Cambridge Ancient Hi.. - Index of

400 14. the family in the late roman world
Though late antiquity produced an extraordinary mass of laws, culminating
in Justinian’s formidable attempt at reducing them to order, what it
did not do was to create a new juridical doctrine of marriage. 26 A large
obstacle lying in the way of the authorities’ efforts in this direction was the
persistence of the ideas of marriage as consensual, along with a weak formalization
of the wedding itself. The exchange of premarital gifts, the
dowry, the signing of the tabulae nuptiales bearing a list of the bride’s dowry
and property clauses in the event of divorce, the religious ritual and the
family festivities were all moments of social significance and by no means
devoid of juridical implications. But they were not indispensable to the
conclusion of a matrimonium iustum. 27 Informal marriages, such as were
widely contracted among the poorer classes, were indistinguishable from
concubinage, which made it difficult to stamp out practices such as bigamy,
unjust breaking of the bond and adultery, and hence to establish the legitimacy
of children with any certainty.
Increasing attention, therefore, was paid by both powers to the constitutive
phases of the bond: betrothal and the wedding ceremony. As regards
betrothal, imperial legislation inflicted economic penalties on defaulters, a
measure that had the effect of making the promise of marriage more
binding. At the same time, Christian preachers tried to endow the moment
with a moral significance not unlike that of matrimony itself. This is well
illustrated by the case of St Macrina, who proclaimed herself a widow after
the death of her fiancé and refused to accept another man as husband. 28
Though her behaviour could be construed as a cunning ploy to avoid marriage,
her justification does suggest that a new perception of betrothal was
making slow inroads into contemporary culture. While for obvious biological
reasons the minimum age for marriage remained generally stable (fourteen
for the bridegroom, twelve for the bride), that of betrothal was
lowered considerably. The Isaurian Code of 741 set the lower age-limit at
seven years for both sexes, prescribing also the consent, or absence of
dissent, of the two parties. In practice, however, such early betrothals and
binding promises effectively reinforced parental control and emptied the
notion of consent of all meaning, making it merely a tool for furthering
matrimonial strategies. 29
The wedding ceremony was the only moment in the couple’s married life
when the church exerted a solemn, public role. Even if matrimony was not
yet a sacrament in the modern sense, various factors helped to establish the
priest’s elevated moral authority over the bond: the Christianization of the
ancient pagan ritual, the blessing and, later, the matrimonial mass itself
26 Wolff (1950). In the late antique period, the tendency to consider the various aspects of family legislation
as distinct and separate fields persisted, and nothing comparable to a ‘family law’ emerged. For
a different view, see Volterra (1967) 724. 27 Treggiari (1991) ch. 5.
28 Greg. Nyss. Vita Macrinae 4–5; see Giannarelli (1980) 40f. 29 Ecloga 2.1; Patlagean (1973).
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