Marrying Family Law To The Nation

Draft; Do not cite or circulate without the authors permission
Philomila Tsoukala pt96@law.georgetown.edu
MARRYING FAMILY LAW TO THE NATION

Philomila Tsoukala*
Table of Contents Introduction..............................................................................................................................1 I.

A.
1. 2.
Imagining the Greek Nation ..........................................................................................7

The Orthodox Church as the guardian angel of the Greek nation ................................10
The Millet = Greek Nation ...............................................................................................................10 Family law = the Greek People ........................................................................................................13
B.
1. 2.
Memory and forgetting........................................................................................................14

Competition between the Church and Ottoman authorities.............................................................15 Competition between the Church and local authorities ...................................................................18
II. The power struggles over family adjudication and the institutional solution in the nascent Greek State................................................................................................................19
A. B. C. D. The clash between the Church and the State ....................................................................20 The clash between the Church and local leaders..............................................................24 The beginnings of a Church/State compromise................................................................25 Maurers final institutional solution to the Church/State conflict .................................28
III. Grounds for divorcing family law from the nation ....................................................31
A. B. Inertia against legal reform.................................................................................................32 Perpetuation of the politics of civilization vs. barbarism ................................................33
Conclusions ............................................................................................................................35
Introduction
Family law is often said to have an exceptionally close relationship with a nations character. In Europe, this alleged closeness of national character to family law produces ideologically charged debates whenever the question of legal reform presents itself. The discussions over the potential harmonization of European family law offer one such example. A striking characteristic of these debates is that national character or national culture emerges almost as a solid entity, fixed in time and space. The active role that states have historically played in the generation of the idea of a national character through legal
* Visiting Associate Professor, Georgetown Law Center, S.J.D Harvard Law School, D.E.A. Paris II, LL.B. Aristotle University of Thessaloniki; I would like to thank the conveners and participants of the Law and Humanities Junior Scholar Workshop 2008 for their insightful and inspiring comments; and especially my panel commentators Professors Sarah Barringer Gordon and Ayelet Shachar.
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Electronic copy available at: http://ssrn.com/abstract=1288828
regulation remains in the background, because of the underlying assumption that in the domain of family law, legal rules reflect rather than actively create national character.1 This mode of discussing the family and its legal regulation tends to overlook the dynamic interaction between legal and social norms, and overestimate the unitary character of norms and practices related to the family at the national level. More importantly, the national mode of discussing the family also underplays the political character of the regulation of the family, and the role of the state itself as a major institutional actor in the definition and imagining of communities in the national style.2 From a legal historical perspective, the identification of family law with national character is a sign of a remarkable effacement from legal discourse of the complex struggles for control over marital disputes that took place between ecclesiastical authorities, local authorities and the growing princely states ever since the fifteenth century and up until the nineteenth century. These struggles focused on the competition for political authority between local leaders of small communities ruling by custom and more centralized authorities (ecclesiastical or secular) ruling by statute or canon law.3 The piece of marital disputes relating to marital property, dowry and inheritance and the enforcement of criminal laws on marriage (such as adultery) remained a crucial part of the emerging nation-states struggle for political predominance over competing authorities both local secular and ecclesiastical.4 The process of shifting the regulation of marriages from the local level to the national level was a crucial piece of the process of creating nations, jurisdictionally, substantively and symbolically. In the French case, the 1789 revolutionaries made regulation of marriage a big piece of their agenda, and their struggle was as much against the authority of the Church as it was against what they considered the antiquated customs that prevailed in
For an example of such treatment of family law as closely connected to national character, but with a plea for creating legislation at the European level see e.g. K. Boele-Woelki, The Road Towards A European Family Law, 1 EUROPEAN JOURNAL OF COMPARATIVE LAW 1 (1997). Professor Boele-Woelki has since that first intervention in 1997 co-founded a group of academics who took on the task of studying family laws around the European Union and proposing possible directions for harmonization. The groups aspirations are closely connected to the European Unions harmonization activities in other substantive domains of law such as contracts, and the basic premise of the whole project is the assumption that even though harmonization of family law is currently outside the purview of the Unions responsibilities, it could and should become a matter of Union concern. The groups self consciously policy oriented attitude is signaled by their assumption of the name Commission on Blah, even though they have not really been appointed by any institution of the EU. 2 I am using Benedict Andersons conceptualization of the nation as a mode of imagining the limits an character of ones community, which became possible with the invention of what Anderson calls printcapitalism and is a relatively modern phenomenon. See BENEDICT ANDERSON, IMAGINED COMMUNITIES (1983). 3 See i.e. JOEL HARRINGTON, REORDERING MARRIAGE AND SOCIETY IN REFORMATION GERMANY 4 The competition between ecclesiastical and political authorities such as princes and kings over martial disputes had already started from the twelfth century. See HAROLD J. BERMAN, LAW AND REVOLUTION, 255-269
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Electronic copy available at: http://ssrn.com/abstract=1288828
various regions of the nascent nation-state, such as primogeniture and female disinheritance.5 Producing a national body of laws on marriage, divorce, dowry and inheritance was therefore a big part of their agenda.6 In Germany, where the process of creating a single state took longer, the unification of the various different local family laws became an increasingly pressing demand on the part of lawyers as late as the end of the nineteenth century; while the famous Volksgeist7 of the German historical school8 encompassed contracts and property but not family law, precisely because the latter was understood to be highly variable at the local level. Even in the case of the US, where states are said to hold the quasi-exclusive jurisdiction on issues matrimonial9 the regulation of marriage became a central, contentious, if underestimated part in the process of defining federal power and allocating American citizenship, through inclusion and exclusion.10 Finally, in the post-colonial context, indigenous elites in their struggle against colonial administrations highlighted the family as the terrain of their distinction from the colonial powers, producing in the process a notion of a nationally distinctive body of family law, also in the face of local fragmentation.11
Pushing Montesquieus idea of the vices of despotism as a form of government into the realm of the family, French revolutionaries sought to reform the law to curtail what the saw as the abuses of the household despot. See MONTESQUIEU, THE SPIRIT OF THE LAWS; JENNIFER NGAIER HEUER, THE FAMILY AND THE NATION, GENDER AND CITIZENSHIP IN REVOLUTIONARY FRANCE, 27-29; SUZANNE DESAN, THE FAMILY ON TRIAL IN REVOLUTIONARY FRANCE; 6 The revolutionaries passed legislation to abolish the right of heads of household to request the kings assistance in imprisoning wayward relatives; they abolished primogeniture; they established marriage as a civil contract; they limited a fathers power to disinherit and instituted divorce. See JENNIFER NGAIER HEUER, THE FAMILY AND THE NATION, 27; On the backlash against the revolutionary innovations see DESAN, THE FAMILY ON TRIAL IN REVOLUTIONARY FRANCE, 249-282 7 One of the first formulations of the idea that each people have a spirit manifested in their religion, language, customs can be found in MONTESQUIEU, LESPRIT DES LOIS, Even though philosophers like Hume and Herder explicitly discussed the idea of a national spirit, the word Volksgeist was coined by Hegel, see Volksgeist, in Dictionary of the History of Ideas, vol 4, at 492 8 FRIEDRICH KARL VON SAVIGNY, THE VOCATION OF OUR TIME FOR LEGISLATION AND JURISPRUDENCE. trans. by Abraham Hayward (London: Littlewood & Co. Old Bailey, 1831); even though he does not use the term Volksgeist 9 Traditional family law casebooks reflect this understanding in their structure, by providing an overview of state case-law. See i.e. HOMER H.CLARK, DOMESTIC RELATIONS 10 See i.e.NANCY F. COTT, PUBLIC VOWS, A HISTORY OF MARRIAGE AND THE NATION, MICHAEL GROSSBERG, GOVERNING THE HEARTH: LAW AND THE FAMILY IN NINETEENTHCENTURY AMERICA (1985); SARAH BARRINGER GORDON, THE MORMON QUESTION: POLYGAMY AND CONSTITUTIONAL CONFLICT IN NINETEENTH-CENTURY AMERICA (2002); Katherine Franke, Becoming A Citizen: Post-Bellum Regulation of African American Marriage, 11 YALE J. OF LAW & THE HUMANITIES 251 (1999). For an early challenge to the idea that family law is mainly a state law driven enterprise see Libby S. Adler, Federalism and Family, 8 COLUMBIA JOURNAL OF GENDER AND LAW 197 (1999); more recently on the intersection of immigration and family law see Kerry Abrams, Polygamy, Prostitution, and the Federalization of Immigration Law, 105 COLUM. L. REV. 641 (April 2005). The samesex marriage debates have brought to the foreground the idea that family law entails the distribution of public entitlements at the state and federal level and the production of national ideals about families and gender identities. See i.e. Nan D. Hunter, Federal Courts, State Courts and Civil Rights: Judicial Power and Politics, 92 GEO L.J. 943 (2004) 11 The colonial process seems to have a produced nationalist dynamics in which traditions regarding the internal or home domain were reinvented as a response to the exigencies of modernization. See Partha
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The effacement of the long, arduous processes of producing national characters in the contemporary debates over the harmonization of European family law is remarkable, yet remains largely unproblematized. Arguments against harmonization revolve around the idea of a close connection between a countrys family law and the nations character that shouldnt be disturbed, while arguments against tend to veer in the direction of a common pan-European cultural identity already in place. Arguments cast in national or European culture both tend to obscure the stakes of the debates and the potential consequences of the proposed harmonization on different groups of stakeholders, such as housewives, gay couples, and minorities. Instead, narratives of legal continuity and coherence abounding in the harmonization discourse function to generate a sense of coherence, a sense of a nomos, to use Robert Covers words.12 I refer to these narratives as nomopoetic, in the sense that they produce and perpetuate a sense of a coherent normative universe which then justifies, supports, or explains away what are essentially political choices at the national or European level. This paper focuses on the modern Greek case of nomopoesis through family law at the initial phases of the creation of the Greek state (1821-1834), revisiting what became the standard legal historical narrative of the separateness and unity of the Greek people through the years of Ottoman occupation.13 More than a typical example of the process of building nation-states in Europe, the Greek case of nomopoesis is doubly emblematic. In the ideological project of constructing Europe, Greece stands both at the very core and the very periphery.14 Following the Greek case provides a window into the construction of Europes outer imagined limits, which was built around the same ideas of the struggle against barbarism that inspired hordes of westerners to flock the shores of Greece in 1821 seeking to participate in what they saw as the struggle to save civilization itself.15 To put it in the words of a French liberal journalist writing in 1821 in support of the Greek revolutionaries:
Chatterjee, The Nation and its Fragments, 119-134; Lama Abu-Odeh, Modernizing Muslim Family Law: The Case of Egypt, 37 VAND. J. TRANSNAT'L L. 1043-1146 (2004); On the invention of tradition more generally see ERIC HOSBAWM, TERENCE RANGER (EDS.), THE INVENTION OF TRADITION 12 Robert Cover, The Supreme Court 1982 Term, Forward: Nomos and Narrative, HARVARD LAW REVIEW 7 13 See i.e. Eugenia Dacoronia, The development of the Greek Civil Law. From its Roman - Byzantine origins to its contemporary European orientation, in MCQUEEN AND VAQUER (EDS), REGIONAL PRIVATE LAWS AND CODIFICATION IN EUROPE (besides claiming the Roman-Byzantine law continuity, Dacoronia also comments on the undesirability of harmonizing national family laws in Europe) 14 Greece was at the core as Europes own foundational myth, but at the periphery as a semi-barbarized, Ottoman region. See i.e. Constantine Tsoukalas, The Irony of Symbolic Reciprocities-The Greek meaning of Europe as a historical inversion of the European meaning of Greece, in MIKAEL AF MALMBORG, BO STRATH, THE MEANING OF EUROPE 15 For an account of the European response to the Greek revolution see WILLIAM ST. CLAIR, THAT GREECE MIGHT STILL BE FREE. THE PHILHELLENES IN THE WAR OF INDEPENDENCE. For an account of the uses of the cultural continuity claim even after the creation of the Greek state see Herzfeld, Ours Once More, Folklore, Ideology, and the Making of Modern Greece. For a characteristic example of the perceived ideological importance of the Greek revolution in the United States See John S. Meehan (ed.), Mr. Webster's Speech On The Greek Revolution (1824), available at http://digital.library.umsystem.edu/cgi/t/text/textidx?sid=2d820fc7b0abb6d664f4b26b9961a27d;g=;c=webster;idno=web000005
If our voice could be heard, the barbarians who are massacring the Greeks, slaughtering priests, and prostituting Christian virgins to the frenzied soldiery, would soon be punished, annihilated, and driven back to the deserts of Africa and Asia; if our voice be heard the standard of the Cross would fly over the roofs of Constantinople or over the Parthenon, and the Church of St. Sophia would soon be 16 restored to its former use.
The standard legal historical narrative of continuity with the Christian west was first produced by Georg Ludwig von Maurer (1790-1872), the Bavarian regent in charge of judicial affairs in the nascent state.17 His book The Greek People in which he elaborated the idea of the Orthodox Church as the guardian angel of the Greek nation became one of the main sources of information for the legal history of the Greeks under the Ottomans.18 Maurer, and following him legal historians of the nineteenth century, attributed the survival of a coherent, unitary Greek nation to the millet system of Ottoman administration, which supposedly allowed the Orthodox Church to apply its own rules on engagement, marriage, divorce, dowry, and inheritance to cases involving Orthodox Christians. In the larger work from which this paper derives, I argue that these claims of continuity and unity through the rules of the Orthodox Church allowed the Greeks to discursively emerge as a nation, under the guise of a separate religion, at a moment in time when imagining community in the national style was at best an internally incomplete project, even after the creation of the modern Greek state. More importantly perhaps, it allowed the Greeks to be distinguished from the barbarian others and be ranked safely on the side of civilization, at a moment in time when even in the eyes of their philhellenic supporters like Maurer their glorious ancient past was hard to discern in their manners. Thus, Maurer regretted that the Greeks:
morals and customs are a mixture of Christianity regarding religion and Mohammedanism in their civil life with regard to manners, clothing, etc.19
Maurers position as regent in charge of judicial affairs made his legal historical understanding institutionally significant. I argue in this paper that far from embodying any objective, historical truth about the legal regulation of the Greeks during the Ottoman years, this narrative displays memory and forgetting that social historians have identified
16 17
ST CLAIR, THAT GREECE MIGHT STILL BE FREE, 55 Karl Dickopf, Georg Ludwig von Maurer, 1790-1872: eine Biographie. Phil. Diss. Mnchener historische Studien Kallmnz, 1960 18 Georg Ludwig von Maurer, Das griechische Volk in ffentlicher, kirchlicher und privatrechtlicher Beziehung vor und nach dem Freiheitskampfe bis zum 31. Juli 1834, [in German, hence The Greek People]. For the purposes of this chapter I have used the 1976 Greek translation of Maurers book, but had the quotations checked against the original German edition of the book. See von Maurer, Ho Hellenikos Laos, Demosio, Idiotiko kai Ekklesiastiko Dikaio apo tin Enarxi tou Agona gia tin Anexartesia os ten 31 Iouliou 1834 [in Greek, hence The Greek People]. 19 Maurer, The Greek People, 43 footnote 72, in French
as characteristic of nationalist thought,20 even though the idea that the Orthodox Church rules on family law preserved Greek nationhood is still the mainstream understanding of this piece of legal history. Maurers solution to the intense jurisdictional conflict between State, local and religious authorities at the emergence of Greece as a state on the other hand reflected his understanding of the Christian Orthodox Church as the spiritual principle of the Greek nation. The discursive marriage of the Orthodox Church to the Greek nation was coupled with the institutional marriage of its priests to the resolution of marital disputes in the newly emerging State. The discursive and institutional marriage of the Orthodox Church to the Greek nation influenced the development of Greek law generally, and family law particularly, up to our days.21 More importantly, it allowed for a marriage of the Orthodox Church to Greek national identity in a manner that goes well beyond the narrow domain of law and that has historically influenced the legal and political position of many an uneasy subject of Greek citizenship: the Muslims in Eastern Thrace, the Catholics of the Aegean islands, the Jews of everywhere in Greece, the Roma, and more recently the Muslims from Albania and the Middle East who started migrating to the country in search for a better life since the early nineties.22 Telling the story of the poetic character of homogenizing and civilizing the Greeks, at the legal discursive and legal institutional level is very important today, not only for the purposes of Greek legal history, but also for European politics more broadly. At a moment when the distribution of resources between European citizens and non European, often Muslim, non citizens living and working in Europe is increasingly justified or tacitly accepted through appeals to notions of concrete, coherent national identities, it is time for Europeans to take a long, hard look at the arduous, often violent and sometimes unsuccessful processes involved in turning peasants into Frenchmen, Italians, Greeks or Belgians. The dynamics of relying on a named or unnamed uncivilized other against whom identity formation takes place seems to be repeating itself today with a vengeance in the case of Turkeys accession to the European Union, and the thinly veiled civilization vs. barbarism discursive themes emerging there. Not accidentally, they are concentrated in the field of family law. Without suggesting that revisiting history will solve current political problems by deductive magic, it can at least help push against the more essentialist, clash of civilization versions of identity that have remade their appearance in political discussions in Europe. In the first part of this paper I will introduce one of the main characters in the Greek nomopoesis drama, Georg Ludwig von Maurer, whose work deeply shaped Greek legal history, and even more importantly Greek law itself. I will explain the rhetorical marriage
20 21
The expression is borrowed from BENEDICT ANDERSON, IMAGINED COMMUNITIES, 183 On the role of the Orthodox Church in the 1983 reforms of the Greek Civil Code, which abolished inegalitarian language in its family law chapter see 22 For a concise explanation of the contemporary salience of the Orthodox Church as an element of Greek nationalism see George Th Mavrogordatos, Orthodoxy and Nationalism in the Greek Case, West European Politics 1 (2003): 117-136.
of family law to the Greek nation that he performed in his seminal book the Greek people and lay out the kinds of memory and forgetting this narrative entailed. In other words, I will explain what kinds of reconceptualization, backgrounding, and mediation were necessary for his narrative to work. Maurers narrative on the relationship between the Greek Orthodox Church and the Greek nation still constitutes the mainstream understanding of Greek legal history in the Ottoman period. In the second part of the paper, I will focus on the institutional solution to the problem of Church/State relations, which Maurer helped devise, and how it came to revolve around the marriage of Church and state on issues matrimonial, based on the idea that the Orthodox Church had a stake in the regulation of marriages having helped to preserve Greekness through the Ottoman years. I argue that Maurers solution was only one of the possible paths to be taken. To support this argument I lay out the jurisdictional struggles over adjudication of marital cases between the priests, westernizing Greeks and local leaders that occurred during the years of the Greek revolution (1821-1828) and the first post-revolutionary de facto government (18281831). During these struggles, different actors articulated different versions of possible Church/State relations and different visions of the role that the Church should be playing in the process. Finally, in part III of the paper I return to the question of the contemporary importance of challenging the narrative that still constitutes the basic understanding of the legal history of Greeks, for Greek law and politics, and more importantly for contemporary constructions of European identity.
I. Imagining the Greek Nation

