Lectures on the Principles of Political Obligation

O. the Right of the State in Regard to the Family

233. In the consideration of those rights which do not arise out of the existence of the state, but which are antecedent to it (though of course implying society in some form), and which it is its office to enforce, we now come to family or household rights—also called, though not very distinctively, rights in private relations—of which the most important are the reciprocal rights of husband and wife, parent and child. The distinctive thing about these is that they are not merely rights of one person as against all or some other persons over some thing, or to the performance of or abstention from some action; they are rights of one person as against all other persons to require or prevent a certain behaviour on the part of another. Right to free life is a right on the part of any and every person to claim from all other persons that course of action or forbearance which is necessary to his free life. It is a right against all the world, but not a right over any particular thing or person. A right of property, on the other hand, is a right against all the world, and also over a particular thing; a right to claim from any and every one certain actions and forbearances in respect of a particular thing (hence called ‘jus in rem’). A right arising from contract, unlike the right of property or the right of free life, is not a right as against all the world, but a right as against a particular person or persons contracted with to claim a certain performance or forbearance. It may or may not be a right over a particular thing, but as it is not necessarily so, while it is a right against a particular person or persons in distinction from all the world, it is called ‘jus in personam’ as distinct from ‘in rem.’ The right of husband over wife and that of parent over children (or vice versa) differs from the right arising out of contract, inasmuch as it is not merely a right against the particular person contracted with, but a right against all the world. In this respect it corresponds to the right of property; but differs again from this, since it is not a right over a thing but over a person. It is a right to claim certain acts or forbearances from all other persons in respect of a particular person: or (more precisely) to claim a certain behaviour from a certain person, and at the same time to exclude all others from claiming it. Just because this kind of right is a right over a person, it is always reciprocal as between the person exercising it and the person over whom it is exercised. All rights are reciprocal as between the person exercising them and the person against whom they are exercised. My claim to the right of free life implies a like claim upon me on the part of those from whom I claim acts and forbearances necessary to my free life. My claim upon others in respect of the right of property, or upon a particular person in respect of an action which he has contracted to perform, implies the recognition of a corresponding claim upon me on the part of all persons or the particular party to the contract. But the right of a husband in regard to his wife not merely implies that all those as against whom he claims the right have a like claim against him, but that the wife over whom he asserts the right has a right, though not a precisely like right, over him. The same applies to the right of a father over a son, and of a master over a servant.

234. A German would express the peculiarity of the rights now under consideration by saying that, not only are persons the subjects of them, but persons are the objects of them. By the ‘subject’ of rights he would mean the person exercising them or to whom they belong; by ‘object’ that in respect of which the rights are exercised. The piece of land or goods which I own is the ‘object’ of the right of property, the particular action which one person contracts to perform for another is the ‘object’ of a right of contract; and in like manner the person from whom I have a right to claim certain behaviour, which excludes any right on the part of anyone else to claim such behaviour from him or her, is the ‘object’ of the right. But English writers commonly call that the subject of a right which the Germans would call the object. By the subject of a right of property they would not mean the person to whom the right belongs, but the thing over which, or in respect of which, the right exists. And in like manner, when a right is exercised over, or in respect of a person, such as a wife or a child, they would call that person, and not the person exercising the right, the subject of it. By the object of a right, on the other hand, they mean the action or forbearance which someone has a right to claim. The object of a right arising out of contract would be the action which the person contracting agrees to perform. The object of a connubial right would not be, as according to German usage, the person in regard to, or over, whom the right is exercised—that person would be the subject of the right—but either the behaviour which the person possessing the right is entitled to claim from that person, or the forbearances in respect to that person, which he is entitled to claim from others. (Austin, I. 378 and II. 736.) Either usage is justifiable in itself. The only matter of importance is not to confuse them. There is a convenience in expressing the peculiarity of family rights by saying, according to the sense of the terms adopted by German writers, that not only are persons subjects of them but persons are objects of them. It is in this sense that I shall use these terms, if at all.

