Duns Scotus: On Divorce

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:

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.

When you shall hate your wife, put her away, says the Lord God of Israel.*

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.

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.

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.

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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.

Ambrose: Letter to Irenaeus: Law Flowing from a Natural Fountain

WE NEED TO THANK A CERTAIN IRENAEUS, a correspondent of St. Ambrose, for having asked St. Ambrose to elaborate on the teachings of St. Paul, and we ought to thank St. Ambrose for having answered. The question that this certain Irenaeus appears to have posed to the holy bishop was what the purpose of the Mosaic law was since St. Paul finds the law injurious: "For the law worketh wrath . . . ." Rom. 4:15a. Lex enim iram operatur. "For where there is no law, neither is there transgression." Rom. 4:15b. Ubi enim non est lex nec praevericatio. "Now the law entered in, that sin might abound . . . ." Rom. 5:20. Lex autem subintravit ut abundaret delictum. If the law brings in wrath and transgression, where there was none before, then what good purpose serves the law? That is the question of St. Ambrose's correspondent.

St. Ambrose by Pierre Subleyras

"It is certain," St. Ambrose begins, "that the Law, which was given by Moses, was not necessary." Certum est non fuissem Legem necessariam quae per Moysen data est. Why was the Mosaic law not necessary? It was not necessary because it was superfluous in the sense that there was already existing a law, a natural law. The Mosaic law was then a re-promulgation, in another form, of that natural law that existed in men's hearts. Had men kept the natural law, there would have been no need for the Mosaic revelation.

For had men been able to keep the natural law, which our God and Maker implanted in the breast of each, there would have been no need of the Law, which, written on tables of stone, tended rather to entangle and fetter the infirmity of human nature, than to set at large and liberate it. Now that there is a natural Law written in our hearts the Apostle also teaches us, when he writes, that for the most part the Gentiles, which have not the Law, do by nature the things contained in the Law, and, though they have not read the Law, have yet the works of the Law written in their hearts [Rom. 2:14] [N.B. Walford, trans., here and elsewhere].

Nam si naturalem legem, quam Deus creator infudit singulorum pectoribus, homines servare potuissent, non fuerat opus ea lege quae, in tabulis scripta lapideis, implicavit atque innodavit magis humani generis infirmitatem, quam elaqueavit atque absolvit. Esse autem legem naturalem in cordibus nostris etiam Apostolus docet, qui scripsit quia plerumque et gentes naturaliter ea, quae Legis sunt, faciunt; et cum Legem non legerint, opus tamen Legis scriptum habent in cordibus suis.

Epist. ad Ir., 73, 2 (PL 16:1251) "This law," St. Ambrose continues,

therefore is not written but innate; not acquired by reading, but flowing as from a natural fountain, it springs up in each breast, and men's minds drink it in. This Law we ought to have kept even from fear of a future judgment, a witness whereof we have in our conscience, which shews itself in those silent thoughts we have towards God, and whereby either our sin is reproved or our innocence justified. And thus that which has ever been manifest to the Lord, will be clearly revealed in the day of judgment, when those secrets of the heart, which were thought to be concealed, will be called into account. Now the discovery of these things, these secrets, I mean, would do no harm, if the natural Law still remained in the human breast; for it is holy, free from craft or guile, the companion of justice, free from iniquity.

Ea igitur lex non scribitur, sed innascitur: nec aliqua percipitur lectione, sed profluo quodam naturae fonte in singulis exprimitur, et humanis ingeniis hauritur. Quam debuimus vel futuri judicii metu servare, cujus testis conscientia nostra tacitis cogitationibus apud Deum ipsa se prodit, quibus vel redarguitur improbitas, vel defenditur innocentia. Itaque cum semper pateat Domino, tum maxime in die judicii manifestabitur; quando occulta cordis in examen venient, quae putabantur latere. Quorum tamen proditio, occultorum scilicet, nequaquam noceret, si lex naturalis inesset pectoribus humanis; est enim sancta, sine versutia, sine fraude, consors justitiae, expers iniquitatis.

Epist. ad Ir., 73, 3 St. Ambrose continues:

Adam broke this Law, seeking to assume to himself that which he had not received, that thus he might become as it were his own maker and creator, and arrogate to himself divine honour. Thus by his disobedience he incurred guilt, and through arrogance fell into transgression. Had he not thus violated his allegiance, (sin non supisset imperium) but been obedient to the commands of heaven, he would have preserved to his posterity the prerogative of nature and the innocence which he possessed at his birth. Wherefore as by disobedience the authority of the Law of Nature was corrupted and blotted out [smeared, struck out?] (corrupta atque interlita est), the written law was found necessary; in order that man, having lost all, might at least regain a part; attaining by instruction to the knowledge of that which he had received at his birth, but had subsequently lost (ut vel partem haberet, qui universum amiserat: et cui perierat quod nascendo assumpserat, discendo saltem cognosceret et custodiret). Moreover, since the cause of his fall was pride, and pride arose from the dignity of innocence, it was needful that some law should be passed which should subdue and subject him to God. [cf. Rom. 7:8] For without the Law he was ignorant of sin, and thus his guilt was less because he knew it not. (Nam sine Lege peccatum nesciebatur, et minor erat culpa, ubi erat culpae ignorantia.) Wherefore also the Lord says, If I had not come and spoken to them they had not had sin, but now they have no excuse for their sin. [cf. John 15:22]

