19. On marriage and bigamy
Introduction tively, revelation of the law may well be necessary, particularly if some measure of inference or reasoning is required to know it naturally. As he puts it: "If some sin [of lust] could [only] be inferred to be against the law of nature, nevertheless to corrupt men it might not be known that their lusts were against the natural law. " And of these-as well as of the finer details of the natural law, he might have added-"one could concede that [they] are not known per se."
The text translated here is a revision of the Wadding edition based on Codices A and S.
19. On marriage and bigamy In dist. 33 of the fourth book of the Ordinatio, Scotus raises two questions that illustrate interesting cases where God seems to have dispensed the Jewish nation from two of the "natural laws" pertaining to the second table of the decalogue, namely, the prohibition of bigamy and divorce. "Was bigamy ever licit?" he asks, and "Was divorce licit under the Mosaic law?"
The questions are among the twenty-four Scotus devotes to discussing matrimony, both as a divine institution by God as the author of nature and as a grace-conferring sacrament reflecting the union of Christ with his mystical body, the Church. His initial question on the subject of marriage is whether matrimony was immediately instituted by God (Ord. IV, dist. 26). Let us consider the contents of this fundamental question for a moment before attempting to analyze these two questions on bigamy and divorce, for they are fully understandable only in light of what he considers an ideal marriage to be.
After a long discussion of the nature of marriage, its various aspects, its purpose in the plan of God, etc., he concludes as a theologian that it was immediately instituted by God primarily for the purpose of propagation of the human race and, from a supernatural viewpoint, for peopling the kingdom of God by the procreation and religious education of children. In the initial arguments pro and con, Scotus first cites the conventional arguments against this view, and one argument
(under the opposition) for the position he himself will eventually adopt. The argument he sees as most effective is the reply of Christ to the Pharisees as reported in the Gospel of Matthew (19:3-6). It may help to consider, for a moment, the context of the passage Scotus quotes.
Though bigamy was regarded as permissible from the very beginnings of the Jewish nation and was already practiced by the patriarchs
Abraham, Isaac, and Jacob, divorce was tolerated, but only as the lesser of two evils. When Babylon fell to the Persians under Cyrus II in
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539 B.C., the Jews who had been taken into exile after the destruction of Jerusalem in 587 by Nebuchadnezzar were allowed to return and rebuild the temple. Though the Jewish marriage laws frowned on mixed marriages with the natives of the area, many of the Jews divorced the "wife of their youth" to marry younger and more attractive foreigners.
The prophet Malachi refers to this practice and condemns it when he writes: "The Lord is witness between you and the wife of your youth, with whom you have broken faith, though she is your companion, your betrothed wife. Did he not make one being, with flesh and spirit: and what does that one require but godly offspring? You must then safeguard life that is your own and not break faith with the wife of your youth. For I hate divorce, says the Lord, the God oflsrael" (2: 1416).
Though this attempt to restore the indissolubility of the Jewish marriage bond ruled out divorce for frivolous reasons, it did not outlaw divorce as such. Neither did it overrule the earlier prohibitions of remarrying one's divorced wife mentioned in Deuteronomy 24:1-4:
"When a man, after marrying a woman and having relations with her, is later displeased with her because he finds in her something indecent, and therefore he writes out a bill of divorce and hands it to her, thus dismissing her from his house: if on leaving his house she goes and becomes the wife of another man, and the second husband, too, comes to dislike her and dismisses her from his house by handing her a written bill of divorce; or if this second man who has married her, dies; then her former husband who dismissed her, may not again take her as his wife after she has become defiled. " Though the law here deals only indirectly with divorce, its object being the prevention of reunion of the partners after separation, it acknowledges the custom, and its vague description of the grounds justifying it, viz., "displeasure with something indecent," became the source of heated controversy among the rabbis at the time of Christ. The school of Shammai permitted divorce only for adultery; the school of Rabbi Hillel, on the other hand, allowed divorce if the husband fell in love with another woman or for something as trivial as inferior cooking.
According to Matthew's Gospel (19:3-6) the Pharisees tried to force Christ to takes sides with Shammai or Hillel when they asked:
"Maya man divorce his wife for any reason whatever?" to which Christ replied-in the text cited by Scotus-"Have you not read that at the beginning the Creator made them male and female and declared, 'For this reason a man shall leave his father and mother and cling to his wife, and the two shall become as one'? Thus they are no longer two but one flesh. Therefore, let no man separate what God has joined."
