Hegel's Philosophy of Right
(a): Marriage - (b) Family Capital - C: Children & Dissolution
The family, as the immediate substantiality of mind, is specifically characterised by love, which is mind's feeling of its own unity. Hence in a family, one's frame of mind is to have self-consciousness of one's individuality within this unity as the absolute essence of oneself, with the result that one is in it not as an independent person but as a member.
Addition: Love means in general terms the consciousness of my unity with another, so that I am not in selfish isolation but win my self-consciousness only as the renunciation of my independence and through knowing myself as the unity of myself with another and of the other with me. Love, however, is feeling, i.e. ethical life in the form of something natural. In the state, feeling disappears; there we are conscious of unity as law; there the content must be rational and known to us. The first moment in love is that I do not wish to be a self-subsistent and independent person and that, if I were, then I would feel defective and incomplete. The second moment is that I find myself in another person, that I count for something in the other, while the other in turn comes to count for something in me. Love, therefore, 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. Love is at once the propounding and the resolving of this contradiction. As the resolving of it, love is unity of an ethical type.
The right which the individual enjoys on the strength of the family unity and which is in the first place simply the individual's life within this unity, takes on the form of right (as the abstract moment of determinate individuality) only when the family begins to dissolve. At that point those who should be family-members both in their inclination and in actuality begin to be self-subsistent persons, and whereas they formerly constituted one specific moment within the whole, they now receive their share separately and so only in an external fashion by way of money, food, educational expenses, and the like.
Addition: The right of the family properly consists in the fact that its substantiality should have determinate existence. Thus it is a right against externality and against secessions from the family unity. On the other hand, to repeat, love is a feeling, something subjective, against which unity cannot make itself effective. The demand for unity can be sustained, then, only in relation to such things as are by nature external and not conditioned by feeling.
The family is completed in these three phases:
(a) Marriage, the form assumed by the concept of the family in its immediate phase;
(b) Family Property and Capital (the external embodiment of the concept) and attention to these;
(c) The Education of Children and the Dissolution of the Family.
Marriage, as the immediate type of ethical relationship, contains first, the moment of physical life; and since marriage is a substantial tie, the life involved in it is life in its totality, i.e. as the actuality of the race and its life-process. But, secondly, in self-consciousness the natural sexual union — a union purely inward or implicit and for that very reason existent as purely external — is changed into a union on the level of mind, into self-conscious love.
Addition: Marriage is in essence an ethical tie. Formerly, especially in most systems of natural law, attention was paid only to the physical side of marriage or to its natural character. Consequently, it was treated only as a sex relationship, and this completely barred the way to its other characteristics. This is crude enough, but it is no less so to think of it as only a civil contract, and even Kant does this. On this view, the parties are bound by a contract of mutual caprice, and marriage is thus degraded to the level of a contract for reciprocal use. A third view of marriage is that which bases it on love alone, but this must be rejected like the other two, since love is only a feeling and so is exposed in every respect to contingency, a guise which ethical life may not assume. Marriage, therefore, is to be more precisely characterised as ethico-legal (rechtlich sittliche) love, and this eliminates from marriage the transient, fickle, and purely subjective aspects of love.
On the subjective side, marriage may have a more obvious source in the particular inclination of the two persons who are entering upon the marriage tie, or in the foresight and contrivance of the parents, and so forth. But its objective source lies in the free consent of the persons, especially in their consent to make themselves one person, to renounce their natural and individual personality to this unity of one with the other. From this point of view, their union is a self-restriction, but in fact it is their liberation, because in it they attain their substantive self-consciousness.
Remark: Our objectively appointed end and so our ethical duty is to enter the married state. The external origin of any particular marriage is in the lure of the case contingent, and it depends principally on the extent which reflective thought has been developed. At one extreme, the step is that the marriage is arranged by the contrivance of benevolent parents; the appointed end of the parties is a union of mutual love, their inclination to marry arises from the fact that each grows acquainted with the other from the first as a destined partner. At the other extreme, it is the inclination of the parties which comes first, appearing in them as these two infinitely particularised individuals. The more ethical way to matrimony may be taken to be the former extreme or any way at all whereby the decision to marry comes first and the inclination to do so follows, so that in the actual wedding both decision and inclination coalesce. In the latter extreme, it is the uniqueness of the infinitely particularised which makes good its claims in accordance with the subjective principle of the modern world (see Remark to § 124).
