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must agree to the marriage for it to be valid. the reason why these sources
emphasized consent was that their authors were early popes and church
fathers (for example Saint John Chrysostome or Saint augustine) who
lived under roman rule. roman law stipulated that the consent of bride
and groom was necessary for a valid marriage, so these writers accepted
the consent theory of marriage. It was Gratian who first synthesized the
two approaches in a way that was typical for both his ingenuity and his
respect for tradition. He combined the two ways of beginning a marriage,
requiring both consent and sex. When bride and groom had consented,
they had entered what Gratian called “initiated marriage”; we might call
it betrothal. once they had had sex, they had “perfected” their marriage.
an initiated marriage could be dissolved under certain circumstances, such
as when one of the parties wanted to enter a monastery, while a perfected
marriage could never be dissolved.48
Gratian’s synthesis would, with some adjustments – notably by the
theologian Peter Lombard (d. 1160) and Pope alexander III (1159–1181) –
be valid for the future and it would enter most western legal systems. this
synthesis is also what we find in Bishop Árni’s lawbook, which allowed
betrothed couples who had not consummated their union to separate in
order to enter a monastery.49 this is exactly Gratian’s rule, which was set-
tled law in European canon law when Bishop Árni wrote his book.50
Even more important was the emphasis on consent that Gratian had
made essential. When he insisted on the consent of bride and groom at the
beginning of marriage, Gratian also excluded parents and other relatives
from having any say in the matter. this was very radical for his time. With
few exceptions, most previous experts in canon law had, like the compilers
of Grágás, looked upon marriage as a contract between families, not as an
agreement between bride and groom.51
48 Anders Winroth, “Gratian,” in Christianity and Family Law: An Introduction, ed. John Witte
Jr. and Gary S. Hauk (Cambridge: Cambridge university Press, 2017).
49 “Kristinréttur Árna,” ch. 25: “oc ma þetta samband engi maþr scilia. þo at eigi se brullaup
gert ef loglig festing er á. nema annat hvart þeira gefi sic i claustr aðr enn þau hafi samt
komit at licams losta.”
50 Winroth, “Gratian,” 141.
51 Bishop Ivo of Chartres (d. 1115) was a pioneer in strongly emphasizing consent in many
of his letters sharing canonical advice, see Christof rolker, Canon Law and the Letters of
Ivo of Chartres, Cambridge Studies in Medieval Life and thought 4th ser. 76 (Cambridge:
Cambridge university Press, 2010), 213–214.
THE CANON LAW OF EMERGENCY BAPTISM