Contracting Marriage

Layers of Power : Societies and Institutions in Europe / edited by Saúl Martínez Bermejo, Darina Martykánová, Momir Samardžić. - Pisa : Plus-Pisa University Press, 2010(Thematic work group. 1. States, legislation, institutions ; 5)306.094 (21.)1. Società – Europa I. Martínez Bermejo, Saúl II. Martykánová, Darina III. Samardžić, Momir

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ISBN: 978-88-8492-733-0

Linguistic reviserNeil Herman

Editorial assistanceViktoriya Kolp

Informatic editingRăzvan Adrian Marinescu

Families: Contracting Marriage

Aleksandra Smirnov-Brkić (editor) Alessandra Veronese Frederik Pedersen Kenan Inan

ABSTRACT

This chapter presents a challenging comparative approach to studying the family, tradi-tionally considered to be a fundamental institution of human relationships. Here we have decided to focus on one specific element in the process of creating a family, that of contracting marriage. This perspective offers unique insights into the marital policies of those religions which have moulded the lives of European families in the past and present. Our aims are to identify the basic principles of marriage law in each religious tradition and to examine their historical development. We will focus on the medieval era as crucial in the develop-ment of these systems of norms in Judaism, Western Christianity, and Islam. The chapter also establishes links with previous and succeeding periods to trace relevant transformations. It concludes with a comparative section in which the authors attempt to identify significant similarities and differences between the different strands of marriage legislation while ex-amining ancient marital practice and legislation, especially the legacy of Roman law.

The constructivist approach of this volume underpins our desire to investigate what we have named ‘layers of power’ in Europe. By this we refer to the scales of social organisa-tion that are present in all historical periods, regardless of the geographical, political, economic or cultural make-up of a specific society. The ‘layer’ of power that presents itself most self-evidently as the primary social unit in which human beings have co-existed, and which formulates the rules of that existence, is the family. It is in familial relations that “many of the most distinctive features of human life are most clearly and unambiguously illustrated”1. The family is sui generis a layer of power, as it contains mechanisms through which it influences intrapersonal and interpersonal concepts and activities. One of these mechanisms is marriage, an institution whose origins and early development cannot be pinned down conclusively, but whose omnipresence we experi-ence daily. As a source of certain rights and duties within and outside the community, marriage, over time, has been converted into a matter of law. This chapter explores the

A. Smirnov-Brkic, A. Veronese, F. Pedersen, K. Inan16 ´

development of marital law in Europe and compares different marriage laws which co-existed (and still do) in Jewish, western Christian and Islamic communities. Chrono-logically, it concentrates primarily on the medieval period as the crucial phase in the development of marriage law for all these religious groups, for it was then when these laws were refined from customary and ritual practice into codified legal acts. This, in turn, created the foundation for present-day marital legislation, thus contributing to a common European cultural heritage.

While marriage has long been bound to religion, modern civil marriage has emerged as a means of separating the public creation of a new conjugal unit from the private sphere of personal faith. Legal definitions of marriage, both canonical and civil, have evolved over time in response to demographic, social, and cultural changes. Causes and consequences in both spheres beg for comparative analysis. To be sure, such an approach is not new. Anthropologists have long focused on the similarities and dif-ferences between the practice of marriage in a wide range of social and cultural set-tings2. And legal scholars have shown similar interest in the comparative study of so durable an institution. Thus P.H. Neuhaus has cited three reasons in his defence of the relevance of a comparative approach attentive to religion, to the family and mar-riage3. Firstly, in today’s multi-ethnic and multi-cultural societies, distinct marriage laws cohabit and interact. Indeed, it is upon this clash of laws that we have built our global society: for example, Christians living in the Orient adopted Islamic law on marital property. Secondly, even though the influence of religion on family and mar-riage is declining in the contemporary world, modern marriage legislation owes its essence to ecclesiastical laws. In a historical perspective, the canon law of the Catholic or Orthodox Church forms the basis of marital legislation presently in force in most European and American countries. Finally, Neuhaus exalts the importance of religious matrimonial laws as an alternative source of ideas to the prevailing secular laws, in case current practice proves to be unsatisfactory.This chapter, with its focus on marriage law as one particular aspect of family history, differs from others in the book as it does not provide a general chronological overview of the development of one particular layer of power. Instead, we analyze one especially crucial dimension of family life as a manifestation of the family’s social power. By fo-cusing on differences and similarities in the marriage laws of Christian, Islamic and Jewish medieval communities, we will suggest that a comprehensive analysis of the de-velopment of the European family requires revisiting this early and extremely crucial period, not least because of the sheer wealth of intercultural connections among these different traditions. Investigating similarities and differences in the development of marriage law brings to light one of the strengths of this research network: its bringing together scholars from different academic traditions to work collectively on a topic of recognized importance.

Contracting Marriage 17

Families

The bibliography on marital and family law is rich and diverse, and over the past dec-ades, family studies has emerged as a significant field of research in the human, social and behavioural sciences4. Following Montesquieu, we analyse comparative law in different legal systems, hoping to distinguish how they differ and how their elements combine into a trans-cultural, coherent system. Comparative law is a very important discipline for communication between legal systems, as it provides the basis for the pro-duction of information necessary to promote mutual understanding across cultures. As historians, our task here is to trace changes in the ideology or practice of marriage and to reflect the plurality of legal ideas. Essentially, the following chapter consists of four parts. Three are case studies which trace how family and marriage law evolved within distinct religious and legal traditions during the Middle Ages. The concluding section takes some of our reflections further, as our focus shifts from developments in Europe, with its impressive variety of family law systems, towards a more general while pointed comparison of marital laws.

DEVELOPMENT OF JEWISH MARRIAGE LAW

Present-day legislation concerning marriage within Orthodox Judaism is the result of a very long process. In the Torah (the Pentateuch) the passages that relate to marriage practices are on the whole scanty. Those that exist were later incorporated into the body of formal commentary known as the Talmud and discussed in detail by the rabbis, who greatly extended the regulations regarding Jewish marriage law. The Torah’s rules re-flected the customs of the surrounding societies. The Patriarchs followed Mesopotami-an customs, though apparently adapting them to their own needs5. The Code of Ham-murabi (written around 1700 BC) clearly decreed that the husband was not allowed to take a second wife if his first wife provided him with a concubine. However, some biblical personalities certainly had more than one wife. Jacob, for example, married two sisters, Leah and Rachel, and Esau’s three wives seem to have enjoyed the same rank. One should note that from the 19th century onward, Orthodox Judaism has been joined by other branches of Judaism, such as Conservative Judaism, Reform Judaism, Re-constructionist Judaism etc., whose rabbis (in some cases women as well as men) have significantly changed the rules concerning marriage. For example, Orthodox Juda-ism refuses to recognize the legitimacy of cross-cultural marriage, that is, marriage which involves a Jew and a non-Jew. On the other hand, although Conservative Judaism does not accept the principle of cross-cultural marriage, it is more lenient in practice, and the non-Jewish spouse is often accepted within the family. According to Reform Juda-ism and Re-constructionist Judaism, intermarriage is not forbidden, even though some rabbis try to ensure that the children born within such marriages are raised as Jews. The concept of cross-cultural marriage varies markedly due to the fact that according to the halakhah ( Jewish Law), a Jew is a person born from a Jewish mother or someone who converted in an acceptable halakhic way. Within Orthodox and Conservative Judaism,


therefore, the rules for considering a marriage valid are stricter than those followed by more liberal rabbis. It is important to stress that Jewish marriage did not have (and still does not have) sacramental value. This is in contrast to, say, Christianity, where the con-cept of “marriage” as a sacrament emerged in the Middle Ages6. Therefore, according to the halakhah the presence of a rabbi is not mandatory at a wedding, since the act of marriage is essentially a mutual agreement between two individuals who have decided to live together7.Jewish matrimonial law faces two main problems: a) those arising from the numerous and various incest laws, and b) those connected to the regular laws of marriage and divorce8. In the Torah, one finds much information concerning the laws against incest. The text provides several details on this particular point, beginning with the command-ment “Thou shalt not commit adultery” to many kinds of marriage interdictions that the Torah enumerates (in the books of Leviticus and Deuteronomy). However, in the Torah itself one finds only a very few references to permissible behaviour of the spouses within marriage9. The basic norms of the halakhah concerning marriage and divorce were formed through tradition and the interpretations of the Torah by many genera-tions of sages. The various marriage laws included in the Mishnah and the Talmud are rather detailed and sometimes very complicated. (The word Mishnah derives from the Hebrew shana, meaning ‘to repeat’, and was used to indicate the study of oral Law. According to Jewish tradition, oral Law was given by God to Moses on Mount Sinai and written many centuries later when persecutions jeopardized its correct transmis-sion from generation to generation. Together with the Gemarah, or discussions of the Mishnah, it forms the text of the Talmud). Medieval rabbinic commentaries added further elements (mainly explication) to matrimonial law. Moreover, some practices, though not mandatory, became so widespread that they also came to be considered as rules. For instance, as has already been mentioned, the act of marriage does not require the presence of a rabbi. According to Talmudic law, when a man and a woman decide to wed, the former only has to state in front of two witnesses that she becomes his wife through one of the accepted forms of marriage. However, during the Middle Ages, es-pecially among the Ashkenazi Jews, the presence of a rabbi became more and more cus-tomary, and therefore only seldom was a marriage ceremony performed without one10.In order to marry within Jewish society, first and foremost one must decide which part-ners are legal and which are not. According to the halakhah, if one of the partners is still under age the marriage will not be valid. In Jewish law, a boy is considered to be a minor (katan) until he turns thirteen. When he is thirteen years and one day old, he is considered of full age (gadol) and is permitted to marry. A girl is considered under age (ketannah) until she turns twelve. Until she turns twelve and half she is called na’arah (adolescent) and can marry only with her father’s consent (although if her father is dead she can marry without consent and the marriage will be valid). When she turns twelve and half, she is of age (gedolah). Jewish law also considers certain unions illicit. A man


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is forbidden to marry a goya (non-Jewish woman), or a woman whose conversion has not been rightfully performed and is therefore dubious from a halakhic point of view. Neither can he marry: a Karaite ( Jews who do not recognize the oral Law of the Tal-mud and follow carefully the text of the Bible, even one converted to Orthodox Juda-ism); a married woman; a woman whose divorce is not valid according to Jewish Law; a woman who is the offspring of adultery or incest; a woman who has committed adul-tery; a childless widow who has not performed the shoe-removal ceremony (halitzah) with her brother-in-law; or, finally, his divorced wife if she has married another man, no matter if she is widowed or divorced. All unions considered incestuous are also forbid-den (the law details a long list of forbidden kinswomen, beginning with one’s mother). Members of Cohanim (priests’ families) are also forbidden to marry either a converted or a divorced woman. Similar rules apply to women, with a few differences.Some of these prohibitions were codified in the Torah, while others were elaborated many centuries later by the rabbis. According to the Shulchan Aruch, a major codifica-tion of Jewish law dating from the 16th century, forbidden unions include those which the Torah and the rabbis prohibit. The unions prohibited by the Torah could be an-nulled, while the marriages performed against rabbinical prohibitions were valid and could only be cancelled by a divorce.The marriage contract, which was written in Aramaic and called ketubah, was consid-ered very important. The form and contents of the ketubah has varied a lot through the ages, but essentially, in every period of Jewish history, it was expected to contain an enumeration of the conditions for marrying a woman. Some of those conditions must be present in any ketubah, while others depend very much on personal agreements11. Certain details were changeable, depending upon the specific agreement between hus-band and wife. A very important point of the ketubah consisted in the husband’s prom-ise to pay a certain sum should he divorce his wife, or should she remains a widow. The ketubah also contains agreements concerning the inheritance of possessions (in case the husband dies) and the man’s duty to maintain and then provide a dowry for any daughter born of the marriage. Some other basic conditions contained in the ketubah are the duty to feed the wife, to provide her with clothing and to have regular sexual intercourse with her12.During the Middle Ages, especially in southern Europe (notably Italy, Provence, and the Iberian Peninsula) numerous contracts dealing with marriage agreements were drawn up in Latin, or more rarely in the local vernacular. These contracts contain information on the amount of the dowry, and on provisions for a wife who survives her husband or is divorced. Of course, the available information differs from one region to another. In Rome, for example, the extant documentation studied by Anna Esposito has shown that, in the later Middle Ages, Jews provided their daughters with dowries varying from 20 to 200 gold florins13. Some wills drawn up in Treviso in the 14th and 15th centuries, and containing provisions on behalf of the widow-to-be, show that in the town – whose


