Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Monday, April 25, 2005

Gay Rights and the Law: a Different View

Before the widespread availability of contraception in the 1960s, western society, indeed all society, confronted a huge problem: how to curtail sexual behavior which, if unchecked, would lead to large numbers of babies born to teenage girls. The answer of most cultures was simple: massive repression. Confine sex to marriage; limit marriage. It makes sense. Even today, much of American high school and college is designed around delaying parenthood.

Many cultures, particularly Romans and Greeks, encouraged homosexuality among young men because it delayed fatherhood and allowed career development. A Roman patrician would likely have a young man or two as a lover whom he would promote and ultimately adopt before the man married and had progeny - and new homosexual lovers of his own. Illegitimate children were not a big problem in such a society, as they could be adopted. Romans, by the way, are known to have widely practiced "intra-crural" sex (rather than anal sex) which is insertion of the penis between the thighs. Usually the younger man provided the service to his patron, but it was reciprocal as well. If the young man was very heterosexual in his proclivities, prostitutes (who knew how to abort) were common. There were also primitive condoms of lambskin. Coitus interruptus has a Latin name for a reason, too. Roman promotion of cult of virility stood alongside a reality and acceptance of widespread homosexuality. And a world where being a eunuch was a life choice. I remember my own shock at reading Ovid's passage on Narcissus and reading "multi illum iuvenes, multi cupiere puellae" which (poetically untangled)means, "many young men and women desired him." That was a very different world, and for reasons hinted at below, one we are unlikely to return to, although the Roman Catholic church claims we are returning to this (a statement by a Cardinal recently stated this directly).

The question for us is why sexual repression came to include such obviously useful homosexual sex as well. The answer, I suspect, can be seen in a contrast between Roman family law (for patricians) and family law as it developed in the Middle Ages, under the barbarian regimes (German/Frankish). In fact, the glossators on Roman law who begain in the 1400s to "revive" it struggled mightily with differentiating Roman customs from our own. In Roman law, the pater familias had the power of life and death over every member of his family - younger siblings, children, adoptees, wives of male children, grandchildren, etc. Similarly, the pater familias owned everything; the others owned nothing. The fortune passed to the next male in line, whom the pater familias often ADOPTED (see: Julius adopting Augustus). And the adoptee was often such a young man who had performed sexual services. Thus heterosexual marriage was not critical for transmission of property.

In the middle ages, however, the customs of the Germanic tribes and Franks that replaced Roman authority were that illegitimate children could not inherit at all. Women could own property under other conditions (see Queen Elizabeth II) Similarly, property was divided among male heirs equally (thus, Charlemagne divided his kingdom roughtly into thirds: France, Germany, and a middle region - the Alsace/Lorraine). Without marriage and procreation through marriage, none of this worked. Not only does homosexuality have no place in such a world, but it threatens the "point" of marriage - to ensure the passage of property to a new generation. Marriages are also contracted at a very young age in such a society, so there is no intermediary period where homosexuality is 'useful.' And there is no imperial bureaucracy in which one needs a patron to advance -- one *advances* by marrying well.

We live in the embers of such a world.

13 comments:

Dr. Strangelove said...

Fascinating description of the relationship between sexuality and iheritance, LTG. Thanks.

Anonymous said...

One other thing about Germanic cultures (at least pre-Christian ones in Scandinavia), sexual behavior outside of marriage was not stigmatized so much.

Egil's saga is full of references to young adults running off together. These caused legal problems more because of the failure to pay bride prices than because of any sense of "rape" (as in the Roman legend of the Sabines).

Illigitmate children (children born without any bride price being paid before the payment of a bride price) typically did not inherit but could on occaision. This carried over even in the Christian Era. William the Bastard became William the Conquorer. And I'm sure the medeival church heirarchy was full of bastards. One early king of Denmark was known as "Estridsson" (Estrid being a his mother's name), presumeably because his father's identity was somewhat in doubt.

Gaelic cultures are largely matrilineal. Why? Perhaps there is a Gaelic language equivolent of "Mother's baby, father's maybe."

I think it is interesting that the cultural debate in the Catholic Church is being framed in terms of "We can't return to the pagan Roman practices!" Talk about institutional memory! However selective, that's impressive. 

// posted by Raised By Republicans

Raised By Republicans said...

Oh, one other thing...In Scandnavian society - before Christianity - women could inherit. Egils Saga has a lot of discussion of how Egil and his friends and relatives push legal cases about land ownership based on female inheritance.

Interestingly in two different cases, Egil takes opposite legal positions.

Pre-Christian Norse women could own property, sue for divorce, inherit land, etc. They commonly ran farms (the mistress of the household held the keys to all the locked chests and rooms) while their husbands were on mercantile/raiding expeditions.

Christianity ended all of that.

I would argue that the problem was not that Germanic culture made the Romans more prudish. Rather I'd argue that Christianity was - from the start - an essentially prudish and reactionary religion with a strong emphasis on patriarchy and strict deference to authority.

Anonymous said...

I think RbR has it wrong when he says that Christianity was "from the start an essentially prudish and reactionary religion." It was, in Roman times, a radical religion where believers shared all possessions in common (this is written up in Acts of the Apostles) and where men and women, slave and free, foreign and local were equal. Patriarchy and deference to authority developed later, after the religion became a Roman state institution (Roman state is gone, state-like institution remains). My point is that the sexual fixations of the modern church came out of the middle ages, not the Roman period. And this came from the largely Germanic feudal system.  

