Although resting on a natural basis better adapted to the social welfare than penal law, civil law still contains the traditions of religious mysticism and the abuse of conventional right.
I shall here analyze in a few words what concerns our subject in actual civil law, and shall point out the modifications which appear to me desirable. It is, however, impossible for me to enter into the details of codes, owing to absence of special knowledge. Moreover, this would lead us too far from our subject.
Marriage and Sexual Relations in General.—The coitus of two individuals, performed with mutual deliberation and causing no harm to a third person, should be considered as a private affair, and should have no connection with either civil or penal law.
However great may be the necessary restrictions of this general axiom, it must be recognized as valid in principle. Society has no right to restrict the liberty of individuals so long as it, or one of its members, is not injured by these individuals. So long as coitus is freely performed by adult and responsible persons, has no indirect consequences, and does not cause fecundation, neither society nor any one is injured.
In the practice of law this axiom is not yet generally accepted. Many laws, especially among the Germanic peoples, punish concubinage, or extra-nuptial coitus. Even when concubinage is tolerated, it is considered illegitimate, so that the woman who gives herself to it and the children who result from it, have much to suffer. Although they constitute simple religious precepts, the ordinances of Liguori and others concerning coitus influence in a high degree sexual relations in Catholic countries.
As a rule, coitus is only legally recognized as licit in marriage. But we have seen in Chapter VI how elastic is the term marriage, which varies from polygamy and monogamy to polyandry, and from marriage for short periods to indissoluble marriage, to say nothing of the cases where women are sacrificed on their husbands' tombs. We have seen that religious traditions, arising themselves from barbarous customs, play a great part in conjugal law. It is only by infinite trouble that the principle of civil marriage has made its way in modern civilized states. Even to-day, religious marriage is in some countries only form of union which is legally recognized. These simple facts show to what extent we are still hidebound by tradition.
The idea that marriage is a divine institution and that man has the right to contract, but not to dissolve it, is still a widespread belief, however bizarre it may be. We shall not enter here into the detail of the religious forms of marriage, which is referred to in Chapters VI and XII.
It is evident, from our modern and scientific point of view, which is purely human and social, that civil law only can be recognized as valid. Religious forms and ceremonies must be considered as belonging to a private domain. For this reason they concern neither the State nor society, and should be refused all legal character; for it is our duty to strive and liberate humanity from the tyranny of all imposed creeds, as we should combat all so-called State religion.
Civil Marriage.—What then is civil marriage, and what ought it to be? Our actual civil marriage is the result of trials and compromises which require improvement. It is a contract between two persons of opposite sex whose mutual object is the reproduction of the human species. In this contract the law is unfortunately too much concerned with the personal relations of the two contracting parties, and too little with the interests of their eventual posterity, which necessitates care and attention on the part of the social legislator. Moreover, the traditional conception of the dependence of woman disturbs the purity and justice of civil marriage.
In my opinion, the first fundamental principles of civil marriage should be absolute legal equality of the two conjoints and complete separation of property. The momentary amorous intoxication of a woman should not allow a man to appropriate her property in whole or in part; only truly barbarous laws could permit such iniquity, and they should be banished from all the codes of civilized countries. Moreover, in countries where woman enjoys important rights, the community of property furnishes those who are unscrupulous with the means of completely despoiling their husbands.