Studia Theologica 64 (2010), pp.

4 21

Marriage in the canons of the council in Trullo

David Heith-Stade

This study presents the historical development of marriage as a legal object in Eastern Orthodox canon law. The argument of the article is that the need of the ecclesial polity to adapt to a new situation following the Islamic conquests of the seventh century led to the development an ecclesiastical common law independent of Byzantine-Roman civil law in order to survive under Muslim rule. The sources of the canon law of marriage were Scripture, patristic customary law, and Byzantine-Roman civil law. It is further argued that the differences between Roman Catholic canon law and Eastern Orthodox canon law with regards to marriage are the result of different political contexts and different theological concerns in the East and the West.

Nuptiae sunt coniunctio maris et feminae et consortium omnis uitae, diuini et humani iuris communicatio. (Modestinus, Digesta, 23.2.1.)

Introduction
Today marriage is discussed by legislators around the world. In the Russian Federation, for example, there is a discussion in some Muslim member states about legalizing polygamy in order to handle the problem of a demographically unbalanced population. The current rights discourses in the West have in some states resulted in the legalization of same sex marriages. The concept of marriage underlying the legal development in the West has been criticized by the Roman Catholic Church and the Eastern Orthodox Churches in The First European Catholic-Orthodox Forums Statement on the Family.1 However, the Roman Catholic Church and the Eastern Orthodox Church differ between themselves in the understanding of marriage. The Roman Catholic canon law, for example, forbids divorce, but allows
DOI 10.1080/0039338X.2010.481858 # 2010 Taylor & Francis

Marriage in the canons of the council in Trullo

numberless remarriages. The Eastern Orthodox canon law, however, allows divorce in some circumstances, but allows only two remarriages (trigamy). It is obvious that the word marriage is associated with different ideas and that it designates different functions within all of these legal systems. In our contemporary situation, characterized by globalization, multiculturalism, the breakdown of the nation-state, and the frequent interaction between different legal systems within the global legal order, it is necessary to study the historical roots of the development of institutions and concepts in different legal systems in order to overcome cultural chauvinism and crypto-colonialism. This study will present the development of the basic law of marriage in the sources of Eastern Orthodox canon law. Canons regulating marriage make up a substantial part of the canon law of both the Roman Catholic Church and the Eastern Orthodox Churches. The canon law of marriage is, however, one of the areas in which the Eastern Orthodox Churches and the Roman Catholic Church differ from each other. The Eastern Orthodox Churches canon law of marriage is in theory the Roman Catholic Churchs ius antiquum (old law). However, the Latin West and the Greek East had early on different perspectives on anthropology and society in late antiquity and early medieval times. The Western perspective on anthropology was strongly affected by the struggle with Pelagianism, which never reached the Christian East, and the Western perspective on society was strongly affected by the total collapse of the Roman civilization and legal order in the West, while Hellenistic civilization and the Roman legal order continued uninterrupted in the East in the form of the Byzantine empire.2 These historical contexts explain the differences in the canon law of marriage between the West and the East. Canon law was originally a kind of case law aimed at regulating situations and problems which faced the ecclesial polity. Before Gratian, canon law was not perceived as an abstract coherent system of legal principles and doctrines, but rather as a practical means to maintain covenant integrity in changing socio-cultural circumstances. The old canon law (ius antiquum) constituted a legal order of a case law and not a system of codified legal principles and doctrines. Thus early canon law was characterized by an inductive reasoning, unlike the deductive reasoning of the ius novum (new law) developed by Gratian in the West during the Gregorian reforms.3 A case was adjudicated on the basis of similarity with earlier cases and on the basis of equity (called oikonomia in Greek canon law) with regard to the special circumstances of the particular case.

David Heith-Stade

The Byzantine emperor (as the pre-Gregorian Frankish emperor and the Germanic kings in the West) was considered to be the vicar of Christ entrusted with divine authority over the Christian Roman people subjected to his imperium (perceived not as a territory but as a symbolic authority). The sacerdotium on the other hand was by virtue of ordination entrusted with the celebration of the rites and sacraments of the new covenant. There was no clear distinction between ecclesiastical and secular. The imperium of the emperor and the sacerdotium of the bishops were perceived to be two divinely instituted authorities over the same people, which was both the Roman people (populus romanus) and the new covenants people of God (laos tou theou). The imperium was the competent authority in temporal matters, while the sacerdotium was the competent authority in matters of covenant holiness (e.g. penance, reconciliation, and sacraments). Marriage, however, concerned both the imperium and the sacerdotium. Marriage was to the ancients something quite different than what it is perceived to be today. It is still common to hear that Roman law considered marriage to be a contract; this, however, is an anachronism. The Roman law of antiquity had no general doctrine of contracts. The general law of contracts was developed by the Romanists in the twelfth and thirteenth centuries in the West.4 The statement that marriage in Roman law was a species of contract is a medieval Western anachronism. The Roman law of antiquity was characterized by a strong formalism and a legal reasoning more akin to Anglo-American case law than to the highly abstract coherent system of legal doctrines and principles developed by the scholastic Romanists and canonists. Marriage was not described as a contract in the corpus iuris civilis, but rather as a natural situation: a man and a woman united by the natural duties of a shared potential or real parenthood.5 To claim that marriage is a contract because Roman law requires consent and marital affection (meaning the intent of the parties to remain with each other) would be anachronistic, since in accordance with the formalism of Roman law it is not the intent but the legal form which creates a contract. Roman law considered that the situation of marriage could either be in accordance with natural law (matrimonium naturale) and carry no legal effects, or in accordance with Roman law (iustum matrimonium) and carry legal effects such as the Roman citizenship and inheritance rights of the children begotten within marriage as well as the right of the husband to prosecute his wife for adultery.6 Judith E. Grubbs has, furthermore, showed that the influences of Christianity on Roman law regulating marriage were minimal (the primary effect of Christianity on the marital regulations of

