1996.8.12, Grubbs, Law and Family in Late Antiquity

‘At a time when the spiritual sanctions of marriage are challenged by a so-called modernism … which doubts whether there can be a science of ethics seeing that right and wrong are matters of personal taste, it is good to have set out for us in a clear sequence by a scholar … the successive steps by which the family life at Rome was disintegrated. And with the decline and fall of the family, there came the decline and fall of the Roman Empire.’ Lest the reader be misled into thinking that this little jeremiad is to be ascribed to the likes of Mssrs. Quayle or Gingrich, the record should be set straight. The concerns are those voiced by one Mr. J. L. Paton, who inscribed the words in his introduction to the Reverend S. A. Leathley’s The Roman Family. The essay was an introduction to Leathley’s translation and commentary on the De Ritu Nuptiarum, the twenty-third title of Justinian’s Digest. It was published in the year 1922, by which time Leathley had already authored another work entitled The History of Marriage and Divorce in which he had traced the malign effects of the modern age on the institution of the family. ¹ In the pivotal decades just before and after the beginning of this century, it was indeed felt that a crisis, centered on the family and sexuality, was impending. ² Paton began his portentous introduction with the observation that, ‘Of all social institutions the family is the most successful: our other social and educational institutions are successful in the measure in which they reproduce the spirit of the family.’

Judith Evans Grubbs has answered to these persistent contemporary concerns with the Roman legal foundations of marriage and family. She has done so with an analytical persistence and an attention to detail that are in themselves a testament to the extent to which scholarship has replaced moralizing in a subject that is as heavily obscured in this age, as in those preceding it, with a cloying overlay of ideological assertion. Somehow to see through this veil to ‘what was actually happening,’ though indeed an historian’s credo, is a feat which, in this case, requires endurance with singularly recalcitrant source materials. She begins with Julian the Apostate’s denunciation of his own ancestor as a novator turbatorque priscarum legum, and asks if Julian should be believed. Specifically, she wonders if interpretations of Constantine’s laws on family and marriage that view them as revolutionary changes driven by Christian ideology are likely to be true. In the pursuit of this inquiry, she makes a concerted attack on four aspects of Constantine’s imperial legislation that have been accepted as sure signs of his desire to implement his newly adopted Christian faith in dictating the shape of family and marriage. These laws include the imperial edict that repealed the Augustan laws penalizing marital celibacy, and others that simultaneously strengthened the legal effect of betrothal arrangements and those that more stringently controlled the violent seizure ( raptus) of young women. At the heart of her analysis, however, is an investigation devoted to the problem of the Constantinian laws on divorce since these regulations are usually regarded as one of the surest signs of Christian influence on the emperor’s law-making. She concludes her series of tests with a consideration of the emperor’s legislation governing the status of ‘mixed’ marriages, both those between free persons and persons of servile status, and those between high and low social ranks in late Roman society.

Constantine, who was the longest reigning emperor after Augustus, showed the same concern with stabilizing social relationships through the mini-estate of the family: more than one-fifth of all of his surviving legislation preserved in various codes is devoted to the regulation of family, marriage, and sexuality (2). Like Augustus, he came to power in the aftermath of prolonged spasms of civil war that were both cause and effect of a general boulversement of the Roman social order: a final separation between its military and civil elites, the withering away of middling social statuses, the emergence of more severe social polarities, and the rise to prominence of new social institutions, especially that of the Christian Church. Also like Augustus, Constantine’s concerns with social stability extended even to the formal regulation of the lowest servile statuses that underpinned the economic order (25). Like Augustus, his innovations were presented in the language of tradition. There is also a modest comparison with the Augustan moral order in that the actions and words of Constantine and his predecessors reflected a morality of the periphery that was out of tune with the mores of the urbanites in the large civic centers of the empire. ³ In this sense, then, Constantine was part of a provincial and populist trend in moralizing that began to take on a sterner public face with the advance of the third century, especially during the Tetrarchic period (50-51; 57-58; 335). The harshness of Diocletian’s (or, possibly, Galerius’) language in his edict against close-kin marriage as a horrible abomination that was a threat to the Roman social order is redolent of harder provincial attitudes (100-101). ⁴ This is the conclusion to which Evans Grubbs herself is led, noting in passing some interesting provincial aspects of the ideal of the virginius (334-35). The organs of the secular state, however, were not alone in institutionalizing these changes. Canonical regulations issued by a series of ecclesiastical councils in Constantine’s reign also reflect the same perceived need to regulate family, marriage, and sexuality. Indeed, some of the councils, such as those at Elvira and Neocaesarea, devoted almost half of their legislation to these subjects (15, 73-75).

