From Sacrament to Contract: Marriage, Religion, and Law in the Western Tradition
by john witte, jr.
westminster/john knox, 315 pages, $24
As its principal objective, this ninth volume in the series “The Family, Religion, and Culture” aims to illuminate the transformation of the institution of marriage in the West since the sixteenth century. Drawing mainly from Protestant authors of the early modern period, John Witte, Jr. discusses “the interplay among law, theology, and marriage in the West.” The selected and annotated texts detail the status of marriage in various religious and secular traditions after the sixteenth-century Reformation, and are presented in such a fashion that the reader can come to terms “with the cardinal religious sources and dimensions of the modern Western marriage law on the books.” No one aware of the present state of marriage can pick up and start to read a book like this without soon harboring the suspicion that something central to marriage has disappeared over the past several hundred years.
The bulk of this scholarly volume treats the distinctive and different ways that the Lutheran, Calvinist, and Anglican traditions adapted what the author identifies as the medieval model; the Catholic tradition, with its insistence that marriage constitutes a true sacrament of the new dispensation, thus serves as something of a foil for the book’s extended argument. Though Witte does not state explicitly that his methodology is shaped by the Protestant principle, he nonetheless proceeds on the assumption that historical Christianity passed over, at least in the West, into the ecclesial communions that developed out of the Reformation.
The author identifies three ways of conceiving of marriage that emerge in the theological tenets, political structures, and legal systems of Lutheranism, Calvinism, and Anglicanism. The presentation supposes that it is theological views that at least trigger developments in the other areas, which is understandable in a book that proposes a theological reading, not a sociological analysis, of developments in marriage customs. What do we learn? In short, arguments for a particular construal of Christian justification influence and shape views about marriage among Christian believers.
Martin Luther initiates the iconoclastic change. Lutheran two kingdoms doctrine squarely relegated marriage to “an estate of the earthly kingdom . . . subject to the prince, not the Pope.” This removal of marriage from its status as an icon of the union of Christ and the Church resulted in some dramatic contrasts, for “to place marriage in the natural order of creation was to deny it a place in the spiritual order of redemption.” Marriage remains, in Luther’s own words, “a secular and outward thing.” An alien justification does not touch the mating act. Jurists not clerics will adjudicate the difficult questions concerning marriage practice. It is perhaps not without some significance that the Wittenberg jurist Hieronymous Schürpf served as best man at Luther’s own wedding to the former nun Katherine von Bora.
At the beginning of his reforming career, John Calvin adopted as his own this standard Protestant view of marriage, but later he was able to develop a more sophisticated analogy for marriage. He applied his own theory about justification as establishing a covenant of grace to the marriage union, and argued that “God draws a husband and wife into a covenant relationship with each other.” Calvin enjoined a strict code of marital morality and mores, and so added a spiritual dimension to marriage in the earthly kingdom. The spiritual realities of marriage, however, called for safekeeping by the civil authorities. Witte writes, “Marriage required the coercive power of the state to preserve its integrity. But it also required the spiritual counsel of the church to demonstrate its necessity.” He reminds us that the Geneva Council, a political body, enjoyed the authority to punish infractions of sexual morality among both the married and the unmarried.
It is more difficult within the Anglican communion to identify a single figure to whom credit is owed for the development of marriage laws. The peculiar circumstances of the English Reformation account in part for the gradual way in which marriage evolved. Even the celebrated divorce of King Henry VIII did not keep the English ecclesiastical law of marriage in the late sixteenth century from looking very much like the Catholic canon law of marriage of a century or two before. By the seventeenth century, however, the Anglican divines had begun to develop a theology of marriage to replace the sacramental model of marriage that the Thirty- Nine Articles clearly denied. These theologians “regarded the interlocking commonwealths of state, church, and family as something of an earthly form of heavenly government.” The commonwealth model of marriage held wide appeal among a diverse spectrum of English theologians, and served as the starting point for the liberalizing reforms later urged by authors as different as John Milton and John Locke.
The final chapter examines the presuppositions of the Enlightenment, with John Stuart Mill serving as the spokesman and prophet for the “contractarian gospel.” Witte argues that this predominantly secular view of marriage provided the theoretical justification for the present-day transformation of Anglo-American marriage law. In the end, the author believes that the Enlightenment thinkers developed a “theological” model, even though he completes this exhaustive study by citing a grim text from one of Nietzsche’s “Letters” that sounds anything but theological: “‘The family will be slowly ground into a random collection of individuals,’ haphazardly bound together ‘in the common pursuit of selfish ends.’” All in all, the book makes fascinating reading, and should be studied by those who want to discover more about the present configurations of marriage among Christians of all denominations.
Though he devotes the first chapter to “Marriage as Sacrament in the Roman Catholic Tradition,” Witte’s analysis concentrates principally on the medieval centuries and concludes with some brief remarks on the marriage legislation of the Council of Trent in 1563. This means that some important pages are missing from the Catholic history of marriage. For example, during the Catholic Reform that took shape from the mid- sixteenth century, the Catholic Church helped the institution of marriage and family by committing enormous resources to the work of education and child care. One thinks not only of the personnel that the Jesuits and other religious institutes devoted to teaching young men but also of the teaching congregations of religious women, such as the Ursulines, who educated young women in virtue and learning. Furthermore, it is impossible to understand the Church’s teaching about the sacramentality of marriage without some reference to the modern papal Magisterium that begins with Leo XIII and continues under John Paul II, whose instruction on marriage and family remains one of the outstanding features of his pontificate.
Of course, it is never fair to criticize an author for the book that he did not write, but the omission of a contemporary presentation of the sacramental model accounts in my judgment for the somewhat skewed presentation that Witte gives of the Catholic theology of marriage.
One good example of this skewing is the way he interprets Aquinas’ discussion of the question whether matrimony still remains “sub praecepto.” The author seems unaware that Aquinas never wrote a section on marriage for the Summa Theologiae, citing texts from the Supplementum, an editor’s scissors and paste assemblage of texts from Aquinas’ earlier Sentence Commentary as if they had been composed for the Summa. In any event, in the text under consideration Aquinas is arguing for the licitness of celibate spousal love, not for the thesis that marriage constitutes a great obstacle to virtue. The misrepresentation becomes all the more apparent in light of Aquinas’ unequivocal affirmation elsewhere that the marriage act, provided that it meet the requisite conditions established by right reason, embodies an action that is both virtuous and meritorious.
A more serious slight to the Catholic view of marriage is Witte’s equation of canonically permitted separation with the practice of divorce. When the Church asserts that spouses “cannot be separated sacramentally as long as they both live, provided they are married legitimately,” she is proclaiming a truth about the marriage bond that she believes comes from the Lord himself. Michael Smith Foster in Annulment: The Wedding That Was: How the Church Can Declare a Marriage Null (Paulist, 1998) provides a careful explanation of how the Church abides by this norm even to the present day.
The liturgical prayers presently used in the Catholic wedding ceremony capture the Catholic doctrine on marriage: “Father, to reveal the plan of your love, you made the union of husband and wife an image of the covenant between you and your people. In the fulfillment of this sacrament, the marriage of Christian man and woman is a sign of the marriage between Christ and the Church.” Unfortunately, the present volume can easily leave one with the impression that the movement from sacrament to contract represents a progression of marriage theory from shadow to light. When one considers the present state of marriage in the West that the author describes in the final pages of his text, there is ample reason to ask whether a renewal of the sacramental view of marriage is not long overdue in Western Christianity.
Romanus Cessario is Professor of Systematic Theology at St. John’s Seminary in Brighton, Massachusetts.