Jewish population consisted essentially of German Jews – the average dowry was much higher, varying between 600 and 1300 gold ducats14. Ancient Jewish tradition tolerated polygamy15. Marriage law in the Bible and in the Talmud assumed that a man was entitled to take more than one wife. In any case, even though the Talmud fixed at four the maximum number of wives for a private citizen, and at 18 for a king, this rule seems to have been essentially theoretical, and monogamy appears to have been the most frequent status within Jewish society16. During the Mid-dle Ages, however, the question of polygamy, at least in European countries, began to be debated, and in the 11th century, Rabbenu Gershom of Mainz (me’or ha-golah, the Light of the Diaspora) issued a herem, or prohibition on polygamy17. Very likely, Rab-benu Gershom’s ban simply confirmed the existing situation, since in Talmudic times it was not very frequent to find examples of men with two wives, let alone with more. Nevertheless, some scholars think that polygamy existed both before and after this pro-hibition. For example, Leopold Loew argues that the mere fact that it was necessary to proclaim a ban was proof that polygamy was still practised18. In Muslim countries, however, where polygamy was generally accepted by the dominant society, Jews were known to have adopted it. In fact, many documents in the so-called Cairo Genizah deal with polygamy19. In Muslim countries, then, polygamy was tolerated, and Rab-benu Gershom’s ban was never accepted as binding. Some Sephardi and Mizrahi Jews – that is, of Iberian and Middle Eastern origin, and particularly those from Yemen and Iran – ceased to practise polygamy only quite recently, mostly because they moved to countries (first and foremost Israel) where the practice was not allowed.One important problem we face is determining the origin of the ban against polygamy. Some scholars consider it to be the result of Jews being immersed in Christian society. Accordingly, Franco-German rabbis during the Middle Ages developed new rules simi-lar to Christian family law20. It is certainly true that Franco-German Jews, unlike most of their brethren in Mediterranean countries, lived in a Christian environment, and that the Church and the teachers of canon law struggled to ensure the purity and the monogamous character of Christian marriage. It is not unlikely, therefore, that the sur-rounding Christian society may have had an influence on the rabbis, at least concerning their attitude towards polygamy.In regard to ceremony, at present Jewish marriage is conducted, more or less, in the following way: the bride and the groom are led to a canopy, where the rabbi recites a blessing over wine and the couple both drink from a goblet. After that, the bridegroom puts a ring (usually of gold or silver) on the bride’s finger and recites the betrothal for-mula. He then breaks a glass and the text of the marriage contract is read. In conclusion, blessings over the wine and the marriage are recited and the spouses drink a second time from the ceremonial cup21. It took many centuries for the marriage ceremony to develop in this way. In biblical times, the betrothal and the actual marriage took place on two separate occasions22. Hebrew uses a special verb, arash, to indicate the act of


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becoming engaged. From this is derived the term erushin. The legislative texts confirm that betrothal was a recognized custom and constituted a very important obligation. A betrothed man who had yet to marry was exempt from going to war, and the death penalty was contemplated for any man who raped a betrothed virgin23.In ancient Israel and the entire Mesopotamian area, marriage was a civil act and was not linked to any religious ceremony. Marriage contracts had certainly been drawn up in biblical times, though references to them in the Torah remain, on the whole, rather scanty. We have numerous marriage contracts preserved from the Jewish colony of Elephantine (5th century BC), and the custom of drawing up marriage contracts was attested in Greek and Roman times24. The marriage formula, as contained in the contracts from Elephantine, demonstrates that only the man declared his intention to marry, while the woman did not express any wish. A wedding was the occasion for great festivities, and in the Bible there are many references to the highly important act of escorting the bride to the house of the bridegroom. This ceremony began to assume its present form during the 11th century AD, when the two distinct acts of erushin (betrothal) and nissu’in (marriage) fused and began to be performed almost at the same time. German sources prior to the First Crusade mention the fusion of these two ele-ments into a single ceremony25. It became customary to read the marriage contract as an intermission between betrothal and actual marriage; this practice is mentioned in standard medieval texts, such as the Responsa (legal opinions) of Rashi, the Formulary of Judah of Barcelona, and in Provençal and Italian records from the 12th century26.Divorce is currently permitted but (with a few exceptions) not encouraged, as Jew-ish law regards it as morally censurable. There are circumstances in which separation is voluntary, in which case there is no need to provide an explanation. In some cases, however, as already mentioned, divorce is compulsory27. The get (divorce deed) is writ-ten in Aramaic, since this was the language spoken in the Second Temple period. The attitude towards divorce was remarkably different in ancient times, when the husband was free to divorce his wife if he wished to, while there was almost no possibility for a wife to obtain divorce. Biblical law did not consider women’s wishes. Only the husband was entitled to decide whether the union should be annulled and if, for some reason, he disliked his wife, he could expel her from the home, while the wife was unable to do the same to him28. In Talmudic times and during the Middle Ages, however, women’s wish-es began to count and though formally a woman could still not divorce her husband (it was always the husband who handed over the get), she was allowed – at least in some circumstances – to force him to undertake this act29. If a man divorced his wife and she wed another man she would be forever unclean for her first husband, who would never be permitted to remarry her.While the condition of women improved in Talmudic times, only the man remained essentially free to write a get, thus turning the woman out of his house. To avoid easy divorce, the rabbis decided to change some rules. They agreed that the payment of the


bride-price should be postponed until the end of the marriage, and granted that sum to the widowed or divorced wife30. A major change took place during the Middle Ages, first and foremost among the Jewish communities of Ashkenazic or German origin, when northern European rabbis enacted two important reforms which changed the nature of divorce dramatically. These new regulations no longer allowed a man to di-vorce his wife without her consent. The Responsa of Rabbi Meir of Rothenburg clearly stated that a man was forbidden to divorce his wife against her will. In the Rhineland, another regulation stressed a different point: turning divorce from a private into a public matter, it forced a man who wanted to divorce his wife to obtain official per-mission first. Essentially, and in contrast with Talmudic law, Ashkenazi policies tried to strengthen family ties and to reduce the divorce rate31. The widely-consulted text known as the Book of the Pious clearly differentiated between the letter of the law and its true spirit: “The law permits divorce even when a wife spoils her husband’s cook-ing, or he finds a woman more pleasing to his eyes – but one day that man will come to Judgment, since permission was only given [to divorce] lest perchance he would sin with the wife of his neighbour had the divorce not been permitted”32. One should notice that, at least in the later Middle Ages, women could obtain divorce when they were in some way discontented with their husbands. In some cases, the reason for di-vorce was simply that they had fallen in love with another man and wanted to marry him. Such was the case of Clemenza – daughter of Vitale of Pisa and wife of David of Montalcino – who transferred her feelings to a penniless Christian count, Bran-caleone of Piandimeleto, and then converted to the Christian faith and struggled in order to have her huge dowry returned33.Though divorce was an accepted procedure within Jewish society, remarriage in the absence of divorce was regarded as a very serious offence. The offspring of such an il-legitimate union were branded as bastards (mamzerim), and could in no way marry any other Jew except another mamzer. The consequences for a woman who remarried with-out having been properly divorced was shown in a Spanish case reported by Avraham Grossmann. The famous sage, R. Yom Tov Ibn Ishbili (13th-14th centuries) had been asked to give his advice about a woman who had married three times, and whose first husband (who abandoned her shortly after the marriage) had been declared dead. With her third husband she finally gave birth to a daughter when, totally unexpectedly, the first husband reappeared. The woman had to divorce both husbands and her only child was branded as a mamzeret34. During the Middle Ages, women – especially those mar-ried to men who travelled and were absent from home for many months, or years – tried to obtain a get before their spouses left. This kind of divorce document was called get al tenai (decree nisi). A man who granted his wife a get al tenai did so in order to preclude personal and legal problems should he be declared missing without proof of death.Within the Jewish world virginity was not considered a virtue in itself, an attitude very different from the Christian one. Medieval Christianity placed a high value on virgin-


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ity. St. Paul considered marriage as an acceptable solution for those who were unable to resist carnal desire (melius est nubere quam uri). St. Jerome assigned a ‘score’ to the vari-ous categories of the faithful and granted 100 points to virgins, 60 to continent widows and only 30 to married women35. Medieval theologians such as Peter Lombard and Thomas Aquinas despised sexual intercourse even within marriage, and urged spouses to avoid it after producing offspring; pleasure was to be avoided as much as possible36. Jewish society, on the other hand, considered marriage as the most suitable condition for an adult individual, male or female. The attitude toward sexuality was positive, even though sexual intercourse was allowed and considered licit only between a married couple. Neither partner could decide to avoid sexual intercourse, and abstinence was forbidden even when the husband and wife agreed on this particular point. Those who decided to remain abstinent were branded as mored or moredet (rebellious)37.Parents were expected to find a suitable partner for their children – both boys and girls – as quickly as possible. As in Muslim and Christian societies, marriage was regarded as a ‘family question’. The union of two individuals was decided by the most promi-nent members of the families involved. Sometimes, and especially in some regions and periods, they agreed to seeing their children married when they were still minors38. Girls usually married at a younger age, and sometimes the age difference between the bride and the bridegroom was considerable. One responsum of a certain R. Hanoch ben Moshe, who lived in Muslim Spain around the beginning of the 11th century, re-ported the case of a 6-year old child married to a 41-year-old man39. For some regions and periods, we are able to provide some data concerning the average age of marriage. Between 1450 and 1550, for example, this age probably remained stable among Italian Jews; men wedded when they were 24 to 25, while women were 20 to 2140. However, one should point out that usually there was an inverse connection between marital age and social status. While the members of well-to-do Jewish families tended to marry at a younger age, those of less wealthy households wedded later41. Notwithstanding the attention paid to the socio-economic condition of the part-ners, the desire to make a successful match was not absent, and the importance of a balanced union was not disregarded. In some socio-economic contexts, Jewish families were forced to find a suitable partner outside of their town and sometimes beyond the region. This condition of ‘geographical exogamy’ compelled one of the partners (in most cases the woman) not only to abandon her own family, but also to try to integrate in a different geographical, linguistic and cultural context. It is in fact interesting to note that in some cases one of the partners could have been sent as a child to live in his/her future in-law’s house in order to facilitate his/her integration within the new family and help to develop at least an affectionate relationship with the future spouse.Within the Jewish world, a second or even a third marriage – as a result of widowhood or divorce – was frequent and not regarded as reprehensible. Especially for the women,


a second marriage was often an opportunity to finally choose a partner in a more au-tonomous way. As has already been observed, divorced or widowed women enjoyed the right to receive a sum of money, which assured them a certain degree of independence. Particularly during the Middle Ages, widowhood often represented for the woman a con-dition of comparative autonomy. While as a young girl she was subjected to her father’s authority – and as a married woman to her husband’s – a widow was essentially her own mistress. If she had received a large dowry, after her husband’s death she was entitled to ad-minister her money and/or properties freely and could decide whether to marry again or not. Many late medieval contracts, especially those drawn up in southern Europe, clearly show how dreaded a new marriage was. In such circumstances, the family of the deceased had to return the dowry immediately, although if the woman decided not to marry again very often she agreed to have her dowry used for the benefit of her late husband’s family business (for running a bank, in trading companies, etc.). Moreover, only in a few cases did the children follow their mother to her new husband’s house. For this reason, in many Jewish wills, we find a series of dispositions intended to offer the wife the best possible living conditions if she did not marry again. If she decided casto et honeste vivendo [living in a chaste and honest way] to stay and live in her late husband’s house, taking care of his children and other relatives, she was very often appointed their guardian (not always by herself ) and was allowed to enjoy the usufruct of her late husband’s possessions.The social conditions of the bride and bridegroom played an important role during the Middle Ages, when Jewish society tended to imitate – at least in some respects – the behaviour of the majority society. Being a member of a religious minority did not in any way eliminate the importance of social background and the relevance of socio-eco-nomic distinctions, especially when matrimony was involved. As a consequence, exactly as in the Christian and Muslim worlds, families tried to wed their members with others from similar social and economic standing. Linking two wealthy families through mar-riage was an important form of investment; it could provide the means of consolidating mutual fortunes. The great abundance of notarial records available for Italy and the Ibe-rian Peninsula and for southern France (especially Provence) provides us with abundant information on dowry and marriage contracts, which clearly show how the wealthier and more esteemed families tended rigorously to marry among themselves. In northern and central Italy, where bankers constituted the Jewish upper class, marriage was almost always socially endogamous. The small size of most of Jewish settlements (which, with a few exceptions, comprised the members of one or two households) forced parents to look for suitable partners elsewhere. There was also a positive aspect to this, in that it permitted forming alliances with other families, and thus enlarged the network of fam-ily relations. A good example of a family able to develop a broad network of solidarity through marriage was that of the “da Volterra family”42.Naturally, marriages between unequal partners were also possible in specific circum-stances. The example of a banker, Emanuele, in the town of S. Angelo in Vado (Duchy


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of Urbino) shows as much. He chose as a wife for his only son a woman who belonged to a decidedly lower-class family43. The bride, Consola, was the daughter of a dyer and brought as a dowry the small sum of 33 gold ducats44. The match – taking into consid-eration the bride’s father’s profession and the amount of the dowry – did not appear particularly desirable in itself or for extending the business network, but Emanuele’s behaviour is more understandable if we take into account both his last will (very gener-ous toward his daughter-in-law) and some notarial deeds drawn up immediately before or shortly after his death. His only living son had been placed under guardianship in the month of August 1428. The young man was actually demens et mentecaptus and (thus in the document) sanum non habebat intellectum nec animi iudicium; in such a circumstance, his avunculus, Aliuccio, son of the late master Musetto of Rimini, had to come in person to S. Angelo in Vado, in order to look after the family interests45. It is clear that in this particular case of mental disability marriage with a woman belonging to a family of low social rank was probably unavoidable. It appears very unlikely that a family of the same social economic rank would have agreed to have a daughter married to such a problematic individual, a lunatic with serious health problems, while a poorer and socially unequal wife was evidently willing to accept taking care of the deranged husband, since she had the prospect of inheriting a large sum of money after his death. In any case, one should not forget that, according to one general rule, when a man married a woman, the latter “ascended with him and did not descend with him”. Therefore, the husband was supposed to treat a wife from a lower social level as if she were of his own so-cial class. In cases where a woman of a higher social class married a man of lower status, she enjoyed the same standard of living as before, unless she explicitly agreed to reduce it46.