Evans Grubbs begins (ch. 2) by establishing a base-line in what is known of ‘pagan’ and ‘Christian’ marriage and family formation (she construes both terms carefully and purposefully in inverted commas). She has little difficulty in demonstrating the fundamental continuity in publicly expressed values and in actual practice. The sentiments about marriage, family, and spouses and children expressed in both simple and elaborate funerary epitaphs reveal the remarkable continuity of values, feelings, and a common poetic diction that derived from pre-Christian culture (86-90). It is important, however, to be attentive to critical shifts in emphasis. Whereas it is true that Christians did espouse values that had also been championed by a few pre-Christian ideologues in first and second-century society (e.g., mutual marital fidelity, life-long monogamy), the difference seems to be that these ideals now were preached and enforced as values and behaviors incumbent upon all persons, and that they were fixed in place as part of an immutable divine cosmic order (58-60; 247). Christians also imparted new nuances and values to traditional probative terms of marital morals—the novel significances attributed to the univira and the virginius are just two of these that Evans Grubbs notes (69-70). Nor can one underestimate the combined impact of popular values, ascetic self-control, the hypostatization of monogamous marriage, Christian ideology, the presence of a Church, and the impact of secular state legislation. In terms of marriage and, especially, practices affecting the remarriage of married women, these critical linkages produced a demographically new and aberrant population typical for western Europe: a propensity not to re-marry and the concomitant emergence of a class of unmarried women who survived their husbands. ⁵ But if Evans Grubbs’ emphasis is on the strands of continuity in the behavior and values of most persons, she is probably right. Christianity thus appears more as a species of Roman or Mediterranean culture in its own right, not as something that was alien to what preceded it.

Having established her baselines of comparison, Evans Grubbs tackles several major areas of Constantinian legislation on family and marriage, beginning with the famous constitution that abolished the Augustan penalties on celibacy (ch. 3). She begins by restoring the constitution to its whole original form and by placing it in the broader context of legislation that reformed the devolution of property (the fragment in the Codex Theodosianus was originally part of a long edict designed to facilitate inheritance procedures). ⁶ Along with his laws on divorce, this constitution is usually regarded as a typical case of Constantinian law-making under the influence of Christian ideology or advisers, or both (103; 123, n. 84). Modern day scholars who make these claims have at least one solid point d’appui, since Eusebius in his Life of Constantine ( VC 4.26) explicitly attributes this legislation to Christian influences (128-31). But Evans Grubbs sees the Eusebian text as a late and vaguely worded retrospective by a man who did not have a good knowledge of Constantine’s thinking in the 320s. In other words, Eusebius’ claim is an ex post facto and ideologically colored Christian interpretation of Constantine’s intentions. Evans Grubbs argues, persuasively, that what Constantine was actually doing becomes clear when one places the fragment on celibacy back into the context of the whole law of which it was originally part. When the context is restored, it is then manifest that the law was less concerned with Augustan legislation on celibacy as such, than with the new emperor’s desire to stabilize a property system that was habitually threatened and unacceptably disturbed by delatores who exploited the penalty provisions of the Augustan laws (113-23). Constantine’s main intent, then, as with so much else in his legislation, was social stability—and if the bothersome centuries-old laws on celibacy were in the way of a much needed reform of the property system, then they would have to go.

The little that we do know about Christians and their marital practices before Constantine shows that they followed quite traditional patterns of marriage and family formation. In this light, Evans Grubbs argues that it was Constantine’s aim not so much to revolutionize the marriage system of most persons, as to institutionalize the existing practices of most persons in the context of a society where property relations and social statuses had undergone significant changes from the time of the high Principate. For example, in social practices that had evolved over the first centuries of the common era, betrothal gifts had come to have a heightened significance, and, naturally, had occasionally become the subject of legal disputes. In a series of constitutions, Constantine therefore moved to give engagement a legal status akin to that of marriage and called for the formal registration of all prenuptial gifts and payments (158). Given this context, Evans Grubbs rejects hypothetical ‘eastern influences’ as an explanation for the emperor’s legislation on (what were much later called) arrhae sponsaliciae (176-83). Likewise, she demonstrates that the law on raptus was less directly concerned with the modern crime of rape, but rather was meant to address the problem of forced marriage by abduction (which seems, for example, to have been a common practice in some of the highland zones of the Balkans and Asia Minor). ⁷ It was a social custom that was later followed in the violent local societies of the post-Roman west. ⁸ The penalties were fierce, but the practice continued and was surely, as Evans Grubbs argues, a local custom that was dealt with in the context of negotiations at local level where the Christian clergy were loathe to enforce the state’s draconian penalties (190-93). The practice continued to attract state regulation in the mediaeval West, because states were concerned with regulating and controlling the networks of violent inter-familial feuding (in which marriage by abduction was sometimes a useful tactic). The legal interventions by the state, therefore, had little to do with Christian moralizing.