But those works of modern art, dramatic and other, in which the love of the sexes is the main interest, are pervaded by a chill despite the heat of passion they portray, for they associate the passion with accident throughout and represent the entire dramatic interest as if it rested solely on the characters as these individuals; what rests on them may indeed be of infinite importance to them, but is of none whatever in itself.
Addition: Amongst peoples who hold the female sex in scant respect, marriages are arranged by the parents at will without consulting the young people. The latter raise no objection, since at that level of culture the particularity of feeling makes no claims for itself. For the woman it is only a matter of getting a husband, for the man, of getting a wife. In other social conditions, considerations of wealth, connections, political ends, may be the determining factor. In such circumstances, great hardships may arise through making marriage a means to other ends. Nowadays, however, the subjective origin of marriage, the state of being in love, is regarded as the only important originating factor. Here the position is represented to be that a man must wait until his hour has struck and that he can bestow his love only on one specific individual.
The ethical aspect of marriage consists in the parties' consciousness of this unity as their substantive aim, and so in their love, trust, and common sharing of their entire existence as individuals. When the parties are in this frame of mind and their union is actual, their physical passion sinks to the level of a physical moment, destined to vanish in its very satisfaction. On the other hand, the spiritual bond of union secures its rights as the substance of marriage and thus rises, inherently indissoluble, to a plane above the contingency of passion and the transience of particular caprice.
Remark: It was noted above (in § 75)that marriage, so far as its essential basis is concerned, is not a contractual relation. On the contrary, though marriage begins in contract, it is precisely a contract to transcend the standpoint of contract, the standpoint from which persons are regarded in their individuality as self-subsistent units. The identification of personalities, whereby the family becomes one person and its members become its accidents (though substance is in essence the relation of accidents to itself), is the ethical mind. Taken by itself and stripped of the manifold externals of which it is possessed owing to its embodiment in these individuals and the interests of the phenomenal realm, interests limited in time and numerous other ways, this mind emerges in a shape for representative thinking and has been revered as Penates, &c.; and in general it is in this mind that the religious character of marriage and the family, or pietas, is grounded. It is a further abstraction still to separate the divine, or the substantive, from its body, and then to stamp it, together with the feeling and consciousness of mental unity, as what is falsely called 'Platonic' love. This separation is in keeping with the monastic doctrine which characterises the moment of physical life as purely negative and which, precisely by thus separating the physical from the mental, endows the former by itself with infinite importance.
Addition: The distinction between marriage and concubinage is that the latter is chiefly a matter of satisfying natural desire, while this satisfaction is made secondary in the former. It is for this reason that physical experiences may be mentioned in married life without a blush, although outside the marriage tie their mention would produce a sense of shame. But it is on this account, too, that marriage must be regarded as in principle indissoluble, for the end of marriage is the ethical end, an end so lofty that everything else is manifestly powerless against it and made subject to it. Marriage is not to be dissolved because of passion, since passion is subordinate to it. But it is not indissoluble except in principle, since as Christ says, only 'for the hardness of your heart' is divorce established. Since marriage has feeling for one of its moments, it is not absolute but weak and potentially dissoluble. Legislators, however, must make its dissolution as difficult as possible and uphold the right of the ethical order against caprice.
Mere agreement to the stipulated terms of a contract in itself involves the genuine transfer of the property in question (see § 79). Similarly, the solemn declaration by the parties of their consent to enter the ethical bond of marriage, and its corresponding recognition and confirmation by their family and community, constitutes the formal completion and actuality of marriage. The knot is tied and made ethical only after this ceremony, whereby through the use of signs, i.e. of language (the most mental embodiment of mind — see § 78), the substantial thing in the marriage is brought completely into being. As a result, the sensuous moment, the one proper to physical life, is put into its ethical place as something only consequential and accidental, belonging to the external embodiment of the ethical bond, which indeed can subsist exclusively in reciprocal love and support.