In 1827, six years into the armed struggle against the Ottomans that eventually led to the creation of the modern Greek state (1821-1828), Mando Mavrogeni, sat in the national convention of the Greek revolutionaries in Troezena.23 Dressed in European garb not of the latest fashion24 she was impatiently gesturing to the president for her turn to be heard. Mando was a young and beautiful heiress of a politically important family from Mykonos.25 Her uncle had served as the Portes Hospodar, or prince, in the Moldavian provinces, and was decapitated in retaliation for the Greek insurrections. Like so many of the rich Greeks in the Ottoman Empire, she had grown up in the west, in Trieste, receiving a western education, and becoming fluent in French, Italian, and Turkish.26 During the first
Dragoums, Historical Memories [in Greek], 24 Idem. 25 Most information on Mandos biography comes to us from Frenchman Theodore Blancards volume on the Mavrogeni family. Writing in 1893, Blancard summarized all available information on Mando, coming mostly from the accounts of philhellenic foreigners traveling in Greece during the revolutionary period, such a Ginouvier, Pouqueville and Blaquieres. See Blancard, Les Mavroyeni, Essai Detude Additionelle A Lhistoire Modern De La Grece, De La Turquie Et De La Roumanie; The interest in Mando as a national heroine revived after the publication of Theodore Blancards history of the Mavrogenis family and Mando in particular. Feminist activist Sotria Alibert popularized Mando as a tragic heroine by translating parts of Blancards account to Greek in 1932. Earlier she had included Mando as an example of the neglect with which the state had treated its female revolutionaries, in a passionate petition for constructing a national monument honoring womens contribution to the national revolution. Alibert, Sotria, Mando Mavrogenous. Athens:Tarousopoulou editions, 1931, 63-69. 26 Blancard, Les Mavroyeni, 637
24 23
two years of the revolution (1821-1822) her dramatic letters to ladies of the high French society urging them to support the Greeks had made her famous throughout Philhellenic Europe.27 By the time of the third national convention of Troezena, she had squandered her familys fortune financing revolutionary ships, and was constantly petitioning the revolutionary government for the return of several loans she had made to the militants of the revolution (usually to no avail).28 But her presence in the national convention she was the only woman there, was not because of the loans, nor was she there to participate in the general discussions over the new constitutional text or the military developments. Instead, Mando was waiting for her turn to speak so that she could read a petition that she had written against Demetrios Ypsilantes, a man revered by many revolutionaries for his legendary family name, his wealth and leadership during the military struggles. Mando and Demetrios had become entangled in what seems to have been an open love affair, but sometime around 1824 Demetrios cut the relationship off.29 Mando alleged that he had promised marriage to her in writing, even including a monetary penalty clause for breach. By the time she appeared at the national convention, she had petitioned a variety of different authorities demanding that her claim against Demetrios be adjudicated in front of an ecclesiastical committee. The president of the convention never recognized Mando and her petition was never read out aloud. This didnt stop her from further action, but before we follow her along in her story of frustrated expectations let us look through the historical window over the gradual crystallization of Church/State relations in the modern Greek state that her story helps open up. In 1827, the year Mando was sitting in the national convention waiting to be heard, westernizing Greek revolutionaries were still entangled in a struggle with priests over the role of the Church in the fledgling state. In the early days of the revolution, its leaders had been excommunicated by the Orthodox Patriarchate, and they had in turn cut off relations
27 28
Idem. Archives Of The Greek Regeneration, v. 14, 234 29 We have very little information on Mando and Demetrios love affair and it all or almost all-comes from historian Blancard. We dont know for instance when or where Mando met with Demetrios, or what this love affair consisted in. Blancard asserts that the two had met on many occasions to organize the military resistance. The rest of what we know of the affair itself, however, comes from hearsay. Blancard reported that an Athenian deputy, M.G. Kosaki Typaldo, wrote to him in 1891 that one of Demetrios trusted men, I. Philemon, had confided in him regarding Demetrios affair with Mando. He had asserted that Demetrios declared his intention to marry Mando, but his companions reacted. During a short absence of Mando from Nafplio they had abducted her and sent her back to Mykonos. When Demetrios returned to Nafplio, Philemon alleged, he became very angry with his companions even though he eventually forgave them and never received Mando again. The account by Kosaki Typaldo of the story goes as far as to assert that Mando actually created a small army of men to accompany Demetrios in some of his military campaigns. Typaldo claimed that according to his father, who was also one of Demetrios first companions, it was the oriental biases of the time which scandalized Demetrios men. These biases would not tolerate a young and beautiful person, following Ypsilantes in the camp or a reciprocal feeling between two young people. Finally, Blancard reports that some people assert that Demetrios stole, with the help of Mandos maid, some letters he allegedly wrote to her, in which he made solemn promises of marriage. See Blancard, Les Mavroyeni, 663-665
with it. As they began what we would now call their project of state-building, they tried to take control over the ill-defined category of ecclesiastical issues by creating within the revolutionary government a ministry of Religion, headed by a cleric, but a member of the emerging state. The ministrys duties were as confused as the political situation on the ground. Between 1822 and 1827, the ministries of Religion and Justice alternated between cooperating, and clashing head on over the adjudication of disputes related to engagement, marriage, divorce, dowry, and inheritance, depending on the disposition of the people leading them. Priests complained that the ministry of Justice and even local leaders were usurping their duties in deciding such cases, while westernizing ministers cautioned priests to stay out of judicial disputes. The whole problem was rendered even more difficult by the unwillingness of some of the local leaders (secular and religious) to give up on their previously existing power for the sake of a national state and their continued assertion of local authority even in cases revolving around this disputed domain of jurisdiction between the fledgling state and the higher clergy participating in the revolutionary government. So imagine you were Mando, seeking during this period to make a claim for breach of promise to marry? Where would you go, and what law would you invoke? Mando claimed that she had already petitioned the ministry of Religion to no avail in 1825 and now here she was, sitting in the national convention gesturing to the president for her turn to be heard. Only ten years later, Mandos quandary would have been unnecessary: a woman in her position would have known to go to the courts, since the Church had lost its powers to adjudicate similar cases after Maurers intervention. She would have invoked the Byzantine law that the Church considered its own as the law regulating breaches of promise to marry, which would have favored her if she managed to produce proof of the promise. This settlement, moreover, would be understood, at least by the lawyers, to be continuous with the Byzantine/Greek identity of the Ottoman years. The confusion of Mandos moment would have been forgotten Contrary to Mandos failed attempt at marriage the story of Church/State relations in modern Greece is one of a successful marriage, one that became possible through institutional and discursive creativity. The marriage was one of convenience rather than of love and as such matches go, the parties warmed up gradually to one another, but they certainly did when the convenience part became evident. Georg Ludwig von Maurers institutional and discursive creativity helped ease things along. The fact that he was part of the first government in Greece that actually had the military power to enforce some of its decisions also helped his solution become the one which finally shaped Church/State relations in Greece. So it seems necessary to abandon Mando for a while (et tu Brutus?) in order to examine Maurers discursive creativity in marrying Church and State through family law, before we return to the revolutionary moment, and the piece of Maurers institutional creativity that became crucial for the final Church/State compromise.
A. The Orthodox Church as the guardian angel of the Greek nation Georg Ludwig von Maurer arrived to the newly created Kingdom of Greece as a member of the three man regency created to consult the underage King, Otto of Bavaria, who had been chosen by the protector powers as the first king of the nascent Greek state. He was a law professor of some repute, and a philhellene who saw his mission as a responsibility to return to the Greeks the favor of civilization:
Since not only Europe but the whole civilized world owes so much to this great People it is the duty of every educated person to contribute to the extent of his abilities to their reorganization [i.e. of the Greek people].30
In his very short tenure in the regency Maurer set the foundations of the modern Greek legal system by drafting four codes, drawing from a mix of Bavarian and French legislation (criminal code, criminal procedure, civil procedure, code for the organization of the courts). More than that, Maurers 1834 seminal book The Greek People reconceptualized the legal history of the Greeks during the Ottoman years on the basis of the national principle at a moment in time when social organization mostly revolved around the local and regional levels. This reconceptualization became possible through a conflation of the Orthodox millet, the community of Orthodox believers, which included much more than Greek speakers, with the Greek nation. 1. The Millet = Greek Nation Millet is the word commonly used to describe a mode of Ottoman decentralized administration that depended upon self-regulation of the different religious communities within the Ottoman Empire. The standard millet story has it that for reasons partly related to religious belief and partly to practical considerations Ottoman administration was organized on the basis of tax subordination of the various religious communities, the millets, of the empire coupled with extensive communal self-regulation. The religious reasons for communal autonomy were related to the idea that both Judaism and Christianity, as revelation based monotheistic beliefs, contained elements of the true Islamic religion and were thus worthy of protection.31 Their followers benefited from a religious pact, the dhimma, and were called dhimmis.32 The practical considerations included the efficacy of a hierarchically structured system of tax subordination, where each community was responsible for the payment of a lump sum corresponding to the entire group, without the need to register and account for each and every one individual in the community.33 Since, the religious leaders were often already in charge of such functions in
30 31
Maurer, The Greek People., 2 Kunt, Transformation of Zimmi into Askeri in Christians and Jews in the Ottoman empire, 57 (discussing the indifference of the early Ottomans to the religious differences between Moslems and Christians) 32 Braude and Lewis, Christians and Jews in the Ottoman empire, 5 33 Pantazopoulos, Church and Law in the Balkan Peninsula During the Ottoman Rule, 12
10
the previous Byzantine system of administration it was a matter of practical policy for the Ottomans to maintain such administrative structures in order to secure fiscal stability.34 According to the standard millet theory, the leaders of each religion, the millet ba, were accorded wide administrative and adjudicative powers as long as they made sure that their people paid their taxes and did not pose threats to public order. This arrangement is often said to have been in place long before the Ottomans arrived, during the Byzantine era, while by the time the Ottomans conquered Constantinople Islam allegedly had an already long tradition of such agreements with religious communities conquered or surrendering to the Arabs in the Middle East.35 These powers were especially extensive in areas that the Ottomans considered of religious concern, such as marriage, divorce, dowry and inheritance. In these areas, the heads of the Jewish, Armenian and Orthodox millets enjoyed a theoretically exclusive jurisdiction, operating their own communal courts and adjudicating the relevant cases. Thus, the idea of the self-regulated millet is intimately connected with the idea of an autonomous legal system, enforcing the religious rules of each millet, independently of the Ottoman judges known as kades. Maurers rendition of the millet rested on a conflation of religious difference not only with the millet but with national distinctiveness:
Along with the Greek faith Greeks were left with their clergy as well, who had a very strong influence. So it was that under the supreme leadership of the Patriarch of Constantinople a very strong connective bond, already from the fifteenth and sixteenth century, was forged among the entire Greek Nation. And so it was that under the garb of religious difference, in reality there was a national difference that was preserved between the conquerors and the conquered.36
This conflation of the Greek nation with the Christian Orthodox millet was not new. It had been a point of contention between westward looking Greek speakers, who looked to ancient Hellas as their ideal and the Orthodox Patriarchate in Constantinople in the late eighteenth century. The Patriarchate had in fact fashioned itself as the supreme protector and leader of the Orthodox community in the eighteenth century, even though its official conception did not revolve around the concept of the nation, but rather encompassed an ecumenical Christian vision regardless of ethnicity. During the same period, the Greek speaking elites who had served as high level administrators and princes in the Eastern Provinces of the Ottoman Empire had also imagined-and to a large extent achieveddominance of the Greek language in the Orthodox millet, even though their project was not national either.37 When the project of Greek nationhood took hold in the westward looking intellectual circles of European Greeks, the Orthodox Patriarchate opposed it and the
34 35
Braude and Lewis, Christians and Jews in the Ottoman empire, 10-11 Pantazopoulos, Church and Law in the Balkan Peninsula During the Ottoman Rule, 13-34 36 Ibid, 5 37 Rhegas Pherraios, considered one of the earliest Greek revolutionaries had imagined a Greek languagedominated empire that would unify the Orthodox of all ethnicities. He was arrested and executed by the Ottoman authorities as a conspirator against the Porte.See C.M. WOODHOUSE, RHIGAS VELESTINLIS, THE PROTOMARTYR OF THE GREEK REVOLUTION (1995)
11
insurrections resulting from it as heretical propaganda and as a deep threat to its political position inside the Ottoman Empire. Even though the idea of the Orthodox millet as a proxy for the Greek nation had already been put forth as a polemical and divisive claim, Maurers book indicated the vindication of this position as a historical fact. In addition The Greek People was the first systematic articulation of the idea that the legal organization of the Ottoman Empire into different religious millets was the cultural factor that helped Greeks survive and reach salvation through nationhood. More specifically, Maurer argued that the millet system, which placed the Orthodox Patriarch as the head of the millet, and by conflation as the head of the Greek nation, contributed to the creation of a type of Greek state within the Ottoman state:
The lack of power and energy on the part of state power resulted in bigger blackmails and acts of violence on the part of local representatives to the regions. And as there was no protection from higher up whatsoever, each person sought to protect themselves. Especially the Greeks, gathered all the more steadily around their bishops, their notables, their community leaders. In turn, these gathered all the more around the Grand Translator to the Porte, around the Patriarch, the Phanariots in Constantinople. Through this mutual supporting there was gradually created inside the Ottoman state a distinct Greek state. The central point of this state was Constantinople.38
The idea that the Orthodox Patriarchate constituted an important protective buffer zone of the enslaved Greek nation against the abuse of the Turks was an idea that had been first articulated by the historian and philologist Jacovaky Rizo Neroulos,39 who Maurer cited as one of his sources.40 Maurer, however, was first to fully articulate the idea that the network of mutual support developed by the Greek speakers of the Ottoman empire and which found its highest echelons in the Patriarchy in Constantinople amounted to a Greek nationstate structure within the Ottoman Empire. Indeed, Maurer understood the very purpose of his book to be the description of all the aspects of this state within a state, dividing the presented materials into the administrative and judicial situation of the various parts of Greece before the revolution. In so doing, Maurer performed a dramatic conceptual feat, which has since provided the basic underlying normative structure, the nomos of Greek legal history41: the complete effacement of the Ottoman legal structure from the accounts of modern Greek legal history. This effacement was based on the idea of a separate, self-governing, Greek state within the Ottoman state, whose basic foundation was to be found in the privileges accorded to the
38 39
von Maurer, The Greek People, 5 Neroulos, Cours de literature grecque moderne, 84 40 von Maurer, The Greek People, 15 (other references to him: 11, 12, 15, 18, 19, 20, 21, 23, 28, 29, 31, 43, 58, 59, 93, 391, 428, 434, 440, 490, 495) 41 Cover, Nomos and Narrative.
12
Patriarchate in Constantinople and the communal mode of administration developed in various locations of the Greek territories. The radical effacement which was theoretically based on a radical separation of the two systems was announced at the beginning of the section on the administrative and judicial system of the Greeks:
