Part 1. Laws on Family Relations

The family represents the naturally cohesive unit that lies at the foundation of the state, constitutes the primary germ of public-state life, and therefore holds a determining significance for its entire structure: the character of political life depends on the one or another constitution of the family; the normal or abnormal state of the state itself, the strength or weakness of its organism, depends on the normal or abnormal state of family relations, on the strength or weakness of family bonds. In view of such important significance of the family in the state, all legislators have sought to organize the family as well as possible, and thereby make it a source of the state’s flourishing and strength. But the family was formed, and its relations were established, before the mind—freed from the dominion of unreflectively formed relations—could critically examine given institutions and give them a theoretically developed direction. All legislators with their theoretically developed laws came not to raw, unformed material but encountered before them an already-organized whole with established relations governed by customary law. The task of legislators in such a case reduces itself to the simple ordering of existing relations, so as to impart to them a direction corresponding to the fundamental idea of the legislation. The same was true with respect to the legislation of Moses. The Sinaitic legislation—new in its principles and purposes—in its, so to speak, material aspect, nevertheless rested on the ancient customary law, with a history of many centuries behind it, sanctified by the lives of the great founding fathers, the patriarchs of the Hebrew people. It was with this customary law that the legislator had to deal in the domain of family relations as well, receiving them as ready-made data that required only more strict, legally defined ordering and harmonization with the foundational principles of the new legislation. Hence, in investigating the laws of Moses on family relations, one must keep in view the customary law that prevailed before him, as expressed in the preceding history. But since customary law itself has at its foundation a general view of the essence of family relations, it is necessary, in order to elucidate the essence both of customary law and of Mosaic legislation proper in the domain of family relations, to keep in view the foundational biblical view of the essence of those relations.

Family relations presuppose first of all marriage, and it would therefore be best to begin the investigation of them with this act. But the investigator here encounters a circle, since marriage itself presupposes persons who lived before marriage, who had their own rights and obligations, who exerted influence on the very contracting of marriage. For this reason some scholars—such as Saalschütz, Oehler, and others—begin their examination of Mosaic laws on family relations with marriage, while others, by contrast, begin with an examination of the legal position of children—such as Michaelis, Pastoret, Ewald, and others. For our part, we prefer to adopt the method of the latter group, since it affords the possibility of a more coherent exposition of the legal rights of persons under family law—in their pre-marital, marital, and post-marital states.