Remark: If with a view to framing or criticising legal enactments, the question is asked: what should be regarded as the chief end of marriage?, the question may be taken to mean: which single facet of marriage in its actuality is to be regarded as the most essential one? No one facet by itself, however, makes up the whole range of its implicit and explicit content, i.e. of its ethical character, and one or other of its facets may be lacking in an existing marriage without detriment to the essence of marriage itself.
It is in the actual conclusion of a marriage, i.e. in the wedding, that the essence of the tie is expressed and established beyond dispute as something ethical, raised above the contingency of feeling and private inclination. If this ceremony is taken as an external formality, a mere so-called 'civil requirement', it is thereby stripped of all significance except perhaps that of serving the purpose of edification and attesting the civil relation of the parties. It is reduced indeed to a mere fiat of a civil or ecclesiastical authority. As such it appears as something not merely indifferent to the true nature of marriage, but actually alien to it. The heart is constrained by the law to attach a value to the formal ceremony and the latter is looked upon merely as a condition which must precede the complete mutual surrender of the parties to one another. As such it appears to bring disunion into their loving disposition and, like an alien intruder, to thwart the inwardness of their union. Such a doctrine pretentiously claims to afford the highest conception of the freedom, inwardness, and perfection of love; but in fact it is a travesty of the ethical aspect of love, the higher aspect which restrains purely sensual impulse and puts it in the background. Such restraint is already present at the instinctive level in shame, and it rises to chastity and modesty as consciousness becomes more specifically intelligent. In particular, the view just criticised casts aside marriage's specifically ethical character, which consists in this, that the consciousness of the parties is crystallised out of its physical and subjective mode and lifted to the thought of what is substantive; instead of continually reserving to itself the contingency and caprice of bodily desire, it removes the marriage bond from the province of this caprice, surrenders to the substantive, and swears allegiance to the Penates; the physical moment it subordinates until it becomes something wholly conditioned by the true and ethical character of the marriage relation and by the recognition of the bond as an ethical one. It is effrontery and its buttress, the Understanding, which cannot apprehend the speculative character of the substantial tie; nevertheless, with this speculative character there correspond both ethical purity of heart and the legislation of Christian peoples.
Addition: Friedrich von Schlegel in his Lucinde, and a follower of his in the Briefe eines Ungenannten, have put forward the view that the wedding ceremony is superfluous and a formality which might be discarded. Their reason is that love is, so they say, the substance of marriage and that the celebration therefore detracts from its worth. Surrender to sensual impulse is here represented as necessary to prove the freedom and inwardness of love — an argument not unknown to seducers.
It must be noticed in connection with sex-relations that a girl in surrendering her body loses her honour. With a man, however, the case is otherwise, because he has a field for ethical activity outside the family. A girl is destined in essence for the marriage tie and for that only; it is therefore demanded of her that her love shall take the form of marriage and that the different moments in love shall attain their true rational relation to each other.
The difference in the physical characteristics of the two sexes has a rational basis and consequently acquires an intellectual and ethical significance. This significance is determined by the difference into which the ethical substantiality, as the concept, internally sunders itself in order that its vitality may become a concrete unity consequent upon this difference.
Thus one sex is mind in its self-diremption into explicit personal self-subsistence and the knowledge and volition of free universality, i.e. the self-consciousness of conceptual thought and the volition of the objective final end. The other sex is mind maintaining itself in unity as knowledge and volition of the substantive, but knowledge and volition in the form of concrete individuality and feeling. In relation to externality, the former is powerful and active, the latter passive and subjective. It follows that man has his actual substantive life in the state, in learning, and so forth, as well as in labour and struggle with the external world and with himself so that it is only out of his diremption that he fights his way to self-subsistent unity with himself. In the family he has a tranquil intuition of this unity, and there he lives a subjective ethical life on the plane of feeling. Woman, on the other hand, has her substantive destiny in the family, and to be imbued with family piety is her ethical frame of mind.
