TWO MODELS OF INCEST: CONFLICT AND CONFUSION IN HIGH
MEDIEVAL DISCOURSE ON KINSHIP AND MARRIAGE
Christof Rolker
Jesus Christ ordered every Christian
Not to marry his kin
You cannot take kin to within the forth degree
Otherwise it will be buggery.1
These lines from Yde et Olive, a thirteenth-century chanson de geste, manifestly refer to the
canonical marriage prohibitions as formulated by the fourth Lateran council in 1215.2 At the
same time, there are striking differences between the chanson and the synodal decrees. While
in Yde et Olive the prohibited degrees are described as being instituted by Christ himself, and
thus as immutable divine legislation, the Lateran council famously argued that in reducing the
prohibited degrees from seven to four it was simply changing ‘human legislation’ (statuta
humana), adjusting it to changing needs of society; violation of these laws was not ‘buggery’,
but according to papal practice could be dealt with by dispensation.
These differences point at the well-known paradoxes surrounding the medieval marriage
prohibitions. On the one hand, transgressing them was to commit incest – one of the most
horrible crimes possible, as both secular and clerical authors asserted. On the other hand, so
many marriages violated at least one of the numerous prohibitions that one cannot help but
thinking that such marriages were socially acceptable. Likewise, the rhetorics of divine law
and God’s wrath is in stark contrast to the cool negotiations over dispensations of all kind. For
Abbreviations: C. J. = Codex Justiniani; CCCM = Corpus Christianorum, Continuatio Medievalis; CCSL =
Corpus Christianorum, Series Latina; PG = Patrologia Graeca; PL = Patrologia Latina.
1
Esclarmonde, Clarisse et Florent, Yde et Olive: drei Fortsetzungen der Chanson von Huon de
Bordeaux, ed. M. Schweigel, Ausgaben und Abhandlungen aus dem Gebiete der romanischen Philologie 83
(Marburg: 1889), lines 6448-6451: ‘Tous crestïens Jesucris commanda / Ca son parage ne se mariast pas / Tu ne
le pues avoir dusques en qart, / U autrement bougrenie sera.’ The translation is that of Darron Burrows, as
quoted in D. Watt, ‘Behaving like a man? Incest, lesbian desire, and gender play in Yde et Olive and its
adaptations’, Comparatitve Literature 50 (1998), 265-285, 268.
2
Decrees of the ecumenical councils, ed. and tr. N. P. Tanner, 2 vols. (London: 1990), vol. 1, 257-258.
1
the modern reader at least, it is also puzzeling to see that there was a legal category that
encompassed such diverse elements as father/daughter incest, the abduction of nuns and
marriages between third cousins twice removed.
In the present paper, I will address these paradoxes by looking at two very dissimilar branches
of the medieval discourse on endogamy and exogamy, and more specifically at different
justifications of marriage prohibitions as found in systematic canon law collections of the
eleventh and twelfth centuries. At this time, the prohibitions had grown to their most extreme
form. Banning inter alia marriages within the seventh degree in canonical computation, the
law as contained in these collections was excessive compared to any ancient or modern
marriage law, and even compared to early medieval canon law or indeed canon law after
1215.
As already indicated, I will concentrate on two important, but very different traditions to
speak about marriages among relatives. The first is the view of kin marriage as incest and thus
as an abomination, as a violation of divine precept; the other tradition is a discourse on the
advantages of exogamy, as articulated perhaps most famously in St Augustine’s City of God.
Although both traditions can be and have been used to justifiy the same legislation, I want to
stress how very different they were, before looking at the effects produced by the conflation
of both traditions in the eleventh and early twelfth centuries. As I want to argue, the
systematic collections produced a new reading of the old texts by presenting them in a
different way, both changing the law and presenting it as unchangable. Finally, I want to
argue that nonetheless there were contemporary approaches that using very similar sources
developped models that did not justify the legal status quo but rather questioned it.
Purity and pollution: incest as an abomination
Let us first concentrate on the heated discourse on incest as an abomination that played such a
prominent role in medieval marriage law as well as in literary imagination.3 For this branch of
the medieval discourse on the marriage prohibitions, the biblical ban on incest is of course of
paramount importance. In Leviticus xviii, sexual relations with a small number of relatives
(including a few in-laws) are condemned as an abomination by God himself. As is repeatedly
3
For the latter, see E. Archibald, Incest and the medieval imagination (Oxford: 2001). For canon law, see
J. A. Brundage, Law, sex and Christian society in medieval Europe (Chicago and London: 1987), ch. 5; M. de
Jong, ‘An unsolved riddle: early medieval incest legislation’, Franks and Alamanni in the Merovingian period:
an ethnographic perspective, ed. I. Wood, Studies in historical archaeoethnology 3 (Woodbridge: 1998), 107-
140; M. H. Gelting, ‘Marriage, peace and the canonical incest prohibitions: making sense of an absurdity?’,
Nordic perspectives on medieval canon law, ed. M. Korpiola, Publications of Matthias Calonius Society 2
(Helsinki: 1999), 93-124 and most recently K. Ubl, Inzestverbot und Gesetzgebung: Die Konstruktion eines
Verbrechens (300-1100), Millenium-Studien 20 (Berlin: 2009).
2
pointed out, the incest prohibitions mark the difference between the chosen people and the
heathen (Lev. xviii, 3, 21, 27-28), and indeed incest is linked to blasphemy (Lev. xviii, 20). At
the same time, incest is prohibited in the same context and also in the same language as a
number of other sexual offences including sex with a menstruating woman, sodomy and
bestiality. The marriage prohibitions as contained in Leviticus are thus incest prohibitions;
transgression of this law is clearly a sexual offence, a violation of divine order, and a threat to
purity.
From a medieval perspective, a second source for the discourse on incest as a abomination
was Roman law. While there are of course important differences to the Old Testament
prohibitions, let alone medieval legislation, the relevant legislation was cast in similarly
strong language. Incest for the Romans was a violation of divine order (nefas).4 Although the
relevant laws were apparently rarely applied, and kin marriages contracted in good faith were
dealt with rather lightly,5 the high tone of these laws should not be underestimated. The ex-
tension of the term incestum to the unchastity of a Vestal is important evidence that such
unions were regarded as sacrilege. In this context, it is also important to note that incest was
part and parcel of ‘othering’; just as in Leviticus the prohibited acts are attributed to the
Egyptians, there are both Greek and Roman traditions to associate incest with various
‘barbarians’.6 Literary sources are likewise indicative for the horror surrounding sexual
unions between close relatives; divine punishment or at least a violent death of some form is
the usual fate of the perpetrator in incest stories like that of Apollonius of Tyre that remained
popular throughout the Middle Ages.7
Concerning the question of which unions were actually called incest, these authorities differed
substantially. Nonetheless, they form a fairly uniform discourse in the sense that it is more
about sex than marriage and that incest is always seen as a violation of divine order, not just
human law. It is this language we find most commonly in the early medieval legislation on
the prohibited degrees. From the sixth century onwards, the councils directly refer to
Leviticus to justify marriage prohibitions;8 at the second council of Toledo (527/531)
interpreted Leviticus xviii, 6 (‘omnis homo ad proximam sanguinis sui non accedat ut revelet
4
P. Moreau, Incestus et prohibitae nuptiae: conception romaine de l’inceste et histoire des prohibitions
matrimoniales pour cause de parenté dans la Rome antique, Collection d’études anciennes. Série latine 62
(Paris: 2002), 29-105, esp. 43-52.
