Introduction

Since at least the legal humanists in the sixteenth century, lawyers and historians have attempted to reconstruct Roman legal texts and principles using Patristic literature from the first six centuries AD.

If approached as literary works, Patristic texts share many character­istics with other extra-legal, literary sources for Roman law - not least in the sense that, as the Roman legal scholarJ.-P. Coriat warns, searching for law (droit) in any non-legal texts raises difficulties inherent in the nature of those texts themselves.³ We shall return to the specific challenges posed by Christian ‘Patristic’ texts below. The rich potential of early Christian writings as sources of information about Roman law is clearly revealed in the ‘Indice dei richiami al diritto nei testi extragiuridici latini dei secoli IV-VII’, compiled as a working list by the Italian Romanist Giovanni Rotondi and published posthumously in 1922, with revisions by Vincenzo Arangio-Ruiz, Pietro de Francisci, and Mario Lauria. Running to 87 pages in its printed edition, the Index lists a myriad of references to Roman legal texts, principles, and technical terms in Patristic and other Christian writings, alongside far fewer references identified by Rotondi in non­Christian Latin grammatical, rhetorical, and historical writings. The first heading of the Index covers ‘Law in general, the efficacy and enforcement of the laws’ and includes entries such as: ‘ius e iustitia: Aug.[ustine] Enarr. In Psalm 145.15... lex naturae: Ambr[ose] Hexaem. 5.21.68... ius Quiritium: Hier[onymus = Jerome] praef. ad. Paulin... ius publicum e ius privatum: Aug[ustine] c. Faust. Man 30.4... ’. The Index then goes on to cite references in Patristic sources to Roman family law and legal status; to ‘diritti reali’ (including the distinctions between res humani iuris/res divini iuris and res corporales/res incorporales, as well as entries relating to property and its acquis­ition, possession and alienation, etc.); to obligations, contract, delict, and inheritance law, as well as to civil process and criminal law and procedure.

‘materiali per una palingenesi delle constituzioni tardo-imperiali’ com­prise numerous monographs, legal sourcebooks, and edited volumes, as well as a scholarly apparatus (updated in 2000), listing authors, titles, and editions of relevant Greek and Latin extra-legal literary sources from the fourth to the sixth centuries AD, divided into ‘profane’ and ‘Christian’ writers.⁵

As we shall see in Section 2, there are a number of Patristic writings that provide practitioners of Roman legal Quellenforschung with direct evidence for the reconstruction of primary Roman law texts. One of the major challenges, however, in reconstructing more general Roman legal concepts and principles from extra-legal literary writings lies in determining which references should count: do we include only those passages where technical (Latin) legal terms and concepts are cited in accordance with ‘standard’ Roman legal conventions, or do we include more allusive and/ or imprecise passages that seem relevant to Roman law because of their general context?⁶ Language, place and culture are important: ‘In a multi­lingual society one language may have a particular association with a domain or activity or profession, and the choice of that language may be seen (for example) as a claim by the user to be working in the relevant activity: it marks his professional identity.’⁷ For the Romans, Latin functioned as the highest technical language of lawyers and imperial administrative officials, as it still does to a certain extent today; as one late-eighteenth-century Polish commissioner for education put it, ‘Latin, even if incorrect, is needed for juridical matters and by men of law.’⁸ Yet the written language of Roman Christian literature up to the early third century AD is uniformly Greek.

Individual early Christian writers, of course, make use of Roman law and legal argument in different ways. One way of attempting to account for these differences is to try to pinpoint the legal expertise and/or forensic rhetorical skill of a given author, using a combination of bio­graphical information and prosopographical techniques (whilst account­ing for possible narrative patterning in the late-antique genre of saints’ lives).¹² Late Roman ecclesiastics came from a wide variety of social contexts, including uneducated and humble backgrounds: coal-burners, farmers, soldiers, labourers, fullers, shepherds, linen weavers, and so forth. Not all were literate, let alone literary. Those early Christian writers who did have some kind of education in grammar and rhetoric could pick up legal terminology, stories and traditions about Roman law from antiquar­ian writers such as Varro and Festus, as well as from ‘school texts’ and other philosophical and literary writings, from plays and comedies, and from Greco-Roman romance novels.

