Folia Theologica et Canonica 3. 25/17 (2014)

IUS CANONICUM - Anne J. Duggan, The paradox of marriage law: from St Paul to Lateran IV (1215)

FOLIA THEOLOGICA ET CANONICA (2014) 189-212

THE PARADOX OF MARRIAGE LAW: FROM ST PAUL TO LATERAN IV (1215)

Anne J. Duggan

I. Consanguinity, affinity, and incest; II. Consent vs consummation; III. Towards a resolution

When St Paul, a Roman citizen in the early Roman empire, wrote about marriage in his letter to the people of Ephesus (Ephes. 5: 22-33), there were already two models of marriage in daily use in Palestine, one Jewish, the other Roman. In both, the binding together of one man and one woman in matrimony (nuptiae) was both familial and public; in both, it was ‘an honourable estate’.1 Both distinguished between betrothal and marriage, between the making of the contract and the nuptial ceremony, which could be deferred for a year or more;2 and in both there was a religious element in some form of blessing or sacrifice. Judaic law permitted polygamy and concubinage, although the practices seem to have been confined to the wealthy, and reformed opinion, among the Essenes and in the school of Hillel and for example, condemned both.3 4 5 Roman did not allow polygamy, but it recognized concubinage, defined as a monogamous relationship which lacked both the commitment of marriage (affectio maritalis)* and the honor matrimonium,s and a man could not lawfully have a wife and a concubine at the same time. Judaic law similarly distinguished between marriage and concubinage: ‘The wife has a marriage contract, the concubine has none’.6 In Judaism, the betrothal was the first stage in the marriage, from which point the spouses were bound to one another and regarded as man and wife, as were

1 So described the Anglican Book of Common Prayer ( 1549).

2 Dig. 23.1.17 (Gaius).

3 Jeremias, J., Jerusalem in the Time of Jesus. An Investigation into Economic and Social Conditions during the New Testament Period, trans, from the 3rd edn of Jerusalem zur zeit Jesu, Göttingen 1962 (by F. H. and C. H. Cave [Philadelphia 1969]), 90-91, 93-95.

4 Noonan, J. T. Jr., Marital Affection in the Canonists, in Studia Gratiana 12 (1967) = Collectanea Stephan Kuttner, ii, 479-509.

5 It was less honourable than marriage and children were illegitimate, with no automatic rights of inheritance, but a concubine could be lawfully married and ‘natural children’ could be adopted and so share in the paternal inheritance. The Christian Roman emperors from Constantine onwards. encouraged amelioration in favour of children: Cod. 5.26-35.

6 Jeremias, J., Jerusalem in the Time of Jesus, 368.