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Section Two - Parental Society

Chapter 5

Jural blood-relationships, social domestic relationships and civil-domestic relationships between parents and children

1522. We have already distinguished in the family blood-rights and social rights. Both become civil rights, without ceasing to be natural rights, when civil laws consent to them, recognise and sanction them.

1523. But because civil laws go further and attribute or deny to parents and children certain relationships for the sake of public good, we have to say something about each of these three founts of jural relationships between parents and children, that is, about blood, the social bond of the family and the social bond of the city.

1524. Jural blood-relationships, because founded on a fact that cannot be undone, never cease. Consequently, the law which places an impediment to marriage between blood-relations, is equally efficacious in forbidding and rendering more blameworthy all illegitimate unions.

1525. In the same way, parents preserve the same natural duties towards children they have generated outside marriage, even though such duties are not safeguarded by the civil law.(278)

1526. When the social bond ceases through the departure of the child (for any reason) from the paternal family, simple honour is always due to the parents. It is for this reason also that the diriment impediment forbidding marriage to such children remains.(279)

1527. Finally, the father retains perpetual and inviolable rights to teach, correct and punish his children not according to a social title, but through a title of seigniorial, individual right which has as its aim the good of the child, founded in blood-relationship. The father also has the right to live off the goods of his children if he is otherwise unprovided for.

1528. The father of the family, or the mother in his place, has full power to govern his children. This is the result of nature, not of the children's will. Nature also determines the exercise of this government by placing in the hearts of parents paternal and maternal feeling which, kept upright and sincere,(280) must direct their government.

1529. Because a great part of this government is the good of the children, it extends as they grow up (cf. RI, 637-771). The adult children gradually become the father's counsellors in the government of the family, and the older children must have some natural preponderance over their younger siblings [App., no. 12].

1530. According to Aristotle, followed by Grotius,(281) three stages can be distinguished in children: that which precedes the use of moral freedom (proairesiV),(282) which Aristotle calls the time of imperfect judgment;(283) that in which moral choice is shown although the child continues to remain in the paternal family; that in which the child has left the paternal family and has formed his own.

1531. In this final stage, relationships of merely domestic society ease between parents and children. Only blood-relationships remain.

1532. Parents have the right to propose spouses for their children, but not the right to force consent if the spouses are not acceptable. Parents do have the right, however, to insist that the children choose partners whom the parents judge suitable - descendants of the children are their descendants and they have the right, therefore, to provide for sound offspring. The children have a corresponding jural duty to choose spouses thought suitable by the parents. The parents' right here is co-extensive with that of competent judges, and they can punish children who spurn their right judgment. Blind passion does not excuse the children. On the other hand, it is highly advantageous to the children to be directed in a matter of such importance by the mature, affectionate, good sense of their parents.

1533. In the second stage, the children are subject to the natural head of the family for the sake of the family good itself. But with the good of the family dutifully assured by the head, the children are then free.

If children, therefore, have some public dignity or office, they would not depend upon paternal authority in exercising it. This freedom does not of its nature prejudice the good of the family (provided there is no abuse). It is useful for the children and for the family itself, whose principal good is that of the children.

1534. At the first and second stages, both parents have full, governmental dominion over the children which, however, in the first stage, extends almost accidentally to a greater sphere: 1. because they have to take total care of the children who, with their faculties still undeveloped, cannot provide for themselves; 2. because they can more easily turn the children to their own advantage and comfort (without doing them harm), just as they can with things that are occupied (cf. RI, 539-553). Nevertheless, children are suitable subjects of rights, ownership and relative dominion even at this first stage. According to Plutarch,(284) infants have these rights as a matter of possession (en kthsei), not as a matter of use (en krhsei). I would say that they are not even a matter of possession, but of mere ownership and, still less, of mere relative-jural freedom (cf. RI, 254-256).

1535. Finally, we should note that even when the children leave their parents, or the latter die, the social bond never ceases entirely. This explains why in Roman laws the word `family' sometimes means the domestic society properly so-called, and sometimes the more ample grouping made up by agnates as well: `The name "family" signifies a certain body which is limited either BY ITS OWN RIGHT or by the right COMMON TO ALL COGNATES.'(285)

1536. In fact, natural and hereditary successions, which we have defended and expounded (cf. RI, 1294-1449) presuppose that jural relationships between ascendants and descendants do not cease when families divide or at the death of certain ascendants or descendants. The principle that the ancestor, although dead, unifies the relatives, is often extremely helpful according to natural law for solving certain intricate questions relative to succession which threatened to disturb public tranquillity. When Lothair II died, should he have been succeeded by his brothers, or by his uncles Louis of Germany and Charles the Bald?(286) If the question had to be decided on the basis of simple, rational Right, the succession would obviously have gone to the brothers as the nearest relatives. They belonged to the same domestic society as Lothair because they were the offspring of the same predecessor, who provided unity for his descendants. The uncles were not part of these descendants.

