Shifting Frontiers in
Late Antiquity II:
The Transformation of
Law and Society in Late Antiquity
An Interdisciplinary
Conference
The
University of South Carolina
Columbia,
South Carolina
March
13-16, 1997
This conference was supported by the generous assistance
of
The
College of Liberal Arts, University of South Carolina
The Office of the
Provost, University of South Carolina
The Department of
History, University of South Carolina
with additional support provided by
The Department of
English, University of South Carolina
The Department of
Philosophy, University of South Carolina
The Department of
Religious Studies, University of South Carolina, and
The Department of
French and Classics, University of South Carolina
Local Arrangements and Program Coordinator: Ralph. Mathisen
Co-Organizer Hagith
Sivan
Program Committee: Beatrice
Caseau
Gillian
Clark
Jacqueline
Long
David
Miller
Hagith
Sivan
Dennis
Trout
Booklet Editor: Ralph
W. Mathisen
Administrative Assistant: Tracy Keefer
Graduate Student Assistants: Timothy Cox
Allen
Jones
Walter
Roberts
Wendell
Tate
The encouragement and support of the following faculty and
administrators, all from the University of South Carolina, also is gratefully
acknowledged:
Dr.
Gerasimos Augustinos, Dept. of History
Dr.
Davis Baird, Chair, Dept. of Philosophy
Dr. Peter Becker,
Chair, Dept. of History
Dr.
Ward Briggs, Assoc. Provost and Chair, Classics Program
Dr.
Catherine Castner, Dept. of Classics
Dr.
William Edmiston, Chair, Dept. of French and Classics
Dr.
Carl Evans, Chair, Dept. of Religious Studies
Dr.
Donald Greiner, Acting Provost
Dr.
Scott Gwara, Dept. of English
Dr.
Jeremiah Hackett, Dept. of Philosophy
Dr.
Donald Jones, Dept. of Religious Studies
Dr.
Lester Lefton, Dean, College of Liberal Arts
Dr.
Patricia Matsen, Dept. of Classics
Dr.
Robert Newman, Chair, Dept. of English
Dr.
Robert Patterson, Dept. of History
TABLE OF CONTENTS
ROSTER OF PARTICIPANTS ......................................................4
CONFERENCE PROGRAM ............................................................9
ABSTRACTS .....................................................................................15
MAP ...................................................................................31
ROSTER OF PARTICIPANTS
Presenters
Marius Tiberius Alexianu
B-dul. Traian, nr. 88
Bloc H6, Sc. A, Ap. 15
5600 Piatra Neamt
ROMANIA
Rochelle I. S. Altman
737 N. Santa Anna St.
Mesa, AZ 85201
Antti Arjava
Institutum Classicum
PL4, FIN-00014
University of Helsinki
Helsinki
FINLAND
Karen Eva Carr
History Department
Portland State
University
Box 751
Portland, OR 97203
Beatrice Caseau
University of Paris
IV—Sorbonne
31, Rue Mirabeau
Versailles
FRANCE
Gillian Clark
Dept. of Classics and
Ancient History
University of
Liverpool
Liverpool LG9 3BX,
England,
UNITED KINGDOM
Frank M. Clover
Department of
History
University of
Wisconsin
Madison, WI 53706
Leslie Dossey
Department of History
Harvard University
Cambridge, MA 02138
Linda Ellis
Dept. of Classics
& Classical
Archaeology
College of Humanities
San Francisco State
University
1600 Holloway Avenue
San Francisco, CA 94132
Hugh Elton
Dept. of History
Trinity College
Hartford, CT 06106
Victoria Erhart
(Catholic University
of America)
PO Box 266
Washington Grove, MD
20880
Geoffrey Greatrex
Religious Studies and
Theology
Humanities Building,
Colum Dr.
Univ. of Wales,
Cardiff
Cardiff CF1 3EU
WALES
Mark C. Greco
Department of
Archaeology
Boston University
99 Pleasant St. Apt.
2-4
Watertown, MA 02172
Judith Evans Grubbs
Department of
Classical Studies
Sweet Briar College
Sweet Briar, VA 24595
Linda Jones Hall
Department of History
University of Dayton
300 College Park
Dayton, OH 45469
Jill Harries
Department of Ancient
History
St. Salvator’s College
University of St.
Andrews
St. Andrews, Fife KY16 9A2
SCOTLAND
Christopher A. Hoffmann
Department of Classics
University of
California
Berkeley, CA 94720
Abram Hubbell
341 Summer St. #1
Somerville, MA 02144
Michael Jones
Department of History
Bates College
Lewiston, ME 04240
Yitzchak Kerem
Editor, Sephardic
Newsletter
PO Box 10642
Jerusalem 91102
ISRAEL
Michael Kulikowski
107 Coe Hill Drive,
Apt. 3
Toronto, Ontario M6S 3E3
CANADA
Fannie J. LeMoine
Chair, Department of
Classics
University of
Wisconsin
Madison, WI 53706
Noel E. Lenski
Department of Classics
Campus Box 348
University of Colorado
Boulder, CO 80303
Francisco Javier Lomas Salmonte
Catedrático de
Historia Antigua
Universidad de Cádiz
PO Box 579
11003 Cádiz
SPAIN
Ralph W. Mathisen
Dept. of History
University of South
Carolina
Columbia, SC 29208
n330009@univscvm.csd.scarolina.edu
John Matthews
Department of Classics
Yale University
New Haven, CT 06520
Brian McGing
School of Classics
Trinity College
Dublin 2
IRELAND
Steven Muhlburger
Nipissing University
College
100 College Dr.
Box 5002, North Bay
Ontario P1B 8L7
CANADA
Joanne Mannell Noel
School of Art
213 Haynes Hall
Montana State Univ.
Bozeman, MT 59717
Lisi Oliver
Department of English
Louisiana State
University
Baton Rouge, LA 70808
Charles Pazdernik
Department of History
Princeton University
Princeton, NJ 08544
Kathy F. Pearson
Department of History
Old Dominion
University
Norfolk, VA 23529
Jonathan S. Perry
(University of North
Carolina)
913 Grove St.
Chapel Hill, NC 27515
Catherine R. Peyroux
Department of History
Duke University
Box 90719
Durham, NC 27708
Peter Sarris
All Souls College
Oxford OX1 4AL
ENGLAND
peter.sarris@all-souls.oxford.ac.uk
Dirk Schlinkert
Institut für
Geschichte der
Technischen Hochschule
Darmstadt
64283 Darmstadt
GERMANY
schlinkert@polihist.pg.th-darmstadt.de
John F. Shean
Department of History
University of
Wisconsin
3211 Humanities
455 N. Park St.
Madison, WI 53706
Boudewijn Sirks
Fac. der
Rechsgeleerdheid
University of Amsterdam
1000 BH Amsterdam
THE NETHERLANDS
Hagith Sivan
Institute for Advanced
Study
Princeton, NJ 08544
Mary E. Sommar
(Syracuse University)
Kraepelinstrasse 63
80804 Munich
GERMANY
Dmitri N. Starostine
Department of History
University of Michigan
Ann Arbor, MI 48109
Laurens E. Tacoma
Faculteit der Letteren
Vakgroep Geschiedenis
Rijks Universiteit
Leiden
Leiden
THE NETHERLANDS
Timothy M. Teeter
Georgia Southern
University
L. B. 8054
Statesboro, GA 30460
Dennis Trout
Department of
Classics
Tufts University
Medford, MA 02155
Kevin Uhalde
Department of History
Princeton University
Princeton, NJ 08544
Athanasia Worley
Dept. of History
University of Illinois
Urbana, IL 61801
Gerasimos Augustinos
Dept. of History
Univ. of S. Carolina
Columbia, S.C. 29208
Thomas M. Banchich
Canisius College
2001 Main St.
Buffalo, NY 14208
Richard Burgess
Department of Classics
University of Ottawa
Box 450, Stn A
Ottawa, Ontario K1N
6N5
CANADA
Thomas S. Burns
Department of History
Emory University
Bowden Hall
Atlanta, GA 30322
Gillian Clark
Dept. of Classics and
Ancient History
University of
Liverpool
Liverpool LG9 3BX,
England,
UNITED KINGDOM
John W. Eadie
Dean, College of Arts
and Letters
Michigan State
University
320 Linton Hall
East Lansing, MI 48824
Scott Gwara
Dept. of English
University of South
Carolina
Columbia, S.C.
Jacqueline Long
Department of Classics
University of Texas
Austin, TX 78712
Robert B. Patterson
Department of History
University of South
Carolina
Columbia, SC 29208
Pamela G. Sayre
Social Sciences
Henry Ford Community
College
5101 Evergreen Rd.
Dearborn, MI 48128
Carolyn Snively
Department of Classics
Gettysburg College
Gettysburg, PA 17325
Alan Watson
School of Law
University of Georgia
Athens, GA
Ronald Weber
Dept. of History
Univ. of Texas—El Paso
El Paso, TX 79968
iq16%utep@utepvm.ep.utexas.edu
THURSDAY, MARCH 13
(All
sessions in Gambrell Hall Auditorium)
11:00-12:00 Tour of
Historic Sites in Columbia
2:30- 3:30 Registration
3:30- 3:45 Welcomes
I
3:45- 4:00 Instrumenta
studiorum
Thomas Banchich (Canisius College) “The De Imperatoribus Romanis
WEB Site”
Steven Muhlburger (Nipissing
University College) “The ORB Late Antiquity Site”
Jeremiah Hackett
(Univ. of South Carolina) “Medieval and Renaissance Studies at USC: CEMERS”
4:00-
6:15 SESSION I. Law and the Imperial
Administration
Chair:
Alan Watson (University of Georgia)
Geoffrey
Greatrex (University of Wales, Cardiff) “Lawyers and Historians in Late
Antiquity”
Michael
Kulikowski (University of Toronto) “Vicars and the Law in Late Antiquity”
Jonathan
S. Perry (University of N. Carolina) “’Making Revolution in Silk Gloves’: Law
and Society under the Emperor Julian”
Hugh
Elton (Trinity College) “The Codex Theodosianus and Military Recruiting”
Rochelle
I. S. Altman (Mesa, Ariz.) “The Size of the Law: Codex Heights and Their
Significance in Imperial Administration”
7:00- 8:00 Reception
(with hors d’oeuvres and refreshments)
Remarks by Dr. Peter Becker, Chair, Department of
History
(Donor’s Room, Gambrell Hall)
8:00 Plenary
Lecture (Sponsored by Dept. of Religious Studies)
Hagith
Sivan (Institute for Advanced Study, Princeton, N.J.)
