was possible. 24 This was more than a technicality. In the course of the Middle Ages, the prohibited degrees of consanguinity, affinity and spiritual affinity (created by baptising)were extended in such a manner25 that most noble families were related to each other within a prohibited degree. 26 Although the priests were obliged to make a genealogical inquiry before celebrating marriage, the prohibitions were often violated. 27 Sometimes this was wilfully done to ensure the possibility of d issolving the marriage. Duby cites an illustrative letter from a 12th century knight who remarks about his prospective wife: Without any doubt she is related to me within the third degree. That is not close enough to stay away from her. But if I want, and if she does not suit me, I can, on the basis of this relationship, obtain a divorce. 28 As a result the difference between the Catholic and Orthodox canon rules on the termination of marriage was less significant than it seems. The possibility of annulling an endogamous marriage in Western Europe had almost the same practical meaning as the limited possibility of divorce in the case of adultery in Eastern Europe As this brief summary of the formation of med ieval ecclesiastical marriage law shows Catholic and Orthodox canon marriage law was, in spite of a formally different approach to the constitutive elements of marriage and to the admissibility of divorce, in effect very much alike. Both gave marriage a closed, strongly institutionalised character 2. From pre-Christian law via canon unification to modern times: A helical process? In a way, the comparison of medieval ecclesiastical marriage and divorce law with pre-Christian law and current law evokes the image of a circular movement, or better still, of a spiral. Pre-Christian family law, with its informal rules on the formation of marriage, easy divorce, tolerance towards concubinage and acceptance of illegitimate children, resembles modern family law much more than medieval law. The difference between pre-Christian and modern law is of course tremendous because we are talking about completely different societies, but still the similarities are striking. The development of marriage and divorce law from the middle ages to the present can be seen as the gradual return to the informality of pre-Christian times, but on a different level; thus the use of a spiral as a metaphor. The most illustrative examples of this return to informality are some radical changes introduced during the french and russian revolutions What is the place of the medieval canonical unification in the overall line of the development of family law? What were the reasons for the unification? Should it be seen as a temporary regress or a necessary step forward? There is no simple answer to these questions It was a crucial period in the history of family law, a time of unity when there were as yet no significant differences, a kind of ius commune of family law. It was also the period in which many concepts were formed that have been dominating family law almost until the present That is why medieval law is so often, consciously or unconsciously, used as a point of reference in debates about the modernisation of family law. 29 I think that medieval family 24Duby(1985p.179 25From the third degree in the 6th century to the seventh degree in the 12th century; Goody (1983), p. 56 6 Dispensation was possible up to the fourth degree 27Idem, p. 145 Duby(1985),p 221(my translation) 9To my mind, this is a vulnera ble point in the analysis of willekens, who tries to explain the changes in family
was possible.24 This was more than a technicality. In the course of the Middle Ages, the prohibited degrees of consanguinity, affinity and spiritual affinity (created by baptising) were extended in such a manner25 that most noble families were related to each other within a prohibited degree.26 Although the priests were obliged to make a genealogical inquiry before celebrating marriage, the prohibitions were often violated.27 Sometimes this was wilfully done to ensure the possibility of dissolving the marriage. Duby cites an illustrative letter from a 12th century knight who remarks about his prospective wife: ‘Without any doubt she is related to me within the third degree. That is not close enough to stay away from her. But if I want, and if she does not suit me, I can, on the basis of this relationship, obtain a divorce.’28 As a result, the difference between the Catholic and Orthodox canon rules on the termination of marriage was less significant than it seems. The possibility of annulling an endogamous marriage in Western Europe had almost the same practical meaning as the limited possibility of divorce in the case of adultery in Eastern Europe. As this brief summary of the formation of medieval ecclesiastical marriage law shows, Catholic and Orthodox canon marriage law was, in spite of a formally different approach to the constitutive elements of marriage and to the admissibility of divorce, in effect very much alike. Both gave marriage a closed, strongly institutionalised character. 2. From pre-Christian law via canon unification to modern times: A helical process? In a way, the comparison of medieval ecclesiastical marriage and divorce law with pre-Christian law and current law evokes the image of a circular movement, or better still, of a spiral. Pre-Christian family law, with its informal rules on the formation of marriage, easy divorce, tolerance towards concubinage and acceptance of illegitimate children, resembles modern family law much more than medieval law. The difference between pre-Christian and modern law is of course tremendous because we are talking about completely different societies, but still the similarities are striking. The development of marriage and divorce law from the Middle Ages to the present can be seen as the gradual return to the informality of pre-Christian times, but on a different level; thus the use of a spiral as a metaphor. The most illustrative examples of this return to informality are some radical changes introduced during the French and Russian Revolutions. What is the place of the medieval canonical unification in the overall line of the development of family law? What were the reasons for the unification? Should it be seen as a temporary regress or a necessary step forward? There is no simple answer to these questions. It was a crucial period in the history of family law, a time of unity when there were as yet no significant differences, a kind of ius commune of family law. It was also the period in which many concepts were formed that have been dominating family law almost until the present. That is why medieval law is so often, consciously or unconsciously, used as a point of reference in debates about the modernisation of family law.29 I think that medieval family 24Duby (1985), p. 179. 25From the third degree in the 6th century to the seventh degree in the 12th century; Goody (1983), p. 56. 26Dispensation was possible up to the fourth degree. 27Idem, p. 145. 28Duby (1985), p. 221 (my translation). 29To my mind, this is a vulnerable point in the analysis of Willekens, who tries to explain the changes in family
