Christianising the Roman Empire: the evidence of the Code

David Hunt

Papers and books about Christianising the Roman Empire ought not to be encouraged.

Roman emperors from Constantine onwards issued very many laws which condemned all forms of religious allegiance other than officially sanctioned Christianity. But laws, of course, ‘do not a Christian make’. The relationship between official discrimination and actual religious commitment is inevitably complex, but Christianisation, whatever it may be, was not to be achieved simply by making paganism and heresy illegal.^[391] Questions about the nature and purpose of laws, and degrees of enforcement, lie outside the remit of this Chapter: suffice it to say - obviously - that there is a great gulf set between the emperor’s issuing a law banning pagan sacrifices and what actually happens 'on the ground’ in the local setting.^[392] In the eyes of Eusebius the laws themselves became more Christian: Constantine had remodelled ancient legislation to make it 'more holy’ (hosioterori), exemplified in Eusebius’ view by his removal of the long-standing testamentary restrictions on the childless.^[393] Yet the reasons Eusebius furnishes for the relaxation of the law are not, it has to be said, especially Christian, and seem more concerned with phusis and philosophia (despite his reference to women 'consecrated to God’s service’ who have adopted a life of virginity).

Yet it would be perverse to deny that the laws in the Code do at least reflect changes in the public life of the Empire directly connected with the new standing of Christianity: the restructuring of the calendar, for example, to accommodate the observance of Sunday and the insertion of Easter into the round of public festivals - marked by an amnesty for lesser offenders;^[396] and the forty days of Lent, the days 'when the absolution of souls is awaited’, to be signalled, according to a law of 589 (9.35.5), by an absence of torture. Such provisions are the voice of a government reordering public religion into a Christian framework.

It is primarily as evidence for this redrawing of the boundaries of legitimate religion that I propose to approach the laws. Their religious terminology can prove an illuminating starting point, as demonstrated in a recent article by Professor Salzman, who has drawn attention to the Code’s deployment of the focal distinction between religio and superstitio? By the last years of the fourth century, and the Theodosian enforcement of Catholic Christianity, ‘superstitio’ has come to denote in the laws not only outlawed pagan rites, but (more commonly, in fact) heretical groups and Jews: its antithesis, ‘vera religio’, is reserved for the pure milk of the Catholic faith.

Yet, as Salzman observes, the use of ‘superstitio’ in connexion with pagan rites has emerged from a period of ambiguity before the era of Theodosius, when the boundary of legitimacy between Christianity and paganism had been blurred by the concessions extended to harmless versions of divination, so-called ‘white’ magic. Constantinian laws had permitted at least the public practice of ‘superstitio’ in this form;¹¹ and the tolerant Valentinian I in 371 had even strikingly sanctified the tradition of benevolent haruspicina with the label of

⁹          Michele R.

¹⁰        This was one of several sections of a large law issued at this time, cf. further extract cited on p. 154 and Matthews’ discussion above, p. 41.

¹¹        9.16.1-3, 16.10.1. On the persistence of divination, see A.A. Barb, ‘The survival of magic arts’, in A.D. Momigliano (ed.), The Conflict between Paganism and Christianity (1963), 100-25.

'religio’ (16.10.9). Yet for Valentinian, as for Constantine and his successors, the distinction at issue in the matter of divination was not strictly the 'religious’ one of isolating outside the law rituals which offended against legitimate cult - ‘superstitio’ in that sense was roundly condemned - but rather the long-standing secular boundary between white and black magic: in the wording of Valentinian’s law, between haruspicina and maleficium.^{Schoolbook">[397]} Not until a law of Honorius in 409 do religious grounds explicitly enter the condemnation of magic arts in the Code: specifically in this case it is the mathematici, astrologers, whose is a 'false doctrine’ ('error’) from which they are to be recalled to the 'worship of the Catholic religion’, and their books are to be 'consumed in flames before the eyes of the bishops’ (9.16.12). They have thus joined the roll-call of condemned groups whose existence challenges authorised religion (and no longer just the safety of the state).

Salzman summed up the use of the term ‘superstitio’ in the Code as ‘to separate normative from non-normative religious practices’.