235. So much for the peculiarity of family rights, as distinct from other rights. The distinction is not merely a formal one. From the fact that these rights have persons for their objects, there follow important results, as will appear, in regard to the true nature of the right, to the manner in which it should be exercised. The analytical, as distinct from the historical, questions which have to be raised with reference to family rights correspond to those raised with reference to rights of property. As we asked what in the nature of man made appropriation possible for him, so now we ask (1) what it is in the nature of man that makes him capable of family life. As we asked next how appropriations came to be so sanctioned by social recognition as to give rise to rights of property, so now we have to ask (2) how certain powers exercised by a man, certain exemptions which he enjoys from the interference of others, in his family life, come to be recognised as rights. And as we inquired further how far the actual institutions of property correspond with the idea of property as a right which for social good should be exercised, so now we have to inquire (3) into the proper adjustment of family rights, as determined by their idea; in what form these rights should be maintained; bearing in mind (a) that, like all rights, their value depends on their being conditions of which the general observance is necessary to a free morality, and (b) their distinctive character as rights of which, in the sense explained, persons are the objects.

236. (1) We saw that appropriation of that kind which, when secured by a social power, becomes property, supposes an effort on the part of the individual to give reality to a conception of his own good, as a whole or as something permanent, in distinction from the mere effort to satisfy a want as it arises. The formation of family life supposes a like effort, but it also supposes that in the conception of his own good to which a man seeks to give reality there is included a conception of the well-being of others, connected with him by sexual relations or by relations which arise out of these. He must conceive of the well-being of these others as a permanent object bound up with his own, and the interest in it as thus conceived must be a motive to him over and above any succession of passing desires to obtain pleasure from, or give pleasure to, the others; otherwise there would be nothing to lead to the establishment of a household, in which the wants of the wife or wives are permanently provided for, in the management of which a more or less definite share is given to them (more definite, indeed, as approach is made to a monogamistic system, but not wholly absent anywhere where the wife is distinguished from the female), and upon which the children have a recognised claim for shelter and sustenance.

237. No doubt family life as we know it is an institution of gradual growth. It may be found in forms where it is easy to ignore the distinction between it and the life of beasts. It is possible that the human beings with whom it first began—beings ‘human’ because capable of it—may have been ‘descended’ from animals not capable of it, i.e. they may have been connected with such animals by certain processes of generation. But this makes no difference in the nature of the capacity itself, which is determined not by a past history but by its results, its functions, that of which it is a capacity. As the foundation of any family life, in the form in which we know it, implies that upon the mere sexual impulse there has supervened on the part of the man a permanent interest in a woman as a person with whom his own well-being is united, and a consequent interest in the children born of her, so in regard to every less perfect form out of which we can be entitled to say that the family life, as we know it, has developed, we must be also entitled to say that it expresses some interest which is in principle identical with that described, however incompletely it has emerged from lower influences.

238. (2) Such an interest being the basis of family relations, it is quite intelligible that everyone actuated by the interest should recognise, and be recognised by, everyone else to whom he ascribes an interest like his own, as entitled to behave towards the objects of the interest—towards his wife and children—in a manner from which everyone else is excluded; that there should thus come to be rights in family relations to a certain privacy in dealing with them; rights to deal with them as his alone and not another’s; claims, ratified by the general sense of their admission being for the common good, to exercise certain powers and demand certain forbearances from others, in regard to wife and children. It is only indeed at an advanced stage of reflection that men learn to ascribe to other men, simply as men, the interests which they experience themselves; and hence it is at first only within narrow societies that men secure to each other the due privileges and privacies of family life. In others of the same kin or tribe they can habitually imagine an interest like that of which each feels his own family life to be the expression, and hence in them they spontaneously respect family rights; but they cannot thus practically think themselves into the position of a stranger, and hence towards him they do not observe the same restraints. They do not regard the women of another nation as sacred to the husbands and families of that nation. But that power of making another’s good one’s own, which in the more intense and individualised form is the basis of family relations, must always at the same time exist in that more diffused form in which it serves as the basis of a society held together by the recognition of a common good. Wherever, therefore, the family relations exist, there is sure to exist also a wider society which by its authority gives to the powers exercised in those relations the character of rights. By what process the relations of husband and wife and the institution of the household may have come to be formed among descendants of a single pair, it is impossible to conceive or to discover, but in fact we find no trace in primitive history of households except as constituents of a clan recognising a common origin; and it is by the customs of the clan, founded on the conception of a common good, that those forbearances on the part of members of one household in dealing with another, which are necessary to the privacy of the several households, are secured.

