stand on their own feet； and so are leaving their parents behind them。 The parents； on the other
hand； possess in their children the objective embodiment of their union。
§ 176。
Marriage is but the ethical Idea in its immediacy and so has its objective actuality
only in the inwardness of subjective feeling and disposition。 In this fact is rooted
the fundamental contingency of marriage in the world of existence。 There can be
no compulsion on people to marry； and； on the other hand； there is no merely
legal or positive bond which can hold the parties together once their dispositions
and actions have become hostile and contrary。 A third ethical authority； however；
is called for to maintain the right of marriage … an ethical substantiality … against
the mere whims of hostile disposition or the accident of a purely passing mood；
and so forth。 Such an authority distinguishes these from the total estrangement of
the two parties and may not grant divorce until it is satisfied that the estrangement
is total。
Addition： It is because marriage depends entirely on feeling； something subjective and
contingent； that it may be dissolved。 The state； on the other hand； is not subject to partition；
because it rests on law。 To be sure； marriage ought to be indissoluble； but here again we have to
stop at this 'ought'； yet； since marriage is an ethical institution； it cannot be dissolved at will but only
by an ethical authority； whether the church or the law…court。 If the parties are completely
estranged； e。g。 owing to adultery； then even the ecclesiastical authority must permit divorce。
§ 177。
The ethical dissolution of the family consists in this； that once the children have
been educated to freedom of personality； and have come of age； they become
recognised as persons in the eyes of the law and as capable of holding free
property of their own and founding families of their own； the sons as heads of
new families； the daughters as wives。 They now have their substantive destiny in
the new family； the old family on the other hand falls into the background as
merely their ultimate basis and origin； while a fortiori the clan is an abstraction；
devoid of rights。
§ 178。
The natural dissolution of the family by the death of the parents； particularly the
father； has inheritance as its consequence so far as the family capital is
concerned。 The essence of inheritance is the transfer to private ownership of
property which is in principle common。 When comparatively remote degrees of
kinship are in question； and when persons and families are so dispersed in civil
society that they have begun to gain self…subsistence； this transfer becomes the
less hard and fast as the sense of family unity fades away and as every marriage
becomes the surrender of previous family relationships and the founding of a new
self…subsistent family。
Remark： It has been suggested I that the basis of inheritance ties in the fact that； by a man's
death； his property becomes wealth without an owner； and as such falls to the first person who
takes possession of it； because ；of course it is the relatives who are normally nearest a man's
death…bed and so they are generally the first to take possession。 Hence it is supposed that this
customary occurrence is made a rule by positive legislation in the interests of orderliness。 This
ingenious idea disregards the ；nature of family relationship。
§ 179。
The result of this disintegration of the family is that a man may at will either
squander his capital altogether； mainly in accordance with his private caprices；
opinions； and ends； or else look upon a circle of friends and acquaintances； &c。；
as if they were his family and make a will embodying a declaration to that effect；
with the result that they become his legal heirs。
Remark： The ethical justification of freedom to dispose of one's property by 'will to a circle of
friends would depend on the formation of such a circle； there goes to its formation so much
accident； arbitrariness； and self…seeking； &c。 … especially since testamentary hopes have a bearing
on readiness to enter it … that the ethical moment in it is only something very vague。 Further； the
recognition of a man's competence to bequeath his property arbitrarily is much more likely to be
an occasion for breach of ethical obligations and for mean exertions and equally mean
subservience； and it also provides opportunity and justification for the folly； caprice； and malice of
attaching to professed benefactions and gifts vain； tyrannical； and vexatious conditions operative
after the testator's death and so in any case after his property ceases to be his。
§ 180。
The principle that the members of the family grow up to be self…subsistent
persons in the eyes of the law （see § 177） lets into the circle of the family
something of the same arbitrariness and discrimination among the natural heirs；
though its exercise there must be restricted to a minimum in order to prevent
injury to the basic family relationship。
Remark： The mere downright arbitrariness of the deceased cannot be made the principle
underlying the right to make a will； especially if it runs counter to the substantive right of the family。
For after all no respect would be forthcoming for his wishes after his death； if not from the family's
love and veneration for its deceased fellow…member。 Such arbitrariness by itself contains nothing
worthy of higher respect than the right of the family as such … on the contrary。
The other ground for the validity of testamentary disposition would consist simply in its arbitrary
recognition by others。 But such an argument may prima facie be admitted only when family ties； to
which testamentary disposition is intrinsic； become remoter and more ineffective。 If they are
actually present； however； without being effective； the situation is unethical； and to give extended
validity to arbitrary dispositions at the expense of family ties eo ipso weakens the ethical character
of the latter。
To make the father's arbitrary will within the family the main principle of inheritance was part of the
harsh and unethical legal system of Rome to which reference has been made already。 That system
even gave a father power to sell his son； and if the son was manumitted by a third party； he came
under his father's potestas once more。 Not until he was manumitted a third time was he actually
and finally free。 The son never attained his majority de jure nor did he become a person in law；
the only property he could hold was booty won in war （peculium castrense）。 If he passed out of
his father's potestas after being thrice sold and manumitted； he did not inherit along with those
who had continued in bondage to the head of the family； unless the will specifically so provided。
Similarly； a wife remained attached to her family of origin rather than to the new family which by
her marriage she had helped to found； and which was now properly her own； and she was
therefore precluded from inheriting any share of the goods of what was properly her own family；
for neither wife nor mother shared in the distribution of an estate。
Later； with the growing feeling for rationality； the unethical provisions of laws such as these and
others were evaded in the course of their administration； for example with the help of the
expression bonorum possessio instead of hereditas； and through the fiction of nicknaming a filia
a filius。 This was referred to above （see Remark to § 3） as the sad necessity to which the judge
was reduced in the face of bad laws … the necessity of smuggling reason into them on the sly； or at
least into some of their consequences。 Connected with this were the terrible instability of the chief
political institutions and a riot of legislation to stem the outbreak of resulting evils。
From Roman history and the writings of Lucian and others； we are sufficiently familiar with the
unethical consequences of giving the head of a Roman family the right to name whom he pleased
as his heir。
Marriage is ethical life at the level of immediacy； in the very nature of the case； therefore； it must
be a mixture of a substantial tie with natural contingency and inner arbitrariness。 Now when by the
slave…status of children； by legal provisions such as those mentioned above as well as others
consequential upon them； and in addition by the ease of Roman divorce； pride of place is given to
arbitrariness instead of to the right of the substantial （so that even Cicero … and what fine writing
about the Honestum and Decorum there is in his De Officiis and in all sorts of other places！ …
even Cicero divorced his wife as a business speculation in order to pay his debts with his new
wife's dowry）； then a legal road is paved to the corruption of manners； or rather the laws
themselves necessitate such corruption。
The institution of heirs…at…law with a view to preserving the family and its splendour by means of
fideicommissa and substitutiones （in order to favour sons by excluding da