III.1. The Family

§ 158. The family is the direct substantive reality of spirit. The unity of the family is one of feeling, the feeling of love. The true disposition here is that which esteems the unity as absolutely essential, and within it places the consciousness of oneself as an individuality. Hence, in the family we are not independent persons but members.

Addition.—Love is in general the consciousness of the unity of myself with another. I am not separate and isolated, but win my self-consciousness only by renouncing my independent existence, and by knowing myself as unity of myself with another and of another with me. But love is feeling, that is to say, the ethical in the form of the natural. It has no longer a place in the state, where one knows the unity as law, where, too, the content must be rational, and I must know it. The first element in love is that I will to be no longer an independent self-sufficing person, and that, if I were such a person, I should feel myself lacking and incomplete. The second element is that I gain myself in another person, in whom I am recognized, as he again is in me. Hence love is the most tremendous contradiction, incapable of being solved by the understanding. Nothing is more obstinate than this scrupulosity of self-consciousness, which, though negated, I yet insist upon as something positive. Love is both the source and solution of this contradiction. As a solution it is an ethical union.

§ 159. A right, which comes to the individual by reason of the family and constitutes his life in it, does not appear in the form of a right, that is, the abstract element of a definite individuality, until the family is dissolved. Then those, who should be members, become in feeling and reality self-dependent persons. What was theirs by right of their position in the family, they now receive in separation in an external way, in the form of money, maintenance, or education.

Addition.—The family has this special right, that its substantive nature should have a sphere in actuality. This right is a right against external influences and against abandonment of the unity. But, on the other hand, love is subjective feeling, which, if it oppose the unity of the family, destroys it. If in such a case a unity is insisted on, it can comprehend only things that are external and independent of feeling.

§ 160. The family when completed has the three following phases

(a.) The form of its direct conception, marriage.

(b) External reality, the family property and goods and the care of them,

(c) Education of children and dissolution of the family.

§ 161. Marriage, as the elementary social relation, contains firstly the factor of natural life. As marriage is also a substantive fact, natural life must be viewed in its totality as the realization of the species, and the process which the realization involves. But, secondly, the merely inner, potential and, when actualized, external unity of the sexes is transformed in self-consciousness into the spiritual unity of self-conscious love.

Addition.—Marriage is essentially an ethical relation. Formerly, in the majority of what are called rights of nature, marriage was interpreted on its physical or natural side. It has thus been looked upon simply as a sexual relation, and as excluding all the other features of marriage. But such a view is no more crude than to conceive of marriage merely as civil contract, a view found in Kant. In accordance with this view, individuals form a compact through mere caprice, and marriage is degraded to a bargain for mutual use. A third doctrine, equally reprehensible, bases marriage on love only. Love, which is feeling, admits the accidental on every side, as the ethical cannot do. Hence, marriage is to be defined more exactly as legal ethical love. Out of marriage has disappeared the love, which is merely subjective.

§ 162. As a subjective starting-point for marriage either the special inclination of two persons for each other may be the more observable, or else the provision and general arrangements of the parents. The objective point of departure, however, is the free consent of the two to become one person. They give up their natural and private personality to enter a unity, which may be regarded as a limitation, but, since in it they attain to a substantive self-consciousness, is really their liberation.

Note.—That an individual may be objective, and so fulfil his ethical duty, he should marry. The circumstances attending the external starting-point are naturally a matter of chance, depending largely upon the state of reflective culture. In this there may be either of two extremes. Either well-meaning parents arrange beforehand for the marriage of two persons, who, when they have made each other’s acquaintance as prospective husband and wife, are then expected to love each other. Or, on the other hand, inclination is supposed first to appear in the two persons, left absolutely to their private selves. The extreme, in which marriage is resolved on prior to inclination, and both resolution and inclination are then present in the actual marriage, is the more ethical. In the other extreme, it is the individual’s private and unformed nature, which makes good its pretensions. This extreme is in close alliance with the subjective principle of the modern world (§ 124, note).

Modern dramas and other works of art produce an atmosphere of the chilliest indifference, by the way in which they represent the motive of sexual love. This feeling of indifference is due to the association in the drama of ardent passion with the most utter contingency, the whole interest being made to depend simply upon merely private persons. The event is, doubtless, of the very last importance to these persons, but not in itself.

