Bryn Mawr Classical Review

Bryn Mawr Classical Review 2003.01.23

Ralph W. Mathisen, Law, society and authority in late Antiquity.   Oxford:  Oxford University Press, 2001.  Pp. 324.  ISBN 0-19-924032-9.  $72.00.  

Contributors: Antti Arjava, Gillian Clark, Leslie Dossey, Victoria Erhardt, Geoffrey Greatrex, Judith Evans Grubbs, Jill D. Harries, Michael Jones, Noel E. Lenski, Ralph W. Mathisen, John F. Matthews, Kathy F. Pearson, Catherine R. Peyroux, Boudewijn Sirks, Hagith Sivan, Dennis Trout


Reviewed by Jan Prostko-Prostynski, Poznan University (jprostynski@hotmail.com)
Word count: 4070 words

The book under review contains 16 revised studies which, except for the essay of its editor, were presented at the second biennial "Shifting Frontiers in Late Antiquity" conference held at the University of South Carolina in March 1997. These texts discuss various aspects of the interaction between law and society during the period of late Antiquity, which according to the editor covers the period c. 260-640. The authors attempt to say to what extent the law shaped the world of late Antiquity and in what way the evolution of law had an influence on its transformation. The studies focus on the interaction between law and society and offer new insights into many aspects of the influence of social, religious and political changes on the creation of a new law and -- since in the opinion of Mathisen (hereafter Ma.) "the law was an institution that had the potential to impact on virtually every aspect of public and private life" (p. 1) -- the influence of legislation on society. This is not all, however. This book's aim is also to demonstrate new ways in which "the law" may be used as a source for research into the many transformations arising at that time.

In the first study ("Interpreting the interpretations of the Breviarium", pp. 11-32), John Matthews (M.) discusses the connection between the Theodosian Code (CTh) and the Breviarium, otherwise known as Lex Romana Visigothorum (LRV), published by Visigothic king Alaric II in 506. The subject of the author's interest is the interpretations in various legal texts commenting on the LRV. As is known, the LRV is the main source for books 1-5 of the CTh and the question arises what was the nature and function of the interpretations that followed the laws taken over from the CTh into the LRV. M. shows that the interpretations "do everything that commentators are expected to do; they expound, summarize, give the meaning of terms, abbreviate or expand as seems appropriate" (p. 28). M. also poses the question whether the interpretations were a part of an earlier tradition of juristic comments on the CTh or whether they were specially prepared for the LRV. He argues strongly for the latter option, though he does point out that they are not mutually exclusive (p. 14).

In the next study, however, Antti Arjava proposes a different view in the matter of the preparation of the interpretationes (p. 34 n. 4), admitting that they were written at several stages and were appended to the entire CTh and not just to the Breviarium. We know that such interpretations were written earlier: e.g. the commentaries to the CTh books 9 to 16 (so called antiqua summaria) preserved in the Codex Vaticanus reginae 886.1 M. does in fact quote the article by F. Wieacker,2 in which the view of the dependence of the interpretations of Breviarium upon antiqua summaria is developed but rejects it in one sentence, omitting the valuable discussion in the book by D. Liebs (Die Jurisprudenz im spätantiken Italien. 260-640 n. Chr., Berlin 1988, 183-188, against Wieacker). We may mention also the works of H. Nehlsen on the LRV.3

Antti Arjava's study ("The survival of Roman family law after the barbarian settlements", pp. 33-51) is devoted to the functioning of Roman family law after the late fifth century in post-Roman Western Europe. The author examines in particular the surviving laws concerning paternal power (patria potestas) and the position of women. A. emphasises that the sources throwing some light on this issue are not particularly plentiful, and so he analyses mainly the codes of law: Codex Euricianus (CE), LRV and the interpretationes attached to it; Edictum Theodorici (ET) published in "Ostrogothic" Italy; Lex Burgundionum (LB); Lex Romana Burgundionum (LRB); Frankish formulae and other texts. He concludes that, after the fall of the imperial government in the west, Roman family law survived well the political ethnic transformations under the governments of the new rulers of these territories. He notices quite correctly and importantly that, if people in forgotten Alpine valleys paid attention for so long to the norms of Roman law, it is difficult to presume that they would not observe them during the period when the imperial powers existed. It is hard to argue with the author's proposals. Nonetheless it needs to be pointed out that the picture given would be clearer had the author made a systematic comparison of the state of Roman family law in each of the new kingdoms separately to grasp better the existing difference between them.4

