Montesquieu
 

XXVI.9 That things that should be determined by the principles of civil law can rarely be determined by the principles of the religious laws

Religious laws are more sublime ; civil laws are more encom­pas­sing.

The laws of per­fec­tion drawn from reli­gion have as their object more the good­ness of the man who obser­ves them than of the society in which they are obser­ved ; civil laws, on the contrary, have as their object more the moral good­ness of men in gene­ral than of indi­vi­duals.

Thus, howe­ver res­pec­ta­ble the thoughts that arise directly from reli­gion, they should not always serve as the prin­ci­ple of civil laws, because these have a dif­fe­rent prin­ci­ple, which is the gene­ral wel­fare of society.

The Romans made rules in the repu­blic to pre­serve women’s morals : they were poli­ti­cal ins­ti­tu­tions. When the monar­chy was esta­bli­shed, they made civil laws on that sub­ject, and made them on the prin­ci­ples of civil govern­ment. When the Christian reli­gion was born, the new laws that were made had less to do with good ove­rall mora­lity than with the sanc­tity of mar­riage : they concei­ved the union of the two sexes less in the civil state than in a spi­ri­tual state.

At first, by the Roman law, a hus­band who took his wife back into his house after she was condem­ned for adul­tery was puni­shed as an accom­plice of her debau­chery.1 Justinian, in a dif­fe­rent spi­rit, decreed that for two years he could go to the monas­tery and take her back.2

When a woman whose hus­band was away at war heard no more of him, she could, in the ear­liest times, easily remarry, because she had in her hands the power to divorce. The law of Constantine would have had her wait for four years, after which she could send the bill of divorce to the chief,3 and if her hus­band retur­ned, he could no lon­ger accuse her of adul­tery. But Justinian decreed that, howe­ver much time had elap­sed since her hus­band’s depar­ture, she could not remarry unless she pro­ved her hus­band’s death by the depo­si­tion and oath of the chief.4 Justinian was being mind­ful of the indis­so­lu­bi­lity of mar­riage, but we can say he was too mind­ful of it. He requi­red a posi­tive proof when a nega­tive proof suf­fi­ced ; he insis­ted on some­thing very dif­fi­cult : to give an account of the fate of a man far away and expo­sed to so many acci­dents ; he pre­su­mes a crime, in other words the hus­band’s deser­tion, when it was so natu­ral to pre­sume his death. He went against the public wel­fare by lea­ving a woman unmar­ried ; he went against indi­vi­dual inte­rest by expo­sing it to a thou­sand dan­gers.

The law of Justinian, which inclu­ded among the grounds for divorce the consent of the hus­band and the wife to enter the monas­tery,5 was com­ple­tely foreign to the prin­ci­ples of the civil laws. It is natu­ral for grounds for divorce to arise from cer­tain impe­di­ments that must not have been fore­seen before the mar­riage ; but the desire to pre­serve one’s chas­tity could be fore­seen, since it is in us. That law favors incons­tancy in a state which by its nature is per­pe­tual ; it cla­shes with the fun­da­men­tal prin­ci­ple of divorce, which allows the dis­so­lu­tion of a mar­riage only in the expec­ta­tion of ano­ther ; in short, to fol­low even reli­gious thoughts, all it does is to offer God vic­tims without sacri­fice.

Law 11, last § following ad legem Juliam De adulteriis.

Novella 134, coll. 9, ch. x, tit. 170.

Law 7, Codex De repudiis et judicio de moribus sublato.

Authentica. Hodie quantiscunque, Codex De repudiis et judicio de moribus sublato.

Authentica. Quod hodie, Codex De repudiis et judicio de moribus sublato.