Marriage, As It Was, As It Is, and As It Should Be: A Plea for ReformBesant, Annie
Philosophy
Marriage, As It Was, As It Is, and As It Should Be: A Plea for Reform
Besant, Annie
Marriage -- Great Britain; Marriage law -- Great Britain
Mr. John Stuart Mill, dealing very briefly with the marriage contract
in his essay "On Liberty," points out that the fulfilment of obligations
incurred by marriage must not be forgotten when the contract is
dissolved, since these "must be greatly affected by the continuance
or disruption of the relation between the original parties to the
contract." But he goes on to say: "It does not follow, nor can I
admit, that these obligations extend to requiring the fulfilment of the
contract at all costs to the happiness of the reluctant party; but they
are a necessary element in the question; and even if, as Von Humboldt
maintains, they ought to make no difference in the _legal_ freedom of
the parties to release themselves from the engagement (and I also hold
that they ought not to make _much_ difference), they necessarily make a
great difference in the _moral_ freedom. A person is bound to take all
these circumstances into account before resolving on a step which may
affect such important interests of others; and if he does not allow
proper weight to those interests, he is morally responsible for the
wrong. I have made these obvious remarks for the better illustration of
the general principle of liberty, and not because they are at all needed
on the particular question, which, on the contrary, is usually discussed
as if the interest of children was everything, and that of grown persons
nothing" (p. 61). The essay of Von Humboldt, referred to by Mr. Mill, is
that on the "Sphere and Duties of Government;" Von Humboldt argues
that "even where there is nothing to be objected to the validity of a
contract, the State should have the power of lessening the restrictions
which men impose on one another, even with their own consent, and by
facilitating the release from such engagements of preventing a moment's
decision from hindering their freedom of action for too long a period
of life" (p. 134, of Coulthard's translation). After pointing out that
contracts relating to the transfer of _things_ should be binding, Von
Humboldt proceeds: "With contracts which render personal performance a
duty, or still more with those which produce proper personal relations,
the case is wholly different. With these coercion operates hurtfully on
man's noblest powers; and since the success of the pursuit itself which
is to be conducted in accordance with the contract, is more or less
dependent on the continuing consent of the parties, a limitation of such
a kind is in them productive of less serious injury. When, therefore,
such a personal relation arises from the contract as not only to require
certain single actions, but, in the strictest sense, to affect the
person, and influence the whole manner of his existence; where that
which is done, or left undone, is in the closest dependence on internal
sensations, the option of separation should always remain open, and the
step itself should not require any extenuating reasons. Thus it is with
matrimony" (pp. 134-135).
Public-domain text, read in full here on John Shaqi.
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