DEVELOPMENT OF MARRIAGE LAW IN THE WESTERN CHURCH

The interpretation of marriage in mediaeval western theology (which provides the ideological underpinnings of marriage legislation in all Western countries), differed profoundly from other religions in its insistence that marriage was not only a social, secular reality, but also a symbolic recreation of God’s relationship with His church. For mediaeval western Christianity marriage was a reflection of Christ’s union with the Church, and this interpretation provided the ideological foundations for marriage as exclusive, life-long, and indissoluble47. Although this interpretation of marriage was an integral part of Christianity from the beginning, the Church only decisively took on marriage law during a relatively short period in the 12th and 13th centuries. Two popes in particular, Alexander III (1159-1181) and Innocent III (1198-1216), provided clas-sic definitions of the institution of marriage in the west48. This unique interpretation also meant that marriage fell under two jurisdictions: the spiritual side, that is those aspects of married life that affected a Christian soul’s chances of salvation, became the responsibility of the mediaeval church courts; but the secular aspects of the institution, for example, regulating the ownership of property, the transfer of lands between the


families of spouses or the enforcement of property agreements made as part of marriage negotiations, became the responsibility of secular courts. Western canon law developed out of several distinct sets of texts, which eventually formed a hierarchy of authorities. Carrying the greatest weight were the very few occa-sions when Christ spoke of marriage. His relative silence was taken to indicate that he agreed with Jewish adherence to the teachings of the Old Testament on the subject. But in his ministry, which was both innovative and contradictory, he differed from Jewish tradition in several crucial aspects. On the one hand, he emphasised the importance of love in marriage and made the institution’s exclusive character explicit, while on the other hand, he seemed hostile to the institution of marriage itself49. Later mediaeval Christian writers were fond of emphasising the sanctity of marriage and argued that Christ had bestowed his special grace on the institution by beginning his ministry at the wedding in Cana50. Indeed, this text became a standard part of the liturgical year51. It also became a common topos in mediaeval sermons that God had created marriage in Paradise and had thus added his blessing to the institution.Although Christ allowed divorce, he limited its availability to those situations where there was manifest adultery and even then he appeared unwilling to allow the partners to re-marry52. In his teaching Christ thus differed in essence from traditional Jewish law, which held that adultery should be punished by death. For Christ, the adulterers had displayed a moral failing, not criminal behaviour, and he used the example of the repentant prostitute as a metaphor for all repentant sinners who were welcomed into Heaven ahead of those who merely observed the outward rules for proper behaviour53. In a few cases, particularly according to the Gospel of Luke, Christ seemed to display an ambivalent attitude towards sexuality. For example, in the parable of the invitation to the nuptial banquet, Christ mentions marriage as one of the unacceptable excuses for not coming to the marriage feast, and later in the same chapter He appears to argue that no married person can truly follow Him54.Although the letters of St Paul actually predate the Gospels, they carried less (though still considerable) authority. His writings are much more concerned with sexual matters than are the Gospels, and, like the authors of the latter, he also had an ambivalent attitude to sexuality and marriage. In his profound unease with marriage, he continued the break with older Jewish law that he had found in Christ’s teaching. In the main, St Paul distin-guished between four types of sexual sinners: prostitutes, “the soft ones” (those who use sex for pleasure), homosexual men and, most important for our purposes, those who had sex outside of marriage55. Although St Paul reluctantly endorsed marriage, he saw it as a so-lution of lesser worth. In his view the best behaviour for a Christian was not to have sex at all: “but if they cannot contain, let them marry, for it is better to marry than to burn”56.Despite his preference for sexual continence, St Paul devoted much attention to the institution of marriage. Continuing the Christian break with Jewish tradition, he ad-vocated virginity as the ideal state, but acknowledged that marriage provided a legiti-


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mate outlet for sexual activity. He also emphasised the symbolic content of the union between man and woman as a metaphor for the relationship between Christ and his Church. For the latter reason he became a fierce critic of divorce, though he bowed to tradition and allowed it under certain, narrowly defined, circumstances. He also en-joined mixed couples to remain together, because it was always possible that the Chris-tian spouse might convert the unbeliever through example. But he strictly forbade the remarriage of divorced partners57. His strongly monogamous philosophy even went so far as to enjoin widows and widowers not to remarry, an idea in stark contrast to old Jewish law, which he developed from the story of Christ’s encounter with the woman at the well in Samaria58.The four hundred years that followed were characterised by a series of individual writ-ings and councils that were intended to settle doctrinal questions and to establish the dogma of the Church. Some writers, such as Origen (AD 185-ca. 253), St John Chrys-ostom (ca. 347-407) or the anonymous author of the Gospel according to the Egyptians, were influenced by Gnosticism, which argued that Adam and Eve had been without sexual temptation in the Garden of Eden59. With the Fall, sexual temptation was intro-duced into the world and as long as there was sexual activity there would also be death60. A number of these writers proposed radical solutions. For example, Origen’s biogra-pher, Eusebius of Caesarea, claimed that Origen castrated himself in a literal attempt to follow these words of Christ: “For there are some eunuchs, which were so born from their mother’s womb: and there are some eunuchs, which were made eunuchs of men, and there be eunuchs which have made themselves eunuchs for the kingdom of heaven’s sake. He that is able to receive it, let him receive it”61. Origen was strongly misogynist: “There are some women, though not all of them, as we have noted, who are indiscrimi-nate slaves to lust, like animals they rut without discretion”62. Tertullian was also explicit in his denunciation of women. He wrote a treatise to his wife exhorting her to live a celi-bate life and in another context he argued that intercourse drove out the Holy Spirit and deprived men of the benefit of divine counsel63. However, Tertullian and Origen were in a minority. The mainstream among Christian writers in the 2nd and 3rd centuries accepted the place of marriage in a Christian anthropology of salvation64. Clement of Alexandria (ca. 150-200 AD), for example, condemned those who spoke against mar-riage because they spoke against the teaching of the Gospels, while Ignatius of Antioch (d. 107?) recommended the church’s direct involvement in the ritual of marriage65. During the reign of emperor Constantine (311-337) the Christian Church was increas-ingly tolerated, and by the time of his death it had become the majority religion in the Roman Empire and an integral part of its governmental structures. This transition from persecuted minority to dominant majority caused a major shift in the theological dis-cussions of the Church and in its internal structures. Though most of the administra-tive changes were quickly put in place, the theological discussions continued until well after the fall of the Roman Empire itself. The two most important Christian writers on


the subject of marriage and sexuality were St Jerome (ca. 347-420) and St Augustine of Hippo (354-419). Both took leading roles in the 4th-century Church’s condemnation of heretical sects, in particular the followers of Pelagius, Jovinian and Mani, but Jerome ex-hibited a more radical and consistent condemnation of sexuality. In his polemic against the Jovinians, Jerome maintained that sex and salvation were polar opposites, and he came dangerously close to condemning marriage outright. In his treatise, Adversus Jovin-ianum, which continued to be read and quoted both in theological and secular literature throughout the Middle Ages, he argued that Christians should avoid sexual congress whenever possible and that not even marriage removed the filth and evil of sexual activ-ity66. His extreme position was influenced by the followers of Jovinian (condemned as a heretic in 390, d. 405), who claimed that all moral failures were equally bad and argued that the ascetic life (which Jerome, among others, practised) did not have any particular benefit in leading Christians to salvation. For this reason the Jovinians drew no distinc-tion between celibate monks and those who enjoyed sexual intercourse67.Possibly the most influential writer on marriage and sexuality in this period was Augustine of Hippo. Like most of his contemporaries, Augustine was a passionate man and a passion-ate debater. In his writings he reacted to events and his attitudes to marriage and sexuality varied with the circumstances and showed a marked duality. On the one hand, he saw mar-ital sex as an integral and important part of Christian life, yet he exalted and praised the status of virginity beyond the status of marriage. His writings responded to those individu-als or sects whose views he did not share, and he accepted neither discussion nor contradic-tion68. His passionate nature often made him argue without regard to consistency, and he frequently contradicted himself. This was particularly clear in his treatment of marriage and sexuality. In Contra Julianum he found sexual desire to be a most foul and unclean human wickedness, a manifestation of man’s disobedience to God. Sex overwhelmed the senses and disarmed the will; the sudden and temporary loss of self-control that is implicit in any sexual act made man irrational and demonstrated his sinful nature69. Indeed, in this treatise Augustine digressed from his main argument to relate a scandalous story which illustrated his point: “As I was holding this work in my hands it was announced to us that a man of eighty-four years of age, who had lived religiously with a pious wife for close to twenty-five years, has bought himself a music girl for his pleasure”70. And yet in his De bono conjugali (“concerning the conjugal good”, often translated as “On the Good of Marriage”) he praised marriage, arguing that it was a desirable state that brought three major benefits for a couple. These three “goods of marriage” were a long undivided life together, offspring and “the Sacrament”. The latter concept almost elevated marriage (and marital sex) to a religious duty. P.L. Reynolds has summarised Augustine’s position like this:

Augustine believes [...] that God made marriage indissoluble so that it might symbolise the union between Christ and the Church [...] the little sacrament (i.e. marriage bond) is a sacrament of the great sacrament (i.e. of the mystery of the inseparable union between Christ and the Church)71.


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The marital status of clergy caused much controversy in early Christianity. Where the sources allow us to investigate this issue, they suggest that the clergy were almost in-variably married, at least until the time of the 4th-century Council of Elvira72. Together with the Synod of Arles and the Synod of Ancyra, this council represented one of the first significant set of rules agreed to by the Church. It was attended by 19 bishops and 26 presbyters, mostly from the Roman province of Hispania Baetica (southern Spain). Deacons and laymen were also present, and almost half their decisions concerned sexu-ality and marriage. The council drew a sharp distinction between sexual sins committed by clergy and laity73. It allowed fornicating bishops, priests and deacons to receive com-munion only on their death-beds, required the higher clergy to divorce their wives and forbade female servants to live with clergy (unless they were close blood-relatives). As a final blow, the council also required clergy to desist from marital intercourse74. There is little evidence that the Council of Elvira had any immediate practical effect, but the demand for clerical celibacy was to be a powerful rallying cry for the so-called Grego-rian Reform movement in later centuries. Rather than immediate reform, the Council of Elvira seems to have been concerned with providing a programmatic statement of Christian sexual anthropology. Christian society was to be distinguished by a clerical elite, whose sexual abstinence was to mark them as morally stronger than their weaker flock. The canons of the Council thus rejected sex as incompatible with the highest Christian standards, but implicitly they also acknowledged the central role sex played for the majority of Christians75. Despite the development of a consistent theology of marriage in the writings of Jerome and Augustine, this did not develop into social reality until the rapid development and deployment of western canon law that was a consequence of the 11th-century Grego-rian Reform movement. Instead, the most important change in western marriage prac-tice in this period was a homogenisation of family structures. In the Roman Empire, with its slave-based economy that extended into the lands of what the Romans called “barbarians”, one could find a wide typology of family units. The households of rich Roman slave-owners could include hundreds of persons, among whom only a minority had the freedom to contract legal marriage. The households of a few powerful barbar-ian magnates could similarly have a high concentration of women76. Two developments worked together to even out this differentiation: the change from slavery to serfdom and the spread of the egalitarian ideology of Christ’s teaching as expounded in St Paul’s letters to the Galatians and to the Colossians77.In contrast to the generally successful drive to change European household patterns, and to enforce the right of every Christian to marry legally, local Church councils con-tinued to accept divorce, despite the teachings concerning the indissolubility of mar-riage developed by Augustine and Jerome. The Council of Angers (453) permitted men to remarry, while the Council of Vannes (465) allowed divorce for both men and wom-en in cases of proven adultery, as did the Council of Agde (506)78. In the 7th century,


the archbishop of Canterbury, Theodore of Tarsus, limited divorce to five situations: adultery, the desire to enter religious orders, desertion for five years, the enslavement of one spouse, or the wife’s abduction and captivity79. The contemporary secular law codes of Æthelbert (ca. 602) provided detailed rules in the case of a wife who wished to divorce her husband for unspecified reasons, for example, she was entitled to half the marital property and all the children80. Comparable rules were in place in the Ice-landic law-code Grágás as late as the 12th century, with the important difference that children were to follow the parent who came from the wealthier family81. Overall, the Church and lay society were in a period of transition and evidence regarding attitudes is confused. The Church councils and secular laws mentioned above allowed access to divorce, and yet several popes (even Charlemagne himself ) tried to put a stop to the practice. For example, at the Council of Friuli, which Charlemagne convened in the month of December, 800 AD, it was decided that adultery was not a permissible cause for divorce. This ruling was repeated in 802 and extended to cover the entire Caroling-ian Empire82. However, Pope Zachary wrote to Pippin the Short to warn him of the consequences of allowing divorce, while Zachary’s successor, Stephen II, allowed sepa-ration, but not divorce, in cases where one spouse contracted leprosy83.The indissolubility of marriage became a serious political issue in 857, when the Frank-ish king, Lothar II, tried to divorce his queen, Theutberga. Though he could have con-tinued the tradition of simply repudiating his wife, Lothar chose to accuse her of incest with her brother, thus providing a veneer of legality to his attempted divorce. Bishop Hincmar of Reims accepted that the king had a right to divorce, if the accusations were proven84. However, Pope Nicholas I (858-867) staunchly supported Theutberga, and though his motives for doing so may be questioned, his intervention in the case and his insistence that proper legal rules be followed, raised the profile of the idea of indissolu-ble marriage in western canon law85. Another important – but more indirect – influence was the mixed collection of real and forged papal decretals produced in Metz around the 850s, which are now known as the False Decretals or the Pseudo-Isidorean Forgeries86. The collection is famous pri-marily because it contains one of the most contentious and famous of all mediaeval forgeries, the so-called Donation of Constantine, in which the emperor Constantine granted Pope Sylvester I secular authority over all western Europe. Immense labour and erudition went into creating this corpus of texts, and the collection contains a wide range of genuine sources. The persuasiveness of the texts, the talent with which the forgers mixed genuine and false materials, and their linguistic and stylistic flair meant that the compilation was accepted as authoritative by a large proportion of later com-pilers of law until Lorenzo Valla finally proved the Donation of Constantine to be false in 144087. The forgeries were compiled in order to strengthen the position of ordinary bishops against their metropolitan88. In the course of arguing this case the forgers fur-ther developed the idea of the bishop’s marriage to his church. Their argument was sim-


