SCOTUS ADDRESSES THE TOPIC OF DIVORCE and the Mosaic law in Ordinatio IV, dist. 33, q. 3. The specific proposition that he engages is whether under the Mosaic law it was licit for a man to repudiate his wife. In support of the proposition that it was licit, Scotus cites Deuteronomy 24:1 and Malachi 2:16:
Similarly, Scotus cites to the Decretum Gratiani, I, canon 11, dist. 34, which provides: "If it be established of a married cleric that the wife has committed adultery, she ought to be given a bill of divorce and sent away." This canon establishes not only the legitimacy of divorce under Mosaic law, but also under the law of the Gospel.
Moses with his Two Tables of the Decalogue
As contrary authority to the proposition of the licitness of Mosaic divorce, Scotus adverts to the natural law, specifically, the notion that is expressed by Adam's words: "A man shall cleave to his wife," which suggests a permanent natural union. The sexual union which is part of the conjugal union suggests a permanency, a one-fleshness which resists being separate. It was this natural union to which Christ referred when he taught that what God joined together, "let no man put asunder." Matt. 19:6.
The nature of marriage, further, suggests that it is an "irrevocable gift of the power of one's body to another for that of the other." Any condition or term to this giving of self is, by definition, not marriage. If divorce is allowed, the conveyance of self is, from a practical perspective, never irrevocable, but limited by one's will, and that negates the essential nature of marriage.
A final argument against the liciety of divorce under Mosaic law is that a woman had not rights to divorce her husband; parity or equality would suggest, then, that the man likewise had no power, since "so far as they are marriage partners," the man and wife "may be judged equal." Ordinatio IV, dist. 33, q. 3 (Wolter, 213)
This question is a difficult one for Scotus, and he wrestles with it without a clear resolution. Essentially, he advances two arguments, both of which are probable, and neither of which is definitive. First, he advances as a plausible position that divorce was never licit under the law of Moses. Second, he advances as a plausible position that God through Moses dispensed the Israelites from the natural law of marriage in order to avoid a greater evil: uxoricide.
Illicit nature of Mosaic divorce. The argument here is that it remained unlawful to divorce one's wife under the Mosaic law, and that marrying someone who was divorced was a mortal sin. However, the punishment against the woman or the man guilty of divorce and remarriage was remitted or suspended for the reason that it was necessary to prevent uxoricide. Scriptural support for this position is found in Christ's teaching that a person who puts away his wife and marries another commits adultery, and he who marries a woman who has been put away commits adultery (Matt. 19:9). If Christ is the fulfillment of the Mosaic law, his teaching would suggest that, under the Mosaic law, divorce remained adultery. Similarly, there is a natural-law basis for this. Christ adverted to the beginning of creation and man and woman, and that the natural, conjugal union between them was one rendered by God, and over which man had no authority--"what God has joined together, let no man put asunder." So under the natural law and God's plan, divorce could not be licit under the Mosaic law. Only the punishment under these circumstances was suspended to avoid the greater evil of uxoricide. One last argument is to point out that while Moses allowed for divorce "by reason of the hardness of your heart," i.e., as a result of the Jewish obduracy, this did not receive divine ratification. The marginal gloss on this issue states succinctly: "Moses permitted this, not God." Seizing on this gloss, Peter Lombard concludes that divorce was "permitted by Moses, not to concede divorce, but to prevent homicide." The obduracy of the Israelites prevented the full implementation of God's will as it related to marriage. Divorce was a matter of Mosaic permission and divine tolerance for the purpose of avoiding a greater evil.
Liciety of Mosaic divorce. The other view is that divorce was licit under the Mosaic dispensation. Moses's authority to articulate the divine law means that his permission has to be considered as part of God's law with God's ratification behind it. Accordingly, because Moses promulgated the law permitting divorce: "God himself joined, and those whom he separated, God separated, because God could not divorce those who were married." This seems to accord to Scripture--which allows for divorce--its face value. To suggest that divorce was not licit under the Mosaic law is difficult to reconcile with Scripture. Moreover, it cannot be said that the Mosaic law permitting divorce is unjust: God would not have allowed an unjust law. If the permission was not unjust, then there can be no mortal sin in following a just law. This would suggest that the Mosaic divorce was licit. This would suggest some sort of divine dispensation which is possible given that, in Scotus's view, the marital laws are not natural laws in the strict sense. God as supreme legislator could ratify marriage for a time, and, if the Mosaic divorce is exercised, dispense from that divine ratification.
Ordinatio IV, dist. 33, q. 3 (Wolter, 215-16)
This, of course, implies that the entire Mosaic marital law involved less-than-perfect unions. Under "Mosaic law, when divorce was allowed and one man could have several wives, neither requirement was characteristic of marriage, because neither was it a one-to-one relationship, nor was the union simply indissoluble." The imperfection in the Mosaic marital law was supported by a divine dispensation which, in Christ, was abrogated.