1537. It would seem that the advantage of the first-born in respect of his siblings should be recognised: 1. in his right to the choice of shares in the division of goods and also 2. in his right of preference to that which is of its nature indivisible (the other children should receive in recompense what is possible and equable). Indian laws, which determine successions minutely - because they are laws aimed principally at regulating domestic rather than civil society - are mindful to maintain this and other rights for the first-born. They say about the right to what is indivisible: `A single male goat, a single sheep or any single animal with uncloven foot cannot be divided . . . any male goat or sheep that remains over after things have been shared out belongs to the eldest brother'.(287)

1538. The positive laws of the city have two aims: 1. to guarantee the natural rights of individual jural persons; 2. public good. Normally, the majority of laws with the first aim are called civil just as the majority of laws with the second aim are called political (cf. 417-424).

In the present state of legislation, both kinds of laws, whether they have the rights of individuals or domestic societies as their object, are found mingled together in what is called the Civil Code.

1539. Consideration of the civil, political laws determining jural relationships between parents and children shows that these laws differ from natural Right (in so far as it is opposed to positive Right) in two ways: either

1. by not acknowledging certain jural-natural relationships, which are thus left undefended (abandoned in this fashion they pertain to what we have called extra-social Right); or
2. by adding certain jural-positive relationships to natural relationships.

1540. Status familiae(288) is the name given by Roman laws to the condition by which a person was constituted member of a family in the eyes of civil society. This condition results from the complex of natural jural relationships recognised by the city and added to those which the city itself creates positively.

1541. The natural relationships of illegitimate children are amongst those not acknowledged by certain legislations. The Romans, for example, did not acknowledge such people as children because the law began with the principle: `A child is one shown to be such by rightful marriage'.(289)

1542. The basic reason of this law was: `If the marriage is not legitimate, only maternity, not paternity, can be verified.' This gives rise to the other rule: `In the case of legitimate marriage, the father is followed; the populace FOLLOWS THE MOTHER in its enquiries.'(290)

1543. Often, however, paternity can be established in the absence of legitimate marriage. Why exclude the father if sure proof is available of his identity?

1544. These imperfections of the law, often caused by poor development of the faculty of abstraction, need to be noted.(291) Initially, legislators were content to reason on the basis of principles which were sometimes, but not always, true. In these last cases, when the principles were insufficient, natural Right suffered from their dispositions. It was either devoid of recognition and defence or even violated by its dispositions on the part of the city. Bringing laws to perfection consists, at this point, in descending from the few general principles which govern frequent, jural cases to more special rules and principles which come to light in cases where the general principles cannot be applied. Such additional rules and principles take more extensive account of natural and rational Right.

1545. Another point of view demonstrates a further imperfection in the rule, `A child is one shown to be such by rightful marriage'

Not only is rightful marriage not the sole proof of paternity (there could be many other proofs); sometimes, it is not even an efficacious proof. A woman's child is not necessarily generated by her lawful husband. In a word, rightful marriage is a legal presumption, not a logical proof. Consequently, later Roman jurisconsults would acknowledge different cases in which the presumption of lawful marriage had to give way to the truth when actual illegitimacy was proved in some other way.(292)

But granted that paternity is unknown, or that conception outside marriage is proved, is it according to justice that an innocent person should suffer the penalty due to the fault of his parents, a fault which gave him life? Notoriety and the privation of certain rights, decreed by civil laws in the case of illegitimate children, pertain to an age of the world in which the individual principle was still entangled with common nature, and operated within it. The time when offspring was punished for the fault of the individuals has passed. Under the Gospel it has vanished altogether; human personship has revived. Public opinion is changing on this matter, although held back in its progress by the inflexibility of legislations.

Our civil laws, while punishing with appropriate severity the fault of parents(293) and parents alone, should now protect innocent illegitimate children and declare them free of any notoriety, and of any harm consequent on this notoriety.

1546. However, it is not easy, according to rational Right, to determine succession in the case of a child born out of matrimony. Nourishment and education are certainly due to him from the father and, in his absence, from the mother. This is a blood-right. But the mother, if she is already married, is not obliged to this because all that she has belongs to the family of her husband. Even food and drink must be given in such a way that it does not disadvantage the family to which she belongs.