5
J. F. Gardner, Women in Roman law and society (London: 1986), 125-127.
6
Brundage, Law, sex and Christian society, 14; Moreau, Incestus, 88-90.
7
Archibald, Incest; C. Kiening, ‘Familienroman und Heilsgeschichte’, Die Familie in der Gesellschaft
des Mittelalters, ed. K.-H. Spieß, Vorträge und Forschungen 71 (Ostfildern: 2009), 51-76.
8
R. Weigand, ‘Die Ausdehnung der Ehehindernisse der Verwandschaft’, Zeitschrift der Savigny-Stiftung
für Rechtsgeschichte, kanonistische Abteilung 111 (1994), 1-17, 2-3.
3
turpitudinem eius’) in such a way that it justified marriage prohibitions to ‘all’ kin.9 More
generally, the early medieval councils employ a language of purity and pollution when
dealing with the prohibited degrees. 10 This is also true for the early medieval penitentials,
where sexual contacts between relatives are treated in the context of sexual sins and other
polluting acts. In canon law, the term incestus was applied not only to the unions between
relatives (whether by blood or by marriage) but also to other sexual offences, namely sex
between godparent and godchild and intercourse with consecrated virgins. This all strongly
indicates that in these sources, the disourse on marriage prohibitions was actually more about
sex than marriage, and also highlights the spiritual dimension. Transgressing these boundaries
was threatened with divine punishment, as both conciliar acts and hagiography show.
One may still legitimately ask, how much of this is due to ‘genuine’ fear of incest or how
much of this is ‘propaganda’. In any case, it is remarkable that the early medieval incest
discourse itself is fairly consistent as both old and new prohibitions are talked about in terms
of purity and pollution. Even if not expressing ‘genuine fear’, this vocabulary was certainly
apt to inspire such fears, and this may not only have helped to win acceptance for the new
prohibitions but also have fostered their further expansion. Given the growing disparity of the
actual laws, let alone the diversity of the manuscript tradition,11 the tone of this discourse may
well have inspired bishops to act according to the principle ‘better safe than sorry’.
‘The greatest amount of caritas for the greatest number of people’: Exogamy
and the economy of affection
Compared to this ‘heated’ incest discourse, the second tradition I want to discuss is a
strikingly cool reasoning on endogamy and exogamy. The best-known example is a passage
in Augustine’s City of God, but there are both earlier and later authors arguing along the same
lines.12 John Chrysostom, for one, developped a model very similar to that of Augustine.13
What they have in common is that they talk not so much about sex but analyse matrimony as
9
La colección canónica Hispana, ed. G. Martínez Díez and F. Rodríguez, 6 in 7 vols., Monumenta
Hispaniae sacra. Series canonica 1-6 (Madrid: 1966–2002), vol. 4, 352-353. On the content and context of these
prohibitions, see Ubl, Inzestverbot, 200-208.
10
In addition to de Jong, ‘Unsolved riddle’ and Gelting, ‘Marriage’, see A. G. Remensnyder, ‘Pollution,
purity and peace: an aspect of social reform between the late tenth century and 1076’, The peace of God: social
violence and religious response in France around the year 1000, ed. T. Head and R. Landes (Ithaca: 1992), 280-
307.
11
See Weigand, ‘Ausdehnung der Ehehindernisse’, 2-3, esp. notes 2 and 7 for early examples.
12
M. Verbaarschot, ‘De iuridica natura impedimenti consanguinitatis in theologia et in iure canonico a S.
Petro Damiano usque ad Decretales Gregorii IX (ca. 1063-1234)’, Ephemerides theologicae Lovanienses 30
(1954), 697-739; Moreau, Incestus, 125-127 and Ubl, Inzestverbot, 56-62.
13
In epistulam ad Corinthos I homilia XXXIV (PG 61, 289-291), on which see Verbaarschot, ‘De iuridica
natura’, 699.
4
a means to multiply social bonds. While Augustine links exogamy to caritas, his argument is
neither based on the Bible nor specifically Christian. Exogamy in this model is superior to
endogamy in connecting more people by mutual affection. As Augustine put it, endogamy
was avoided,14
[…] not that one man should combine many relationships in his sole person, but that
those relationships should be distributed among individuals, and should bind social life
more effectively by in involving a greater number of persons in them. Thus, ‘father’
and ‘father-in-law’ are the names of two different relationships; and so the ties of
affection (caritas) extend to a greater number of persons when each has one man as
his father and another as his father-in-law.
The positive effects of exogamous marriage can thus be measured and indeed counted. The
fewer relationships are united in one person, and the more persons instead as related to each
other, the better. As Jeremy Bentham would have said, exogamy serves to produce ‘the
greatest amount of caritas for the greatest number of people’. The key argument against
endogamy is that it is ‘unnecessary’ as spouses related by blood are already connected by
mutual affection and more caritas-efficient marriage strategies are available. If incest in this
model was a sin, it was so because it was a waste of the scarce good of caritas.
A second important aspect, apart from the cool (utilitarian) mode of speaking, is that this
model is linked to a very wide definition of kinship. Common descent always creates at least
some affection that only gradually fades away. Yet crucially, this kinship is not identified
with the prohibited degrees. Cousin marriage, Augustine affirms, was recently forbidden,15
but more distant relatives are nonetheless kin. In other words, the prohibited degrees are much
more narrowly defined than kinship, and in any case subject to change. Indeed, as Augustines
argues at some length, the ban on cousin marriages was only based on changing custom
(consuetudo, mos); he praises both heathen and Christians for developping customs that are
morally superior to positive law. Thus, the ban on cousin marriage is based on natural law and
custom, but as all human legislation it may well change – as it indeed happened at least twice
in Augustine’s lifetime.16
For the medieval reception of this model, it is crucial that a version of it was repeated by
14
Augustinus, De civitate Dei libri XXII, eds. B. Dombart and A. Kalb, 2 vols., CCSL 47/48 (Turnhout:
1955), here De civitate Dei xv, 16 (CCSL 48, 476-479); the translation is taken from Augustine, The City of God
against the pagans, tr. R. W. Dyson (Cambridge: 1998), 664-665.
