Return to Contents

Section Two - Parental Society

Chapter 3

Patria postestas can do all that is required for the ordained good of the family

1480. In fact, the patria potestas which presides over domestic society is aimed solely at the good of the family. This good, therefore, determines the extension of the patria potestas.

1481. To proceed with clarity, we first have to distinguish power from the way in which power is exercised. It is possible to conceive mentally of a power which is per se harmful to the family. This kind of power does not enter into the sphere of patria potestas from which indeed it is excluded. Examples of this would be the killing or mutilation of the child, or his moral perversion.

1482. But harm can also arise from a wayward manner of exercising lawful power. In this case, the parent possess the power, but not the right to abuse it.

1483. The child can use those means of defence against the abuse which we have assigned to the wife against her husband.

1484. If we want to determine precisely what is consistent and what inconsistent with the ordained good of the family, we first have to know the nature of this ordained good. This in turn leads to another question: `What is the value of each member of the family in the total sum of the good of the body?'

1485. We have to consider that `family' is not understood as the simple social aggregation of father, mother and children, but above of all the specific nature of the bonds uniting these three elements of domestic society. The preservation, the respect for these bonds is the principal, essential part of family good. We have to consider these bonds, therefore, in determining the nature of the ordained good of the family.

1486. For the sake of brevity, we shall reduce the bonds to two. The first, binding children with their parents, is a blood-bond. Hence the rights, common to father and mother, which the jurists call jura sanguinis. These never cease, even when the child leaves the parental society to found a new family.

1487. The second bond normally follows on the first, although it is not as insoluble as the first. It is a bond of society. Hence the rights which jurists call jura familiae, and which we shall call rights of domestic society. In the word `family' we include both kinds of rights, rights of blood and social rights. These rights are not common to the parents, but pertain properly only to the head of the house as his very own.

1488. We said that the social bond in the family normally arises from the blood-bond. The reason is that although the blood-bond immediately produces of its nature a right of seigniory, it is nevertheless the occasion and also the jural-moral cause of the society. I say that it is also the cause because, although a master can form a society with his bond-servants (cf. USR, 185-190), father and mother are obliged to form a society with their children as soon as the latter are capable of society. Hence, there is a jural, moral necessity for such a society.

1489. The blood-bond therefore occasions the social bond because it produces the following rights for the parents: the right

1. To occupy the child born to them (cf. RI, 816-819).
2. To use the child for their own advantage, but without harm to the child.
3. To rear the child physically.
4. To educate the child in the way they think best for the child.(258)
5. To keep the child in their society until he marries and forms a new family, or certainly until something intervenes which makes it helpful to the child and his descendants to permit him to leave the domestic society of his parents (cf. RI, 820-822).

These five rights characterise parental society and distinguish it from other societies in so far as these rights are considered as the jural effect of the blood-bond that exists between children and their parents.

1490. The maintenance of these bonds and the rights which result from them is therefore an essential part of the ordained good of the family; patria potestas can do everything which leads to this end, with the exception of intrinsically evil actions.

1491. We have to analyse the fifth of the rights we have listed, that is, the right `to keep children in the society of their parents'. Our question, `What is the value of each member of the family in the sum total of the good of the body?' will to a great extent depend for its answer on the analysis of this right.

1492. Usefulness is a constitutive of every right.(259) What utility is present therefore in the right that parents have to keep their children in their society?

The utility is twofold: first, relative to the parents, then relative to the children. The entire ordained good of the family is reduced to this double utility, the elements of which we need to compare for the sake of understanding their relative values.

1493. Nature has inserted two feelings in the heart of parents which sometimes develop in opposition to one another. These are:

1. The feeling for generating children for one's own good.
2. The feeling for generating children for their good and the good of their descendants.

1494. The first of these natural feelings gives rise to the right of parents to draw profit for themselves from the children. This right finds its response in the obligation of children to second this effect.

1495. The second feeling gives rise to the right of parents to provide for the good of their children and their descendants.

1496. The first is a right of dominion, the second of beneficence.

1497. If these two feelings are considered in their perfection, we find that the first, which is easily contented, is willingly sacrificed to the second, prevalent right. In other words, if we consider human nature in its perfection, parents find it sufficient to live. For the rest, their greater good lies in that of the children themselves and their line. Granted a tolerably comfortable life for the parents, the line of their children has greater value in the total sum of the ordained good of the family.

1498. In this light, it is easy to determine the character of patria potestas in its exercise according to nature. It has

1. A small element of dominion (useful to the parents).
2. A large element of beneficent government (useful for the children).

1499. Our conclusion is that patria potestas can do everything needed to obtain the utility of parents and children according to these natural proportions, but that it cannot alter these proportions which constitute the ordained good of the family.

1500. We can say, therefore, that patria potestas is a governmental right, but in a society whose members do not all have the same value.

1501. The ruler has to lead his society in such a way that the available utilities are divided amongst the members according to the degree of value of each member. In domestic society, where the father possesses the dignity proper to author, master and head, it is right that he should take account also of himself in exercising his government. His very office as ruler of the society authorises and obliges him to maintain his own right of seigniory. This right of the father is therefore an element indivisible from governmental right in parental and domestic society, and indeed gives rise to governmental right.

