Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.

Wednesday, October 12, 2011

Duns Scotus: On Polygyny

IN OUR PRIOR POSTINGS (see here and here) WE DISCUSSED the controversial position of Scotus on the Decalogue, namely that only the first two commandments, and, to a limited extent, the third, are part of the immutable natural moral law, strictly-so-called, and that the other seven commandments--usually referred to as the "second table" of the Ten Commandments and summarized in the "Golden Rule"--are not part of the natural law strictly-so-called, but are only loosely, and in a secondary sense, said to be part of the natural moral law. These latter commandments are only part of the natural law by courtesy, as it were, only because they were in harmony with the precepts of the natural law in the strict sense. In large part, Scotus was driven to make this distinction in order to try to explain those seeming divinely-authorized deviations from one or more of the commandments of the second table of the Decalogue in Scripture, e.g., the divine injunction on Abraham to sacrifice Isaac, the spoliation of the Egyptians by the Jews, or the taking of a prostitute as wife by Hosea. If the second table of the Decalogue does not involve the immutable natural moral law, but involves simply positive Divine law, then God can dispense from it without contradicting himself, without allowing something which, by its very nature, is evil.

Scotus applies this sort of reasoning in the area of marriage and the seeming violations of its intrinsic qualities in polygamy and divorce, both of which appear to have been practiced by the Patriarchs or allowed by Moses. These are issues which he treats in his Ordinatio IV, dist. 33, q. 1 and q. 3. We shall look at Scotus's analysis regarding polygamy in this posting, and reserve the issue of divorce for the next.

William Blake's "Lamech and His Two Wives"

Scotus asks whether the polygamous unions of the Old Testament patriarchs such as Abraham, Jacob, David, and Solomon were against the natural law. As is typical of medieval Scholastics, Scotus first outlines the arguments pro and con, provides his answer, and then addresses the arguments against his position.

Scotus advances two arguments that would suggest that polygyny is offensive to the natural law on marriage. The first, drawing on Christ's own teaching on marriage, refers to Genesis 2:24, where it is revealed that in marriage man and woman shall be "two in one flesh," words which "express the law of nature about matrimony." Ordinatio IV, dist 33, q. 1 (Wolter, 208) In this view, it was not part of God's original design to allow for polygyny. Polygyny was an aberration first introduced into the world "in violation of the law of nature" by the proto-polygamist, Lamech*:
Lamech took two wives; the name of the first was Adah, and the name of the second Zillah. Adah gave birth to Jabal, the ancestor of all who dwell in tents and keep cattle. His brother's name was Jubal; he was the ancestor of all who play the lyre and the pipe. Zillah, on her part, gave birth to Tubalcain, the ancestor of all who forge instruments of bronze and iron. The sister of Tubalcain was Naamah. Lamech said to his wives: "Adah and Zillah, hear my voice; wives of Lamech, listen to my utterance: I have killed a man for wounding me, a boy for bruising me. If Cain is avenged sevenfold, then Lamech seventy-sevenfold.
Gen. 4:19-24. The second argument for holding that polygyny is against the natural law was one based upon equality: polyandry is prohibited to a woman, and it follows from the fact that if each spouse has equal rights to the conjugal debt, as St. Paul suggests in 1 Cor. 7:2-5,** then polygyny is also prohibited.

Against these two arguments, Scotus parades out examples of polygyny among the patriarchs: Abraham had Sara (his wife), Hagar (his concubine), and Keturah (his wife). Gen. 16:1, 3; 25:1. Jacob had two wives, Rachel and Leah, the daughters of Laban. Gen. 16, 25. David had many wives as well as concubines, as, famously, did his son King Solomon. It is unseemly to suggest that these patriarchs violated the natural law.*** Indeed, St. Augustine of Hippo in his book on the Good of Marriage states that the "just patriarchs did not make sinful use of their many wives, nor did they sin against nature, but did what they did for the sake of progeny; nor was there anything contrary to the law or to mores, for at that time there was no law prohibiting polygamy." Ordinatio IV, dist. 33, q. 1 (Wolter, 208)

In approaching the question, Scotus focuses on the concept of justice. What does strict commutative justice demand of the marriage contract with respect to its parties? Is there an intrinsic justice in marriage that binds the Divine lawgiver? Finally, are the answers to these questions affected by man's current post-lapsarian condition? In other words, how did the Fall affect the relationship between man and woman?

