Conclusions
The rethinking of doctrine and the restructuring of law concerning sex and marÂriage, during the closing decade of the twelfth and first three decades of the thirteenth centuries, reflected changes in European social structure and culÂture.
Poets, canonists, civilians, and theologians were all beginning to take inÂterest in facets of human behavior, including sexual actions, that earlier generaÂtions had often ignored. The new views about the place of sex in human life involved serious reappraisal of earlier ideas about marriage. Canonists were among the earliest writers in this age to give serious attention to the personal and social consequences that flowed from marriage. More than most poets or theologians, the canonists focused their attention on the practical results of marriage, not only for the couple but also for their offspring and their families. They made conscientious, if not always successful, efforts to balance the conÂflicting interests involved in marriage and to create a system that would respect the needs of the parties as well as of the social networks to which they beÂlonged. The consequences of developments in matrimonial law during this peÂriod were profound.[1597]The key element in this restructuring of marriage law was, of course, the final acceptance of consensual marriage theory in the version formulated in Veniens ad nos. When marriage was conceived as a relationship created by the agreement of the parties, the focus of marriage law shifted dramatically to the intentions of the couple. Upon the assessment of those psychic factors deÂpended the validity of their union, the legitimacy of their children, their own and their descendants’ property rights, and the relationship of their families. Central to the consensual theory was free choice of matrimonial partners, which thenceforth took ascendancy over family interest and parental wishes in Catholic marriage law.
This legal doctrine produced basic changes in the definiÂtion of family relationships and had enormous consequences for the subsequent history of marriage and family throughout the West.The consensual theory also produced some oddities. The new marriage law
Conclusions
legitimized an array of irregular unions, particularly clandestine marriages. Since the consent of the parties was the only essential requirement for marÂriage, it seemed inconsistent to limit a couple’s freedom of consent by requiring as a condition of validity that marriages must be public and announced in adÂvance to all parties who might be interested. For nearly half a millennium EuÂropean marriage law wrestled with this tension between the insistence on preÂserving the couple’s right to contract freely by simple consent and society’s interest in requiring persons to marry openly. Efforts to restrain clandestine contracts, notably the attempt by the Fourth Lateran Council to require pubÂlication of banns prior to marriage and the celebration of marriages in public, failed to solve the problem, despite the efforts of popes, prelates, and judges to enforce these rules.47'
Law writers during this period were not agreed about the role that sex ought to play in married life. A few of them valued marital sex more positively than had previous generations of canonists, but suspicion about the impurity of sex continued to trouble the writers of this period. They believed that the exercise of sexual rights in marriage should be restrained, but they approached the problem differently than had their predecessors. A few canonists, to be sure, fell back on earlier rules about periodic abstinence from sex, but writers of this generation more frequently concentrated on the quality and character, rather than the frequency, of sexual encounters—their discussions of coital positions reflect that concern.
Legal authorities in this period said little that was new about the intrinsic evils of marital sex.
They were far more concerned than their predecessors with the role of sex in the emotional bonding of the couple. A telling symbol of the new attitudes toward marital sex appeared in this period. Wedding rituals after the mid-twelfth century reintroduced a half-forgotten element of older cereÂmonies: the blessing of the bridal chamber and the marriage bed, which from this time began to assume increasing importance in the iconography of marriage in medieval art.[1598] [1599]The increased prominence of impotence and frigidity as grounds for divorce in canonical jurisprudence during these decades also points to a renewed awareness of the importance of sex in marriage. Although sexual intercourse was no longer essential to the formation of marriage, the capacity to have sexual relations was deemed so central that where it was absent an otherwise valid marriage could be dissolved.
Canonistic commentators of this generation tried to clarify the process of terminating unsuccessful unions, either through divorce (which was increasÂingly restricted) or through separation of the parties without the right to reÂmarry. Divorce and separation law was considerably affected, too, by the action
of the Fourth Lateran Council in reducing the forbidden degrees of consanguinÂity and affinity from seven to four.
The law concerning sex offenses changed less during this generation than did marriage law, although sex offenses constituted a major part of the case load of the ecclesiastical courts, especially at the lower levels of the system. FornicaÂtion was reduced to a minor offense, dealt with routinely by imposing small fines and ritual humiliations on offenders. Adultery, because of its greater social consequences, remained a major offense, although its importance, too, seems to have diminished in the minds of the law writers of the period.
Clerical sex continued to present problems. Clerical marriage was no longer a central issue, since married men could no longer be ordained, and marriage by men already in major orders was invalid.
But clerical concubinage remained common, and no effective means to combat it were devised, despite numerous efforts. The law concentrated during this generation on efforts to penalize the Concubinary cleric himself, through suspension, deposition, and deprivation. Efforts to deal with the problem by harsh treatment of concubines diminished during this era.Finally the law concerning procedure and evidence in sex cases, as in other matters, became more precise and comprehensive. Ordeals and other nonra- tional modes of proof are scarcely mentioned by the law writers of this age. They focused instead on problems of evaluating the testimony of witnesses.
The generation that spanned the decades from the end of the pontificate of Alexander III to the publication of the Liber Extra left a permanent imprint on the Western Church’s legal system. Canon law by the end of this period had become a more supple and sophisticated tool for implementing the policies of the Church’s leaders than it had been at the beginning. Succeeding generations made good use of the new foundations.