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ple, but effective: just as marriage between humans was indissoluble, the relationship of the bishop to his see was indissoluble, because he was married to his church. Hence a metropolitan bishop did not have the power to dissolve the union between an ordinary bishop and his diocese. The immense popularity of the collection (some 87 complete manuscripts survive) meant that it was frequently mined for extracts and examples by later writers. Consequently the idea of the inviolability of marriage developed into one of the central ideas of the marriage law of the mediaeval western Church89.The Latin west saw profound changes in social, economic and political life from the 10th to the 12th centuries. Demographic and social changes necessitated a wholesale re-evaluation of the church’s attitudes; to politics in general, to the origins of clerical superiority against the laity, and, as a concomitant, to marriage. The increased urbani-sation of Europe changed the demographic make-up of society. The end of the 13th century saw a much larger proportion of freemen, mainly concentrated in cities, and the increased social control inherent in urban living meant that the Church became increasingly aware of ‘public scandal’ as a social problem. But the changes of the High Middle Ages were not caused just by changes in the physical world. The initially hostile interaction between Islam and the West, signalled by the call for a Crusade in 1095 and the consequent fall of Jerusalem to the crusaders, soon made way for a second phase, which was characterised by an exchange of theological, philosophical and legal ideas. Two developments – the rediscovery of Aristotelian logic and the dialectical method, and the almost miraculous recovery of a single manuscript of the Corpus iuris civilis, compiled under the 6th-century eastern emperor Justinian, which had been unused and unknown in the West for almost six centuries – provided western canon law with a unique consistency and a new vibrancy which allowed the development of a law based on both religious and ‘scientific’ principles90. The manuscript of the Corpus iuris civilis was shared among a small, but hugely influential, group of legal scholars in Bologna, and their work brought about a sea-change in European jurisprudence91. Of crucial importance for this new vigour were two other developments that were ini-tially unrelated to marriage law: the reform of the Church, begun by Pope Leo IX (1048-1054), which kick-started the reforms that scholars have since (mis)named ‘Gregorian’; and the dispute over the appointment of bishops known as “The Investiture Struggle”. Although supported by emperor Henry III, Leo insisted on an election “by the clergy and the people of Rome”, and with his popular mandate quickly set about reforming the Church, whose prestige had been severely damaged by the excesses of his predecessors, in particular pope Benedict IX (r. 1032-1044, April-May 1045 and November 1047-July 1048)92. Leo IX was an ardent reformer and, in contrast to his predecessors, he presided over synods not only in Italy but also in Cologne, Aachen, Reims and Mainz93. His reforms were aimed at eradicating the two main evils of the Church as he saw them: the buying and selling of ecclesiastical offices and married clergy. In this he was success-ful, not least because of the support of a group of talented lawyers and theologians, such


as Humbertus de Silva Candida, Hildebrand (later Pope Gregory VII) and Peter Dam-ian, who set about reforming European society “with an enthusiasm, audacity and zeal which even in the long history of the papacy had few, if any, parallels”94.Though the substance of the investiture conflict had little to do with marriage (except perhaps the symbolic association between secular marriage and the office of the Bishop as it had been expounded in the Pseudo-Isidorean forgeries), both the empire and the papacy chose to argue their respective cases through legal means. Each side saw the struggle as a matter of law and was absolutely convinced of the legal superiority of its position. The proto-university of Bologna, with its high concentration of legal scholars, came to be of crucial importance in this, as it was sufficiently removed from the papacy to have the confidence of both sides of the conflict and, as a consequence, it could attract legal scholars sympathetic both to the papal and the imperial cause. The 11th century, therefore, saw the publication of a number of influential canon law collections intended to cover the entire gamut of human experience. The earliest of these pre-dated the reforms of Leo IX and were contained in the so-called decretum, composed by Bur-chard of Worms (965?-1025), which appeared around 1010. The work includes 1,785 canons, arranged in 20 books, drawing on a vast array of primary material dealing with a wide range of subjects: the clergy, the sacraments, fasting, perjury, magic and secular authority, to mention but a few. Burchard’s work was so large that only a few dioceses could afford to have a complete copy of the decretum, and for this reason the 19th book took on a separate existence and became known as the Corrector sive Medicus. Though he believed very strongly in the indissolubility of marriage, Burchard was not a hard-line reformer, and felt that there were occasions when a divorce could be granted, for example, when a husband had committed incest with his step-daughter95. An edition of Burchard’s Decretum was compiled in Rome around 1060, and this was followed sometime before 1076 by the Collection in 74 Titles, a collection by Anselm of Lucca, a collection by Cardinal Deusdedit, compiled between 1083 and 1086, and Bonizio de Sutri’s Liber de vita christiana (ca. 1090)96. Outstanding amongst these later publica-tions, though, were the enormously comprehensive works attributed to Ivo of Chartres (ca. 1040-1115), the Decretum, the Tripartita, and the Panormia.Ivo was a prolific writer of letters and sermons and, in contrast to early writers such as Augustine and Jerome, he tried to reconcile conflicting authorities with his collections of canon law. His works thus continued the scholarly tone of Burchard of Worms. The works were all produced in the period 1093-95 and must have required the help of col-laborators. Ivo’s Decretum is an enormous work, including almost 4,000 canons divided into 17 parts. Much of the material is theological in character and gives the impression of being put together in a hurry, with little attention to organisation. Ivo’s main source was Burchard’s Decretum, and he included the majority of Burchard’s nearly 1,800 can-ons. It should not surprise anyone that Ivo’s Tripartita consisted of three parts: Part I presented a mixture of 655 authentic and forged decretals from Pope Clement I (88-


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97 AD) to Pope Urban II (1088-1099); part II was a collection of 789 conciliar can-ons and patristic texts; and part III, was an abbreviated version of Ivo’s Decretum. The Tripartita is as disorganised as the Decretum and, like the Decretum, it does not seem to have been widely used97. If we had only these two works to go by, Ivo would have enjoyed a much more modest place in the ranks of canonists. His reputation, however, rests on his Panormia, which comprises roughly 1000 canons divided into 8 books. Nearly all of the material was taken from Ivo’s Decretum (920 canons out of 1038). For the remaining canons he relied on the Collection in 74 Titles, his own parts I and II of the Tripartita, and on an unknown collection similar to one of the lesser-known Grego-rian collections, which survives in one manuscript copy now in the British Library, the Collectio Britannica98.These books of ecclesiastical reform reflected the concerns and prejudices of their authors, condemning nearly all pleasures as sinful. They were hostile to any sexual activity, except that which took place within marriage; they allowed only for sexual activity within marriage and for the express and conscious intention of hav-ing children, were intent on limiting married partners access to sex and wanted to im-pose severe punishments on extramarital sex99. They also argued vehemently in favour of transferring jurisdiction over marriage to the Church and its legal institutions, and thus to replace local marriage customs with a uniform European system of law.The western reformers met little resistance to their ideas about including sexual trans-gressions under the law of the Church. Indeed, it seems that the majority of the la-ity embraced the reforms quickly, perhaps because ancient and localised jurisprudence no longer met its purpose. The reformers achieved great success very quickly, and al-though there was no scarcity of conflict between royals and nobles and the Church, the latter emerged victorious in most of these cases. It is arguable that their success was due to support from the lower ranks of society, whose conflicts did not register in the works of these reformers. The success of the reformers was in no small measure due to the systematisation of the laws of the Church that was performed by a shadowy figure known as Gratian of Bologna, whose identity is currently the subject of much specula-tion. Within a generation of the publication of the Concordia discordantium canonum (also known as Decretum Gratiani or simply The Decretum) it had become associated with the name Gratian, and a body of biographical material was built up by canonists working in Bologna100. Their main contention was that the Decretum was the work of a single man teaching in Bologna sometime in the early 12th century, but following the publication of an article by Anders Winroth in 1997, and his book on the making of the Decretum in the same year, we can no longer be so sure101. All we can currently say is that a text appeared around 1140 which combined the then recently (re)introduced dialectical method with a systematic exposition of the law of the Church, as inspired by the principles of Roman law. The text was assembled in such a way as to provide an elegant, convenient and persuasive exposition of the law of the Church. In the words of James Brundage:


Gratian’s Concordia revolutionised the study of canon law and gave it an intellectual coher-ence that it had previously lacked. Earlier collections had produced a cacophony of dis-sonant opinions, from which lawyers, judges, and pastors could pick whatever suited their purposes, so long as they were content to ignore the rest. Gratian’s book was something new and with its appearance we can begin to speak of canon law as a juristic science102.

The Decretum was unique in that it did not look like any of the collections that had preceded it. However, the compiler(s) of ‘Gratian’ was in no way an innovator when it came to finding his sources, and drew upon the existing collections available to him. His most important texts were the collections of Ivo of Chartres, especially the De-cretum and Panormia. He also used other collections, such as the works of Anselm of Lucca. The Decretum Gratiani was divided into three parts: part one, the Distinctiones, dealt with the foundations, types and sources of law; part two consisted of 36 Causae, each outlining a legal problem, followed by a discussion of the individual parts of the problem broken down into constituent parts and each individual part examined for and against in accordance with the principles of Aristotelian logic103; and part three dealt with liturgical matters, the ecclesiastical calendar and sacramental law. This last section was also divided into Distinctiones, but lacked any analytical text by ‘Gratian’. Causae 27-36 is sometimes called the Tractatus de matrimonio because, apart from a long digression on penance in causa 33, it mainly deals with aspects of marriage.‘Gratian’s’ treatment of marriage is contradictory and unwieldy, which may have been caused by the editorial process. Historians of canon law are still trying to sort out this problem after the momentous discovery of the two Gratians by Winroth104. However, this chapter is concerned with the reception of the teaching of the Church, and for that reason it is acceptable to study Gratian’s decretum in the form in which it was re-ceived for 800 years, rather than in the light of what we now know about its composi-tion105. The decretum was a text intended for university teaching and as such it paid little attention to the practicalities of its argument. Nowhere is that more noticable than in its treatment of marriage, which is unwieldy and impractical. The decretum ar-gued that marriage came into being as a two-stage process, consisting in a matrimo-nium initiatum (an exchange of vows) and a matrimonium perfectum, consisting of the commixtio sexuum, most commonly translated as “sexual consummation”106. Both steps were necessary to create a binding marriage107. Such distinctions may have been useful for the classroom, but in a courtroom they were impossible to impose and potentially they created innumerable problems regarding inheritance. It was, therefore, left up to later popes to clarify the law, particularly Alexander III (1159-1181) and Innocent III (1198-1216). In numerous decisions made during the pontificates of these two men, the Church finally arrived at a definition of the exact time when a marriage became legally binding. When parties who were not previously married or related within care-fully defined degrees of consanguinity or affinity made a vow to marry using words expressing present consent (“I marry you” rather than “I will marry you”) their marriage


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was created. Neither the presence of a priest, nor the presence of witnesses, was neces-sary. Although marriages might have been ‘illicit’, or not conducted according to the rules of the Church, the marriage was still legal and therefore binding. The Church did recommend and command that the parties should publicly announce their intention to marry and that the marriage should be conducted publicly, but the absence of such outward signs did not invalidate the marriage itself. These new papal decisions were initially published in private collections (known as the Quinque Compilationes Antiq-uae) from around 1190, although these compilations were not authorised by the popes whose decisions they contained. Publishing an authoritative collection of the decisions was the last step towards the consolidation of the legal foundations of marriage in the medieval western church. This publication took place in the Decretals of Gregory IX, also known as the Liber Extra, in 1234. The Liber Extra was compiled by the Spanish canonist, Raymond de Peñafort. Before him no single, definitive collection had existed that covered all of the legislation is-sued since Gratian’s Decretum. Instead, canonists had to use the quinque compilationes antiquae, and, in practice, they often consulted other collections as well. By 1230, the reigning pope, Gregory IX (a nephew of Innocent III who was also trained in law) de-cided to ask his chaplain, Raymond de Peñafort, to draw up a collection of canon law covering the period from the Decretum to Gregory’s own pontificate. This Raymond did, and Gregory IX approved the collection in his Bull of promulgation, Rex pacificus (dated 5 September 1234), and by sending the text to Bologna (and possibly also to Paris). Gregory’s Bull added one more element in that he ordered that only his collec-tion should be used and studied, and with that marriage law in the medieval western church found its final form. It was to remain in force for the next three centuries, and was only superseded by the decisions of the Council of Trent (1545-1563).

