BMCR 2007.11.21

Religion and Law in Classical and Christian Rome

, , Religion and law in classical and Christian Rome. Potsdamer altertumswissenschaftliche Beiträge ; Bd. 15. Stuttgart: Franz Steiner, 2006. 176 pages ; 25 cm.. ISBN 3515088547. €42.00 (pb).

This book is a collection of eight papers written by various authors with different perspectives on the relationship between law and religion from the late Republic to the age of Justinian. In the introduction (7-13), the editors declare that their aim is to investigate two key considerations: on the one hand, law as a tool of the Roman State to regulate religion, and on the other hand “religion and Roman Christianity as a base through which relations between religion and the state have been forged.” This introduction contains a very interesting statement with which I am in agreement: there is a tendency among scholars of Roman law which should be resisted, namely the tendency “to imagine the law as having divorced itself from religious authority in the archaic period, only to remarry an oriental bride in the age of anxiety.”

This intelligent observation reminds me of one made by Momigliano some years ago, perhaps by way of warning: in the face of some over-simplistic ideas that are likely to be found in some of the standard handbooks (such as Fritz Schulz’s Principles, dare I say…), there is no relationship between the “rational” method in Jurisprudence (the Dialectics, for example) and secularity. Significantly, the Italian professor quotes the case of Joseph Caro, an important Jewish jurist and the father of the classical legal code in Jewish law (the Shulkhan Arukh), but at the same time someone who was very inclined to talk with spirits, especially with a maggid who acted as a manifestation of the Mishna.1 The text commented on by the editors in their introduction is also significant: D. (Ulp. 1 Institutiones), the famous distinction made by Ulpian between public and private law, particularly outlining the linking of public law with sacra, priests and magistrates. Obviously, the original context of this definition (3rd century AD) is not the same as that of the Compilation (533-535 AD). Furthermore, it should be remembered that ius publicum“was not a technical term within Roman law in the age of Cicero” (8). The evidence that we have about this branch of law (priests, magistracies…) is mainly in the municipal laws, but if we were to ask about the repercussions of this concept of “public” in the field of religion, for example to distinguish religion from magic or the highly problematic opposition — as expressed by Cicero (Leg. 2. 19) — between separatim and privatim deos habere, we will discover what a difficult task this is. The authors’ commentary of this fragment with relation to the definition of public and private rites made by Festus (s. v. publica sacra 284L) refers the problem to questions such as the sacralisation of space, the opposition between gods and cults summoned publicly by the magistratesand the gods brought to Rome by foreigners. The problem is even more complicated because ‘public’ is to be distinguished not only from ‘private’, but also from ‘foreign.’

The context is also relevant in order to fully understand Paulus at D. 11.7.3 ( Paul., 27 ad ed.). The jurist follows Pomponius in stating that ex consensu tamen omnium, utilius est dicere religiosum posse fieri. The introduction ends with a commentary on St. Augustine’s De diversis quaestionibus 79, 1, which reveals the parallel “use of legal argumentation in Christian polemics” and even of legal terminology in the sense of the texts quoted above. However, I consider the “classical tolerance” invoked at the end of this preface to be doubtful, firstly because I am not so sure that it was only from the period of post-classical law that religion was considered a source of political legitimation, and secondly on account of the ambiguity of the term.

The first paper, by John Scheid, surveys the “Oral and written tradition in the formation of sacred law in Rome” (14-33). This essay, in my opinion one of the best in the collection, deals with a subject that the author had the opportunity to investigate: the misunderstanding of Roman ritualism.2 Indeed, it was commonplace in 19th century scholarship — the author quotes examples such as Ludwig Deubner and Georg Wissowa — to dismiss Roman religion as pure ritual with greater similarities to techniques of magic than to actual piety.

The chapter about “Religion in the lex Ursonensis“, by Jörg Rüpke (pp. 34-46), investigates which concept of religion underlies this late Republican law (44 BC composed of different strata, in the sense that some of them are older than others. The author accepts the thesis of Crawford3 about the lack of a relationship between this law and Caesar’s lex Iulia municipalis, if it was the second part of the Tabula Heracleensis. As everyone knows, only a few chapters have survived (namely, 61-82, 91-109 and 123-134), and among these the material relating to religion consists of 64-65 (on local definition and financing of cult), 66-68 (on priesthood,4 or in other words, pontiffs and augurs), 69 (on the procedures for payments for ritual ingredients), 70-71 (on the organisation and financing of games) and 72 (on the administration of money given to temples). The link between each part is the term sacra, with the exception of the chapters devoted to the priesthood. In this respect, the author notes the absence of a unified concept of religion, or at least a lack of interest in it (p. 35). In a way, it is legitimate to deduce that religion in this context can be identified with rituals, perhaps because it “comes into focus only as it relates to the competence of magistrates” (p. 37). We should also bear in mind that the financing of the cult constitutes the backbone of the system.