“Rabbinics
and Roman Law: Jewish‑Christian Marriages in Late Antiquity”
FRIDAY,
MARCH 14
(Gambrell
Hall Auditorium)
7:30- 8:30 Continental
breakfast
8:30- 8:45 Welcomes
II
8:45-10:30 SESSION
II. Law and Imperial Policy: Religious
Issues
Chair:
Jacqueline Long (University of Texas)
Dennis
Trout (Tufts University) “Lex and Iussio: The Feriale Campanum
and Christianity in the Theodosian Age”
Joanne
Mannell Noel (Montana State University) “Ritual, Religion, and the Law:
Transformations in Architecture under the Tetrarchy”
Beatrice
Caseau (University of Paris─IV, Sorbonne)
“The Christianisation of Law: The Protection of Religious Buildings”
Abram
Hubbell (Somerville, Mass.) “The Codex Justinianus and the Forced
Conversion of Jews in Early Byzantine Society”
10:30-11:00 Break
11:00-12:00 SESSION
III. Emperors, Law Codes, and Society
Chair:
Gerasimos Augustinos (Univ. of South Carolina)
Dirk
Schlinkert (Institut für Geschichte der Technischen Hochschule, Darmstadt)
“Between Emperor, Court, and Senatorial Order: The Codification of the Codex
Theodosianus”
Laurens
E. Tacoma (Leiden University) “The ‘De Decurionibus’ Section of the Theodosian
Code and Late Roman Egypt”
1:30-
3:30 SESSION IV. Soldiers and Bandits
Chair:
Ronald Weber (University of Texas─El
Paso)
Frank
M. Clover (University of Wisconsin) “The Legal Background of the Civil War of
A.D. 470‑472”
John
F. Shean (University of Wisconsin) “The Church and the Duties of the Christian
Soldier”
Peter
Sarris (All Souls College, Oxford) “Imperial Law and Provincial Society: The
Case of Men‑at‑Arms on the Large Estates of Byzantine Egypt”
Brian
McGing (Trinity College, Dublin) “Bandits Real and Imagined in Greco‑Roman
Egypt”
3:30-
4:00 Break
4:00-
5:30 SESSION V. The Law and Ethnicity
Chair:
Thomas Burns (Emory University)
Christopher
A. Hoffman (University of California, Berkeley) “Magic and Ethnicity at Rome: A
Legal Approach”
Linda
Jones Hall (University of Dayton) “Berytus ‘Nutrix Legum’: Ethnicity, Class,
and Religion in the City of the Roman Law Schools”
Yitzchak
Kerem (Aristotle University, Thessaloniki, Greece) “Involvement of Hellenistic
Jews in Legal Systems in the Late Roman and Early Byzantine Periods”
7:00- 8:00 Reception
(with hors d’oeuvres and refreshments)
(Donor’s Room, Gambrell Hall)
8:00 Plenary
Lecture
Jill
Harries (University of St. Andrews)
“Resolving
Disputes: The Frontiers of Law in Late Antiquity”
SATURDAY,
MARCH 15
(All
sessions in Gambrell Hall Auditorium)
7:30- 8:30 Continental
breakfast.
8:30-10:00 SESSION
VI. The Family: Substantive and
Metaphorical
Chair:
Richard Burgess (University of Ottawa)
Antti
Arjava (University of Helsinki) “Paternal Power in Late Antiquity”
Charles
Pazdernik (Princeton University) “Justinian’s Novels and the Law of Succession”
Francisco
Javier Lomas Salmonte (Universidad de Cadiz) “Pauperum alimenta:
Social Structure as Seen by Visigothic and Merovingian Councils”
10:00-10:30 Break
10:30-12:15 SESSION VII. Virgins, Saints, and Nuns
Chair:
Gillian Clark (University of Liverpool)
Judith
Evans Grubbs (Sweet Briar College) “Virgins and Widows, Show-Girls and Whores:
Late Roman Legislation on Women and Christianity”
Fannie
J. LeMoine (University of Wisconsin) “Hysteria, Decorum, and Good Use of the
Devil’s Arguments”
Athanasia
Worley (University of Illinois) “The Law of Generation in Methodius’
Symposium.”
Catherine
R. Peyroux (Duke University) “Canonists Construct the Nun?: Canonical
Legislation about Women Religious in Merovingian and Carolingian France”
1:30-
2:30 SESSION VIII. The Law in Barbarian
Europe: Setting the Stage
Chair:
John Eadie (Michigan State University)
Karen
Eva Carr (Portland State University) “From Alaric to the Arab Conquest:
Visigothic Efforts to Achieve Romanitas”
Dmitri
N. Starostine (University of Michigan) “Law and Traditional Practice in Early
Medieval Law‑Codes”
2:30-
4:00 SESSION IX. The Law in Barbarian
Europe: The Provinces
Chair:
Scott Gwara (University of South Carolina)
Linda
Ellis (San Francisco State University) and Marius Tiberius Alexianu (Alexandru
I. Cuza University, Iasi, Romania) “Duplex ius: The survival of Romano‑Byzantine
and Customary Law on Dacian/Romanian Territory”
Mark
Greco (Boston University) “Roman, Native, and Barbarian: Law and Society on the
Late Roman Frontier”
Michael
Jones (Bates College) “The Legacy of Roman Law in Post‑Roman Britain”
4:00- 4:30 Break
4:30- 6:00 SESSION
X. The Law in Barbarian Europe:
Landholding and Cultivation
Chair:
Pamela G. Sayre (Henry Ford Community College)
Boudewijn
Sirks (University of Amsterdam) “The Farmer, the Landlord, and the Law in the
Fifth Century”
Lisi
Oliver (Lousiana State University) “Æthelbehrt’s Læt and the Frankish Leto”
Kathy
Pearson (Old Dominion University) “Germanic Law and Barbarian Diet”
7:00- 8:00 Reception
(with hors d’oeuvres and refreshments)
Remarks by Dr. John Palms, President, University
of South Carolina
(Donor’s Room, Gambrell Hall)
8:00 Plenary
Lecture
John Matthews (Yale
University)
“Interpreting the interpretationes
of the Breviarium”
SUNDAY, MARCH 16
(All sessions in
Clarion Town House Hotel)
SECTION IV. The Ecclesiastical
Perspective
7:30- Breakfast
(at hotel)
8:30-10:00 SESSION
XI. The Development of Canon Law
Chair: Thomas Banchich
(Canisius College)
Gillian Clark
(University of Liverpool) “Spoiling the Egyptians: Divine and Human Law in Late
Antiquity”
Kevin Uhalde
(Princeton University) “Proof and Reproof: The Repertoire of Confrontational
Bishops”
Victoria Erhart
(Dumbarton Oaks) “The Impact of Law and Social Customs on the Development of
Syriac Christian Canon Law in the Sasanian Empire”
10:00-11:00 SESSION XII. Ecclesiastical Courts
Chair: Carolyn Snively
(Gettysburg College)
Leslie Dossey (Harvard
University) “Legal Privilege and the
Ecclesiastical Courts in Late Antique North Africa”
Noel E. Lenski
(University of Colorado) “Evidence for the Audientia Episcopalis in the
New Letters of Augustine”
11:00-12:00 SESSION
XIII. Bishops, Travel, and Canon Law
Chair: Robert B.
Patterson (University of South Carolina)
Mary E. Sommar
(Syracuse University) “Pragmatic Application of Proto‑Canon Law: Episcopal
Translation”
Timothy M. Teeter
(Georgia Southern University) “Bishops, Letters of Travel, and Canon Law in
Late Antiqity”
12:00 Closing Discussion and
Wrap-Up.
SESSION I. Law and
the Imperial Administration
Chair: Alan Watson
(University of Georgia)
Lawyers and Historians
in Late Antiquity
Geoffrey Greatrex
University of Wales,
Cardiff
Whereas the second and
third centuries AD seem to have produced relatively few historians (N.B. Tacitus and Suetonius, although they wrote
in the second century, dealt exclusively with the first century), the period
of Late Antiquity (fourth to seventh centuries) witnessed a renewed flowering
of historiography. The historians of
this period differed in several respects from their predecessors. There were now not only secular historians,
but also chroniclers and church historians.
Although many of their works survive only in fragments or through
allusions in other sources, it is clear that much was being written and that
many of these writers were lawyers (Sozomen, Agathias and Evagrius, to name but
three).
Is there a connection
between the law and historiography in Late Antiquity? Does it differ from other periods in this respect? It will be argued that the period is
different from others, and that there is an important link between law and
history. Although earlier Roman historians
may have had some knowledge of the law, they had no specific legal training;
and whether or not they determined to set about writing history, they enjoyed
successful careers on account of their family ties in any case (e.g., Tacitus,
Dio Cassius).
In Late Antiquity,
however, a legal training was regarded as an important means of advancing
career prospects; hence many young men passed from their traditional education
in the liberales artes to the study of law. The one equipped them with the precedents of history writing
(esp. Herodotus and Thucydides), while the other could put them in a position
to observe events worthy of record.
Young lawyers could be called upon to serve as the assessores
(advisors) of officials such as duces and magistri militum;
others might remain in the imperial capital, where they could gain access to
official records. In either case the
inclination to write history was strong, for it could lead to imperial
patronage. The greater scope for social
mobility in the later Roman empire thus not only encouraged the study of law,
but also stimulated the composition of historical works.
Vicars and the Law in
Late Antiquity
Michael Kulikowski
University of Toronto
From the end of the
reign of Constantius II, the vicariate was an anomalous post in the Roman
administration, subordinate to the regional praetorian prefectures which had
not existed when vicars were created under Diocletian. The vicarius was thus placed half‑way
between the prefects and the provincial governors, but these latter, as well
as private citizens, could by‑pass the vicar’s court and go straight to
the prefect from whose judgements there was no appeal. This ambiguous status had consequences not
only for the vicars themselves, but also for the way in which ordinary Romans
interacted with the law and its representatives.
The paper will explore
the types of cases which came before vicarial courts, and those instances in
which the vicar was by‑passed.
The jurisdiction of the vicariate was circumscribed after the rise of
regional prefectures, since appellates would usually choose the prefectural
court as a matter of preference. The
role of the vicariate had therefore to change.
It will be argued that this was a deliberate policy on the part of the
emperors. They recognised the
anomalous position of the vicariate and therefore modified its function,
changing it to an investigative body.
The paper concludes that in the late fourth and early fifth centuries,
while appeals were still made to them, especially in regions where no prefect
was handy, the vicars became primarily investigatory officials. This, in turn, had profound consequences for
the way in which the law affected, and intruded upon, late Roman lives.
“Making Revolution in
Silk Gloves”:
Law and Society under
the Emperor Julian
Jonathan S. Perry
University of North
Carolina
Throughout his
difficult winter of 362/3, Julian, according to Ammianus, “amused himself” by
hearing cases in person. Although he
generally dispensed an even-handed justice, he “sometimes behaved
injudiciously, asking at an inappropriate moment what religion each of the
litigants professed” (22.10.2).
Ammianus hastens to add that this information never prejudiced him in
either party’s favor; his decisions were uniformly made on the strength of the
evidence. In spite of Ammianus’
protestations, this anecdote nicely illustrates Julian’s “hands-on” approach to
government, as well as his pronounced interest in religious matters. By examining his constitutiones in
the Theodosian Code, I hope to determine 1) how Julian handled legal
affairs, particularly with reference to Constantinian precedent, and 2) how he
used the law to further his wider social agenda.
Forty-nine of Julian’s
pronouncements were excerpted for the Codex. Of necessity, many of these addressed routine points of law, and
we should not expect to see the emperor’s unique stamp upon them all. Nonetheless, when we put the vehement
comments of a number of his rulings alongside his letters and orations,
especially the Against the Galilaeans, we can see the same mind at
work. Furthermore, Julian brought this
style to bear on legal precedents established in the previous two regimes. In the important realm of matrimonial law,
he countermanded several recent innovations, hoping to remove the taint of
“Christian” values.
The constitutiones have
been arranged chronologically to facilitate comparison to the events of a turbulent,
but relatively well documented, 16 months.
The list attests to a phenomenon known from other sources, the
implementation of the civic refurbishment scheme, together with its ultimate
failure. The pronouncements became
increasingly shrill as avenues of escape were blocked off to fleeing decurions.
Julian’s legislation
bears witness to the principal aim of the reign, but it also reflects a policy
linked inextricably, in his mind, with municipal reform ─ the re-establishment of pagan cults in the
place of Christianity. With reference
to Libanius, the church historians, Ammianus, and Julian’s own letters, at
least four of the measures recorded in the Codex can be described as
specifically anti-Christian ones.
Julian did not launch an all-out offensive on the Church because, Libanius
claims, such tactics “had generally failed in their object, and he personally
saw no profit in this kind of compulsion” (18th, 122). Accordingly, he, contrary to Stalin’s
dictum, donned silk gloves and set out to eradicate Christianity with speeches
and legal reform. Gregory Nazianzenus
was not fooled. “He waged war [against
the Church] so skillfully and persuasively, and he, like someone who dips his
hook in bronze, made tyranny seem so attractive, that the people thought him
wise and his fight worth joining” (4th, 103).