Moreover, the punishment with which the emperor threatens the defiant is exercised in tune with nothing less than the will of God.

This propensity to equate the laws of the emperor with those of God introduces another element in the Code’s religious terminology, the offence of sacrilege. Where the emperor’s orders are ‘divine’, as they are in the world of the Code, to disobey them is to risk committing sacrilege. To usurp a rank not accorded by the emperor, for example, renders one liable to an accusation of sacrilege (6.5.2); to erect unauthorised public buildings in Rome is ‘sacrilegious audacity’ (15.1.27); to disregard the tax exemptions with which Valentinian favoured teachers of painting incurs the penalty of sacrilege (13.4.4) - and so on. In most instances in the Code the threat reads like a standard formula, and is issued in cases which have nothing to do with religion as such. Yet this fundamental association of the term is not entirely absent. Prohibiting tampering with tombs, Julian at Antioch in 363 affirmed that ‘our ancestors regarded it as tantamount to sacrilege (“proximum sacrilegio”) even to move a stone, disturb the earth or tear up the turf ···’ (9.17.5).^[402] For Christian rulers, on the other hand, it was for instance the observance of Sunday which it was sacrilegious to contravene, to 'turn aside from the inspiration and ritual of holy religion’ (in a law which occurs three times in the Code);^[403] or again, to attempt to seize fugitives seeking sanctuary in church precincts was to lay 'sacrilegious hands’ upon them (9.45.4, 431). In these instances the notion of sacrilege retains something of its import as the desecration of the observance of true religion. In a context which sees the emperor’s laws as the source of that true religion, and his punishments as tantamount to God’s punishments, the two aspects of sacrilege come together: the genuinely 'religious’ dimension coincides with, and reinforces, the language of late Roman bureaucracy. We might conclude that 16.2.25 (‘qui divinae legis sanctitatem aut nesciendo confundunt aut neglegendo violant et offendunt, sacrilegium commit­tunt’) was merely a formulaic denunciation of defiance of the emperor’s law, were it not in fact a detached fragment of the edict of February 380 setting out Theodosius’ standard for true Catholic ‘religio’:name="_ftnref404" title="">^[404] the heretic commits sacrilege not merely in the bureaucratic sense of refusing imperial orders, but also in the religious sense of challenging the true faith which issues from the emperor. A law of Honorius of 407 (16.5.41), for example, sees earlier laws against heretics as aimed at the 'destruction of sacrilegious minds’: men’s 'profane desires’ are to be punished, while the protection of the laws is for the benefit of ‘right worship’ ('rectum cultum’). A later text from 415 (16.5.56) sees all heretics as 'desecrating by their contagion true and divine worship C'vera divinaque reverentia”)’. Such language implies an understand­ing of sacrilege in which it has become impossible to disentangle disobedience to the Roman emperor from defiance of the law of God.^[405]

