BMCR 2021.09.07

Prolegomena zu den spätantiken Konstitutionen

, Prolegomena zu den spätantiken Konstitutionen. Nebst einer Analyse der erbrechtlichen und verwandten Sanktionen gegen Heterodoxe. Stuttgart: Frommann-Holzboog, 2020. Pp. 889. ISBN 9783772828867.

The monograph is concerned with one of the repressive measures in the legislation of the Later Roman Empire. This measure divested apostates and members of some specifically named heretical movements of the right to transfer property by means of testament, including some related sanctions aimed at preventing the avoidance of this prohibition (the scope of this research is essentially limited to the period before the constitution C.Th. 16.5.65 [AD 428] extended the repression to be applied to all heretics). The objective is to explain the contents and the circumstances of the relevant legal provisions as well as to use them to exemplify the phenomena connected with the formation of the law in the period prior to the Theodosian codification. In view of this, the work can be truly considered as prolegomena for studying late antique legislation.

Riedlberger’s argumentation is very clear, beginning from the lively language (which attempts to evade the eccentricity of academic parlance in discussing already fairly hermetic issues), through the excellent system of internal reference used for all the places where Riedlberger refers to the points or findings presented elsewhere in the monograph, to the very well thought-out structure of the whole publication. The first chapter contains Riedlberger’s presentation and validation of his own view of the Theodosian Code, in particular where his assumptions would depart from the prevailing opinion. The specific subject of research is extended over the following six chapters. The character of Chapter II is deconstructive as Riedlberger proceeds to analyze and disprove the diverse attempts to place this specific provision of the law within a certain wider context. Chapters III to VI deal with an analysis of the laws imposing the prohibition in question on Manicheans, Donatists, Eunomians, and apostates; the order in which these religious groups are discussed is also justified. The structure of each one of these chapters is similar: first some general background information on the situation of each group subjected to this penal measure, thus also the particular circumstances in which the prohibition against making testaments is issued, then discussing (in chronological order) each relevant constitution, and finally some general conclusions. The more concisely written Chapter VII goes on to analyze the later existence of this prohibition as found in the subsequent constitutions of Late Antiquity before pointing out that it would be revived in the Middle Ages. The volume ends with a fairly short recapitulation with several general conclusions which can be drawn from the research performed by Riedlberger. This reflects, at least in part, the character of the present monograph, which definitely concentrates more on the level of detail, yet not without a well-conceived overall vision of the issue.

A generally accepted feature of monographic discourse is the presentation of its methodological assumptions on interpreting the source material in a preliminary chapter and proceeding to validate them especially on those points which may arouse controversy. Such general determinations often turn out to be of more value (from the academic perspective) than the analysis proper and it is fair to say that the initial chapter of Riedlberger’s work contains some original propositions which should not be overlooked by researchers of the Theodosian Code. I am referring here in particular to the discussion on the conception of generalitas, as adopted by the compilers of the Code. Contrary to some scholars, Riedlberger suggests a complete rejection of the direct testimony of C.I. 1.14.3 (AD 426) as reflecting the Western point of view (which was foreign to the commission established by Theodosius II). His alternative interpretation appears to be well grounded in the source material. At the same time, this is a point of vital importance to his further deliberations, which unfortunately cannot be said about a number of other issues taken up in this chapter. One may also notice the uneven treatment of individual topics, but this sense may only come from contrasting this part with the further chapters of the book, where Riedlberger’s analyses are presented with extraordinary attention to detail and concern for including every possible argument used in the discussion.

This constructive segment of the publication, encompassing chapters III to VII, should be given a very high mark. Riedlberger’s findings need to be of course subjected to discussion individually, but it is impossible to do that within the limits of a short review. The overall assessment should emphasize such merits as the remarkable combination of the expertise of both the philologist and the historian of law; the ability to search for a wider context (where Riedlbergerwould sometimes even surpass many experts in this subject matter); the level of precision, even though one could wonder if Riedlberger does not demand too much precision from the language of late antique legislation.

A polemical element is very much present in Riedlberger’s argumentation. We observe here a considerable thoroughness in the attempts to find any disparate view, any interpretation of even the slightest detail that is different from his own. A cause for some concern, however, is that the divergent opinions are almost always reduced to workshop errors: mistranslation or misinterpretations of some legal terms, referring to non-existent places in the text, expressing arbitrary and unfounded statements, or (at the very best) failing to observe some broader context allowing us to understand a specific term or a legal provision properly. Enumerating all such failures is of course correct and very much needed, but the question is whether the whole academic discourse on the points which are at odds with Riedlberger’s findings can be reduced to instances of school-level incompetence on the part of his polemical opponents or if this is just a case of some peculiar manner of representing their propositions. It is also surprising that this critical style is extended into the sources, in an attempt to prove the point that the ancient jurist or even the law-giver himself would have failed to grasp the content of some provision of the law, especially as on some other occasions Riedlberger offers a much more elegant explanation, pointing to the deliberate manipulations done to particular provisions of the constitutions. It also appears that in his passion for polemics, his occasional advances into the fields of factual history are quite unnecessary, e.g., in his account of the history of anti-heretical suppression and the heretical movements, especially as he himself states that the character of his work is not historical, but purely in the domain of the history of law.

