3.1 Introduction
One of the most important sources used by the mediaeval scholastic theologians in their Sentence commentaries to reinforce their conclusion on women’s exclusion from the Sacrament of Orders was the Concordantia Discordantium Canonum, the collection of discordant canons, used as the basis of Church law for centuries. Known generally as the Decretum, it was the work of Gratian, a teacher and, probably, a lawyer living and working in Italy during the early twelfth century. ‘About Gratian, we can only know with any certainty that he composed the Decretum in Bologna in the 1130s and the 1140s, and that he was a teacher with theological knowledge and a lawyer’s point of view.’ Later in life he is likely to have lived as a monk, as witnessed by references to the Rule of St Benedict in the Decretum and to the writings of Gregory the Great on Benedict’s life. He seems to have spent many years compiling his law book, from the 1120s to about 1140. The outstanding nature of Gratian’s achievement was partly due to the fact that he stood alone, with no predecessor and almost no successor for many years. Not only did he provide a textbook for canon law, he secured the subject itself a place in the schools for the first time. Study of Gratian remains essential, as has been pointed out, because: ‘Church law is an integral part of mediaeval culture; if we fail to take this into account we cannot properly appreciate the contribution of one of the essential components of Western civilisation.’
The Decretum consists of three main sections: the introduction, setting out general legal principles; a substantial main section consisting of mainly imaginary, but sometimes real, cases of all types and degrees of importance to demonstrate the complexity of disputes in the ecclesiastical law courts; and, finally, a section on sacraments, as well as a miscellany of other topics covering the minutiae of Church and daily life. This final section essentially sets out what is needed for those ‘seeking full citizenship of the Church on earth, and therefore full rights in the Christian community . . . the necessary requirements for a full, orthodox Christian life’. References to women in Gratian are few, scattered throughout under a variety of headings, using as their sources scriptural references, the writings of Church Fathers, earlier collections of canons and traditional teachings. They cover woman’s created nature (her weakness of mind, state of subjection and subordinate status in the order of creation), her inferiority in law (invalidity as witness in ecclesiastical courts), the ban on women teaching in church, and the impropriety of women’s presence in the sanctuary.
In later years, the collection of canons was extended from a variety of sources and edited, along with legal books from popes and other canonists, especially Raymond of Pennafort and Boniface VIII in the thirteenth century, up to 1500, when the lawyer Jean Chappuis brought the various collections together into the Corpus Iuris Canonici, published under this title into modern times.
3.2 Gratian’s sources
When considering the position of women with regard to priestly ordination, Gratian first turns to the story of human creation in Genesis. This story was (and is) perceived as the origin of the divine hierarchy of order and authority, and Gratian used it to establish the credentials for the legal strictures governing women’s position and function in the family and in the Church.
In Part II of the Decretum there is a ruling on the subject of married women who wished to take a vow of continence. A married woman could not do this without her husband’s consent, for ‘Women ought to be subject to their husbands’. In Church law, therefore, subjection of a woman to her husband was explained by Gratian as part of the married state, in which equality applied only to the sexual relationship – with the same rights granted to both husband and wife, neither of whom could abstain from conjugal relations without the agreement of the other. The overarching authority of the man applied because of woman’s essential ‘state of servitude’, which meant she was subject to her husband in all else. And quoting Augustine (354–430) referring to a husband’s authority over his wife: ‘It is the order of nature among human beings that women obey man and sons obey their parents, because it is justice in these matters that the lesser obey the greater.’ The status of woman was that she to be subject to man, specifically to her husband or father. Women have a weaker nature, suffer ‘weakness of mind’, and are in a state of servitude because woman was not made in God’s image, so she is subject to her husband, as part of the natural order. This submissive state was a direct result of women’s role in bringing sin into the world, through the action of Eve. ‘Because of original sin, they must show themselves submissive.’ So, because of their part in the sin of Eve, women were punished by subjugation and burdened with physical and mental weakness.
Mentioning Ida Raming’s study of canon law, Alcuin Blamires says: ‘What Augustine calls the natural order simply amounts to the actual hierarchy operative at the time—thought of as a universal.’ Gratian emphasizes this hierarchical structure, noting that woman is not of equal status to man in the order of creation, ‘the image of God is in man [homine] in such a way that there be only one lord, the origin of all others, having the power of God as God’s vicar, for every king is in God’s image; and thus woman is not made in God’s image’.
He adds: ‘Adam was deceived by Eve, not Eve by Adam. It is fair that the one whom she called to sin should now assume her governance, lest she fall again through female weakness.’ And later, he writes:
Woman must veil her head, for she is not God’s image. But, to show that she is subject and because sin began through her, she must carry this sign: not to hold her head free in the church, but covered by a veil in respect for the bishop, and not to have the authority to speak, for the bishop stands for the person of Christ. On account of original sin, she must be seen as an inferior before the bishop, who is the vicar of the Lord, as before a judge.
