Late Byzantine Canonical Views on the Disolution of Marriage (Fr. Patrick Viscuso, 1999)

NOTE: The following article is taken from The Greek Orthodox Theological Review, Vol. 44. Nos. 1-4, 1999, pp. 273-290

Orthodox Canon Law

Canon law often affirms the ideal of lifelong marriage and fidelity. Regulations prohibiting or justifying the dissolution of marital unions reflect underlying viewpoints concerning gender and sexual behavior. This study will treat the views of late Byzantine canonists concerning the dissolution of marriage. These canonists will include Matthew Blastares (ca. 1335), whose nomokanon. The Alphabetical Collection, enjoyed great popularity during the fourteenth century; as well as Theodore Balsamon (c. 1140 – c. 1195), John Zonaras (death after 1189), and Alexios Aristenos (twelfth century), whose commentaries and works remain canonical references for the Orthodox church.

THE GROUNDS FOR DIVORCE

The Alphabetical Collection was a popular legal work of the fourteenth century surviving in a large number of manuscripts and translated contemporaneously for use in the Serbian Empire of Stephen Dushan. 1 Divorce legislation occupies a large section constituting an entire chapter and including citations of imperiallaw.2 Dissolution of marriage occurs legally for causes that have arisen from actions by one or both of the parties to the union. According to these causes, the divorce is either penalized or unpenalized.

At the outset of his discussion, Blastares states that divorce by mutual consent was formerly blameless according to “ancient laws and long-held custom.” Such dissolutions took the form of the husband saying to his spouse, “Wife, manage your own affairs,” and the wife, “Husband, manage your own affairs.” This type of divorce was “abolished by Christians” through the enumeration by “the pious emperors” of causes for the dissolution of marriage, without which “it is illicit to separate.” According to Blastares, “the civil law,” and especially “the novel of Justinian which expressly sets forth the causes for which the husband or the wife sends a libellus of repudiation, i.e., a bill of divorce, to the spouse,” treats divorce “most completely.”3

Sexuality, Marriage, and Celibacy

There are six main causes listed for divorce that arises from the actions of the wife. Each is taken from imperial legislation and, with the exception of the last cause, also listed in another legal work important for the study of canon and civil law, the Nomokanon of Fourteen Titles.4 They are cited as follows:

  1. If the wife is implicated in any plotting against the Empire, and did not reveal this to her own husband.5
  2. If an accusation of adultery were to be made against the wife, and she were to be convicted as an adulteress according to the law.6
  3. If she plotted against the life of her husband in any manner whatsoever, or consented for others to do this, and did not reveal it.7
  4. If she attends banquets or bathes with strange men, against the will of the husband.8
  5. If she stays outside of the home against the will of the husband, unless she happens to be with her own parents, or he drives her out without the aforesaid causes, and parents not existing for her, she spends the night outside.9
  6. If she attends horse races, theatres, or hunts, in order to be seen, without her husband’s knowledge or against his prohibition. 10

For these causes, the husband is able to repudiate the wife and gain the dowry. The wife can be accepted back by the husband during the two-year period after the repudiation, although this would mean that he “condones the crime.”

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In turn, there are five causes that arise from the husband’s actions, for which the wife is able to send a libellus of repudiation. Likewise, these are also based on imperial legislation, and are as follows:

  1. If the husband himself conspires against the Empire, or after be-coming aware of others that conspire, he does not reveal this to the emperor either in person or by any other persons. 11
  2. If the husband plots against the life of the wife in any manner whatsoever. 12
  3. If the husband plots against the chastity of the wife by endeavoring to deliver her up to other men in order to be debauched. 13
  4. If, after the husband accuses her of adultery, he does not prove it.14
  5. If the husband has carnal relations with another woman in the same house, or in the same city, and after being warned by the wife, her parents, or any other person, he does not wish to abstain. 15

These causes are listed in the Nomokanon of Fourteen Titles as well. 16 On account of them, the wife is able to send a bill of repudiation, obtain her dowry, and gain “the husband’s gift on account of the marriage,” the antenuptial gift. Ownership of the gift is held on be­ half of the children, or if there are no offspring from the marriage, it is kept by the wife.

wedding crowns

Unpenalized dissolution of marriage arises from three main causes, which are also derived from imperial legislation. These causes are: impotence of the husband for three years, entrance by either spouse into religious life, and the capture and uncertain fate of either spouse for five years. 17 In the first case, the antenuptial gift remains with the husband and no loss of property occurs for either party. Entrance into the religious life is treated with regard to property relations in the same way as the death of a spouse. On this point, Blastares cites from the fifth chapter of Justinian’s twenty-second novel:

Wherefore, the one contracting would fix by agreement a benefit to occur in case of the other’s death. This benefit is necessary for the party left behind by the other (either husband or wife can establish it), since he that chooses one mode of life instead of another is thought to be dead for his spouse.18

However, remarriage of the spouse left in the world is not dis­ cussed. Although, if both husband and wife enter religious life, and one remarries or fornicates, the children receive all of that partner’s property, and in lieu of offspring, the state treasury. 19