Marriage in the canons of the council in Trullo

Roman law was the removal of the legal penalties for celibacy introduced by Emperor Augustus).7 To Judaism marriage was a covenant, and had been used by the prophets as a metaphor describing the covenant between God and Israel. This covenant symbolism was inherited from Judaism by Christianity where marriage was used as a symbol for the relationship between Christ and the church (e.g. Ephesians 5). Furthermore, unchastity (porneia) had been condemned in the Gospels and Pauline letters as opposed to the purity of heart and spiritual freedom of the new covenant (e.g. Galatians 5). The covenant symbolism together with the ideal of spiritual freedom through the crucifying of the flesh with its passions and desires, which is supposed to produce the fruits of the Spirit, led to a high regard of celibacy and radical monogamy within mainstream Christianity of antiquity. However, already during the earliest centuries sexuality and marriage were perceived differently by patristic authors in the Latin West, the Greek East, and the Syriac Orient.8 The difference in the perception of sexuality between the Latin West and the Greek East would eventually result in marriage being perceived as lawful unchastity in the West, while the East came to perceive marriage as a school of chastity aimed at helping the spouses to control and transcend their concupiscence (epithymia) through marital fidelity. Furthermore, this difference in outlook resulted in quite contrary attitudes towards remarriage in the East and the West. According to the Western perception, the human person was unable to transcend sexuality, and marriage was, among other things, seen as a remedy against fornication, since sexual intercourse was lawful within in the marital union. However, according to the Eastern perception, the human person was able to transcend sexuality, and marriage was, among other things, a means to assist the spouses to achieve the virtue of chastity through marital fidelity. Thus the West came to perceive a second marriage as equivalent to a first marriage; while the East perceived a second marriage as an indication that the first marriage had been a failure in helping the remarrying spouse to achieve the virtue of chastity. Thus the second marriage was not seen as equal, but inferior to the first and true marriage. In his On the Good of Marriage and On Marriage and Concupiscence, St. Augustine presents that which would more or less become the prevalent understanding of marriage in the Latin West. In Retractions ii.53 he sums up the argument of the latter work, written to Count Valerius in response to the Pelagians accusing St. Augustine of condemning marriage through his doctrine of original sin. He argues that marriage is good since conjugal chastity makes good use of evil concupiscence in the procreation of children.9 Procreation is

David Heith-Stade

fundamental to St. Augustines understanding of marriage: through marriage something good (offspring) can come of something evil (concupiscence). St. John Chrysostom, who represents the Greek patristic tradition, which was unaffected by the struggle with Pelagianism in the West, has a different understanding of marriage. He agrees with St. Augustine that concupiscence (epithymia) is the reason why marriage was instituted.10 St. John Chrysostom, however, does not simply consider marriage as an institution for using something evil (concupiscence) to achieve something good (offspring). He claims that there are two reasons for which marriage was instituted: (a) that we might learn phrosyne ), and (b) that we might beget children.11 Since moderation (so concupiscence has come into the world (through the fall) marriage was instituted to cut down immoderation and teach men to be content with one woman. Since not all marriages do lead to procreation, and since the whole world has been filled by the human race, and since the resurrection of Christ has conquered death, St. John Chrysostom concludes that the purpose of marriage is no longer procreation but rather to prevent fornication by teaching men moderation.12 There is a similarity between the arguments of St. John Chrysostom and St. Augustine, but the main difference is found in their anthropological perspective: St. Chrysostom takes for granted that it is possible for the Christian to achieve dispassion (apatheia), while St. Augustine rather seems to think that the Christian can at best achieve a status quo with his or her passions.13 These differences in theological and political context explain why marriage developed differently in Eastern and Western canon law. The development in the West is well known, unlike the development in the East.14 The ius antiquum of the West was in theory the ius vigens of the East, but there are many differences between the ius antiquum systematized by Gratian in his Harmony of Discordant Canons and the canon law of the Eastern Orthodox Churches.15 The ius commune (common law) of the Eastern Orthodox Churches is the corpus canonum received and ratified by canon 2 of the Quinisext council in Trullo (AD 691)16 and canon 1 of the seventh ecumenical council in Nicaea (AD 787).17 Since the political situation was quite different in the Byzantine East and the West, where the Roman civilization and the legal order had collapsed in late antiquity, canon law developed under more normal circumstances in the East, where civilization, law, and order prevailed. Order (taxis) was actually a central element in the self-understanding of the Byzantines empire, which, according to its self-understanding, set it apart from the dreaded disorder (ataxia) of the