He repeated the point that woman was made from man (Gen 2:22), indicating her subjection. The temptation and Fall (Gen 3) was seen as indicative of woman’s weakness, both morally and intellectually, and as justification for her inferior position: part of the payment all daughters of Eve had to make for their mother’s sin. On this theme, Gratian earlier refers to Paul, saying:
Since the male is the head of his wife as Christ is the head of the male, a woman who does not obey her husband, that is, her head, is guilty of the same crime as a male who does not obey Christ, his head. It is blasphemous against the word of God to despise the first point and make nothing of it, and to insult the gospel of Christ, as when a Christian woman, who is, by divine law, subject, wants to dominate her husband in spite of the law and fidelity of nature, while even pagan women, in keeping with the universal law of nature, obey their husbands.
These scriptural reasons for women’s inferiority in the sight of the law led to the inevitable conclusion that they were unsuitable for all kinds of roles within the Church. They could not hold any office of authority, teaching or ministry. They could not be ordained as priest or deacon, and they could not even raise a complaint against a priest in court.
Gratian also used the writings of the Church Fathers as source material. In On the Veiling of Virgins, Tertullian (AD 150–225?) stated that women were forbidden to preach, baptize, or claim any sacerdotal office. Sarah Coakley shows that the fear of women’s erotic power within spiritual practices was beginning at this time to be seen as disturbing and dangerous, ‘…a special commitment to deep prayer in the Spirit… came with the concomitant danger of the intensification of erotic power and a problematic entanglement of human spiritual and sexual desire’, specifically mentioning Tertullian’s On the Veiling of Virgins.
Augustine frequently showed from scriptural references that it was ‘natural’ for man to rule over woman:
Nor can it be doubted, that it is more consonant with the order of nature that men should bear rule over women, than women over men. It is with this principle in view that the apostle says, ‘The head of the woman is the man’ and ‘Wives, submit yourselves unto your own husbands.’ So also the Apostle Peter writes: ‘Even as Sara obeyed Abraham, calling him lord.’
This cyclical reasoning, men rule over women, therefore women are naturally inferior and must submit (‘est ordo naturalibus in hominibus, ut feminae servirant viris’), is encountered frequently in the writings of the Church Fathers and in these decretals. There are also instructions, in a lengthy text, forbidding women to teach or baptize, purporting to come from a Council of Carthage (397), although in fact the quotation comes not from a conciliar decree but from a collection of canons known as the Statuta Ecclesia Antiqua, a southern-French compilation of laws probably dating from the end of the fifth century, which became part of the pseudo-Isidorian collection that we will look at below. The Statuta was a collection of canons taken from some early Greek councils, as well as from the decretals of certain popes. The Council of Carthage mentioned above never in fact took place and the collection may have originated in the writings of Gennadius of Marseille, a late fifth-century priest and historian.
Another source for Gratian was a fourth-century scriptural commentator known as Ambrosiaster (that is pseudo-Ambrose). This was the name given in the sixteenth century to the author of a commentary on the letters of Paul, which was widely attributed to the fourth-century Bishop Ambrose of Milan. Many other writers, including Augustine and Pelagius, valued and used these writings, so they became very influential, especially on the development of canon law.
Writing on 1 Timothy 3:11, Ambrosiaster quotes the case of a heretical sect known as the Cataphrygians (people from Phrygia), or Montanists, who permitted the ministry of women:
Therefore he [Paul] also wants women who are manifestly inferior, to be without fault, in order that the Church of God be pure. But the Cataphrygians . . . contend with vain presumption that, because the apostle, after addressing deacons, speaks to women, they too can be ordained as deacons, although they know that the apostles chose seven male deacons. For was there at the time no single woman fit to be found, since under the eleven apostles we read that there were holy women? . . . And though he orders the woman to keep silent in church, they on the contrary try to vindicate the authority of her ministry.
The claims by Montanists, including Montanus himself and his two women disciples Prisca and Maximilla, of prophecy and visionary ecstasies caused concern and, increasingly, from the end of the second century, the movement was treated as heretical. It seems to have disappeared by the beginning of the eighth century, but continued to be remembered, especially because of its presence in the writings of its opponents. Bishop Eusebius (263–339) wrote: ‘For some persons, like venomous reptiles, crawled over Asia and Phrygia, boasting that Montanus was the Paraclete, and that the women that followed him, Priscilla and Maximilla, were prophetesses of Montanus.’ The scholastic writers sometimes used their example of unorthodox practice as evidence pro in their commentaries on the Sentences, before their conclusions contra.
In his commentaries on Paul’s letters, Ambrosiaster enthusiastically takes up the apostle’s teachings in 1 Corinthians, and in the first letter to Timothy, to demonstrate the inferiority of women, and these ideas were repeated and expanded by later writers, including Gratian. Ambrosiaster used 1 Cor. 7:10–11 – ‘A woman may not leave her husband. If she has left him she may not remarry’ – to assert that a woman who has chosen to leave cannot remarry, even if the husband had been unfaithful, or abandoned the Christian faith. However, a man could remarry under similar circumstances, because ‘a man is not restricted by the law as the woman is; for the husband is the head of his wife’. Gratian took this up, and expanded on it, with a discussion of the etymology of the words vir, virtus, mulier and mollicies, to demonstrate the weak-mindedness of the woman. By extension, Gratian believed the term mulier could be used for either sex to signify lack of chastity and the sin of adultery, an ‘appropriate designation . . . in the case of both sexes because of their wicked depravity . . . each of whom is called a woman by reason of the corruption of lust’.