Remark: For this reason, family piety is expounded in Sophocles' Antigone — one of the most sublime presentations of this virtue — as principally the law of woman, and as the law of a substantiality at once subjective and on the plane of feeling, the law of the inward life, a life which has not yet attained its full actualisation; as the law of the ancient gods, 'the Gods of the underworld; as 'an everlasting law, and no man knows at what time it was first put forth'. This law is there displayed as a law opposed to public law, to the law of the land. This is the supreme opposition in ethics and therefore in tragedy; and it is individualised in the same play in the opposing natures of man and woman.
Addition: Women are capable of education, but they are not made for activities which demand a universal faculty such as the more advanced sciences, philosophy, and certain forms of artistic production. Women may have happy ideas, taste, and elegance, but they cannot attain to the ideal. [Ideale. By this word Hegel means 'the Beautiful and whatever tends thither' (Science of Logic, i. 163, footnote). It is to be distinguished, therefore, from Ideelle] The difference between men and women is like that between animals and plants. Men correspond to animals, while women correspond to plants because their development is more placid and the principle that underlies it is the rather vague unity of feeling. When women hold the helm of government, the state is at once in jeopardy, because women regulate their actions not by the demands of universality but by arbitrary inclinations and opinions. Women are educated — who knows how? — as it were by breathing in ideas, by living rather than by acquiring knowledge. The status of manhood, on the other hand, is attained only by the stress of thought and much technical exertion.
In essence marriage is monogamy because it is personality — immediate exclusive individuality — which enters into this tie and surrenders itself to it; and hence the tie's truth and inwardness (i.e. the subjective form of its substantiality) proceeds only from the mutual, whole-hearted, surrender of this personality. Personality attains its right of being conscious of itself in another only in so far as the other is in this identical relationship as a person, i.e. as an atomic individual.
Remark: Marriage, and especially monogamy, is one of the absolute principles on which the ethical life of a community depends. Hence marriage comes to be recorded as one of the moments in the founding of states by gods or heroes.
Further, marriage results from the free surrender by both sexes of their personality — a personality in every possible way unique in each of the parties. Consequently, it ought not to be entered by two people identical in stock who are already acquainted and perfectly known to one another; for individuals in the same circle of relationship have no special personality of their own in contrast with that of others in the same circle. On the contrary, the parties should be drawn from separate families and their personalities should be different in origin. Since the very conception of marriage is that it is a freely undertaken ethical transaction, not a tie directly grounded in the physical organism and its desires, it follows that the marriage of blood-relations runs counter to this conception and so also to genuine natural feeling.
Remark: Marriage itself is sometimes said to he grounded not in natural rights but simply in instinctive sexual impulses; or again it is treated as a contract with an arbitrary basis. External arguments in support of monogamy have been drawn from physical considerations such as the number of men and women. Dark feelings of repulsion are advanced as the sole ground for prohibiting consanguineous marriage. The basis of all these views is the fashionable idea of a state of nature and a natural origin for rights, and the lack of the concept of rationality and freedom.
Addition: A sense of shame — to go no farther — is a bar to consanguineous marriage. But this repugnance finds justification in the concept of the thing. What is already united, I mean, cannot be united for the first time by marriage. It is a commonplace of stock-breeding that the offspring is comparatively weak when animals of the same stock arc mated, since if there is to be unification there must first be division. The force of generation, as of mind, is all the greater, the greater the oppositions out of which it is reproduced. Familiarity, close acquaintance, the habit of common pursuits, should not precede marriage; they should come about for the first time within it. And their development has all the more value, the richer it is and the more facets it has.
The family, as person, has its real external existence in property; and it is only when this property takes the form of capital that it becomes the embodiment of the substantial personality of the family.
It is not merely property which a family possesses; as a universal and enduring person, it requires possessions specifically determined as permanent and secure, i.e. it requires capital. The arbitrariness of a single owner's particular needs is one moment in property taken abstractly; but this moment, together with the selfishness of desire, is here transformed into something ethical, into labour and care for a common possession.
Remark: In the sagas of the founding of states, or at least of a social and orderly life, the introduction of permanent property is linked with the introduction of marriage. The nature of this capital, however, and the proper means of its consolidation will appear in the section on civil society.