239. The history of the development of family life is the history of the process (a) by which family rights have come to be regarded as independent of the special custom of a clan and the special laws of a state, as rights which all men and women, as such, are entitled to. This, however, characterises the history of all rights alike. It is a history farther (b) of the process by which the true nature of these rights has come to be recognised, as rights over persons; rights of which persons are the objects, and which therefore imply reciprocal claims on the part of those over whom they are exercised and of those who exercise them. The establishment of monogamy, the abolition of ‘patria potestas’ in its various forms, the ‘emancipation of women’ (in the proper sense of the phrase), are involved in these two processes. The principles (1) that all men and all women are entitled to marry and form households, (2) that within the household the claims of the husband and wife are throughout reciprocal, cannot be realised without carrying with them not merely monogamy, but the removal of those faulty relations between men and women which survive in countries where monogamy is established by law.

240. Under a system of polygamy, just so far as it is carried out, there must be men who are debarred from marrying. It can only exist, indeed, alongside of a slavery, which excludes masses of men from the right of forming a family. Nor does the wife, under a polygamous system, though she ostensibly marries, form a household, or become the co-ordinate head of a family, at all. The husband alone is head of the family and has authority over the children. The wife, indeed, who for the time is the favourite, may practically share the authority, but even she has no equal and assured position. The ‘consortium omnis vitae,’ the ‘individua vitae consuetudo,’ which according to the definition in the Digest is an essential element in marriage, is not hers.1 [2]

And further as the polygamous husband requires a self-restraint from his wife which he does not put on himself, he is treating her unequally. He demands a continence from her which, unless she is kept in the confinement of slavery, can only rest on the attachment of a person to a person and on a personal sense of duty, and at the same time is practically ignoring the demand, which this personal attachment on her part necessarily carries with it, that he should keep himself for her as she keeps herself for him. The recognition of children as having claims upon their parents reciprocal to those of the parents over them, equally involves the condemnation of polygamy. For these claims can only be duly satisfied, the responsibilities of father and mother towards the children (potentially persons) whom they have brought into the world can only be fulfilled, if father and mother jointly take part in the education of the children; if the children learn to love and obey father and mother as one authority. But if there is no permanent ‘consortium vitae’ of one husband with one wife, this joint authority over the children becomes impossible. The child, when its physical dependence on the mother is over, ceases to stand in any special relation to her. She has no recognised duties to him, or he to her. These lie between him and his father only, and just because the father’s interests are divided between the children of many wives, and because these render their filial offices to the father separately, not to father and mother jointly, the true domestic training is lost.

[2] [Latin consortium omnis vitae = partnership for life individua vitae consuetudo = unbroken companionship of life Tr]

241. Monogamy, however, may be established, and an advance so far made towards the establishment of a due reciprocity between husband and wife, as well as towards a fulfilment of the responsibilities incurred in bringing children into the world, while yet the true claims of men in respect of women, and of women in respect of men, and of children upon their parents, are far from being generally realised. Wherever slavery exists alongside of monogamy, on the one side people of the slave class are prevented from forming family ties, and on the other those people who are privileged to marry, though they are confined to one wife, are constantly tempted to be false to the true monogamistic idea by the opportunity of using women as chattels to minister to their pleasures. The wife is thus no more than an institution, invested with certain dignities and privileges, for the continuation of the family; a continuation, which under pagan religions is considered necessary for the maintenance of certain ceremonies, and to which among ourselves an importance is attached wholly unconnected with the personal affection of the man for the wife.1 When slavery is abolished, and the title of all men and women equally to form families is established by law, the conception of the position of the wife necessarily rises. The ἑταίρα and παλλακή2 cease at any rate to be recognised accompaniments of married life, and the claim of the wife upon the husband’s fidelity, as reciprocal to his claim upon hers, becomes established by law.