We have arrived, it would appear, at a picture of a Roman emperor whose laws prescribe true religion, dictate the beliefs required by that religion, and set the bounds of what is, and what is not, the proper worship of God. But so far we only have the foreground of the picture: further observation of the landscape reveals that in practice such declarations of true religion were not mere imperial whim.^[406] As with all the legislation in the Code, we have before us the end product oi the processes through which representations were channelled and legal decisions arrived at.^[407] In the case of the laws on Christian orthodoxy, the background is a network of episcopal politics and church councils, aided and abetted by the emperor and his officials. Such had been the pattern established by Constantine, who always professed a somewhat ostentatious deference to the authority of bishops in matters of faith: the emperor merely prescribed what bishops had decided.^[408] In presenting true religion as a matter of imperial fiat, and the emperor as the conduit of right belief, the texts in the Code represent the voice of the emperor’s majesty disembodied from its full context. There is a glimpse of this context, paradoxically, in Valentinian H’s law of January 386 (16.1.4, cf. 16.4.1) granting right of worship to Arian congregations (an interesting survival amid all the laws denouncing heretics and denying them possession of churches).^[409] Valentinian here aims to benefit those who ‘believe according to the doctrines which in the times of Constantius of blessed memory were decreed as those that would endure for ever, when the priests had been called together from all the Roman world and the faith was set forth at the council of Ariminum... and confirmed at Constantinople’, an allusion to the complex episcopal deliberations which lay behind Constantius H’s endorsement of his Arian creed in 359-60. In the Theodosian legislation of 380-1, while there is no explicit reference to the conciliar background, there are a number of indications that it is close at hand, and that the emperor is making his own what the bishops had decided.^[410] References in the laws to the fides Nicaena perhaps need be no more than a routine formula, but it should be noted that the canons of the council of bishops which Theodosius assembled in Constanti­nople in 381 open with an affirmation of the ‘faith of the 318 fathers gathered at Nicaea in Bithynia’.^[411] The imperial order on the rightful possession of churches sent to the proconsul of Asia on 31 July 381 (16.1.3) sets out a summary of belief in an undivided Trinity which flows from, even if it fails to mention, the Constantinople council. Among the documents of the council is a letter in which the bishops requested the emperor to ‘ratify’ the decisions of the council, and the text to the proconsul of Asia in the Code appears to be a copy of Theodosius’ response to this request.^[412] We catch sight here of something of the substructure of the Code’s seemingly Olympian pronouncements of right belief.

This same law of July 381 proceeds to a list of eleven named bishops who are officially authorised as setting the standard of correct doctrine. Again this can be closely related to decisions of the council of Constantinople, for Theodosius’ list conforms to the organisation of the ecclesiastical hierarchy which the bishops had just approved:^[413] the bishop of Constantinople heads the list, according to the 'primacy of honour’ newly granted him by Canon 3 of the council, followed by representative bishops from each of the (secular) eastern dioceses: Egypt (where the traditional prerogatives of the bishop of Alexandria make him the only match for Constantinople), Oriens, Asiana, Pontica and Thrace. Canon 2 of the council had recognised just such an episcopal organisation reflecting the secular dioceses, and the law departs from it only in failing to include for Oriens the bishop of Antioch (who ranked with Alexandria in terms of special status), a silence explicable - as many have observed - in the light of the disputed claims to that see in the wake of bishop Meletius’ death during the council.^[414] That the structure of Theodosius’ list of 'authoritative’ bishops is derived from the eastern church council is further apparent from the absence of the bishop of Rome, who had only the previous year (as we have seen) been upheld by the emperor as a purveyor of right doctrine.

The imperial pronouncements which make the true faith of Christianity into a matter of official legislation and the endorsement of legitimate 'religio’ thus have behind them mechanisms of ecclesiastical authority and decision-making which have been evolving since Constantine. These mechanisms are further visible in an eastern law of 421 addressed to the praetorian prefect of Illyricum, which orders that 'all innovation shall cease, and the ancient ecclesiastical canons which have been in force up till now shall be observed through all the provinces of Illyricum’ (16.2.45). Aside from implying the now familiar association of approved religion and the traditional, this law openly endorses the authority of the church’s own procedures; and there is explicit legal echo of church canons in this text’s identification oi the special ecclesiastical standing of the bishop of Constantinople, 'that most reverend man of the sacred law’, whose see 'enjoys the prerogatives of old Rome’.^[415] That the conclusions of church councils should be incorporated in this way into the legal responses of the emperor is a development implicit since Constantine, and a measure of the institutional standing which Christianity has come to enjoy in the Roman Empire during the fourth century.^[416]