// posted by The Law Talking Guy

Anonymous said...

Pre-Christian Germanic culture was much more liberated with regard to sexual and gender issues than Christian Germanic feudal culture. At the same time, Middle Eastern religions share a prudishness and disrespect for women. The interaction of that tradition with Roman state institutions was certainly a bad development for both. I just don't see how pagan Germanic culture is the source of all the bad aspects of Christian sexuality and gender relations.

But to get back to the topic of homosexuality more directly...Norse culture (at least the Sagas I've read) don't mention homosexuality per se much at all. The early Norse Christian writings don't even bother to condemn homosexuality - at least not the stuff by Snorri Sturleson. But there are many historians who believe that vikings' relationship with their shipmates often had homosexual dimensions.

Also, a number of the Norse gods were hemaphroditic: Freyr/Freya (sometimes refered to as brother and sister sometimes refered to as two incarnations of the same god) and Loki were both alternately depicted as male and female. Loki was usually male but was "mother" to several supernatural creatures that (s)he concieved while in female form. Even the otherwise "macho" Thor won a battle against some evil giants by disguising himself as a female goddess. 

// posted by Raised By Republicans

Anonymous said...

"Not mentioning homosexuality" is an extremely homophobic attitude, of course. The Norse world, like that of the mainland Germaninc populations, used heterosexual marriage as the primary mechanism for property transmission. Early marriage was very common. Homosexuality was an implicit threat to the whole system. Those who did not wish to participate in the system had outs - they could either (1) go raiding or (2) join the church. Both were supportive of the "system." Marriage as the basis for property inheritance (and certainly primogeniture!) find homosexual behavior in males extremely threatening.

This brings us full circle to gay marriage. Today, property is transmitted by will almost as much as intestacy, and this is certainly the case among the propertied classes. Other than the standard rules giving 1/2 to the wife, disinheritance of children is a part of American law (oddly, in Europe it is not). Legitmate children inherit equally with bastards (forgive the old terminolgy). We view marriage today as serving two purposes: providing legitimacy for a personal relationship and a legal framework for raising children and putting them in relationship with the people around them. Homosexual behavior is no threat to either of these purposes.

Property is no longer the issue. But relationships within the family are still highly relevant. Those who are threatened today are, really, those who still see marriage as a means of promoting patriarchy and dominance of women. If your paradigm for marriage is one dominant and one submissive partner, you view gay marriage as a threat. What they seek to "defend" is the institution of marriage *as they understand it*, i.e., a traditional method of ordering society with males on top (all males, and all males must therefore be heterosexual, lest we differentiate), and then wives and children obedient. If you view marriage a relationship of equals, this is not an issue.  

// posted by The Law Talking Guy

Anonymous said...

OK, now we are getting to the heart of the matter. Is your primary concern to assign some sort of homophobic "aleinschuld" to Germanic cultures or are you interested primarily in the relationship between property law and sexual law?

I think the interesting thing in where you are headed with your argument is that what we are talking about is really sexual law not sexual morality. Am I right to think that's your main emphasis? 

// posted by Raised By Republicans

Anonymous said...

I never "had it in" for German cultures. I have high praise in general for the tribal customs of Germanic nations which have an awful lot to do with the establishment of modern democracy today.

I meant to point out the relationship between sexual morality and the law. Sexual morality and the law have a dialectic relationship, not necessarily a one-way causal relationship. Republicans seem to think that sexual morality, particularly as regards homosexuality, is the basis for modern law. The truth is likely as much the reverse: homophobia has its basis in masculine insecurity and draws energy from a society that has organized itself in a way that would be threatened by non reproducing males.  

// posted by LTG

Dr. Strangelove said...

LTG wrote: "Homophobia has its basis in masculine insecurity and draws energy from a society that has organized itself in a way that would be threatened by non-reproducing males."

Just curious... what about the celibate priesthood? Is it because they do not own property, or are outside society? (Or some other reason?)

Anonymous said...

Hmmm. Good question Dr. Strangelove. What are the similarities between the way the Church controls its property over generations (handing it down from one Abbot/Bishop to another) and the adoption procedures favored by the Roman elites?

I get the impression that LTG is trying to point to secular sources of intollerance that have somehow corrupted an otherwise tollerant religion. But I'd point out that Christianity itself must be put into the mix of where homophobia (and mysogyny) comes from. Leviticus isn't a Germanic or Roman text, after all.

I'm wondering how much of the tollerance of the Early (pre-Constantine?) Christians was due to their strongly Helenized culture?

There, that should be ample fodder for lively discussion. 

// posted by Raised By Republicans

Anonymous said...

I hate to make fun of typos in a blog, but the great ones can't go unremarked when they create a double entendre. Helenized? She whose face was so beautiful that it launched a thousand ships? Did the tolerance come from a culture infatuated with stories of Helen? Chuckle.

I forgot to add that non-reproducing males are acceptable if they withdraw from society (as monks and holy men had long done in the mediterranean and middle east). Priestly celibacy followed monastic traditions, but to serve the unique property laws of the church - the Church was a unique institution, essentially a corporation that wanted corporate ownership of all assets.

I think it's fair to say that the sexual mores of early Christians are largely not understood. Paul advocated celibacy first, marriage second ('if you must'). The homophobia was of Jewish origin, which Hellenized society did not have. I think that (like aversion to pork) it would have been ignored but for other societal changes tht brought it to the fore.  

// posted by LTG

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