philosophy of right-第43章
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death； his property becomes wealth without an owner； and as such falls to the first person who
takes possession of it； because ；of course it is the relatives who are normally nearest a man's
death…bed and so they are generally the first to take possession。 Hence it is supposed that this
customary occurrence is made a rule by positive legislation in the interests of orderliness。 This
ingenious idea disregards the ；nature of family relationship。
§ 179。
The result of this disintegration of the family is that a man may at will either
squander his capital altogether； mainly in accordance with his private caprices；
opinions； and ends； or else look upon a circle of friends and acquaintances； &c。；
as if they were his family and make a will embodying a declaration to that effect；
with the result that they become his legal heirs。
Remark： The ethical justification of freedom to dispose of one's property by 'will to a circle of
friends would depend on the formation of such a circle； there goes to its formation so much
accident； arbitrariness； and self…seeking； &c。 … especially since testamentary hopes have a bearing
on readiness to enter it … that the ethical moment in it is only something very vague。 Further； the
recognition of a man's competence to bequeath his property arbitrarily is much more likely to be
an occasion for breach of ethical obligations and for mean exertions and equally mean
subservience； and it also provides opportunity and justification for the folly； caprice； and malice of
attaching to professed benefactions and gifts vain； tyrannical； and vexatious conditions operative
after the testator's death and so in any case after his property ceases to be his。
§ 180。
The principle that the members of the family grow up to be self…subsistent
persons in the eyes of the law （see § 177） lets into the circle of the family
something of the same arbitrariness and discrimination among the natural heirs；
though its exercise there must be restricted to a minimum in order to prevent
injury to the basic family relationship。
Remark： The mere downright arbitrariness of the deceased cannot be made the principle
underlying the right to make a will； especially if it runs counter to the substantive right of the family。
For after all no respect would be forthcoming for his wishes after his death； if not from the family's
love and veneration for its deceased fellow…member。 Such arbitrariness by itself contains nothing
worthy of higher respect than the right of the family as such … on the contrary。
The other ground for the validity of testamentary disposition would consist simply in its arbitrary
recognition by others。 But such an argument may prima facie be admitted only when family ties； to
which testamentary disposition is intrinsic； become remoter and more ineffective。 If they are
actually present； however； without being effective； the situation is unethical； and to give extended
validity to arbitrary dispositions at the expense of family ties eo ipso weakens the ethical character
of the latter。
To make the father's arbitrary will within the family the main principle of inheritance was part of the
harsh and unethical legal system of Rome to which reference has been made already。 That system
even gave a father power to sell his son； and if the son was manumitted by a third party； he came
under his father's potestas once more。 Not until he was manumitted a third time was he actually
and finally free。 The son never attained his majority de jure nor did he become a person in law；
the only property he could hold was booty won in war （peculium castrense）。 If he passed out of
his father's potestas after being thrice sold and manumitted； he did not inherit along with those
who had continued in bondage to the head of the family； unless the will specifically so provided。
Similarly； a wife remained attached to her family of origin rather than to the new family which by
her marriage she had helped to found； and which was now properly her own； and she was
therefore precluded from inheriting any share of the goods of what was properly her own family；
for neither wife nor mother shared in the distribution of an estate。
Later； with the growing feeling for rationality； the unethical provisions of laws such as these and
others were evaded in the course of their administration； for example with the help of the
expression bonorum possessio instead of hereditas； and through the fiction of nicknaming a filia
a filius。 This was referred to above （see Remark to § 3） as the sad necessity to which the judge
was reduced in the face of bad laws … the necessity of smuggling reason into them on the sly； or at
least into some of their consequences。 Connected with this were the terrible instability of the chief
political institutions and a riot of legislation to stem the outbreak of resulting evils。
From Roman history and the writings of Lucian and others； we are sufficiently familiar with the
unethical consequences of giving the head of a Roman family the right to name whom he pleased
as his heir。
Marriage is ethical life at the level of immediacy； in the very nature of the case； therefore； it must
be a mixture of a substantial tie with natural contingency and inner arbitrariness。 Now when by the
slave…status of children； by legal provisions such as those mentioned above as well as others
consequential upon them； and in addition by the ease of Roman divorce； pride of place is given to
arbitrariness instead of to the right of the substantial （so that even Cicero … and what fine writing
about the Honestum and Decorum there is in his De Officiis and in all sorts of other places！ …
even Cicero divorced his wife as a business speculation in order to pay his debts with his new
wife's dowry）； then a legal road is paved to the corruption of manners； or rather the laws
themselves necessitate such corruption。
The institution of heirs…at…law with a view to preserving the family and its splendour by means of
fideicommissa and substitutiones （in order to favour sons by excluding daughters from inheriting；
or to favour the eldest son by excluding the other children） is an infringement of the principle of the
freedom of property （see § 62）； like the admission of any other inequality in the treatment of heirs。
And besides； such an institution depends on an arbitrariness which in and by itself has no right to
recognition； or more precisely on the thought of wishing to preserve intact not so much this family
but rather this clan or 'house'。 Yet it is not this clan or 'house'； but the family proper which is the
Idea and which therefore possesses the right to recognition； and both the ethical disposition and
family trees are much more likely to be preserved by freedom of property and equality of
inheritance than by the reverse of these。
Institutions of this kind； like the Roman； wholly ignore the right due to marriage； because by a
marriage the foundation of a unique actual family is eo ipso completed （see § 172）； and because
what is called； in contrast with the new family； the family in the wide sense； i。e。 the stirps or gens；
becomes only an abstraction （see § 177） growing less and less actual the further it recedes into
the background as one generation succeeds another。 Love； the ethical moment in marriage； is by
its very nature a feeling for actual living individuals； not for an abstraction。 This abstraction of the
Understanding ＇the gens＇ appears in history as the principle underlying the contribution of the
Roman Empire to world history （see § 357）。 In the higher sphere of the state； a right of
primogeniture arises together with estates rigidly entailed； it arises； however； not arbitrarily but as
the inevitable outcome of the Idea of the state。 On this point see below； § 306。
Addition： In earlier times； a Roman father had the right to disinherit his children and even kill
them。 Later he lost both these rights。 Attempts were made to forge into a legal system this
incoherence between unethical institutions and devices to rob them of that character； and it is the
retention of this incoherence
