A New Critique of Theoretical Thought. Deel 3. The Structures of Individuality of Temporal Reality

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Chapter II
The typical structural principles of the natural and those of the organized and undifferentiated institutional communities

§ 1 - Introduction. The relation between positive sociology and the philosophy of human society.

After having explained the typical transcendental problems of a theoretical total view of human society we shall now engage in a detailed inquiry into the typical structural principles of the natural and those of the organized institutional communities.

Subsequently we will devote a general consideration to the typical structures of the inter-communal and inter-individual relationships and to those of the free associations which arise out of the latter.

The method of treatment is insofar the same as that followed in the analysis of the structures of individuality of things, as we begin with an abstraction of the enkaptic interlacements between the different structures. The latter will be examined after our having gained a sufficient insight into the internal structural principles of the different types of societal relationships. This is by no means a concession to the ‘spatial mode of thought’ in natural science, as supposed by Theodor Litt. We have shown that his dialectical phenomenological method of enquiry, which gives precedence to the intricate interwovenness of all societal relations, before having examined the internal nature of the interlaced relationships, resulted in a universalist levelling of the structural differences. This is not the way to acquire a satisfactory insight into the societal structures. However, we have stressed that social reality does not reveal itself apart from these interlacements.

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The relation between our social philosophy and positive sociology.

There is, however, a primordial question which demands our attention in the present context. If a theoretic total view of human society both with respect to its different modal aspects and its structures of individuality is by nature of a philosophical character, how can there be any room for a so-called empirical sociology, in contradistinction to a social philosophy?

We have seen that many sociologists (not oriented to the formal school) have sought in vain for a specific scientific viewpoint by which they could delimit their field of research from that of special ‘socio-cultural’ sciences. The only result was that they appealed to the total or integral character of this viewpoint, which appeared to be exactly the transcendental basic problem of a philosophy of human society.

Every attempt to delimit this total viewpoint from the philosophic point of view by an elimination of the normative aspects of social experience turned out to block the theoretical approach to this experience and to eradicate the very structures of individuality which lie at its foundation. On the other hand the attempt of the school of Simmel to find a specific formal scientific viewpoint for sociology in the elementary forms of social interaction equally appeared to fail.

Does this mean that an ‘empirical’ sociology is impossible? This conclusion would certainly be premature. The only conclusion justified by our critical examination is that such a sociology is not possible without its foundation in a philosophy of human society, which gives a solution to its transcendental basic problems. And we have tried to prove that a really critical solution of these problems is not possible so long as the philosophic immanence-standpoint is maintained.

It is the task of our philosophic examinations to lay the necessary foundation for a scientific sociology which no longer neglects the basic problems mentioned. Our social philosophy does so by engaging in a critical analysis of the structures of individuality of the different societal relationships and the different types of their mutual interlacements. Its task is not to examine the variable societal phenomena, presenting themselves within these foundational structures, in the changing societal forms in which the latter are realized. Such investigations must be reserved to a sociological science which we would prefer to call ‘positive sociology’, since the term ‘empirical’ is inade-

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quate to distinguish it from social philosophy. So we must conclude that, as a science of human society in its total structures, positive sociology has no specific scientific but only a social philosophic viewpoint. But, although determined by the latter, its field of research is different from that of social philosophy. The structures of individuality and the different types of their mutual intertwinements, which are the proper subject of philosophical inquiry, have only the character of necessary pre-suppositions, as far as positive sociology is concerned.

One should, however, guard against the conclusion that positive sociology may leave alone the difficult philosophic problems concerning the social structures of individuality and their inter-relation, and follow its own course. What course could this be? All the methods of enquiry employed by sociologists appear to be determined by philosophic pre-suppositions. Both a critical scientific description and a causal explanation of societal reality are dependent on the latter, notwithstanding the fact that here, too, there are undeniable states of affairs urging themselves upon every one when they have been laid bare.

A historicist or a pseudo-natural scientific view of this social reality is not independent of philosophic pre-suppositions. Such a view leads positive sociology astray all the more since it pretends to be philosophically unprejudiced. This will appear from our further examinations.

On the other hand our philosophic examinations cannot be independent of a positive sociology guided by our basic cosmonomic Idea. The reason is that the social structures of individuality and the types of their intertwinements cannot be detected in an a priori way. Rather they must be traced in a continuous confrontation with empirical social reality. However much the structural principles are the a priori cadre of the latter, our knowledge of these principles is always implied in our experience of concrete variable societal phenomena.

Theoretical analysis can only make this knowledge explicit. But it cannot do so apart from empirical reality, no more than we can detect the pattern of an embroidery apart from its objective realization in a material tissue.

Every attempt at a theoretical abstraction of the foundational patterns of the typical structural principles from their interlacements in the positive societal forms in which they are realized, pre-supposes a pre-theoretic experience of the concrete social phenomena in which they are implied. In addition it pre-sup-

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poses the theoretical attitude of thought with respect to these phenomena, which is proper to a positive sociological enquiry. This is the inter-relation between philosophy and positive science already explained in the third part of the first Volume.

A. The structural principles of the natural institutional communities.

The internal structures of the institutional natural communities, viz. the matrimonial bond, the family in its most narrow sense as the natural community of parents and their minor children¹, and the family-bond in its broader natural sense, may be treated in one systematic coherence. It will appear that all of them show a typical biotic foundation and a typical moral leading function. From the outset the insight into this state of affairs has been impeded in the philosophy of society and in positive sociology by neglecting the investigation of the internal structural principles of these natural types of community. Instead, all attention was concentrated on the genetical and existential forms in which they are realized, and on the enkaptic interlacements with other types of societal relationships implied therein.

In particular we must repeat our warning against any attempt to seek the inner essence of these primordial natural communities in the aims to which they are serviceable according to a natural teleological order, or to seek for a so-called empirical definition apart from the normative structural principles determining their inner nature. Secondly, the reader should guard against any confusion of the natural family-bonds here intended with the undifferentiated organized communities which are also designated by the terms ‘family’ or kinship.

Neither the ancient Roman and medieval familia, as a domestic community with an undifferentiated structure of authority, nor the primitive sib or clan are as such natural communities in the sense here intended. As we shall show in our later investigations, all such primitive communal relationships are typically founded in an historical organization of power of an undifferentiated character. This is clearly proved by the fact that they only appear in a primitive condition of human society which

1 The Dutch term ‘gezin’ clearly delimits this narrow family-bond from the family or kinship in its broader sense.

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shows a more complicated structure; they are doomed to disappear in the course of the process of differentiation, whereas the really natural communities are independent of a typical power-organization and, according to their inner nature, are found at every stage of human societal life.

This is a fact established by all ethnological investigations since the a priori constructions of the development of human society, according to the evolutionist dogma, have been replaced by a really critical method of research. We shall recur to this point in a later context.

§ 2 - The structural principle of the natural family in its strict sense.

That the view of human society according to which the latter exclusively belongs to a so-called ‘spiritual’ or ‘cultural’ reality must be wrong, is nowhere more evident than in the case of the natural institutional communities. It is indeed impossible to understand the inner nature of a natural family in its most narrow sense without taking into account its typical foundation in the biotic aspect of empirical reality, which as such pre-supposes the pre-biotic modalities.

The natural derivation and consanguinity of children under age, issuing from the same parents, is the necessary structural foundation upon which such a family is built. This state of affairs cannot be denied by any theory. The typical communal tie between parents and children is genetic; it is grounded in a blood relation of the most immediate character.

The extremely rich structure of procreation by which a human pair bring forth children in the closest possible interconnection of two temporal existences, is certainly not to be understood entirely in terms of biology, and not at all in functional terms.

Nevertheless, the structural typicalness of human reproduction is undoubtedly biotically founded; its functions in post-biotic modalities rest upon a typical biotic substratum. Inter-sexual procreation and descent reveal an original modal type of individuality only in the biotic law-sphere.

But it is clear that blood-relation in its typical biotic sense is not able to qualify the human family-bond between parents and children.

The biotic function cannot be considered to be the ‘leading’

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function of this community. Only the radical type plant is qualified as a typical biotic subject. Even the bond between animals and their young is directed in its inner structure by a later leading function, namely, by the sensory instinctive impulse of care and protection founded in the biotic blood-relationship.

The typical leading function of the immediate family-relationship. Refutation of the opinion that the latter does not have a typical leading function which qualifies its inner destination.

What then is the typical leading or qualifying function in the inner structure of the immediate family-bond?

We have seen that the universalist Aristotelian-Thomistic conception has in fact eliminated this structural problem by conceiving the relationship between parents and their children under age as a part of the domestic community. The latter was viewed as an economic unity, embracing primarily the relation between the domestic chief and his servants, and in addition that between husband and wife. The relation between parents and children was then conceived under the general teleological viewpoint of a rational and moral perfection of the undeveloped human nature of the children resulting in their education to good citizens. In the Thomistic theory this natural education requires its supra-natural completion by forming the children into good sons and daughters of the Church, as the institution of grace.

This entire view is not concerned with the inner nature of the immediate family-bond. Much rather it is directed to the natural and supra-natural aims to which this relationship is serviceable.

But does the latter actuality have a typical qualifying function which determines its inner destination? Is it not exactly the rich and universal character both of the matrimonial and the family bond that they are all-inclusive or ‘supra-functional’ vital communities, in contradistinction to the arbitrary associations formed for specific purposes?

This question ought to be examined closely. It originates in a very generally held notion of the universality of the natural family, as the primal cell of society. The word ‘universality’ carries with it a particular temptation, which becomes dangerous if one loses sight of the inner structural delimitations which the temporal world-order places in the way of all universalist constructions.

The absolutization of a specific modal aspect of our experien-

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tial horizon appeared also to be defended by an appeal to its universality. It was, therefore, necessary, in our analysis of the modal structures in Volume II, to show how this universality is limited by the cosmic temporal order. The universality of every modal sphere turned out to be bound to its inner specific structure, which excludes every attempt at its elevation to a whole encompassing all the other modalities.

The tempting appeal to the all-inclusiveness or universality of the intimate bonds encountered in marriage and the family ought not to distract us from our aim to discover their intrinsic structural laws.

Insofar as this appeal to universality is intended to arrest our search for the typical qualifying function of the family, it contains a two-fold misunderstanding. It is consciously or unconsciously affected by the undifferentiated Aristotelian conception of a household with its threefold authoritarian relation. And it is guilty of a confusion repeatedly mentioned between the internal destination and the external functional objectives of a community. The inner structural limitation displayed by a communal relationship because of its typical leading or qualifying function, is in no way opposed to the universality of the internal societal bonds, in the sense of all-sidedness. But through its leading function all relations within a community receive their typical qualification and inner direction. The latter is in no way related to the external ‘ends’ of a communal whole.

We admit that the separation of the inner structure of a family from the organized communities with an undifferentiated inner destination, pre-supposes the differentiating process in the development of civilization. This differentiating process, however, concerns only the positive forms of actual transitory societal relationships. Their inner structural principles cannot be a product of this historical process, because structural differentiation pre-supposes the constant validity of these principles.

Even when on a lower cultural level a natural family relationship is enkaptically bound in a primitive undifferentiated organized community like the sib or the domestic community, its inner structural principle is the same as that of a modern family that has been emancipated from this enkaptic interlacement.

Undoubtedly it makes a great difference for the concrete positive form of the family whether or not the differentiating process has taken place. Nevertheless, even in Greek and Roman anti-

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quity the undifferentiated household was never identical with the actual natural family relationship, even though the positive forms of Greek and Roman family life were closely connected with the former.

Returning to our question we must answer that the denial of a typical leading and qualifying function in the natural immediate family relationship is identical with the denial of its entire typical structural principle, established by the order of creation.

The natural community between a couple of parents and their children under age is not a relationship with an undifferentiated inner destination. If it were, it would disappear in the advance of the differentiating process in historical development. It would then be a rudiment of a former historical phase. But this view is refuted by the facts.

Holy Scripture throws a quite different light on the natural communal bond of the family in its most narrow sense, even though it does not give us a theoretical analysis of its typical inner structure. It presents the family as a typical normative bond of love, based upon the natural ties of blood between parents and their immediate off-spring. This is a reflection of the bond of love between the Heavenly Father and His human children, unbreakably bound to the tie between Christ and his Church¹.

In this temporal natural community, the normative tie of love between the members of a family cannot be identified with the religious meaningfulness of love in the corpus Christi, notwithstanding its ultimate reference to the latter in the anticipatory direction of cosmic time. The bond of love is here rather of a temporal modality of meaning, because it is founded in the biotic modality. As the structural leading or qualifying function of the family, it is of a modal character. According to the normative structural law of the natural community in question, this typical moral function ought to give all earlier structural functions their internal direction and leading.

According to its inner structure of individuality, the natural immediate family is thus an institutional moral community of love between parents and their children under age, structurally based upon biotic ties of blood relationship.

The leading structural function of the family is consequently not to be found in the abstract modal moral sense of love. The

1 Cf. for instance Gen. 2:24; Proverbs 3:12; Ps. 103:13; Luke 15.

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family is a typical bond of love between parents and children. Its moral normative typicalness of meaning is not to be understood apart from its typical biotic foundation.

The intrinsically moral character of the bond of love between parents and children is not affected by its typical biotic foundation.

According to the abstract idealistic view of morality, the bond of love between parents and children lacks moral purity because of its very foundation in natural biotic ties of blood.

This view is grounded in a religious absolutization of the ethical aspect already discussed in the second Volume. It is true that love in its central religious sense is independent of all temporal societal relationships, even of the most intimate bonds in the matrimonial and family communities. But in its temporal moral sense love becomes meaningless apart from its individualization and differentiation by the typical structures of society, without which it cannot be realized in human behaviour.

The abstract idealist view of moral relations is destructive to the insight into the inner nature of the natural communities in discussion.

The inner moral character of the bond of love between parents and their children is not affected by its typical foundation in the bonds of blood. On the contrary, this foundation gives it a degree of moral intensity which cannot be matched by any other moral relation except by that between husband and wife in the marriage bond.

It is not true that genuine morality is characterized by an objectivity which does not take into consideration any difference between the societal relationships in which it should be realized. Such an ‘objectivity’, as defended by the Dutch philosopher Heijmans, can only exist in an abstract idealist kind of ethical theory which deprives morality of its very meaning by isolating it from the typical structures of individuality of societal life. We have shown in the general theory of the modal spheres that, even in its general modal sense, the moral aspect appeals to the inter-modal coherence with all the other modalities, inclusive of the biotical.

If, according to its structural principle, the bond of love between parents and children in the family is of a typical moral character, it cannot be reduced to an instinctive feeling of sympathy. Much rather it is a communal relation implying mutual

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duties and moral responsibility of a specific character. This does not detract from the fact that it appeals to a feeling of love which is quite natural because of its very foundation in the biotic bonds of blood. But it is not this natural feeling with its emotional fluctuation and polarity which has the leading and qualifying rôle in the inner structure of the family. As a structural function of this natural community, it must itself be opened in the anticipatory direction to the guiding moral bond of love.

The structural principle and the internal unity of the family. The effect of sin.

So the inner structural principle of the family discloses itself in the unbreakable temporal coherence of its leading and foundational function. It has to determine all expressions, within the different modal spheres, of the family's internal unity. As a typical normative principle, it has not been affected by sin. Sin solely affects its human formation and positivization in accordance with the historical situation of a society and the entire subjective side of family life. There could even be no question of a sinful factual family life, if the structural principle of this natural community were itself affected by sin; a sinful family life pre-supposes a violation of the structural law of the family. God's law, as manifested in the structural principles of social relationships, is holy and good, untainted by evil¹. This implies that the internal unity of a family, in its most restricted sense, is a normative unity, and that to a large degree it is defectively realized because of sin.

This is entirely lost sight of both in Tönnies' irrationalist romantic conception of ‘Gemeinschaft’ and in Litt's dialectical-phenomenological idea of the ‘closed communal sphere’. It is true that at least Tönnies viewed the ‘Gemeinschaft’ in a normative sense insofar as he conceived it as the right condition of human society which is destroyed by the antagonistic factor of ‘Gesellschaft’. But he assumed that in the undifferentiated medieval society true ‘Gemeinschaft’ in his sense was indeed completely realized in a natural organic way.

This was an irrationalist idealistic view of societal reality which is contradicted by the facts. And it is exactly this idealist conception of the realization of a normative Idea that makes the

1 Romans 7:12.

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latter unserviceable to a positive sociology, let alone the fact that this Idea lacked any orientation to the structural differences between the various types of community.

In Litt the normative viewpoint appeared to be intentionally eliminated. The only result is that his phenomenological analysis of the ‘essence’ of a ‘closed communal sphere’ is nothing but a crypto-normative construction which cannot account for the factual side of the societal relationships. His dialectial idea of ‘social interlacement’ between the ‘psychical experiences’ of individual ego-centres, by means of a system of objective symbols, as bearers of time-less meaning, cannot guarantee the inner unity of a communal sphere. It is applicable to the non-communal relationships as well. By ascribing to his idea of ‘soziale Verschränkung’ a really unifying function, Litt gives the latter a crypto-normative sense which neither corresponds to the structural principles of the different societal relationships, nor to the sinful factual side of human society, in which they are defectively realized.

If anywhere Tönnies' idea of a true ‘Gemeinschaft’ should correspond to the factual side of an internal communal life, it must be in the natural family bond in its most narrow sense. The latter seems to be at the same time a standard example of a ‘closed communal sphere’, in the sense intended by Litt. Nevertheless, at any stage of historical development factual family-life shows more or less serious defects, which can manifest them selves to such a degree that we must speak of a destruction of its real communal unity.

And yet, positive sociology cannot eliminate the normative structural principle of this natural community, nor the normative distinction between communal and inter-communal or inter-individual relationships, without losing sight of the social facts themselves.

For, apart from this structural principle, and apart from the distinction mentioned, there cannot exist any factual human family life. We cannot distinguish factual family relations from other kinds of societal relationships without appealing to their inner nature. And the latter is only determined by the normative principle of their communal structure, which also lies at the foundation of all the changing social forms in which it is realized.

If these variable social forms did not pre-suppose this constant structural principle, they could not refer to the same social in-

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stitution and we had better abandon every historical inquiry into its development in these changing formations.

It is true that in the family bond the social life of parents and children is mutually interlaced in all of its modal aspects. But that this inner interwovenness, as an inner communal unity, clearly delineates itself from all other kinds of social intertwinement cannot be established from the factual side of family life alone. Here we must appeal to its inner nature determined by its normative structural principle.

We shall now examine the manner in which the latter expresses itself in all its modal aspects, thereby maintaining the relative inner seclusion of the family bond.

The destructive character of the Kantian principle of autonomy with respect to the internal moral communal relations of the family. The authoritative nature of the latter.

As to the moral aspect we have already seen how the bond of love unifying parents and children in the family relationship is distinguished from all other kinds of moral relations by its typical biotic foundation. We have now to devote special attention to the typical authoritative character of this moral bond.

According to the Kantian principle of ethical autonomy, true morality is incompatible with any relation of authority and subordination. If this were true, the immediate family relationship would in principle lack any moral character. For, according to its inner structure, it does imply that very heteronomy which Kant considers to be opposed to real morality. And we must add to this that almost all types of communities imply a typical structure of authority; so that we must conclude that Kantian ethics has no room for a moral community. For, the broader kinship bond, which indeed lacks a natural authoritative structure, can no more have a moral character in the Kantian sense than the narrower family, since its typical biotic foundation contradicts the principle of autonomy as well.

But the truth is that this Kantian principle is incompatible with the very nature of the moral law-sphere, as we have shown in detail in the general theory of the modal spheres. By its absolutization the moral aspect has lost any modal meaning in the Kantian system. Even its inner coherence with all the other modal aspects of the temporal horizon, guaranteed by the divine world-order, is incompatible with the principle of ethical autonomy

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and purity in the Kantian sense. This appeared also to be the reason why Kant rejected the very meaning-nucleus of every moral relation, viz. the bond of love, and replaced it by the legalistic motive of respect for the autonomous ethical law.

In sharp contrast to this principle of autonomy we must emphasize the typical moral qualification of parental authority. The latter is not restricted to the legal relations in the sense of a typical juridical power or competence. As the communal relation of authority and subordination is inherent in the immediate family bond, according to its structural principle, the typical inner nature of this authoritative relation must be determined by this structural principle. Notwithstanding their intimacy the ties of love between parents and children do not lack the distinction between the authoritative position of the former and the subordinate position of the latter. On the contrary, if the parents abandon their moral authority and factually behave as the older comrades of their children, the typical bond of love which qualifies the family relationship is violated. For this bond implies a typical authoritative character because of the immaturity of the children. And exactly by its natural biotic foundation the paternal authority partakes of the intimacy of the bond of love, characteristic of the family in its most narrow sense.

It is for this reason that God gave the norm of love for the family, ‘Honour Thy father and Thy mother’. This respect for the parents is in no way in conflict with the intimacy of family love, but is rather an essential factor in it.

A levelling democratic idealism may hold up as an ideal a so-called comradeship between parents and children, a relationship which scorns obedience and authority, and implies equality of the individuals related. But such an ideal entirely lacks the tender tone which the divine order gives to love between parents and children. Respect for the divine office of parents plays an essential rôle in the latter, it can never be disregarded with impunity.

This is also the reason why the education of the children in the family sphere shows an irreducible inner nature and cannot be really replaced by any form of education which lacks this character. We shall recur to this point.

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The expression of the structural principle in the internal legal relations of the family in its narrowest sense.

Our analysis of the modal structure of the moral aspect in the second volume has shown that this modality contains juridical retrocipations. This implies that the internal ethical relations which qualify a natural community cannot exist without the foundation of internal legal relations, even though the former do not have their original typical foundation in the latter.

And these internal legal relations are not, as such, of a civil law character. They can only be juridical communal relations in which the structural principle of the family is expressed.

The authoritative structure of this bond also has its internal juridical aspect in the legal authority that parents have over their children. This competence is not derived from civil law, as dogmatic legalistic positivism teaches.

It is, nevertheless, an authoritive function in the modal sense of retribution, an authoritative function, which, on account of the formal interwovenness of all typical legal spheres, also has an external function in civil law. But through its internal structure it is fundamentally different both from a civil legal competence and from a public legal authority, as held by the magistrates.

This structural difference is pregnantly revealed by a comparison between parental disciplinary authority and the competence of the bearers of public authority to punish the subjects who have violated the public order of the State.

The current opinion in jurisprudence is not inclined to ascribe a penal law character to the parental disciplinary competence; it recognizes only the penal law of the State. The latter is opposed to the disciplinary law of specific societal ‘groups’ in general, without any inquiry into the inner nature of the different types of disciplinary law. The general difference between penal law and disciplinary law is then sought in the fact that the latter is restricted to the members of the ‘groups’. This is only a formal distinction, which lacks any reference to the inner nature of the different typical spheres of law. The competence to punish is not a monopoly of the State. The inner character of this competence is, however, completely dependent upon the nature of the relationship in which it occurs.

There is consequently no reason to deny a penal character to the parental disciplinary competence. Nevertheless, a com-

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petence to punish is bound to certain conditions. Real punishment pre-supposes legal authority and subordination. It can consequently only occur in communal, not in inter-communal or inter-individual relationships. It implies an infliction of a deserved pain in a retributive sense to restore the respect for the violated communal order, irrespective of the personal interests of the authoritative organ which has to impose the penalty. These general requirements hold good with respect to every penal competence. But they assume a different typical legal character in accordance with the structural principles of the various communities.

In keeping with the inner structural law of the family in its narrowest sense, parental discipline has an exclusively pedagogical character bound to the special guidance of parental love. The exercise of this disciplinary competence ought to be accommodated to the stage of development of the children.

It is true that in modern civil penal law the pedagogical factor in the treatment of children and juvenile persons has also come to the fore; even judicature has been specialized for this purpose. But the pedagogical task of the parents in the internal family sphere is fundamentally different from that of the judge in the public sphere of the State, or from that of a probation officer.

The internal legal sphere of the family, to which the disciplinary competence of the parents is restricted, is in every respect irreducible to any other type. All the rights and legal duties of the members of this natural community show a typical moral qualification and biotic foundation which reflect the inner unity of the structural principle of the family bond.

In this internal communal sphere the children have an essential right to receive their livelihood from their parents as a proof of parental love. If in the factual family relations love is lacking, the internal juridical sphere is also affected, just like the internal sphere of social intercourse and the other structural modal spheres of this community. The entire inner structural norm of the family is then violated. The reason is that in all of its modal aspects this normative structural principle is an unbreakable unity.

This state of affairs is hardly understandable to jurists who are accustomed to thinking exclusively in the typical categories of civil private law and public law. They are inclined a priori to deny a juridical character to the internal morally qualified

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communal law of the family and to reduce it to morality. But this dogmatical prejudice is not in accordance with the real states of affairs. For, in spite of its unbreakable coherence with, and qualification by the moral requirement of love proper to the family bond, the internal legal sphere of the latter retains its juridical character. And the jurists are confronted with this state of affairs, since in their enkaptical interlacement with the civil sphere of private law, the typically morally qualified legal duties of the parents reappear as so-called natural obligations. These natural obligations have civil legal consequences insofar as in modern jurisprudence¹ their performance is not considered to be a donation but the fulfilment of a natural legal duty.

In the general theory of the modal spheres we have shown that this state of affairs cannot be understood apart from the anticipatory structure of the juridical aspect. The realization of the moral anticipations in the retributive modality, however, is in principle bound to the typical structures of the differentiated societal relationships.

It stands to reason that in the internal legal sphere of the family, there can be no question of the formation of general positive legal norms, let alone the presence of an eventual domestic order regulating the affairs of every day. Such general legal rules would lack any sense, since the number of the members of this community is very small. In addition such a generalization would hardly be compatible with the inner nature of the family as a typical love-bond.

It is, however, a pure petitio principii to assume that positive law is only to be found in a system of general legal norms.

Even in those juridical spheres which by their typical nature are capable of forming such systems of law, law making has never begun in this abstract way, but rather in the way of case law. In Anglo-Saxon countries this manner of law formation has been maintained in the common law sphere up to the present day.

In the small sphere of the family the internal process of ‘law finding’ is by nature bound to concrete decisions from case to case. Nevertheless, the legal principle which ought to lie at the foundation of these legal decisions must be of a general character determined by the internal structure of this community. Otherwise the exercise of parental authority in the legal

1 See Volume II, pp. 407 ff.

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sphere of the family would degenerate into arbitrariness. This is sufficient to justify the assumption of an internal legal sphere of the family. The disciplinary power of parents, whose juridical character is generally acknowledged, is only a particular manifestation of the legal sphere proper to this natural community.

The inner structural relations in legal subjectivity.

The inner interwovenness of the temporal existences of parents and children in the family is also disclosed in the juridical structural aspects of this relationship.