Starting from this assumption, Rüpke briefly examines the calendar of festivals, the space, the priesthoods and the ritual (pp. 40-45). Religion in the context of the colonia plays an important role as a cult financed by the political power, and at the same time it has a level formed by… “priesthoods, expiation, burials and ancestor cult” (p. 45). In fact, priests are subordinated to magistrates and this aspect makes religion a “social activity subject to the priorities of public law.”

This reviewer finds J. B. Rives’ contribution both clear and concise. It is entitled “Magic, Religion and Law: The Case of the Lex Cornelia de sicariis et veneficiis” (pp. 47-67). The criminalisation of magic in Roman law is not a well-documented process. In fact, a recent study on the subject by Marie Therese Fögen points out the silence of Roman jurists.5 One of the few examples in which concern is expressed about magic is precisely Pauli Sententiae 5. 23 15-18, a text commented on by the author as the starting point of his study. In this fragment, Paul states that magic must be prosecuted, because it might give one person power over another (rites that defligerent or obligarent), implying how difficult it is to define magic.6 In this context, the main problem lies in determining whether the lex Cornelia is actually the basis for the Roman law on magic, or in other words, whether the latter is as determinant as this fragment might suggest. This question leads to another one: what lies behind the concept of veneficium (49-54)? Going against the most accepted theory, the author states that the Pauli Sententiae are not perhaps the best way to understand the original meaning of the lex Cornelia : the venena are punished by this statute as a method of killing someone, and the wider interpretation of the opinions of Paul does not necessarily reflect the view of Severian jurisprudence.7 There are in fact some precedents of prosecution of what Rives calls “religious deviance”, but the principal way to punish this behaviour was probably based on imperial cognitio extra ordinem and not on a development of lex Cornelia. The association of ars magica and lex Cornelia (59-64) does not mean that being a magus is grounds for condemnation under this statute.

The next paper is “Religion, Law and the Roman Polity: The Era of the Great Persecution”, by Elizabeth DePalma Digeser. The author insists (68-84) on the background that Christians — struggling at that time against Diocletian’s legislation — shared with pagans in their approach to the relationship between politics and religion. According to the author, who follows the hypothesis recently expressed by O’Meara, not only Roman Jurisprudence but even Neoplatonist political theory could be part of this background.8 DePalma thoroughly examines these implications in Roman Jurisprudence,9 Neoplatonism (especially Plotinus’ Against the Gnostics, and Porphyry) and Lactantius, concluding with Saint Augustine. In short, the same basis for persecution, i.e. the idea that “legislation regulating divine worship was a component of a polity’s foundation and identity”, was shared by Ulpian and Porphyry, as well by Lactantius (73).

In this context, Saint Augustine’s theory of the two cities represents a “break with the past” (82). Andrew S. Jacobs’ “‘Papinian Commands One Thing, Our Paul Another’: Roman Christians and Jewish Law in the Collatio Legum Mosaicarum et Romanarum” (85-99) starts from the, in my opinion, possible but improbable assumption that the Collatio was written within a Christian setting. In asserting this, Jacobs has recourse to the Virgilian Cento of Faltonia Betitia Proba and the meaning of Moses in this Christian poem. The paper written by Dorothea Baudy (“Prohibitions of Religion in Antiquity: Setting the Course of Europe’s Religious History”) reminds me of Peter Brown’s anecdote in the second chapter of his book “Authority and the Sacred” concerning his nephew on his first visit to Cincinnati Zoo.10 I respect Baudy’s work, but at the same time I cannot agree with what she says about tolerance in this Late Empire context, or at least the way in which she expresses her thesis: it is difficult to link the German legislation of 1998 with sects, and our “pluralistic” societies or 9/11 with Ancient history issues. In short, I would say that starting from today’s problems imposes what I believe is an anachronistic point of view which eventually shapes some conclusions of the research. Obviously, the legislation against paganism ushers in a new era in many respects, but there is not enough evidence of the alleged campaign against the temples, or at least there is an important controversy concerning it, for example, between S. Bradbury and T. D. Barnes.11

