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2
Indissolubility
(a) From the Roman Empire to the Carolingian Empire
Causes and e·ects
A potential cause may be neutralized for centuries by other social
forces. If they are weakened, the cause is activated. One argument
developed below is that Augustinian marriage symbolism’s tendency
to promote indissolubility was unlikely to take e·ect while
so many of the clergy could identify with the sexually active lay
male.
Then again, ideas may lie dormant for a long time, until influential
persons infuse them with intensity and power. This began to
happen when intellectuals at the proto-university of Paris revitalized
Augustinian marriage symbolism. More decisive still was Innocent
III’s determination to turn symbolism into social fact.The
degree to which he succeeded will be discussed, and I shall argue
that Church tribunals did not make a mockery out of indissolubility
after his time, as they had arguably done often in the twelfth
century. So far as law can control life, Innocent and the symbolism
behind his thinking left a deep mark on the social practice
of marriage. Establishing that proposition will involve analysis of
some comments by a great canonist (Hostiensis) that seem to show
the opposite; analysis also of the meaning of the large class of ‘precontract’
cases in the church courts. The latter show that indissolubility
overrode other considerations, including rules about marriage
in church where they obtained. Indissolubility could furthermore
be enforced by excommunication at the deserted spouse’s request.
Thus indissolubility had become a constraint on social behaviour.
It limited or channelled sexual and emotional freedom to an extent
unparalleled in most societies. The character of the constraint
should not be misunderstood. In two important respects it did
coexist with freedom. Legal separation was an option: sometimes