IV: Rights in Theocratic Society
Universal social right applied to the household or family, as with other societies, yields seignorial right, governmental right, and communal right. For discussing the family, Rosmini sets seignorial right aside; seignorial right does structure the family, despite not itself being social, but unlike with theocratic society, which has a very distinctive seignorial structure due to God having the seignory, domestic society doesn't have a distinctive seignory structure; if the household has a servant, this is not really different (from the perspective of rights) from an individual doing so. It's just individual right; it just happens to be something that the household can sometimes incorporate as part of its structure. So Rosmini will mostly focus on governmental right and communal right. As always, these depend on the nature of the society, and the household or family is structured by two kinds of social relationship, in such a way as to be able to be, in a sense, two societies at once: the conjugal society, between spouses, and the parental society, between parents and children.
Both of these are natural societies pre-existing in one form or another any civil society. As such, both of them have a distinctive relation to natural theocratic society, that is, the universal society of all human beings, in that they contribute to the enrichment and completion of the latter. In the case of conjugal society, this means that husband and wife have a double union, one as human beings and another, richer relationship, as man and woman capable in principle of reproducing. The result is that conjugal society has a peculiar character of maximizing the extent to which two people can be united with each other. Conjugal society is, on the part of humanity, a friendship of common good which is furthered by cultivating affections of humanity toward each other: "...if conjgual union must be the maximum union resulting from all possible unions between two human beings, the spouses must also be united by teh affection and virtue of humanity throughout the trunk and branches; each must love in their consort human nature and its endowments whether these are already in the consort or in order that they may be there" (p. 19). But spouses also have union as distinct in sex; this union, properly developed, is an act of soul (rather than merely physical affection) in mutual communication of life in such a way that generation could be a natural effect of the union. This union is at least that to which conjugal society is ordered or directed; it is that in which it achieves its full character. The spouses, without their persons being confused, are united in nature.
Conjugal society is created by promissory contract or pact in which each has to be treat the other specifically as a person and not a mere means. The consent for this contract has to have all the standard features of consent for contracts, but the consent has to be not merely legal but natural, and it must be consistent with the union mentioned above, although it only requires that that union be at least potential. All of this is complicated slightly by the fact that the marital contract is sacramental within the Church, which intensifies some of the features of marriage. Possible impediments to the conjugal contract are those that interfere with the union, those that interfere with the contract as such, and those that interfere with the sacrament. (Strictly speaking these are diriment impediments; other impediments, prohibitive impediments, do not prevent the contract but simply make it immoral in some way.) Rosmini discusses these, but I will pass on.
As with every other society, conjugal society presupposes the natural theocratic society, i.e., the universal society of humankind, and therefore includes as part of its implicated obligations the obligation to recognize this society and the rights associated with it. Within this context, the conjugal society is a unified moral person consisting of two individual natural human persons, and therefore the spouses have both individual rights and common rights. Spouses have a duty to preserve and bring to fruition the fullness of union to which marriage is directed, which as a fullness of union requires indissolubility, uniqueness of spouse, community of life, and community of goods, and the duties and therefore rights of psouses can be organized in terms of these. Each spouse has the right to the indissoluble commitment of the other, that is, indissoluble as long as the title of the right remains. In the most basic and natural case, the title is just "the human being's upright nature subsisting in both sexes" (p. 89), but within supernatural theocratic society, there are also further legal and sacramental titles, giving an even greater force and durability to the indissolubility. Violations of the right to indissolubility include concubinage (sexual cohabitation without regard for full conjugal union) and divorce (attempt to dissolve the indissoluble union). Each spouse likewise has a right to be the unique sexual partner of the other; we see one sign of this in the fact that jealousy, in the context of violations of this unicity, has the features of jural resentment, i.e., reasonable people regard themselves as injured by such violations, but we also see this in the requirements of fidelity in a full conjugal union. Each spouse has a right to community of life, that is, "a ceaseless exercise and perpetual exchange of beneficence that the spouses carry out between them" (p. 130). Likewise, each spouse has a right to community of goods, although this does not destroy their individual rights involving possessions.
Further, there are rights and duties associated more indirectly with these features of conjugal union, as contributing to the order required for them. Insofar as the conjugal society is an actuation of the natural theocratic society, i.e., the universal society of humanity, each spouse has the duties to avoid what would diminish esteem and mutual affection, to strive for what increases esteem and mutual affection, to avoid what would diminish concord, and to pursue what will contribute to mutual help and harmony. Both together have the duty "to further their common moral perfection" (p. 135). With respect to their specific sexual union, the spouses each have the right to request, and the duty to provide, what is due to the sexual union, the right and the duty to maintain the sexual union in a way consistent with human dignity, the right and duty "to respect the conceived foetus so that it experiences no harm from the behaviour of the woman or her husband", and "the duties and rights of raising and educating offspring in the world" (p. 136). (Rosmini also holds the view, not uncommon in his day, that the behavior of the parents leaves an impression on the children they conceive, and so naturally takes there to be a duty to act virtuously in such a way as will not interfere with proper development of the child. Obviously, we would not see things quite the same way, but in fact there are behaviors that can badly influence the development of a child -- drug use being an obvious case -- and so the duty would be essentially the same for us, although the facts, and thus the way the duty applies, might not always be so.)