Michael E. Jones ("The legacy of Roman law in post-Roman Britain", pp. 52-67) set himself the especially difficult task of answering why there are no traces of the influence of Roman law in Roman and post-Roman Britain. The author proposes an unusually humble role of the provinces of Britain in the legal life of the Roman Empire and presents certain explanations for this fact while emphasizing that the lack of proof permits only speculation (p. 55). It is equally difficult to discover a direct influence of Roman law on the medieval Welsh laws, often called simply the 'Law of Hywel' (Lex Hoeli; Cyfraith Hywel) and on Anglo-Saxon laws. Only in the "Celtic" west of Britain are there traces of Roman legal traditions. This concerns the records of land transactions (charters) arising during the period of the VI to XI century. Although they are not preserved in the form of contemporary records but in the form of narrative descriptions in some early medieval texts, they derive from genuine earlier documents. Even in this case, the author suggests, "the charters were a post-Roman import into Celtic areas rather than the product of practice that survived continuously from the Roman period" (p. 60). According to him, the break with Roman legal tradition and customs occurred in a sudden, revolutionary manner in the 5th century, for which he finds confirmation in passages of Gildas (De excidio Britanniae 13.1) and Zosimus (6.5). The author finishes his argument with the observation, "if Roman law did disappear so quickly with scarcely a trace, one might wish to reconsider just how 'Romanized' Britain ever was in the first place" (p. 67). This is a very daring hypothesis and even a risky one, primarily dependent on the passages cited from Gildas and Zosimus. Zosimus 6.5.2-3 has long been the subject of discussion, which the author does not cite, since the translation of Ridley. More convincing is the interpretation of E. Chrysos (Die Römerherrschaft in Britannien und ihr Ende, BJ 191, 1991, pp. 262-275), which shows that the image of Romans in Britannia suddenly abandoning Roman law in 409 and replacing it with a Celtic one is ahistorical. It is possible that Zosimus had in mind not all law but just Roman public law and only the part published after 409/410.

Jill D. Harries ("Resolving disputes: the frontiers of law in late Antiquity", pp. 68-82) examines the lex scripta and consuetudo. This study demonstrates, on the basis of several incidents (the Lycopolis dialysis from the year 481, the arbitration of bishop Plusianon from 330s, and the famous arbitration of Ambrose of Milan in the late fourth century of the quarrel of the bishop Marcellus, his brother Laetus and their sister) how far local customs, arbitrations and unwritten laws affected the operation of the law itself. Roman lawyers widely accepted the importance of consuetudo but, it seems, only in those cases where the written laws were not in use or had nothing to say. There do not seem to be good reasons to suppose that 'custom can change [written] law' (p. 68). H. emphasises that the flexible use of words such as iudex or arbiter in the late Roman terminology of jurisdiction in civil cases demonstrates that the differences in practice between the role of arbiter and that of iudex were at times not great. To understand the law of late Antiquity one must take into account the obvious fact that not all law is written.