Introduction Scotus sees Christ not only as restoring the pristine indissolubility of marriage, but primarily-in view of his question: Was marriage immediately instituted by God?-as reaffirming that marriage was an institution authored by the divine lawgiver himself, a fact confirmed by the texts of Genesis to which Christ, and earlier, the prophet Malachi, had referred.
What is the purpose of marriage? As a theologian, basing himself on what Scripture says, Scotus finds only two express purposes mentioned, one primary, the procreation and fitting education of children, reflected implicitly in the words "they are no longer two but one flesh," and more explicitly in the words of Genesis 1:27-28 "God created man in his image ... male and female ... blessed them, saying 'Be fertile and multiply; fill the earth and subdue it. '" The same notion is expressed in the citation from Malachi mentioned earlier: "Did he not make one being, with flesh and spirit: and what does that one require but godly offspring?"
Scotus' lengthy description of marriage reflecting this primary purpose is presented in the following five conclusions:
The first main conclusion: For the procreation of offspring to be educated fittingly it is honorable and upright for a man and a woman to be mutually joined together or bound by an indissoluble bond.
Second conclusion: It is honorable and upright that a man and woman mutually transfer the power of their bodies to serve one another for the procreation of offspring to be educated fittingly.
Third conclusion: It is appropriate that this mutual gift to one another be instituted and blessed by God, and so it was done.
Fourth conclusion: It is fitting that some grace-giving sacrament be annexed to the contract that seals this gift to one another, and so it was done.
Fifth conclusion: Several distinct elements concur in matrimony; just what are they?
He proves each of these from Scripture and from reason, applying the criteria he gave for actions that are both generically and specifically morally good, often with enlightening insights as to how such a relationship benefits not only the married partners and their children but the community in which they live as well. In explaining and proving the fifth conclusion he points out that marriage is a multifaceted affair. First of all, it involves above all a lifetime commitment or dedication of two persons to one another, which is not a transient but a permanent relationship abiding in the souls of the spouses. Secondly, it is initiated by a solemn bilateral contract in the presence of God.
Thirdly, in pronouncing their vows to each other, the partners administer to one another the grace-giving sacrament God has associated
The Moral Law in General with such a solemn mutual contract. Scotus views these three-the lifetime commitment, the initial contract or convenant, and the conferring of the sacrament-as distinct elements that make up the complex personal relationship called "matrimony" as God intended it to be. In the proper sense, sacrament is not only a sacred sign, but an efficacious one, in the sense that the sign not only signifies but confers grace. As such, "sacrament" is something instituted by Christ and given to the Church, his mystical body. That Christian marriage is a sacrament in this sense is something we know with certainty from tradition and the authority of the Church, says Scotus. For though it was instituted by God, marriage as characteristic of the age of innocence, or during the tenure of the Mosaic law, or even as portrayed by the New Testament Scriptures, is not evidently sacramental in the strict sense. Some of Scotus' colleagues, however, apparently appealed to Paul's letter to the Ephesians (5:32) to prove that it was. There the apostle cites the words of Genesis, commonly interpreted as indicative of the indissolubility of marriage as instituted by God, "A man shall leave father and mother and cling to his wife, and they shall be made into one," and then goes on to say: "This is a great sacrament: I mean it refers to Christ and the Church." But since "sacrament" in the proper sense is "an efficacious sign of grace," not just a "sacred sign," in Paul's analogy the love of a husband for his wife is sacramental only in this broader sense of a symbol of something sacred (i.e., of Christ's love for his Church). Hence Scotus argues:
Matrimony is not an efficacious sign in regard to union with Christ, but in a certain way we do have an efficacious sign of such a union; thus the vow of virginity can be an efficacious sign as regards such a union with Christ.
Scotus evidently refers to the common theological conception of the virginal life as a "spiritual marriage" with Christ (an interpretation of the "virgins who follow the Lamb" in Revelation 14:40) and the celibate life of a man for the sake of the kingdom as generating that special sort of personal union the apostles shared with Christ, which Jesus spoke so feelingly of at the Last Supper when he said: "I call you no longer servants, but friends" (John 15:15). Paul too had this motive in mind when he lauded the virginal and celibate life in his first letter to the Corinthians (7:33-34):
The unmarried man is busy with the Lord's affairs, concerned with pleasing the Lord; but the married man is busy with this world's demands and occupied with pleasing his wife. This means he is divided. The virgin-indeed, any unmarried woman-is concerned with things of the Lord, in pursuit of holiness in body and spirit. The married woman, on the other hand, has the cares of this world to absorb her and is concerned with pleasing her husband.
