Bryn Mawr Classical Review

BMCR 2016.12.47 on the BMCR blog

Bryn Mawr Classical Review 2016.12.47

M. T. G. Humphreys, Law, Power, and Imperial Ideology in the Iconoclast Era, c. 680-850. Oxford Studies in Byzantium.   Oxford; New York:  Oxford University Press, 2015.  Pp. xxiv, 312.  ISBN 9780198701576.  $125.00.  


Reviewed by Avshalom Laniado, Tel Aviv University (laniadoa@post.tau.ac.il)

Preview

Although the initial aim of M. T. G. Humphreys was to study Byzantine iconoclasm, he soon realized that scholars have largely ignored the legal texts pertaining to this period. Hence his decision to write "the first study dedicated solely to the legal sources of the 'Iconoclast era'" (p. 7), for which he borrows the chronological framework from L. Brubaker and J. Haldon (Byzantium in the Iconoclast Era, c. 680-850: A History, Cambridge 2011).

The Introduction (pp. 1-36) offers a brief account of late Roman and early Byzantine legal history, in which Justinian I (527-565) and Heraclius (610-641) are the two main figures. The author rightly observes that Justinian's codification was nothing less than a revolution, yet one cannot follow him when he states (p. 21) that "to ensure continued imperial control over interpretation, commentaries and paraphrases were prohibited." For the true nature of this ban, see H. J. Scheltema, "Das Kommentarverbot Justinians," Tijdschrift voor Rechtsgeschiedenis 45 (1977), 307-331. As for Heraclius, Humphreys argues that Novels had ceased to be a useful tool by his reign (p. 35), which would explain why only four Novels of his are extant. Moreover, he maintains that the Justinianic legal system as a whole underwent 'symbolic fossilization.' To say this, however, is to ignore evidence for sophisticated civil jurisprudence under Heraclius (see N. Wan der Wal and J. H. A. Lokin, Historiae Iuris Graeco-Romani Delineatio, Groningen 1985, 63-65).

Chapter I: The Council in Trullo (pp. 37-80) opens with the rather conservative imperial ideology of Constantine IV (668-685), and then turns to the council in Trullo itself (691/692), convened by his son, Justinian II (685-695 and 705-711), in order to emend Christian life as a prerequisite for a wished-for recovery of lost territories. The acts of this council consist of an address (prosphonetikos logos) of the bishops to the emperor, followed by 102 canons and a list of subscriptions, the first of which is that of Justinian II himself (see now H. Ohme, Concilium Constantinopolitanum A. 691/692 in Trullo habitum, Berlin and Boston 2013). Humphries argues convincingly that the prosphonetikos logos was composed at the imperial court, and duly insists on its value for the study of imperial ideology. However, it is curious that no use has been made here of an edict issued by this ruler on behalf of the Church of St Demetrius in Thessalonica a few years before the council (F. Dölger, Regesten, vol. I, 2nd edition, Munich 2009, no 258; for an English translation, see A. Vasiliev in Speculum 18 [1943], 6-7).

One may wonder why Justinian II opted to emend Christian life through canons and not through imperial laws. Humphreys explains this choice by the 'mummification of civil law' postulated in the Introduction, as well as by the assumption that canons better fitted his ideology (p. 79). However, the reason may have been a more practical one: issued by bishops from four patriarchates, the new canons were binding even for Chalcedonian Christians living beyond the borders of the truncated Byzantine empire of that time. By contrast, imperial legislation was only valid in territories under imperial rule.