It is to the laws as illustration of this institutional position that I _now wish to turn: not so much the ‘background landscape’ of rarely mentioned church councils, as the explicit recognition of the church’s privileged place in the eyes of the state. The 421 law cited above includes the insistence that matters of ecclesiastical dispute are to be reserved for the judgment of bishops, and it can serve to introduce the pervasive theme of episcopal authority and privilege.^[417] Bishops have some claim to be counted among the Code’s leading characters. We have already encountered them summoned up as exemplars for the official definition of the true faith, but once such matters have become the concern of the law it is not so surprising that the bishops as creed-makers should find themselves deferred to in a legal context. More striking, perhaps, that the law should concern itself with the death-bed salvation of people of the stage, and their fitness to receive the last rites: only after the approval of bishops, ordains this 371 law of Valentinian I (15.7.1), is such a favour to be granted. In a law of Honorius from 409 (9.3.7) it is the ‘laudable care of the bishops of the Christian religion’ which is to press judges into the humane treatment of prisoners (one area, incidentally, where the Code does appear to reflect the influence of Christian principles);^[418] and in the group of laws concerned with the provision of sanctuary in churches and their precincts, it is the bishops who share with the secular power the authority for enforcing the procedures: it is from them that the penalty may be exacted if debtors are unlawfully harboured (9.45.1, 392); and if fugitives in sanctuary refuse to surrender arms then emperor and bishops together share responsibility for their forcible exclusion (9.45.4, 431). In 407 Honorius allows the role of bishops in prohibiting the practice of pagan funeral rites, in the same breath as acknowledging the authority of agentes in rebus in enforcing the laws against heretics and pagans (Const. Sirm. 12 = 16.10.19). In these and similar contexts bishops are being invoked as the allies and instruments of a Christian government.

Few laws, though, are directly addressed to bishops.^[419] Bishops after all had no official standing in the imperial pecking-order. 'Friends of Caesar’ they certainly were, and endowed with privileged access to the emperor’s ear; yet as Ambrose discovered, they remained outside the government and vulnerable to the resentments of those within it.^[420] Bishops were not part of the secular hierarchy: there are none of them in the Notitia Dignitatum. The few occasions when they appear as recipients of laws may indicate circumstances when the bishops themselves through their informal association with the court succeeded in eliciting the responses which have found their way into the Code. Elsewhere such episcopal intervention is actually alluded to: the sparing, for example, of those accused of betraying previously unknown skills of shipbuilding to the barbarians 'because of the petition of the most reverent Asclepiades bishop of the city of Chersonesus’ (9.40.24, 419); and we might justifiably suspect a successful personal intervention behind the exemption from certain tax arrangements of ‘Cyrus the most reverend bishop of the city of Aphrodisias, whose merits are so great that even contrary to the provisions of a general sanction of this kind he shall not be prohibited from enjoying a special benefit...’ (11.1.37, 436).^[421] Here are glimpses of that episcopal lobbying which must have been ever present at the late Roman court.^[422]

As a testament to the institutional recognition of the church in the Empire, where bishops are concerned the Code is naturally preoccupied with their powers of jurisdiction. A bishop’s judgment, according to the first surviving text on the subject of episcopalis audientia (318), is nothing less than 'sacred’; once resorted to, it is final (1.27.1 'pro sanctis habeatur quidquid ab his fuerit iudicatum’). Many years later, in 408, the judicial decisions of bishops are reaffirmed, as given by 'those whom we (sc. the emperors) necessarily venerate’, and accorded the same respect as the authority of praetorian prefects, 'from which there is no appeal’ (1.27.2). It is a lofty comparison, since it was only because they represented the emperor himself that praetorian prefects could not be appealed against.^[423] Constantine’s extension of judicial authority to bishops needs to be seen in conjunction with his professed view of episcopal synods: on more than one occasion he likened the verdict of bishops to nothing less than the judgment of God.³⁹ Small wonder that laws use terms like 'sacred’ and 'sacrosanct’ of bishops’ judicial decisions. The locus classicus is Constantine’s famous reply to the prefect Ablabius’ enquiry on the status of the ‘sententiae episcoporum’ (Const. Sirm. 1: 5 May 333). Good Christian that Ablabius was, as praetorian prefect he may well none the less have been aghast at the extravagant rhetoric of the emperor’s unqualified endorsement of bishops assuming the role of judges: 'the authority of holy religion searches out and reveals many things which the ensnaring bonds of legal technicality do not allow to be produced in court.’ In both criminal and civil cases the judgment of bishops is to last for ever, without the possibility of a review; a bishop’s word is necessarily true and incorruptible, issuing as it does from a holy man ‘in the consciousness of an undefiled mind’. The verdicts bishops hand down are thus for ever inviolable and sacrosanct.