Marriage in the canons of the council in Trullo

uncivilized barbarians.18 It is interesting to note that the Byzantines did not divide the world into Christendom and Heathendom, but rather into Romans, i.e. Byzantines, and barbarians, who could also be Christians. Marriage was perceived as a factual situation, which could carry legal consequences if it was in accordance with Roman law. This Christian understanding of marriage was formed both by Roman law, cultural context, and Scripture. The early church found itself in many different cultural contexts affecting the customs of the local churches in regards to marriage. Scripture (and patristic exegesis), Roman law, and conciliar canons formed the common sources for the different local Orthodox churches understanding of marriage. The most important scriptural passages for the understanding of marriage were John 2, relating how Jesus began his public life at the wedding in Cana, which is interpreted by the Eastern patristic exegetical tradition as Christ blessing the institution of marriage by his presence; Ephesians 5:21 33 presenting marriage as a sacrament or mystery symbolizing the covenantal relationship between Christ and the church;19 Matthew 5:31 32, forbidding divorce except for the reason of unchastity (parektos logou porneias); 1 Corinthians 7, giving some principles of marriage (e.g. the source for the Pauline privilege); Hebrews 13:4, stating that marriage is honorable; 1 Timothy 5:9 16, stating that young widows should not be professed, but rather remarry; 1 Timothy 3:2, 12 and Titus 1:6, stating r), that a cleric must be the husband of one wife (mias gynaikos ane which was interpreted as remarriage being an impedimentum dirimens20 against ordination; Leviticus 21:7, stating that a priest (hiereus) may not e, prostitute, or other kind of dishonorable be married to a divorce woman; Leviticus 18, giving some forbidden degrees of kinship. Roman law formed another important source for the understanding of marriage. In the corpus iuris civilis21 promulgated by Emperor Justinian the Great (AD 527 65) there are primarily two definitions of marriage. Ulpian refers to marriage as an example of natural law (ius naturale) defined as the union of a man and a woman for the procreation of children and their rearing.22 Modestinus defines marriage as a union of a man and a woman, a partnership for life involving divine as well as human law.23 The definition of Modestinus is found at the beginning of the chapter entitled On the Rite of Marriage (De ritu nuptiarum) in the Digesta. This definition of marriage was quite naturally incorporated into the systematic compilations of canon law in the Byzantine empire (as well as in post-Byzantine compilations of Greek canon law such as St. Nikodemos the Hagiorites Rudder [AD 1800]). Thus the Greek East and the Latin West differ even in the definition of marriage, since the

10

David Heith-Stade

West came to define legitimate marriage as the convention noted among all people according to which a man and a woman mutually give to each other the right to the procreation of children (ius ad procreationem prolis) and the right to mutual assistance (ius ad mutuum adiutorium).24 The medieval Western idea of sexual intercourse as the consummation of marriage was unknown to the Christian East, which explains the phenomenon of white marriages in Eastern Christianity.25 The development of canon law as the common law of the Orthodox Catholic churches began before the ecumenical council in Chalcedon (AD 451), but was not finished until the Quinisext council in Trullo (AD 691). The earliest synods had not aimed at promulgating a common law, but rather adjudicated concrete cases giving their opinions (sententiae) upon matters, concerning discipline and order in the churches, which were raised at the proceedings of the synod. The procedure used by the synods was modeled on the procedure of the Roman senate, and their rulings in disciplinary matters were ecclesiastical equivalents to the senatusconsulta of the Roman senate, i.e. advices on how to deal with different problems.26 The bishops primarily governed their churches on the basis of customary law. However, the fifth century was the century of official legal codification beginning with the Codex Theodosianus (AD 438) promulgated by Emperor Theodosius II (AD 408 50) and culminating with the promulgation of the corpus iuris civilis (AD 529 534) in the reign of Emperor Justinian the Great. There existed a chronological collection of canons, probably originating from Antioch, used by the ecumenical council in Chalcedon, and John Scholastikos mentions the existence of a systematic collection of canons divided in sixty titles, probably compiled in the first half of the sixth century. About AD 550 John Scholastikos made his own collection of canons divided in fifty titles, which was groundbreaking since he included the canons of St. Basil the Great. These record the customary law of his church, and became the precedent for the inclusion of patristic canons in the corpus canonum.27 The process of the codification of the corpus canonum culminated with the Quinisext council in Trullo, which in its second canon received and ratified a corpus canonum, which, together with the canons promulgated by the council itself, became the basic common law of the Eastern Orthodox Churches.28 The basic canon law of marriage is contained in this corpus canonum, which was ratified and promulgated by the council in Trullo. The development of the legality of the canons is reflected in the fact that Emperor Constantine and Emperor Theodosius had treated the canons of the synods and councils as ecclesiastical senatusconsulta, i.e. advices which did not carry any legal force until they were confirmed by the emperor. However,

