Marriage and Family (Prof. Harper)

In a series of homilies delivered around 400 C.E., John Chrysostom lectured his flock on the foundations of Christian marriage (John Chrysostom, Propter fornicationes, De libello repudii, and Quales ducendae sint uxores. PG 51: 207–242. On Chrysostom’s preaching, see Allen and Mayer 1993 and now Maxwell 2006, esp. 157–161).

In Chrysostom’s vision, Christian matrimony was to be characterized by two distinguishing norms: firm opposition to divorce or remarriage and a single standard of sexual behavior for men and women (see Gaudemet 1980, 122). Marriage should be a “sharing of life,” rather than a business transaction, he asserted in resonant words (John Chrysostom, Quales ducendae sint uxores, 3. PG 51: 230). He exploited anxieties about unequal marriages and parodied the man who sought a rich wife by gambling his entire wealth on a nuptial gift, like a merchant overloading his ship and putting his whole fortune at risk (John Chrysostom, Quales ducendae sint uxores, 4. PG 51: 232. See Anné 1941, 271–272). For Chrysostom, the betrothal process—the jostling of the lawyers and the maneuvering of the matchmakers—was ultimate proof that contemporary marriage was a material rather than spiritual affair.

Like many Christian authors of Late Antiquity, John Chrysostom conjured a deliberately negative image of marriage when it suited his rhetorical purposes. It is worth noting, though, the earnest sense within these sermons of the distance between Christian norms and the realities of marriage in the late empire. There was no hint in these lectures that the Roman state might be an instrument for Christianizing social practices (see Mayer 2005, 256). Indeed, modern scholarship on the late ancient family has shown that Christian influence did not deeply affect Roman family law, particularly on the issues closest to Chrysostom’s heart: indissolubility and sexual exclusivity.

1. The late Roman family inherited its basic form from the high empire. Affective monogamy was a strong cultural force, but family life was inevitably structured by the needs of a high-mortality, high-fertility society. Late Roman law, following social practice, tended to recognize the nuclear family unit in the rules governing marriage, guardianship, and succession. Christianity reinforced these tendencies and introduced two distinctive norms, articulated precisely by Chrysostom: the doctrine of indissolubility and the ideal of sexually exclusive marriage.
2. The Historiographical Tradition

Finding a universal definition of the family is not simple (Saller and Kertzer 1991, 1–19). An inclusive working definition might describe the family as the social form through which the two deeply related processes of biological reproduction and the transmission of property are pursued. The language of family life in Roman antiquity is revealing. Familia connoted the legal, proprietary group under the power of a pater familias, including biological descendants and slaves; more broadly it referred to the whole agnatic descent group. Yet domus, “household,” was the more common, idiomatic word (Saller 1984, 336–355; Shaw 1987, 10–19; Saller 1994, 74–101; McGinn 1999, 627; Hillner 2003). Domus made reference to the focal point of matrimonial, biological, and proprietary bonds, including the slaves; slaves were an elemental part of the Greco-Roman family, in Late Antiquity, too (Bradley 1991; Wallace-Hadrill 1991). In Greek, oikos and oikia were the normal expressions for the family (Patterson 1998, 1–2; Pomeroy 1994, 214; Alston 2005, 130). The ubiquity of slavery, the ravages of death, and the residence of extended relatives made the Roman family a complex organism, but undoubtedly the conjugal bond and the parent-child relationship were at its core (Shaw 1987, 50).

Lots of studies have been done on the Roman family (Hallett 1984; Saller and Shaw 1984; Rawson 1986; Bradley 1991; Rawson 1991; Treggiari 1991a; Dixon 1992; Saller 1994; Rawson and Weaver 1997; Saller and Shaw 1984. See also Martin 1996; Saller 1994; Hopkins 1966. Shaw 1984; 1987; Bagnall and Frier 1994; Scheidel 2001a). These studies demonstrated that Roman society was powerfully mobilized for fertility, with a low age at marriage for females (mid to high teens, a decade later for men) and universal marriage (See Scheidel 2001b).

