Personal right of a real kind is the right to the possession of an external object as a thing, and to the use of it as a person.The mine and thine embraced under this right relate specially to the family and household; and the relations involved are those of free beings in reciprocal real interaction with each other.Through their relations and influence as persons upon one another, in accordance with the principle of external freedom as the cause of it, they form a society composed as a whole of members standing in community with each other as persons; and this constitutes the household.The mode in which this social status is acquired by individuals, and the functions which prevail within it, proceed neither by arbitrary individual action (facto), nor by mere contract (pacto), but by law (lege).And this law as being not only a right, but also as constituting possession in reference to a person, is a right rising above all mere real and personal right.It must, in fact, form the right of humanity in our own person; and, as such, it has as its consequence a natural permissive law, by the favour of which such acquisition becomes possible to us.
23.What is acquired in the household.
The acquisition that is founded upon this law is, as regards its objects, threefold.The man acquires a wife; the husband and wife acquire children, constituting a family; and the family acquire domestics.All these objects, while acquirable, are inalienable; and the right of possession in these objects is the most strictly personal of all rights.
The Rights of the Family as a Domestic SocietyTitle I.Conjugal Right.(Husband and Wife)24.The Natural Basis of Marriage.
The domestic relations are founded on marriage, and marriage is founded upon the natural reciprocity or intercommunity (commercium) of the sexes.* This natural union of the sexes proceeds according to the mere animal nature (vaga libido, venus vulgivaga, fornicatio), or according to the law.The latter is marriage (matrimonium), which is the union of two persons of different sex for life-long reciprocal possession of their sexual faculties.The end of producing and educating children may be regarded as always the end of nature in implanting mutual desire and inclination in the sexes;but it is not necessary for the rightfulness of marriage that those who marry should set this before themselves as the end of their union, otherwise the marriage would be dissolved of itself when the production of children ceased.
*Commercium sexuale est usus membrorum et facultatum sexualium alterius.This "usus" is either natural, by which human beings may reproduce their own kind, or unnatural, which, again, refers either to a person of the same sex or to an animal of another species than man.These transgressions of all law, as crimina carnis contra naturam, are even "not to be named"; and, as wrongs against all humanity in the person, they cannot be saved, by any limitation or exception whatever, from entire reprobation.
And even assuming that enjoyment in the reciprocal use of the sexual endowments is an end of marriage, yet the contract of marriage is not on that account a matter of arbitrary will, but is a contract necessary in its nature by the law of humanity.In other words, if a man and a woman have the will to enter on reciprocal enjoyment in accordance with their sexual nature, they must necessarily marry each other; and this necessity is in accordance with the juridical laws of pure reason.
25.The Rational Right of Marriage.
For, this natural commercium- as a usus membrorum sexualium alterius- is an enjoyment for which the one person is given up to the other.In this relation the human individual makes himself a res, which is contrary to the right of humanity in his own person.
This, however, is only possible under the one condition, that as the one person is acquired by the other as a res, that same person also equally acquires the other reciprocally, and thus regains and reestablishes the rational personality.The acquisition of a part of the human organism being, on account of its unity, at the same time the acquisition of the whole person, it follows that the surrender and acceptation of, or by, one sex in relation to the other, is not only permissible under the condition of marriage, but is further only really possible under that condition.But the personal right thus acquired is, at the same time, real in kind; and this characteristic of it is established by the fact that if one of the married persons run away or enter into the possession of another, the other is entitled, at any time, and incontestably, to bring such a one back to the former relation, as if that person were a thing.
26.Monogamy and Equality in Marriage.
For the same reasons, the relation of the married persons to each other is a relation of equality as regards the mutual possession of their persons, as well as of their goods.Consequently marriage is only truly realized in monogamy; for in the relation of polygamy the person who is given away on the one side, gains only a part of the one to whom that person is given up, and therefore becomes a mere res.But in respect of their goods, they have severally the right to renounce the use of any part of them, although only by a special contract.