242. Thus that marriage should only be lawful with one wife, that it should be for life, that it should be terminable by the infidelity of either husband or wife, are rules of right; not of morality, as such, but of right. Without such rules the rights of the married persons are not maintained. Those outward conditions of family life would not be secured to them, which are necessary on the whole for the development of a free morality. Polygamy is a violation of the rights, (1) of those who through it are indirectly excluded from regular marriage, and thus from the moral education which results from this; (2) of the wife, who is morally lowered by exclusion from her proper position in the household and by being used, more or less, as the mere instrument of the husband’s pleasure; (3) of the children, who lose the chance of that full moral training which depends on the connected action of father and mother. The terminability of marriage at the pleasure of one of the parties to it (of its terminability at the desire of both we will speak presently) is a violation of the rights at any rate of the unconsenting party, on the grounds (a) that liability to it tends to prevent marriage from becoming that ‘individua vitae consuetudo’ which gives it its moral value, and (b) that, when the marriage is dissolved, the woman, just in proportion to her capacity for self-devotion and the degree to which she has devoted herself to her original husband, is debarred from forming that ‘individua vitae consuetudo’ again, and thus crippled in her moral possibilities. It is a violation of the rights of children for the same reason for which polygamy is so.

On the other hand, that the wife should be bound indissolubly by the marriage-tie to an unfaithful husband (or vice versa), is a violation of the right of wife (or husband, as the case may be), because on the one hand the restraint which makes her liable to be used physically as the instrument of the husband’s pleasures, when there is no longer reciprocal devotion between them, is a restraint which (except in peculiar cases) renders moral elevation impossible; and on the other, she is prevented from forming such a true marriage as would be, according to ordinary rules, the condition of the realisation of her moral capacities. Though the husband’s right to divorce from an unfaithful wife has been much more thoroughly recognised than the wife’s to divorce from an unfaithful husband, he would be in fact less seriously wronged by the inability to obtain a divorce, for it is only the second of the grounds just stated that fully applies to him. The rights of the children do not seem so plainly concerned in the dissolution of a marriage to which husband or wife has been unfaithful. In some cases the best chance for them might seem to lie in the infidelities being condoned and an outward family peace re-established. But that their rights are violated by the infidelity itself is plain. In the most definite way it detracts from their possibilities of goodness. Without any consent on their part, quite independently of any action of their own will, they are placed by it in a position which tends—though special grace may counteract it—to put the higher kinds of goodness beyond their reach.

243. These considerations suggest some further questions which may be discussed under the following heads. (1) If infidelity in marriage is a violation of rights in the manner stated, and if (as it must be) it is a wilful and knowing violation, why is it not treated as a crime, and, like other such violations of rights, punished by the state in order to the better maintenance of rights? (2) Should any other reason but the infidelity of husband or wife be allowed for the legal dissolution of the marriage-tie? (3) How are the rights connected with marriage related to the morality of marriage?