Addition.—Amongst nations where women are held in slight esteem, parents arrange the marriage of their children, without ever consulting them. The children submit, because the particularity of feeling as yet makes no claim at all. The maiden is simply to have a husband, the man a wife. In other circumstances regard may be had to means, connections, political hopes. To make marriage the means for other ends may cause great hardship. But in modern times the subjective point of departure, i.e., being in love, is thought to be the only thing of consequence. In this it is taken for granted that each one must wait till his hour has struck, and that he can bestow his love upon one and only one individual.

§ 163. The ethical side of marriage consists in the consciousness that the union is a substantive end. Marriage thus rests upon love, confidence, and the socializing of the whole individual existence. In this social disposition and reality natural impulse is reduced to the mode of a merely natural element, which is extinguished in the moment of its satisfaction. On the other hand, the spiritual bond of union, when its right as a substantive fact is recognized, is raised above the chances of passion and of temporary particular inclination, and is of itself indissoluble.

Note.—It has already been remarked that there is no contract in connection with the essential character of marriage (§ 75). Marriage leaves behind and transcends the standpoint of contract, occupied by the person who is sufficient for himself. Substance is such as to be in essential relation to its accidents. The union of personalities, whereby the family becomes one person, and its members its accidents, is the ethical spirit. The ethical spirit, stripped of the many external phases which it has in particular individuals and transitory interests, has been by picture-thought given independent form, and reverenced as the Penates, etc. In this attitude of mind is found that religious side of marriage and the family, which is called piety. It is a further abstraction, when the divine and substantive reality is separated from its physical embodiment. The result of this procedure is that feeling and the consciousness of spiritual unity become what is falsely called Platonic love. This separation is in keeping with the monastic doctrine, in which natural vitality is regarded simply as negative, and is given by this very separation an infinite importance.

Addition.—Marriage is distinguished from concubinage, since in concubinage the chief factor is the satisfaction of natural impulse, while in marriage this satisfaction is subordinate. Hence, in marriage one speaks without blushing of occurrences, which apart from the marriage relation cause a sense of shame. Therefore, also, is marriage to be esteemed as in itself indissoluble. The end of marriage is ethical, and therefore occupies so high a place that everything opposing it seems secondary and powerless. Marriage shall not be liable to dissolution through passion, since passion is subject to it. But, after all, it is only in itself indissoluble, for, as Christ says, divorce is permitted, but only because of hardness of heart. Marriage, since it contains feeling, is not absolute, but open to fluctuations, and has in it the possibility of dissolution. Yet the laws must make the possibility as difficult as can be, and must retain intact the right of the ethical against inclination.

§ 164. Just as in the case of contract it is the explicit stipulation, which constitutes the true transference of property (§ 79), so in the case of the ethical bond of marriage the public celebration of consent, and the corresponding recognition and acceptance of it by the family and the community, constitute its consummation and reality. The function of the church is a separate feature, which is not to be considered here. Thus the union is established and completed ethically, only when preceded by social ceremony, the symbol of language being the most spiritual embodiment of the spiritual (§ 78). The sensual element pertaining to the natural life has place in the ethical relation only as an after result and accident belonging to the external reality of the ethical union. The union can be expressed fully only in mutual love and assistance.

Note.—When the question as to the chief end of marriage is asked with a view to enact or recast laws, it means Which, particular side of the reality of marriage must be accepted as the most essential? But no one separate phase of marriage comprises the whole range of its absolute ethical content; and one or other phase of its existence may be wanting without injury to its essence.—In the celebration of marriage the essence of the union is clearly understood to be an ethical principle, freed from the accidents of feeling and private inclination. If the solemnization be taken for an external formality, or a so-called mere civil requisition, the act loses all purpose except that of edification, or of an attestation to the civic regulation. Indeed, there may perhaps remain only the positive arbitrariness of a civil or ecclesiastical command. Now, not only is a command of this kind indifferent to the nature of marriage, but in so far as the two persons have because of it ascribed value to the formality, and counted it as a condition precedent to complete abandonment to each other, it is an alien thing, bringing discord into the disposition of love, and thwarting the inner nature of the union. The opinion that the marriage ceremony is a mere civic mandate professes to contain the loftiest conception of the freedom, intensity, and completeness of love; but in point of fact it denies the ethical side of it, which implies a limitation and repression of the mere natural tendency. Reserve is already found naturally in a sense of shame, and is by the more articulate spiritual consciousness raised to the higher form of modesty and chastity. In a word, the view of marriage just criticised rejects the ethical side, by virtue of which consciousness gathers itself out of its native and subjective condition, and attains to the thought of the substantive. Instead of always holding before itself the accidental character of sensual inclination, it casts off the fetters of this state and engages itself to what is substantive and binding, namely, the Penates. The sensual element is reduced and conditioned by the recognition of marriage as an ethical bond. Insolent is the view of the mere understanding, which is unable to apprehend marriage in its speculative nature. This substantive relation, however, is in harmony with the unsophisticated ethical sense, and with the laws of Christian nations.

