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) 211

Thus, at a stroke, Innocent III removed much of the uncertainty about consanguinity, so that the very extended arbor consanguinitatis transmitted from Bur- chard onwards was replaced with the much shorter table later found in the Liber Extra,96 This bold action was possible only in the context of the advances in theological and legal thought made through the twelfth century and greater confidence in the collective authority of a General Council to revise rules that were deemed unworkable.97

Clandestine marriages were also summarily condemned in Canon 51, with the instruction that the custom observed in some regions of announcing prospective marriages in church (the banns of marriage), so that legal impediments could be discovered in advance, should be universally applied:98

clandestina coniugiopenitus inhibemus, prohibentes etiam, (...) specialem quorun- dam locorum consuetudinem ad alia generaliter prorogando statuimus, ut, quum matrimonia fuerint contrahendo, in ecclesiis per presbyteros publice proponantur, competenti termino praefinito, ut infra ilium, qui voluerit et valuerit, legitimum impedimentum opponat, et ipsi presbyteri nihilominus investigent, utrum aliquod impedimentum obsistat.

(we absolutely forbid clandestine marriages; and [... ] extending to other localities generally the particular custom that prevails in some, we decree that when marriages are to be contracted they must be publicly announced by the priests in the churches, after fixing a suitable term within which those who wish and can [may] raise a legal impediment, and the priest themselves must nevertheless investigate whether any impediment exists).

Yet such marriages were not declared invalid. This was no oversight. Although there was strong feeling in favour of public nuptials, there was also an unstated recognition that many marriages were made informally, and a declaration of in96 But the prohibition of marriage with spiritual relatives remained in place: cf. Alfani, G., Padri, padrini, patroni (trans. Calvert, e., Fathers and Godfathers). Alfani, G., La parentela spirituale nella storia', and Lynch, J. H., Godparents and Kinship.

97 Tancred (c.1220) put the matter somewhat differently in his commentary on Compilano Tertia. Referring to Canon 50 (and also to c.35), he wrote that the pope can turn injustice into justice by correcting any canon or law: Post, G., Vincentius Hispanus, “Pro ratione voluntas”, and the Medieval and Early Modem Theories of Sovereignty, in Traditio 28 (1972) 159-184, at 171. This reading is based on Post’s correction of de iustitia potest facere iniustitiam corrigendo ca- nonem aliquem uel legem to de iniustitia potest facere iustitiam (...), ibid., 171 nn. 42 and 43, 174; cf. Dondorp, H., De iustitia facit iniustitiam. Die Wirkung der decretale Ut debitus, in Theisen, F. - Voss, W. E. (Hrsg.), Summe - Glosse - Kommentar. Juristisches und Rhetorisches in Kanonistik und Légisük (Osnabrücker Schriften zur Rechtsgeschichte 2/1), Osnabrück 2000. 75-94, at 75-76.

98 X 4.3.3.