We will not be discussing here the administration and justice systems of the Ottomans. Whoever wants to know more about Ottoman regional government can find some relevant information in M. of Von Ohsson. The Greeks, however, retained from a certain perspective, even under the Turkish rule, their own administration and their own courts [] No matter how disadvantageous and incomplete this administration and justice system may have been on its owna certain degree of autonomy and in any case the Greek nation was preserved through it, without which the War of Liberation would have been much harder if not impossible.42
Thus, with a stroke of a pen the entire Ottoman legal structure was wiped out of what constituted the legal history of the Greeks. Imagining a legal system in the national mode before the establishment of the Greek state was complicated but it was precisely the accomplishment of the Greek People, which managed to produce the two correlative and interdependent ideas of a separate Greek people during the Ottoman Empire and of a separate Greek administrative and legal system during the same time. 2. Family law = the Greek People Maurers conflation of religious difference with the Greek nationality meant an espousal of the point of view of the westernizing Greeks who had fought over the meaning of Greekness in the fifty or so years preceding the revolution. However, it also meant that far from espousing the openly scornful approach to the Orthodox Church that many of the Hellenizing Greeks had been propagating, Maurer conceded a discursively significant role to the Church for its role in preserving the Greek nation. Indeed in The Greek People it was the application of rules on engagement, marriage, divorce, dowry, and inheritance, what today would go under the broad label of family law that produced the very idea of a separate people unified under the garb of religious difference. Maurer noted that it was only in the domain of what the Ottomans considered strictly religious law-for the Ottomans, which is marriage and inheritance, that the Orthodox Church was granted any really exclusive adjudicative authority.
[] in these cases they werent simple arbiters, and the appeals of their decisions were subject to the Synod and to the Patriarch of Constantinople.43
42 43
von Maurer, The Greek People, 57-58 Ibid., 94-95
13
This was by contrast to all other cases in which both local leaders and priests judged only as arbiters and which could always, according to Maurer, be appealed to the Ottoman authorities.44 This in turn made easier Maurers claim of a radically separated, already constituted Greek nation, living subjugated but not assimilated to the barbarian other from the strictly sexual/biological perspective:
Hence, there were two nations living side by side, substantially distinct from one another, constituting the most intense contrast between the Asian and the European life. The Ottoman nation as conqueror and the Greek as the enslaved nation. Each one of these nations, which are separate like water from fire, has its own history.45
Finally, this construction of national survival through the application of religious rules that kept Greeks separate from the Turks like water from fire had the additional advantage that it allowed Greeks to be reconnected to Roman law, and therefore to the legally civilized nations of Europe. It turns out that the Church derived the rules it would apply in cases before it from a fourteenth century Byzantine manual of law by judge Constantine Harmenopoulos. Among Harmenopoulos avowed sources was the ninth century Byzantine law code of Vasilica, which in turn partly derived from the Corpus Juris Civilis. It was thus that Maurer could list Roman law as the first source of law for this theoretically radically separate Greek nation, followed by canon law and customs. Maurers solution to the question of jurisdictional authority that arose almost simultaneously to the revolution revolved around the idea that the Church had played an important role in preserving Greek nationhood through the application of a homogeneous set of rules throughout the Orthodox Greek millet. Maurers civil procedure code took away jurisdiction of the Church on all issues related to adjudication. However, it recognized an institutional role of the Church that was related with the preservation of Greekness that the Church had allegedly performed. The Church would be in charge of an obligatory mediation phase before the proclamation of a divorce, would be responsible for spiritually dissolving all marriages after a divorce declared by a court, and most importantly courts would apply the Byzantine law that the Church considered its own in all cases involving marriages and divorces. B. Memory and forgetting Despite Maurers assertions of Greek national distinctness because of the theoretically exclusive jurisdiction of the Orthodox Church in regards to marital disputes and inheritance, the characteristic of the last period of Ottoman rule in the territories that came under the Greek Kingdom in 1830 was, I argue, an intense fragmentation of the sociopolitical and legal landscape. It was neither separation from the Turks nor coherence between the Greeks, even when it came to the domain of such disputes that the Ottomans considered of the exclusive jurisdiction of the Orthodox Church. His narrative was therefore full of the memory and forgetting characteristic of nationalist mythmaking.
44 45
Ibid Ibid., 24 3 (emphasis added)
14
This idea of radically separated religious communities has been challenged in recent literature, which has shed light on the much more complex nature of the legal regulation of various communities under the Ottomans. As far as the Orthodox Church is concerned, it is certainly true that its higher clergy conceived of itself as exclusively charged with the adjudication of cases related to engagements, marriages, divorces, dowries and inheritances, but it is also true that in asserting its jurisdiction on those matters it often had to fight against the competing de facto jurisdiction of two different authorities, the Ottoman kade and local, secular leaders in various communities around the Ottoman Empire. 1. Competition between the Church and Ottoman authorities Of particular interest for our purposes here is a type of civil marriage between Greeks that developed as a result of the regulatory competition between the Orthodox Church and the Islamic judges (kades) who often took on cases related to the theoretically exclusive area of the Churchs jurisdiction. One of the main domains of influence of the Shari a law of marriage was the institution that became known among the Greek speaking Orthodox as (kepinion). The origin of the word is obscure even though Ottoman sources refer to this type of marriage as kiambin which stands for a lease price, precisely because this began as a temporary form of marriage that could only be contracted with the agreement of a proper remuneration for the woman upon termination of the contract.46 Other historians have referred to the institution amongst the Greeks of Istanbul as kbin, which might be related to the Persian word for dowry paid from the man to the woman.47 The version of it practiced by Ottoman Greeks was a type of temporary marriage (nikh muta)48 contracted in front of the kade and at least two witnesses. The advantage of this specific type of marriage on the part of the contracting woman was that the man had to agree to a lease price (kiambin) or to the Muslim dowry paid by the man to the woman (mahr).49 While the marriage lasted children born out of the marriage were considered legitimate50 and if no duration was agreed upon the marriage was a permanent one. In Pantazopoulos words contracting a marriage by kepenion, had a great influence on the Greek Law, in spite of the efforts of the Church to the contrary and thus, conduced to the spreading out of concubinage in various forms.51 Most of the cases involved either intermarriage between Muslims and Christians, or marriage between Christians who wanted to contract a fourth marriage, which was forbidden by the Orthodox Church, or a marriage of relatives up to the seventh degree,
46 47
Pantazopoulos, Church and Law in the Balkan Peninsula during the Ottoman Rule, 93. In some contemporary Muslim countries the word kabin means marriage contract. See Lucy Carroll and Harsh Kapoor, Talaq-i-Tafwid, The Muslim Womans Contractual Access to divorce, An information kit, p.22 online at http://www.wluml.org/english/pubs/pdf/misc/talaq-i-tawfid-eng.pdf 48 Pantazopoulos, Church and Law in the Balkan Peninsula during the Ottoman Rule, 94. 49 Ibid. 50 Ibid. 51 Ibid., 95.
15
which was equally forbidden.52 A particular sub-category of marriage in front of the kade developed in Istanbul beginning in the eighteenth century, when the influx of French and Venetian merchants with a semi-permanent presence in the capital led to the occurrence of contractual concubinage between these westerners and Christian women.53 The practice apparently also became common in the neighbourhood of Pera which was inhabited by Greek merchants, and about which the Patriarchal vicar complained.54 The French ambassador allegedly had three children with a Greek woman living with him in kbin, which he recognized upon a later marriage with another woman.55 The spread of the practice among the Greek speaking Christians makes considerable sense if one takes into account that this was a type of marriage that required no dowry giving on the part of the bride, in contrast to the Byzantine and customary law in many Greek communities, while it also provided financial security through the mahr upon divorce. In the archives of the kade court of Veria there is evidence of Christian couples making use of the provision of a mahr in the case of divorce, which means that even if the marriage was not inter communal the Christians used the Ottoman courts to take advantage of beneficial provisions. 56 It is not surprising that kepinion constituted cause for concern of the official Orthodox hierarchy, especially in relationship to the observed dowry inflation of the eighteenth century. In some areas of its jurisdiction like central Greece, the clergy observed the growing of the custom of giving an added amount of dowry in cash to the prospective groom, which he was entitled to keep for himself upon death or divorce.57 The custom known as trachoma (),58 apparently led to an increase of intermarriage of Christian women with Muslim men and of contracting of kepenion as an alternative and cheaper for the family form of marriage. In Athens for instance in 1736 the Metropolitan Zachariah caused the issuance of a canonical edict on the subject observing that
[A] demonic and corruptive pre-ceremony, that of the so-called trachoma, and this same rough and barbarous in word and deed custom, has taken on the power of law, and has become unavoidable throughout the race and all of those who have been corrupted by this pest have been lost. Because the daughters who were provided with a lot of trachoma got married, but the others who didnt have enough to give, were deprived at the age of marriage, withering away inhabiting with their fathers and mothers and being in despair and inventing the evils that come from necessity. Either they schemed to seduce men through making love or through
52 53
Ibid. Dursteler, Venetians In Constantinople: Nation, Identity And Coexistence, 95. 54 Ibid., 96. 55 Ibid.. 56 Gins, Outline Of The History Of Post-Byzantine Law, 140. 57 This was in contrast to the dowry which usually reverted to the womans kin upon her death with no children 58 Pantazopoulos, Church and Law in the Balkan Peninsula During the Ottoman Rule, 57.
16
despair fell into illegitimate nikiahia (Turkish for marriage) or most dishonourable downfalls.59
This form of marriage seems to have been quite common in the island of Chios, where the kade had issued a huccet (religious edict) determining the amount of money due to the authority as a marriage tax in the case of intermarriages between Christians and Muslims. The inhabitants of the island complained that the zabite (tax collector) was abusing them by requiring more.60 Another piece of direct evidence on the practice of Shari a type marriages amongst Greek speaking Christians come from the kade archives in a Balkan town, where the police functionary of the town accused a Christian man (Vasili) and a Christian woman (Pauna) of having been married in contravention of the Shari a because she had not been properly repudiated by her first husband, (Demo, also a Christian with a Greek name). Called as a witness, Demo properly repudiated her (I have left her) and the case was closed.61 Extraecclesiastical repudiation was not acceptable and would not have been condoned by the Orthodox canon law and the case is notable for the expectation of the police officer that the Christians should have been married according to Shari a law. Beyond the financial incentive of women with little or no dowry to contract a kbin with a Christian or a Muslim man, there was also the question of post-divorce entitlements, which in many places seem to have been more ample according to Shari a than to canon law. The Byzantine law that the Church was committed to on the books did not foresee maintenance for the wife, unless this was for the childrens sustenance. Upon divorce, theoretically the wife would get her dowry back, unless the marriage was dissolved because of one of the fault reasons provided for in the law, in which case the dowry could be forfeited in favor of the husband as a penalty. Alimony was unknown to the Byzantine law that the Church was applying. All this in contrast to the Shari a institution of the mahr, which provided for an amount of money to be paid to the wife in the case of divorce. This provided an important incentive for appealing to the kade and formalizing the marriage contract in front of him, which many Christians, very often women, did quite frequently according to the kade records of various Balkan cities.62 Even though most of the kade court archival material for the Peloponnese has been lost, the surviving archive of the kade of Balyobadra (Old Patras) contains records of marriages in front of the kade between Christian Orthodox partners,63 thus confirming the validity of the hypothesis of a more mixed situation on the ground even in some of the territories that took up arms against the Ottomans in 1821.
Patriarchal letter of Neophytus of Caesarea regarding the term dowries [in Greek], , vol 4, (1864) pp. 233, cited in Pantazopoulos, Church and Law in the Balkan Peninsula During the Ottoman Rule, 59. 60 Mavropoulos, Tourkika engrafa afornta tn Istorian ts Chiou, 110 and 198 [in Greek, hence Turkish Documents Concerning The History Of Chios]. 61 Gradeva, Orthodox Christians in the Kade courts: The Practice of the Sofia Sheriat Court, Seventeenth Century, 61. 62 Ibid., 62. 63 Inalcik, An Economic and Social History of the Ottoman Empire, vol. II, 602.
59
17
2. Competition between the Church and local authorities Finally, Islamic judges were not the only instance of regulatory competition in the last period before the Greek revolution. There were several areas in the last fifty years of the eighteenth century, especially in the islands of the Aegean, which flourished economically because of trade, and which developed a pronounced non-religious local leadership, often finding itself in competition with the authority of the priests. On the island of Santorini for instance the local leaders sought to wrestle jurisdiction away from the priests and admonished them to keep out of the business of the civil authorities.64 The competition between local secular authorities and the priesthood seems to have been widespread enough to induce Patriarch Samuel the first, in 1772 to ask the publication of a sultanic order forbidding the intervention of civil Authorities in marital cases and in cases involving priests, because these belonged to the Patriarchs exclusive jurisdiction and were not considered at all civil disputes.65 The decision concerned local civil authorities but also the interference of the Turkish civil authorities in such cases. Similarly, a 1785 agreement of the Greek Orthodox inhabitants of Smyrna created a mixed council of higher clergy and local secular authorities to judge all kinds of cases, while it provided that not even divorces, usually considered by the Church within its own sphere of exclusive jurisdiction, would be granted without the permission of this mixed council.66 The same desire to submit all actions of the priests to the supervision of the authority of the local leaders is evidenced in the 1818 decision of the local council of the island of Hedra. Article fourteen of that decision provided that all decisions of the ecclesiastical court could be appealed to a council of local authority judges.67 In an earlier letter of the local primates of a village on the island of Kythnos, it was ordered that not even the archbishop should be ableto give permission for a wedding, without the permission of the primates.68 Thus, in the fifty or so years before the outbreak of the insurrections that consolidated into the Greek revolution, the Greek Orthodox Patriarchate in Constantinople was already waging a jurisdictional fight against both the Ottoman religious judges, who for the purposes of Christians functioned as a civil authority, and local secular leaders in the communities themselves. The outbreak of the insurrections that eventually congealed into the Greek revolution created a new situation on the ground at least in the Peloponnese where a revolutionary government managed to gain some military and political control, no matter how tenuous. The overthrow of the Ottoman administration there resulted in the opening up of several different possibilities for reorganizing the region politically and the central national one only gradually gained prominence. The adjudication of cases that the
64
Customs of Santorini or Thra quoted in Pantazopoulos, From the Learned Tradition to the Civil Code, 107. 65 Gins, Outline Of The History Of Post-Byzantine Law, 205. 66 Ibid., 224. 67 Ibid., 279. 68 Ibid., 271.
18
Church had at least fought to keep under its jurisdiction became during the revolutionary years (1821-1828) the centerpiece of a double sided struggle: within the revolutionary government, between the ministries of Religion and Justice, and between the ministry of Religion (as representative of a national government this time) and local leaders.
II. The power struggles over family adjudication and the institutional solution in the nascent Greek State