The view of legal personality in the older individualist fiction-theory starts from the individual man as a ‘natural person’. The proper legal subject is the individual, who is the point of reference of various legal relations. From this point of view the legal personality, i.e. the legal subjectivity of a collective unit qua talis, becomes an insoluble problem, which is evaded by a technical ‘as-if’ construction. The ‘legal person’ is viewed as an ‘economical’ fiction, a mere construction of thought; only a natural person, conceived of as an individual, is supposed to be really a subject in law!

It is undeniable that the legal subjectivity of a child is closely bound up with that of his parents, and that to a certain extent this connection has also juridical consequences in external civil legal relations. But this does not prevent individualism from treating the legal subjectivity of a child as that of an individual. A child lacks competence to act in civil law. According to the individualist view, the father appears, therefore, as the natural (legal) representative of the incompetent ‘individual’. The truth of the matter is, however, that in addition to inter-individual relations, the legal subjectivity of a child displays a number of communal juridical relations, which are simply unintelligible to an individualistic theory.

The representational function of the father is valid solely in the external inter-individual legal relations, which as such do not pertain to the nature of the internal law of a family. Nevertheless, in civil private law we can ascertain the existence of a partial intertwinement between the legal subjectivity of the natural representative and that of the represented. The competence to act which is lacking in the civil legal function of the legal subjectivity of a child is supplemented by that of the father.

This is a (biotic) organic analogy in the modal sense of law, by which a partial unity is guaranteed in the duality of the

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two civil subjects. Juridical imputation here joins the legal actions of the one with the rights and duties of the other.

The consistent individualistic conception of legal subjectivity, (as developed by Hölder and by Binder in his earlier formalistic neo-Kantian period¹) must misinterpret this organic analogy in the legal relations. The numerical analogy implied in the partial juridical two-unity relation between the representative and the represented is in fact interpreted in an original arithmetical sense. There is a well-known French joke which to the question: how can husband and wife be one? replies: if one of both is zero. A necessary result indeed, if the question is solved in terms of an algebraic equation of the first degree: x + 1 = 1. But what is done here by way of a joke, occurs in earnest in the individualist theory of legal representation, defended by the German scholars mentioned. Thus they arrive at their well-known conception that legal representation excludes a juridical personality of the represented child and only implies that of the representative².

According to this theory the pupil does not obtain rights and duties through the acts of his representative. Such acts only give rise to official rights and duties of the latter.

This doctrine has been rightly opposed in many quarters. Not only is it in conflict with positive civil law, which acknowledges the rights of a child and does not recognize the figure of ‘official rights’ in the sense intended by Hölder and Binder; rather it is also incompatible with the modal meaning of law, as such. It denies a state of affairs, implied in the afore-mentioned organic analogy in the modal structure of the juridical aspect and without which legal life is impossible. The partial intertwinement and unity in the civil legal subjectivity of father and child is not to be denied. An individualistic theory here leaves us in the lurch.

And yet the civil legal representational relation between the father and his child under age does not reveal the inner structure of the family relationship. The same partial two-unity is found in the relation between a curator and a curandus, or in that of non-parental guardianship.

The real internal communal relations in legal subjectivity

1 Binder, in contrast to Hölder, does not base his view upon a ‘natural person’ as an individual, but on the functional concept of a legal subject.

2 Hölder, Natürliche und Juristische Personen, p. 120; J. Binder, Das Problem der Juristischen Persönlichkeit (1907), pp. 63, 64.

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are a fortiori not to be comprehended in an individualistic theory.

A child is normally born in a family relationship, and in modern society in a State. If its parents have not completely broken with the Church, a child in a Christian country is usually a member by baptism of a Church community. To a child's legal subjectivity all this is of constitutive, internal-structural significance. Insofar as the child does not have any property or capital of its own, the significance of the private civil law side of his legal subjectivity is pushed into the background in his early years.

In these internal communal relations the juridical function of the individual human personality is interwoven in a typical inner manner with that of the other members of the community. And this interwovenness is indeed constitutive in the legal subjectivity of the individual person.

As a member of a family, a child in his legal subjectivity is subject to parental legal authority. This is not a legal relation between individuals. Such a relation lacks authority. It is rather a relation between unequal members of a communal whole.

In undeveloped societies the internal relations within the undifferentiated communities are of an all controlling significance for the entire personal legal status.

The recognition of the legal subjectivity of every man as such, apart from his specific communal bonds, does not occur outside of the typical inter-individual sphere of modern civil private law. And this recognition is the result of a long process of development culminating in the legal abolition of slavery. When individualism takes this final result as its starting-point, it forgets that the civil legal personality is only a specific component of the full legal subjectivity. The latter is equally constituted by the internal legal relations implied in the memberships of various communities.

The internal juridical relations within the family and the individualistic way in which law and morality are opposed to each other.

In the internal structure of the family, legal subjectivity assumes an entirely different character from that in civil law. This is at once evident when we compare the internal competences, rights and duties of the individual members of this natural community with their external civil legal function.

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Parental authority finds explicit recognition in most systems of civil law, but here its functions are merely inter-individual. These law-systems only require a warrant of attorney for civil actions of minors (we do not mean those who are ‘factually incapable of legal action’). In the case of a civil marriage, the requirement of parental consent is often extended to majors up to a certain age. In both cases, however, the paternal warrant of attorney or the parental consent may be replaced by those of other persons if the parents are lacking or are unable to act. In the same way parental authority only functions externally in the civil legal administration of any property belonging to the children, etc.

By the mere declaratory recognition of the parental educational and disciplinary competence, the formal lawfulness of the use of this competence is guaranteed in civil law within the limits inherent in the civil legal protection of the children against any abuse of parental authority. In the same way civil law recognizes the children's right to the sustenance of life by their parents. But civil law cannot give positive rules for the internal family structure of these competences and duties, which we have explained above. This internal structure also supplies the norms for the scope of the internal rights and duties, and for the way in which the members of the family have to actualize them. Civil justice has to be content with external, abstract standards in this case. That is why a man who carries out his civil legal duty of providing sustenance of life, has not yet really fulfilled these obligations in the sense of the internal family law. At this point it is evident that considering the distinction between law and morality as the contrast between an external, merely legal order, and the norms of an inner disposition, originates from an absolutization of civil inter-individual law¹.

This distinction has really been derived from the rationalistic Humanist doctrine of natural law with its tendency to ignore fundamental differences in the societal relationships. In the internal family relations, with their close intertwinements of all

1 This also applies to Emil Brunner's rigid, formalistic view of justice in his book Das Gebot und die Ordnungen (1932 p. 435 ff.). In a positivistic way he knows of no other positive law besides State-law. And he considers this to be the necessary conclusion from the anti-‘natural-law’ attitude of the Reformed view of life! But he did not see that thus he had become the victim of the individualistic ‘natural-law’ conception to which the positivistic theory of law essentially owes its view of positive law.

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its members in all the aspects of their temporal existence, juridical relations cannot be conceived in the external pattern derived from abstract civil law. They cannot be detached from the indissoluble internal structural coherence of this temporal societal relationship. In the juridical structure of a family itself is expressed the intimacy of the subjective intertwinements of its members.

The insufficiency of the juridical concept of function. The individualistic construction (based on the theory of ‘natural law’) of the internal juridical relations within the family.

This proves that the juridical concept of function leaves us in the lurch here. In a notion of function¹ we have to eliminate the structural types of individuality in a law-sphere theoretically, in order to grasp all the modal relations in a functional coherence guaranteed by the modal structure of that law-sphere.

The Humanistic natural law doctrine of the Enlightenment also based the internal juridical relations in the family on a social contract (societas). Christian Wolff includes the patria potestas among the jura ex contractu, which he opposes, as a general category of acquired subjective rights (jura acquisita), to the innate natural subjective rights of man (jura connata)².

The result was the theoretical eradication of the typical structural character proper to the internal juridical power of parents. Juridical theory cannot do without an insight into the different typical structures of societal relationships, if it is to be able to account for the rich variations in which the modal meaning of law is individualized in temporal reality.

1 Cf. volume I, pp. 552 ff.

2 Jus naturae I cap. 1. 35: ‘Ita jus parentum in liberos oritur ex obligatione eos educandi quae connata non est, sed contracta... Est igitur jus acquisitum.’

Juridical sphere-sovereignty as the ultimate inner limitation of the original competence of the different law-makers, according to the structural principles of the societal relationships concerned.

This insight will also give us the clue to a solution of the age-old problem concerning the fundamental limits inherent in every original competence of law-making in a differentiated society.

The recognition of the absolute sovereignty of a particular

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legislator would irrevocably deprive his power of any juridical meaning. Our analysis of the modal structure of the juridical aspect of experience has shown that the nuclear moment of its general meaning is retribution¹, which is incompatible with any absolute (and consequently juridically unlimited) power of a legislator. Even the general juridical concept of competence appeared to include the numerical analogy of a plurality of original spheres of competence, which require a mutual balance and delimitation in juridical harmony, excluding any excess of power². The abstract modal juridical meaning of this concept is individualized by the different structures of individuality of societal relationships.

The insight into the structural principles of natural and organized communities and inter-communal or inter-individual relationships necessarily leads to the recognition of their inner sphere-sovereignty also within the modal juridical aspect. This does not mean a relapse into a rationalistic metaphysical theory of natural law. It is simply the necessary conclusion from the biblical Christian view of the sovereignty of God, Whose order of creation also embraces the structural principles of the different societal relationships, guaranteeing the inner proper nature of each of them. The Christian view of law has found its most pregnant expression in the recognition of this juridical sphere-sovereignty. But the concrete significance of this fundamental legal principle can only be discussed in connection with the investigation of the enkaptic intertwinements between the different types of societal relationships.

Here we can only point out the essential connection between the fundamental juridical principle mentioned and the internal structural principles of human society.

1 Cf. volume II, pp. 129 ff.

2 Cf. ibidem, pp. 165 ff.

The expression of the structural principle in the aesthetic aspect of the internal family relations.

The internal moral and juridical structural functions of the family relationship refer back to the structural function of the family in the aesthetic law-sphere. The analogical moment of harmony in the juridical sphere is modally founded in the original meaning of harmony which qualifies the aesthetic law-sphere³.

3 Cf. ibidem, pp. 135 ff.

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In the internal structure of the family, the aesthetic function retains this necessary meaning-coherence with the juridical and the moral aspects, and the structural principle also expresses itself in this aspect of the family relationships. Family relations show their typical internal beautiful harmony, in accordance with their normative structural law, given by the divine order of creation.

True, this harmony has been subjectively affected by the effects of sin. It may even be completely broken, but this does not abolish the aesthetic aspect of the inner family structure. Even disharmony and ugliness as such, exciting our displeasure, remain enclosed within the aesthetic law-sphere, so that they could not exist without the aesthetic norm. Only those who in a rationalistic-idealistic attitude deny the factual subject-side of the aesthetic aspect of temporal reality will also deny this state of affairs. They will only recognize beautiful harmony as an ‘ideal norm’ or ‘value’.

The family, as a natural communal whole, has its aesthetic structural aspect. If this were not so, it could never inspire fine art. Then we could no longer speak of the beauty of the love between parents and children, and yet in our naïve attitude we feel no hesitation to do so, not merely by way of a metaphor, but in an original aesthetic sense.

This internal beautiful harmony is not itself of an artistic nature. It is perfectly qualified by the structural principle of the family. As a result the aesthetic aspect of the latter displays a typical meaning-individuality, based on the original biotic bond of blood, and qualified by the normative communion of love between parents and children and between children mutually.

In this meaning-aspect, too, the structure of authority in the family relationship is and remains an essential characteristic. If authority is eliminated from the family, its internal relations will all go awry. The result will be disharmony, which also excites an aesthetic kind of displeasure. No ‘modern democratic’ theory can reason this unpleasant experience away.

The internal structural principle of the family also expresses itself in its aspects of social intercourse and language.

In all the remaining meaning-aspects of this natural community its internal structural principle is equally in evidence:

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in its internal economic function of the household, in the internal relations of social intercourse, in the internal culture, the internal communal feeling of the members of the family, etc. In all these modal meaning-aspects the structure of its internal authoritative relation is also maintained, and the internal interweavings are revealed among the relevant subject-functions of the individual persons functioning in this communal relationship. Thus, e.g., the prevailing tone in family-intercourse should be consonant with the typical communal love between parents and children, and brothers and sisters. And notwithstanding the close interweavings of the members of a family in their intercourse with each other, the authoritative structure of this relationship should find expression in the social respect shown by the children for their parents.

In social intercourse between human beings and their betters, who are invested with the authority of their office, the inferiors should be polite and obliging¹. In the family, however, this respect retains its tenderness of tone so essential to the typical structure of family relations.

The same thing holds for the objective internal forms of language and the subjective way of symbolical expression. As a substratum they are immediately connected with the function of social intercourse.

Children should not speak to their parents in a respectless familiar way, but when the language used in a family has the exterior formality of the ordinary social intercourse with strangers, the family tone is somehow wrong.

In a Christian family there should prevail a tenderness of tone whose primordial character can never be taken over by any other societal relationship without ‘striking a false note’. For each human societal relationship has its own inner nature, its own structural principle. In this multiformity and originality, temporal human society unfolds its richness in accordance with the divine ordinances. And even in the corruptive state of society caused by sin, God's common grace has maintained these typical structures of individuality.

1 This ‘social respect’ functions in the modal aspect of social intercourse. It should not be confounded with respect in its moral meaning, intended in the commandment ‘Honour thy father and thy mother’. In reality the two kinds of respect are inextricably interwoven.

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The expression of the structural principle in the cultural aspect of the family.

The inner structure of the cultural aspect of the natural family demands special attention insofar as here the particular character of the pedagogical and educational sphere of this community is most clearly revealed.

The formative power of the parents with respect to the cultural development of their children is, of course, dependent upon the historical developmental stage of the society in which a family functions. In an undifferentiated society, the inner cultural family sphere cannot clearly be distinguished from the undifferentiated cultural sphere of the domestic community, and eventually from that of the sib and the tribe. Especially in such primitive societies which lack a strong political tribal organization the spirit of the natural family appears to penetrate societal life in all of its communal relationships.

In this case the cultural aspect of the parental educational task will embrace the whole of the undifferentiated cultural formation which is proper to the folk community.

If, on the other hand, the political tribal organization is strengthened and the natural family is pushed back from its prevalent position, there will be found a beginning of differentiation between the educational sphere of the former and that of the latter. We shall recur to this interesting state of affairs in a later context.

In a differentiated modern society, the cultural education of the children is as a rule completely concentrated in the inner family sphere only in the first years of life of the infants. This is in accordance with the natural development of the psychical and post-psychical functions of the child, which only gradually arrive at a certain stage of differentiation. The intimate family-sphere is the only natural community able to give the first and foundational cultural moulding to the disposition and character of the infant. Both its biotical foundation, and its typical moral qualification as a bond of love between parents and children, provide the formative power of parental education with a particular intimate character not found in any other communal sphere.

It is doubtless true that modern psychology and pedagogy to a considerable degree may help the parents in the fulfilment of their task when they meet with particular difficulties due to an insufficient knowledge of the psychical and mental condition of

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the infant. But it would be a dangerous overestimation of science if it should be supposed that the formative educational task of the parents had better be taken over by a skilled psychologist or pedagogue. The integral character of the education in the family sphere is irreplaceable and in many respects decisive for the whole further life of the children. The children belong to their parents in a personal sense as long as they have not reached the stage of maturity necessary for them to be considered as responsible persons in human society.

This is also the reason why, according to the structural principle of the family, the determination of the spiritual direction of education continues to belong to the parental competence, even when the process of cultural moulding of the children has reached the phase of modern differentiation which exceeds the boundaries of the intimate family sphere.

School and family.

If the parents are lacking or unable to fulfil their particular educational task, in accordance with the structural principle of the family, it is necessary to make a provision to supply this defect. This provision should as much as possible approach the parental type of education. The general cultural moulding provided by the elementary, secondary and other kinds of schools in the later developmental phases of the children, is of a quite different nature from that of parental education.

A school is a differentiated organized community of a typical tuitionary character. It may be that school tuition in its typical historical foundation is qualified by a typical ethical function; but the latter is certainly not that of the family bond in its natural sense. According to its inner structural principle the moral bond of a school community is that between pupils and their teachers, founded in the cultural formative power of the latter. It can only reveal itself as a bond of mutual comradeship between the pupils with different degrees of intensity, and a bond of mutual attachment between the pupils and their teachers.

Within the internal sphere of a school it is the instructional community which determines the typical character of these moral bonds. But in their factual realization the latter are interlaced with moral relations of several other structural types.

The modern differentiation of education is to a high degree determined by its preparatory task with respect to the later

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functions of the human person both in free society and in the State and the Church. But in this entire differentiation the parental cultural shaping of the child in the inner family sphere retains its irreducible and irreplaceable nature. This is why the ancient and modern totalitarian ideas of State education of the children contradict the divine world-order and are indeed inhuman and destructive to human society.

In the intimate family sphere the children are culturally formed in a spirit of communal solidarity which cannot be equalled by any other temporal community, except the matrimonial bond. The communal sense here acquired is to be considered as the deepest temporal sounding-board to which any other education to a communal sense has to appeal. A decline or inner denaturing of intimate family life is therefore disastrous to human society in all of its communal relationships.

The typical structure of internal communal thought within the family; the sociology of thought.

In its logical aspect the internal structural principle expresses itself in a communal notion of the internal family relations which determines the typical logical mode of thought of the members. This notion, as such, is absolutely of a pre-theoretical nature, immediately founded in emotional feeling relations between the members of a family; it interweaves their mode of thought indissolubly into these internal relationships, notwithstanding all the individual differences in talents, disposition, and development. The notion of paternal authority is essentially implied in it.

An individualistic autonomy of thought is in conflict with the whole internal structure of that typical communal thought which is embedded in the internal life of a family. This thought is under the typical guidance of the love between parents and children in the distinction of persons in authority and those subject to this authority, and has its own logical structural type.

Before the age of puberty the children generally lack independent logical judgment. The authority of the parental judgment has a typical logical function in the mode of thought of the children in the phase of pre-puberty. During the transitional period parental judgment begins to lose its decisive logical authority and ought to justify itself by sufficient arguments. Nevertheless, even in this critical phase of development of the children, the internal communal sphere of thought within the

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family ought to be maintained in accommodation to the psychical and logical development of the adolescents.

The structural principle of this communal thought immediately loses its validity outside of the sphere of the internal family relations. But within this sphere the peculiar logical structure of this mode of thinking is the indispensable basis for all the functions of the family in the later normative law-spheres.

It stands to reason that in its factual realization this logical structure is closely bound to the stage of historical development of family life and of society in general. Such community of thought as is found in the family may show typical social prejudices of rank, class, ecclesiastical and political groupage, etc., due to the enkaptic interlacements of the family with other types of societal relationships.

The recently developed sociology of thought¹ as a special branch of study is especially concerned with a more profound investigation of such social prejudices of logical thinking. It is, however, of primordial importance for this study not to neglect the typical structural differences between the various communities of thought. It should especially guard against a confusion of the necessary structural conditions and presuppositions of communal thought with illegitimate social prejudices which impede correct judgment and are to be unmasked by sociological science.

1 Cf. especially the collective work Versuche zu einer Soziologie des Wissens (hrsg. im Auftrage des Forschungsinstituts für Sozialwissensch. in Köln, 1924) with an elaborate introduction by Scheler; and the important publications of Karl Mannheim concerning this subject.

§ 3 - An analysis of the pre-logical structural aspects of the family relationship.

The structural principle expresses itself also in the pre-logical aspects of the family relationship. The trap hidden in a purely naturalistic view of these meaning-functions.

The specific structural principle of a family does not only find its typical expression in the normative aspects but also in the pre-logical functions of this natural community. The latter assume their typical direction towards the leading moral function of a family in the opening of their modal anticipatory spheres. For it would be a fundamental error to conceive the biotic and psychic structural relations in the family in the

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restrictive animal function detached from the relations enclosed in the various normative law-spheres. The naturalist trends in sociology even tried to explain the normative relations as a mere reflex of the biotic relations, in an epiphenomenalistic manner. It must be evident that this attempt at explanation contains a vicious circle. For it no longer conceives of the biotic aspect of the natural family in its ‘restrictive function’, but really in its expanded anticipatory meaning, in which the normative leading function has already been pre-supposed. From the naturalistic utilitarian viewpoint the principle of reciprocity in the morality of a group is strongly emphasized as a biological necessity.

Even Alfred Vierkandt is apparently under the influence of this mode of thought, notwithstanding his universalistic-phenomenological attitude. ‘Reciprocity’, he observes in his Gesellschaftslehre, ‘is generally of fundamental importance in the morality of a group... It is a biological necessity, because without it anyone who would follow its command one-sidedly, would run the risk of starvation or ruin. When the group requires of every individual a certain amount of considerateness and recognition of the claims of others, it also undertakes in his behalf to guarantee that the others shall reciprocate this considerateness accordingly. It says to every one of the group: Thou shalt not kill, but I shall also take care that nobody kills thee. Wherever in the long run one party is confronted with a complete lack of reciprocity or with purely egotistical aims, he will finally relinquish the communal attitude and change over to an entirely different tactics’¹. This reasoning is a near approach

1 Gesellschaftslehre (2nd ed. 1928), p. 396: ‘Die Gegenseitigkeit ist überhaupt in der Gruppenmoral... von grundlegender Bedeutung. Sie ist biologisch notwendig, weil ohne sie derjenige, der ihrem Gebote einseitig folgen würde, in die Gefahr der Verkümmerung oder des Unterganges geraten würde. Wenn die Gruppe ein bestimmtes Masz von Rücksichtnahme und Anerkennung fremder Ansprüche von jedem Einzelnen fordert, so übernimmt sie dementsprechend ihm gegenüber auch die Gewähr, dasz der andere diese Rücksichtnahme erwidern wird. Sie sagt zu jedem: Du sollst nicht töten; aber ich werde auch dafür sorgen, dasz dich niemand tötet. Wo also der eine Teil auf die Dauer auf einen völligen Mangel an Gegenseitigkeit oder die Absicht eines rein selbstsüchtigen Verhaltens stöszt, da wird er schlieszlich die Gemeinschaftshaltung aufgeben und zu einem anderen Verhalten übergehen’. For the rest this work again and again shows naturalistic-evolutionistic traits. Cf. page 225, where, in the discussion of the ‘various kinds of community’, Vierkandt writes: ‘The oldest of these forms is the community of personal groups (persönliche Gruppengemeinschaft). It had already its precursor in the animal herd, from which we can imagine(!) the human horde to have descended as the primal form of human societal life’. Cf. also p. 183. This is no doubt the reason why Theodor Litt cannot acknowledge Vierkandt as a congenial mind.

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to Hobbes' naturalistic theory about the instinct of self-preservation necessarily urging men to found a State-relationship, as soon as it is viewed in the light of a utilitarian thought. Hobbes embodied the idea of reciprocity in the contractual principle. But one fundamental point is overlooked in Vierkandt's biologistic explanation of communal morality. The intrinsical interwovenness of the members of the community in the internal relations of law and morality was to be reduced to the biological necessity of the preservation of life. But in this attempt it was taken for granted, that the vital conditions for a member of the group are not guaranteed by natural, pre-logical factors. In the social group-life of animals, e.g. in a ‘state’ of bees or ants, there is no normative moral leading. And yet in such an ‘animal-society’ the principle of reciprocity is absolutely maintained by a restrictive group-instinct. In a human community, on the contrary, the biotic and psychic functions appear to be insufficient to keep the members united. Such a relationship may indeed be destroyed by mutual strife among its members.

These facts make it quite evident that the biotic and psychic aspects of a human community must display a fundamentally different structure from that of the group-life of animals.

The idea of temporal human society having developed from animal groupings is thus merely a piece of naturalistic mythology, from which Vierkandt apparently also starts¹.

On the other hand it is curious to see that Vierkandt denies the function of the tie of blood as the biotic foundation ‘Grundlage’) of parental love. He does not admit that this ‘physiological coherence’ has that ‘mystical causal power’. He refers to the ‘undeniable fact’ of ‘the indifference of the unmarried father to his offspring’ and also to the fact that the relation of foster-parents towards their adopted child has the same effects, without any physiological basis².

1 Cf. the previous note. On the other hand Vierkandt explicitly admits (cf. p. 387 op. cit.) that ‘the form of the norm and of the ‘Thou shalt’ cannot be phylogenetically derived from anything else. This renders the naturalistic motives in his book all the more contradictory.

2 Op. cit. p. 449.

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This reasoning proves that Vierkandt is not able to conceive the moral bond of love between parents and their children in its typical total structure of individuality.

Essentially his view of the structural coherence between the different aspects of this societal relationship remains of a (pseudo-) natural scientific causal character. He reproaches the ‘usual, popular view of the mystical power of blood-relationship as the basis of parental love for the logical error of reducing a great complexity of facts to one single cause’. As if naïve experience, which really conceives parental love in its typical coherence with the bonds of blood, were starting from a naturalistic-causal theory!

Vierkandt makes the old naturalistic mistake of thinking that societal facts can be established apart from their normative structural principle. He does not see that it is impossible to conceive of the biotic bonds of blood between parents and children separate from their typical moral qualification, without denaturing their meaning theoretically.

Of course, a biotic complex of factors as such can have no moral effects. Parental love can never be the ‘natural product’ of the ‘ties of blood’. But as to its inner meaning-structure parental love is originally so certainly founded biotically that it would cease to be the love of parents if it were detached from this foundation¹.

1 This does not contradict the fact that a certain ‘motherly’ love may arise towards other people's children that are continuously in one's vicinity, e.g. as foster-children. But also in this case this love is really founded in the biotic disposition towards maternity. However else could we speak of motherly love? What would distinguish this love from the general love of one's neighbour, the love of country, friendship, etc.? But a foster-child can never belong to the community of the family proper, according to the internal structural principle of the latter. He will never be one of the parents' own children. Although he is treated with ever so much genuine tenderness by his foster parents, he is not interwoven with the latter by means of the immediate bonds of blood. His love-relations with them cannot display the same internal structure.
Rather we are confronted here with an essentially transferred kind of parental love, which treats the foster-child as if it were a child of their own. The normative standard of this love is not a natural one, in the proper sense of the word, but is transferred from the genuine parental love to that of foster-parents. We had better speak here of ‘motherly’ and ‘fatherly love’ instead of ‘maternal’ and ‘paternal’ love. Naïve linguistic usage is capable of very fine distinctions in this respect.

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According to Vierkandt, the decisive factor calling forth parental love is ‘the fact of communal life as a system of continual interactions (in which of course the physiological relations of sexuality and reproduction create a particularly favourable resonance).’ From this it would follow that natural parentship is only an accessory ‘favourable condition’ for parental love. Why does not Vierkandt take the next step then by calling the biotic-organic aspect of the difference in sex only an accessory ‘favourable condition’ for marital love?¹ There are indeed sexual abnormalities to be adduced in favour of the thesis that marital love is not necessarily ‘founded’ in the sexual bond between husband and wife. But since a structural foundation has nothing to do with a naturalist causal explanation of conjugal love, this thesis lacks any meaning.