Although Scotus struggles with these issues without a clear resolution, his doctrine of the natural law--which states that only the first two, and part of the third, commandments are natural law, strictly-so-called, but that the seven later commandments, the second table, are not natural law, but constitute divine positive law admitting of dispensation, allows for much easier resolution of the difficulties arising from Mosaic divorce:
It is apparent from Scotus's treatment of this issue that we are dealing with a very thorny problem, one that perhaps may not be fully resolvable. We may never know the exact situation as it pertains to the Mosaic law allowing divorce. We do, however, have Christ's clear teaching on this matter, who brought us to the original teaching and original understanding of marriage.
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*The translation of Malachi 2:16 is from Wolter, 213. I do not have the Latin text in front of me, but I presume Scotus quotes the Vulgate. The Vulgate is: Cum odio habueris dimitte dicit Dominus Deus Israhel operiet autem iniquitas vestimentum eius dicit Dominus exercituum custodite spiritum vestrum et nolite despicere. The Douay Rheims which is pretty slavish to the Vulgate states: "When thou shalt hate her put her away, saith the Lord the God of Israel: but iniquity shall cover his garment, saith the Lord of hosts, keep your spirit, and despise not." The New American Bible translates: "For I hate divorce, says the LORD, the God of Israel, And covering one's garment with injustice, says the LORD of hosts; You must then safeguard life that is your own, and not break faith." The difference in translation stems from the difficult syntax in this section of Malachi. A discussion of the problem may be obtained by reviewing C. John Collins article "Malachi 2:16 Again." Depending on how one translates the difficult Hebrew text, Malachi 2:16, then, can be read as a sign of God's displeasure with divorce, or a more or less indication of its liciety.
When a man, after marrying a woman and having relations with her, is later displeased with her because he finds in her something indecent, and therefore he writes out a bill of divorce and hands it to her, thus dismissing her from his house.Scotus also advances as authority that divorce is licit a canonical maxim found in Gratian's Decretum: "Everything which is born of certain causes, can be dissolved by certain causes." Dec. Grat. II, causa 27, c. 2. Since marriage is born of free consent, it follows under this principle that marriage can also be dissolved by free consent. This suggests that the Mosaic permission allowing divorce is legitimate.
When you shall hate your wife, put her away, says the Lord God of Israel.*
Similarly, Scotus cites to the Decretum Gratiani, I, canon 11, dist. 34, which provides: "If it be established of a married cleric that the wife has committed adultery, she ought to be given a bill of divorce and sent away." This canon establishes not only the legitimacy of divorce under Mosaic law, but also under the law of the Gospel.
Moses with his Two Tables of the DecalogueAs contrary authority to the proposition of the licitness of Mosaic divorce, Scotus adverts to the natural law, specifically, the notion that is expressed by Adam's words: "A man shall cleave to his wife," which suggests a permanent natural union. The sexual union which is part of the conjugal union suggests a permanency, a one-fleshness which resists being separate. It was this natural union to which Christ referred when he taught that what God joined together, "let no man put asunder." Matt. 19:6.
The nature of marriage, further, suggests that it is an "irrevocable gift of the power of one's body to another for that of the other." Any condition or term to this giving of self is, by definition, not marriage. If divorce is allowed, the conveyance of self is, from a practical perspective, never irrevocable, but limited by one's will, and that negates the essential nature of marriage.
A final argument against the liciety of divorce under Mosaic law is that a woman had not rights to divorce her husband; parity or equality would suggest, then, that the man likewise had no power, since "so far as they are marriage partners," the man and wife "may be judged equal." Ordinatio IV, dist. 33, q. 3 (Wolter, 213)
This question is a difficult one for Scotus, and he wrestles with it without a clear resolution. Essentially, he advances two arguments, both of which are probable, and neither of which is definitive. First, he advances as a plausible position that divorce was never licit under the law of Moses. Second, he advances as a plausible position that God through Moses dispensed the Israelites from the natural law of marriage in order to avoid a greater evil: uxoricide.
Illicit nature of Mosaic divorce. The argument here is that it remained unlawful to divorce one's wife under the Mosaic law, and that marrying someone who was divorced was a mortal sin. However, the punishment against the woman or the man guilty of divorce and remarriage was remitted or suspended for the reason that it was necessary to prevent uxoricide. Scriptural support for this position is found in Christ's teaching that a person who puts away his wife and marries another commits adultery, and he who marries a woman who has been put away commits adultery (Matt. 19:9). If Christ is the fulfillment of the Mosaic law, his teaching would suggest that, under the Mosaic law, divorce remained adultery. Similarly, there is a natural-law basis for this. Christ adverted to the beginning of creation and man and woman, and that the natural, conjugal union between them was one rendered by God, and over which man had no authority--"what God has joined together, let no man put asunder." So under the natural law and God's plan, divorce could not be licit under the Mosaic law. Only the punishment under these circumstances was suspended to avoid the greater evil of uxoricide. One last argument is to point out that while Moses allowed for divorce "by reason of the hardness of your heart," i.e., as a result of the Jewish obduracy, this did not receive divine ratification. The marginal gloss on this issue states succinctly: "Moses permitted this, not God." Seizing on this gloss, Peter Lombard concludes that divorce was "permitted by Moses, not to concede divorce, but to prevent homicide." The obduracy of the Israelites prevented the full implementation of God's will as it related to marriage. Divorce was a matter of Mosaic permission and divine tolerance for the purpose of avoiding a greater evil.
