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)

THE PARADOX OF MARRIAGE LAW: FROM ST PAUL TO LATERAN IV ( 1215) 209

In this case, the ‘novelty’ was almost certainly the method of counting the degrees of consanguinity then being taught at Bologna, in which the shorter line of descent was discounted in favour of the longer.86

The problem was the weight of the apparently authoritative tradition summed up by Gratian, which was hard to reject. A solution was indicated, however, in a line of argument which distinguished between divine and human laws, in harmony with Isidore of Seville’s already well-known definition: ‘All laws are either divine or human. Divine laws correspond with nature, human laws with customs (Omnes autem leges, aut divinae sunt, aut humanae. Divinae natura, humanae moribus constant y ,87 Anselm of Laon (f 1117) applied it to the consanguinity debate and concluded, that ‘marriage between cognati is not against the law of nature, but against the precepts established by the Church (precepta institutionis ecclesie)’ ;88 89 and Peter the Chanter (t 1197) in Paris at the end of the century (1191/2) used it to mount a searing attack on the canon law of marriage as practised in his time, which, he declared, lacked all consistency (soliditatis nihil habet positiva justitia soliditas)m

Meanwhile, echoes of the distinction appeared in four of Alexander Ill’s decretals,90 91 the most important of which, addressed to the bishop of Exeter (England) between 1161 and 1169/70, read: ‘For it is more tolerable to leave some persons joined contrary to men’s statutes than, contrary to God’s, to separate those lawfully joined (Tolerabilius est enim aliquos contra statuta homi- num copulatos relinquere, quant coniunctos quoslibet legitime contra statuta domini separareInnocent III used the very same formulation forty years la86 Wunderlich, A. (ed.), Tancredi Summa de matrimonio, Göttingen 1841. 30, tit. 20, declared slightly later (1210 x 1213), semper standum est remotiori personae in consanguinitate. Tanc- red claimed to have received it from his own teachers (ut doctrinaliter traditur a doctoribus nostris).

87 Etymologiae, v.2 § 1.

88 Bliemetzrieder, F. P., Anselms von Laon systematische Sentenzen (Beiträge zur Gechichte der Philosophie des Mittelalters 18), Münster 1919. 151: coniugium inter cognatos non est contra legem nature, sed contra precepta institutionis ecclesie.

89 Verbum abbreviatum, Ch. 53 (heading): PL CCV. 162. For the complex textual history, see Baldwin, J. W., Masters, Princes, and Merchants: The Social Views of Peter the Chanter and his Circle, I-II. Princeton 1970. II. 246-265; cf. Duggan, A. J., “Our letters have not usually made law (legem facere) on such matters" (in press), at nn. 84—90.

90 PL CC. 544-545, no. 573 (Benevento, 30 May 1168-1169); 695 no. 760 (2 September 1170); 891-892 no. 1011 (1171-3); and Pervenit ad audientiam, below n. 91. Influential as the first of these turned out to be, Charles Donahue’s claim in Law, Marriage, and Society in the Late Middle Ages: Arguments About Marriage in Five Courts, Cambridge 2007. 28, that Alexander III ‘established (...) that the prohibition of intermarriage in the more remote degrees of consanguinity was a matter of human, not divine, law’, surely overstates the case. Only one (Pervenit ad audientiam) entered the legal tradition, where it was found by Innocent III in Compilatio prima, 4.19.3.

91 Pervenit ad audientiam, to Bartholomew of Exeter, 1161-69/70; WH 701; App. 8.23; l Comp. 4.19.3; discussed in Duggan, C., Decretals of Alexander III to England, in Liotta, F. (ed.),