Question Three. Whether in the Mosaic Law it was Licit to Repudiate a Wife

64. About repudiation I ask whether in the Mosaic Law it was licit for a man to repudiate his wife.

65. That it was: Deuteronomy 24.1, “When a man has taken a wife, and married her, and it come to pass that she find no favor in his eyes, because he has found some uncleanness in her, then let him write her a bill of divorcement, and give it in her hand, and send her out of his house.”

66. Again, Malachi 2.16, “When you hate her [your wife], put her away, says the Lord the God of Israel.”

67. Again, Gregory IX, Decretals V tit.41 ch.1, ‘On the rules of right’, “Everything is dissolved by the same causes by which it is born;” but matrimony is born through mutual consent; therefore can it be dissolved by mutual dissent.

68. Again, Gratian, Decretum, p.1 d.34 ch.1, ‘If anyone his wife’, “If a wife has committed adultery against a husband established in clerical office, he must, after giving her a repudiation, dismiss her.” Therefore, the repudiation of a wife is licit also in the Gospel Law.

69. The opposite: it seems to be against the law of nature which Adam promulgated, Genesis 2.24, “A man will cleave to his wife;” from which Christ concludes, Matthew 19.6, “What then God has joined, let not man put asunder.”a

a.a [Note by Scotus] It is against the law of nature that man separate what has been joined by God, as Christ supposes in the Gospel when he says, “What God has joined...”

70. Again, a contract of matrimony is essentially the giving of power over one’s body irrevocably to another in exchange for power over their body; therefore, no leasing or giving for a time can be matrimony. But if it were licit for a repudiation to be made, there is in the contract a giving only for a time; because if it had been for perpetuity, then the repudiated woman would have remained as wife, and in that case she would be dismissed illicitly. It follows, therefore, that if repudiation was licit in the Mosaic Law, that there was no matrimony there.

71. Again, it was never licit for a woman to repudiate a man; therefore not conversely either, since they are judged as equal in respect of things that belong to the marriage.

I. To the Question

A. First Opinion

72. Here is it said that in the Mosaic Law it was licit to repudiate a wife, and that he who marries a repudiated wife sinned mortally, because he went to someone impure, for she was only repudiated, as it seems, because she was impure. This sin, however, was not punished in the Law but was permitted because of homicide, lest men would kill their wives. And therefore, to avoid a greater evil, this lesser evil was permitted in the Law.a

a.a [Note by Scotus] I reply: when it is said that it is probable a woman is repudiated because she is unclean, this is true if she was repudiated by two men, but not if by one only. And so then he sinned mortally by marrying her.

73. The proof of this is:

First by the authority of Christ condemning repudiation, Matthew 19.9, “I say to you that whoever shall put away his wife, except it be for fornication, and shall marry another, commits adultery: and he that shall marry her that is put away, commits adultery.”

74. This is also proved by the reason that Christ brought forward for himself, which is that from the beginning God joined male and female in matrimony, as he proves from the word of Adam, and he adds, “What God has joined, let not man put asunder” [Matthew 19-4-6].

75. It is proved also, third, from his response to the question of the Pharisees [Matthew 19.7-8], “They say to him, ‘Why then did Moses command to give her a bill of divorce, and to put her away?’ He says to them: ‘Because Moses by reason of the hardness of your heart permitted you to put away your wives: but from the beginning it was not so’.” The interlinear gloss on “Moses.. .permitted” says “not God.” And the gloss says that “it was the council of man, not the command of God” [Nicolas of Lyra]. And the Master in this distinction [Lombard, Sent. IV d.33 ch.3] says that this was permitted by Moses “not to concede separation but to remove murder.”

