Cambridge Ancient Hi.. - Index of

christianity and laws on the family 397
that a lex imperialis would be promulgated against second marriages, 15 consensual
divorce was a custom evidently taken for granted by a very high
number of citizens (by pagans and Christians alike, including that broad
frontier region linking and separating the two religions). It was Justinian who
first declared the illegality of consensual divorce, except where chastity vows
were involved. He also established the few causes justifying repudiation. The
husband could divorce if his wife failed to inform him of a conspiracy
against the emperor; if she made an attempt against her husband’s life or
failed to disclose plots schemed by others against him; if she committed
adultery or behaved indecently in public. The wife could divorce if her
husband conspired against the emperor or failed to disclose to her the plots
of others; if he made an attempt against his wife’s life or failed to disclose
plots by others against her; if he falsely accused her of adultery; if he
attempted to induce her to prostitution; if he brought another woman to live
in the marital house or if he repeatedly frequented the house of another
woman. 16 Once again, therefore, the law was aiming to constrain social
habits, thereby creating a wide margin for disobedience. The inevitable result
was that Justinian’s immediate successor, Justin II, was obliged to resurrect
the principle according to which the foundation of marriage was mutual
affection and to re-establish legitimacy of consensual divorce. 17
The uneven, syncopated development of the divorce legislation from
the fourth to the sixth century perfectly expresses that tangle of concordances
and discordances involving Christian doctrine, the conciliar canons,
papal decretals, imperial legislation and social behaviour at large. The late
antique emperors had no handy corpus of canon law to serve as a basis for
reference. Though some of the local councils, notably that of Elvira, did
emanate norms on sexuality, marriage and the family, and did establish
appropriate religious sanctions for transgressors, their resolutions on
specific points were often different, in spite of basic agreement on general
orientation. 18 And as for the opinions of the church Fathers, again there
were significant differences even on key issues, such as the consequences
of the wife’s adultery on the permanence of the bond. 19 Finally, since
church legislation inflicted penalties on priests who blessed unlawful marriages,
we deduce that such unions were not uncommon.
And when it came to actually imposing religious sanctions on the faithful,
the bishops often availed themselves of their considerable discretionary
powers, departing from the strict letter of the law to meet the needs of
individuals. In celebrating the figure of Fabiola, a Roman noblewoman
who had died in an aura of sanctity, Jerome could not help recollecting a
youthful sin: she had left her first husband, whose dissolute life disgusted
15 CCSL cil.218. 16 Just. Nov. 117.8–10 (542). 17 Justin, Nov. 140 (566). 18 Bagnall (1987) 50.
19 In general, Crouzel (1971); for the long duration of the doctrinal uncertainties on the nature of
the marriage bond, Gaudemet (1970) and (1978b).
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