Gender and Law

(Czech)

   Enlightenment thinking laid the foundation to bourgeois dualism of the state and society where the State controls legislation, the exercise of jurisdiction, the police and the army; the society manages itself under the rules of morality. A citizen, understand a man, followed the standards of morality and equally he governed his wife and children.
 

  The bourgeois legal theory was most aptly handled by Georg Wilhelm Friedrich Hegel (1770 - 1831) in his Elements of the Philosophy of Right (1821). He rationally justified the right to private property as a prerequisite for the realization of personality; in his opinion, morality was an idea of freedom. In terms of morality, the family was put first and its legal status had replaced the ancient theory of the house.[1] According to Hegel, the family was a result and the aim of marriage, involving only a range of blood relatives of both spouses. It became the basis of the state; the sense of family was next to the sense of the work the noblest aspect of the bourgeois morality.[2] Marriage and family should be the main moral institutions and only in their small part they should be open to legislation. The State could only intervene against them when the family and marriage violated the principle of bourgeois morality, or even the laws of the State.
 
  In the family, the citizen was supposed to govern by himself. A citizen was only a man; the nascent modern legislation did not take a woman into account. What's more: if enlightened construct of gender roles in philosophy respected to a certain extent the woman's identity, then in the legislation sphere, the revival of misogyny takes place in the very beginning of the 19th Century when modern civil codes are formed. There were several causes: conservatism of re-establishing regimes, a new bourgeois ideology, the result of revolutionary traumas, and a consequence of the retreat of traditional forms of life, de facto separation of the society to the public and private sphere, transformation of the organization of work in the bourgeois milieu. All this meant a retreat from openness brought about by the Enlightenment.
 
  The time of the birth of modern civil codes is the beginning of the 19th Century. In the fading revolutionary atmosphere, of the Napoleon's Code Civil was born, which became the model for other European civil codes, emerging during the first half of the 19th Century. Napoleonic Code, some of which relics were in force until 1968, legislatively anchored the woman as a being of the private sphere and the man as a being of the public sphere, and also confirmed the man's straddling over the two areas. It partly inspired the Austrian Allgemeine bürgerliches Gesetzbuch, promulgated on June 1, 1811. It came into force on January 1, 1812 – in the same year it was translated into Czech as Kniha vše­obec­ných zákonů městských. It was restricted to the codification of private law; 92 (§ 44-136) of the total 1502 sections dealt with marriage and the family. According to § 44, the basis of marriage was formed by the marriage contract, by signing of which two people of different sexes stated their will to live together, to beget children, educate them and support each other. The marriage contract established relationships in the family, unlike the wedding contract, which dealt with the relationship of property rights between the spouses. 
 
  The Code, modern and progressive as it may be for its time, was based on the conviction of the woman's inferiority as a human being; it corresponds to the gender construct of her lower intellect and physical inadequacy. The man was the head of household; he managed the household, his wife passed under his power. She was obliged to follow him to his residence, she received his home nationality and name - she kept it even after the possible death of her husband.[3] According to her forces, she had to help him at home and in business; the husband was to provide all her needs for that, regardless of whether she brought a dowry to the marriage, or not. The wife had to respect all his decisions. If she was minor at the time of the marriage, the husband acquired all the rights of the father or guardian, which he held up to his wife's age of majority. As regards the possibility of guardianship, while modern age law permitted this option for the woman, the Code of 1811 did not. On the other hand, the position of the wife was improved by the Code since the husband could only dispose of earnings from her dowry and property, and not - as it was customary before – of everything.[4] However, the Code did not specify anywise the above-mentioned separation of the private and public sector - indeed, in areas with delayed onset of modernization, as for the issue of separated spheres it was rather a thought construct for a long time.
 
  The Code of 1811 was in force for more than a hundred years. Since the turn of the Century, its reform was prepared, it was nevertheless limited only to the application of so-called three sub-amendments, through the Imperial Decrees of 1914, 1915 and 1916; they brought about little improvement of the wife's status. The first sub-amendment newly adjusted, among others, the care of a minor in the father's authority, the care for children in divorce or separation of marriage and the legal status of illegitimate children. Significantly were changed the guardianship issues, and some parts of the inheritance law. The amendment also established the conditions for eligibility of women to testify.[5] The third sub-amendment newly modified the provision on the denial of conjugal origin of the child.
 
  Factual changes that reflected as a result of political, social and demographic changes before the First World War in the status of women (higher and better education, the need to work outside the home, family planning), to a large extent, undermined to a considerable extent not only the traditional construct of feminity, but also the legal status of the female issue. The birth of the independent Czechoslovak State created the preconditions for new standards of the female deal. The Czechoslovak National Assembly was one of the first legislative bodies to enact gender equality. Women had the active and passive right to vote, study law was finally open to them - the last university education stronghold remaining unconquered by women. The first president was a resolute feminist, the parliament came up with a number of initiatives to remove discrimination against women - not all of them were successfully passed. Nevertheless, we may say that all the conditions arose to start blurring the distinction between the two constructs.

 

Sources:
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Marie Macková, Sňatek ve světle rakouského Všeobecného občanského zákoníku. In: Martina Halířová (ed.), Oznamuje se láskám vašim aneb svatby a svatební zvyky v českých zemí v průběhu staletí.Sborník z konference konané 13. a 14. září 2007 ve Východočeském muzeu v Pardubicích, Pardubice 2008, s. 67 – 73.

Obecný zákoník občanský císařství Rakouského, Vídeň 1862.

 


[1] Cf. Richard v. DÜLMEN, Kultura a každodenní život v raném novověku (16.- 18. století). I., Dům a jeho lidé. Praha 1999, pp. 13 – 82.
[2] Hans Hattenhauer, Evropské dějiny práva. Praha 1998, p. 504.
[3] František Xaver VESELÝ, Všeobecný slovník právní. Díl druhý, Praha 1897, p. 295.
[4] Petra DOČKALOVÁ: Právní úprava majetkových vztahů mezi manželi v českých zeních (1918 - 2002). Slezský sborník 101, 2003, p. 458.
[5] Karel MALÝ a kol., Dějiny českého československého práva do roku 1945. Praha 1997, p. 240.