In his monograph, Charles Reid Jr, associate professor of law at the University of Saint Thomas in Minnesota and ecclesiastical judge with the Catholic Diocese of Scranton, explicitly draws on the work of his two teachers, Brian Tierney and James Brundage, in studying the use of the language of rights in marriage in the medieval Christian West. He locates the origins of this language in the twelfth and thirteenth centuries, where Tierney situated the birth of ideas of natural rights in medieval canon law and theology.Footnote 1 The rights that Reid addresses here are peculiar to marriage, an institution about whose legal history Brundage has taught us all so much.Footnote 2 Building, then, on his teacher's scholarship, Reid seeks in the twelfth and thirteenth centuries the historical foundations for the duties and obligations of participants in a marriage.
Reid believes that many of our modern conceptions of rights ‘run contrary to the responsibility and common decency we owe each other’ (p 212). In contrast, rights and obligations as developed in the twelfth and thirteenth centuries served not as wedges to separate people from communities but were instead understood as helping the group to adhere by reference to a common morality and a shared conception of natural law. Reid's occasionally expressed preference for the values shaping medieval canonistic rights language as opposed to modern, more individualistic expressions is tempered by his abhorrence of medieval ideas such as the right forcibly to consummate a marriage.
In four chapters, Reid addresses the rights of persons to contract their own marriages, paternal rights and obligations, the rights and duties of women within a marriage, and the rights of offspring, particularly concerning inheritance. He argues that the language of rights and obligations first came into use in the canonical and theological treatments of marriage and the family in the twelfth and thirteenth centuries, above all at the hands of Gratian.
Reid emphasises that the right freely to contract a marriage owes a great deal to Gratian, but which Gratian (that is, the author of which of the two recensions of the Decretum) he does not say.Footnote 3 Instead, he argues that he is discussing the ‘finished product’ of whichever Gratian authored the second recension (p 13), and the resultant ‘revolution’ in freedom to contract a marriage (p 37). Composed in the early twelfth century in any case, the Decretum's interpretation of Gratian's sources created dramatically new opportunities, at least theoretically, for aspiring spouses who might have otherwise required their parents' permission to marry. The greatest complication for church officials and families alike was that this primacy of free consent made clandestine marriages legally valid. This meant that, while couples might be excommunicated or otherwise penalised for marrying without the participation and sanction of the Church, the marriage was legitimate. This doctrine led to endless social problems of abandonment, illegitimacy, confusion and exploitation.
However, the right to free choice of a marriage partner loomed so large in medieval interpretation of marriage law that Church officials could not, and would not, change their stance. Requirement for publicity, for banns and for church participation in all legal marriages came only with the decree Tamesti at the Council of Trent in 1563. Even here, however, parental consent was not necessary. The right for each intended spouse to give free consent to a marriage was simply too important to be subject to parental or societal influence, or even to protect against marriages made in spite of impediments.
The rights of a husband as head of the family were meant to be tempered by the obligations he had towards wife and children and their support. Whereas, in the Roman empire, the husband was equipped with the right to expose unwanted children, paternal privileges are much more limited by the late medieval period. The rights of women after marriage included the expected conjugal rights as formulated in the theoretical equality of the marital debt, the right to separate from an abusive husband and the right to choose one's own place of burial. That these rights coexisted with a clear differentiation in status, the woman being subservient to her husband, Reid considers an important problem in the legal theology. This conflict of equality and inequality in a relationship, however, was such a constant feature of medieval society that one has difficulty accepting Reid's portrayal of the medieval canonists as having to struggle particularly over this rather commonplace paradox of medieval life.
The final chapter addresses the interaction between traditions of testamentary freedom and the rights of legitimate children to inherit. All legitimate children had a right, based in natural law, to a portion of their parents' estate. Parents were to be held to this obligation unless the children, who owed their parents obedience, posed a serious threat to their parents' honour, faith or wellbeing. The Church ordered that provision should be made for illegitimate children as well, but they lacked the natural and required inheritance rights of legitimate heirs.