For more new studies see: Neri 1998; McGinn 1998; 2004; George 2005.

Within the venerable debate over Christian influence, a revisionist consensus of the late Roman family began to emerge in the 1980s among scholars who argued strongly against Christian influence (Shaw and Saller 1984; Sargenti 1938 and Gaudemet 1980). Goody 1983 argued for a rather different sort of Christian influence, contending that the Church widened incest prohibitions and constricted the strategies of heirship available to a testator. Shaw demonstrated that the patristic sources could be read against the grain for what they reveal about the realities of the late Roman family (Shaw 1987). Evans Grubbs, in a meticulous case study of Constantine’s family law, showed that the social legislation of the first Christian emperor was conservative and status-conscious, rather than inspired by religious conviction (Evans Grubbs 1995). Arjava demonstrated that late Roman family law is more convincingly explained as a ratification of long-standing trends rather than a radical Christian departure (Arjava 1996). Above all, the monumental work of Beaucamp on women in Late Antiquity, rooted in legal and papyrological evidence, dismantled any easy, linear narrative of Christianization and highlighted the overriding influence of a continued, and perhaps even more strongly inflected, patriarchy (Beaucamp 1990–1992).

ROMAN FAMILY LAW FROM CONSTANTINE TO JUSTINIAN

In the classical period, the Roman family was legally defined by patria potestas, the power held by the eldest male ascendant over all of his slaves and direct descendants (Arjava 1998). This power continued even after the children reached adulthood, and it could be severed only by emancipation or death. Yet the mortality regime of the ancient Mediterranean meant that relatively few adults had a living father ( Saller 1986, 7–22; 1987, 21–34). Emancipation was not rare, especially in Late Antiquity: Arjava 2001, 42. In the imperial age, the Romans married sine manu, meaning that a married woman remained in the legal power of her father rather than her husband (Treggiari 1991b, 32–36). Cooper 2009, 195–196, notes that this gave women a better position in Roman law than in the succeeding barbarian law codes of the West. Women married at a significantly younger age than men, so it was common for a girl’s first marriage to be arranged by her parents. But after her emancipation or her father’s death, an adult woman was legally independent, a status that many wives in the Roman empire must have enjoyed (Arjava 1996, 41–42).

The position of women was also strengthened by the Roman practice of partible inheritance; daughters played a major role in the devolution of property. Moreover, the Romans practiced dotal marriage (with a dowry), so that the woman brought at least part of her share with her into marriage (Gardner 1986, 97–116; Treggiari 1991a, 323–364). Roman law strictly prohibited the transmission of property between living spouses (Gade 2001). All of a woman’s property remained technically separate from her husband’s goods, so that on divorce or death, it was returned to her or her family. Yet the Romans enjoyed considerable testamentary powers, which allowed individuals to dispose of their property as they wished (Champlin 1991). Marriage was a relationship formed causa procreandorum liberorum; it required no formal ceremony or property exchanges. It required only marital intent from the parties to the marriage, consent from all those who were a party to the marriage (including the patres familias), and legal capacity to marry (age, degrees of separation, status, and citizenship) (Treggiari 1991a, 37–80).

Children also gained residual inheritance rights from their maternal grandfather, even if their mother was dead (CTh 5.1.4 (389) and CTh 5.1.5 (402)). Already in the imperial period, men might make engagement gifts for the sake of contracting a marriage (Dig. 39.5.1.1; Arjava 1996, 55). Grooms’ gifts were apparently more common in the eastern empire.

The Roman family was surrounded by death, and it would be hard to overestimate the significance of the guardianship of minors in ancient society (Saller 1997, 28–33; 1991, 37). In the classical period, a minor who lost his or her father received a legal guardian, a tutor (Crook 1967, 113–118). The tutor could be appointed by the father in his will (Dig. 26.2.1). In the fourth century, the guardianship of widows over their children was legally recognized but only if no agnatic relatives existed; later enactments specified that she had to remain unmarried to enjoy the role CTh 3.17.4 (390), which assumes that female guardianship already exists. Beaucamp 1990, 46–47, 325–330.

