{"id":900241,"date":"2024-05-31T04:00:00","date_gmt":"2024-05-31T02:00:00","guid":{"rendered":"https:\/\/grundlinien.de\/?p=900177"},"modified":"2026-08-24T10:30:10","modified_gmt":"2026-08-24T08:30:10","slug":"180","status":"publish","type":"post","link":"https:\/\/grundlinien.de\/en\/180\/","title":{"rendered":"180"},"content":{"rendered":"\n

The principle that the members of the family become self-subsistent legal persons (§ 177<\/a>) allows something of this arbitrariness and distinction, among the natural heirs, to enter within the circle of the family — but it can take place only within the strictest limits, so as not to violate the fundamental relationship.<\/p>\n\n\n\n

The merely direct arbitrary will of the deceased cannot be made into the principle for the right<\/em> to make a will, particularly not insofar as it stands opposed to the substantial right of the family, whose love and reverence toward its former member could, after all, chiefly be the only thing that would pay heed to that person’s arbitrary will after his death. Such an arbitrary will contains, for itself, nothing that ought to be respected as higher than family right itself; on the contrary. Whatever validity a testamentary disposition otherwise has would lie solely in the arbitrary recognition of it by others. Such validity can chiefly be accorded to it only insofar as the family relationship, in which it is absorbed, becomes more remote and less effective. But the ineffectiveness of that relationship, where it is actually present, belongs to what is unethical, and the extended validity of that arbitrary will, as against such a relationship, contains within it the weakening of its ethical character. — To make this arbitrary will, within the family, into the chief principle of succession, belonged to that harshness and unethical character of the Roman laws remarked on earlier, according to which a son could even be sold by his father, and, if freed by others, returned into the father’s power, and became truly free only upon the third manumission from slavery — according to which the son did not, in general, become of age de iure<\/em> and a legal person, and could possess as property only booty of war, the peculium castrense<\/em>, and, if he stepped out of paternal power through that threefold sale and release, did not inherit, without testamentary appointment, along with those who had remained in family bondage — likewise, according to which the wife (insofar as she did not enter marriage as into a relationship of slavery, in manum conveniret<\/em>, in mancipio esset<\/em>, but entered it as a matron<\/em>) remained belonging not so much to the family that she had, through marriage, founded as her own part, and which was now truly hers<\/em>, as rather to the one from which she was descended, and was therefore just as much excluded from inheriting the resources of the family that was truly hers, as the wife and mother was not inherited from by these. — That the unethical character of these and other rights was, as the feeling of rationality further awakened, evaded by way of the administration of justice — for example, with the help of the expression bonorum possessio<\/em> (that possessio bonorum<\/em> is again to be distinguished from this belongs to the kind of learning that makes up the erudite jurist) instead of hereditas<\/em>, through the fiction of rechristening a filia<\/em> into a filius<\/em> — has already been remarked above (§ 3<\/a>, Remark) as the sad necessity for the judge to smuggle in the rational, cunningly, against bad laws, at least in some of its consequences. The dreadful instability of the most important institutions, and a tumultuous legislating against the outbreaks of the evils arising from this, are connected with it. — What unethical consequences this right of arbitrary will in making a testament had among the Romans is sufficiently well known from history and from the accounts of Lucian and others. — It lies in the nature of marriage itself, as immediate ethical life, that substantial relationship, natural contingency, and inward arbitrary will are intermixed; and when, now, preference is given to arbitrary will — through the bondage-relationship of the children and the other determinations remarked on, and otherwise connected with this, and, not least, through the ease of divorce among the Romans — over the right of the substantial, so that even Cicero<\/em> — and how much that is beautiful has he not written on honestum<\/em> and decorum<\/em>, in his Officiis<\/em> and elsewhere throughout! — made the calculation of sending away his wife in order to pay off his debts through the dowry of a new one, then a legal path is opened up to the corruption of morals, or rather the laws are the necessity of this corruption.<\/p>\n

The institution of the law of inheritance which, for the preservation and splendour of the family, through substitutions<\/em> and family entails<\/em>, excludes either the daughters in favour of the sons, or the remaining children in favour of the eldest son, from the inheritance, or otherwise allows an inequality to arise, violates, in part, the principle of the freedom of property (§ 62<\/a>), and, in part, rests on an arbitrary will that has, in and for itself, no right to be recognized — more precisely, on the thought of wishing to maintain this stock or house<\/em>, rather than this family<\/em>. But it is not this house or stock, but the family as such<\/em>, that is the Idea which has such a right, and, through the freedom of resources and the equality of the right of inheritance, ethical formation is preserved just as well — indeed families<\/em> are preserved far more through this than through the opposite. — In such institutions, as in the Roman ones, the right of marriage (§ 172<\/a>) is in general misconceived — namely, that marriage is the complete founding of a peculiar, actual family, over against which what is called family in general, stirps<\/em>, gens<\/em>, becomes only an abstraction, ever more remote and unrealized with the generations (§ 177<\/a>). Love, the ethical moment of marriage, is, as love, a feeling for actual, present individuals, not for an abstraction. — That the abstraction of the understanding shows itself as the world-historical principle of the Roman empire, see below, § 356<\/a>. — But that the higher political sphere brings about a right of primogeniture and an inalienable family estate, not, however, as an arbitrary matter, but as necessary out of the Idea of the state, on this see below, § 306<\/a>.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

The principle that the members of the family become self-subsistent legal persons (§ 177) allows something of this arbitrariness and distinction, among the natural heirs, to enter within the circle of the family — but it can take place only within the strictest limits, so as not to violate the fundamental relationship. The merely direct […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[21,13],"tags":[36],"class_list":["post-900241","post","type-post","status-publish","format-standard","hentry","category-paragraph-en","category-uncategorized","tag-actualization"],"_links":{"self":[{"href":"https:\/\/grundlinien.de\/en\/wp-json\/wp\/v2\/posts\/900241","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/grundlinien.de\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/grundlinien.de\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/grundlinien.de\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/grundlinien.de\/en\/wp-json\/wp\/v2\/comments?post=900241"}],"version-history":[{"count":1,"href":"https:\/\/grundlinien.de\/en\/wp-json\/wp\/v2\/posts\/900241\/revisions"}],"predecessor-version":[{"id":900342,"href":"https:\/\/grundlinien.de\/en\/wp-json\/wp\/v2\/posts\/900241\/revisions\/900342"}],"wp:attachment":[{"href":"https:\/\/grundlinien.de\/en\/wp-json\/wp\/v2\/media?parent=900241"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/grundlinien.de\/en\/wp-json\/wp\/v2\/categories?post=900241"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/grundlinien.de\/en\/wp-json\/wp\/v2\/tags?post=900241"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}