15
Augustine refers to cousin marriage as banned ‘hoc tempore’; from this and a small number of similar
references it has been inferred that Theodosius († 395) issued such a ban in 385. However, cousin marriage was
legal again in 405 (C. J. 5, 4, 19). See S. Treggiari, Roman marriage: Iusti Coniuges from the time of Cicero to
the time of Ulpian (Oxford: 1991), 114.
16
See last note.
5
Isidore in his Etymologies.17 This version provided an important inspiration for the high
medieval canon law on the prohibited degrees and was regularly (if incorrectly) quoted as to
justify the seventh degree in canonical computation. However, it is also important that Isidore
did not use terms like ‘incest’ when discussing the prohibited degrees, and vice versa. 18
Instead of linking the prohibited degrees to the biblical incest prohibitions, Isidore repeated
Augustine when he states that propinquitas among blood relatives ‘fades away’ the more
distant the relation is but is ‘called back’ by matrimony;19 just like Augustine he did not think
that relation by blood does in all cases preclude marriage, as both his text and the tables of
consanguinity confirm.20
Conflating traditions in the eleventh and twelfth centuries
The difference between these two models seems clear enough. Given the stress on ‘ritual
purity’ in recent scholarship on medieval incest legislation, it is worth mentioning that both
traditions were well known in the Middle Ages. Evidently, both could be used to justify the
ever-expanding incest prohibitions. The point is, however, that for centuries they were
normally not combined. Early medieval incest legislation followed the tradition of Roman law
and frequently referred to the biblical incest prohibitions, generally using the language of
purity and pollution. Augustine’s City of God, on the other hand, was very widely known but
before the eleventh century never was quoted by popes or councils legislating on incest, nor
was the chapter quoted above copied into any canon law collection. Some authors like Jonas
of Orléans († 841) drew on both traditions in their discussion of the prohibited degrees,21 but
this seems to have been without much effect on canon law.
This only changed in the eleventh century, perhaps most famously with Peter Damian’s letter
on the degrees of kinship in which he both quoted a definition of kinship very similar to that
found in Augustine and Isidore, and at the same time condemned marriage even to very
17
Isidore, Etymologiae ix, 6: ‘De cognatis et agnatis’ as quoted below (note 18). All Isidore quotations are
from Isidori Hispalensis episcopi etymologiarum sive originum libri XX, ed. W. M. Lindsay, 2 vols. (Oxford:
1911) [s.p.].
18
See Isidore, Etymologiae v, 26 on the term incestus, but with no reference to specific degrees of
kinship; the discussion of consanguinity in Etymologiae ix, 6, on the other hand, does not even mention incest.
19
Isidore, Etymologiae ix, 6: ‘Haec consanguinitas dum se paulatim propaginum ordinibus dirimens usque
ad ultimum gradum subtraxerit, et propinquitas esse desierit, eam rursus lex matrimonii vinculo repetit, et
quodam modo revocat fugientem.’ Cf. De civitate Dei xv, 16 (eds. Dombart and Kalb, CCSL 48, 476): ‘Fuit
autem antiquis patribus religiosae curae, ne ipsa propinquitas se paulatim propaginum ordinibus dirimens longius
abiret et propinquitas esse desisteret, eam nondum longe positam rursus matrimonii vinculo conligare et
quodammodo revocare fugientem.’
20
The tables show more degrees of kinship than the prohibited ones; see H. Schadt, Die Darstellungen der
Arbores consanguinitatis und der Arbores affinitatis: Bildschemata in juristischen Handschriften (Tübingen:
1982).
21
De institutione laicali (PL 106, 121-278, here at 183).
6
distant relatives as a most horrible crime.22 While there is some discussion about what Peter
Damian actually meant to say, and some of his arguments are clearly flawed,23 it is worth
mentioning that his approach to combine Augustine/Isidore with the early medieval incest
prohibitions is in tune with mainstream canon law. More specifically, his approach is
manifestly inspired by the collection of Burchard of Worms, of which he must have been one
of the first Italian readers,24 and later collections in their choice of material made similar
choices to those of Peter Damian.
It is therefore the systematic canon law collections of the eleventh and early twelfth centuries
that I now want to turn to. I will mainly concentrate on the Decretum of Burchard of Worms
from the early eleventh century and the Panormia compiled a century later in northern France.
Both works were very popular, indeed the most popular systematic canon law collections
before Gratian. Aparat from their very considerable direct influence, they also provided
material for many other collections, and as I will argue, even beyond this the very structure
these collections is an important aspect in understanding ‘the law’ on endogamy and
exogamy.
Burchard of Worms: incest and innovation
Recent scholarship has highlighted the paramount importance of Burchard of Worms († 1025)
in the history of medieval marriage legislation.25 According to Karl Ubl, Burchard compiled
his collection as a ‘handbook for the incest campaign of Emperor Henry II’ and more or less
single-handedly expanded the prohibited degrees of kinship to the seventh degree in canonical
computation.26 Even if one does not subscribe to this interpretation, there can be little doubt
that Burchard took vivid interest in incest legislation. Book seven on incest seems to have
been planned at an early stage of the work,27 and it was evidently important to Burchard. In
22
Letter 19, ed. Die Briefe des Petrus Damiani, ed. K. Reindel, MGH. Briefe der deutschen Kaiserzeit 4,
4 vols. (Munich: 1983-93), vol. 1, 179-199; cf. letter 102, ed. Reindel, vol. 3, 132.
23
Ubl, Inzestverbot, 451-460.
24
J. J. Ryan, Saint Peter Damiani and his canonical source: a preliminary study in the antecedents of the
Gregorian reform, Pontifical Institute of Medieval Studies. Studies and texts 2 (Toronto: 1956), 161; D. Jasper,
‘Burchards Dekret in der Sicht der Gregorianer’, Bischof Burchard von Worms, ed. W. Hartmann, Quellen und
Abhandlungen zur mittelrheinischen Kirchengeschichte 100 (Mainz: 2000), 167-198, 169-170.
25
P. Corbet, Autour de Burchard de Worm: l’église allemande et les interdits de parenté (IXème–XIIème
siècle), Ius commune. Sonderhefte 142 (Frankfurt: 2001); Ubl, Inzestverbot, ch. 7.
26
Ubl, Inzestverbot, 426-435, esp. 435 (quote).
27
Comparing the earliest manuscripts, Hoffmann and Pokorny found evidence of substantial reworking of
almost all books, but the only change to Burchard’s book seven was the addition of the two last canons: H.