1 Vierkandt does not venture to go so far. He does deny, however, that the sexual instinct is the only or the most important foundation of marriage. Here, too, Vierkandt conceives of the term ‘foundation’ in a natural-causal sense.

The psychic structural aspect of the family.

In the typical internal relations of feeling between its members the family has its psychic structural aspect. This can never be conceived in itself as something purely psychic ‘rein-psychisches’), but only in its indissoluble internal meaning-coherence with its typical leading function as well as with its typical foundational aspect. The psychic function proved to be pre-supposed in the internal-logical structural aspect, as the latter evidently contains a retrocipation of the former. The internal communal feeling of the members of a family may no doubt show great defects when considered from its subject-side. But naïve experience rightly looks upon a weakening, or even a total lack of this communal feeling, as something ‘contrary to nature’, something that is flagrantly in conflict with the inner vital law of the family. According to the internal structural principle of this societal relationship, the feeling of most intimate solidarity of parents and children in this communal function should be opened to the moral leading by the love of parents and children in mutual tender affection and devotion. Every injury done to this feeling must evoke an instinctive reaction of pain and indignation.

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The internal subject-object relation in the psychic and the later structural aspects of the family.

Each of the members of the family feels inclined to try and obtain a permanent ‘souvenir’ of the others, in other words the internal communal feeling expresses itself in an internal structural subject-object relation. Portraits, locks of hair, letters, personal ornaments of the body, in short anything in which the temporal existence of the other members expressed itself, or that was closely connected with their individual existence, becomes the object of the typical communal feeling of a family, the feeling of love, devoted tenderness, and strong solidarity.

This subject-object relation, of course, is also found in the normative aspects of the family relationship. Things that serve as a ‘permanent souvenir’ become objective cultural possessions of the family in its historical structural function. They also function as symbolic objects, as objects of intimate social intercourse, and as typical economic objects. Their economic value as such remains restricted to the family circle, or to the wider circle of relatives. These things only possess a ‘pretium affectionis’ in which the typical moral qualification of their economic function is clearly expressed. In addition they have a typical juridical object function, a moral object function, etc.

These objective things are consequently interwoven with the internal communal life of the family, they have internal objective structural functions in this relationship.

The internal psychic interlacements between the members of a family cannot be mechanically isolated from the feelings of the individuals.

The authoritative structure inherent in a family is also expressed in the psychic structural aspect of this communal relationship. On the one hand there is the feeling of authority on the part of the parents, on the other hand the feeling of respect on the part of the children. If these feelings are lacking, the tenderness of the mutual emotional relations is not strengthened but rather weakened and falsified. This is not merely a question of a universal ‘Unterordnungstrieb’¹ in the sense intended by the sociological studies of Mac Dougall, Vierkandt and others; but these feelings of authority and respect have a typical internal structure, not found in any other societal relationship.

1 An instinct of subordination, a submissive tendency.

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The internal psychic interlacements between the individual members of the family are, however, not a separate department by the side of other ‘groupal’ and inter-individual emotional relations¹. Nor can we make such an exterior mechanical separation among the different social subject-functions of human personality in the case of its normative aspects.

In the legal subjectivity of an individual person the internal structural functions of the latter in the different communal relationships appeared to be an internal constituent. The same thing applies to his emotional life. The internal affective relations between parents and children are actually interwoven with a great many other feelings: national feeling, the feeling of social standing, ecclesiastical communal feeling, etc. But in the enkaptic interlacements the internal structural principles of individuality are kept intact, and this is also true in the feeling aspect of temporal society.

1 This point has rightly been insisted upon by Litt in his Individuum und Gemeinschaft.

Does a communal whole as such have its own life of feeling and thought, distinct from that of its members?

The analysis of the typical logical and psychic structures of a family in its narrowest sense raises a question of general importance with respect to every kind of communal whole. It may be asked whether a community as such has a life of feeling and thought of its own, distinct from that of its individual members.

This is one of the crucial points at issue in the controversy between modern ‘universalists’ and ‘individualists’. The idea of a ‘Volksgeist’, a ‘Verbandsseele’, a ‘conscience collective’, etc. (i.e. the spirit of a people, the soul of an organized community) was always rejected on the part of the individualists as metaphysical speculation. They tried to construe the typical thought of a community, its communal feeling and communal will by means of a functional conception of the social interactions between individuals.

Litt on his anti-metaphysical universalistic standpoint proved also to reject the hypostatization of a community to a ‘spiritual organism’ or ‘Ueberperson’ (super-personality), as an independent centre of ‘psychic acts’ of consciousness. He inferred the ‘social acts’ from the social interweavings among the individual egos.

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This question can only be rightly posed and solved in the light of our previous expositions. We have definitely and clearly rejected the metaphysical universalistic and individualistic conceptions, and are not going to be caught in the dilemma of their mutual struggle. Litt's ‘monadological universalism’ proved no more to be compatible with the Christian conception of the religious transcendence of human personality than any other form of sociological universalism. We have found that every temporal community has a subjective continuity and identity regulated by its structural principle. This continuity and identity as such is to a greater or lesser degree independent of the variations in the number of its individual members unless the community is by nature a two-oneness relationship. But this conception can never result in a metaphysical separation between the communal whole and its members.

A communal relationship is a typical structure of man's own temporal social existence. Therefore the internal continuity of such a particular communal whole, both as to its psychic and all its other aspects, can be actualized only in the communal structure of the relevant functions of its members.

Notwithstanding the variations in the number of its members the internal structure of the whole continues to actualize itself in the feelings and thoughts of the existing members in an individual way. To this fact the communal relationship owes its continuous identity, also in its logical and psychic structural aspects. Especially in the case of an organized community this continuous identity extends beyond the individual temporal existences of the members. But this state of affairs does not justify the assumption of a metaphysical ‘collective soul’ of the community. The continual existence of the latter is dependent on the inner act-life and the social activity of human beings by which the communal relationships must be realized. A temporal community lacks a supra-individual consciousness, it has no I-ness as the centre of a collective act-life.

The organological conception of the communal whole.

Admitting the fundamental and unbridgeable difference between a biotically qualified organism and a human community, yet we seem to be confronted with an almost undeniable point of agreement between them.

The life of a plant, too, possesses a continuity extending beyond the span of the always changing individual cells. Nevertheless

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this continuity can only be actualized in the coherence of the ever changing individual cells themselves. Outside of the structural relationship of the cells themselves, a plant possesses no more life of its own than a human community does outside of the structural relation between its individual members. This was the tertium comparationis that always made the organological theories of the structure of temporal human communities sound so convincing.

Litt tried to refute these theories with the argument that the natural organism is bound to an individual spatial-bodily existence, whereas a human communal whole in principle lacks such a vital bond. A ‘closed circle’ of human communal relationships presupposes in his opinion that the living human beings, incorporated in it, are not interwoven into vital coherences as regards their bodily existence¹. This argument is only to the point in the case of the naturalistic organological view; it is irrelevant with regard to the conception of a community as a ‘spiritual organism’. Besides, it will appear presently that in the case of typically biotically founded communities, such as the family, there are very close vital interlacements between the members with respect to their bodily existence. Especially these types of societal relationships were considered as the prototypes of a truly organical community in the organological theories.

However, if we look at these theories more closely, their naturalistic and idealistic main types appear to force a dilemma on us that must be radically rejected on our Christian standpoint.

The naturalistic types were compelled to consider a temporal human community as an organic natural being. The idealistic views, however, had to conceive of it according to the metaphysical concept of an ‘organically articulated super-person’ (organisch gegliederte Ueberperson).

But we have shown in an earlier context that a temporal human communal whole has neither the structure of an organic natural thing, nor as such a spiritual centre above or in coordination with the individual human personality. Nor can it interweave the individual central I-nesses of its members, as Theodor Litt thought in his ‘monadological universalism’. The reason is that the human selfhood transcends all the temporal structures of societal relationships, and is not to be considered as a temporal psychical centre of acts, as Litt supposes.

1 Op. cit. pp. 282/3.

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Does the community feel, think, etc. in its members, or do the latter think, feel, etc. in the communal relationship?

But on our standpoint there now seems to arise an extremely difficult problem, which requires our fullest attention.

The typical structures of human communities have proved to be secondary structures of man's own temporal existence. Neither natural nor organized communities can be considered as independent personalities; they depend on human activity for their actualization. If this is true, we may ask whether it is possible for us to continue calling them subjective identical unities. Does not this view imply that a communal whole is again looked upon as a thinking, feeling, willing and acting being, and as such must have an independent personal centre of consciousness? In other words, does not our previously explained conception imply an internal contradiction? Which is correct? Does a communal whole feel, think, etc. in its members, or do the latter think, feel, etc. in a communal relationship? And if the second alternative is right, can we then still say that a community as such has subject-functions in all the modal spheres?

Do not the separate human personalities have these functions? If, in opposition to Litt, we are to say that the central egos of these human personalities are not themselves interwoven by the temporal communal relations, what possibility is left for us to view a community as a subjective real unity?

The questions asked here, however suggestively they are formulated, continue to start from a dilemma which we have rejected as false, as our expositions have proved. In a temporal community the individual I-ness expresses itself in its supra-temporal religious communion with other human egos. This excludes the possibility that any temporal community has a personal centre of its own coordinated with or transcending the individual human personality. When we say that a community has its own sphere of feeling, thought, etc., its own temporal internal sphere of action, we cannot mean anything else than the life of feeling, thought, etc., and the sphere of action of human beings, in a particular temporal unity of societal relationships. This statement is no relapse into an individualistic or a monadological universalistic conception. For we have discovered the internal structural principle guaranteeing the internal unity of a communal relationship on its law-side, which should be realized in a variable societal form. Owing to their lack of insight

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into these structural principles the prevailing theories were obliged to accept the dilemma mentioned above, which is meaningless from our point of view. The subjective structural unity of a temporal communal whole is realized through the individual temporal existences of its human members, without the latter being absorbed by the former.

When compared with the personal human ego, in its supra-temporal religious bonds with other human selfhoods, temporal communities cannot be isolated as beings with a ‘substance’ or an ‘I-ness’ of their own. But this fact does not exclude that in comparison with one another, they have an inner subjective structural unity. On the individualistic, and on the universalistic standpoint these states of affairs cannot be understood in their true nature.

There is consequently no internal contradiction in the statement that a temporal community functions subjectively in all the law-spheres and as such possesses a structural subjective unity, while at the same time we maintain that only its human members can think, feel, act, etc. For a temporal societal relationship as such cannot be personal, but derives from human personality itself, whose supra-temporal spiritual ego, in its religious communion with the other human egos, is the very root of any temporal societal relationship whatsoever.

How the family relationship expresses its structural principle in the biotic, the spatial and the numerical aspects.

After this digression we will proceed with our analysis of the different structural functions of the family relationship.

The immediate substratum of its psychic sphere is its biotic structural function. This function appeared to play a typical foundational rôle in the entire inner structure of the family. No wonder that the latter's internal structural principle cannot fail to express itself in its biotic aspect.

Parents and children are inextricably interwoven by the ties of blood in their temporal existence, although their bodies exist separately. A family relationship, of course, does not itself have a mystical biotic-corporeal organism apart from that of its members. Nevertheless, in the biotic aspect of their individual existences, there are found structural communal relations closely interweaving the members of a family as such in this law-sphere

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as well. Biology also must recognize these typical relations, which are expressed in the phenomena of heredity.

However, within the structure of the family in its narrowest sense, this ‘bond of blood’ cannot manifest itself solely in a merely restrictive biotic function, or only in a biotic function opened by instinctive animal affective impulses.

And in itself the immediate blood-tie can never guarantee the internal unity of the family community. It can only be the foundational function of the latter under the normative leading of the love between parents and children, and that among the latter mutually. This is to say that these biotic relations within the family structure only function in a structural moral anticipation, precluding any identification with the societal relationship between a couple of animals and their young ones.

The blood-bond is not merely a typical foundation of the family-relationship in the narrow sense of the word, but also of the more extensive natural communities of kinship. In its narrowest sense, however, as the genetic biotic relation between the parents and their offspring of the first degree, the blood-bond is only the typical foundation of the family community in the restricted sense here intended. The latter displays closer interweavings of the temporal existences of its members than the larger communities of the same secondary radical type.

*

Our elaborate structural analysis may at first sight seem unusual and strange, but we cannot halt at the psychic and biotic aspects in our examination of the manner in which the structural principle of the family expresses itself in the pre-logical functions.

The integral character of the societal structures of individuality, in the intermodal coherence of all their different aspects, is at issue here. Both the naturalist and the so-called cultural scientific trends in sociology have failed to do justice to these integral structures. This is the reason why we must continue our analysis of the pre-logical aspects of the latter.

The family in its typical total structure displays even physico-chemical and spatial structural aspects as well as a necessary function in the numerical sphere of empirical reality.

If this were not true, the family-structure could never be the structure of an integral unit of societal reality; it would be a

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theoretic abstraction. Temporal reality is only given in the indissoluble coherence of all its modal aspects, and cannot be arrested arbitrarily in a select complex of law-spheres.

We should only bear in mind that even the pre-logical aspects of a societal relationship cannot be realized without human acts and that, insofar as the human body is conditioned by such relationships, it is the body in its qualifying act-structure, which itself embraces all modal aspects of our experiential horizon.

The family community cannot function in the biotic law-sphere unless as such it expresses itself also in those spheres in which, according to the general temporal order of the modal aspects, the biotic law-sphere itself is founded. The whole of the energy aspect of the human body, its ‘matter’ in its opened and enkaptically functioning physico-chemical structural constellation, owes its origin to the female ovarian cell fecundated by the male sperm. This means that even the structural physico-chemical constellation of our body in its qualifying act-structure originated from a complete union of a maternal and a paternal component which as such can never be conceived in terms of ‘pure’ physics and chemistry. And yet there can be no doubt that this genetic process in its human communal character has an essential physico-chemical aspect. But the latter displays the typical communal structure of the family-relationship in its process of becoming.

Even the metabolic processes in the human body have a structural function in this communal relationship. Normally it is the duty of a well-ordered family-relationship, especially in childhood, to take care of the bio-physical aspects of our body. This task is to be performed under the normative guidance of the love between parents and children. The care of the biophysical aspects of our human body is not a restrictive ‘natural process’, but it occurs in the normatively qualified structures of temporal human society.

Left to instinctive natural impulses a human being would die, as the entire complicated enkaptic structure of his bodily existence requires a normative leading of its bio-physical processes by the logical and post-logical functions.

In the spatial aspect of reality the structural principle of a family relationship also finds expression. The intimate interlacement in the temporal existences of the members requires the normative character of this relationship to express itself in a spatial centre, where they live closely together. This is not a

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‘natural datum’ of human social life in a family-community, but something that requires normative freedom for its realization.

In the psychic structural aspect there is a strong appeal to the spatial function of the family in the universally known ‘Heimatgefühl’ conceived in its most intimate structure of the feeling of being at home in one's own family community, as well as in the longing for home in case of temporal absence.

We have already referred to the fact that, when family-relations are what they should be, the members of a family appreciate taking some souvenir with them in case of a rather prolonged absence from home. Such souvenirs suggest, as it were, the spatial nearness of the other members of the family¹.

Finally the structure of the family relationship expresses itself in that typical unity in a multiplicity in which every child owes its origin to the sexual intercourse of one father and one mother. No human licentiousness in sexual matters can undo this state of affairs, that there exists a wonderful numerical relation between parents and children. For from the bi-unity of the parents there comes into existence a third human being, a fourth, etc., who all remain indissolubly bound to the parental bi-unity. This numerical relation cannot, of course, be understood in purely arithmetical terms. It refers to the normative structural principle of the family community, which finds its quantitative expression in this numerical function. This unity in multiplicity, deriving from a bi-unity, is in other words not a datum which is to be understood apart from its typical moral qualification, nor is it merely the result of mating led by the restrictive sexual instinct, as it is in animal life. But it is to be actualized in normative freedom (in the right or in the wrong way), according to the internal structural law of the conjugal and the family bond. And it is no idle speculation when in his book Das Gebot und die Ordnungen Emil Brunner looks upon these numerical structures as an indication that monogamy is the basis of the family bond in the order of creation².

1 This is really an essential emotional factor in such a ‘souvenir’. When the photos of ‘acquaintances’ are given a place in the house, this ‘Heimatsgefühl’, of course, does not play a part.

2 Das Gebot und die Ordnungen, pp. 329 ff.

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The expression of the family structure in the faith aspect.

If the reality of the family-relationship cannot be arrested in any modal law-sphere, its typical qualifying function as a particular love bond cannot be its last modal function. In the temporal law-sphere of faith the family must also have a function, and in the Christian view of the Reformation this truth finds full recognition. The father of a family should at the same time be the priest of the family in the full sense of the word, according to the priesthood of all believers. Yet a family is not qualified as a typical faith communion, but the internal family structure, as a communion of love between parents and children, ought to express itself also in its modal aspect of faith.

According to its internal structural law, the family is not a little Church-community, neither is it a State on a small scale or an economically qualified organization.

In the temporal delimitation of its structure both by its typical biotic foundation and its typical leading function which qualifies its internal destination, this relationship displays its temporal, transitory nature. Even in the purity of its structure according to the divine will, the family is only a temporal expression of the religious meaningfulness of human communion in Christ, in His relation to the Divine Father as the Son.

At this point we are confronted with an extremely important state of affairs which is valid for all human societal relationships.

The structural opening-process in the modal functions of a family cannot be arrested by its typical moral qualifying function.

The qualifying structural function cannot bring the opening-process in the internal functions of a family to a functional close. If it could do so, the family-relationship in its internal structure would be independent of the religious root of temporal reality.

Then it could not be the individual structural expression in time of the religious fulness of meaning of the communion of men in Christ, including the relationship between man and God as that of a child to the Heavenly Father. In its subjective temporal reality, affected by sin, a family relationship is indeed often a caricature of what it ought to be. But according to the divine world-order, the anticipatory spheres of the structural qualifying function of a family keep waiting for their disclosure

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in the transcendental direction. They refer forward to the meaningfulness of love in Christ, in Whom God is our Father, and we are His children. In other words, the typical leading function of a human societal relationship can only qualify the openingprocess of this individual relationship. But according to the divine world-order this structure cannot be deprived of its direction to the fulness of meaning by arresting it in time. If, nevertheless, in a subjective sense this is taking place, the family remains caught in the civitas terrena, the kingdom of darkness, and even family life becomes a judgment to man.

§ 4 - The structure of the bi-unitary marriage-bond and its connection with the family.

The changes in the number of the family members are restricted within narrow limits, in accordance with the structural principle of this relationship.

The natural family relationship in its narrowest sense is only to a very small degree independent of the changes in the number of its members. Membership is absolutely restricted to the parents and their offspring in the first degree. This restriction is implied in the structural principle itself, and excludes the possibility of a total change of all the individual family members.

A family is not a whole in the same sense as a genealogical bond, whose unity is realized in a succession of generations. But a family implies a certain simultaneity in the internal interweavings of its members. There is no doubt that the continuous identity of the family as such is independent of the changes in the number of its children so long as at least one child is left alive. But when both parents have died, the family-tie as such is broken, although the bond of blood-relationship between the surviving children remains intact. Their factual living together in the same house after the death of their parents, possibly under the leading of the eldest, or of another relative, who as their guardian is in charge of the internal authority, cannot be considered to be a continuation of the family relationship.

It is a new formation, a relationship of a different internal structure.

When the children leave home for good because they marry, or because they have grown up, or in case all the children die, the family relationship proper also ceases to exist, although the marriage-bond between the parents remains. The latter communal bond is the presupposition of the family, and is in an

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enkaptic way intimatety and closely interwoven with the latter during the time of its existence without being absorbed by it.

The typical inner conjugal relations, especially the sexual intercourse between husband and wife, remain strictly separate from the family community.

Marriage is a necessarily bi-unitary bond. Even in polygamy the marriage bond does not itself assume a multiple character.

The marriage bond is by nature incapable of any change in its individual members; it is essentially a bi-unity of husband and wife entirely dependent on the individuality of the persons united in this communal bond.

In polygamy these things are essentially unaltered. The husband is not united with more wives in one marriage bond, but in as many marriage bonds as he has wives. This is striking evidence of the fact that polygamy is against nature. The harem is indeed an authoritative organized community, in which there exists a difference in social position between the wives. As such a harem forms part of a domestic and labour community and is only included in an enkaptic interweaving with the marriage bond. It has so little of a natural community that the relations which necessarily occur in it have a destructive effect on the natural marriage bond and the natural family relationship. Marriage, as such, does not allow of such a social form as that of an authoritative organization in which there would be a unity in a multiplicity of more than two marriage partners. Human arbitrariness cannot alter this. Where polygamy obtains, the separate families originating from the various marriage bonds of the husband¹ necessarily become interwoven in the relationship of a ‘joint, or extended family’². This is a strongly patriarchial-agnatic kinship, because the children issued from the various marriages are only related through the father³. This

1 In Africa as a rule each of these families lives in a separate hut; their households are scrupulously kept apart. Cf. R.H. Lowie, Primitive Society (1921), p. 44.

2 We borrow this term from the Encyclopaedia Brittannica, 1947 edition, sub.-voce: Family. Cf. W.F. Ogburn and Meyer F. Mimkoff, A Handbook of Sociology, 2nd edition, pp. 460 ff. Cf. also: Sorokin, Society, Culture and Personality, New York 1947, pp. 195 ff., who speaks of ‘kinship groups’ and disagrees with Ogburn and Mimkoff's nomenclature.

3 Cf. W. Koppers, Ehe und Familie (Handwörterbuch der Soziologie hrg. v. Alfred Vierkandt, 1931), pp. 117 ff; compare what is said there about polygamy in patriarchal families.

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does not mean that the patriarchal extended family can only derive from polygamy. The Roman family, for instance, in its extended patriarchal character excluded any polygamy. But we can establish that, generally speaking, this type of family does not belong to the natural communities because it usually displays the structure of an organized undifferentiated whole. We shall recur to these artificial family types in a later context.

That which occurs simultaneously in polygamy (i.e. the simultaneous formation of more than one natural family from different marriages contracted by one man) is only possible in succession in the case of monogamy, if one of the surviving partners re-marries after the death of the other.

It may be asked whether the original family relationship is continued in its subjective identity when one of the parents dies, especially when the surviving marriage-partner remarries. The Dutch Code of Civil Law does not in these cases recognize any continuation of legal parental authority over the children born of the marriage concerned, but only the guardianship of the surviving parent. If the mother survives and remarries, her guardianship is shared by her new marriage partner (art. 400 ff. civil Code).

According to the structural principle of the family it cannot be doubtful that in both cases the original family bond no longer exists. For the inner unity and identity of this community is typically founded in the conjugal bi-unity. The dissolution of the latter necessarily implies the dissolution of the family which originated from it. This is an essential difference between a natural family and any other bond of kinship.

The marriage and family bond have individuality structures of the same radical type.

The identity of a family relationship in its natural sense remains thus strictly bound to the identity of the marriage bond. Between these two societal structures there exists an intense enkaptic interlacement of an irreversible foundational type. Such enkaptic foundational relations have also been found in our examination of objective normatively qualified thing-structures and they will appear to occur in nature in a rich variety. But in the case of marriage and family this foundational

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relation is discovered between two individuality structures of the same radical type. Both are of a typical biotic foundation and both are qualified as typical moral bonds of love. They are only of a different geno-type, in the earlier defined sense of the term.

The marriage bond, as such, is typically founded in the institutional (and not in an incidental) sexual union of husband and wife, which is undoubtedly made serviceable for the propagation of the human race. It is according to the order of the creation that normally marriage leads to the formation of a family. In other words, the typical foundational relation between the family and the conjugal bond implies the natural disposition of the latter to procreation. In this sense marriage may be called the ‘germ-cell’ of the family-relationship. Both communities remain most intensely interwoven during the time of their actual existence.

Yet marriage, as a love-communion, maintains its own structure notwithstanding its interwovenness with the family.

Is the conception of marriage as a legal institution contradictory to the view that marriage is qualified as a bond of love?

In our view marriage is qualified as the permanent typical bond of love between husband and wife. But does not this conception contradict the traditional view very generally accepted both in Christian and Humanist circles, which in the marriage-bond assigns only a subordinate place to love?¹ And does not it rashly encourage the modern irrationalistic conception, already occurring in Fichte's actualism, in which the bond of marriage is made dependent on the actual subjective continuance of love between the marriage-partners? If in this sense love is considered to be the real meaning of the marriage-bond, does it not follow that the entire institutional legal aspect of this community is ignored?

We might have discussed this question implicitly when we examined the structural principle of the family relationship, which we also qualified, in accordance with its internal structure, as a typical bond of love. It is true, we sharply opposed

1 That this is also done by positivist sociologists is not to the point here, since they intentionally eliminate the normative structural principles of societal relationships.

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the naturalistic misconception of the normative meaning of love, but we did not yet consider the objections raised by the traditional view against giving ‘primacy’ to the love bond as the essential factor both in the family and in marriage. This had a good reason. For it is the connection between marriage and family that has always been the basis of the traditional objections to the primacy of love in these communities. And it is this connection which is at issue in the present context of our inquiry.

The traditional scholastical conception called marriage an essentially legal institution whose ‘essence’ is determined by its natural aim, viz. the propagation of the human race. The natural law order - and in the Roman Catholic view also the divine supra-natural legal order of the Church - seemed to offer a firm foot-hold for this opinion to oppose the theory of the ‘primatus amoris’. Conjugal love was thought of only as a variable and subjective feeling, unsuitable as a ‘basis’ for a permanent life-companionship. Married affection was sometimes considered to be a mere ‘instrument’ for propagation, as the essential aim of the conjugal bond.

But the internal structural principle of the bi-unitary bond of marriage cannot be grasped with a juridical concept oriented to the natural (and eventually supra-natural) aim of this institution. If the marital community has also an internal juridical aspect, the typical character of the latter is certainly not determined by the natural aim of propagation as assumed by the scholastic natural law conception. Civil and canon law contain marital regulations that are far from being a positive juridical expression of the essential inner nature of the institution of marriage. On the contrary, in comparison with the proper internal structural principle of the conjugal bond they only have a formal and external character. The internal legal sphere of marriage, just like the internal law of the family, owes its qualification exclusively to the internal structural principle as a whole. The idea that the juridical function is the ‘leading’ or ‘qualifying function’ of this internal structure is untenable and in open conflict with the Biblical view¹.

1 Cf., for instance, Ephes. 5:31, where the bond of married love is clearly conceived as qualifying the ‘being one flesh’. This bond of love has its religious consummation in Christ's love of His Bride, the Church, which in the supra-temporal fulness of meaning is also one body with our Saviour: ὅτι μέλη ἐσμὲν τοῦ σώματος αὐτοῦ, ἐϰ τῆς σαϱϰὸς αὐτοῦ, ϰαὶ ἐϰ τῶν ὀστεῶν αὐτοὺ.
Thomas Aquinas also recognized that only as a love-bond marriage is a temporal expression of Christ's relation to His Church. Cf. 4 Sent. dist. 26q. 2, a.l. ad 3.