(1) There is good reason why the state should not take upon itself to institute charges of adultery, but leave them to be instituted by the individuals whose rights the adultery violates. The reasons ordinarily alleged would be, (a) the analogy of ordinary breaches of contract, against which the state leaves it to the individual injured to set the law in motion; (b) the practical impossibility of preventing adultery through the action of the functionaries of the state. The analogy, however, from ordinary breaches of contract does not really hold. In the first place, though marriage involves contract, though without contract there can be no marriage, yet marriage at once gives rise to rights and obligations of a kind which cannot arise out of contract, in particular to obligations towards the children born of the marriage. These children, at any rate, are in no condition to seek redress—even if from the nature of the case redress could be had—for the injuries inflicted on them by a parent’s adultery, as a person injured by a breach of contract can seek redress for it. Again, though the state leaves it to the individual injured by a breach of contract to institute proceedings for redress, if the breach involves fraud, it, at any rate in certain cases, treats the fraud as a crime and punishes. Now in every breach of the marriage-contract by adultery there is that which answers to fraud in the case of ordinary breach of contract. The marriage-contract is broken knowingly and intentionally. If there were no reason to the contrary, then, it would seem that the state, though it might leave to the injured individuals the institution of proceedings against adultery, should yet treat adultery as a crime and seek to prevent it by punishment in the interest of those whose virtual rights are violated by it, though not in the way of breach of contract. But there are reasons to the contrary—reasons that arise out of the moral purposes served by the marriage-tie—which make it desirable both that it should be at the discretion of the directly injured party whether a case of adultery should be judicially dealt with at all, and that in no case should penal terror be associated with such a violation of the marriage-bond Under ordinary conditions, it is a public injury that a violation of his rights should be condoned by the person suffering it. If the injured individual were likely to fail in the institution of proceedings for his own redress or defence, the public interest would require that the matter should be taken out of his hands. But if an injured wife or husband is willing to condone a breach of his or her rights through adultery, it is generally best that it should be condoned. That married life should be continued in spite of anything like dissoluteness on the part of husband or wife, is no doubt undesirable. The moral purposes which married life should serve cannot be served, either for the married persons themselves or for the children, under such conditions. On the other hand, the condonation of a single offence would generally be better for all concerned than an application for divorce. The line cannot be drawn at which, with a view to the higher ends which marriage should serve, divorce becomes desirable. It is therefore best that the state, while uniformly allowing the right of divorce where the marriage-bond has been broken by adultery (since otherwise the right of everyone to form a true marriage, a marriage which shall be the basis of family life, is neutralised,) and taking care that procedure for divorce be cheap and easy, should leave the enforcement of the right to the discretion of individuals.

244. On similar grounds, it is undesirable that adultery as such should be treated as a crime, that penal terror should be associated with it. Though rights, in the strict sense, undoubtedly arise out of marriage, though marriage has thus its strictly legal aspect, it is undesirable that this legal aspect should become prominent. It may suffer in respect of its higher moral purposes, if the element of force appears too strongly in the maintenance of the rights to which it gives rise. If a husband who would otherwise be false to the marriage-bond is kept outwardly faithful to it by fear of the punishment which might attend its breach, the right of the wife and children is indeed so far protected, but is anything gained for those moral ends, for the sake of which the maintenance of these rights is alone of value? The man in whom disloyal passion is neutralised by fear of punishment will contribute little in his family life to the moral development of himself, his wife, or his children. If he cannot be kept true by family affection and sympathy with the social disapprobation attaching to matrimonial infidelity (and unless it is a matter of social disapprobation no penalties will be effectually enforced against it), he will not be kept true in a way that is of any value to those concerned by fear of penalties. In other words, the rights that arise out of marriage are not of a kind which can in their essence be protected by associating penal terror with their violation, as the rights of life and property can be. They are not rights to claim mere forbearances or to claim the performance of certain outward actions, by which a right is satisfied irrespectively of the disposition with which the act is done. They are claims which cannot be met without a certain disposition on the part of the person upon whom the claim rests, and that disposition cannot be enforced. The attempt to enforce the outward behaviour in order to satisfy the claim, which is a claim not to the outward behaviour merely but to this in connection with a certain disposition, defeats its own end.

245. For the protection, therefore, of the rights of married persons and their children against infidelity, it does not appear that the law can do more than secure facilities of divorce in the case of adultery. This indeed is not in itself a protection against the wrong involved in adultery, but rather a deliverance from the further wrong to the injured husband or wife and to the children that would be involved in the continuance of any legal claim over them on the part of the injurer. But indirectly it helps to prevent the wrong being done by bringing social disapprobation to bear on cases of infidelity, and thus helping to keep married persons faithful through sympathy with the disapprobation of which they feel that they would be the objects when they imagine themselves unfaithful. The only other effectual way in which the state can guard against the injuries in question is by requiring great precaution and solemnity in the contraction of marriages. This it can do by insisting on the consent of parents to the marriage of all minors, exacting a long notice (perhaps even a preliminary notice of betrothal), and, while not preventing civil marriage, by encouraging the celebration of marriage in the presence of religious congregations and with religious rites.