Marriage in the canons of the council in Trullo

11

Emperor Justinian the Great gave the canons by themselves the same legal force as imperial laws (nomoi),29 hence the councils ceased to be consultative assemblies and became legislative assemblies by their own right. It is practical to divide the marital regulation issued by the council in Trullo into: (a) general canons concerning marriage, (b) canons concerning the married clergy, and (c) canons concerning the marriages of laypersons. The canons promulgated by the council in Trullo are usually divided into three sections: (a) canons 3 39 regulating the clergy, (b) canons 40 49 regulating monastics, and (c) canons 50 102 regulating the laity. Canon 1 pronounces anathema on all who do not accept the definitions by the preceding ecumenical councils, and canon 2 receives and ratifies the corpus canonum. This division of the canons is somewhat superficial and other more exact divisions have been proposed.30 The canons are preceded by an introductory address to Emperor Justinian II (AD 685 95 and 705 11) stating that the purpose of the council is to strengthen ecclesiastical order and discipline and remove all remnants of Jewish and pagan superstitions, since the preceding ecumenical council had neglected to enact any canons. The real purpose of the council in Trullo was to codify and enact a common law (ius commune) of the Orthodox Churches. Because of the Arabic conquests many churches suddenly found themselves outside imperial jurisdiction which made it urgent to codify and promulgate an ecclesiastical common law able to help the churches in the provinces lost to the barbarians to reestablish and maintain ecclesiastical order and discipline independently of the Byzantine-Roman legal order. The canons of the council in Trullo show the senate procedure of first a relatio in which the problem is shortly stated, followed by the sententia in which the resolution accepted by the assembly is stated.

General canons concerning marriage

Canon 53, relating that in some places men who have been sponsors at baptisms have later married the mothers of their godchildren, decrees kata to pneuma oikeiote s) to be an impedimentum spiritual affinity (he dirimens against marriage. This resolution reveals the conciliar fathers aim to enact a common law applicable also to the churches in the conquered provinces, since spiritual affinity had already been made a marriage impediment by Emperor Justinian the Great in an imperial enactment (AD 530). However, the situation of the churches in the conquered provinces made it necessary to make explicit marriage

12

David Heith-Stade

impediments in the new ecclesiastical common law, since knowledge of Byzantine-Roman law could not be presumed to exist in the conquered provinces. Canon 54 begins by quoting Leviticus 18:6 and relating that St. Basil had enumerated certain forbidden degrees of kinship but passed over many. 31 The canon then states clearly the forbidden degrees of kinship, forbidding marriage within the fourth degree of consanguinity (i.e. first cousins are forbidden to marry), as well as in the direct line and second degree of affinity counting the wife and husband as one flesh (i.e. it is forbidden to marry a sister/brother-in-law or a mother/father-in-law). Thus this canon replaces the forbidden degrees of kinship enumerated in Roman law.32 Canon 72 decrees heresy an impedimentum dirimens against marriage, but in accordance with 1 Corinthians 7:12 a married convert is allowed to remain with his or her non-Orthodox spouse. This basis for the impediment against intermarriage is the Pauline ideal of marrying in the Lord (i.e. within the Eucharistic communion of the church).33 However, demographics had made it impossible to enforce this ideal during the earliest period in the history of the church; especially in the upper ranks of Roman society where social rank was more important than religion (marriage outside ones social rank was penalized by Roman law for the upper ranks of Roman society). The earlier councils and synods had gradually enforced the impediment against intermarriage on the clergy and their families, but the laity had not been explicitly prohibited intermarriage before the council in Trullo.34 The reason for making heresy an impedimentum dirimens was certainly connected with the Arabic conquests and the fear that the Byzantine Christians would be assimilated with the Oriental non-Chalcedonian Christians. The new Muslim rulers had reason to be suspect of their Orthodox Christian subjects, who were in communion with the patriarchate of Constantinople, while their Oriental Christian subjects, who had been in schism with the Great Church since the ecumenical council in Chalcedon (AD 451) could not be suspected of loyalties to a hostile state. The Byzantine Christians had good reasons to fear assimilation and extinction through intermarriage. Canon 44 decrees monastic profession an impedimentum dirimens to marriage. This canon, placed in the series of canons regulating monasticism, reflects the institutional development of the monastic state within the ecclesial polity. In the canons promulgated by the council in Trullo, professed monastics are for the first time perceived by canon law to be a clearly distinct state (taxis; ordo) within the ecclesial polity. Previously, different kinds of monastics (professed virgins,

Marriage in the canons of the council in Trullo

13

widows, deaconesses, and monks) were partially regulated, but the canons did not perceive them as a clearly distinct order but rather as clerics or laypersons, who had made a vow of celibacy. Before the council in Trullo, monastic profession was not an impedimentum dirimens but an impedimentum impediens which the local bishop could grant dispensation according to canon 16 of the council in Chalcedon.35 The earlier local synod in Ancyra (AD 314) treats professed virgins, who enter into marriage, as digamists.36 Canon 98 decrees that if a man marries a woman betrothed to another man still alive, he shall be subjected to the charge of adultery. This provision is originally from Byzantine-Roman law. According to Roman law marriage was not a contract, but the dotal pact regulating the dowry (dos). It was agreed upon in connection with betrothal (sponsalia), and it was a legal contract. The uncertainty of the legal effects of certain unions (especially with regard to the law of succession) prompted the emperors to decree the dotal pact mandatory for marriages in the upper ranks of Roman society. This led to certain rights associated with marriage becoming associated with betrothal (especially the right to prosecute the woman for adultery).37 In later Byzantine legal history it would become forbidden to celebrate betrothal apart from the nuptial crowning in order to avoid any uncertainty regarding the couples legal status.

