Paternal violence

from Wikipedia, the free encyclopedia

The paternal authority in the sense of supremacy in a family has been increasingly discussed since the 18th century and in the 19th century, a central concept in personal law . The term was taken over from Roman sources with reference to Roman antiquity and its legal concept of patria potestas and translated literally into German .

In the bourgeois family model that was emerging at that time , paternal violence stood for the legal justification of the priority of the father over the mother and children up to an unrestricted " despotic violence ". The legal term reflects the "strengthening of a bourgeois - reactionary patriarchalism ".

In the German legal observable trend is despite different constitutions , legal sources and political conditions in other countries of Europe .

Historical basis of gender guardianship

The legal priority of the father over the mother within parenthood goes back to the restriction of the rights of women and mothers in the context of gender guardianship. Gender guardianship has a long tradition worldwide , in Europe from ancient Greece and Rome through the Middle Ages to modern times . The special form of marital gender guardianship in particular continued to exist for a long time in Europe, but was increasingly taboo from the middle of the 19th century .

"The patria potestas , which for a long time as a 'paternal power' under the application of the German Civil Code lived on and - after an intermediate stage of ' parental control ' - in Germany only with effect from 01.01.1980 by the custody was replaced was in Rome the comprehensive right of the pater familias over the family . ” Gottfried Schiemann

Gender guardianship only gradually receded worldwide in numerous attacks and counter-attacks, whereby the different legal systems gave rise to very different regulations and developments with a wide range of variations.

Development in different legal systems

German law

Legal gender guardianship in the bourgeois family model

After the clarification and the replacement of church jurisdiction , the maintenance of the underage and fundamentally limited legal capacity of women required a legal justification in order to be able to continue the polarized gender role as so-called “ gender guardianship ” of men over women. The inequality of the sexes could thus be used as an essential basis for the functionality of the bourgeois family model , the "heart of bourgeois culture". In this respect, gender guardianship was an important prerequisite for the rise of the bourgeoisie and the bourgeoisisation of society .

The development of gender guardianship has widespread roots and is characterized by an “almost confusing fuzziness”, contradictions and inconsistencies . This was followed by reactionary bourgeois legal doctrine, part of the historical school of law , which promoted the “establishment of a bourgeois civil law without a legislator”. One set out "fairly unanimously and with zeal to re-establish the" practical interest "in maintaining the marital supremacy of men."

The bourgeois family was in this respect a central "project and practice of a small educated bourgeois class striving for social advancement and political power, whose share is estimated at around 5 percent of the population around the middle of the 19th century". As a political myth and “ invented tradition ”, the bourgeois family required adequate legal bases and legal concepts. This includes not only the legal justification of “ marriage as an institution ”, but also the justification of the father's primacy over “paternal authority”. They are part of an overarching “ guiding ideology ” that legally defines and enforces the difference between the sexes (gender roles ) as a central feature of the social order . The “bourgeois master thinkers” who founded the main ideology of gender characters included Kant , Rousseau , Fichte , Schlegel , Hegel , Görres , Novalis , Brentano , Kleist , Herder , Schleiermacher , Schiller , Goethe , Humboldt .

Marriage and paternal violence as legal terms

Already in the 16th century the term “the father's power” was used by Konrad Lagus as a translation of the Latin legal term patria potestas . In the 18th century it was translated as a subsequently established term with "paternal authority", as in 1740 by Johann Georg Bertoch. The lawyers of the time called for the strengthening of paternal violence or domestic violence, with reference to antiquity:

“The rule of a man over his wife is founded in nature , because nature shows us everywhere that the weaker must depend on the stronger, and the one who is nourished depends on the one who nourishes him. It is just as well founded in reason because it is contradicting that the person who has to rule such a house should not have the prestige and power and the means necessary for it. It is also founded in the agreement of all the rational and civilized peoples of antiquity . [...] This undue restriction of domestic and paternal violence only arose with the rule of Christianity . " Johann Heinrich Gottlob von Justi (1717–1771)

In the 19th century, representatives of the bourgeois, reactionary school of law, such as Friedrich Carl von Savigny , Karl Friedrich Eichhorn , Carl Joseph Anton Mittermaier , Carl Friedrich von Gerber or Otto von Gierke, pushed the legal implementation of the guiding ideology of gender characters . They designed the legal structure of man's rule in the house with particular pathos as the core of the bourgeois family ideal.