Noel E. Lenski ("Evidence for the audientia episcopalis in the new letters of Augustine", pp. 83-97) attempts, on the basis of the letters of saint Augustine published in 1981, to cast a new light on the functioning of the ecclesiastical courts. The author argues that in seven of these letters discussing legal problems, six concern themselves with ecclesiastical or clerical matters and only one has no reference to the church. According to L., this evidence confirms the data in the law codes, suggesting that the bishop could have had authority over any civil case but had exclusive jurisdiction over cases involving clerics. These new letters, alas, have very little to say on judicial procedure in episcopal courts but do show that saint Augustine and other bishops had more formal legal training than suggested hitherto. The enforcement of episcopal decisions occurred mainly through excommunication, but in certain instances bishops could use corporal punishment as an alternative. It appears that only to a small extent could they count on the support of the state in making their decisions legally binding. Saint Augustine was convinced that his secular-legal activities were an integral part of his pastoral responsibilities but thought of them as a burden. In this particularly interesting study there is only one important point that raises doubts, namely when the author argues that, "the late Roman law codes indicate that all cases against clerics, whether criminal or civil, had to be referred to episcopal courts, that is, all bishops enjoyed a privilegium fori over their own clergy" (p. 85). As support for this hypothesis, L. cites (p. 85 n. 8) the following laws: CTh 16. 2.12 (from 355); Sirm. 3 (from 384); Sirm. 15 (from 412) and 6 (from 425). A careful reading of these laws does not confirm this theory. CTh 16. 2. 12 relates only to bishops, and the remainder clearly speak only of the privilegium fori of bishops over the clergy in ecclesiastical matters. When it comes to civil or criminal cases, on the strength of the statute published in 399 in the Western part of the empire, none of these could have been judged by a bishop (CTh 16. 11. 1: Impp. Arcad(ius) et Hon(orius) AA. Apollodoro proc(onsuli) Afric(ae): Quotiens de religione agitur, episcopos convenit agitare; ceteras vero causas, quae ad ordinarios cognitores vel ad usum publici iuris pertinent, legibus oportet audiri). It is not possible to comment further on this issue here but it would appear that before saint Augustine's death the privilegium fori of bishops over the their own clergy in civil and criminal cases is rather doubtful, though it is not possible to question their attempts to attain such privileges.

The study of Leslie Dossey ("Judicial violence and the ecclesiastical courts in Late Antique North Africa", pp. 98-114) is concerned with the use and meaning of court violence "in ecclesiastical contexts" in North Africa in the IV and V centuries. D. emphasises that according to imperial legislation only the secular powers were to perform necessary coercion at times of court procedure or after the announcement of the court's decision. The church was in theory against the application of force and corporal punishment against the clergy and by the clergy. It was only in the early medieval period that the western church began to entertain the possibility of meting out corporal punishment by clerics. Generally researchers argue also that the late Roman church did not adopt judicial violence, limiting itself to spiritual punishment. D. argues convincingly that in practice, clerics were more inclined to apply corporal punishment, especially beatings, than the church canons and secular laws allowed. Beatings and other bodily punishments were meted out in particular against monks breaking the rules of communal life in the monastery but also against lay men and women, above all in matters of heresy. D. concludes that there was a silent acceptance of corporal punishment by the church clerics and monks as well as those who had a low status but at the same time there existed a strong resistance in late Roman society, when the clergy tried to apply physical force against wealthy and influential people.

Victoria Erhardt's study ("The development of Syriac Christian canon law in the Sasanian Empire", pp. 115-129) analyses church legislation in the Sasanian empire relating to celibacy, marriage, and also property and inheritance, on the basis of the Synodicon Orientale, a collection of canons of the synods of the "Church of the East" for the period 410-775. E. outlines in brief the organisational development and the doctrinal and liturgical independence of the Christian church in the Sasanian Empire right up to the synod in Bet Lapat in April 484 (according to E. in 486), when a complete split with the Roman Church occurred with the acceptance of the Nestorian doctrine by the "Church of the East". In the end it "adopted a liberal view toward the marriage of clergy" (p. 119). E. explains, "celibacy was offensive to Zoroastrian sensibilities" (p. 118). E. then analyses in a systematic manner the canons of subsequent synods in terms of her own thesis. After the Mazdakite movement promoting a "common holding of women" appeared under the Shah Kavad I (488-531), the church forbade polygamy and marriage with non-Christians at the Synod of 544. In the VI century the growing richness and development of the Christian church's influence as well as the power of Christians in the Sasanian Empire and the political support for the Sasanians by the Byzantine emperors enabled the introduction of the church legislation in the field of civil jurisdiction, especially relating to matters of property and inheritance. E. suggests that this ecclesiastical legislation was viewed as "equally valid as the Sasanian civil law", which however appears unsatisfactorily documented. The assumption that Sasanian society at this time was "officially Zoroastrian" (p.118), is controversial. For another view, see e.g. J. Wiesehöfer (Das antike Persien, Düsseldorf-Zürich 1998, 266-289, esp. 266-268, 283, 286-287). E. exaggerates in contending that without the Synodicon Orientale, "we would know virtually nothing about the religious and social life of the eastern Christian" (p. 115) in late Antiquity.

