Rethinking the Roman Context

I will focus on the historical and political context of the Roman rule and its claims to moral superiority, especially in the realm of sexuality. The effects of this moral propaganda on Mark and other early Christian writers can only be understood by rethinking the premises that have pushed the Roman order to the side in analysis of Christian texts.

The conclusion that the laws were unsuccessful is more problematic, since it requires a judgment about the aims of the laws. The laws apparent­ly did not stop adultery, nor did they repopulate the army with citizen soldiers. But these are far too narrow constructions of their purposes, which appear to have been as much ideological and propagandistic as pragmatic. They played a significant role via “the power of images” in the imperial discourse described by Paul Zanker.^[172] The Augustan scholar Karl Galinsky analyzes the marriage laws as moral initiatives undertaken by Augustus in the role of “transformative” leader, but also identifies them as an intrusion into the life of every Roman that sought to make them live up to the moral claims by which imperial rule was justified.^[173] He observes that they attracted the most comment from the jurists of any body of laws.^[174] This observation should probably be emended to say that they attracted the most surviving comment.

Nor did the laws fade quickly from the scene. Throughout the first century, the laws, with the vast fund of Augustan imagery, were a means by which successive emperors could claim to follow Augustus in renewing the res publica. Susan Treggiari observes, “The [Julian] law [on marriage] received continual attention from emperors, the Senate, administrators and jurists.”^[176] Claudius seems to have been especially active in tinkering with the laws and initiating prosecutions for adultery, demonstrating his concern for pietas and the family while also serving other political ends. Some of these cases, like that of Seneca, seem to have been conducted for manifestly political purposes.^[177] As Judith Evans Grubbs comments,

There was another reason why the legislation remained in force until the fourth century: Augustus and his successors were promoting an imperial ideology that stressed marriage and child-bearing as the foundation of the state. This ideology was promoted in imperial art (such as the Ara Pacis) and on coins, and probably had as much impact on Romans as the penalties and privileges.^{[178] [179]}

Seen in this larger context, the laws show themselves to have had quite significant effects for a wide range of subjects of the empire.

I. Rethinking the Laws

In what follows, I will briefly review first the provisions and context of Augustus’s laws, then their effects. This review of the laws and their effects depends heavily on Susan Treggiari’s comprehensive and judicious Roman Marriage.¹³ For reference, I have provided a list of important provisions and effects in the appendix at the end of the essay.

First, the lex lulia de maritandis ordinibus (18 B.C.E.) prescribed penalties for the unmarried and rewards for marriage, penalties for the childless and rewards for child-bearing between fixed ages. These penalties and rewards were largely financial and political, and aimed at the classes that might be political players. What is less widely recognized is that they also bore heavily on freedpersons of property, and particularly heavily on freedwomen. A freedwoman could not divorce her patron against his will and, once divorced, she might be charged with adultery if she remarried without his permission. This law was revised by the lex Papia Poppaea (9 B.C.E.) which altered some of the lex lulia’s provisions and may have included attempts to limit divorces (Suet. DA 34.2).^[180]

The adultery law is known under a variety of names, most frequently lex lulia de adulteriis coercendis, or de adulteriis et pudicitia (18 B.C.E.).^[181] This law criminalized adultery and lending aid to adultery, including the tolerance of adultery by a husband, who could be charged with pimping (lenocinium). It also criminalized stuprum, that is, sex with a free unmarried girl or woman; it may have reiterated the lex Sca(n)tinia’s criminalization of stuprum with a free boy, or submission to penetration on the part of a free adult male.^[182] All of these offenses, including lending assistance to adulterers, could be charged pro adulterio and were tried in a special permanent court for adultery cases established by the law.^[183] The penalties were of a different order from those incurred by infractions of the marriage law; exile and confiscation were the punishment for citizens.^[184] Slaves accused of adultery were questioned under torture. Slaves belong­ing to a man or woman accused of adultery could also be interrogated under torture, and so a period was fixed during which they could not be manumitted. A woman was prohibited from freeing or alienating a slave for sixty days after a divorce, since she might be charged with adultery during that period.

