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Section Two - Parental Society

Chapter 2

Limitations of patria potestas

1463. To clear the way we shall begin by indicating the terms beyond which patria potestas cannot extend even though certain nations abusively transgress them.

1464. We have already indicated the first limitation: neither parents nor others can offend the personal dignity of anyone, be they child, wife or even self.

1465. We have distinguished ownership from the right of ownership (cf. RI, 921-959); in the same way, we must distinguish instinctive and de facto dominion from de jure dominion. Ownership considered as an instinctive fact of nature is unlimited; similarly, we have to recognise in human beings an instinct tending to unlimited dominion. This natural instinct is easily seen in parents who have given their all to their child and have kept him in their physical power for so long. However, if this instinctive dominion is not tempered by jural-moral reason, and does not accept the limits which this imposes, it is not raised to the dignity of jural dominion, that is, to the right of dominion.

1466. Keeping in mind the dictate of jural-moral reason, we say that the child's connatural right to life (cf. RI, 53-58) is valid relative even to the father, who has no more power to kill the child than to kill anyone else.

1467. In fact, the death penalty in civil society is justified only by the necessity for some exemplary punishment. We do not think that the head of a family can ever be under such a necessity, which would seem to be present only in a case of a great multitude of people who cannot be ruled except by examples of terror. In a family, it would not seem possible for a recalcitrant child to communicate his indocility easily to siblings who are united through natural love with their parents, whom they normally defend against a wayward brother. Moreover, the head of a family has many other means, made available in nature, for ruling the family. The first is his very own paternal love and the good up-bringing he must provide for the children. The extreme remedy to be used against a child or any other wayward member of the household in the effort to save the domestic society from subversion is the separation and exclusion of the recalcitrant member from the body of the family.(243) Killing the child is directly opposed to the generative feeling which moved the father to give him life, and which alone has made him father. The father, by the very fact of renouncing this feeling and acting in a way directly contrary to it, divests himself of his paternity and becomes jurally inferior as a result of his wickedness (cf. RI, 1995-1996). It seems, therefore, according to the Right of nature, that it is less lawful for a father to kill his child than for him to kill anyone else. However, the father retains his common rights of pre-emption and self-defence which are reinforced by his dignity as father.

1468. Here I would like to make a comment. As long as people lived in domestic society, it seems that God did not allow them to inflict the death penalty. Cain, although guilty of fratricide, is defended by God against the instinct for revenge and for penal justice which would have been aroused in others.(244) It seems that Cain did not fear Adam, his father, but other people. The same can be said about Lamech.(245) The right to inflict the death penalty is not found in Scripture during the entire period preceding the flood. After the flood, the violence of Nimrod is not a jural act, but hateful injustice on a par with that of Cain and Lamech.

The apparatus of legitimate killing is found for the first time in an express order of the divinity. Moreover, it is not an exemplary punishment, but a sacrifice made by a most tender father of his most beloved son in recognition of the supreme dominion of the Creator to whose absolute sovereignty pertain all human lives. Yet, while God requires human willingness to sacrifice life in order to teach people to acknowledge his supremacy, he also refuses these same lives. Isaac does not die under the knife of the father of believers.

Only later does God himself exercise the right to inflict an exemplary death penalty. Such is the case with the two wayward sons of Judah, Her and Onan,(246) as well as the preceding chastisements inflicted on the world or on entire cities. He also seems to have reserved to himself, immediately after the flood, the execution of the death penalty against murderers.(247)

This explains why the first record which has reached us of a jural process with a death penalty is that of Tamar in the twenty-third century of the world.(248) This trial however seems to pertain to a great extent to civil society. The people accuse Tamar before Judah, who was not her father. Tamar had been the wife of Judah's son, and on her husband's death had returned as a widow to her father's family. It was not her father, therefore, but her father-in-law who condemned her.(249)

This fact is subject to various explanations: 1. Judah could have condemned her to be burned alive moved by the feeling of revenge for his deceased first-born child, to whom Tamar had been unfaithful - she should have waited to give her hand to the younger sibling promised her for the purpose of raising up children for his brother; 2. he could have condemned her as a result of that feeling of justice (cf. RI, 147-156) which is so vehement that it excludes the kind of reflection limiting exemplary punishment; finally, 3. he could have condemned her as a public example at a time when, through lack of fully organised civil society, the people or any individual, but especially the relatives who acted as judges, thought themselves authorised to impose such a punishment.(250)

1469. Although the first two reasons are not valid in the light of developed jural reason, there is nothing to prevent their having a subjective value in those times when the understanding was incapable of many distinctions and people were directed more by the faculty of thought than that of abstraction, which had scarcely been used.(251)

1470. The third reason enables us to explain other ancient laws which gave fathers the right to kill their children.(252) These were civil laws through which fathers were brought to act in some way as judges in civil society.(253)

1471. As a result, the following advantages accrued to the law of the city:

1. It seconded the instinct of dominion which, placed by nature in the bosom of parents, was spontaneous. Human beings were unable to submit immediately to wholly regular order without giving way to a great extent to their native tendencies.