The Codex
Theodosianus and Military Recruiting
Hugh Elton
Trinity College
The Codex
Theodosianus is a source which has much to tell us about the Roman army,
Book 7 in particular. Much of the
legislation it contains concerns recruiting and this has been discussed before,
often in terms of decurions and manpower shortage. Despite frequent statements of problems in recruiting, it is
striking that the law codes are more concerned with legislating who could not
join the army than who could. I propose
to re‑examine some questions concerning recruitment, but from the point
of view of military needs for recruits and the inspiration for issuing laws in
the late Empire. This paper
demonstrates that evidence concerning recruiting practices cannot be derived
from the CT alone, but must be drawn from the CT in combination
with other types of source material.
The Size of the Law:
Codex Heights and Their Import
Rochelle I. S. Altman
Mesa, AZ
Scholars of early
texts quite understandably have concentrated on the content. In antiquity, however, texts communicated
more than words. The content itself is
very important, since it determines: 1) the choice of script, 2) the format
(layout), and 3) the height of a page.
These three elements form an integral part of a text’s presentation;
together they create a textual identity as well as a visible means of immediate
identification by the reader. In turn,
these elements are further determined by political, cultural, and religious
affiliations. The correct script,
format, and size were mandatory if the content were to be accepted as
authoritative; this is particularly true of formal or official texts such as
legal codes. The contribution that the
size (the height) of a manuscript page might make to a fuller understanding of
political directions, cultural changes, and religious preferences during the
early centuries of the common era has generally received little
attention.
After a short
discussion of categories, the ancient origins of the two major Western formal
(or official) sizes will be discussed.
This presentation will then attempt to trace the
changes that followed
in the wake of the division of the Empire and the spread of Christianity. Finally, some of the cultural and political
implications shown by the different formal page heights will be addressed.
Plenary Lecture
Sponsored by the
Department of Religious Studies
Rabbinics and Roman
Law:
Jewish-Christian
Marriages in Late Antiquity
Hagith Sivan
Institute for Advanced
Study, Princeton
Two Roman laws (CTh
16.8.6 of 339 and CTh 9.7.1 of 383) banned marriage between Jews and
Christians. Their novelty resides in
the introduction of the disparity of cult as a marital impediment, a concept
wholly foreign to Roman classical law.
They also reflect both Jewish and Christian ideologies on the subject of
mixed marriage. These laws served as a
cornerstone for later rulings on Jewish‑Christian relations in the Middle
Ages and the early modern era. Past
analyses have centered on the meaning of each law and on their influence on the
Christian theology of marriage outside the faith. Attention has been paid to the place of these laws within the
larger context of Roman legislation on Jewish affairs. No attempt, however, has been made to trace
the history of Jewish, Christian and Roman/civil ideologies that in the fourth
century resulted in civil prohibitions on mixed religious marriage.
This discussion will
begin with the development of rabbinic thinking on the subject of mixed
marriages. It will consider critical
issues such as conversion to and from Judaism, the faith of the issue of these
marriages, and, above all, the validity of marriage between Jew and gentile. What emerges is an array of conflicting
opinions that beset rabbinical courts dealing with intermarriage and
communities facing assimilation.
Rabbinic strictures on
mixed marriage were put to the test in Spain at the council of Elvira (c.
310?). One canon forbids marriage
between Christians and Jews. But who
were the Jews who allowed their sons to marry catholic women? Who were the catholic parents who
countenanced marriage between their daughters and Jewish men? And did either rabbinic or episcopal
objections undermine the validity of intermarriage in the eyes of the Roman
legislator?
CTh
16.8.6 forbade marriage between Christian weavers and Jewish men, and then
proceeded to ban marriages between Christian women and Jewish men in
general. Why was the law thus
limited? Who were targeted by its
provisions? Half a century later, all
mixed marriages were banned by CTh 9.7.1. Why were these marriages compared with adultery? Who benefitted from such a prohibition?
These are merely few
of the questions attached to this complex subject. Also to be considered will be the nature of Jewish and Christian
marriage in Late Antiquity, the ceremonies and formalities of betrothal and
marriage, and the dissemination and reception of rabbinical legal exegesis in
the Jewish diaspora.
SESSION II. Law and
Imperial Policy: Religious Issues
Chair: Jacqueline Long
(University of Texas)
Lex and Iussio:
The Feriale
Campanum and Christianity in the Theodosian Age
Dennis Trout
Tufts University
The Theodosian Code,
it has been noted, readily presents an image of the Theodosian empire as “an
exclusively Christian state.” With the
instrument of law emperors prescribe vera religio, dictate belief, and
banish heresy and “paganism” (D. Hunt, in The Theodosian Code, ed.
Harries and Wood). Similarly episcopal
sermons and conciliar pronouncements apparently relegate unacceptable
religious practice and belief to the social margins. Yet, it is widely recognized that imperial laws, like episcopal
sermons, have more prescriptive than descriptive value for the historian (e.g.,
Bradbury, CPh 89 [1994] 120‑39).
Indeed, the gulf between imperial and episcopal pronouncement on the
one hand and religious and social practice on the other often emerges clearly
in incidents at the local level.
If it is not
surprising that neither imperial leges or episcopal sermones
ended heretical beliefs or pagan practices in the Theodosian age, it should be
of enormous interest that at Capua in the year 387 a certain Felix, under the
direction of the sacerdos Romanus and acting by iussio of the
emperors (domini), set up a “calendar” of imperiales feriae that
included several traditional regional holidays in addition to the more widely
offered vota (Inscriptiones Italiae 13.46). These regional celebrations once had
entailed the performance of sacrifice and other now suspect ritual
actions. Even if these particular
ceremonies had been sufficiently “Christianized” to eliminate aspects too
overtly pagan, the presence behind the dedication of an imperial iussio,
presumably emanating from the court of Valentinian II at Milan, is strangely
dissonant within the inscription’s immediate historical context.
The feriale
Campanum would seem to promote the very kind of ritual action that in other
contexts emperors and bishops worked hard to discourage. The imperial “order” that produced the feriale
Campanum is historically framed by imperial legislation that suggests the
better known direction of imperial policy.
To be sure, prior to 387, the relevant extant imperial laws depict a
“policy” somewhat in disarray. On
occasion all sacrifice might be expressly forbidden (CTh 16.10.2) and
temples declared closed (CTh 16.10.4), but the legislation of the 380s
also shows a marked preference for “secularizing” temples and singling out for
disapproval divinatory rites. In any
case, only a few years after the publication of the feriale, the domini
of 387, Valentinian and Theodosius, were issuing far more stringent anti‑pagan
laws (CTh 16.10.10‑11). In
this context, then, this Capuan “feriale dominorum,” highlights significant
tensions in imperial policy and Theodosian society that the Theodosian Code
too readily disguises.
Ritual, Religion and
the Law:
Transformations in
Architecture under the Tetrarchy
Joanne Mannell Noel
Montana State
University
The sweeping reforms
of Diocletian had a profound impact on architecture, which provided the
monumental visual expression for Diocletian’s religious and legal reforms. Known for his “building mania” (Lactantius, Mort.
Pers. 7), Diocletian renewed the practice of exploiting architecture for
its propagandistic value. The
peripatetic quality of the Tetrarchs’ rule and the increasingly important role
of ceremony fueled the development of imperial residences as provincial urban
centers. The seat of imperial power was
no longer in Rome but in the place of the emperor’s residence (Pan. Lat.
11,12,2).
Diocletian’s Palace in
Split provides an excellent case study for the transformations in architecture
during the Tetrarchy. Its typology and
iconography express Diocletian’s obsession with restoring order and morality to
the empire by returning to the traditional pantheon. Particularly revealing is a small prostyle temple which has been
shrouded in controversy, first over its identity as a temple, and subsequently
over its dedication. This contextual
analysis of the architecture and its ornamentation proves that the temple was
dedicated to Jupiter and intended not only as a site for ritual but as a
vehicle for continued expression of the themes central to the Tetrarchy. Galerius’ residence at Gamzigrad, the
coinage, and the panegyrics of the period provide parallels. Diocletian reformulated Roman paganism. Concurrent with the establishment of the
dyarchy, Diocletian proclaimed himself as Jovius and Maximian as
Herculius. Henceforth, divine filiation
was secured dynastic filiation.
The incorporation of a
temple within an imperial residence was innovative. The arrangement of the temple precinct, which formed an arm of a
powerful axial complex at the center of gravity of the Palace, was
unprecedented, as was the design of the temple ceiling, a stone barrel vault
with coffers, used customarily only in triumphal arches. Diocletian’s retirement palace provided a
site for the continued celebration of the patriarch’s adventus to his homeland,
of imperial epiphany and triumph even after abdication. The Palace at Split and the Temple of
Jupiter in particular exemplified a new imperial architectural language, one
which was dictated by a novel client who, as author of the Tetrarchy, strove to
express the evolving attitudes of a society he transformed.
The Christianisation
of Law: The Protection of Religious Buildings
Beatrice Caseau
University of Paris ─
IV, Sorbonne
The protection of
religious buildings established by law asserts the right of a religious
community to be respected and live in the open. It is therefore interesting to follow the evolution of the law in
respect to the religious buildings of different religious groups, from Roman
law to barbarian laws in the West and Byzantine laws in the East. In the Roman world, pagan temples lost their
legal protection in the fourth century, and many were destroyed or despoiled
as a consequence. Some laws tried to
protect them as public buildings adorning the urban landscape, but as empty
shells. At the same period, churches
gained a protected status in Roman law.
This paper will concentrate on the protection of churches as properties
and as sacred spaces. The church wanted
the recognition of the inalienability of its properties as well as the respect
of the religious nature of its consecrated spaces. Once dedicated to God or His saints, no building should return
to profane use. The purpose of this
study is to show how these expectations were introduced in secular laws,
Roman, barbarian and Byzantine. It is
one aspect of the christianisation which can be followed from canon law to
Roman law and to barbarian laws.
Barbarian laws are very little concerned with religion. Yet the protection of churches appears in
barbarian law codes. To take only two
examples, the Pactus legis Salicae as well as Rothair’s edict both refer
to the holiness of the churches to justify their protection. The buildings are therefore protected not
only as properties belonging to a church, but as sacred places. The wishes of the church have been granted,
at least on paper.
The Codex
Justinianus and the Forced Conversion of Jews
in Early Byzantine Society
Abram Hubbell
Somerville, MA
As the eastern half of
the Roman Empire was evolving into the empire we call Byzantium, between the
reigns of Justinian and Heraclius, the Codex Justinianus provided the
legal foundation for the mature Christian empire. Justinian’s Code rewrote much of the Theodosian Code,
including the legal rights of Jews within the Byzantine Empire. The Jews’ new legal position, in a time when
emperors were attempting to impose unity and orthodoxy on an increasingly Christian
Empire, left them victim to forced conversion for the first time.
This paper explores
the changes in early Byzantine law regarding the Jews, the imperial push for
unity, and the widespread consciousness of Christian identity from the reign
of Justinian to the Islamic conquest of much of the empire. It was a relationship whose fruits included
the forced conversions of Jews throughout the Byzantine Empire under a handful
of emperors. As emperors such as Justinian
and Heraclius sought a political unity and religious orthodoxy throughout the
empire, they saw the Jews as a dangerous counterweight to their imperial
ambitions. The shrinking of paganism
and the pressure from the Zoroastrian Persians made the Byzantines acutely
aware of the Jews as a non‑Christian group within their empire. The Byzantines also increasingly perceived
the Jews as a political threat to the empire.
During this period, Jews were involved in the Samaritan uprisings and
murdered many Christians in the Persian capture of Jerusalem. Although the actual danger to the empire
posed by the Jews may not have been great, the Byzantines had begun envisioning
themselves as God’s chosen people surrounded by a sea of heretics and
heathens. And the emperor had already established
a precedent for persecution with the Monophysites and Nestorians. Against this background, it was easy for an
emperor to call for the forced conversion of an entire group of people,
especially when its ancient legal rights had already been swept away.
The Justinianic
changes to laws of the empire played an intrinsic part not only in the forced
conversions of Jews, but also in the Christianization of the Mediterranean
world. Christians, for the first time
in their history, forcibly converted and baptized non‑Christians.