For the Patriarchate the revolution was mixed news and the clergy was divided. The Orthodox Patriarchate in Constantinople opposed it, excommunicated the revolutionaries and urged them to come back to Gods path.69 On the other hand, local priests and even some important bishops participated in the revolts,70 while other higher clergy were confronted with a fait accompli just like the often unwilling local leaders. Once the revolts took hold however, the higher clergy seized the opportunity and tried to influence political events. More specifically, from early on the priesthood understood that the revolts meant a new, uncertain balance of power, in which the interests of westernized revolutionary ideologues, local secular leaders, military captains and priests had to be meted out. Similarly, for many of the westernized Greeks and westward-looking merchants altering the structure of the Churchs participation in political life was part of the changes sought after through revolution. The Orthodox Patriarchate of Constantinople was understood as part of the despised Ottoman administration, and several local leaders had sought even before the breakout of the revolution to limit the influence of the Church in political affairs sometimes even seeking to control the priests decisions on marriages and divorces. No one however, could achieve the organization of a central revolutionary government without the participation of the local priests and without reference to the religious distinction between Christians and Muslims that had in part legitimated the revolution in the eyes of western observers, and had also fuelled the anger of fighting peasants. This was at the basis of the eventual marriage between the national Hellenizing project and the Orthodox Church. The effort on the part of the priests to remain center-stage in events was obvious from the first revolutionary declarations, in which reference to the law of our immemorial Byzantine emperors was made. This was a clear indication of the clergys effort to influence developments by putting forth a claim for the application of the law that it considered its own. Similar provisions about Byzantine law were included in all later national constitutions, even though there, the signs of a stronger westernizing tendency were evident. The first national constitution of Epidaurus (January 1822) provided that the civil and criminal procedures are based on the Laws of our immemorial Christian Emperors, and on the laws published by the Legislative and the Executive bodies; in
69 70
Finlay, History of the Greek Revolution, vol. I, 227. A surviving table of initiated members to the conspiratorial group Philike Hetairia, among which there is a small portion of clerics, including five members of the higher clergy.
19
commercial cases, the French commercial code alone is in effect in Greece.71 A revised version of this constitution, known as the second national Constitution of Astros (1824) contained an almost identical formulation.72 The text of the third national constitution of Troezena commanded the compilation of codes on the basis of French legislation73, but also commanded the temporary application of Byzantine laws.74 This uncertain ballet between Byzantine law and French inspired Codes points to the tensions existing within these texts in terms of legislative policy, which further speak to the competing interests of the various actors in the revolution. The theoretical application of Byzantine law until the promulgation of western style codes did not help any in the elucidation of who will be doing what in the nascent political structure. Despite the proclamation of three western looking constitutional texts, the acceptance of Byzantine law could be taken to mean that the priests would continue to adjudicate cases on an arbitral basis, or even exclusively. This is the interpretation the priests participating in revolutionary events took. In fact, the ambiguity became quite obvious in the struggles that ensued between specific revolutionary actors over the role that priests should or shouldnt play in the adjudication of disputes. The government tried early on to control ecclesiastical affairs in the revolutionary territories, precisely in order to maintain political independence from the Patriarchate.75 The revolutionary government included a ministry of Religion, whose duties were illdefined. The creation of a ministry of Religion in the government, headed by priests, did signal the desire for ecclesiastical affairs to be governed independently of the Patriarchate and under the control of the revolutionary government. It did not determine however what its exact duties would be, as showcased by the jurisdictional fights that promptly ensued between priests in the ministry of Religion, westward looking Greeks in the ministry of Justice, and even local leaders. A. The clash between the Church and the State In the absence of courts, the revolutionary Executive branch accepted suits of all kinds. Within the revolutionary Executive itself, both the Ministry of Religion and the Ministry of Justice were directly involved in adjudicating cases that were brought before them, even though the Ministry of Religion was predominantly- but not exclusively-petitioned for cases involving engagements, marriages, divorces, dowries and inheritances. During the first period of the new government the Minister of Justice was Joseph bishop of Androussa, who was also, significantly, at the head of the Ministry of Religion. In his capacity as Minister of Religion Joseph resolved a number of disputes involving engagements, divorces, wills and dowries.
71 72
Article 98 of the Constitution of Epidaurus. Ibid., 119. Article 80 of the Constitution of Astros. Ibid., 131. 73 Article 99 of the Constitution of Troezena. Ibid., 145. 74 Article 142 of the Constitution of Troezena. Ibid., 149. 75 Andrianopoulos, The Church during the revolution of 1821 and during the administrative period of Ioanns Kapodistrias (1821-1832).
20
Joseph was replaced in the post of minister of Justice by Georgios Barboglis, and soon thereafter by Ioannis Theotoks. Theotoks was a westward looking man from Corfu, familiar with the French legal system. Theotoks tried to centralize the de facto jurisdiction of private disputes in the ministry of Justice as a proxy for the yet non existent courts.76 Joseph, who remained head of the ministry of Religion resisted the effort, starting from the renaming of the ministry of Religion to ministry of Adoration that had been effectuated with the constitutional text of Astros (1824) .77 Correctly understanding the jurisdictional significance of the slight discursive shift, the Joseph refused to use the term Adoration and insisted on the title minister of Religion. He explained his reasons as follows:
To the General Secretary of the State [] Which difference the words Faith, Religion and Adoration have, it is redundant for me to elaborate on in order to inform an educated man; so, since Religion admittedly has an effect on the rights (judicial affairs) of humans, which this ministry will occupy itself with, whereas Adoration doesnt, please inform the Administration that I am not I think acting out of line by signing as The Minister of Religion78
Letters from the same period between Theotoks and the ministry of Religion highlight the uncertainty over the future role of the clergy and especially so in terms of its adjudicative functions. In a letter from Joseph to Theotoks, dated 1824, the tensions became more than apparent. The ministry of Justice had complained over the adjudication of disputes over wills and dowry contracts by the ministry of Religion, thinking that these belonged to the ministry of Justice, by way of being civil disputes between private parties. The ministry of Religion, however, claimed that the dowry contract was only signed because of marriage which was a religious affair, while wills began by religious invocations that were meant to assure their application. The disagreement between the ministries therefore revolved around the interpretation of the terms religious and judicial. The ministry of Religion was trying to include disputes over wills and marital contracts in the term religious while the ministry of Justice was trying to include these terms in the meaning of the term judicial. The disagreement would have likely arisen therefore, even if the constitutional texts had included a clear provision to limit the Church to religious affairs, while assigning the administration of judicial affairs to the courts. Indeed, the dispute arose at a moment in time where the constitutions of Epidaurus and Astros both provided for the assignment of judicial affairs to the judicial branch. Notice that Joseph, didnt think that the constitution
76 77
Ibid., 97-99. Constitution of Astros, article in Svolos, The Greek Constitutions, 124. 78 Visvizs, Civil Justice during the Greek Revolution and until Kapodistrias, 244.
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has decided this question and admonished the minister of Justice to leave the question to the future legislatures rather than try and impose novelties, a potential reference to western brought institutional innovations.
[] [] because the ministry of Religion reviews disputes over dowry contracts and wills, it is criticized as violating its duties, in this the ministry of Justice is wrong; because, since the dowry contract has as its base Marriage which is one of the seven mysteries, that is [it has at its base] Religion, and because a will itself starts by religious invocations, and therefore has at its base Religion as well, so that it can remain inviolable; because of these religious principles therefore, these disputes are thought to be part of the duties of the ministry of Religion, and since the establishment of the Administration the parties themselves report to it, as well as the other ministries including the ministry of Justice and this very Administration, and they are reviewed by it [the ministry of Religion]. Therefore, for these exemplary and logical reasons the ministry of Religion does not think it a violation of its duties to review these cases, but rather a fulfillment of its duties. So if the ministry of Justice itself loves brotherly harmony and peace between the ministries, it shouldnt confuse things with such novelties for the moment, but should leave them to the future legislature of the nation; and it shouldnt obstruct the report takers, but should send these disputes to be reviewed where they are already being reviewed; otherwise, how can harmony be safeguarded? How can brotherly peace be kept in the ministries? In the absence of the minister of Religion, the G.Secretary, Daniel Georgopoulos, 16th August 1824, Nafplio79
It is quite characteristic by the wording of the letter that even though the ministry of Religion was a ministry created by the national constitution within the national government, the general secretary of Religion was speaking on behalf of religious principles and clearly understanding the role of the ministry of Religion to be continuous with the Churchs previous role, even advising against novelties. The minister of Justice wrote his indignant reply the very next day, challenging the ministry of Religions interpretation of its duties. He characterized the jurisdiction of the priests during the times of the Sultan as dually civil and religious, and clearly implied that this arrangement was not fit for civilized nations such as the Greeks.
[]
79
Ibid., 347.
22
It was with surprise that the ministry of Justice saw the reply no 1702 by the ministry of Religion, and it now hastens to reply the following in brief. It would have been much more surprised by the contents of the reply, had not the same reply admitted that during the first Period the same minister of Religion was temporarily serving also as minister of Justice, hence the confusion over the duties of these two ministries. But the ministry of Religion is wrong to think that inheritance procedure is a matter of religion, because it assumes Marriage, and Marriage is one of the seven Mysteries; since we are all Christians all our actions almost have religion at their basis, so all the cases of the Christians for whatever issue should go without further ado to the ministry of Religion? no! During our slavery the Sultan had this law, because of the differences of religions, for all the cases of Christians, to be reported to the Patriarch, and to the local Archbishops, and for all the procedures to be reviewed by them, so that they were both shepherds of the Church and Civil judges; and the Christians gladly went at that time to their Archbishops so as to avoid the beastliness and ill will of the Turks. But today, that God willing, we enjoyed the god given gift of our freedom and independence, that we acquired legitimate and regular administration, according to the order of the civilized and enlightened Nations, and that the necessary ministries have been established, shouldnt we define their duties? Generally, therefore, those cases that are judicial, and all those things that are disputed according to justice, fall under the branch of the ministry of Justice, as the name itself shows, and to the ministry of Religion, those that are mainly religious. The minister of Justice, I Theotoks, The G. Secretary, D Negris, 19th August 182480
The characterization, however, of this jurisdiction as dual, tended to underplay the political contentiousness of the issue in the minds of the priesthood that was grasping the opportunity of the revolution to impose what it had throughout the Ottoman years seen as its rightful jurisdiction, often usurped by local authorities and Ottoman kades. Finally, it is worth noting that the minister of Justice did not mention divorces as a judicial issue that was wrongly addressed by the ministry of Religion. During his service as minister of Justice the ministry of Religion continued to predominate in the adjudication of divorce disputes. The important thing to note however is that even though the ministry of Religion seemed to predominate in these cases, there was by no means unanimity and the characteristic of the period was rather that the revolution has opened up an array of possibilities over partitioning responsibilities for adjudication that were fighting each other out, against the backdrop of high political uncertainty. Even if we disregarded the obvious instability of the new governments newly established power and operated solely within the framework of the entities that comprised this new, national government, there was widespread disagreement about who should be doing what in regards to the administration
80
Ibid., 348-349 (emphasis added).
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of justice, and within that category, about the resolution of affairs that previously fell under the jurisdiction of the Greek Orthodox Church, which was itself varied and split up geographically, depending on a number of different factors. B. The clash between the Church and local leaders The clash between the ministry of Religion, as a proxy for the Church, and the ministry of Justice, as a proxy for the westernizing Greek revolutionaries was not the only relevant one in the jurisdictional puzzle over marital disputes. There are some indications that local leaders continued to challenge the jurisdiction of priests in marital cases during the revolution. In a document dated July 25th 1825, the Minister of Religion who replaced Joseph, Jonas bishop of Damala, scolded the eparch-that is the local leader who had been recognized by the national government, in the town of Aegina for having surpassed his jurisdiction by granting a divorce:
[] It was with extreme wonder that the ministry read the report of the eparchy, and the actions which it took towards Spyros Ambellas and his wife, a thing truly, wholly improper and impertinent to the character of the eparchy, and it seems that either it doesnt know its duties well, or it wants to mingle with duties that do not belong to its profession. The Administration has appointed head of all the ecclesiastical matters this ministry, and everything that goes back to the seven Mysteries of the Church, these are the duties of this ministry and every such act done by another is null. Matrimony is one of the seven mysteries and for that it is not the duty of any Eparchy to issue any divorce, and even the Priest himself cannot do so without notifying the Ministry. This Ministry orders that from now on the Eparchy should not reach to duties that do not belong to it, because it commits a crime of illegality. [] In Nafplio, July 25th 1825, the minister of Religion, Jonas of Damala, the G. Secretary, A. Milt.81
Even though the institution of the Eparch was a revolutionary invention meant to tie local administrations to the national government, in most cases former or current local leaders were appointed as Eparchs. The case here is not quite clear-cut and might stand for
81
Visvizs, Civil Justice during the Greek Revolution and until Kapodistrias, 446.
24
more than resistance of local leaders to religious authority. From a formal point of view, both the minister of religion and the Eparch were part of the revolutionary government. However, even the local leaders who participated in the revolution and ended up taking up Eparchy posts did not necessarily anticipate or desire a centralization of power that meant a weakening of their own position. In this case then, the struggle might have been more about local resistance to central government, in the guise of the ministry of Religion, than about the local resistance to religious authority. The fact that minister emphasized in his letter that not even the priest meaning the local priest had the right to divorce anyone without notifying the ministry reinforces this interpretation. C. The beginnings of a Church/State compromise The struggles described above continued thus until the arrival of the first governor of the de facto Greek state (it was officially recognized by European powers in 1832) count Ioannis Kapodistrias, who had been unanimously elected to lead the government by the constitutional convention in Troezena that Mando attended. He was regarded close to a savior and received in Nafplion to great popular acclaim. Mando herself apparently regarded Kapodistrias as potentially her own savior. Having received no answer to her 1825 petition to the ministry of Religion for the appointment of an ecclesiastical committee, she addressed a dramatic personal letter to Kapodistrias, only a few days after his arrival to Nafplion:
Your Excellency, I ask on my knees to the mercy of his justice that an ecclesiastical committee with the saint archbishops of Arta, Brestheni and Karistos, be appointed to review the case contained in my report here in Aegina as soon as possible, because my unfortunate mother has been reduced to a state near death from the injustice that the good patriot [i.e. Demetrios] caused to my character and she is in bed from that time on, and for this I find myself in a hurry until he gives an end so that I can leave for my homeland. [] I remain a humble slave of his excellency Mando Mavrogenous In Aegina on the 1st of February 182882
