Two models of incest: conflict and confusion in high medieval discourse on kinship and marriage

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As I argue, in the Middle Ages the prohibited degrees (the ban on kin marriage) were sometimes talked about in a language of purity and pollution, but sometimes in rather "cool" terms without any reference to such charged terms as incest,
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  1 T WO MODELS OF INCEST : C ONFLICT AND CONFUSION IN HIGHMEDIEVAL DISCOURSE ON KINSHIP AND MARRIAGE   Christof Rolker  Jesus Christ ordered every Christian Not to marry his kinYou cannot take kin to within the forth degreeOtherwise it will be buggery. 1  These lines from Yde et Olive , a thirteenth-century chanson de geste , manifestly refer to thecanonical marriage prohibitions as formulated by the fourth Lateran council in 1215. 2 At thesame time, there are striking differences between the chanson and the synodal decrees. Whilein Yde et Olive the prohibited degrees are described as being instituted by Christ himself, andthus as immutable divine legislation, the Lateran council famously argued that in reducing the prohibited degrees from seven to four it was simply changing ‘human legislation’ (  statutahumana ), adjusting it to changing needs of society; violation of these laws was not ‘buggery’, but according to papal practice could be dealt with by dispensation.These differences point at the well-known paradoxes surrounding the medieval marriage prohibitions. On the one hand, transgressing them was to commit incest – one of the mosthorrible crimes possible, as both secular and clerical authors asserted. On the other hand, somany marriages violated at least one of the numerous prohibitions that one cannot help butthinking that such marriages were socially acceptable. Likewise, the rhetorics of divine lawand God’s wrath is in stark contrast to the cool negotiations over dispensations of all kind. For  Abbreviations: C  .  J  . = Codex Justiniani ; CCCM = Corpus Christianorum, Continuatio Medievalis; CCSL =Corpus Christianorum, Series Latina; PG = Patrologia Graeca; PL = Patrologia Latina. 1 Esclarmonde, Clarisse et Florent, Yde et Olive: drei Fortsetzungen der Chanson von Huon de Bordeaux , ed. M. Schweigel, Ausgaben und Abhandlungen aus dem Gebiete der romanischen Philologie 83(Marburg: 1889), lines 6448-6451: ‘Tous crestïens Jesucris commanda / Ca son parage ne se mariast pas / Tu nele pues avoir dusques en qart, / U autrement bougrenie sera.’ The translation is that of Darron Burrows, asquoted in D. Watt, ‘Behaving like a man? Incest, lesbian desire, and gender play in Yde et Olive and itsadaptations’, Comparatitve Literature 50 (1998), 265-285, 268. 2    Decrees of the ecumenical councils , ed. and tr. N. P. Tanner, 2 vols. (London: 1990), vol. 1, 257-258.  2the modern reader at least, it is also puzzeling to see that there was a legal category thatencompassed such diverse elements as father/daughter incest, the abduction of nuns andmarriages between third cousins twice removed.In the present paper, I will address these paradoxes by looking at two very dissimilar branchesof the medieval discourse on endogamy and exogamy, and more specifically at different justifications of marriage prohibitions as found in systematic canon law collections of theeleventh and twelfth centuries. At this time, the prohibitions had grown to their most extremeform. Banning inter alia marriages within the seventh degree in canonical computation, thelaw as contained in these collections was excessive compared to any ancient or modernmarriage law, and even compared to early medieval canon law or indeed canon law after 1215.As already indicated, I will concentrate on two important, but very different traditions tospeak about marriages among relatives. The first is the view of kin marriage as incest and thusas an abomination, as a violation of divine precept; the other tradition is a discourse on theadvantages of exogamy, as articulated perhaps most famously in St Augustine’s City of God  .Although both traditions can be and have been used to justifiy the same legislation, I want tostress how very different they were, before looking at the effects produced by the conflationof both traditions in the eleventh and early twelfth centuries. As I want to argue, thesystematic collections produced a new reading of the old texts by presenting them in adifferent way, both changing the law and presenting it as unchangable. Finally, I want toargue that nonetheless there were contemporary approaches that using very similar sourcesdevelopped models that did not justify the legal  status quo but rather questioned it. Purity and pollution: incest as an abomination Let us first concentrate on the heated discourse on incest as an abomination that played such a prominent role in medieval marriage law as well as in literary imagination. 