Augustus allowed women who gave birth to three children—not unusual given the fertility patterns of the Roman population—the ius liberorum, enabling them to act without a tutor (Gaius, Inst., 1.145). Beaucamp demonstrated that women acting without a tutor were widows, while only husbands acted as tutors (Beaucamp 1992, 193–267). Divorce marks the ultimate test of late Roman legislation on the family, for it sits at the crossroads of the moral, social, and economic aspects of marriage (Bagnall 1987; Arjava 1988; and Memmer 2000). In 331, Constantine overturned the system of unilateral divorce (CTh 3.16.1 (331)). He issued a law restricting the grounds for divorce to the most heinous crimes. Namely, murder, concocting poisons, and violating tombs. If a woman repudiated her husband for any other cause, she not only lost her dowry but was also deported. If a man repudiated his wife without just cause (limited to a restricted class of offenses but including adultery), he had to return the dowry and remain unmarried. If he took a second wife, his first wife could make a claim against the dowry of the second wife. Constantine abolished a woman’s ability to divorce her husband, while making it inconvenient for a man who wished to remarry to seek a divorce (Evans Grubbs 1995, 228–232). Ambrosiaster, who complained that Julian’s law had allowed women to divorce their husbands “freely” and “constantly” (Ambrosiaster, Quaestiones veteris et novi testamenti, 115.12).

The question of Christian influence on late Roman law has been a dominant theme in the study of the late Roman family. Influence can be construed in different ways. At times, scholars have looked for the Christian—Hosius or Ambrose—whispering into the emperor’s ear (Gaudemet 1980, 119–120). Sargenti 1975 suggests that Ablabius was behind the social legislation of Constantine during the later part of his reign; Evans Grubbs 1995, 134 (with further citations for Hosius’ influence) and 253–260 (where she allows some Christian influence on the divorce law of Constantine and the abolition of the penalties for celibacy). For Ambrose, e.g., Watson 1995. More generally, Christian ideology, in favor of a strong or indissoluble conjugal bond, is detected behind trends in lawmaking (E.g., Anné 1941, 127–135, 456–460; Wolff 1950. Gaudemet 1962; Reynolds 1994, 64). But the thesis of Christian influence has been profoundly undermined. Often, the differences between “pre-Christian” habits and Christian ideology have been overstated (Evans Grubbs 1995, 54–102). The patterns of legal development disprove any neat, linear theory of change; in many cases, Christian doctrine was too formless to be suspected of having influence, or the correspondence between law and doctrine was so weak that influence is doubtful (Gaudemet 1980, 123: “c’est l’époque où le dogme s’affirme et se precise.” Krause 1994–1995, vol. 1, 171–181). Divorce is a prime example. Divorce was discouraged in preChristian society, the pattern of legislation throws into doubt the suspicion that Christianity was the driving force of change, only around 400 was a consensus Christian view of divorce consolidated, and none of the legal enactments, before Justinian’s law of 542, closely reflects Christian teaching (Bagnall 1987, 41–61. For the development of a Christian doctrine of divorce, see esp. Reynolds 1994, 173–226. For pre-Christian attitudes, see Arjava 1988, 6–7).

The conversion of Constantine and the proscription of paganism under Theodosius I catalyzed a process through which Christianity became the dominant religion in the empire (MacMullen 1984). An immediate challenge is that the surviving literature overstates the importance of asceticism in late Roman society (Jacobs and Krawiec 2003, 257–263). Moreover, Christian authors writing in favor of marriage were often writing against ascetic extremism, so that even the tracts written “on the good of marriage” offer a rather stilted perspective (Hunter 1989; Clark 1986). Christianity absorbed the structural elements of Greco-Roman marriage, based on monogamous (which, in its strict, socially-imposed form, was distinctly Greco-Roman rather than Jewish) unions for the purpose of legitimate procreation. On the continued existence of polygamy in Roman-era Judaism, see:

Scheidel 2009; Williams 2005; Satlow 2001, 188–192; Ilan 1996, 85–288. Augustine, for instance, recognized that monogamy was a distinctly Roman custom. Augustine, De bono conjugali, 7.7. Ed. J. Zycha, CSEL 41 (Vienna, 1900) 197: et tamen non licet, et nostris temporibus ac more Romano nec superducere, ut amplius habeat quam unam vivam. CJ 1.9.7 (393): Nemo iudaeorum morem suum in coniunctionibus retinebit nec iuxta legem suam nuptias sortiatur nec in diversa sub uno tempore coniugia conveniat.

The doctrine of indissolubility that prevailed in late Roman Christianity held that a marriage was the joining of two into one flesh (Gaudemet 1980, 230–289). This view entailed strong opposition to both divorce and remarriage, even in the case of a spouse’s death (Humbert 1972, 301–345). Into the fifth century, there remained disagreement about Christian justifications for divorce (the “Matthean Exceptions”) and the capacity of men and women to remarry after a divorce (Reynolds 1994, 173–226). In parts of the empire, even a man who legitimately divorced his wife on the grounds of fornication was punished with excommunication if he remarried while his spouse was alive (Reynolds 1994, 213–226. See Augustine, De adulterinis coniugiis, 2.16.16. Ed. J. Zycha, CSEL 41 (Vienna, 1900) 401–402). The most distinctive element of Christian marriage was its insistence on sexual exclusivity from both spouses. The Greeks and Romans were monogamous—men married and created children through one legitimate wife ( Betzig 1992a; 1992b). Female chastity was enforced in the name of ensuring patrimonial legitimacy (E.g., Asterius of Amasea, Sermones, 5.11.2. Ed. Datema, 51).

Concubinage:

While men were viciously punished for violating free women, they were permitted to use dishonored women—prostitutes, concubines, and slaves—as sexual partners. Public law reinforced the system by protecting the sexual honor of respectable women and exposing dishonored women to the remainder of male desire (Cohen 1991. McGinn 1998, passim). Married men also enjoyed sexual freedom with slaves and prostitutes, since adultery was determined by the status of the woman involved (Treggiari 1991a, 279–280). Flagrant excess was poor form, but hardly damnable (Horace, Sermones, 1.2. Ed. O. Keller and A. Holder, 1: 14–15). Prostitution, concubinage, and slavery played distinct, complementary roles in this sexual economy. Prostitution was an accepted institution in the ancient city, regulated and taxed by the Roman authorities (Procopius of Gaza, In imperatorem Anastasium panegyricus, 13. PG 87c:2812–2813. See McGinn 1998, 273). The prostitute was defined, legally, as a sexually available woman (Dig. 23.2.43.1–3). The prostitute was the public woman. The sexual use of slaves, on the other hand, was an act of private power; masters enjoyed complete access to the bodies of their slaves, and sexual exploitation was simply a presumptive aspect of the master-slave relationship (Finley 1998, 163). Augustine imagined that prostitution existed, in effect, as an alternative for those who could not afford private sexual objects (Augustine, De civitate Dei, 2.20).

It played a demographically important role, allowing men to enjoy temporary sexual partnerships in the years before marriage or after the death of a wife, especially if an heir existed. Concubinage was thus more open, less casual than mere sex with household slaves, but the distinction was slippery. The lines between prostitution, concubinage, and slavery could be vague because they played such similar roles in the social landscape of ancient sexuality (Jerome, Epistulae, 69.5. Ed. I. Hilberg, CSEL 54, 688. Gregory of Nyssa, In canticum canticorum, 15.6.8. Ed. H. Langerbeck, 6: 462–463. Asterius of Antioch, Commentarii in Psalmos, 11.9. Ed. M. Richard (Oslo, 1956) 80. Augustine, Epistulae, 259.3. Ed. A. Goldbacher, CSEL 57, 612–613. Augustine Sermones, 224.3. PL 38: 1095. Salvian of Marseilles, De gubernatione Dei, 4.5. Ed. C. Halm, MGHAA 1, 40). In fact, the deeply gendered basis of the term explains Paul’s relative silence on the sexual rules regarding women—the sexual limits on women were beyond obvious. The Christian leadership of the late empire found little trouble explaining the need for women to enter marriage as virgins and then to remain faithful to their husbands, but the notion that men were not allowed sexual access to dishonored women was radically unfamiliar (Clark 1991. See Beaucamp 1990, 17–21).

