On Divorce

Louis de Bonald

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351502290
• Edition: 1
• Topic: Philosophie
• Subtopic: Geschichte & Theorie der Philosophie

On Divorce is an anti-divorce treatise by Louis de Bonald, originally published in 1801 in response to the institution of divorce in France in the aftermath of the French Revolution. Examining the social structures of Christians, Jews, Asians, Greeks, and Romans, On Divorce links a theory of the family to a theory of politics and argues the family is a basic component of a stable society. As a politician, Bonald gave a crucial anti-divorce speech in the French legislature that summarized the argument of On Divorce. Due largely to Bonald's efforts, France abolished divorce in 1816.

According to Bonald, human society is composed of three interactive societies: religious society, domestic society (the family), and public society (the state). These societies operate on common principles and can only be analyzed in relation to one another. Since, in this view, the family, not the individual, is the basic unit of society, divorce represents a fundamental assault on the social order.

Bonald was one of the three principal founders of conservatism, along with Edmund Burke and Joseph de Maistre. Bonald's influence has been felt across the political spectrum and in areas as diverse as political theory, sociology, and literature. Of great interest to students of political philosophy, this work will be of equal value to those concerned with divorce and other social questions.

CHAPTER 1

Of the Proposed Civil Code,
Presented by the Commission of the
Council of State Named
by the Government

WHEN the question of the dissolubility or indissolubility of the conjugal tie arose in Europe at the beginning of the sixteenth century, the heads of the Reformation and their opponents, rigid theologians all, considered it a religious question, or at least a question for religion to decide; and in the same book, and in practically the same passages, some found the toleration of the conjugal tie’s dissolution, while others found the explicit law of its indissolubility.

It was a veritable civil war in the Christian world, which soon led to bloodier ones in the political world; and in which those who rose against the doctrine received in Europe believed they were respecting the dogma by attacking the discipline, rather like those political factions which struggle to gain sole control of the administration, while they all assert their loyalty to the constitution.

Different times, different spirit. The authors of the proposed Civil Code,^*1 after having taught us that “what marriage in itself is was previously unknown, and it is only in recent times that men have acquired precise ideas on marriage . . .,” have become convinced that “marriage as it existed before the establishment of Christianity, which preceded all positive law, and which derives from the very constitution of our being, is neither a civil nor a religious act, but a natural one, which attracted the attention of the legislator, and which religion has consecrated.” (Introduction to the proposed Civil Code.)

It is all the more useful to discuss the principles advanced in the passage just cited in that they have provided the basis for all the laws proposed on the faculty of divorce, from the first such proposal to that which received the legislator’s sanction.

How could one maintain in France, after fifteen centuries of public profession of Christianity, that is, of what is most perfect in moral discipline and legal principle, in the presence of the entire past company, among the most enlightened nations, of men versed in the science of civil and religious legislation, that “what marriage in itself is was previously unknown”—marriage, this element of every society, this contract which is truly social, the founding act of the family, whose laws are the basis for all political legislation? How could one assert that “it is only in recent times that men have acquired precise ideas on marriage”? And from when do these recent times date? Is it from the time of Luther, who allowed the dissolution of marriage, or from that of modern philosophy, which, not content to allow the easiest dissolution of the conjugal tie, has justified concubinage and extended its indulgence to adultery? And does it not already prejudge the issue in favor of the utility of divorce to assert, in the preamble of the law authorizing it, that what marriage is was unknown until recent times?

“Marriage as it existed before the establishment of Christianity, which preceded all positive law, and which derives from the very constitution of our being, is neither a civil nor a religious act, but a natural one, which attracted the attention of the legislator, and which religion has consecrated.” Marriage existed before Christianity, and preceded all positive law; but did it precede the natural relationships between sociable beings, of which the Christian religion offers the most perfect development, and of which all religious and political laws are merely the expression and manifestation?

The sentence just cited is highly misleading, and the various meanings it appears to present vanish under scrutiny.