THE DEVELOPMENT OF MARRIAGE LAW IN ISLAM

The following section deals with some of the features of family and marriage in fıkıh (Is-lamic jurisprudence), and therefore does not claim to give a full account of the matter across the entire spectrum of Islamic society108. After opening with some information on the development of fıkıh, it gives some sample verses from the Quran which show the important place conceded the family in the founding text of Islam. The study then briefly examines what the works of Islamic jurists have to say about family and marriage, and closes by looking at the development of family law in the Ottoman Empire, while offering a few observations on the present situation in Turkey. In the time of the Prophet Muhammed and his followers, the words “re’y” [opinion] and “kaza” [jurisdiction] were more widely used than fıkıh. As knowledge expanded and a methodology developed, jurisprudence emerged as a science and people knowledgable in it and working on it began to be referred to as “fakih” [experts in canon law of Islam]


and “alim” [learned men]. Some scholars claim that the first use of the word fıkıh can be traced to the time of Ebu Hanife (the founder of Hanefi mezheb). This broad un-derstanding of fıkıh continued from the 5th until the 11th century. In the meantime, notions such as faith and conviction (belief ) began to be grouped under separate head-ings, including “the largest jurisdiction”, “the science of unification”, and “the method of religion in science”. Moreover, the good or bad behavior of Muslims, and their private life and social relations became the subject of the science of ethics and Sufism. Hence the association between fıkıh and the subjects of catechism and knowledge of Islamic law109. Another issue of relevance to studying Islamic law regarding marriage is that of codification. Despite early attempts at codification by Abbasid Caliph Mansur (on the suggestion of the famous scholar, İbn-i Mukaffa), and later by Caliph Harun Reşid, the first official code was not promulgated until the Mecelle reform undertaken by the Ottoman Empire in the later 19th century110. Still, the absence of codification, and con-sequently the lack of official sources for regulating daily activities, did not necessarily cause problems for judges. On the contrary, they could look to many sources for both Islamic and secular law, including books of jurisprudence, fetva journals, kanunnames and court records, and previous judicial decisions111. Islam does not look on the family as an exclusively religious institution, as in Ro-man Catholicism. It nevertheless regards it as important. Thus various verses of the Quran, as well as the sayings of the Prophet Muhammad, encourage establishing a family as a place of refuge, a means of producing children, and an institution which discouraged the faithful from bad behavior. Consider, for example, the following ex-tracts from the Quran:

And among His Signs is this, that He created for you mates from among yourselves, that ye may dwell in tranquility with them, and He has put love and mercy between your (hearts) verily in that are Signs for those who reflect112;

and Allah has made for you mates of your own nature, and made for you, out of them, sons and daughters and grandchildren, and provided for you sustenance of the best, will they then believe in vain things, and be grateful for Allah’s favors113;

Marry those among you who are single, and the virtuous ones among your slaves, male or female: if they are in poverty, Allah will give them means out of His grace: for Allah is Am-ple-giving, and He knoweth all things114;

and the saying of the Prophet Muhammad Marriage is My Sunnah115; whoever does not practise My Sunnah is not from Me. Get mar-ried since I am proud of having abundant followers compared to the other religious com-munities116.

Islamic jurists go on to comment that, depending on the circumstances, marriage can be regarded variously as an obligation or a sunna, which is at times merely permitted, and at other times condemned or even forbidden117.


Families

Islamic family structure, like that of many societies, is patriarchal, although its specific form differs from that of Jewish, Roman and older Arab traditions. The authority of the head of the family over its other members is quite limited compared to older structures. The father is the head of the family, but his right of guardianship and authority is lim-ited. Islam’s approach to woman also differs from that of other religions. For example, the Quran says that Satan, not Eve, was the cause of Adam’s expulsion from Paradise. Thus, in Islam, women significantly do not bear the burden of original sin.

Then did Satan make them slip from the (Garden), and get them out of the state (of felicity) in which they had been. And We said: “Get ye down, all (ye people), with enmity between yourselves. On earth will be your dwelling place and means of livelihood for a time”118.

The legal structure of the family, and the rights and obligations which derive from these relations, are discussed in the section of Islamic law known as münâkehâ [contracting marriages]. Classical law books contain headings such as ibâdât [worship], muâmelât [behaviour] and ukûbât [retribution], and in general, contracting marriage appears in the former sections, because family law is seen as closely related to worship and behav-iour. Contracting marriage [münâkehât] can be divided into two sections: marriage and divorce. The former discusses the marital contract, its conditions, possible obsta-cles, the mehir [dowry] and nafaka [subsistence allowance], and the care and education of children. The latter section deals with the kinds of divorce, their results, along with (once again) iddet and nafaka119. Islamic Law stipulates certain conditions and principles required for a valid marriage agreement. These include the consent of both parties, after which the marriage con-tract would be concluded and the marriage became valid120. It divides people into three groups in terms of marriage competence, that is, the ability of a person to get mar-ried without needing the permission of anyone else. Those who are fully competent must be independent and display legal discretion. Anybody without these qualities can marry only with the permission of others. According to the Hanefid school, fully com-petent men and women can marry without the consent of their protectors or guardians. The other mezheps (schools of Islam), however, shared the idea that women, even if they were fully competent, could marry only with the consent of their protectors. The second group consists of people who lacked certain qualities. These included minors, slaves, and the mentally impaired. According to the Hanefids, these individuals could enter into marriage agreements, the latter required the permission of their protectors. Thus, they gained their “marriage competence” indirectly. The third group consists of people who have no power to conclude a marriage contract. (Basically these are people who suffer from mental illness). In the case of the Ottoman Empire up until 1917, ju-dicial decisions concerning marriage in Turkish countries followed the teachings of the Hanefid School121. The 1917 Turkish Family Law [Hukuk-ı Aile Kararnamesi] mod-ernized somewhat the Hanefid School, and introduced ideas and traditions from other mezheps. This legislation introduced a new rule that to have competence for marriage,


that is, to marry without the permission of others, boys should be 18 and girls should be 17 years old122. The same law declared the minimum age of marriage for boys as 12 and for girls 9. It moreover ruled that guardians could not marry their wards under these ages123.In terms of technicalities, it was not mandatory to hold the marriage ceremony before a religious person. However, from early on the importance Islamic societies accorded to marriage gave rise to a tradition by which marriage ceremonies were performed in the presence of the older members of the two families and before important ulema [theo-logical scholars], who were respected in society. The obvious benefits of this practice included publicizing the new union through the identification of the marrying parties. In the Ottoman Empire, the government controlled marriage. The marriage agreement was concluded before a judge and was registered in the court records, as was stressed in the Hukuk-ı Aile Kararnamesi124. İcab [the declaration of intentions] and kabul [ac-ceptance] were the main acts leading to a valid marriage. The offer and acceptance had to be verbal unless one of the parties was deaf, in which case they could be expressed through some special signs. The two sides could also manifest their declaration of in-tention personally or through representatives125. The declaration of intention had to be unconditional126. The marriage ceremony moreover had to be concluded before com-petent and independent male. Muslim witnesses. According to the Hanefid interpreta-tion, however, one man and two women could also be witnesses. Again according to the Hanefids, if a non-Muslim woman was getting married, non-Muslims could also serve as witnesses127. Additional conditions included prohibiting the use of force or pressure. Obstacles to marriage were divided into two categories; permanent and tem-porary. Permanent obstacles referred to those categories of persons who could in no circumstances marry each other. These included kinsmen by blood or marriage, and wet-nurses and their former charges. So-called temporary obstacles involved women who were already married, certain types of divorcees, and adherents of religions apart from Christianity and Judaism. Islamic law permits Muslim men to marry Christian or Jewish women without their converting to Islam; Muslim women, however, cannot marry either Christians or Jews. The final category of forbidden marriage involves the so-called ‘fifth woman’. While Islamic law allows (under certain conditions) men to marry more than one woman at the same time, the maximum number of wives is four. If a man already has four wives, he cannot officially marry another128.Marriages naturally involved financial obligations, and these have traditionally been looked on as the duties of the husband and the rights of the wife. Islamic law separated the husband’s and wife’s properties. A fully competent woman had complete control over her property. Women were moreover able to inherit, like their husbands; husbands did not have the right to interfere with the property a woman had inherited; and the maintenance of the wife and children had to be met by the husband. Apart from these general conditions, marriage also involved a dowry (mehir) and subsistence allowance


Families

(nafaka). Mehir was either money or property which the husband promised to give to his wife on getting married. It functioned as a sort of insurance given to the woman against the man, in the event of his using the right of talak [divorce] unjustly. That is to say, when marriage ended by means of divorce or with the death of the husband, the me-hir guaranteed the wife’s financial future129. The husband moreover had to meet all the expenditures by which his wife could have a normal, average life. These expenditures consisted of food, clothes, household goods, and an independent house130.In Islamic Law, marriage could be ended in two ways: talak or fesih, that is, abolition or annulment. Talak meant that the marriage ended by agreement from both sides. Fesih meant that the marriage ended because of a deficiency or defect which occurred after the conclusion of the marriage contract. Talak and fesih differed in terms of their nature and results. Fesih ended the marriage automatically. There were, however, different types of talak: talak-ı bain [an irrevocable divorce] and ric’ı talak [retractive divorce]. Talak-ı bain terminated the marriage contract immediately, whereas ric’i talak ended the mar-riage after a period of time within which a woman could not remarry. This period of time was called “iddet”. A woman, on the other hand, needed the consent of her hus-band before she could divorce. Muhalaa was a kind of divorce by which the two sides end the marriage by mutual agreement, though it usually took place on the woman’s initiative131. Tefrik refers to separation and juridical divorce, and contrary to the types of divorce which are mentioned above, in this case the marriage, with all its obligations, continued until the judge’s decision. The judge could only allow it if certain condi-tions obtained. While the Islamic mezheps (schools) differed in their attitudes to this kind of divorce, they acknowledged four major sets of causes. The first was illness and deficiency, further divided into sexual illness, such as impotence or deficiency in having intercourse, and mental diseases and leprosy; another was the absence of livelihood, that is, when the husband was unable to supply his family with the required means of subsistence132. In the Ottoman Empire, until the 16th century a man’s failure to provide a livelihood was not accepted as a valid reason for divorce and this created great prob-lems for women with absent husbands. (The 1917 family law similarly granted women the right to divorce when in need of livelihood)133. Absence was the third grounds for divorce. This involved two situations, each belonging to a different jurisdiction: first, when no one knows whether an absent husband is alive or dead; and when the husband leaves his home and does not return134. Finally, mistreatment and lack of harmony were accepted as reasons for divorce in the Maliki and Hanbeli schools of jurisprudence. And while the Hanefids and the Şafiis rejected them, the Ottoman Family Law of 1917 also endorsed them as grounds for divorce135. A final dimension of Islamic marriage law involved equality of status. Some jurists believe that the standing of the partners should play an important role in marriage. The term “Kefaet” means “equality in social or legal estimation”, and in family law that meant that the husband shared the same religious, economic and social status as that


of his wife’s family. While many jurists accepted this as necessary for harmony in mar-riage, some others, however, like Kerhi and Tahavi, argued that this logic contravened the idea of equality. The Hanefids located this equality in six spheres: in being Muslim, and in lineage, piety, freedom, economic situation, and the possession of skills. How-ever, the schools differed on the need for equality (as opposed to its desirability), and developed further rules regarding its effect on the creation of marriages136.Beginning with the 1839 Tanzimat reform, certain changes were made in Ottoman jurisprudence and family law. One of the most important developments was the prepa-ration and acceptance of Mecelle (Civil Law). Mecelle was prepared by a commission headed by Ahmed Cevdet Pasha from 1869 to 1876. It consisted of 16 books and 1851 articles. However, Family Law was not given a place in Mecelle for several reasons. Among these was the obvious fact that the Ottoman Empire had different religious communities which were organized into millets or nation, each with its own courts, jurisdictions and traditions. Bringing all the millets under the same legislation was an enormous task. Similarly, the reform legislation of 1917 met with opposition from the non-Muslim communities, who objected to going to the same court with members of other religious communities. It also met with criticism from other quarters, especially the Hanefid scholars who had enjoyed the greatest power as legal interpreters since the 16th century137. Hukuk-ı Aile Kararnamesi was the first attempt in the history of Ottoman and Islamic jurisprudence to create a law specifically governing family matters. Later on, many Is-lamic countries turned to it when adopting their own legislation for regulating family life138 Hukuk-ı Aile Kararnamesi was divided into two books, which dealt respectively with marriage and divorce. It offered different rules for Muslims, Christians and Jews, and thus continued the Ottoman tradition of not interfering with the civil life of non-Muslims. It also strove to reconcile the perspectives of different schools of Islamic ju-risprudence139. However, it did not last long. In June 1919 the decree was rescinded and replaced by a temporary Law. Notwithstanding its defects, the decision to abolish the first law ever on families in the Islamic World was an unfortunate one. Present-day Turkish Civil Law was approved by the Turkish Parliament on 22 November 2001, which replaced a previous code from 1926. The new Turkish Civil Law contains four books dealing with personal law, family law, inheritance law, and the law of property.

