From Sacrament to Contract, Second Edition

Marriage, Religion, and Law in the Western Tradition

John Witte Jr.

• Publisher: Westminster John Knox Press
• Year: 2012
• Print ISBN: 9780664234324
• eBook ISBN: 9781611641929
• Topic: Theology & Religion
• Subtopic: Christian Theology

This newly revised and enlarged edition of John Witte's authoritative historical study explores the interplay of law, theology, and marriage in the Western tradition. Witte uncovers the core beliefs that formed the theological genetic code of Western marriage and family law. He explores the systematic models of marriage developed by Catholics, Lutherans, Calvinists, Anglicans, and Enlightenment thinkers, and the transformative influence of each model on Western marriage law. In addition, he traces the millennium-long reduction of marriage from a complex spiritual, social, contractual, and natural institution into a simple private contract with freedom of entrance, exercise, and exit for husband and wife alike.

This second edition updates and expands each chapter and the bibliography. It also includes three new chapters on classical, biblical, and patristic sources.

Chapter 1

Classical Foundations
of Western Marriage

The Western tradition inherited from ancient Greece and Rome the idea that marriage is a union of a single man and single woman who unite for the purposes of mutual love and friendship and mutual procreation and nurture of children. Classical philosophers and jurists alike regarded monogamous marriage as both a private good for members of the household and a public good for the broader community or polis. This idea was reflected in early Greek laws already in the sixth century BCE and became a staple of Greek philosophy from the fifth century onward.¹ In the opening centuries of the new millennium, various Roman Stoics and Roman jurists repeated these Greek ideas of the goods of monogamous marriage, grounding them more fully in a theory of natural law. And in the first four centuries CE, before the Christianization of Rome, the Roman emperors put in place a sophisticated law of sex, marriage, and family life.

These classical sources were a critical foundation for Western marriage. Some of these classical teachings found a place in the writings and canons developed by the church fathers in the first five centuries CE, particularly in the writings of Augustine of Hippo, as we will see in chapter 3. More were preserved in the Eastern Empire that eventually came to be known as the Byzantine Empire and the world of Orthodox Christianity. But after the sixth century CE, many of these classical Greek philosophical and Roman law texts were lost to the West for half a millennium. They were preserved principally by Arabic and Muslim scholars from the seventh to eleventh centuries, before they were rediscovered and reintroduced into the first Western universities in the later eleventh and twelfth centuries. Thereafter, these classic texts became staple parts of high medieval canon law and theological discourses on marriage. These ancient texts were reworked anew in the later fifteenth and sixteenth centuries by humanists and legal scholars, who used them to spur the reformation movements of the sixteenth and seventeenth centuries, which shaped both Continental civil and Anglo-American common law.

In this chapter, I sample some of the main teachings on marriage in Plato and Aristotle, the Roman Stoics, and the Roman law.

PLATO AND ARISTOTLE

Plato (ca. 428–ca. 347 BCE) said it was obvious that a “just republic… must arrange [for] marriages, sacr[ed] so far as may be. And the most sacred marriages would be those that were most beneficial.”² When advising young men on how to choose a wife, Plato wrote further: “A man should ‘court the tie’ that is for the city’s good, not that which most takes his own fancy.”³ Once married, the man should restrict “procreative intercourse to its natural function,… and the result will be untold good. It is dictated, to begin with, by nature’s own voice, leads to the suppression of the mad frenzy of sex, as well as marriage breaches of all kinds, and all manner of excess in meats and drinks, and wins men to affection of their wedded wives. There are also numerous other blessings which will follow.”⁴ Plato further underscored the natural human need for dyadic love as a way for humans to complete themselves. “This then is the source of our desire to love each other. Love is born into every human being; it calls back the halves of our original nature together; it tries to make one out of two and heal the wound of human nature…. Why should this be so? It’s because… we used to be complete wholes in our human nature, and now ‘Love’ is the name for our pursuit of wholeness, for our desire to be complete.”⁵

Plato’s student Aristotle (384–321 BCE) viewed marriage as the foundation of the polis and the prototype of friendship. He envisioned humans as political or communal animals who form states and other associations “for the purpose of attaining some good.”⁶ “Every state is composed of households,” Aristotle wrote famously in his Politics.⁷ Every household, in turn, is composed of “a union or pairing of those who cannot exist without one another. A male and female must unite for the reproduction of the species—not from deliberate intention, but from the natural impulse… to leave behind them something of the same nature as themselves.”⁸ Aristotle extended this view in his Ethics, now emphasizing the natural inclinations and goods of dyadic marriage beyond its political and social expediency:

The love between husband and wife is evidently a natural feeling, for nature has made man even more of a pairing than a political animal in so far as the family is an older and more fundamental thing than the state, and the instinct to form communities is less widespread among animals than the habit of procreation. Among the generality of animals male and female come together for this sole purpose [of procreation]. But human beings cohabit not only to get children but to provide whatever is necessary to a fully lived life. From the outset the partners perform distinct duties, the man having one set, the woman another. So by pooling their individual contributions [into a common stock] they help each other out. Accordingly there is general agreement that conjugal affection combines the useful with the pleasant. But it may also embody a moral ideal, when husband and wife are virtuous persons. For man and woman have each their own special excellence, and this may be a source of pleasure to both. Children too, it is agreed, are a bond between the parents—which explains why childless unions are more likely to be dissolved. The children do not belong to one parent more than the other, and it is the joint ownership of something valuable that keeps people from separating.⁹