Canons concerning the married clergy

Canon 3 is aimed at restoring canonical order concerning the married clergy and it deals with those clerics who have contracted un-canonical marriages. The canon starts by relating the emperor s wish that the clergy, who minister the sacraments, should be blameless, and should therefore be cleansed from the pollutions of unlawful marriages. Then the difference between the church of Rome, demanding celibacy of its clergy, and the church of Constantinople, allowing a married clergy, is related. The conciliar fathers state that they wish to follow a middle ground by continuing to allow a married clergy, but ridding it of unlawful marriages. It is primarily against those who have remarried after ordination that this canon is aimed. It is decreed that digamist clerics, who have entered a second marriage, but come to their senses phrosyne ) and who have dissolved their second learning moderation (so marriages, or become widowed before the council, shall retain the dignity of their office but cease from all ministration; but those who have not dissolved their unlawful marriage before the council are to be

14

David Heith-Stade

subjected to canonical deposition. The canon decrees that those clerics (presbyters, deacons, and subdeacons), who are not digamists, but still have contracted unlawful marriages, either by marrying a widow or by marrying after ordination, are given dispensation to remain in their rank, never advancing above it. They may continue to exercise their office after they have done penance for a time and openly dissolved their unlawful marriages. Finally the canon decrees that after the 15 January the canon is no longer in force and Apostolic canons 17 and 18 are renewed (ananeoumenoi), by declaring that he who has been twice married after baptism, or had a concubine, or married a widow, e, prostitute, slave, or actress, cannot become a cleric. divorce Canon 6 continues dealing with the married clergy and decrees that, in accordance with Apostolic canon 26, only lectors and cantors may marry after they have been promoted to their offices, while it is completely unlawful for subdeacons, deacons, and presbyters to marry after ordination. If anyone entering the clergy wishes to contract a lawful marriage, he must marry before he is ordained subdeacon, deacon, or presbyter. Canon 12 is a most interesting canon since it decrees mandatory episcopal celibacy. Thus it abrogates earlier canons, which presumes a married episcopacy.38 The canon begins with a relatio stating that it has come to the councils attention that in Africa and Libya (which were under the jurisdiction of Alexandria), and in some other places, bishops continue to live with their wives even after consecration, thereby causing scandal and offence to the laity. The council then resolves that, since it is the bishops duty to care for their flock, bishops may no longer live with their wives after their consecration. The canon then continues by stating that this is not decreed in order to overthrow what has been established by apostolic authority from antiquity (i.e. Apostolic canon 5), but rather for the advancement to better things, not giving offence to anyone, quoting 1 Corinthians 10:31 11:1 in defense of this progress of discipline. Finally the canon decrees that if anyone transgresses it they shall be deposed. The decree of this canon is not so novel as it may first seem. It should be noted that the places mentioned are Africa and Libya, which were lost provinces where the rule of Byzantine-Roman law had ceased. Much of the episcopacy had earlier been celibate due to the high regard for celibacy in Christian spirituality, and Emperor Justinian the Great had already decreed in a series of imperial enactments that only unmarried men without children could be promoted to the episcopacy.39 Thus, where the rule of Byzantine-Roman law prevailed, this was no problem, but the situation was different in the lost provinces. It is interesting to note that

Marriage in the canons of the council in Trullo

15

the conciliar fathers modified the imperial legislation concerning episcopal celibacy, since they did not retain the imperial demand that a candidate for the episcopacy should be childless. While Emperor Justinian might have been concerned with the embezzlement of ecclesiastical property by a bishops heir, the conciliar fathers in Trullo were more concerned with the problem of finding candidates for episcopal sees under Muslim rule (obviously not the most attractive appointments), hence the possibility of promoting widowers and other men from the local married clergy to the episcopacy must have seemed as a suitable solution to the need of the church. The council returns to the marriage of a bishop elect in canon 48 dealing with the wife of a man elected to the episcopacy. This canon n states that the couple must divorce by mutual consent (kata koine nian). The wife shall then retire to a convent at a distance from sympho the episcopal residence, but has a right to receive support from the bishop; and if she is worthy she is to be promoted to the dignity s diakonias axio ma). It is interesting to note that the of the diaconate (to te council takes the possibility of divorce for granted. While medieval canon law in the West developed the doctrine that a valid marriage could not be dissolved, Eastern canon law retained the perspective of marriage as a factual situation decreeing that a marriage should not be dissolved, but acknowledge divorce as a matter of fact. Thus while the new canon law in the West came to make a de ipso facto dissolved marriage into a continuing legal fiction, the older canon law of East accepted the factual situation as it was. Canon 13 decrees that while the church of Rome demands professed celibacy of men who are to be ordained, the council claims to retain the ancient rule that it is not to be demanded of lawfully married subdeacons, deacons, and presbyters to abstain from sexual intercourse with their lawful wives. The canon claims that such a demand would make a mockery out of the institution of marriage, quoting in defense of this position Matthew 19:5, Hebrews 13:4, and 1 Corinthians 7:27. However, the conciliar fathers decree that clerics shall abstain from sexual intercourse at the time of their service at the altar, in accordance with the Greek version of canons 25 and 70 of Carthage. Thus the abstaining from sexual intercourse is presented as a part of the Eucharistic fast. Finally the canon decrees that if anyone has dared, contrary to the apostolic canons, to deprive presbyters, deacons, or subdeacons from cohabitation and intercourse with their lawful wives, they shall be deposed; and if any presbyter or deacon on the pretext of piety puts his wife away he is to be excommunicated, and if he perseveres he shall be deposed.