Addition.—It is laid down by Friedrich v. Schlegel, in “Lucinde,” and by a follower of his in the “Letters of an Unknown” (Lubeck and Leipzig, 1800), that the marriage-ceremony is a superfluous formality. They argue that by the form of marriage love, which is the substantive factor, loses its value; they represent that the abandonment to the sensual is necessary as proof of the freedom and inner reality of love. This style of argument is usual with seducers. Besides, as regards the relation of man to woman, it is woman who, in yielding to sense, gives up her dignity, whereas man has another field than the family for his ethical activity. The sphere of woman is essentially marriage. Her rightful claim is that love should assume the form of marriage, and that the different elements existing in love should be brought into a truly rational connection.

§ 165. The natural office of the sexes receives, when rationalized, intellectual and social significance. This significance is determined by the distinction which the ethical substance, as conception, introduces by its own motion into itself, in order to win out of the distinction its own life or concrete unity.

§ 166. In one sex the spiritual divides itself into two phases, independent, personal self-sufficiency, and knowing and willing of free universality. These two together are the self-consciousness of the conceiving thought, and the willing of the objective final cause. In the other sex the spiritual maintains itself in unity and concord. This sex knows and wills the substantive in the form of concrete individuality and feeling. In relation to what is without one sex exhibits power and mastery, while the other is subjective and passive. Hence the husband has his real essential life in the state, the sciences, and the like, in battle and in struggle with, the outer world and with himself. Only by effort does he, out of this disruption of himself, reach self-sufficing concord. A peaceful sense of this concord, and an ethical existence, which is intuitive and subjective, he finds in the family. In the family the wife has her full substantive place, and in the feeling of family piety realizes her ethical disposition.

Note.—Hence piety is in the “Antigone” of Sophocles most superbly presented as the law of the woman, the law of the nature, which realizes itself subjectively and intuitively, the law of an inner life, which has not yet attained complete realization, the law of the ancient gods, and of the under-world, the eternal law, of whose origin no one knows, in opposition to the public law of the state. This opposition is in the highest sense ethical, and hence also tragic; it is individualized in the opposing natures of man and woman.

Addition.—Women can, of course, be educated, but their minds are not adapted to the higher sciences, philosophy, or certain of the arts. These demand a universal faculty. Women may have happy inspirations, taste, elegance, but they have not the ideal. The difference between man and woman is the same as that between animal and plant. The animal corresponds more closely to the character of the man, the plant to that of the woman. In woman there is a more peaceful unfolding of nature, a process, whose principle is the less clearly determined unity of feeling. If women were to control the government, the state would be in danger, for they do not act according to the dictates of universality, but are influenced by accidental inclinations and opinions. The education of woman goes on one hardly knows how, in the atmosphere of picture-thinking, as it were, more through life than through the acquisition of knowledge. Man attains his position only through stress of thought and much specialized effort.

§ 167. Marriage in its essence is monogamy, because in this relation it is the personality, the directly exclusive individuality which subsides and resigns itself. The true inner side of marriage, the subjective form of the real substantive institution, issues only out of such a mutual renunciation of personality as is shared in by no one else. Personality acquires the right of being conscious of itself in another, only in so far as the other appears in this identity as a person or atomic individuality.

Note.—Marriage, or monogamy, rather, is one of the principles on which the ethical life of a community depends most absolutely. Hence the institution of marriage is represented as one of the features of the divine or heroic founding of the state.