A basic principle of commutative justice is "in every exchange on the part of whose who make the exchange and from the standpoint of what they exchange, strict justice requires that, as far as possible, what is exchanged be of equal value in terms of the purpose for making the exchange." This basic principle of commutative justice can be imported in the marital agreement. Scotus identifies two considerations or matters of exchange: the first, the procreation of children, the bonum prolis; the second, the remedy against concupiscence (remedium concupiscientiae). In the procreative aspect, Scotus sees an intrinsic disproportion between what the male gives and what the female gives. The man can impregnate numerous women at one time, whereas the woman can only bear the progeny of one man at a time. In terms of procreation, therefore, the woman has less to give than the man. Viewed, then, from the perspective of the exchange of procreative powers, it would seem that polygyny would not offend commutative justice and so be licit from that perspective, whereas, polyandry would offend commutative justice:

Therefore, so far as strict justice in regard to this end goes, bigamy would seem to be licit, so that a man could make a bodily exchange with as many women as he could fecundate in the way it is possible for a man to do so. Hence, it would not be a violation of nature if, in certain other situations, one male had several females.

Ordinatio IV, dist. 33, q. 1, a. 1 (Wolter, 209) This conclusion, however, is only true following the Fall, for Scotus observes (rather vaguely here, as it is difficult to tell exactly he means) that "this was not the case in the state of innocence, where matrimony was and would have been strictly a duty of one's state, when when to have several wives would have been bigamous." "The simple exchange between one man and one woman would have sufficed for reproduction, since neither man nor woman would have been sterile then." Id.

The exchange between man and woman in matrimony with respect to the second end--a remedy for concupiscence--is different. Here, "the bodies of man and woman are of equal value." As a consequence, the conclusion of commutative justice is different with regards to this second end (remedy for concupiscence), as compared to the first end (procreation). And though not expressed by Scotus, he seems to imply that the second end trumps the first end, or at least overrides it on the issue of justice:
Therefore, so far as strict justice in the state of fallen nature goes, this contract, if both ends are considered, demands a one-to-one exchange of bodies.

Scotus does not explain why the exchange as to secondary end overwhelms the exchange as to the primary end. Nor does he identify another of the ends or goods of marriage, the bonum conjugum, the personalist ends of mutual help and companionship, and the bonum fidei, the good of fidelity between husband and wife. These, it would seem, would demand monogamy, as they are directly contradicted by polygamous unions of any kind. Regardless, Scotus cuts to the quick and invokes here the positive law of God, the legislator of marriage:

[T]here is complete justice in this exchange of rights [between one man and one woman] because of the authority of the superior who instituted or approve of such an exchange. Although some things belong to their owners, still what determines whether such and such an exchange is licit depends on the legislator, and this is true even more so as regards the mutual bodily exchange in the presence of a legislator who is God. But he has ordained as the rule both for the state of innocence and for that of fallen nature that this bodily exchange be one-for-one, and therefore it is only in such a way that justice in full is to be found.

Ordinatio IV, dist. 33, q. 1, a. 1 (Wolter, 209)

Scotus had defined a dispensation as "a clarification of the law or a revoking of the law." In the matter of polygyny, then, God "would have either clarified his law concerning this exchange [between the spouses] or revoked it in a particular case, and he could have done so reasonably where a greater good would result from its revocation than from its observance." Ordinatio IV, dist. 33, q. 1, a. 2 (Wolter, 209) It just this sort of dispensation of God's positive law on marriage that is involved in the polygynous marriages of the patriarchs:
[A]t a time when members of the human race needed to be multiplied either in an unqualified sense or with reference to divine cult, since there were few who worshiped God [at the time], it was necessary that those who did so, beget as much as they could, since only in their progeny would faith and divine worship continue to exist. At such time, then, God reasonably gave a dispensation so that one man might share his body with those of several women to increase the number of those who worshiped God, something which would not have occurred otherwise. Now, Abraham and certain other patriarchs, presumably, were dispensed in this way.
Ordinatio IV, dist. 33, q. 1, a. 2 (Wolter, 210)

One might recall here that this divine dispensation in the law of marriage is only possible because the "the two shall become one flesh" law of marriage is, in Scotus's view, one of positive Divine law, and not one of natural law in sensu strictu:
[S]omething is said to be of the natural law in two ways, viz., first, what is simply a practical truth known by the natural light of reason alone. Here a practical principle known from its terms represents the stronger form of such a law of nature, only second to which are those conclusions demonstrated from such primary principles. What pertains secondarily to the law of nature, however, is anything that as a general rule is in harmony with a law of nature in the previous sense. There is no dispensation as regards the first class, and therefore anything opposed to such would always be a mortal sin. But for the secondary type, dispensation occurs in a situation where the opposite seems to be generally more in harmony with the primary law of nature. And it is just this secondary sense of natural that monogamy pertains to the law of nature and bigamy is opposed to such, and hence . . . it does not follow that in a special case the opposite could not be licit, or even in some cases necessary.
Ordinatio IV, dist. 33, q. 1, a. 2 (Wolter, 211-12)

This divine dispensation, Scotus is quick to add, preserves the commutative justice in the marital exchange. The reasoning for this is that when an exchange involves more than one purpose, it is reasonable to prefer the primary end to secondary ends, so that the preference to procreation (which does not demand exactly one-to-one equivalency) may militate against any secondary ends of marriage (where the exchange demands exactly equivalency). In Scotus's view, then, God's dispensation to the patriarchs did not offend against commutative justice.
Now, this marriage contract to render the carnal debt has as its main purpose the good of having offspring and as its less important end the avoidance of fornication. Right reason, then, dictates that those who enter into such a contract do so in such a way that the primary interests of procreation are given greater value even if rendering the debt when desired is given lesser value. But this takes place in a contractual exchange involving the body of one man and those of several women. . . . And so it is clear how there is justice for both parties to the marital contract, because each ought to be willing, according to right reason, to surrender something he or she has a right to as regards the less important end in view of the fact that each receives an equal good as regards the more important end--an end that should be desired more, even if one party should have to sacrifice something in exchange to obtain it.