Gillian Clark's intriguing study (" 'Spoiling the Egyptians': Roman law and Christian exegesis in late Antiquity", pp. 133-147) is devoted to a difficult but important issue for Christians living in the Roman Empire, defending some sections in the Old Testament that relate to the unjust conduct of the patriarchs contrary to the law of God. For one example of such an issue, C. chooses Exod. 3. 22 and 12. 35-36, which relates how Moses and the Israelites despoiled the Egyptians. C. shows how the Christian writers such as Philo, Irenaeus, Tertullian, Origen, and most of all, saint Augustine, using philosophical and legal arguments (with the aid of their legal training and knowledge of classical culture), attempted to defend the conduct of the unrighteous patriarch in their polemics with the pagans and the Manicheans.

The aim of the study by Geoffrey Greatrex ("Lawyers and the historian in late Antiquity", pp. 148-161) "is not only to demonstrate that during the late Empire there was a connection between trained forensic lawyers and the historian but also to show that this represents a change from the earlier Roman period" (p. 149). G. is therefore concerned with those historians who received formal legal training. Only a few of the late Roman historians can with all certainty be identified as "lawyers", whereas in many of the remaining instances their legal training can only be assumed on the basis of information from other sources or internal evidence from their own texts. G. manages to show that many of the late Roman historians had legal training and that they assumed an appropriate position in the imperial bureaucracy. In contrast to the period of the Republic and the early Principate, when Roman historians acquired a certain level of legal knowledge during their traditional senatorial education, lawyer-historians of late Antiquity, who came from basically non-senatorial circles, were in the main professionals with substantial experience. Alas, the author does not include the list of lawyer-historians that he found. This would have made it easier for researchers to make use of his work. Zachariah of Mytilene was not a historian of the VI century (p. 149), though of course he lived during this period. He completed his historical work at the end of the V century.

Dennis E. Trout's study ("Lex and iussio: The Feriale Campanum and Christianity in the Theodosian age", pp. 162-178) is concerned with the local calendar tied to Capua and the ager Campanus. The so-called Feriale Campanum was published by order of the emperors on the 22nd of November 387 as a list of seven holidays which were of a pagan nature. The imperial iussio that sanctioned the publication of the calendar is viewed by researchers as a concession granted to the still influential pagan aristocracy in Italy. The author does not propose new readings of the text of the inscription but discusses numerous lexical problems that arise, examining in detail the names of the pagan holidays in the calendar. The provocative non-Christian nature of the Feriale Campanum may show a concession to the pagan elite in Italy but one which had a specific political context, since it was made by Magnus Maximus after invading Italy a few months earlier. T. identifies the unnamed domini responsible for publication of the Feriale Campanum as Magnus Maximus and his son Victor.