SESSION III.
Emperors, Law Codes, and Society
Chair: Gerasimos
Augustinos (Univ. of South Carolina)
Between Emperor,
Court, and Senatorial Order:
The Codification of
the Codex Theodosianus
Dirk Schlinkert
Institut für
Geschichte der Technischen Hochschule, Darmstadt
During the second
decade of the 5th century an attempt was made in the east of the
Empire to solve the problems connected with the overall diversity of
legislation. In March 429 Theodosius II installed two commissions to codify the
laws valid at the time and enacted since the reign of Constantine, an ambitious
project which took its executives almost a decade, i.e. from 429 until 438, to
carry out.
The project of
concentrating legal traditions in a normative canon was the achievement of
distinguished senators at the court of Theodosius II. By imperial command and under the direction of Antiochus they
planned, organized, and carried out the codification of law. The question is whether the codex is not
also a reflexion of senatorial politics.
Did the senators at
Court manage to leave their imprint on the new legal canon? How far can we see the codification of law
in the context of a policy of protecting interests? It is certainly not accidental that all commissions for the
codification of law were composed of leading members of senatorial rank. Nor should it be forgotten that the Emperor
and the members of the senatorial aristocracy at his court decided to collect
and codify many laws of the past which served the same end. The codex is the product of the political
problems which emerged under Theodosius: a crisis in law which produced a
constantly expanding chaos of laws on top of a crisis of political and social
order which manifested itself in dramatic social mobility at all levels of
society in Late Antiquity.
Many elements which
the “holiest Emperor” and his senators wanted were turned into laws. However,
not everything that they wanted became law. The normative texts reflect no more
than the political will of the Emperor and his court. The reality and social practise lay beyond the laws and it is
scarcely possible for a modern historian to reconstruct them. The Code certainly reveals what the emperors
intended, but it should be used with great caution by anyone seeking to
describe the realities of the times.
The ‘De
decurionibus’ Section of the Theodosian Code
and Late Roman Egypt
Laurens E. Tacoma
Leiden University
“Spes in vobis, salus
in nobis.” Together with many others,
this exclamation filled the senate house at the moment of the promulgation of
the Theodosian Code. Apparently,
this was an occasion for great joy.
Ungrateful though it may sound, the question is whether we should
be as glad with its preservation. Its
laws, in particular those in the De Decurionibus section, pose in a dramatic
way questions about the relationshp between law and society.
The urban history of
Late Antiquity has been closely modelled on the picture derived from the De
Decurionibus title of the Theodosian Code. Its 192 laws document the “Flight of the Councillors”. Councillors are no longer interested to
participate in urban government. They
try every imaginable route to escape from the burdens of municipal life. In law after law, government tries to stop
their flight, to little avail.
The sheer repetition
of the laws has been taken to mean that the laws had little effect. It does not take much to demonstrate their
internal inconsistencies. But the
analysis is usually left at that.
Historians have not been very successful in using the laws as a historical
source. A. H. M. Jones tried to create
a historical narrative out of the texts, but without much success. Current writings on late antique cities
betray some uneasiness about the laws, since they seem to fall outside patterns
of late antique social and economic prosperity. Ignoring sources is usually not the best strategy to answer
questions, so it is very much worth the effort to analyze the texts anew. What do they represent? How were the laws generated? And, most importantly, how do the laws relate
to developments in late antique urban society?
SESSION IV. Soldiers
and Bandits
Chair: Ronald Weber
(University of Texas ─ El Paso)
The Legal Background
of the Civil War of AD 470‑472
Frank M. Clover
University of
Wisconsin
In AD 380/381 Emperor
Theodosius I ordered the subjects of the Roman Empire to subscribe to the form
of Christianity approved by the Council of Nicaea. The companion to this proclamation came a decade later, in
391/392: all subjects must henceforth refrain from traditional worship. These
celebrated edicts established the framework of public religion for many
generations. It is sometimes possible to measure, on the basis of good
evidence, the subjects’ compliance with or resistance to these celebrated
edicts. One such occasion was the civil
war which crippled Italy and hence the West, between AD 470 and AD 472.
The protagonists of
this civil war were the western emperor Anthemius and his generalissimo,
Count Ricimer. The most interesting
dimension of this conflict is the differing religious enthusiasms of the two
principal combattants. Before he went
westward, Anthemius supported the construction of a church dedicated to St.
Thomas, in Constantinople. This was an act of Christian piety.
When he became
emperor, however, Anthemius revealed his strong attachment to Hellenism, the
traditional mode of thought and belief which the edicts of Theodosius had
outlawed. Anthemius, then, sparked the
last great pagan revival in Rome. As
for Ricimer, it generally has been assumed that as a Goth he was an Arian
Christian. This may have been the case,
but from the time of the civil war there is evidence that Ricimer showed to
the inhabitants of Rome his attachment to another, more populated part of
Christendom.
Three churches in or
near Rome are the best witnesses of the devotions which Ricimer displayed to
the Roman public. The first is a parish
church in nearby Tibur (Tivoli), adorned in 471 by a military commander named
Flavius Valila qui et Theodovius.
At the same time, Valila handed over to the See of Rome a private
structure which became a church.
Valila, it can be shown, was a relation and protégé of Ricimer. The churches were Nicene rather than Arian.
The same was the case
for another of Rome’s basilicas, known today as S. Agata dei Goti. During the Ostrogothic occupation of Italy
it had indeed been a shrine of the Arian faith. Had this been the case before?
Did Ricimer make it a center of Arian worship? A close examination of Ricimer’s part in the work on this
basilica reveals nothing that is specifically Arian. It is more likely that Ricimer offered the first act of piety to
the Nicene Christians of Rome, and that his underling then followed suit. Was there terrestrial benefit to be
gained? Yes indeed: Ricimer needed all
the support he could get in the struggle with Anthemius, the Hellene.
The modern observer
has little difficulty in seeing Theodosius’ edicts on religion as motive forces
behind the political and military maneuvering that made up the civil war of AD
470‑472. Theodosius had ordered
all subjects to abandon the old gods and worship the God of the Christians as
prescribed by the Council of Nicaea. In
the struggle with Anthemius, Count Ricimer showed himself to the Roman public
as an enforcer of these orders.
The Church and the
Duties of the Christian Soldier
John F. Shean
University of
Wisconsin
The process whereby
the army of the Roman empire was transformed into a Christian fighting force
has attracted surprisingly little scholarly attention. Part of the reason may lie in the fact that
scholars have traditionally regarded the Roman army as an unlikely profession
for Christians. This is based on the
assumption that the early Christians were essentially pacifists and unlikely to
be found in the Roman army in any sizable numbers before the fifth century. In fact, many writers (e.g., Cadoux) have assumed that the early church
had strong moral compunctions against its members doing military service
because any occupation which would involve killing violated Christ’s
teachings. Yet scholars search in vain
for canons or teachings specifically prohibiting Christians from serving in the
Roman army. Indeed, quite the contrary,
we find explicit canons from synods such as Canon III from Arles in 314, which
specifically forbad Christians from “throwing away their arms” in times of
peace, or statements from the church fathers, such as St. Augustine, indicating
that it was not sinful for Christians to kill in battle.
Far from embracing a
policy of doctrinaire pacifism, the church, once finding itself in the role of
the household faith of the Constantinian and Valentinian dynasties, recognized
the need of a world‑wide empire to wage war as a matter of national
survival and developed a theology which justified and delineated the role of a
Christian soldier within a military institution. Coupled with this development was the tendency of writers, such
as Eusebius, to identify Christianity with Roman patriotism and to demonize
the barbarians living outside the empire, portraying them as a threat to the
faith as well as the state. Thus, the
church developed a theology of Roman nationalism which justified the actions of
Christians in taking up arms to defend both the church and state from its
enemies.
Imperial Law and
Provincial Society:
The Case of Men‑at‑Arms
on the Large Estates of Byzantine Egypt
Peter Sarris
All Souls College,
Oxford
The social and
economic life of Egypt in the period from the fifth to the seventh centuries AD
was dominated to an extent unprecedented in the Roman history of the province
by a large‑scale landowning elite epitomised by the Apion family, whose private
administrative papers survive in large quantities in the Oxyrhynchus
collection. These magnates were obliged
to contend with both passive and active resistance on the part of the village
communities. Landowners raised private
bands of armed retainers, a practice explicitly prohibited by imperial
legislation.
For Egypt it likewise
has been argued that one can find armed retainers, described as “soldiers” or
“buccellarii” (a word used in the late Roman period to describe warriors
engaged in private service, albeit often put to use on official imperial
campaigns). In recent years, however,
it has been argued that the men‑at‑arms were in fact imperial
troops for whom the magnate household was obliged to provide.
This paper proposes
that the Apion family employed imperial troops as private indentured retainers,
using the paramone contractual type, which represented the archetypal
contractual form employed on the great estates. Such troops were illegally employed and were put to illicit
purposes.
The paper will then go
on to address the legal, political, and historiographical implications of this
phenomenon, placing it within the context of the debate on late Roman
feudalism. On the one hand, it will be
argued, the private employment of imperial troops must have rendered the maintenance
of law and order in the provinces more problematic. On the other hand, to
regard the phenomenon of such men‑at‑arms on the great estates of
Byzantine Egypt as evidence for the growing frailty of the late Roman state in
the east, would be to allow oneself to be misled by the more propagandistic and
spuriously universalistic claims of imperial legislation, in particular the
clarity with which imperial legislators sought to distinguish between public
and private authority. Rather, it will
be argued, it may be more profitable to approach late Roman legislation with
the same sort of expectations with which one studies the laws and decrees of
western medieval monarchs. In late
medieval England, for example, kings promulgated laws of supposedly universal
effect seeking to curtail the expansion of lordly retinues via the distribution
of liveries. Such laws, however, only
appear to have been enforced with any rigour against those whose political
loyalty was deemed questionable. Those who enjoyed the king’s favour were
allowed to continue raising such retinues unhindered.
Similarly, it is
possible that Justinian’s legislation against the private employment of
soldiers may never have been meant to be deployed against a family such as the
Apions, whose devotion to the Justinianic project would appear to have been
unflinching. Rather, such legislation,
at least in part, served the purpose of further strengthening the emperor’s
arm against those whose commitment was less wholehearted. Justinian was fully aware of the political
benefits to be derived from inculcating a sense of measured insecurity in those
around him.
Bandits Real and
Imagined in Greco‑Roman Egypt
Brian McGing
Trinity College,
Dublin
This is a study of
groups of people who are outside the law, it is not so much their relationship
with the law that interests me (laws concerning banditry have been well
studied), as their relationship to society.
My starting point is the theory of “social banditry” developed by Eric
Hobsbawm. One of the chief criticisms
of his theory was that he developed his picture of bandit reality from
anecdotal and legendary material. The
same sort of material exists in the ancient world (e.g., the story of Bulla
Felix in Dio; or the Greek romances), and one can easily draw the same sort of
picture of romantic bandits as Hobsbawm did for more recent history. What we have from Egypt, however, is the
qualitatively different type of evidence provided by the documentary papyri
(mostly Roman and Byzantine), which have not been used in this context (the
important work of Brent Shaw on bandits of course cites some papyri, but does
not examine them in detail). This gives
us the opportunity to look at the phenomenon of banditry from a very different
angle. Does the theory expounded by
Hobsbawm provide any lines of enquiry, any interpretative possibilities in
the various papyri dealing with bandits? The simple answer is “yes”, but
largely in the areas of collusion between bandits and their villages, bandits
and police officials, bandits and the powerful. What fails to emerge is any romantic notion of the bandit as
social revolutionary or hero of the poor and oppressed (i.e., there is no trace
of an Egyptian Robin Hood). This is very
much along the lines being pursued by Latin American historians, for instance,
at the moment. Hobsbawm’s social
bandits are still a useful analytical category, but the papyrological evidence
shows a much harsher reality.
