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of all rights。
The Rights of the Family as a Domestic Society
Title 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。
From the principle thus stated； it also follows that concubinage
is as little capable of being brought under a contract of right as the
hiring of a person on any one occasion； in the way of a pactum
fornicationis。 For； as regards such a contract as this latter relation
would imply； it must be admitted by all that any one who might enter
into it could not be legally held to the fulfillment of their
promise if they wished to resile from it。 And as regards the former； a
contract of concubinage would also fall as a pactum turpe； because
as a contract of the hire （locatio； conductio）； of a part for the
use of another； on account of the inseparable unity of the members
of a person； any one entering into such a contract would be actually
surrendering as a res to the arbitrary will of another。 Hence any
party may annul a contract like this if entered into with any other；
at any time and at pleasure； and that other would have no ground； in
the circumstances； to complain of a lesion of his right。 The same
holds likewise of a morganatic or 〃left…hand〃 marriage； contracted
in order to turn the inequality in the social status of the two
parties to advantage in the way of establishing the social supremacy
of the one over the other； for； in fact； such a relation is not really
different from concubinage； according to the principles of natural
right； and therefore does not constitute a real marriage。 Hence the
question may be raised as to whether it is not contrary to the
equality of married persons when the law says in any way of the
husband in relation to the wife； 〃he shall be thy master；〃 so that
he is represented as the one who commands； and she is the one who
obeys。 This； however； cannot be regarded as contrary to the natural
equality of a human pair； if such legal supremacy is based only upon
the natural superiority of the faculties of the husband compared
with the wife； in the effectuation of the common interest of the
household； and if the right to command is based merely upon this fact。
For this right may thus be deduced from the very duty of unity and
equality in relation to the end involved。
27。 Fulfillment of the Contract of Marriage。
The contract of marriage is completed only by conjugal cohabitation。
A contract of two persons of different sex； with the secret
understanding either to abstain from conjugal cohabitation or with the
consciousness on either side of incapacity for it； is a simulated
contract； it does not constitute a marriage； and it may be dissolved
by either of the parties at will。 But if the incapacity only arises
after marriage； the right of the contract is not annulled or
diminished by a contingency that cannot be legally blamed。
The acquisition of a spouse； either as a husband or as a wife； is
therefore not constituted facto… that is； by cohabitation… without a
preceding contract； nor even pacto… by a mere contract of marriage；
without subsequent cohabitation； but only lege； that is； as a
juridical consequence of the obligation that is formed by two
persons entering into a sexual union solely on the basis of a
reciprocal possession of each other； which possession at the same time
is only effected in reality by the reciprocal usus facultatum
sexualium alterius。
Title II。 Parental Right。 （Parent and Child）。
28。 The Relation of Parent and Child。
From the duty of man towards himself… that is； towards the
humanity in his own person there thus arises a personal right on the
part of the members of the opposite sexes； as persons； to acquire
one another really and reciprocally by marriage。 In like manner；
from the fact of procreation in the union thus constituted； there
follows the duty of preserving and rearing children as the products of
this union。 Accordingly； children； as persons； have； at the same time；
an original congenital right… distinguished from mere hereditary
right… to be reared by the care of their parents till they are capable
of maintaining themselves； and this provision becomes immediately
theirs by law； without any particular juridical act being required
to determine it。
For what is thus produced is a person； and it is impossible to think
of a being endowed with personal freedom as produced merely by a
physical process。 And hence； in the practical relation； it is quite
a correct and even a necessary idea to regard the act of generation as
a process by which a person is brought without his consent into the
world and placed in it by the responsible free will of others。 This
act； therefore； attaches an obligation to the parents to make their
children… as far as their power goes… contented with the condition
thus acquired。 Hence parents cannot regard their child as； in a
manner； a thing of their own making； for a being endowed with
freedom cannot be so regarded。 Nor； consequently； have they a right to
destroy it as if it were their own property； or even to leave it to
chance； because they have brought a being into the world who becomes
in fact a citizen of