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)

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ANNE J. DUGGAN

spouse in turn [...] and then place the ring on one finger of the left hand, and leave it there, so that it is thereafter worn on the left hand [...] After this, let them be taken into the church [...]. After this, when they have been led into the right side of the church choir, with the woman standing on the man’s right, let the Mass of the Holy Trinity be begun, Benedicta sit. [...] (Trans. AJD).

Whether the rituals of marriage were simple or elaborate, its key elements were established from early times, but two major problems emerged in relation to validity.

I. Consanguinity, affinity, and incest

The first related to consanguinity and affinity. The basis of the prohibition of marriage between close relatives derived from the regulations in Leviticus 18. These forbade sexual relations or marriage with a tightly-knit group of female relatives by blood and marriage: a man’s own mother, stepmother, sister and halfsister, granddaughter, step sister, father’s sister, mother’s sister, father’s brother’s wife, daughter-in-law, brother’s wife, step daughter and step granddaughter, and a man was also forbidden to take his wife’s sister as a mistress during his wife’s life-time.26 Infringement carried the death penalty.27 Roman Law originally prohibited marriages within four degrees of relationship, that is between first cousins, the degree of relationship being calculated by counting back to the common ancestor (from the sponsus to his father [1] and grandfather [2]), and then forward in the collateral line from the same grandfather [2] to the sponsa's father [3] and the sponsa [4].28 The two systems converged in Isidore of Seville’s exclusion of ‘consecrated virgins and close kin’ (fl. 600- 636),29 without further definition, but it is likely that he had in mind the Leviti26 Leviticus, 18:6-18. For a general overview of the development of incest laws and customs from ancient to medieval times, see Archibald, E., Incest and Medieval Imagination, Oxford 2001 (repr. 2003), esp. 9-103; for the complexity and confusions in Roman law, see Moreau, P., In- cestus et prohibitae nuptiae: Conception romaine de l’inceste et histoire des prohibitions matrimoniales pour cause de parenté dans la Rome antique (Collection d’études anciennes, Série latine 62). Paris 2002. 107-113, 277-335,404-418.

27 Leviticus, 20: 10-12, 14, 17, 19-21. But cf. Deuteronomy 25: 5-6, which mandated levirate marriage, in which the brother of a man who died childless was required to marry his widow.

28 But the prohibition was lifted in 405: Cod. 5.4.19 (Arcadius and Honorius).

29 Sancii Isidori Hispalensis episcopi etymologiarum libri XX, v.26 (PL, lxxxii, 211), Incesti iudi- cium in virgines sacratas vel propinquas sanguine constitutum est. Qui enim talibus miscuntur incesti, id est incasti habentur; cf. Etymologiae, x.148, under the letter I: Incestus, propter in- licitam conmixtionem vocatus, quasi incastus, sicut qui virginem sacram, vel affinitatis suae proximam stupraverit (PL LXXXII. 382). Cf. the Codex Theodosianus, 3.12.1-2: Mommsen, T. - Meyer, P. M. (ed.), Theodosiani libri XVI cum Constitutionibus Sirmondianis et Leges novelláé ad Theodosianum pertinentes, 1/2. Dublin-Zürich 1904 (repr. 1971).