2. It strengthened domestic government, and provided a civil magistrate in every family.(254)

3. It lessened the punishment by entrusting its application to fatherly love, at least for crimes done within the household. At the time, there were no clearly established criminal laws or laws of procedure. This meant that judgments were to a great extent left to arbitrary decisions. In this state, it was better to commit them to paternal decisions than to those of strangers.(255)

1472. The servitude which disavows the dignity of end in a human being is intrinsically unlawful (cf. RI, 128-133). The attempt to reduce any human being whatsoever to such servitude is always wrong; it is much worse if this human being is one's own child.

1473. What is the situation if the servitude in question consists only in the permanent placement of a human being in work? It cannot be said that this is intrinsically unjust, but it is very hard for the person subject to it and is opposed in the highest degree to paternal love. We can only judge whether a father can have such a jural-moral faculty if, in an extreme case, we find a combination of circumstances which provides sufficient reason for his taking so cruel a step.

These reasons are not sufficient to give the father a reasonable stimulus to such action unless they also indicate simultaneously in the child a jural obligation to put himself or allow himself to be put in this position, in this way.
As far as I can see, there is only one case which provides these reasons. It concerns the well-being of the child and is often found in our poor human history.(256) If the child is offered the choice of death or servitude, his father can command him to accept servitude and the child would have to obey. The father has the right to safeguard the life of the child he has generated even against the child's will. The case for the father is further strengthened if the child is only a baby.

1474. He cannot place the child in work perpetually to punish or chastise him. Punishments inflicted by the father must be

1. Corrective, that is, aimed at the child's amendment. Punishments cannot be perpetual if they are to cease when amendment has come about.
2. Necessary for the good order of the family. The punishment of perpetual placement is not necessary because in an extreme case it would be sufficient to exclude the incorrigible child from a share in the family goods.

1475. We still have to see if such perpetual placement could be carried out for the father's good. I have no doubt that this is the case if there is a question of saving the father's life. The child must forever place his work, or let it be placed, if there is no other way of saving the life of his parent. This is a jural obligation because 1. the child is by nature a thing of his father in everything that does not harm his personal dignity and 2. placement contributes to the ordained good of the family.

1476. Finally, patria potestas cannot capriciously inflict any punishment nor cause any harm to the child.

1477. In the first place, parents have the rights and duties given by the concept of individual Right to all human beings. These rights and duties are somewhat modified by the parental condition.

1478. Parents also have the right to inflict corrective punishment on their children even after they have left home. The exercise of this right must be carried out prudently and with the probable hope of attaining its end, that is, amendment. This is a governmental right, which cannot be called social because the punishment and correction of an individual does not pertain properly speaking to social reason.(257)

1479. If, however, the child remains in parental society, the right of correction and of inflicting punishment is a right pertaining to social government, which must be exercised only for the ORDAINED GOOD OF THE FAMILY, the principle determining at one and the same time both the extension of governmental right of domestic society and the limits of this right. This will become clearer in the following chapter.

Notes

(243) An example of this kind of separation is found in Abraham's family. He sends away Agar, with her child, for the sake of peace with Sarah. Cf. Gen 21.

(244) Gen 4: 15.

(245) Gen 24: 24.

(246) Gen 38.

(247) Gen 9. This can be inferred, it would seem, from the universal prohibition about shedding blood, and from the explicit mention of husband and brothers who could be more interested in inflicting bloody revenge for previous violent deaths and other offences.

(248) Gen 38.

(249) I cannot understand how Jahn is able to say: `This patria potestas was absolute, and took the matter to its extreme of punishment.' He cites in proof of his assertion the passage about Tamar, and the other about the sending away of Agar (Archeol. P. 1, c. 11, §167).

(250) It would seem, from the fact that Judah releases Tamar from the punishment as soon as he discovers that he himself had had intercourse with her, that the first explanation is the correct one. As the representative of the dead husband to whom Tamar had been in some way unfaithful, he was the offended party. And according to the Mosaic laws, the guilty person was handed over for punishment to the person he had offended (Deut 17:[10]). This was in conformity with the natural Right of superiority and inferiority (cf. RI, 1995-1999), and is another reason for excluding patria potestas from this incident.

(251) Cf. SP.

(252) Cf. Dion, Orat. 15.

(253) Justinian mentions this explicitly in his Institutions where he derives the power of Roman fathers over their children not from rational but from civil Right. `The right of power over our children is PROPER TO ROMAN CITIZENS. There are no other people who have the kind of power that we have over our children' (bk. 1, t. 9).

(254) Livy says that amongst the Romans the house was governed as the city was. He calls the father `the domestic magistrate'. Seneca says the same: `Because it is useful for youth to be ruled, we impose domestic magistrates, as it were, on them' (De Beneficiis, bk. 3, c. 11).

(255) `The law, knowing that a father would judge rightly, granted him this section of right', says Sopater. The Mosaic laws allowed parents only to accuse children before the tribunal and have them punished by themselves (Deut 21: 18).

(256) In order to save the lives of the children they could not feed, Mexicans sold their offspring. Jornandes narrates that the Goths sold their children to save them from death: `Parents do the same thing as they try to care for the safety of their beloved children. They decide that it is better for them to lose every natural quality rather than life; better to be sold and mercifully fed than to be kept and die' (c. 26).

(257) We noted that the person who governs or administers a society need not belong to the society he governs or administrates (cf. USR, 313, 188). His office, however, is no less social because of this. On the other hand, government which does not concern a society, but mere individuals, is not a social office or right. For example, the right of a teacher over his disciples is not social, etc.

Chapter 03

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