The Family as a Site of Cultural Autonomy and Freedom: anxieties in legal debates over state regulation of marriage in Hungary, 1867–1895

Abstract

In the late nineteenth century, a new category of law—‘the family’—spread across and beyond Europe via new legal codes and scholarship. These made explicit the relationship between marriage, the family and the state and emphasised the interiority of the family as a ‘protective’ enclave. Yet the incoherence of this position as it played out in legislative debate is often overlooked. This article examines parliamentary debates over mixed marriages in Hungary, as an interesting window on the state's inability to clarify political priorities vis-à-vis the family. Catholic factions and anti-clerical opposition alike were troubled by the idea of state intervention in any form, in a century characterised by a general tendency towards state legislation as a primary source of law. This ambiguity revealed itself as a series of oscillations that were located squarely within the deep ambiguities of modern European legal culture concerning the family as a site of cultural freedom and as a (necessary) target of state intervention. These oscillations undermined what might be described as a straightforward patriarchal approach to gender order in family law.

Notes

Wolfram Müller-Freienfels (2003) The Emergence of Droit de Famille and Familienrecht in Continental Europe and the Introduction of Family Law in England, Journal of Family History, 28(1), pp. 31–51.

Frederick Engels (1891) On the History of the Primitive Family. Originally published in Neue Zeit. Reprinted as Engels’ preface to the fourth edition of The Origin of the Family, Private Property and the State (originally pub. in 1884) (Moscow: Foreign Languages Publishing House), pp. 10–11.

The first civil code to contain a ‘family part’ was that of Saxony, completed in 1863 and operative from 1865.

Ursula Vogel (1998) The State and the Making of Gender: some historical legacies, in Vicky Randall & Georgina Waylen (Eds) Gender, Politics and the State (London: Routledge), p. 30. For an account of the relationship between the modern state and the family as one solely of direct intervention and control on the part of the former, see also Jacques Donzelot (1977) La Police des familles (Paris: Les Éditions de Minuit).

Franz Wieacker (1995) A History of Private Law in Europe, trans. Tony Weir (Oxford: Clarendon Press), pp. 384–385; N. J. Coulson (1964) A History of Islamic Law (Edinburgh: Edinburgh University Press), pp. 161–162.

The Austrian code divided civil law into three parts (persons, property and common provisions): 1. Law of persons; 2. Law of property, including marital property; 3. Common provisions or regulations common to both property and persons. The tripartite division of the Austrian code was taken from the Roman Institutes: personae; res; actiones. See Wieacker, A History of Private Law in Europe, p. 268.

Gusztav Wenzel (1868) A magyar és erdélyi magánjog rendszere [The Hungarian and Transylvanian system of private law] (first pub. 1863; Pest) united the geographical territory of Hungary, including the principality of Transylvania, under a ‘common system’ of private law. It became mandatory reading for the country's legal professional class and university students according to Tamás Vécsey. See Vécsey on the life and work of Wenzel, in Jogtudományi Közlöny [Journal of Legal Science], 22 (June 1894), p. 170.

Judit Balogh (2002) Az általános rész kérdése és tervezetei a XIX. század végének magyar magánjogi kodifikációs elképzeléseiben [The late nineteenth-century debate over the general part in Hungarian private law and relevant proposals regarding the codification of Hungarian private law], Collectio Iuridica Universitatis Debreceniensis II, pp. 75–92; István Szászy (1947) A magyar magánjog általános része különös tekintettel a külföldi magánjogi rendszerekre [The general part in Hungarian private law with special attention to foreign private legal systems] (Budapest), p. 12; Barna Mezey (Ed.) (1999) Magyar jogtörténet [Hungarian legal history] (Budapest: Osiris Kiadó), p. 118.

See Anna Loutfi (2006) Hungarian Family Law and the Struggle for Gender Order, 1848–1913 (Ph.D., Central European University, Budapest), chapter 2.