As individual members of the conjugal society, they have both connatural and acquired rights. The connatural rights are such as have already been discussed elsewhere, but they have distinctive roles within the conjugal society, e.g., "Each spouse is an end, not simply a means, and as such must be respected by the other" (p. 142), marriage must be mutually consensual, the wife cannot be treated as a bondservant, and so forth. Individual rights can differ within conjugal society due to (1) the difference in titles that result from the facts of the society, and (2) the difference in modalities that arises from the spouses acting in a way that respects each other's rights. The most significant of the latter are the occasional differences in how the same rights work for a husband or a wife. Rosmini argues that one of these modifications is that, while husband and wife have the same rights, the husband generally has them as head of household (i.e., with the special responsibility to oversee the common rights and duties of the conjugal society as a whole), the titles of which Rosmini takes to be different characteristics associated with men and women. (He holds elsewhere, however, that there are particular circumstances in which a woman may need to exercise the role of head of the household, when her husband either permanently or temporarily cannot do it.) A properly just conjugal society will avoid giving the husband seignory over the wife (making the wife merely the servant of the husband) but also avoid treating the conjugal society as if it were nothing but a loose democracy of two individuals rather than a unified distinctive society with moral personhood and proprietà of its own; he takes the first extreme to be what often has vitiated pagan marriages, and the second to be a pathology that especially tends to develop in Christian marriages that deviate from Catholic principles. As with all rights, all of the rights of husband and wife can be modified by situations so as to create rights of defense or reparation, as appropriate.
The second society that composes domestic society is parental society, which is generated within conjugal society. Parental society creates new jural relationsips between parents, between parents and children, and among children. Every person involved of course has their own individual rights, and gets distinctive rights as these are modified by the nature of domestic society to work consistently with the rights of others in the society, but there are also rights specifically arising from government and membership within the society itself.
The fundamental title of all rights in parental society is generation or procreation, which creates a new juridical person out of mother, father, and children. This title is the title specifically for patria potestas, the general parental power, which both mother and father have (although each as modified by their role in conjugal society). Generation forms the mother and father as a collective person capable of being a subject of rights; this collective person is marked by perpetuity, equality, headship (generally of the husband), and priority to the existence of the child. The priority of the union of mother and father implies that the child's principal duties are first to the parents as a solidary unit, and that the first basic parental rights of both mother and father are something they share as a solidary unit. The parents have seignorial right (dominion, lordship) over the child arising from the fact that the child begins literally dependent upon them, which title changes, thus modifying the right, as the child grows, but of course the child has at all times individual right and personal dignity. Part of the purpose within parental society of the seignorial right of the parents, in fact, is to look after and protect the child's rights and dignity. Patria potestas cannot violate the formal rights of the child as a person, nor take the child's life, nor give the child into slavery, nor inflict any punishment on the child except insfoar as it is necessary for the good of the domestic society. It does, however, extend to anything that can contribute to the common good of the domestic society. (As the parents further this common good, the child develops a duty of gratitude to the parents; this creates parental rights in a loose sense, but not usually in a strictly juridical sense.) The essential rights involved in patria potestas are (pp. 184-185):
(1) To occupy the child, i.e., to treat the child as one's own child;
(2) To make use of the child in ways that do not harm the child;
(3) To raise the child in body;
(4) To educate the child in mind;
(5) To keep the child in their society until the child leaves (e.g., by marrying and starting a new household).
As Rosmini puts it, patria potestas involves a small amount of dominion, making the parental society useful to the parents, and a large amount of beneficent government, making the parental society useful for the children. Parental right is quite substantive, but it is also in some ways quite limited. Most of parenting has only a very general connection to parental right in particular, for instance; most of it is about living morally within the framework of rights of parents and children, rather than focusing entirely on the framework itself. All the decisions made in the family have to be consistent with the rights of its members, but most of the decisions are not specifically about the rights of its members. A very good family will be one in which the rights of its members are respected, but you can have a family that respects the rights of its members that is nonetheless quite mediocre or even poor, because much of the moral activity in the family is not juridical. A parent could be quite bad as a parent (cold, foolish, inconsiderate, dismissive, neglectful, etc.), giving the child plenty of moral ground for complaint, without the child having any specifically jural ground for complaint. Not all moral duties directly correspond to rights; a jural duty is "that which obligates a person to leave intact and free any activity proper TO ANOTHER PERSON" (pp. 192-193), so any moral failing that does not harm one's free activity or that does not directly concern another person will not be a juridical or jural failing.
Thus domestic society in itself. Domestic is one of the societies necessary for human fulfillment. Domestic society, of course, also exists in the Church (supernatural theocratic society), which gives it additional features; theocratic society, of which the Church is the consummation, is the second society necessary for human fulfillment. It's also the case that households band together to form civil society, which is the third kind of society necessary for human fulfillment. Within civil society, domestic society also gains certain features arising from positive law. While civil society cannot violate the rights of domestic society, civil society exists to provide modifications of rights so that all the rights of everyone "may co-exist and be exercised in the most free, convenient and advantageous way possible" (p. 204). Thus, for instance, in respecting the rights belonging to parental society, civil society may activate in different ways the inheritance functions inherent in parental society; it may also provide a certain amount of recourse for extreme cases in which the domestic rights of family members are being violated; it may give families claims on other families where this is necessary for the rights of all; and so forth.
All of this, however, can only be properly understand when we understand how rights work with respect to civil society, which is the next thing to which we turn.
to be contined
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Antonio Rosmini, The Philosophy of Right, Volume 5: Rights in the Family, Cleary and Watson, trs., Rosmini House (Durham, UK: 1995).