20. Divorce and the Mosaic law
Introduction in a special case the opposite could not be licit, or even in some cases necessary. In such a case, however, there would be justice on the part of the parties entering marriage as well as in regard to what they gave to each other, for right reason would dictate that their contractual exchange take place in a different way, and in addition the divine precept to enter such a contract would also be there.
He even suggests that bigamy could become licit again if war, pestilence, or some other calamity threatened the existence of the human race, leaving a majority of women and a minority of men, "if one considers only precise justice on the part of the contract and contracting parties." In such a case, "all that would be wanting for complete justice would be divine approbation, which perhaps would then occur and be revealed in a special way to the Church."
In view of what was said earlier (I, 5) about God revealing himself through nature and about the ability of right reason to determine what his positive will is, one could raise several questions in this connection. On the one hand, nuclear war could conceivably be the sort of war that might decimate the human race, but whether it would leave the survivors with a significant disproportionate number of one sex or the other is questionable. On the other hand, some parts of the world are threatened with overpopulation. What happens when the primary purpose Scotus saw for marriage in his day no longer exists? In such a case, does God will that all live a celibate life, or is not some form of natural family planning necessary? Here the secondary purposes of marriage, man's need for comfort and companionship, the need to love and be loved, etc., would seem to justify a different rational approach to marriage.
But let us turn to the next question.
20. Divorce and the Mosaic law The second question Scotus raises in regard to marriage is whether divorce was licit or not under the Mosaic law. Though Scotus will fall back on the same basic principle he used for bigamy to solve this question, he obviously regarded bigamy and divorce as basically different violations of the natural law in regard to marriage. A bigamous partnership was still a marriage that preserved the primary purpose of that institution, and hence could be regarded as something good, even though it might be less than ideal and not as good as a monogamous marriage might be. Furthermore, for a bigamous marriage to be fully just, it was necessary that God should actually dispense from the naturallaw in the secondary sense, inasmuch as it prescribed monogamy.
Scotus considered divorce, however, to be an unmitigated evil and surely a shattering experience for the wife in question. It could only be
The Moral Law in General
justified inasmuch as it was the lesser of two evils, and he believed it was only for that reason that God, by way of dispensation, permitted a man to divorce his wife.
Though Deuteronomy 22: I3ff took some steps to protect the rights of a woman from sexual abuse, there is little question that according to Jewish law, she was not regarded legally as the equal of man. For while a man could divorce his wife, strictly speaking no provision was made for a woman divorcing a man who was unfaithful. Both he and his paramour were to be stoned if she was married, but if she was a virgin whom he took by force, he had to pay a fine to her father and take her to wife, with no option of divorce. Scotus obviously considered Christ's restoration of the indissolubility of marriage a step in the direction of correcting what was patent sexual discrimination, condoned by so much of the pre-Christian world.
As to the question itself, Scotus comes to no categorical decision.
Did God actually dispense the Jews from the indissolubility of marriage and permit them licitly to divorce their wives? He presents two views current among theologians in his day, one denying that divorce was ever licit, the other asserting that God did permit it, but only to avoid the greater evil of uxoricide. And though the way Scotus sets up the initial arguments and the rational defense he makes for the second view obviously indicates he prefers the latter, he seems to have attributed only probability to this view at best. And in answering the arguments for the view that divorce, even with a written bill of dismissal, was illicit, he admits:
I concede that the delay which writing the bill entailed does suggest that God was displeased with this dismissal; and that it was not merely that it would be better not to dissolve the marriage, but that it was bad to do so, but not so bad that one would sin gravely against marriage in the way one would if this were not licensed by law.
And having made a strong case for the second view, which he seems to prefer, he still admits one could reasonably hold the first view, that divorce of any sort is "still mortally sinful" and was "allowed only to prevent an even graver mortal sin happening," and he concludes with showing how-on such a view-"one could easily reply to the arguments against it."
The Latin source of this and the preceding question is Codex A, ff.
2S3rb-ssra.
2 I. Positive law and civil authority Unlike Aquinas, Scotus never commented on Aristotle's Politics, nor did he write any significant political tracts like Ockham. The
Introduction present question from dist. 15 of the Ordinatio IV (q. 2) and the parallel account in the report of his Paris lectures on this distinction (qq.
2-4) contain the most extensive statement of his "political and economic philosophy," even though these questions are not concerned ex professo with such, but with something pertaining to the sacrament of penance or reconciliation. "Is everyone who has unjustly taken or kept some property belonging to another obliged to make restitution to obtain absolution?" To answer this question Scotus felt it necessary to first discuss two preliminary questions. How can an individual person justly acquire private property to begin with? and secondly, once it is acquired, how can it be transferred to another? It is these two articles that are treated in the present selection, the first in its entirety, the second only briefly.
A word as to why Scotus thought he had to explain the origin of distinct ownership. It was commonly held that in the state of original justice, just as among the early Christians described in the Acts of the Apostles 4:32, "none of them ever claimed anything as his ownj rather, everything was held in common." The Franciscans, because of their profession of poverty, were much in sympathy with this view, and Scotus cites the Decrees of Gratian in support of it (Decretum Gratiani cum gloss is [Parisiis, 1542], I, dist. 8, ff. 8va-9raj see also PL 187, 43, and also the authority from Augustine on which Gratian bases this opinion). If this be so, we can understand Scotus' initial question:
I ask: What is the source of distinct ownership such that this may be called "mine" and that "yours"? For all injustice through misappropriation derives from this as well as all justice through restitution.
He presents his solution in the form of six conclusions, the fifth of which sums up his theory of the origin of civil authority. Brief as that conclusion is, C. R. S. Harris (1937) considered what Scotus had to say there socially significant enough to write:
Scotus is important in the history of political science as one of the pioneers of modem social theory. His doctrines bear a strong resemblance to the later teachings of Locke. Scotus' account of the social contract is a philosophic analysis of the origin of society. Society, he held, was naturally organized into family groups; but when paternal authority was unable to enforce order, political authority was constituted by the people. Accordingly all political authority is derived from the consent of the governed.
In the sixth and last conclusion, Scotus shows how, once society was organized and invested with patriarchal or political authority, positive laws could be passed that would permit the common property of the human race to be divided up among individuals.