Subsequently, synod after synod gradually imposed local rules banning women from being ordained as deacons, and from touching sacred objects or receiving communion in the hand. For instance, the Synod of Rouen in AD 650 forbade priests to allow women to hold the chalice, or help to distribute communion, in case of pollution from menstruation or childbirth, indicating that such practices were well known. As asserted later by Duns Scotus, among others, the argument given was often that, to quote Scotus himself, ‘in former times, people were less sinful than they are now, and therefore needed fewer restrictions, but in these degenerate days, such licence cannot be allowed’. Gratian made the same point, when asserting that women could not be ordained, ‘in the Old Law many things were permitted which today are abolished, through the perfection of grace’.
Another influential source for Gratian’s work was found in the collections of pseudo-apostolic constitutions, incorporating the earlier Didache and the Didascalia. These writings were popularly attributed to the Apostles, although never formally accepted as such by the church. Dating from the fourth century, they comprise a rather loose collection of legal precepts and catechetical instructions, intended mainly as a manual for priests. Although they claimed to be the writings of the Apostles and the work of St Clement of Rome, in fact they were probably compiled by an unknown clerical writer from the Antioch region. The fact they were apostolic in nature but not in origin was sufficient to give them the status of apostolic traditional writings, even though the Catholic Church never accepted them as such. Nonetheless, they were extremely well respected and used as supporting material for much of Church law, up to Gratian’s time and beyond into the scholastic period. They explicitly excluded women from all forms of ministry, again citing the example of Jesus ‘who sent only us Twelve to instruct the people and the heathen, but he never sent women although women were not lacking’.
3.3 Other writings
The use of documents later found to be falsely attributed to early authorities, either innocently or deliberately, was widespread in the Middle Ages. This is not an unusual method of providing support for the arguments of one party or another, then or now. One such collection is known as the False Decretals, a partly spurious treatment of canon law, composed between 847 and 852, probably in France by a man who called himself Isidore Mercator (hence the term pseudo-Isidorian Decretals). They were profoundly influential in the early Middle Ages and beyond. Incorporated and quoted in Gratian’s Decretum, they were treated as authoritative in textbooks of canon law throughout the period under consideration. Some scholars have considered that, as they were not intended to create new canons, but to add authority to existing law, the aim of their authors was at least sincere in intent. These documents did have some influence on legal developments, particularly when, as in the case of women’s position within the church, the ideas they promoted were in line with popular thinking and were supported by learned opinion. Such material is often discounted by modern scholars of the history of women’s exclusion from orders and should not be used as the basis for present discussions on the subject but, in terms of the Middle Ages, its misattribution is irrelevant since ‘the rights, institutes and structures they were vindicating were already in existence, even inherent in the structures of the Church’. For mediaeval readers, the apparent weight of historical documents from the earliest times of the Church gave the collection ‘unshakeable force and gravitas’. Nonetheless, with regard to matters relating to women, many of the alterations made to these texts were done in a way that was extremely prejudicial to females, arising from a low regard for them.
3.4 Roman law
Roman law was the juridical source of the exclusion of women from the Sacrament of Orders and so many other areas of Church life, particularly in Western Europe which remained under Latin influence for the first one thousand years of Christianity and beyond. The emperor Justinian compiled his ‘Digest’ of Roman law during the sixth century, which enabled this legal framework to survive and continue to be familiar to Western European scholars. Parts of this work are referred to in collections of canons and in the deliberations of Church councils during subsequent centuries. The arguments constantly invoked by Church Fathers from the second century onward appealed to the status quo to support their contention that women could not represent Christ, or even be made in the likeness of God, because women are subject to and therefore cannot be like God. There was no concept of injustice here and no idea that there was any conflict with the intentions of Jesus towards women. The assumption was that both Roman and Church law somehow represented the natural state of things, reflecting God-given, natural law. Roman law influenced the legal codes of most Western countries for centuries after the Roman Empire ceased to exist. Its attraction was its simplicity and clarity, and its practicality. It answered questions and resolved problems, developed as it was by the world’s greatest administrators. But it also enshrined the assumptions and prejudices of its writers. So, in Roman law, and later in mediaeval Europe, women could not own property but were themselves the property of men, either of their fathers, or of their husbands, the paterfamilias. James Brundage summarizes the position of women under these legislative systems, during the Roman Empire and up to the sixth century, in terms of the dominance of their male relatives. The man could dispose of the woman as he wished. A father could give his daughter in marriage to anyone. A husband could treat his wife as he chose, and she had no recourse to law at all. ‘Legislators and jurists assumed that women were at the service of men, ministered to male pleasure, and accepted male gratification as their primary goal. Roman lawmakers . . . treated women as in some measure less fully human than adult males.’ Subsequently, these provisions of law were modified, at least in the upper classes, as the increasing prevalence of primogeniture allowed women some freedom to hold their own property, whether a dowry or inheritance. In civil society, however, the legacy of the Roman period meant that mediaeval women continued to have few rights or standing in legal terms. A woman could not give evidence in court, or enter a court case without having a man to represent her, nor could she stand as guardian for another person, even for her own children. Even later, in Magna Carta in England, women’s access to law is restricted, and their status as witnesses in legal cases limited, although it did give greater rights to widows, who previously were often victims of unfair treatment in terms of inheritance and access to their own property after the death of a husband.
