How to do Things with Laws in Late Antiquity

Late Roman law was bigger, in practice, than the emperors, the quaestores (who drafted imperial constitutions), and their texts. The imperial constitutions themselves point us outward, as their content reveals that late Roman law-making was still as reactive as it had been under the early empire (Honore 1998: 133-4; Harries 1999: 47-53; Matthews 2000: 160-3; and, for the early empire, Millar 1977). Ammianus Marcellinus’ portrayal of the emperor Julian at Ancyra showcases (intentionally) the expectation that the imperial government would be responsive: on leaving the city, Julian was beset by a huge mob, some demanding return of property of which they had been forcibly deprived, others complaining about conscription onto local town councils, others shouting accusations of high treason against opponents (Amm. Marc. 22. 9). That all seems reminiscent of Priscus’ portrayal of Attila the Hun discussed above. In Julian’s case, however, particular situations and concrete cases could prompt new imperial constitutions. A Novel issued by the emperor Justinian neatly sums up this activity: ‘‘It is our practice to seize the opportunity presented by cases coming before us to legislate on the point arising’’ (Nov. Lust. 108, preamble, ad 541).

Concrete cases could prompt imperial constitutions, as could pleas from interest groups and individuals. Harries identifies the latter process behind the texts collected in the Theodosian Code:. ‘‘The Code, therefore, as a compendium of imperial responses to stimuli which were largely external, did not necessarily reflect the preferences of emperors, but the areas of late Roman life on which representations were most vigorously and repeatedly made’’ (Harries 1993: 15). Every imperial constitution thus has a ‘‘life cycle,’’ which includes the specific circumstances that prompted the text, its official drafting in the palatine bureaus, and finally its promulgation and particular application (or lack thereof). One such ‘‘life cycle’’ is described in Mark the Deacon’s Life of Porphyry, Bishop of Gaza (possibly to be read in the light of Cod. Theod. 15. 6. 1 and 2). Mark relates how he traveled on the instructions of Bishop Porphyry to the imperial court, to plead for the closure of ‘‘idolatrous temples’’ in the port of Maiuma. After seven days of hard effort attempting to make the right connections (both ecclesiastical and imperial), an imperial decree was granted. The decree was entrusted to a certain Hilarion, an adjutant from the bureau of the magister officiorum (the Master of the Palatine Offices). The same individual arrived in Gaza a couple of weeks later with a formal entourage, including two officers from the consular court and military guards. On his arrival in the city, Hilarion seized three municipal councillors, took oaths of surety from them, and promulgated the imperial constitution. Hilarion then supervised the overturning of idols and the closing of temples. Despite this centralized process of promulgating and enforcing the imperial text, Mark the Deacon claims that Hilarion was bribed with ‘‘a great sum of money’’ so that the temple of Marnas (Zeus) could continue to give oracles (Mark the Deacon, Vit. Porph. 26-7). Bribery of an imperial official is a crude mechanism for evading the emperor’s commands; likewise simply burying the official text. In the late fourth century, the rhetor Libanius complains bitterly about an imperial constitution that was received and filed by municipal councillors in Antioch and never heard of again (Lib. Or. 48. 15-16).

A more subtle means of subverting imperial constitutions lay in applying rhetorical techniques of interpretation to them. Drafted only four months after the Theodosian Code came into effect, a constitution issued by Theodosius II clamps down on those who respect the letter of the law while evading its intention (not by any means a new concern, but one that perhaps had a new resonance for the imperial authorities after January 1, ad 439). The preamble to this constitution begins:

There is no doubt that anyone who embraces the words of the law while contending against its spirit, is transgressing the law. Nor will he escape the penalties provided in the laws, by fraudulently pleading a perverse preference for the words above the sense of the law. (Nov. Theod. 9. 1, preamble)

Section 3 of the same Novel goes on to lay down a principle of extensive interpretation to be applied to all laws, ‘‘the ancient as well as the modern ones.’’ This principle of interpretation is specifically designed to frustrate evasion and ‘‘oversubtle’’ constructions:

It shall be sufficient for the legislator merely to have prohibited what he does not wish to be done, and it shall be permitted to deduce the rest as if it were manifest in accordance with the intention [voluntas] of the law. So that, if those deeds which are outlawed by the law are in fact carried out, they are to be regarded as not just invalid [inutile] but as undone [pro infectis], even if the legislator stated merely that they were prohibited, and did not specifically rule that what was done should be regarded as invalid. But if anything followed out of, or because of, that which was done, against the law, in defiance of the prohibition written into the law, we pronounce that it too shall be null and void. (Nov. Theod. 9. 1, 3)