It is when we get to the imperial legislation on adultery and divorce that we reach the heart of the argument traditionally made for Christian influences. But even here Evans Grubbs is wary and cautious. In his two laws on adultery, Constantine restricted the concerned parties to the immediate family (thereby eliminating gratuitous intervention of third parties and, again, the socially disruptive effects of delatores). ⁹ Now only husbands and close male relatives were allowed to prosecute (209). The measure was hardly particularly Christian in either impetus or result. Constantine thereby neatly satisfied both of the state’s interests in these delicate matters: he publicly signaled the state’s continuing concern with a matter crucial to family stability, but in fact handed the potentially upsetting problem back to families themselves to deal with by their own devices. He won on both counts. He removed the state from the pragmatic, nasty, and messy business of regulating private morals, but still got to advertise the state’s concerns and to maintain its presence in matters of family formation.

It is with the subject of divorce, however, that we finally reach the critical litmus-test of Christian influence. ¹⁰ Evans Grubbs herself admits that Constantine ‘changed [the] legal situation by drastically restricting the legitimate reasons for either party’s initiating a unilateral divorce’. She further emphasizes that the divorce law enacted in 331 ‘represents a complete overhaul of the procedures for unilateral divorce in effect since Augustus’ (223). Indeed, the very language of the law is literally so different from the normal legalese of the chancellery style (256-58), that one suspects the intervening hand of a committed ideologue at work. She also makes good use of the comparative modern historical evidence studied by Lawrence Stone and Roderick Phillips on the sudden and dramatic relaxation of standards for divorce (232-33) in order better to understand the effects of Julian the Apostate’s abrogation of Constantine’s law (which would suggests that he, at least, saw something specifically Christian in it). The balance of all of the evidence, therefore, would seem to indicate a peculiar Christian ‘slant’ to the legislation.

It is not just in closely argued answers to specific legal conundrums such as this that Evans Grubbs advances her argument so well, however, but also in her consistent attempts to set the law in a broader social context. In the course of these elaborations of her main theme she provides a miniature social history of household life. She outlines, for example, how Christians tried to preach a new moral standard, but how the ideals of their mutually faithful and productive monogamy were broken in daily practice by upper-class men according to the traditional rules of their double-standard—revealing, not infrequently, in the complaints of wives a world of domestic abuse and even violence. These social-historical developments and extensions of her main arguments open fascinating insights into social behavior in Late Antique marriages and families, on everything from women’s property rights and the tendency (or not) to use legal ‘guardians’ ( kyrioi) to the messy real-life world of marriage that often involved various types of concubinage or cross-status unions that abrogated the standards of imperial legislation (often unbeknownst to the partners themselves).

Finally, there are ten constitutions issued by Constantine that are devoted to quasi-matrimonial relationships outside the Roman concept of legitimate marriage (ch. 6). Four of these constitutions are on the SC Claudianum that regulated marital relations between free women and slave men—a measure originally drafted, rather ironically, by a freedman of the emperor Claudius. ¹¹ The persistent drive to interpret Constantine’s laws in ideological terms is exemplified by the paradox of scholars who have variously, but stridently, insisted that these laws must be Christian—or pagan—entirely depending on the the scholar’s own committed point of view (271-72). There is no doubt about the basic substance of these laws: they enacted savage protections of the status of the free woman against the effects of her cohabitation with her own slaves. But why? When the emperor Anthemius closed a loophole in 468 (forbidding a free woman’s marriage to her own freedman) the reasons given were concerned with the social pollution of miscegenation—the effects of ‘inferior blood’ on high social status (275). ¹² Evans Grubbs therefore argues that there is nothing peculiarly Christian in these laws—they are part of a harshly reactionary set of measures that attempted to reinforce status distinctions at a time when they were eroding and when the differences, for most persons, between free and unfree were becoming more and more blurred (277). For the elite, however, she contends that it was the old aristocratic sexual ethos that still prevailed (154-56; 313-16). This ethos condemned unequal status marriages, but at the same time was quite prepared to take advantage of those same legal impediments to legitimate intercourse and marriage that were integral to the system to permit men to exploit women of lower social status for sexual purposes.