Liciety of Mosaic divorce. The other view is that divorce was licit under the Mosaic dispensation. Moses's authority to articulate the divine law means that his permission has to be considered as part of God's law with God's ratification behind it. Accordingly, because Moses promulgated the law permitting divorce: "God himself joined, and those whom he separated, God separated, because God could not divorce those who were married." This seems to accord to Scripture--which allows for divorce--its face value. To suggest that divorce was not licit under the Mosaic law is difficult to reconcile with Scripture. Moreover, it cannot be said that the Mosaic law permitting divorce is unjust: God would not have allowed an unjust law. If the permission was not unjust, then there can be no mortal sin in following a just law. This would suggest that the Mosaic divorce was licit. This would suggest some sort of divine dispensation which is possible given that, in Scotus's view, the marital laws are not natural laws in the strict sense. God as supreme legislator could ratify marriage for a time, and, if the Mosaic divorce is exercised, dispense from that divine ratification.
Complete justice does not pertain to this matrimonial contract except by divine ratification . . . [and] it is reasonable that God should ratify it. . . . To avoid an evil which outweighs the good of wedlock's indissolubility, God can dispense from [the law of indissolubility] so that the marriage holds good until such a time as the woman may come to displease her husband. And in such a contract justice is preserved to some extent. For not only to obtain a greater good, but also to avoid a greater evil, the parties marrying may want to give themselves to each other in this fashion. Now, uxoricide is a greater evil than indissolubility is a good, because it includes not only the serious evil suffered by the woman killed but also the grave evil of the guilty killer. Uxoricide would also be a serious evil for the whole country, because it would be an occasion of continual discord and fighting by reason of the ire of the wife's parents towards her murderer; and this would tend to break down the family, because if the man were killed by his adversaries or by the law, it would destroy his family and the education of his child.
Ordinatio IV, dist. 33, q. 3 (Wolter, 215-16)
This, of course, implies that the entire Mosaic marital law involved less-than-perfect unions. Under "Mosaic law, when divorce was allowed and one man could have several wives, neither requirement was characteristic of marriage, because neither was it a one-to-one relationship, nor was the union simply indissoluble." The imperfection in the Mosaic marital law was supported by a divine dispensation which, in Christ, was abrogated.
Although Scotus struggles with these issues without a clear resolution, his doctrine of the natural law--which states that only the first two, and part of the third, commandments are natural law, strictly-so-called, but that the seven later commandments, the second table, are not natural law, but constitute divine positive law admitting of dispensation, allows for much easier resolution of the difficulties arising from Mosaic divorce:
I say it is not against the law of nature [to allow for divorce, as Moses did] in the strict sense, because it is not against any self-evident principles that pertain to the law of nature nor against any conclusion that follows immediately from such principles that a contract hold for only a time, according to this second view, nor does it run contrary to the education of the children, for God could have arranged another plan for the education of children [other than marriage], but one not as convenient as this, and even though one of the goods of marriage is in harmony with the law of nature, namely, indissolubility, God could have dispensed with this in order to avoid a greater evil.Ordinatio IV, dist. 33, q.3 (Wolter, 218)
It is apparent from Scotus's treatment of this issue that we are dealing with a very thorny problem, one that perhaps may not be fully resolvable. We may never know the exact situation as it pertains to the Mosaic law allowing divorce. We do, however, have Christ's clear teaching on this matter, who brought us to the original teaching and original understanding of marriage.
_________________________________________
*The translation of Malachi 2:16 is from Wolter, 213. I do not have the Latin text in front of me, but I presume Scotus quotes the Vulgate. The Vulgate is: Cum odio habueris dimitte dicit Dominus Deus Israhel operiet autem iniquitas vestimentum eius dicit Dominus exercituum custodite spiritum vestrum et nolite despicere. The Douay Rheims which is pretty slavish to the Vulgate states: "When thou shalt hate her put her away, saith the Lord the God of Israel: but iniquity shall cover his garment, saith the Lord of hosts, keep your spirit, and despise not." The New American Bible translates: "For I hate divorce, says the LORD, the God of Israel, And covering one's garment with injustice, says the LORD of hosts; You must then safeguard life that is your own, and not break faith." The difference in translation stems from the difficult syntax in this section of Malachi. A discussion of the problem may be obtained by reviewing C. John Collins article "Malachi 2:16 Again." Depending on how one translates the difficult Hebrew text, Malachi 2:16, then, can be read as a sign of God's displeasure with divorce, or a more or less indication of its liciety.
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