The family as a legal entity in relation to others must be represented by the husband as its head. Further, it is his prerogative to go out and work for its living, to attend to its needs, and to control and administer its capital. This capital is common property so that, while no member of the family has property of his own, each has his right in the common stock. This right, however, may come into collision with the head of the family's right of administration owing to the fact that the ethical temper of the family is still only at the level of immediacy (see § 158) and so is exposed to partition and contingency.
A marriage brings into being a new family which is self-subsistent and independent of the clans or 'houses' from which its members have been drawn. The tie between these and the new family has a natural basis — consanguinity, but the new family is based on love of an ethical type. Thus an individual's property too has an essential connection with his conjugal relationship and only a comparatively remote one with his relation to his clan or 'house'.
Remark: 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, lies in their being provisions in case of the dissolution of the marriage, either naturally by death, or by divorce, &c. They are also safeguards for securing that in such an eventuality the different members of the family shall secure their share of the common stock.
Addition: In many legal codes the wider circle of the clan is adhered to, and this is regarded as the essential bond, while the other bond, that of each particular family, appears less important in comparison. Thus in the older Roman law, the wife in the easily dissolved type of marriage stood in a closer relation to her kinsfolk than to her husband and children. Under feudal law, again, the maintenance of the splendor familiae made it necessary for only the males of the family to be reckoned members and for the clan as a whole to count as the important thing, while the newly founded family disappeared in comparison. Nevertheless, each new family is the essential thing in contrast with the more remote connections of clan-kinship, and parents and children form the nucleus proper as opposed to the clan, which is also in a certain sense called a 'family'. Hence an individual's relation to his wealth must have a more essential connection with his marriage than with the wider circle of his kin.
In substance marriage is a unity, though only a unity of inwardness or disposition; in outward existence, however, the unity is sundered in the two parties. It is only in the children that the unity itself exists externally, objectively, and explicitly as a unity, because the parents love the children as their love, as the embodiment of their own substance. From the physical point of view, the presupposition — persons immediately existent (as parents) — here becomes a result, a process which runs away into the infinite series of generations, each producing the next and presupposing the one before. This is the mode in which the single mind of the Penates reveals its existence in the finite sphere of nature as a race.
Addition: The relation of love between husband and wife is in itself not objective, because even if their feeling is their substantial unity, still this unity has no objectivity. Such an objectivity parents first acquire in their children, in whom they can see objectified the entirety of their union. In the child, a mother loves its father and he its mother. Both have their love objectified for them in the child. While in their goods their unity is embodied only in an external thing, in their children it is embodied in a spiritual one in which the parents are loved and which they love.
Children have the right to maintenance and education at the expense of the family's common capital. The right of the parents to the service as service of their children is based upon and is restricted by the common task of looking after the family generally. Similarly, the right of the parents over the wishes of their children is determined by the object in view — discipline and education. The punishment of children does not aim at justice as such; the aim is more subjective and moral in character, i.e. to deter them from exercising a freedom still in the toils of nature and to lift the universal into their consciousness and will.
Addition: Man has to acquire for himself the position which he ought to attain; he is not already in possession of it by instinct. It is on this fact that the child's right to education is based. Peoples under patriarchal government are in the same position as children; they are fed from central stores and not regarded as self-subsistent and adults. The services which may be demanded from children should therefore have education as their sole end and be relevant thereto; they must not be ends in themselves, since a child in slavery is in the most unethical of all situations whatever. One of the chief factors in education is discipline, the purport of which is to break down the child's self-will and thereby eradicate his purely natural and sensuous self. We must not expect to achieve this by mere goodness, since it is just the immediate will which acts on immediate fancies and caprices, not on reasons and representative thinking. If we advance reasons to children, we leave it open to them to decide whether the reasons are weighty or not, and thus we make everything depend on their whim. So far as children are concerned, universality and the substance of things reside in their parents, and this implies that children must be obedient. If the feeling of subordination, producing the longing to grow up, is not fostered in children, they become forward and impertinent.
