Preface
This book began, as books frequently do, with casual queries and stray speculaÂtions. My earlier work on the history of the crusades piqued my curiosity about sexual behavior and the law.
Why, I wondered, did the chroniclers who wrote about the recovery of the Holy Land spend quite so much time relating the crusaders’ sexual adventures? Other moral offenses, even heinous ones, seemed not to fascinate them as sexual misbehavior did. Was it just because sex cases furnished titillating tidbits to spice up the narrative? Or did the chroniclers’ treatment of these episodes represent some unspoken agenda?As I read canonistic writers in an effort to understand how crusading armies worked, I wondered about the canonists, too. They seemed almost mesmerized by sexual behavior and insisted on examining it in stupefying detail. FurtherÂmore, when Hostiensis, for example, discussed the case of the crusading harlot, was he simply using her as a bizarre specimen for his analysis of votive obligaÂtions? Was this just a device to catch the attention of law students and keep them awake in class? Or was there more to it? Did all the intricate detail in the Tree of Bigamy or the law about the affinal relationships of godparents, for exÂample, serve some social purpose, or was it merely the spinning out of theories for theory’s sake?
At the same time I also wondered about about my own society’s sex laws. Why did we have those peculiar statutes banning fornication and contracepÂtives? Why did the courts fine prostitutes but let their clients off scot-free? Why on earth did some states prescribe the death penalty for sexual relations between consenting adults? Why did Nebraska castrate men who molested chilÂdren? What was the point? Deterrence? Revenge? Or to pacify an angry god?
I suspected that such anomalies and curiosities must have a long history, that they had probably become embedded in law and folklore in the distant past.
Certainly reason or equity seemed to have little to do with them. These pecuÂliar statutes and the curious fascination with sex that I saw in the crusading chroniclers appeared to have common ground in medieval Christian morality. What I was seeing, I finally realized, was a system of legal theology rooted in medieval Catholicism but extending into modern statute law. My reading in the canonists also led me to wonder why Christians in general, and Catholics in particular, put sexual behavior so close to the center of their ethical systems. As I began to look for answers this book slowly took shape, over nearly twenty years.The focus of the book is on the triangular relationship between sexual pracÂtices, theological values, and law.[*] One thesis of this book is that medieval canon law played a central role in shaping modern sex law in the West. The canonists rested their law concerning sex largely upon assumptions that they found in patristic writers and theologians. The canonists’ contribution was to transform those moral teachings into law, to furnish a theoretical rationale for sexual norms, and to devise and implement systems for enforcing them. Many features of modern law about sex and marriage took shape during the twelfth and thirteenth centuries. By about 1250, the canonists had crafted much of the legal framework familiar in our own time. After 1300, civil governments began to play increasingly important roles in controlling sexual behavior. The ReforÂmation speeded transition from Church control to civil control, but the process had begun about two centuries earlier and was already well advanced before Luther was born.
This book aims first and foremost to explore the historical development of medieval law dealing with sex, both within and outside of marriage. Because of the nature of the sources and the way in which the law itself developed, I have chosen to combine two rather different books into one. The first five chapters survey the development of Christian ideas about sex and society up to the midÂtwelfth century.
Although these chapters are based upon wide reading in the published primary sources, I have relied heavily on the work of specialists in the history of late antiquity and the early middle ages, as my notes make plain. Chapters six through nine, dealing with the classical period of the canon law, constitute the core of the book. Much of the material in those chapters (and especially in Chapters seven and eight) comes from unpublished manuscript summas, commentaries and glosses, as well as from printed texts. The scale of treatment in those four chapters is detailed and monographic. Chapters ten and eleven resemble the first five chapters in that they are based primarily on pubÂlished sources and draw largely on studies by specialists in the period. The book thus comprises a monograph (Chapters 6-9) wrapped in a survey (ChapÂters 1—5, 10—11), with a final segment (Chapter 12) that summarizes the whole thing and draws conclusions from it.I adopted a chronological structure for the book, since one of my primary aims was to show the development over time of legal constraints on various types of sexual activity. This approach inevitably involves some repetition, as each chapter in turn takes up themes treated in previous ones; although I have tried to keep this within bounds, some redundancies necessarily remain.
In writing this book I had several different audiences in mind. It is directed in part to specialists in the history of medieval law, society, and religion. But I have also tried to keep in view the needs and concerns of sexologists and pracÂticing therapists who may be interested in the origins and development of law and public policy relating to sexual behavior.
James A. Brundage