CONCLUSION

Ancient political theory saw the family as the basic building block of society, and went on to draw parallels between it and broader forms of public authority. Aristotle was among the first political philosophers to theorize the family as a model for the organi-zation of the state; hence his well-known declaration that “seeing then that the state is made up of households, before speaking of the state we must speak of the management


Families

of the household”140. A long line of continuity stretches from these early efforts to to-day’s legal norms known as family law. Seen from this broader perspective, marriage law is part of a larger legal corpus which regulates family relationships in general, including marriage and divorce, the treatment of children, and economic issues. In both past and present, family law was and remains closely connected with the law of property and succession, as well as matters of personal social status. The legacy of classical Greek and especially Roman law left a deep mark on all medieval European marital laws, and especially on their most direct successors, the legal systems of the Christians. Ancient Greek marriage was monogamous, and the oldest known form of contracting marriage was the purchase of the bride from her father or closest male relative, which did not require bridal consent141. At first, no specific civil or reli-gious ceremony was required for the marriage to be acknowledged, only a factual state of cohabitation. Later on, in classical Attic law, an act of betrothal was required prior to marriage itself142. Although the Romans were great practitioners and theorists of law, they left few records of or comments on how their marriage law developed143. Marriage, family, and conse-quently the status of women, experienced great changes in the course of Roman history, but a few crucial features remained fairly constant, and went on to mark succeeding regimes144. The most important among these, and which differed from, say, Jewish or Mesopotamian practices, were monogamy, the absence of a marital contract, and the distinction between two forms of marriage, with or without manus145. The form called conventio in manum – traditionally linked with patricians – inferred that a woman entered under the authority of the new pater familias and became a person alieni iuris, that is, under another person’s authority. As a result, everything she brought into the marriage or acquired in the meantime was considered the property of her husband or his pater familias146. This type of marriage was concluded in one of three ways: a reli-gious ceremony (confarreatio) in the presence of priests and witnesses; the symbolic purchase of the woman (coemptio); and by actual consummation of marital duties, known as usus147. (Note the distinction between religious and civil marriage implied within these ceremonies). The jurisconsult Gaius informs us that the usus form of mar-riage had already been mentioned in the Twelve Tables (Rome’s earliest law code) as an option for women who did not wish to fall under the power of pater familias148. This became the prevalent form of marriage, wherein the wife remained a member of her original family and kept her family rights of inheritance within her family of origin.According to the writer Columella, the traditional ideal held husband and wife to be equal partners with different spheres of interest; as the woman watched over affairs within the household, her husband handled affairs in the outside world149.As noted above, since much of Roman law was concerned with family matters, its legacy weighed heavily on the formation of later European marriage laws. Especially influential


were the patriarchal form of Roman family and authority accorded to the father150. Ro-man law entered the canon laws of both the eastern and western Churches, but there were important differences in the impact and timing of the two receptions. The Roman legal tradition in the west declined during the early part of the Middle Ages, while in the east it was preserved in the Byzantine codification and all the regions where Byzantine law held sway. Aspects of Roman marital law could be traced, for example, as far afield as in Serbian medieval law, where they entered thanks to the translation of Byzantine legislation151.Our comparative analysis has suggested that Jewish, western Christian and Islamic prin-ciples of family organization closely resembled each other in the early stages of their de-velopment, due to their common development within the Near Eastern cultural realm. However, as Christianity expanded within the borders of the Roman Empire in the 4th century AD, this tradition began to interact with the parallel Greek and Roman conception of family and marriage in a new pattern of cultural cross-fertilisation. This turning point, which led to crucial changes in the conception of family and marriage in Europe, was felt throughout the Mediterranean basin152. The result was a new sacra-mental, monogamous, and exogamous form of marriage.Christian teachings were responsible for several key innovations, above all the unprec-edented emphasis on marital affection and companionship, concepts which were de-fined in part through pointed contrast with pagan practices. Nevertheless, the influ-ence of Christianity on the concept of marriage should not be overstated153. For in-stance, monogamy was not a Christian invention; instead, it was inherited from the Greco-Roman world, and Greeks and Romans alike referred to it when distinguishing themselves from barbarians154. Moreover, many pagan marital rites were retained in Christian usage, although they were often modified in the passage. This was clearly seen in early Christian dependence on Roman marriage rituals in the absence of a developed liturgy155. Further mixture occurred when the Christian West rediscovered Aristotelian logic and Roman legislation during its later contact with Islamic culture. The end result was that medieval Europe became a meeting-place of various jurisprudences. Interac-tion between these different laws and social practices had visible consequences; thus, for example, the inclination of European Jews to monogamy derived in part from rela-tions with the surrounding Christian communities.Europe not only brought different legal traditions together; its leading faiths also began to divide into different lines of interpretation and behavior as far as marriage was concerned. Western and Orthodox canon law developed out of several distinct sets of texts, which subsequently formed the basis for Christian views on marriage. Their being interpreted differently by the two Churches was further complicated by schisms and institutional adjustments in both spheres, the most telling example being the Protestant Reformation of the 16h century. The development of Jewish marriage law similarly had as its point of departure different – in this case rabbinical – interpretations of marital rites which had re-ceived relatively scant mention in the Torah. The modern division of Judaism into several


Families

denominations naturally led to the development of different understandings, liturgies and ceremonies regarding marriage. Finally, Islam and its law suffered a similar (if much earlier) division into opposing schools, which clearly helps explain one of its more striking characteristics, the absence of codification in marriage law prior to the 20th century.In all these religions, marriage and families constituted basic institutions, and one sees a similar pattern in their power to shape the formation of personality, social arrange-ments, and morality. And while all three religions regarded the institution of marriage highly, they did not share views on its primary purpose, much less related attitudes toward sexuality, the structuring of domestic life, care and protection of children, in-termarriage, and divorce (see Table below). They also differed in the spiritual status they accorded to this union. In Islam and Judaism, marriage was registered by the reli-gious authorities, but did not have the sacramental implications that were found among Christians. Both western and eastern Christian churches considered marriage an ex-pression of divine grace and a sacrament, until the Protestant Reformation undid this linkage and moved marriage much more decisively toward the secular realm.Islam and Judaism were much closer in their views on the nature of marriage, which they saw as a contract between two parties, a vital part of human existence, but not imbued with the symbolic meaning found in Christian theology. All three religions agreed that husband and wife ought to express the intention to marry verbally to each other, but they disagreed about the presence of a priest or witnesses. Thus, while Islam and Judaism required the presence of at least two witnesses, Christian canon law re-quired none at all, and not even the presence of a priest, in order to perform a legally binding ceremony. Another distinctive feature of the Christian attitude to marriage was that it was not required or even deemed desirable for everyone. Thus, while in Judaism an unmarried person was regarded as living outside nature, beginning early on many Christians (and much of its theology) looked on marriage as an estate inferior to virgin-ity. Another striking difference between the Christian concept of marriage and Islamic and Jewish understandings was the fact that Sharia and the Halakhah did not demand longevity of marriage, nor sexual fidelity to one partner, though both were regarded as preferable. Both Islamic and Jewish marriage law allowed men to practice polygamy, albeit with certain limitations on the number of legitimate wives. This commonality further underscores the uniqueness of Christian attitudes to sexuality, which generally restricted the expression of sexual passion, and invested celibacy, virginity, and strictly monogamous sexual intercourse with moral and divine implications. Another divergence regarded divorce. Christianity, Orthodox and especially Catholic, enforced very strict divorce policies, rooted in the shared belief that marriage created an indissoluble and eternal bond between the spouses. Judaism and Islam were more leni-ent in this regard, and produced elaborate rules which would ultimately enable divorce. In fact, one could say that Islam in particular allowed for the kind of divorce that was introduced only in Protestant countries beginning in the 16th century. The rules of Ta-


lak allowed a valid marriage to be terminated, leaving the parties free to remarry. It re-quired the mutual consent and agreement of both spouses (or of their representatives). Islam also allowed Fesih, an institution similar in nature to annulment in the Christian tradition. And while, divorce was permitted in the Orthodox Church, it should be noted that death of a spouse did not cause the immediate termination of marriage as the union of man and woman before Christ was eternal.When cataloguing these differences one could go on to argue that the material status of women in Islamic marriage was more favourable than in Christian or Jewish regimes, due to the fact that women were allowed to own property and to undertake financial transac-tions. In terms of the ownership of property, Islam insisted that spouses maintain separate property and that the wife be allowed freely to dispose of her property as she pleased. In the western Christian and Orthodox Churches the issue of marital property eventually fell under aegis of the secular authorities. Although medieval Europe saw frequent inter-actions between ecclesiastical and secular bodies, Christian marriage law left questions of marital property to the secular jurisdiction, while moral behaviour was overseen by the Church. Nevertheless, in ancient Jewish tradition, the ketubah or marriage contract pre-scribed an amount to be paid by the husband in the case of a divorce or his death. Islamic tradition had similar practices regarding inheritance in the form of mahr, which was the portion the wife received of the husband’s wealth, in case of a divorce or death. In spite of all the above differences, all these traditions shared a number of overrid-ing features. One of these was the insistence of the free choice of the contracting par-ties, albeit with many limitations in practice. Another was the stipulation that certain medical conditions, such as sexual or mental incapacity, barred a person from marriage, and could bring it to an end in certain cases. (Islam allowed supervening impotence as grounds for divorce, whereas Christianity insisted that impotence was only an impedi-ment to marriage if it existed at the outset of marriage and if the unaffected party was unaware of the impotence at the time of the creation of the marriage bond). To conclude, every society in past or present has had its own concept of marriage, and has linked it to specific practices, rituals and regulations. As James Ponzetti has put it, “this diversity and malleability make it difficult to comprehend contemporary marriages and families, yet it is the very reason why understanding is necessary”156. The following table provides a schematic, comparative overview of our summary of the expert analyses of marital laws in Judaism, western Christianity, and Islam we have consulted. It should be noted that the statements in the table refer to mainstream religious groups or movements in these religions, such as Sunni Islam or Orthodox Judaism, as there are obvious differ-ences in the interpretation of marriage law among these and other subgroups. Hopefully, our comparative approach will provide the reader with an overall preliminary view of the diversity of marriage and family law in a multicultural and multifaith context, as well as a sense of the many fundamental principles and practices the major religious traditions share in common, and which they have bequeathed to modern secular democracy.


Families

Marriage Law Judaism(Orthodox)

Roman Law Western Church Islam

Main Sources

TorahTalmud

Gaius, InstitutesCodex TheodosianusCorpius Iuris Civilis

New TestamentChurch FathersCouncils of Nicea, Chalcedon, etc. Papal decretals

QuranThe Hanefids

Sacramental value of marriage

No No Yes No

Written Contract √ × (1) × √Legitimate Age to Marry

♂ 13♀ 12

♂14♀12 (2)

♂ 14 ♀ 12 (2)

♂ 12♀ 9

Presence of a priest × × × ×Presence of witnesses √ × × √Consent of both parties

√ √ √ √

Intermarriage − − (3) + −Divorce + + (4) − +Annulment + No direct equivalent

(5) + +

Clerical celibacy − − √ +Dowry √ × (but customary) × √Alimony √ × × √Sexual fidelity √ × (6) √ √Polygamy + − − +Wedding Ceremony √ × × ×Betrothal √ × × √Virginity × × × (7) ×Attitude to sexuality + + − +Mental and physical capacity

√ √ √ √

Monogamy × √ √ ×Procreation × √ √ √

√ Required + Allowed × Not required − Prohibited

(1) Legally not required, but fairly common.(2) These were not hard and fast rules, as the canons also allowed marriage when persons reached maturity.(3) Meaning with non-Roman citizens.(4) From the 1st century BC also available to women.(5) The category which most closely resembled this was matrimonium iniustum (illegal marriage), which

only meant a marriage that was not officially recognized and therefore lacking in legal consequences.(6) Concubinage was allowed, but was not considered infidelity.(7) Not required, but preferred.


NOTES1 J.J. Ponzetti (ed.), International Encyclopedia of Marriage and Family, New York 2003, vol. 1, p. vii.2 Classic contributions include: E. Bott, Family and Social Network: Roles, Norms, and External Rela-

tionships in Ordinary Urban Families, London 1957; C. Lévi-Strauss, Generalized Exchange, in his The Elementary Structures of Kinship, trans. J.H. Bell, J.R. von Sturmer, ed. R. Needham, Boston 1969 [rev. ed.], pp. 233-455; L. Mair, Marriage, Harmondsworth 1971; E. Leach, Marriage, Legitimacy, Alliance, in his Social Anthropology, Oxford 1982, pp. 176-211.

3 P.H. Neuhaus, Christian Family Law, in M.A. Glendon (ed.), International Encyclopedia of Compara-tive Law, vol. IV, Persons and Family, The Hague 1983, pp. 3-27.

4 Ponzetti (ed.), International cit., p. vii; W. Burr, G. Leigh, Famology: A New Discipline, in “Journal of Marriage and the Family”,1983, 45, pp. 467-80.

5 R. De Vaux, Le istituzioni dell’antico Testamento, Turin 1964, p. 34.6 G. Duby, Matrimonio medievale: Due modelli nella Francia del dodicesimo secolo, Milan 1981, pp. 25-39.7 A. Steinsaltz, The Essential Talmud, New York 1976, p. 130.8 Ibid., p. 129.9 Ibid., p. 129.10 Ibid., p. 130; see also Z.W. Falk, Jewish Matrimonial Law in the Middle Ages, Oxford 1966, p. 35.11 Falk, Jewish Matrimonial Law cit., p. 131.12 Steinsaltz, Talmud cit., p. 132.13 A. Esposito, Gli ebrei a Roma nella seconda metà del Quattrocento attraverso i protocolli del notaio Gio-

vanni Angelo Amati, in S. Boesch Gajano (ed.), Aspetti e problemi della presenza ebraica nell’Italia cen-tro-settentrionale (secoli XIV e XV), Rome 1983, pp. 29-125.

14 A. Veronese, Migrazioni e presenza di ebrei “tedeschi” in Italia settentrionale nel tardo Medioevo (con particolare riferimento ai casi di Trieste e Treviso), in G.M. Varanini, R. Mueller (eds.), Ebrei nella Terra-ferma veneta del Quattrocento, Florence 2005, pp. 59-69 (available on internet:http://www.dssg.unifi.it/_RM/rivista/atti/ebrei/Veronese.htm). See also A. Veronese, Donne ed ere-dità nel tardo medioevo: il caso di Treviso, in M. Luzzati, C. Galasso (eds.), Donne nella storia degli ebrei d’Italia, Atti del IX Convegno internazionale “Italia Judaica”, Florence 2007, pp. 77-84.

15 De Vaux, Le istituzioni cit., pp. 34-35; E. Neufeld, Ancient Hebrew Marriage Laws, London 1944; S. Lowy, The Extent of Jewish Polygamy in Talmudic Times, in “Journal of Jewish Studies”, 1958, 9, pp. 115-138.