76. And Augustine On the Lord’s Sermon on the Mount I ch.14 n.39, “He who commanded to give a bill of repudiation did not command the wife to be dismissed; but let him who has dismissed her, he says, give her a bill of repudiation, so that the thinking about the bill would temper his rash anger in dismissing his wife.” This can be understood from something that Ambrose prescribed to the Emperor Theodosius for a certain cruelty impetuously effected by Theodosius’ command: Ambrose wanted him to pass a law that no minister should carry out his cruel commands for thirty days, if perchance within that time his anger would quieten and temper his judgment. Hence too Plato said to a certain person [Archytas of Tarentum], as Jerome reports [On Joel 1.5; Epistle 79 to Salvina, n.9; also in Valerius Maximus, Memorable Deeds and Words IV ch.1 ex.1]: “I would punish if I was not angry.” And Augustine adds, ibid., “He who sought a delay in the dismissal did signify, as far as he could to harsh men, that he did not wish separation.”

77. Also Gregory IX, Decretals V tit.19 ch.8], ‘On Divorce’, “Repudiation of a wife is condemned by Truth in the Gospel.”

B. Second Opinion

1. Exposition of the Opinion

78. Another opinion says that the giving of a bill [of divorce] and repudiation of a wife was licit for the time of the Mosaic Law; because Moses announced the Law of God, and therefore those whom he as legislator joined together and announced it, God too joined together; and those whom he separated God too separated; and God can separate those who are matrimonially joined together.

79. Again, according to Augustine, Letter 40 to Jerome ch.3 n.3 (and it is in Gratian, Decretum, p.1 d.9 ch.7), “If useful lies were admitted into the Sacred Scriptures, what would remain of authority in them?” As if he were to say, “Nothing.” And the reason is that whatever authority be brought forward to repulse a heretic, the heretic will reply that it was spoken as a lie, a jocose or officious lie, just like that one too somewhere else [cf. Ord. IV d.3 n.178]. Therefore, by similarity, if a heretic not have anything in Scripture, he will not have authority by any prescriptive authority in Scripture.

80. Likewise about advice; if any advice given in Scripture were not healthy or useful to keep, there would be no authority of observance in Scripture; therefore, by similarity, if there were any concession in Scripture about anything illicit, as this one [about repudiation], it follows that no concession of Scripture will have authority to show that the thing conceded is licit. For as concession is related to what is licit, so precept is related to what must necessarily be done, or warning or advice to what is useful. For just as a precept is not about anything that is not necessarily to be done, so neither is a concession about anything save what can licitly be done.

81. Again, a just law should not directly give occasion to sin mortally; but this concession seemed to be an occasion directly for the Jews to dismiss their wives; for if it had not been written down, they would no more have dismissed them than the fathers before the Law of Moses did; therefore, either that dismissal was not mortal sin, or the Law was not just.

2. Weighing of the Opinion

82. The way in which this opinion can be held acceptable is this: complete justice does not exist in this exchange or contract of matrimony save by divine ratification, though there is found before it what suffices for justice on the side of the exchange and the exchanging parties; and whenever such justice can be found in the exchange, it is reasonable that it ought to be ratified. But just as the exchange of the body of one man in return for exchange with the bodies of several women is something just when such exchange is necessary for procreation of offspring - and so then God justly made dispensation for bigamy, indeed approved it, on account of a greater good resulting than would, on the other side, result by exchange of one woman with one man; and the exchanging parties should, according to right reason, want so to exchange - thus in the issue at hand can God, for avoiding a greater evil than is the good of indissolubility of marriage, make dispensation that a contract may be made for a time, until the woman displease the man.

83. And in this is justice in some way preserved, because the parties should want thus to exchange, not only for attaining a greater good but also for avoiding a greater evil; and uxoricide is a greater evil than is the good of indissolubility; because the former is the evil of penalty for a killed wife and the grave evil of guilt for the killer. It would also be an evil for the whole republic, because an occasion for continuous discord and fighting, on account of the anger of the wife’s parents against the killer; and in this there would be a continuing dissipation of the family, because, with the man being killed by his adversaries or by the law, the family and the education of the offspring would be destroyed.

84. So it could, therefore, be said that, just as God made dispensation for bigamy on account of a greater good, so could he make dispensation in the repudiation of wives for the [Hebrew] nation on account of avoiding a greater evil.