Of course, the rhetorical schools of the late empire, like those of the earlier period, taught precisely the techniques of interpretation that Theodosius II’s quaestor was so keen to control and rein in. The author of a third-century rhetorical handbook, still being copied in the early sixth century, advises his students thus:

[We refute] laws either by an ambiguity and saying that not this but something else is signified, or, turning from the wording and examining the intent of the lawgiver, by concluding from what has been said that the subject is something else, or we ourselves bring up another law. (Anon. Seg. 3. 188, Dilts and Kennedy 1997: 53)

What the drafter of an imperial constitution sees as an obstreperous interpretive device is a rhetorical strategy to win the case for an advocate or litigant.

If we turn from the interpretation of imperial constitutions to the interpretation of legal instruments such as testamentary wills, we can begin to see how individuals handled Roman law, in practice, as a means to further their own ends and interests. In the west (in the middle of the fifth century), Valerian, bishop of Cimiez (formerly Cimelium, the Roman capital of the province of the Maritime Alps), paints a vividly rhetorical picture of forensic wrangling over wills and inheritances in the course of a homily against covetousness; while noting the homily’s pastoral context, we should also remember that Valerian’s description was deliberately designed to ring true for his immediate audience:

The corpse is not yet carried out, and already the true meaning of the will has been destroyed by an interpretation of law. One man is disputing about his father’s signature; another is in despair over the person of a brother. One man affirms that the will is not confirmed by witnesses; another gives as a reason that the will is not consonant with the times. Thus the farm is at stake while the cases are argued. (Valerian, Hom. 20. 5, PL 52: 753D)

These forensic disputes, based on attacking the legal validity of the testamentary document, could also degenerate into outright fraudulent practices:

Look, when a will is brought out, immediately there is thought of falsehood. Someone asks, ‘‘Who heard the mute man speaking? What heir knew the dead man while he was making his dispositions?’’ What is worse, it is not hard for someone to find persons who are associated in his crime or bribed for a price. This miserable fellow imitates the

Signature of another’s hand. Thus covetousness, by a pen frequently exercised in copying, often produces a document which the testator did not draw up. (ibid.)

Valerian implies that the same notaries who were employed to officially draw up valid legal instruments were also employed to forge signatures to those documents, when necessary.

All of the discussion above assumes access to the legal system - to public notaries, to legal officials in the cities, and perhaps to advocates and legal experts. As David Johnston argues, ‘‘in the end, the question whether a person enjoys a particular right comes down to whether he or she is able to enforce it in practice’’ (Johnston 1999: 112). This implies a certain social standing, patronage connections, and almost certainly cash. We should not underestimate, however, the extent to which local officials administered routine justice on a day-to-day basis. One official’s daybook from Oxyrhynchus (c. ad 313) records twenty-eight days’ worth of cases. During this time, the official had four Jove’s days (Thursdays) off; had nothing to record for sixteen days; transferred one matter to another administrative official; released a body for burial; decided cases concerning property, liturgies, loans, and the opening of a will; and dealt with an inquiry about the driving-off of an ox and a deposition from a certain Asclepiades concerning an accusation that some baggage mules were not given their fodder (P. Oxy 54. 3741). Another local option was to lodge civil cases (illegally) before local military officers. It is easy to see how categories of ‘‘civil,’’ ‘‘military,’’ and ‘‘criminal’’ jurisdiction could become confused on the ground. A letter from the middle of the fourth century requests Flavius Abinnaeus - praefectus alae (commander of cavalry) stationed in a military fort in the Egyptian Fayum - to aid a soldier and landowner in a nearby village, who has been robbed of his family possessions. The letter accuses the officials of the village, and asks Abinnaeus to arrest them all and then forward the case to ‘‘our Lord the Duke; for his function is to take vengeance on the perpetrators of such outrages’’ (Bell 1962: 102). Late Roman emperors, needless to say, attempted to control and regulate access to this alternative means of quick (and one assumes summary) justice.

