Between Christ and Caliph. Lev E. Weitz
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offered a formulation of chaste, procreative sexuality likely deriving from the synthesis of biblical, Stoic, and Aristotelian perspectives found in the writings of Clement of Alexandria (d. 215).19 In a nutshell, marriage for them was the divinely instituted, rational ordering of sexuality for procreative purposes that distinguished humans from non-rational animals. In Jacob of Serugh’s (d. 521) homily On Virginity, Fornication, and the Marriage of the Righteous, for example, sexuality outside the framework of procreative marriage is associated with subhuman, non-rational animals:
Anyone who remains in virginity is of the spiritual ones, and anyone who walks the path of the righteous [i.e., the married] is of the holy ones;
but anyone who descends to fornication is of the animals. Of the one [human] race there are three classes of people.
Among them are those who walk in virginity with the spiritual ones, in the path higher than worldly ways.
Others take the path of the righteous with marriage, the path pure of blame and censure.
Others descend to fornication, the wicked life, and resemble beasts and animals.20
Virginity is the highest degree of spiritual achievement to Jacob, but a rational sexuality within marriage, distinct from the random mating of animals, is still a mark of righteousness. The East Syrian patriarch Mar Aba (r. 540–52) gives a more definitive if less poetic expression of the same ideas. Mar Aba describes marriage as the institution “which God has established [sāmēh] for admirably administering the maintenance of our nature and the succession of our lineages [yubbālā d-sharbātan], not in the likeness of beast[s] lacking discernment [law ba-dmut bʿirā d-lā purshānā], but in an order that suits rational beings [b-ṭaksā d-ʿāhen la-mlilē].”21 Here we find the core elements—marriage as the ordered facilitator of the procreation of rational humans, as opposed to non-rational animals—of a characteristically late antique Christian conception of licit sexuality within the confines of the marital relationship.
LAW, MARRIAGE, AND RELIGION IN THE LATE ANTIQUE EMPIRES
The Roman Empire
The connection between sexuality and salvation spurred Christian thinkers in the empires of late antiquity to define the elements of Christian marriage—monogamy, indissolubility, and the restrained practice of sex. These ideas departed in several key respects from accepted norms in the Roman world, especially in their dramatic narrowing of the horizons of licit sexual practice. But in fact, Christian theology was only one of several normative orders that claimed the authority to govern the ancient institution of marriage and the domestic and familial relationships associated with it. These orders overlapped and interlinked in significant ways, but they remained distinct and Christian perspectives on sex and marriage never achieved absolute predominance within them. As a result, the reception of those perspectives by lay populations across the Roman Empire, as well as in Sasanian territory, was halting, uneven, and incomplete throughout late antiquity and into the medieval period.22
The most significant of the normative orders with which Christian thought interacted in this respect were the imperial and local traditions of civil law that governed the formation, maintenance, and dissolution of marriage as a legal institution.23 In the Roman Empire, this meant Roman law above all else, as well as its provincial iterations. An ancient and venerable imperial tradition, Roman law set the norms that governed relationships among persons, groups, and the state, in areas ranging from family law to property law to criminal law; it defined procedural rules for state organs; and it represented the will and authority of the emperor, his officials, and imperial institutions.24 In the area of the family, Roman law regulated the contracting of marriage, the transmission of property connected to it, and the other points at which citizens’ conjugal life intersected with the public arena.25 Indeed, Roman emperors had a long track record of legislative intervention in the affairs of Roman families and households (which, as elsewhere in the premodern world, were not necessarily coterminous because households often included slaves and other dependents in addition to biologically related family members). These legislative programs aimed to tie the citizenry to the imperium’s wider interests and ideological commitments. The trend began with Augustus at the turn of the millennium; it continued in Constantine’s highly novel legislation in the fourth century and, especially, Justinian’s massive legal codification project and Christian “moral activism” in the sixth.26 Significantly, however, Christian perspectives on sexuality were incorporated into Roman civil law only very partially, even as late antique emperors and jurists came to frame that law as divinely inspired and founded on Christian authority.27 Overall, Roman law continued to recognize as perfectly lawful many of the acts—chiefly divorce, remarriage, and men’s extramarital affairs with low-status women—that constituted unchaste, defiled sexuality in the Christian vision. Divorce is a particularly telling case. Constantine restricted the classical doctrine, which had allowed unilateral repudiation by either spouse without cause. His successors variously eased and reimposed restrictions; but all of this may have been motivated more by the need to regulate marital property exchanges than by Christian morals. Justinian, on the other hand, took the unprecedented step of prohibiting consensual divorce for two spouses who simply did not want to remain married, which was certainly a Christianizing reform in the context of his broader project of imperial regeneration. Yet this reform was so far outside the bounds of centuries’ worth of common practice that Justinian’s successor quickly rescinded the prohibition.28 Thus, across its tangled path of development and even in its partially restricted late antique form, the Roman legal doctrine of divorce never came close to the ecclesiastical ideal of indissolubility. From late antiquity into the medieval period, the Christian model of marriage continued to compete with old social mores encoded in or tacitly sanctioned by the civil legal structures of the Roman Empire.
Ecclesiastics had two principal tools to encourage laypeople to conform to their norms for conjugal conduct: “pastoral care and penitential discipline.”29 Persuasion and moral chastisement on the topic of sexuality became a central concern of late antique preaching for lay audiences, a trend perhaps best represented in the sermons of John Chrysostom (d. 407).30 More germane to our interests, penitential punishments for sexual transgressions were incorporated prominently into ecclesiastical or canon law, the legal tradition developed by Christian bishops to regulate matters particular to the church. From a very early date, Christian communities had been preserving treatises, pseudo-apostolic teachings, patristic epistles, and proceedings of church councils written in Latin, Greek, and Syriac that set down regulations for church affairs. By the fifth century, this body of texts had come to constitute a coherent legal tradition distinct from the law of the state.31 Representative works of ecclesiastical law range from early church orders like the Didache, a second-century text that regulated the duties of the ecclesiastical hierarchy and liturgical administration, to the proceedings of the Council of Nicaea and other ecumenical synods of the fourth and fifth centuries that defined orthodox dogma. While ecclesiastical law fundamentally concerned church affairs, it also included under its purview prescriptions of a broadly moral character directed to laypeople, particularly concerning sexuality. Lacking the same prerogatives of enforcement as imperial law, the ecclesiastical tradition usually sought to punish transgressors with exclusion from Christian rituals and communal participation. So, for example, the canonical letters of Basil of Caesarea (d. 378) prescribe exclusion from the Eucharist for fornication, among a number of other sexual offenses.32
Just as Christian moral teachings played a role in at least some of the later Roman emperors’ legislation, secular Roman law influenced the ecclesiastical tradition in significant ways. Justinian’s civil codification project was almost assuredly a major model of emulation for the ecclesiastical jurisprudents of the Greek east who began to produce newly systematized collections of canon law in the sixth century; in the late sixth or early seventh century, furthermore, canon lawyers incorporated pieces of Roman law relevant to church affairs into those collections, producing the joint ecclesiastical-civil legal compendia that scholars call nomocanons.33 But however much late antique Roman and ecclesiastical law overlapped, they ultimately claimed parallel jurisdictions with respect to the Roman family. When ecclesiastical law addressed itself to sexuality