Such a universal commendation of the superiority of episcopal judgments is a remarkable pronouncement to come from a Roman emperor. Hardly surprising, then, that later laws aimed to refine the scope of the bishops’ role.⁴⁰ By 408, for example, it was being envisaged that the consent of both parties was required for a case to be brought before a bishop, on the analogy of the appointment of a private arbitrator (whereas Constantine [1.27.2] had allowed the unilateral choice of either defendant or plaintiff to have the case transferred). More pervasively in the Code, laws reflect efforts in the years after Constantine to enforce separate spheres of secular and ecclesiastical jurisdiction, and to circumscribe the judicial functions of bishops. Succinctly put, as in a law of 399 (16.11.1), 'in cases involving religion it is appropriate to trouble ("agitare”) bishops; other matters to do with ordinary judges and the public law should be heard in accordance with the laws’.⁴¹ On the same general principle, we encounter laws prohibiting clerical interventions in the secular judicial process, and, conversely, denouncing those bishops condemned by their peers who then attempt recourse to the secular courts and the emperor.⁴² These latter laws in fact have to do with the operation of church councils, and derive from the long-standing Constantinian emphasis on the autonomy of councils and their independence from the Roman state: they thereby introduce a confusion into the view of episcopal _t ³⁹ Above, n. 23, for his remarks after Nicaea; cf. after the council of Arles in 314, sacerdotum iudicium ita debet haberi ac si ipse dominus residens iudicet’ (Optatus (ed. Ziswa, CSEL 26) App. 5).

⁴⁰        For more discussion of the development of episcopalis audientia, see Gaudemet, op. cit., 230ff., and W. Selb, ‘Episcopalis audientia von der Zeit Konstantins bis zur Nov. XXXV Valentinians IIP, ZSS RA 84 (1967) 162-217.

⁴¹        Cf. 16.2.23 (376).

⁴²        11.36.31, 9.40.16 (against clergy intervention); 11.36.20, Const. Sirm. 2 = 16.2.35 (no recourse to secular court). jurisdiction to be found in the Code, by blurring the distinction between bishops gathered in synods and addressing questions of church doctrine or discipline, and bishops presiding as judges in their own courts.^[424] The difficulty is compounded by redrawing the separation between ecclesiastical and secular jurisdiction not only i_n terms of the nature of the alleged offence ('to do with religion’), but in terms of personnel: the state’s jurisdiction is thus not meant for the Christian clergy, who have their own judges in their bishops. So as early as 355 Constantius II was forbidding bishops to be accused in secular courts, ostensibly for their own protection, and ordering their cases to go before other bishops (16.2.12); and in 384 Theodosius reiterated the same injunction to the prefect of Egypt (Const. Sirm. 3), again with the implication that it was unjust to bishops to drag them through the normal courts: 'they have their own judges and have nothing in common with the public laws, as far as ecclesiastical cases are concerned, which are properly decided by the authority of bishops.’ Theodosius’ law ends with specific commendation of bishop Timothy of Alexandria, who is to have charge of all clerical proceedings in the prefect’s domain.

Whatever kind of episcopal jurisdiction, whether of synods or of individual bishops’ courts, is envisaged in such laws, it is evident that the reservation of cases involving church business and church personnel for the judgment of bishops was seen in the official view of the Code as an aspect of the privileged status of the church in the Empire: bishops were not to be 'troubled’ by litigation which was not their concern, and it was as the leaders of a favoured institution that they were authorised to escape from the shackles of the secular courts.^[425] When church privileges were reasserted after the overthrow of Johannes in 425, it was specified once more (Const. Sirm. 6 = 16.2.47) that clerical cases were not to come before secular judges, but were the preserve of episcopalis audientia ', 'for it is not right’, the law continues, 'that ministers of God’s service should be subject to the judgment of the powers of this world (“temporalium potestatum”)’.

