Canon Law

Canon law is the law of the church. Prior to the Reformation in the sixteenth century, canon law was used across Christendom. Beginning as early as the second century ce, the church developed legal norms that it attempted to enforce on the faithful. During the Middle Ages (between approximately 500 and 1400), canon law pertained to virtually every aspect of human activity, although, after the Reformation, with the development of the modern nation-state, the purview of canon law constricted as secular law courts became dominant. Canon law continues to govern many aspects of the life of members of the Catholic, Lutheran, Orthodox, and Anglican churches, primarily in areas influenced by religious belief and morality, especially areas of human sexual activity.

James A. Brundage, the foremost historian of medieval canon law governing sex and sexuality, identified three patterns used to categorize and evaluate sex. The first was according to the reproductive function of sex, which formed the basis for evaluating various sexual activities as natural or unnatural. Second, sex was perceived as a source of impurity, leading to feelings of shame by the participants, or a perception that those who engaged in sex were defiled and required ritual cleansing. Finally, sex was viewed as a source of intimacy and a means of expressing and enhancing love within a married couple. These perspectives influenced various aspects of the moral code governing sex and sexuality as it was enshrined in canon law.

HISTORICAL DEVELOPMENT

Canon law developed out of a wide array of sources over the course of many centuries. In the early Christian church, councils were convened to settle doctrinal controversies, and their pronouncement or decision was termed a canon. Gradually, multiple councils issued canons clarifying a wide variety of questions, some quite broad with others directed to specific difficult cases. Another means to clarify doctrine or resolve disputes was through ecclesiastical legislation implemented by a bishop. The letters and decisions of the pope, called decretals, carried particular weight. The writings of church fathers, those early theologians who expounded upon the implications and application of religion in daily life, were another source for law. Finally, a body of literature known as penitentials began to appear in western European Christendom between the sixth and tenth centuries. Penitentials were lists of sins, that is, transgressions against the Christian moral code, accompanied by the appropriate penance. All these sources circulated throughout the early Middle Ages and carried varying degrees of authority. That the various sources frequently contradicted each other added to this proliferation and confusion. Thus, early canon law was a complex of disparate documentation that did not provide a consistent interpretation of doctrine or penalties for transgression.

By the eleventh century there were attempts to collect the various canons and pieces of legislation. Two of the earliest attempts, which influenced the subsequent development of canon law, were the Decretum of Burchard of Worms (c. 950–1025), which drew significantly on the penitentials, and the Decretum of Ivo of Chartres (c. 1040–c. 1116), which drew together numerous patristic texts. It was not until the mid-twelfth century, however, that canon law was collected and systemized. Around the year 1140, the canon lawyer Gratian (d. before 1159) laid the foundations of a systematic approach to canon law with the publication of his Concordia discordantium canonum (Concordance of disconcordant canons). This work, popularly known as the Decretum, included patristic authorities, early church council decrees, and papal decisions, organized according to topic or theme. Gratian organized these varied and contradictory sources and subjected them to logical analysis, reconciling their discrepancies in his own commentary. Through the juxtaposition of various views and assisted by his own critical analysis, Gratian produced a synthetic and systematic summary of church law.

Whereas the Decretum formed the foundation of canon law, pronouncements by church councils and bishops and decretals by the popes continued to be issued. As a result canon law continued to grow, and the Decretum soon needed updating. In 1234 a new collection of canon law appeared based on new legislation and the thousands of decretals that had been issued after Gratian finished his compilation. Raymond of Peñafort (c. 1185–1275), a famous canon lawyer, was appointed by Pope Gregory IX to compile this new collection, known as the Decretales Gregorii or the Liber extra. Subsequently, at intervals, similar collections were published to cope with ensuing legislation. The last of these appeared in 1500. Shortly afterward the collections were bundled together and, along with Gratian's Decretum, formed the complete collection of canon law, the Corpus juris canonici (Body of canon law), which endured from the later Middle Ages until it was revised in 1917. The code of canon law was again revised in 1983. Medieval canon law, then, had currency well into the modern world, formed the basis of western European and North American morality and informed the values of secular law codes across those societies into the twenty-first century.

