The Divorce Bill

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On the Divorce Bill and the stand of the Rheinische Zeitung on this question see Note 101. The article was published in English inWritings of the Young Marx on Philosophy and Society,New York, 1967, pp. 138-42.

Cologne, December 18. In regard to the Divorce Bill the Rheinische Zeitung has adopted quite a special position, and so far no proof has been given anywhere that this position is untenable. The Rheinische Zeitung agrees with the Bill inasmuch as it considers the hitherto existing Prussian legislation on marriage immoral, the hitherto innumerable and frivolous grounds for divorce impermissible, and the existing procedure not in accord with the dignity of the matter concerned, which, incidentally, can he said of the old Prussian court procedure as a whole. On the other hand, the Rheinische Zeitung has put forward the following main objections to the new Bill: 1) Instead of reform there has been a mere revision, hence Prussian law was retained as the basic law, which has resulted in considerable half-heartedness and, uncertainty; 2) the legislation treats marriage not as a moral, but as a religious and church institution, hence the secular essence of marriage is ignored; 3) the procedure is very defective and consists of a superficial combination of contradictory elements; 4) it cannot be ignored that there are, on the one hand, seventies of a police nature which are contrary to the concept of marriage and, on the other, too great leniency in regard to what are called considerations of fairness; 5) the whole formulation of the Bill leaves much to be desired as regards logical consistency, precision, clarity and comprehensive points of view.

Insofar as opponents of the Bill condemn one or other of these defects, we agree with them; on the other hand, we can by no means approve of their unconditional apologia for the former system. We repeat once more the statement we made previously:

“If legislation cannot decree morality, it can still less pronounce immorality to be legally valid.” When we ask these opponents (who are not opponents of the church conception and of the other shortcomings we have indicated) on what they base their arguments, they always speak to us about the unfortunate position of the husband and wife tied together against their will. They adopt a eudemonic standpoint, they think oly of the two individuals and forget about the family. They forget that almost every divorce is the break-up of a family and that even from the purely juridical standpoint the children and their property cannot be made to depend on arbitrary will and its whims. If marriage were not the basis of the family, it would no more be the subject of legislation than, for example, friendship is. Thus, the above-mentioned opponents take into account only the individual will or, more correctly, the arbitrary desire of the married couple, but pay no attention to the will of marriage, the moral substance of this relationship. The legislator, however, should regard himself as a naturalist. He does not make the laws, he does not invent them, he only formulates them, expressing in conscious, positive laws the inner laws of spiritual relations. just as one would have to reproach the legislator for the most unbridled arbitrary behaviour if he replaced the essence of the matter by his own notions, so also the legislator is certainly no less entitled to regard it as the most unbridled arbitrariness if private persons seek to enforce their caprices in opposition to the essence of the matter. No one is forced to contract marriage, but everyone who has done so must be compelled to obey the laws of marriage. A person who contracts marriage does not create marriage, does not invent it, any more than a swimmer creates or invents the nature and laws of water and gravity. Hence marriage cannot be subordinated to his arbitrary wishes; on the contrary, his arbitrary wishes must be subordinated to marriage. Anyone who arbitrarily breaks a marriage thereby asserts that arbitrariness, lawlessness, is the law of marriage, for no rational person will have the presumption to consider his actions as privileged, as concerning him alone; on the contrary, he will maintain that his actions are legitimate, that they concern everybody. But what do you oppose? You oppose the legislation of arbitrariness, but surely you do not want to raise arbitrariness to the level of a law at the very moment when you are accusing the legislator of arbitrariness.

Hegel says: In itself, according to the concept, marriage is indissoluble, but only in itself, i.e., only according to the concept. his says nothing specific about marriage. All moral relations are indissoluble according to the concept, as is easily realised if their truth is presupposed. A true state, a true marriage, a true friendship are indissoluble, but no state, no marriage, no friendship corresponds fully to its concept, and like real friendship, even in the family, like the real state in world history, so, too, real marriage in the state is dissoluble. No moral existence corresponds to its essence or, at least, it does not have to correspond to it. just as in nature decay and death appear of themselves where an existence has totally ceased to correspond to its function, just as world history decides whether a state has so greatly departed from the idea of the state that it no longer deserves to exist, so, too, the state decides in what circumstances an existing marriage has ceased to be a marriage. Divorce is nothing but the statement of the fact that the marriage in question is a dead marriage, the existence of which is mere semblance and deception. It is obvious that neither the arbitrary decision of the legislator, nor the arbitrary desire of private persons, but only the essence of the matter can decide whether a marriage is dead or not, for it is well known that the statement that death has occurred depends on the facts, and not on the desires of the parties involved. But if, in the case of physical death, precise, irrefutable proof is required, is it not clear that the legislator should be allowed to register the fact of a moral death only on the basis of the most indubitable symptoms, since preserving the life of moral relationships is not only his right, but also his duty, the duty of his self-preservation!

Certainty that the conditions under which the existence of a moral relationship no longer corresponds to its essence are correctly registered, without preconceived opinions, in accordance with the level attained by science and with the generally accepted views — this certainty, of course, can only exist if the law is the conscious expression of the popular will, and therefore originates with it and is created by it. We will add a few words about making divorce easier or more difficult: Can you consider a natural object to be healthy, strong, truly organised, if every external impact, every injury, is capable of destroying it? Would you not feel insulted if someone put forward as an axiom that your friendship could not withstand the. slightest accident and must be dissolved by any caprice? In regard to marriage, the legislator can only establish when it is permissible to dissolve it, that is to say, when in its essence it is already dissolved. juridical dissolution of marriage can only be the registering of its internal dissolution. The standpoint of the legislator is the standpoint of necessity. The legislator, consequently, gives due honour to marriage, acknowledges its profound moral essence, if he considers it strong enough to withstand a multitude of collisions without harm to itself. Indulgence of the wishes of individuals would turn into harshness towards the essence of the individuals, towards their moral reason, which is embodied in moral relationships.

Finally, we can only term it undue haste when from many quarters the accusation of hypocrisy is levelled against countries with strict laws on divorce, among which the Rhine Province is proud to be included. Only people whose field of vision does not go beyond the moral corruption around them can dare to make such accusations. In the Rhine Province, for example, these accusations are considered ridiculous and are regarded at most as proof that even the idea of moral relationships can be lost, and every moral fact regarded as a fairy-tale or a falsehood. This is the direct result of laws that are not dictated by respect for human beings; it is a mistake which is not done away with by contempt for the material nature of man becoming contempt for his ideal nature and blind obedience to a super-moral and supernatural authority being demanded instead of conscious subordination to moral and natural forces.