Nor was it right, in the Christian Roman Empire, that they should be diverted from God’s service by having to undertake civic responsibilities and serve on local curiae. The point had been put by Constantine in a letter to the proconsul of Africa in the months immediately following the Milvian Bridge, and in a law addressed to the governor of Lucania in October 313 (the earliest on the subject of clerical exemptions preserved in the Code) which insists on the same justification for the privilege: clergy are not to be turned aside from the ‘divina obsequia’ which it was their task to uphold (16.2.2).^[426] Alongside the juridical position of bishops, the enforcement of clergy immunities and tax exemptions is the Code’s most obvious and insistent assertion of Christianity’s new standing in the Roman Empire. More restricted and selective definitions of the entitlement follow in the wake of the first blanket pronouncements, even within Constantine’s own era, in the interests of maintaining local councils;^[427] but still there is the same rhetoric of justification for freeing the clergy from public burdens. Constantius, for example, at Antioch in 361 (16.2.16) singled out for privileges those of particular Christian probity: ‘since we know that our state is sustained more by religious observances (“religionibus”) than by official duties and the labour and sweat of the body’ (even though a few months later (12.1.49) he sought to protect councils and their finances from illicit clergy evasion). It is the Christian clergy who are now seen to maintain the state’s essential religious services. Many years later (412) Honorius demanded that the churches be free to devote ‘every moment of every hour’ to preaching and prayer: ‘let them rejoice for ever protected by our generosity, as we rejoice in their devotion to the worship of eternal piety’ (Const. Sirm. 11 = 16.2.40). This religious sustenance of the Empire kept company with the more material sustenance of the poor, which the laws recognise as an obligation demanded of the clergy. Thus in the competing requirements of church and curia, the former was not to be denied the resources necessary for its work of charity. A law which exempts clergy from the tradesmen’s tax (the collatio lustralis) for example, justifies the privilege on the grounds that the profits incurred were expended on the benefit of the poor.^[428]

The technicalities of the immunities and exemptions granted to the clergy are beyond the scope of this paper:^[429] sufficient to observe that in the sight of the laws they are the necessary adjunct for a privileged caste charged with the conduct of approved religio. We are back to the drawing of religious boundaries. For it is of the essence of clerical privileges that they should be confined to the proponents of authorised orthodoxy: when first encountered, as we saw, they are being accorded to the Catholics in Africa to the exclusion of the Donatists. One of the most regular features of the litany of laws denouncing heretics is not only that the offenders should be denied possession of churches and places of assembly, but that their bishops and priests are not clergy at all - they are false practitioners of false religion, who have placed themselves outside the limits of the Empire’s legitimate worship (and of any accompanying benefits): 'their bishops shall not dare to infiltrate (“insinuare”) the faith which they do not have, nor to create clergy, which is what they are not’ (16.5.24, 394). To read through this relentless section of the Code is to be struck by the regularity of the language of separation and segregation used against condemned groups. From first to last the Manichees, for example, 'have nothing which they share with the rest of mankind’, and their gatherings are to be banished from city and countryside; their presence is a contagion, which leaves no place for them on earth.⁴⁹ The Manichees, admittedly, are the ultimate offenders;⁵⁰ but the rest, too, are the object of similar demands for their isolation. In 381 the newly condemned Eunomians and Arians are to be allowed no opportunity to build churches 'in the city or in the country’ (16.5.8); in 388 the praetorian prefect Cynegius is instructed to exclude Apollinarians and others from everywhere, 'from the walls of cities, from gatherings of honourable men, from the communion of saints’. They are to be denied clergy and right of assembly: 'let them go to the places which will best separate them, as though with a rampart, from association with mankind’ (16.5.14).⁵¹ The newest heretics in the Code, the Nestorians, are to have a similar fate visited on them, to be deprived of all meeting-places of every description (16.5.66, of 435). Even more specific deprivations levelled at heretics, such as testamentary restrictions and confiscation of property, are also presented in terms of this wholesale exclusion from the rest of society - finances, wills etc. are part of the normal dealings between human beings which they are to be denied.⁵² The drawing of the boundary around legitimate religion has almost ceased to be metaphorical: the laws envisage a Roman world the borders of which are coextensive with Christian orthodoxy, and which harbours no corner of refuge for the dissenting.

