I. Reply to the question
WAS DIVORCE LICIT UNDER THE MOSAIC LAW?
dismissed illicitly. So it follows that if divorce was licit under the Mosaic Law, there was no marriage under the Mosaic Law.
71 Also, it was never licit for a woman to divorce her husband; therefore, neither was the converse ever licit. For a man and a woman are to be judged as equals in matters that pertain to marriage.
I. Reply to the question A. The first view 72 One view on this topic4 is that it was illicit under the Mosaic Law to divorce one's wife.5
73 This is proved, first, by the authority of Christ, who rejects divorce in Matthew 19:9:
"I say to you that whoever dismisses his wife, except because of fornication, commits adultery; and one who marries her commits adultery."
74 It is also proved by the argument that Christ offered on his own account, which is this: from the beginning God joined male and female in marriage. He proves this from Adam's words and adds, "What therefore God has joined together, let not a human being separate."6
75 It is also proved, third, on the basis of Christ's reply to the Pharisees' question: "For when they objected, 'Why then did Moses command that one give a bill of divorce and dismiss her?' he said to them, 'Because Moses, having regard to the hardness of your hearts, permitted you to dismiss your wives; but from the beginning it was not so.'"7 The interlinear Gloss comments on "Moses permitted": "not God."8 And the Gloss says that "this was a human plan, not a divine command."9 And the Master says in this distinction, chapter 2,10 that this was permitted by Moses, "not to make room for divorce, but to prevent murder."
76 Also, Augustine says in On the Lord's Sermon on the Mount [I.14.39], "The one who commanded that a bill of divorce be given did not command this so that the wife
4 Both this view and the arguments given for it in nn. 73–7 are relayed by Richard Middleton,
Sent. IV d. 33 princ. 3 q. 1 in corp. and ad 1. Richard also relays the second view (n. 78) but says that the first view is "more common and better-established (securior)." Supporters of the first view include
William of Auxerre, Summa IV tr. 17 a. 1 in corp.; Bonaventure, Sent. IV d. 33 a. 3 q. 2 arg. 1 in opp. and in corp.; Thomas Aquinas, Sent. IV d. 33 q. 2 a. 2 qc. 2 ad 5; Peter of Tarentaise, Sent. IV d. 33 q. 3 a. 1 in corp.
5 The edition, following A alone, adds, "and that someone who married a divorced woman sinned mortally because he approached an unclean woman, since evidently she was divorced only because she was unclean. Yet that sin was not punished under the Law. Rather, it was permitted in order to forestall murder, so that men would not kill their wives. And thus this lesser evil was permitted in the Law in order to avoid a greater evil."
6 Matthew 19:4–6.
7 Matthew 19:7–8.
8 Glossa interlin. Matthew 19:8.
9 Glossa ordin. Matthew 19:8.
10 So Richard Middleton gives the reference, but it is actually Lombard, Sent. IV d. 33 c. 3.
ORDINATIO IV, D. , Q.
would be dismissed; rather, he says, 'Let the one who would dismiss her give her a bill of divorce' so that the thought of writing the bill would moderate the rash anger of the one who wanted to dismiss his wife." This can be understood from something that Ambrose commanded the emperor Theodosius concerning a certain atrocity carried out impetuously at his command.11 Ambrose instructed the emperor to make it a law that no minister of his should carry out his cruel commands within thirty days, so that perhaps during that time his anger would abate and he would moderate his judgment. For this same reason Plato, as Jerome tells us, told someone, "I would punish you if I were not angry."12 And Augustine adds, in the passage quoted earlier,
"The one who sought a delay in dismissing a wife showed—so far as he could show it to hardhearted human beings—that he did not want divorce."13
Also, Decretals, "On divorces," Gaudemus: "In the Gospel, Truth rejected divorcing one's wife."14
B. The second view
1. EXPOSITION OF THE VIEW
Another view15 says that the giving of a bill of divorce and divorcing one's wife were licit in the time of the Law of Moses, because Moses proclaimed the Law of God. And so those whom he joined together as lawgiver and proclaimed [to be married], God also joined together; and those whom he separated, God also separated. Moreover,
God can separate those who are joined in marriage.
Also, in his first letter to Jerome (cited in the Decretum, distinction 9),16 Augustine asks, "If any serviceable lies17 were allowed into the Holy Scriptures, what authority would remain in them?"—in effect giving the answer, "None." And the reason is that whatever authority one might appeal to in order to refute a heretic, he will reply that it is a humorous18 lie, just like that other passage [that is acknowledged to be a lie].
