About Legislation and Infanticide (1783)
Pestalozzi was stimulated to write this work by an announcement in Isaak Iselin's 'Ephemeriden der Menschheit' (Ephemeredes of Mankind) in November 1780, according to which a philanthropist from Germany invited entries for the prize question 'Which are the best practicable means for to prevent infanticide without at the same time favouring sexual offence?' and offered 100 ducats as prize. In the course of the Age of Enlightenment many authors in Europe concern themselves with the problem of penal legislation and execution of the sentence. Generally the tendency was emerging to not simply impose a penalty fixed in advance on objectively stated delicts, but to include the subjective motives of the offenders in the sentences and then to make the penalty not in the first place an act of atonement or even revenge, but an act of education and rehabilitation into society. Especially much stir then caused the numerous infanticides which all have been avenged with the death penalty. Also Goethe, as everybody knows, took care of this subject in Faust I.
Pestalozzi at once feels asked to work on this burning social and moral question. He succeeds in getting some case files which he lets print partly literally in his work. With it he can raise the sympathy of the reader for the unhappy young mothers who in their mental misery killed their own child and afterwards were handed over to the executioner. The whole book is a fiery defence of the lost poor mothers and a heavy accusation against society, its institutions and its hypocritical moral, but also against the irresponsible fathers.
In his thoughts Pestalozzi proceeds from the healthy instinct of the human nature and clearly states from the beginning on:
"Bei seinen Sinnen tötet ein Mensch sein Fleisch und Blut nicht, und ein Mädchen, das bei seinen Sinnen ist, streckt seine Hand nicht aus gegen sein Kind und erwürgt nicht seinen Geborenen am Hals, bis er erblaßt. Steck ein das Schwert deiner Henker Europa! Es zerfleischt die Mörderinnen umsonst! Ohne stilles Rasen, und ohne innere verzweifelnde Wut würgt kein Mädchen sein Kind, und von den rasenden Verzweifelnden allein fürchtet keine dein Schwert."
(On his right mind a human being does not kill his own flesh and blood, and a girl which is on her right mind does not raise her hand against her child and does not strangle her born at the neck until it turns pale. Put away the sword of your executioners, Europe! It vainly mangles the murderers! Without quiet raging and without inner desperate rage no girl strangles her child and of the raging desperate girls none fears your sword.)
(PSW 9, p. 8)
So what was it that drove the girls to rage and despair? According to Pestalozzi's conviction those were the wrong laws and the hypocritical moral. While to the Christian the illegitimate sexual intercourse may be a sinful act, the church, however, not only announced this moral norm as a teaching, but tried to push it through by a variety of moral laws with the power of the state and the secular jurisdiction. Who offended against the rule of chastity had to appear at court and often was punished draconically. In the course of the reformation the state took over those rights and sovereignties which until then belonged to the church only and the state in the following time made himself the moralizer who punished not only offences against social norms, but also against moral rules. If someone was found guilty of illegitimate sexual intercourse, high fines and the stocks were in store for him. So it was common in some towns that a pregnant girl for one day was bound at a stake and that every young man was allowed to pelt her with dirt. At other places a girl had to in public clean the dirty roads of the town on her knees and under the scorn and derision of the neighbours. But even worse it was to bear the social isolation: pregnant girls were considered to be a disgrace to the family, they often were rejected of the own parents, all their lives they were turned over to the public contempt and hardly had the possibility anymore to get married. Her child, too, lifelong stayed marked as illegitimate and had to expect every possible discrimination and unfair treatment. So it is no surprise that the fear of such a life drove many girls to either abort their child or to kill and remove it after birth. Have they been caught, however, the death penalty almost without exception was in store for them.
Pestalozzi now mercilessly reveals the hypocrisy and coldness which hide behind these morals: first mostly only the girls get punished as the men either could talk their way out or clear off, and second mostly only the poor get punished, because the wealthy often found ways and means to prevent a pregnancy, to abort the child, to cleverly conceal the birth of the child or to buy free from the punishments.
Pestalozzi with much empathy leads the reader into the mental experiencing of a girl who got pregnant. However, he does not justify infanticide by it and does not argument against punishing the murderers of the children, even if he rejects the death penalty. He is convicted, however, that there cannot be put a stop to infanticide by the threat of punishments. Rather the reasons which favour infanticide have to be eliminated. To it first belongs the abolishment of the moral courts, because the fear of their punishments according to Pestalozzi's conviction is the most important reason for infanticide. He, however, does not only demand the abolishment of the moral courts out of reasons of advisability, but also because of the basic thought, that the state is an institution of the social state and therefore may only punish those offences which endanger the social state, the living together of the human beings. An illegitimate child, however, - provided that it is well educated – for the state is worth just as much as an illegitimate one. The question about the illegitimate sexual intercourse therefore does not concern a social, but a moral-religious norm, that means that field which Pestalozzi later in the 'Inquiries' assigns to the moral state. Against offences in the moral field, however, according to his conviction the state is not allowed to intervene punitively, its task must be limited to favouring the education to a moral life.
Instead of punishment because of the illegitimate sexual intercourse the pregnant girls rather need help. So Pestalozzi suggests that the state should name noble men as 'councillors of conscience' who are obliged to strictest discretion and in whom the pregnant girls can confide in their misery. They shall investigate the question of paternity and cause the father to stand by his child and the parents to educate their child even if they do not want to marry. The establishing of homes for illegitimate children Pestalozzi refuses, because he assumes that a good mother and a good home are necessary for the healthy thriving of the child.
Beyond these concrete measures Pestalozzi demands a fundamental moral renewal of the people which only can be reached by a just legislation and by the good example of the government. This true, moral culture can only come from the narrow circle of the family which is why the measures of the legislation have to aim at the support of the domestic virtues. What Pestalozzi means by this he at the same time explained in detail in 'Lienhard und Gertrud' (Lienhard and Gertrud). At home also a natural sex education is possible. Important to him there is a relation to the field of sexuality which respects the sense of shame, but is natural, as well as a simple life without any evocative luxury. So Pestalozzi's treatise 'About Legislation and Infanticide' culminates in the sentence:
"Die Ausbildung des gemeinen Mannes zu der frommen Weisheit eines reinen und glücklichen Hauslebens, ist das einzige Mittel, den Verbrechen des Volkes Einhalt zu tun. Diese aber ist nur durch die innere Veredelung der höheren Stände und der Macht, in deren Hand der gesetzgeberische Wille gelegt ist, zu erzielen möglich."
(To form a common man to the pious wisdom of a pure and happy domestic life is the only way to put a stop to the crimes of the people. This, however, is only possible to reach by the inner ennobling of the higher classes and of the power in whose hand the legislative will is laid.)
(PSW 9, p. 181)
With other words: the regent, according to Pestalozzi, had to be a Christian in the real sense of the word.
"Er opfert sich seinem Volk - und weiß, daß ohne dieses Opfer des Herrschers keine die Menschheit befriedigende Gesetzgebung möglich (ist)."
(He sacrifices himself to the people – and knows that without this sacrifice of the ruler no legislation (is) possible which satisfies mankind.)
(PSW 9, p. 172)
The added extract of the text very clearly shows Pestalozzi's emotional commitment when he concerns himself with an issue which by his opinion is essential for the people. The 'human being' for him is not an abstraction, but he always concretely sees him as an individual who is exposed to the tensions and miseries of life.