Law, Sex, and Christian Society in Medieval Europe
The Medieval Idea of Marriage
Joan of Arc and Richard III: Sex, Saints, and Government in the Middle Ages
The story is told of a young Oxford don, newly commissioned in the infantry at the outbreak of war in 1939, returning to his college after his first dinner with the regular officers of his regimental mess. He was asked what they were like. “Charming people,” he replied, “but quite extraordinary. They don’t seem to be interested at all in politics. They’re interested in sex.” A military man, musing on the three books under review on his way home from the Staff College (or the Pentagon), might be justified for thinking that, fifty years later, the shoe was now on the other foot.
As Professor Brooke writes early in his book, history in the scholarly tradition, under whose shadow he grew up in the 1940s, still fundamentally meant political and constitutional history. Since then, and especially during the last thirty years, social history has come into its own, lifted “on to a higher plane of intellectual and imaginative inquiry” by, above all, the French scholars of the Annales school. Virtually all historians would now agree that marriage and sexual relations must lie near the heart of social history, and have gained a right to a commanding interest among scholars.
Professor Brundage’s Law, Sex, and Christian Society in Medieval Europe is encyclopedic in scope. It opens with an examination of the debt of the medieval Church to Jewish and antique pagan teachings. Brundage stresses the emphasis of Jewish doctrine on the procreative purpose of marriage, and the sense that the sex act is to be associated with uncleanness, which can be purified through ritual. Among antique teachings, he singles out the influence of the Stoics, who took a stern and restrictive view of sexual pleasure.
The eclecticism of the early Church in fastening on these particular themes in the sexual teaching of Christianity’s parent cultures, he argues, had a profound and lasting impact. Their influence was complemented in the Church’s early period by two other strands of thinking, the emphasis of the Roman lawyers on consent as the vital factor in forging the marriage bond, and the very high valuation that the Christian fathers ascribed to virginity and the celibate life. Together these ideas dictated the shape and color of the medieval ecclesiastical jurisprudence of sex and marriage, and marked most subsequent Christian thinking on these subjects in consequence.
That jurisprudence achieved its fruition in the voluminous commentaries of the canon lawyers of the twelfth, thirteenth, and fourteenth centuries. Between their time and that of the Church fathers, the Church had had to grapple with the problem of communicating its sexual ideas and ideals, formulated in the late antique period, to the Christianized barbarians who invaded the Roman Empire, and whose customs were much less antipathetic to libidinousness, at least in males. In the fluid and politically decentralized conditions of what historians used to call “the dark ages” the clergy sought to exercise a disciplinary authority not principally through the courts, but through its penitential system, outlined in the confessors’ manuals which are called Penitentials.
The Penitentials regulated with exact nicety a restrictive code of sexual behavior and taboos, whose rigors and elaboration are wittily illustrated by Brundage in what he calls a “decision flow-chart” for a couple contemplating copulation. Opening with the question, “Are you married?” it proceeds through a series of such queries as, “Is wife pregnant?” “Is it a fast day?” “Do you want a child?” “Are you naked?” (the correct answer to this one is “no”). If the ticks and crosses are appropriately entered in the twenty boxes, you get the green light. But even then you should bear in mind some essential precautions: no lewd kisses, no strange positions, try not to enjoy it, and wash yourself afterward. The regulations of the Penitentials infiltrated the contemporary collections of Church law, and so their approach became a significant influence on the legal scholars who in an ensuing age sought to elicit from the thought and rules that they found in earlier authoritative writings a coherent jurisprudence.
Brundage has an awesome mastery of the voluminous canonical literature of the high and later Middle Ages. He organizes his treatment of its teaching on sex chronologically. The church legislation of the Gregorian “reform” period (c. 1050–c. 1140) was notable for its newly emphatic approach to the mandatory celibacy of the clergy, for its clarification of the principle of the indissolubility of the marriage bond, and very importantly, for establishing the exclusive jurisdiction of the Church’s courts over matrimonial issues. The canonist Gratian, by arranging in a systematic way in his Decretum (c. 1140) the “cacophony of dissonant opinions” that could be culled from the growing body of authoritative legislation current in his time concentrated discussion on salient issues in a way that permitted a new coherence. The rulings of the popes of the period from 1154 to 1241, and especially of Alexander III and Innocent III, finally clarified the most important issues that were still unsettled. They firmly entrenched consent of both parties as the essential legal basis of the marriage bond, asserting the principle so unambiguously as to involve the Church, somewhat embarrassingly, in upholding the validity of clandestine marriages (provided the couple were agreed and of marriageable age, they deemed priestly blessing and the presence of witnesses useful but not vital). They reduced the degrees of kinship inhibiting marriage from seven to four (degrees denote the number of steps in the family tree that separate the parties from a common ancestor) and affirmed definitively the sacramental nature of the union. They reemphasized the principles of clerical celibacy, and of the “criminality” (from the Church’s moral and penitential standpoint) of all nonmarital sexual relations. From this point on, the basic lines of the Western Christian jurisprudence of marriage and sex were clear. Subsequent commentators ranged over the fine detail, with interestingly varied emphasis on the relative moral heinousness of such “crimes” as adultery, bigamy, sodomy, fellatio, bestiality, and self-abuse.