SESSION V. The Law
and Ethnicity
Chair: Thomas Burns
(Emory University)
Magic and Ethnicity at
Rome: A Legal Approach
Christopher A. Hoffman
University of
California, Berkeley
Roman law is just one
of a number of ways by which we can put the ancient world under the
microscope. Because it has a normative
function, Roman law gives a unique insight into Roman society. Late antique law in particular, besides
showing us something about the social context in which the law was intended to
operate, can offer us evidence of social policy because of the legal role
played by the emperor. The Theodosian
Code, for example, provides ample evidence of the state’s growing interest
in the practice of magic during the latter years of the empire.
Over the past century
the study of magic at Rome has been subject to varying levels of interest,
which has tended to advocate one of three approaches to magic. One approach assumes magic and religion are
essentially coterminous and, therefore, that magic is an arbitrary term of
little descriptive value for the scholar.
A second approach is that magic is opposed to religion, whether it be a
degraded form of religion or a primeval predecessor. A third argues that it is most important to see what magic means
in a given society by observing how the members of a given society use the term
or its equivalent. The debate over the
first and second approaches is of great importance for a study of magic in
general, but when we consider those instances when Roman law addressed magic,
we can use to good purpose the third approach because, although the law never
precisely defines magic, it nevertheless is operating within the contained
environment that was Roman society, and by using all the evidence available to
us from that society we can theorize about what the Romans were proscribing
when writing their laws and, in turn, what those laws tell us about that
society. Laws regarding the use of magic appear in the Twelve Tables and
continue to develop through the time of the Theodosian Code and beyond. At the earliest stages, when magic users
were not seen as a specific group, the law was mostly concerned with the use of
magic as it affected persons and things.
By the time that we reach the Theodosian Code, we notice that a
shift in attitude has taken place. No
longer concerned with the layperson who may use magic to steal a neighbor’s
grain, later Roman law addressed itself to magic users‑qua‑magic
users: we thus see at this later stage a social concern with a specific,
professional group. Moreover, the law’s
concern in this regard is no longer strictly based upon action, but now upon
potential action. By comparing the
development of law in this area with the history of Roman attitudes towards
things foreign, we get a sense that there are several forces at work in this
development: general anxiety about foreigners; the rise of Christianity and its
own Biblical injunctions against the practice of magic users; and notions of majestas
during the empire. Through an
examination not only of legal texts such as the Theodosian Code and
epigraphic materials such as the SC de Bacchanalibus but also literary
texts, whether historically oriented such as Tacitus’ Annales or
literary such as Apuleius’ Metamorphoses, we have an opportunity to see
this development in detail and consider not only how the law evolved but also
how it in conjunction with these texts can show us the ambivalence and anxiety
which Romans felt towards the foreign.
Berytus “Nutrix
Legum”:
Ethnicity, Class, and
Religion in the City of the Roman Law Schools
Linda Jones Hall
University of Dayton
This paper presents a
portrait of Berytus (Beirut), one of three cities in the Roman Empire
sanctioned to offer instruction in Roman law from the third through sixth
centuries AD Berytus, although
characterized as the “most Roman” city in the Greek East, was centered in the
province of Phoenicia. Greek‑speaking
students from distant parts of the
empire came deliberately to acquire knowledge of the Latin language and Roman
law and perhaps less consciously encountered “Phoenician” or “Syrian” culture,
and thereby were shaped by a multi‑cultural environment.
In the urban milieu of
Berytus were other social influences which “educated” the law students as well.
The artisans and merchants involved with the production of silk textiles
and the process of purple dyeing appear to have acquired sufficient income to
have sent some of their sons to the law schools, as Libanius, a “hostile
witness” avers. John Chrysostom and
Ammianus Marcellinus refer to the rewards awaiting young men who acquired the
requisite linguistic and legal training provided in Berytus.
The students and professors were also frequently caught up in
religious controversies, not only in matters of Christian doctrine but in
aspects of pagan practice as well. The
narratives of the lives of Severus and
Matrona reveal the tensions in the city and the surrounding countryside between
Christians and pagans of all classes.
Ecclesiastical records and legal rulings indicate the increasing power
of various religious leaders and
imperial policies. These same sources
suggest a rising role for the jurists in the administration of the city
itself.
A comprehension of the
complex urban setting of Berytus in which many late antique Roman lawyers were
trained, including several compilers of the Codex Justinianus, should
improve our understanding of the social views shaping “Roman law”.
Involvement of
Hellenistic Jews in Legal Systems
in the Late Roman and Early Byzantine Periods
Yitzchak Kerem
Aristotle University,
Thessaloniki, Greece
The Jews of the late
Roman Empire and early Byzantium were very involved and influenced by the
legal systems of the time. They were
influential and important parts of the legal system. Due to this involvement, their own legal system and codes were
influenced by Roman and Byzantine law and procedure. The Jews played an active role in the Roman juridical system as
judges, clerks, defendants, and scribes.
Because of their legal expertise, they were often consulted by Roman
judges. The rabbis had a particular
interest in Greek legal terms and wrote about them in the Mishna and the Palestinian
Talmud. The rabbis had to know Greek
law, since in the Mediterranean Basin, they were often called to settle legal
issues between two Gentiles, or a Gentile and a Jew.
The Greek‑speaking
Roman legal process influenced Jewish law and procedure greatly. In the formation of Jewish law, Halacha,
precedents from Roman law were used.
Some of the Jewish Halachic terminology was taken from Roman courts and
law. This does not mean that Jews were
completely Hellenized by Greek thought and culture. Polemic disputations by rabbis against Christianity were fierce
in light of constantly mounting attempts by early Christian leaders to convert
them to Christianity in the Roman Empire and the newly‑emerging
Byzantine Empire. On the other hand,
Talmudic sources based themselves on entire Greek sayings, Greek law books,
and Greek legal documents. Greek played
an important role in the clarification of the Mishna and the Talmud. Even though Aramaic was the language of the
Jewish masses of Palestine, Greek was needed as a tool to understand Rabbinic
teachings.
Jewish law had to
adapt itself to Gentile behavior. For
example, when the decadent Jewish Alexandrians abducted girls betrothed to
other men, the rabbis in Palestine had to make appropriate decisions. The Alexandrian Jews also were concerned
about problems of the status of children of mixed marriages. The Jews did and could not live in a vacuum,
and as they were affected by Gentile society, they also were connected to
Gentile law and legal procedures.
Under Christian rule
in the Byzantine Empire, the Jews would no longer enjoy a privileged position
in the judicial system and would be left completely to the whims of tyrannical
rulers. Internally, in Asia Minor, the
Jewish communities had no exposure to Talmud and erudite Torah learning as in
Palestine and Babylonia. In Byzantium,
much legislation in the 4th to 6th century was to prevent
Judaizing, conversions to Judaism, and curb Jewish proselytism. The Jews not only strengthened their faith
through the canonization of the Talmud, but by attracting pagans and later
Christians as proselytes or
sympathizers. In the Jewish State, the
Jews had resisted Hellenization, but in the diaspora, the Jews were very Hellenized. In places like the Greek Peninsula, their
numbers dwindled greatly.
From the third to the
fifth centuries, the Byzantine Jews enjoyed relative stability, but by the 6th
and 7th centuries, they suffered from governmental
interference. Synagogues were closed,
anti‑Jewish riots were very prevalent, Jews were expelled, and by 632,
Emperor Heraclius ordered all the Jews under his dominions to be baptized. Theodosius II had legal recognized the
Jewish community and worship was officially safeguarded, but in general they
were subjected to harsh legislation and treatment by the authorities.
Plenary Lecture
Resolving Disputes:
The Frontiers of Law in Late Antiquity
Jill Harries
University of St.
Andrews
This contribution
explores some of the means by which disputes were resolved peacefully in Late
Antiquity, focusing particularly on the role of the bishops. After considering one dispute between
members of the clergy at Lycopolis in 481, resolved by arbitration, attention
is drawn to the importance of unwritten custom and methods of
dispute-settlement not discussed by the law, such as episcopal jurisdiction
before Constantine. The theory of the
legal anthropologist, Philip Gulliver, that dispute-settlement should be
analysed in terms of who takes the final decision, a third party (the
adjudicator) or the parties themselves, is discussed, along with its
implications for the bishop’s role as adjudicator and as mediator. It is argued that attempts by late Roman
lawyers to assimilate episcopalis audientia to the theory and practice
of arbitration foundered on the fact that bishops’ hearings could not be
classified in traditional ways, but that in practice the role of the bishop as
adjudicator in his court could be viewed either as that of the iudex or
as arbiter, the two being less distinct than is sometimes thought. Attention is drawn to the flexibility of the
bishop’s role as settler of disputes, as illustrated by Ambrose’s use of both
arbitration and mediation to sort out a property dispute involving a local
bishop. Finally a reminder is issued
that we will not properly understand the lex scripta without
appreciating the importance of unwritten law, custom and tradition.
SESSION VI. The
Family, Substantive and Metaphorical
Chair: Richard Burgess
(Univ. of Ottawa)
Paternal Power in Late
Antiquity
Antti Arjava
University of Helsinki
One of the most
peculiar features of Roman law was the father’s dominant position (patria
potestas). It has often been
claimed that patria potestas was ignored or distorted in the provinces
after the universal grant of the citizenship in 212. On the other hand, paternal power was so central to the Roman
legal system that it could hardly be neglected by anyone who aimed to put Roman
law in practice. Thus, it is an ideal
subject for assessing the extent of Romanization, and more generally the
influence of law on social practices in Late Antiquity.
The aim of this paper
is to examine patria potestas in all our sources, eastern and western,
from the third century through the seventh century. Besides legal texts, which themselves tell much about the social
context of law, papyri and lay authors (both ecclesiastical and secular) offer
some evidence on the application and reception of laws. For example, the papyri indicate, contrary
to popular belief, that the inhabitants of Roman Egypt in the third century had
at least to some extent managed to adopt the legal construction of the Roman
family.
It emerges that even
in the remoter parts of the later Roman empire people had learnt the system of patria
potestas sufficiently well to live with it. Although they developed many ways to evade its individual
consequences they apparently never considered it obsolete. Patria potestas
survived in the east beyond Justinian and in the west as long as we can follow
the sources before they fade out in the dark ages.
Justinian’s Novels and
the Law of Succession
Charles Pazdernik
Princeton University
This paper examines
the role of the Roman civil law in responding to evolving conceptions of the
ancient family. The law of succession
proves to be an especially fertile ground for such an exploration. By its very nature, intestacy obliges the
state to define degrees of entitlement to the property and social identity of
deceased individuals. Throughout its
history, Roman law defined that entitlement as coextensive with the natural
family of the deceased. Owing to the
essential conservatism of the legal tradition, however, the law of intestate
succession was characteristically found to be in conflict with contemporary
social definitions of the family.
Justinian characteristically swept aside the detritus and attempted to
re‑found the institution of intestacy on a theoretical basis less
encumbered by hoary legal traditions.
Similarly, the law of
testamentary succession attempted to mediate between an individual’s desire to
dispose of his property in the manner he sees fit and society’s sense of that
individual’s obligation to provide for his family. Again, Justinian as legislator was confronted by a legal
tradition freighted with obsolescent definitions of family entitlement. As in the case of intestate succession, his
reform of the law of testamentary succession was premised upon a definition of
the family which reflected contemporary sentiment, but which sought
justification through an appeal to a curious amalgam of Christian teaching and
a debased tradition of pagan natural law doctrine.
The subject is an
especially appealing one thanks to a few happy circumstances. In the first place, the derivation of the Roman
law of succession from the Twelve Tables onward allows one to trace the
cultural and legal history of the family from the earliest discernible points
of Roman prehistory. This background is
an essential prerequisite for the understanding of Justinian’s innovations. In the second place, the happenstances of
Justinian’s reign brought it about that substantive reform of the law of
succession did not occur until after the great project of legal consolidation
and codification was brought to a close.