3 For this branch of the medieval discourse on the marriage prohibitions, the biblical ban on incest is of course of  paramount importance. In Leviticus xviii, sexual relations with a small number of relatives(including a few in-laws) are condemned as an abomination by God himself. As is repeatedly 3 For the latter, see E. Archibald,  Incest and the medieval imagination (Oxford: 2001). For canon law, seeJ. A. Brundage,  Law, sex and Christian society in medieval Europe (Chicago and London: 1987), ch. 5; M. deJong, ‘An unsolved riddle: early medieval incest legislation’,  Franks and Alamanni in the Merovingian period:an ethnographic perspective , ed. I. Wood, Studies in historical archaeoethnology 3 (Woodbridge: 1998), 107-140; M. H. Gelting, ‘Marriage, peace and the canonical incest prohibitions: making sense of an absurdity?’,  Nordic perspectives on medieval canon law , ed. M. Korpiola, Publications of Matthias Calonius Society 2(Helsinki: 1999), 93-124 and most recently K. Ubl,  Inzestverbot und Gesetzgebung: Die Konstruktion einesVerbrechens (300 - 1100) , Millenium-Studien 20 (Berlin: 2009).  3 pointed out, the incest prohibitions mark the difference between the chosen people and theheathen (Lev. xviii, 3, 21, 27-28), and indeed incest is linked to blasphemy (Lev. xviii, 20). Atthe same time, incest is prohibited in the same context and also in the same language as anumber of other sexual offences including sex with a menstruating woman, sodomy and bestiality. The marriage prohibitions as contained in Leviticus are thus incest prohibitions;transgression of this law is clearly a sexual offence, a violation of divine order, and a threat to purity.From a medieval perspective, a second source for the discourse on incest as a abominationwas Roman law. While there are of course important differences to the Old Testament prohibitions, let alone medieval legislation, the relevant legislation was cast in similarlystrong language. Incest for the Romans was a violation of divine order ( nefas ). 4 Although therelevant laws were apparently rarely applied, and kin marriages contracted in good faith weredealt with rather lightly, 5 the high tone of these laws should not be underestimated. The ex-tension of the term incestum to the unchastity of a Vestal is important evidence that suchunions were regarded as sacrilege. In this context, it is also important to note that incest was part and parcel of ‘othering’; just as in Leviticus the prohibited acts are attributed to theEgyptians, there are both Greek and Roman traditions to associate incest with various‘barbarians’. 6 Literary sources are likewise indicative for the horror surrounding sexualunions between close relatives; divine punishment or at least a violent death of some form isthe usual fate of the perpetrator in incest stories like that of Apollonius of Tyre that remained popular throughout the Middle Ages. 7  Concerning the question of which unions were actually called incest, these authorities differedsubstantially. Nonetheless, they form a fairly uniform discourse in the sense that it is moreabout sex than marriage and that incest is always seen as a violation of divine order, not justhuman law. It is this language we find most commonly in the early medieval legislation onthe prohibited degrees. From the sixth century onwards, the councils directly refer toLeviticus to justify marriage prohibitions; 8 at the second council of Toledo (527/531)interpreted Leviticus xviii, 6 (‘omnis homo ad proximam sanguinis sui non accedat ut revelet 4 P. Moreau,  Incestus et prohibitae nuptiae: conception romaine de l’inceste et histoire des prohibitionsmatrimoniales pour cause de parenté dans la Rome antique , Collection d’études anciennes. Série latine 62(Paris: 2002), 29-105, esp. 43-52. 5 J. F. Gardner, Women in Roman law and society (London: 1986), 125-127. 6 Brundage,  Law, sex and Christian society , 14; Moreau,  Incestus , 88-90. 7 Archibald,  Incest  ; C. Kiening, ‘Familienroman und Heilsgeschichte’,  Die Familie in der Gesellschaft des Mittelalters , ed. K.-H. Spieß, Vorträge und Forschungen 71 (Ostfildern: 2009), 51-76. 8 R. Weigand, ‘Die Ausdehnung der Ehehindernisse der Verwandschaft’,  Zeitschrift der Savigny-Stiftung  für Rechtsgeschichte, kanonistische Abteilung  111 (1994), 1-17, 2-3.  4turpitudinem eius’) in such a way that it justified marriage prohibitions to ‘all’ kin. 9 Moregenerally, the early medieval councils employ a language of purity and pollution whendealing with the prohibited degrees. 10 This is also true for the early medieval penitentials,where sexual contacts between relatives are treated in the context of sexual sins and other  polluting acts. In canon law, the term incestus was applied not only to the unions betweenrelatives (whether by blood or by marriage) but also to other sexual offences, namely sex between godparent and godchild and intercourse with consecrated virgins. This all stronglyindicates that in these sources, the disourse on marriage prohibitions was actually more aboutsex than marriage, and also highlights the spiritual dimension. Transgressing these boundarieswas threatened with divine punishment, as both conciliar acts and hagiography show.One may still legitimately ask, how much of this is due to ‘genuine’ fear of incest or howmuch of this is ‘propaganda’. In any case, it is remarkable that the early medieval incestdiscourse itself is fairly consistent as both old and new prohibitions are talked about in termsof purity and pollution. Even