The criticism of the Divorce Bill given here has been outlined 
from the standpoint of Rhenish jurisprudence just as the criticism 
published earlier (see the Supplement to No. 310 of the Rhein. 
Ztg2) was based on the standpoint and practice of old Prussian 
jurisprudence. A third criticism remains to be made, a criticism 
from a pre-eminently general point of view, that of the philosophy 
of law. It will no longer suffice to examine the individual reasons 
for divorce, pro et contra. It will be necessary toset forth the concept 
of marriage and the consequences of this concept. The two articles 
we have so far published agree in condemning the interference of 
religion in matters of law, without, however, expounding to what 
extent the essence of marriage in and for itself is or is not 
religious, and without, therefore, being able to explain how the 
consistent legislator must necessarily proceed if he is guided by the 
essence of things and cannot be at all satisfied with a mere 
abstraction of the definition of this essence. If the legislator 
considers that the essence of marriage is not human morality, but 
spiritual sanctity, and therefore puts determination from above in 
the place of self-determination, a supernatural sanction in the 
place of inner natural consecration, and in the place of loyal 
subordination to the nature of the relationship puts passive 
obedience to commandments that stand above the nature of this 
relationship, can then this religious legislator be blamed if he also 
subordinates marriage to the church, which has the mission of 
implementing the demands and claims of religion, and if he places 
secular marriage under the supervision of the ecclesiastical au- 

* Of November 6, 1842.— Ed. 

The Divorce Bill 275 

thorities? Is that not a simple and necessary consequence? It is 
self-deception to believe that the religious legislator can be refuted 
by proving that one or other of his rulings is contrary to the 
secular nature of marriage. The religious legislator does not 
engage in a polemic against the dissolution of secular marriage; 
his polemic is rather against the secular essence of marriage, and 
he seeks partly to purge it of this secularity and partly, where this 
is impossible, to bring home at all times to this secularity, as a 
merely tolerated party, its limits and to counteract the sinful 
defiance of its consequences. Wholly inadequate, however, is the 
point of view of Rhenish jurisprudence, which is shrewdly ex- 
pounded in the criticism published above. It is inadequate to 
divide the nature of marriage into two parts, a spiritual essence 
and a secular one, in such a way that one is assigned to the church 
and the individual conscience, the other to the state and the 
citizens’ sense of law. The contradiction is not abolished by being 
divided between two different spheres; on the contrary, the result 
is a contradiction and an unresolved conflict between these two 
spheres of life themselves. And can the legislator be obliged to 
adopt a dualism, a double world outlook? Is not the conscientious 
legislator who adheres to the religious point of view bound to 
elevate to the sole authority in the real world and in secular forms 
that which he recognises as truth itself in the spiritual world and 
in religious forms, and which he worships as the sole authority? 
This reveals the basic defect of Rhenish jurisprudence, its dual 
world outlook, which, by a superficial separation of conscience and 
the sense of law, does not solve but cuts in two the most difficult 
conflicts, which severs the world of law from the world of the 
spirit, therefore law from the spirit, and hence jurisprudence from 
philosophy. On the other hand, the opposition to the present Bill 
reveals even more glaringly the utter lack of foundation of the old 
Prussian jurisprudence. If it.is true that no legislation can decree 
morality, it is still truer that no legislation can recognise it as 
binding in law. Prussian law '” is based on an intellectual abstrac- 
tion which, being in itself devoid of content, conceived the natural, 
legal, moral content as external matter which in itself knows no 
laws and then tried to model, organise and arrange this spirit- 
less and lawless matter in accordance with an external aim. It treats 
the objective world not in accordance with the latter’s inherent 
laws, but in accordance with arbitrary, subjective ideas and an 
intention that is extraneous to the matter itself. The old Prussian 
jurists have shown but little insight into this character of Prussian 
law. They have criticised not its essence, but only individual 

external features of its existence. Hence, too, they have attacked 
not the nature and style of the new Divorce Bill, but its reforming 
tendency. They thought they could find in bad morals proof that 
the laws were bad. We demand from criticism above all that it 
should have a critical attitude to itself and not overlook the 
difficulty of its subject-matter. 

The editorial board of the Rhein. Zig.