law should certainly not be seen as a kind of degrad ation or regress. It perfectly suited the medieval society of the time. The political background of the formation of this law was the political power of the Church that was strong enough to introduce and to enforce uniform rules. The ideological background of the unification was the- at that time still almost undisturbed -unity of the Christian belief. Mystique and dogmatism were inherent to the society of that time. As soon as the canon concept of marriage as a sacrament had taken root, it was accepted by the population as self-evident The political and ideological influence of the Church may explain the fact of the unification, though not the substance of the uniform law. To explain this substance is not easy For some innovations the background is more or less clear. To declare marriage a sacrament granted it an appropriate position in the set of values of that time. The institutionalisation of marriage, the banning of concubinage and the bastardisation of children born outside wedlock cannot be understood apart from the so-called feudal revolution: the introduction of the feudal system with the right of succession belonging to the first-born as its corner stone Around the 11th century, the horizontal, cognate family structure of Carolingian times, in which male and female heirs were equal, was replaced by the vertical, agnate family structure in which only the male line was important and male heirs were privileged. 30 The goal of this change was to limit the amount of heirs in order to prevent the further division of land. The restrictions of family law served the same purpose Other features of canon law are more difficult to explain. Uphold ing the requirement of free consent to marriage clearly ran against the interest of the feudal families to have as much room as possible for the arrangement of strategic marriages between the noble clans The only explanation I can suggest lies in Christian ideology on the issue of free consent. The free will as one of the central concepts of Christian philosophy was required for the other sacraments, baptising and communion. It seems logical that marriage, once proclaimed as sacrament, also fell under this requirement. The impossibility of repudiating a childless wife and to remarry, or to conclude endogamous marriages, also ran against the crucial needs of the feudal families, because it made it more difficult to keep the land within the clan. In this light, the -to my taste, a bit too cynical -explanation by Goody, who suggests the Churchs craving for power behind these changes, 31 is not convincing. By declaring marriage to be indissoluble, the Church diminished its own possibilities of profiting from its prerogative to grant or refuse divorce. The only explanation I can suggest is that the concept of marriage as a sacrament compelled the Church to consider it to be indissoluble Though the background of the medieval unification leaves us with more questions than answers, one can observe that it was rather multicoloured. Economic and ideological factors were interweaving and complementing one another 3. The medieval dogmas: Obstacles to modern person-orientated family law The uniformity of canon marriage and divorce law only lasted until the Reformation. From law by way of the changes in the social function of the family. Willekens starts his analysis from the function of the family in the agrarian societies at the beginning of the 18th century when, as in the feudal period, land was of primary econom ic importance. I wonder whether the function of the family in those days differed so much from the Roman society of the classical period, which was also in essence agrarian, and whether this difference could expla in the informa lity of family law and the low level of institutiona lisation of marriage Duby(1985)pp.110-111 3 Goody(1983)pp.44-45,145
law should certainly not be seen as a kind of degradation or regress. It perfectly suited the medieval society of the time. The political background of the formation of this law was the political power of the Church that was strong enough to introduce and to enforce uniform rules. The ideological background of the unification was the - at that time still almost undisturbed - unity of the Christian belief. Mystique and dogmatism were inherent to the society of that time. As soon as the canon concept of marriage as a sacrament had taken root, it was accepted by the population as self-evident. The political and ideological influence of the Church may explain the fact of the unification, though not the substance of the uniform law. To explain this substance is not easy. For some innovations the background is more or less clear. To declare marriage a sacrament granted it an appropriate position in the set of values of that time. The institutionalisation of marriage, the banning of concubinage and the bastardisation of children born outside wedlock cannot be understood apart from the so-called feudal revolution: the introduction of the feudal system with the right of succession belonging to the first-born as its corner stone. Around the 11th century, the horizontal, cognate family structure of Carolingian times, in which male and female heirs were equal, was replaced by the vertical, agnate family structure, in which only the male line was important and male heirs were privileged.30 The goal of this change was to limit the amount of heirs in order to prevent the further division of land. The restrictions of family law served the same purpose. Other features of canon law are more difficult to explain. Upholding the requirement of free consent to marriage clearly ran against the interest of the feudal families to have as much room as possible for the arrangement of strategic marriages between the noble clans. The only explanation I can suggest lies in Christian ideology on the issue of free consent. The free will as one of the central concepts of Christian philosophy was required for the other sacraments, baptising and communion. It seems logical that marriage, once proclaimed as a sacrament, also fell under this requirement. The impossibility of repudiating a childless wife and to remarry, or to conclude endogamous marriages, also ran against the crucial needs of the feudal families, because it made it more difficult to keep the land within the clan. In this light, the - to my taste, a bit too cynical - explanation by Goody, who suggests the Church’s craving for power behind these changes,31 is not convincing. By declaring marriage to be indissoluble, the Church diminished its own possibilities of profiting from its prerogative to grant or refuse divorce. The only explanation I can suggest is that the concept of marriage as a sacrament compelled the Church to consider it to be indissoluble. Though the background of the medieval unification leaves us with more questions than answers, one can observe that it was rather multicoloured. Economic and ideological factors were interweaving and complementing one another. 3. The medieval dogmas: Obstacles to modern person-orientated family law The uniformity of canon marriage and divorce law only lasted until the Reformation. From law by way of the changes in the social function of the family. Willekens starts his analysis from the function of the family in the agrarian societies at the beginning of the 18th century when, as in the feudal period, land was of primary economic importance. I wonder whether the function of the family in those days differed so much from the Roman society of the classical period, which was also in essence agrarian, and whether this difference could explain the informality of family law and the low level of institutionalisation of marriage. 30Duby (1985), pp. 110-111. 31Goody (1983), pp. 44-45, 145