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Excerpts from the Staats-Lexikon: "Family, Family Law" (1845-1848)

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Most immediately, from the depth of love flows its exclusivity and also the intent that the union endured for a lifetime. The obligation of raising one’s offspring that is connected to the creation of children points in the same direction. Monogamy and the indissolubility of marriage – which should be recognized at least as a rule – are thus part of natural marriage law and lay claim, for the most important reasons, to sanction by positive law. A woman who gives herself to multiple men does not know the feeling of true love, and at the same time she sins against nature, which has endowed her with the sense of shame as the most beautiful ornament and as the guardian of virtue. The exclusive devotion to one man is thus for woman the first condition of sexual pleasure permitted by morality. But man, as well, since he demands such exclusive devotion, owes the same in return, and his mere wooing of the love of a virtuous woman contains – provided he loves honestly and truly – the tacit promise that the union will be exclusive and lifelong. If the marriage is blessed with children, the parents’ joint duty to raise their children already demands that they stay together; for the purpose of marriage is not fulfilled with procreation, nor with the physical rearing of children. The children must be raised and educated to be human beings and citizens in the state; and by the time that has been accomplished, the parents have usually reached an age that is little suited for a further pursuit of love. But even if that is not the case, if, for example, the children died early or the marriage remained childless, the notion of the depth of love that sealed the union implies the mutual claim to lasting attachment, care, and the sharing of both the pleasures and travails of life. Without this, marriage would not be what it is supposed to be, a union of two persons of different sexes for the purpose of a complete personality and a shared life.

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With respect to the mutual relationship between the spouses that is created by marriage, the basic law that applies is the shared community of life based on life and duty, that is, the striving for the goals established by the marriage contract or by the idea of marriage. Of course, here the law alone is insufficient to establish satisfactory rules for what spouses should and should not do. For while the marriage contract does make the duties of love and morality into legal duties, it is not able to impart to them the quality of objectivity demanded by the law. They remain as subjective as before with respect to recognition and fulfilment. Thus, here too, the positive determination must replace – as much as possible – what the merely natural commandment cannot achieve. Now, the idea of the law of society (Gesellschaftsrecht) will serve as a guiding light for positive legislation when it comes to determining the relationship that shall prevail between the spouses. Within the sphere of the goals they pursue, the spouses form a society, that is to say, a union of several persons into one united person and a common shared life, whose soul or animating principle can thus be none other than the common will. Now, from this notion will flow, first of all or naturally, the claim that the spouses have complete legal equality; but upon closer inspection, the domination or superior power of the man – which is to be exercised notwithstanding the wife’s personal rights – carries the day. In a society of only two members, the otherwise natural superior power of the majority vote has no application. And so, in the case of conflicting opinions, one of the two, through his will, must be decisive if something common is to be undertaken or accomplished. And it is the man who has the natural and considered claim (subsequently also

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