238. (2) Such an interest being the basis of family relations, it is quite intelligible that everyone actuated by the interest should recognise, and be recognised by, everyone else to whom he ascribes an interest like his own, as entitled to behave towards the objects of the interest—towards his wife and children—in a manner from which everyone else is excluded; that there should thus come to be rights in family relations to a certain privacy in dealing with them; rights to deal with them as his alone and not another's; claims, ratified by the general sense of their admission being for the common good, to exercise certain powers and demand certain forbearances from others, in regard to wife and children. It is only indeed at an advanced stage of reflection that men learn to ascribe to other men, simply as men, the interests which they experience themselves; and hence it is at first only within narrow societies that men secure to each other the due privileges and privacies of family life. In others of the same kin or tribe they can habitually imagine an interest like that of which each feels his own family life to be the expression, and hence in them they spontaneously respect family rights; but they cannot thus practically think themselves into the position of a stranger, and hence towards him they do not observe the same restraints. They do not regard the women of another nation as sacred to the husbands and families of that nation. But that power of making another's good one's own, which in the more intense and individualised form is the basis of family relations, must always at the same time exist in that more diffused form in which it serves as the basis of a society held together by the recognition of a common good. Wherever, therefore, the family relations exist, there is sure to exist also a wider society which by its authority gives to the powers exercised in those relations the character of rights. By what process the relations of husband and wife and the institution of the household may have come to be formed among descendants of a single pair, it is impossible to conceive or to discover, but in fact we find no trace in primitive history of households except as constituents of a clan recognising a common origin; and it is by the customs of the clan, founded on the conception of a common good, that those forbearances on the part of members of one household in dealing with another, which are necessary to the privacy of the several households, are secured.
239. The history of the development of family life is the history of the process (a) by which family rights have come to be regarded as independent of the special custom of a clan and the special laws of a state, as rights which all men and women, as such, are entitled to. This, however, characterises the history of all rights alike. It is a history farther (b) of the process by which the true nature of these rights has come to be recognised, as rights over persons; rights of which persons are the objects, and which therefore imply reciprocal claims on the part of those over whom they are exercised and of those who exercise them. The establishment of monogamy, the abolition of 'patria potestas' in its various forms, the 'emancipation of women' (in the proper sense of the phrase), are involved in these two processes. The principles (1) that all men and all women are entitled to marry and form households, (2) that within the household the claims of the husband and wife are throughout reciprocal, cannot be realised without carrying with them not merely monogamy, but the removal of those faulty relations between men and women which survive in countries where monogamy is established by law.
240. Under a system of polygamy, just so far as it is carried out, there must be men who are debarred from marrying. It can only exist, indeed, alongside of a slavery, which excludes masses of men from the right of forming a family. Nor does the wife, under a polygamous system, though she ostensibly marries, form a household, or become the co-ordinate head of a family, at all. The husband alone is head of the family and has authority over the children. The wife, indeed, who for the time is the favourite, may practically share the authority, but even she has no equal and assured position. The 'consortium omnis vitae,' the 'individua vitae consuetudo,' which according to the definition in the Digest is an essential element in marriage, is not hers. [1] [2]
And further as the polygamous husband requires a self-restraint from his wife which he does not put on himself, he is treating her unequally. He demands a continence from her which, unless she is kept in the confinement of slavery, can only rest on the attachment of a person to a person and on a personal sense of duty, and at the same time is practically ignoring the demand, which this personal attachment on her part necessarily carries with it, that he should keep himself for her as she keeps herself for him. The recognition of children as having claims upon their parents reciprocal to those of the parents over them, equally involves the condemnation of polygamy. For these claims can only be duly satisfied, the responsibilities of father and mother towards the children (potentially persons) whom they have brought into the world can only be fulfilled, if father and mother jointly take part in the education of the children; if the children learn to love and obey father and mother as one authority. But if there is no permanent 'consortium vitae' of one husband with one wife, this joint authority over the children becomes impossible. The child, when its physical dependence on the mother is over, ceases to stand in any special relation to her. She has no recognised duties to him, or he to her. These lie between him and his father only, and just because the father's interests are divided between the children of many wives, and because these render their filial offices to the father separately, not to father and mother jointly, the true domestic training is lost.
