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

One of Charles Reid's purposes in this book is to reclaim for a religious view of marriage the tradition of speaking of marriage and family relations in terms of rights: to show that this language dates from the Middle Ages and was understood within a natural law tradition rather than dating from the Enlightenment and being antireligious. One need not agree with his positive evaluation of the doctrine or his implicit prescription for the ills of marriage today to appreciate his historical analysis of medieval canon law itself and how it influenced subsequent Western legal traditions. As the church moved in the central Middle Ages to a consensual system of marriage (where the consent of the individual parties rather than their families made marriage valid and where indeed it was consent itself, rather than consummation, that created the marriage), churchmen needed to work out the details on the basis of law and theology, which were not at that time entirely separate disciplines. The meat of the book is an analysis of how medieval lawyers, in particular Bernard of Parma (ca. 1200–1266), Innocent IV (ca. 1200–1254), and Hostiensis (ca. 1200–1271), accomplished this synthesis.

The first major chapter focuses on the right and freedom of persons to contract marriage. Reid rightly stresses that this right, in opposition to the demands of the family, was an important innovation. It may not have been very commonly exercised in practice; church court cases, as studied, for example, for England by Richard Helmholz and Shannon McSheffrey, show that women especially commonly deferred to their parents' or father's wishes. And choice was generally constrained by issues of social and economic standing. Nevertheless, the church did uphold the importance of consent in several important cases, and even as a matter of principle rather than case law it was revolutionary that parents no longer had to agree to their children's marriage. Reid also points out that the church upheld not only the right of children not to be coerced into a marriage by their parents or serfs by their lord but also their right to choose to marry over the disapproval of their parents and the right of lepers and deaf-mutes to marry. Marriage came to be a basic right. Furthermore, the church recognized that because of their socially dependent status, the fact that they typically married younger than men, as well as their supposed weaker nature, women were more easily coerced and therefore needed more protection from coercion. The conclusions Reid reaches here are not novel, but he presents the developments in lucid detail.

This is largely an internalist history of the law, and Reid does not address the larger social context that might answer the question of why the church upheld the principle of consent. An anthropologist like Jack Goody, who argued that the indissolubility of marriage was intended at least in part to maximize the chance that a failure of heirs would bring inheritance to the church, might wonder, Cui bono? While there was no financial advantage to be gained by the church from supporting the principle of consent, the principle did help underpin the church's claim to be the sole authority over marriage. If families were the essential makers of marriage, then marriage was an essentially dynastic matter to be regulated by the secular law. If marriage was part of church law, it had to be based on a different concept of union, and individual consent as part of the sacrament filled the bill. But these thinkers pushed the matter to its further conclusion: a clandestine marriage, one formed by the...