Hence succession stands as one of the few areas of the civil law which
receive extensive treatment in Justinian’s Novels. By surveying the relevant constitutions we are brought face‑to‑face
with the legislator’s primary vehicle of legal reform, and have the
opportunity to review the practical working out of problems which emerge only
in the course of actual litigation.
Pauperum
alimenta. Forms of Dependance
in the Western Latin Churches
Francisco Javier Lomas
Salmonte
Universidad de Cadiz
The purpose of the
paper is to establish the continuity of the forms of dependence between the
so-called low classes (serui, coloni, and so on) and the domini
and patroni (the high clergy) through Christian charity, an instrument
well fitted to replace the ancient evergesia in a new and emerging
society. There is a link between evergesia
and Christian charity, but their purpose is different. Both were forms of control of the low
people (most of them ciues Romani in the Roman period; egenae, serui,
members of low condition but Christianised in Late Antiquity and the early
middle ages), but the nature of those institutions was different. Evergesia
or “munificence” was intended to increase the personal and familiar dignitas,
and it was directed almost exclusively to those who had Roman
citizenship. Ultimately, the result was
multiple: the cities were enlarged, the patrimonies of the evergetai
were exhausted, the multitude was not dying of hunger. The disturbances and the uprisings as a
result from a life under the threshold of poverty were avoided. And rigid dependency systems were
established. Through Christian charity
the bishops or the abbots were exercised mercy, and maintained the Christian
herd under their ideological rod.
SESSION VII.
Virgins, Saints, and Nuns
Chair: Gillian Clark
(University of Liverpool)
Virgins and Widows,
Showgirls and Whores:
Late Roman Legislation
on Women and Christianity
Judith Evans Grubbs
Sweet Briar College
Much has been written
in the past fifteen years on the role of women in late antique Christianity (E.
Clark, G. Clark, G. Cloke, S. Elm, M. Salzman, H. Sivan). Recent books have also focused on women in
late Roman law (A. Arjava, J. Beaucamp, J. Evans Grubbs). Less work has been done, however, on the
intersection of the two, that is, late Roman legislation directed explicitly at
women and the Christian church. Yet
this is a topic for which there exists interesting and relatively abundant evidence,
both in the legal sources and in contemporary Christian writings.
This paper discusses
legislation on women and Christianity in the following questions: What issues
involving Christian women were of particular concern to the government? How
are these same issues reflected in contemporary Christian sources outside the
law codes? What events or individuals
prompted the enactment of legislation directly aimed at women and the
church? Is there any change in imperial
policy between Constantius (the first emperor to legislate explicitly about
Christian women) and the later fifth century, when “the Church” had become
firmly entrenched in imperial society?
Two kinds of Christian
women received special attention from Christian lawmakers: celibate widows and
virgins of respectable birth, and women of low birth who were employed as
showgirls (scaenicae) or as prostitutes—often, of course, as
both. Respectable virgins and widows
were of interest because of their wealth and family connections, lowborn women
because they rendered services (sex and popular entertainment) in demand by the
general public. In both cases their
attraction to Christianity presented potential problems for the imperial
government. Some laws are concerned
with the physical protection of dedicated celibates who were perceived to be
in danger of abduction or seduction (CTh 9.25); other laws, which prevent
clerics from receiving gifts or legacies from wealthy celibate women, are aimed
at keeping the women’s property from being diverted outside their families (CTh
16.2.20 and 22; 16.2.27 and 28). Quite
other concerns prompted the laws about scaenicae who convert to
Christianity, since their conversion meant that they abandoned their profession
(CTh 15.7.1, 2, 4 and 9).
I will conclude that
whereas in the fourth and early fifth century, imperial laws on Christian
women are prompted by the social and economic roles of those women in secular
society and express traditional elite assumption about status, gender and
family, later laws do appear to reflect more “Christian” concerns and depart
from traditional policy. The most innovative
of these new laws is Theodosius II’s law against enforced prostitution, which
we know was prompted by his praetorian prefect Florentius (CTh 15.8.2, Novel
of Theodosius 18).
Hysteria, Decorum, and
Good Use of the Devil’s Arguments
Fannie J. LeMoine
University of
Wisconsin
On March 7, 203 Vibia
Perpetua, a well‑born and well‑educated young mother of twenty‑two,
was executed in Carthage as part of the birthday games for the Caesar
Geta. She and her fellow martyrs had
been condemned for Christianity and failure to sacrifice to the health of the
emperor. Before she died in the arena,
Perpetua wrote an account of her arrest, trial, and visions while in
prison. An editor, probably a Christian
Montanist, added a preface to the account, joined it with a vision recorded by
her fellow martyr Saturus, and appended an eyewitness report of the martyrdom
at the document’s conclusion.
The trial and
execution reported in the Passio Perpetuae et Felicitatis depart from
customary Roman legal practice in several significant ways. In this paper I
examine how expected legal decorum at the trial and unexpected legal arguments
in confrontations with authority undermine the traditional understanding of the
virile office and women’s legal incapacity to represent others in the public
arena of religious and civic justice.
The Law of Generation
in Methodius’ Symposium
Athanasia Worley
University of Illinois
Plato’s Symposium
gave classic expression to a genre that eventually included works of the most
diverse subject matter by authors such as Xenophon, Plutarch (twice), Lucian,
Petronius, Athenaeus, the Emperor Julian, and Macrobius. Methodius of Olympus’ late third century Symposium
or On Chastity, also known as the Banquet of the Ten Virgins, is
regarded as the closest imitation of Plato.
Plato’s speakers agree
to produce encomia of Eros, the principle of attraction and generation. Socrates’ Diotima teaches that love must
engage and then transcend the particular, contemplate ultimate beauty, and
generate beautiful thoughts which are immortal and therefore superior to any
earthly children. However, Plato’s
characters in real life did not avoid civic and family obligations and the
production of legitimate children, no matter how transcendent this invented
conversation. Methodius’ theme is also
that of transcendence, but by the opposite method. His virgins vie to produce encomia on chastity, arguing that
virginity transcends the temporal and earthly and is a foretaste of the age to
come. Methodius wrote in a religious
milieu in which celibacy and monasticism exerted a powerful attraction. His invented characters had real‑life
counterparts for whom there was no legal structure in place.
In a striking reversal
of the entire ancient symposiac tradition, not only is the host in Methodius a
woman, but all of the speakers are women as well. If in Christ there is “neither male nor female,” then it follows
that women can be philosophers too, and Methodius makes this seem quite
natural, without, however, denigrating the social norm of women as mothers
(Logos 2, Theophila). In that the
backdrop to Plato’s Symposium is the theatrical contest (Sider), the
work is deeply embedded in Athenian social and legal practice. Methodius in his Symposium has
changed this theatrical motif to one of athletic contest and combat in the
arena. This is more than mere metaphor,
because the definitive speaker, Thecla, is on her way to martyrdom precisely
because Christianity is illegal.
Christian ascetics may formally transgress the law of the Empire, but
they do not transgress philosophical law which preceded empire.
By following Plato not
only in form and diction, but more importantly in theme, and by carefully
selected reversals, Methodius has given a pagan intellectual, philosophical,
and literary pedigree to what is really a social revolution, a change from the
primary Greco‑Roman familial duty of generation to Christian chastity in
its many forms. By demonstrating
logical continuity with Classical Greece, he gives legitimacy to novel
practices which will grow more frequent in Late Antiquity and have far‑reaching
legal consequences.
Canonists Construct
the Nun?: Canonical Legislation about Women
Religious in
Merovingian and Carolingian France
Catherine R. Peyroux
Duke University
This paper surveys the
canonical legislation concerning women religious in the Frankish realms from
the Merovingian and Carolingian eras to discover how canon law and religious
legislation in general depict the role of professed women in the church. Two, perhaps mutually exclusive views are
now current in the scholarly literature on Frankish nuns in the early middle
ages: the first is that early medieval religious women presented figures of
remarkable spiritual authority and practical freedom (Wemple, McNamara); the
second is that from the time of Caesarius of Arles onwards, Frankish women
were constrained by tightly‑ bounded monastic rules that emphasized
strict claustration, rules enforced by the legislation made by Merovingian
bishops in council (Hochstetler).
This paper seeks to
explore the questions raised by the disparity of these views by attending
systematically to the prescriptive and proscriptive pronouncements about the
role of monastic women in the church as it was enshrined in Merovingian
times. In so doing so I shall pay special
attention to the legislation that touches on women’s capacity to mediate the
holy and to those rulings that deal with the separation of the sexes in
monasticism; in turn I shall compare the picture of religious women that is to
be derived from early medieval canon law with the evidence for monastic women’s
sacral authority as it is portrayed in narrative historical and hagiographic
sources from the period.
SESSION VIII. The
Law in Barbarian Europe: Setting the Stage
Chair: John Eadie
(Michigan State University)
From Alaric to the
Arab Conquest:
Visigothic Efforts to
Achieve Romanitas
Karen Eva Carr
Portland State
University
The establishment of
the Visigoths, first in southern France and then in the Iberian Peninsula, has
been seen as the beginning of the modern nation‑state, and perhaps from
our point of view it was. From the
point of view of the Visigoths, however, no such nationalistic sentiment
appears. If the Goths’ intentions were
to promote a national identity for their kingdom, one would expect the
Visigoths to distance themselves from Romanitas, and to become ever more aggressively
Germanic, to emphasize the contrast between the two states and demonize the
enemy. However, the reverse is
true. Consistently, from Alaric to
Recceswinth and beyond, the Visigothic kings and the aristocrats under them
chose instead to emphasize their own Romanitas, and to present any conflict
with Byzantium as a civil war within the Roman world, modelled on the battles
between Constantine and Galerius, not as a fight between Romans and Goths. Analyses of coin types, architectural
styles, religious doctrine, court ceremonial, literary technique, and legal
doctrines all reveal the same sense of identity with Rome. If the Romanitas we see in the Visigothic
kingdom does not much resemble the Romanitas of Augustus, that is not very
surprising: not being historians, they modelled their Romanitas not on the
Roman past, but on contemporary Ravenna and Constantinople, which they
resemble much more closely.
Law and the
Traditional Practice in Early Medieval Law‑Codes
Dmitri N. Starostine
University of Michigan
An interesting example of the interpretation of law in early
medieval Europe is regulations dealing with the institution of guarantee (fideiussio). The deterioration and decay of the Roman
imperial structure greatly affected the patron‑client relationship, and,
consequently, the institution of guarantee.
Article 19 of the Burgundian law (c. 517) deals with the institution at
length. Other law codes, such as Law of
the Chamavian Franks, provide additional details. To appeal to reciprocal help in monetary obligations was and
is a traditional practice in every society.
The Roman society was not different.
If an obligation fell on the number of people, they chose one of them,
probably the most affluent, who was able to pay the required sum, or at least
to guarantee the payment by the material pledge. Roman legislation described the way the reciprocal obligations
were to be entered in great detail.
Roman society had the mechanisms of enforcement which allowed to make
the joint debtors fulfil not only the obligations towards the creditor, but
also towards each other. With the fall
of Roman imperial structure many mechanisms of enforcement ceased to
exist. The joint obligations,
therefore, lost the key factor on which they hinged. They began to depend only on the goodwill of the parties. The suretyship allowed the debtor to avoid
responsibility if a guarantor fulfilled his obligation. The situation created a serious problem
because the debtor could avoid responsibility at all. The royal administration of the Burgundian
kingdom attempted to change this practice.
The guarantor, according to the traditional practice, almost
completely took over the responsibility of the debtor. The Burgundian Code attempted to
introduce the practice according to which a guarantor was only responsible
for the fine for the debtor’s default.
It established the amount of this fine, which ought to be one third of
the debt. According to the Burgundian
law, to bear the responsibility of the debtor was optional for the
guarantor. Although he might not be
responsible before the law, he was responsible because of his family or
personal ties. Furthermore, he only had
to pay the fine in the case of the debtor’s default. The article, therefore, absolved the guarantor from almost any
responsibility. According to the norm
of the law, however, the surety was only obliged to monitor the debtor’s
payment, and to escort the material pledge to the creditor in case of a
default. Burgundian law, therefore,
allowed the traditional practice to exist, but it did not support it with its
sanction. The traditional practice
might continue to exist only because of family and personal connections.
