Remarks on the Lawler-Risch US Catholic article
Michael Lawler and Gail Risch (U.S. Catholic on-line) propose to treat certain co-habiting couples essentially as married. This bad idea should, and will, go nowhere (Abps. Charles Chaput and Elden Curtiss and folks like Carl Olson see numerous problems with it), so I won’t comment much on it. I should point out, though, that L&R’s presentation of the canon law on marriage is problematic in several respects.
I was confused, for example, by L&R’s portrayal of the disputants in the marriage debate that gripped the Church from the 9th to 12th centuries: “In the 12th century,” L&R claim, “Gratian, the master of the school of law at the Catholic University of Bologna, introduced a compromise in the debate between the Romans and the northern Europeans over what brought about marriage.” That doesn’t sound right. For starters, Gratian lost this one.
Omitting Hugh of St. Victor (who constituted a third front all by himself), the two sides in the medieval marriage debate were as follows: Theologians from the University of Paris who championed (perhaps ironically) a maxim from ancient Roman law that spousal consent alone makes a marriage, versus canonists from the University of Bologna, led by Gratian, who argued for a ‘Germanic’ cultural model whereby marriage arose from a sequence of actions, one of which was spousal consent; the actual “Romans”, meanwhile, as scholars and canonists at least, were not major players until the papacy stepped in and resolved the debate in favor of the Parisians, not Gratian, in the 13th century.
Gratian did advance the marriage debate by upholding consent and intercourse as events with juridic significance. But in the end, he assigned greater legal consequences to intercourse than the nature of marriage required, and he hedged in distinguishing between, of all things, “betrothal” and “marriage”. Against him, the Parisians (Peter Lombard et al.), cleanly argued that spousal consent to be married now was necessary and sufficient for marriage, and paved the way for recognizing that sexual relations following present matrimonial consent was indeed, as Gratian held, significant, but not for making marriage, but rather for according to it a property canonists now recognize as “extrinsic indissolubility” (1983 CIC 1056, 1061).
The Parisian school held that betrothed couples were canonically free to marry others (even if they had had pre-marital sex in the meantime, which is still the law today). But I wonder whether Gratian really had a problem with that holding? As Theodore Mackin (What is Marriage?, 160) put it, “One consequence of his ambiguous use of desponsatio that Gratian almost certainly did not intend was the possibility that the act of betrothal followed by intercourse could create marriage equally with the wedding vows followed by intercourse” (my emphasis). In short, pretty much L&R’s idea.
Gratian as a sort of patron saint for those shacking-up? I don’t see it.