In almost all of his legislation on family and marriage, therefore, Constantine was mainly concerned with shoring up traditional ethical values and practices. Only in the case of the law on divorce, issued late in his reign, and addressed to the Praetorian Prefect Ablabius, does Evans Grubbs feel that there is a clear-cut case for Christian influence. She argues that normally the emperor was happy to encourage the rise of an institutional apparatus parallel to the state that would manage such matters. His strategy was therefore a much grander, though indirect one: ‘Constantine could encourage that Christianity would affect imperial policy without having to promulgate ‘Christian’ legislation’ (319). Evans Grubbs thereby raises much larger problems about the relationship between law, society, and state regulation that must be faced by the historian of family and marriage. Historians who concern themselves with the history of marriage and family are in a fix. As quotidian ‘lived’ institutions, the realities of both are mainly directly experiential in nature. Since marriage was often formed by a deliberate and ritual act, it attracted more self-conscious reflection, much of it, even when by secular philosophers, moralizing. The facts of family life, as opposed to the ideological representation of them, are even more obscure. Hence the forces that compel historians to a ready-made corpus of evidence: the law. But even on family and marriage all law is not equal. Much of it, one would think, is something that historians use, faute de mieux—ordinarily anything else would be preferred.

To test this hypothesis, one can peruse current textbook analyses on the sociology of our own families and marriages. ¹³ They are intended to deal with the real thing and therefore make valiant efforts to present what is actually happening with family and marriage in our society. These are large-scale formal introductions to the subject that are intended to introduce the serious student to the full range of the subject matter and the evidence relating to family and marriage. The analyses run the gamut from old-style Parsonian structural-functionalism and dry-as-dust 1950s empiricism through 1970s neo-Marxist analyses and 1980s products of multi-cultural approaches, to 1990s feminist studies. Just how significant did any of these studies consider the legal evidence on marriage and family, given the fact that they had access to a great mass of contemporary legal regulation and court evidence on marriage and family? The answer is that no work devoted more than fifteen pages or so to anything having to do with the law, while some works, even standard ones, completely ignored the law and the legal evidence. Most of the works devoted a modest five pages or so to legal data, that is to say, less than one per cent of their content. In short, given the availability of almost any other sort of evidence—newspaper reports, personal memoirs, interviews, photographs, physiological studies—that evidence was uniformly preferred to legal texts. Indeed, rather than use legal texts, many of the authors produced their own evidence, by way of surveys and such.

On those infrequent occasions when they do have recourse to legal regulations and norms on family and marriage, it is almost solely in connection with laws governing marriage, and even here their concerns are almost entirely limited not to marriage and family formation, but rather to its break-up: to divorce and attendant concerns, especially property settlements and child custody arrangements. Although I do not subscribe to the ideological commitments of these texts (and even less to any of the specific research methodologies or programs sustained by them), I think that they are probably right in general terms: that any researcher wanting to know about the lived realities of marriage and family almost intuitively realizes that the law is going to tell him or her relatively little about what is actually happening. Hence this type of evidence is abandoned as soon as any other good sources are available. Historians of the past, however, especially of the deep past, do not have this luxury, and so they are compelled to do what they can with material that is so despised by the modern researcher. But it does beg the question of the connection between the law and the sheer facts of family and marriage, and indeed the question of what parts of the law are more likely than others to be attached to any current concerns. Where is it that laws would be compelled to respond to problems in marriage and family life being put to judges and jurisprudents? And where is it likely that the laws would be more purely ideological in nature—where the law is dialoguing with and reinforcing itself?

When they do use the law as a guide, modern textbooks also lead us to another question of method: are all areas of the law deserving of equal weight in our analysis? Are they all linked equally to actual day-to-day practice in marriage and family formation? We might take two areas in which the Roman law offers a considerable amount of legislation—family formation through marriage and the dissolution of a family and a marriage by divorce. Even when they do consider legal sources (rarely), the textbooks almost never consider any of the law having to do with marriage and family formation. On the other hand, they almost always bring some aspects of the law into play in their treatment of divorce. The texts are surely right in the manner in which they reflect the relationship between quotidian practice and the law. Legal norms and rules are rarely if ever systematically mobilized in marriage and family formation whereas, alas, the presence of the law is pervasive in divorce, primarily because of the proprietorial disputes that attend family breakup.

