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)

206

ANNE J. DUGGAN

Simultaneously, in Bologna, Gratian’s teaching was defended and propagated by his pupils and successors, especially Rufinus (1164), who attacked unnamed ‘seekers after fame’ and Johannes Faventinus (c. 1171), whose Summa was very widely circulated.72

Carried across Europe by their respective pupils, this dispute between ‘Paris’ and ‘Bologna’ created lively debate in the classroom but added immeasurably to the confusion, and the problems became critical. On the one hand, noble and royal families found it difficult to observe the rules; on the other, malicious persons became adept at using the rules of consanguinity, affinity and spiritual relationship to attack the validity even of marriages that had persisted for many years, in order to obtain an inheritance or to destroy an alliance. Equally important, as Christianity was implanted in Norway, Sweden, and the north Atlantic islands (Greenland and Iceland), the full application of such rules was virtually impossible in very small and isolated populations.Jurisdicton over such disputes belonged in the first instance to the diocesan bishop, but if one or other party were dissatisfied with the process or with the judgment, the case could be appealed to the papal Curia; simultaneously, bishops began to apply to the pope for advice and direction on particularly difficult or complex cases in such numbers that marriage questions became a major category of appeals to the papal Curia. It was one such case that evoked Innocent II’s firm support for the primacy of present consent in the case mentioned above, whose judgment was confirmed by Pope Alexander III in 1162.73 Alexander’s letters, in particular (1159-81), betray growing unease over the way in

72 Singer, H. (Hrsg.), Die Summa decretorum des Magister Rufinus, Paderborn 1902 (repr. 1963) 440-442, attacking the ‘inanis glorie aucupes’ (440-441) who had dared to oppose Gratian on this point. See the fine English translation of the passage, which Donahue thinks, probably rightly, was directed against Peter Lombard: Donahue, Ch. Jr., Johannes Faventinus on Marriage (With an Appendix Revisiting the Question of the Dating of Alexander lU's Marriage Decretals), in Müller, W. P. - Sommar, M. E. (ed.), Medieval Church Law and the Origins of the Western Legal Tradition: A Tribute to Kenneth Pennington, Washington DC. 2006. 179-197, at 181-182, although he allows that some unidentified Bolognese master or masters might have been the target. In support of the consummation theory, Rufinus may even have forged the decretal, Si de uniuersis, attributed to Alexander I, pope and martyr (7109-7119), cited Summa ... Rufinus, 448-9; cf. Singer’s introduction, ibid., cviii and n. 70. From him it also cited in the Summa of Johannes Faventinus (John of Faenza): von Schulte, J. F., Die Rechtshandschriften der Stiftsbibliotheken von Göttweig, Heiligenkreuz, Klosterbeuburg, Melk, Schotten in Wien, in Sitzungsberichte der kais. Akademie der Wissenschaften in Wien, Phil.-hist. Klasse 57 (1867 [1868]) 559-616, at 589-590). Schulte suggested that John of Faenza was the forger.

73 Cum controversia, mid-Dec. 1162; JL —: Voss, L., Heinrich von Blois Bischof von Winchester (1129-71), Berlin 1932. 167-168, no. 7b (who mistakenly corrected the initial ‘L’ of her text to G[ervasio]. Holtzmann, W. (Hrsg.), Papsturkunden in England, I-III (Abhandlungen der Gesellschaft der Wissenschaften zu Göttingen, philologisch-hististorische Klasse I-III), Berlin 1930, 1935-1936, Göttingen 1952. II. 294-295, no. 108.