Introduction At the beginning of that same chapter, Scotus finds what he regards as the second main purpose Scripture gives for marriage, namely, to avoid immorality. This was something the theologians of his day commonly considered a consequence of man's fall from his original preternatural state, but which would also have existed had man been created in a purely natural state. In answer to questions the church of Corinth had raised, Paul began this chapter with advice that may have been influenced in part by his views on the second coming of Christ:
A man is better for having no relations with a woman, but to avoid immorality, every man should have his own wife and every woman her own husband. The husband should fulfill his conjugal obligations to his wife and the wife hers toward her husband. A wife does not belong to herself, but to her husband; equally a husband does not belong to himself but to his wife. Do not deprive one another, unless perhaps by mutual consent for a time, to devote yourselves to prayer; then return to one another that Satan may not tempt you through your lack of self-control. I say this by way of concession, not as a command. Given my preference, I should like you to be as myself [Le., celibate]. Still, each one has his own gift from God, one this and another that.
To those not married and to widows I have this to say: It would be well if they remain as they are, even as I do myself, but if they cannot exercise selfcontrol, they should marry. It is better to marry than to be on fire. To those not married, however, I give this command (though it is not mine, it is the Lord's): a wife must not separate from her husband. If she does separate, she must either remain single or become reconciled to him again. Similarly, a husband must not divorce his wife.
There are obviously other values in a successful and happy marriage that contemporary theologians and Christians concerned with the high rate of divorce and broken marriages today are quick to point out-those they see implicit, for example, in the second account of creation in Genesis 2: 18: "It is not good for the man to be alone; I will make a suitable partner for him." And creating an ideal marital relationship is not an easy nor a part-time thing. Hence, Deuteronomy
2:24 wisely set down the command: "When a man is newly wed, he need not go out on a military expedition, nor shall any public duty be imposed on him. He shall be exempt for one year for the sake of his family, to bring joy to the wife he has married." Neither is a year sufficient to cement a successful marriage; it is something that needs ongoing, if not continual, attention.
Scotus was not oblivious to these values or to the difficulty of achieving a satisfactory marriage, as is obvious from other obiter dicta throughout his writings. In explaining the expression in Genesis 2:24
"he will cling to his wife," for instance, he makes this point. "Clinging" refers to true and mutual love, rooted not just in the senses but in
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the will, and it is clear that God made such love a condition for matrimony as he originally instituted it. (See Ord. IV, dist. 29; Codex A, f. 250vb: "He will cling"-he said-"to his wife" [Gen 2:24], that is, to cling to someone through love. And it is thus clear that God established mutual will and mutual love and consent as the conditions for matrimony, and it is also clear that he instituted [the sacrament].")
Scotus also recognized the difficult nature of the mutual obligations persons take upon themselves in entering the married state. Thus he argues God made marriage a sacrament with special graces, something he does not do for the complete consecration of one's person and life to God as a religious, because he believes marriage makes even more demands on a person than the religious life such as he himself lived.
(See Ord. IV, dist. 26; Codex A, f. 249ra: "Because of the difficulty of the marriage contract, in that it gives rise to an extremely difficult obligation, it is fitting that there be joined to it the conferral of grace.
This conferral is established because of the multitude of miseries and infirmities in the midst of which the couple are bound to serve one another until death. Indeed, to the extent that this is true, marriage is more difficult than the religious life.") Scotus clearly saw marriage as "a school in unselfishness" in terms of what it requires to successfully raise and care for a family.
However, in attempting to explain the apparent Scriptural justification of bigamy and divorce in the Old Testament, he simplistically limits his consideration-possibly to better illustrate the principle he believes justifies dispensation from certain aspects of natural law in the secondary sense-to the two main purposes he sees for the institution of marriage, viz., (I) the creation of a family through the procreation and fitting education of children and (2) the natural need of men and women living and working together as man and wife to find adequate sexual satisfaction and comfort in one another if extramarital sins are to be avoided.
What he says about God dispensing from the natural law of monogamy for the patriarchs of the Old Testament and why Moses permitted divorce to avoid greater evils is interesting as exemplary of how moral decisions might be reached through rational analysis where a conflict of values is involved. This is not simply "value clarification" as this term is understood today, for he believed the mind of man was capable of arriving at a rational and not just an emotional evaluation of what is morally good and morally bad. However, if such objective clarification can be reached, as he obviously thought it could (see selection 10), then any proper and reasonable response to a polyvalued situation where some values must be sacrificed to save others must be guided by IWhat is implicit in the following principle:
Introduction When there are two reasons why something is ordered, one the principal purpose, the other a less important end, it is reasonable to make use of such in a manner that favors the chief end, even if this militates to some extent against the less important purpose.