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As soon as the juridical viewpoint acquires the leading rôle in the conjugal relationship, it is by nature an external legal viewpoint. And if the marriage-partners give to an external legal order the leading rôle in their communal relationship, this is a clear evidence of the complete ruin of their inner bond. Nor can a civil or canon legal order be the foundation of marriage in its inner structure. This foundation is of a biotic, not of a juridical character.

No doubt the juridical structural aspect of the marriage-institution cannot be eliminated, but this holds good for all its other structural functions.

Is the continuity of the marriage bond to be guaranteed exclusively by civil law or canon law?

If conjugal love is the qualification of the marriage bond, can the latter then be continued when subjectively this love has vanished? And if the answer is in the negative, does not this prove that only as a legal institution marriage can continue to exist, either regulated by civil or by canon law? Our answer is that the marriage institution as such is identical with the structural principle of this community. We know that according to this structural principle its juridical aspect cannot be independent and self-contained. The inner nature of a marriage bond is not determined by a consensual agreement between two persons of different sex which satisfies the conditions determined by civil or canon law. Those who unite as husband and wife enter into an institutional community whose structure is no way dependent on their subjective arbitrary discretion.

From the outset they are subjected to its institutional law.

The normative character of the institution of marriage implies that its continuous identity cannot be dependent on the arbitrary way in which from moment to moment the subjects behave in this structural bond. But this does not mean that the continuous identity of the bi-unitary bond of marriage is to be found only on its law-side. There cannot exist any individual community if its structural principle is not subjectively realized to some degree. The unity in duality existing between husband and wife

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should be realized subjectively, be it in an imperfect way, in a constant subjective vital union of the above-mentioned structure. In this sinful world the marriage-partners by no means always behave conformably to this structural law.

But may we yet speak of a marriage bond if the partners constantly adopt an anti-normative attitude with reference to the internal structural principle of their union and continually live together like strangers, or even enemies? In such a case there is no denying that the internal bond of marriage is not subjectively realized, not even in a very imperfect way. Unfortunately this is the state of affairs in many a marriage contracted rashly or from utilitarian motives. Then sin mercilessly puts to shame the tenderest and most intense temporal bond that God in His order of creation has given to man as a task.

The true sense of the civil law (or, at a more primitive stage of society, the tribal law) and the canon law regulations of marriage. Their relation to the internal structural principle of the marriage bond.

But though as to its internal side a marriage is not subjectively realized, or ruined hopelessly, with regard to its external relations in human society it is not thereby ipso jure dissolved.

The marriage bond functions in numerous enkaptic interweavings, and as such it is never a matter that concerns husband and wife only in their relation to each other and to God. It is, just as the family, a pillar of human society. According to the divine order of creation it is a union for life. For these reasons the formal dissolution of the marriage bond may not be left to the sinful arbitrariness of the marriage-partners, especially not in times when public opinion no longer respects the institutional character of this bi-unitary community.

If marriage can be formally undone so easily, it spells ruin for human society. In its external enkaptic interweavings the conjugal bond comes especially to the fore in its external function as a civil or (at a more primitive stage of society) a tribal law institution. Human licentiousness in this field meets with an external constraint. In case the internal marriage bond has been definitively broken, only the civil or tribal law order is able either to keep an external frame of the bond intact with the constraining power of the State or the tribe, or to give a binding regulation of its formal dissolution. This is important for the external relations of this institution. Canon law on this

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point has no other primary function insofar as it is intended as an authentic explanation of the so-called law of nature. Only in the Roman Catholic view of marriage as a sacrament are we confronted with the enkaptic interweavings of marriage with the internal sphere of the Roman Catholic Church.

Civil law or tribal law respectively, regulate the general conditions for contracting or dissolving marriage, together with other points that are of general importance for the civil law relations or the tribal relations respectively, in which the marital bond functions. Canon law does the same from the Roman Catholic ecclesiastical viewpoint. The ‘lawfulness’ of a marriage depends on its satisfying the general conditions of contracting it established by these legal orders. And it may occur that on that issue civil law and canon law are in conflict with one another, though we shall show in our analysis of the inner nature of ecclesiastic law that this can only be caused by disregarding the inner boundaries of the State's or the Church's competence to law making. In other words, in the regulation of these enkaptic interweavings of marriage with other societal relationships it is really the civil, or tribal, or canon law function of marriage that takes the lead.

Under this leading the external framework of the marriage institution, i.e. its social form, is maintained also in its other modal functions. (Witness, for instance, the external forms of social intercourse in which the formal appearance of marriage is maintained even though the true internal bi-unitary bond has been broken). But this external legal framework of marriage should not be confounded with the internal structural principle of this bi-unitary community. The proper internal stability of the latter must never be founded in its supposed essence as a civil, or an ecclesiastical institution. This internal unity cannot at all be maintained by any external legal order, as it can only be realized under the leading of faithful married love.

The false legalistic view of the question concerning divorce.

Christ's pronouncement in the question of divorce was in particular directed against the confusion of the inner institutional structure of marriage, in its reference to the Kingdom of God, with its external institutional aspect. The whole problem of divorce had been obscured by rabbinical legal formalism. And it is nothing but a relapse into this legalistic view of the

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matrimonial bond if one tries to derive from the New Testament legal principles for a civil law regulation of the grounds of divorce. These grounds can only refer to the external legal frame of marriage. They can never replace the personal responsibility of the partners in their internal relation to one another under the structural norm of the institution and the central commandment of love. From the internal moral point of view it is not possible to indicate general grounds of divorce. And the civil legislator should be aware that the legal determination of such grounds will always remain defective and liable to evasion. The fact that Christians have come to look upon the marriage bond as essentially a juridical institution must be denounced as a fundamental deformation of the Biblical view of this natural community.

The Thomistic view of the natural essential character of marriage in connection with the theory of the bona matrimonii. Marriage as an institution of natural law.

In his later systematic elaboration of the theory of the bona matrimonii Thomas Aquinas related the marriage institution primarily to its cosmic purpose of propagating the human race. To him this purpose was the real natural essence of the marital bond. This theory, already mentioned in an earlier context, was bound to favour a universalistic view of marriage which seeks to understand the essence of this institution from its enkaptic interweavings in the family, the State and the Church¹.

We have established that it is exactly the civil and (with respect to the R.C. Church) the canon law regulations of marriage which in modern Western society play a central and leading rôle in these enkaptic interweavings. That is why the traditional theory of the bona matrimonii could not but strongly favour the idea of primacy of the legal institution in the marriage bond. Thus to canonists as well as to Roman Catholic moral philosophers marriage remained both a divine and a natural law institution, which Christ had elevated to a ‘sacrament’. In a purely Thomistic-Aristotelian way this conception of marriage as an institution of natural law has been elaborated

1 In Hoegen's very able thesis, cited in a later context, we find the following statement, on page 52: ‘The essence of marriage is determined by its purpose.’ This is an orthodox piece of Thomism.

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in our days, e.g. in Cathrein's ethical philosophy¹. Typical of the universalistic attitude in this view is Cathrein's pronouncement: ‘Therefore, according to its nature, marriage is an institution whose principal aim is not the personal welfare of the marriage-partners, but that of the human species, the honourable maintenance and propagation of the human race’².

The traditional scholastic view of marriage as primarily a civil or canon law institution on the basis of the law of nature has especially retained its influence among the modern Roman Catholic canonists. One of the most prominent figures among them, R . von Scherer, writes: ‘The decision to contract a marriage is eminently a matter of private law (juris privati), but the content and the stability of marriage is rooted in the public law of the legal community, either of the State or of the Church, entirely apart from the creed, the opinion and the will of the contracting parties’³.

A Roman Catholic reviewer of the Dutch edition of my work has observed that this emphasizing of the legal aspect of marriage finds its explanation in the fact that this bond is treated here only from the viewpoint of canon law. This remark, however, is not to the point. Scherer's pronouncement that both the content and the stability of marriage are rooted in the public law either of the State or of the Church clearly concerns the essence of the marriage institution as such, and not simply its external legal relations. It is true that the essential legal character of this institution is viewed especially from the viewpoint of positive civil and canon law and that its foundation in natural law is presupposed. But this is indifferent to the conception of the marital community as an institution whose essence is deter-

1 Moralphil. II (6th ed. 1924) § 3: Die Ehe als naturrechtliche Institution.

2 Op. cit. p. 412. ‘Die Ehe ist also ihrer Natur nach eine Institution, deren Hauptzweck nicht das persönliche Wohl der Ehegatten, sondern das Wohl der menschlichen Art (Gattung), die würdige Erhaltung und Fortpflanzung des Menschengeschlechts ist’.

3 R. von Scherer, Handbuch des Kirchenrechtes, Bnd. II, p. 108, quoted by A.W. Hoegen, Over den zin van het huwelijk (Nijmegen, 1935), p. 84:
‘Der Entschluss, eine Ehe einzugehen, ist eminent juris privati, Inhalt und Bestand der Ehe aber wurzelt, ganz abgesehen vom Glauben, Befinden und Wollen der Contrahenten, im öffentlichen Recht der Rechtsgemeinschaft, sei es der Kirche, sei es des Staates’. I quote the first edition of Hoegen's work, which has been followed by a second edition.

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mined by law in accordance with its natural aim, the propagation of the human race.

Agapè, eros and orginal sin in Luther. The influence of the Thomistic natural-law conception in scholastic Protestant ethics.

In the Reformation there did not provisionally come a permanent fundamental breach with the traditional view of the essence of marriage as a natural law institution.

At first Luther made an important attempt to arrive at a better conception. He was the great antagonist of celibacy and to the vow of chastity on the part of priests and was fully alive to the unsatisfactory character of the theories of marriage propagated by medieval Scholasticism. It is true that his definition of the marriage bond as ‘conjunctio unius maris et unius feminae inseparabilis, non tantum juris naturae, sed etiam voluntatis et voluptatis, ut ita dicam, divinae’¹ did not contain a clear characterization of the inner nature of this community. Nevertheless, in the explanation of the sixth commandment of the decalogue in his great Catechism Luther emphatically established that in the inner sphere of marriage the bond of conjugal love takes the lead². But the dualistic scheme of nature and grace, in its Lutheran conception, in addition burdened with the traditional Augustinian view of sexual pleasure as an effect of original sin, made it impossible for him to gain a pure insight into the marriage-structure as a whole. The sexual eros, as such, was ascribed to the corruption of human nature.
The result was that the internal structural unity of sexual and love union was split up in an irreconcilable dualism. The pre-Thomistic Roman Catholic view of marriage as a ‘sacrament’ was meant

1 Cf. J. Köstlin, Luthers Theologie (2nd ed. 1883), p. 482.

2 ‘Ubi enim volumus conjugali castitati locum esse, ibi necesse est ante omnia, ut vir et mulier in amore concordes conversentur, ut alter alterum ex animo mutua quadam benevolentia et fide complectatur. Quod si praesto fuerit, ipsa quoque castitas sua sponte sine mandato consequetur’.
This statement testifies to a conception of married love which is quite different from the purely instrumental view of this love-bond as a necessary means serviceable to the realization of the natural aim of marriage, the procreation. The latter view was for instance defended in the Spanish scholasticism of the 16th century by Franciscus de Vitoria in his Reflectiones Theologicae, where he observes that the natural aim of marriage is not to be realized ‘sine mutuo amore et animorum concordia’. Cf. Hans Thieme, Natürliches Privatrecht und Spätscholastik (Zeitschrift der Savignystiftung, Germ. Abt. Vol. 67 (1953) p. 477). Cf. also: Wald. Kawerau, Die Reformation und die Ehe (in Schriften des Vereins f. Reformationsgesch. IX, 1892) and Marianne Weber: Ehefrau und Mutter in der Rechtsentwicklung (1907), pp. 282-285.

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to sanctify the supposed sinful sexual erotic basis of the conjugal union through the ‘means of grace of the Church’.
This view was rejected by the Reformation, it is true, but in the Lutheran conception the dualism of nature and grace and the relation of sexual pleasure qua talis to original sin retained its influence¹.
By appealing to the Thomistic theory of the cosmic purposes of the marriage-institution it seemed to be possible to find a compromise between ‘sinful nature’ and the order of creation. Sexual pleasure was justified in it in a rational ‘natural’ way by an appeal to its procreative purpose. This explains why in the later Lutheran ethics of marriage great emphasis was laid on the divine and relatively natural law character of the marriage institution. It was considered a basic legal ordering of sexual intercourse including the duty of procreation. Nevertheless the reference of marriage to the union of Christ and His Bride, the Church, was not denied².
In this way the real marriage-problems were almost entirely relegated to the domain of civil law, or that of consistorial law, and consequently externalized.

Reformed ethics, too, as far as it was affected by Scholasticism, could not get free from the influence of this view³.

In later times, under the influence of the Enlightenment, the

1 In spite of his fundamental rejection of celibacy and the vow of chastity of monks and nuns, Luther thereby remains very much dependent on the Roman Catholic view of marriage as a ‘less perfect state’. This forms a striking contrast with Calvin's conception. Cf. Marianne Weber, op. cit. p. 284.

2 Cf. Troeltsch, Die Soziallehren der Christl. Kirchen und Gruppen (1919), p. 558.

3 G. Voetius devoted a very elaborate consideration to marriage in his Politica Ecclesiastica I, III tract. I. As to the ‘essentia’ and the ‘properties’ of marriage he simply refers to what philosophers wrote about these things (Tract. I, cap. I, 1, the beginning). His own tract is entirely based on the law of nature and on ecclesiastical and civil law. Cornelis van Velzen in his Institutiones theologiae practicae, pars II (Groningen, 1749) sect. II, lib. I, cap. XLVI (p. 654) defines marriage as ‘maris et feminae unius voluntariam et indissolubilem conjunctionem, procreationis, castitatis et mutui auxilii gratia institutam.’ And then he continues: ‘Est haec conjunctio juris quadruplicis; Divini nempe vel revelati, cum a Deo sit instituta; Naturalis ob animorum et corporum unionem in ea; Gentium, quia requirit consensum maris et feminae; atque Civilis per formam et solennitates, quibus consummatur’. It is then explicitly stated that the essential nature of marriage must be inferred from its purpose, which is to be found in the procreation of mankind: ‘Conjugii Finem, ex quo illius natura pressius intelligitur, dicimus esse procreationem sobolis, adeoque propagationem generis humani, quae ex maris et feminae coitu oritur’. This is called the chief end of marriage, to which ‘mutual aid and assistence’ and the ‘remedium concupiscentiae’ are subordinated as less essential purposes!

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rationalistic conception of married love as essentially a ‘blind passion’ was especially prejudicial to a correct insight. When this individualistic rationalism found its way in Protestant ethics there was of course no longer any possibility of a really Christian notion of married love as the most intense moral bi-unity. Symptomatic is the utterance recorded by P. Kluckhohn¹ of the methodist preacher William Whitefield (1714-1770), who boasted that in his proposal of marriage there had been no question of love: ‘God be praised, if I know my own heart a little I am free of that foolish passion which the world calls love’. This shows how far the rationalistic utilitarian spirit of the Enlightenment had penetrated under the guise of Puritan piety².

1 Die Auffassung der Liebe in der Literatur des 18. Jahrh. und in der deutschen Romantik (Halle, 1922) p. 12.

2 There is no doubt that at first the idea of the sinfulness of sexual love as such prevailed in Puritanism and that its connection with a rationalistic utilitarianism was due to the influence of the Enlightenment. However, Marianne Weber is right in saying (op. cit. p. 289) that Puritanism did not stop at a utilitarian view of marriage. On the contrary, it was, as she shows, precisely in these circles that the Biblical conception of the internal nature of marriage as a love-union between husband and wife came strongly to the fore.

The conception of the marital relationship under the contractual viewpoint in canon law and in the Humanistic doctrine of natural law.

In the individualistic Humanistic doctrine of natural law the genetic juridical form of the marriage bond was absolutized. This resulted in a denaturation of this natural community to a contractual relationship giving rise to mutual iura in rē, viz. the right of using one another's body³. On the other hand, the contractual viewpoint was not consistently applied as long as one held to the traditional conception of marriage as a permanent union which cannot be dissolved by mutual agreement. This conception was not seriously attacked before the time of the Enlightenment.

The juridical view of the matrimonial bond as a contract giving rise to iura in rē was already developed in detail in canon law. But here the contractual viewpoint was not related to the

3 Cf., e.g. Hugo de Groot, Inl. H. Rechtsgel. I, 5, § 1. Heineccius, El. jur. civ. tit. Inst. de Nuptiis, § 146, Gronovius, Ad Grotium de Jure Belli ac Pacis II, 5, 8.

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essence of this institution, but only to marriage ‘in the state of becoming’. In this restricted sense, as the ‘matrimonium in fieri’ (not in esse), the marriage contract was viewed as the source of a real right of husband and wife to each other's body and the mutual tradition and acceptance of this right was related to the purpose of procreation as its ‘causa’¹. Apart from its contractual source the right mentioned was considered to be essential to the matrimonial bond.

Thus the Spanish canonist Thomas Sanchez explicitly taught that the essence of marriage is found in the ‘traditio corporum’, by means of which each of the partners obtains the ownership of the other's body². Kant, too, was unable to free himself of this view. This is all the more remarkable because in his conception the Humanistic law of nature (‘Naturrecht’), developed under the primacy of the science-ideal, was turned into a law of reason (‘Vernunftrecht’), in which the personality-ideal is given priority. He even detaches the marital relationship from the procreative purpose and exclusively relates it to mutual subjective sexual enjoyment. Hence his crude definition of the marriage bond as ‘the union of two persons of different sexes for the life-long mutual possession of each other's sexual qualities’³.

1 Can. 1081 2: ‘Consensus matrimonialis est actus voluntatis quo utraque pars tradit et acceptat ius in corpus, perpetuum et exclusivum, in ordine ad actus aptos ad prolis generationem’.
Can. 1111: ‘Utrique coniugi ab ipso matrimonii initio aequum ius et officium est quod attinet ad actus proprios coniugalis vitae’.

2 Sanchez, Disp. de sancto matrimonii sacramento libri decem (Venet. 1612) 1. 5 disp. 10 nr. 2: ‘Matrimonium enim essentialiter consistit in mutua corporum traditione, qua uterque constituitur dominus alterius corporis, ad quod dominium intrinsece consequitur ius et potestas utendi illo corpore’.

3 Metaphysik der Sitten, Rechtslehre, § 24: ‘Die Verbindung zweier Personen verschiedenen Geschlechts zum lebenswierigen wechselseitigen Besitz ihrer Geschlechtseigenschaften.

Reaction in post-Kantian German Idealism in favour of the conception that marriage is a love-union between husband and wife. The Romantic ideal of ‘free love’ versus the institutional character of marriage.

Not before post-Kantian German Idealism did the immoral character of this conception become apparent under the influence of the ascription of absolute supremacy to the Humanistic personality-ideal. And immediately the love-relation be-

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tween the conjugal partners found recognition as the essence of the marriage bond, in direct contrast with the earlier one-sided juridical view.

But now the institutional character of marriage was seriously in danger of being overlooked. For, in an irrationalist-dialectical way, married ‘love’ was considered as a free, subjective higher feeling in which ‘nature’ and ‘freedom’ are dialectically united without any binding to a general norm. Especially in Romanticism this view resulted in the glorification of the ideal of a love that should enjoy life in absolute freedom. This conception implied an explicit opposition to the structural principle of the conjugal bond, to marriage as an institution. The strongly aestheticistic character of the morality of men of genius current among the younger Romantics¹ did not belie its irrationalistic nature, although its protest against the traditional civil-juridical conception of marriage was partly justified.

In Friedrich Schlegel's novel ‘Lucinde’ (1799) this Romantic ideal of free love, realizing itself in an high-minded harmony of sexual sensuality and spiritual surrender, found its most prominent literary expression. Fichte, too, though by no means a Romantic, arrived on account of his actualistic view of sexual love at a conception of marriage which was incompatible with the institutional character of this bi-unitary bond. In a typical functionalistic manner he thought he could deduct the entire essence of marriage from the bare moral notion of love: ‘If a woman surrenders to a man out of love, the necessary result in a moral sense will be a marriage... The mere concept of love implies that of marriage in the sense indicated’². This not only means ignoring the entire external civil juridical aspect of the marriage-bond, but essentially also its internal juridical side. In his ‘Grundlinien der Philosophie des Rechts’ Hegel tried to remove this error by considering a juridical-moral kind of love as the essence of marriage. Thus the ‘transitory, capricious and merely subjective’ nature inherent in love as ‘Empfindung’ (= sensation) should give way to an ideal restriction³.

1 Cf. volume I, 2, p. 462 ff.

2 W.W. IV, 330: ‘Ergibt sich das Weib aus Liebe einem Manne, so entsteht dadurch moralisch notwendig eine Ehe... Im bloszen Begriff der Liebe ist der der Ehe, in der soeben angegebenen Bedeutung enthalten’.

3 W.W. VIII (Berlin 1833), 116, 223.

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Hegel must be credited with again emphasizing the normative determination of married love, not only in opposition to the rationalistic-Humanistic conception, which was chiefly naturalistic-psychologistic, but also in contrast with the Romantic ideal of free love.

However, he no more grasped the internal structural principle of the marriage union than did those thinkers whose conception he tried to correct. His view of this bond remains dialectical-functionalistic, misinterpreting the supra-modal character of its structural law founded in the plastic horizon of our experience.

The recent reaction in Roman Catholic circles in favour of the recognition of the ‘primacy of love’. The ‘new tendency’ and the encyclical ‘Casti connubii’ (1930).

In Roman Catholic circles the earlier scholastic conception of marriage has never been explicitly abandoned. It is, however, highly interesting to find that here, too, an at least implicit reaction has set in which starts from the primacy of love in this community. At the same time it sharply opposes the misinterpretation of married love as a transient sensual-erotic inclination.

This ‘new tendency’, whose most gifted representative is Dietrich von Hildebrand¹ is important also because it runs counter to the older universalistic trends. It emphasizes the absolutely peculiar internal character of the marriage bond as the constant love-union between husband and wife.
In his Die Ehe (published in 1929) Hldebrand writes as follows: ‘Love is the primary meaning of marriage according to the creation, just as its primary purpose according to the creation is to produce new human beings. When compared with this primary meaning its function for human society, and certainly its importance for the State, is entirely subordinate. This will become particularly clear to us if we call to mind the peculiar nature of married love...’².
I do not overlook the fact that Hildebrand's view of the essence of married love as an I-thou-union, (as such far superior to a mere

1 Cf. A.W. Hoegen, Over den zin van het huwelijk (diss. Nijmegen 1935), pp. 209 ff.

2 D. von Hildebrand, Die Ehe (München, 1929), p. 7: ‘Die Liebe ist der primäre Schöpfungssinn der Ehe, wie die Entstehung neuer Menschen ihr primärer Schöpfungs zweck. Ihre Funktion für die menschliche Gesellschaft, gar nicht zu reden von ihrer Bedeutung für den Staat, sind demgegenüber ganz untergeordnet. Dies wird uns insbesondere deutlich werden, wenn wir uns die Eigenart der ehelichen Liebe ins Bewusztsein rufen...’.

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‘We-ommunity as the State or the nation) betrays a strong influence of modern personalist and existentialistic tendencies in immanence-philosophy.
On the other hand, from a radical-Christian standpoint, we must raise serious objections to many essential parts of his views.
Let me mention only some critical points. Hildebrand hypostatizes the masculine and the feminine principle in creation to a metaphysical difference of essence. This leads him to detaching the inner meaning-structure of married love from its temporal biotic foundation in the organic difference between the sexes. This is a metaphysical speculation, which, of course, does not become more acceptible by a typically Roman-Catholic concentration of the metaphysical feminine principle in the Holy Virgin¹. His conception that the individual persons in marriage have been interwoven by the conjugal bond into an actual ‘I-thou’ union is essentially dependent on Buber's personalism. It results in the view that this union transcends all other temporal societal relationships since it implies a central contact between husband and wife, a real meeting in the central sphere of existence. This means an absolutization of the marriage bond which in my opinion is incompatible with the Biblical standpoint.
We have had to reject the Thomistic teleological-metaphysical axiology, but we can no more accept its modern irrationalistic- romanizing modification in Hildebrand's thesis: ‘A community ranks higher in proportion to the good which determines the scope of its meaning, or closely connected with this, in proportion to the depth of its point of unity in the human personality, and to the extent to which love plays an essential part in it, and finally in proportion to the directness with which the unifying principle is concerned with our supra-natural destination². There is also the specifically Roman Catholic distinction between marriage as a ‘natural union’ and as a ‘sacrament of grace’ which is unacceptable from the Reformatory Christian standpoint.
But in spite of all these serious objections it may be gratefully acknowledged that on many points the writer voices the Biblical-Christian conception of the conjugal bond as a typical and incomparable institutional love-union between husband and wife, as the expression of the eternal love of Christ towards the Church as His Bride.
In this respect he implicitly contradicts the traditional scholastic theory. This attitude also enables him to oppose the subjectivistic romantic view of married love with its revolutionary consequences.

1 Op. cit. p. 11 ff.

2 Op. cit. p. 42: ‘Eine Gemeinschaft steht um so höher, je gröszer das Gut ist, das ihren Sinnbereich bildet oder was damit eng zusammenhängt, je tiefer die Stelle in der Person ist, an der der Einheitspunkt liegt, je gröszer und wesenhafter die Rolle ist, die die Liebe in ihr spielt und endlich je unmittelbarer das einigende Prinzip mit unserer übernatürlichen Bestimmung zu tun hat’.

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Hildebrand lays due emphasis on the fact that the tendency to be indissoluble as long as life lasts is naturally implied in the very meaning of marriage as the closest love-union¹. The traditional scholastic theory had lost sight of this through seeking the only guarantee for the institutional character of this bond in the legal sphere. Hildebrand has also sharply realized that the ‘institution’ as such retains its character as a law.
Real married love indeed postulates a union for life in which the temporal existences of the partners are interwoven into the closest possible temporal unity, which is not possible without conjugal fidelity.
In virtue of the divine world-order this love necessarily appeals to an internal juridical relation. But the latter is placed under the leading of love and not vice versa. If this love is lacking, the internal conjugal union is really absent. In the second volume we have shown in detail the modal difference and inter-modal meaning-coherence between the sexual eros, as a biotic drive and psychical feeling, and the moral agapè, as normative married love. Of course it is the latter which is meant by the apostle Paul when he stresses the duty of the marriage-partners to love each other². In fact this was not denied by the older Roman Catholic moral philosophers³. But under the influence of the Aristotelian psychology, love was here primarily conceived of as an affect of pleasure in a corresponding good, originating in a sensory knowledge of this good, which rouses the sensual appetitive power.
‘Spiritual love’ - subject to norms - was held to derive from ‘spiritual knowledge’ through the effect of reason (νοῦς) on the appetitive faculty. This resulted in an elimination of the modal sphere-sovereignty of love, as the nuclear meaning of morality. Love was levelled down to a general analogical concept comprehending every natural appetitive tendency to realize a good⁴. Thomas' conception of ‘spiritual’ love was no more modally defined in its meaning than his view of sexual eros and his concept of the good.
In opposition to this, the modern trend has maintained the specific meaning of love in contradistinction to sensual passion.