In the mid-third century, the Church Father ‘Gregory the ‘wonderworker’ - later known as ‘Gregory Thaumaturgus’- studied rhet­oric and Roman law with a private teacher in his hometown of Neo­Caesarea (the capital of Pontus, Asia Minor), before setting out with his brother and others for the law school at Beirut; they got as far as Caesarea in Palestine, where they continued their education with Origen, the early Christian philosopher and teacher. Gregory was subsequently consecrated bishop of Neo-Caesarea, but it is perhaps worth noting that he had origi­nally returned home with the intention of practising law. 1⁴ Other Christian ecclesiastics and writers who probably had some education in forensic rhetoric and/or Roman law include, for the Eastern Empire: Asterius of Cappadocia (early fourth century), Basil of Caesarea (c. 330-377/9), Gregory of Nyssa (335-394), Gregory of Nazianzus (c.326-c.39o), Amphilochius of Iconium (bishop in 373), John Chrysostom (347-407), Asterius of Amasea (late fourth-early fifth centuries), Jerome (c.345-419/20), Eusebius of Dorylaeum (early fifth century), Sozomen (c.4oo-c.447/8), and Severus of Antioch (Patriarch from 512-518), and for the Western Empire: Tertullian, Minucius Felix (third century), Arnobius (late third- early fourth centuries), Lactantius (c.250-0325), Chromatius of Aquileia (335/40-407), Marius Victorinus (mid-fourth century), Ambrose of Milan (339-397), ‘Ambrosiaster’ (late fourth century), Augustine of Hippo (354­430), Alypius ofThagaste (contemporary of Augustine), Sulpicius Severus (c.360-420), Victor of Thabbora (bishop in 411), Emeritus of Caesarea, North Africa (bishop in 411), Petilianus of Constantine, North Africa (late fourth-early fifth centuries), Paulinus of Nola (c.352-431), Prudentius (348-after 405), Germanus of Auxerre (d.448), Eucherius of Lyon (c.380- c.450), Peter Chysologus (c.380-450), Sidonius Apollinaris (c.430-c.485), Claudianus Mamertus (mid-late fifth century), and Gregory ‘the Great’ (c.

The extent to which legal and forensic training and practice reveals itself in Patristic and other early Christian writings depends on a number of factors, including the genre of the individual text itself and the intended audience(s). References to Roman law in an expositional homily spoken before a local congregation, for example, are likely to be analogous rather than direct: they might illustrate a point of scriptural exegesis or theolo­gical doctrine using concepts familiar to the audience from everyday life (guardianship, adoption, ownership, debt); or they might develop more involved and technical metaphors borrowed from Roman law. Gaudemet refers to these more technical uses as ‘la construction juridique au service de la theologie’.¹⁵ We also find sermons in which vivid and terrifying descriptions of the Last Judgment are constructed according to the con­ventions of Roman criminal trials; as Brent Shaw states: ‘there is no doubt that bishops appropriated the judicial experience and preached it’.¹ Ecclesiastics, however, also used techniques of forensic argument in direct and practical contexts, such as pleading for imperial privileges and legal exemptions, as well as adapting them for use in doctrinal controversies and in disputes over ecclesiastical authority and jurisdiction.¹⁷

Some Patristic writings - ante-Nicene, Nicene and post-Nicene - challenge the traditions and teaching of Roman law, sometimes as part of a broader anti-Roman polemic and sometimes in the context of more circumscribed arguments, including comparisons between Mosaic law (the lex Dei), specific (Judaeo-) Christian precepts, and Roman law.¹ Clement of Alexandria (c.150-215), for example, claimed that the laws of Greek city-states - in particular Crete, Sparta, and Athens - had not been received from the gods of Mount Olympus (as some Hellenistic traditions claimed) but rather from the Christian God, via the lawgiver Moses.¹⁹ For Origen, writing in third-century Palestine, the Christian God ‘legislating through Jesus Christ for all men in all parts of the world’ was a better lawgiver than Solon, Lycurgus, Zaleucas ‘or any other legislator’.²⁰ In the early fifth century Augustine archly notes that the Romans had to borrow their laws from the Athenians - a reference to the (legendary) Roman deputation to Athens that preceded the drafting of the XII Tables - because their gods had given them no laws of their own.²¹ As the late- fourth-century compiler of the text known as the lex Dei (also referred to as the Collatio Legum Mosaicarum et Romanarum) succinctly put it: ‘you should learn, [Roman] iurisconsulti, that Moses established this first’.²²