There is no known response of governor Kapodistrias to Mando. Her case must have been particularly difficult to deal with. Not necessarily because of the jurisdictional problem. If she did in fact petition the ministry of Religion in 1825 there was, as we saw, no constraining legal framework that would have stopped the ministry from appointing an ecclesiastical committee to judge her case. Cases of breaches of promise to marry were
82
Tourtoglou, Report of Mando Mavrogenous against Demetrios Ypsilants, 157at 157
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adjudicated by similar committees appointed by the ministry of Religion during the same time. Politically, however, hers was a tough case to push for. Directed against one of the most respected military leaders of the revolution-whose men had allegedly physically put Mando on a ship back to Mykonos to keep her away from him-by a single woman, with no male kin support, pleading on behalf of herself and her bedridden mother. Her claim was a rather traditional one, her presentation of it rather novel. From this position of not much structural strength Mandos petitions track the winds of jurisdictional changes during the revolutionary years. In 1825, when the minister of Religion predominated in the adjudication of similar disputes and even scolded the minister of Justice for interfering, this is where she addressed her petition. Not having gotten an answer, she tried to take advantage of her then position as a benefactress of the revolution by trying to speak at the national convention. She then turned to the next power that be, Kapodistrias himself, who arrived in Greece with overwhelming political support. During the three years of his governorship Kapodistrias created the first rudimentary courts and tried to deal with the Church/State question. His minister of justice Gennatas, as we will see replied to another of Mandos petitions, addressed this time to the ministry of justice, rejecting her petition for lack of jurisdiction and directing her to the courts. The first courts of first instance started functioning in 1829 after the publication of an ordinance no 8268 on the Organization of the Courts.83 The ordinance clarified the jurisdiction of the courts vis vis the other branches of the administration, meaning the various ministries, as well as other local authorities, by providing that the resolution of every dispute that comes up, of whatever nature, civil, commercial, corrective or criminal falls to the courts.84 The government accordingly tried to direct petitioners to the courts for the adjudication of their disputes. It also notified other administrative authorities that they shouldnt mingle into judicial affairs after the establishment of the courts.85 This, however, did not clarify whether it would direct all disputes including divorce cases to the courts as civil disputes. One of Kapodistrias first actions was to appoint an Ecclesiastical Committee of five members, which would occupy itself with the situation and needs of the Church.86 The ordinance appointing the committee was quite clear in directing the committee towards a consultative role that would not exercise any political power.87 Kapodistrias specified that the political affairs should be left to the political power, its ministers and its local civil servants. This, however, did not translate in the minds of the members of the committee, who were all priests, into an admonition to stay away from affairs related to marriage. In
The ordinance was published in December 1828. See Seremets, He Dikaiosyn epi Kapodistria, 56-71 [in Greek, hence Justice during Kapodistrias]. 84 Ibid., 62. 85 Ibid., 123-124. 86 Andrianopoulos, The Church during the revolution of 1821 and during the administrative period of Ioanns Kapodistrias (1821-1832), 57. 87 Ibid.
83
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its report to the government, the committee relayed the condition of Churches and monasteries, but also reported on the many cases of illicit marriages.88 In terms of the de facto application of this framework, the Kapodistrian minister of Justice, Ioannis Gennatas repeatedly directed petitioners to the courts trying to put a stop to the practice thus far of appealing directly to the revolutionary government. Gennatas was a Corfiot lawyer who had studied in Italy, but was also familiar with French law. His insistence on redirecting cases to courts as opposed to the government included cases involving divorce. In one case a woman petitioned the ministry of Justice to grant her a divorce and Gennatas observed that
[T]he government doesnt dissolve marriages, nor does it take over the duties of the Courts of First Instance and the Non Appealable Court89
This was unprecedented for the revolutionary government. Even minister Theotoks who had clashed with bishop Joseph in 1824 over the adjudication of cases on will and dowries had not included divorces in his understanding of judicial cases. Six years later Gennatas confident response implied that judicial cases involved even cases of divorce. Gennatas, however, did not remain stable in his preference of courts when it came to divorce cases. In a report he submitted to Kapodistrias the very same year that he directed the divorce petitioner to the civil courts (1830), he proposed an overall scheme for the relationship of Church and State, in which mixed courts comprised of civilian judges and priests would adjudicate divorce cases. In cases of disagreement, the priests opinion would predominate, Gennatas suggested.90 It is unclear what had intervened in the meantime to change Gennatas previously adamant stance, that courts should be responsible for the adjudication of divorces. Widespread resistance from the clergy, however, is one possibility. Gennatas draft was the last proposal by any committee appointed by Kapodistrias to deal with the issue before his death in 1831. In Mandos case, Gennatas delivered his answer also in 1830, dismissing her petition for lack of jurisdiction and directing her to the courts, while also casting doubt over the validity of a penalty clause for breach of promise to marry.91 There is no record of any further legal action on the part of Mando against Demetrios after the 1830 petition to the minister of Justice. She stood doubly unlucky in this case. Demetrios, always of frail health died of bronchitis in 1832, the same year that the first King of Greece arrived accompanied
Ibid., 5 Seremets, Justice during Kapodistrias, 112. 90 Tourtoglou, Scheseis Politeias kai Ekklsias (Prospatheia rythmiseos afton epi Kapodistria), 85 [in Greek, Church to State Relations (attempt to regulate them in Kapodistrias time)]. 91 If indeed she has a confession according to which Mr Demetrios accepts to pay however much Ms Mando asks, if after Greeces liberation he doesnt marry her, what kinds of rights can flow from this? [The right for him] to marry her? Can the Church force a marriage? in Triantafyllopoulos, On the Protection of Women During the Times of Kapodistrias, 266
89
88
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by three regents; one of whom, Georg Ludwig von Maurer, engineered the final solution to Church/State relations in the emerging state. Had Demetrios survived and Mando persisted for a solution within the legal framework created by Maurer, she would have again been directed to the courts, but there would have been no doubt about the validity of the penalty clause. Maurer excluded the Church from the final pronouncement on marital cases, but adopted the Churchs Byzantine law as the law of the Greeks, based on the idea that this was the law that had been applied throughout the Ottoman years in a homogeneous way to all Greeks. Penalty clauses of the sort Mando claimed Demetrios had undertaken were considered valid under that Byzantine law and therefore she would have had at least a chance at satisfaction, even if she would have had to finally address herself to the courts and stop requiring the appointment of an ecclesiastical committee. D. Maurers final institutional solution to the Church/State conflict One final, frustrating encounter with Mando. Legal historian Konstantinos Triantafyllopoulos who discovered and published in 1936 the 1830 answer of minister Gennatas to Mandos petition concurred with the ministers pronouncement on the lack of jurisdiction with no further comment on the issue.92 The same was true of Menelaos Tourtoglou who in 1956 discovered and published Mandos direct petition to Kapodistrias. Tourtoglou observed that: In his official opinion Gennatas is mostly concerned, and rightly so, with proving the initial lack of jurisdiction of the Ecclesiastical Authority over the case 93 By what measure was Gennatas answer right? Both legal scholars treated as obviously correct the idea of the Churchs lack of jurisdiction on the case, despite the fact that, as we saw, the jurisdictional question on similar cases was still very much up in the air. I believe that both their attitudes depend on a background understanding of the role of the Church during the Ottoman years that became entrenched through Maurers nomopoetic narrative and institutional solution to the Church/State conflict. Having served as the guardian angel of the Greek nation during the Ottoman years the Orthodox Church now handed over adjudication of marital cases to the state. Marital cases, like any other dispute, naturally belonged to the state-the Church had merely acted as a substitute nation-state structure. They would now be judged based on the law that the Orthodox Church had applied. In this section, I explain the basic scheme of Maurers solution to the Church/State conflict, elements of which appear naturalized in the interpretation of Mandos case by the two twentieth century legal historians. I wont dwell more on the implicit treatment of Mando
92 93
Triantafyllopoulos, supra note x Tourtoglou, supra note x (emphasis added)
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as a love-crazed woman who, having completely lost it (her mind, possibly her virginity too),94 was now frantically appealing the wrong authorities. Maurers solution was to consolidate the separation of the Church of Greece from the Patriarchate. Maurer designed the law that declared the Church of Greece autocephalous, a solution that the Patriarchate condemned as schismatic and refused to recognize until almost twenty years later (1850). The Declaration of Independence of the Greek Church (1833) foresaw the establishment of a Synod to govern the Churchs internal affairs, but it also established the oversight of the King on numerous affairs. The arrangement provoked intense debates, theological and political, that resonate to our days. Theological conservatives saw the Declaration as an uncanonical schism from the Patriarchate and a subordination of the Church to the government. Liberally minded Greeks were satisfied with the proclamation of the Greek Church as autocephalous and defended it as the only possible way to conclude the gains of the revolution. Very importantly for the future of marriage and divorce jurisdiction, the Declaration provided that purely spiritual or religious matters were to be regulated independently by the Church but then went on to define a category of issues of mixed nature in which marriage was included. Those issues of mixed nature could not be regulated without the approval and collaboration of the government. (Articles 12-14 of the Declaration). Article 14 of the declaration foresaw that marriages, besides their political effects which would be regulated directly by the government, were considered such an object of mixed nature. Article 15 provided that on such issues of mixed nature, the Holy Synods decisions, approved by the government would be published in the Government Gazette as laws of the state. 95 The Declaration directly provided that marriages as to their political (meaning civil) effects were under the jurisdiction of the courts (article 18 section 4) and therefore only courts could solve disputes pertaining to those effects96 The idea was that marriage is both a sacrament of the Church and a civil act of the state. It has a dual nature and therefore, its regulation has to be dual as well. The government would be responsible for regulating marriage and divorce through its civil laws and their application by the courts. The Church would be a partner in this process, having a stake through the spiritual part of this dual nature. The newly autocephalous Church of Greece, now solely responsible for performing a valid marriage ceremony between Orthodox Christians, charged with an obligatory reconciliation attempt before divorce, and solely
After summarily questioning the idea of the penalty clause for breach of promise to marry, minister Gennatas suggested that if she had lost her virginity she should turn to the courts for a tort or criminal action. Triantafyllopoulos also took it for granted that Mando had lost her virginity and devoted most of his three page note on the case describing how early modern Greek courts were much more sympathetic to loss of virginity tort or criminal claims by women than they were during his own time. His article was characteristically entitled On the Protection of Women During Kapodistrias. 95 Dligianns and Znopoulos, Hellnik Nomothesia apo tou 1833 eos tou 1866, vol. 6, 28 [in Greek, hence Greek Legislation from 1833 to 1860] 96 Article 18 of the Declaration of Independence of the Greek Church, published in the Government Gazette on July 23 (August 4, western calendar) 1833 in Dligianns and Znopoulos, Greek Legislation from 1833 to 1860, vol. 6, 24.
94
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responsible for proclaiming the spiritual dissolution for a marriage acquired significant oversight of marriages and divorces, in a more consistent manner than had been previously possible because of the regulatory competition with Ottoman judges and local leaders. Far from constituting a secularization of marital affairs, as it is often referred to because of the formal lack of the Churchs power to pronounce a divorce, the Declaration of Independence of the Greek Church established a system of mixed jurisdiction that involved mutual entanglement of State and Church over marital cases at every stage of the marriage. According to articles 682-686 of civil procedure promulgated by Maurer, a divorce could be pronounced only after an attempt at reconciliation directed by the local bishop. Thus, for a first-instance court to exercise jurisdiction, the parties had to procure a certificate by the bishop that they had tried to reconcile. At the end of the lawsuit, if a divorce was granted, the court had to direct the decision to the local bishop so that he could dissolve the marriage spiritually as well. Marrying a second time without a spiritual dissolution became impossible in a state that did not perform or recognize civil marriages. In addition to the jurisdictional compromise, which provided significant powers to the Church even if formally depriving it of adjudicative authority, Maurers construction of the law that the Orthodox Church had been applying as the law of the Greek nation allowed for the adoption of that framework by the modern Greek state. The 1835 ordinance that became the legal foundation for the civil law of the Greek state in the nineteenth century foresaw the application of the Byzantine laws contained in the Harmenopoulos compilation until the enactment of codes, which only came a century later. In the regulation of marriage relations this meant the adoption by the Greek state of very extensive prohibitions of marriage based on both kinship and affinity (by marriage or baptism, up to the seventh degree) and the disappearance of divorce by mutual consent that had been at least tolerated by the Church in view of the fear of conversion.97 In this sense, the emerging political order included elements of political organization that were quite similar to the preceding Ottoman order, despite the rhetoric to the contrary. Like the Ottomans, the Greek state lent its power of enforcement to the Church for the purpose of ensuring the Churchs viability, while it also incorporated the Churchs normative and symbolic order as a powerful tool in the effort to legitimate the new political structures in the eyes of the people. A characteristic instance of this fusion of ecclesiastical and state power was the choice of the biggest Church in each town as a voting station in national elections,98 the performance of mass at the beginning of each parliamentary period inside the parliament, the presence of both ecclesiastical and lay officials at every official holiday, the reading out loud of laws and administrative orders by the priest after mass,99 and so on and so forth.
97
Indeed, while the Greek state courts refused to accept the possibility of divorce by mutual consent, the Patriarchate of Constantinople continued to apply it. 98 Article 16 of the electoral law see Dligianns and Znopoulos, Greek legislation from 1833 to 1860, vol. 6, 47. 99 Order 8254 of 19 March 1833, Ibid., 45.
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One important difference of the type of incorporation in state structures was the privileged position of the Orthodox Church as a symbolic order, vis vis other religions, and even vis vis a non religious understanding of a normative order. Under the Ottomans, discontent or inconvenienced Christians could convert or appeal to the kade, who thus served as a non-religious instance of imperative coordination for the nonMuslims. Barbarian Islamic judges therefore functioned as a civil instance, and the civilizing mission of making them disappear resulted in the intensification of religion inside the Greek state. Thus, the competing interests of westernizing Greeks and the priesthood in the first years of the Greek state were not dealt with by a radical separation of Church and State. Rather, the State created an independent Church that it put under the direction of King Otto, lending the Church legitimacy in the new State and using religious authority in turn to legitimate power in the emerging state. Regarding the definition of jurisdiction over cases that the clergy had previously dealt with, the state sent what it considered civil disputes to the courts, while in marriage and divorce it created a two-bodied mechanism for the resolution of marital cases. Taking away from the Church the power to be the final adjudicator of marital cases did not at all translate into a secular process, but rather created a mechanism of mixed jurisdiction between Church and State, which in combination with the disappearance of Ottoman authorities and local leaders meant an intensification of the Churchs role in marital cases as compared to the Ottoman years.
III. Grounds for divorcing family law from the nation

