Contents

List of Illustrations xi

Abbreviations xiii

Preface xix

Acknowledgments xxiii

Introduction ι

ι. Law and Sex in the Ancient World 10

The Ancient Near East 10

Sexual Behavior in Ancient Greece 12

Sexual Behavior in Ancient Rome 22

Conclusions 49

2.

Marriage and the Family in Ancient Judaism 51

Law and Sex in Early Christianity 57

Conclusions 74

3. Sex and the Law in the Christian Empire,

from Constantine to Justinian 77

Christianization of the Roman Empire and

Romanization of the Christian Church 77

Christian Theories of Sexuality 80

Marriage in the Christian Empire 87

Sexual Oflenses 103

Sexuality and the Law under Justinian 113

Conclusions 122

4. Law and Sex in Early Medieval Europe,

Sixth to Eleventh Centuries 124

The Germanic Invasions and Germanic Law 124

Law and Sexual Behavior in the Germanic Kingdoms 127

Sexual Behavior and the Christian Church in the

Germanic Kingdoms 134

Sexual Activities of the Clergy 150

Sexual Behavior and Moral Prescriptions

in the Penitentials 152

Sexual Behavior and Early Medieval Canonical

Collections 169

Conclusions: The Church and the Regulation of

Sexual Behavior in the Early Middle Ages 173

5. The Era of Church Reform, Intellectual Revival,

and Urbanization: 1176-1140 176

The Social and Intellectual Context of Church Reform 176

The Roman Law Revival 177

The Church Reform Movement, Canon Law,

and Sexual Behavior 179

Sex and Marriage in the Canonists, 1187-1140 187

Divorce and Remarriage in the Canonical Collections

of the Reform 199

Nonmarital Sex and the Reform Canonists 203

Marriage, Sex, and the Clergy in the Church

Reform Period 214

The Enforcement of the Church’s Sexual Regulations:

Jurisdiction and Procedure 223

Conclusions 225

6.

Gratian and the Systematic Study of Canon Law 229

Marital Sex in Gratian 235

Divorce and Remarriage in the Decretum of Gratian 243

Gratian on Concubinage 245

Nonmarital Sex in Gratian 246

Sex and the Clergy in Gratians Decretum 251

Procedure and Evidence in Sex Cases 253

Conclusions 254

7. Sexual Behavior and the Early Decretists, from

Paucapalea to Huguccio, 1140 -1190 256

The Decretists and the Teaching of Law 256

The Early Decretists' Theories of Sex and Marriage 260

The Decretists and Marital Sex 278

Divorce and Remarriage in the Decretists 288

Concubinage in Decretist Doctrine 297

Nonmarital Sex and the Decretists 300

The Early Decretists and Clerical Sexuality 314

Jurisdiction, Procedures, and Evidence in Sex Cases 319

Conclusions 323

8. Marriage and Sex in Canon Law, from Alexander III

to the Liber Extra 325

Decretals, Decretalists, and Decretal Collections 325

Marriage Theory in Early Decretal Collections 331

Concubinage and Nonmarital Sex 341

Clerical Marriage and Concubinage 342

Second Marriages 343

Legitimacy and Marital Property 344

Jurisdiction, Evidence, and Procedures 345

Sex Law and Marriage in the Decretals 346

Legal Scholarship in the Late Twelfth and Early

Thirteenth Centuries 346

Clerical Celibacy and Clerical Sexuality 401

Multiple Marriages 405

Legitimacy and Property Issues 408

Jurisdiction, Procedures, and Evidence 409

Conclusions 414

9. Sex, Marriage, and the Legal Commentators, 1234—1348 417

Sources and Literature of the Law from the

Liber Extra to the Black Death 417

Social and Political Context 419

Sex, Society, and Social Thought 420

Property Consequences of Sexual Relationships 479

Evidence, Procedure, and Jurisdiction in Sex

and Marriage Cases 481

Summary and Conclusions 485

10. Sex, Marriage, and the Law from the Black Death

to the Reformation, 1348-1517 487

The Social Context 487

Sex and Society in the Fourteenth and Fifteenth

Centuries 490

Marriage Theory and Practice 494

Sexual Offenses in the Fourteenth and Fifteenth

Centuries 517

Sex and the Clergy 536

Multiple Marriages 539

Property Consequences of Sexual Relationships 540

Legitimation of Children 543

Jurisdiction, Procedures, and Evidence in Sex Cases 544

Conclusions 546

11.

Theses to Tametsi, 1517-1563 551

The Reformers and Sexual Issues 552

Catholic Reform and Counter-Reform 561

Conclusions 574

12. Medieval Sex Law and Modern Society: Recapitulation,

Reflections, and Conclusions 576

Recapitulation 576

Reflections: Medieval Christianity and Modern

Sexual Norms 579

Conclusions 594

Appendix ι: Tables 597

Appendix 2: Marriage Law and the Economic Interests

of the Medieval Church 606

Appendix 3: Survivals of Medieval Sex Law in the

United States and the Western World 608

List of Manuscripts Cited 619

Select Secondary References 621

Index 635