ENFORCEMENT

From the initial appearance of organized Christian communities, church leaders attempted to impose rules to govern the sexual behavior of the faithful. In his letters, written in the mid-first century, the apostle Paul certainly admonished Christians to embrace chastity and avoid the libidinous excesses that characterized Roman society. As a marginal group Christian communities had only informal, internal mechanisms to control the behavior of their members. When Christianity was recognized as the official religion of the Roman Empire in the fourth century, however, church leaders began to hold councils and issue canons, and they developed effective mechanisms of enforcement that were more effective.

Christian sexual morality was built upon the fundamental tenet that legitimate sexual activity could occur only within marriage and for the purpose of procreation. Although some argued that a married couple could seek an outlet for sexual desire with their spouse or engage in sexual activity as a means of developing intimacy and reinforcing marital love, such acts were considered to be somewhat sinful, albeit permissible. Thus, not every sex act that was sinful was necessarily illegal. The distinction, however, between sexual sin and sexual crime was clarified, and some sexual irregularities were relegated to the internal forum of confession and penance. So, for example, canon law did not comment on the phenomenon of men's nocturnal emissions, although this was considered to be a matter of considerable moral concern. Similarly, although masturbation was a prohibited sex act, it was considered to be relatively minor and private, and better left to the confessional. These examples illustrate how the theological and canonical approaches to sexuality were closely linked and mutually influenced each other.

The ecclesiastical courts, charged with enforcing canon law, concerned themselves with more egregious breaches of the moral code, especially those infractions that were public. For example, adultery was a serious crime, not only because it breached the sexual fidelity that was central to marriage, but also because it could result in the birth of illegitimate children who could challenge the laws of inheritance and defraud legitimate children. Canon law considered adultery as if it were a crime pertaining primarily to women. Men were rarely punished for adultery, although they might be required to perform penance for their sin. A woman convicted of adultery, however, suffered disgrace, and could be relegated to a convent, thrown out of her home, deprived of her children and dowry, and reduced to penury.

Frequently, the only economic recourse for an adulterous wife, as for other impoverished women, was prostitution. Although prostitution was also considered a crime under canon law, for both the prostitute and the client, the medieval church tended to treat it relatively leniently. For example, although a prostitute both sinned and committed a crime, she was also a worker and as such was owed her wages. A client who tried to avoid paying her was guilty of theft. The church tended to tolerate prostitution because it was considered a lesser evil. Without prostitutes men's unbridled lust would have no outlet, and honorable matrons and respectable virgin daughters would be subject to harassment on the streets or even to abduction and rape. This indicates some of the compromises that canon law made to accommodate the realities of daily life. Whereas a man who consorted with a prostitute committed the sexual crime of fornication, or adultery if either were married, this act was preferable to the alternative.

If sexual crimes were public and notorious rather than private and secret, the church needed a means to prosecute the wrongdoers. As a result ecclesiastical courts appeared in the early thirteenth century designed, among other things, to regulate and control the sexual behavior of the laity. The attempt to regulate sexual activity was particularly directed at the unmarried, those men and women who committed fornication. Whereas fornication was considered one of the least serious of the sexual transgressions, it was also believed to be the most widespread. The church developed a system of regulation that permitted court officials to summon people to account for their behavior on the basis of rumor or general suspicion. For convicted couples the punishments were relatively minor and could range from paying a small fine to being whipped three times around the church or local marketplace. The church courts could also require a couple who engaged in habitual fornication to marry, assuming there were no impediments to prevent legal marriage.

LAWS: MARITAL SEX

Although many of the provisions of canon law were concerned with constraining sexual activity outside of marriage, others governed sexual relations between married people. One of the requirements for a legal marriage was the ability of each partner to engage in sexual relations. Although, according to various decretals issued by Pope Alexander III (r. 1159–1181), a couple did not need to consummate a marriage for it to be considered legitimate and indissoluble, sexual relations had to be possible. Hence, an impotent man or a woman with malformed genitals that prevented intercourse was prohibited from marrying. This requirement underscored the importance of procreation as the appropriate goal of marriage and sexual intercourse.