In the first part of the paper I explained the process of producing the idea of a Greek nation that pre-existed the historic Greek state, based on the notion of continuity through the family law rules applied by the Orthodox Church. This idea in turn provided a sense of nomos, of normative order that helped organize the sometimes wildly differing customs and habits of the people who came under the modern Greek state into a coherent whole. Maurers reconceptualization of the legal past on the basis of the national provided the necessary justification for the adoption of an institutional system that awarded the Orthodox Church significant powers over the regulation of marriage in the new state. In the legal field, the role that the Orthodox Church was given in the modern Greek state influenced the development of family law up to our days. In this section I want to explore the argument that the discursive marriage of family law to the nation should be dissolved. There are good reasons, I argue, besides doing better legal history to consider such a divorce. The first one is inertia. Whenever the question of legal reform in family law arises the national identity argument militates against reform based on the protection of an imagined identity rather than on the potential consequences of any specific norm. Even when arguments in favor of certain reforms are made in terms of national identity, the debates tend to obscure the focus on potential social and economic consequences for various stakeholders. The second one is ideological. Arguments on the allegedly close connection between nations and their family laws tends to reproduce the clash of civilizations idea, which then naturalizes political choices about who belongs in 31
the increasingly fortified castle of Europe. Analyzing the case of the construction of a Greek national identity through family law helps illuminate the ideological stakes for the construction of the ideological limits of Europe that have become relevant in several contemporary political debates.
A. Inertia against legal reform

