173. The unity of marriage which, as substantive, exists only as an inner harmony and sentiment, but, so far as it exists actually, is separated in the two married persons, becomes in the children a unity, which has actual independent existence, and is an independent object. This new object the parents love as an embodiment of their love.— The presupposition of the direct presence of the two people as parents becomes, when taken on its merely natural side, a result. This process expands into an infinite series of generations, which beget and are presupposed. At this finite and natural standpoint the existence of the simple spirit of the Penates is represented as species or kind.
Addition.— Between husband and wife the relation of love is not yet objective. Though feeling is a substantive unity, it has as yet no footing in reality. This foothold parents attain only in their children, in whom the totality of their alliance is visibly embodied. In the child the mother loves her husband, and the father his wife. In the child both parents have their love before their eyes. Whereas in means the marriage tie exists only in an external object, in children it is present in a spiritual being, in whom the parents are loved, and whom they love.
174. Children have the right to be supported and educated out of the common family means. The right of parents to the service of their children, as service, is limited to and based upon family cares. The right of parents over the free choice of their children is just as clearly limited to correction and education. The purpose of chastisement is not mere justice; it has a subjective moral side, its object being to restrain a freedom, which is still bound to nature, and to instill the universal into the child’s consciousness and will.
Addition.— Man does not possess by instinct what he is to be, but must first of all acquire it. Upon this is based the child’s right to be educated. As it is with children, so is it with nations under paternal government; the people are supplied with food out of storehouses, and are not looked upon as self-dependent or of age. The services required of children must bear upon their education and promote their good. To ignore this good would destroy the ethical element of the relation, and make the child a slave. A prominent feature in the education of children is correction, intended to break their self-will, and eradicate what is merely sensual and natural. One must not expect to succeed here simply with goodness, because the direct volition of children is moved by immediate suggestions and likings, not by reasons and ideas. If we give children reasons, we leave it open to them whether to act upon them or not. In this way everything depends upon their pleasure. In the fact that parents constitute the universal and essential is included the necessity of obedience on the part of children. When no care is taken to cherish in children the feeling of subordination, a feeling begotten in them by the longing to be big, they become forward and impertinent.
175. Children are potentially free, and life is the direct embodiment of this potential freedom. Hence they are not things, and cannot be said to belong to any one, their parents or others. But their freedom is as yet only potential. The education of children has with regard to family life a two-fold object. Its positive aim is to exalt the ethical nature of the child into a direct perception free from all opposition, and thus secure that state of mind, which forms the basis of ethical life. The child thus passes his earlier years in love, trust, and obedience. Its negative aim is to lift the child out of the natural simplicity, in which it at first is, into selfdependence and free personality, and thus make it able to leave the natural unity of the family.
Note.—That the children of Roman parents were slaves is one of the facts which most tarnishes the Roman law. This wounding of the ethical life in its most intimate quarter is an important element in forming an estimate of the world-historical character of the Romans, as well as of their tendency towards formal right.
The necessity for the education of children is found in their inherent dissatisfaction with what they are, in their impulse to belong to the world of adults, whom they reverence as higher beings, and in the wish to become big. The sportive method of teaching gives to children what is childish under the idea that it is in itself valuable. It makes not only itself ridiculous, but also all that is serious. It is scorned by children themselves. Since it strives to represent children as complete in their very incompleteness, of which they themselves are already sensible. Hoping to make them satisfied with their imperfect condition, it disturbs and taints their own truer and higher aspiration. The result is indifference to and want of interest in the substantive relations of the spiritual world, contempt of men, since they have posed before children in a childish and contemptible way, and vain conceit devoted to the contemplation of its own excellence.
Addition.—Man, as child, must have been included with his parents in the circle of love and mutual confidence, and the rational must appear in him as his own most pprivate subjectivity. At the outset the education given by the mother is of greater importance, since social character must be planted in the child as feeling. It is noticeable that children as a rule love their parents less than the parents do their children. Children are on the way to meet independence and wax in strength; besides they have their parents in a sense behind them: but parents possess in their children the objective embodiment of their union.
