The Naturalness of Sex in Medieval Roman law

Summary

Introduction

The field of legal history has been fruitful ground for developing an understanding of medieval sexuality. This is particularly true of the study of medieval jurisprudence, which in the period between 1100 and 1500 is dominated by two developments: the rediscovery and scholarly elaboration of the texts of the Roman law, and the scientific study of the law of the church (canon law). These together come to form a ius commune, a common culture of legal studies in the nascent universities of medieval Europe. The extensive and complex body of texts resulting from this allow us to explore how thinkers in the Middle Ages connected human sexual behaviour with their broader ideas about human nature, and to address key questions about how lawyers integrated sexual acts into the framework of the natural law, and when they thought culpability for illicit sexual desires began. The landmark work in this area is James Brundage's monumental Law, Sex and Christian Society in Medieval Europe, which explores the aforementioned questions through detailed study of penitentials and the canon law. The contribution of this book to our understanding cannot be overstated; yet it is striking that the other major branch of academic law in the period – the work of medieval Roman lawyers – is almost entirely absent from it.

Indeed, in the case of those medieval lawyers commenting on the Roman law, scholarly attention has focused on their view of marriage – and thus on the absence of coitus in the Roman law doctrine of forming the marital bond – rather than looking elsewhere in their work to uncover the way the sexual act itself was understood, along with its attendant desires. The only substantial source of illumination on this subject can be found in the classic work of Rudolf Weigand, which nevertheless only offers us a brief and partial treatment of Roman lawyers’ views on human sexuality, and one which is constrained to a limited period (1100-1240).

This chapter therefore aims to make some small contribution towards filling this gap in our understanding, beginning chronologically with the renaissance in Roman law studies in around 1100, and concluding with the jurist Baldus de Ubaldis, who died in 1400.