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Constantine's Legislation on Marriage

Antonello Mastronardi

University of Michigan

Despite being embedded in a more-broadly conceived program, Constantine’s legislation on marriage is peculiar on account of its two-fold attitude towards its Augustan precedent. If on the one hand, Constantine explicitly repealed Augustus’ harshness on unmarried widows and divorcees, it is remarkable that he did not mitigate the inheritance penalties that Augustus had imposed on childless spouses. This provision, explained by Christian propaganda as a consequence of Constantine’s devotion, has vexed scholars in their attempt to frame it within a broader understanding of Constantine’s moral legislation as a set of laws acting to free imperial nobilitas from the burden of the old sanctions imposed by Augustus. Strikingly, the edict ends puts the blame for infertility exclusively on wives. Proceeding from this too often overlooked specification, my paper aims to offer a new reading of the second part of the law as a provision enacted consistently with those values that were primarily familiar to the imperial nobilitas.

If it is true that denigration for anti-conceptive practices had constituted a recurrent argument for 2nd and 3rd centuries Christian polemists (Balmour 1975, Richlin 2006), the misogynistic note about women’s preponderant role in infertility ties directly back to an idea that was deeply rooted in Roman common beliefs, to the extent that it led Pliny the Elder to attribute the very invention of abortion to women (N.H. 10.172, for other sources see Richlin 1997 : 156 ff.). Indeed, traditional wisdom shows a strong aversion to birth control and abortion practices (a distinction that was rather blurred in the eyes of many Romans), as is apparent in many popular sayings (Morgan 2007). Among these sayings, it is noteworthy that this topos occurred far more frequently in gnomai, rather than in less elaborated proverbial formulations. As paroemiologists remark (Kindstrand 1978, Morgan 2007), gnomai were perceived in antiquity as a higher wisdom genre in comparison to the more popular paroimiai, and from early empire onwards collection of gnomai were commonly used in the education of the nobles (Potter 2013).

Rather than trying to fit it within the framework of his religious agenda, I understand Constantine’s decision to maintain inheritance penalties on childless couples as a clear sign of continuity with the traditional morality of the imperial elite. Now that the pressure of those penalties, which had been never fully accepted by the nobility, was finally being lifted through his agency, Constantine’s conservative decision on childless spouses was not a consequence of his devotion to Christian exclusive belief in reproductive sex, but rather a message that appealed to a common and unquestioned presupposition. As a further element in support of this reading, this paper highlights that the stress that Constantine places on the role of women in infertility is frequently attested in Roman literature and wisdom, whereas it is quite unfamiliar to Christian discourse about this topic.

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Law and Society in Late Antiquity

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