In contemporary Greek family law scholarship, certain legal institutions are taken to be particularly closely connected to the Greek people, having survived four hundred years of foreign rule. One striking example is the organization of the property regime for spouses as a separate marital properties system. Feminist proposals for the establishment of a community property system-which aimed at assuring better results for homemakers upon divorce-were quickly dismissed by the vast majority of scholars as a proposal foreign to the character of the Greek people, when the opportunity for a revision of the civil code arose.100 Discussions on the topic have ever since died out, despite the fact that the current marital property regime has arguably been unfair to divorcing homemakers.101 A skewed understanding of history and its relationship to the regulation of the Greek family is, of course, not the sole, or even the main underlying reason for the naufrage of community property proposals. Tradition, for instance did not stop the legislature from banishing the institution of the dowry with one stroke of the pen from Greek family law during the same reforms. Nonetheless, in the context of the debate over marital property, the claim that separate properties has always been the system of choice for Greeks seems to have successfully pulled the plug for the proposed reforms. The lack of challenge to the coherence of the historical claim made the tradition argument trump even though it was weak and contradictory. The notion that family law bears and should bear a close relationship to national character is by no means limited to the Greeks. The debates over the potential harmonization of European family law exhibit the same implicit assumption. Opponents of harmonization claim it will harm national specificities, which nations hold dear.102 Supporters claim that European nations have naturally converged towards a common core
The opportunity arose in 1983 when under the influence of the European Communities the Greek Civil Code was reformed to embody a principle of formal equality between the spouses, as opposed to the previous, formally unequal framework that recognized the husband as the head of the household. 101 The solution that legislators opted for in the 1983 reforms addressing the issue was the adoption of an article that purports to make possible a post-divorce distribution of the increase in wealth happening during the marriage. The application of this article (article 1400) has been quite narrow and has not had the result hoped for, at least by feminists. See ASPASIA TSAOUSSIS-HATZIS, THE GREEK DIVORCELAW REFORM OF 1983 AND ITS IMPACT ON HOMEMAKERS: A SOCIAL AND ECONOMIC ANALYSIS (2003). See Aspasia Tsaoussis-Hatzis, The Greek Divorce Law Reform of 1983 and Its Impact on Homemakers: A Social and Economic Analysis. Athens-Komotini, Ant. N. Sakkoulas Publishers, 2003. 102 Maria Rosaria Marella, The Non-Subversive Function of European Private Law: The Case of Harmonisation of Family Law, 12 EUROPEAN LAW JOURNAL 78 (2006)
100
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of norms, encapsulated in freedom and equality, and harmonization can therefore do no harm.103 Below the surface of this debate over cultures, lie some very high stakes such as the treatment of marital wealth upon divorce and the recognition of same-sex partnerships, or marriages. Both positions assume the special relationship of family law to the nation, holding this relationship to be normatively important. The same is not true when it comes to the harmonization of market rules, which is a process already well advanced and for which little objection is currently being made based on the idea of national specificity. Both positions also underestimate the internal struggles and contradictions that exist within any single legal system and tend to focus attention on legal systems as solid, national packages that cannot be easily disentangled. The position that proposes a common core of rules that European legal systems have naturally converged towards is particularly unselfconscious, as it overlooks the immense impact that the European Union itself has had in this process of natural convergence. The argument that I am exploring is not that such an understanding would necessarily lead to better results in terms of the family law rules that are eventually chosen. It would, however, open more space towards a more politically vibrant debate about the shape of family laws to come, as well as a debate more focused on concrete legal consequences and the realities of family law in action.
B. Perpetuation of the politics of civilization vs. barbarism