16

David Heith-Stade

Canon 30 returns to the subject of clerics putting their wives away. The canon relates the provision of Apostolic canon 5 stating that it is forbidden for a cleric to put his wife away on the pretext of piety, but gives dispensation to priests living in barbarian churches (i.e. the conquered provinces). Due to the abnormal situation, these priests may separate from their wives through mutual consent and thereafter in no way live with them as to give perfect proof of their promise to separate. Finally canon 26 decrees that a presbyter, who through ignorance has contracted an unlawful marriage, shall retain the dignity of his office, but cease from all sacerdotal functions after he has manifestly dissolved the unlawful marriage which has deprived him of exercising the function of his office.

Canons concerning the marriage of laypersons

As remarriage (digamy) was an impedimentum dirimens to ordination, the only canons applicable to only laypersons were those regulating remarriage (called digamy, trigamy, and polygamy in the sources of canon law). In the third century the Novatian schismatics (who called themselves the pure ones) had separated from the Catholic Church on account of what they considered to be license to sin in the church, namely admitting the lapsed and the remarried to communion. The first ecumenical council of Nicaea (AD 325) decreed in its eighth canon that Novatian clerics wanting to come over to the Catholic Church must profess in writing that they would observe and follow the dogmas of the Catholic Apostolic Church, especially that they would have communion with digamists (i.e. those twice married after baptism) and with those who had lapsed during the persecutions and afterwards been reconciled with the church. The abhorrence with which remarriage was regarded by early Christian writers was partially due to the covenantal symbolism of marriage as a symbol for the unique union of Christ with the church, as well as the ideal of moderation phrosyne ), being achieved by the Christian through keeping the (so commandments and internalizing the beatitudes in the theological life of faith growing through hope in love. Remarriage was seen as opposed to the uniqueness of Christian marriage as a covenant symbol as well as an expression of an underdeveloped Christian moral character. The pia) with the laity church did, however, show compassion (philanthro troubled by the cares of this life, and demanded only of its clergy the strict ideal of radical monogamy.40 Furthermore, the church followed Christ in condemning divorce, but acknowledged divorce as a matter of

Marriage in the canons of the council in Trullo

17

fact. However, the fact that the church accepted the reality of the dissolution of marriage, did not mean that divorced persons were considered to have a right to remarry (especially not if they were the cause of divorce through adultery). The council in Trullo enacted two canons dealing with remarriage of laypersons. Canon 87, which is made up of verbatim quotations from canons 9, 35 and 77 of St. Basil the Great, decrees that a wife who abandons her s) is an adulteress and subject to do husband without good reason (alogo penance, while the abandoned husband is allowed to remain in communion with the church. However, husbands, who abandon their lawful wives and takes another woman, are subject to the charge of adultery, in accordance with the verdict of Christ (cf. Matthew 5:32), and shall be excommunicated and do penance for seven years. Thereafter, if n metanoe so sin), they may the husbands repent with tears (ean meta dakryo be readmitted to the communion of the church.41 It is interesting to note the difference between Roman law and canon law; according to Roman law only married women of honorable standing could commit adultery (moicheia; adulterium), while Christianity introduced the novel idea that the sexual infidelity of a married man was also adultery.42 Canon 93, which is largely made up of verbatim quotations of canons 31, 36, and 46 of St. Basil, deals with the case of a woman whose husband has disappeared. The council decreed that if the woman cohabits with another man before being certain of her husbands death, she commits adultery. Women married to soldiers shall, however, be liable on the same grounds as other women, who remarry in the absence of their husbands, but in their case there is a certain excuse since the suspicion of the husbands death is more probable. The canon then continues with the case of a woman who in ignorance has married a man whose wife has abandoned him and then returns and reconciles with her husband. The woman, who in ignorance has married a married man, has committed adultery, but since it was in ignorance she is not subject to do any penance, although the canon urges her to remain unmarried. Finally the canon deals with the case of a soldier who returns home and finds that his wife has remarried during his long absence (presuming him dead). The ruling is that if he chooses he may receive her back and pardon is granted to her and her new husband because they have acted in ignorance. This canon is an interesting testimony to the problems of the time of the council in Trullo. Despite the fact that the Roman jurists had praised the Greek philosophical ideal of aequabilitas or isonomia (equality before the law), women and men were not equal before Roman law.43 With the exception of

18

David Heith-Stade

professed nuns and wealthy widows from the higher ranks of society, women were dependent on men (fathers, husbands, sons, etc.) for their socio-economic security, hence it was very important to have clear rules for when a woman could remarry or else she might be forced into prostitution, or worse, to secure a livelihood.