Hoffmann and R. Pokorny, Das Dekret des Bischofs Burchard von Worms: Textstufen - Frühe Verbreitung -
Vorlagen, MGH. Hilfsmittel 12 (Munich: 1991), 40-86, esp. 41, 70-71, 73, 81-82.
7
the course of its compilation, he manipulated several proof texts it contains,28 and in doing so
both reduced the contradictions between them and at the same time came to a stricter
interpretation of the law.29 At the very least, his collection was very important to establish the
seventh degree of consanguinity and the canonical computation as the legal standard.
How did Burchard deal with the two models as sketched in the first part of the present article?
Quite similar to Peter Damian in the middle of the century, Burchard combined the two
traditions, not by quoting Augustine directly but by employing Isidore’s version of the
Augustinian model and mixing it ingeniously with the early medieval incest prohibitions.
More specifically, he quoted Isidore to argue that family affection ‘fades away’ the more
distant the relation by blood becomes, but is ‘restored’ by matrimony. At the same time, he
assembled a wide range of sources that condemn kin marriage as incest. Crucially, however,
he manipulates the tradition in two important points. First, he defined kinship much wider
than Isidore had done,30 and secondly he identified this ‘kinship’ with the prohibited degrees.
Partly, Burchard changed the law by manipulating the actual wording of his proof texts. 31
However, I would like to draw attention to another, more subtle way how Burchard changed
the law.32 Namely, as I want to argue, the structure of his collection and the arrangement of
the canons strongly affected the way his proof texts worked. This to me seems of relevance
not only for understanding Burchard. While only few compilers of later canon law collections
manipulated their texts as directly as Burchard did, my arguments about the arrangement of
canons can be applied to many other systematic canon law collections.
The first, but fundamental decision of Burchard was to dedicate a separate book to the
prohibited degrees, and to give it the very title De incesta copulatione. 33 The collection of
such substantial material under this heading was an innovation,34 and it does influence the
28
Corbet, Burchard de Worms, 89-91.
29
This fits the general trend of Burchard’s work; see G. Austin, Shaping church law around the year
1000: the Decretum of Burchard of Worms, Church, faith and culture in the Middle Ages (Farnham and
Burlington: 2009).
30
On this crucial point, see Ubl, Inzestverbot, ch. 7. For Burchard’s stemma, see Schadt, Darstellungen,
109-110 and Corbet, Burchard de Worms, 95-98.
31
Corbet, Burchard de Worms, 89-95.
32
For an inspiring discussion of the effects produced by different arrangements of proof texts in pre-
Gratian canon law collections, see A. Thier, ‘Dynamische Schriftlichkeit. Zur Normbildung in den vorgratiani-
schen Kanonessammlungen’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, kanonistische Abteilung 124
(2007), 1-33.
33
See L. Fowler-Magerl, Clavis canonum: selected canon law collections before 1140: access with data
processing, MGH. Hilfsmittel 21 (Munich: 2005). The Clavis database is now available online:
http://www.mgh.de/ext/clavis/. My thanks are to Greta Austin for checking the editio princeps and Burchard
manuscripts not available to me.
34
The Freising Collectio duodecim partium, which is very closely related to Burchard, is the only other
collection to have a separate book ‘on incest’. Earlier systematic collections do gather canons on incest, and in
their rubrics and sub-titles also use terms like ‘incestus’, but not in the same way as Burchard did. To take two
8
reading of canons found in this book. The very unity of the book suggests that there was
something like a uniform crime of incest, and more specifically suggests that the canons
condemning incest as an abomination are talking about the same matters as the canons
defining kinship as extending to the seventh degree of consanguinity. Burchard thus conflated
two traditions that hitherto had been separate. Those early medieval councils that so strongly
expressed fear of incest as a source of ritual impurity were referring to incest prohibitions
significantly more limited than those Burchard propagated, while his authorities in favour of
the very wide definition of kinship were not equally concerned with purity and pollution, if at
all.35 In Burchard’s book seven, however, the divergent traditions are combined under the
heading of ‘incest’, thus giving the very strong impression that the violation of these
excessive prohibitions was indeed a horrible sexual crime.
The second aspect is also related to the systematic character of Burchard’s collection. As one
would expect from a systematic collection, it does not give any clue to the chronology of the
material it presents. In the case of incest legislation, this is an important piece of information.
As will be discussed later, the changing nature of this legislation was an important argument
in the debates over dispensation from and finally reduction of the prohibitions. The reader of
Burchard’s Decretum, however, is confronted with a large number of authorities mainly
asserting the seventh degree, but in no way could guess at any historical development of these
text. This impression is partly due to Burchard’s suppression of some material and the
manipulation of other texts, but again the arrangement itself is crucial in suggesting that the
law on incest never had substantially changed.
At the same time, Burchard of course omits the original context of his material, which in
many cases would have led the reader to very different conclusions from that of the relevant
excerpt. For example, if one reads the acts of the Council of Toledo in context, it is quite clear
that the bishops defined kinship, including the prohibited degrees of kinship, in Roman law
terms;36 but if reduced to a few lines of condemnation of incestous unions,37 and presented in
the midst of authorities banning marriage in seventh degree of kinship,38 this fragment
becomes yet another proof text for a position that would have been utterly incomprehensible
to the bishops gathered in Toledo. On the other hand, the quotation from Leviticus xviii, 6
major collections as an example: in the Collectio vetus Gallica seven canons are grouped together under the
heading ‘De incestis et adulteris et qui uxores suas demittunt’, while in the Dacheriana, the incest prohibitions
are in the first book De penitentia. For these and further examples, see Fowler-Magerl, Clavis.
35
Isidore’s definition of kinship is taken from Roman inheritance law, and thus quite independent even
from Roman marriage law, let alone the medieval incest legislation; see above (note 18).
36
Ubl, Inzestverbot, 200-202.
37
Burchard, Decretum vii, 6 (PL 140, 780-781).
38
Burchard, Decretum vii, 2 and 10-16 (PL 140, 779-782).
9
(‘omnis homo …’, see above) contained in this short Toledo fragment in itself influences the
understanding of the surrounding canons. By alluding to Leviticus before quoting Isidore’s
rather wide definition of kinship, Burchard also makes Isidore appear to talk about kin
marriage as an ‘abomination’. Yet as mentioned above, Isidore in his discussion of the
prohibited degrees would never have quoted Leviticus, nor have called perpetrators of this
laws ‘incestous’. In these cases, the mise en page lad to a remarkable reciprocal effect on how
the proof texts were most likely understood. The reading of texts from either tradition was
substantially shaped by the presence of those from the other tradition, merging both into one
model.