I want to suggest that the story of the construction of the national Greek identity through family law is relevant for reasons that go beyond the legal history of Greece. From a comparative point of view, the mode in which Greeces legal past was fashioned to fit its present, and the role that family law came to play in this process is comparable to other processes of nation-state building. Often, a domain of law was fashioned as special, specific to the nation in the process of partitioning legal responsibilities between competing authorities, such as the local and the central, the religious and the secular, the indigenous and the colonial. This allowed for a splitting of the difference between pre-existing and rising political powers on the basis of a compromise. These were processes that took place all over Europe and the colonial world.104 Greeces case, however, fits much more comfortably with the histories of countries in the post-Empire world, like Egypt, Turkey, Colombia, Mexico, Chile, finding themselves in the legal and political periphery, and grasping for means to fasten themselves to the European chariot.105 The interesting piece of this comparison I argue is that Greece is
103
K. Boele-Woelki, The Road Towards A European Family Law, 1 EUROPEAN JOURNAL OF COMPARATIVE LAW 1 (1997). 104 See supra notes 10 and 11 105 For an account of how a European legal consciousness was diffused around the world see Duncan Kennedy Three Globalizations of Legal Thought, in Trubek, David and Santos, Alvaro, ed., The New Law And Economic Development, A Critical Appraisal. Cambridge University Press, 2006
33
usually not thought of as such, instead placed comfortably with the core of European law families, whether they are categorized as western law106 or Romano-Germanic law.107 True enough, modern Greek law today in the twenty-first century can be categorized as such, even though big chunks of the sociolegal realities are still largely influenced by the effaced Ottoman past.108 But this is only the result of a long, arduous history of making Hellenes out of the Greeks in all aspects of social life including the law since the creation of the modern Greek state. It is not the result of nature, nor of some pre-existent, natural inclination of the Greeks towards the west. The case of Greece is certainly not unique even though it is definitely emblematic. Found in the geopolitical periphery, yet at the ideological center of Europe, creating Greece as a nation-state was a project that Europeans were deeply invested in. Creating modern Greece on the basis of the assumed revival of an ancient people struggling against tyranny from the barbarian oppressor defined the outer ideological limits of Europe in ways that resonate to our days, especially in the case of the discussions on the potential accession of Turkey in the E.U. My claim is that the historical roots of the cultural difference argument against Turkeys accession to the E.U. are to be found in a rather recent, postEnlightenment political past rather than in any alleged distinct essences. Turning peasants into Frenchmen, entailed, I would argue, much of the same processes as turning Greeks into Hellenes, or Sicilians into Italians, and the control and regulation of kin relations of all sorts by an increasingly central state was everywhere crucial for the consolidation of political power by the emerging political entities. European countries did not have to deal with polygamy to the extent that Turkey did and still does,109 but they did have to deal with serial monogamy, concubinage, and other forms of informal marital arrangements in the process of trying to regulate the private realm for the purposes of state-building. Analyzing the connection of family law to the nation in the mode of a gradual historical process entailing complex political struggles between various actors helps us move beyond the assumed essences that then dictate is a pseudo-obvious way political solutions. This, doesnt mean of course, that one should immediately conclude that Turkey should become a member of the EU. It does mean, however, that one should be skeptical of the cultural argument against accession, especially when it is based on a contrast between an assumed European identity that only appears for the purposes of safeguarding its external borders, while it can promptly disappear in the context of other political debates internal to the Union, such as the harmonization debates.
RENE DAVID, THE LEGAL SYSTEMS OF THE WORLD THEIR COMPARISON AND UNIFICATION 107 ZWEIGERT/KOTZ, AN INTRODUCTION TO COMPARATIVE LAW 108 On the heritage of Ottoman property law in the modern Greek state See WILLIAM MCGREW, LAND AND REVOLUTION IN MODERN GREECE 1800-1881; Greeks today still bequeath to their children olive trees as a separate, full form of property from the land the trees grow into (not merely as an easement). This is a remnant of Ottoman law in direct clash with the Roman property idea of full ownership over fixtures. 109 Even though polygamy has always existed in Europe. To say otherwise illuminates the discursive exclusion from Europeanness of several populations historically living in Europe, such as the Roma.
106
34
Finally, the nationalist understanding of family law also forms part of broader national identity claim that can often be constructed on the basis of the exclusion of various populations constructed as others, whose physical exclusion then is justified as almost self-evident. Immigration law is quite literally about inclusion and exclusion and narratives of national identity inform such legislation. The latest example of the problematic politics of national identity and immigration law comes from neo-conservative Italy, whose reelected prime minister Silvio Berlusconi won on an anti-illegal immigration platform that has turned the itinerant Roma populations of Eastern Europe, the par excellence uneasy subjects of nationhood, into illegal immigrants in need of papers or in danger of deportation (where to one may ask).
Conclusions
In this paper I offer an alternative to the understanding of family law as closely connected to the nation through a legal historical examination of the politically conflicted process of shifting family regulation to the national level in the case of modern Greece. I explained the conflicts between Church/State and local leaders that the process entailed and the legal historical narrative that helped naturalize the Church/State compromise that was finally reached. This story, I argued, bears relevance not merely as another example of similar processes of nation-state building taking place all over the world, but because it lies at the heart of Europes own self-understanding. In the last part of the paper I argue that there are good historical and political reasons to approach narratives of cultural distinctness in family law with suspicion. In the first part of the paper I laid out the elements of the narrative that helped naturalize the Church/State compromise that was reached in 1833. Georg Ludwig von Maurer, the first Kings regent for judicial affairs argued, in his seminal book The Greek People for the existence of the Greeks as a separate, unified people under the Ottomans by conflating the Orthodox millet with the Greek nation, and attributing the survival of the Greek people to the application of family law rules by the Orthodox Church. I then argue that far from representing any historical truth about the legal history of the Greeks, as is often assumed inside and outside Greece, the narrative entailed a total obliteration of the background Ottoman law regime, and a misrepresentation of the socially, legally and politically fragmented situation on the ground during the last Ottoman years. More specifically, Maurer completely overlooked the often extensive use of Islamic law judges by the Greek Orthodox, especially on issues related to marital disputes, and the intense competition from local authorities that the Orthodox Church also had tried to stave off. In the second part of the paper, I focus on the institutional solution to the Church/State competition over family adjudication that Maurer helped design arguing that, just like in his narrative, the Church and the State became mutually entangled in the adjudication of marital disputes. Even though Maurers solution formally took away the powers of the State for adjudication, he created an obligatory mediation procedure before divorce, which made the Church indispensable in the process. Furthermore, by not establishing any civil form of marriage and requiring the spiritual dissolution of a first marriage for the 35
contracting of a second, he helped reinforce the Churchs position as a regulator of marital life to an extent that was not possible previously, at least in places with ready access to the Ottoman judges. The solution was not the only one possible; it was amongst the range of possibilities for Church/State relations that had been opened up in the previous, revolutionary period (1821-1828), which I revisit in order to highlight the political nature of the final compromise and the shaping of family law that resulted from it. Finally, in the last part of the paper I argue that the approach to the history of family law that the paper exemplifies helps create a better understanding of the legal historical processes involved in shifting the legal regulation of family life from the local to the national level and the production of national identities through law and legal narrative that resulted. It also helps move discussions on family legal reform and European identity away from essentialist understandings of nationhood and identity by highlighting the historically contingent character of both national and European identities.
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Marrying Family Law To The Nation - Mando Mavroyeni

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Marrying Family Law To The Nation - Mando Mavroyeni

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Table of Contents Introduction..............................................................................................................................1 I.

Imagining the Greek Nation ..........................................................................................7

Memory and forgetting........................................................................................................14

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I. Imagining the Greek Nation

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von Maurer, The Greek People, 57-58 Ibid., 94-95

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Ibid Ibid., 24 3 (emphasis added)

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Ibid., 348-349 (emphasis added).

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Tourtoglou, Report of Mando Mavrogenous against Demetrios Ypsilants, 157at 157

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