Children are potentially free and their life directly embodies nothing save potential freedom. Consequently they are not things and cannot be the property either of their parents or others. In respect of his relation to the family, the child's education has the positive aim of instilling ethical principles into him in the form of an immediate feeling for which differences are not yet explicit, so that thus equipped with the foundation of an ethical life, his heart may live its early years in love, trust, and obedience. In respect of the same relation, this education has the negative aim of raising children out of the instinctive, physical, level on which they are originally, to self-subsistence and freedom of personality and so to the level on which they have power to leave the natural unity of the family.
Remark: One of the blackest marks against Roman legislation is the law whereby children were treated by their fathers as slaves. This gangrene of the ethical order at the tenderest point of its innermost life is one of the most important clues for understanding the place of the Romans in the history of the world and their tendency towards legal formalism.
The necessity for education is present in children as their own feeling of dissatisfaction with themselves as they are, as the desire to belong to the adult world whose superiority they divine, as the longing to grow up. The play theory of education assumes that what is childish is itself already something of inherent worth and presents it as such to the children; in their eyes it lowers serious pursuits, and education itself, to a form of childishness for which the children themselves have scant respect. The advocates of this method represent the child, in the immaturity in which he feels himself to be, as really mature and they struggle to make him satisfied with himself as he is. But they corrupt and distort his genuine and proper need for something better, and create in him a blind indifference to the substantial ties of the intellectual world, a contempt of his elders because they have thus posed before him, a child, in a contemptible and childish fashion, and finally a vanity and conceit which feeds on the notion of its own superiority.
Addition: As a child, man must have lived with his parents encircled by their love and trust, and rationality must appear in him as his very own subjectivity. In the early years it is education by the mother especially which is important, since ethical principles must be implanted in the child in the form of feeling. It is noteworthy that on the whole children love their parents less than their parents love them. The reason for this is that they are gradually increasing in strength, and are learning to stand on their own feet, and so are leaving their parents behind them. The parents, on the other hand, possess in their children the objective embodiment of their union.
Marriage is but the ethical Idea in its immediacy and so has its objective actuality only in the inwardness of subjective feeling and disposition. In this fact is rooted the fundamental contingency of marriage in the world of existence. 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. A third ethical authority, however, is called for to maintain the right of marriage — an ethical substantiality — against the mere whims of hostile disposition or the accident of a purely passing mood, and so forth. Such an authority distinguishes these from the total estrangement of the two parties and may not grant divorce until it is satisfied that the estrangement is total.
Addition: It is because marriage depends entirely on feeling, something subjective and contingent, that it may be dissolved. The state, on the other hand, is not subject to partition, because it rests on law. To be sure, marriage ought to be indissoluble, but here again we have to stop at this 'ought'; yet, since marriage is an ethical institution, it cannot be dissolved at will but only by an ethical authority, whether the church or the law-court. If the parties are completely estranged, e.g. owing to adultery, then even the ecclesiastical authority must permit divorce.
The ethical dissolution of the family consists in this, that once the children have been educated to freedom of personality, and have come of age, they become recognised as persons in the eyes of the law and as capable of holding free property of their own and founding families of their own, the sons as heads of new families, the daughters as wives. They now have their substantive destiny in the new family; the old family on the other hand falls into the background as merely their ultimate basis and origin, while a fortiori the clan is an abstraction, devoid of rights.
The natural dissolution of the family by the death of the parents, particularly the father, has inheritance as its consequence so far as the family capital is concerned. The essence of inheritance is the transfer to private ownership of property which is in principle common. When comparatively remote degrees of kinship are in question, and when persons and families are so dispersed in civil society that they have begun to gain self-subsistence, this transfer becomes the less hard and fast as the sense of family unity fades away and as every marriage becomes the surrender of previous family relationships and the founding of a new self-subsistent family.
Remark: It has been suggested that the basis of inheritance ties in the fact that, by a man's death, his property becomes wealth without an owner, and as such falls to the first person who takes possession of it, because of course it is the relatives who are normally nearest a man's death-bed and so they are generally the first to take possession. Hence it is supposed that this customary occurrence is made a rule by positive legislation in the interests of orderliness. This ingenious idea disregards the nature of family relationship.