Conclusion
In AD 634 the great conqueror Caliph Omar broke into imperial Byzantine-Roman territory and advanced with rapid success through the provinces recently won back by the Byzantines from the Persians. By the time of the reign of Emperor Justinian II (AD 695 8 and 705 11) many of the empires largest cities and provinces had been permanently lost to the Umayyads (AD 661 750).44 However, unlike the ByzantineRoman emperors the Muslim rulers did not have a general civil law common to all their subjects, but only Islamic law which was not applicable to non-Muslims.45 Deprived of the rule of Byzantine-Roman law, the Orthodox churches living under Muslim rule were threatened by disorder, anarchy, and extinction. The council in Trullo assembled in order to remedy the situation by codifying and promulgating an official ecclesiastical common law which would reestablish and maintain ecclesiastical discipline and order in the churches in communion with the ecumenical patriarchate of Constantinople. In this context the ecclesiastical common law of the council in Trullo sought to establish a common identity of the Chalcedonian Orthodox churches by introducing a greater unity in church praxis and emphasizing the differences with regard to the non-Chalcedonian Oriental churches.46 Although some divergent Western customs were noted and frowned upon, the West (perceived by the Byzantines to be in a state of anarchy and barbarism) was, generally speaking, irrelevant to the circumstances and problems faced and dealt with by the council in Trullo. The sources of the ecclesiastical common law promulgated by the council in Trullo were Scripture, customary law (especially the customary law codified by St. Basil the Great in his canonical letters to Amphilochios, as well as the customary law codified in the Apostolic canons), and ByzantineRoman law. Provisions taken from Scripture and patristic customary law were usually presented as a reconfirmation of canonical custom, while provisions taken from Byzantine-Roman law (such as episcopal celibacy) could be more openly changed and adapted to the needs of circumstances. The law of marriage in the canons of the council in Trullo was an urgent necessity for the Orthodox churches in the

Marriage in the canons of the council in Trullo

19

provinces that had come under Muslim rule and it was the first complete law of marriage independent of Byzantine-Roman jurisdiction in the Eastern Orthodox Churches.
David Heith-Stade Odengatan 5A SE-753 15 Uppsala ` de Sweden/Sue david.heith.stade@gmail.com

Notes
1. N.p. [cited 16 December 2008]. Online: http://www.interfax-religion.com/?act0 documents&div0136. 2. See George Ostrogorsky, History of the Byzantine State (rev. ed.; New Brunswick, New Jersey: Rutgers University Press, 1969), 27 50. 3. One of the most comprehensive works on the development of modern Western legal system within the legal order of the West is Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, Mass.: Harvard University Press, 1983). His main thesis is that the new claims of the papacy promoted by the Gregorian reforms caused the development of legal system and legal science in the modern sense within the Western legal order: on the one hand, legal studies were needed in the polemic in order to prove the legality of the claims, and on the other hand legal systems and legal science were needed in order to mediate between competing jurisdictions. 4. Berman, Law, 245 50. 5. Cf. Inst. 1.10; Dig. 1.1.1.4.; Dig. 23.2.2; Dig. 24.1.13; Dig. 50.17.30. 6. On the legal effects of marriage according to Roman law, see Barry Nicholas, An Introduction to Roman Law (Clarendon Law Series; Oxford: Clarendon Press, 1962), 80 90. Cf. Inst. 1.4; Inst. 1.9. 7. See Judith E. Grubbs, Law and Family in Antiquity: Emperor Constantines Marriage Legislation (New York: Oxford University Press, 1995). Emperor Justinian did, however, reform the law of marriage in a more Christian direction; see Nov. 22; Nov. 97; Nov. 98; Nov. 117; Nov. 140. 8. The most comprehensive study on the perception of sexuality in early Christianity is Peter Brown, The Body and Society: Men, Women, and Sexual Renunciation in Early Christianity (New York: Columbia University Press, 1988). He argues that the Christian East generally considered it possible to transcend the sexual urge, while the Christian West rather thought that the human person could at best achieve a status quo with his or her sexual urge. Furthermore, he argues that the Western perspective was shaped by the struggle with Pelagianism. 9. For a lengthier treatment of St. Augustines understanding of marriage and sexuality see Brown, Body, 387 427.

20

David Heith-Stade

10. It should be noted that concupiscence (epithymia) does not simply mean sexual desire but rather all forms of evil desires (self-indulgence, greed, vainglory, etc.) which prompt the will to act. phrosyne in Greek patristic thought see Helen North, Sophrosyne: 11. On the virtue of so Self-Knowledge and Self-Restraint in Greek Literature (Ithaca, N.Y.: Cornell University Press, 1966), 312 53. 12. Propter fornicationes uxorem, PG 51, 213. 13. One of the greatest differences between Eastern Orthodox spirituality and Modern Western spirituality conceptualized through scholastic theology is that the former takes for granted that dispassion is possible for the Christian, while the latter denies pidl s S k, The Spirituality of the Christian East: the possibility of dispassion, see Toma A Systematic Handbook (trans. Anthony P. Gynthiel; Cistercian Studies Series 79; Kalamazoo, Mich.: Cistercian Publications, 1986), 270 7. 14. On the development in the West see Edward Schillebeeckx, Marriage in the History of the Church (vol. 2 of Marriage: Secular Reality and Saving Mystery; London: Sheed and Ward, 1965); Philip Lyndon Reynolds, Marriage in the Western Church: The Christianization of Marriage during the Patristic and Early Medieval Periods (Vigiliae Christianae, Supplements; Leiden: Brill, 1994); Berman, Law, 226 30. A general overview of the East is given in John H. Erickson, The Challenge of Our Past: Studies in Orthodox Canon Law and Church History (Crestwood, New York: St. Vladimirs Seminary Press, 1991), 39 52; John Meyendorff, Christian Marriage in Byzantium: The Canonical and Liturgical Tradition, Dumbarton Oaks Papers 44 (1990): 99 107. 15. See Clarence Gallagher, Church Law and Church Order in Rome and Byzantium: A Comparative Study (Hants: Ashgate, 2002). On Gratian see Berman, Law, 143 8. See also Gratian, The Treatise on Laws (Dectreum DD. 1 20) with the Ordinary Gloss (trans. Augustine Thompson and James Gordley; Studies in Medieval and Early Modern Canon Law 2; Washington, D.C.: The Catholic University of America Press, 1993). , Some Specications 16. On the date of the Quinisext council in Trullo see Ioan Dura with Regard to the Date and Names of the Second Session of the Sixth Ecumenical Synod, The Greek Orthodox Theological Review 40 (1995): 11 6. 17. The most comprehensive available historical introduction to the corpus canonum of the eisago ge eis tous kanonas Eastern Orthodox Churches is Pavlos Menevisoglou, Historke s Orthodoxou Ekkle sias (Stockholm: The Holy Metropolis of Sweden and All te Scandinavia, 1990). The most practical available student edition of the corpus canonum of the Eastern Orthodox Churches is Hamilka S. Alibizatos, Hoi hierois kanones (3d ed.; Athens: Apostoliki Diakonia, 1997). 18. See Oxford Dictionary of Byzantium (ed. Alexander P. Kazhdan and Alice-Mary Talbot; 3 vols.; New York: Oxford University Press, 1991), sub voce Taxis. 19. The importance of these two passages for the understanding of marriage in the Byzantine tradition is shown by the fact that they eventually came to be the readings for the service of the nuptial crowning in the Byzantine rite, see Mikron euchologion (15th ed.; Athens: Apostoliki Diakonia, 2003), 99 124. 20. An impedimentum dirimens is an impediment rendering the prohibited act both illegal and invalid, while an impedimentum impidiens renders the prohibited act illegal but valid. 21. Nicholas, Roman law, 38 45. 22. Ulpian, Dig. 1.1.1.3: Ius naturale est, quod natura omnia animalia docuit . . . hinc decendit maris atque feminae coniunctio, quam nos matrimonium appellamus, hinc liberorum procreatio, hinc educatio.