Karl Leo Noethlichs tackles the question of the real meaning of legislation against heretics in “Revolution from the top? Orthodoxy and the persecution of heretics in imperial legislation from Constantine to Justinian” (115-125). He states that from Constantine’s conversion Christianisation was treated as a matter of ius publicum in the same sense as sacra in pre-Christian times. This interpretation implies that many characteristics of pagan habits “merged at the level of the cult” (125). For Noethlichs, the distinction between heresy and orthodoxy is nothing but a question of power, which — in my opinion — is not always easy to demonstrate. Consequently, together with this assumption, he cites some texts of Sozomenos in order to stress how the imperial legislation entails a link between civitas terrena and civitas Dei. The first chronological example of this kind of legislation can be found in C Th 16.5.1, where Constantine “avoids tackling the problem of orthodoxy altogether.” Therefore, the first definition of orthodoxy with juridical implications is available in C. Th 16.1.2 in the reign of Theodosius, after Nicaea. In a way, this is true, since the question of orthodoxy always has a political value, but there are other ways of understanding it. In short, the theological and philosophical problems included in the discussions of Nicaea cannot be reduced to this scheme in which power appears to be not merely the main, but even the sole issue.

In the final chapter (“Religion and ius publicum“, 126-145), Clifford Ando deals with matters such as the role played by religion in the Codex Theodosianus and the Codex Iustinianus. In the latter, the recovery by the Christian Empire of ius antiquum according to the definition by Ulpian represents a significant difference with respect to the former (129). The author speculates about the presence of the definition of ius publicum and its ideological sense in the Digest and in Justinian’s Institutions. In this interesting contribution, Ando rightly draws a distinction between the meaning of this definition in the Severan age (when there is a very close relationship with matters of law, religion and social order) and in the new codification. Under the heading of ” Ius publicum : an archaeology” (134-140), Ando develops the exegesis of this Ulpian text and its complex philosophical background, particularly Cicero and the assimilation of Peripatetic influence in the Roman way.

In summary, the editors have striven hard to give this book coherence and unity, and the main line of approach is sensibly organised. As for the formal aspects, the book appears in the typically elegant style of Franz Steiner Verlag. English translations for the Latin and Greek texts are provided, and the book ends with a general and, to the best of my knowledge, exhaustive bibliography. As I mentioned earlier, this work offers a new interdisciplinary approach which has not been taken by many jurists to date.


1.A. Momigliano, “The consequences of new trends in the history of Ancient Law”, in Studies in Historiography, London 1966, 245. Perhaps the most lucid critic of Schulz’s Prinzipien des römischen Rechts, Berlin 1934 (translated and adapted to English Principles of Roman Law, Oxford 1936) is M. Lauria’s review in SDHI 1 (1935) 219-226.

2. Cf. J. Scheid and F. Schmidt, “Oubli et rémemoration des rites”, ASSR 85 (1994).

3. M. H. Crawford et al. Roman Statutes, London 1996, 362.

4. We should take into account that the text offers many editorial problems, not to mention interpolation problems vid. e.g. A. d’Ors, Epigrafía Jurídica de la España Romana, Madrid 1953, 167 ff.

5. M. Th. Fögen, Die Enteignung der Wahrsager. Studien zum kaiserlichen Wissensmonopol in der Spätantike, Frankfurt a M. 1993

6. The author emphasises some ideas that he put forward in J. B. Rives, “Magic in Roman Law: the reconstruction of a Crime” CA 22 (2003), 271 ff.

7. These assumptions are also held by M. Th. Fögen, op. cit. 60 ff.

8. D. J. O’Meara, Platonopolis: Platonic Political Philosophy in Late Antiquity, Oxford 2003.

9. The author provides a commentary on D. and I. 1.1.1. T. Honoré, Ulpian 2 Oxford 2002 had suggested that there is some Neoplatonist influence on these texts.

10. P. Brown, Authority and the Sacred, Cambridge 1995, 27 ff.

11. With respect to this complexity, vid. T. D. Barnes, Constantine and Eusebius, Cambridge, 1981, 210 ff.; S. Bradbury, “Constantine and the problem of Anti-Pagan Legislation in the Fourth Century”, Classical Philology 89 (1994) 120 ff. As F. Paschoud rightly points out (“L’intolerance chrétienne vive et jugée par les païens”, Cristianesimo nella storia 2 [1990] 545 ff.), as far as this subject — intolerance, paganism and Christianity — is concerned, we are confronted by “un décevant dialogue des sourds.”