This excellent study offers an important account of what husbands, wives and children both owed each other and had the right to expect as part of a family unit in the Middle Ages. Many of these rights and obligations, as Reid explains, continue to influence contemporary thought and ideas. One hopes, however, that Reid's work can be built on to show how many of these rights and obligations worked out in practice.
Another not-so-very recent publication by Eerdmans Press does a stunning job of addressing both theory and practice in the first of what promises to be a notable series on marriage and the family in Calvin's Geneva. Sex, Marriage, and Family in John Calvin's Geneva – Vol 1: Courtship, Engagement, and Marriage provides remarkable means to access the work and situation of a unique individual who seized on the opportunity time, circumstance and, above all, his talent and convictions to realise his vision of how a society should conduct itself on earth. With John Calvin we not only have a preacher who both preached and helped legislate and govern a new social experiment, we can also witness the struggles of a preacher forced to watch the conversion into practice of many of his ideals and to confront the results. This collection allows readers to witness the efforts of a priest, lawyer and judge willing to revise his thinking; and the various ways in which the society for and against which he exerted his energies responded to him and his teachings.
The two authors and editors of this volume need no introduction in the field of Calvin's Geneva. John Witte as legal historian brings his unique training and perspective to Calvin the lawyer and theologian. His co-author and editor, Robert Kingdon, is the man who cracked the code, as it were, working alongside his students to edit and translate the previously unreadable records of the Genevan Consistory Court, now arguably one of the great resources available for early modern European social history.
Following the stages of family formation, development and endings, the authors draw on seven different types of document left behind by Calvin and his allies: sermons, lectures and commentaries, consilia, pastoral and personal letters, educational works, statutes, and consistory court cases. The structure of the book neatly follows the layout of topics covered by the Genevan Marriage Ordinance of 1546: courtship, consent, parental consent, impediments, fitness to marry, incest, interreligious marriage, economic issues, engagement and banns. Each chapter presents the material and the context, and an analysis and critical English edition of selected texts on each topic.
The opportunities and avenues for exploration provided by this text are many, and unfold in directions that encompass theology, law, political struggle, interpersonal struggles between Calvin and his fellow pastors and Genevans, and court records documenting the chastisement and prosecution of those who violated Genevan law. To offer one small example, the volume consistently offers a clear account of what changes Calvin made in marriage law from the medieval antecedents, addressing these changes both in analysis and with primary source examples.
Breaking with the tradition described by Charles Reid in Power over the Body, Calvin prioritised duties and obligations to a parent over free consent to marry, requiring parental permission for men under twenty and women under eighteen. With Calvin, parents could disinherit a child for marrying against their will, the father's consent being of particular concern. Engagement was accorded impressive weight in this new order, and publicity became a requirement even at this initial stage. Legal engagement in Calvin's Geneva required at least two witnesses, and with good reason, as engagement had been made into a far more binding affair than its medieval predecessor. Once a promise of intent that could be broken by common consent, engagement now required a marriage within six weeks of the announcement, with no room to dissolve the promise.
Another considerable change is the disappearance of recourse to dispensation, which arrived alongside the shrinkage in number and kind of impediments to marriage, from fourteen to five. Where once a pope might have allowed a marriage through dispensation, no possibility for exceptions accompanied Calvin's rules. To be sure, far fewer types of marriage were now prohibited, and far more people than ever were free to marry. Divorce also now had a place, in the law at least, even if relatively few would seek it in practice, as Kingdon has demonstrated in his Adultery and Divorce in Calvin's Geneva.Footnote 4
On an unrelated note, Chapter Three, which addresses courtship, offers insight into Calvin's personal life, in particular his often disastrous efforts at matchmaking and at finding a bride for himself. We also witness here his rather peculiar and vigorous opposition to marriages involving significant age disparity. Such biographical quirks contribute a dimension of humanity and humour to this multifaceted project.
With this book, and with future publications promised, I have the sense that we will soon be able to learn about and teach about Calvin's ideas and their implementation in Geneva in ways that we could not possibly have imagined before.
