Gripla - 20.12.2018, Page 216

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the innovations reached Iceland in the thirteenth century. We see the
new Icelandic system in the Christian Law of Bishop Árni from the 1270s.
Árni’s chapters on marriage make up an able summary of the canonical sys-
tem of marriage law as it had been worked out in the previous century and
a half. Some of Árni’s formulations even look like direct translations from
the sources of canon law, as, for example, his definition of what marriage
is, apparently translated from Gratian’s definition.45 Árni’s words “[n]u
er hiuscapr karlmanz oc cono loglict sam band” appear to echo Gratian’s
“Sunt enim nuptie sive matrimonium viri mulierisque coniunctio.”46
We see Árni absorbing and conveying the new European marriage
system also in other passages. In the early Middle ages, the choice of mar-
riage partner was something for families, and particularly their patriarchs,
to decide. What the putative bride and groom thought – and especially
the bride’s preferences – was less important. In this kind of law, marriage
is a business transaction. an example from Grágás makes this quite clear:
“If the man who has become betrothed to a woman has doubts about the
marriage, it is not punishable by law, but the brideprice (mundr) that had
been agreed on shall be reclaimed. and according to the terms/contract
(máldagar) which was agreed on at the betrothal should he want to free
his hands.”47
When Gratian and other canon lawyers in the twelfth century worked
out a new legal system regulating marriage, they were uncomfortable with
the old system for several reasons. First, they did not like that it defined
marriage as beginning when the parties had sex. Second, they had read
many good canonical sources that emphasized that the bride and groom
in scholarship. Brundage, Law, Sex, and Christian Society remains the most convenient
survey.
45 Scholarship has, in other contexts, identified other examples of direct translations into
norse from the sources of Latin canon law, see, e.g., Sigurður Líndal, “um þekkingu
íslendinga á rómverskum og kanónískum rétti,” 269, and Lára Magnúsardóttir, Bannfæring
og kirkjuvald, 83 and 393.
46 “Kristinréttur Árna,” ch. 25, see also pp. 100–101; Gratian’s Decretum C. 27 q. 2 d.a.c. 1,
ed. Decretum Gratiani, gratian.org. Gratian’s definition derives from Justinian’s Institutes
1.9.1, but this provenance is not signaled in the Decretum.
47 Grágás: Konungsbók, 2.32–33: “En ef sa ifaz raða er ser hefir cono festa oc varðar eigi við
lög. En mund scal heimta sva sem mæltr var. oc með þeim maldogom sem mælt var at fest-
om ef hann scylde af hende leysa.” Cf. Laws of Early Iceland, 2.57. On máldagar, see Agnes
Arnórsdóttir, Property and Virginity, esp. 56–60.