In the end, the book title, the supression of the original context and the re-contextualizing of
the authorities may have been as important as the selection of texts and in my opinion are
more important than Burchard’s occasional manipulation of the actual proof-texts and their
inscriptions. Important as these manipulations were for the definition of which unions in
practice were affected, the importance of the more subtle changes that led to the re-definition
of all endogamy as ‘incest’ can hardly be underestimated. It was this aspect of Burchard’s
work that fueled the eleventh-century debates, contributing to the highly sexualized rhetorics
of reform.39
The Panormia: a new reading of Augustine
The second canon law collection I want to study is the famous Panormia, compiled around
the year 1115 in northern France.40 To judge by the number of extant manuscripts, it was the
single most successful of these collections. Another reason why an analysis of Burchard and
the Panormia together is likely to give a good impression of ‘the’ canon law in the century
before Gratian is that both collections were not only copied, but can be shown to have been
used in many contexts. For Burchard’s Decretum, from very early on there is ample evidence
that it was particularly valued in the conducting of councils. Bishop Eberhard of Constance (†
1046) recorded in his copy that disputes at synods were ‘not easily settled without the
39
On this rhetorics, see Remensnyder, ‘Pollution’, K. G. Cushing, Reform and the papacy in the eleventh
century: spirituality and social change, Manchester medieval studies (Manchester and New York: 2005), ch. 6
and most recently M. McLaughlin, Sex, gender, and episcopal authority in an age of reform, 1000–1122
(Cambridge: 2010).
40
On the collection, see M. Brett, ‘Creeping up on the Panormia’, Grundlagen des Rechts: Festschrift für
Peter Landau, eds. R. H. Helmholz, P. Mikat, J. Müller and M. Stolleis, Rechts- und Staatswissenschaftliche
Veröffentlichungen der Görres-Gesellschaft N. F. 91 (Paderborn: 2000), 205-270. For the on-going edition by
Brett and Brasington, see http://project.knowledgeforge.net/ivo/. On the relation between Ivo of Chartres and the
Panormia, see C. Rolker, Canon law and the letters of Ivo of Chartres, Cambridge Studies in Medieval Life and
Thought, Fourth Series 76 (Cambridge: 2010), esp. chapters 6-8.
10
authority of this book’,41 and around 1100, Sigebert of Gembloux also commented on
Burchard as the ultimate authority at synods.42 Both collections were also very frequently
employed for the compilation and reworking of new collections well into the twelfth century;
the Panormia was an important formal source for both recensions of Gratian, and Burchard
provided the next generation with about one in two of the paleae. In the case of very many
pre-Gratian collections, Burchard and the Panormia not only provided material, but were
important models for the very structure for many of these works.43 This does also imply that
the arguments based on the structure of the two collections studied here does indeed apply to
many, perhaps even most collections that were compiled in century before Gratian.
In the context of the present work, two aspects are important. First, the Panormia contained a
short section gathering incest prohibitions as part of its seventh book. The book has no proper
title, but is introduced by a capitulatio that indicates the subject matter of the whole book; as
it had become relatively common, kin marriages are called ‘incestous’ here. This does not
mean that the Panormia compiler was particularly concerned with incest; rather, both the
division of material and the wording mainly indicate how widely Burchard’s innovations were
accepted by ca. 1115.
Secondly, the Panormia goes beyond Burchard in the conflation of what has described as the
‘two models of incest’ in the first part of this paper. The overall impression is that it is less
concerned with purity and pollution than Burchard had been; the compiler retained only a few
of the relevant early medieval proof texts, the rubics do not highlight ‘incest’ as much as
Burchard had done, and none of the texts refers to Leviticus. At the same time, the famous
City of God chapter discussed above plays an important role as an excerpt from it is placed at
the head of the most important sub-section defining the prohibited degrees. The Panormia is
one of the first collections to contain this passage, and the first to give it such prominence.44
This, however, should not be described as a change from ‘old’ to ‘new’ justifications of the
prohibited degrees; despite the marked difference from Burchard, the Panormia conflates
both traditions as he had done, and in doing so justifies the very doctrine that Burchard so
elegantely had introduced into canon law. Again, it is not so much textual manipulation that is
41
O. Meyer, ‘Überlieferung und Verbreitung des Dekrets des Bischofs Burchard von Worms’, Zeitschrift
der Savigny-Stiftung für Rechtsgeschichte, kanonistische Abteilung 24 (1935), 141-183, here at 153, n. 2.
42
De scriptoribus, cap. 143, ed. Catalogus Sigeberti Gemblacensis monachi de viris illustribus: Kritische
Ausgabe, ed. R. Witte (Bern: 1974), 91.
43
Fowler-Magerl, Clavis; Rolker, Canon law, ch. 2.
44
Panormia vii, 52 is taken from Ivo’s Decretum viii, 39. As the very precise (and correct) inscription
‘Augustinus in libro de civitate Dei XV’ suggests, Ivo took the text from Augustine, not some florilegium. The
Panormia compiler was apparently less familiar with the source, as the inscription in all known manuscripts
gives a wrong book number also found in two Decretum manuscripts.
11
at play here, but rather the art of abbreviating and re-contextualizing ancient proof texts.
Let us take a closer look. If read in the original context, it is clear that Augustine is talking
about how to make sense of certain passages of the Old Testament, discussing for example at
which age the Old Testament patriarchs had reached puberty. In the passage on the marriages
of the children and grand-children of Adam and Eve, he discussed endogamy and made some
references to his own time, including his disapproval of marriages between first cousins.
However, he does not call these unions incestous, and correctly notes that they were not
forbidden by divine law; as for secular law, Augustine mentions that cousin marriages had
recently been banned.45 In any case, it was custom rather than law that changed first, as
heathen avoided sibling marriage allowed to them and Christians refrained from cousin
marriage even when it had been legal for them. Divine law, human law and custom all
changed, and crucially, all three (most of the time) differed as to which marriages were
acceptable and which not.
To any later reader, these passages could have served as a reminder that marriage prohibitions
are a complex issue and that they had changed several times both before and after the time of
Augustine. However, this all is true only if one reads the City of God. In the Panormia, the
reader is presented with a slightly different text in a very different context. All reference to
cousin marriages as (once) legal, and also the remarks on changing law and custom are
ommited here; even Augustine’s statement that the first men were allowed to marry their
sisters is removed. Only the argument why exogamy is favourable for the distribution of
caritas remains. The new context, as already indicated, is a section on incest. The City of God
excerpt here is followed by Roman law fragments that condemn incest as a horrible crime.46
What these excerpts from Justinian’s Code do not tell the reader is that this thundering
rhetorics is referring to a very narrow set of prohibited degrees. In the original at least, cousin
marriage is explicitely allowed; in the version found in the Panormia, this impression is
corrected by a ‘non’ inserted in the relevant passage.47 To remove all doubt, the Panormia
next, after a short passage from Ambrose on uncle/niece marriages as violating divine law,
has the famous letter of Alexander II on the seventh degree of kinship.
