BMCR 2008.07.18

Habent illi iudices suos. Studi sull’ esclusività Della giurisdizione ecclesiastica e sulle origini del privilegium fori in diritto romano e bizantino

, Habent illi iudices suos : studi sull'esclusività della giurisdizione ecclesiastica e sulle origini del privilegium fori in diritto romano e bizantino. Materiali per una palingenesi delle costituzioni tardo-imperiali. Serie terza, Monografie ; 3. Milano: A. Giuffrè, 2005. viii, 401 pages ; 24 cm.. ISBN 8814118477. €38.00.

Unlike prominent subjects such as the episcopalis audientia,1 the privilegium fori has mostly been neglected by scholars, at least by Romanists. This book is dedicated especially to this topic and covers a broad time period, from the very origin of this institution and ranging from the reign of Constantine to the Byzantine Empire. In the introduction (1-14), the author recalls the polemics of the nineteenth century when the legge Siccardi was approved, which abrogated this privilege shortly after the Italian Unification. This statute considered jurisdiction as clearly belonging to the State as a manifestation of its sovereignty. The Roman Catholic Church vindicated this privilege even in the Codex Iuris Canonici promulgated by Benedict XV in 1917. At the same time Banfi quotes the precedents for this polemic in the Middle Ages (Marsilio de Padova) and in the Renaissance. He specifically quotes the commentaries of Jacobus Godofredus on the Theodosian Code, which are always necessary in order to understand this legal book. The privilegium fori had been defended, for instance, by the count Joseph de Maistre, as mentioned by the author.

Methodologically, it is worth outlining some statements in this introduction. The author starts with the dogmatic concept of ordinamento, as conceived by Santi Romano, stressing the Roman tradition that considered religion as a part of ius publicum and which was present in Canon law for years. After these assumptions, Banfi resorts to the dogmatic theories as defined by the great Romanist Emilio Betti. These are interesting but, in my opinion, exegetically risky.2 Fortunately, the author does not spend much time on this line of thought. After that, he rightly comments on the importance of patristic materials as a source and their utility in reconstructing the practice behind the statements we encounter in the imperial legislation.

The first chapter (15-59) is dedicated to the complex subject of the relationships between both jurisdictions during the reign of Constantine. The book under review uses, as the author stated earlier, material related to specific processes until the first intervention of the political power (I deliberately avoid the term “State”) in the quaestio about the status of Caecilian and sprung from the Donatist heresy, which provoked a new intervention by Constantine. Banfi refers to the ideological use of the figure of the emperor and his two constitutions, and addresses the question (C. Th. 1. 27 and Sirm. 1) of the influence of these constitutions on later Canon law by quoting as a significant example a classical canonist such as Burchard of Worms.3

The second chapter (61-109) tackles the first intervention of the imperial power through new norms. The first, by Constans I and Constantius II, is C. Th 16.2.12, a text significantly quoted in Merovingian age, as the author points out. The author offers a historical contextualization, mentioning the council of Milan and the intervention of Saint Hilary of Poitiers (88-96), and a long exegesis of this constitution (96-104).

The third chapter (110-150) discusses the relationship between both jurisdictions during the reign of Valentinian I, an emperor who in fact exercised a moderated religious policy. As the author rightly outlines, this qualification has normally been dismissed as pagan propaganda. Banfi deduces from Epistles XX and XXI by Saint Ambrose the existence of legal dispositions about the privilegium fori that are not preserved but are perhaps present in other non-technical sources such as the Byzantine historian Sozomenos. The historical context is once more in conflict: the controversy between Saint Damasus and the Ursinians about the papal election. The Codex Theodosianius contains, moreover, two constitutions related to our subject: C. Th 11. 36. 20 and C. Th. 16. 2. 20.

The fourth chapter faces what the author calls the first attempts to systematize the legislation between 376 and 385 (151-181). In the Eastern Roman Empire, under the reign of Valens, contemporary of Valentinian I, the Church remained under secular jurisdiction while in the Western, the ecclesiastical competent jurisdiction is granted for the levia delicta by Gratian (C. Th. 16.2.23). This constitution and its ambiguity justify the long exegesis offered by Banfi (153-160), starting with the explanation of Godofredus. In the next dispositions commented upon, Coll. Avell. I 13 and Sirm. 3, the author is probably right in affirming that in the former the appellation to the imperial court was excluded and in the latter Theodosius, whose attribution is clear, means the privilegium fori in the Eastern Empire in the same terms quoted above. The case of Priscillian, as an example of the practice application of these rules, closes the chapter.