See Karl Mannheim (1991) Ideology and Utopia (London and New York: Routledge), p. 210; Hannah Arendt (1974) The Human Condition (Chicago: University of Chicago Press), pp. 45–47; Gilles Deleuze (1997) The Rise of the Social. Introduction to Robert Hurley (1997) The Policing of Families, trans. Jacques Donzelot (Baltimore and London: Johns Hopkins University Press), pp. ix–xvii; Seyla Benhabib & Drucilla Cornel (Eds) (1987) Feminism as Critique (Minneapolis: University of Minnesota Press), p. 86; Frances E. Olsen (Ed.) (1995) Feminist Legal Theory, vol. 2 (Aldershot: Dartmouth Publishing), p. 189; Partha Chatterjee (1993) The Nation and its Fragments: colonial and postcolonial histories (Princeton: Princeton University Press), p. 6; Wenzel, A magyar és erdélyi magánjog rendszere, p. 316.

László Madarassy (1872) Értekezés a házasságból eredő vagyoni jogviszonyok és a gyámügyről—javaslattal ezek mikénti rendezésére [Essay on the property relations stemming from marriage and on guardianship—with proposals for their regulation] (Pest), pp. 3, 7. Marriage as a means of ‘reproducing and preserving Mankind’ is a discourse noted by Ursula Vogel as a common feature of all three early-nineteenth-century European codes (Prussian, French and Austrian). See Ursula Vogel (1997) Gleichheit und Herrschaft in der ehelichen Vertragsgesellschaft—Widersprüche der Aufklärung, in Ute Gerhard (Ed.) Frauen in der Geschichte des Rechts—Von der Frühen Neuzeit bis zur Gegenwart (Munich: C. H. Beck), pp. 269–270.

Tamás Vécsey (1887), review of Ervin Rozsner (1887) Régi magyar házassági jog [Old Hungarian Marriage Law] (Budapest), in Jogtudományi Közlöny (7 October 1887), p. 314. Emphasis added.

Mihály Herczegh (1885) Magyar családi és öröklési jog. A vonatkozó újabb törvények; felsőbb rendeletek és döntvényfüggelékkel [Hungarian family and inheritance law with the most relevant and up-to-date laws, decrees and judicial rulings] (Budapest), pp. iii–vii.

In his review of Ervin Rozsner's monograph on old Hungarian marriage law for the legal scientific journal Jogtudományi Közlöny, Hungarian legal scholar Tamás Vécsey wrote that ‘the people are whatever the family is’. See Jogtudományi Közlöny (7 October 1887), p. 314. For more on the ‘familial discourses’ of nationhood see Etienne Balibar (1991) The Nation Form: history and ideology, in Etienne Balibar & Immanuel Wallerstein (1991) Race, Nation, Class: ambiguous identities (London and New York: Verso), pp. 86–106; on domesticity and nationalism see Dipesh Chakrabarty (2000) Provincializing Europe: postcolonial thought and historical difference (Princeton: Princeton University Press), pp. 214–236; on ‘the idea of the family-as-articulated-power-structure’ see Benedict Anderson (1992) Imagined Communities: reflections on the origin and spread of nationalism (London and New York: Verso), pp. 143–144; on state-building and empire-building as ‘familially generated social processes’ see Ann Stoler & Frederick Cooper (Eds) (1997) Tensions of Empire: colonial cultures in a bourgeois world (Berkeley: University of California Press), p. 23.

Dezső, Márkus (Ed.) (1899) Magyar Jogi Lexikon [Encyclopeadia of Hungarian law], vol. 2 (Budapest), p. 740; Engels, The Origin of the Family, Private Property and the State. Cf. Ursula Vogel on the general European context in the late nineteenth century: ‘Due to its unique constitution and its direct relevance to the foundations of the state, marriage barred comparison with other legal associations of the private sphere. Indeed, some jurists argued that because marriage and family relations were built on Herrschaft, that is on rights in other persons, they belonged properly in the province of the non-contractual, coercive relations of the public law’ (Vogel, ‘The State and the Making of Gender, p. 41).

R. C. van Caenegem (1992) An Historical Introduction to Private Law (Cambridge: Cambridge University Press), pp. 122–125.

French Civil Code, para. 1388; Franz Edler von Zeiller (1811) Commentar über das allgemeine bürgerliche Gesetzbuch für die gesamten Deutschen Erbländer der Oesterreichischen Monarchie, vol. 1 (Vienna, Triest), p. 253.