The result of this disintegration of the family is that a man may at will either squander his capital altogether, mainly in accordance with his private caprices, opinions, and ends, or else look upon a circle of friends and acquaintances, &c., as if they were his family and make a will embodying a declaration to that effect, with the result that they become his legal heirs.
Remark: The ethical justification of freedom to dispose of one's property by will to a circle of friends would depend on the formation of such a circle; there goes to its formation so much accident, arbitrariness, and self-seeking, &c. — especially since testamentary hopes have a bearing on readiness to enter it — that the ethical moment in it is only something very vague. Further, the recognition of a man's competence to bequeath his property arbitrarily is much more likely to be an occasion for breach of ethical obligations and for mean exertions and equally mean subservience; and it also provides opportunity and justification for the folly, caprice, and malice of attaching to professed benefactions and gifts vain, tyrannical, and vexatious conditions operative after the testator's death and so in any case after his property ceases to be his.
The principle that the members of the family grow up to be self-subsistent persons in the eyes of the law (see § 177) lets into the circle of the family something of the same arbitrariness and discrimination among the natural heirs, though its exercise there must be restricted to a minimum in order to prevent injury to the basic family relationship.
Remark: The mere downright arbitrariness of the deceased cannot be made the principle underlying the right to make a will, especially if it runs counter to the substantive right of the family. For after all no respect would be forthcoming for his wishes after his death, if not from the family's love and veneration for its deceased fellow-member. Such arbitrariness by itself contains nothing worthy of higher respect than the right of the family as such — on the contrary.
The other ground for the validity of testamentary disposition would consist simply in its arbitrary recognition by others. But such an argument may prima facie be admitted only when family ties, to which testamentary disposition is intrinsic, become remoter and more ineffective. If they are actually present, however, without being effective, the situation is unethical; and to give extended validity to arbitrary dispositions at the expense of family ties eo ipso weakens the ethical character of the latter.
To make the father's arbitrary will within the family the main principle of inheritance was part of the harsh and unethical legal system of Rome to which reference has been made already. That system even gave a father power to sell his son, and if the son was manumitted by a third party, he came under his father's potestas once more. Not until he was manumitted a third time was he actually and finally free. The son never attained his majority de jure nor did he become a person in law; the only property he could hold was booty won in war (peculium castrense). If he passed out of his father's potestas after being thrice sold and manumitted, he did not inherit along with those who had continued in bondage to the head of the family, unless the will specifically so provided. Similarly, a wife remained attached to her family of origin rather than to the new family which by her marriage she had helped to found, and which was now properly her own, and she was therefore precluded from inheriting any share of the goods of what was properly her own family, for neither wife nor mother shared in the distribution of an estate.
Later, with the growing feeling for rationality, the unethical provisions of laws such as these and others were evaded in the course of their administration, for example with the help of the expression bonorum possessio instead of hereditas, and through the fiction of nicknaming a filia a filius. This was referred to above (see Remark to § 3) as the sad necessity to which the judge was reduced in the face of bad laws — the necessity of smuggling reason into them on the sly, or at least into some of their consequences. Connected with this were the terrible instability of the chief political institutions and a riot of legislation to stem the outbreak of resulting evils.
From Roman history and the writings of Lucian and others, we are sufficiently familiar with the unethical consequences of giving the head of a Roman family the right to name whom he pleased as his heir.
Marriage is ethical life at the level of immediacy; in the very nature of the case, therefore, it must be a mixture of a substantial tie with natural contingency and inner arbitrariness. Now when by the slave-status of children, by legal provisions such as those mentioned above as well as others consequential upon them, and in addition by the ease of Roman divorce, pride of place is given to arbitrariness instead of to the right of the substantial (so that even Cicero — and what fine writing about the Honestum and Decorum there is in his De Officiis and in all sorts of other places! — even Cicero divorced his wife as a business speculation in order to pay his debts with his new wife's dowry), then a legal road is paved to the corruption of manners, or rather the laws themselves necessitate such corruption.