If the mother is single, or the only surviving member of the family of her husband, the blood-bond determines the natural succession of the child to the goods she possesses. If she marries her accomplice, she takes her place as mother of the family relative to her children. The man, however, has the same obligations and the same society with his natural child as he has with his legitimate child. The condition of woman and man are not equal, therefore, in these jural relationships. It follows from what we have said that, according to natural Right, the adulterous mother who introduces an illegitimate child into the house of her husband harms the legitimate children. This is not the case with the adulterous father. Indeed, according to natural Right, he must look upon his illegitimate child as he does upon the legitimate children and admit him to the same society, although the illegitimate child cannot share in the goods of the wife offended by the adultery.

1547. Roman laws had begun to return to the dictates of natural Right concerning illegitimate children when they introduced legitimisation which was brought about in three ways: through subsequent marriage, through an offering to the curia, and through the rescript of the ruler.

1548. Legitimisation is a return to natural Right from the deviation of positive Right; adoption is an addition to natural Right itself.

Adoption is only a legal fiction. In the state of nature a contract could be formed between two people, one of whom assumed (in part) the rights and duties of father, the other the rights and duties of child. The contract would be genuine, although its vocabulary would be fictitious and the pretended child could never prejudice the true children in their succession to the father.(294)

1549. Moreover, the laws of the city, in so far as they tend to guarantee the rights of the person of father and child and impede abuse of these rights by the parties concerned, actually restrict the natural sphere of patria potestas in many cases. They provide the child, whom they protect more assiduously for the sake of the new line which he will found, with many rights not given by nature. This is especially the case in matters relative to temporal substances and other real rights.

1550. Civil legislations have also considered and determined through positive law those broad bonds of domestic society preserved amongst agnates, despite the agnates' division into various families.
Roman laws made common and guaranteed to agnates 1. family privileges; 2. the right to vindicate injuries; 3. the right to defend cognate relatives, and so on.

1551. For the rest, I have noted many times that it is an extremely dangerous matter to invent and imagine rights which are not present in nature. Our civil legislators have done this up to now with altogether too much self-assurance, especially by inventing arbitrary rights which cut across the natural course of ownership. Here, I consider it a principle both of justice and political wisdom `not to impede the accumulation of riches nor to prevent their division and dispersal by presuming to disavow the natural titles of just acquisition.' I believe that each individual and each society must be able to acquire without limit provided this is done under some just, natural title (cf. USR, 446-449). Each individual, each society must equally be able to alienate its goods without limit, provided once more that this is done in ways which conform to natural justice. Civil laws cannot prejudice titles of acquisition or ways of alienation which are truly just according to natural and rational Right. If this does occur in one of these two cases (for example in the case of accumulation of what seems excessive wealth), civil legislation by that very fact forces itself to damage the other case (the feared, excessive division of patrimonies). Such injustices bring about a forced, inconvenient, unjust state of human society which suffers like a body with dislocated bones. In a word, the legislator must never wish to be wiser than nature by contradicting its laws.

1552. The right of attorney (cf. USR, 255-258) pertains to fathers of families.(295) Consequently, no one, not even the civil government can impede them from 1. choosing arbitrators or judges to pacify their disagreement (when quarrelling families agree about the choice); 2. choosing at will procurators and defenders to argue their case before the civil tribunals.(296)

1553. Civil society, therefore, must maintain and protect, not alter, pervert, impede or destroy the rights which, according to natural and rational Right, belong to the single individuals composing domestic society. Civil society has been instituted precisely for this purpose. It does not have the power to dispose of rights, but only of regulating their modality in order that the rights themselves may co-exist and be exercised in the most free, convenient and advantageous way possible. This explains why incorrupt peoples are often heard to complain bitterly when civil society attempts to dispose of and interfere with these domestic rights at its own pleasure. But we shall have more to say about this when we deal with the Right of civil society.

Notes

(278) According to Roman law, the right to provisions relative to parents was not given for children born of incestuous marriages. The parents' fault was thus punished in the children (Cod., bk. 5, t. 5; and Nov., 12, 139, 154). The Church, however, always wise and beneficent, did not take account of such laws. She introduced a contrary custom and gradually succeeded in amending civil law on this point too by bringing it in line with the requirements of humanity and rational-Christian Right.

(279) Adoptive children do not have these jural blood-relationships with those who adopt them, but social relationships only. We shall speak of these in the next two articles.