What he illustrates here with respect to the two distinct purposes of different values he believes marriage to have could be applied, mutatis mutandis, to other polyvalued situations where a choice must be made at the cost of some sacrifice, or where one is forced to choose the lesser of two evils in the sense explained earlier (selection 4).
Let us tum then to the question of bigamy. The question Scotus raises is phrased in two ways: "So far as the Mosaic law or the law of nature is concerned, was bigamy ever licit, or were the patriarchs of old allowed to have several wives joined in the bonds of matrimony?"
After citing from the Old Testament the particular cases that would seem to illustrate either a negative or positive answer, he proceeds in the body of the question to discuss what justice requires in the exchange of marital vows. Since matrimony, as he understands it, is initiated with a contract between two individuals in which there is an exchange of bodily procreative powers, it is commutative justice he speaks of. This involves an equitable exchange of something in fulfillment of a contractual obligation. As he explained earlier, in selection
15, "in commutative justice, some require quantitative equality, not only proportional equity." If this be applied to one's procreative ability, which, biologically speaking, is a purely animal function, it is clear in the human species at least, as in many other animal species, that the male could be iaid to have a greater procreative power than the female if quantity be measured only in terms of the time required to produce a child. If the primary purpose for which God created male and female was that the human race might "be fertile and multiply; fill the earth and subdue it," as Genesis I :28 seems to imply, then it would follow-Scotus argued-that, if the human race were in danger of dying out, or if there were some special need that "members of the human race needed to be multiplied either in an unqualified sense or in regard to divine cult, since there were few who worshiped God, it was necessary that those who did so, beget as much as they could, since only in their progeny would faith and divine worship continue to exist." Considered solely under this aspect, then, bigamy would not seem to be contrary to nature. Whether children could be as fittingly educated under such circumstances, or the mutual love demanded of the partners for a successful marriage could be preserved, is another question. However, what he says of inequality or "commutative injustice" -if you will-in regard to the secondary value exchanged,
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could also be applied to these other values of a monogamous marriage.
Because there is definitely no equal exchange as regards the second, ary purpose of marriage cited by St. Paul, something Scotus argued
"held good for the state of fallen nature," when Adam and Eve's pro, geny no longer enjoyed the supernatural and preternatural gifts their parents originally possessed that gave them perfect control over their animal instincts, such bigamous marriages were certainly not ideal, nor were they what God originally had in mind. Nevertheless, if women freely choose to enter into such unions for the sake of having children of their own, then, Scotus believed, they could reasonably do so, provided another condition was present, namely, that it was clear
God had dispensed from what the natural law demanded.
The reason for this is that God as the author of human nature is also the only one authorized to dispense with precepts that pertain to the law of nature only in a secondary sense. We noted earlier that certain aspects of natural law in the extended sense might also be considered as positive divine laws in an extended sense, and if this be so, then though what such laws concern may be the sort of actions that are naturally good, in the sense of being "exceedingly in harmony" with natural law in the primary and proper sense, the reason that such ac, tions become morally good or morally bad, in the last analysis, is that God has commanded or forbidden them respectively.
Hence, though there may have been no need for a divine dispensa, tion so far as the primary purpose of marriage was concerned, such a dispensation is required-Scotus insists-where the married partners cannot do justice to the secondary purpose, since this too is part of the complete nature of the marital state as instituted by God.
Hence, in answering the initial argument for the negative view, Scotus reiterates his previous thesis regarding natural law and God's power to dispense with it.
Something is said to be of the natural law in two ways, viz., first, what is simply a practical truth known by the natural light of reason alone. Here a practical principle known from its terms represents the strongest form of such a law of nature, only second to which are those conclusions demonstrated from such primary principles. What pertains secondarily to the law of nature, however, is anything that as a general rule is in harmony with a law of nature in the previous sense. There is no dispensation as regards the first class, and therefore anything opposed to such would always seem to be a mortal sin. But for the secondary type, dispensation occurs in a situation where the opposite seems to be generally more in harmony with the primary law of nature. And it is just in this secondary sense of natural that monogamy pertains to the law of nature and bigamy is opposed to such, and hence I concede the validity of the proofs [cited in the initial argument]. But from this it does not follow that