Marriage have to be only monogamous and heterosexual?

Question: What a family is? Response, the most varied. Depending on cultural behaviours of the interlocutors is from "a production unit" up to " the fundament of society. " Obviously the family, as shown and accepted by all jurisdictions, is more than a production unit, a complex of legal title to assets, the place par excellence of the personal and emotional development of its members; is all these things together, and more of this.
But iis the dimension of "legal entity" to give the key for understanding the nature of questioning: if family is merely "summation" of the legal ownership of its founders or if we should see in a family a new and different actor in juridic world. IN western culture was the idea of family as new subject with its onw rights to impose in public arena and legislation, but from this arise some problems, the main of which are: what is meant by family? What form? Ceases to stop the will of the "founders" or maintains an independent status to some extent independently of the intention of the "constituents"?

In Western culture, sometimes also embedded Constitutions (as in Article 29 of the Italian Constitution) family is defined in Aristotelian sense as "natural society": something natural, inevitable and inescapable, a third element that, as tailed in the famous Platonic myth, leads two persons "to join" forming an entity "other", complete whilethe previous autonomous entities werent. This definition already counts some important messages: first, that "family" is not necessarily synonymous of marriage (although in many pieces of legislation the definition of family take their place alongside the corollaries "based on marriage") but is an a priori based on the need, even before the will, pf two persons that come together to improve as individuals and give meaning to their lives. Another corollary that  raises is about gender identity of those who join, which must obviously be different, not so much since the reason of a family is procreation (this idea leads Jewish and Christian culture, but ie is absent in the Indian culture from Emperor Asoka period to the Mughal dynasty, when the family goal was the spouses pleasure), but because it is only in the exchange with the "other" meant as opposite gender that people can reach an absorbing state for their individuality otherwise "mutilated".
So it is clear that in a "natural law" meaning a family can only be composed of two persons of different sex, thus excluding both polyandry and polygamy, although it (especially the second ) certainly not unknown in the West history but seen rather as a degeneration caused by the drift of the senses than arising from basic needs. But it follows also that marriage, in its sense of a contract conferring rights and mutual obligations of both economic and juridic areas, legal subjectivity, not necessarily coincide with the family as the natural a fruit of "natural order".

In fact, the marriage,  for its overwhelming contractual size, needs to be standardized, recognized, sometimes also delimited by public authority (and once religious too) and changed repeatedly role and position to the eyes of the law during historical evolution.


An example from Latin West.  14 AD an edict of Augustus forbade the freed slaves who had been married to his former master to be able to divorce without the consent of him: so for first time latin society marriage ceased to be based on freedom and equal dignity of spouses, and in few centuries, with christian ideology who became dominant from IV century, marriage will survive to spouses will and becamea sort of prison of single willness throughout all the Middle Age.

With the rise of the Protestant Reform in northern Europe, marriage become again "a thing of humans for humans" and loose its metaphisic role   reaffirming the freedom of both spouses to end it by choice and becoming again a contract. So it's possible to say that marriage purchases with the civil effects of its own constitution also the indifference to gender and number of people who want to marry, because to regulate situations as heritage the identity of the constituent is not a problem: the point for the effectivity of marriage is not in onthology but in observation ofthe rules established by the lawnmakers to validate marriage itself, a human thing regulated by laws.

So if in a natural society, a family can only be based on two persons of different sex, marriage in a "civic meaning" (that dependent on recognition of civil effects by lawmakers) becomes simply a legal, and in this sense of contract could include polygamy and polyandry, homosexual unions and any other type of relationship which whom single parlaments decide to give dignity.

