Bryn Mawr Classical Review 2012.09.21
Robert M. Frakes, Compiling the Collatio Legum Mosaicarum et Romanarum in Late Antiquity. Oxford studies in Roman society and law. Oxford; New York: Oxford University Press, 2011. Pp. xiv, 368. ISBN 9780199589401. $150.00.
Reviewed by Richard Flower, University of Sheffield (firstname.lastname@example.org)
This volume is an edition and translation of the Collatio legum Mosaicarum et Romanarum, together with commentary and substantial introductory discussion. This late-antique text, also known as the Lex Dei, is a curious work, in which statements from the Pentateuch are arranged under sixteen thematic heading, together with extensive quotations from relevant Roman legal writings. The resulting compilation produces an argument for the unity of Mosaic and Roman law, with the former given a prominent position at the head of each chapter. The only previous English translation of the Collatio was produced by Rev. M. Hyamson almost a century ago, while the standard Latin text is that of Mommsen, from around twenty-five years earlier.1 Frakes’ volume is timely, not only for its revision of the text and translation, but also for the accompanying reconsiderations of the date, authorship and purpose of the work.
This book appears in a series entitled ‘Oxford studies in Roman society and law’, whose stated aim is “to create an interdisciplinary forum devoted to the interaction between legal history and ancient history”. In keeping with this intention, the first chapter, ‘Approaching the Collator’s World’ (11-34), provides contextualisation for the work by giving a brief résumé of Roman history from Diocletian to Theodosius I, with a coda on the end of the western empire and its aftermath. The chapter covers a lot of ground in relatively short compass, focusing on legal innovations and, in particular, on the attitude of the imperial government towards paganism. The picture presented here is one of progressively ferocious anti-pagan statements and rulings, although Frakes is rightly sceptical about the extent of their intention and impact on religious practices throughout the empire. The treatment of the usurpation of Eugenius in 392, however, is less nuanced, with the revolt being presented as being supported by “elements of the traditional pagan elite”, since it gave to the pagans “one last champion” (30). The presentation of the conflict as a momentous battle between religions is one which has its origins in triumphalist Christian writings of the following decades, and has recently been comprehensively debunked by Alan Cameron.2
Chapter 2 methodically explores the evidence for the dating of the work and produces a new (if somewhat speculative) manuscript stemma that improves on that of Fritz Schulz from 1946. Part of this discussion examines the use of the Collatio by Hincmar of Rheims in 860 during the dispute concerning the divorce of Lothar II and Theutberga. In his De Divortio, Hincmar referred to statements in the Collatio, which he termed leges Romanae, adding the comment quo legens quisque inueniet. Frakes takes this as evidence that copies of the Collatio were commonly available in the ninth-century Frankish kingdoms, since “obviously, if Hincmar had had the only copy of an obscure law book, he would not have implied that many people could find the passage to which he alludes” (42). It is not, however, clear that this was the case, since Hincmar was using the text to construct an argument in an important legal and political dispute. He consequently may have wanted to bolster his case with such a statement about his corroborating source.3 After considering external evidence for the text, Frakes then examines the Collatio itself, arguing convincingly (at 51-8) both that the ruling of Theodosius I preserved at 5.3 is not a later interpolation and that the author (known only as “the Collator”) did not use the Theodosian Code. This thereby implies a date of composition for the work between 390 and 438. The rest of the chapter then proceeds to narrow the window down to 392-5, on the premise that the reference to the ruling in 5.3 as constitutio Theodosii implied that the Collator was writing after the demise of Valentinian II (who is not named), but before the death of Theodosius himself. This argument from silence seems less persuasive, although such a date is certainly not unreasonable for the work.
Chapter 3, entitled ‘The Collator’s Sources’, fulfils its remit well, providing a clear and succinct survey of all the different legal texts cited in the Collatio, before demonstrating clearly (at 82-97) that the Collator did not use Jerome’s Vulgate Latin Bible, but rather a Vetus Latina translation of the Pentateuch. This is followed by a chapter on the method of the text’s composition, which opens (at 99-111) with a survey of earlier scholarly views on the structure of the work, along with Frakes’ argument that the selection and arrangement of subjects is based mainly around the second half of the Ten Commandments. The remainder of the chapter deals with the Collator’s treatment of his sources, including an interesting section (at 115-21), examining his selection and editing of both biblical and Roman texts in order to make their statements appear more harmonious. This useful chapter is interspersed with some consideration of the practicalities of the text’s composition, including the possibility that the Collator used “some sort of book marks” (114) and speculation regarding whether he worked at a table, since referring to multiple codices at once would otherwise be difficult and, in the late fourth century, “tables already existed” (123).