§ 168. Since marriage proceeds out of the free resignation by both sexes of that personality which is infinitely peculiar to themselves, it must not occur within the bounds of natural identity, which involves great intimacy and unlimited familiarity. Within such a circle individuals have no exclusive personality. Marriage must rather take place in families that are unconnected, and between persons who are distinct in their origin. Between persons related by blood, therefore, marriage is contrary to the conception of it. It is an ethical act done in freedom, and not controlled by direct natural conditions and their impulses. Marriage within these limits is likewise contrary to true natural feeling.

Note.—To regard marriage as grounded not on a right of nature but on natural sexual impulse, to view it as a capricious contract, to give such an external reason for monogamy as the number of men in relation to the number of women, and to give only vague feelings as cause sufficient to prohibit marriage between blood connections, all such theories are due to the current idea of a state of nature, and to the opinion that such a state possesses rights. They are, however, devoid of the conception of rationality and freedom.

Addition.—Consanguineous marriages find opposition, in the first instance, in the sense of shame. This feeling of hesitation is justified by the conception. What is already united cannot be first of all united by marriage. As to the relation of mere nature, it is known that amongst animals copulation within one stock produces weaker offspring. What is to be joined ought to be at first distinct and separate. The power of production, both of spirit and body, is greater, the deeper are the oppositions out of which it restores itself. Familiarity, intimacy, habituation due to the same course of action, ought not to occur previous to marriage, but should be found for the first time in the married state. Their appearance after marriage has richer results and a higher value, the more numerous have been the points of difference.

§ 169. The family, as person, has its external reality in property. If it is to furnish a basis for the substantive personality of the family, it must take the form of means.

§ 170. It is not enough that the family has property, but, as a universal and lasting person, it needs a permanent and sure possession, or means. When property is treated abstractly, there occur at random the particular needs of the mere individual, and also the self-seeking of the appetites. These now take on an ethical aspect, and are changed into provision for a common interest.

Note.—In the wise sayings concerning the founding of states, the institution of a sure property makes its appearance in connection with the institution of marriage, or at least with the introduction of an orderly social Life.—When we come to the civic community, we shall see in what family competence consists, and how it is to be secured.

§ 171. The husband is the head of the family, and when it, as a legal person, collides with other families, he is its representative. It is expected of him, further, to go out and earn its living, care for its needs, and administer the family means. This means is a common possession, to which each member has a common but not a special right. This general right and the husband’s right to dispose of the property may conflict, because the ethical sentiment (§ 158), which in the family is still in its simplest form, is subject to chance and violence.

§ 172. Marriage establishes a new family, which has its own independent footing as against the stems or houses from, which it has proceeded. The connection of the new family with these stems is consanguinity, but the principle of the new family is ethical love. Thus, the individual’s property is essentially allied to his marriage, and less intimately to his original stock or house.

Note.—A marriage-settlement, which imposes a limit to the common possession of goods by the wedded couple, or any other arrangement by which the right of the wife is retained, is intended to be security against the dissolution of the marriage-tie by death or divorce. In such an event the different members of the family are by this arrangement apportioned their shares of the common possession.

Addition.—In many law codes the more extended range of the family circle is retained. It is looked upon as the real bond of union, while the tie of the single family is regarded as comparatively unimportant. Thus in the older Roman law the wife of the lax marriage is more closely allied to her relatives than to her husband and children. In feudal times, also, the necessity of preserving the splendor familiae led to reckoning under the family only its male members. Thus the whole family connection was the chief object of concern, and the newly-formed family was placed in the background. Notwithstanding this, every new family is more essential than the wider circle bounded by the tie of consanguinity. A married couple with their children form a nucleus of their own in opposition to the more extended household. Hence the financial status of individuals must be more vitally connected with marriage than with the wider family union.

§ 173. The unity of marriage which, as substantive, exists only as an inner harmony and sentiment, but, so far as it exists actually, is separated in the two married persons, becomes in the children a unity, which has actual independent existence, and is an independent object. This new object the parents love as an embodiment of their love.—The presupposition of the direct presence of the two people as parents becomes, when taken on its merely natural side, a result. This process expands into an infinite series of generations, which beget and are presupposed. At this finite and natural standpoint the existence of the simple spirit of the Penates is represented as species or kind.

Addition.—Between husband and wife the relation of love is not yet objective. Though feeling is a substantive unity, it has as yet no footing in reality. This foothold parents attain only in their children, in whom the totality of their alliance is visibly embodied. In the child the mother loves her husband, and the father his wife. In the child both parents have their love before their eyes. Whereas in means the marriage tie exists only in an external object, in children it is present in a spiritual being, in whom the parents are loved, and whom they love.