1 Op. cit. p. 36: ‘Welche Oberflächlichkeit nicht zu verstehen, dass die Tendenz auf Unauflöslichkeit aus dem Sinn der Ehe als engster Liebes-gemeinschaft von selbst hervorgeht, sondern sie aus Nützlichkeitsgründen ableiten zu wollen’. [How superficial to infer this tendency of marriage towards indissolubility from utility-grounds and not to understand that it is a consequence of the meaning of marriage as the closest love-union.]

2 Cf. Ephesians 5:25-33.

3 Cf. Cathrein, Moralphilosophie II (6e Aufl. 1924), p. 428.

4 Cf. Thomas Aquinas, Summa Theologiae I, 2 ae, q, 26-28. In its widest sense Thomas defines love as: ‘aliquid ad appetitum pertinens, cum utriusque objectum sit bonum’ (q. 26 art. 1). This definition explicitly comprises even the natural ‘appetite’ (taken in the Aristotelian sense) of a heavy object ‘ad locum medium’, as ‘amor naturalis’!

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In a short time the new tendency gained ground in Roman Catholic circles, so that, to a certain extent at least, it found official recognition in the well-known encyclical Casti Connubii, issued by pope Pius XI on the 31st of December 1930. This encyclical frankly assigned ‘primacy of honour’ (principatus nobilitatis) to married love in a Christian marriage. All this was in striking contrast with what happened in Protestant circles two years later, when the moral theologian Emil Brunner, published his book Das Gebot und die Ordnungen, in which love, if viewed as the basis of marriage, was called a ‘sandy ground’ and marital love was identified with erotic inclination!

The internal deepening of the marriage bond by the formation of a family.

After having gained a sufficient insight into the inner structure of the marriage-bond we shall now try to deepen our insight into its inner coherence with the family. According to the divine order of creation marriage is intentionally adapted to the family relationship. In the light of our previous explanation this means that marriage is enriched and deepened by its natural interweaving with the family relationship, and conjugal love is deepened and enriched in parental love. How is this to be understood?

We have rejected the opinion that in conjugal and family relationships the central I-ness of human personality is interwoven with that of the other members of these communities, and is only thereby formed and deepened.

The central religious interweaving of the human egos is independent of temporal bonds, although the converse is not true.

There is no doubt that the selfhoods of the conjugal partners are for all eternity interwoven in the new root of life, Christ Jesus, if they are really united in Him. This is the religious fulness of meaning of marriage. But in this religious interwovenness Christian marriage partners become aware of belonging to one another, not as husband and wife in the temporal marriage bond¹, but as children of one Father in Christ Jesus. Here on earth they may only belong to each other ‘as though they did not’². For temporal ties, even the most intense in this life, are perishable; the invisible union with Christ is eternal.

1 Cf. Matth. 22:30; Mark. 12:25.

2 Cf. 1 Corinth 7:29-31.

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But this religious union should find its typical expression in the temporal bond of the marriage-partners.

When the marriage bond has expanded into a family relationship the former is enriched and deepened in its meaning by its close interweaving with the latter, because its bi-unity in conjugal love has produced a unity in plurality.

In the conjugal union, as such, the expression of the personality in the temporal existence of each of the married persons is enriched, enlarged and completed by that of the other. A woman becomes ‘wife’ in the full sense of the word only in the conjugal union with her husband, and vice versa. And the expression of the personality in the bi-unitary bond assumes a wider and deeper perspective in the multi-unitary bond of the family.

Yet it is not possible to deduce the essential internal structure of the marriage-bond from the ‘cosmic purpose of propagation’, as was done by Thomas Aquinas. This traditional universalistic construction, amply discussed above, necessarily results in an eradication of the boundaries between the marriage union and the family relationship. This is evident from Thomas' statement that posterity is essential to the marital bond¹. Such a construction must naturally restrict itself to a deduction of the general institution of marriage from the purpose of procreation. For it cannot be denied that individual marriages that remain childless still retain their character as conjugal bonds. But the structural law and the subjective marital bond subjected to it can never be separated from each other, so that in its application to the factual relationships Thomas' view leads to constructions of a very artificial and internally contradictory character. We need only mention his explanations of the relation between the individual act of sexual uniting and the ‘objective procreative purpose’. Thomas concedes that sexual intercourse in a barren marriage, or in general such which is not carried on with a concrete procreative intention, is morally permissible. But then it will not do to seek the inner essence of the conjugal institution in the aim of propagation².

Then the internal structure of the marriage bond, in its difference from the family relationship, irresistibly forces itself upon us.

1 ‘Constat quod proles est essentialissimum in matrimonio’ (4 Sent. dist. 31, q. I, a. 3, c).

2 Thomas Aquinas conceives the procreative purpose only as the essential purpose of marriage in an ‘objective’ institutional sense.

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The fundamental difference between animal mating and the human marital bond is that the former does not occur within a communal relationship which in its inner nature is independent of propagation. As soon as the animal offspring is no longer in need of the parental care, or the mating lacks a procreative effect, the couple separates.

The marriage bond on the contrary, normally embraces husband and wife for life, independent of the natural procreative end.

No ‘rational procreative purpose’ can justify the sexual consummation of marriage in an ethical sense, but only married love sanctified in Christ. This love (and not a utilitarian kind of thought) is the true regulator and educator of married sexual life towards temperance and chastity.

In the divine order of creation, marriage is the only ordered way to form a family; marriage and family are mutually adapted to each other. But they retain their own peculiar internal structure and value. If this is ignored or misinterpreted, our marital morality will result in a labyrinth of contradictions of our own creating, and the lucid simplicity of the divine ordinance¹ will be obscured.

1 This word is taken in the Biblical sense, cf. Psalm 119:91, of the Authorized (King James) Version.

The internal structure of marital authority.

Only the insight into the structural principle of the marriage bond as a whole enables us to understand the internal nature of marital authority. The traditional defenders as well as the individualistic opponents of the latter have so very often fundamentally misinterpreted it. This authority is not at all qualified by its external civil juridical function. In this latter function e.g., the husband's authorization is required for the validity of legal acts of the wife, and the husband has the management of his wife's separate property, as long as civil law does not recognize the wife's complete competence to perform legal acts².

No doubt this civil juridical function is not completely separate from the internal structure of marital authority, but it remains something formal and external with respect to the latter. A fortiori this internal structure, as such, has nothing to

2 In English law all the wife's property is separate, but ‘restrained from anticipation’, so that she cannot alienate it, nor anticipate the income of it.

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do with the historically founded form of the manus mariti in old Roman jus civile, which individualistic opponents of marital authority often consider as its objectionable prototype.

The Roman legal concept of agnatic patrician ‘familia’, in which the wife was included only by passing into manum mariti, merely comprised the juridical aspect of an as yet undifferentiated societal relationship. This was the domestic community of the pater familias, into which the marital and family bonds proper were only enkaptically interwoven. The ‘family’ itself was part of the patrician gentilicial community, which, as we shall see, was not founded ‘in nature’ either. In the later juridical development the union of the conjugal bond and the agnatic domestic community as represented by the ‘manus’ marriage, was gradually broken. As a consequence the old ‘manus’ entirely disappeared from the civil juridical aspect of the Roman marriage.

The ‘manus mariti’ in its autocratic semi-political, semi-proprietary structure, in which the husband even had a jus vitae ac necis assigned to him with respect to his wife, cannot be inferred from the internal structural principle of the marriage bond. This authority was only connected with natural marriage in an external enkapsis. The internal structure of marital authority can only be understood from the typical love-union between the conjugal partners in which, according to the divine order of creation, the husband is ‘the head of the wife’. He has to lead her, but by no means to dominate her, because the female part in the bi-unitary bond is perfectly equivalent (though not equal) to the male element and ought to be fully recognized as such. The authoritative relation in its normative internal structure does not in any way detract from the intensity and closeness of the love-relations between husband and wife. On the contrary, marital authority plays an essential rôle in them¹.

1 Cf. Ephesians V, where Saint Paul strongly emphasizes this rôle of marital authority in the love relationship.

Marital authority and the normal emotional aspect of matrimony. Can psychology speak of ‘normal’? Cultural influences on female emotional life.

It cannot be denied that normal female emotional life in the marital bond wants to find support and guidance in the husband, and is disappointed if they are lacking. Also in a man's normal

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affective life the instinctive impulse to support and lead corresponds to these female needs.

On a functionalistic standpoint the question may of course be asked: what is a normal male and female life of feeling? Then the deviations from what we have explained above are treated as phenomena of perfectly the same value as those corresponding to this standard.

But then it should be remembered that it is no longer possible to speak of the structure of male and female feeling; for these structures in the psychical aspect of human existence cannot be approached apart from the normative structural functions. They are included in the act-structure of a human body though, in a restrictive or closed sense, they also function in its lower animal structure qualified by instinctive psychical impulses. No doubt there occur female feelings in men, and male feelings in women. But this cannot be established without a standard for male and female feeling. If we eliminate the coherence between the psychical and the later normative structural functions, all the human individuality structures in the feeling-modus are levelled out. Then we are only left with the modal-functional coherence between the most heterogeneous psychic phenomena.

It is no doubt correct to say that in the transcendental direction feeling in man and woman is indissolubly bound up with its historical formation in the different cultural periods. A number of psychical differences between the sexes depend on the cultural influences of many successive generations. Modern psychology has rightly set these facts in the light. But this state of affairs is exactly an indication of the indissoluble coherence between the psychic function of feeling and the normative structural functions in human existence. These facts can never be argued against the constancy of the internal-structural principle in the emotional relations between husband and wife. For this principle is already pre-supposed in the historical formation of male and female feeling in marriage.

Cultural education cannot change the male structure into a female one, nor the other way round. Only a fundamental encroachment upon the biotic structure of the human body would be able to accomplish such a structural alteration because sex difference has a typical biotic foundation. As long as psychology continues to speak of a male and a female feeling-structure, it will be in need of a normative structural principle which itself is independent of the concrete historical development.

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To point out effeminacy in a man's emotional life, implies a normative structural principle lying at the foundation of this statement.

The structural authoritative moment in the internal juridical, aesthetic, and social (intercourse) functions of the conjugal bond.

The structure of authority in the marital community also has its internal juridical aspect. Even in the best of marital relationships there may occur a difference of opinion about certain matters. Yet the partners will have to come to a decision if their union is to remain intact. According to the internal structural principle, the juridical competence to make a decision belongs to the husband as the head of the conjugal bond.

But the very structure of marital authority does not permit its autocratic exercise. Marriage is a bi-unitary community under the typical leading of conjugal love; it is not a ‘State in miniature’. That is why political forms of government such as monarchy and democracy cannot be transplanted in the internal domain of matrimony. A wife ought to be co-responsible for such decisions. In internal domestic affairs she is entrusted with the daily management of the household, and not her husband. But also outside of the narrow circle of household affairs the internal structure of the marriage bond requires a loving consultation between the marriage partners with full respect for the internal competence and responsibility of the husband as the ‘head’.

Civil law, though fundamentally different in character from the internal matrimonial law, should, nevertheless, respect this internal structure of marital authority insofar as the latter also functions ‘enkaptically’ in the civil juridical relations.

From this point of view it is not recommendable, in case a married couple differ in opinion, to give the civil judge an unrestricted competence to decide.

In this way, the civil legislator would elevate the internal disturbance of the matrimonial union to a civil juridical rule. Even from a pedagogical point of view this is a dangerous attitude. Of course, when the internal bi-unitary bond in marriage has been subjectively realized, be it in an imperfect and sinful way, the introduction of the civil judge as the supreme power of decision above the marriage partners will not have any practical sense. But this bond may be disturbed to such a degree that with regard to internal marital affairs the marriage part-

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ners are opposed to each other as parties in a civil law-suit. Only in such cases may the view arise that an impartial judge must be entrusted with the decision. The question in how far a task is to be ascribed to the civil judge in this situation will be discussed in a later context. We shall then try to find the internal boundaries set to civil law in the enkaptic structural interlacements within the juridical law-sphere.

*

The internal structure of marital authority is also expressed in the aesthetical law-sphere. The original matrimonial harmony presupposes the complete concord of the male and female elements in the conjugal relations, in accordance with their own structural character. The wife should not play the typical leading part of the husband. If she does take the lead in a general sense, the situation will excite our aesthetic displeasure. The consideration that perhaps the husband is a weakling and that this fact necessitated the wife to take the lead, cannot obviate our impression of disharmony.

The structure of authority also expresses itself in the social and in the lingual aspect. The positive, historically founded social and lingual forms of intercourse between husband and wife differ, of course, according to place and time. The forms used at the time of the patriarch Abraham cannot do duty in our days. The utterance of St. Peter about this question in his first epistle¹ does not mean to contradict this state of affairs. But the structural principle of marriage, which is not dependent on the historical development, should find expression also in the internal social² and lingual relations. These relations ought to be very tender and close, but the leading position of the husband should constantly be given expression in them, which is something different from the required mutual respect for each other's person. As soon as in the internal marital union the social and the symbolic respect for the husband as the head of the community has been lost, we are confronted with a subjective infringement of the internal vital law of marriage.

1 Ch. 3:6.

2 This term is meant here in the sense of the modal aspect of social intercourse.

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The original biotic foundation of marital authority, which cannot be interpreted as its ground of justification.

In the last instance marital authority has its typical foundation in the aspect in which marriage itself is originally founded, viz. the biotic sphere. The leading rôle of the husband in sexual intercourse, and the passive receptive part of the wife form the original basis of the meaning-individuality of marital authority in the retrocipatory direction of cosmic time. In the Middle Ages this functional-biotic basis of marital authority was misconceived in many respects. This was due to the influence of primitive biological notions derived from Aristotle about the genesis of the female offspring in consequence of a defeciency in the natural process. Nature was supposed to show an androcratic tendency in the procreative process. As a consequence the wife was thought to be essentially imperfect and by nature subjected to the husband. For this reason Thomas Aquinas calls woman ‘mas occasionatus’ according to her genesis, which is in perfect agreement with Aristotle's views. As a marriage partner she was supposed to be only ‘aliquid viri’ and not ‘civis simpliciter’¹. Apart from these Aristotelian and medieval misconceptions, it stands to reason that in the light of our cosmonomic Idea the ‘justification’ of marital authority cannot be found in its original biotic foundation as such. Marital authority has no other justification than the divine ordinance revealed in the normative structural principle of this community as a whole. On the Christian standpoint there can be no question of a ‘rational justification’ in the Platonic and Aristotelian sense, or in that of the Humanistic theory of natural law.

The divine order of creation is not grounded in ‘reason’, but inversely human ‘reason’ is grounded in the divine order. Theoretic ‘reason’ can only try to trace the structural principles that God has ordained for human society in His temporal world-order and which alone enable us to experience the factual societal relationships in their different inner nature. Apart from the structural principle of the marital bond, philosophy will seek in vain for a tenable justification of the husband's authority in its typical character.

1 Cf. A.W. Hoegen, op. cit., p. 131, with the literature and sources mentioned there.

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The structural principle should also be the ὑπόϑεσις of ethnological researches after marital relations. The interpretation of the facts in accordance with their meaning-structure and the positivistic attitude in science.

This structure cannot be ignored with impunity neither in practical social life nor in social science and philosophy.

Ethnological research after the internal marital conditions in different primitive societies should also be based on this structure as its ὑπόϑεσις. Then we shall avoid the error of confounding the genuine marital relations with societal relationships of an entirely different structure and we shall no longer run the risk of repeatedly misinterpreting the facts.

At this point the supposedly neutral positivistic conception of science will accuse our standpoint of intruding ‘metaphysically founded evaluations’ into the investigations of the ‘facts’. At a deeper level this fundamental contrast hides a basically different view of experiential reality. ‘Facts’ can only be conceived in their structural meaning. If the attempt is made to examine the facts of societal relations apart from their normative structural principles on account of a naturalistic or positivistic historicist prejudice, the result will be a falsification of the data.

Ethnological research after conjugal and family relations is concerned with subjective phenomena within realized supra-arbitrary institutions, which cannot be understood apart from their internal structural principle. Neither the contradictory notion of merely arbitrary (‘empirical’) norms, nor that of constructive ‘ideal types’ as applied by Max Weber, can replace the genuine structural principles of matrimonial and family relationships. The nominalistic prejudice in positivistic science inevitably leads to a complete eradication of the fundamental boundaries between the various structures of human society.

The misinterpretation of the so-called matriarchal phenomena in the older evolutionist ethnology.

The older naturalistic evolutionist tendency made the most consistent attempt to eliminate the structural principles of marriage and family as the hypothesis of ethnological research. But it was exactly this trend which indulged in the most phantastic interpretations of the facts. Its evolutionistic construction of the development of marriage and family life was presently popular-

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ized by the social democratic theorists Engels and Bebel. It was founded on a complete misunderstanding of the so-called matriarchal phenomena.

This misconception had been introduced into ethnology by Lewis H. Morgan, who was strongly influenced by the Swiss law-historian J.J. Bachofen, though the latter was a romantic thinker rather than a Darwinian evolutionist. Morgan's evolutionistic theory has by now been generally rejected as unscientific. But we may establish that he would never have construed such erroneous conceptions from a defective material of ethnological facts, if he had not first purposely eliminated the basic structural principles of marriage and family.

The theory of matriarchy was propounded by Bachofen in his famous work Das Mutterrecht, eine Untersuchung über die Gynäkokratie der alten Welt nach ihrer religiösen und rechtlichen Natur (Stuttgart, 1861). He tried to prove that human sexual intercourse had started with an initial stage of absolute promiscuity. For this thesis he adduced the ‘matriarchal phenomena’, already found among various peoples of antiquity (e.g., the Lycians). These peoples computed kinship, and often the right of inheritance, from the mother and not from the father. Bachofen explained this by assuming that originally sexual relations were so irregular that the family was formed with the mother for its centre and not with the unknown father.
From such conditions original matriarchy or gynarchy developed since the invention of agriculture, which must be ascribed to women, so that the original family was not patriarchal but matriarchal. Patriarchy was the next stage in the development of human family life.
Bachofen set forth this view in the mythological symbolic forms of late Romanticism. His theory was completely rationalized and systematically elaborated in a Darwinist sense by the American ethnologist Lewis Morgan.
According to the latter the human family passed through the following stages of development: 1) unlimited promiscuity of sexual intercourse; 2) the kinship family (in which only sexual intercourse between ascendants and descendants is prohibited); 3) the ‘punalua family’ (sexual intercourse is forbidden between brothers and sisters as well; the women of one half of the tribe are accessible to the men of the other and vice versa; group-marriage); 4) matriarchal ‘syndasmic’ family (the initial stage of individual marriages, polygamy, uncertainty about the father); 5) patriarchy, a polygamous family; 6) a monogamous individual marriage.
This constructive evolutionist theory (criticized already in its palmy days by distinguished ethnologists like C.N. Stärke, E. Westermarck and E. Grosse) has been completely refuted by the ethnological researches of Father W. Schmidt, R.J. Swanton, X.R.H. Lowie and others, so that it can no longer be taken seriously. In his book Die Stellung der Pygmäenvölker in der Entwicklungs-

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geschichte der Menschheit (Stuttgart, 1910), which should be consulted with a critical mind, Schmidt shows that with the pygmean peoples monogamous marriage is predominant. This is all the more important as the pygmies are among the comparatively oldest extant representatives of the human race¹. This fact has at any rate been established, however much opinions may differ with regard to the ‘problem of the pygmies’. As for North-America, the territory which was supposed chiefly to supply the material for Morgan's theory, R.J. Swanton showed the absolute untenability of the matriarchy and promiscuity theory as early as the year 1905². And the well-known American ethnologist R.H. Lowie in his book Primitive Society explicitly states: ‘Sexual communism (after the manner of the “group-marriage”) as a condition replacing individual marriage, is nowhere to be found at present. And the evidence of its earlier occurrence must be rejected as insufficient’³.
With reference to the bilateral family the same author remarks: ‘In a word, the bilateral family (i.e. the family consisting of husband and wife and their children) is an absolutely universal unit of human societal life’.

It was particularly the introduction of the ‘culture-historical’ method in genetic ethnological research which caused the complete defeat of the older constructive evolutionist theory. For it put an end to the arbitrary grouping of facts and their interpretation according to an a priori evolutionist scheme.

1 Cf. W. Koppers, Ehe und Familie in Handwörterbuch der Soziologie, hrg. v. A. Vierkandt (Stuttgart, 1931) p. 112. Compare also the critical remarks made by F. Graebner in his Methode der Ethnologie (Heidelberg, 1911) p. 39 note 1 and p. 124 on Schmidt's book.

2 The Social Organisation of American Tribes in American Anthropologist, N.S. VII, 663-673.

3 R.H. Lowie, Primitive Society (1st ed. New York 1920; 2nd ed. 1929, pp. 58-59).

The ‘Kulturkreislehre’⁴ and the normative evaluations of married and family life among primitive peoples.

The culture-historical trend in modern ethnology is represented by two schools, viz. the so-called ‘Kulturkreislehre’ and the so-called critical school of the American scholar Franz Boas.
The point of difference between these schools concerns an old question in ethnology, namely whether or not the occurrence of similar cultural elements with different primitive peoples is to be ascribed to derivation. Bastian and his followers answered this question in the negative. According to him the different peoples have produced the ‘elementary principle’ of their culture, for instance of their technical level of development, their armament, their cult

4 I.e. the doctrine of ‘cultural circles’.

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etc., independent of one another. Ratzel, on the other hand, tried to prove that the propagation of similar elements of culture is to be explained from emigration of peoples and from derivation. He set ethnology the task to trace the origin of the different primitive cultures. Ratzel himself, however, remained entangled in a naturalist milieu-theory which tried to understand the cultures in the first place as products of geographical factors.
This naturalist viewpoint was broken through when the famous investigator of Africa, Leo Frobenius, in his book Ursprung der Afrikanischen Kultur (1898) applied Ratzel's idea of derivation to entire cultures and began to avail himself of a culture-historical method. Thus he became the founder of the so-called ‘Kulturkreislehre’ as it is adhered to by students like Ankermann, Fr. Graebner, Eduard Hahn, W. Foy, Father Wilhelm Schmidt, W. Koppers and others. The centre of this school is Vienna, but it also has its adherents in France. The ‘Kulturkreislehre’ wants to trace the genealogical coherence between the so-called ‘cultural circles’ which it supposes it has established. According to its adherents ethnology belongs to the science of history. Together with the science of primeval history, it should contribute to the description of world-history by providing a scientific picture of the earlier developmental phases of humanity.
The followers of Boas (Lowie, Marett, Swanton, Goldenweiser and others) agree with the ‘Kulturkreislehre’ in the acceptance of historical coherences on the ground of the occurrence of similar cultural elements with different primitive peoples. But they reject the method of so-called complex formation which results in the construction of cultural orbits embracing even peoples that are completely separated geographically. This is the point where doubtless Bastian's view of the independent origin of the ‘elementary principle’ of the different cultures shows its influence.
The ‘Kulturkreislehre’ has undubitably devised an impressive conception of the developmental coherences of primitive cultures, although there are many hypothetical elements in its genealogical construction, especially with respect to the delimitation of the ‘cultural circles’. Schmidt's view according to which the pygmaean peoples are to be considered as the original representatives of the human race, remains highly problematical. In addition, in a later phase of the development of his doctrine he was obliged to abandon certain fundamental theses, as, for instance, that concerning the complete lack of totemistic organization with the pygmaean peoples.
Besides it must be observed that, notwithstanding the acceptance of the culture-historical method, the one-sided method of causal explanation of whole societal institutions has continued to play a considerable rôle in this doctrine. Thus, in a rationalist way, Koppers tried to explain matriarchal law and totem belief from merely economic factors.
From our own standpoint the main objection to this genealogical doctrine of the cultural orbits concerns its tendency to level out the fundamental difference between ‘closed’ and ‘opened’ cultures in-

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sofar as it also includes the latter in the programme of its ethnological researches. For its method of defining the ‘cultural orbits’ (‘Kulturkreise’) according to their spatial areas of validity and their order of succession in the historical order of time remains entirely oriented to the primitive circles of culture.
According to its temporal criterion ‘mixed and contact cultures’ are invariably of a secondary nature everywhere, and therefore of a later date than their two cultural components which are supposed to be of a ‘primary character’¹. This thesis implies that the ‘cultural circles’ first developed in complete isolation before getting into historical contact².
This may be true for primitive closed cultures whose mutual contact and fusion generally does not elevate them above a ‘closed cultural level’ although they show different stages of development and a relative advance in technical industry, in societal forms, etc. But if the same method were applied to cultures that have been taken up by the trend of expanded and deepened cultural development, this view would be false and unhistorical. Not any of these cultures have been able to develop from within the seclusion of their isolation before they came into contact with the others. In other words, only in the mutual contact with the others could the peculiar character of each culture be developed³. Here lies the fundamental difference between historical science proper and a genetic ethnology which follows cultural scientific methods: the former can do nothing with ‘cultural orbits’ defined according to the ethnological viewpoint, because they are essentially of an isolated and static character (even the so-called secondary types).
These ‘Kulturkreise’ lack the typical deepened individuality revealed only in disclosed cultural development. The seven great ‘cultural orbits’, analysed by W. Schmidt and W. Koppers in their standard work Völker und Kulturen⁴, are irrelevant and useless from a really historical scientific viewpoint.
The ethnological conception of time entirely lacks the deepened meaning of the time of disclosed historical development. In the latter the succession of cultures can never be an exterior order of prior

1 Cf. Graebner, op. cit. p. 127, and p. 140 (cf. Ratzel, Anthropogeographie II, p. 651 ff) and W. Schmidt in Völker und Kulturen I (1924) p. 69.

2 Cf. Schmidt, op. cit. p. 72 ff. Compare, however, Graebner, op. cit. p. 159.

3 Cf. Volume II, part 1, Ch. III § 5, pp. 273 ff. In the ‘Kulturkreislehre’ the influence of Frobenius' biologistic conception of development is undeniable to my mind.

4 viz. 1) the exogamous-monogamous orbits; 2) those characterized by exogamy and totemistic sib-organization; 3) those characterized by exogamy together with the equality of husband and wife; 4) the exogamous patriarchal and 5) the exogamous matriarchal orbits; 6) those characterized by free matriarchal legal relations; 7) those characterized by free patriarchal legal relations.