(280) We have noted that fatherly feeling can be destroyed or perverted by malice. The feeling, constituting the rule of which we are speaking, is therefore the feeling that conforms to nature. Note, however, that it varies in degree. Consequently, paternal government also is subject to lawful variations. Patria potestas cannot therefore be identical (relative to its degree and accidents) in all families if we consider humanity in the state of nature and of family.

(281) De J. B. et P., bk. 2, c. 5: 2.

(282) For the period when moral freedom begins in the human being, cf. AMS, 564-566.

(283) tou boulettikou atelduV, Pol., 1, c. 8; Nicom., bk. 3, c. 4.

(284) De Fortit. Alex., c. 11.

(285) `In common right, we speak of the family composed of all the agnates. Although the father of the family may be deceased and all the individuals have their own families, all those who were under a single power are rightly said to be of the same family because they issue from the same house and people' (Digest., bk. 50, t. 16, l. 195).

(286) Cf. G. Miiller, bk. 14, c. 14.

(287) Mânava-Dharmasâstra, bk. 9: 119. The principle which attributes to the eldest brother what is of its nature indivisible in the paternal heritage determines the succession of empires in favour of the first-born. In fact, every civil society is of its nature indivisible and exceeds the attributes of the person with the supreme right to govern or divide it. It is not the right of government which can divide a State, but the right of seigniory which is sometimes mixed with the right of government. When Constantine, Charlemagne and Vladimir (1000 AD), all princes called `Great', divided their empires amongst their children, they considered themselves as lords, not as civil rulers. Whether this was right or wrong cannot be discussed here. What is certain is that such divisions caused wretched quarrels in the ruling families with unlimited damage to the people.

(288) The family condition is therefore a complex right which can be impugned or defended before the law of the city. Legal actions taken amongst the Romans to defend a person's condition as citizen were called pre-judicial, not real or personal because the question under discussion concerned a more general right which was, as it were, preliminary to the defence of other rights. Only after verifying the jural condition of a citizen as such was it possible to pass judgment on the real, personal rights pertaining to that condition.

(289) Dig., bk. 1, t. 6: 3, 6.

(290) Dig., bk. 1, t. 6: 3, 3.

(291) Cf. SP, bk. 4.

(292) `We define a child as one born from husband and wife' (Ulpian); this is the rule. The exception is: `But if we imagine that the husband has been absent for ten years and comes home to find a baby there, WE ARE HAPPY to accept Julian's decision that this is not the husband's child.' Note how Ulpian speaks of something so evident as if it were the mere opinion of a jurisconsult. Equal timidity and reserve, which show him to be unduly attached to the letter of the positive law, is apparent when he goes on: `IT SEEMS TO ME, AND SCAEVOLA ALSO APPROVES OF THIS, that if a husband has not slept with his wife because of sickness or for some other reason or, while father of the family, was prevented by illness from generating, the child born in the house, although born there with the knowledge of the neighbours, is not his son' (Dig., bk. 1, t. 6, l. 6). Finally, childship came to be proved in six ways: 1. cohabitation of husband and wife; 2. treaty; 3. nomination or institution; 4. public knowledge; 5. judicial decision; 6. confession and assertion on the part of the parents.

(293) All crimes against common mores should rightly be punished by public opinion with some note of dishonour. It is sufficient that governmental wisdom should work to form this severe, holy opinion, and take care not to weaken it by adopting an attitude which shows that it wants no part in it, or even looks upon moral disorder without disgust, or opens the gates to immorality. Government has many ways in which to indicate its moral or immoral stance; indeed, almost every step it takes shows how it feels on this matter. Adultery then must be punished as an attempt to violate a prized possession. The same should be said about seduction, violence, rape, and so on. The legislator must never neglect to unite the punishment with satisfaction for the damage done.

(294) Hume found it very difficult to decide adequately whether the true, but younger son, should give way to the older, adopted son in the case of succession to Augustus. This shows how legal fiction could confuse even philosophical minds! I believe that no legal fiction can break natural rights; the child must succeed; the non-child must be excluded.

(295) Ecclesiastics who have their own households are also fathers of families according to civil law because `the father of the family is considered the person who has dominion in the home. He is rightly called paterfamilias even if he has no children. We shall speak not only about his person, but also about his right' (Dig., bk. 50, t. 16).

(296) Civil government can very usefully: 1. provide lawyers with a certificate of competence which will serve as a recommendation and guide to fathers of families in their choice of procurators; 2. grant decrees of merit and other distinctions to lawyers in proportion to their ability. This ability must not depend solely on their knowledge, but also on their uprightness and other matters.

Conclusion

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