Hoeflich and Grabher describe how the rediscovery of Roman law was at the centre of the development of the knowledge base for the professionalization of law, in both academic and practical contexts. Beginning in Bologna with the first schools of law, Church councils went on to develop canon law, to rule on matters relating to doctrine and liturgy and, when necessary, to mediate in disputes within the community. The framework of Roman law offered a way in a litigious and complex society to deal with issues relating to marriage, property, ecclesiastical appointments, and so on. It offered procedural solutions, as well as the potential for future developments as case law built up. ‘Roman law promised something new in helping to give law a systematic existence in an increasingly complicated society.’
Later recensions of the Decretum used Roman law extensively, but Anders Winroth has sought to show that Gratian himself probably did not have as thorough a grasp of it as was formerly believed and that insertions were made by subsequent compilers to provide a more comprehensive framework for canonical legislation.
3.5 Use of Gratian and canon law by the mediaeval canonists and scholastics
In addressing the topic of the suitability of women for orders, the scholastic theologians of the Middle Ages mined Gratian for his references to women, although they were selective and interpreted these sources to suit their own needs. The canons in the Decretum relating to women come under two main headings: those on marriage, as we have seen, and those on women’s role in the church and the liturgy, mainly prohibitions. Part 1, d. 23, of the Decretum discusses several issues relating to liturgical practice. All of these were included by the leading scholastic theologians in their commentaries on the Sentences and their objections to women’s ordination. It forbids women, even religious sisters, to touch or carry sacred vessels and vestments, or to act as thurifers at the altar, supported by d. 1, chs 41 and 42, which reserved the handling of these objects to men only, evoking the polluting effects of menstruation. Distinction 2, ch. 29, De Consecratione, forbade women to take communion to the sick and again, in d. 23, there is the prohibition against women teaching: ‘No woman, however learned and holy, may presume to teach men in an assembly. No layman may dare to teach in the presence of clerics, except at their request.’ This prohibition is repeated in d. 4, ch. 20. Finally, there is d. 32, ch. 19, which forbade the ordination of presbytera in the Church. Other canons cover other subjects of relevance, such as the tonsure, veiling of women, and the responsibility of women for sin.
The Decretum specifically notes, though without explaining its reasons, that ‘women cannot be promoted to the priesthood or even the diaconate’, the context being their disqualification as plaintiffs in a case against a priest. This prohibition was supported by reference to Pope Fabian and explained by the fact that no one who was not of equivalent status could give testimony in court against a priest. The twelfth-century canonist, Bishop Huguccio, commenting on Gratian, explained that, even if a woman were ordained, her sex means that, de facto, the sacrament would have no effect on her: ‘she does not actually receive ordination and is forbidden to exercise the office to which she was ordained’. For Huguccio, it was woman’s status of subjection, rather than her weakness of intellect, that was the deciding factor, his judgement taken again from the second creation account in Genesis.
Gratian discusses the fact that, although women were allowed to be judges in Old Testament times, this was no longer the case in his own time. Whatever the situation in previous times, Gratian stated that this was no longer possible, using the argument mentioned above that, although these things were allowed in the Old Testament era, they are now abolished, ‘through the perfection of grace . . . because of sin, which woman brought into the world, women are admonished by the Apostle to be careful to practise a modest restraint, to be subject to men and to veil themselves as a sign of subjugation’.
Gratian refers to the practice of women being ‘consecrated’ as deacons, but not before the age of forty, when they could be considered as past child-bearing age, perhaps also associated with the blood taboo.
For the prohibition on women baptizing, Gratian quotes as his source for this restriction the Fourth Council of Carthage. As already noted, however, the source was in fact the Statuta Ecclesia Antiqua (see section 3.2). The text used by Gratian condemns this practice as reprehensible, saying ‘it is dangerous, yes even forbidden and godless’, and links it to the subordination of women. Allowing women to baptize or teach relegates man to a lower status, which ‘militates against divine justice’, interfering with the ‘arrangement of the Creator by degrading man from the pre-eminence granted him’. The argument is pursued by drawing conclusions from scripture: for example, ‘if women are permitted to baptise, then Christ would surely have been baptised by his mother’ , is one that is commonly repeated. The conclusion again returns to the order of nature, since Christ ‘as creator of nature and founder of its order knew the gradations of nature and what is proper’. The Decretum elsewhere specifically forbade a woman from instructing men in the assembly, even if ‘she is educated and saintly’. The same ban applied to laymen, although they could be given permission to teach by the clergy if appropriate. The text states that woman is subject to man, made from a rib of his body, and, since women were already forbidden to preach, they could not become priests. ‘The heathens do this, but it is not Christ’s way.’
3.6 Conclusion
Canon law at this period reflected an anthropology which saw woman as necessarily inferior to man, hence her secondary position in the Church was a natural consequence of her secondary position in the created order.