The institution of heirs-at-law with a view to preserving the family and its splendour by means of fideicommissa and substitutiones (in order to favour sons by excluding daughters from inheriting, or to favour the eldest son by excluding the other children) is an infringement of the principle of the freedom of property (see § 62), like the admission of any other inequality in the treatment of heirs. And besides, such an institution depends on an arbitrariness which in and by itself has no right to recognition, or more precisely on the thought of wishing to preserve intact not so much this family but rather this clan or 'house'. Yet it is not this clan or 'house', but the family proper which is the Idea and which therefore possesses the right to recognition, and both the ethical disposition and family trees are much more likely to be preserved by freedom of property and equality of inheritance than by the reverse of these.
Institutions of this kind, like the Roman, wholly ignore the right due to marriage, because by a marriage the foundation of a unique actual family is eo ipso completed (see § 172), and because what is called, in contrast with the new family, the family in the wide sense, i.e. the stirps or gens, becomes only an abstraction (see § 177) growing less and less actual the further it recedes into the background as one generation succeeds another. Love, the ethical moment in marriage, is by its very nature a feeling for actual living individuals, not for an abstraction. This abstraction of the Understanding [the gens] appears in history as the principle underlying the contribution of the Roman Empire to world history (see § 357). In the higher sphere of the state, a right of primogeniture arises together with estates rigidly entailed; it arises, however, not arbitrarily but as the inevitable outcome of the Idea of the state. On this point see below, § 306.
Addition: In earlier times, a Roman father had the right to disinherit his children and even kill them. Later he lost both these rights. Attempts were made to forge into a legal system this incoherence between unethical institutions and devices to rob them of that character, and it is the retention of this incoherence which constitutes the deficiency and difficulty of the German law of inheritance. To be sure, the right to make a will must be conceded; but in conceding it our point of view must be that this right of free choice arises or is magnified with the dispersion and estrangement of the members of the family. Further, the so-called 'family of friends' which testamentary disposition brings with it may be admitted only in defect of members of the family proper, i.e. of spouse and children. To make a will at all entails something obnoxious and disagreeable, because in making it I reveal the names of my favourites. Favour, however, is arbitrary; it may be gained surreptitiously by a variety of expedients, it may depend on all sorts of foolish reasons, and as a condition of having his name included in a will, a beneficiary may be required to subject himself to the most abject servilities. In England, the home of all sorts of eccentricity, there is no end to the folly and whimsicality of bequests.
The family disintegrates (both essentially, through the working of the principle of personality, and also in the course of nature) into a plurality of families, each of which conducts itself as in principle a self-subsistent concrete person and therefore as externally related to its neighbours. In other words, the moments bound together in the unity of the family, since the family is the ethical Idea still in its concept, must be released from the concept to self-subsistent objective reality. This is the stage of difference. This gives us, to use abstract language in the first place, the determination of particularity which is related to universality but in such a way that universality is its basic principle, though still only an inward principle; for that reason, the universal merely shows in the particular as its form. Hence this relation of reflection prima facie portrays the disappearance of ethical life or, since this life as the essence necessarily shows itself, this relation constitutes the world of ethical appearance — civil society.
Remark: The expansion of the family, as its transition into a new principle, is in the external world sometimes its peaceful expansion until it becomes a people, i.e. a nation, which thus has a common natural origin, or sometimes the federation of scattered groups of families under the influence of an overlord's power or as a result of a voluntary association produced by the tie of needs and the reciprocity of their satisfaction.
Addition: The starting-point for the universal here is the self-subsistence of the particular, and the ethical order seems therefore to be lost at this point, since it is precisely the identity of the family which consciousness takes to be the primary thing, the divine, and the source of obligation. Now, however, a situation arises in which the particular is to be my primary determining principle, and thus my determinacy by ethical factors has been annulled. But this is nothing but a pure mistake, since, while I suppose that I am adhering to the particular, the universal and the necessity of the link between particulars remains the primary and essential thing. I am thus altogether on the level of show, and while my particularity remains my determining principle, i.e. my end, I am for that very reason the servant of the universal which properly retains power over me in the last resort.
Civil Society (next section)
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