A History of Matrimonial Institutions, Vol. 1 of 3Howard, George Elliott
History
A History of Matrimonial Institutions, Vol. 1 of 3
Howard, George Elliott
Families; Marriage -- History
[60] The _rita_-conception is well expressed by DR.
BOTSFORD: "This mankind learned from the revolution of
sun and stars, from the succession of the seasons, from the
unchanging movements of nature. The conception thus gained was
transferred to human modes of activity. The sexes in marriage
were subject to the _naturalis ratio_, as well as the continuance
of the race through successive generations. The relation of
parents to children with their reciprocal obligations and
privileges--the protection and support which the father, as
the stronger, offered, the kind care of the mother for her
infants, the reverence and affection with which the children
requited their services, the love of youth and maiden, leading
to marriage--all these rested, in the _rita_ period, on the one
foundation of natural law."--_Athenian Constitution_, 29, 30.
_Dhama_ thus forms a means of transition to the second juridical
phase, that of _dharma_, or divine law, corresponding to the Greek
_themis_ and the Latin _fas_.[61] In the _dharma_ period, law is
regarded as inspired by the gods, whose earthly agent, the priest or
hero-king, is intrusted with its application; and in it the rules
governing civil and public conduct, according to modern conceptions,
are not distinguished from those relating to manners, morality, or
religion. When history dawns, our early Aryan ancestors had already
entered the _dharma_ phase of evolution; and even now the Hindus
have scarcely gained the third phase, prevailing in the civilized
West, in which the element of "civil law" is separate from all other
ingredients.[62]
[61] The discussion of the two general phases of _rita_ and
_dharma_, with their transitional stages, constitutes one of
the most valuable parts of LEIST'S contribution to
comparative jurisprudence: _Alt-arisches Jus Gentium_, 3, 111
ff., 132, 133, 174 ff., 606; _Graeco-italische Rechtsgeschichte_,
175-285. _Cf._ BOTSFORD, _op. cit._, 24, 25, 26 ff., for
an excellent account; on the Roman stages see MUIRHEAD,
_Private Law of Rome_, 14-23; and for the Greek _themis_ and the
_themistes_ of the hero-kings consult MAINE, _Ancient
Law_, chap. i.
[62] For a definition of _dharma_ see BERNHÖFT, "Ueber
die Grundlagen der Rechtsentwicklung bei den indogermanischen
Völkern," _ZVR._, II, 266 ff., 261 ff.
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A History of Matrimonial Institutions, Vol. 1 of 3 — John Shaqi
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