176. Marriage is only the direct form of the ethical idea, and has its objective reality in the inwardness of subjective sentiment and feeling. In this is found its first exposure to accident. Just as no one may be forced to marry, so there must be no positive legal bond to hold together persons, between whom have arisen hostile thoughts and acts. A third authority must, however, intervene to hold intact the right of marriage and the right of the ethical fabric against the inroads of mere opinion, and the accidents of fleeting resolves. It must also distinguish between the effervescence of feeling and total alienation, and have proof of alienation before permitting divorce.
Addition.— As marriage rests only upon a subjective sentiment which is liable to change, it may be dissolved. The state, on the contrary, is not subject to division, since it rests upon the law. Marriage should be indissoluble, but this desirable state of things remains a mere moral command. Yet, since marriage is ethical, it cannot be dissolved at random, but only by a constituted ethical authority, be it the church or the law. If total alienation has taken place on account of adultery, for example, then the religious authority also must sanction divorce.
177. The ethical or social dismemberment of the family occurs when the children have grown to be free personalities. They are recognized as legal persons, when they have attained their majority. They are then capable both of possessing free property of their own and of founding their own families, sons as heads of the family, and daughters as wives. In the new family the founders have now their substantive office, in contrast with which the first family must occupy a subordinate place as mere basis and point of departure. The family stock is an abstraction which has no rights.
178. The natural disruption of the family by the death of the parents, especially of the husband, necessitates inheritance of the family means. Inheritance is the entering into peculiar possession of the store that is in itself common. The terms of inheritance depend on degree of relation and on the extent of the dispersion throughout the community of the individuals and families, who have broken away from the original family and become independent. Hence inheritance is indefinite in proportion to the loss of the sense of unity, since every marriage is the renunciation of former connections, and the founding of a new independent family.
Note.—It has been supposed that on the occasion of a death a fortune loses its owner, and falls to him who first gets possession of it. Actual possession, however, so the supposition runs, is generally made by relatives, since they are usually in the immediate neighbourhood of the deceased. Hence what customarily happens, is, for the sake of order, raised by positive law into a rule. This theory is little more than a whim, and altogether overlooks the nature of the family relation.
179. Through the dismemberment of the family by death there is afforded free scope for the capricious fancy of the testator, who may bestow his means in accordance with his personal likings, opinions, and ends. He may leave his possessions to friends and acquaintances instead of to the family, adopting the legal mode of bequest by embodying his declaration in a will.
Note.— Into the formation of a circle of friends by a bequest, which is authorized by ethical observance, there enters, especially in the case of wills, so much of arbitrariness, wilfulness, and selfishness, that the ethical element becomes extremely shadowy. Indeed the legal permission to be arbitrary in drawing up a will is rather the cause of injury to ethical institutions and, also, of underhand exertions and servility. It occasions and justifies the absurd and even malign desire to link to socalled benefactions and bequests of property, which in any case ceases at death to be mine, conditions that are vain and vexatious.
180. The principle that the members of a family become independent legal persons (§177) allows something of capricious discrimination with regard to the natural heirs to enter inside even the family circle. But this discrimination is greatly limited in order not to injure the fundamental relation of the family.
Note.— The simple direct freedom of choice of the deceased cannot be construed as the principle at the basis of the right to make a will. More particularly is this the case, if this wilfulness is opposed to the substantive right of the family, whose love and esteem for the deceased would be the chief reason for carrying out after his death his wayward behest. Such a will contains nothing so worthy of respect as the family right. Formerly the validity of a last will and testament lay only in its arbitrary recognition of others. This validity can be conceded to a testamentary disposition only when the family relation, in which it would otherwise be absorbed, is weak and ineffective. But to ignore the province of the family relation, when it is real and present, is unethical; and it would also weaken its inherent ethical value to extend the boundaries of a testator ’s caprice.