The work of Ralph W. Mathisen ("Imperial honorifics and senatorial status in late Roman legal documents", pp. 179-207) is devoted to the use of tua-epithets (only Latin) applied to officials in imperial legal documents and letters c. 293-578. Ma. states that the nature and significance of these honorifics "have been little studied" (p. 181). Out of several aims that the author set for his study, the most important is the question whether certain honorifics were associated with particular offices or ranks. From the available source material, he found "696 instances where honorifics were used as replacements for second-person pronouns" (p. 183). Ma. established that already by the beginning of the second half of the IV century certain combinations of tua-honorifics in their nominal and adjectival forms began to be permanently associated with defined ranks and offices, whilst in the V century there was further systematized use of them, which remained a stable phenomenon to the end of the VI century. There are, however, noticeable differences between eastern and western practices. It is not clear why the author in this instance did not consult the Variae of Cassiodorus, which is usually referred to for investigation into the administrative history or legal practices of late Antiquity. A work such as that of Ma. may for some appear to be somewhat colourless, but it must be stressed that it is one of the best studies in this collection, being of use for everyone who delves seriously into late Antiquity. Moreover, the tables included make it easier to take full advantage of its results.

Hagith S. Sivan ("Why not marry a Jew? Jewish-Christian marital frontiers in late Antiquity", pp. 208-219) discusses "the contents and context of Roman legal perspectives on Christian-Jewish inter-marriage in the fourth century" (pp. 208-209). The subject of this discussion is primarily CTh 3. 7. 2 = 9. 7. 5 = CJ 1.9.6 from 388 and CTh 16. 8. 6, as well as several other laws and texts which according to the author are helpful in explaining the contents of CTh 3. 7. 2. Up to now it has been considered that the law issued in 388 had the aim of preventing conversion or polygamy, a Jewish institution contrary to Roman law. Sometimes the law has been considered as an expression of religious and political unity of the empire by the creation of Christian matrimonial unity. S. admits these interpretations are reasonable but only to a certain degree. In the author's opinion the public prohibition of marriage between Jews and Christians arose out of the change of the government's attitude to this matter, on the one hand, and, on the other, to the increasing influence of religious leaders who didn't wish for such marriages. Judith Evans Grubbs ("Virgins and widows, show-girls and whores: late Roman legislation on women and Christianity", pp. 220-241) discusses "legislation on women and the Christian church" in the CTh and post-Theodosian novels. This study limits itself to Christian women. The author emphasises that two kinds of Christian women were of particular interest to imperial legislation. On the one hand, celibate widows and virgins of high status, and, on the other, women of low birth such as prostitutes and showgirls. Secular authorities paid particular attention to the disposition of the property of celibate women. We are also informed that the legislation of the V century in this matter was a good deal less profitable for the Christian Church than that of a century before. The Christian leaders wished actresses and prostitutes to resign their vocation before accepting baptism. The emperors issued and re-issued a ban on forced prostitution, and only in the middle of the V century in the East did these two professions begin to be protected legally from the exploitation of their body for public pleasure. Overall, the Christian emperors did not exhibit much enthusiasm for women who abandoned their social roles, since this meant upsetting the existing social order.

The study of Catherine R. Peyroux ("Canonists construct the nun?: Church law and women's monastic practice in Merovingian France", pp. 242-255) turns our attention to the "legislation on the licit and illicit proximity between nuns and male religious, both monks and clergy" (p. 243). The title here is to some extent misleading since P. limits herself chronologically to the VI century and not only to the territory under Frankish control. The councils and episcopal clergy were the main source of legislative authority for monastery life in Gaul. Even abbots appear rarely in the subscription lists. Therefore the regulations relating to women's monastic discipline were created by men knowing little about monastery practice. P. shows that, although the 26th canon of the Council of Agde in 506 forbade close cohabitation of brothers and sisters to avoid creating a climate of sexual desire, there are examples of monasteries where the radical physical separation of men from women is not visible. The study by Boudevijn Sirks ("The farmers, the landlord, and the law in the fifth century", pp. 256-271) attempts to give an answer to the question why the late Roman farmer and his family wished to be subject to the authority of a landowner (patrocinium) and what was the role of the imperial government. He argues that this type of colonate could be tied to the need for credit on the part of the farmer, which became a kind of permanent obligation, more onerous than those based on the private law contract. Such an agreement was upheld by public law as long as the farmer's obligations to the fiscus were secured. Imperial legislation stressed consistently, however, that coloni adscripticii were free persons and not slaves. This type of patrocinium does not disappear until the VII century. The selected legal texts create a convenient appendix.