The intent of the legislation imposed a new principle of guarantee,
according to which the principal debtor was responsible in the first
place. The law absolved the guarantor
from mandatory payment for the debtor.
The Burgundian Code thus freed a patron, who usually became a
guarantor, from the obligation to substitute the debtor. The law, however, allowed both the new norm
and the traditional practice to exist.
The legislator attempted to introduce a new norm by supporting it with
the legal sanction without the explicit prohibition of the old norm. The intent of the legislator did not impose
limitations on the traditions of the Burgundian society. Rather, it presented an alternative for the
traditional practice.
SESSION IX. The Law
in Barbarian Europe: Provincial Law
Chair: Scott Gwara
(University of South Carolina)
Duplex ius:
The Survival of Romano‑Byzantine and Customary Law
on Dacian/Romanian Territory
Linda
Ellis
San Francisco State
University
and
Marius Tiberius
Alexianu
Alexandru I. Cuza
University, IaÕi, Romania
The operation of
multiple legal systems is a persistent theme throughout all historical periods
on Dacian/Romanian territory. As a
result of the expansion of the Roman Empire, and the subsequent influences of
the Byzantine Empire, the Ottoman Empire, the Habsburg Empire, and the USSR,
two or more systems of law were operating at any point in time among Dacian‑
and later Romanian‑speaking populations. The establishment of the Roman province of Dacia, after Trajan’s
wars (101‑102, 105‑106), divided the native Dacian population into
two spheres: those under Roman control and those beyond this artificial
boundary (i.e., non‑Roman or “free” Dacia)‑‑a situation which
was also reflected in the law. Despite
the fact that Roman law was applied in the new province, it does appear that a
dualistic legal system, which included customary law, was in force in Roman
Dacia.
After the Roman
withdrawal from this north Danubian province by AD 275, we have only indirect
evidence about the survival of customary law in the post‑Roman era until
the establishment of the medieval Romanian states (14th century)
when legal traditions from Late Antiquity entered the written record. In the Romanian provinces of Moldavia and
Wallachia, a dualistic legal system, or duplex ius (after D. Cantemir), continued based on both customary
law (ius Valachicum) and written law which derived from the Romano‑Byzantine
juridical system. However, in the
province of Transylvania, Romanians remained subject to customary law, while
the Habsburg Empire applied its own legal system to the Saxons and Hungarians.
The survival of both customary law and Romano‑Byzantine law on
Dacian/Romanian territory is the focus of this survey, using archaeological,
linguistic, historical, and ethnographic evidence. In particular, the survival of a pre‑Roman custom
concerning the establishment of extra‑kinship relationships (înfr|Ûire =
adoptio in fratrem), in spite of Romano‑Byzantine legal
prohibitions, is illustrative of the longevity of ethnolegal traditions as
well as for the foreign political interpretation of customary law.
Roman, Native, and
Barbarian:
Law and Society on the
Late Roman Frontier
Mark Greco
Boston University
The period 400‑1000
AD has often been referred to as “the birth struggle of Europe”, and rightly
so. These crucial centuries witnessed
the arrival of many of the peoples that today represent the eclectic mix of
ethnic groups comprising modern Europe.
During this tumultuous era, the political and sociocultural face of
Europe was transformed both by the dissolution of Roman political administration
in the West and by the formation of new cultural identities.
The Valeria
Archaeological Survey Project is engaged in multidisciplinary, dissertation‑related
research designed to shed light upon this “dark age” of European
ethnogenesis. The project, which takes
its name from the former late Roman province of the region now occupied by
modern Hungary, is aimed at investigating the changing form, function, and
distribution of the rural and urban settlements of Eastern Europe during the
period AD 400‑900. The current
program of research attempts to consider what impact, if any, the movement and
subsequent settlement of migratory peoples (such as Gothic foederati,
Huns, Avars, Slavs, and Magyars) may have had on the socioeconomic
infrastructure of late antique Hungary.
This paper presents
the results of the first two seasons (1995‑1996) of preliminary work
conducted by the Valeria Archaeological Survey Project, describes our
methodology, and attempts to address the major practical and theoretical
questions raised by our research.
Particular attention is paid to the role which survey archaeology can
play in supplementing our understanding of rural/urban interaction, landuse,
and settlement pattern distribution as expressions of cultural identity in
early Medieval Europe.
Emphasis is placed
upon the extent to which the Roman legislative structure may have been forced
to adapt in the face of the arrival of “new peoples” during the fifth and sixth
centuries AD. What were the legal
parameters governing the relationship between Roman, native, and newcomer? The creation of such legal categories as
“foederati” seems to point to a new survival strategy for the provinces along
Rome’s increasingly porous frontiers.
To what extent did the interaction between “barbarian” and “Roman”
sociocultural systems serve both to ensure the continuity of Roman legal
traditions and guarantee a place for the newcomers? The archaeological evidence seems to indicate that both change
and continuity were necessary in order to accommodate the socio‑political
realities of late antique Hungary.
The Legacy of Roman
Law in Post‑Roman Britain
Michael Jones
Bates College
This paper will explore
three related subjects:
1. Britain in the late Roman law codes
2. The legacy of Roman law in early medieval
British Latin works such as Gildas’ De excidio, the Historia
Brittonum, and St. Patrick’s works.
3. The influence of Roman law in the earliest
Welsh law codes.
Another related
question is the differing influences of West Roman vulgar law on the Anglo‑Saxon
law codes compared with the earliest surviving Welsh law codes.
SESSION X. The Law
in Barbarian Europe: Landholding and Cultivation
Chair: Pamela G. Sayre
(Henry Ford Community College)
The Farmer, The
Landlord, and the Law in the Fifth Century
Boudewijn Sirks
University of
Amsterdam
A letter (Ep. ad
Salvium), presumably written in the early fifth century by an African
landowner, mentions farmers who are threatened by another landowner, the
addressee Salvius, who wants to take them away by a summary proceedings to his
lands to have them work there. These
farmers appear to have been coloni originales or originarii,
i.e., coloni who had put themselves under the patrocinium of
landowners. Why did farmers enter this
bond? Partly it was necessitated by circumstances. We see the same phenomenon in Gaul (attested by Salvianus
Massiliensis, c. 400‑468/470) and Egypt (papyri from the sixth century).
Financial distress, particularly caused by fiscal claims, was the cause
for their taking up the colonate. Since
later texts still mention the colonate, for example Theoderic’s Edict, this
legal figure was retained in the barbarian kingdoms. Yet was the protection as offered by the Roman law also still
available to them? It would seem as if
the transition to Barbarian Europe deteriorated their position, contrary to the
East where the emperors alleviated their hard‑pressed existence.
Æthelberht’s Læt
and the Frankish Leto
Lisi Oliver
Louisiana State
University
The 12th-century
Textus Roffensis contains a collection of early Anglo-Saxon laws, of
which the first is attributed to Æthelberht of Kent, who reigned ca.
580-616. If this late collocation
purporting to be a copy of Æthelberht’s laws can be considered genuinely
archaic, it provides us with a precious view of Germanic common law emerging to
become specifically Anglo-Saxon. Yet
problems of interpretation often arise, among them the difficulty in the
definition of hapaxes: words which occur in the corpus of Old English only in
this text. One such term is that of the
læt, mentioned in Æthelberht “21-21.2.
The term, which clearly denotes a stratification of rank, has been the
cause of some scholarly disagreement.
First, Chadwick compares it to the “Teutonic-Latin” forms letus
and leto from the Salic laws and lazzus in Old High German, with
the basic meaning of “freed slave”, with which view Liebermann and Seebohm both
concur. Second, Vinogradoff (echoed by
Stenton) adds to this class the “remnants of the Romano-Celtic population of
Kent.” Finally Myres postulates that
the læts are the remnants of the Germanic guardians of the Saxon Shore.
Contemporary
scholarship has emphasized the close connection between the Frankish and
Anglo-Saxon societies (see, e.g., recent work by Wood, Wormald and Richards,
among others). This paper examines the leto
clauses in the Salic laws both for content and context, to draw a clearer
picture of what this rank meant in the Frankish territories. I then compare this to Æthelberht’s læt,
and, further, evaluate the two other competing definitions, both in relation to
societal position and to wergeld.
Germanic Law and
Barbarian Diet
Kathy Pearson
Old Dominion University
The various Germanic
law codes provide considerable evidence for the diet of barbarian populations
in Late Antiquity. Salic law, for
example, provided highly detailed legislation dealing with offenses against
livestock: Titles 2 and 3 contain some thirty‑four provisions covering
swine and cattle. Other, less detailed
titles record the appropriate fines levied against those who committed offenses
against the fields and orchards. The
legislation of the Alamans, Bavarians, and Lombards also contained food‑related
legislation. When used in combination
with other sources of information, such as archaeological data, the laws offer
much insight into barbarian foodways.
This paper will explore some ways in which law, sometimes assisted by
other disciplines, can assist in unravelling the puzzle of dietary
practices.
The laws can provide
indications of food preferences. Salic
emphasis on swine and cattle suggests a preference for these meats, and
archaeology confirms that this was true of many barbarian communities. Wergilds may indicate rarity and
desirability: honey, difficult to gather and yielding limited amounts per
hive, was one such luxury foodstuff.
The laws may reveal something of animal breeding and herding strategies
as well as planting programs for grains and legumes. It is also possible that the laws offer insights into the
workings of animal ownership within communities. The very high wergild (suggestive of great value) assessed for
damages against herd bulls may indicate the cost of acquiring and maintaining
such animals. Ownership of such beasts
may have been one indication of relative status of specific households, and
hence indicative of social stratification.
The laws may not tell
us much, however, about whether communities practiced “sedentary pastoralism”
or devoted equal energy to tilling the soil.
The greater stress placed on livestock in the laws does not necessarily
indicate that crop growing was of secondary importance, but that the range of
possible offenses against livestock required more detailed description. Unlike plant foods, which were valuable only
when ripe for consumption, livestock could serve as food at any point in its
life cycle. Nor do the laws suggest
that crop‑raising was substantially more burdensome than animal husbandry.
SESSION XI. The
Development of Canon Law
Chair: Thomas Banchich
(Canisius College)
“Spoiling the
Egyptians”: Divine and Human Law in Late Antiquity
Gillian Clark
University of
Liverpool
Patristic exhortation
usually assumes that secular law derives its authority from natural law, which
is divinely given and common to all human beings; that natural law may, within
limits, have different expressions in different times and places; and that
Christians live by a higher moral standard than Roman secular law. Christians neither violate secular law by
committing crimes, nor take advantage of its concessions to human weakness,
for instance the abandonment of newborns and the toleration of male
adultery. But sometimes, as opponents
of Christianity pointed out, the Christian scriptures present the heroes of
Israel as criminal by the standards of Roman law: polygamists, murderers,
violators of property or of people.
Christian exegetes developed a range of strategies for dealing with
this problem while maintaining the authority of Scripture. One rested on a modified cultural relativism
combined with a theory of moral progress: “an eye for an eye” is an improvement
on vendetta; polygamy was once necessary for the survival of Israel, and polygamous
patriarchs who had wives only for procreation were actually more chaste than a
monogamist who desires his wife.
Another was to argue that some Scriptural examples teach us what not to
do, and show how even God’s anointed rulers may fall into sin.
But difficulties
remained, and looting in Egypt ─ traditionally,
“spoiling the Egyptians”
─
is a powerful example. Moses was the
leader chosen by God to guide Israel to freedom; Moses was also the basis of
Christian claims that scriptural wisdom was older and more authoritative than
Plato or any other non‑Greek cult (especially the Egyptian religion) from
which Plato had learned his philosophy.
