BMCR 2008.06.39

Orthodoxy and the Courts in Late Antiquity

, Orthodoxy and the courts in late antiquity. Oxford: Oxford University Press, 2007. xiv, 344 pages ; 23 cm. ISBN 9780198208419 $150.00.

In Orthodoxy and the Courts in Late Antiquity, Caroline Humfess has made a truly important contribution to the study of the legal history of the later Roman Empire. Not only does she prove the vibrancy of late antique legal thought, too often characterized as vulgar or debased, she also demonstrates how vital forensic (i.e. courtroom) argumentation was to legislative innovation in this period. Although imperial constitutions do provide much of her evidence, Humfress gets around the tricky problem of evaluating enforcement by focusing instead on the issues or specific cases that provoked their formulation, assuming that “virtually all the general laws in the Theodosian and Justinianic Codes were prompted by a concrete case or…a concrete situation (87). Humfress parts ways here with many fine historians, who see limited evidence for real-world impetus behind imperial legislation.1 Nevertheless, using religious legislation as her focus, she makes a very strong case for her unorthodox position, and she is able to demonstrate convincingly the contribution of forensic argumentation to the composition of law in the later Roman Empire. What is more, Humfress shows how churchmen, trained as advocates, contributed significantly to this process.

Her monograph is divided into three parts: Part I focuses on the contribution of judges, jurists, and advocates respectively to the making of law. Part II demonstrates how a number of late antique churchmen received formal forensic education in schools of rhetoric and applied their knowledge to real-world legal disputes. Part III uses ecclesiastical efforts to eliminate heresy as a case-study to show how these churchmen employed their legal knowledge in dispute settlements and contributed to the making of law.

As Humfress notes, from the republican through the late imperial period Romans debated whether rhetoric or law was the core of an advocate’s training. She argues that in the latter period formal juridical study was essential only for those advocates practicing at “the highest levels of the bureaucratic courts,” and that most advocates continued to be trained primarily in rhetoric, which did include some basic legal instruction (14-15). Certainly, as Jill Harries has noted, there were also many courtroom disputants in the later Empire who lacked any formal training at all.2 But, for those who received it, rhetorical education offered instruction in those practices and skills that would be required in the courtroom. Along with iudices and iurisconsulti these advocates were able to contribute to the making of law through their participation in late Roman cognitio procedures, being involved in all stages of the trial. Humfress argues convincingly that a number of imperial constitutions show evidence of having been prompted by the requests of trial participants.

Advocates, certainly, were not the only trial participants to pursue an education in forensic argument, nor the only ones to participate in the “making” of law. Although iudices, for example, received no professional training per se, many Roman magistrates enjoyed earlier careers as advocates, or, at the very least, received traditional rhetorical educations. Moreover, a magistrate also could delegate his role as iudex to an advocate in his administration, even in a case where the latter had played an advocacy role. Imperial constitutions were supposed to guide the judgments of the iudices, who were forbidden from openly rejecting them. Nevertheless, as Humfress rightly argues, they certainly could ignore, interpret, and stretch them as urged by the participating advocates or jurists, whose task it was to convince judges of the applicability of particular legislative precedents. The Roman emperors may have viewed themselves as legal autocrats, but their constitutions were still widely open to interpretation.

Humfress succeeds admirably in the difficult task of making Roman legal procedures clear to non-experts, explaining the courtroom role of the advocates, as well as the iudices and iurisconsulti. She also includes as appendices registers of all known eastern and western advocates from the fourth through the sixth century (drawn from the PLRE as well as other sources). Regretfully, Humfress offers no substantial prosopographical analysis of these individuals in the body of her text, a missed opportunity that she hopefully will address in a future publication.

Although previous scholars have noted the mutually-beneficial relationship between the Roman church and state in regard to law, e.g. the influence of synodal canons on imperial legislation, Humfress uniquely emphasizes the contribution of legal procedure as opposed to theory.3 She argues in Part II that “the practice of forensic rhetoric helped to determine Christian power relations within the late Roman world because it was governed by practical, case-specific applications” (143). In her discussion, she draws upon religious sources previously unexamined for their relevance to questions of legal knowledge or procedure. Prior to Constantine, Humfress explains, Christian communities favored intra-community dispute settlement. Under Constantine and his successors, Roman prelates, who were recognized as iudices, as well as physicians, mediators, and reconcilers, were integrated gradually into the imperial judicial system. Forensic argumentation, as learned in school by these bishops, could be used in pleas for imperial assistance as well as in doctrinal disputations within the Church. Humfress parts ways with earlier scholars by arguing that law and theology in the later empire “had a natural point of contact…because many drew on a later Roman program of career-oriented education (152). Theologians such as Tertullian used forensic arguments in their apologetic and anti-heretical treatises. Most famously, Augustine of Hippo had been a trainer of advocates as a former teacher of rhetoric, and he continued to use his legal skills after his episcopal enthronement by aiding his congregants in their legal disputes. The influence of this education also can be seen in the Church’s willingness to draw upon the secular judicial establishment for inspiration. Not only were procedures for bringing cases to episcopal courts derived from imperial models, even secular architecture was adopted for the ecclesiastical tribunals. Humfress, however, makes the important observation that while civil models certainly influenced ecclesiastical justice, the Church did not adopt them unchanged but rather adapted them as new procedures and rules.

The prosecution of heresy effectively demonstrates the interaction between ecclesiastical and secular authorities in the pursuit of justice. In Part III Humfress shows how heresy, in the sense of “wrong-belief,” became a state crime only in the Constantinian era, although earlier laws certainly had governed the relations between the Roman state and the gods. What changed, she argues, were those acts considered to be religio. Not that definition was always an easy task. Heresy, and by extension orthodoxy, were defined through disputes to which episcopal and clerical participants brought their knowledge of forensic argument. When such disputes caught the attention of the imperial government, the involvement of the emperor meant not only a “resolution” (of course often temporary), but also new legal definitions of particular heresies and heretics. These definitions, in turn, created new categories by which future offenders might be identified. Specific identifications were not always accurate, and Humfress notes that heretics were forced to play a “name-game” in order to dispute the charges against them (247-8). Since legal restrictions were placed on identified heretics, labeling was not a matter to be treated lightly. Even disputants in non-religious cases sometimes used accusations of heresy against their opponents, and advocates were forced to look for legal loopholes to deal with the subsequent restrictions placed upon their clients. Thus, new legal definitions, prescriptions, and restrictions were added to the body of Roman law through the arguing of actual cases. As Humfress concludes, “Litigants and forensic practitioners (both secular and ecclesiastical) played an important role in developing new theological/legal classifications — in no small part due to the fact that the imperial constitutions themselves were (mainly) responses to arguments and strategies developed through forensic practice” (268). This is an important conclusion, and one that Humfress carefully and convincingly arrives at after a careful sifting of legal and theological sources. Her book, no doubt, will prove a necessary read for historians interested in the interaction between secular and ecclesiastical institutions in the later Roman Empire as well as in its still-thriving legal system.


1. E.g. Averil Cameron, The Later Roman Empire (Cambridge, MA: Harvard University Press, 1993), 27.

2. Jill Harries, Law and Empire in Late Antiquity (Cambridge: Cambridge University Press, 1999), 107-8.

3. E.g. David Hunt, “Christianizing the Roman Empire: the Evidence of the Code,” in The Theodosian Code, ed. Jill Harries and Ian Wood (Ithaca: Cornell University Press, 1993), 148-151.