In the higher imperial courts - those of the provincial governors or the praetorian prefects - only the social elite could either make the law work for them or disregard it altogether. The official papers of the late fourth-century urban prefect Symmachus record an extreme case of a Roman senator who was apparently ‘‘influenced neither by respect for rescripts, nor by the severity of laws, nor by loyalty to agreements, nor by regard for the law courts’’ (Symm. Rel. 31.1, Barrow 1973: 169). Aspirant social climbers, however, were in a more tenuous position. John Chrysostom (patriarch of Constantinople, ad 398-404) observes that poor men who wish to be rich often get dragged into the courts of law, but no one ever drags the common mendicants into the law courts, ‘‘because they have come to the extreme of poverty’’ (John Chrysostom, Hom. in Act. Apost. 13). Those with nothing to lose do not appear in court, even as defendants. To borrow David Daube’s memorable phrase and apply it to Late Antiquity, ‘‘the have-nots, the vast majority of citizens, were right out of it’’ (Daube 1969: 72). This is an important point, which I shall return to below. At the moment we should note in passing that, depending on the circumstances, the interests of the ‘‘haves’’ might include keeping the law and the lawyers at arm’s length. According to the drafter of a Constantinian constitution, (elite) families were in the habit of making clandestine arrangements that either sidestepped the law or broke it outright. With a typical legislative distrust, the constitution states: ‘‘in the case of clandestine and domestic frauds anything you please can be easily devised in accordance with the opportunity of the situation, or that which has been actually done can be nullified'' (Cod. Theod. 8. 12. 5, ad 333; Humfress 2006: 221).

Consuetude (customary law) undoubtedly continued to play a significant part as a source of law in late antique disputes and legal arrangements, especially on a local level. However, as consuetude ‘‘referred to law which was usually unwritten and which was agreed to by ‘tacit consent’ ’’ (Harries 1999: 31), it is difficult for the historian to identify it in practice. One example comes (again) from Mark the Deacon’s Life of Porphyry, in an incident where the citizens of Gaza attempted to uphold their customary law against Christians whom they suspected of undermining it (Vit. Porph. 22-5). With more than a hint of the theatrical, Mark describes how Barochas, a Christian, had been beaten to within an inch of his life outside the city walls of Gaza, while attempting to act as a debt collector for the church. Barochas was subsequently carried inside the walls, thus provoking a violent riot from the city’s non-Christian population, who - believing Barochas to be dead - feared pollution from a corpse being brought inside the sacred boundary. By the following morning, the nonChristian citizens had mobilized the defensor civitatis (an imperially appointed minor city magistrate: see Frakes 2001), together with some public order officials and two chief municipal councillors, to interrogate the bishop of Gaza: ‘‘why have you brought a corpse into the city, seeing that the laws of our fathers forbid this?’’ (Vit. Porph. 25). The denouement to the affair comes with Barochas miraculously recovering his strength as the Christian ‘‘New Samson’’ (Vit. Porph. 25) and attacking the city’s legal officials with a large chunk of wood. Alongside Mark’s vivid (re) construction of late antique Gaza’s religious fault-lines, we can gather a sense of how ancient customs and ‘‘the laws of [the] fathers’’ continued to be mobilized in a late fourth-century civic context.

The late antique period witnessed the growth of a new officially sanctioned system of legal practices, clustered around the concepts of a lex Christiana (law of the Christians) and a ius ecclesiasticum (custom of the Christian church). This development was not as coherent as the two terms imply. Eusebius tells us that the emperor Constantine ‘‘put his seal on the decrees of bishops made at synods, so that it would not be lawful for the rulers of provinces to annul what they had approved, since the priests of God were superior to any magistrate’’ (Euseb. Vit. Const. 4. 27. 2, Cameron and Hall 1999). Constantine thus created the possibility of an ‘‘independent'' body of conciliar decisions, which would merge with various other strands of ecclesiastical law to form the canon law proper of the medieval period.

The idea that ‘‘priests of God’’ were superior (or at least equal) to an imperial magistrate resurfaces in two hotly debated Constantinian constitutions relating to the episcopalis audientia (bishop’s hearing) and its official status ( Cod. Theod. 1. 27. 1, AD 318(?), and Const. Sirm 1, ad 333). The bishops’ ability to mediate in disputes between Christians certainly predates Constantine. It may even have received a boost in those provinces affected by the early third-century persecutions: according to Lactantius, Diocletian had commanded that altars were to be placed inside the magistrates’ tribunals, so that each litigant had to offer incense to the gods before his case could be heard (Lactant. De Mort. Pers. 15). Leading bishops in the fourth and fifth centuries could still frame their hearings as alternatives to ‘‘secular’’ justice. Others chose to stress the authority that the apostles themselves had bestowed on Roman magistrates. An incident recorded by Basil of Caesarea, writing in the later fourth century, demonstrates the potential difficulties that an ecclesiastic could find himself in. A woman had been subjected to slanderous attacks by a man, but Basil tried to persuade her not to seek redress via the courts. The woman then accused Basil of wanting her to suffer a damaged reputation. Basil rather laconically concludes, ‘‘The decision I have come to in my own mind is not to surrender offenders to the magistrates; yet not to rescue those already in their custody, since it has long ago been declared by the apostle, that the magistrates should be a terror to them in their evil doings; for it is said ‘he doesn’t bear the sword in vain’ [Rom. 13: 4]’’ (Basil of Caesarea, Ep. 289). The fact that this case may have encompassed ‘‘criminal’’ charges meant, presumably, that Basil could not opt to hear it officially himself - the Christian bishop’s jurisdiction did not include criminal cases.

