Section One - Conjugal Society
Chapter 7
Sanction of the wife's rights in the state of nature
1431. We have imposed on the wife the jural duty of full submission to her husband but have nevertheless maintained her rights: we have maintained her absolute rights, that is, all those which are summed up in the preservation of her personal dignity; we have also maintained her rights relative to jural persons different from her husband.
Moreover, we have imposed on the husband jural obligations towards his wife: the obligation of not offending her personal dignity; the obligation of exercising his absolute rights in such a way that the corresponding relative rights in the wife are not lost or injured, but guarded and well-administered by him (cf. RI, 1279-1283).
1432. But what sanction is there for the wife's rights in the state of nature? It is certain both in the state of nature and in the social state that the best guarantee of rights is a great love of justice present in both parties, and especially in the stronger party. Moral education, therefore, is always the best and most efficacious means, even politically speaking, for the maintenance of mutual rights.
1433. Moreover the woman can also defend her rights efficaciously by moral means. Her virtue, words, tenderness and modest graces can bring about a change for the better in her husband: `For the unbelieving husband is consecrated through his wife.'(235) This is the first weapon of defence which she can securely employ.
1434. Another moral weapon available to the weak is recourse to God(236) who hears the prayers and tears of those who call upon him with faith and purity of heart.
1435. Besides these moral aids, certain defences and human, exterior guarantees are available to the woman in the state of domestic society.
1436. First, however, we have to point out that she must observe the rules of just, natural procedure both in the exercise of her right of defence (cf. RI, 1764-1819, 1942-1950) and in the exercise of her right of restitution(237) (cf. RI, 1977-1994).
1437. One of the headings of this procedure is the natural law in favour of the competent judge. The competent judge is the social superior - in conjugal society the husband. The wife cannot therefore use coercive means against the husband unless she has the kind of certainty about damage done to her rights which would be needed to proceed against a competent judge (cf. RI, 611-612).
1438. If then (granted the respect due to the competent judge) the wife has some possibility of action against the husband, she can normally use those means and aids that she has at hand. If this is not sufficient, she can appeal to external persons: first, to her father, brothers and relatives, and then to others. In the state of nature all have the right to come to her assistance (cf. RI, 144-156).
1439. Finally, we have to distinguish the right of defence of one's own rights, which pertains to the wife, from the right to cause some harm to the husband as a result of her defence. These are two rights (cf. RI, 1706) governed in their exercise by different norms.
1440. The right of defence, without positive harm to the husband, is granted to the wife in all its extension, as we have said, because it is not of itself opposed to full, conjugal union. Simple truth and justice are not opposed to true love and true charity.
1441. Positive harm to the husband,(238) however, is opposed to union. The wife must love the husband to the point of sacrifice; she must love him even when she suffers. She is not permitted to harm him in the exercise of her right of defence and restitution against him except in the case where the husband attempts to violate her pure, formal rights, or her life, and she has no other way of saving them. In all other cases where her husband is habitually wicked she can at most harm him negatively by withdrawing from communal living. She must always be ready to come back to him if he rectifies his unloving, vicious way of life.
1442. The nature of marriage thus tempers the right of defence and restitution possessed by the wife.(239) But the same must be said about the right to defence and restitution that the husband can exercise against his wife towards whom, however, he also has another kind of right, that is, of correcting her and inflicting on her moderate corrective punishment.
1443. Rights originating from the jural state of persons modify all the other rights that have things as their object (real rights). We have seen this occur when speaking of the right of defence and restitution that children have against their parents (cf. RI, 841-843).
We go on now to expound the right of parental society.
Notes
(235) 1 Cor 7: 14.
(236) Even pagan political laws, which furnished no civil rights of any sort to slaves, recognised some remaining natural right in them, that is, the right to have recourse to heavenly protection. In Athens, slaves who were harshly treated could flee to the temple of Theseus, or to some other asylum provided for them by religion.
(237) The case of restitution in favour of the wife is verified, for example, when the husband wrongly uses up the external goods to which the wife has a right of relative ownership (certified by the indication mentioned in RI, 1283-1284). The husband is obliged to indicate in this way a quantity of his own property equivalent to the quantity of his wife's wrongly used property.
(238) Harm to the husband is not understood as that which he has to suffer by way of satisfaction, or by returning his wife's rights to their pristine state. There is no harm in this.
(239) Many errors arose through the over-general application to rational Right of certain rules with only a partial value. Positive legislation, incapable or uninstructed, was unable to descend to more special distinctions. It took these rules and gave them a general value. Writers on natural Right, but educated through study of positive laws and more intent on elucidating them than on anything else, took these rules as human legislators had made them, and restored them to rational Right, but with their presupposed over-general value. As a result, the science of rational Right was entangled with a great deal of the arbitrariness proper to positive laws.
One example of this can be seen in Wolf's rather odd words: `Naturally speaking, a husband cannot abrogate to himself encroachment over an unwilling wife; if however the wife does not contradict the husband who abrogates encroachment, her LENGTHY PATIENCE finally passes into right' (part 7, §497). In this way, the heroic virtue of the wife would make her lose her rights, and constant arrogance on the part of the husband would make him acquire them. The rule abused by Wolf is valid only when the encroachment exercised by one human being over others 1. is not in itself culpable (the arrogance and pride of the husband in our case is such); 2. when silence is not the result of virtue, but a tacit expression of consent arising not from the impossibility of eliminating the yoke, but from finding it light, useful and lovable (cf. RI, 584-585). If these two conditions are absent, the encroachment is simply unjust, and unjust in proportion to its duration. The longer the injustice, the greater it is, and the greater the right in the offended person to defence and restitution.
New rules are needed to judge whether the two conditions we have mentioned are present. Sometimes they must be supposed, although they may not exist, when it cannot be proved that they are lacking; sometimes, even when there is proof of their absence, the exercise of the right of the offended person to throw off the yoke must be denied for reasons of public good, that is, through obligations proper to a higher order which sometimes require people to relinquish the use of their rights.