85. And according to this can it be said that, since the good wine of matrimony is indissolubility and perpetual obligation, no matrimony of the Jews was perfect, because the contracts were always under a condition on account of the bill of repudiation. But in the matrimony of the New Law this good does exist, namely indissoluble union; and, in addition to this, something else, namely the signification of the union of Christ and the Church, which is the union of one with one. Now in the matrimony of the law of nature, as with Abraham, the first perfection or the first good existed, namely indissolubility, but not the second, which is to have one wife only. But in the Mosaic Law, when there was repudiation and one man had several wives, neither perfection of matrimony existed, because neither was there union of one with one nor was the union simply indissoluble; but this was done by divine dispensation.

C. To the Arguments for the First Opinion

86. And then as to what was adduced for the first opinion [nn.73-77], it can be replied that Christ promulgated that for the time of his own Law, namely the Gospel Law, so that, just as he brought back matrimony in the way it was instituted in the law of nature (namely, so it be of one man with one woman, although, however, bigamy was licit in the Mosaic Law), so he brought back a matrimony simply perfect, that is, indissoluble, for his Law, the way it was instituted in the law of nature. And thus does he make invalid for his Law the contract that was licit for the Mosaic Law, which was the leasing of bodies for the procreation of offspring for a time - namely until the woman would be lacking favor in the eyes of the man. It is just as Christ also emptied out many other imperfections licit under Moses, by bringing back the things that were, for perfection, going to be permanent in his Law. And therefore it was, from when the Gospel was promulgated, damnable to have several wives or to dismiss one and marry another; but it was not damnable before. Thus would they say about this opinion.

87. And so from then on, according to this opinion, the Jews were bound not to have two wives but one only, and in no way to be separated from her.

88. As to Christ’s proof [n.75], it is plain he is speaking for the law of nature; and in this did he sufficiently refute the Pharisees, because they were not sufficiently observing matrimony as it was in the law of nature, and he showed that he himself was rationally establishing inseparability for his own Law, because this is consonant with first institution in the law of nature.

89. As to what is added about the response of Christ to the Pharisees, “for the hardness of your heart God permitted you to put away your wives” (which many [Lombard, William of Auxerre, Bonaventure, Thomas Aquinas, Peter of Tarentaise] consider was only permission, not concession [n.75]), I say that Christ “permitted” it, by which he means that Moses did not prescribe this, nor even advise or approve it but, as if it was licit by a certain necessity, did not prohibit it. Nor is this permission deceptive as to something illicit; for that would be to say nothing other than that Moses would permit them to go to damnation, not by showing them that this would be a way of damnation, but rather by insinuating the opposite; and this no legislator can justly do, even in human laws, which leave many evils unavenged, according to Augustine On Free Choice I ch.6 n.42. And if the legislator not punish every evil, and thus permit it because he does not punish it, yet in no way does he in his law concede it. Hence unjust would be the human law that would write down something that was against that law [of nature].

90. And as to what is added there, that “for the hardness of your heart etc.” [n.75], it does not prove that it was illicit; for frequently the hardness of subordinates is a reason that something be relaxed for them that otherwise would not be relaxed, and that would be useful for them not to be relaxed - provided however they were tractable. It is like a prelate, when seeing a college prone to something whose opposite would be more honorably something to observe, although he could usefully establish the opposite if the subordinates were easy to sway, yet he can very well not establish it; or if it is established, he can well relax it, and honorably, lest, with it standing in place, they multiply their sins more.

91. As to the glosses:

The first [n.75] seems it should be denied, because Moses, as legislator, was only the herald of God. But he who wants to give exposition of them can say: Moses permitted it, not God immediately prescribing it to Moses among the other precepts. Hence never in the first four books of the Law is it found that God prescribed this to Moses or to anyone. Therefore. this is more precisely of Moses (as also are all the things that are in Deuteronomy and are not elsewhere) than are the things that elsewhere God spoke to Moses. And this is the fitting reason, that the relaxations, as pertaining to human working out, God did not want to place in Scripture as if they were put forward by himself the way they were put forward by his servants. Hence too the alleviation of the labor of Moses, who sat all day judging the people, was not expressed by God immediately per se, but Jethro [Exodus 18.13-27], the kinsman of Moses, expressed it, as pertaining to human working out.