The next chapter (183-241) analyses the coordination of both jurisdictions during the fifth century. After a general overview of the subject, what defines the ever-more-frequent interventions of the political power after the ecclesiastical sentence is the acceptance of the ecclesiastical sentence for heresy which means, at the same time, the impossibility of appeal before the imperial jurisdiction (C. Th. 16.2.35 [= brev. 16.1.4]: sit inlicitum tenore sacra nostra adire secreta et impetrare rescripta). The exclusivity — according to the author’s exegesis of C. Th. 16.11.1, by Arcadius et Honorius — was limited in that moment but, in practice, Banfi affirms that, on the grounds of the papyrological and ecclesiastical sources, the bishops acted with absolute freedom. The following pages are dedicated precisely to these questions. The author quotes predominantly from Saint Ambrosius and Saint Basil, among the patristic sources; in the case of the papyri he quotes among other SB 7449 (petition of Aurelia Nonna to the Bishop of Oxyrrhynchus). In the patristic sources it is possible to verify that in some cases the Church resorted to physical punishment, and it is curious that according to Ag. Ep. 9 the verberatio could be applied even to the honestiores. Sirm. 15 is the subject of the next section (212-223). This constitution is related to the collatio between Catholics and Donatists of 410, solved by Marcellinus, a saecularis cognitor according to Godofredus’ commentary. Following the author’s interpretation, the text allowed some kind of privilegium fori for all the clergymen but only for the acts that could imply gross penalties. In this episode, Collectio Avellana is the main source for the conflict of the designation of Pope Zosimus’ successor and the role played by the emperor Honorius. The chapter ends with a reflection about the difficulties of the coordination between both jurisdictions (231-241) against the thesis of some important authors such as Savagnone, Daniélou-Marrou and Biondi, who diminish the importance of this problem. I think the author is right to affirm that the Emperor interfered in matters of ecclesiastical jurisdiction as well. In this sense he examines mainly C. Th. 16.2.45, C. Th. 16.2.47, Sirm. 6 and C. Th. 16.2.47; the process is not lineal, that is, not exactly progressive.

The sixth chapter deals with the privilegium fori in general terms according to the Codex Theodosianus and the Post-Theodosian Novellae (243-257). The singular constitutions of that code were studied in the preceding chapter but here the focus of Banfi’s research is on its systematic conception. In line with what the author stated before, there is no single direction to take on this problem; even some contradictions are present and the institutions are not exactly defined. The analysis of Nov. 35 by Valentinian III is the subject of the next section. This constitution is conceived precisely because of the contradictory or at least ambiguous nature of the legislation included into the Theodosian code. The public power tried to recover the jurisdiction as a civil power and consequently, only through the compromissum, the civil power acceded to the execution of an ecclesiastical sentence. The bishops were not allowed to invoke C. Th. 16.2.12 by Constans nor C. Th. 16.2.23 to have jurisdiction over the levia delicta, so it is possible to affirm that Nov. 35 is a restrictive interpretation, sometimes contradictory, as is the case with 16.2.47 of the Theodosian code concerning the privilegium fori. This attempt, however, was soon moderated by the Nov. maior by Maioranus.

The seventh chapter (259-279) is devoted to the legislation in the Eastern Roman Empire before Justinian’s reign and begins with a preliminary survey wherein the main differences with the Western Empire are clearly outlined. The most important of these differences is, perhaps, that in the East the legislation was more constant and consequently less contradictory than in the West because of the submission of the Church to the Empire. The tenor of the edict called De Christiana Fide, promulgated after the Council of Calcedonia (451), is quite significant; the emperor Marcianus recognizes the authority of the Council in dogmatic matters but, at the same time, he decides in matters such as the status of clergyman. This panorama is attenuated with some jurisdictional privileges — e. g. C. I. 1.3.32 (33) by Leon I — that do not question the system in which the secular power has control over the Church; this system, in the author’s words, acts as a part of the “State”. In this context, Banfi tackles the Acacian schism (484-519). As is widely known, the usurper Flavius Basiliscus, who supported the Monophysite heresy, abrogated the De Christiana Fide edict and consequently the Henotikon of Zeno, which defended the Chalcedonian faith. This episode was very brief but obviously involved some political issues: Zeno recovered his throne and the status of the Church returned to the original point; more important was the overall relationship between Rome and Constantinople. Banfi points out that the role played by Acacius against Basiliscus and Timothy Aereus could be considered at least as ambiguous and maybe as opportunist because during the schism, according to the Collectio Avellana, he got closer to the Pope’s positions. In my opinion, the problem is more complicated and would deserve a most accurate analysis, but this hypothesis is tempting prima facie. A study of the well-known position of pope Gelasius about the Roman primacy specifically formulated during the Acacian schism closes this chapter. In this debate the author outlines the manifestations of Gelasius regarding the jurisdiction of the Church, and he rightly points out that in the Eastern Empire the Church is a State Church, whereas in the Western Empire the pope considers the legislation after Constantine’s reign to be a repository of canonical principles.

