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

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recognized by the marriage contract) to such superior authority or preponderance of voice. For not only is the woman often still under age when a marriage is concluded, and thus incapable of expressing a will that carries legal force, but in general (at least as a rule, and it is only of this one can speak here) the man is also more sensible, stronger, braver, richer in life experience, and specifically also more suited to dealing with strangers than the woman. Consequently, it is proper that in all truly common matters (such as the choice of where to live, managing money, the direction of child rearing, and so on), his voice or will shall be the deciding one in accordance with the natural order of marriage. Love is effective in moderating this unavoidable dominion of the man; moreover, in keeping with the principle of that dominion, the woman has reserved for herself a space for the free exercise of life activities that meet her purely personal interests and rights. Depending on the circumstances, such space may also be set aside – without disturbing the reasonable order – with regards to the possession, enjoyment, and self-administration of property. The most natural relationship with respect to the latter – and the one undoubtedly to be most approved of – is, to be sure, the communality of all that is owned and acquired, and the dominion of the man in administering it. Indeed, it is also said that the woman who, out of love, has given herself or her entire person to the man, will or should also hand over to him the infinitely lesser possession, namely her material wealth. Yet that is more fantasy than reality. The inclination that a woman who loves deeply or passionately may feel does not establish a duty to do so; even if, according to the notion and moral nature of marriage, a commitment of one’s own person must take place, it does not follow from this that no provisos may or should be made with respect to property. Experience has shown that such trust is quite often abused, and that the unhappy spouse must then bear, in addition to the pain of not having her love requited, the constant misery that springs from poverty. Depending on the circumstances, prudence may thus demand some proviso – whether asked for by the bride herself, her parents, or her guardians; morality, too, must approve of it, especially in consideration of the children, for whom (indeed, often for the husband himself) that same proviso can become most beneficial. Incidentally, it is obvious that no generally valid rule – especially in terms of the law of reason, but also in terms of positive law – can be established regarding what is good, prudent, or beneficial in specific cases. Yet it is the task of positive law to prescribe such a rule in accordance with the property conditions, customs, practices, etc. that prevail in a nation, and by taking into account the true political – that is, general – interest, such that it shall be valid whenever those who get married do not arrange anything else amongst themselves by contract, that is, it shall be seen as tacitly accepted by all those concerned; however, those entering into marriage must also be permitted to specify by their own marriage contract something that is more suited to their special circumstances and interests. The chief requirements of such a rule – to be positively established – regarding the property rights of the spouses, as well as their family members or heirs, that should be recognized and protected by the state during the marriage and after its dissolution (through death or separation) are clarity and precision, as well as the greatest possible harmony with the natural order of marriage and a direction aimed at improving or curing the corruption of this order that may have occurred in a nation.

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