These two laws were accompanied by a coterie of laws that survived less well and so are even more difficult to reconstruct: sumptuary laws aimed at limiting conspicuous consumption, especially banquets, a theater law that separated the orders and the sexes in the theaters and allotted children a special and conspicuous place (DA 34.1). The Julian law also excluded the unmarried from the theatre.^[185]

Of considerable importance for the lives of Jews and later Christians was a set of important but poorly attested laws aimed at the regulation of manumission and freedpersons: the leges Iunia, Aelia Sentia, and Fufia Caninia. Together with the Julian laws, they limited formal manumission to slaves over thirty and masters over twenty, but alleviated this regulation for men who wished to free a slave in order to marry her. They also created the category of Junian Latins: that is, supplied an official status to informally freed slaves, seen as “half-free,” who were accorded some of the rights formerly accorded to citizens of Latin cities in Italy. Junian Latins were offered the potential to become citizens if they married and produced one child who lived a year. The laws also necessitated the registration of births - including those of non-citizen freedpersons. The lex Minicia seems to have provided conubium (right to Roman marriage) for some peregrini (resident aliens) while carefully excluding others.^[186] All of these drew attention to status, and so contributed to Augustus’s goal of restoration and demarcation of the orders.

That the marriage and adultery laws had a broader influence than they are usually accorded also emerges in the provincial codes. Echoes of the laws appear in the codes most available to later inspection. The Egyptian code of the mid-second century B.C.E. (preserved in the Gnomon of the Idiologus) and the codes of the Spanish cities accorded Latin rights included regulation of marriages similar to the Julian laws.^[187]

A word should perhaps be said about enforcement.

Seen in this larger context, the laws had quite significant effects. Although these effects are undoubtedly obscured by time, it is possible to delineate at least some of them. The most widely noted outcome of the adultery law was the criminalizing of sexual misbehavior: of adultery or stuprum with an unmarried girl or woman, and what was, perhaps, the reassertion of the criminal character of stuprum with a free boy or submission to penetration on the part of a free male. That the marriage law asserted imperial control over individual procreativity is less widely emphasized.^[189] But both laws brought the state into the bedroom, making the chastity and fertility of women, which had been the province of the paterfamilias and the family, a matter of state security and criminal prosecution. Not least of their political functions was to supply grounds on which Augustus and succeeding emperors could choose either to show favor toward or to punish political supporters and opponents.

In addition, the laws had, or contributed to, other ideological and social effects. First, the laws enhanced, focused, and propagated the ways in which the late republican culture wars made sexual and marital correctness a badge and obligation of citizenship, the measure of civic and political probity and a central topic of political discourse.

if a woman divorced one husband to marry another or to remain single, she might lay herself open to charges of adultery in the first marriage. The law must have made it considerably more dangerous than before for a woman to divorce a husband unilaterally and to form a successful new marriage.^[191]

As she has pointed out, the laws seem likely to have created an atmosphere of spreading suspicion and anxiety around divorce, and especially around remarriage. “Augustus,” she concludes, “can hardly be said to have raised the tone of conjugal life. He merely made wife, husband, and their slaves and friends more insecure.”^[192]

To summarize, then, two points should be underlined. First, the laws had more important pragmatic consequences for non-citizens such as the informally freed, peregrine, and provincials and for freedperson citizens than has been generally recognized - and so also for some first-century Jews and Christians. Second, a central effect of the laws and ideology was to make marriage and divorce, adultery and stuprum, childbearing and childrearing hot topics of civic and imperial discourse throughout the first and early second centuries. This, then, is where the Julian laws succeeded: they made marriage and childrearing, adultery and sexual misbehavior of every variety a touchstone of morality, civic status and politics. They drew a bright line of marital morality between citizens who possessed conubium, and the slaves, freedpersons, and foreigners who were driven to emulate it. There were certainly first-century Jews and Christians (including the audience of Mark), who fell on both sides of that bright line, and were acutely aware of their positions.