Marriage is civil in terms of interests, religious in terms of souls; it is animal or physical in terms of bodies; and as the family has never, at any time whatever, been able to survive without property, and as man has always entered into marriage with all of his moral and physical capacities, it is accurate to say that marriage, in itself and at bottom, has always been a civil, religious, and physical act at once. It was not a civil act in the earliest times, in the sense that the interests of the family were defended by public force and ruled by public laws, which constitute what we call the civil state; but they were defended by domestic power, element of public power, and were ruled by morals or domestic laws, seeds of public laws, just as domestic society, or the family, is itself the element and seed of public society. Marriage was not religious in the sense that there were priests to bless it, but in the sense that it was divine, and that the Creator had said of woman, “She will leave her father and mother and cleave unto her husband,” and of the spouses, “They will be two in one flesh.” It is because marriage, in the earliest times and prior to the establishment of public, political, and religious societies, was a divine and human act (I understand by a human act a moral and physical one), as, ever since the establishment of public societies, it has been a civil and religious act; that is why, I say, it derives from the constitution of our being, of our nature, and is a natural act: for the true nature of man and the real constitution of his being consist in natural relationships with his being’s author, and in natural relationships, both moral and physical, with his fellows. It is only because marriage was both divine and human in the sense I mean that it attracted the attention of the civil legislator, and was consecrated by religion; for if the orator whose reasoning I am discussing, who opposes the natural to the civil and religious, as if what is civil and religious were not natural, understands by nature man’s animality, he falls into the same error as the Council of State’s reporter for the section of the Civil Code on marriage, when he says that “philosophers consider in marriage only the proximity of the sexes.” These are certainly, to mention it in passing, some strange philosophers; and it seems that only anatomists are thus allowed to consider the union of man and woman.

Natural marriage, which is neither civil nor religious, gives birth to Jean-Jacques Rousseau’s natural man, who is himself neither civil nor religious; and to say that marriage is neither a civil nor a religious act, but a natural one is to assert that the civil and religious states are not in man’s nature, and to fall back into the doctrine of the writer just mentioned when he says that “society is not in man’s nature”; and elsewhere: “everything that is not in nature has its disadvantages, and civil society more than all the rest.”

Let us say, then, that marriage is at once a social, domestic, civil, and religious act; the founding act of domestic society, whose interests should be guaranteed by civil authority, coming to the aid of domestic harmony, and in which religious authority causes Divinity to intervene in an external and sensible manner, in order to consecrate the union of hearts and purify the union of bodies.

The principle of the Civil Code’s author is erroneous, but consistent, and he was obliged to deny the civil and religious bond of marriage, which he wished to dissolve by civil authority, to the prejudice of religious authority.

I believe that, in the principles I have just set forth, one can find a satisfactory solution to the celebrated question debated in the school, namely: Whether the essence of marriage consists in the mutual faith of the spouses, or in the sacrament conferred by the Church. If one considers marriage in the purely domestic state of society, as it necessarily existed in the earliest times, or as it would still exist, and just as necessarily, between two human beings of different sexes cast away on a desert island, then marriage consists in the mutual faith of the spouses; if one considers it among Christians living in the public state of religious society, then it consists in the union of hearts, ratified and consecrated by the sacrament; and the opposite decision, even if handed down with good intentions, reflects the spirit of the century, and may have dangerous consequences.

Be that as it may, no question is simpler in its principles or more fertile in its consequences than that of divorce, since by itself it raises all the fundamental questions for society concerning power and duty; and I do not hesitate to affirm, and I even hope to show, that on the dissolubility or indissolubility of the conjugal tie depends, in France and everywhere, the fate of the family, religion, and the State.

In 1789, the family would have been saved from destruction if the political constitution had been defended against democracy; today, to save the State, the domestic constitution must be defended against divorce; a cruel capacity, which takes all authority from the father, all dignity from the mother, all security from the child, and transforms domestic society into a struggle between strength and weakness, between power and duty; which constitutes the family as a temporary lease, where the inconstancy of the human heart stipulates its passions and interests, and which ends where other interests and new passions begin.

Divorce was decreed in 1792, and it came as no surprise, because it was an inevitable consequence, long foreseen, of the system of destruction followed at that time with such ardor; but today, when one seeks to rebuild, divorce enters the foundations of the social edifice as a principle; and this must cause severe apprehension among those destined to inhabit it.

I will go further. Divorce was in harmony with democracy, which reigned too long in France under various names and forms. Domestic power on the one hand, and public power on the other, were delivered up to the passions of the subjects; there was disorder in the family and disorder in the State: between the two, there was a parity and an analogy of disorder. And there is, so to speak, some sort of order where everything is disordered in the same manner and sense. But divorce is directly contradictory to the spirit and principles of hereditary or indissoluble monarchy. There is then order in the State and disorder in the family; indissolubility in the one, dissolubility in the other, a lack of harmony in consequence; and in this situation, either the family must end by disordering the State, or the State by ordering the family. There is more. In a democracy, the people has the privilege of making laws and abolishing them according to its whims. But because of the short duration of its magistracies, it is rare for there to be individuals powerful enough to bend the laws to their passions; whereas in monarchy, where eminent positions, granted for life or hereditarily, give rise to great powers and fortunes, it can happen that the laws are, not made, but interpreted according to the wishes of the most influential persons; and what judgments are solicited by more lively passions than judgments in divorce, and what laws better lend themselves to arbitrary interpretation than those which limit or extend its faculty? Now, where the great have passed, the crowd passes in turn. What was difficult becomes easy, what was rare becomes common, what was forbidden becomes allowed; the exception acquires the force of law, soon the law is reduced to an exception; and the time comes when there is no longer any remedy for disorder but disorder carried to an extreme, or revolutions.