Eventually, the rules confirming the lower status of women came to be enshrined in Gratian’s Decretum, as it became incorporated into the canon law of the Catholic Church very early in its existence, quoted in papal and episcopal decisions as early as the mid-twelfth century. Its provisions remained in force until the 1917 Codex Iuris Canonici was promulgated. Nonetheless, this latter Code and its replacement in 1983 maintain the authority of the ‘old law’, by saying that, while the earlier Codes and penal laws are abrogated by the new Code, ‘they are to be assessed in the light also of canonical tradition’. This in fact means that Gratian’s text could still be considered of relevance in modern cases in canon law. So the ruling, ‘Only a baptised man can validly receive sacred ordination’, and the attitudes that the ancient canons encapsulated continue to inform the practice of the Catholic Church and therefore are of use in understanding how the ban on women’s ordination can be maintained up to the present time.
Despite Jesus’s attitude of inclusion of both women and men in his ministry, which the apostles themselves maintained for some time, the prevailing and traditional forms of social divisions gradually reasserted themselves and women were legally and effectively excluded from leadership and ministry in the Christian Church. As women’s status in law and society was perceived as naturally inferior, it is not surprising that this coloured attitudes to women in the Christian Church and their capacity for any form of leadership or ministry. ‘The inferior status of women was so much taken for granted that it determined the way Latin-speaking theologians and Church leaders would look on matters relating to women.’
Footnotes
[1] Anders Winroth, ‘Recent Research on the Making of Gratian’s Decretum’, Bulletin of Medieval Canon Law, New Series, 26 (2004–6): 1–29.
[2] R.W. Southern, Scholastic Humanism and the Unification of Europe, Vol. 1 Foundations (Oxford: Blackwell, 1995) p. 287.
[3] Southern, Scholastic Humanism, p. 285: ‘a whole subject which had not previously been recognised as having an academic content’.
[4] Stephan Kuttner, ‘Graziano: l’uomo e l’opera’, Studia Gratiana 1 (Rome, 1953), published in Gratian and the Schools of Law, 1140–1234 (London: Variorum Reprints, 1983) p. 288: ‘il diritto della Chiesa è parte integrante della coltura medioevale; e senza renderci conto di ciò non saremmo in grado di valutare una delle componenti essenziali della civiltà occidentale’.
[5] Kuttner, ‘Graziano: l’uomo e l’opera’, p. 289.
[6] The published edition of the Decretum Magistri Gratiani is contained in Emil Friedberg (ed.), Corpus Iuris Canonici, (Leipzig: Bernhard Tauchnitz, 1879/reprint Graz: Akademische Druck-u. Verlagsanstalt, 1959). There are many sources for Gratian on the internet, including a fully searchable Latin text of the Decretum at http://geschichte.digitale-sammlungen.de/decretum-gratiani/online/angebot,
(accessed 20 February 2018) and another very useful electronic text at http://www.columbia.edu/cu/lweb/digital/collections/cul/texts/ldpd_6029936_001/index.html (accessed 20 February 2018).
[7] For the background to the development of the legal collections at this period, see Christopher Kleinhentz (ed.), Medieval Italy: An Encyclopedia (New York: Routledge, 2004) p. 178; and Rudolf Weigand, ‘The Development of the Glossa Ordinaria to Gratian’s Decretum’, in W. Hartmann and K. Pennington (eds), The History of Medieval Canon Law in the Classical Period (Chicago, IL: University of Chicago Press, 2008) pp. 55–98.
[8] See Chapter 6, section 6.2.
[9] Ida Raming, ‘The Priestly Office of Women: God’s Gift to a Renewed Church’, in Bernard Cooke and Gary Macy (eds and trans), A History of Women and Ordination, vol. 2, 2nd edn (Lanham, MD, and Oxford: Scarecrow Press). ‘Mulieres viris suis debent subesse. “Est ordo naturalis in hominibus, ut feminae serviant viris, et filii parentibus, quia in illis hec iusticia est, ut maiori serviat minor.”’: Gratian, Decretum, Part II, causa 33, q. 5, ch. 12.
[10] Gratian, Decretum, Part II, causa 23, q. 5, ch. 11: ‘quia in debito coniugii eque mulier habet potestatem viri, sicut et vir mulieris’.
[11] Augustine, Quaestionum in Heptateuchum, Book I, §153, quoted on http://www.womenpriests.org/traditio/august.asp (accessed 11 September 2018).
[12] Gratian, Decretum, Part II, causa 32, q. 7, ch. 18.
[13] Gratian, Decretum, Part II, causa 33, q. 5, ch. 19.
[14 Gratian, Decretum, Part II, causa 33, q. 5, ch. 19.
[15] Alcuin Blamires, Woman Defamed and Woman Defended (Oxford: Clarendon Press, 1992) p. 84.
