Jena Philosophy of Spirit

[p. 240]

|240| declaring that one wills, does the law enter; it is that which has not at all encompassed the several sides of individuality, is not yet living spirit at all – hence this empirical counterplay. According to the empty law, marriage is indissoluble because they have declared their will;¹¹⁰⁾ – but this [is] completely one-sided – the law, fulfilled, must take account of the vitality that is free of it; return from the common unity – of the persons into themselves (adultery, malicious desertion, incompatibilité d’humeur) – determinations which concern the content. – Whether the purpose of marriage is positively fulfilled is no concern of the law; a marriage has been founded, – possibility of marriage, not too great a difference in age, – (possibility of supporting oneself) – laws remain indeterminate with regard to this content. Separation of marriage, for this the positive will of one who wants to be divorced is required.

110) In the margin: abstract law comes into conflict with vitality, [it is] the empty pure will – it must recognise its abstraction; and give way to the fulfilled will; – the law is still this unliving universality.

Before the law, or in itself, marriage is concluded neither by a promise of marriage, nor by intercourse, but by the declared will, the pronouncing; this counts; – likewise in itself not broken by adultery, by malicious desertion, incompatibility, bad housekeeping, but whether both regard this as such and will it – But the question is whether, as they regard it, [it] is also so in itself; – and conversely, whether what is in itself the parties also want to regard so; their first will of marriage has changed, but just as well their second will can also change. The rigid law could persist in that first will, and declare the marriage indissoluble, or else consider the natural, the in-itself, and dissolve it. – The natural, impossibility of marriage on account of too unequal age, – dissolution on account of adultery, positive violation, which is

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