16 See De Vaux, Le istituzioni cit., p. 35.17 See Falk, Jewish Matrimonial Law cit., p. 1; I. Abrahams, Jewish Life in the Middle Ages, London 1932,

p. 129. 18 See L. Loew, Eherechtliche Abhandlungen: Gesammelte Schriften, Szeged 1893, vol. 3.19 A. Grossmann, Pious and Rebellious: Jewish Women in Medieval Europe, Hanover NH 2004, p. 70. The

Cairo genizah was the store room under the Ben Ezra synagogue in Fustat (Old Cairo). When it was discovered in the 19th century, some 280,000 documents or fragments of manuscripts were found, most of them written in Arabic, but using Hebrew characters.

20 See Falk, Jewish Matrimonial Law cit., pp. 1ff.21 Ibid., p. 35.22 See De Vaux, Le istituzioni cit., p. 42.23 Ibid., p. 42.24 R. Yaron, Aramaic Marriage Contracts from Elephantine, in “Journal of Semitic Studies”, 1958, 3, pp. 1-39.25 See Falk, Jewish Matrimonial Law cit., p. 36.


Families

26 Ibid., p. 36.27 Steinsaltz, Talmud cit., pp. 133-134; “A man is obliged to divorce his wife if it is clear to him that she

has committed adultery or if she demands the divorce on the grounds that he is impotent, or if he is suffering from an infirmity which makes married life intolerable, or if he forces her to do things she is not obliged to do”.

28 Falk, Jewish Matrimonial Law cit., p. 113; see also Neufeld, Ancient Hebrew Marriage Laws cit.; E. Volterra, Osservazioni sul divorzio nei documenti aramaici, in Studi Orientalistici in onore di Giorgio Levi della Vida, Rome 1956, vol. II, pp. 586-600.

29 Falk, Jewish Matrimonial Law cit., p. 113; A.E. Cowley, Aramaic Papyri of the 5th century B.C., Oxford 1923, p. 15; R. Yaron, Introduction to the Law of Aramaic Papyri, Oxford 1961.

30 Falk, Jewish Matrimonial Law cit., p. 115.31 Ibid., p. 131. 32 Ibid., p. 131.33 M. Luzzati, Matrimoni e apostasia di Clemenza di Vitale da Pisa, in M. Luzzati, La casa dell’ebreo. Saggi

sugli ebrei a Pisa e in Toscana nel Medioevo e nel Rinascimento, Pisa 1985, pp. 61-106.34 Grossman, Pious and Rebellious cit., p. 5.35 A. Quacquarelli, Il triplice frutto della vita cristiana: 100, 60 e 30 (Matteo 13-8 nelle diverse interpreta-

zioni), Bari 1989.36 Duby, Matrimonio medievale cit., p. 35.37 Grossmann, Pious and Rebellious cit., p. 9. 38 In 11th-century Muslim Spain, for example, a few responsa inform us about such occurrences. Gross-

mann emphasizes that “the case of child marriage mentioned in the responsa are not to be seen, in them-selves, as covering the sum total of the reality of child marriage in Jewish communities […]. It follows from this that the marriage of minors was far more common than those ‘special’ cases […] that appear in the responsa literature”. See Grossmann, Pious and Rebellious cit., pp. 38-39.

39 Grossmann, Pious and Rebellious cit., p. 38.40 A. Toaff, Love, Work and Death: Jewish Life in Medieval Umbria, London 1996, p. 13.41 Ibid., p. 13.42 A. Veronese, Una famiglia di banchieri ebrei tra XIV e XVI secolo: i da Volterra. Reti di credito nell’Italia

del Rinascimento, Pisa 1998.43 Id., Famiglie di banchieri ebrei attive nel Ducato di Urbino tra XIV e XV secolo, in “Zakhor. Rivista di

storia degli ebrei d’Italia”, 1999, 3, pp. 125-154.44 Ibid., p. 147.45 Ibid., pp. 148-149.46 Steinsaltz, Talmud cit., p. 132.47 D.L. d’Avray, Medieval Marriage: Symbolism and Society, Oxford 2005, pp. 200-207.48 J.A. Brundage, Law, Sex, and Christian Society in Medieval Europe, Chicago 1987, pp. 229-416.49 Matthew 19:3-6.50 John 4:2-11.51 D.L. d’Avray, Medieval Marriage Sermons: Mass Communication in a Culture Without Print, Oxford

2001, pp. 71-119.52 Matthew 19:7-9; D.R. Catchpole, The Synoptic Divorce Material as a Traditio-Historical Problem, in

“Bulletin of the John Rylands Library”, 1975, 57, pp. 92-117.


53 Matthew 19:27-28; John 8:3-11; Matthew 21:31-33; Brundage, Law cit., pp. 57.54 Luke 14:7-25 and 26, respectively. 55 1 Corinthians 6:9-10; 1 Timothy 1:10; 1 Thessalonians 4:3-7.56 1 Corinthians 7:9. Literally, the wording of the Latin Vulgate (quod si non se continent nubant: melius est

enim nubere quam uri) should be translated “because if they contain not themselves, let them marry: it is better to marry than to be consumed”. The common English translation of this scriptural authority comes from the post-medieval King James version.

57 1 Corinthians 7:10-16.58 John 4:5-19.59 St John Chrysostom, On Virginity, Against Remarriage, trans. S. Rieger Shore, in “Studies in Women

and Religion”, 1983, 9, p. 9.60 St John Chrysostom, De virginitate, in J.P. Migne (ed.), Patrologiae Cursus Completus. Series Graeca,

Paris 1857-1866, vol. 48, p. 544; J. Chrysostom, On Virginity, Against Remarriage cit., p. 9.61 Matthew 19:12.62 Origen, In Genesim Homiliae, in Migne (ed.), Patrologiae cit., p. 192.63 Tertullian, Ad Uxorem, in E. Deckers (ed.), Opera Pars 1: Opera Catholica, Adversus Marcionem, Bre-

pols 1954, pp. 373-374; Tertullian, Opera Pars 2: Opera Montanistica. Appendix; [tria opera spuria] Adversus omnes haereses. De exsecrandis gentium diis. Carmen adversus Marcionem, in E. Deckers (ed.), Corpus Christianorum: Series Latina, Brepols 1954, vol. 2, pp. 1030-1031.

64 J. Bugge, Virginitas: An Essay in the History of a Medieval Ideal, The Hague 1975, p. 71; E. Fuchs, Sexual Desire and Love: Origins and History of the Christian Ethic of Sexuality and Marriage, Cambridge 1983, pp. 88-89.

65 Clement of Alexandria, Stromata 2.23, in P. Schaff, Fathers of the Second Century: Hermas, Tatian, Ath-enagoras, Theophilus, and Clement of Alexandria, in A. Roberts, J. Donaldson (eds.), The Ante-Nicene Fathers Translations of the Writings of the Fathers Down to a.d. 325, Edinburgh 1870, pp. 378-379.

66 St Jerome, Adversus Jovinianum, in J.P. Migne (ed.), Patrologiae cursus completus Series latina, Paris 1800-1875, vol. 23, pp. 229-230, 246, 249. See also P. Delhaye, Le Dossier Anti-Matrimonial de l’’Ad-versus Jovinianum’ et son Influence sur Quelques Écrits Latins du XIIe Siècle, in “Mediaeval Studies”, 1951, 13, pp. 65-86.

67 Delhaye, Le Dossier cit., p. 66.68 P. Brown, Augustine of Hippo: A Biography, Berkeley 1969, pp. 390-391.69 Augustine of Hippo, Sancti Aurelii Augustini Hipponensis Episcopi Opera Omnia, Paris 1841, [Patrolo-

gia ... Latina, vol. 44], pp. 756, 773-774.70 Contra Julianum, 3.11.22; Augustine of Hippo, Sancti Aurelii Augustini cit., p. 713.71 P.L. Reynolds, Marriage in the Western Church: The Christianization of Marriage During the Patristic

and Early Medieval Periods, Leiden - New York 1994, p. 301.72 S. Laeuchli, Power and Sexuality: The Emergence of Canon Law at the Synod of Elvira, Philadelphia

1972, p. 61.73 Ibid., pp. 64, 91.74 Canons 18, 27, 65 and 33, in J. Vives, T. Marín Martínez, G. Martínez Díaz (eds.), Concilios Visigóticos

e Hispano-Romanos, Barcelona 1963, pp. 5, 6, 13, 7.75 Brundage, Law cit., p. 79.76 D. Herlihy, Medieval Households, Cambridge MA 1985, pp. 57-61.77 “There is neither Jew nor Greek, there is neither bond nor free, there is neither male nor female: for

ye are all one in Christ Jesus” (Galatians 3:28) and “[in the New Man] there is neither Greek nor Jew,


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circumcision nor uncircumcision, Barbarian, Scythian, bond nor free: but Christ is all, and in all” (Co-lossians 3:11). For a history of this development, see M.M. Sheehan, Theory and Practice: Marriage of the Unfree and the Poor in Medieval Society, in “Mediaeval Studies”, 1988, 50, pp. 457-487.

78 J.-A. McNamara, S. Fonay Wemple, Marriage and Divorce in the Frankish Kingdom, in S.M. Stuard (ed.), Women in Medieval Society, Philadelphia 1977, pp. 97-98, 100.

79 P. Stafford, Queens, Concubines, and Dowagers: The King’s Wife in the Early Middle Ages, Athens GA 1983, p. 80.

80 H. Leyser, Medieval Women: A Social History of Women in England, 450-1500, New York 1995, p. 45.81 F. Pedersen, A Medieval Welfare State? Welfare Provision in a Twelfth-Century Icelandic Law Code, in

“Northern Studies: The Journal of the Scottish Society for Northern Studies”, 1999, 34, p. 102.82 McNamara, Wemple, Marriage cit., p. 104.83 J. Gaudemet, Le mariage en occident, Paris 1987, p. 129.84 Ibid., pp. 126-127; d’Avray, Medieval Marriage cit., pp. 85-87.85 For two opposing views of Nicholas I’s motives, see R. Kottle, Kirchliches Recht und päpstlicher Authori-

tätsanspruch: Zu den Auseinandersetzungen über die Ehe Lothars II, in H. Mordek (ed.), Aus Kirche und Reich: Studien zu Theologie, Politik und Recht im Mittelalter: Festschrift fur Friedrich Kempf zu seinem funfundsiebzigsten Geburtstag und funfzig jährigen Doktorjubiläum, Sigmaringen 1983, pp. 159-170; A. von Esmyol, Geliebte oder Ehefrau?: Konkubinen im frühen Mittelalter, Cologne 2002.

86 Decretals are papal letters containing an answer from the pope when he had been appealed to or his advice had been sought on a matter of discipline.

87 A translation of Lorenzo Valla’s seminal analysis of the Donation of Constantine is found in L. Valla, Discourse on the Forgery of the Alleged Donation of Constantine, trans. C.B. Coleman, New Haven 1922.

88 The best study of the Pseudo-Isidorian forgeries is H. Fuhrmann, Einfluß und Verbreitung der pseudoi-sidorischen Fälschungen von ihrem Auftauchen bis in der neueren Zeit, Stuttgart 1972-1973.

89 J. van Engen, Decretals, False, in J.R. Strayer (ed.), Dictionary of the Middle Ages, New York 1982-1989; Brundage, Law cit., pp. 171-173.

90 J. Moorhead, Justinian: The Medieval World, London 1994.91 Succinct summaries of the introduction of Roman law can be found in K. Pennington, Medieval Law,

in J.M. Powell (ed.), Medieval Studies: An Introduction, Syracuse 1976, pp. 333-352; G. Silano, Irnerius, in Strayer (ed.), Dictionary of the Middle Ages cit., vol. 6, pp. 554-555. For a more detailed study see M. Bellomo, The Common Legal Past of Europe, 1000-1800: Studies in Medieval and Early Modern Canon Law, Washington DC 1995.

92 W. Ullmann, A Short History of the Papacy in the Middle Ages, London 2003, pp. 128-129, 374. 93 Ibid., p. 131.94 Ibid., pp. 130-131.95 J. Brown, Introduction to Medieval Law (unpublished manuscript), stencil.96 J. Gilchrist (ed.), The Collection in Seventy-Four Titles: A Canon Law Manual of the Gregorian Reform,

Toronto 1980; V. Wolf von Glanvell (ed.), Die Kanonessammlung des Kardinals Deusdedit, Paderborn 1905, pp. 37-54; P. Fournier, G. Le Bras, Histoire des collections canoniques en Occident depuis les Fausses décrétales jusqu’au Décret de Gratien, Paris 1931.

97 B. de Sutri, Liber de vita christiana, ed. E. Perels, Berlin 1930.98 Martin Brett and Bruce Brasington are currently working on a scholarly edition of Ivo’s Panormia. See

The Panormia Project (2008), at http://project.knowledgeforge.net/ivo/panormia/method_1p2.pdf99 J. Leclercq, Monks on Marriage: A Twelfth-Century View, New York 1981, pp. 13, 69.


100 Brundage, Law cit., p. 183.101 For an outdated biography of Gratian reflecting the scholarship as it stood in 1909 see A. Van Hove,

Johannes Gratian, in The Catholic Encyclopedia, New York 1909 (retrieved February 16 2009 from New Advent: http://www.newadvent.org/cathen/06730a.htm). This traditional account should be supple-mented by S. Kuttner, Harmony from Dissonance: An Interpretion of Medieval Canon Law, Philadelphia 1960. The re-evaluation of the evidence for Gratian’s biography began with J.T. Noonan, Gratian Slept Here: The Changing Evidence for the Identity of the Father of the Systematic Study of Canon Law, in “Traditio”, 1979, 35, pp. 145-172. See also A. Winroth, The Two Recensions of Gratian’s Decretum, in “Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Kanonistische Abteilung”, 1997, 83, pp. 22-31, and The Making of Gratian’s Decretum, Cambridge 1997.