But Evans Grubbs has indeed produced a volume that constantly, and successfully, strives to represent the contextual non-legal evidence that compels the reader to understand Constantine’s legislation in perspective. The problem with the Roman legal norms, as she well knows, is not just with what areas of the law might be more or less reflective of actual practice (for example, marriage laws as compared to legislation on divorce), but rather with the scope of the law itself, and the extent to which the proclaimed empire-wide ideals typical of Late Antique imperial law-making either were not practiced or were simply disregarded in wide areas of the Mediterranean, especially in its eastern parts (41, 47; 98-101; 239-41). It is in this light that she forces the reader to see the law from the perspective of the massive inertia of widespread popular practices. ¹⁴ Another immensely detailed study that appeared almost simultaneously with that of Evans Grubbs’ is Joëlle Beaucamp’s two-volume ‘big work’ on the place of women in Byzantine society. It also set itself the same agenda: to discern elements of continuity and change between the high Roman empire and Late Antiquity. Although Beaucamp’s analysis set as its subject the precise question of the status of women, it also necessarily traverses the institutions of marriage and the family. ¹⁵ Her findings overwhelmingly converge with those of Evans Grubbs—the powerful continuity of traditional practices in matters of family and marriage, especially of local and regional ones, is writ on every page, often directly in the face of imperial legal norms.

A potential difficulty with Evans Grubbs’ approach is that, even if only for analytic purpose. it might well polarize ‘pagan’ and ‘Christian’ too artificially. Continuity from previous ‘non-Christian’ practice does not necessarily mean that there was no Christian influence, strategic aim, impulse, or vision behind the sort of legislative shifts that she is studying. There may well have been a more complex process at work—and, if it was, this more complex process would make a simple testing of Constantine’s motives difficult indeed. If I might be permitted, I would like to use an analogy from a quite different sphere of social behavior, that of education. The Christians never developed their own separate system of ‘primary’ and ‘secondary’ education; they readily accepted a ‘pagan’ educational system that had Christian boys learn pagan gods by rote, memorize classical pagan texts, and work with exempla and cases filled with patent immoralities. Why? Clearly because those who were empowered to create Christian institutions were quite happy to embrace a traditional cultural instrument, since the invention of a whole new one based on Christian principles raised the threat of an unknowable, but potentially very disruptive series of changes to the current social order—an order that was underwritten by traditional institutions and practices which included not only the schools, but also the edifice of the law. It is possible, therefore, that a movement to Christianize could very well incorporate existing pieces of social instruments as deemed necessary. Constantine’s motives could have been Christian even if some of his instruments apparently were not.

The Reverend Leathley might have felt moved to place Roman family and marriage at the center of a moral debate and vision of his own day, but a century and a half earlier, in his Decline and Fall, Edward Gibbon had already engaged in much the same set of concerns. It was, once again, within the context of the law, specifically within his narrative on the idea of Roman jurisprudence and the history of Justinian’s codification of the law, that Gibbon embedded his excursus on Roman family and marriage. ¹⁶ Both law and family have been continually caught up in the debate over the power of past institutions and practices, the perceived need to maintain a social order, and the ‘wild card’ of Christian church and ideology. Evans Grubbs has navigated through these shoals with admirable calm and dispassion, and in the process has produced a pathbreaking analysis of family and marriage, and indeed sexuality, that is far less polarized in its terms, but which offers a much more credible interpretation of the process. She is thereby led to a striking and simple riposte to the question that she sets herself at the outset of her work: Was Constantine indeed a revolutionizer and disturber of laws and customs received from antiquity, as Julian alleged? She answers: ‘An innovator and overturner of laws, perhaps, but not, I think, of custom.’ (342)

Surely, she is right. Indeed, her work is a model of a systematic unraveling of the dialectics between law, society, daily practice, and the making of Christian institutions and ideologies, in which we can begin to understand some of the complex inter-relationships amongst them. In place of the stark ‘either/or’ of most orthodox scholarship, she proposes a more dialogic solution that plays with the demands and possibilities of a changed imperial aristocracy and imperial household on the one hand, and of the pressures of the enlarged and less differentiated mass of common persons of Late Antique society on the other. And perhaps her answer is more suggestive about the structural place of the law as a discourse within the whole of the Roman ruling order than it is on a supposed clash between ‘law and custom.’ The Roman law was a pragmatic discourse that was impervious to magical imperatives and religious transcendences, including those of Christianity. The body of the law, however, never failed to insist, and rather successfully, on the necessary deployment its own language and rules. These were part of a discourse that was deeply fixed in a long secular tradition of social regulation, and Constantine, even if perhaps to aid his Christian cause, worked within its imperatives.