a legal perspective. How is the law reintroduced in marriage once the perspective of the contract has been superseded by ethical and self-conscious love? What functions does the contract serve at this stage?

For Hegel, marriage is an ethical relationship regulated by a normative ideal of love that ensures its stability and continuity; however, love does not provide the mechanism for its annulment when necessary. Divorce, as a legal process, is a means for society to recognize the breakdown of a marriage officially. The re-establishment of the law within marriage reflects the features of a contract, acknowledging the legal standing of the individuals involved and thereby empowering them with the same capacity for consent through which they entered the marital union. Hegel states: ‘There can be no compulsion on people to marry; and, on the other hand, there is no merely legal or positive bond which can hold the parties together once their dispositions and actions have become hostile and contrary’ (PR: §176, 180). In principle, a divorce contract is a legally binding agreement that parties enter into to terminate their marriage based on mutual consent. It seeks to establish the legal status of its members, enabling parties to agree on exit terms, including the division of assets.

Hegel also acknowledges the importance of marriage settlements, particularly focusing on inheritance rights, which are designed to ensure the continuity of property and wealth within a family. When a marriage ends, and divorce proceedings begin, the legal and financial arrangements established during the marriage are designed to protect the family’s economic stability and reduce disputes over property and assets during the separation. Hegel states: ‘The significance of marriage settlements which impose a restriction on the couple’s common ownership of their goods, of arrangements to secure continued legal assistance for the woman, and so forth’ (PR: §172, 177). These legal protections play a crucial role in managing marriage resolutions, ensuring fairness and protecting the rights of all parties involved, especially during divorce proceedings. Marriage settlements formalize property arrangements, safeguarding the family’s property and inheritance rights.

Up to this point, Hegel’s reinstatement of the law seems to protect individual rights within the family, including those of wives. Nonetheless, it comes with significant restrictions. Individuals cannot make decisions independently in the event of a divorce; instead, such decisions should be made by an impartial and institutionally authorized third party, an ‘ethical authority’, such as the ‘church or the court’ (PR: §176A, 180). Hegel claims: ‘Legislators, however, must make its dissolution as difficult as possible and uphold the right of the ethical order against caprice’ (PR: §163A, 176). Thus, the central role of social and political institutions in regulating marriage is to foster the stability and continuity of families and society. Consequently, even if women are, in principle, allowed to initiate divorce proceedings, which would restore their ‘sublated’ individual identity, such permission would not be granted out of respect for their autonomy or recognition of their unwillingness to remain in the marriage. Instead, it would only be awarded to the extent that she can demonstrate the couple’s complete estrangement, such as in instances of adultery. A condition that ultimately puts women back in a position of subordination, as this norm disadvantages them. Furthermore, marriage and family unity often prioritize community order over individual freedom, particularly for women, compelling them to adhere to roles that uphold the family and society. By prioritizing the ethical duty of love’s commitment over emotions, desires, interests or consent, Hegel’s framework undermines women’s reasons for seeking a divorce, such as violence or a lack of personal fulfilment. By framing divorce as a failure of ethical standards, he subtly imposes a moral burden on individuals—often women—to uphold their marriages, even in challenging or dangerous situations. Additionally, only judges or clergy—namely men—can issue divorce and marriage settlements. A stipulation that reinforces patriarchal structures and norms by supporting male dominance. The lack of women’s self-determination in reclaiming divorce reproduces their dependency on men and perpetuates systemic inequalities.

Divorce accurately illustrates the tension between individual freedom and the ethical demands of social institutions, such as marriage and family. However, under these conditions, it primarily safeguards individual rights in so far as they protect property rights. For Hegel, ‘the introduction of permanent property is linked with the introduction of marriage’ (PR: §170, 176). In marriage, each partner no longer possesses property individually; their belongings and wealth transform into part of the family’s collective assets [Vermögen] (PR: §169, 175). Hegel developed a theory of familial assets, including household property, dowries and inheritance, to protect its members’ rights qua members. However, once again, the way in which the state and legal institutions secure family assets is not by ensuring a balance between individual and collective interests but by enforcing the family’s legal [rechtlich] personality, represented by the husband as its head, to control and manage its resources (PR: §171, 176). This measure again treats women’s agency as secondary to the family’s legal personality and the husband’s economic agency. It links women’s economic security to marriage, limiting their agency to domestic roles and chores and making them vulnerable in case of divorce.

As can be seen, although Hegel seems to reinstate women’s agency by granting them the right to divorce and own property, this ultimately depends on the stability and continuity of the family, as well as the priority and protection of the ‘head of the family’s rights’, namely, the husband (PR: §171, 176)—all of it secured under the authority granted by the judge and the priest. Ultimately, marriage and family are fundamental to society, not only because they nurture a special bond rooted in love and a community built on ethical commitment, but also because they enable and safeguard property rights. Marriage is a contract in which its members agree to share and protect assets by committing to form a long-term partnership with another person, represented by the husband and protected by the state and the church. Marriage, divorce and marriage-settlement contracts aim to protect property rights secured by the institution of law and religion. Despite Hegel’s claims that marriage transcends the legal standpoint through ethical and self-conscious love, marriage never ceases to need the contract. Therefore, love needs the law.