The jurist sees a contract in marriage; the publicist sees a society in the family, and the first of societies. It is from the latter standpoint alone that I consider the question of divorce. I leave it to others to discuss the proposed Civil Code’s arrangements concerning the possession and transmission of property; here I shall treat only the relationships between persons.

In this discussion, I shall use only the eloquence of reason, because I speak to legislators, and in the presence of a nation which, through force of experience, has arrived at that state in which it is easier to convince than to sweep along. Moreover, if the imagination paints the deplorable effects of divorce in more vivid colors, it presents just as lively a picture of the too often unhappy results of indissoluble unions; and in this uncertain contest, truth triumphs only by the accident of talent. Let us give its success a more certain chance, by fighting for it with its own weapons, which error cannot use without betraying its weakness.

I shall not even seek motives against divorce in the private affections of man, affections which are fleeting and changeable, and often directed toward culpable objects, more vivid sometimes than legitimate ones. The reason for man’s duties, like the reward for his virtues, must be sought outside of man himself. The man, woman, and children are indissolubly united not because their hearts must take pleasure in this union—for then how would we answer those for whom this union is a torment?—but because a natural law makes it a duty for them, and because universal reason, from which this law emanates, has founded society on a base less fragile than the affections of man.

I invite the reader to reread the part of the introduction to the proposed Civil Code which deals with marriage and the faculty of divorce. He will note, in its contradictory presentation of reasons for and against divorce, that the advantage lies wholly with the cause of indissolubility, and indeed that there reigns in this regard a striking contradiction between the general spirit of the introduction and the text of the Code. This observation has escaped no one. Some have attributed it to the inherent superiority of the cause, others to the personal opinions of the authors, and all were right. In this instance the authors’ minds were in agreement with their hearts; but such is the dominion of former times over the present that, in this unpleasant task, they were allowed to follow neither their sentiments nor their opinions. The public has recognized in particular the superior talent which M. Portalis, the vir bonus dicendi peritus of Cicero,² deployed on the days of battle in this same cause, as in others of no less importance. One is grateful to know him at the same time one is called to combat him, because one feels more keenly the advantage of agreeing with the intentions of the man, in the very places that one does share the opinions of the author.

I shall be forced to recall the religious beliefs of the part of the nation which rejects divorce, solely because the proposed Civil Code makes reference to the religious beliefs of the part of the nation which accepts its faculty; for, moreover, I think that on this question the government should concern itself, not with religious beliefs, but with reasonable actions; and it will doubtless be noticed that if I cite the Christian religion in support of my arguments, it is to show its conformity with the most enlightened reason, and not at all to seek motives in it capable of subjugating reason.

*Although this proposed code was not adopted, and another has been substituted for it since the publication of the first edition of this work, as the same principles on marriage presided over the new composition, it was not thought necessary to change anything that is said here.

---

¹Projet du code civil, présenté par la commission nommée par le Gouvernement le 24 thermidor an VIII (Paris: Imprimerie de la République, Year IX [1801]). This was the draft version of France’s Code civil. After extensive discussion, a revised version of this code was adopted in 1804, often called the Code Napoléon, which still serves as the basis for French law, as well as for that of several Latin American countries and the state of Louisiana.

²“A good man experienced in speaking.” Cato the Censor, from the fragments of the Letters to his son Marcus, fragment 14 = Seneca the Elder, Controversiae (Declamations) I. Preface, 9.

CHAPTER 2

Of Domestic Society

MAN and woman both are; but they are not both the same or in an equal manner, and they differ in sex.

This equality in being, this inequality in manner of being, is called similarity, and constitutes beings which are similar but not equal, and which can never become equal.

The union of the sexes is the reason for their difference; the production of a being is the purpose of their union.

The being produced is of the same sex as one or the other of those that gave it being; but they are formed and it is to be formed; it is young and they are old. Another inequality, another similarity.

Man, woman, little one, considered each in itself, and without any relation between them, each form an individual, that is to sa...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Foreword
• The Importance of Bonald
• Translator’s Note
• Introduction
• 1 Of the Proposed Civil Code, Presented by the Commission of the Council of State Named by the Government
• 2 Of Domestic Society
• 3 Of Public Society
• 4 Of Marriage
• 5 Of the Three States of Society: Imperfect; Perfect or Natural; Corrupted or against Nature
• 6 Of Society among the Jews
• 7 Of Society among the Orientals, Greeks, and Romans
• 8 Of Society among Christian Peoples
• 9 Revolution in Christian Society
• 10 Of the French Revolution
• 11 General Considerations on Divorce
• 12 Conclusion
• Appendix I
• Addendum
• Summation on the Divorce Question
• Index