The final chapter, on the Collator’s identity and purpose, is also the broadest in its potential appeal, since it feeds into wider debates concerning religious identity and interaction in late antiquity. It opens (at 125-9) with a clear demonstration of the paucity of evidence for attributing the work to any named individual, before asserting that the Collator was a trained lawyer from a “middle class” or “non-elite” background, classifying him below “the leaders of Church or State”, but nonetheless as “a literate member of the population freed from food production” (128). The next section (129-40) deals with the hotly debated question of the Collator’s religion. Frakes describes the evidence for both Judaism and Christianity, before declaring the latter to be more likely. This hypothesis is well supported by forceful counter-arguments against those who have raised problems with identifying the Collator as a Christian, as well as noting the greater statistical likelihood of this in the late fourth century. The chapter concludes with a discussion of the Collator’s audience and purpose, arguing that the text’s presentation of Mosaic precedents for Roman laws means that “it is difficult to escape the conclusion that he is attempting to show pagan jurists that his religion thus has intrinsic worth in that such laws anticipated similar legislation of the Romans” (143). The context of Eugenius’ revolt therefore becomes vital, since Frakes views the text as an attempt by a “non-elite” Christian to find common ground with his pagan contemporaries in the legal profession, even at a time when “his more elite co- religionists” were moving in the opposite direction (150). This theory does well to remind us not to assume a uniform ‘Christian’ or ‘pagan’ attitude towards other religious practices at any point in history. Frakes’ hypothesis is certainly plausible, but it is also worth considering other possible interpretations. The Collatio could also be read as a hostile Christian annexation of Roman legal history, turning it into little more than footnotes to Moses, and thus asserting the chronological and moral priority of the Old Testament, in a similar fashion to Eusebius of Caesarea’s Chronici canones.4 Alternatively, the Collator may not have been treating Roman law as ‘pagan’, but rather as the common possession of all, regardless of religious identity, just as Gregory of Nazianzus presented traditional paideia in response to the policies of the emperor Julian.5 Rather than reconciling two ‘religions’, the work may have been intended to show Christians the compatibility of their holy book and their society’s rules. It is not my intention to argue for either of these hypotheses, but merely to raise them as possible alternatives.
The remainder of the volume consists of a new edition and translation of the Collatio, together with commentary. The Latin text represents an impressive scholarly endeavour, engaging with earlier editions, especially those by Mommsen, Hyamson and Huschke, as well as making use of more recent scholarship and Frakes’ own examination of the key manuscripts.6 Deviations from Mommsen, as well as the rationale behind them, are described in footnotes, with Frakes preferring the manuscript readings to Mommsen’s emendations on a number of occasions when he judges the manuscripts to make reasonable sense. Similarly, the translation improves upon Hyamson’s both by being free of some of the small errors that appeared in that version and also by employing a more modern prose style, especially in the biblical passages. Likewise, Frakes’ retention of honestiores and humiliores as technical terms is an improvement on Hyamson’s references to “offenders of base degree” and “those of honourable rank”. Frakes’ version is also closer to the original Latin than Hyamson’s, especially in terms of grammar and syntax. While this does result in a more ‘authentic’ translation, it sometimes means that long and complex sentences, which Hyamson often broke up and reformulated for clarity, can be difficult to follow (as is notable, for example, in 5.3 and 6.4.2). Moreover, some of Frakes’ phrasing can make the translation somewhat opaque, especially for readers who do not know Latin: for example, at 12.4.1, concerning those who start fires in towns praedandi causa, Frakes translates this phrase as “for the purpose of ill-gotten gains”, which does not make it clear that the arsonists are looters, as opposed to fraudsters or other criminals, unlike Hyamson’s translation “for the purpose of plunder”; similarly, in a quotation from a Tetrarchic ruling at 6.4.1, the phrase oportere credimus is rendered as “We believe it behooves Us”, which seems more archaic than Hyamson’s “we regard it as our duty”. Moreover, at 6.7.1, as part of a discussion of condemnations of incestuous marriages, when the Collator states maledicti tamen sunt omnes incesti per legem, cum adhuc rudibus populis ex divino nutu condita isdem adstipulantibus sanciretur, Frakes renders this sentence as “Cursed by the law, however, are all those engaged in incest, although it was ordained by the Divine Will for the still primitive people, and sanctioned by them making a covenant”. In his commentary on this passage (at 272), Frakes provides examples of incestuous marriage from Genesis to support his interpretation, although the context and grammar of the sentence would imply that it was not incest that was condita and sanciretur, but rather lex, as Hyamson also concludes in his translation of this passage.
The commentary, which follows the translation, provides a wealth of information, demonstrates in detail the Collator’s emendation of biblical passages, clarifies particular legal issues and terminology, and provides useful contextualising information. One drawback of the book’s structure is that the Latin text and English translation are not presented on facing pages, but separately (Latin at 157-201; English at 202-41). This makes it awkward for those readers who wish to consult both simultaneously. Therefore, for example, someone reading section 12.7.6 would need to move continually between page 186 for the Latin, page 228 for the translation and page 292 for the commentary’s explanation of the term “noxal surrender”.
Overall, therefore, there are some limitations to this book, partly, no doubt, resulting from its ambitious aim to “serve several masters” (242) by appealing not only to legal scholars but also to those studying late-antique history more broadly. Despite these, it is a well-researched and extremely useful volume which should bring the Collatio to the attention of a wider audience and encourage further research into this fascinating and enigmatic text.
1. M. Hyamson, Mosaicarum et Romanarum Legum Collatio, London, 1913; T. Mommsen (ed.), Mosaicarum et Romanarum Legum Collatio, in P. Krüger, T. Mommsen and W. Studemund (edd.), Collectio librorum Iuris Anteiustiniani Vol. III, Berlin, 1890, 107-98.
2. See Alan Cameron, The Last Pagans of Rome, Oxford, 2011, 93-131.
3. On this point, I am grateful for the advice of my colleague, Charles West, who is currently preparing an English translation of Hincmar’s De Divortio.
4. See C. Kelly, ‘The shape of the past: Eusebius of Caesarea and Old Testament history’, in C. Kelly, R. Flower and M. S. Williams (edd.), Unclassical Traditions, Volume I: Alternatives to the Classical Past in Late Antiquity, Cambridge, 2010, 13-27.
5. Greg. Naz. Or. 4.100-109.
6. For Huschke’s edition, see P. Huschke (ed.), Iurisprudentiae Anteiustinianae quae supersunt, Leipzig, 1861, 528-90.