From Constantine onward, we know of judicial hearings taking place before bishops, in episcopal residences, inside churches, or in the public spaces in front of Christian basilicas (Lavan 2003: 325). At least some of these disputes were not related to the Christian religio; as Ambrose and Augustine both moaned, they concerned ‘‘gold and silver, farms and herds’’ (see Harries 1999: 204, 210). Some disputes also undoubtedly involved non-Christians. Whether bishops, however, had a legal authority beyond that granted to any officially appointed arbitrator is a complicated issue. Briefly, in ad 408 a western constitution confirmed the iudicium episcopale (the legal judgment of a bishop) after the model of official Roman arbitration, where both parties to the case had to agree to be bound by the judgment of their chosen arbitrator (Cod. Theod. 1. 27. 2). We should note, however, that this constitution does not necessarily imply that bishops had not also been granted a capacity to judge cases where both litigants did not agree to the hearing (i. e., non-arbitration cases). Ten years earlier, an eastern constitution had confirmed that Jews could choose ‘‘Jews or Patriarchs’’ as arbitrators in their civil suits, and that they could continue to refer matters concerning their religio to their customary (Jewish) laws. In all other cases, however, Jews had to ‘‘bring and defend all actions according to the Roman law’’ ( Cod. Theod. 2. 1. 10) - a sure sign that, in practice, some (eastern) Jewish communities were hearing disputes that touched on Roman law in their own courts. In any event, by ad 530, the Christian episcopalis audientia had become such a successful legal venue that an imperial ceiling was put on fees and tips in church courts ( Cod. lust. 1. 4. 29).

While the episcopalis audientia has been the subject of modern scholarly interest (Selb 1967; Cimma 1989; Harries 1999: 191-211; and Lenski 2002), the role of religio as a guarantor of late Roman oaths and pacts has received less attention (Meyer 2004: 278-80 discusses written instruments, and Calore 1998a focuses on Justinianic officials). Yet this aspect of doing law is a telling indicator of changes in late antique society and culture. In the third century, the jurist Ulpian apparently gave his opinion that if an oath was tendered by a publicly forbidden religio it was ‘‘to be thought of as if no oath had been sworn’’ (Dig. 12. 2. 5. 3 = Ulpian, Ad edictum, 22). Presumably Christians were thereby excluded from swearing oaths on their religio, alongside other undesirables. In the fourth century, however, the custom of invoking the name of the Christian God as a guarantor to legal pacts became prevalent: a constitution of AD 395, issued by the emperor Arcadius at Constantinople, tacitly acknowledges this practice ( Cod. Theod. 2. 9. 3 = Cod. lust. 2. 4. 41). Given New Testament injunctions against swearing oaths, however, not all Christian bishops were happy with this procedural development. Also at Constantinople, John Chrysostom denounced the practice, undertaken by baptized and unbaptized individuals alike, of swearing oaths on copies of the gospel books placed on the church altar (John Chrysostom, Hom. in Act. Apost. 9). By comparison, Chrysostom’s Homily against the Jews 1. 3 (preached at Antioch) claims to be an eyewitness account of an incident where a high-status woman was forced into a Jewish synagogue by a Christian (a pseudo-Christian, according to Chrysostom), ‘‘to make an oath about certain business matters which were in litigation.’’ Apparently, the would-be kidnapper believed that oaths sworn in Jewish synagogues were to be feared more than those sworn elsewhere. Around the same time, late Roman Britons were putting their faith in the goddess Sulis (Minerva), swearing an oath at her sacred spring at Bath and requesting that any perjurer should pay the goddess ‘‘in his own blood’’ (Tab. Sulis, 94, Tomlin 1988: 226-7). Late antique Christian churches thus took their place alongside Jewish synagogues and sacred Roman shrines and temples, as places where individuals could seek god(s) to act as literal guarantors and enforcers of justice.