Therefore, by analogy, [if any explicit command in Scripture lacks prescriptive authority,] no command in Scripture will have any authority.19
And reasoning in a very similar way about very similar matters, if any counsel given in Scripture were not salutary and useful to observe, no counsel given in Scripture
11 The story is told in Cassiodorus, Historia tripartita IX c. 30.
12 Jerome, In Ioelem 1, 5, attributes to Plato's friend Archytas of Taranto the statement, "I would kill you if I were not angry."
13 De sermone Domini in monte I.14.39.
14 Gregory IX, Decretales V tit. 19 c. 8.
15 Albert the Great, Sent. IV d. 33 a. 25.
16 Augustine, Epist. 40.3.3 (to Jerome).
17 For the threefold division of lies into serviceable (officiosum), harmful (perniciosum), and humorous
(iocosum), see Ord. III d. 38 q. un.
18 The edition adds "or serviceable" (A).
19 Reading igitur, a simili, in Scriptura nulla auctoritas praescriptiva auctoritatem habebit (Q, with which PZN agree in essentials) for the edition's ergo, a simili, si in Scriptura aliqua non habeat, nulla auctoritate praeceptiva in Scriptura auctoritatem habebit (A). The editors instruct us to supply haereticus as the subject for habeat.
WAS DIVORCE LICIT UNDER THE MOSAIC LAW?
would be authoritative. Therefore, by analogy, if Scripture makes a concession to something illicit—for example, this concession [of divorce]—it follows that no concession given in Scripture will show authoritatively that what is conceded is licit.20
81 Also, a just law should not directly give an occasion for sinning mortally. But clearly this concession was directly an occasion for the Jews to dismiss their wives; for if that had not been written, they would not have dismissed their wives any more than the patriarchs before the Law of Moses did. Therefore, either [dismissing one's wife] was not a mortal sin or the Law was not just.
2. EXAMINATION OF THE VIEW
82 A possibly tenable version of this view is as follows: there is no complete justice in this exchange or in the marriage contract apart from divine ratification, even if, before such ratification, what suffices for justice on the part of the exchange and of the ones making the exchange is present; and whenever such justice can be found in an exchange, it is reasonable that God ought to ratify it. Now the exchange of the body of one man for the bodies of many women is just, when such an exchange is necessary for the procreation of offspring, and so God justly made a dispensation in favor of plural marriage—indeed, he approved it—on the grounds that a greater good would come from plural marriage than from the exchange of one woman for one man; and those making the exchange ought, in accordance with right reason, to have willed such an exchange. In the same way, in the case at hand, God was able to give a dispensation for making a marriage contract that was limited as to time—until a woman should be displeasing to her husband—in order to avoid an evil that is greater than the indissolubility of marriage is a good.
83 And in a certain way justice is preserved in this, because the contracting parties ought to will such an exchange not only for the sake of attaining a greater good but also for the sake of avoiding a greater evil. Now uxoricide is a greater evil (malum) than the good of indissolubility, since uxoricide is a harm (malum poenae) to the murdered wife and a grave wrongdoing (malum culpae) on the part of the one who murders her. It would also be an evil to the commonwealth as a whole because it would be an occasion of perpetual disharmony and strife on account of the anger of the wife's parents against her killer. And families would be constantly torn apart, since after the man is killed either by his adversaries or by the law, that family and the children's upbringing would be destroyed.
20 The edition, following A alone, adds, "For as a concession is to what is licit, so a command is to what must be done, and an exhortation or counsel is to what is useful. For just as a command does not concern something that need not be done, so also a concession does not concern something that cannot be done licitly."
ORDINATIO IV, D. , Q.
So accordingly one could say that just as God gave a dispensation for plural marriage for the sake of a greater good, so also he gave that people a dispensation for divorce for the sake of avoiding a greater evil.21
C. Replies to the arguments for the first view
And then one could respond to the arguments offered for the first view [nn. 73–7] that Christ proclaimed this for the time of his Law, the Law of the Gospel. Thus, just as he restored marriage to the way it had been instituted in the natural law (namely, that it should be of one man with one woman, though plural marriage was licit under the Mosaic Law), he also restored unqualifiedly perfect marriage (that is, indissoluble marriage) by his Law as it had been instituted in the natural law. Thus by his Law he invalidates the marriage contract that was licit under the Mosaic Law, which was a temporary arrangement for the procreation of children, lasting until the woman should become displeasing in the eyes of her husband—in just the same way that Christ voided many other imperfections that were licit under Moses by restoring to perfection the things in his Law that were going to be preserved.22
As for the proof drawn from the words of Christ [n. 75], it is clear that he was speaking of the natural law. And it was sufficient to refute the Pharisees to show that they did not sufficiently observe marriage as it was in the natural law. He also showed that it was reasonable for him to establish inseparability in his Law, because this was consonant with the original institution of marriage in the natural law.