Lee Holcombe (1983) Wives and Property: reform of the married women's property law in nineteenth-century England (Toronto: Toronto University Press), pp. 18–36.

Carole Pateman (1988) The Sexual Contract (Cambridge: Polity Press), pp. 39–76, 116–153.

Vogel, ‘The State and the Making of Gender’, p. 35.

Sándor Daempf, ‘Kulturpolitika’ [Cultural Politics], in Jogtudományi Közlöny (8 July 1887), pp. 209–210.

See Loutfi, Hungarian Family Law and the Struggle for Gender Order, chapter 3, Table 1.

Barna Mezey (Ed.) (1999) Magyar jogtörténet [Hungarian legal history] (Budapest: Osiris Kiadó), p. 189. Civil marriage was introduced in Hungary in 1894; on the problems posed to the state administration by religious pluralism, see Loutfi, Hungarian Family Law and the Struggle for Gender Order, chapter 3.

For the history of mixed marriages in Hungary, 1781–1868, see Loutfi, Hungarian Family Law and the Struggle for Gender Order, chapter 7.

Gábor Salacz (1938) A magyar kultúrharc története, 1890–1895 (Pecs: no publishing house), pp. 1–14.

Vogel, ‘The State and the Making of Gender’, p. 39.

1844: Law III, paras 2, 5–11. This law retroactively applied to marriages carried out from 1839.

Hungarian Minister of Religion and Education (1867–71).

Para. 13. of Eötvös's original Bill ‘On Reciprocity between the Received Christian Religions’.

Para. 13. of Eötvös's original bill. This English translation is taken from László Péter (1989) Hungarian Liberals and Church–State Relations’, in György Ránki (Ed.) Hungary and European Civilization (Budapest: Akadémiai Kiadó), p. 95. Emphasis added.

1868: Law LIII, paras 12 and 13.

Member of the governing party from 1865 and an advocate of civil marriage and of official acceptance of the Jewish religion. Hungarian Minister of Religion and Education from 1888 to 1894.

The principle endorsed in Csáky's bill, which regulated children's religion on the basis of their sex, was taken from an Austrian law on inter-confessional marriages passed in May 1868.

Imre Csengery, Justification of the revised bill, KNI, vol. 7 (1865–1868): 1–2. The reference to Transylvanian law is to 1791: Law LVII.

OKN Az országgyűlés képviselőházának naplója (Minutes of the Lower House of the Hungarian Parliament), vol. 11 (1865–1868), p. 210. All translations are the author's, unless stated otherwise.

Ibid., p. 211–212.

Ibid., p. 210. Emphasis added.

The distinction between parental and paternal rights can be traced back to the Diet of 1791, when it was stated that Protestant fathers married to Catholic mothers did not have an unconditional right to bring up their children in their own religion. It was a distinction which was to remain a deliberative point of Hungarian political discourses on family law in the 1870s.

Mór Jokai (Ed.) A Nemzet [The Nation] (a publication of Prime Minister Sándor Wekerle's ruling party in 1892 which included attacks on the Catholic Church), cited in Salacz, A magyar kultúrharc története, p. 170.

Hungarian Prime Minister from 1875 to 1890 and Minister of the Interior from 1875 to 1887. A critic of the 1867 Compromise with Austria, he campaigned for greater national sovereignty from 1868 onwards.

OKN, vol. 11 (1865–1868), pp. 212–213.

Ibid.

Ibid.

Ibid., p. 214.

Salacz, A magyar kultúrharc története, pp. 15–16.

Law LIII had, from its inception in the form of Eötvös's original bill, been intended as a temporary solution to the ever more convoluted legal problems surrounding mixed marriages, but, even after the revised bill became law, its provisions were largely unenforceable. After 1868, Protestants continued to report Catholic priests who had ‘illegally’ demanded reversales from Protestant fathers to the Hungarian Culture Ministry, but little was done. Catholic priests justified their actions on the grounds that the law did not specifically oblige children of mixed marriages to take their parents’ religion on the basis of their sex. Rather, it stated that children would do so. No penal sanction was appended to the law. See Salacz, A magyar kultúrharc története, pp. 13–16; see also László Péter (1989) Hungarian Liberals and Church–State Relations, in György Ránki (Ed.) Hungary and European Civilization, pp. 93, 127 (fn 62).