We could find some fault with Riedlberger in that he is not very consistent in following his own declaration, but the precise separation between the two domains is very difficult here. Discussing the historical circumstances of the enactment of the constitutions belongs in the realm of history for obvious reasons, but it also has the role of supporting the discourse falling under the history of law. In addition, it is exactly Chapter IV, where Riedlberger reconstructs the historical background of enacting the laws against the Donatists, that seems to be one of the highlights of the present volume.

If we are to reckon that the final word represents Riedlberger’s comprehensive and summarizing view of his own efforts, it may be surprising to note that he regards the role of his work in rather deconstructive terms, through the invalidation of the existing explanation of the phenomenon (legal provision) subjected to analysis, offering us instead a vision of a fairly random evolution, legal regulations formed gradually and without any preconceived design, formulated in response to some specific challenges of the moment, inspired (at best) by similar solutions previously applied towards one of the four groups submitted to suppression. Consistently, we must recognize the crucial role of Chapter II of the monograph, where Riedlberger takes up deconstructing both the existing and the potential theories with their attempts to place the relevant legal provisions within some larger context.

Unfortunately, these are exactly the points where Riedlberger’s criticism is apparently the most controversial. While rejecting the hypotheses on the connection between the testament prohibition and the penalty of infamy on the basis of his own definitive interpretation of this term, he seems to be fairly unconcerned with the source-based details which could be potentially contrary to this authoritative interpretation. Likewise, in his survey of the other regulations of the penal legislation in religious matters, Riedlberger seems to have failed to observe the essential difference between the sanctions for merely being a heretic or an apostate (like the one in question) and those which were applied against religious dissidents for a specific action, e.g., holding a religious service.

The weakest points can be found however in dealing with the terms and expressions which refer to some form of exclusion of dissidents from the Roman community on the strength of this particular penal sanction. Here Riedlberger appears to rely on the following dichotomy: each expression in the text of a late antique constitution must be either an empty rhetorical embellishment or possess a strictly defined legal content, even if it is hidden behind some less strict wording. As a result, he fails to take into account an aspect such as the ideological message of Imperial constitutions (a subject of academic research since at least the 1960s), as present in the justification for the use of definite legal regulations. To ridicule the attempts at finding a strict legal content of the terms such as congressus honestorum is, in this context, an outright misinterpretation. It is obvious that such terms were formulated on the ideological level, as a validation for the use of some specific sanctions.

The problem is significant in that Riedlberger appears not so much to criticize the discourse over the nature of the analyzed prohibition as to question the meaning of its presence altogether. As a matter of fact, the essential point of the latter discussion is that some part of the sanctions aimed at certain groups of heretics and apostates is not imposed as the punishment for any additional wrongdoing, but a legal restriction arising from their mere affiliation with a specific group, and also that these sanctions (including both the prohibition on the transfer of property by means of testament and the penalty of infamy) come to be justified with the enigmatic “exclusion from the civic community” of individual members of such groups. The most exhaustive interpretation has been put forward by Maria Pia Baccari, Cittadini populi e comunione nella legislazione dei secoli IV-VI, Turin 2011; it is surprising that Riedlberger does not decide to argue with her position on this point more substantially. It would seem fitting that even a complete rejection of someone’s thesis should have been accompanied with a presentation of the latter and a sufficiently justified argumentation.

All the above critical observations are not to be taken as an attempt to question the value of this monograph. In fact, even the acceptance of Baccari’s hypotheses would not undermine Riedlberger’s proposition; as Schmidt-Hofner points out, the constitutions formulated in reaction to a particular situation could, at the same time, serve the purpose of a consistent realization of some more broadly conceived idea. Peter Riedlberger’s monograph is surely a significant publication, ground-breaking at least in the sense that no future discussion concerning late antique penal legislation in religious matters will be possible without a serious consideration of its arguments and conclusions, including the numerous instances of critical evaluation of the current communis opinio. If it is not considered in the continuing discourse as a final, definitive voice, this is after all the common fate of all, even the superior, academic works.