§ 174. Children have the right to be supported and educated out of the common family means. The right of parents to the service of their children, as service, is limited to and based upon family cares. The right of parents over the free choice of their children is just as clearly limited to correction and education. The purpose of chastisement is not mere justice; it has a subjective moral side, its object being to restrain a freedom, which is still bound to nature, and to instil the universal into the child’s consciousness and will.

Addition.-—Man does not possess by instinct what he is to be, but must first of all acquire it. Upon this is based the child’s right to be educated. As it is with children, so is it with nations under paternal government; the people are supplied with food out of storehouses, and are not looked upon as self-dependent or of age. The services required of children must bear upon their education and promote their good. To ignore this good would destroy the ethical element of the relation, and make the child a slave. A prominent feature in the education of children is correction, intended to break their self-will, and eradicate what is merely sensual and natural. One must not expect to succeed here simply with goodness, because the direct volition of children is moved by immediate suggestions and likings, not by reasons and ideas. If we give children reasons, we leave it open to them whether to act upon them or not. In this way everything depends upon their pleasure. In the fact that parents constitute the universal and essential is included the necessity of obedience on the part of children. When no care is taken to cherish in children the feeling of subordination, a feeling begotten in them by the longing to be big, they become forward and impertinent.

§ 175. Children are potentially free, and life is the direct embodiment of this potential freedom. Hence they are not things, and cannot be said to belong to any one, their parents or others. But their freedom is as yet only potential. The education of children has with regard to family life a two-fold object. Its positive aim is to exalt the ethical nature of the child into a direct perception free from all opposition, and thus secure that state of mind, which forms the basis of ethical life. The child thus passes his earlier years in love, trust, and obedience. Its negative aim is to lift the child out of the natural simplicity, in which it at first is, into self-dependence and free personality, and thus make it able to leave the natural unity of the family.

Note.—That the children of Roman parents were slaves is one of the facts which most tarnishes the Roman law. This wounding of the ethical life in its most intimate quarter is an important element in forming an estimate of the world-historical character of the Romans, as well as of their tendency towards formal right.

The necessity for the education of children is found in their inherent dissatisfaction with what they are, in their impulse to belong to the world of adults, whom they reverence as higher beings, and in the wish to become big. The sportive method of teaching gives to children what is childish under the idea that it is in itself valuable. It makes not only itself ridiculous, but also all that is serious. It is scorned by children themselves. Since it strives to represent children as complete in their very incompleteness, of which they themselves are already sensible. Hoping to make them satisfied with their imperfect condition, it disturbs and taints their own truer and higher aspiration. The result is indifference to and want of interest in the substantive relations of the spiritual world, contempt of men, since they have posed before children in a childish and contemptible way, and vain conceit devoted to the contemplation of its own excellence.

Addition.—Man, as child, must have been included with his parents in the circle of love and mutual confidence, and the rational must appear in him as his own most private subjectivity. At the outset the education given by the mother is of greater importance, since social character must be planted in the child as feeling. It is noticeable that children as a rule love their parents less than the parents do their children. Children are on the way to meet independence and wax in strength; besides they have their parents in a sense behind them: but parents possess in their children the objective embodiment of their union.

§ 176. Marriage is only the direct form of the ethical idea, and has its objective reality in the inwardness of subjective sentiment and feeling. In this is found its first exposure to accident. Just as no one may be forced to marry, so there must be no positive legal bond to hold together persons, between whom have arisen hostile thoughts and acts. A third authority must, however, intervene to hold intact the right of marriage and the right of the ethical fabric against the inroads of mere opinion, and the accidents of fleeting resolves. It must also distinguish between the effervescence of feeling and total alienation, and have proof of alienation before permitting divorce.

Addition.—As marriage rests only upon a subjective sentiment which is liable to change, it may be dissolved. The state, on the contrary, is not subject to division, since it rests upon the law. Marriage should be indissoluble, but this desirable state of things remains a mere moral command. Yet, since marriage is ethical, it cannot be dissolved at random, but only by a constituted ethical authority, be it the church or the law. If total alienation has taken place on account of adultery, for example, then the religious authority also must sanction divorce.