[1] 'Nuptiae sunt conjunctio maris et feminae, consortium omnis vitae, divini et humani juris communicatio' Digest, xxiii. 2, 1. 'Matrimonium est viri et mulieris conjunctio individuam vita consuetudinem continens.' Inst., i.9.2. (Quoted by Trendelenburg, Naturrecht, p. 282.)
[2] [Latin consortium omnis vitae = partnership for life individua vitae consuetudo = unbroken companionship of life Tr]
241. Monogamy, however, may be established, and an advance so far made towards the establishment of a due reciprocity between husband and wife, as well as towards a fulfilment of the responsibilities incurred in bringing children into the world, while yet the true claims of men in respect of women, and of women in respect of men, and of children upon their parents, are far from being generally realised. Wherever slavery exists alongside of monogamy, on the one side people of the slave class are prevented from forming family ties, and on the other those people who are privileged to marry, though they are confined to one wife, are constantly tempted to be false to the true monogamistic idea by the opportunity of using women as chattels to minister to their pleasures. The wife is thus no more than an institution, invested with certain dignities and privileges, for the continuation of the family; a continuation, which under pagan religions is considered necessary for the maintenance of certain ceremonies, and to which among ourselves an importance is attached wholly unconnected with the personal affection of the man for the wife. [1] When slavery is abolished, and the title of all men and women equally to form families is established by law, the conception of the position of the wife necessarily rises. The ἑταίρα and παλλακή [2] cease at any rate to be recognised accompaniments of married life, and the claim of the wife upon the husband's fidelity, as reciprocal to his claim upon hers, becomes established by law.
[1] Her position among the Greeks is well illustrated by a passage from the speech of Demosthenes (?) against Neaera, Sect. 122 (quoted by W. E. Hearn, The Aryan Household, p. 71). τὰς μὲν γὰρ ἑταίρας ἡδονῆς ἕνεκʹ ἔχομεν, τὰς δὲ παλλακὰς τῆς καθʹ ἡμέραν θεραπείας του σώματος, τὰς δὲ γυναῖκας τοῦ παιδοποιεῖσθαι γνησίως καὶ τῶν ἔνδον φύλακα πιστὴν ἔχειν (tas men gar hetairas hedones henek echomen, tas de pallakas tes kath' hemeran therapeias tou somatos, tas de gynaikas tou paidopoieisthai gnesios kai ton endon phylaka pisten echein). [The query as to Demosthenes' authorship is in Green's text. Hearn translates this passage: Mistresses we keep for pleasure, concubines for daily attendance on our persons, wives to bear us legitimate children and to be our faithful housekeepers. Tr]
[2] [Greek ἑταίρα (hetaira) = courtesan, παλλακή (pallake) = concubine. Tr]
242. Thus that marriage should only be lawful with one wife, that it should be for life, that it should be terminable by the infidelity of either husband or wife, are rules of right; not of morality, as such, but of right. Without such rules the rights of the married persons are not maintained. Those outward conditions of family life would not be secured to them, which are necessary on the whole for the development of a free morality. Polygamy is a violation of the rights, (1) of those who through it are indirectly excluded from regular marriage, and thus from the moral education which results from this; (2) of the wife, who is morally lowered by exclusion from her proper position in the household and by being used, more or less, as the mere instrument of the husband's pleasure; (3) of the children, who lose the chance of that full moral training which depends on the connected action of father and mother. The terminability of marriage at the pleasure of one of the parties to it (of its terminability at the desire of both we will speak presently) is a violation of the rights at any rate of the unconsenting party, on the grounds (a) that liability to it tends to prevent marriage from becoming that 'individua vitae consuetudo' which gives it its moral value, and (b) that, when the marriage is dissolved, the woman, just in proportion to her capacity for self-devotion and the degree to which she has devoted herself to her original husband, is debarred from forming that 'individua vitae consuetudo' again, and thus crippled in her moral possibilities. It is a violation of the rights of children for the same reason for which polygamy is so.