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and posterior, or an exterior mingling of elementary cultural complexes. It always shows interpenetration, overlapping and mutual formation.
Especially Schmidt shows a lack of insight into the fundamental difference between historical and ethnological thought.
This defeciency appears from his rejection of the criterion that historical science proper only has to examine those cultures of which written documents or inscriptions in stone have come down to us¹.
In our second volume we have explained that the historical law-sphere discloses its symbolical anticipatory sphere only in deepened historical development². When the objective symbolical signifying of a cultural development is lacking, there is no certainty at all that the lingual anticipatory sphere in the historical aspect has really been opened, and that in the bearers of this culture the historical consciousness has awakened³. We leave aside the possibility that there may be a reliable (non-mythological) oral historical tradition. But when all these things are absent, even the restrictive development of technical skill⁴ and a more complicated formation of human society⁵ cannot raise cultural life above the rigid restrictive level of civilization.
It is an undoubted fact that the introduction of a cultural scientific method in ethnology has meant a great gain. Once for all the

1 Cf. W. Schmidt, op. cit. p. 40, where he quotes with complete agreement the utterance of Ratzel: ‘Die Zeit ist nicht mehr fern, wo man keine Weltgeschichte mehr schreiben wird, ohne die Völker zu berühren, die man bisher als ungeschichtliche betrachtete, weil sie keine geschriebenen oder in Stein gemeiszelten Nachrichten hinterlassen haben. Geschichte ist “Handlung”! Wie wenig bedeutet daneben Schreiben oder Nichtschreiben, wie ganz nebensächlich ist neben der Tat des Wirkens und Schaffens das Wort ihrer Beschreibung’. [The time is not far when no history of the world will be written without referring to the peoples that up to now have been treated as non-historical, because they have not left any written documents or inscriptions in stone. History is action! How unimportant are writings or the absence of writings in comparison with this essential characteristic. In comparison with action and production, how insignificant is the word that describes them].
Graebner's viewpoint is more critical in this respect. He nowhere denies the difference between ethnology and historical science. Cf. his op. cit. pp. 163 ff.

2 Cf. Volume II, part I, pp. 284 ff.

3 This is not saying that the historian should restrict his researches to the written records, as Fustel de Coulanges did in his Histoire des institutions politiques de l'ancienne France. The results of excavations, etc., may shed a surprising light on the written sources.
Cf. E. Fueter, Geschichte der neueren Historiographie (3rd ed. 1936) p. 564 and 602 ff.

4 E.g., in agriculture, in the construction of tools and arms, etc.

5 E.g., in totem-clans, and in a greater measure of differentiation of the tribal organs.

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idea has been given up that ‘primitive’ peoples (‘Naturvölker’) have no history at all. It is also a gain that this method broke with the constructive evolutionist manner of thought. Quite a different point is the question as to whether different adherents of the ‘Kulturkreislehre’ have sufficiently freed themselves from this evolutionism, and if especially the economic factors are not too much treated as if they influenced societal relations in a natural-causal way. In this connection the very just remarks of the North-American ethnologist R.H. Lowie in his book Primitive Society with respect to such economic explanations are worth listening to¹.
Our objections raised against the ‘Kulturkreislehre’ chiefly referred to the eradication of the boundaries between ethnology and history proper. But we want especially to emphasize the great merits of various adherents of this view (W. Schmidt, Koppers, and others) in their researches after the marriage, family and kinship relations among primitive peoples. These Roman-Catholic scholars seriously tried to base their investigations on the structural principle of these communities as given in the order of the creation². It is true that their characterization of these relationships as ‘Sympathieverbände’ (bonds of sympathy) is still too vague. Perhaps as a consequence of the influence of the traditional scholastic view they approach the internal marriage and family relations among primitive races still too much from their external popular juridical regulations. Nevertheless, these authors have penetrated to the insight that, according to their internal structure, these relationships cannot be conceived apart from their normative structural law but must be qualified as typical love-bonds. And this again and again causes them involuntarily to distinguish between the external and the internal functions of these communities. For a correct interpretation of the facts this is methodologically very important³.
As Schmidt and Koppers maintain the supra-arbitrary structural principles of marriage and family relations, they also point to the fatal influence of some external forms within which these relations have to be realized among the different primitive peoples of the
⁴

1 R.H. Lowie, Primitive Society (1929), pp. 184 ff.

2 On the other hand these investigators handle an extremely undefined conception of the State. W. Schmidt, op. cit. 1. 147, simply identifies the State with the ‘totality of all the purposive organizations’ (die Gesamtheit aller Zweckverbände), in contrast to the ‘sympathetic relationships’ (Sympathieverbände) such as marriage, family and kinship.

3 This does not detract from the fact that in the work of Schmidt we are also confronted with constructive interpretations of the facts, against which Graebner has already warned.

4 According to the ‘Kulturkreislehre’, the temporal order of succession of these cultures is as follows: 1) original primitive cultures (of the simplest and comparatively oldest race); 2) the primary cultures; 3) mixed or secondary cultures. In this ethnological time-schema the seven great ‘Kulturkreise’ are arranged.

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so-called primary and secondary cultures¹. These influences are fatal to the internal solidarity, purity and intimacy of these communal bonds. Of course, from the ‘anti-axiological’ point of view in ethnology this is only an objectionable confusion of science and a world- and life-view.
The truth is, however, that the supposedly unbiased scientific view starts from a nominalistic a priori, viz. that the subjective human societal relations can be grasped apart from their supra-arbitrary structures of individuality.
Even on the biological natural scientific standpoint it is unavoidable to state that certain external environmental factors are destructive to a living organism. How then should it be contrary to the scientific standpoint when the Christian ethnologist establishes that certain external factors (often of a typical historical foundation and economic qualification), like matriarchy and polyandry, have a disturbing influence upon the internal marital and family relations? Could the reason be that such axiological statements presuppose the handling of normative structural principles in ethnological research, which should be eliminated in order to conceive the social facts in an unbiased way? But we have seen that apart from these normative structural principles the facts do not reveal their true societal meaning.
The total elimination of these principles which only enable us to speak of marriage and family in a univocal scientific sense, makes any exact ethnological investigation of the factual marital and family relations impossible. The nominalistic prejudice which lies at the foundation of this elimination is not warranted by science, and is bound to result in a continual misinterpretation of the facts.

1 According to the ‘Kulturkreislehre’, the temporal order of succession of these cultures is as follows: 1) original primitive cultures (of the simplest and comparatively oldest races); 2) the primary cultures; 3) mixed or secondary cultures. In this ethnological time-schema the seven great ‘Kulturkreise’ are arranged.

The matriarchal phenomena in the light of the cultural-scientific method of investigation and of the theory of the individuality structures.

The modern cultural scientific school in ethnology has brought to light that among the comparatively oldest extant primitive peoples marriage and family are carrying on a very vigorous actual existence in their internal structure of typical biotically founded love-unions. This is quite contrary to the teachings of the evolutionist theory. Among the pygmies, and pigmoids in Central Africa, Southern Asia, and in the Pacific Ocean, certain tribes in South-Eastern Australia, the old Californians, the Ges-tribes in South-East Brazil, the Fuegians, and others, monogamy, matrimonial fidelity, mutual freedom in the choice of the

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marriage-partner, parental love, love on the part of children and married love are of normal occurrence.

Among these races the natural family is still the centre of the simple societal relations. As a rule the sib and the clan are lacking here¹. The popular or tribal organization is still of an extremely simple type, and of slight stability.

In their presumably original form (not yet mixed with the totemistic clan-organization) the so-called ‘matriarchal’ phenomena do not enter into the cultural evolution until the rise of the tillage of the soil with the help of mattock-like implements. This tillage was the wife's achievement in the development of civilization. When marrying she did not want to leave the spot where the field lay that she had tilled. Bachofen has already pointed out this connection between matriarchy and agriculture. It is probable that where these conditions arose, man and wife at first lived apart from each other².

In the second stage of development the husband found himself compelled to reside at the house of his wife's relatives, temporarily or for good (bina-marriage). In his wife's kinship he was more or less considered a stranger. All this must lead to the effect that the internal marriage- and family-bond were forced into the background.

This is the origin of the avuncular relationship, i.e. the remarkable juridical kinship relationship (not that of the family proper) in which the children born of a marriage are at least also³ placed under the authority of their mother's eldest brother and are his heirs. The father's heirs are his brothers' and sisters' children⁴.

1 Lowie, who does not start from the ‘Kulturkreislehre’, says (op. cit. p. 144) about the least complicated cultures in general: ‘In short, with the one notable exception of the Australians, the simplest cultures lack the sib and possess the family, and even in Australia there is no evidence that the sib is more ancient than its invariable concomitant’.

2 W. Schmidt, Völker und Kulturen (p. 267) says that this is the first stage in the development of matriarchy and that it can still be found among the Synteng-Khasi (Further India) the Menangkabau Malay, the North American Hurons and Iroquois, etc.

3 Among the matriarchal Pueblo Indians the wife is the owner of the house, and the father's authority over the children is only shared by the men belonging to the house in which the father lives merely as a guest. Cf. Lowie, op. cit. p. 68.

4 Various investigators have noticed that in the case of a formal matriarchal system of inheritance the father tries to do justice to the natural family relations as much as possible by donations to his children. Here it appears once again that it is necessary to distinguish the internal and the external relationships in family life.

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Thus arises the computation of the children's descent from the mother's and not from the father's lineage. Not the wife herself, but her kinship acquires a position of authority over the children here.

It must at once be clear that these so-called matriarchal phenomena do not belong to the internal domain of the marriage bond and family community. As typical positive forms of the relations in marriage and family they cannot be adduced to prove the absolute variability of what we have called the internal structural principles of these communities.

They cannot at all be understood from the internal positive structure of the marital and family community among the primitive peoples; rather they are exclusively connected with the external enkaptic interweavings in which at most the variability-types of these societal relationships can be founded.

Levirate, sororate, brother polyandry and the so-called ‘pirra-ura’, as abnormal external forms in which marital and family relations have been interwoven.

What has been said about the original matriarchal forms in their relation to the structure of marriage and family life also applies to other abnormal external forms of these institutional and natural communities among primitive races, and even among peoples taken up in the expanded cultural development. We are thinking of the institution of levirate, which in its stringent form was an obligation on the part of the husband's brother to marry his brother's widow. Then there are the so-called sororate, and brother-polyandry, and the ‘pirra-ura-relation’ (among the Urabunna- and Dieri-Australians).

The misinterpretation of these external forms as structural relations of marriage proper still played an important rôle in Frazer's attempt to prove the evolutionist hypothesis of a so-called ‘group-marriage’, as the first phase in the development of real married life¹.

As is generally known, Morgan's hypothesis of the ‘consanguineous family’ was based on a misconception of the so-called classificatory system of kinship in which father and uncle were indicated by means of the same name. His hypothesis of ‘group-marriage’ was also chiefly based on this terminology. Later on it was conclusively proved that this name does not denote any blood-relationship at all.

1 Totemism and Exogamy IV, 151 ff.

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Then the attention of the investigators was turned to certain data about some forms of marriage among different primitive peoples of which it was supposed that they were either remnants of an earlier, or indications of a still extant group-marriage.
Frazer, for instance, appealed to the following data: 1) to the levirate marriage, 2) to the husband's right of sexual intercourse with his wife's sisters while she lived, 3) to the husband's right to his wife's sisters after her death. Both rights (intended sub 2 and 3) are found among various peoples, and, according to Frazer, the latter is nothing but a later modification of the sororate in its original sense, which finds expression in the husband's right mentioned sub 2.
Frazer thought he could explain the levirate as a weakened form of an original polyandry. Finally the adherents of the group-marriage theory emphatically pointed to what was later on found among two tribes of the central part of South Australia, viz. the Dieri and the Urabunna. They were supposed to have a real group-marriage even at the present day.
But what are the real facts? Levirate and sororate are extremely differentiated forms of so-called ‘preferential marriages’, whose hypothetical connection with an original ‘group-marriage’ (whose occurrence has never been proved) is absolutely speculative (cf. Lowie, op. cit. p. 58).
Really authentic cases of polyandry are very thinly scattered over an extremely restricted area, and found among some Eskimo groups and especially in Ceylon; in India chiefly among the Dravidas, but also among some Munda and Tibetan-Birmese tribes in Bhutia (Nepal); and, in connection with these, in Southern Arabia (Mot'a marriage) and among some Hamitic tribes¹.
By far the greater part of these cases are only concerned with brother polyandry. Only the first born son marries one woman. His younger brothers theoretically have a share in his whole fortune and also in the possession of the wife. Immediately the problem crops up, whether there is here question of a real conjugal relation between the wife and the husband's brothers, or if it is only a question of a sexual pleasure outside of wedlock, legalized by popular customary law. It is very remarkable that nearly always the phenomenon of polyandry only occurs among peoples that lived or are still living in matriarchal conditions. According to the ‘Kulturkreislehre’, the phenomenon originated from the mixing of matriarchal with patriarchal peoples that recognized the right of primogeniture. Thurston² already observed that the practice of polyandry was intended to prevent the splitting up of the family property. Though theoretically all the sons have a share in the father's

1 Polyandry seems to have existed also in the old Babylon. At least Urucagina of Lagasch (about 2800 B.C.) boasted that his reforms had also abolished the earlier existing custom of one woman belonging to more than one man.

2 Castes and Tribes of Southern India VII, 98.

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property, it is really the eldest son on whom the possession and administration of the tarwad-property devolves. The others only have a right to sustenance as long as they remain in the same tarwad-house.
That is why exclusively the eldest son marries, the others only getting a share in the enjoyment of the wife, just as in that of the other possessions.
In its original form this polyandry did not allow the taking of more than one wife. This can be explained by referring to the strict form of the older matriarchy, which made the wife the owner of the house and fields, and permitted the husband only to come and live in her house. A very strict kind of monogamy prevailed here.
Therefore we can say that this polyandry has nothing to do with Morgan's hypothetical group-marriage. In our opinion it is even no matrimonial form at all. In the absolutely preponderant form of brother-polyandry it seems much rather to be a kind of legalized sexual relationship outside of marriage, sanctioned merely as a juridical proprietary share in the wife. Only by way of exception polyandry is found outside of the brothers, for instance among the matriarchal Nayar-caste in India. According to W. Schmidt, these sexual relationships clearly originated in an irregular concubinage between Nayar-girls and the rigidly patriarchal Rambutiri-Brahmans, and in a brother polyandry derived from it¹. This is also the key to understand the ‘classical’ example of polyandry among the Todas. Their best informed investigator, W.H.R. Rivers², showed that they originated very probably from the mixing of the Nayar-Dravidas with the Rambutiri-Brahmans.
As regards the pirra-ura-relations among the Dieri and Urabunna the facts that have been established are the following: In addition to his real wife, a man later on has one or more other women assigned to him. They must invariably be married themselves, however, and their own husbands must give them permission to the so-called pirra-ura (pira-ungaru), i.e. to an essential concubinage with the other man outside of marriage.
This abnormal sexual relation is only interwoven with the marriage bond proper in an external enkapsis, and has nothing whatever to do with a group-marriage³.

In an earlier context we have seen that the external enkaptic interweavings of marriage and family play a leading part in the popular and tribal regulations of these institutions.

If this is true, it is methodically unsound to deduce the internal positive structural relations of marriage and family among a

1 Cf. W. Schmidt, op. cit. pp. 313/4.

2 W.H.R. Rivers, The Todas (London, 1906).

3 Cf. Lowie, op. cit. pp. 49 ff. He clearly shows that this is a question of concubinage which already in popular law is sharply distinguished from the strictly monogamous marriage relations.

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certain people from what is found about these institutions in customary popular or tribal law¹. Lowie, too, emphatically warns against the overestimation of the traditional popular juridical conceptions of marriage in a particular tribe if one wants to gain an insight into the real position of a married woman²: ‘The conditions involved in the relations of men and women are many-sided, and it is dangerous to overweight one particular phase of them’³, he observes. But we must immediately add that for a proper distinction between the different sides of these relations it is necessary to have an insight into their individuality structure. The facts require an interpretation if they are to be understood in their proper meaning-structure. Any one who a priori eliminates the structural principles from his investigations continually runs the risk of misinterpreting the facts. For the latter are always essentially related to these principles, irrespective whether they satisfy their structural norms or contradict them. Apart from them nobody can succeed in finding a sufficient criterion for the distinction between marital and family relationships proper, and sexual and kinship relations of a different character.

1 This also applies to popular legal conceptions about the position of wives in marriage and the family prevalent, for example, among the Kirghizes of Central Asia, or among the Bantu tribes of Africa. That according to these conceptions the wife is nothing but a piece of the husband's property just like his cattle, is not yet decisive for its internal position in these communities.

2 Op. cit. p. 179: ‘In other words, it is important to ascertain what customary or written law and philosophic theory have to say on feminine rights and obligations. But it is more important to know whether social practice conforms to theory or leaves the latter halting in the rear, as it so frequently does’.

3 Ibidem.

§ 5 - The structure of the natural family- or kinship community in its broader sense.

Why the natural family or kinship-community in its broader sense cannot be an organized community.

Together with the marriage bond and the family in its narrowest sense the kinship community or bilateral family in its broader extent belongs to the radical type of the biotically founded communities with a moral qualification. By kinship or cognate family in this broader natural sense I exclusively understand the circle of the living blood-relatives, both in the paternal

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and the maternal lines, forming a cognate community, from which must be excluded those distant relationships that can no longer be realized in the actual communal conscience of the members.

The so-called agnatic patriarchal or matriarchal types of ‘joint family’ show the character of an authoritative organized relationship. As such they are not among the typically biotically founded communities. We shall return to this important point. The kinship community or cognate family in its broader natural sense is not an authoritative organized community in the sense defined in an earlier context, no more than marriage and the family bond in its strictest sense show this character. It is true that in this ‘cognate family’ the internal unity according to its structural principle is even more independent of the changes in the number of its members than it is in the narrower circle of the family, as a bond between parents and their children under age. But - unlike an organized community - a ‘cognate family’ or kinship community lacks an authority-structure. This community, though only existing between living relatives, is necessarily founded in the genealogical bond, which is realized in the coexistence as well as in the temporal succession of its members.

A kinship community in its broader natural sense is differentiated into wider and narrower circles.

Though the ‘cognate family’ or kinship community in its broader natural sense as such lacks historically founded forms of organization, it necessarily includes smaller groups of nearer relatives which are clearly distinguished from the others. The communal relations with more distant relatives have a tendency to slacken, especially in times and conditions that are unfavourable to the maintenance of an active kinship life¹.

On the substratum of the degrees of closeness of the biotic blood relationship the internal love-relations among the members of a cognate community thus display a great variety. No doubt this fact induced Litt to distinguish between ‘closed cir-

1 In various leges barbarorum of the Germanic tribes these wider or narrower circles of kinship found recognition, e.g. in the distinction between the ‘vierendelen’ and the ‘achtendelen’, i.e. the kinship groups constituted by the four grandparents, or the eight great-grandparents of one individual person.

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cles’ of the first and of the second degree. However, he took no account of the internal structural principles of these circles.

The narrowest circle of blood relationship is formed by the ascendants and descendants of the first degree, at one time united in one conjugal family, which was dissolved when the children became of age and left the paternal home. For the biotic foundation of the family in its narrowest sense differs from that of the kinship community in its broader natural extent insofar as the former is bound to the condition that the children have not yet reached the age of maturity¹.

Even if the grown-up sons or daughters remain in the same house with the parents, the natural family community in its strict sense cannot continue to exist after its typical biotic foundation has fallen away. The natural paternal authority in its typical structure ceases to function, as it is founded in the natural dependence of a child on its parents, who have brought him into the world.

The parents remain the natural advisers of those adult children who have left their parental home for good. As the former bearers of authority the father and mother remain entitled to the honour due to the office held by them in the conjugal family, because they are integrated with their grown-up sons and daughters into the structure of the narrowest circle within the kinship community. But the authority of their parental office is at an end, just as their children's duty to obey after the latter have reached the state of maturity. Any positive authoritative functions on the part of the parents after their sons and daughters have arrived at this state cannot be deduced from the paternal office as such, but at most from their leading position in an eventually continued domestic community with their children.

1 The primitive method of establishing puberty and maturity is based on the examination of the body of the individual. Later on general popular law regulations are made concerning majority.

The expression of the structural principle of the kinship community or cognate community in their different modal aspects.

The cognate community in its central and more peripheral circles of kinship possesses its own internal structural principle expressing itself in all the modal aspects of the communal relation. In the numerical aspect it is a unity in the multiplicity of relatives under the guidance of the relations of love and sym-

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pathy founded in the bonds of blood. If there is no spatial centre of the community, such as is found in the case of the conjugal family, there exist special communal relations between the spatial centres of the separate families expressing the spatial aspect of the cognate community.

The organic-genetic kinship relations, opened by the structural principle, express the latter in the physically founded biotic aspect of the cognate family. In the psychical aspect this typical structure finds expression in the disclosed typical feeling of solidarity on the part of the relatives, varied according to the wider and narrower kinship circles. In the historical function of the cognate community the structural principle expresses itself in the typical cultural circle of this community with its tradition and cultural objects of its own. In the typical internal forms of social intercourse among the relatives, which centres in family parties and family honour, etc. we find the structural principle expressed in its social aspect. In the economic aspect this structure expresses itself in the saving of typical family property which is evaluated economically as very closely connected with beloved members of the family and consequently having an ‘affective value’ in this kinship community (recall family-portraits, old souvenirs of deceased relatives, etc.). The juridical aspect of the cognate kinship structure is expressed in the internal mutual duty of sustenance of the relatives (which is recognized in civil law only to a very limited degree); in the internal communal sphere of guardianship exercized by the next of kin, and of the natural hereditary right of the kinsmen, etc. All these are internal communal juridical relations that cannot be grasped apart from the typical biotically founded moral qualification of the kinship community in its natural sense.

In its normative meaning-structure the family bond points above time to the religious community of mankind in Christ. In Him all reborn human beings find the religious fulfilment of their temporal kinship ties as members of the human race on the basis of palingenesis¹.

1 Cf. Mark. 3:34, 35.

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B. The undifferentiated organized communities
§ 6 - Different types of undifferentiated organized communities.

The general character of undifferentiated organized communities.

In our previous inquiry into the structural principles of the natural communities we have repeatedly established that, on a cultural level showing only a slight degree of differentiation, these communities are often intersected by undifferentiated social units which show a deceptive resemblance to them.

It was therefore all the more necessary to give precedence to a detailed analysis of the structural principles of the real natural communities before engaging in an investigation of the main types of undifferentiated communal relationships. For we have seen that the latter are repeatedly bracketed with the former.

This misconception appeared to a high degree to be influenced by Tönnies' distinction between ‘Gemeinschaft’ and ‘Gesellschaft’, in the particular meaning ascribed by him to these terms. As soon as this distinction is conceived of in a structural typical sense, the confusion mentioned is unavoidable.

Tönnies himself calls this contrast ‘ideal-typical’, somewhat in the sense intended by Max Weber, i.e. the concepts ‘Gemeinschaft’ and ‘Gesellschaft’ are understood as ‘normal concepts’, or as ‘standard types’. They serve to grasp societal reality in its subjective meaning, without having a normative sense¹. Nevertheless, our earlier analysis of these concepts, in the typical sense which Tönnies has ascribed to them, has shown that they do include an axiological standard to judge the historical development of human society. Tönnies holds that a ‘Gemeinschaft’ is ruled by a ‘natural will’ resting on an instinctive basis. He mentions the immediate family and the extended kinship community as its prototypes. But we saw in an earlier context that his standard-type ‘Gemeinschaft’ also includes the domestic community or ‘household’ and the mark-community, the village community, the medieval city-community with its guilds, etc. If this concept of community is consequently conceived to be structural typical, we run the risk of eradicating the internal fundamental structural differences between all those communities in which we can find, as a standard of behaviour, the ‘natural

1 Cf. Tönnies' Gemeinschaft und Gesellschaft, and his smaller treatise Gemeinschaft und Gesellschaft in Handwörterbuch der Soziologie hrg. v. A. Vierkandt, p. 186.

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communal mind’ in the sense intended by Tönnies. For in the ‘organized communities with an undifferentiated qualification’, which we now have to examine in more detail, there is indeed evidence of a strongly developed communal mind, prescribed by their inner structural law, i.e. a ‘natural will’ (versus an arbitrary will) in Tönnies' terminology. At least insofar as the kinship mind prevails in them, their members are obliged to consider one another as genuine blood relatives, even when real kinship is completely lacking among them.

It is consequently quite natural on Tönnies' standpoint to reckon these societal forms among the ‘organic’ relationships with a natural communal mind. For in his structural investigations he has no criterion but the subjective conceptions obtaining in a particular group of people concerning the character of these societal relationships. But these societal forms are not at all included in the radical type of the biotically founded and morally qualified communities. Rather they belong to the typical historically founded societal relationships. Nevertheless, there is a good reason for treating them immediately after the natural communities. This reason is that in fact the most intensive types among these undifferentiated social units preferably seek to strenghten their communal bond by conceiving it after the pattern of a natural kinship.

What do we understand by ‘organized communities with an undifferentiated qualification’? In general they are those institutional societal units which to a greater or lesser degree perform all those typical structural functions for which on a more differentiated cultural level separate organized communities are formed, with typical structures of their own, showing both a differentiated foundational and a differentiated leading function.

In this sense we might call them ‘supra-functional’. Nevertheless, they are not really all-inclusive in the sense meant by Gurvitch, since they do not really include the natural communities, but rather intersect them in an artificial way.

The organized communities with an undifferentiated qualification are historically founded forms of interlacement of social structures.

This state of affairs indeed requires a more detailed investigation. Our previous expositions have made it clear that without any exception the societal relationships function in all the

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modal aspects of reality. From this it follows that the difference between undifferentiated and differentiated communities cannot be solely found in the modal dimension of our experiential horizon. It can only be completely understood in a structural typical and not in a modal-functional way.

This means that, e.g., such a primitive organized community as the sib does not function merely in a modal-economic way, but that it may have such structural economic functions as, on a differentiated cultural level, are exclusively found in an economically qualified agricultural or cattle rearing undertaking.

In the same way it has not merely a modal function of social intercourse, but acts as a kind of club, which on a differentiated cultural level is typically qualified by its aspect of intercourse; it has not only a modal juridical function, but performs typical juridical functions which in a differentiated society exclusively belong to a political community; it has not only a modal function in the aspect of faith, but it really performs the task of a cult-community, which on a differentiated cultural level is typically qualified by its aspect of belief.

Of course, also a modern differentiated organized community may take over typical structural functions of other societal relationships. Thus a modern State may run a State-owned industry or a public school, etc. The medieval Roman Catholic institutional Church assumed many functions proper to the body politic, and in different periods of history the State performed ecclesiastical functions. But, notwithstanding all this, truly differentiated communities retain their own internal structure, in which a differentiated leading function can be distinguished. They have to call into existence organizations with a specific typical leading function for the non-typical structural functions they perform. A State-run industry after all remains an industry according to its internal structure, and its close connection with the State is not proper to its radical and geno-type. The fact that a particular industry acts as a State-run concern is only related to the pheno-type (or variability-type) of the former. In an ‘undifferentiated organized community’ the state of affairs is entirely different. Here it is useless to look for such a simple structural principle in which the foundational and the leading function are both geno-typically differentiated within a comprehensive radical type of societal structures. In principle such a societal unit may combine the most heterogeneous structures in accordance with the needs of a society at a particular primi-

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tive cultural level. These various structural principles are realized in one and the same form of organization.