Pre-Christian sexual standards urged men to exhibit moderation or selfcontrol in their sexual behavior, but such ideals were compatible with the exploitation of dishonored women before and even during marriage (Brown 1988, 5–32. Foucault 1986. Gaca 2003). The Romans condemn only stuprum and adulterium, letting lust run wild through whorehouses and slave girls, as though social status makes an offense, and not sexual desire (Jerome, Epistulae, 77.3).

THE MATERIAL CONTEXT OF FAMILY LIFE

Statistics of life expectancy and marriage length:

The two dominant parameters of a population’s structure are mortality and fertility (Scheidel 2001b, 13). In ancient societies, mortality and fertility were high and relatively stable, although mortality could vary (Scheidel 2001a). The Roman empire was characterized by a severe mortality regime. Infant mortality rates were grievously high, in the range of 25 to 35 percent (Bagnall and Frier 1994, 32–36; Scheidel 2001b, 22–23). The commemoration of deceased infants was rare outside of Christian milieux; public documents did not bother to record those of age one year or less, even in the late empire (Shaw 1984; Harper 2008, 108–109). Life expectancy at birth for women probably fell between twenty and twenty-five years, and life expectancy at age ten between 34.5 and 37.5 years (Bagnall and Frier 1994, 84–90). The average marriage lasted twelve years (Shaw 2002, 29; Bagnall and Frier 1994, 123). “Perhaps as many as one in every six marriages would be ended by death within two years of marriage, and approximately one in every four marriages was ended by death after only five years of matrimony” (Shaw 2002, 231). When Christian bishops warned young women that as brides they might soon exchange their white wedding gowns for the black mourner’s robes, it was a morbidly real possibility (Gregory of Nyssa, De virginitate, 3.7. Ed. M. Aubineau, SC 119, 290–292). Age at first marriage varied, particularly by class, but most women married by their late teens, and marriage was effectively universal (Shaw 1987, 30–46; Saller 1991, 25–41; Bagnall and Frier 1994, 153–155). The woman who survived to fifty would have given birth to nearly six children (Bagnall and Frier 1994, 138–139).

There was a very low incidence of fertility control in the Roman empire, although moderate rates of remarriage depressed the fertility of older women (Bagnall and Frier 1994; Frier 2006, 18). Child exposure was not uncommon and provided a means of family limitation; the practice would have raised infant mortality rates but also represented an important passage into slavery (Harris 1994; Bagnall 1997).
Augustine could claim, in a calm, expository sermon delivered to the middling urban classes of Hippo, that “nearly all households” included slaves, and the corroborating evidence for extensive household slavery is vast (Augustine, Enarrationes in psalmos, 124.7. Ed. E. Dekkers and J. Fraipont, CC 40, 1840–1841; Bagnall 1993). Even in the “poor” household, “the man rules his wife, the wife rules the slaves, the slaves rule their own wives, and again the men and women rule the children”. The papyri of the high empire show that slavery may have touched up to one-sixth of urban households in a region not at the forefront of the slave system (Bagnall and Frier 1994, 70). Yet, by the sixth century, household slavery appears increasingly restricted to the very wealthiest strata of society (See Fikhman 1973; 1974; 1997; Bagnall 1993; Beaucamp 1992, 58). Rural slavery, too, was far from moribund in the fourth century (Finley 1998, Whittaker 1987).