Schoolbook">In projecting this image of an exclusively Christian state the Code reflects the era of its compilation. It is surely no mere coincidence that the latest text denouncing heretics should explicitly uphold the decisions of the council of Ephesus of 431; while the whole section de haereticis is by and large a dossier of the religious policy of the dynasty

⁴⁹        16.5.18 (389) ‘nihil ad summum his sit commune cum mundo’; for similar language, see 16.5.3,16.5.40 (‘nihil ex moribus, nihil ex legibus sit commune cum ceteris’).

⁵⁰                                                                                                                                                                                                   16.5.65 ‘qui ad imam usque scelerum nequitiam pervenerunt’.                                                                      . .

⁵¹        Cf. Gratian’s rescript against Priscillian and his supporters, ‘quo universi haeretici excedere non ecclesiis tantum aut urbibus, sed extra omnes terras propelli iubebantur (Sulp. Sev. Chron. 2A1).

⁵²        E.g. 16.5.17,16.5.40.

6.                             Christianising the Roman Empire _of Theodosius. The 'renowned Constantine’ may have been the starting-point for the compilers of the Code, but for the purpose of asserting normative religion for the Empire Theodosius was the real place to begin. Conspicuously they did not include any pronounce­ments of Constantius or Valens on the subject of right doctrine, which would have accorded ill with the aspirations to universal Catholic orthodoxy to which book 16 of the Code testifies.⁵³

But the laws’ presentation of an empire of Catholic unanimity remains, of course, a very partial view of the Roman world of the Theodosian age. Despite the penalties and denunciations, and despite the threats of confiscation against those who allowed their houses and estates to be used for illicit worship, heretical churches and congregations did not disappear. To look no further than Constanti­nople itself, beneath the eyes of the imperial court, Arians and others continued to assemble in and around the capital and to appoint their clergy - even a succession of bishops.⁵⁴ In the case of paganism, even the laws themselves are less than wholehearted when it comes to specific regulations. Theodosius’ anti-pagan legislation of the early 390s (16.10.10-12), despite the apparent comprehensiveness of its prohibitions, is in fact directed at the behaviour of public figures, and not at the population at large;⁵⁵ and later laws (399) continue to assert the protection of temple buildings and local festive gatherings (16.10.15, 17-18). We have to wait until November 435, and one of the latest texts in the Code (16.10.25), for a clear-cut pronouncement from Constantinople which orders magistrates to destroy all remaining pagan shrines and replace them with the ‘sign of the venerable Christian religion’.⁵⁶ This law contains a revealing phrase, ‘if any shrines still remain intact’ (‘si qua etiam nunc restant integra’): by now the menace from paganism is evidently deemed to be minimal, and hence the concentration of the outrage of the laws against the more present threat of heresy. But that little phrase also sharply exposes the limitations of law as a vehicle of ‘Christianisation’. For it reflects a contemporary world in which the destruction of paganism has been advancing apace (at least since the last quarter of the fourth century) at the hands of missionary bishops, fanatical monks and pious individuals, a process which laws have been powerless to control: they can only close the stable door on a horse which has irretrievably bolted. Similarly, a succession of laws in the early fifth century vainly proclaims the protection of Jewish synagogues from Christian

54 ?^{ace Honor}e, op. cit. (n. 22), p. 182 on the Code’s neutrality.

.      See, e.g., J.H.W.G. Liebeschuetz, Barbarians and Bishops: Army, Church, and State

^{face="Century Schoolbook">m} the Age ofArcadius and Chrysostom (1990), 152-3.

Thus 16.10.10 speaks of ‘indices’ and provincial governors and their officia\ 16.10.12 ^a®₆ ^nullus... vel in potestate positus vel honore perfunctus..

r a Although the destruction of statues and altars had already been sanctioned in a law ^{of 4}°7: 16.10.19 (= Const. Sirm. 12).

violence: their repetition of the prohibition on burning down synagogues is a telling indication of where the real front line now lay in Christianising the Roman Empire.^[430] To borrow an analogy from Peter Brown, the laws, like the Duke of Plaza Toro, led the regiment of Christianisers from the rear.