Power over the Body, Equality in the Family: Rights and Domestic Relations in Medieval Canon Law

Power over the Body, Equality in the Family: Rights and Domestic Relations in Medieval Canon Law

Power over the Body, Equality in the Family: Rights and Domestic Relations in Medieval Canon Law

Power over the Body, Equality in the Family: Rights and Domestic Relations in Medieval Canon Law

Synopsis

The term "conjugal rights" has long characterized ways of speaking about marriage both in the canonistic tradition and in the secular legal systems of the West. This book explores the origins and dimensions of this concept and the range of meanings that have attached to it from the twelfth century to the present. Employing far-ranging sources, Charles Reid Jr. examines the language of marriage in classical Roman law, the Germanic legal codes of early medieval Europe, and the writings of canon lawyers and theologians from the medieval and early modern periods. The heart of the book, however, consists of the writings of the canonists of the High Middle Ages, especially the works of Hostiensis, Bernard of Parma, Innocent IV, and Raymond de Pe afort. Reid's incisive survey provides a new understanding of subjects such as the right of parties to marry free of parental coercion, the nature of "paternal power," the place of bodies in the marriage contract, the meaning and implications of gender equality, and the right of inheritance."

Excerpt

This book is about marriage. But it focuses on what might seem a very odd way of thinking about marriage. Those who view marriage from a secular viewpoint, and even many who appreciate the sacral and religious dimensions of marriage, are accustomed to seeing it as grounded and governed exclusively by the love of the parties. Love, of course, is a good thing. But modern secular law also sees such love as a fleeting thing, a transitory phenomenon that can die, or be betrayed, or otherwise lost. Where love dies, the modern view holds, the marriage itself may well be dead. Love is whimsical, it is light-hearted, it is oriented toward self-fulfillment. Less often is love thought of as sacrificial, or as requiring conscious self-denial.

The proposition that the continuing free consent of both parties to the marital relationship is what makes the marriage is perhaps the best expression of the modern viewpoint. The idea that one or another of the parties might have enduring rights in such a relationship is incompatible with a vision of marriage that depends upon the continuing ratification of both parties for its viability. The marriage contract has thus become in contemporary legal analysis terminable at the will of either party, thus reducing it to a lesser status than any other type of contract. The widespread availability and acceptance of nofault divorce have only cemented in the popular imagination the proposition that marriages are temporary arrangements, terminable when one or the other party decides, for whatever reason, that the union is beyond repair.

The belief that marriage is ultimately a matter for the continuing free consent of the parties is powerfully reflected in modern legal conceptions of the family. The Supreme Court’s 1972 decision declaring distinctions . . .

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