So family and marriage are not synonymous and  also from a philosophical way of view is family take a sense of moral, natural and necessary structure, marriage (as legal contract) have not that and we could have some marriages that are also family in a jusnaturalistic sense and some others that have the same effect of the firsts at the eye of the law but have not the same meaning in a moral or "natural sense", but law have not to follow a single moral sense but have to regulate general situations and so can admit also poligamy polyandry and same sex unions

Natural law and "positive secularism": risks and misunderstandings

In a vision leaded by the vision of human history as "an unstoppable path" to the extension of rights and progress both social and economic is common the tendence to see "natural rights" (in latin "Ius Naturae") to as the postulates of Freedom in broad sense, which may be denied or distorted in practical application by governments in certain historical parenthesis but mantain their validity for moral issues at the same.

So, even when the "positive law" does not recognize them, they do not loose their value as paradigm of "pre-political issues", but are simply "hidden "in the current regulatory system, which can denie their validity in legislation and in court decisions but cannot exclude them fomr the moral common sense because their are logically preordered to positive laws and live on a different level than the legal do: that of moral or ethical common feeling.

So we could compare them to the guardian angels of freedom and dignity even in historical dark moments, are there, maybe only in the form of "wisps" that illuminate human consciousness, ready to return to be present rules as far as historical contingencies that denied them dissolve.

This could make us decline this category of "natural rights" in the individual natural rights of every man, as developed in centuries from philosophers and, in essence, joining three categories: the equal dignity of men (who carries forms of redistribution and social support necessary to maintain the balanced social tissue), civil rights (the rights of freedom, both positive and negative) and universal political rights, who are the only one to be limited in doctrine not by other freedom but by general rules of collective structure.

But what happens when the "natural law" become an ensamble of determinations that exist before "political determinations", ie where it is considered that there is an order of things (or divine nature of socio-economic) objectively and equally valid regardless of the choices of individual? A sort of "matrix" of perfect rules (obviously with religious connotation) that secular legislation to be moral have to follow. This represent a complete changing of common perspective in ""Natural law": from a corpus of rights that resist to abuse of laws and majority become an order to follow indipendently by single men choices, an order decided by clergymen and "faithful legislators".

This question may seem specious on the surface, but is exactly what the so-called "positive secularism" doctrine is trying to do, "rationalizing faith" (and so giving to faith an autoevident and rational base to follow for all, believers and no) and creating in secular legislation a corpus of "principles are not reviewable" for faithful persons and legislators, placing so democracies under the "protection" of moral issues interpeters, that this will become the real arbiters of common sense.

With the "positive secularism" the moral sense become parameter of legislative power, and the natural law becomes a perfect "imago" of what social order should be, so even if some laws following democratic choices can be (for now) far from this ideal, in this view this mean a degeneration from the high road of collective welfare (which coincides with the representation of the natural order as wanted by clergyment and followers) and then this vision actually gets into the public sphere of the determinations the concept of sin ad synonimous of wrong (to God eyes) law.

So, to illustrate, although a majority of citizens would legalize recognition of same-sex unions, that would be contrary to natural law (in christian vision) that sees men and women separate and complementary and thereforethis law would be immoral to the members of faiths that oppose this view; not wrong, but immoral and this is the focus point, because a wrong law can be changed by a majority following democratic rules, but an immoral law is an usurpation of God "potestas" and so a such law in "positive secularism" vision do not exist, and have not to be changed only, but not to apply. Thus, individual rights, when they do not fit in magisteria religious hegemony or at least the majority, would be downgraded to simple desires, and then denied, no matter what the force of these ideas in public opinion. Simply the faithful legislators shouldnt dollow the desire of their people but the determination of moral authority.

This attitude is emerging in the western world (and not only) but at the same time (fortunatly) is still fragile, as it continues to masquerade under the misunderstanding of words that means the opposite and to succeed requires further reductions in the areas of autonomy of both political and electoral decisions and at the same time an increasing in the spheres of need and fear, which leads people to depend on the goodwill of others (or government) and so to abdicate its role in the social construction of equal and inalienable rights to become supporting actors and accept the role that powerful decision makers and rank them in "order of nature" (ie in the social structure).