102 Brundage, Law cit., p. 229.103 For an example of this in action see Ibid., p. 231.104 In addition to the already mentioned works by Winroth, see Neither Slave Nor Free: Theology and Law

in Gratian’s Thoughts on the Definition of Marriage and Unfree Persons, in W. Müller, M.E. Sommar (eds.), Medieval Church Law and the Origins of the Western Legal Tradition: A Tribute to Kenneth Pen-nington, Washington DC 2006, pp. 97-110.

105 The most comprehensive treatment of the problem of marriage in Gratian is J.A. Alessandro, Gratian’s Notion of Marital Consummation (submitted in partial fulfillment of the requirements for the degree of doctor of canon law), Vatican City 1971.

106 F. Pedersen, Maritalis Affectio: Marital Affection and Property in Fourteenth-Century York Cause Papers, in J.T Rosenthal, C. Rousseau (eds.), Women, Marriage and Family in Medieval Christendom: Essays in Memory of Michael M. Sheehan, Kalamazoo 1998, pp. 175-209.

107 Alessandro, Gratian’s Notion cit., p. 1.108 For detailed information about the science of Fıkıh see H. Karaman, Fıkıh, in Türkiye Diyanet Vakfı İslâm

Ansiklopedisi [henceforth DİA], 1996, 8, pp. 1-14.109 Karaman, Fıkıh cit., p. 1.110 For detailed information see H. Karaman, Mecelle, Yeni Türkiye Yargı Reformu Özel Sayısı, Ankara

1996, vol. 10, pp. 995-1001. 111 F. Emecen et al., Osmanlı Devleti ve Medeniyeti Tarihi, Istanbul 1994, vol. 1, pp. 413-414.112 Quran, er-Rum, 30/21.113 Quran, en-Nahl, 16/72.114 Quran, en-Nur, 24/32.115 This refers to practices and rules not laid down in the Quran but nevertheless derived from the Proph-

et’s own habits and words. See Redhouse Yeni Türkçe-İngilizce Sözlük, Istanbul 1992, p. 1040. 116 See the section on Nikah [marriage], Sünen-i İbn Mace tercemesi ve şerhi, Ebu Abdullah Muhammed b.

Yezid er-Rebei el-Kazvini İbn Mace, ed. H. Hatipoğlu, Istanbul 1982.117 M. Akif Aydın, Aile, in DİA, 1989, 2, p. 199.118 Quran, el-Bakara, 2/36; Aydın, Aile cit., p. 199.119 The space of time within which a woman could not remarry. 120 For detailed information on marriage (Nikah) see F. Atar, Nikâh, in DİA, 2007, 33, pp. 112-117.121 Pertaining to the school of canonical law of Abu Hanifa.122 Hukuk-ı Aile Kararnamesi, article 4-8; A. Akgündüz, Mukayeseli İslam ve Osmanlı Hukuku Külliyatı,

Diyarbakır 1986, pp. 319-322; H. Cin, İslam ve Osmanlı Hukukunda Evlenme, Konya 1988, pp. 294-296; Aydın, Aile cit., pp. 184-185.


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123 Hukuk-ı Aile cit., article 7; Akgündüz, Külliyat cit., pp. 320-321.124 Atar, Nikâh cit., p. 114; M. Akif Aydın, Türk Hukuk Tarihi, Istanbul 2006, pp. 298-300.125 On the principles of marriage see Aydın, Türk Hukuk Tarihi cit., pp. 283-284.126 Aydın, İslam-Osmanlı Aile Hukuku cit., pp. 100-101; A. Ubeyd el-Kubeysi, el-Ahvalü’ş-şahsiyye, Bagdad

1395/1975, pp. 58-60.127 M. Ebu Zehra, El-Ahvalü’s-Şahsiye, Kahire 1950, p. 58; Z. Şa’ban, el-Ahkâmü’ş-Şer’iyye fi’l-Ahvâli’ş-

Şahsiyye, Beirut 1978, pp. 113-114; Y. Linant de Bellefonds, Fasid wa Batil, in Encyclopedia of Islam, Leiden 1960-2005 [2nd ed.], vol. 2, pp. 102-103.

128 Ebû Zehra, Ahvâl cit., pp. 79-81; Aydın, Türk Hukuk Tarihi cit., pp. 294-295.129 Cin, Evlenme cit., pp. 192-195; Molla Hüsrev, Dürerü’l-Hükkâm, Istanbul 1317/1901, vol. 1, p. 341;

Cin, Evlenme cit., pp. 210-287; Karaman, Mukayeseli İslam Hukuku cit., vol. 1, p. 282; Aydın, Osmanlı Aile Hukuku cit., pp. 103-107.

130 Damad, Mültek’al-Ebhur cit., pp. 492-495; Cin, Evlenme cit., pp. 192-202, 206; Quran, el-Talak, 6/65; Hukuk-ı Aile cit., articles 70, 92-101.

131 Ebu Zehra, Ahvâl cit., p. 354; M. Muhyiddin Abdülhamid, el-Ahvalü’ş-şahsiyye, Kahire 1958, pp. 334-335.132 Şa’ban, Ahvâl cit., pp. 482-490; Ebu Zehra, Ahvâl cit., pp. 379-382; A. Tac, Ahkâmu ahvôli’ş-şahsiyye

fi’şşeriati’l-İslamiyye, Kahire 1955, p. 350; Hukuk-ı Aile cit., article 119-125.133 Ebu Zehra, Ahvâl cit., p. 375; Abdülhamid, Ahvâl cit., p. 307; Şa’ban, Ahvâl cit., p. 481; Aydın, Osmanlı

Aile Hukuku cit., pp. 115-118. 134 İbn Rüşd, Bidayetü’l- müctehid ve nihayetü’l-muktasıd, Beirut 1982, vol. 2, p. 52; Ebu Zehra, Ahvâl cit.,

pp. 389-391; Şa’ban, Ahvâl cit., pp. 496-498; Hukuk-ı Aile cit., article 127.135 Ebu Zehra, Ahvâl cit., pp. 385-386; Şa’ban, Ahvâl cit., pp. 493-494; Hukuk-ı Aile cit., article 130.136 Şa’ban, Ahvâl cit., p. 238; Tac, Ahvâl cit., pp. 106-107.137 M. Akif Aydın, Bir Hukukçu Olarak Ahmet Cevdet Paşa: Ahmet Cevdet Paşa Semineri, Istanbul 1986, p. 34.138 Aydın, Ahmet Cevdet Paşa Semineri cit., pp. 166-176.139 Z. Fahri Fındıkoğlu, Hukuk Sosyolojisi, Istanbul 1958, p. 347. 140 Politics 1253b; for more detailed analysis see C.D.C. Reeve, The Naturalness of the Polis in Aristotle, in

G. Anagnostopoulos (ed.), A Companion to Aristotle, Oxford 2009, pp. 512-527. 141 N.G.L. Hammond, H.H. Scullard (eds.), The Oxford Classical Dictionary, Oxford 1970, p. 649.142 W.K. Lacey, The Family in Classical Greece, London 1968, pp. 105ff.143 O. Stanojević, Rimsko pravo, Belgrade 1990, p. 105.144 C. Hezser (ed.), Rabbinic Law in Its Roman and Near Eastern Context, Tübingen 2003, pp. 1-16; fur-

ther detailed studies can be found in B. Cohen, Jewish and Roman Law, New York 1966, 2 vols.145 V. Stanimirović, Najstariji oblik rimskog braka, in “Zbornik Matice srpske za klasične studije”, 2006, 8,

pp. 71-97.146 A. Drummond, Family, Agnates and Clan, in F.W. Walbank, A.E. Astin, M.W. Fredriksen, R.M. Ogil-

vie (eds.), The Cambridge Ancient History, Cambridge 1992, vol. VII-2, pp. 146-154; J.A. Crook, The Development of Roman Private Law, in J.A. Crook, A. Lintott, E. Rawson (eds.), The Cambridge An-cient History, Cambridge 1992, vol. IX, p. 537.

147 Stanimirović, Najstariji cit., p. 72.148 Gaius, Inst. 1,111; Stanimirović, Najstariji cit., p. 74. 149 Rust. XII pref. 8-10; R. Saller, Family and Household, in A.K. Bowman, P. Garnsey, A. Cameron (eds.),

The Cambridge Ancient History, vol. XI, Cambridge 2000, p. 861.


150 R.P. Saller, Patriarchy, Property and Death in the Roman Family, Cambridge 1994, p. 102.151 S. Šarkić, Odredbe rimskog prava o mirazu u srednjovekovnom srpskom pravu, in “Zbornik Matice srpske

za klasične studije”, 2006, 8, pp. 185-191.152 J. Goody, The Development of the Family and Marriage in Europe, Cambridge 1983, p. 4.153 D.L. Balch, C. Osiek (eds.), Early Christian Families in Context, Cambridge 2003, p. xv. 154 Euripides, Andromache, 172ff. 155 D.G. Hunter, Sexuality, Marriage and the Family, in F.W. Norris, A. Casiday (eds.), The Cambridge His-

tory of Christianity, Cambridge 2007, vol. 1, p. 591.156 Ponzetti, International cit., p. vii.

BIBLIOGRAPHY

GeneralBradley K.R., Discovering the Roman Family: Studies in Roman Social History, New York 1991.Glendon M.A. (ed.), International Encyclopedia of Comparative Law, vol. IV, Persons and Family, The Hague 1983.Goody J., The Development of the Family and Marriage in Europe, Cambridge 1983.Grubbs J.E., Women and the Law in the Roman Empire: A Sourcebook on Marriage, Divorce and Widow-hood, London 2002.Lacey W.K., The Family in Classical Greece, London 1968.Ponzetti J.J. (ed.), International Encyclopedia of Marriage and Family, New York 2003.Rawson B.M. (ed.), Marriage, Divorce and Children in Ancient Rome, Oxford 1991.Stanimirović V., Najstariji oblik rimskog braka, in “Zbornik Matice srpske za klasične studije”, 2006, 8, pp. 71-97.

Jewish Marriage LawBaumgarten E., Mothers and Children: Jewish Family Life in Medieval Europe, Princeton 2004.Falk Z.W., Jewish Matrimonial Law in the Middle Ages, London 1966.Grossman A., Pious and Rebellious. Jewish Women in Europe in the Middle Ages, London 2004.Stow K., The Jewish Family in the Rhineland: Form and Function, in “American Historical Review”, 1987, 92, pp. 1085-1110.Tallan C., Medieval Jewish Widows: Their Control of Resources, in “Jewish History”, 1991, 5, pp. 63-74.Toaff A., Love, Work and Death. Jewish Life in Medieval Umbria, London 1996.Westreich E., Poligamy and Compulsory Divorce of the Wife in the Decisions of the Rabbis of Ashkenaz in the Eleventh and Twelfth Centuries, in “Bar Ilan Law Studies”, 1988, 6, pp. 118-164.

Marriage Law in Western ChristianityBellomo M., The Common Legal Past of Europe, 1000-1800, Washington DC 1995.Brundage J.A., Law, Sex, and Christian Society in Medieval Europe, Chicago 1987.Bugge J., Virginitas: An Essay in the History of a Medieval Ideal, The Hague 1975.d’Avray D.L., Medieval Marriage Sermons: Mass Communication in a Culture Without Print, Oxford 2001.


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Id., Medieval Marriage: Symbolism and Society, Oxford 2005.Duby G., Medieval Marriage, Baltimore 1978.Farge J.K. (ed.), Marriage, Family and Law in Medieval Europe: Collected Studies, Toronto 1996.Fuchs E., Sexual Desire and Love: Origins and History of the Christian Ethic of Sexuality and Marriage, Cambridge 1983.Gaudemet J., Le mariage en occident, Paris 1987.Laeuchli S., Power and Sexuality: The Emergence of Canon Law at the Synod of Elvira, Philadelphia 1972.Leclercq J., Monks on Marriage: A Twelfth-Century View, New York 1981.McNamara J-A., Wemple S.F., Marriage and Divorce in the Frankish Kingdom, in Stuard S.M. (ed.), Women in Medieval Society, Philadelphia 1977, pp. 95-124.Reynolds P.L., Marriage in the Western Church: The Christianization of Marriage During the Patristic and Early Medieval Periods, Leiden - New York 1994.Sheehan M.M., Theory and Practice: Marriage of the Unfree and the Poor in Medieval Society, in “Mediaeval Studies”, 1988, 50, pp. 457-87.

Islamic Marriage LawAkgündüz A., Mukayeseli İslam ve Osmanlı Hukuku Külliyatı, Diyarbakır 1986.Atar F., Nikâh, in DİA [Türkiye Diyanet Vakfı İslâm Ansiklopedisi], Istanbul 2007, vol. 33, pp. 112-117.Aydın M.A., İslam-Osmanlı Aile Hukuku, Istanbul 1985.Id., Türk Hukuk Tarihi, Istanbul 2006.Id., Bir Hukukçu Olarak Ahmet Cevdet Paşa, Ahmet Cevdet Paşa Semineri, Istanbul 1986, pp. 21-39.Bilmen Ö.N., Hukuk-ı İslamiyye ve Istılahat-ı Fıkhiyye Kamusu, Istanbul 1967-1970, vol. II.Cin H., İslam ve Osmanlı Hukukunda Evlenme, Konya 1988.Karaman H., Fıkıh, in DİA, Istanbul 1996, vol. 13, pp. 1-27.Id., Mecelle, Yeni Türkiye Yargı Reformu Özel Sayısı, Ankara 1996, vol. 10, pp. 995-1001. Id., Mukayeseli İslam Hukuku, Istanbul 1991, vol. II.

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