Kathy Pearson's study ("Salic law and the barbarian diet", pp. 272-285), offers insight into food preferences and production practices of the inhabitants of north Gaul at the beginning of the VI century on the basis of the Lex Salica, a legal document whose earliest redaction can be dated to the last years of the rule of Clovis (d. 511), in conjunction with the results of archeological and agricultural research. P. admits that the provisions of the Lex Salica allow the conclusion that the Frankish agricultural system does not incline to the "sedentary pastoralism" preferred by the Germanic peoples living to the north of the Alps. The production and consumption of food in north Gaul demonstrates the ability of the Franks to adapt to their needs "a mixed agricultural system", which the Romans had created there. This was based on a meat and dairy food diet together with a vegetable diet, typical for that Mediterranean area. P. does not say, however, whether apart from the Lex Salica there are any other texts which could shed further light on the diet of the Franks during this period.

In conclusion, all of these studies are of great interest, well argued, and inviting further discussion. But in some studies there is little regard for arguments presented by previous historiography or a clear presentation of a status quaestionis.


Notes:


1.   Best published by Carlo Manenti, Studi Senesi nel circolo giuridico della R. Universita 3 (1887), pp. 257-288; 4 (1888), pp. 141-157; 5 (1889), pp. 203-311.
2.   Wieacker, "Lateinische Kommentare im Codex Theodosianus", Symbolae Friburgenses in honorem Ottonis Lenel 1931, Leipzig, undated, pp. 259 ff.
3.   Several minor observations. There do not seem to be any good reasons to admit that comes Timotheus should be regarded "as a successor to the late Roman praetorian prefect" (p. 16). The tasks and competencies of the comites in the Visigothic kingdom were entirely different from those of the late Roman praetorian prefect (H. Wolfram, Die Goten, Munich 1990, pp. 217-220). Another case is the praescriptio issued over the name of count Goiaricus in which the laws published in LRV were described as "electae vel, sicut praeceptum est, explanatae". This is Mommsen's reading (CTh I. xxxii), which M. accepts (p. 17). Explanatae, however, is Mommsen's emendation for MSS readings exemplatae or exemplari. This emendation is not required and has no basis in the MSS. The word exemplatae here has a good meaning and denotes what is usually given in these instances, "copied", from the word exemplum "a copy" of something. Thus the entire passage should be read as follows: the laws were 'selected and copies manufactured, according to [royal] order'. Iudicium quinquevirale was not the 'court of five nobles'(p. 27) but in reality the court of six nobles (cf. Ch. H. Coster, Late Roman Studies, Cambridge, Mass. 1968, 5-6).
4.   Some minor observations. A. argues that "the Germanic rulers did not assume legislative authority over the Romans. Both populations continued to follow their own legal traditions" (p. 34). How is this meant to be understood? Does this relate to public law or private, or to both? And in what territory? If the Germanic rulers in fact did not assume any legislative authority over the Romans, then in the field of public law it would have led to a paralysis of power in the new states. We can therefore be certain that the imperial statutes against the Arians were repealed. In the example of Italy there are certain indicators that the ruling Amals did assume legislative authority over the Romans (cf. J. Prostko-Prostynski, Utraeque res publicae. The emperor Anastasius I's Gothic policy 491-518, Poznan 1996, 185-188). The question arises, though, to what extent they intervened or (like the Amals) could intervene in the existing system of Roman law. It may also be argued that it is unsatisfactory to base such research as that of Arjava almost exclusively on the codes of law, formularies and charters, for the picture given by them is not complete. Many such relevant material exists in literary sources. For example, an excerpt from a letter of pope Gelasius (frg. 47, Thiel, p. 508) suggests that certain Roman family laws might have been revoked by Theoderic in Italy.

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