As for the further point drawn from Christ's reply to the Pharisees, "God permitted this because of the hardness of your hearts," which many23 consider to have been
21 The edition, following A alone, adds:
And on this basis it can be said that, since the good wine of marriage is indissolubility and permanent obligation, no marriage among the Jews was perfect, since their marriage contracts were always conditional, given the [possibility of] a bill of divorce. But this good—the indissoluble union—exists in marriage under the New Law; and beyond that is a further good, the signification of the union of Christ and his Church, which is a union of one with one. Now in marriage under the natural law (say, in the case of Abraham) there was the first perfection or good, namely indissolubility, but not the second, that of having only one wife. Under the Mosaic Law, by contrast, when there was divorce and one man had more than one wife, neither perfection of marriage existed, since it was not a union of one with one and it was not unqualifiedly indissoluble; but this was done by divine dispensation.
22 The edition, following A alone, adds:
And therefore, ever since the Gospel was proclaimed, it has been damnable to have more than one wife or to dismiss one and marry another; but it was not damnable before then.
That is what those who uphold this view would say.
And therefore from that time forward, according to this view, the Jews have been bound not to have two wives, but only one, and not to be separated in any way from that one wife.
23 Peter Lombard, Sent. IV d. 33 c. 3; William of Auxerre, Summa tr. 17 q. 4 c. 4 a. 1 in corp.;
Bonaventure, Sent. IV d. 33 a. 3 q. 1 ad 3, q. 2 in corp.; Thomas Aquinas, Sent. IV d. 33 q. 2 a. 2 qc. 2 in corp.; Peter of Tarentaise, Sent. IV d. 33 q. 3 a. 1 in corp.; and others.
WAS DIVORCE LICIT UNDER THE MOSAIC LAW?
only permission, not concession, I say that by 'permitted' Christ meant24 that Moses did not command this, or even advise or approve it, but that he did not prohibit it, as something licit in view of a certain necessity. And this is not a deceptive permission of something illicit—for that would be equivalent to saying that Moses permitted them to go to their own damnation by not disclosing to them that this was a path to damnation but in fact insinuating the opposite, which no lawgiver can do justly, even in the case of human laws, which leave many evils unpunished, according to Augustine in On Free Choice of the Will I.6.14. And if a lawgiver does not punish every evil, and permits an evil in the sense that he does not punish it, he nevertheless does not in any way concede that evil in his law. Hence, a human law that prescribed anything contrary to that law would be unjust.
90 As for the additional claim that this was "because of the hardness of your hearts"
[n. 75], that doesn't show that it was illicit. For the hardness of those subject to a law is frequently a cause for some relaxation of the law for them, though the law would not be relaxed otherwise and—if only they were tractable—it would be useful for the law not to be relaxed. For example, suppose a prelate sees that his college is prone to x, whereas it would be honorable to practice the opposite of x. Even if it would be useful for the prelate to establish the opposite of x as a law if those subject to him were easily led, nonetheless, he can very well refrain from establishing it; or, if it has already been established, he can very well relax the law, and honorably so, so that they will not sin again and again with that requirement remaining in force.
91 As for those glosses:
The first should evidently be denied, because Moses as lawgiver was strictly God's mouthpiece. But someone who wants to expound them can say "It was Moses who permitted; it was not God who did so by giving a commandment directly to Moses among the other commandments." Hence, we never find in the first four books that God gave this commandment to Moses or to anyone else; hence, this is more strictly from Moses, like all the other things that are in Deuteronomy and nowhere else, than are the things that God said elsewhere to Moses. And this is a suitable reason: these relaxations pertain to human effort, and as such God did not will to include them in Scripture as things uttered by himself, but rather25 by his servants. For the same reason God did not immediately and through himself say that Moses, who sat all day long to judge the people, should be relieved of his work; instead, Jethro, Moses's kinsman, said this, as something pertaining to human effort.26
92 As for the other gloss, it is easy to see that it does not contradict this view. For it is true that God didn't command anyone to dismiss his wife; rather, he commanded
24 Reading dico quod Christus 'permisit' intelligit quod (PZNQ) for the edition's dico quod Christus permisit, per quod intelligit quod (A).
25 Reading sed (NQ) for the edition's sicut (APZ).
26 Cf. Exodus 18:13–27.