Throughout the discussions of the canonists, between the eleventh and the fifteenth centuries, certain central questions recur. What is the relative importance of consent and of consummation in the making of a valid marriage? What are the grounds on which a marriage can be pronounced invalid, and is impotence one of them? What degree of restraint and modesty is to be expected of married partners in their sexual relations? How are the holiness of virginity and the sacramental quality of marriage to be reconciled with each other in Christian teaching? Is the pleasure incidental to the coupling of the sexes natural, or is it always tainted?
On all these matters, the comments of the canon lawyers, as Brundage presents them, tended always toward rigor and restriction. They were at their most humane in their emphasis on the consensual legal basis of marriage, and were evenhanded in their insistence that the woman’s assent was no less important than the man’s. Somewhat grudgingly, they conceded to consummation a place as a second key element, after consent, in a marriage, and allowed impotence as a ground for its dissolution. They could hardly avoid doing so, given their insistence that begetting children was the only untainted motive for sexual intercourse. On the strength of Saint Paul’s explicit injunction, they recognized the principle of conjugal debt, that the husband has no right to refuse his wife his favors, nor she hers to him. But even in the marriage bed, any quest for extra delights they stigmatized as sinful. Outside it, there was only sin in sex.
Thus, so Brundage argues, medieval canonical jurisprudence fashioned and bequeathed to later ages a Christian jurisprudence of sex that consistently stressed two principles, the notion that its reproductive function was the criterion of what was licit, and the notion that sex was impure or a source of defilement, at the expense of a third principle, which regarded (and regards) sex as a source of intimacy and a symbol of conjugal love. Sex is a powerful and a potentially destructive force as well as a creative one, and Brundage observes that every society has felt the need for some guidelines and taboos. But he concludes that the canonists went much too far in the promotion of psychological guilt. In individual misery and despair, the toll exacted by the sexual teaching formulated by them has, by his reckoning, been enormous.
It is the business of lawyers to look at human affairs from the outside. This is what makes the great difference between Brundage’s book and Professor Brooke’s The Medieval Idea of Marriage, for Brooke is explicitly seeking to explore the inwardness of relationships between men and women. It becomes very rapidly clear that, if you look inward through Brooke’s spectacles, a very much more humane and acceptable face to medieval thinking on relations between the sexes will appear. This more optimistic tone is one reason why it is the easier book of the two to read: a second is that it is much shorter. A third is that it is a very personal book as well as a very scholarly one, in which the author’s ability to identify with particular people in the past gains added perspective from his own profound ruminations on human relationships.
Brooke and Brundage agree on the importance of the rulings of the popes of the later twelfth and the early thirteenth centuries in the formation of the medieval Church’s marriage teaching. Both stress Alexander III’s insistence on consent, and the significance of his admission of impotence as a valid ground for dissolution, and also the importance of Innocent III’s reduction of the prohibited degrees of kinship from seven to four. Even so, a profound difference of emphasis is apparent. Brooke’s evocation of Pope Alexander’s pondering over the Gospel text which told him that a man shall “leave his father and mother, and cleave to his wife, and they two shall be one flesh” (which was central to this pope’s view on impotence and on conjugal debt) offers an immediate reminder of the care with which one may need to handle the implications of Brundage’s remark (which is no doubt correct on a word count) that “Jesus of Nazareth said remarkably little about sexual conduct.” So too the moral courage of Pope Adrian IV, Alexander’s predecessor, in affirming that there was no way in which the Church could question the consensual marriage of two serfs, whatever their lords might think about it, comes alive through the words of Saint Paul that underpinned his ruling: “There is neither Jew nor Greek, there is neither bond nor free, there is neither male nor female, for ye are all one in Jesus Christ.”
The two professors take different approaches to the much discussed question of the unconsummated purity of the marriage of Mary and Joseph. Brundage points out bluntly that “the marriage of the Blessed Virgin and Saint Joseph was held to have been consummated by means other than carnal union,” and refers the reader to the gloss of Johannes Teutonicus on the relevant passage in Gratian’s Decretum. Without in any way shirking the magnitude of the problem (indeed it is a huge one), Brooke turns instead to Hugh of St. Victor, who recalls that the rule that “two shall become one flesh” should also mean that they became one soul: “Henceforth and for ever, each shall be to the other as a same self in all sincere love…. Such are the good things of marriage and the happiness of those who love chaste companionship.” We are reminded sharply here of the new sense of emotional commitment and bonding that the twelfth century breathed into the old legal term maritalis affectio, which to the antique Roman jurists had meant no more than simply the intent to marry. That good canonist, Pope Alexander III, had a lot to do with this reinterpretation.