Explicit rejections of Roman legal concepts can be seen most clearly in early Christian writings concerning marriage and divorce.²³ For example, in a eulogizing letter written in Palestine in AD 399, Jerome attempted to defend a recently deceased, elite Christian woman, Fabiola, from the ‘scandal’ of having been divorced and remarried, stating that: ‘The laws of the Caesars are one thing, Christ’s are another; Papinian instructs one thing, our Paul another’.²⁴ In chapter three of his treatise On Virginity, Gregory of Nyssa went a step further and actually advised his audience to ‘go to the law courts and read through the laws there’, so that they might learn all the ‘shameful secrets of marriage’ from ‘the strange variety’ of relevant crimes listed in the legal texts.²⁵ Such contrasts between Christian and Roman morality have led some scholars to identify a new ‘Christianized’ jurisprudence in Patristic literature - a jurisprudence based solely on Christian ethics, reasoned out primarily from evangelical teaching and the Pauline epistles, with each Father of the church slowly constructing the new edifice from the materials provided by his prede­cessors.²⁶ For example, we find a contrast similar to the one that Jerome draws between the Roman jurist Papinian and the Christian apostle Paul in Augustine’s Sermon 52, preached at Hippo, c. AD 410-412. In this sermon Augustine presents himself as an advocate defending the case that the Trinity is inseparably three-in-one, for his client, God, before his judges, the congregation gathered to hear the sermon. Augustine refers his ‘judges’: ‘first to Paul [the Apostle] as a suitable iurisperitus in divine law’ and then explains that: ‘Lawyers today also have a Paul who declares the laws for litigants, not for Christians. I refer you, I repeat, to the Paul who declares the laws of peace, not of litigation.’²⁷ Augustine, like Jerome, thus rejects the writings of the Roman jurists in favour of the teachings of Christian Scripture, yet both Patristic authors are thereby able to showcase their own elite familiarity with Roman legal culture. Similarly, when Augustine records his suspicion that a rival ‘Donatist’ bishop of Hippo fears debating him because of his forensic skills in oratory, and offers to send an ‘unlettered’ bishop in his place, he is effectively asserting his dominance in traditional elite Roman terms.

Patristic literature offers a rich and diverse source of information about Roman law and legal culture(s), especially for the postclassical period. Patristic sources, however, need careful handling, not least as the fields of ‘Patristics' and ‘patrology' have their own disciplinary contours and boundaries. The present-day shape of Patristic theology, like the dogmatic study of Roman law itself, owes much to nineteenth-century conventions and scholarship. It constitutes a patriarchal and hierarchical discourse in which one of the ‘most trenchant biases' lang=EN-US>is ‘the privileging of retrospectively “orthodox” writings'.²⁸ Sections 2 and 3 thus follow the lead of more recent historical and theological scholarship in shifting our emphasis from ‘Patristics' to ‘Early Christian Studies'.²⁹ In Section 2 our source base will include early Christian writings that are not ‘Patristic' but which nonetheless can help us to reconstruct Roman law texts: imperial constitutions and codices (‘lawcodes'); juristic writings; and documentary evidence, including petitions, contracts and wills. In Section 3, ‘Christian Ecclesiastics as Roman Legal Actors', I will attempt to move beyond text­based reconstructions in order to analyse Christian ecclesiastics as legal actors in their own right, thus in turn revealing what early Christian writings can tell us about Roman law as a set of social practices, rooted in specific places, times and contexts.

2.