To ensure that marital couples would remain bonded together for the sake of their children, Aristotle (echoing Plato’s Laws) prescribed a whole series of rules about the ideal ages, qualities, and duties of husband and wife to each other and to their children.¹⁰

Aristotle rejected Plato’s passing suggestion in The Republic that children be raised by state nurses, without maintaining any ties to their parents. Plato had speculated that this arrangement of anonymous parentage would help overcome tribalism and nepotism, the chief cause of civic strife and partisanship. But by the time he wrote his Laws, Plato had abandoned this suggestion and again commended monogamous marriage and joint parentage of children.¹¹ Aristotle rejected Plato’s earlier suggestion, too, arguing that parents will better identify with and invest in their children and kin if they are certain that the children are theirs, that they carry their “blood” and bodily “substance”:

Whereas in a state having women and children in common, love will be watery, and the father will certainly not say “my son,” or the son “my father.” As a little sweet wine mingled with a great deal of water is imperceptible in the mixture, so, in this sort of community, the idea of relationship which is based upon these names will be lost; there is no reason why the so-called father should care about the son, or the son about the father, or brother about one another. Of the two qualities which chiefly inspire regard and affection—that a thing is your own and that it is your only one—neither can exist in such a state as this.¹²

Plato’s purported utopian society contemplated in The Republic, which failed to privilege these natural family ties, would actually work out to be anything but utopian, Aristotle argued. Such a society would “water down” parental recognition and investment to the detriment of children. Moreover, it would unleash greater violence within society because parties would lack the natural restraint that most persons have about harming their known blood kin. “Evils such as assaults, unlawful loves, homicides, will happen more,” Aristotle wrote, “for they will no longer call the members of the class they have left brothers, and children, and fathers, and mothers, and will not, therefore, be afraid of committing any crimes” against them.¹³

THE ROMAN STOICS

In the centuries after Plato and Aristotle, the Roman Stoics repeated and glossed these classical Greek views about marriage, even while many of them celebrated celibacy as the higher ideal for philosophers seeking quiet contemplation. For example, Musonius Rufus (b. ca. 30 CE), an influential Stoic moralist, described monogamous marriage in robust companionate terms that prefigured the familiar language of the Western marriage liturgy:

The husband and wife… should come together for the purpose of making a life in common and of procreating children, and furthermore of regarding all things in common between them, and nothing peculiar or private to one or the other, not even their own bodies. The birth of a human being which results from such a union is to be sure something marvelous, but it is not yet enough for the relation of husband and wife, inasmuch as quite apart from marriage it could result from any other sexual union, just as in the case of animals. But in marriage there must be above all perfect companionship and mutual love of husband and wife, both in health and in sickness and under all conditions, since it was with desire for this as well as for having children that both entered upon marriage.¹⁴

Musonius further insisted that sexual intercourse was “justified only when it occurs in marriage and is indulged in for the purpose of begetting children.” He was almost unique among first-century writers in condemning the sexual double standards of the ancient Greco-Roman world of his day that treated a wife’s extramarital sex with anyone as adultery but allowed a husband to consort freely with prostitutes or slaves. Both husband and wife had to remain faithful to each other in body and soul, he insisted. Musonius was also distinctive in condemning the Roman toleration of leaving unwanted infants exposed to die. He praised those lawgivers who “considered the increase of the homes of the citizens [through procreation] the most fortunate thing for the cities and the decrease of them [through infanticide] the most shameful thing.” Indeed, he wrote, “whoever destroys human marriage destroys the home, the city, and the whole human race.”¹⁵

Musonius’s student, Hierocles (early second century CE), argued more strongly than his teacher that it was incumbent upon all men, even philosophers seeking quiet contemplation, to marry and to maintain a household. For “the married couple is the basis of the household, and the household is essential for civilization,” he wrote, echoing Aristotle.¹⁶ While procreation remained the ultimate ideal of marriage, in Hierocles’ view, the consistent companionship and mutual care of husband and wife was no less important, even in the absence of children:

The beauty of a household consists in the yoking toge...

Table of contents

• Cover
• Half-title Page
• Title Page
• Copyright Page
• Dedication Page
• Contents
• Preface to the Second Edition
• Preface to the First Edition
• Introduction
• 1. Classical Foundations of Western Marriage
• 2. Biblical Foundations of Western Marriage
• 3. Patristic Foundations of Western Marriage
• 4. Marriage as Sacrament in the Medieval Catholic Tradition
• 5. Marriage as Social Estate in the Lutheran Reformation
• 6. Marriage as Covenant in the Calvinist Tradition
• 7. Marriage as Commonwealth in the Anglican Tradition
• 8. Marriage as Contract in the Enlightenment Tradition
• Concluding Reflections
• Bibliography
• Index of Biblical Sources
• Index of Subjects and Authors