The church revealed its ambivalent attitude toward sex in numerous regulations that prohibited sexual relations, even within marriage. Most of these were related to the notion that sex caused impurity and pollution. This accounts for the imposition of clerical celibacy in the eleventh century. Reformers feared that a married priest would perform the sacraments while still polluted by sexual relations with his wife. Even the married laity faced strict limits on when and where they could engage in sex. Based on blood taboos and ideas about ritual purity inherited from Judaism, sex was forbidden when a woman was menstruating, lactating, or pregnant and after giving birth before she had been ritually cleansed by churching. Concerns about how to exclude polluted people from the sacraments and sacred spaces led to prohibitions on intercourse on Saturdays, Sundays, Wednesdays, Fridays, and feast or fast days, and during holy seasons such as Lent or Advent. All of these prohibitions left on average about twenty-two days per year for legitimate marital intercourse. A couple was also forbidden to have sex in a church or cemetery, which would be polluted by the emission of semen. All these prohibitions, however, could be overridden by the doctrine of the conjugal debt.

The conjugal debt recognized that marriage provided the only legitimate outlet for sexual desire. Either spouse was required to grant the other sexual intercourse whenever and wherever it was demanded. This requirement was more important than the prohibitions of time or place or the woman's physical condition. The rationale was similar to the toleration of prostitution: If a spouse did not have a legitimate sexual outlet when needed, he or she might be tempted to engage in adultery. Although the conjugal debt was reciprocal in theory, the real concern was to channel men's lust and protect them from committing more serious sexual crimes such as rape, homosexuality, or bestiality. In practice it relegated wives to being perpetually available for sex, regardless of their personal wishes.

LAWS: EXTRAMARITAL SEX

Canonists were in general agreement that there was a hierarchy of sexual crimes, although they differed on the relative seriousness of different acts. In general fornication was considered the least serious offense because it did not breach the vows of marriage or chastity. Moreover, there was always the possibility that the man and woman would marry in the future. Adultery was more serious because it ruptured the sacramental bonds of marriage. Fornication and adultery, while illegal, were nevertheless considered to be natural. Far more serious were so-called unnatural sex acts that overthrew the natural order. These imperiled the souls of the individuals and destabilized the social order. There were four categories of unnatural acts: masturbation, bestiality, sex between a man and a woman in an unconventional manner, and sodomy. Masturbation, as a solitary and private act, was considered to be the least serious and was not prosecuted by the ecclesiastical courts. Bestiality, sex acts involving animals, had been considered a relatively minor crime in the rural society of the early Middle Ages. By the twelfth century, however, bestiality was the most serious of unnatural acts because it blurred the distinction between human and animal. Although bestiality carried severe penalties, including killing the animal and lifelong penance for the human actor, it rarely appears in the court records.

Adopting variant sexual positions during sexual intercourse was considered a serious offense, although this issue may have figured more prominently in the confessional than in court. The general suspicion regarding the virtually unavoidable pleasure that resulted from intercourse meant that canonists strove to regulate sex positions that might enhance pleasure and exacerbate the sinfulness of the sex act. The only licit position for intercourse was the so-called missionary position: vaginal intercourse, with the woman lying supine and the man prone on top of her. Any other positions were prohibited, although occasionally a writer might concede some variation, such as sitting or standing, if it would increase the probability of conception or if a disability prevented normal intercourse. Standards of morality dictated that a husband should not see his wife naked or engage in foreplay. Fellatio, cunnilingus, and anal intercourse were utterly forbidden because they were judged to be both contraceptive and unnatural.

Sodomy was an ill-defined category of sexual transgression. For most of the Middle Ages and into the early modern and modern periods, the term referred to sexual acts between two men, particularly anal intercourse. Sometimes the term denoted a wide array of unnatural acts, including mutual masturbation, interfemoral rubbing, fellatio, and cunnilingus. Sodomy sometimes included sex between women, but because such activity did not involve vaginal penetration and the emission of semen, it was not considered as serious a sexual crime as sex between men. Sex between women was more serious if one of the participants cross-dressed or used a dildo to imitate the male role. After the mid-thirteenth century sex between women was considered generally equivalent to that between men.