“But the special character of parental and child rights, paternal authority, the marital relationship and the rule of the man in the home in today's law is still largely based on that deeper conception of the family and that special moral force which the German national spirit attached to this natural connection. " Carl Friedrich Gerber (1823–1891)

In the justification of the legal concept of paternal power, reference was made to the Latin concept of patria potestas , but not linked to the underlying legal concept of the Roman Empire . That is why in the 19th century there was also less talk of “paternal rights”. In particular, equating the German term “violence” used in this context with the Roman potestas was denied. The starting point was above all the medieval term Munt .

Johann Gottlieb Fichte's “Fundamentals of Natural Law” with its appendix “Deduction of Marriage” and the misogynous attitudes contained therein became legally trend- setting : According to Fichte, the woman is the “natural institution” of marriage after “one level lower than the man” and can only then come back on the same level with him "by making herself the means of the satisfaction of the man"; she "only regains her full dignity because she did it out of love for this one".

On this basis, a “reactionary turnaround in family law” was achieved as a countermovement to the relatively liberal divorce law of the Prussian ALR and some women-friendly provisions for unmarried mothers and their children. This had an "astonishing long-term effect" and outlasted all discussions, objections of individual lawyers, legal battles of the women's movement and the codification of the Civil Code (BGB) at the turn of the century.

In the 1840s, in the political unrest of Vormärz, the representatives of the bourgeois, reactionary Germanic legal school established the right to rule of men with the German national character and the special intimacy of German family life. Previously, lawyers such as Wilhelm Bornemann , Johann Friedrich Ludwig Göschen or Georg Puchta had expressed themselves much more cautiously in the 1830s and judged the rights and duties of men and women to be of equal importance.

Austria

The legal concept of paternal violence was retained in Austrian law until 1976.

France

In France , “the features of medieval patriarchalism remained most pure and preserved for the longest.” The wife was subject to unrestricted rule (autorité maritale), although she was capable of ownership, but at the same time absolutely incapable of acting. The father was granted unrestricted, “despotic power” over his children, illegitimate children and mothers enjoyed no rights or protection, because research into paternity was forbidden.

As in Germany, the rigid paternal violence against children was changed in favor of a paternalistic orientation of the French welfare state . Because of the demographic problems, motherhood was described as a special republican duty and virtue of women, but was not left to early childhood education alone .

Content

The legal concept of paternal violence included, depending on the legal structure of the family institution, the guardianship of the husband or (house) father for the wife, the children and sometimes the servants . This included a range of rights and duties , including the right to legal representation, to punishment , to access to property and to use labor .

At the turn of the 20th century, paternal violence was increasingly placed under the supervision of the state guardianship ( child welfare ) to protect the “ national interest in the child ” . It was initially transformed into parental authority and then parental custody (Germany 1979, Switzerland) or custody (Austria).

Change of legal terms of guardianship
Modern times Paternal violence
Late 19th / early 20th century Parental authority
End of the 20th century Parental care / child welfare

literature

  • Iris Brokamp: The legalization of the parent-child relationship in a hundred years of the German Civil Code . Bielefeld 2002.
  • Thilo Engel: Parental authority under state supervision in France and Germany (1870-1924). Frankfurt 2011.
  • Wilhelm Kieseritzky: The paternal violence and its relation to the property of the children, according to Rigaschem city rights . Munich 1860.
  • Adolf Stoelzel: The right of paternal violence in Prussia . Berlin 1874.
  • Harry Willekens: The history of family law in Germany since 1794. An interpretation from a comparative perspective. In: Stephan Meder (Ed.): Women's rights and legal history: the legal struggles of the German women's movement . Cologne 2006, pp. 137–168.
  • Julius Weiske: Legal encyclopedia for jurists of all German states containing the entire jurisprudence / 12: Paternal violence. Leipzig 1858.
  • Angelika Zimmer: The custody and access rights in the light of the reform of the law of children. Münster 2011.

