divorce their adulterous wives, or risk prosecution for pandering (LexJulia de adulteriis).2
Stoic philosophers in the early empire likewise stressed the importance of marital morality and its relevance to the maintenance of social order. Musonius Rufus, for example, held that sex should occur only within marriage and only for procreation (frag. 12). Like most Stoics, Musonius regarded marriage and family as essential to the maintenance of civic life, for 'whoever destroys human marriage destroys the household, the city, and the entire human race' (frag. 14).3 In practice, of course, a double standard prevailed. Prostitution was legal, and young men were expected to acquire sexual experience before marriage. Married men, likewise, were not held to the same standards as their wives; sexual activity with slaves (male or female) or with prostitutes was widely regarded as morally unproblematic. Christian preachers later tried to remedy this situation, apparently with minimal success.
In the fourth century the rise of Christianity to greater prominence in Roman society led to some incremental changes in Roman legal practice relating to marriage and family. In 320, probably as a concession to the ascetic ideals ofthe Christians, the emperor Constantine repealed Augustus' marriage laws, thereby revoking the penalties imposed on those who chose celibacy or remained childless (CTh 8.16.1; CJ 8.57.1). In 331, Constantine also severely limited the reasons why either a man or a woman might initiate a unilateral divorce or repudium (CTh 3.16.1). It is unclear, however, whether or to what extent this legislation was influenced by specifically Christian values. In any case, these laws applied only to unilateral divorce. Divorce by mutual consent remained unpenalised until 542 when the emperor Justinian tried unsuccessfully to prohibit it (Novel 117).4
Justinian attempted in other ways to conform imperial legislation more closely to Christian teaching. He issued several laws to protect women from forced prostitution, closed brothels in Constantinople, and strongly encouraged prostitutes to reform their lives (CJ 184.108.40.206; Novel 14). Justinian also acted more vigorously than previous emperors to suppress homosexual activity.
2 For a summary and discussion of the Augustan legislation, see Judith Evans Grubbs, Women and the law in the Roman empire, 83-7.
3 Both philosophical and medical writers supported the ideal of sexual moderation for men as well as for women. See the discussions in M. Foucault, The history of sexuality, 111 and A. Rouselle, Porneia.
4 Justinian's successor, Justin II, reinstated the procedure of divorce by mutual consent (Novel 140). In his decisionJustin noted that he had received many complaints from couples who suffered terrible domestic discord (proelia discordiasque), but who were unable to provide legal grounds for divorce under Justinian's regulations. See the discussion in James A. Brundage, Law, Sex, and Christian Society, 114-17.
Was this article helpful?