Cambridge Ancient Hi.. - Index of

396 14. the family in the late roman world
bound to overlap and influence one another so closely that separate treatment
is often not so much arbitrary as impossible.
Laws are like signifiers with numerous signifieds; in other words, the
same law may respond to various needs, both moral and material. Naturally
there can also be laws motivated by purely ethical needs. This, at least,
seems to have been the case with Constantius II’s measures confirming the
ban on marriage between uncle and filia fratris sororisve (making it punishable
by death) or Theodosius I’s law prohibiting marriage between cousinsgerman.
12
The relationship between Christian ethics and the laws restricting
divorce must in any case have been very clear to the pagan Julian when he
re-established the former conditions. 13 And if, as some believe, the document
attesting Julian’s nostalgic measures should prove unreliable, paradoxically
this would actually enhance the value of the evidence, for it would
suggest that the pagan Julian was widely expected to repeal the divorce law
of the Christian Constantine. And it is surely no coincidence that Julian
should fully revive the Claudian senatus consultum, which Constantine had
modified in one important aspect. 14
The crucial issue in the debate on Christian influence is the divorce legislation.
According to one argument, the remoteness of divorce laws from
the evangelical principle of indissolubility is proof that the secular legislators
were deaf to the appeals of the church. Yet if Constantine’s restrictions
on divorce were distant from evangelical principle, they were even
further removed from the sensibilities of the vast majority of his subjects.
After all, he was the first to legislate against a practice that was taken for
granted not only by the whole of contemporary society but also in all the
societies of preceding ages. As in many other areas of his political activity
– and as often happens in ‘revolutionary’ situations – he intervened too vigorously
and too dramatically. And by doing so, he heavily conditioned the
future. For a long time to come, divorce was the most important and troubled
issue in the dialogue between human law and the evangelical message.
Among the many problems tackled in the late antique imperial constitutions,
perhaps none was the subject of so much rethinking, particularly in
such fundamental aspects as the identification of sufficient motives for unilateral
repudiation and the penalties for those who break the matrimonial
bond without just cause.
Though unmotivated repudiation was punished by imperial legislation,
this did not mean that a marriage broken without just cause remained valid
before the law. Continuity was also preserved by admitting consensual
divorce. For though the Council of Carthage of 407 had expressed the hope
12 C.Th. iii.12.1 (341); Epit. 48.10; Ambr. Ep. 60.8; see Shaw and Saller (1984) 440.
13 Mention of Julian promulgating such a law is given in the so-called Ambrosiaster: CSEL l.322.
14 C.Th. iv.12.5 (362).
Cambridge Histories Online © Cambridge University Press, 2008