[16] Gratian, Decretum, Part II, causa 33, q. 5, c.13
[17] Gratian, Decretum, Part II, causa 33, q. 5, c.19: ‘Mulier debet uelare caput, quia non est imago Dei. Sed ut ostendatur subiecta, et quia preuaricatio per illam inchoata est, hoc signum debet habere, in ecclesia propter reuerentiam episcopalem non habeat caput liberam, sed uelamine tectum, non habet potestatem loquendi quia episcopus
personem habet Christi. Quasi ergo ante iudicem Christum, ita ante episcopum sit, quia iucarius Domini est, propter peccatum originale debet subiecta uideri.’
[18] Gratian, Decretum, Part II, causa 33, q. 5, c. 15: ‘Cum caput mulieris uir sit, caput autem uiri Christus, quecumque uxor non subicitur uiro, hoc est capiti suo, eiusdem criminis rea est, cuius et uir, si non subiciatur capiti suo. Verbum autem Domini blasphematur, uel cum contempnitur Dei prima sentencia, et pro nichilo ducitur, uel cum Christi infamatur euangelium, dum contra legem fidemque naturae ea, que Christiana est, et ex lege Dei subiecta, uiro inperare desiderat, cum gentiles etiam feminae uiris suis seruiant communi lege naturae.’
[19] Tertullian, De Virginibus Velandi, in Geoffrey Dunn (ed.), Tertullian, The Early Church Fathers (London/New York: Routledge, 2004) ch. 9: ‘Non permittitur mulieri in ecclesia loqui, sed nec docere nec tinguere nec offerre nec ullius virilis muneris, nedum sacerdotalis officii sortem sibi vindicarent’.
[20] Sarah Coakley, God, Sexuality and the Self: An Essay on the Trinity (Cambridge: Cambridge University Press, 2013) p. 102.
[21] Augustine, On Marriage and Concupiscence, Book 1, ch. 10, available at http://www.augustinus.it/latino/nozze_concupiscenza/index2.htm, accessed 20 February 2018: ‘Nec dubitari potest naturali ordine viros potius feminis quam viris feminas principari. Quod servans Apostolus ait: Caput mulieris vir; et: Mulieres, subditae estote viris vestris; et apostolus Petrus: Quomodo Sara, inquit, obsequebatur Abrahae, dominum illum vocans.’ Translation from Fordahm University Medieval Sourcebook http://www.fordham.edu/halsall/source/aug-marr.asp (accessed 11 September 2018).
[22] Gratian, Decretum, Part II, causa 33, q. 5, ch. 12.
[23] See Raming, ‘The Priestly Office of Women’, pp. 31–3.
[24] Charles Munier (ed.), Les Statuta Ecclesiae Antiqua, études critiques (Paris: Presses Universitaires de France, 1960). He compares the text of the Statuta with the contemporary writings of Gennadius and demonstrates that the credal content and the sources of the collection are consistent with three of Gennadius’ known works: ‘De la comparison pertinente avec les écrits de Gennade, il résulte que celui-ci ne peut être que leur rédacteur anonyme.’ Gennadius was probably Greek, but belonged to the monastery of Saint Victor in Marseille, in the second half of the fifth century. He made this collection between 476 and 485.
[25] Dismas Bonner, OFM, ‘Church Law and the Prohibition to Ordain Women’, in Carroll Stuhlmueller (ed.), Women and Priesthood: Future Directions (Steams County, MN: Liturgical Press, 1978) pp. 76–8.
[26] Erasmus expresses his doubts in his edition of Ambrose’s collected works, printed in 1527. He considers it unlikely some parts of the commentaries on Paul were written by Ambrose himself, calling them ‘patchworks’ by an ‘unskilled’ hand. See Jan Krans, ‘Who Coined the Name Ambrosiaster?’ in Jan Krans, LJ, Lietaert Peerbolte, Peter-Ben Smit, Arie W. Zwiep (eds), Paul, John and Apocalyptic Eschatology (Leiden: Brill, 2013).
[27] Ambrosiaster, Commentary on the Epistles of Paul, vol. 81 (CSEL, Salzburg: University of Salzburg, 1969).
[28] Sarah Coakley mentions the ecstatic visions of Montanist women, some of whom even had visions of Christ ‘as a woman’ – the ultimate heresy: Coakley, God, Sexuality and the Self, p. 121.
[29] Eusebius, Church History, Book V, ch. XIV, from Nicene and Post-Nicene Fathers, Second Series, vol. 1, P. Schaff and H. Wace (eds) (Grand Rapids, MI: Eerdmans, 1890).
[30] Bonaventure, Commentarium in IV Libros Sententiarum Magistri Petri Lombardi, 1251–1253, Ad Claras Aquas (Quaracchi: Collegii S. Bonaventura, 1889) d. XXV, a. II, q. 1; Richard Fishacre, Sentencias Commentaria, vol IV, d. 24, quoted by John Hilary Martin, OP, ‘The Ordination of Women and the Theologians in the Middle Ages’, Escritos del Vedat, 16 (1986): 115–77.
[31] See http://www.womenpriests.org/traditio/brosiast.asp (accessed 11 September 2018).