The next chapter (281-317) is about the privilegium fori during the reign of Justinian. Banfi investigates matters such as Caesaropapism, which was vindicated by the emperor: the submission of the clergy to the political power (C. I. 1.3.44 [45] and Nov. 83) and the consequently common interest in the repression of the heresy (C. I. 11.9 pr., C. I., C. I. 1.5.18). The last section of the chapter provides a general survey of the Justinian legislation concerning this problem, especially in the Codex and the Novellae. The long and complex Nov. 123 must be outlined as, among other reasons, an introduction of a privilegium fori for the clergymen, but limited to the courts of first instance. The ninth and last chapter deals with the evolution of the privilegium fori in the Byzantine Empire and Gothic legislation. In the latter the tight connections between the civil power and the Church are even more evident. TO quote only one significant example from the main source for this moment, the Variae by Cassiodorus: after some conflicts during the reign of Theodoricus, his successor Atalaricus recognized the privilegium as a longae consuetudinis institutum. In the former the Nov. 123 is still the basis of the development of this institution. The Nov. Heracli I 25 allowed the possibility of submitting a process to the patriarch of Constantinople. In the Epanagoge (III.8; III.10), following Phocius’ influence, the emperor and the Church are both considered as a unity. A few years later, in the Basilicarum libri the essential principles of the Nov. 123 are still present (B. 3.1.37-38). The author sums up his conclusions in a concluding chapter and adds an Appendix that contains the texts of some key sources: Nov. 79, Nov. 83 and Nov. 123, 21-22.

In conclusion, this book offers a dense and interesting overview about the privilegium fori and its historical development addressed to the jurists but also to an audience interested in the history of the Later Empire or even in some problems of political science. The book’s balanced approach generally makes clear the complexity of some of the questions it treats.


1. The essential study is that by F. Cuena Boy La episcopalis audientia, la justicia episcopal en las causas civiles entre laicos, Valladolid 1975. In this case, the problem is the ecclesiastical justice for laics; in the case treated in the book under review is the detraction of some matters from the civil jurisdiction in favour of the ecclesiastical courts.

2. This point is a difficult one. E. Betti had developed his theories in many articles, and some of his affirmations are difficult to coordinate with Santi Romano’s theories: see. e.g., “Interpretazione della legge e sua efficenza evolutiva” (in G. Crifò [ed.], Diritto, metodo ermeneutica. Scritti scelti, Milano 1991 523 ff, esp. 545 ff.). On the other hand, Betti offers a very original and suggestive theoretical framework that deserves more comment by someone who claims he aims to use it. Beyond all doubt, Betti had historical sensibility and his ideas are far from being simplistic. In “Diritto romano e dogmatica odierna” (Crifò, op. cit. 59 ff.), quoted by Banfi, the influence of Croce is evident, and there he insists on the historical conditions of the work of art and the juristic institutions as well. Furthermore, perhaps the best expression of what the dogmatic method is can be found in “Falsa impostazione della questione storica, dipendente da erronea diagnosi giuridica” (op. cit. 393 ff.). I am not persuaded of the legitimacy of using modern categories to study Antiquity but, if so, this use ought to be clearly stated as a methodological question.

3. This author has recently been an object of study in an interesting collection, W. Hartmann (ed.) Bischof Burchard von Worms 1000-1021, Mainz 2000. Of course the problems related to the authenticity of the Sirmondianae Constitutiones are highly complicated and this is not the place to discuss them.