III. Marriage as the end of self-conscious and ethical love

Hegel’s account of the contractual perspective and his critique of Kant’s notion of contract culminated in the radical thesis that marriage and family are rightfully founded upon and actualized only through ethical and self-conscious love. By limiting the function of the contract and sublating it into a notion of self-conscious love that merges with a sexualized and gendered conception of conjugal love, Hegel introduces a form of inequality and hierarchy within the couple. In marriage, the wife ceases to be a self-subsistent individual. She consents to renounce her legal personality to become assimilated or incorporated into a unique form of collective personality (the family) represented by her husband (PR: §171, 151). Moreover, Hegel’s account of love as a process of reciprocal (re)cognition (PR: §162, 145), when applied to his (presumed) descriptive notion of modern bourgeois marriage, is valid solely for the husband, who acquires distinct rights and the capacity to transition from the domain of the household to the public sphere (including both the market and the state). In contrast, the wife is relegated to a status of suspended civil personality, remaining confined within the household (Pateman Reference Pateman, Mills and F1996: 215). For Hegel, modern women and wives exemplify a negative relation to the law due to their failure to acknowledge its objectivity and universality. Women embody divine law, as they are uniquely connected to natural and emotional realms—a position that limits them to the sphere of subjectivity and the contingency of inclination and opinion (PR: §166R, 148–49).

These conflicting views create a contradiction: on the one hand, the contract is a necessary, though insufficient, condition for the emergence and permanence of marriage; on the other hand, it is unnecessary for its realization. Hegel asserts the necessity of the contract and, at the same time, its contingency for the realization of freedom through love. The dual role of the law as both a necessary, though insufficient, and unnecessary condition compels Hegel to situate women and the marital relationship between the affirmation and negation of the contract. On the one hand, women’s consent is necessary for the marriage contract; on the other hand, they must relinquish that consent, renouncing their legal personality to go beyond the contract to achieve self-conscious ethical love. Marital relations must begin with the contract but must also negate and transcend it. The additional role of divorce and marriage settlements illustrates that marriage cannot transcend the contract as long as it aims to safeguard individual and property rights, which are fundamental to legal personality and family unity. Here lies the paradox of marriage. On the one hand, law without love risks absolutizing and colonizing ethical and self-conscious love by imposing the externality and abstractness of the civil contract, thus reducing the ethical bond to an empty association driven by necessity and convenience. On the other hand, marital love without the contract generates inequality and hierarchy, leading to the diminishment of women’s individuality and legal personality into a singular, unified identity, while also posing a threat to private property. The challenging relationship between love and law arises from Hegel’s simultaneous affirmation and negation of the marriage contract while also advocating for a sexualized and gendered form of conjugal love, conflating it with his ideal notion of ethical self-conscious love intended to transcend the issues associated with the contractual view. Hegel both acknowledges and challenges the importance of the law while positing, deliberately or not, a notion of conjugal love that creates inequality and establishes a hierarchy.

Despite these issues, this paradox ultimately proves to be productive as it shows that Hegel’s sexualized and gendered conception of conjugal love associated with the institution of marriage should, to some extent, be subject to contractual regulation. This explains why Hegel accepts divorce and marriage settlements, and why his notion of conjugal love cannot transcend the contractual framework. Kant’s version shows a greater awareness of the threats that sexual relationships without consent pose to equality and explains why he seeks to ensure reciprocity, at least regarding the use of each other’s sexual attributes. Nevertheless, Kant, akin to Hegel, was unable to, nor did he intend to, avoid the dissolution of women’s personality and agency.Footnote ¹⁹ Hegel expands on Kant’s argument by showing that law necessitates love to secure its ethical and cognitive collective dimension. Love counters the dissociative tendency of law to excessively emphasize self-sufficient and self-centred individuality, which imposes a normative system structured around abstract rights and sheer duties.

Hegel’s acknowledgement of these tensions drove him to find a legitimate role for love within the framework of Ethical Life, ultimately leading him to develop an original theory. However, the argumentative step he took to connect his normative ideal of love to the (presumed) descriptive notion of conjugal love does not resolve the problems he identified in the traditional conceptions of marriage at his time, nor does it fulfil the role he assigned to marriage as the actualization of freedom in the overall project of the Outlines. Hegel’s sexist views of women are immanent in his critique and rejection of contractual theory as well as in his theory of gender relations and conjugal love. The arbitrary confinement of women to the roles of wife, daughter and mother, along with his views on marriage and divorce, both presuppose and deny women’s individuality and agency, preventing them from realizing their freedom. These troubling contradictions within his system prove not only to be a prejudice of his time but also inherent to his broader social, legal and political philosophy. Hegel’s views on modern bourgeois marriage and conjugal love ultimately manifest as the end of self-conscious and ethical love.Footnote ²⁰