[32] ‘But if someone were to object that in that case, no more is allowed to a husband than to a wife if the husband is unfaithful, he must know that Ambrose does not call him “man” [Latin vir] on account of his male sex, but by the strength [Latin virtus] of the soul; and he should realise that “woman” [Latin mulier] is not called so because of the sex of her body but because of the weakness [Latin mollicies] of her mind.’: Gratian, Decretum, causa 32, q. 7, ch. 18. This was a very popular etymology, much quoted. The subject is discussed in more detail in Chapter 7 on language.
[33] Raming, ‘The Priestly Office of Women’, pp. 26–7: ‘Thus . . . mulier (or femina) . . . implies a serious stain and inferiority, while vir indicates . . . a human being in ideal form and is thus likewise an ethically qualified term.’
[34] Notably, the Synod of Laodicea (363 AD), canon XI, canon XLIV; Synod of Saragossa (380 AD).
[35] H. Th. Bruns (ed.), Canones Apostolorum et Conciliorum Saeculorum, John Wijngaards (tr.) vol. 2 (Berlin: 1839/reprint Turin: Bottega d’Erasmo, 1959) pp. 268–9: ‘It has been reported to us that priests after saying Mass while they themselves consume the Divine Mysteries, hand over the chalice of the Lord to women who have made offerings for their Masses, or to some lay persons who cannot discern the Body of the Lord . . . we enjoin on all priests that no one in future presumes to act in this manner.’
[36] Duns Scoti Opera Omnia, vol. 24: Reportata Parisiensia, Luke Wadding (ed.) (Paris: Vivès, 1894) pp. 367–71, Book 4, d. 25, q. 2: ‘. . . quia modo homines sunt citius doli capaces quam tunc errant, et ideo non est modo ita limitatum sicut prius’.
[37] Gratian, Decretum, Part II, causa 15, q. 3: ‘In veteri lege, multa permittebantur, que hodie perfectione gratiae abolita sunt. Cum enim mulieribus permitteretur populum iudicare, hodie pro peccato, quod mulier induxit, ab Apostolo eis indicitur uerecundari, uiro subditas esse, in signum subiectionis uelatum caput habere.’
[38] For the earliest of these, the Didache, see Thomas O’Loughlin, The Didache, (Grand Rapids, SPCK, 2010).
[39] Bonner, ‘Church Law and the Prohibition to Ordain Women’, pp. 76–77.
[40] Raming, ‘The Priestly Office of Women’, p. 12.
[41] Apostolic Constitutions, Book 3, ch. 6, Ante-Nicene Fathers, vol. 7, A. Roberts and J. Donaldson (eds) (Grand Rapids MI: Eerdmans, 1870).
[42] For a discussion of the practice of producing forgeries or fictitious evidence, see Anne Duggan, ‘The Making of a Myth: Giraldus Cambrensis Laudabiliter, and Henry II’s Lordship of Ireland’, Studies in Medieval and Renaissance History, 3(4) (2007): 107–69. The concerns about ‘fake news’ today are perhaps simply a continuation of this need to provide evidence, however flawed, for one’s own position.
[43] See http://www.newadvent.org/cathen/05773a.htm (accessed 11 September 2018): ‘Nowadays everyone agrees that these so-called papal letters are forgeries. These documents, to the number of about one hundred, appeared suddenly in the ninth century and are nowhere mentioned before that time . . . they were made up of passages and quotations of which we know the sources; and we are thus in a position to prove that the Pseudo-Isidore makes use of documents written long after the times of the popes to whom he attributes them . . . Then again there are endless anachronisms. The Middle Ages were deceived by this huge forgery, but during the Renaissance [Cardinals] John of Torquemada (1468) and Nicholas of Cusa (1464), declared the earlier documents to be forgeries . . . Nevertheless the official edition of the “Corpus Juris”, in 1580, upheld the genuineness of the false decretals, many fragments of which are to be found in the “Decretum” of Gratian.’
[44] See Anders Winroth’s review of recent editions of parts of the pseudo-Isidoriana by Karl-Georg Schon, ‘Review of Karl-Georg Schon, Die Capitula Angilramni: Eine prozessrechtliche Faischung Pseudoisidors, Monumenta Germaniae Historica, Studien und Texte, vol. 39 (Hanover: Hahnsche Buchhandlung, 2006): ‘The forger aimed at making the church more independent of secular powers, by emphasizing the
authority of the ecclesiastical hierarchy and by creating a system of legal procedure that made it more difficult to depose or otherwise punish clerics. In the process and unintentionally, Pseudo-Isidore enhanced the authority of the pope, something that the reformers of the High Middle Ages used to support their goals (not knowing that their sources were forged).’ A. Winroth, The Medieval Review, June 2007: https://scholarworks.iu.edu/journals/index.php/tmr/article/view/16378 [last accessed September 2018].
[45] E. Seckel, ‘Pseudo-Isidorian Decretals and other Forgeries’, in The New Schaff-Herzog Encyclopedia of Religious Knowledge (Grand Rapids, MI: Baker Book House, 1953).
[46] Raming, ‘The Priestly Office of Women’, p. 76.
[47] Bonner, ‘Church Law and the Prohibition to Ordain Women’, p. 77.
[48] Southern, Scholastic Humanism, p. 247: ‘Indeed from any point of view, its picture of the stability and elaboration of papal authority in the government of Christian society during the first seven centuries of its existence, and the very imposing bulk of texts would—forgery apart—offer as solid a foundation for the government of Christendom as could be desired.’