92. As to the other gloss [n.75], it is easy to see that it says nothing against this opinion. For it is true it was not the precept of God, namely ‘to dismiss her’, but that if he dismiss her he give her a bill of divorce; but it was ‘the counsel of man’, not as of a man, but as of a herald of the divine Law.

93. As to the remark of Augustine [n.76], I concede that, by the delay which [Moses] imposed in the writing of a bill, he did insinuate that the dismissal was absolutely displeasing to him; not only therefore was he who did not dismiss her doing better then than he who did dismiss her, but he who dismissed her was doing badly, though not so badly that he sinned mortally against matrimony, as he would have done if he had not had license from the Law.

94. To the point about divorce [n.77], the answer is plain in [the solution of] the first [argument; n.86]; for it is true that Christ condemned divorce for the time of his own Law.

II. To the Initial Arguments that are for the First Opinion

95. To the initial arguments [nn.69-71] for the first side [n.72].

To the first argument [n.69], the answer is plain from the solution [nn.86-88]. And when it is said that it is against the law of nature that “what God has joined etc.,” I say that it is not against the law of nature, because not against the principles of the law of nature, nor against the conclusions deduced immediately from the principles, that such a contract, according to this opinion, be made for a time; nor is it simply against the education of offspring. For God could have ordained otherwise as to the education of offspring, but not as acceptably as now. However, it then was against a certain good that is consonant with the law of nature, namely against indissolubility; and against such a good can God give dispensation, to avoid a greater evil.

96. To the second [n.70] I concede that matrimony simply is a perpetual obligation. But matrimony in a certain respect can be an obligation firm for a time, though not perpetual; and thus do I concede that in the Mosaic Law there was not any ‘matrimony simply’, unless perhaps some wanted, beyond the perfection of the Law, to obligate themselves perpetually, which was not necessary insofar as they had contracted a marriage under that Law.

97. Or it could be said that, if there was matrimony perfect or simply, and so an indissoluble obligation, it is a true matrimony, unless the Legislator were to revoke or dispense from it - and he did dispense from it when the woman was too displeasing to her man, inasmuch as uxoricide was feared - as was said above about a non-consummated ratified matrimony, that it is dissolved through entry into Religion [supra d.31 n.22]. And yet it was a matrimony simply, and not just a leasing for a time. But the Legislator in such a case makes dispensation for pursuit of a greater good; but here [sc. in the Mosaic Law] for avoiding a greater evil.

98. To the third [n.71] the case is not alike, because the reason for dispensing is not alike; for it is not as great an evil if a woman hate a man as the converse is, because sex itself holds back a woman from exterior revenge more than it holds back a man, just as was it also conceded to one man, for the good of offspring, to have several wives. But this was not conceded to the woman, because it would be against the good of offspring if one woman had several men. And so, in neither of these cases, is it alike for a man and a woman.

III. To the Initial Arguments that are for the Second Opinion

99. He who wants to hold the first opinion can easily reply to the arguments to the contrary:

To the authorities of Deuteronomy and Malachi [nn.65-66], that they are permissions of a lesser evil, but yet of mortal sin, lest a graver mortal sin come about.

100. As to the second [n.67], that rule is true precisely of dissoluble obligations, of which sort this obligation is not. It could also be said to the minor that this obligation is born from the wills of the contracting parties as from the instrumental cause but principally from divine approval; and the rule ought not to be understood of instrumental causes. Hence does God prove inseparability from the principal cause, Matthew 19.6, “What     therefore God has joined etc     .”Scotus apparently gave no separate response to the third argument [n.68]. Perhaps the reply could be that the matrimony in this case is not so much dissolved as its effect permanently suspended, because the wife’s offense compromises the proper exercise of clerical office in the husband. She must live in secluded penance, and he in celibate ministry. In other words, the ‘repudiation’ and ‘dismiss’ talked of in the Decretum are not the sort talked of in the Mosaic Law, but mean repudiating and dismissing, not the matrimony, but, by way of due penalty, the exercising of it. Christ seems indeed to have such cases in mind in Matthew 5.32 when he speaks of putting away a wife “except for the cause of fornication.” ⁹²