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

This entry from Carl von Rotteck's and Carl Welcker's Staats-Lexikon (1845-1848) on "Family, Family Law" reflects the dominant patriarchal view of the family at mid-century. Marriage was the original basis of family and social life. It was the moral and legal union of two people and was based on mutual love, but also on the superiority of the husband. Parents had authority over their minor children, and heads of households had authority over their servants, who were regarded as part of the family.

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Family, family law (natural). The family is the earliest arrangement of several individuals for a shared life and a truly united personality, earliest because it was established by nature itself. This has made it the foundation of all larger and more artificial social associations erected subsequently, which are the necessary condition for any development of humanity and civilization. The slowly expanding family circle becomes a tribe; several tribes in closer contact form a horde, or – if they recognize the inadequacy of the family bond, which becomes looser with expansion, and reach an agreement on more orderly conditions – a civic or political community, a nation, a state. The simplest form of the state, the patriarchal one, arose directly from family life; this is the root from which have grown all the other social relationships between humans that exist in the state, indeed, are inconceivable without the state. But even now, when this further development, expansion, and multiplication of social ties has long since taken place, the family remains the foundation of all nobler human and civic life, of all human and civic happiness. Therefore the family or the good order of the family is at all times one of the most important elements entrusted to the care of the state, and the neglect thereof never fails to take a heavy toll.

Our purpose here is not to list how the various states, ancient and more recent, fulfilled this duty, or the spirit in which they established the laws pertaining to the family. Some references to these matters can be found in several of the articles devoted to legal history. Here we inquire merely into the natural order of the family, which the legislation of the state is most immediately called upon to arrange in the best possible way, and, where it is deficient, to perfect in the sense of its highest principle or to define with greater precision. Few deviations from the natural law for the sake of political interests can be permitted in this matter, for the simple reason alone that the association of the state was generally – so the reasoned presumption - entered into by heads of families, that is, by entire families in whose names the heads of the families acted, and not by individuals; hence the recognition and safeguarding of the natural rights of the family should be regarded as one of the chief articles of the civic contract of association. At any rate, changes to these rights can be recognized as legitimate only to the extent that one can confidently expect all family members, in their capacity as such and as citizens, to give their free consent, or such consent can be presumed to exist. Hence, an agreement about the principles of a natural law of the family is thus the first requirement for the drafting and examination of a positive law. Political interests may only be a secondary consideration; however, these interests will be most perfectly promoted – that is, the noblest fruits for the state and the family order will be brought forth – precisely when the law adheres as closely as possible to the natural order, that is, when it preserves this natural order in its full purity, to the extent that the conditions of the civic association permit, and when the intent of its positive stipulations is merely to provide a more precise definition of this order, and to perfect and protect it. The establishment of these principles of reasoned jurisprudence for the family order is thus also one of the tasks of political theory; however, here we shall limit ourselves to a few general observations, since more detailed ones are more appropriately laid out in separate articles (such as “Marriage,” “Paternal power,” “Rules for domestics”).

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