II. Philo: Reading the Law of Moses in Roman Terms

Philo was a particularly salient case of “hybridity,” a voice from the boundaries of the imperial culture and its subjects, engaged in the complex cultural negotiations needed to claim space in Roman Alexandria for the politeia and eusebeia of the Alexandrian Jews.^[193] Highly skilled in the Greek language that distinguished him and other Greek-speaking Jews from the “barbarians,” Philo found in Platonic metaphysics and Stoic ethics the best possible keys to the full meaning of the law of Moses. His Greek resources were the intellectual currency of the Roman empire. Maren Niehoff has argued that Philo was himself a Roman citizen.^[194] If that was the case, he would have been bound by the Julian laws. Whether or not he was a citizen, he was engaged at the highest level with the Roman order, at least during his ambassadorial efforts on behalf of the preserva­tion of the Jewish politeia of Alexandria. Not surprisingly, when Philo explains Jewish laws on marriage they fulfill and exceed the moral demands of the Roman laws. Since this aspect of his exegesis is never explicit and he wrote in Greek, verbal influence cannot usually be detected.

In one very specific instance, it is possible to make an argument for something approaching verbal influence from the adultery law to Philo’s treatment of biblical law. In Special Laws 3.30-31, Philo interprets Deut 24:1-4, the passage apparently summarized in Mark 10:3, as Moses’s permission to divorce. These verses prohibit a man who has divorced a wife to take her back should she lose a second husband through death or divorce. Deut 24:4 LXX describes such a remarriage as an abomination or sacrilege (βδελυγμό), polluting the land (ου μιανεΊτε την γην). Philo’s presentation of this law involves several substantial reorientations of the commandment. Two are particularly significant. First, he begins with the woman, whom he describes as having been parted from her husband and as having “transgressed ancient bonds and chosen new love-charms over old” (3.30). He thus characterizes the woman in terms that suggest that she has violated the Roman ideal of the univira.

Second, turning to the husband, he accuses him of “softness and unmanli­ness” and of marking himself with two crimes (αδικημάτων), adultery and procuring (μοιχείαν τε καί προαγωγειαν; 3.31). The word translat­ed “procuring” here is a Greek equivalent of the Roman charge of lenocinium, the crime the Roman adultery law attaches to a husband who does not charge a suspect wife with adultery, or who takes back a wife he divorced for adultery.^[195] In coupling it with adultery, Philo interprets the prohibition of Deuteronomy as a version of the Julian law on adultery which charged a husband who tolerated his wife’s adultery pro adulterio.

Philo’s overall treatment of the commandment against adultery likewise is formed in part by the way the Augustan legislation and ideology affected the meaning of adultery in his world. For Philo, the sixth commandment is “the first” of “the second pentad” (Dec. 121, 168; Spec. 3.8). This order is determined by the LXX of Exod 20:1-17 and Deut 5:6-21. But Philo also explains it as a moral order: adultery is “the worst of all injustices” (αδικημάτων; Dec. 121, 123-131), a judgment that is likely to be formed in part by the importance of adultery as a moral and political crime in the first century. As a summary of all the laws pertaining to sexual unions, the commandment inveighs “against corrupters, against pederasts, against those who live dissolutely and engage in lawless and unbridled practices and unions” (Dec. 168). As Spec. 3.3-31 interprets Deut 24:1-4 in Roman terms, so also Philo’s summary of the biblical stipulations summarizes the Roman legal prescriptions about sex. Special Laws 3.7-83 organizes most of the biblical prescriptions that touch upon sex under the heading of the sixth commandment, claiming that it comes first because of the extreme moral danger of pleasure (8-12 cf. Dec. 126 ). Thus in the Special Laws, the primacy of the prohibition of adultery is explained through Philo’s philosophical anthropology, while the interpretations of specific com­mandments grouped under the category of adultery often stress the social and political damage caused by violations and stress procreativity as the measure of moral sexuality (see e.g., 3.32-50.).^[196] But throughout 3.7-83, political context and philosophical concerns collaborate in Philo’s effort to bring all the stipulations regarding sex under the adultery law.^[197]

B.