45
See above (note 15).
46
Panormia vii, 53, ultimately taken from Codex Justiniani (C. J. 1, 10, 1) via Ivo, Decretum ix, 1 (see
next note).
47
The ‘non’ is already found in the Panormia’s formal source (Ivo, Decretum ix, 1): ‘Duorum autem
fratrum sororumve liberi, vel fratris et sororis iungi non possunt.’ What Ivo’s formal source looked like, is not
easy to decide. The absence of the ‘non’ from both London, British Library, Add. 8873, fol. 57v and Paris,
Bibliothèque de l’Arsenal, ms 713, fol. 158r seems to suggest that it was added by Ivo; on the other hand, both
manuscripts are later copies of material that was available to Ivo, not the manuscripts he worked with. On the
collections, see Brett, ‘Creeping up’ and Fowler-Magerl, Clavis.
12
Most of this material is ‘new’ in the sense that around 1115, it was not widely found in canon
law collections and had never been combined before. Yet as in Burchard, not the ‘new’
content but the arrangement is crucial as it suggests that all texts refer to the same crime of
‘incest’. In the form the Panormia presents its material, Augustine provides a general
argument why endogamy should be avoided and that kinship extends very far; the Roman law
adds to the impression that this endogamy is indeed incest; and the decretal gives precise
instruction how to determine which marriages exactely are incestous.
As in Burchard, the selection, abbreviation and arrangement of canons in the Panormia serves
to create the impression that the prohibited degrees are supported by a very uniform tradition
including biblical incest prohibitions (as alluded to by Ambrose), natural law (as argued by
Augustine) and both secular and ecclesiastical law from Roman antiquity to the recent past
(Justinian and Alexander II, respectively). As so often,48 and not unlike Burchard,49 the
Panormia compiler achieved considerable doctrinal unity of his texts by selecting and re-
arranging his material. While neither Augustine nor Justinian would have called cousin
marriages ‘incest’, in this context they work very well as authorities supporting the extreme
marriage prohibitions of the eleventh and twelfth centuries. Such an argument would have
been impossible to make in a chronologically arranged collection of canon law, but in the
systematic collections, the very structure of the work could be used to challenge or to affirm
the status quo of marriage legislation.
As the analysis of Burchard’s Decretum and the Panormia suggest, pre-Gratian canon law
collections not only made certain proof texts fit; rather, it is the absence of the original
context, the arrangement of material and not least the choice of the ‘right’ title that could
substantially change the law and at the same time very strongly suggest that the law as
presented in these collections had never changed. As Augustine remarked on sibling marriage,
the custom of turning away from it was so strong that eventually it became unimaginably that
it once had been allowed.50 In the case of the systematic canon law collections, however, it is
not so much custom but rather the conscious decisions of the compilers that made certain
legal traditions invisible and indeed suggested that marriages in the seventh degree were not
48
Rolker, Canon law, ch. 7.
49
Austin, Shaping law.
50
De civitate Dei xv, 16 (eds. Dombart and Kalb, CCSL 48, 477-478): ‘Quod humano genere crescente et
multiplicato etiam inter impios deorum multorum falsorumque cultores sic observari cernimus, ut, etiamsi
perversis legibus permittantur fraterna coniugia, melior tamen consuetudo ipsam malit exhorrere licentiam, et
cum sorores accipere in matrimonium primis humani generis temporibus omnino licuerit, sic aversetur, quasi
numquam licere potuerit.’
13
only forbidded but appeared as never having been legal.
This does of course not mean that arguments building on the changing nature of positive law
were impossible in the eleventh and twelfth centuries. First of all, canon law was not uniform.
Some compilers of canon law collections, namely Ivo of Chartres, made very different
choices and did not strive for doctrinal unity.51 Other pre-Gratian canonical collections, for
example the famous Collection in 74 titles, contained little marriage law and as a consequence
had not much to say about endogamy or incest. However, given the striking success of
Burchard’s Decretum and the Panormia, both directly and indirectly, it is fair to say that
mainstream canon law collections before Gratian presented the reader with a view of the law
that defined marriage even to very distant kin, if implicitely, as ‘incest’. Development over
time, internal contradictions and differences between different kinds of ‘incest’ was precisely
not what the reader would find in these collections.
‘Nunc licere, nunc non licere’: Theologians and marriage laws
Thus, if we search for different interpretations of the tradition, we have to turn away from the
these systematic collections. As I want to argue in the last part of this paper, it were the
theologians of the late eleventh and early twelfth centuries who developped the arguments
that later (mainly after 1215) would become legal dogma. Much earlier than the compilers of
canon law collections, the theologians argued that there were different reasons for different
kinds of incest prohibitions, that the prohibited degrees changed in time, and different
prohibitons were of different quality.
This kind of argument can already be found with the Hrabanus Maurus († 856), who insisted
that divine law prohibited only a very limited number of relations as incestous.52 He was very
clear that any extension was based on human law, if indeed it was ‘law’ and not only
presumptuousness.53 In the eleventh and twelfth centuries, this line of argument was taken up
again by the theologians. This is most visible in an abundance of treatises and sententiae
collections dealing with marriage that emerged in the milieu of the cathedral schools of
northern France. The attribution of authorship and the dating of this material is complicated;
in the context of the present paper, no attempts will be made to address these questions. I will
concentrate on a number of relatively well-known texts from around 1100 to the 1130s: the
tract De nuptiis consanguineorum attributed to Anselm of Canterbury,54 the Sententiae
51
Rolker, Canon law, ch. 7.
52
Expositiones in Leviticum (PL 108, 245-586).
53
Ubl, Inzestverbot, 308-316.
54
PL 158, 557-560. I have no reason to believe hat the attribution to Anselm is correct.
14
magistri A.,55 and the sentences attributed to Peter Abelard.56 The largest amount of material
is associated with the so-called school of Laon.57 The sentences on marriage from this milieu
have been thoroughly studied,58 including the material gathered in the famous Liber
Pancrisis,59 and the marriage tract In primis hominibus.60
A first difference between the theological material and the canon law collections concerns the
vocabulary employed. While marriage is a prominent topic, and the prohibitions are regularly
discussed, the term ‘incest’ (and related vocabulary) is remarkable absent. In the sentence
collection of the so-called school of Laon, for example, the term rarely used at all, and applied
only to very specific sexual offences.61 Most strikingly, none of the very numerous sententiae
and none of the various marriage tracts from this milieu calls marriages within the prohibited
degrees ‘incestous’.
Turning from the vocabulary to the actual content, the difference between sententiae and
canon law collections is equally manifest. Not surprisingly, the theologians turned more
frequently to the Old Testament than contemporary canon law collections did. Yet while the
latter quoted Leviticus (if only via the Council of Toledo) mainly to justify the legal status
quo, the theologians rather stressed the difference between Old Testament and Christian
times. Several sententiae and marriage tracts made explicitely clear that the prohibitions in
55
The relevant section on marriage is edited by Reinhardt, Ehelehre, 167-244; for the full text, see P. H. J.