Although as early as the eleventh century homosexuality had been denounced by reformers such as Pier Damiani (Peter Damian) seeking to impose clerical celibacy, it was not until the thirteenth century that fear of homosexuality led to widespread prosecutions. Sex between men came under increasing scrutiny, and the pace of accusations and prosecutions increased. Sodomy was considered a capital offense by the secular legal system. Some of the men convicted of sodomy by the religious courts were turned over to secular authorities for execution because capital punishment was forbidden under canon law. The persecution of homosexuals that increased during the early modern and modern periods grew out of cooperation between church and state to enforce the Christian moral code.

FROM THE MIDDLE AGES TO THE MODERN WORLD

The canon laws governing sex and sexuality developed over the course of a thousand years were systematized and codified in the twelfth and thirteenth centuries and were enforced across western Europe by ecclesiastical courts. Although in the sixteenth century the Protestant Reformation ruptured the seamless system of canon law and ecclesiastical courts, there was remarkably little change to the laws governing sexual activity. Throughout the sixteenth and seventeenth centuries, the older regulations governing sexual activities endured, with perhaps only an increase in the prosecution of both male and female same-sex activities. In continental Europe the regulation of sex gradually moved from religious to secular jurisdiction. In England ecclesiastical courts endured through the breach with Rome, and church courts continued to enforce canon law with remarkably little deviation from their Catholic roots. In Roman Catholic areas, the ecclesiastical courts were more centralized in the wake of the Council of Trent (1545–1563), although the canon laws regarding sex were maintained. It was not until the eighteenth century that church courts ceased to be the main mechanism for the enforcement of sexual norms, even as canon law continued to enunciate those norms.

The principle features of medieval canon law were carried into the modern world and into the secular court systems of modern states. The vestiges of medieval canon law endured in European and North American values and legal systems into the twentieth and twenty-first centuries. Many jurisdictions in the United States retain sodomy laws that prevent sexual activity between men; some prohibit anal sex within marriage or between any consenting adults. Only in the 1980s and 1990s was the concept of spousal rape recognized. Prior to that the doctrine of the conjugal debt continued to influence society's understanding that a husband had an absolute right to sexual relations with his wife. In some places adultery and fornication remained illegal until the 1960s. Even in the early twenty-first century, the argument endures that the primary goal of marriage is procreation, and consequently, a married man and woman should receive special recognition, status, and privileges from the state. The procreative aspect of marriage is used as a rationale to prohibit same-sex unions. This view can be traced back to the fourth century, when the church argued that the primary role of marriage and sexual intercourse was to produce children. Vestiges of medieval values are found throughout European and North American societies and in those societies that have been influenced by European and North American law and Christianity. Only in the late twentieth century were many of the medieval perspectives on sex and sexuality challenged. Even so, some, such as the prohibition against bestiality, remain deeply embedded in North American and European society's understanding of sexual morality.

BIBLIOGRAPHY

Brundage, James A. 1987. Law, Sex, and Christian Society in Medieval Europe. Chicago: University of Chicago Press.

Brundage, James A. 1993. Sex, Law, and Marriage in the Middle Ages. Aldershot, UK: Variorum.

Brundage, James A. 1996. "Sex and Canon Law." In Handbook of Medieval Sexuality, ed. Vern L. Bullough and James A. Brundage. New York: Garland.

Flandrin, Jean-Louis. 1979. Families in Former Times: Kinship, Household, and Sexuality, trans. Richard Southern. Cambridge, UK: Cambridge University Press.

Friedberg, Emil, ed. 1955 Corpus iuris canonici. 2 vols. Graz, Austria: Akademische Druck-und Verlagsanstalt. [Orig. pub. 1879–1881.]

Noonan, John T., Jr. 1986. Contraception: A History of Its Treatment by the Catholic Theologians and Canonists. Rev. edition. Cambridge, MA: Harvard University Press.

Payer, Pierre J. 1984. Sex and the Penitentials: The Development of a Sexual Code, 550–1150. Toronto: University of Toronto Press.

Reid, Charles J., Jr. 2004. Power Over the Body, Equality in the Family: Rights and Domestic Relations in Medieval Canon Law. Grand Rapids, MI: Eerdmans.

Sheehan, Michael M. 1996. Marriage, Family, and Law in Medieval Europe: Collected Studies, ed. James K. Farge. Toronto: University of Toronto Press.

                                  Jacqueline Murray