Epist. ad Ir., 73, 5. The natural law was therefore part of man's original makeup, it was part of his historical "infancy" or infantiam, before there was any crime, avarice, ambition, guile, rage, or insolence. This was before man claimed things for his own, before he preferred himself to others, before he wished or knew how to avenge himself, before he even knew the meaning of insolence. Epist. ad Ir., 73, 4. This natural law is what the Church Fathers would refer to as "primary natural law." One might also characterize it as "original natural law," since it was with man from his origins. And it exists no more in its pure state. After man's fall in Adam, the natural law remained, but corrupted (corrupta) and smeared (interlita). The natural law after the Fall of man, this post-lapsarian natural law is what the Church Fathers would call the "secondary natural law." In his The Natural Law: A Study in Legal and Social History and Philosophy, Heinrich Rommen explains:

The Fathers also took over the Stoic distinction of a primary and a secondary natural law, which they interpreted in a theological sense. They regarded the former as applying to the state of unimpaired nature or innocence, while they assigned the latter, with the coercive authority of the law, with bondage and slavery, to the theological condition of fallen nature. Nature, somehow wounded indeed but not destroyed, is therefore still able fully to recognize the first principles of morality and law. But the conclusions from the first principles, which were also plainly intelligible in the state of unimpaired nature, are now attainable only by means of deductive reasoning, since the practical reason is also weakened. Accordingly law takes on a harsh, compulsory character, and the state bears a sword.

The nomenclature is not altogether felicitous, because there is no real difference between the content of the natural law before and after the fall. That is, the content of the "primary natural law" and the "secondary natural law" are the same. What is different is the mode or facility by which the voice of the natural law is fathomed, its voice obeyed, and, after the fall of man's integrity which introduced sin into the world, its violation recognized and rectified. The natural law in man's post-lapsarian wounded heart limped, and so it needed the crutch of a written law., and, in fact, required the sacrifice of Christ and the mercy and grace it supplied men. It needed the crutch of a written law as a stop-gap measure, as a cure for man's rebellion, to take away excuse, to expose guilt where it otherwise might remain secret, to provide knowledge where there was ignorance, to stanch the the wounded conscience, to help the practical reason arrive at the good, and ultimately, to point to the need for Christ and his grace.

St. Ambrose by Claude Vignon

The Mosaic law was therefore "not only given to the Jews but also called the Gentiles," (non solum Judaeis data est, sed etiam gentes vocavit), and not only the beckoned Gentiles who responded and converted to Judaism, but those who neglected to do so, those "who after being called [were] found wanting, for the Law also bound those whom she called" (neque vero exceptus videri potest, qui vocatus defuit; Lex enim quos vocavit et alligavit). Epist. ad Ir., 73, 6. Thus, the Mosaic law was promulgated for all mankind, Jew and Gentile.

But the Mosaic law is not necessary. Non fuit necessaria lex per Moysen. The Mosaic law, "would not have been needed could we have kept the natural law," si illam legem naturalem servare potuissemus. Epist. ad Ir., 73, 9. The Mosaic law "was not needed," and "succeeded in the place of the natural law." But had the natural law "maintained its place, the written law would never have entered in."

But the natural law being excluded by transgression and almost blotted out of the human breast, pride reigned, and disobedience spread itself; and then this Law succeeded, that by its written precepts it might cite us before it, and every mouth be stopped, and all the world become guilty before God.

Epist. ad Ir., 73, 10. Though superfluous in one way since it was a restatement of the natural law, the Mosaic law was necessary in a factual sense because man's ability to know it, follow it, and recognize his failure of it was hampered by the loss of the integrity in his nature following the fall. So that resolving "sin by sin," ut peccatum peccato solveret, the law operated through a sort of casual chain: transgression led to the law, which meant subjection, subjection led to humility, humility to obedience. Epist. ad Ir., 73, 6-10. And so in a manner of speaking, transgression was, as we might say borrowing from the Easter liturgy, a happy fault, a felix culpa, because it ultimately led to obedience. Nay, more, the transgression actually led to grace, and St. Ambrose closes his letter to Irenaeus by focusing on this wonder. The same causal chain that Ambrose related led to that advent of grace, the Incarnation of the Son of God. The transgression brought the law, and the law ultimately brought obedience par excellence, that is, it brought the obedience of Christ and thereby our redemption. St. Ambrose closes his letter to Irenaeus thus:

But when the Lord Jesus came, He forgave all men that sin which none could escape, and blotted out the handwriting against us by the shedding of His own Blood. This then is the Apostle's meaning; sin abounded by the Law, but grace abounded by Jesus; for after that the whole world became guilty, He took away the sin of the whole world, as John bore witness, saying: Behold the Lamb of God, which taketh away the sin of the world. Wherefore let no man glory in works, for by his works no man shall be justified, for he that is just hath a free gift, for he is justified by the Bath. It is faith then which delivers by the blood of Christ, for Blessed is the man to whom sin is remitted, and, pardon granted.

Epist. ad Ir., 73, 11.