Roman Law and Equity in John Milton’s Divorce Tracts

Abstract

Critics have often observed that Roman law plays an outsized role in Milton two major divorce tracts, Doctrine and Discipline of Divorce and Tetrachordon. This essay argues that Milton turns so repeatedly to Roman law because it offers a model of equitable interpretation, one that allows statutes to be read flexibly in light of their perceived intent. While canon law too prided itself on being an equitable system, the canonists’ approach to equity was crucially different from that of Roman jurists. For centuries, theologians had read the Bible’s passages on divorce through the lens of canonical equity, and the upshot was that divorce had been effectively banned. But Milton wants his readers to view these same Biblical passages as Roman jurists would and thus to bring a different understanding of equity to bear. Read in this way, he argues, the Bible allows divorce to all. Milton’s ultimate goal is to put divorce outside the cognizance of all forms of temporal law. Ironically, his argument relies upon the approach to statutory interpretation that he finds in Roman law and applies to the Christian Bible.