When in the development of civilization a culture is disclosed, such primitive social units are ultimately resolved into differentiated societal relationships. In other words, these primitive communities are really the result of a close interweaving of heterogeneous structural principles, whose interlacement is essential to them, but displays an intra-communal and not an inter-communal character. They are historically founded in a particular formation of power, but the latter appears to have an undifferentiated character which is closely bound to the vital conditions of primitive social life.

The structural principle of a natural community may play a dominant and leading part in the as yet undifferentiated societal units. This is very clearly seen in the patriarchal, so-called ‘joint family’¹, in the sib, and in many a tribal organization of the comparatively oldest extant primitive peoples. The structural principle of the family or the kinship community in its broader sense may also have been pushed into the background, however, by accentuating other structures that are interwoven in the undifferentiated social whole. Thus political structures are very markedly operative as dominant factors, e.g., in the secret men's associations (‘Männerbünde’), explained by W. Schmidt as a reaction against matriarchal forms of primitive organization.

In consequence of these facts a proper analysis of the essential structure of such undifferentiated societal units is extremely difficult. Do they actually posses internal structural unity, or are they after all no more than an agglomeration of different structures? But if the latter is the case, how can they function as real social units?

These problems are not even raised in the prevailing tendencies in sociology, because the individuality structures of human society are not paid proper attention to. Instead, ‘general concepts’ such as ‘group’, ‘class’, etc., are handled, which are only differentiated according to functional view-points. And insofar as any attention is devoted to ‘supra-functional’ or to ‘multibonded’ groups, their structural unity is supposed rather than explained.

1 German: ‘Grossfamilie’, i.e. great family, larger family or extended family. Transl. H.d.J.

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In any case it is an established fact that the undifferentiated communities cannot have a simple structure. We must try to gain an insight into their structural unity, which in consequence cannot be of the same character as that of natural communal bonds or of differentiated organized communities.

But we must do so in close contact with the social facts, in order to avoid any a priori construction.

The structural interweaving in the patriarchal ‘joint family’.

Our first example is the patriarchal ‘joint family’ which by the ‘Kulturkreislehre’ is classed with the ‘family form’ of the pastoral nomadic peoples. This societal relationship seems indeed to display a natural kinship structure, since it comprehends parents, children and grandchildren in one societal whole and it is characterized by a strong patriarchal mind in its members. On closer examination, however, it appears that this community does not display the simple structural principle of the natural kinship bond. I refer to the following traits of the patriarchal ‘joint family’: The married sons with their newly formed families remain included in the domestic community of the father, even when they settle in their own tents (e.g., with the Minussinsk Tartars). The patriarch exercises real authority over the totality of the separate family communities which are integrated into the ‘joint family’. In the latter there develops an exceedingly important right of primogeniture of the eldest son. All these traits are by no means natural consequences of the internal structure of the kinship community formed by the narrow circle of grandparents, parents and grandchildren. Neither the patriarch's authority, nor the special position of the eldest son in this patriarchal relationship, are of a typical biotic foundation. Only the historical formation of power on the part of the patriarch can be the typical substratum of his authority in this typical kind of community.

And the entire patriarchal relationship, as such, cannot be biotically founded, but can only have its typical foundational function in an historical form of organization.

When we try to trace the real structural principle of this historical power-formation on the part of the patriarch, we must first pay attention to the undeniable connection of this patriarchal authority with economic factors.

We should especially note what the ethnologist Radloff tells

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us about the origin of the ‘joint family’ (the ‘aul’) among the Kirghiz¹: ‘The interests of the nearest relatives among the members of the “joint family” were very much interdependent on account of their indivisible common property, which is an absolute vital requirement of the existence of smaller herds. Then individual more distant relatives joined them, as also did families connected with them on other grounds. Together they formed the smallest societal unit, the “aul”. It remained intact winter and summer and was composed of from six to ten separate families. The leader of the “aul” is the oldest member of the family with the largest property and the greatest number of relatives in the “aul”’². Such an historical economic foundation³ of patriarchal authority and (in close connection with the latter) of the right of primogeniture of the eldest son is, indeed, a mere external factor as regards the natural internal kinship bond; but certainly not as far as the patriarchal community is concerned.

Is then the patriarchal ‘joint family’ to be considered an economically qualified pastoral undertaking as regards its internal structure? There is no doubt that it performs the structural functions of an organized industrial community, but it is by no means qualified as such. In the first place the industrial relationship remains structurally interwoven with a particular narrow kinship circle. This interweaving cannot be dispensed with without disrupting the patriarchal societal relationship

1 A Mongolian race living on the Caspian, N.E. of the Kalmucks.

2 Aus Siberien (Leipzig, 2e Aufl., 1839). ‘Die Familienglieder, welche in nächster Verwandschaft standen, waren durch einen gemeinschaftlichen unteilbaren Besitz, der für kleinere Herden eine Existenzbedingung ist, in ihren Interessen eng an einander gekettet; an sie schlossen sich einzelne fernere Verwandte und durch andere Verhältnisse nahestehende Familien an und so bildete sich die kleinste soziale Einheit, das “Aul”. Dieses bleibt Winter und Sommer zusammen, es besteht in sechs bis zehn Einzelfamilien. Der Leiter des Auls ist das älteste Familienglied derjenigen Familie, die den grössten Besitzstand und die meisten Verwandten im Aul besitzt’.

3 In the last instance this is a question of a historical foundation, in which the basis of power and tradition are decisive. This is evident from the fact that patriarchy, when proper to a conquering people, is usually maintained even when such patriarchal peoples mix with those living in matriarchy in connection with agriculture (which was a female task). The continuation of patriarchy then appears to be independent of its former economical basis.

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proper. And in the second place the interweaving of a particular kinship- and business structure with other societal structures is equally essential to this patriarchal ‘joint family’. The latter also implies an obvious political structure, typically founded in armed power and asserting itself in keeping up the internal peace, in the vendetta and in the defence of the small community against external enemies. This structure can certainly no more be derived from the internal structural principle of the natural kinship community than the industrial relationship, but in the patriarchal societal unit it is essentially interwoven with a partial kinship community.

What then gives this societal whole its inner structural unity in this complex intertwinement of radically different structures? This cannot be its organization alone. For the latter itself displays the variety of structures whose mutual interlacement is essential to this undifferentiated whole. A true structural unity in this divergence can only be maintained if one of the interlaced structures has the leading rôle in the multi-bonded totality. It is indeed the internal structural principle of the family bond that plays a dominant part in the patriarchal ‘joint family’, i.e. the family mind entirely permeates the complicated structure of this societal relationship.

This is most evident in those cases where within it a cult develops in the form of ancestor worship. Such a cult community embraces all the members of the patriarchal ‘joint family’, irrespective of the question whether or not they belong to the natural kinship of the patriarchal chief.

Fustel de Coulange's book La cité antique gives an elaborate description of this ancestor worship in its more developed form among the Indo European peoples, especially among the Greeks and the Romans. He shows that in this cult there was a continual exchange of acts of love between the living and the dead members of the family. The ancestor received the series of meals for the dead from his offspring, which was the only pleasure he could have in his second life. The descendant, on the other hand, received from his ancestors the support and the power that he needed in this life.

Thus a strong tie connected all the generations of one and the same gens, creating an ‘eternal’ unbreakable totality.

The deification of the ancestors in the community of cult and faith of the patriarchal ‘joint family’ clearly proves that under the leading of the function of faith all the internal relations in

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this societal unit are permeated by the family mind. The agnatic kinship community in this undifferentiated societal relationship is thus indeed the leading and central structure, although this kinship bond as such does not display a real authoritative and organizational structure¹.

1 Cf. A. Vierkandt, Gesellschaftslehre (2nd ed. 1928) p. 445, on the initial stage of the ancestor cult (‘Ahnenkultus’) among the Battaks, the Dschagga negroes and other still less civilized primitive races: ‘Wenn die Quellen in derartigen Fällen vielfach die Auffassung vertreten, dass das Verhalten des Menschen bei dem hier gemeinten Typus lediglich durch Furcht und den sogenannten Egoismus bestimmt werde, von einer Liebe und Verehrung aber keine Spur in sich trage, so darf diese Auffassung hier so wenig wie sonst im religiösen Leben als richtig gelten: sie verwechselt die reine Selbstfürsorge mit dem Solidaritätsverhalten innerhalb der Gemeinschaft. Es ist klar, dass hier eine Gemeinschaft besteht, die diejenige der Familie über das Grab fortsetzt. Eigenfürsorge mag sich gelegentlich einmischen, ist jedoch dann nur eine Oberflachenkraft’. [When in such cases the sources often maintain that in the type meant here the attitude of man is only determined by fear and so-called egoism, and that there is no trace of love and adoration, this opinion can be as little correct here as with regard to other manifestations of religious life: it confounds pure self care with the attitude of solidarity within the community. It is clear that there is a community which continues that of the family beyond the grave. The care of oneself may now and then be mingled with it, but is then only a peripheral motive.]

The structural interweaving within the sib or clan.

The primitive sib or clan is another example of an organized community with an undifferentiated qualification. This societal unit is usually characterized as a wider group of relatives, often organized as an association², in which kinship is only taken in a unilateral sense, either in the paternal or in the maternal line³. Even such a keen observer as Lowie writes that the ‘sib’ is a primitive type of social unit ‘that resembles the family in being based on kinship, but otherwise differs fundamentally from it’⁴.

If this were true, the sib would have to be reckoned among the typical biotically founded societal relationships.

Just like the marital bond, the natural family in its narrowest sense and the natural kinship bond in its greater extent, the clan

2 This is contrasted with the patriarchal joint family. We shall, however, see that the sib, too, may have a chief, whose authority only lacks patriarchal traits.

3 The patrilineal sib is called gens among the Romans.

4 Primitive Society, p. 105.

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would be ‘of all times’, i.e. its actual occurrence in temporal human society would not depend on a definite historical level of culture. Lowie himself, however, has clearly shown that this is not the case. The older evolutionistic view held that in the development of human societal life among primitive peoples the sib preceded the family and the bi-lateral kinship community proper. In an earlier context we have seen that Lowie has energetically contributed to the refutation of this conception. He demonstrated that precisely the least developed primitive peoples (i.e. the peoples of the so-called ‘primary cultures’ according to the ‘Kulturkreislehre’) do not know the sib and that the latter disappears in the long run when civilization is expanded and ‘opened’ (in our sense). But the conjugal family and the bi-lateral kindred communities are absolutely universal institutions at all times. Lowie also proved that among primitive peoples as a rule the sib or clan relationship appears only when agriculture or cattle-breeding have wholly or partly replaced hunting as the basis of economic life¹. Lowie has even admitted that the common descent claimed by the sib-mates, as the foundation of this societal relationship, is for a large part only a fiction².

The supposed descent from a common ancestral father or mother is indeed sometimes entirely mythological, e.g., with the totem-clans, and therefore it is no real typical biotic substratum of the societal relationship as such. Even animals and plants, or dead objects are often worshipped as ancestors³.

Also outside of the typical totem cultures the idea of a common descent as the basis of the sib relationship is very often merely a mythological motif. This idea can then only be kept alive in the minds of the members of the sib or the tribe by means of a

1 Op. cit. p. 141.

2 Op. cit. p. 109: ‘When we investigate by genealogical methods the average sib, we generally find it impossible to derive all the members from a single ancestor. What we discover is a series of independent lines of descent merely theoretically united by a common ancestry... Thus, in taking a census of the Hopi I found that several very small mother-sibs were not composed wholly of individuals related to one another by blood but could be separated into two or three distinct matrilineal groups which regarded themselves as related only by a legal fiction’.

3 Totem clans do not always worship the totem animal or totem plant itself as ancestor. They sometimes imagine to have only a common ancestress married to a particular animal and giving birth to the clan's totem animal.

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symbol or a myth. This does not alter the fact that in the sib, which is often of a fairly great extent¹, different unilateral kinship bonds are actually included, although they are not connected with each other in one single real family community. The sib relationship cannot exist without at least comprising a considerable part of the natural kinship community in the paternal or in the maternal line. As a rule membership depends on the natural basis of birth. Apart from cases of adoption, everyone of the members belongs to the sib through birth. This proves the institutional character of this undifferentiated community.

Just as in the case of the patriarchal joint family, the internal structural principle of the natural family plays a central, leading rôle in this form of interwovenness of societal structures which is the sib. The natural communal mind of the family also here dominates the entire societal relationship.

Because of the usually fictitious or mythological basis of common descent this fact is more striking in the sib than it is in the patriarchal joint family. For the latter is connected with the natural family community much more closely and really than the former.

The sib draws a line of demarcation across the conjugal and the family community, in accordance with the rule: “Once a sibmate, always a sibmate”. Consequently the married woman is never admitted to the husband's sib, nor vice versa. But, no matter how remote their real blood relationship may be, and though this relationship does not really exist between all the members of the same sib, they consider one another as members of the same kinship. This is clearly brought out by the rule of clan-exogamy, in virtue of which the members of a sib are not allowed to marry with each other. Among the different primitive peoples the penalty for an infringement of this societal norm may vary, but the offence is always considered to be incest².

1 How large the number of the members of a sib may be is seen in the Ostiaks, a tribe living in Western Siberia, where the exogamous paternal sibs often number thousands of members. Cf, Lowie, op. cit. p. 113.

2 Cf. Lowie, op. cit. p. 107: ‘With us a third or fourth cousin hardly ever functions as a member of the family at all; but by the fixity of the sib bond even the most remote kinsman is still known as a member of the same unit, which is most commonly designated by a name borne by all the members, thus leaving no doubt as to sib affiliation. The feeling of community thus established is reflected in the terminology of kinship: sib mates of the same generation usually call one another siblings, and from this, given the primitive attitude towards names, it is but a step to the feeling that marriage between sib-mates would be incestuous. Hence we find as one of the most common traits of the sib the law of exogamy’.

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Besides the structure of a partial blood relationship there are, just as in the patriarchal joint family, entirely different structures interwoven in the sib, in accordance with the needs of primitive societal life. This fact again is a clear evidence of the undifferentiated character of this primitive kind of organized community.

The sib, e.g., functions as a peace-relationship between the sib-mates, which testifies to its undoubted typical structural rôle as a political organization. Just like the patriarchal joint family, the sib is charged with the execution of the vendetta. All this proves that at least in this respect its structure is typically founded in the historical figure of armed power¹.

To this political structure also belongs the internal-juridical position of a special sib-chieftain, found in particular among the totemistic clans. He is at the same time the leader of the rites and as a magician he possesses great power in the cult-community.

The sib may also have the structure of a quite different societal unit, viz. that of an economically qualified business organization, either in the domain of agriculture or in that of the hunt. Then it regulates the distribution of the work and the use of the soil by the sib-mates and often functions as the owner of the soil concerned².

In the interwoven whole of the sib the primitive structure of a cult community also plays an important rôle. In particular the totemistic clans are centres both of a common mana-belief³ and of common rites and magical actions.

1 Cf. a.o. Hose's and Mc. Dougall's statements on the military position of a sib in: The Pagan Tribes of Borneo I, 158.

2 For the importance of the old-Germanic sib as an agrarian-economic unit see Caesar's description in his De Bello Gallico VI, 22.

3 In keeping with my expositions on the theme ‘magic and faith’ in volume II, part I, pp. 316 ff., I still hold that in the belief in mana the cult-element of worship of the mysterious divine is essential, however much it may be permeated by magical motives. Mana belief is really a phenomenon of a faith-cult in the sense explained in an earlier context, and cannot be reduced to mere ‘magic’ This view is not invalidated by the motive of control in this primitive belief. This motive is even more pregnantly in evidence in the Humanistic science-ideal with its deification and worship of the thought of natural science. And yet this ‘ideal’ has the meaning of a faith in its cult of the deified ratio.
In my opinion the question is not whether the mythic motive of a magical operational coherence is necessarily connected with mana-faith, but if the latter contains the characteristically pisteutic moment of deification and worship. To my mind the latter traits are undeniable in this primitive experience of the ‘supra-natural’.

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In this cult-community the sib-chieftain is the typical leader and possesses strongly ‘charismatic’ authority (in Max Weber's sense), because he is believed to embody the magic power of the whole clan¹. The totemistic ancestor-cult, in which the structural principle of the family-community clearly takes the lead, reveals the strongly mythological nature of the family-conception in the clan-relationship. The leading function of the structural principle of the family community in the sib is especially accentuated among some primitive peoples when the whole clan occupies a common long house, as one single household-community.

The leading rôle of the family bond (and not of the political structure, e.g.) is very obvious also in totemistic clans if, owing to special outside influences (perhaps matriarchal factors in particular), the tribal organization cuts across the sib, so that members of the same clan belong to different tribes. With many peoples² the members of the same clan remain solidary when the tribes concerned get into a conflict, and the clan mates refuse to take up arms against one another. If this is impossible, they spare each other wherever they can.

1 Cf. W. Schmidt, op. cit. p. 236, and A. Vierkandt, op. cit. p. 451.

2 For instance, the Iroquois in North America, the Kima, the Nassim in British New Guinea, and different other tribal groups. Cf. Schmidt, op. cit. p. 237.

In the undifferentiated organized communities one of the interwoven structures assumes the rôle of the leading structural principle.

From the above we may conclude that as to its structural unity the sib exhibits the same state of affairs as we could establish with respect to the patriarchal joint family. Whatever different societal structures may be interwoven in a sib, in accordance with the primitive social needs³, these structures are not realized

3 The question which structures are really interlaced in a sib completely depends on the societal conditions. Lowie rightly observes (op. cit. p. 115): ‘The sib thus appears as an extraordinarily changeable unit.’

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in a mere agglomeration of different societal units. On the contrary, they are interlaced in the form of one single organized community, which is often extremely close-knit, and has an undifferentiated qualification.

Such a ‘multibonded’ undifferentiated community can only attain to real internal unity (on the law-side), if one particular structure in this form of interweaving assumes the leading rôle among the other structures. Instead of the leading function qualifying the differentiated natural and organized communities, we find here a leading structural principle in the form of interweaving of different structures.

But for the leading of the structural principle of the family, the sib could not realize its structure as a defensive and peace organization, and as an industrial and cult-community.

In this connection special attention should be paid to what A. Vierkandt remarks on the collective responsibility of the sib in case of blood-guilt: ‘To modern moral feelings’, he observes, ‘the collective requital of a blood-guilt, in which a sibmate of the guilty person can be made to undergo the punishment, seems a callous act, or frankly immoral. However, we should remember the strong solidarity obtaining among the sibmates. The result is that each of them is continuously under the sib's control and made responsible by the group for his entire behaviour. And conversely, the group is to a much higher degree actually responsible for the individual member on account of his greater dependence on the sib’¹.

Indeed, but this strong internal and external solidarity in the sib relationship in its turn can only be understood from the leading rôle of the structural principle of the (unilateral) family-bond in this form of interweaving. And yet we could establish that the undifferentiated sib-organization, as such, is not really founded biotically in the ‘bonds of blood’. The unilateral family community is only a partial structure in this form of inter-

1 Op. cit. p. 452: ‘Dem sittlichen Gefühl unserer Zeit erscheint die kollektive Ahndung einer Blutschuld, bei der statt der schuldigen Person irgend ein anderer Sippengenosse herausgegriffen werden kann, als eine Härte oder geradezu als eine Unsittlichtkeit. Man muss aber an die starke Solidarität der Sippengenossen dabei denken. Sie hat zur Folge, dass jeder in seinem ganzen Verhalten fortgesetzt von der Gruppe kontrolliert und verantwortlich gemacht wird, wie umgekehrt auch für den Einzelnen wegen dieser gesteigerten Abhängigkeit die Gruppe in viel höherem Masse tatsächlich verantwortlich ist’

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weaving which does not at all comprise all the members of the societal unit. The societal relationship as such usually appeared to rest on a fictitious or mythical affiliation. Does not this prove the structural principles as such to be dependent on human arbitrariness to a certain extent? Our answer is: Not at all. The state of affairs we are confronted with in this case is a perfect parallel of the relation between foster-parents and their foster-child, examined in an earlier context¹. As a rule adoption is a very important feature of the sib. When a man adopts a child, it automatically becomes a member of this man's sib, insofar as the latter reckons affiliation only in the paternal line. If the sib was matrilineal, the child would automatically be adopted by his wife's sib². Relations of love and sympathy among sib-mates not really affiliated can only analogically display the internal structure of the unilaterally limited family bond, because this blood-relationship is only a fiction.

The fiction of common descent itself proves that the structural principle is supra-arbitrary. It would be perfectly superfluous, if the qualifying structural principle of the family-bond were really independent of its typical biotic foundation.

1 Cf. p. 292, note.

2 Cf. Lowie, op. cit. p. 109.

The undifferentiated character of the typical foundational function of the primitive forms of interweaving.

The essential typical foundation of the sib or clan-relationship appeared to be the historical form of a more or less many-sided organization of power (just as in the case of the undifferentiated societal relationship of the patriarchal joint family). The latter, of course, is restricted within modest limits. The sib's foundational function, however, proves to be as much undifferentiated as the inner qualification of the whole. It appears to be nothing but the typical foundation of a primitive form of interweaving of societal structures. Since Ernst Grosse³, modern ethnology has paid special attention to the influence of economic factors on the formation of patriarchal joint-families and sib-relationships. Koppers even attempted to explain the rise of the totemistic clan-organization exclusively in terms of economic

3 Ernst Grosse, Die Formen der Familie und die Formen der Wirtschaft (Freiburg-Leipzig, 1886).

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causes¹ - which to my mind is an evident overstraining of the latter. Koppers does not even exclude the faith aspect of this organization from his economic interpretation, though he admits that all the details can by no means be accounted for in this way.

It is undoubtedly true that both in the formation of the patriarchal joint family and in that of the sib (even apart from the latter's typical totemistic forms) economic motives play an important part. Our remarks on the patriarchal family in this respect are equally valid for the formation of the sib. But we can certainly not speak of a typical economic foundation of the latter².

Its essential typical foundation is only found in the historical form of a more or less many-sided concentration of power.

The different structures of this power (e.g., the power of the sword, the power of faith, economic power, etc.) are again united in one single form of interweaving.

The individual family bond is no longer able to fulfil all of its earlier functions in the more complicated societal relations occurring among more developed primitive tribes. Therefore an undifferentiated organization is formed on the typical basis of the above-mentioned historical concentration of power, which itself has an as yet undifferentiated character.

Neither the natural family in its narrowest sense, nor the

1 Koppers, in volume III (Die Menschliche Wirtschaft) of the standard work Völker und Kulturen, pp. 479 ff.
Koppers summarizes his conclusions (p. 482) as follows: ‘Auf jeden Fall erfliesst als klarstes Ergebnis aus unseren Darlegungen, dass der Totemismus als solcher im letzten Grunde in bestimmten wirtschaftlichen Verhältnissen wurzelt und daher aus diesen Verhältnissen heraus seine erste und beste Erklärung schöpfen muss.’ [In any case it follows from our expositions as their clearest result that in the last instance totemism as such is rooted in particular economic conditions, and that consequently its first and best explanation must be derived from these conditions.]

2 The confusion of the subjective motives with the foundational relationship according to the structural principle of a community is very obvious in the case of A. Vierkandt, in his cited work, where he says (p. 450): ‘Der Sexualtrieb bildet nicht die einzige, auch nicht die vorwiegende Grundlage der Ehe, ebensowenig wie etwa das wirtschaftliche Interesse, vielmehr kommt beides und noch anderes zusammen. Die Ehe bildet eine Lebensgemeinschaft, bei der ein ganzer Komplex von Motiven verschmolzen ist’. [The sexual drive does not constitute the sole or the most important basis of marriage, no more than economic interest. But both motives and also others cooperate. Marriage is a vital bond in which an entire complex of motives are merged together.] (Italics are mine).

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natural marriage- and broader kinship community are as such founded in a typical historical substratum of power.

The undifferentiated primitive societal units, on the contrary, stand and fall with this typical foundation.

Primitive forms of structural interwovenness under the guidance of the political structure. The more strongly organized tribal community.

This statement is a fortiori true for undifferentiated communities like the more developed and more strongly organized tribe, which has a much larger number of members than the sibs of which it is composed. In the least complicated primitive societal relations, e.g., among the pygmies and the pigmoid peoples, the undifferentiated concentration of power which forms the typical foundation of the small popular community is only slight. But the coherence of this community is for this very reason extremely weak and loose, as is generally admitted in modern ethnology. The folk unit is no more than a very primitive form of interweaving constituted by a comparatively small number of individual families for those societal needs that cannot be satisfied by these families separately. As observed, on this historical level the natural family and the broader kinship bond are the undisputed centre of the societal relations. This is why the structure of the natural kinship plays the leading rôle also in the folk community. This is proved by the fact that exogamy here assumes a local character, showing that all the members of the small people consider each other as blood-relatives. Fairly general are the reports about the spirit of mutual helpfulness, participation in the spoils of the chase, the care of the infirm, etc., found in such communities.

No trace is found here of a constant monopolization of armed power by the popular community as a whole. When there is a conflict between particular members of the latter, the tribal chief or influential elders act at the utmost as mediators¹.

When the disputants want to settle their quarrel with the arms, they are at most bound by the general norms of the tribe. If one of them is killed, the other has to fear only the vendetta of the slain man's relatives, but no punishment on the part of the tribal community. The structure of a primitive industrial

1 Among the Andamanese the weapons of excited men are sometimes taken away. Cf. W. Schmidt, op. cit. p. 179.

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community interwoven with this weak organization of the folk community is closely adapted to the economic division of labour between husbands and wives in the several families¹.

The male members of the folk community go hunting together, the females collect fruits, roots, leaves. In the distribution of the spoils of the chase and of the collected fruits universal societal norms have to be observed². In most cases the whole people, not the individual families, are the owners of the soil. Also the structure of the cult-community, interwoven in this primitive society and playing an important rôle in the rites of initiation, is clearly directed and guided by the structure of the natural family³.

The political organization is still very weak at this stage of historical development of the small tribal or folk community. A stronger form of political organization in the tribal community is incompatible with the leading part played by the structural principle of the natural family and kinship bonds in these societies.

Neither the patriarchal joint family, nor the individual natural family and the kinship community allow of a strong tribal organization so long as they play a central and dominating rôle in the societal relations.

On the other hand the patriarchal totemistic peoples have a rather complicated tribal organization resting on a much more intensive basis of power. There the structure of the natural family no longer has a leading function; the political structure has taken over this leading rôle and even shows a distinct anta-

1 W. Schmidt, op. cit. p. 149: ‘Die ersten Ansätze zu wirtschaftlichen Verbänden sind in der deutlichen Arbeitsteilung gelegen, die gerade bei den Stämmen der Urzeit zwischen den beiden ersten Konstituenten der Familie, zwischen Mann und Frau, sich einrichtete’. [The first beginnings of organized industrial relationships are to be seen in the evident division of labour which exactly among the earliest primitive tribes was adapted to the difference between man and woman, as the first constituents of the family].