Marriage in the canons of the council in Trullo

21

23. Modestinus, Dig. 23.2.1: Nuptiae sunt coniunctio maris et feminae et consortium omnis uitae, diuini et humani iuris communicatio. 24. Cf. can. 1013, p. 1, CIC 1917: Vocatur matrimonium legitimum convention apud omnes populos nota, qua vir et mulier sibi invicem tradunt ius ad procreationem prolis et ad mutuum adiutorium. 25. An example of a white marriage from modern times is St. John of Kronstadts marriage, see Nadieszda Kizenko, A Prodigal Saint: Father John of Kronstadt and the Russian People (University Park, Penn.: The Pennsylvania State University Press, 2000), 30 8. 26. On the procedure of the synods see Hamilton Hess, The Canons of the Council of Sardica A.D. 343: A Landmark in the Early Development of Canon Law (Oxford: Clarendon Press, 1958), 24 41. evic , ed., Ioannis Scholastici Synagoga L Titolorum, in Abhandlungen 27. See V. N. Benes der bayerischen Akademie der Wissenchaft, philos.-hist. Abteilung, N. S., 14 (1937). 28. On the early development of the corpus canonum of the Eastern Orthodox Churches ge , 21 100. see Menevisglou, Eisago 29. Cod. 1.3.45. ge , 290 2. 30. Cf. Menevisglou, Eisago 31. Cf. canons 27, 68, 75, 76, 78, 79 and 87. 32. Cf. Inst. 1.10, which only forbids marriage within the third degree of consanguinity (i.e. rst cousins may marry). 33. Cf. 1 Corinthians 7:39. 34. Cf. canon 14 of Chalcedon, canon 31 of Laodicea, and canon 21 of Carthage. 35. Cf. Peter LHuillier, The Church of the Ancient Councils: The Disciplinary Work of the First Four Ecumenical Councils (Crestwood, New York: St. Vladimir s Seminary Press, 1996), 247 51. He argues that the local bishop could not give dispensation to the marriage, but only dispensation from the penance. However, his argument seems somewhat anachronistic in light of the indistinctness of monastics in pre-Trullan canon law. 36. Cf. canon 19. 37. The development in the legislation of Emperor Constantine is treated by Grubbs, Law and family. 38. On the development of episcopal celibacy see Peter LHuillier, Mandatory Celibacy as a Requirement for Episcopacy, The Greek Orthodox Theological Review 40 (1995): 213 9. 39. Cf. Cod. 1.3.41.4; Cod. 1.3.47; Nov. 6.1.3 4; Nov. 123.pr.; Nov. 137.2. 40. Cf. canons 9, 31, 35, 36, 37, 46, and 77 of St. Basil the Great. 41. Cf. canon 102 on the relationship between penance and true repentance. 42. On the Christianization of the perception of sexual crime in Byzantine-Roman law see Angeliki E Laiou, Sex, Consent, and Coercion in Byzantium, in Consent and Coercion to Sex and Marriage in Ancient and Medieval Societies (ed. Angeliki E. Laiou; Washington, D.C.: Dumbarton Oaks, 1993), 122. Cf. Aline Rousselle, Poneria: On Desire and the Body in Antiquity (New York: Basil Blackwell, 1988). 43. Papian, Dig. 1.5.9: In multis iuris nostri articulis deterior est condicio feminarum quam masculorum. 44. Cf. Ostrogorsky, Byzantine state, 110 46. 45. Cf. Joseph Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press, 1982), 23 7. 46. Cf. especially canons 1 and 2.

Copyright of Studia Theologica is the property of Routledge and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use.