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Section Two - Parental Society

Chapter 1

The principle determining the jural relationships between father, mother and children

1446. Generation is the title sustaining patria potestas (cf. RI, 781-790). What we have said already about generation would be sufficient, except that we still have to determine the rights of the mother relative to the father. We must deal, therefore, with the title of generation in such a way that we can state the respective rights of patria potestas of father and mother over the children. Our thought on this matter can be briefly indicated as follows: `The principle determining the jural relationships between father, mother and children is the special collective person formed according to nature by these three jural persons.'

1447. In order to apply this principle, it is necessary to state what is special to the collective person formed on the one hand by the father and mother, and on the other by the parents with the children. There is not in fact a single species of collective persons, nor can the jural relationships we are seeking be deduced from the concept of collective person in general. We have to go to the concept of the special person formed by the three members of the family together: father, mother and child.

1448. Collective persons can exist without the addition of natural bonds as the result of a willed decision on the part of more than one individual person. Such collective persons can be dissolved by the will which in fact formed them. This is not the case with those collective persons in whom, along with the willed decision that forms them, nature itself unites an element of its own which becomes the title of jural-moral obligations. These obligations cannot be renounced because the title from which they spring was not the work of a willed decision. Such is the case with marriage.

1449. The element placed by nature in marriage gives this union four marks specific to the collective person of the spouses. These marks are:

1. Perpetuity. Marriage cannot be a full union between the two individuals who contract it if it is not perpetual.
2. The equality of the union from the first day of the marriage to the death of one of the spouses.
3. The union is such that it involves full, dutiful subjection of the wife as wife to the husband.
4. Finally, the union is prior to the existence of children and to the new collective person which begins with the birth of children.

1450. This final mark of priority possessed by the collective person of the parents - the fact that children on coming into the world find their parents already united indissolubly - allows us to conclude that the duties and all the jural relationships of children have first to be considered relative to the collective person of the parents. The offspring's first duties are towards this indivisible person, and the first rights of the parents are also those of a single person towards the children. The parents therefore first possess their rights over the children in solido, just as the children have jural-moral obligations towards the parents in solido.

1451. But how is this solidarity divided? To answer this question we have to return to the principle already posited about the specific collective person of the spouses, that is, to the third mark which determines this specification. According to this mark, the wife is fully subject to the husband with a subjection that assists and perfects the full union of the two spouses.

1452. We assigned two titles to this duty of subjection and to the corresponding right of government in the husband: 1. the dynamic feeling shown in the man which moves him to want to be head of a family; 2. the different forces and aptitudes of man and woman.
It follows from the subjection of the woman to her husband that although father and mother have rights and duties of the same nature relative to their children from the point of view of their union, they possess them in a different mode from the point of view of their inequality.
If the woman's subjection is considered in so far as it proceeds from the natural feeling proper to the man that makes him want to be head of the family, the rights of the man over the children are formally different from those of the woman; the father is the absolute subject of these rights and duties, the mother is the relative subject.

1453. We have already explained what is proper to the absolute subject and what is proper to the relative subject of rights (cf. RI, 1279-1290, 1332-1339). It follows from this teaching that:

1. After the father's death and in his absence, or with his express or tacit consent, the mother can jurally do everything in the children's regard that the father can do.

2. She cannot act in any way against the just and lawful will of the father. She must always esteem this will as just and lawful as long as she is not completely certain that it is unlawful and unjust. The absolute owner is also the competent judge.

1454. But if we consider the different aptitudes and faculties of the husband and wife, we find that by nature they divide their duties to their children. This division is not according to form, but rather according to matter. In other words, although both father and mother are the subject of the same duties, one is capable of exercising some of them to a higher degree than the other. Preferably, therefore, the exercise of these duties must be given to this person. The rights corresponding to this kind of duties are divided between father and mother according to the same principle.

1455. Having determined the relationship of father and mother towards the children, we still have to determine the relationship of both collectively towards the children.
As the jural relationship of father and mother is derived from the specific difference of their collective person, so the jural relationship of the collective person of the parents towards the offspring is derived from the specific difference of the collective person formed between children and parents.

1456. To clarify the specific difference of the collective person formed between parents and children, it will help if we compare this person with that formed by the parents themselves. Above all, we need to look at the first two marks of the collective person of the spouses, perpetuity and equality.

1457. The union of parents with their children is perpetual, but not always equal. We have seen (cf. 1063) that the child is brought into being by a material, living element which is first a portion of his parents but then has its own life.(240) This element, constituted as existent per se, is the nature, not the person of the child (the person is given by God).(241)

1458. The rights of the parents as specific authors of the child are relative, therefore, to the nature of the child; the person of the child remains free. The parents have full dominion over the child with the exception of his personal dignity, which is essentially free and seen as an end coming not from the parents but from the Creator.

1459. The person of the child occupies its own body from the first moment of existence. The physico-moral bond that constitutes this ownership could not be closer because the intellective soul and the body form a single individual. The child, therefore, retains naturally the ownership of his own body which cannot be alienated by the parents. It is true that the first elements of this body were once the parents', and consequently owned by them. Now, however, they have separated these threads from themselves and allowed, or rather wanted, the child's soul to inform and individuate them. But since ownership is the result of the physico-moral union of person with the object of ownership, it follows that the ownership the child has over its own body is greater than that retained by its parents. In other words, the child has an absolute right over its own body; the parents have a right relative to all other people (cf. RI, 383-401, 485-495, 529).

1460. Nevertheless, the child, having the right over its own body from the will of its parents, also has a never-ending ethical duty of gratitude which obliges it to use the body it has received to their advantage and according to their lawful and just will.(242)

1461. We must also note that the baby does not immediately make full use of its own faculties. There is a time during which the parents can make use of the child to their own and its advantage without doing it harm (cf. RI, 546-547). It is lawful to use what belongs to others provided this is done without harm to the owner.
But the baby grows and gradually comes to use its faculties to its own benefit. The person in the human being dominates ever more, and thus renders himself less apt to be used by his parents.

1462. The union between parents and offspring, although perpetual, is not therefore always equal, as it is in the case of spouses. It diminishes at various stages of life. Nor is it in any way such that the two become one flesh. It is a union of feeling, a moral, jural union, nothing more. And it will help if we expound more at length this union, the foundation of the right that parents have over their offspring.

Notes

(240) The act of separation does not prevent the continuation of life. It is the point where the extremities of the two individual lives touch and continue. In other words, it is simply life itself with two personal relationships, which then cease.

(241) AMS, 812-837. Samuel Cocceji derives the patria potestas principally from the right over the seed (ex jure seminis): `The true origin of patria potestas is DERIVED NOT SO MUCH FROM GENERATION (where mother and father contribute equally), but FROM CONSENT and FROM THE RIGHT OVER THE SEED.' (Note on Grotius, bk. 2, c. 5, §1). It is true that consent forms marriage, but it is not the principle determining the rights of the spouses. These rights are determined by the nature of the conjugal union. Nor does the woman on marrying intend to renounce any right which comes to her from the nature of the union into which she enters. The right over the seed, in turn, does not allow anyone to be owner of the plant growing from it unless his ownership of the ground in which it grows is presupposed. It is the ownership of the ground - in this case the dominion of the husband over the wife - which gives the husband priority even in the patria potestas. However, the ownership that the husband has over the body of his companion, does not prevent her from retaining some ownership, relative to all other men, over her own body and over the seed she receives from him. As we said, she retains a relative patria potestas.

(242) PE, 200-205.

Chapter 02

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