246. Question (2) is one that does not admit of being answered on any absolute principle We must bear in mind that all rights—in idea or as they should be—are relative to moral ends. The ground for securing to individuals in respect of the marriage-tie certain powers as rights, is that in a general way they are necessary to the possibility of a morally good life, either directly to the persons exercising them or to their children. The more completely marriage is a ‘consortium omnis vitae’ in the sense of a unity in all interests and for the whole of a lifetime, the more likely are the external conditions of a moral life to be fulfilled in regard both to married persons and their children. Therefore the general rule of the state in dealing with marriage should be to secure such powers as are favourable and withhold such as are not favourable to the ‘consortium omnis vitae.’ But in the application of the principle great difficulties arise. Lunacy may clearly render the ‘consortium omnis vitae’ finally impossible; but what kind and degree of lunacy? If the lunatic may possibly recover, though there is undoubtedly reason for the separation from husband or wife during lunacy, should permanent divorce be allowed? If it is allowed, and the lunatic recovers, a wrong will have been done both to him and to the children previously born of the marriage. On the other hand, to reserve the connubial rights of a lunatic of whose recovery there is hope, and to restore them when he recovers, may involve the wrong of bringing further children into the world with the taint of lunacy upon them. Is cruelty to be a ground of divorce, and if so, what amount? There is a degree of persistent cruelty which renders ‘consortium omnis vitae’ impossible, but unless it is certain that cruelty has reached the point at which a restoration of any sort of family life becomes impossible, a greater wrong both to wife and children may be involved in allowing divorce than in refusing it. A husband impatient for the time of the restraint of marriage may be tempted to passing cruelty as a means of ridding himself of it, while if no such escape were open to him he might get the better of the temporary disturbing passion and settle down into a decent husband. The same consideration applies still more strongly to allowing incompatibility of temper as a ground of divorce. It would be hard to deny that it might be of a degree and kind in which it so destroyed the possibility of ‘consortium omnis vitae,’ that, with a view to the interests of the children, who ought in such a case to be chiefly considered, divorce implied less wrong than the maintenance of the marriage-tie. But on the other hand, to hold out the possibility of divorce on the ground of incompatibility is just the way to generate that incompatibility. On the whole, the only conclusion seems to be that this last ground should not be allowed, and that in deciding on other grounds large discretion should be allowed to a well-constituted court.

Notes

1 ‘Nuptiae sunt conjunctio maris et feminae, consortium omnis vitae, divini et humani juris communicatio’ Digest, xxiii. 2, 1. ‘Matrimonium est viri et mulieris conjunctio individuam vita consuetudinem continens.’ Inst., i.9.2. (Quoted by Trendelenburg, Naturrecht, p. 282.)

1 Her position among the Greeks is well illustrated by a passage from the speech of Demosthenes (?) against Neaera, Sect. 122 (quoted by W. E. Hearn, The Aryan Household, p. 71). τὰς μὲν γὰρ ἑταίρας ἡδονῆς ἕνεκʹ ἔχομεν, τὰς δὲ παλλακὰς τῆς καθʹ ἡμέραν θεραπείας του σώματος, τὰς δὲ γυναῖκας τοῦ παιδοποιεῖσθαι γνησίως καὶ τῶν ἔνδον φύλακα πιστὴν ἔχειν (tas men gar hetairas hedones henek echomen, tas de pallakas tes kath’ hemeran therapeias tou somatos, tas de gynaikas tou paidopoieisthai gnesios kai ton endon phylaka pisten echein). [The query as to Demosthenes’ authorship is in Green’s text. Hearn translates this passage: Mistresses we keep for pleasure, concubines for daily attendance on our persons, wives to bear us legitimate children and to be our faithful housekeepers. Tr]

2 [Greek ἑταίρα (hetaira) = courtesan, παλλακή (pallake) = concubine. Tr]