2 Cf. W. Schmidt, op. cit., p. 185 ff.: ‘Soziale Fürsorge im Urstaat’.

3 Cf. Howitt's description of these rites among the Kurnai in The Native Tribes of South-East Australia (London, 1904). Among the primary norms solemnly promulgated on this occasion for the initiated youths to observe, the first commandment is: listening to their parents and obeying them; the second commandment is: sharing their goods with their fellow-tribesmen, etc.

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gonism with the natural structures of the family, and the marriage- and broader kinship community. When the totem-clans are subdivided into originally matriarchal phratries, the tribal form becomes even more complicated.

In his book on the age-groups and men's associations¹ H. Schurtz has already pointed out how the strengthening of the political structure in the primitive tribal organization is always brought about by depriving the family and marriage bonds of the central leading position they had when societal relations were less complicated.

The introduction of age-groups already emancipates boys from the family community since the moment of their initiation. Among many totemistic tribes we meet with separate young men's houses, which means that the young men are no longer allowed to live in the paternal home after their initiation. They often have to live as young bachelors up to their thirtieth year, either or not strictly separated from the female members of the tribe. They are only connected by their membership of the tribe, and the community of their house and their sex. Among various more strongly organized tribes the boys, on the occasion of their promotion to the rank of tribal membership by initiation, are explicitly forbidden any longer to obey their mother². This forms a striking contrast to the primitive phase of tribal development in which the structure of the natural community has a leading rôle.

1 H. Schurtz, Allerklassen und Männerbünde (Berlin, 1902).

2 W. Schmidt, op. cit. pp. 278 ff; cf. our remarks on p. 362, note 3.

The structural interwovenness implied in the secret ‘men's societies’.

In this context we must also refer to the ‘secret men's societies’, which are of very general occurrence among the more developed primitive peoples. In these associations the structure of the natural family bond can no longer have a leading part, because practically every internal tie with the structure of the immediate family and the more extensive kinship community has been broken.

W. Schmidt is of the opinion that the original structure of these unions was that of aristocratically organized associations. They keep their internal regulations a close secret from women and outsiders. Members intimidate the latter by means of the terrifying

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secrecy of the organization, by all kinds of violent and frightening devices, and even by capital punishment.
Executions partly take place in ‘Vehmgerichte’ and are applied both to members who have betrayed club-secrets to women, and to women who have succeeded in finding these secrets out or who have overheard them.
At first these clubs only accepted men who had stood the severest tests of eligibility in a series of ceremonies, sometimes even including the killing of a near relative. Membership is classified in a vertical order of gradation. After passing a test and initiation it is possible for a man to rise to a higher grade. But admission and promotion always depend on the payment of a certain sum in real values, such as pigs, fruits, etc. The proceedings of these meetings are for the greater part unknown to us, because their secret is jealously kept, especially from Europeans.
Yet it has been established that ancestor worship (often connected with a skull-cult) plays an important part in them. Large feasts are organized, for which the village-women are compelled to make preparations and to procure the necessary foodstuffs. For that purpose they are terrified by men wearing ghost-masks.
Nowadays there are various secret societies accessible both to men and to women among primitive peoples. Sometimes they do not have different grades, - e.g., in New Guinea. The Dukduk society in New Mecklenburg and Eastern New Pommerania also includes children, and especially performs the typical political part of legislator, judge, police, and executioner in the primitive society of these islanders. In the Banks' Islands the men's clubs with their strong graduated hierarchy are also characterized by a political structure, which appears from their public and secret administration of justice and their terrorism over outsiders. But the West-African Butwa union in the Congo admits men as well as women. In this latter type of union the political and the social¹ structures have not been erased, but the whole relationship is here under the leading of the structure of a faith- and cult-community. The club especially provides protection from evil spirits and at the same time promotes unbridled sexual intercourse. In North America the structure of a faith- and cult community generally comes to the fore in these secret societies, including ancestor-worship as well as magic in the most different forms. But here we also encounter a beginning differentiation and consequently a dissolution of the ancient clubs as undifferentiated organizations, as in the case of the prairie Indians who form special dancing clubs, military associations, tobacco unions (embracing both men and women), etc.².

W. Schmidt explains the original meaning of these secret

1 i.e. the structure of a community qualified by its function of social intercourse, as found in a modern ‘club’.

2 G. Holtker, Männerbünde. (Handwörterbuch der Soziologie, hrg. v. Vierkandt, 1931) p. 352.

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men's societies as an organized resistance to the dominant position of women in the old matriarchal cultures¹. If he is right, the leading rôle of the political structure in this particular type of interwoven societal relationship is implicitly explained.

True, his view is oriented to the ‘Kulturkreislehre’, but even if it should appear to be incorrect, it cannot be denied that at least in the aristocratically organized form of these undifferentiated associations the political structural principle plays the leading part. According to Schmidt this aristocratic form is the original one.

1 Cf. his treatise Initiations tribales et sociétés secrètes (Sem. d'Ethn. Rel. III, 329-340), and especially Välker und Kulturen I, pp. 281 ff.

The origin of the ‘men's societies’².

H. Schurtz introduced the name ‘Männerbünde’ (men's societies) into ethnological writings and sought the origin of these primitive associations in the ‘dichotomy of the sexes’³. His argument is based upon the following considerations. A woman's nature possesses a preponderant sexual drive towards a man and shows an interest in family and kindred which surpasses all other instincts and interests. In the male sex the psychical disposition is quite different.
In a man sexual love is only strong intermittently. His interest is consequently not entirely occupied by family and kinship relations, but may be strongly directed towards social life in general and towards his intercourse with his own sex. This would explain the origin of age-groups, clubs and secret societies in a genetic order. This psychological attempt at explanation, however, is already refuted by the occurrence of ‘secret women's unions’ among primitive peoples.
Moreover, ‘secret societies’ cannot at all be a further development of age-groups, because their organizational form proves to be independent of age. Therefore, we cannot accept Webster's view either that ‘secret societies’ developed from initiation rites and age-groups on account of the men's desire to establish an aristocracy via a democracy and a plutocracy⁴. There is no demonstrable connection between age-groups and secret societies.
Practically there remain two important interpretations which really take account of all the available ethnological material. They are Loeb's theory and that of W. Schmidt. Loeb⁵ holds that the secret societies in all their various forms can indeed be traced back to one common root, viz. the initiation rites of boys. But for the rest these societies arose independently of each other in

2 Cf. Holtker, op. cit.

3 Cf. his work Alterklassen und Männerbünde.

4 Primitive Secret Societies (New York, 1908).

5 Tribal Initiations and Secret Societies (Univ. of California Publ. in Am. Arch. and Ethn. 25 (1929), 249-288).

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different areas as mere parallel phenomena (owing to a kind of convergence). Schmidt's theory, already mentioned in our text, starts from an original structure of men's unions as a political reaction in the old matriarchal cultural circle. He considers the divergent forms of development to result from a later denaturation. To the adherents of the ‘Kulturkreislehre’ Schmidt's theory must seem the most satisfactory of the two.

Schmidt describes these aristocratic secret men's unions at the culmination of their power as a kind of ‘State within the State’¹. The union opposes a secret power to the legal authority of the tribal chief and his council, and in course of time succeeds in acquiring the political control over the whole tribe.

In different places, e.g., in New Pommerania, on the Solomons isles, etc., the tribal chiefs made formal agreements with these secret societies. Or by causing themselves to be incorporated and reaching the highest rank in them, these chiefs tried to make the union's political power subservient to their own ends. In other parts of the world, e.g., in West-Africa, the unions openly defied the authority of the tribal chief and made his power illusionary.

Schmidt further points to the fact that these societies show a peculiar tendency to extend their propaganda to various tribal territories, thus exceeding the narrow limits of their own people. On the other hand, they remained the powerful guardians of their rigid tradition against European influence and showed themselves to be the bitterest enemies of the latter. Thus it appears that at least in the golden age of these aristocratic secret men's societies the political structure no doubt played a leading part in this primitive interwoven whole comprising the structures of faith- and cult communities, as well as those of another nature. In various parts of the world these societies lose their political power partly or wholly. Then the faith- and cult- structure (in ancestor worship, masked dances, etc.), implied in their interweaving forms from the outset, takes the lead. Or, as in the case of the prairie Indians of North America, the originally undifferentiated secret associations are affected by the process of differentiation. This means that these societies have undergone an essential structural change and have lost their former central significance within the tribal community. All this holds good only, if Schmidt's theory of the common origin of these men's societies is correct.

1 Naturally this characterization is terminologically inadequate.

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In any case the name ‘men's society’ introduced by Schurtz does not cover a real structural identity in the various types of associations indicated by it, insofar as they occur among primitive peoples at the present day. This is not merely a question of different varieties of the same basic structure of primitive associations, but the complicated structure of these different types is really different in principle.

Other types of undifferentiated communities.

There are other typical forms of undifferentiated communities which have not yet been discussed in this section, for instance the guilds, the primitive vicinages, the pre-feudal and feudal manorial communities (villae, domaines) and seigniories, etc. The guilds, in the sense of brotherhoods (fraternities), are primitive associations which imitate the sibs without including any bond of real or fictitious common descent. Nevertheless, the institutional trait of the sib is present insofar as the guilds generally embrace also the children under age of the guild-brothers as passive members. So the structural principle of the kinship community also here plays the leading rôle. Such guilds may include different kinds of trade-unions (of craftsmen, merchants, farmers, etc.), cult-communities, political organizations, etc. Especially in the Germanic peoples during the Middle Ages they have displayed a rich variety of possibilities. The medieval towns¹, as well as the medieval vicinages in the country were to a large extent organized as guilds. But these undifferentiated organizations are also to be found in extant primitive peoples. Among the Cheyenne of North America we even meet with female craftguilds. As to the medieval manorial communities (villae, domaines) we may observe that they are often indicated in the latin sources as ‘familiae’, after the pattern of the old undifferentiated Roman domestic community (familia), which also included the structure of an agricultural organization. The feudal vassal-relation was, just as the Germanic trustis, originally also closely connected with the domestic community of the seigneur, as is shown by the formula Turonensis 43, which is the oldest source of our knowledge of the vassal's original condition. In its later development the feudal bond was gradually emancipated from the domestic power of the seigneur without losing its undifferentiated structure. During the period of its military

1 We shall show in a later context that in the towns the guild-system was soon involved in a process of differentiation.

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significance a political principle took the lead in this structure. But we shall see later on that no single feudal seigniory can be viewed as a real State because of its pluri-structural character impeding any realization of the differentiated structure of a body politic.

§ 7 - The undifferentiated organized communities and the schema of the whole and its parts in the universalistic theories which consider the family as the germ-cell of the state. The problem of the so-called ‘primitive primary norm’.

The Aristotelian theory of organized communities and the undifferentiated structure of the Greek phylae and phratries.

Our analysis of the complicated structure of undifferentiated organized communities can only strengthen our former hypothesis about the historical background of the so-called ‘organic’ universalistic views of human society, which are based on the Aristotelian conception of the social nature of man. They look upon the family as the ‘germ-cell’ of all authorative societal relations. They state that the ‘social impulse’ is realized in a gradual process of extension to ever more inclusive communities, culminating in an all-inclusive societal whole of which all the others are the ‘parts’.

In an earlier context we have seen that when Aristotle discusses the family he does not mean the differentiated structure of the natural family as such; rather he had in view the undifferentiated societal relationship of the ancient Greek ‘household’ (οἰϰία), including the conjugal and family community as well as the industrial community of the Greek land-owner and his slaves subject to his domestic authority. And it appeared to be the economically qualified structure of the latter relationship which in his view characterized the household as a whole.

The ‘village community’ (ϰώμη among the Dorians, σῆμος among the Ionians) he conceived of as a union of different ‘households’, based on neighbourship. His conception of the polis (the city-State) appeared in no way to correspond to our modern idea of a State. It is really the whole organized Greek society within the territory of the city-State under the political supremacy of the polis. Aristotle's metaphysically founded conception of the natural development of the polis as the societal totality, originating in the ‘household’ as its political germ-cell, was no doubt

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adapted to the undifferentiated societal relationships preceding the rise of the democratic republic.

Ancient Greek society had known these relationships, and the Greek ‘household’ in the golden age of Greek culture had retained most of its original features¹. The ancient Attic and Dorian ‘phylae’ were originally parts of the tribal organization and real organized communities with chiefs of their own (φυλοβασιλεῖς), chosen from the domestic chiefs belonging to the patrician sibs. They were divided into phratries (called ὠβαί by the Dorians), which consisted of the patriarchal gentes (γένη) enkaptically including the separate domestic communities. Up to the time of Solon's political reforms the real pillars of the entire structure of the Athenian polis were the four Attic phylae and their subdivisions, the twelve phratries, in their indissoluble coherence with the gentes.

Solon introduced the four property classes (τιμήματα, τέλη) and deprived the phylae and phratries of their political significance, except for the control of a citizen's claim to noble descent as an essential requirement for constitutional citizenship. The newly married female citizen was incorporated in her husband's phratry, every new-born child in its father's phratry and gens. The old Ionian phylae were not abolished before the democratic reform of Solon's constitution, accomplished by Kleisthenes after the expulsion of the Pisistratidae. Every connection between the ancient γένη (gentes) and the constitution was broken. The phratries were continued solely as cult-communities without any political structure. Or, in case new ones were formed, they lacked any connection with the ancient gentilitial structure.

Also the ancient Roman city had a political structure which was originally wholly interwoven with the undifferentiated structure of the gentes. Each of the ten ancient curiae of the city community contained a number of gentes, which were at first undifferentiated social units and functioned as cult communities and closed agrarian organizations as well². This

1 Aristotle himself points this out in his Pol. 1280b, 35; 1264a, 8; 1319b, 18; and in other places.

2 Cf. Theodor Mommsen, Abriss des römischen Staatsrechts (2nd ed. 1907) p. 11.
According to Niebuhr (Röm. Geschichte), the old curia was identical with the gens, which was not at all founded in blood-relation but was originally a constitutional legal relationship of ten families with a common name, common sacra and closed landed property. For this statement he quotes Cicero, Topica 6 (where the gentiles are defined as follows: ‘qui inter se eodem nomine sunt, ab ingenuis oriundi, quorum maiorum nemo servitutem servivit et qui capite non sunt deminuti’). However this may be, the name gens also means sib, in which at any rate the family structure played a leading part, however slight the affiliation among the members might be, especially in later times.

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probably explains the local character of the old curiae, which as ‘gentilitial societies’ were also agrarian landed-property communities. Roman citizenship was at first closely interwoven with the patrician gentilitial structure. This is clearly evident from the oldest designation of Roman citizens as quirites, which name, according to Mommsen, is connected with the curia as a gentilitial society¹. Every gentilis as such was a quiris, and those who did not belong to a patrician gens at first lacked political rights.

It must be clear, however, that the reference to the ancient undifferentiated structure of Greek and Roman society cannot justify the Aristotelian universalistic view of human social life. Apart from the fact that even in an undifferentiated society the really natural communities do not permit themselves to be conceived as parts of the sibs, this universalism, because of its metaphysical foundation, must lay claim to its application to every possible human society, irrespective of its historical level of development. In Aristotle's days the Greek polis was certainly not to be viewed as a social whole composed of primitive vicinages and households. It was a real city-State, though in a condition of decline. A universalistic theory of society based on its archaic condition is reactionary from a political point of view.

Such a theory can never be ‘historically’ justified, as it misconceives a structural state of affairs which as such is the foundation of the historical development of human social life.

1 Cf. Theodor Mommsen, op. cit. pp. 5 and 11.

The problem of the ‘primitive primary norm’ and the functionalistic conception of it. Somló's view.

Our insight into the interwoven structures of the undifferentiated societal relationships also sheds light on the problem of the so-called ‘primitive primary norm’.

The term ‘primitive primary norm’ (primitive Urnorm) has been introduced by the late professor Felix Somló of the University of Budapest in his book Juristische Grundlehre (1st ed. 1917; 2nd ed. 1927)². By this term he meant to signify that primitive

2 Juristische Grundlehre (2nd ed. 1927), § 27.

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peoples do not have differentiated modal systems of norms. Their legal, moral, social and faith rules are still interwoven into an undifferentiated unity. This state of affairs was already generally known among modern ethnologists, although Malinowski has denied it on grounds which in my opinion are not convincing¹. It was interpreted in different ways.

But it was not realized that the ‘primitive primary norm’ can only be explained by means of the structures of individuality of undifferentiated societal relations, and never by means of a modal concept of function.

Thus it was often asserted that primitive societies do possess an idea of ‘Sitte’ (i.e. propriety, morals) but not our notion of ‘law’. Law was supposed to be a late product of differentiation derived from the undifferentiated ‘Sitte’².

In contrast with this, Felix Somló holds that the ‘primitive primary norm’ must be considered as primitive ‘law’, and that there is not yet any question here of ‘Sitte’. ‘It is even clearer’, so he observes, ‘when we say that in primitive societies there exists no real “Sitte” at all in the technical sense of the word. Such undeveloped societies lack the differentiation which shows us norms of a character different from the traditions that constitute the “law” of these societies (“law” because backed by their supreme authority) and corresponding to our notion of “Sitte” since they do not originate from such a supreme authority’³.

According to Somló a primitive society, therefore, only knows law, as an undifferentiated complex of norms, to be traced back

1 Cf. his Crime and Custom in Savage Society (2rd ed. 1940). Notwithstanding many important observations and an interesting criticism of the current view of modern ethnologists concerning the undifferentiated character of primitive customs, Malinowski goes doubtless too far by ascribing modern differentiated categories of norms to primitive peoples. Apart from the fact that his criterion of law is unsatisfactory, he neglects the structural problem implied in an analysis of primitive societies.

2 It is especially this current opinion which is criticized by Malinowski.

3 Op. cit. pp. 88 and 89: ‘Noch deutlicher ist es, zu sagen, dass es in den primitiven Gesellschaften gar keine eigentliche “Sitte” im technischen Sinne des Wortes gibt. Es fehlt in solchen unentwickelten Gesellschaften die Differenziertheit, die uns neben den Ueberlieferungen, die das Recht jener Gemeinschaft bedeuten, weil hinter ihnen deren “höchste Macht” steht, auch noch anderweitige von altesher überlieferte Normen erkennen liesse hinter denen jene höchste Macht nicht steht und die unserem Begriff der Sitte entsprächen’.

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to the ‘supreme authority’ in the tribal community. From this common root the other modal complexes of norms are supposed to be differentiated in the course of time. According to the other opinion the very reverse should be assumed. Both views fundamentally fail to interpret the phenomenon of the ‘primitive primary norm’.

Somló's conception is entirely dependent on his genetic-positivistic view of law, which has been strongly influenced by Austin's concept of sovereignty. Somló delimits legal rules from all other classes of norms as the sum-total of all the ‘norms originating from a permanent, supreme, extensive power¹ that is usually followed’. If this definition is accepted, the conclusion is inevitable that all the rules that are valid within a primitive tribal community must be conceived as juridical norms. At least if it is also assumed that they all originate from the bearer of the supreme tribal authority, a supposition which does not at all correspond to the facts. But apart from this untenable supposition Somló's conclusion only proves that his positivistic conception of law is based on an eradication of the modal structure of meaning proper to legal norms. Any attempt to gain an insight into the structure of the ‘primitive primary norm’ in this way is bound to fail. It starts from an absolutely arbitrary thesis which in every respect is contrary to the primitive consciousness of norms. This modern positivistic thesis seeks the only origin of a legal order in the arbitrary power of a supreme human authority. But primitive conciousness does not recognize any human arbitrariness in the norms of a time-honoured tribal order. It does not at all understand Somló's conception that juridical rules belong to the category of ‘merely empirical’ or arbitrary norms.

1 Op. cit. p. 105.

The view of Fritz Münch.

More important is Fritz Münch's conception of the ‘primitive primary norm’ which he explained in his treatise Kultur und Recht². Münch starts from the thesis that primitive peoples as such are entirely outside of history³. They have a social, but not

2 Fritz Münch is a neo-Kantian of the South Western German school. His article was published in Zeitschrift für Rechtsphilosophie in Lehre und Praxis. Bnd I (Leipzig 1914) pp. 345 ff.

3 This thesis has been rejected by us. Cf. Vol. II, pp. 259 ff.

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an historical life. ‘Social’ in this context is to be taken in the usual sense of ‘concerning human society’. In the primitive ‘pre-historical state’ the needs and interests of humanity are supposed to be exclusively concerned with the maintenance of the life of the individual and that of the species. The latter was the starting-point for the development of the ‘social moment’, the formation of a community, and for communal life. Tribes are formed whose individual members have a feeling of solidarity. Thus a common ‘popular consciousness’ or a ‘tribal consciousness’ arises. The individual tribesman feels embedded in it and derives the rules for all his vital relations from it. This ‘social consciousness’ at first embraces an undivided unity of norms for all possible spheres of life: i.e., for all those fields of action that are later on distinguished as ‘religious’, scientific, aesthetic, moral, juridical, economic, technical, hygienic, gymnastic-pedagogic spheres¹.

At a particular moment in this development the original unity is replaced by differentiation when the authority of the tribal consciousness is undermined. The blind faith in the authorities that up till then had been unconditionally recognized becomes shaken. The individual member emancipates himself from the power of the tribal community, and considers himself as the ‘measure of all things’. This is the breaking up of the old traditional unity of the normative consciousness. The different ‘cultural spheres’ begin to assume some measure of independence, and at first each of them strives after absolutizing its own specific leading idea. Only then does primitive social life become truly historical. The given unity of the normative spheres in the tribal consciousness gets lost. The unity of the differentiated normative spheres becomes a task, an ‘Aufgabe’, only realizable in a freely planned system of Ideas. This is a system ‘which combines all particular ideas (and the cultural spheres constituted by them) into a synthetic harmony, in accordance with the specific significance each single meaning-realm has for the totality of culture².

I am not going to discuss Münch's conception of history. Naturally I agree with his thesis that the process of differentiation does not start before a people has outgrown the primitive stage

1 Op. cit. p. 348.

2 Op. cit. p. 348: ‘das in Harmonie alle Einzelideen und die von ihnen konstituierten Kultursphären synthetisch zusammenfügt gemäss der spezifischen Bedeutung jedes einzelnen Sinngebietes für das Ganze der Kultur’.

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of its culture. But it is an untenable view that this moment is only there when the individual is considered to be ‘the measure of all things’¹. The chief point is that Münch's view of the ‘primitive primary norm’ cannot give us an insight into the real structure of this phenomenon, because he tries to approach it psychologically, from the undifferentiated feeling of norms within a primitive society. But the undifferentiated communal feeling about what ought to be and what ought not to be can only be understood from the inner structure of the undifferentiated community itself, and not vice versa. For we cannot be satisfied here with tracing the merely modal structure of this collective feeling². The problem of a primitive primary norm is really that of its individuality-structure.

1 Op. cit. p. 352.
In a note Münch writes: ‘Für das Typische dieses kulturhistorischen Vorgangs ist es irrelevant ob man ihn sich an der Sophistik oder am Aufklärungszeitalter, oder an den modernen Relativismus, Historismus, Pragmatismus veranschaulicht’. [It is irrelevant to the typical characteristic of this cultural historical process whether the Sophistic period or the time of the Enlightenment, or modern Relativism, Historicism or Pragmatism is taken as an illustration.] These examples themselves prove Münch's criterion to be insufficient. For nobody will be able to maintain that before the occurrence of these movements human society was at a primitive stage of culture, without any differentiation of its structural norms.

2 Cf. Vol. II, part. I, pp. 111 ff.

Primitive primary norms should not be identified with the internal structural norms of a differentiated societal relationship. A revision of my former view of this question.

In the first draft of my Encyclopedia of Jurisprudence I was of opinion that this structure could also be illustrated by means of a natural community such as the family in its narrowest sense. Our elaborate analysis of the structural aspects of the natural family will immediately explain how I could arrive at such an opinion. For in the internal relations of this simple societal relationship all its modal aspects are indeed interlaced into the indissoluble unity of its basic individuality structure. The internal norms of the family present themselves to the members as a structural unity in which the separate modalities cannot be grasped in isolation. When a child is continually rude to its parents it does not only transgress a separate complex of norms relating to social intercourse, but it also violates parental rights;

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it shows a lack of love of its parents; it assails the aesthetic harmony within the family; it is guilty of a contempt of the norm of faith implying that its parents have received their authority from God and are invested by Him with an office, etc. In other words, the internal norms of the family are really structural norms of this community, which can never be resolved into their separate modal aspects.

The prevailing conception holds that this peculiarity can only be found in the case of ‘primitive primary norms’. I at one time identified the ‘primitive primary norms’ with the internal structural norms of a natural community. But it will be clear now that this view is equal to a denial of the primitive character of the phenomenon in question.

My old view provisionally had an advantage over the prevailing functionalistic conception. For it shed a sharp light on the fact that the internal norms of a natural community cannot be grasped with a modal concept of function.

But the identification of the so-called ‘primitive primary norms’ with the internal structural norms of a natural community gives no satisfaction. It is undeniable that truly primitive societal norms of an undifferentiated character are much more complicated than those of a simple family structure.

Primitive primary norms are essentially interweavings of various structural norms.

‘Primitive primary norms’ are forms of interweaving of various structural norms. A sib, e.g., not only forms internal norms of brotherhood within its undifferentiated structure, but also internal industrial norms, internal political norms, internal norms of a cult community and those of a ‘club’, in accordance with the variable social needs of a primitive society.

These complexes of internal norms have not been differentiated according to separate societal relationships, but are positivized in an undivided and undifferentiated form of social organization. We have shown, however, that in this societal form one particular structural principle plays the leading part. This is the reason why in a primitive societal relationship its members are unaware of the structural differentiation among these societal norms. Norms of social intercourse, legal norms, those of morality and faith, etc., are never realized by the primitive consciousness in their abstract modality, but exclusively in the concrete structure of one and the same primitive community.

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This implies that there can a fortiori be no question of a differentiated legal, or moral consciousness or one of social intercourse as such. The undifferentiated structure of the primitive societal unit also covers up the modal aspects of these complicated primitive norms in the communal consciousness.

This phenomenon of the primitive primary norm is something quite different from that of a complex of norms containing rules of different structures but destined for various differentiated societal relationships.

If, for instance, a modern State has adopted the principle of a State Church (in England the Established Church) the government as ‘praecipuum membrum ecclesiae’ may, e.g., enact certain ecclesiastical norms. The same statute may also contain truly internal constitutional norms of the body politic. But the fact remains that in this case Church and State each possess a differentiated societal structure. Nobody who has not got entangled in a historicistic positivism will deny that the structural norms concerned also have a differentiated character.

In the case of ‘primitive primary norms’ things are entirely different. The various individuality structures of human society have not yet been formed into differentiated communities. Only one undifferentiated form of organization interweaves them all to the unity of its primitive structure.