[49] Raming, ‘The Priestly Office of Women’, p. 77.
[50] The Digest of Justinian, T. Mommsen, P. Krüger and A. Watson (eds) (Philadelphia: University of Pennsylvania Press, 1985).
[51] Michael H. Hoeflich and Jasonne M. Grabher, ‘The Establishment of Normative Legal Texts’, in W. Hartmann and K. Pennington, The History of Medieval Canon Law in the Classical Period (Chicago, IL: University of Chicago Press, 2008) pp. 1–21.
[52] Thomas Kuehn, Law, Family and Women: Towards a Legal Anthropology of Renaissance Italy (Chicago: University of Chicago Press, 1991) p. 198.
[53] James Brundage, Law, Sex and Christian Society in Medieval Europe (Chicago: University of Chicago Press, 1987) p. 28.
[54] For a discussion of this subject, see Jo Ann MacNamara, ‘Women and Power through the Family Revisited’, her reassessment of earlier work in collaboration with Suzanne Wemple, published in Gendering the Master Narrative: Women and Power in the Middle Ages, Mary Carpenter Erler and Maryanne Kowaleski (eds) (Ithaca, NY: Cornell University Press, 2003) pp. 17–30.
[55] Not until the mid-19th century in the UK, with the Matrimonial Causes Act 1857, and then the Married Women’s Property Act 1882, could a woman claim as of right custody of her own children, a share in her husband’s assets, or recovery of her own property. See Alan Chedzoy, A Scandalous Woman: The Story of Caroline Norton (London: Allison & Busby, 1992).
[46] Dr Matthew Frank Stevens, lecture given to Mortimer History Society, 2015, ‘Women and the Law in the Age of Magna Carta’.
[57] Another very useful account of the revival of Roman law is James Brundage, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (Chicago, IL: University of Chicago Press, 2008).
[58] Joseph Martos, Doors to the Sacred: A Historical Introduction to the Sacraments in the Catholic Church, 3rd edn (St Louis MI: Liguori, 1991) p. 300.
[59] Anders Winroth, The Making of Gratian’s Decretum (Cambridge: Cambridge University Press, 2000) pp. 147–8.
[60] This analysis is taken from Raming, ‘The Priestly Office of Women’, pp. 5–6.
[61] Gratian, Decretum. Part II, q. III.
[62] Bishop of Ferrara (d. 1210), canonist and lawyer. Identified with Huguccio of Pisa, grammarian, though this is unproven. A thorough biographical study is provided by Wolfgang P. Mueller, Huguccio: The Life, Works, and Thought of a Twelfth-Century Jurist, Studies in Medieval and Early Modern Canon Law, vol. 3 (Washington, DC: Catholic University Press of America, 1995). See Huguccio Pisanus (Hugh of Pisa), Summa Decretorum, Book I, Distinctiones I–XX, Oldřich Přerovský (ed.) (Vatican City: Vatican Apostolic Library, 2006).
[63] Huguccio Pisanus, Summa Decretorum, causa 27, q. 1, ch. 23. Source of these quotations and references to Huguccio is Raming, ‘The Priestly Office of Women’, pp. 89–92.
[64] Huguccio, Summa Decretorum, causa 33, q. 5, ch. 13.
[65] Gratian, Decretum. Part II, q. III.
[66] Gratian, Decretum, Part II, causa 27, q. I, ch. 23: ‘Diaconissam non debere ante annos quadraginta ordinari statuimus.’
[67] Gratian, Decretum, Part II, causa 32, ch. 19.
[68] Raming, The Priestly Office of Women, p. 15.
[69] Gratian, Decretum, Part I, d. 32, ch. 19.
[70] Gratian, Decretum, Part I, d. 32, ch. 19.
[71] George Tavard, ‘The Scholastic Doctrine’, in Arlene Swidler and Leonard Swidler (eds), Women Priests: A Catholic Commentary on the Vatican Declaration (New York: Paulist Press, 1977).
[72] ‘aestimandi sunt ratione etiam canonicae traditionis habita’, canon 6, §2, Code of Canon Law, Canon Law Society of Great Britain and Ireland (London: Collins, 1983)
[73] Peter Landau, ‘Gratian and the Decretum Gratiani’, in W. Hartmann and K. Pennington, The History of Medieval Canon Law in the Classical Period (Chicago, IL: University of Chicago Press, 2008) p. 53.
[74] ‘Sacram ordinationem valide recipit solus vir baptizatus’, canon 1024, 1983 Code.
[75] Liberation theology movements have identified how the oppression of women, characteristic of patriarchal societies, gradually returned as the Church became an institution rather than a movement. See, for instance, Jacques Dupuis, SJ, Who Do You Say I Am? (New York: Orbis Books, 1994) p. 28: ‘Feminist reformist theology . . . seeks to restore the equality in partnership and mutuality between the sexes that characterised the social order of the Jesus movement.’
[76] J. Wijngaards, The Ordination of Women in the Catholic Church (London: Longman & Todd, 2001) pp. 51–3.
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