Chapter 2: The Ecloga (pp. 81-129) is devoted to the famous law book by that name issued in 741 by the iconoclastic emperors Leo III and Constantine V, the most prominent rulers of the Isaurian dynasty. Humphreys discusses in turn the sources and structure of the Ecloga, its title, and prooimion, as well as the evidence it provides for judiciary and legal procedures. He then discusses in some detail three selected topics: marriage, criminal law, and military law. To judge by the header of the Ecloga, Justinian's law books were the only sources used, while clauses selected for inclusion were corrected "towards greater humanity" (ἐπιδιόρθωσις εἰς τὸ φιλανθρωπότερον; for an original and 'unorthodox' interpretation of these famous words, see now A. Schminck, "Minima Byzantina," ZSS RA 132 [2015], pp. 469-474). The Ecloga does include some post-Justinianic rules, but these are not necessarily recent ones, as the following example will show. Title 18, on war booty, is, according to Humphreys, "by far the most original" in the Ecloga (p. 126; cf. pp. 91-92), though it may be based upon a lost Novel of Tiberius II (cf. Dölger, Regesten, vol. I, no 69). As for marriage law, Humphreys seems to assume that the Ecloga, which represents "stringency beyond precedent" towards unilateral divorce (p. 116), implicitly approves of the late antique prohibition on divorce by mutual consent, yet this is an argumentum e silentio (see L. Burgmann, "Eine Novelle zum Scheidungsrecht," Fontes Minores IV, Frankfurt 1981, 113). In fact, the Ecloga did not rescind Justin II's Novel on this subject (N. 140 [566]; Dölger, Regesten, vol. I, no 6; for another Novel on divorce by mutual consent, see Burgmann, art. cit.). While the law of the Ecloga is mainly Justinianic, it is deeply inspired by Holy Scripture, and thoroughly Christian in ideology. In Humphreys' words, it is "a Christian document in more important ways than the content of its laws" (p. 128).

Chapters 3-5 argue for a close relationship between the Ecloga and some texts whose authorship and date are still debated. Chapter 3: The Appendices to the Ecloga (pp. 131-167) deals with the Krisis Peri Gambron Stratioton (ed. D. Simon in Festgabe für Johannes Sontis, Munich 1977, 94; Dölger, Regesten, vol. I, no 304a), the Appendix Eclogae, and the final section of the Nomos Stratiotikos (known in English as the Byzantine Mutiny Act). The first text would be a response to a situation not handled by the Ecloga. As for the Appendix Eclogae, Humphreys argues for a date of composition under Constantine V, "perhaps by the same (or similar) commission that produced the Ecloga" (p. 149). He points to the "relative lack of repetition" (p. 148) between the Ecloga and the Appendix Eclogae, as well as to the fact that there are hardly any contradictions between the two. Then comes a close examination of the Nomos Stratiotikos, whose final section (§§ 32-53; see Table 5, p. 154) is regarded as "ideologically extremely close to the Ecloga" (p. 161).

Chapter 4: The Associated Codes of the Ecloga I (pp. 169-193) argues for a mid-to-late eighth-century date for two entirely different texts: the Nomos Mosaikos (i.e., Law of Moses), and the so-called Rhodian Sea-Law. The Nomos Mosaikos is a collection of 70 (or 71) excerpts from the Pentateuch arranged into 50 titles. The content as well as the vocabulary used in the headings of the titles suggest that its compilers were well acquainted with the Ecloga, yet unlike the Ecloga it was certainly not a practical law book. A. Schminck argued that it was written by Photius, Patriarch of Constantinople (858-867 and 877-886), as a criticism of the Ecloga ("Bemerkungen zum sog. Nomos Mosaikos," Fontes Minores IX, Frankfurt 2005, 249-268). Humphreys rejects the attempt to ascribe this text to Photius, and argues that its purpose was to bestow biblical legitimacy on the Ecloga. The date of the Rhodian Sea-Law is even more controversial. While its last editor placed it between ca. 600 and 800 and found "no reason for connecting it in any way with the Ecloga" (W. Ashburner, Νόμος Ῥοδίων Ναυτικός: The Rhodian Sea-Law, Oxford 1909, cxii-cxiii), Schminck assigned its second part to Leo VI (886-912) and its third (and more substantial) part to Photius ("Probleme der sog. Νόμος Ῥοδίων Ναυτικός," in Griechenland und das Meer, Mannheim 1999, 171-178). Humphreys, on the other hand, believes that the background is the revival of seafaring after ca. 750 (p. 191), and argues that this text "fits the world post-Ecloga better than any other period" (p. 180).