§ 177. The ethical or social dismemberment of the family occurs when the children have grown to be free personalities. They are recognized as legal persons, when they have attained their majority. They are then capable both of possessing free property of their own and of founding their own families, sons as heads of the family, and daughters as wives. In the new family the founders have now their substantive office, in contrast with which the first family must occupy a subordinate place as mere basis and point of departure. The family stock is an abstraction which has no rights.

§ 178. The natural disruption of the family by the death of the parents, especially of the husband, necessitates inheritance of the family means. Inheritance is the entering into peculiar possession of the store that is in itself common. The terms of inheritance depend on degree of relation and on the extent of the dispersion throughout the community of the individuals and families, who have broken away from the original family and become independent. Hence inheritance is indefinite in proportion to the loss of the sense of unity, since every marriage is the renunciation of former connections, and the founding of a new independent family.

Note.—It has been supposed that on the occasion of a death a fortune loses its owner, and falls to him who first gets possession of it. Actual possession, however, so the supposition runs, is generally made by relatives, since they are usually in the immediate neighbourhood of the deceased. Hence what customarily happens, is, for the sake of order, raised by positive law into a rule. This theory is little more than a whim, and altogether overlooks the nature of the family relation.

§ 179. Through the dismemberment of the family by death there is afforded free scope for the capricious fancy of the testator, who may bestow his means in accordance with his personal likings, opinions, and ends. He may leave his possessions to friends and acquaintances instead of to the family, adopting the legal mode of bequest by embodying his declaration in a will.

Note.—Into the formation of a circle of friends by a bequest, which is authorized by ethical observance, there enters, especially in the case of wills, so much of arbitrariness, wilfulness, and selfishness, that’ the ethical element becomes extremely shadowy. Indeed the legal permission to be arbitrary in drawing up a will is rather the cause of injury to ethical institutions and, also, of underhand exertions and servility. It occasions and justifies the absurd and even malign desire to link to so-called benefactions and bequests of property, which in any case ceases at death to be mine, conditions that are vain and vexatious.

§ 180. The principle that the members of a family become independent legal persons (§ 177) allows something of capricious discrimination with regard to the natural heirs to enter inside even the family circle. But this discrimination is greatly limited in order not to injure the fundamental relation of the family.

Note.—The simple direct freedom of choice of the deceased cannot be construed as the principle at the basis of the right to make a will. More particularly is this the case, if this wilfulness is opposed to the substantive right of the family, whose love and esteem for the deceased would be the chief reason for carrying out after his death his wayward behest. Such a will contains nothing so worthy of respect as the family right. Formerly the validity of a last will and testament lay only in its arbitrary recognition of others. This validity can be conceded to a testamentary disposition only when the family relation, in which it would otherwise be absorbed, is weak and ineffective. But to ignore the province of the family relation, when it is real and present, is unethical; and it would also weaken its inherent ethical value to extend the boundaries of a testator’s caprice.

The harsh and unethical Roman law makes unlimited caprice inside the family the chief principle of succession. In accordance with this law the son could be sold by the father, and would, if freed, again come under his father’s power. Only after being freed from slavery the third time, was he really free. According to these laws the son did not de jure come of age, and was not a legal person. Only what he took in war, peculium castrense, was he entitled to possess. When he, on being three times sold and freed, passed out of his father’s power, he did not inherit along with those, who had remained in family servitude, except by the insertion of a special clause in the will. Similarly, the wife, in so far as she had entered marriage not as a slave, in manum conveniret, in mancipio esset,, but as a matron, did not so much belong to the family, which had by her marriage been established, and was actually hers, as to the family of her birth. Hence she was excluded from, inheriting wealth, which belonged to what was really her own family. Though wife and mother she was disinherited.

It has already been observed (§ 3, note) that, as the feeling of rationality developed, efforts were made to escape from the unethical elements of these and other laws. The expression bonorum possessio, which, as every learned jurist knows, is to be distinguished from possessio bonorum, was drawn into service by the judges instead of hereditas, through the employment of a legal fiction, by means of which a filia was changed by a second baptism into a filius. It thus sometimes became the sad necessity of the judges slyly to smuggle in the reasonable as an offset to bad laws. Hence, the most important institutions became pitifully unstable, and evils arose, which necessitated in turn a tumultuous mass of counter legislation.

