Source: MECW Volume 1, p. 274;
Written: in mid-November 1842;
First published: in the Rheinische Zeitung No. 319, November 15, 1842;
Transcribed: in 2000 for marxists.org by Andy Blunden.
The criticism of the Divorce Bill given here has been outlined from the standpoint of Rhenish jurisprudence just as the criticism published earlier (see the Supplement to No. 310 of the Rhein. Ztg.) was based on the standpoint and practice of old Prussian jurisprudence. A third criticism remains to be made, a criticism from a pre-eminently general point of view, that of the philosophy of law. It will no longer suffice to examine the individual reasons for divorce, pro et contra. It will be necessary to set forth the concept of marriage and the consequences of this concept. The two articles we have so far published agree in condemning the interference of religion in matters of law, without, however, expounding to what extent the, essence of marriage in and for itself is or is not religious, and without, therefore, being able to explain how the consistent legislator must necessarily proceed if he is guided by the essence of things and cannot be at all satisfied with a mere abstraction of the definition of this essence. If the legislator considers that the essence of marriage is not human morality, but spiritual sanctity, and therefore puts determination from above in the place of self-determination, a supernatural sanction in the place of inner natural consecration, and in the place of loyal subordination to the nature of the relationship puts passive obedience to commandments that stand above the nature of this relationship, can then this religious legislator be blamed if he also subordinates marriage to the church, which has the mission of implementing the demands and claims of religion, and if he places secular marriage under the supervision of the ecclesiastical authorities? Is that not a simple and necessary consequence? It is self-deception to believe that the religious legislator can be refuted by proving that one or other of his rulings is contrary to the secular nature of marriage. The religious legislator does not engage in a polemic against the dissolution of secular marriage; his polemic is rather against the secular essence of marriage, and he seeks partly to purge it of this secularity and partly, where this is impossible, to bring home at all times to this secularity, as a merely tolerated party, its limits and to counteract the sinful defiance of its consequences. Wholly inadequate, however, is the point of view of Rhenish jurisprudence, which is shrewdly expounded in the criticism published above. It is inadequate to divide the nature of marriage into two parts, a spiritual essence and a secular one, in such a way that one is assigned to the church and the individual conscience, the other to the state and the citizens' sense of law. The contradiction is not abolished by being divided between two different spheres; on the contrary, the result is a contradiction and an unresolved conflict between these two spheres of life themselves. And can the legislator be obliged to adopt a dualism, a double world outlook? Is not the conscientious legislator who adheres to the religious point of view bound to elevate to the sole authority in the real world and in secular forms that which he recognises as truth itself in the spiritual world and in religious forms, and which he worships as the sole authority? This reveals the basic defect of Rhenish jurisprudence, its dual world outlook, which, by a superficial separation of conscience and the sense of law, does not solve but cuts in two the most difficult conflicts, which severs the world of law from the world of the spirit, therefore law from the spirit, and hence jurisprudence from philosophy. On the other hand, the opposition to the present Bill reveals even more glaringly the utter lack of foundation of the old Prussian jurisprudence. If it is true that no legislation can decree morality, it is still truer that no legislation can recognise it as binding in law. Prussian law “2 is based on an intellectual abstraction which, being in itself devoid of content, conceived the natural, legal, moral content as external matter which in itself knows no laws and then tried to model, organise and arrange this spiritless and lawless matter in accordance with an external aim. It treats the objective world not in accordance with the latter's inherent laws, but in accordance with arbitrary, subjective ideas and an intention that is extraneous to the matter itself. The old Prussian jurists have shown but little insight into this character of Prussian law. They have criticised not its essence, but only individual external features of its existence. Hence, too, they have attacked not the nature and style of the new Divorce Bill, but its reforming tendency. They thought they could find in bad morals proof that the laws were bad. We demand from criticism above all that it should have a critical attitude to itself and not overlook the difficulty of its subject-matter.
The editorial board of the Rhein. Zeitung.