Chapter 5: The Associated Codes of the Ecloga II (pp. 195-232) is wholly devoted to the Nomos Georgikos (known in English as the Farmer's Law). According to Humphreys (p. 227), it is "a collection of Justinianic legislation as it had evolved on the ground, combined with a sprinkling of new legislation, set within biblical ideas and expressed through biblical phrases, following the pattern set by the Ecloga." Like the Appendix Eclogae, it neither repeats material included in the Ecloga nor contradicts it. It may have been produced as a 'deliberate supplement' to the Ecloga (p. 223), without which it is "incomplete to the point of incredulity" (p. 215), but this is perhaps going too far. At any rate, there is no evidence for the widely-held assumption of its provincial provenance (p. 229).

Humphreys' arguments in favour of a close relationship between the Ecloga and the texts discussed in chapters 3-5 are plausible, and so is his conclusion that, far from being an isolated undertaking, the Ecloga is the most important achievement of an 'Isaurian legal renaissance.' This conclusion is all the more remarkable, as this period is often considered the lowest point in Byzantine literature (see, for instance, C. Mango, "Greek Culture in Palestine after the Arab Conquest," in Scritture, Libri e Testi nelle aree provinciali di Bisanzio, Spoleto 1991, vol. I, 149). However, his attempts to discard later dates for the texts discussed in chapters 3-5 are not always convincing, as in the case of the Nomos Stratiotikos. To his mind, the occurrence of katastasis (status) in some manuscripts of this text would rule out any association with Leo VI, for by his time this word was "firmly associated with ceremony" (p. 158). Still, katastasis in the sense of status does appear in his laws (e.g., Novel 4, ed. P. Noailles and A. Dain, Les Novelles de Léon VI le Sage, Paris 1944, 23, l.4).

Chapter 6: Three Reactions: Irene, Leo V, and the Macedonians (pp. 233-248) examines attitudes toward the Ecloga among late- eighth and ninth-century lawmakers. As expected, an iconoclast such as Leo V (813-820) had no difficulty in taking the Ecloga as a starting point in his only extant Novel (Dölger, Regesten, vol. I, no 398a). Far more noteworthy is the attitude of iconophiles such as Irene (797-802), or the first emperors of the Macedonian dynasty, who reluctantly adopted the substance of the Ecloga while rejecting the worldview and the religious policy of the rulers who issued it. The Conclusion (pp. 249-272) offers an appraisal of the role of law in the iconoclast era, as well as of the contribution of the Isaurian emperors to the recovery of the Byzantine state.

Law, Power, and Imperial Ideology in the Iconoclast Era is an important contribution to the ongoing research on a very obscure period in Byzantine history, and will surely be instrumental in introducing non-legal historians to the study of the legal sources of this period. It is therefore a pity that it is not always reliable in matters of detail, as some examples will show. Heraclius' Novel 4 is wrongly dated to 24 April 629 (p. 26; the correct date is 21 March 629); the title of George of Pisidia's poem In Restitutionem Sanctae Crucis is given as Restitutio in Crucis (p. 32); excommunication is recorded as the only penalty for pimps in canon 86 of the council in Trullo (p. 71), but it should be pointed out that it applies to laymen, while members of the clergy are to be deposed; the Edictum Theoderici is considered a Lombard code (p. 87 n.39); prosphoros archon is translated as 'appropriate magistrate' (pp. 107-108), though it is the Greek equivalent of competens iudex (Ducange, Glossarium ad Scriptores Mediae et Infimae Graecitatis, Lyon 1688, col. 1256; cf. M. Kaser, Das römische Zivilprozessrecht, 2nd edition, Munich, 1996, 245-247); according to the Ecloga (17.39), removal of the penis (καυλοκοπείσθωσαν), not castration, is the penalty for bestiality (p. 121); the title of the Collatio Legum Mosaicarum et Romanarum is given as Collatio Legum Mosaicum et Romanum (p. 172); the reign of Leo V began in 813, not in 815 (p. 233). Despite these and other inaccuracies, this book should be welcome by those interested in Byzantium's 'Dark Ages.'

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