T. Maas, The Liber sententiarum Magistri A., Middeleeuwse studies 11 (Nijmegen: 1995).
56
Sententie magistri Petri Abelardi, ed. D. E. Luscombe, CCCM 14 (Turnhout: 2006).
57
V. I. J. Flint, ‘The “school of Laon”: a reconsideration’, Recherches de Théologie ancienne et médiévale
43 (1976), 89-110 remains fundamental.
58
O. Lottin, Psychologie et morale aux XIIe et XIIIe siècles, 6 in 8 vols. (Gembloux: 1948-60); H.
Zeimentz, Ehe nach der Lehre der Frühscholastik: eine moralgeschichtliche Untersuchung zur Anthropologie
und Theologie der Ehe in der Schule Anselms von Laon und Wilhelms von Champeaux, bei Hugo von St. Viktor,
Walter von Mortagne und Petrus Lombardus, Moraltheologische Studien. Historische Abteilung 1 (Düsseldorf:
1973); H. J. F. Reinhardt, Die Ehelehre der Schule des Anselm von Laon: eine theologie- und
kirchenrechtsgeschichtliche Untersuchung zu den Ehetexten der frühen Pariser Schule des 12. Jahrhunderts,
Beiträge zur Geschichte der Philosophie und Theologie des Mittelalters N.F. 14 (Münster: 1974). For
Bliemetzrieder’s works, see next note.
59
In addition to the works cited above, see those of F. P. Bliemetzrieder, especially Anselms von Laon
systematische Sentenzen, Beiträge zur Geschichte der Philosophie des Mittelalters 18 (Münster: 1919), ‘Trente-
trois pièces inédites de l’œuvre théologique d’Anselme de Laon’, Recherches de Théologie ancienne et
médiévale 2 (1930), 54-79 and ‘Paul Fournier und das literarische Werk Ivos von Chartres’, Archiv für
katholisches Kirchenrecht 115 (1935), 53-91 (with wrong attribution of authorship, 62-66). From the modern
literature, see most recently C. Giraud and C. J. Mews, ‘Le Liber Pancrisis, un florilège des Pères et des maitres
modernes du XIIe siècle’, Bulletin du Cange 64 (2006), 145-191. Giraud’s PhD thesis on the Liber Pancrisis was
not avaiable to me.
60
The tract is edited by B. Matecki, Der Traktat In primis hominibus: eine theologie- und
kirchenrechtsgeschichtliche Untersuchung zu einem Ehetext der Schule von Laon aus dem 12. Jahrhundert
Adnotationes in Ius Canonicum 20 (Frankfurt and New York: 2001). Conventionally dated to the 1120s, any
precise dating would require a new study of the formal sources. Matecki suggested, but in my opinion did not
proof, a use of the Panormia and the slightly later Collectio in ten parts.
61
Reinhardt, Ehelehre, 115-117.
15
Leviticus were limited to the relatives listed there.62 Burchard, in contrast, had quoted
Leviticus xviii, 6 (‘omnis homo …’) in a way that strongly suggested that the general ban on
kin marriages had a biblical foundation. For the theologians, it was common stock to assert
that kin marriage (never called ‘incest’) was allowed in Old Testament times but was now
forbidden.63 Only the Old Testament prohibitions are sometimes called ‘natural’ or ‘natural
law’; vice versa, kin marriage according to the Sententiae Anselmi was no violation of natural
law but of ecclesiastical statutes,64 an argument widely disseminated by Honorius
Augustodunensis. 65 The prohibitions going beyond those found in Leviticus were referred to
as newly established in Christian times (‘institutio temporis gratiae’),66 and more specifically
as ecclesiastical statutes.67 Some authors comment that many marriages are truly marriages,
but their validity was subject to change (‘nunc licere, nunc non licere’) both because of
changing laws and because of changing practices of dispensation.68 In any case, the difference
between Old Testament precept and later legislation is made very clear; rather than justifiying
contemporary legislation by biblical parallels, the theologians time and again stressed the
difference between both.
A similar observation can be made for the passage from the City of God discussed above.
Augustine’s model, so important for Peter Damian and the Panormia compiler, was indeed
widely known and discussed among the theologians, too.69 However, the latter came to very
different conclusions. In particular, they took up Augustine’s original argument that already
the divine precepts on kin marriage had been subject to change, and that human legislation,
whether secular or ecclesiastic, was both different from biblical incest prohibitons and itself
changable. Augustine’s model was thus not conflated with the discourse on incest as an
62
E.g. De nuptiis consanguineorum, after having quoted Lev. xviii, 6 (PL 158, 558): ‘Deinde ex sequenti
ordine proximos illos sanguinis, ad quos non sit accedendum nec revelanda eorum turpitudo.’
63
De nuptiis consanguineorum (PL 158, 558); Cum omnia sacramenta (ed. Bliemetzrieder, Anselm von
Laon, 141); In primis hominibus (ed. Matecki, Traktat, 13*); Liber Pancrisis (ed. Bliemetzrieder, ‘Paul
Fournier’, 76).
64
Sententiae Anselmi (ed. Bliemetzrieder, Anselm von Laon, 151): ‘Sacerdotium enim non videtur auferre
coniugium, cum Greci sacerdotes habeant uxores, sed ecclesie institutio et patrum prohibitio. Non enim esset
contra legem nature, sed contra precepta ecclesiastice institutionis. Sed violat legem benivolentie, que tendit ad
perfectionem ecclesie, sicut coniugium inter cognatos non est contra legem nature, sed contra precepta
institutionis ecclesie.’
65
Honorius Augustodunensis, Elucidarium ii, 16 (PL 176, 1146): ‘Discipulus: Est grave peccatum, ducere
cognatam? Magister: Secundum naturam, nullum, sed secundum statutum Ecclesiae magnum.’
66
In primis hominibus (ed. Matecki, Traktat, 13*).
67
Sententie magistri Petri Abelardi (ed. Luscombe, CCCM 14, 124): ‘[…] ecclesia […] constituit propter
propagationem caritatis’; for a full quotation, see below (note 70).
68
Liber Pancrisis (ed. Bliemetzrieder, ‘Paul Fournier’, 76): ‘Confiteri igitur debemus hec omnia esse
coniugia, sed secundum diversas ecclesie institutiones nunc licere, nunc non licere.’
69
De nuptiis consanguineorum (PL 158, 558); Liber Pancrisis (ed. Bliemetzrieder, ‘Paul Fournier’, 76);
Sententie magistri Petri Abelardi (ed. Luscombe, CCCM 14, 124). Augustine is quoted verbatim in In primis
hominibus (ed. Matecki, Traktat, 13*).