if not expressing ‘genuine fear’, this vocabulary was certainlyapt to inspire such fears, and this may not only have helped to win acceptance for the new prohibitions but also have fostered their further expansion. Given the growing disparity of theactual laws, let alone the diversity of the manuscript tradition, 11 the tone of this discourse maywell have inspired bishops to act according to the principle ‘better safe than sorry’. ‘The greatest amount of  caritas for the greatest number of people’: Exogamyand the economy of affection Compared to this ‘heated’ incest discourse, the second tradition I want to discuss is astrikingly cool reasoning on endogamy and exogamy. The best-known example is a passagein Augustine’s City of God  , but there are both earlier and later authors arguing along the samelines. 12 John Chrysostom, for one, developped a model very similar to that of Augustine. 13  What they have in common is that they talk not so much about sex but analyse matrimony as 9    La colección canónica Hispana , ed. G. Martínez Díez and F. Rodríguez, 6 in 7 vols., MonumentaHispaniae sacra. Series canonica 1-6 (Madrid: 1966–2002), vol. 4, 352-353. On the content and context of these prohibitions, see Ubl,  Inzestverbot  , 200-208. 10 In addition to de Jong, ‘Unsolved riddle’ and Gelting, ‘Marriage’, see A. G. Remensnyder, ‘Pollution, purity and peace: an aspect of social reform between the late tenth century and 1076’, The peace of God: social violence and religious response in France around the year 1000 , ed. T. Head and R. Landes (Ithaca: 1992), 280-307. 11 See Weigand, ‘Ausdehnung der Ehehindernisse’, 2-3, esp. notes 2 and 7 for early examples. 12 M. Verbaarschot, ‘De iuridica natura impedimenti consanguinitatis in theologia et in iure canonico a S.Petro Damiano usque ad Decretales Gregorii IX (ca. 1063-1234)’,  Ephemerides theologicae Lovanienses 30(1954), 697-739; Moreau,  Incestus , 125-127 and Ubl,  Inzestverbot  , 56-62. 13    In epistulam ad Corinthos I homilia XXXIV  (PG 61, 289-291), on which see Verbaarschot, ‘De iuridicanatura’, 699.  5a means to multiply social bonds. While Augustine links exogamy to caritas , his argument isneither based on the Bible nor specifically Christian. Exogamy in this model is superior toendogamy in connecting more people by mutual affection. As Augustine put it, endogamywas avoided, 14  […] not that one man should combine many relationships in his sole person, but thatthose relationships should be distributed among individuals, and should bind social lifemore effectively by in involving a greater number of persons in them. Thus, ‘father’and ‘father-in-law’ are the names of two different relationships; and so the ties of affection ( caritas ) extend to a greater number of persons when each has one man ashis father and another as his father-in-law.The positive effects of exogamous marriage can thus be measured and indeed counted. Thefewer relationships are united in one person, and the more persons instead as related to eachother, the better. As Jeremy Bentham would have said, exogamy serves to produce ‘thegreatest amount of  caritas for the greatest number of people’. The key argument againstendogamy is that it is ‘unnecessary’ as spouses related by blood are already connected bymutual affection and more caritas -efficient marriage strategies are available. If incest in thismodel was a sin, it was so because it was a waste of the scarce good of  caritas .A second important aspect, apart from the cool (utilitarian) mode of speaking, is that thismodel is linked to a very wide definition of kinship. Common descent always creates at leastsome affection that only gradually fades away. Yet crucially, this kinship is not identifiedwith the prohibited degrees. Cousin marriage, Augustine affirms, was recently forbidden, 15   but more distant relatives are nonetheless kin. In other words, the prohibited degrees are muchmore narrowly defined than kinship, and in any case subject to change. Indeed, as Augustinesargues at some length, the ban on cousin marriages was only based on changing custom( consuetudo , mos ); he praises both heathen and Christians for developping customs that aremorally superior to positive law. Thus, the ban on cousin marriage is based on natural law andcustom, but as all human legislation it may well change – as it indeed happened at least twicein Augustine’s lifetime. 16  For the medieval reception of this model, it is crucial that a version of it was repeated by 14 Augustinus, De civitate Dei libri XXII  , eds. B. Dombart and A. Kalb, 2 vols., CCSL 47/48 (Turnhout:1955), here  De civitate Dei xv, 16 (CCSL 48, 476-479); the translation is taken from Augustine, The City of God against the pagans , tr. R. W. Dyson (Cambridge: 1998), 664-665. 15 Augustine refers to cousin marriage as banned ‘hoc tempore’; from this and a small number of similar references it has been inferred that Theodosius († 395) issued such a ban in 385. However, cousin marriage waslegal again in 405 ( C. J  . 5, 4, 19). See S. Treggiari,  Roman marriage: Iusti Coniuges from the time of Cicero tothe time of Ulpian (Oxford: 1991), 114. 16 See last note.
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