Finally, Blastares covers the penalties for a divorce that occurs illegally, without any of the causes set forth by the law. These penal­ ties include confinement of both spouses to a monastery with loss of all property, which in tum is given to either the family or the monastery depending on whether the ascendants or descendants acquiesced to the illegal repudiation. If reconciliation takes place before the confinement, no penalties apply. Likewise, if one of the parties “wishes the marriage to be restored, and if the other were to not consent, the punishments prevail against the one that does not assent.” This discussion appears to be a synopsis of eleventh chapter of Justinian’s one hundred thirty-fourth  novel. 20

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The full article can be read here:

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The Syntagma of Matthew Blastares

The most important of the collections of ecclesiastical origin from the late Byzantine period is the Syntagma kata stoicheion, or Alphabetical Syntagma, of Matthew Blastares (ca. 1280–ca. 1350). Blastares was a priest-monk. He lived for most his life in the monastery of Kyr Isaac (the monastery of the Peribleptos) in Thessalonike, where he died. He had an extensive education and left behind a great literary legacy, which is not confined to the area of law. The Syntagma is an alphabetically arranged encyclopedia consisting primarily of ecclesiastical law but including other fields to the extent that these were of practical use to the members of the clergy. During the last centuries of Byzantium, the clergy became more involved in the judicial process, and it seems that Blastares’s purpose was to help them. The Syntagma is divided into 24 sections according to the letters of the Greek alphabet, and every section is subdivided into chapters. In the beginning is found the preface, or protheoria (which includes the history of the sources of canon law in chronological order, followed by that of the civil law), a table of the chapters, and a concise forward ‘Concerning the Orthodox faith’.

Hieromonk Matthew Blastares
Hieromonk Matthew Blastares

The collection of Blastares was created in 1335 and was based on several sources. From the ecclesiastical side, he used the Nomokanon of Fourteen Titles and the commentaries of John Zonaras and Theodore Balsamon. From the civil side, he used the legislative and codifying works of the Isaurians (Ecloga) and those of the Macedonian dynasty (the Epanagoge or Eisagoge, the Procheiron or Procheiros Nomos, the novellae of Leo, and the Basilika). Blastares also used many private collections and compilations created between the ninth and fourteenth centuries.

In its manuscript tradition, the Syntagma is usually accompanied by an appendix containing texts of nomokanonic content. Some of these are works of Blastares himself (such as certain synopses; see below), while some others probably had undergone only some reworking by him (such as the responsa of Niketas of Heraclea and a part of the responsa of John of Kitros). It is not certain, however, whether these texts were selected—at least as a whole—by Blastares or whether they were a later addition to the appendix.

Thanks to its rich content as well as to the practical, useful arrangement of its material (and perhaps also thanks to the support it received from certain theological circles, the hesychasts), the Syntagma had great circulation, as its rich manuscript tradition indicates. It was also the object of further reworking (in the paraphrase of Kounales Kritopoulos) as well as the direct source of later works of compilation in the post-Byzantine period. It also circulated widely in the Slavic countries and in Romania. Shortly after its composition it was translated into Serbian. It was also translated into Bulgarian in the sixteenth century and into Russian in the seventeenth century. In those countries it became an integral part of the basic sources of their canonical law.

Of the other works of Blastares, the following also are of legal interest: a synopsis of the Kanonikon attributed to John Nesteutes; another synopsis of the canons of Pseudo-Nikephoros; a listing in verse form of the offices of the Great Church and the palace of Constantinople; and a dictionary of Latin legal terms, known as the Adnoumion Lexikon.

VLASTARIS Canons

Against the Jews

Matthew Blastares prepared his Syntagnia, an encyclopedia of earlier secular and ecclesiastical rulings which the monk considered applicable to fourteenth-century Byzantine society The references to the Jews in the Syntagma are therefore reflective of the contemporary attitude of the church toward Jews and the problem of Judaizing heresies.

The Syntagma is arranged alphabetically. Such an arrangement, not uncommon to the area, has the advantage of combining in one section the essential rulings of both church and state on a given subject.47 Chapter IV of the letter I, for “Ioudaios,” contains the basic material referring to Jews that Matthew Blastares considered particularly relevant for his contemporaries. In it, Christians are warned to avoid social and religious contact with Jews; they may not celebrate festivals with them or even inadvertently show respect to their traditions by, for example, avoiding work on the Sabbath. Prohibited, too, are communal bathing, intermarriage, and the exchange of gifts (the latter probably a reference to the Jewish custom of exchanging gifts during Purim). In compliance with secular law, the church is forbidden to convert a fugitive Jew who seeks the protection of the church to escape punishment or, even, his responsibilities. The converse, however, was for obviously different reasons: Jews are forbidden to circumcise a Christian catechumen.