1502. On the other hand, seigniorial right is led to its end by governmental right which tends to ensure that all the members of a society retain and enjoy in their entirety the rights they possess. Seigniorial right is, in this respect, subordinated to governmental right in the way that rights are said to be subordinate to the faculty that has to regulate their modality.

1503. If we wish, we can synthesise the principal lines in the father's seigniorial right and reduce them to the following:

1. The father possesses the right of government over what is his own, and as father. This right cannot be taken from him by anyone.

2. The feeling that has moved the father to found a family was without doubt his own satisfaction. Under this original title the father, head of the family, is also its end, and must be considered so by all the members of the family who, as such, draw their existence from him. Under this aspect, the father is master and the others bond-servants. The seigniory and the bond-service are, however, altogether special, and are determined by the quality of the paternal feeling and by the natural satisfaction sought by the father through his paternity.

3. The natural satisfaction sought by the father in paternity (in other words, the end of paternity and of the family itself) is that of leaving on earth after himself children who, endowed with all external and internal worth, perpetuate a flourishing line. This particular characteristic of paternal satisfaction tempers, as it were, seigniorial selfishness.

If we consider paternity in its psychological origin, there is no doubt that it manifests itself with a character of selfishness inseparable from seigniory. Considered in the object to which it tends, however, and in which such selfishness seeks satisfaction, the selfish connotation is diminished. The selfishness is transformed into a tendency to love, into a propensity to diffusion, into a beneficent instinct, all of which belong to the very reality of things. Paternity, therefore, is a human feeling that seeks and posits its own good in the good of others - not of any others, but of the beings generated by it. It seeks its own good which, however, is found in the good of the offspring. The interest and the love proper to parents leads them to maximum disinterestedness and generosity. According to nature, parents feel they possess such a qualitative and quantitative good of their own in the good of the offspring that they place this good before all their other good, and even before the good of their own life. It is true that this intensity is characteristic rather of parental love in its perfection (in stimulated affection) than of the degree to which it normally attains as a result of spontaneous affection. Only perfection, however, is the basis for determining, according to nature, the rights of parents and the duties of children.

1504. This last observation shows why the most ancient Roman legislation grants to fathers the fullest power over their children, and why this power was gradually restricted. Opinion about paternal rights, as well as customs and legislation recognised and sanctioned by the city, take their norm from the average love shown by a nation in its fathers. If common paternal love, that is, the average level of love, is in fact greater, fathers necessarily have more rights. Opinion accords them more rights, and legislative instinct transcribes as public laws all those things which opinion grants to fathers. If such love decreases, the citizens immediately become restless and see as necessary some limitation to patria potestas.

1505. The reason for this is profound, and flows from the theory of rights that we have expounded. The principle determining rights is that of ownership,(260) a feeling (a love) which binds things to persons (cf. RI, 936). The greater this feeling the more pronounced the ownership, the more painful its violation, and the more lively the jural resentment. In our case, if a father feels he has a greater good in his child, patria potestas is, according to nature, more absolute.

In addition, if paternal love is more intense, patria potestas can extend itself without fear of abuse.

These are the two motives according to which civil law normally grants greater breadth to patria potestas wherever paternal love is more vigorous. It is at this point that patria potestas is 1. effectively greater, according to nature; 2. less likely to danger of abuse.

1506. On the other hand, a comparison between civil legislations enables us to indicate peoples and periods in which parental love has been greater. There is no doubt that normal, average parental love is more restricted where limits placed to patria potestas are more restricted.

1507. The use of this criterion enables us to conclude that paternal love was generally greater at the beginning of the Roman republic than in later, degenerate times.

1508. Ancient Roman legislation left patria potestas untouched, just as it would have been in the pure state of domestic society. Moreover, it constituted fathers as magistrates and civil judges within their own families where they could even condemn their children to death.

1509. The child was considered by these laws as the father's bond-servant.(261) This servitude of the child, inherent to paternity, was however relative to the father, and united to freedom of the child relative to all other human beings, before whom the child enjoyed the same freedom as the father with whom he formed a single person,(262) and whose accessory and increment(263) he was. The father's relative seigniory is therefore one of those inalienable rights that certain authors have admirably named jura personalissima. As a result, fathers could not sell their children as bond-servants, according to the explicit statement of a rescript of Constantine inserted into the Code: `Freedom was so highly considered by the ancients that fathers, who (once) had the right of life and death over children, were not permitted TO DEPRIVE THEM OF FREEDOM.'(264) The reason for this is found in the very nature of paternal seigniory which is certainly higher than any other and indeed directed to the good of the father. But this good, if determined by upright, natural feeling, as we said, can only be the good of the child. It is, therefore, a seigniory of an altogether special nature which above all seeks the good of the bond-servant. If the child were to be sold by the father, he would enter a servitude of an altogether different nature from that of filial servitude; he would no longer share in paternal freedom. On the other hand, the father cannot sell his own seigniory, which is inalienable, precisely because he cannot sell either his love or his paternity. According to natural Right, therefore, it is unjust that the father should at will sell his child as a bond-servant. For the same reason, the power of life and death was entrusted by the city to the father alone, and could not be alienated; it pertained to the very nature of paternity: it was a jus personalissimum.(265)