The harsh and unethical Roman law makes unlimited caprice inside the family the chief principle of succession, In accordance with this law the son could be sold by the father, and would, if freed, again come under his father ’s power. Only after being freed from slavery the third time, was he really free. According to these laws the son did not de jure come of age, and was not a legal person. Only what he took in war, peculium castrense, was he entitled to possess. When he, on being three times sold and freed, passed out of his father ’s power, he did not inherit along with those, who had remained in family servitude, except by the insertion of a special clause in the will. Similarly, the wife, in so far as she had entered marriage not as a slave, in manum conveniret, in mancipio esset, but as a matron, did not so much belong to the family, which had by her marriage been established, and was actually hers, as to the family of her birth. Hence she was excluded from inheriting wealth, which belonged to what was really her own family. Though wife and mother she was disinherited.
It has already been observed (§3, note) that, as the feeling of rationality developed, efforts were made to escape from the unethical elements of these and other laws. The expression bonorum possessio, which, as every learned jurist knows, is to be distinguished from possessio bonorum, was drawn into service by the judges instead of hereditas, through the employment of a legal fiction, by means of which a filia was changed by a second baptism into a filius. It thus sometimes became the sad necessity of the judges slyly to smuggle in the reasonable as an offset to bad laws. Hence, the most important institutions became pitifully unstable, and evils arose, which necessitated in turn a tumultuous mass of counter legislation.
The unethical results, flowing from the right of free choice allowed by Roman law to testators, are well known from history and from the descriptions of Lucian and others. As to marriage it is a direct and simple ethical relation, and implies a mingling of what is substantive with natural contingency and inner caprice. By making children slaves, and by kindred regulations, conspicuously by ready and easy divorce, preference is openly conceded to wilfulness over the right of the substantive ethical fact. Thus Cicero himself, who, in his “Officiis” and other works has written many a fine thing about the Honestum and Decorum, devised the scheme of sending away his wife in order that he might with a second wife get a sufficient dowry to pay his debts. When such things occur, a way is paved by the law for the ruin of morals; or rather the laws are the necessary product of this ruin and decay.
The institution of heirs-at-law is introduced in order to preserve the glory of the family stock. It makes use of substitutions and family trusts by excluding from the inheritance the daughters in favour of the sons, or the rest of the family in favour of the eldest son, or by sanctioning some other inequality. By it injustice is done to the principle of freedom of property (§62). Besides, it rests upon an arbitrary will, which has absolutely no right to be recognized, since it aims to preserve a particular stock or house rather than a particular family. But the family, and not the stock or house is the idea, which has the right to be preserved. Moreover, the ethical fabric is as likely to be maintained by the free disposal of property and equality of succession, as family trees are to be preserved by an opposite course.
In institutions like the Roman the right of marriage (§172) is everywhere misinterpreted. Marriage is the complete founding of a new and actual family, in contrast with which the family, as the stirps or gens is called, is an abstraction, becoming, as the generations pass by, ever more shadowy and unreal (§177). Love, the ethical element in marriage, is a feeling for real present individuals, and not for an abstraction. It is shown further on (§356) that the world-historical principle of the Roman empire is an abstraction of the understanding. It is also shown further on (§306) that the higher political sphere introduces a right of primogeniture and an inalienable family fortune, based, however, not on an arbitrary act of will, but on the necessary idea of the state.
Addition.— Amongst the Romans in earlier times a father could disinherit his children, and even put them to death. Afterwards neither of these acts was allowed. Efforts were made to bring both the unethical and also the illogical attempt to make it ethical into one system, the retention of which constitutes the difficulty and weakness of our law of inheritance. Wills may certainly be permitted, but in them should prevail the idea that the right of arbitrary decision grows only with the dispersion and separation of the members of the family. The so-called family of friendship, which bequest brings into existence, should appear only when there are no children or near relatives. Something offensive and disagreeable is associated with testamentary dispositions generally. In them I reveal those to whom I have inclination. But inclination is arbitrary, can be obtained surreptitiously, and is allied to whim and fancy. It may even be required in a will that an heir shall subject himself to the greatest indignities. In England, where they are given to riding all sorts of hobbies, an infinite number of absurdities are attached to wills.