16
abomination, as it was in the canonical collections. Rather, it is linked to human, and not even
specifically Christian legislation. The vocabulary of purity and pollution is lacking in the
theological discussion, in the sententiae attributed to Peter Abelard at least, the Augustinian
argument is explicitely described as having been adopted by the Church from the Romans. 70
While this (quite correctly) highlights Augustine’s role in merging pagan and Christan
arguments, it is striking to see that no such connection is made between church law and Old
Testament precept. Whether adopting Roman law principles or issuing genuinely new laws,
the Church according the the early-twelfth century theologians was making laws that were
fundamentally different from the incest prohibitions in Leviticus.
Stressing the differences between rather than conflating biblical prohibitions, patristic
reasoning and current legal dogma, the theologians made quite clear theat most marriage
prohibitions were ecclesiastical statutes and thus subject to change. While pre-Gratian
canonists would certainly have agreed in general, they nonetheless compiled, used and spread
collections that at least in the case of incest conveyed a different picture. Collections like
Burchard’s Decretum made it extremly difficult to see that the marriage prohibitions were
changing legislation based on different legal concepts. Much of this was to become common
stock among canonists of the late twelfth and early thirteenth century, and Gratian’s Decretum
certainly was an important step in that direction.71 However, before the Gratians this line of
argument is found mainly with theologians. Thinking about the history of salvation, these
scholars were aware of the very historicity of canon law that was obscured in the most up-to-
date genre of canon law collections of their time.
Conclusions: A law that can and cannot change
As the analysis of the ‘two models of incest’ has shown, in the Middle Ages there were at
least two very different ways to talk about ecclesiastical prohibitions of kin marriage. For
both, venerable and well-known authorities were available, and the way medieval authors
followed one or the other (or combined both) was to a considerable degree a matter of choice.
70
Sententie magistri Petri Abelardi (ed. Luscombe, CCCM 14, 124): ‘Preceptum etiam erat eis ut
unusquisque de tribu sua uxorem duceret, ne tribus commiscerentur et ne transiret possessio unius tribus in
possessionem alterius, quia terra per tribus divisa erat. Nunc autem non licet, sed de aliena gente, quod ecclesia
(post Christum) constituit propter propagationem caritatis, quod a Romanis ecclesia accepit. Romani enim
quando amicitiam cum aliis civitatibus facere volebant, uxores ex eis ad confederationem amicitie ducebant.
Similiter ecclesia instituit ut non de sua sed de aliena prosapia uxorem quis ducat, quia non putavit hoc sufficere
ad dilatationem caritatis; quia per uxorem quam accipit totam illam progeniem diligit.’
71
See, above all, C. 35, q. 1, d.p.c. 1: Decretum magistri Gratiani, ed. E.L. Friedberg (Leipzig: 1879),
cols. 1262-1263.
17
This is all the more true as the same texts could be read in very different ways. Quotations
from Leviticus in the early Middle Ages served to justify the slowly expanding incest
prohibitions, but for the theologians of the early twelfth century showed how very different
biblical and human legislation was. Likewise, Augustine’s reasoning on exogamy for
centuries was not thought to have much to do with incest, but in the Panormia and other
twelfth-century collections it served to justify an excessive set of marriage prohibitions.
Again, the theologians read and quoted Augustine differently, paying much more attention to
his arguments on the changing nature of law and custom.
These and other examples helped to see the differences between early and high medieval
canon law, and also those between theological and canon law debates of the early twelfth
century. These differences have in my opinions relevance not simply for the change of dogma
or the growing distinction between canon law and theology. Indeed, despite all differences, it
is the interaction between these textual traditions that shed light on the canon law tradition
itself as a law ‘that can and cannot change’.72
After all, while canon law and theology grew further apart in the twelfth century, there was
also considerable interaction. Not only did theologians study the same authorities and use the
same textbooks as the canonists;73 it seems also plausible that there debates contributed to the
debates that ultimately allowed Innocent III to change the ecclesiastical rules on marriage so
dramatically in 1215, seemingly without causing much debate. At the present state of
research, the silence surrounding this decision, which made many ‘incestous’ unions perfectly
acceptable marriages, still calls for a satisfactory explanation. Had the pre-1215 rules relied
on a belief that all marriages within the prohibited degrees were incest, even contemplating
such a dramatic change would have seemed highly unlikely. While it is clear how campaigns
against ‘incest’ would often result in an expansion of the prohibited degrees, a ‘campaign for
incest’ seems unimaginable. However, the theologians helped to discuss these issues in
calmer terms and at the same time provided solid arguments why marriage prohibitions could
indeed change.
While this development cannot be studied in the context of the present article, it is clear
enough that the development of canon law ultimately was not restricted by the various efforts
to present the laws of marriage as unchangable. While some compilers clearly presented their
material in ways that made certain interpretations more likely than others, they rarely
72
The phrase is borrowed from J. T. Noonan, A church that can and cannot change: the development of
Catholic moral teaching Erasmus Institute books (Notre Dame, Ind.: 2005).
73
The Panormia was among the most important sources for the reception of patristic material among
twelfth-century theologians, see C. Munier, Les sources patristiques du droit de l'église du VIIIe au XIIIe siècle
(Mulhouse: 1957), 27-52.
18
envisioned and certainly never achieved a definite law code. Even the more selective
compilers confronted their readers with material that potentially challenged the legal status
quo, and had only limited control of how their collections were read, used, re-worked and
added by. Burchard and others in their collections had greatly reduced the divergence of
canonical marriage prohibitions, and glossed over the remaining discrepancies. However,
while thus reducing confusion resulting from the long process of expanding marriage
prohibitions, the new model also produced a new kind of confusion among readers who
looked beyond the collections and compared them to other texts – be it the the original
sources (Leviticus, Augustine) or some other canon law collection. Without too much effort,
any twelfth-century scholar could quickly find canons from various centuries banning quite
different degrees, divergent justifications for these prohibitions, very different trees of
consanguinity, and several ways how to calculate the prohibited degrees. He would certainly
find many authorities supporting the current legislation, but also many others; with some luck,
he could even find canon law collections containing texts allowing the marriage of first
cousins.74
Whatever the intentions of this or that compiler may have been, they all passed on traditions
much richer and more complex than any ‘tendency’ established by modern scholarship.
Conflict and confusion surrounding the medieval law on marriage posed, and continue to pose
problems to any reader of this material; and yet, it is precisely this confusion that is indicative
of the dynamic traditions of canon law.
74
See above (note 47) on the twelfth-century manuscripts London, BL Add. 8873 and Paris, Arsenal 713.
19
Christof Rolker