But Moses was a murderer; it was on his orders that the Israelite ex‑slaves
took valuable goods from the Egyptians, their former masters; and Moses acted
in accordance with God’s command. How
could he, or anyone, be sure that God had commanded an action which violated
moral law? Why would God do so? Augustine’s various discussions of divine
and human law are particularly interesting because his rhetorical training was
intended for the law, and his closest friend, Alypius, was a legal assessor;
because he had to deal, personally and as a bishop, with Manichaean attacks on
the morality of the patriarchs; and because, as a bishop, he had to make
judgments in legal cases, seek legal protection for his people, and give
pastoral advice where human law seemed clearly in conflict with divine law, as
in the obvious case of soldiers and magistrates who had a duty to take life.
Proof and Reproof: The
Repertoire of Confrontational Bishops
Kevin Uhalde
Princeton University
The precise sphere of
jurisdisction commanded by bishops in fifth‑ and sixth‑century
Western Europe, particularly in opposition to secular judges and kings, and the
practical means and motivations that directed their involvement in legal
matters, are difficult to define. This
paper brings the major themes of several papers from the 1995 conference into
the realm of law by focusing on two sixth‑century bishops: Nicetius of
Lyons and Nicetius of Trier, “who never honored the persons of the great but
feared God alone.” They are two among
many ecclesiastical persons who demonstrate that the division between the
religious and the secular can at times be both historically and
historiographically constrictive.
Specifically, the notion of the decline of the episcopalis audientia
at the end of the fourth century obscures the importance of “unofficial”
arbitration or “dispute settlement,” which is ubiquitous in the literary
sources, and brings the church into consideration of vulgar law. The theme of beati pacifici created
an image of an official church policy of peace that overshadows other, more
compelling motives for settlements under episcopal auspices. And “official” means of discipline at
bishops’ disposal, such as excommunication, can themselves be historicized in
order to understand better just how effective they were against clergy, laity,
and especially kings.
The Impact of Law and
Social Customs on the Development
of Syriac Christian Canon Law in the Sasanian Empire
Victoria Erhart
Catholic University of
America
The canon law of the
Syriac Church in the Sasanian Empire developed in conscious relationship to
events and developments in ecclesiastical history of the Church in the Byzantine
Empire. Using the Synodicon
Orientale as the base text, this paper will first trace the development of
some of the idiosyncratic canons from the Syriac Church in the Sasanian
Empire. It will also examine the impact
Sasanian social customs and Zoroastrian religious sensibilities concerning
celibacy and marriage had on the development of canons concerning married
clergy, tracing the development from canons which allowed for married clergy in
the lower ranks at the Synod of 486 to later canonical insistence on married
clergy for all ecclesiastical ranks from deacon to bishop. It will consider how canon laws concerning
burial rituals were reshaped in the face of Sasanian cultural opposition to
standard Christian practices.
Insofar as information
regarding Sasanian legal codes and structures can be ascertained, particularly
with respect to the legal reforms initiated by Shah Khusro I Anushirwan “the
Immortal” (531-579), This paper will
examine the legal status of the Christian community as an officially protected
though intermittently persecuted minority within the Sasanian Empire. It will also examine changes in the
relationship between the Christian community and the provincial administration
as a result of the Islamic Conquest of the Sasanian Empire by the mid-seventh
century.
SESSION XII.
Ecclesiastical Courts
Chair: Carolyn Snively
(Gettysburg College)
Legal Privilege and
the Ecclesiastical Courts
in Late Antique North Africa
Leslie Dossey
Harvard University
In 4th and
5th‑century North Africa, Catholic bishops, notably Optatus of
Milevis and Augustine of Hippo Regius, complained about schismatic clerics
beating well‑born Romans in order to protect the humble members of their
congregations. Modern historians have
attributed these acts to peasant millenarians ─
the Donatist “circumcelliones.” In the
new letters of Augustine, we find Catholic clerics flogging laymen with
Augustine’s approval. In this paper, This paper argues that Christian clerics of
both sects were inflicting flogging as a type of judicial punishment when they
were unable or unwilling to correct criminals in any other way.
In the narratives of
clerical flogging, clerics believe themselves to be punishing secular crimes,
not imposing a penance or merely provoking riots. Clerics flogged a magistrate when they found him raping a nun in
their church. In another case,
Augustine advised a local priest to publically beat a Jewish man for insulting
his mother. During Vandal rule, a rural
Arian priest flogged a man of
senatorial status who had been inciting sedition against the king.
Clerics faced
prosecution for these acts mainly when they flogged a person whose status
should have protected him from corporal punishment. Corporal punishment of
clerics and humble parishioners does not appear to have surprised anyone. Eastern canons against clerical beating were
unknown in North Africa. The letters of
Gregory the Great suggest that Italian bishops also flogged clerics and low‑born
criminals.
The clerics of the
African church were a problem because they challenged the physical immunity of
the Roman elite. To understand why,
this paper will examine criticism of legal privilege in popular North African
sermons.
Evidence for the
Audientia Episcopalis
in the New Letters of Augustine
Noel E. Lenski
University of Colorado
In 318 Constantine
granted bishops jurisdiction to preside over civil cases as iudices. This legal tool must have had tremendous
effect in elevating the social status of bishops in the late Roman world. Even so, direct evidence for the audientia
episcopalis has proven elusive; despite extensive work, some scholars
continue to doubt the exercise of legal authority by late Roman bishops. This paper will enlist the new letters of
Augustine as evidence for the function of the audientia episcopalis and
use those letters to help explain why it has proven difficult to pin down. Legal material abounds in the new
letters. Even in epistles not directly
related to law, Augustine employs legal vocabulary (Ep. 3*). His knowledge of the law, however, stretches
well beyond the lexical. The new
letters reveal that he kept records of imperial constitutions (Ep. 10*,
24*) and even solicited decrees from those in contact with the court of
Honorius.
Ep.
10*, for example (cf. Ep. 22*), seeks lighter penalties for those who
facilitated slave‑trading in kidnapped children. Constantine had legalized the locatio
conductio operarum of newborn ingenui, yet his laws left a number
of questions unanswered, especially on the status of children enslaved by
force. Augustine poses several queries
on the issue to the legal scholar Eustochius (Ep. 24 *), questions which
reflect not his ignorance of the law (pace Lamoreaux in JECS 3 [1995]:
159) but his insight into the need for its clarification through juristic
interpretation.
More interesting than
Augustine’s knowledge of civil law is the question of how and when he chose to
apply that knowledge to disputes.
Though Honorius confirmed episcopal jurisdiction over all civil cases
in AD 408, the contemporary new letters demonstrate that Augustine’s legal
scope was in fact quite circumscribed.
In the new letters, he confines his legal activity to issues directly
related to the Church or to Christian morality (Ep. 7* [depositum
with the church at Sitifis]; 8* [emptio venditio to bishop Victor]; 9*,
20* [below]; 10*, 24* [above]).
Moreover, he is reluctant to allow legal disputes to proceed to court
when they involve Christians and particularly members of the clergy (Ep.
7*, 8*, 9*, 10*, 20*, 24*). Above all, he is willing to blur the boundary
between civil and ecclesiastical authority.
Ep. 9* demonstrates that this happened in part because the audientia
episcopalis had jurisdiction over matters of both civil and ecclesiastical
law. Augustine commonly adjudicated
cases on the sexual conduct of his clergy (cf. Ep. 13*‑16*, 18*),
yet Ep. 9* shows his illegal cross‑application of canon law
principles to the sexual conduct of a layman.
Ep. 20* demonstrates further that this blurring occurred because
Augustine’s mechanisms for enforcing his decisions were rooted in ecclesiastical
rather than civil authority. Here, his
punishment of the civil offenses of Bishop Antonius through excommunication reveals
a readiness to intermingle civil and ecclesiastical principles. Scholars should learn from this blurring of
boundaries more about where to look for evidence on the audientia
episcopalis. Such evidence is in
fact abundant; it must be sought, however, based on new criteria for what
constitutes the law which take into account both civil and ecclesiastical
norms.
SESSION XIII.
Bishops, Travel, and Canon Law
Chair: Robert B.
Patterson (University of South Carolina)
Pragmatic Application
of Proto‑Canon Law: Episcopal Translation
Mary E. Sommar
Syracuse University
In 339 CE, Athanasius,
saint and sometime bishop of Alexandria, delivered a passionate condemnation of
his enemy, Eusebius of Nicomedia, citing as evidence of Eusebius’ perfidy the
fact that he had left his position as bishop of Nicomedia and transferred, or,
to use the technical term, translated, to the see of Constantinople. Yet this same Athanasius, writing several
years later, praised his friend and patron Eustathius, entirely neglecting to
mention that this same Eustathius had himself recently translated from Beroea
to Antioch. Canon 15 of the Council of
Nicea in 325 CE says that “the custom, if it is found to exist in some parts
contrary to the canon, shall be totally suppressed, so that neither bishops nor
presbyters, nor deacons shall transfer themselves from city to city.” This canon, in the original Greek, is
somewhat ambiguous, but the best interpretation is that clergy were not to
move from one diocese to another at whim.
It suggests, however, that when the larger church (also not clearly
defined) felt that a transfer would serve the greater good, such a move was
permitted.
Later councils passed
various canons concerning the practice of episcopal translation, but there was
no universal agreement among the various Christian communities about what
constituted forbidden vs. permitted
behavior in this regard, nor about what the appropriate procedure to be
followed by a bishop effecting such a transfer. Further, local churches varied in their interpretation of these
canons, and were quite selective about which canons they chose to enforce. The bulk of the scholarship on canon law
approaches the major questions from the standpoint of the Gratianic and later
literature which assumes a church essentially united in belief and practice,
centered in the Roman papacy, and eager to define a normative code of
ecclesiastical organization and discipline.
This approach, however, sometimes does not provide room enough to
accommodate the broad range of religious and cultural expression which found
themselves under the banner of Christianity in the late antique period.
This paper uses the
example of episcopal translation to examine how administrative regulations and
policies were normalized in the developing Christian church. For centuries. local custon prevailed over any so‑called “ecumenical”
conciliar pronouncements. And even
local custom was subject to pragmatic rather than dogmatic interpretation. Although the church seems to have agreed
relatively early on about many basic doctrines, the details of ecclesiastical
law took centuries to find common acceptance.
Bishops, Letters of
Travel, and Canon Law in Late Antiquity
Timothy M. Teeter
Georgia Southern
University
The eleventh canon of
the council of Chalcedon (451) states: “We have determined that all the poor,
and those who need help, shall after examination travel with only letters of
peace (epistola eirenika) from
the Churches, and not with letters of recommendation (epistola sustatika),
because it is right that letters of recommendation should be given to those
persons only who are in high estimation.”
This distinction
between the epistole sustatike, which was intended to admit clergy and
men of distinction to communion, and the epistole eirenike, intended to
meet the physical needs of the more humble, is clear in the canons of the early
councils. It appears as early as the
Council of Elvira in 306 and continues in the canons of other councils into the
middle ages.
Although this
distinction has long been clear to students of the canons, it appears to have
escaped papyrologists, just as the results of papyrology appear to have been
missed by students of the canons. Since
the early part of this century, several
published papyri have been identified as a peculiar Christian version of the epistole
sustatike, the letter of recommendation (or introduction), although they
bear little resemblance to other letters of recommendation either among the
papyri or in the epistolary manuals of antiquity. By now these papyri number at least nine, including P. Oxy.
VIII 1162; P. Oxy. XXXVI 2785; and
P. Oxy. LVI 3857.
Although spread out over a period of perhaps two hundred years, from the
third to the fifth centuries AD, they closely parallel each other and are often
word for word the same.
A careful comparison
of the language of these letters and the canons shows that such letters were
not, according to the canons of the church, letters of recommendation, but
letters of peace or pacific letters.
Moreover, the canons demonstrate that this type of letter was not
limited to Egypt, but was an empire‑wide phenomenon, used all over the
Mediterranean world for centuries. This
is a rare instance in which the law of the church and its impact on the lives
of real people is reflected in actual documents from antiquity.
NOTES