1879: Law XL, para. 53.

Salacz, A magyar kultúrharc története, p. 147.

At this parliamentary sitting, the then Minister of Justice, Dezső Szilágyi also submitted his justification of a final bill for compulsory civil marriage that would become law in 1894.

§§. 1, 2 and 6 of Csáky's bill ‘On Children's Religion’, in KNI, vol. 16, no. 523 (1892–1897), pp. 17–18.

It is important to note here that the arguments used to justify Csáky's 1893 bill did not win out. The legacy of 1868: Law LIII in late-nineteenth-century Hungarian political discourses ensured that family life remained a matter of public concern, with state intervention prevailing over parental choice. In the words of Jewish governing party MP Ármin Neumann, the job of the legal State was to ‘regulate all relations between its citizens in the interests of the common good, of justice and of the common morality’, and furthermore, that religion, ‘as the most individual property of man, may only be left unregulated by the State as long as it does not come into conflict with the sphere of duty’. This approach appeared in the 1895 law ‘On Freedom of Religious Practice’, which stated that civil and political rights were ‘completely independent of religious faith’ and that ‘no person shall be excused from any legal duty because of their religious or church beliefs’. See minutes of the budgetary meeting of the Ministry of Religion and Public Education of 23 May 1892, in OKN, vol. 3 (1892–1897), pp. 295–296; see also 1895: Law XLIII, paras 2, 3. The version of the bill that became 1894: Law XXXII (On Children's Religion) was thus a compromise between Csáky's recommendations and the practices of the past. Para. 1 of the new law ruled that spouses of different religions (on condition that those religions were recognised by state law) should be free to decide whether their children were to follow their father's or their mother's religion. Para. 2 stated that, in the absence of parental agreement, children were to follow the religion of their parents on the basis of their sex (1894: Law XXXII, paras 1, 2).

Házassági jogról szóló javaslat. Indoklás [Justification of the Civil Marriage Bill], submitted 29 November 1893, in KNI, Képviselőházának naplója. Irományok [Documents of the Lower House of the Hungarian Parliament], vols 7, 15, 16 and 17 (1865–1897), KNI, vol. 15 (1892–1897), pp. 26, 59, 66, 88. The political significance of the Hungarian marriage law as a necessary part of the national unification process has been made in Susan Zimmermann (1999) Die bessere Hälfte? Frauenbewegungen und Frauenbestrebungen im Ungarn der Habsburgermonarchie 1848 bis 1918 (Budapest/Vienna: Napvilág Kiadó/Promedia Verlag), p. 319.

Civil Marriage Bill, paras 100–102; Civil Marriage Law, para. 85.

Those who supported the new divorce proposals argued that the proposals were not ‘Protestant’, but rather ‘realistic’: legal grounds for divorce had to ‘evolve in life’ and ‘the anti-divorce camp’ had ‘no knowledge of life’. See Kornél Sztehlo (1894) Törvényjavaslat a házassági jogról [On the Civil Marriage Bill], Jogtudományi Közlöny (19 January 1894), p. 18.

In the pre-1894 system of marital pluralism, Jews, Protestants, or any party converting to Protestantism, could obtain a divorce this way—and many did. See Loutfi, Hungarian Family Law and the Struggle for Gender Order, chapter 3.

Kornél Sztehlo (1894) Törvényjavaslat a házassági jogról [On the civil marriage bill], Jogtudományi Közlöny (12 January 1894), p. 9.

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Anna Loutfi

Anna Loutfi received her Ph.D. in Comparative History from the Central European University, Budapest, where she currently teaches at the Department of Gender Studies. Her interests cover the following fields: legal philosophy and critical legal studies; feminist legal and political theory; the historical sociology of the family/gender and so-called ‘unofficial’ law. She is the co-editor (with Franscisca de Haan and Krassimira Daskalova) of (2006) A Biographical Dictionary of Women's Movements and Feminisms. Central, Eastern and South Eastern Europe, 19th and 20th Centuries (New York: CEU Press).