Individual evidence

  1. ^ Google Ngram Viewer: Paternal Violence. Retrieved April 5, 2017 .
  2. ↑ Adolf Stoelzel: The right of paternal power in Prussia . Berlin 1874.
  3. ↑ Harry Willekens: The history of family law in Germany since 1794. An interpretation from a comparative perspective . In: Stephan Meder (Ed.): Women's rights and legal history: the legal struggles of the German women's movement . Cologne 2006, p. 137-168 .
  4. ↑ Angelika Zimmer: The custody and access rights in the light of the reform of the law of children . Münster 2011, p. 55 ff .
  5. ↑ Arne Duncker: Equality and inequality in marriage: personal position of women and men in the law of the conjugal union 1700-1914 . Cologne 2003, p. 1039 .
  6. ↑ Ute Gerhard: The woman as a legal person - or: How different are the sexes? Insights into 19th century jurisprudence . In: Journal of the Savigny Foundation for Legal History: German Department . tape 130 , no. 1 , August 2013, p. 281-304 .
  7. ↑ Ernst Holthöfer: The gender guardianship. An overview from antiquity to the 19th century . In: Ute Gerhard (Hrsg.): Women in the history of the law: from the early modern times to the present . Munich 1997, p. 390-451 .
  8. ^ David Warren Sabean: Alliances and Lists: Gender Guardianship in the 18th and 19th Centuries . In: Ute Gerhard (ed.): Women in the history of law. From the early modern times to the present . Munich 1997, p. 452-459 .
  9. ↑ Gottfried Schiemann: The new Pauly . Ed .: Hubert Cancik, Helmuth Schneider. 9. Antiquity, 2000, p. 402 .
  10. ↑ a b Ernst Holthöfer: The gender guardianship. An overview from antiquity to the 19th century . In: Ute Gerhard (Hrsg.): Women in the history of the law: from the early modern times to the present . Munich 1997, p. 390-451 .
  11. ↑ Gunilla Budde: heyday of the middle class. Bourgeoisie in the 19th century . Darmstadt 2009, p. 25 .
  12. ↑ a b c d e f g h i Ute Gerhard: The woman as a legal person - or: How different are the sexes? Insights into 19th century jurisprudence . In: Journal of the Savigny Foundation for Legal History: German Department . tape 130 , no. 1 , August 2013, p. 281-304 .
  13. ↑ Ure Frevert: Bourgeois master thinkers and the gender ratio . In: Ure Frevert (Ed.): Citizens . Göttingen 1988, p. 17-48 .
  14. ^ Konrad Lagus : Compendium juris civilis et saxonici. Edited by Joachim Gregorij. Magdeburg 1597, p. 33 (digitized version)
  15. ↑ Johann Georg Bertoch: Promptvarivm Ivris Practicvm or Practischer stock of a thorough legal science . Leipzig 1740, p. 1042 .
  16. ↑ Johann Heinrich Gottlob von Justi: The nature and essence of states, as the basic science of statecraft, policies, and all government sciences, likewise as the source of all laws . Berlin 1760, p. 416 f . ( Digitized version ).
  17. ^ Carl Friedrich Gerber: System of German private law . 2nd Edition. Mauke, Jena 1850, p. 496 §222 ( digitized version ).
  18. ↑ General German Real Encyclopedia for the educated classes (Conversations Lexicon) . 8th edition. tape 11 . Brockhaus, Leipzig 1836, p. 598 ( online ).
  19. ^ Ludwig Rudolf von Salis: Contribution to the history of paternal violence according to old French law. In: Journal of the Savigny Foundation for Legal History. German Department. Volume 7, 1887, pp. 137–204, here: p. 140 Note 3 (digitized version )
  20. ↑ Carl Joseph Anton Mittermaier: Principles of common German private law including trade, bill of exchange and maritime law . Landshut 1830, p. 671 ff . ; Ludwig Rudolf von Salis: Contribution to the history of paternal violence according to old French law. In: Journal of the Savigny Foundation for Legal History. German Department. Volume 7, 1887, pp. 137-204, here: pp. 140 f .; Carl Hein: The parental usufruct right to the child's property . Worms 1908, p. 4 .
  21. ↑ Johann Gottlieb Fichte: Deduction of marriage . In: Johann Gottlieb Fichte (ed.): Basis of natural law according to the principles of science . 1763, p. 298-338 .
  22. ^ From patriarchy to partnership - family law reform in Austria. (PDF) Democracy Center Vienna, accessed on April 5, 2017 .
  23. ^ Marianne Weber: Wife and mother in legal development . Tübingen 1907, p. 318 ff .
  24. ↑ Ursula Floßmann : Austrian history of private law . Vienna 1983.
  25. ↑ Sonya Michel, Eszter Varsa: Children and the National Interest . In: Dirk Schumann (Ed.): Raising citizens in the “century of the child”. The United States and German Central Europe in comparative perspective . New York 2010, p. 27-52 .
  26. ↑ Thomas Nipperdey: German History 1866-1918. The world of work and civic spirit . tape 1 . Munich 1990, p. 71 .