So far, Blastares was repeating Orthodox traditions. In the middle of this chapter, interestingly enough, appears a long excursus on the Orthodox attitude toward the unleavened bread (azyma), which was a major area of disagreement with the Latin church. To Blastares, the Latin use of unleavened bread reflected Judaizing tendencies. Judaizing heresies are also mentioned in the Syntagma (all connected with the Passover and Easter celebrations), but it is not known if these heresies still existed in the fourteenth century. Byzantine religious texts continually recite the litany of contemporary and historical heresies. This excursus however, is a warning to the Orthodox population: Just as you are to avoid Jews, you must also avoid cultural influences that may subtly challenge your faith.

Later generations of Byzantine ecclesiastics continued to sharpen their pens and their arguments with polemics against Judaism. Through a misidentification, scholars for some time thought there was a Patriarch of Jerusalem, named Thaddeus Pelusiotes, who wrote a tract against the Jews at the end of the thirteenth century. It appears, however, that the tract was written by Matthew Blastares and ascribed to the fictional Thaddeus by the well-known scribe and forger Constantine Paleocappa in the sixteenth century.

Hieromonk Matthew Blastares
Hieromonk Matthew Blastares

Matthew Blastares, Commentary on St. Basil’s Thirteenth Canon (1355):

For it will follow, they say, in consequence of this that the most brave of the soldiers by their way of life…will be deprived of the good participation, which is an unendurable punishment for Christians. For what reason, they say, are their hands not clean, which he himself testifies fight for chastity and piety, viewing this as best of all? If these men were not willing to come to blows with their opponents…might those things that ruin piety be hastened when the barbarians bring everything under their sway in the great absence of opposition, and when they zealously decide to strengthen their own worship? Who will be the one that pursues chastity, when all are compelled to live in accordance with those who have already become rulers?

Blastares also refers to the 10th century synod that relied on the authority of St. Basil’s thirteenth canon to thwart Phokas’ attempts to secure martyrdom status for Byzantine soldiers slain in battle and the ecclesiastical arguments to achieve this: “How is it possible to number with the martyrs those who fell during war, whom Basil the Great excluded from the Sanctified Elements for three years since their hands were not clean?” Both Balsamon and Blastares also recount (with some differences) another instance during the same synod when St. Basil’s canon was applied to effect the defrocking of certain priests and bishops who were arraigned for having fought and killed enemies in battle. Ultimately, Blastares rejects the arguments of Balsamon and Zonaras and confirms the validity and relevance of the three-year penance of exclusion from Communion recommended in St. Basil’s canon on the basis of his own theological and scriptural arguments. The scriptural arguments, according to Blastares, include allusions to and exegesis of the aftermath of the God-commanded war of obliteration of the Israelites against the Midianites, when Eleazar the priest ordered the Israelite soldiers who were returning from the bloodshed

To remain outside the encampment for seven days, showing, I believe, that although the slaughters against enemies are legal, nevertheless, the man who kills a human being…appears to be blameworthy…

Blastares thus reasserts the theological and ecclesiastical appropriateness of the prohibition envisaged in St. Basil’s canon. At the same time, inevitably conscious of the existing patterns of justifying Byzantine Christian engagement in armed conflict on the basis of St. Athanasios’ canonical epistle to Ammoun, he emphasizes also St. Basil’s tribute to those who safeguard “the race of the Christians” and fight its enemies, indeed, drawing on it he proceeds to affirm the legitimacy of Christian defensive warfare by posing the rhetorical question: “For what might be a more worthy reason for praise than to defend on behalf of chastity and piety?”

There exists various records of strong Eastern Orthodox disquiet at the phenomenon of Western priests carrying arms and participating in fighting during the crusading era. The following extract from Anna Komnene’s Alexiad highlights both the criticism of this “Latin” phenomenon and the view shared in both Byzantine secular and ecclesiastical circles, that the pacifistic precepts in the New Testament and Eastern Orthodox canon law categorically disallow such a practice for Eastern Orthodox monks and priests.

Fresco of Basil the Great in the cathedral of Ohrid.
Fresco of Basil the Great in the cathedral of Ohrid.

From: Anna Komnene, Alexiad, 10.8.8.

The Latin custom with regard to priests differs from ours. We are bidden by canon law and the teaching of the Gospel, “Touch not, grumble not, attack not—for thou art consecrated.” But your Latin barbarian will at the same time handle sacred objects, fasten a shield to his left arm and grasp a spear in his right. He will communicate the Body and Blood of the Deity and meanwhile gaze on bloodshed and become himself “a man of blood” (as David says in the Psalms). Thus the race is no less devoted to religion than to war…Our rules, as I have just said, derive from Aaron, Moses and our first high priest.

alexiad

SOURCES:

Gregory M. Reichberg, Religion, War, and Ethics: A Sourcebook of Textual Traditions, pp. 184-185.

Spyros Troianos, Byzantine Canon Law from the Twelfth to the Fifteenth Centuries, pp. 185-187.

Steven B. Bowman, Jews of Byzantium 1204-1453, pp. 30-31.

 Sexuality, Marriage & Celibacy in Byzantine Canon Law-The Alphabetical Collection of Matthew Blastares