The unethical results, flowing from the right of free choice allowed by Roman law to testators, are well known from history and from the descriptions of Lucian and others. As to marriage it is a direct and simple ethical relation, and implies a mingling of what is substantive with natural contingency and inner caprice. By making children slaves, and by kindred regulations, conspicuously by ready and easy divorce, preference is openly conceded to wilfulness over the right of the substantive ethical fact.—Thus Cicero himself, who, in his “Officiis” and other works has written many a fine thing about the Honestum and Decorum, devised the scheme of sending away his wife in order that he might with a second wife get a sufficient dowry to pay his debts. When such things occur, a way is paved by the law for the ruin of morals; or rather the laws are the necessary product of this ruin and decay.

The institution of heirs-at-law is introduced in order to preserve the glory of the family stock. It makes use of substitutions and family trusts by excluding from the inheritance the daughters in favour of the sons, or the rest of the family in favour of the eldest son, or by sanctioning some other inequality. By it injustice is done to the principle of freedom of property (§ 62). Besides, it rests upon an arbitrary will, which has absolutely no right to be recognized, since it aims to preserve a particular stock or house rather than a particular family. But the family, and not the stock or house is the idea, which has the right to be preserved. Moreover, the ethical fabric is as likely to be maintained by the free disposal of property and equality of succession, as family trees are to be preserved by an opposite course.

In institutions like the Roman the right of marriage (§ 172) is everywhere misinterpreted. Marriage is the complete founding of a new and actual family, in contrast with which the family, as the stirps or gens is called, is an abstraction, becoming, as the generations pass by, ever more shadowy and unreal (§ 177). Love, the ethical element in marriage, is a feeling for real present individuals, and not for an abstraction. It is shown further on (§ 356) that the world-historical principle of the Roman empire is an abstraction of the understanding. It is also shown further on (§ 306) that the higher political sphere introduces a right of primogeniture and an inalienable family fortune, based, however, not on an arbitrary act of will, but on the necessary idea of the state.

Addition.—Amongst the Romans in earlier times a father could disinherit his children, and even put them to death. Afterwards neither of these acts was allowed. Efforts were made to bring both the unethical and also the illogical attempt to make it ethical into one system, the retention of which constitutes the difficulty and weakness of our law of inheritance. Wills may certainly be permitted, but in them should prevail the idea that the right of arbitrary decision grows only with the dispersion and separation of the members of the family. The so-called family of friendship, which bequest brings into existence, should appear only when there are no children or near relatives. Something offensive and disagreeable is associated with testamentary dispositions generally. In them I reveal those to whom I have inclination. But inclination is arbitrary, can be obtained surreptitiously, and is allied to whim and fancy. It may even be required in a will that an heir shall subject himself to the greatest indignities. In England, where they are given to riding all sorts of hobbies, an infinite number of absurdities are attached to wills.

§ 181. In a natural way and essentially through the principle of personality, the family separates into a number of families, which then exist as independent concrete persons, and are therefore related externally to one another. The elements bound up in the unity of the family, which is the social idea still in the form of the conception, must now be released from the conception and given independent reality. This is the stage of difference. Here, at the outset, to use abstract expressions, we have the determination of particularity, which is nevertheless in relation to universality. The universal is, in fact, the basis, which is, however, as yet only internal, and therefore exists in the particular only formally, and in it is manifested externally. Hence in this relation occasioned by reflection the ethical is, as it were, lost; or rather since it, as essence, of necessity appears or is manifested, it occurs in its phenomenal form. This is the civic community.

Note.—The extension of the family or the transition of it into another principle has in the actual world two phases. It is on one side the peaceful expansion of the family into a people or nation, whose component parts have a common natural origin. On the other side it is the collection of scattered groups of families by superior force, or it is their voluntary association, in order to satisfy by co-operation their common wants.

Addition.—Universality has here a point of outlet in the independence of particularity. At this point the ethical appears to be lost. Consciousness finds in the identity of the family what is properly its first divine and obligatory principle. But now there appears a relation, in which the particular is to be the prime factor in determining my conduct. Thus the ethical seems to be discarded and superseded. But in this view I am really in error, for, while I believe myself to be retaining the particular, the universal and also the necessity of social unity still remain for me fundamental and essential. Besides, I am at the stage of appearance, and although my particular nature remains for me the determining factor and end, I serve in this way the universal, which does not relax its own special hold of me.