1510. Many rights, useful to the children themselves, derived to the father from paternal dominion and from filial servitude. For example: parents could take action if the child had sold himself, or others had sold him;(266) they could prevent the trial of their children;(267) they could bring action for theft against those who tried to take the children away;(268) they could use the Aquilian law against those who harmed their children.(269)

1511. Other rights, as useful to the whole family as to the child, were those of correcting and chastising the child himself.(270)

1512. The right of absolute ownership by the father over all the goods of the child was also recognised. Consequently, what the child acquired, he acquired for the father [App. no. 11].

1513. Finally, the right to locate the child's work was always left to the father, as we said, when there was a question of sustenance for the child.(271)

Notes

(258) This right is truly the most precious that a father can have. At present, it is being vindicated in France by the complaints and remonstrations of all decent, religious people against its violation by the monopoly exercised over the universities. It will be helpful, therefore, if we add some comments here.

1.Fathers have the duty to give their children the best education and soundest instruction. It follows that they also have the right, and an inalienable right, to do this: `Every human being has an inalienable right to fulfil his own moral duties' (cf. SP, 219-220).

2.Fathers are the competent judges about the best education and soundest instruction to be given to their own children. Each person is the competent judge of the use of his own right (cf. RI, 195) - as he is of his own good and evil (cf. RI, 610) - which fathers see in their children.

3.The importance of such a right and of the moral obligation of exercising it with conviction is obvious in the case where fathers see their children exposed to irreligious and impious instruction at the hands of teachers established by law. It cannot be wondered that the whole of the French episcopate has risen, as one man, against the instruction, often contrary to Catholic doctrine, forced upon French youth by the government.

4.Because the right of fathers is inalienable, it cannot be impeded or violated in any way by civil authority, which must protect and help it, as we shall see later.

5.Finally, Catholic fathers have the duty, imposed on them by the perfect theocratic society to which they belong, not to recognise any religious instruction other than that which comes from their pastors, to whom Christ has said: `Go therefore and MAKE DISCIPLES OF ALL NATIONS (Mt 28: 20).

(259) ER, 252-255.

(260) ER, 329-359.

(261) Res mancipi, Just., bk. 1, t. 9. When the first human being was born, his mother expressed the law of dominion of parents over their children with the words: `I HAVE POSSESSED A MAN through God', the very meaning given to the name of Cain, the first-born (Gen 4: 1 [Vulgate]).

(262) Samuel Cocceji, Dissert., Proem. 12, bk. 3, c. 4, sect. 2, §159.

(263) In Num 32: 14, children are called patrum incrementa, just as Virgil spoke of magnum ovis incrementum (Ecl. 4).

(264) C., bk. 8, t. 47: 10; ibid., bk. 7, t. 16: 1.

(265) Later, this right to inflict the death penalty was restricted in such a way that the father could establish it, but only the judge could pronounce it: `You will not forbid this person (the son) from being chastised by the right of patria potestas if he does not acknowledge due piety towards his father, and you will employ more severe remedies if he is contumacious. You will bring him before the Procurator of the province so that he may PRONOUNCE THE SENTENCE THAT YOU ALSO WISH TO BE INFLICTED.' Thus a rescript of the Emperor Alexander (228 AD) inserted into the Justinian Code (bk. 8, t. 47: 3). Fabro (Cod. de patr. potest., bk. 8, t. 33, def. 1 et n. ult. in allegat.) says that there were examples in the senate of Savoy where children were condemned to the galleys on the sentence pronounced by their fathers, who could remit the penalty granted slight damage inflicted on them by the children.

(266) Dig., bk. 6, t. 1: 2; and bk. 43, t. 30: 1.

(267) Dig., bk. 43, t. 1: 2.

(268) Just., bk. 4, t. 1: 9; Dig., bk. 47, t. 2: 37.

(269) Dig., bk. 9, t. 2: 5, 7.

(270) `It is not true that a father was able to hand his children over for punishment. It is rumoured that Tribonianus did once obtain this, but there is no trace of this custom extant in the Digests' (Samuel Cocceji, Dissert. Proem. 12, bk. 3, c. 4, sect. 2, 160. Cf. Heinnecius, Antiq. Rom., bk. 3, t. 8, §3. The faculty of chastising children recognised by the laws was gradually restricted amongst the Romans by means of the interpretations given by the prudent, and by the edicts of the rulers, as we can see from the Code of Justinian, bk. 9, t. 15. This shows on the one hand that the faculty was abused by fathers as corruption increased, and on the other that public authority (the legislative instinct) and the children themselves gradually became less tolerant of abuses. The laws of a nation become more vigilant as jural resentment increases because `the average degree of jural resentment influences the legislative instinct, which allows itself to be directed by jural resentment.

(271) Cod., bk. 4, t. 43, and bk. 7 and 16.

Chapter 04

Home