The most persistent theme in the legislation concerning pagans is that of sacrifice, which is central to fifteen of our twenty-five laws; but even here it is impossible to reconstruct a consistent picture. The very first surviving pronouncement on the subject ( Cod. Theod. 16. 10. 2) refers back to a law of Constantine that does not survive, but was trumpeted also by Eusebius (Euseb. Vit. Const. 2. 45); fierce debate continues about what this might have involved (Barnes 1984; Errington 1988; Bradbury 1994). The debate is related to a wider lack of clarity that affects not only modern scholarship but also (in all probability) the ancient laws themselves. For, although sacrificial offerings were fundamental to all known pagan (as indeed they are to all Christian) cults (Dowden 2000: 168-88), they could mean many different things and take many different forms.
Only twice in the Code is there reference to what made sacrifices criminal; and both instances mention explicitly divination, and especially the seeking of information on the secrets of the imperial succession (Cod. Theod. 16. 10. 9 and 12). This is peculiar, since only a small fraction of attested sacrificial activity was ever intended for this purpose, and the law codes have an entirely separate heading, criminal magic, under which the laws dealing specifically with such behavior are collected (Cod. Theod. 9. 16). Although animal (if not indeed human) blood was traditionally thought to fuel ‘‘black’’ magic, and this was unproblematically illegal, the law codes seem careful (but not without some confusion) to keep the categories distinct: whatever was intrinsically illegal about sacrifices by the time of the Code, it was not any ‘‘magical’’ connotation (Sandwell 2005). The ‘‘classic’’ type of ancient sacrifice was immolation, the propitiatory slaughter of animals at public altars and the burning of their organs, a rite which, although hallowed by tradition, provoked particular horror among Christians and offered them a convenient target for disgusted polemic. They were not the only critics: Porphyry’s De abstinentia suggests that pagan intellectuals themselves debated the gods’ need for blood and burnt offerings (Porph. Abst. 2. 5-32; Gilhus 2006: 141-6). One of the tantalizing aspects of our subject is how little we know of the commitment of the ‘‘average’’ pagan to animal sacrifice. Julian’s attempt to revive the practice of animal sacrifice, less than two generations after Constantine’s triumph, seems to have stirred little enthusiasm (Amm. Marc. 22. 12. 6; 25. 4. 17; Bradbury 1995). However, the gods accepted a wide range of offerings, which could be made in any number of contexts - and throughout antiquity the overwhelming majority of sacrifices (both public and private) will have consisted of food, drink, decorations, or incense. These bloodless sacrifices were less vulnerable on grounds of taste, but had been used as a test against suspected Christians and therefore prompted memories of persecution.
Public sacrifices were traditionally incumbent upon magistrates, which makes it likely (although certainly not proven) that the new generation of overtly Christian officials promoted by Constantine were central to whatever regulation of sacrifice he might have imposed. Such a scenario leaves open a dizzying range of possibilities about the law’s scope (from a redefinition of traditional obligations to perform blood sacrifices, to an attempt at total prohibition); nor, without further context, can we tell whether Constantius Il’s demand that the ‘‘insanity of sacrifices must cease’’ (Cod. Theod. 16. 10.2) was directed at all sacrifices for all citizens, public blood sacrifices by public officials in their official capacity, or somewhere in between. But Constantius seems not to have made his point explicit, and legislative intentions were besides liable to be modified in practice - a judge could assume a narrower interpretation (refusing to hear cases except where animals had been slaughtered to assist sorcery), while an accuser could push for a broader one (haling a neighbor into court for sprinkling incense at a household altar). Our inability to establish any definite scope for the legislation of this period has encouraged the plausible suggestion that the government was deliberately equivocating (Salzman 1987). Significantly, the only penalties attested under the Constantinian dynasty were for sorcery - those crimes that the Theodosian codifiers would scrupulously relegate to a different category. It was still possible for government officials to bring heifers for slaughter at public altars, although this meant risking displeasure (Eunap. VS 491); prudent careerists would hesitate before displaying such bravado.
The residual taste for blood remained strongest, it would seem, among the elite of Rome itself, self-conscious heirs to a millennium of sanctified butchery. Their concerns are reflected in the puzzling evolution of the late antique taurobolium, from conventional animal sacrifice to a spectacular if still mysterious initiation ceremony involving bulls’ blood; a transformation that apparently occurred during the early fourth century and that seems to have been designed specifically to provide opportunities for ritual animal slaughter without offending against the laws that now restricted it (McLynn 1996). The main significance of such behavior is to show how readily religious practices could be adapted to the legal situation. Senators of Rome protected their fortunes through canny deflection of occasional efficiency drives by the government; and in this case also, they seem to vault nimbly through a loophole. There was nothing furtive or defeatist about these initiations, which were conducted at the Phrygianum precinct directly adjacent to St. Peter’s shrine on the Vatican; the proximity, an accident of historical topography rather than a deliberate provocation, usefully illustrates a theme that will become important in what follows, the capacity for apparently irreconcilable opposites to coexist.
The basis for the common view that all sacrifice was finally driven underground by Theodosius I is a cluster of three laws passed in ad 391-2, of which the first two prescribe penalties only for government officials who conducted sacrifices ( Cod. Theod. 16. 10. 10-11). The third (Cod. Theod. 16. 10. 12, ad 392) casts the net much more widely, not only penalizing those who ‘‘should slaughter an innocent victim to insensate images’’ but also prohibiting the ‘‘more furtive pollution’’ involved in honoring the household Lar with fire, the personal Genius with wine, or the Penates with incense, or indeed with any form of candle-lighting, incense-offering, or garland-hanging. The language seems grimly specific: ‘‘But if any person should venerate, by placing incense before them, images made by the work of men... or should bind a tree with fillets, or should erect an altar of turf that he has dug up. . . he shall be punished, as one guilty of the violation of religion, by the forfeiture of that house or landholding in which it is proved that he served a pagan superstition.’’ This law indeed covers new ground, explicitly including many specific forms of traditional observance under the rubric of sacrifice; however, the prime focus of the opening remarks is on the familiar target of divination, and a principal concern is again the behavior of public officials. We can only guess the context: the collapse of a prosecution, perhaps, because the offending sacrifice could not be traced to a public altar; or has a long frustrated Christian lobbyist finally succeeded in attaching his own cherished litany of outrages to an otherwise routine pronouncement? But there is no record that these clauses ever became the basis for any prosecution, let alone conviction. The enforcement procedures established in the law, which demanded vigilant collaboration between government officials and local magistrates, indicate the difficulties that faced any prosecutors, and the legislator clearly betrays his doubts about its likely efficacy (Cod. Theod. 16. 10. 12. 4). The law has been presumed significant largely because the editors of the Code decided to cite it so extensively (at far greater length than any previous one under this heading); they probably did so, however, not because of its contemporary significance but because they found there the fullest statement of the linkage between temples and sacrifice that gives this chapter such intellectual coherence as it possesses.
What, then, were the practical consequences of Theodosius’ laws? We do not know. Even such alluring coincidences as the apparent end of the Roman taurobolium, the latest Phrygianum inscriptions being dated to ad 390, signify little. The new laws prescribed nothing to frighten a litigious tauroboliast. As we shall see in the following section, moreover, even apparently solid connections between imperial pronouncements and the repression of paganism can be deceptive.
World History
