On December 10, 1948, the United Nations General Assembly in Paris proclaimed the Universal Declaration of Human Rights. They said that it was “A common ideal for all peoples and nations.” And that remains: a chimera from which the world moves further, everyday more.
It is a chimera because rights are not granted, they are conquered and then defended. The rights that our grandmothers and mothers fought for may disappear if their daughters and granddaughters are not willing to defend them and move forward.
Rights do not exist per se. They are an entelechy. A simple social agreement that can be contravened at any time, when the forces that exercise power deem it pertinent. Therefore, we only have the right to be what we have the power to be. There is no better guarantor of our rights than ourselves.
A right lost for centuries
Divorce is not a recent conquest. In Ancient Rome there was already the possibility of dissolving marriage, also for women. In fact, divorce became more frequent at the end of the Republic, when women were granted full rights to divorce their husband, which put both spouses on the same level.
In Classical Roman Law, the cessation of the affectio maritalis meant the dissolution of the marriage bond without the need to comply with any additional formality. Divorce was free. From the legal and social point of view, no cause was necessary.
However, then something happened.
A discrepancy arose between positive law and Christian natural law, which led to a legislative change. With the arrival of Christianity and its religious burden, divorce was largely prohibited, although not completely, since marriage was considered a sacrament instituted by God. Consequently, the indissolubility of marriage was imposed, only allowing separation for very serious reasons.
Centuries had to pass for divorce to be free again and for women to initiate this procedure. In Spain, for example, it was included in the 1931 Constitution but after its repeal in 1939 and all divorce rulings declared null at the request of one of the parties, this right was not resumed until 1981.
The history of divorce shows us that no conquered right can be taken for granted. Involution always finds a loophole. Those loopholes often prey on our indolence, passivity, or even fear.
Who yields the custody of his rights, must be willing to lose them
In the past, any right not granted by the monarch was considered a usurpation, while any privilege was a right. Today the same is true, except that in some countries the State or society occupy the place that once belonged to the monarch.
As Max Stirner wrote, “Parliaments are the modern churches where the Rights of Man are sanctified, while the majority of flesh and blood individuals live completely deprived of them”.
Generally “Society does not expect its members to rise above it, it wants them to remain within the limits of legality; that is, that they do not allow themselves more than what society and its laws allow them”, that they do not go beyond the rights that have been granted to them and that they do not get upset when those have been taken away from them.
In this way, “By law, the individual becomes a slave of society. He only has a right when society gives it to him; that is, if he lives by its laws as a loyal man.”
However, “Whether it is nature that gives me a right, whether it is God, whether it is popular suffrage, etc… that right will always be the same: a third-party right […] “That right is nothing more than the approval of the other.” If all of our rights come from that outside source, they also depend on its good faith to uphold and enforce them.
When we take for granted that someone else will protect our rights, we run the risk of those rights disappearing. For this reason, Stirner advocated that no one set himself up as guardian of a right that belongs to everyone, but that it be each and every one of us, individually, who make sure to assert and defend our rights.
As Stirner wrote, “If you allow the other to give you reason, you must equally consent him taking it back from you. If you accept his approval and rewards from him, you must equally accept his reproaches and punishments.” The defense of rights is not something that corresponds exclusively to a State, supranational organization, social group or religious entity, it is something that concerns us all. And we should all be willing to speak out when they are violated or repealed. If we look the other way, we also have to be willing to lose them. Perhaps for the next few centuries.
Hernández, S. et. Al. (2020) Divorcio en roma y su evolución hasta el momento actual. Tesis de Grado en Derecho: Universidad de La Laguna.
Stirner, M. (1976) El único y su propiedad. Pablos Editor: México.