What is reasonable is obligatory when one's superior, in this instance, God, allows for such a dispensation. Hence, in Scotus's view, Sarah acted reasonably when she offered Hagar, her maidservant, to Abraham for the purposes of assuring progeny, when Sarah could not, at least without divine intervention, provide Abraham with the good of children.

What was true and exceptional for the patriarchs is no longer true. The divine dispensation has been revoked by Christ, and the original understanding and intendment of marriage, the "two in one flesh" law of marriage, is again in force. Moreover, the circumstances which allowed such dispensation to be just no longer obtain, and thus no longer justify the divine dispensation of the positive law of marriage.

[Bigamy] would be unlawful now, as there is no present dispensation by the lawgiver. Indeed, that law of nature, "They shall be two in one flesh," was restored through Christ (Matthew 19). Nevertheless, the reason it is not licit, speaking of the justice on the part of the contract and the contracting parties, stems from the fact that the principle end does not require it as present . . . . [S]ince the need to sacrifice the secondary end for the sake of the primary end no longer exists, the marital contract must be observed in such a way that justice is preserved as regards both ends, and this is best done when one man marries one woman.

Ordinatio IV, dist. 33, q. 1, a. 2 (Wolter, 211)****
*Scotus distinguishes the Lamechian polygyny to the Patriarchal polygyny, and condemns the first but justifies the latter. Lamech offended both against commutative justice and against God's divine law because the circumstances did not justify his bigamy and there was no divine dispensation to allow for it. Lamech thus sinned mortally by marrying more than one woman. At the time of the Patriarchs, however, circmstances were different justifying an unequal exchange between spouses, and to these circumstances there was a revealed dispensation.
As for Lamech, however, one could amdit that he did sin mortally [while the Patriarchs did not], because he acted contrary to the law of nature in the secondary sense. He sinned, I say, by contracting with several women where neither right reason dictated this law had to be revoked, nor was he dispensed from the law by his superior [God]. In short, he had neither excuse to fall back on.
Ordinatio IV, dist. 33, q. 1, a. 2 (Wolter, 212)
**"Now in regard to the matters about which you wrote: 'It is a good thing for a man not to touch a woman,' but because of cases of immorality every man should have his own wife, and every woman her own husband. The husband should fulfill his duty toward his wife, and likewise the wife toward her husband. A wife does not have authority over her own body, but rather her husband, and similarly a husband does not have authority over his own body, but rather his wife. Do not deprive each other, except perhaps by mutual consent for a time, to be free for prayer, but then return to one another, so that Satan may not tempt you through your lack of self-control." 1 Cor.7:1-5. In Scotus's view, polyandry is never justified because there are no circumstances where the exchange between the spouses could be, from a commutative standpoint just. Any polyandrous marriage subordinates the primary end of marriage (progeny) to the secondary end (remedy against concupiscence) and therefore is intrinsically immoral. See Ordinatio IV, dist. 33, q. 1, a. 2 (Wolter 212)
***Scotus does not feel compelled to justify the patriarchs. "I say that although one may presume some of the holy patriarchs did not sin in contracting bigamous unions, because both of the aforesaid conditions for such occurred in their case, namely, there was a need for polygamy and its was approved and prescribed by divine authority, nevertheless, is some of them did not have such an excuse or lacked either one or other other ground for validating such marital unions, I would not argue against those who maintained that they may have sinned grievously, since I do not think they were confirmed in grace." Ordinatio IV, dist. 33, q. 1, a. 2 (Wolter, 212)
****Scotus envisions how circumstances could warrant the return of polygamy in terms of commutative justice in the exchange. Even if circumstances would warrant it, however, a divine dispensation would have to be revealed.
But in case a multitude of men fell through war, the sword, or pestilence, while a multitude of women remained, bigamy could become licit even now, if one considers only precise justice on the part of the contract and contracting parties. And also women in contracting with men ought to be willing to give more in return for less as regards the secondary end for the sake of receiving equal for equal as regards the primary end. And in such a case according to right reason a woman should be willing that her man be joined to another woman that childbearing may occur. All that would be wanting for complete justice would be divine approbation, which perhaps would then occur and be revealed in a special way to the Church.
Ordinatio IV, dist. 33, q. 1, a. 2 (Wolter, 211)

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