Download PDF | David Wagschal - Law and Legality in the Greek East_ The Byzantine Canonical Tradition, 381-883-Oxford University Press (2015).
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Acknowledgements
This project began as a doctoral dissertation undertaken at the University of Durham from 2005 to 2010. Neither the dissertation nor this book would have been possible without the assistance and encouragement of many organizations and individuals.
Of the institutions that assisted me financially during my dissertation work I must first express my gratitude to the Social Sciences and Humanities Research Council of Canada and the (now sadly defunct) Overseas Research Students Awards Scheme. These organizations provided the bulk of the funding for my dissertation research. I am also very grateful for the conference and travel subventions extended to me by the Fellowship of St Alban and St Sergius and the International Society for Medieval Canon Law.
I continue to owe the deepest debt of gratitude to my doctoral supervisor, Prof. Andrew Louth. Throughout this project, from conception to publication, Prof. Louth provided me with expert guidance and critique, as well as endless encouragement and patience. His vast learning, his generosity with his time, and his perpetual optimism were indispensable in bringing this work to a successful conclusion. I am also exceptionally grateful for the encouragement and the suggestions offered to me by my examiners, Dr. Caroline Humfress and Prof. Lewis Ayres.
Many other scholars and individuals assisted me as I navigated the forbidding and obscure waters of Byzantine law. I am especially grateful to Dr. Ludwig Burgmann, Prof. Wolfram Brandes, and other members of the Max-Planck-Institut fir europaische Rechtsgeschichte in Frankfurt, for their exceptionally warm welcome in April 2009; Dr. (Archimandrite) Grigorios Papathomas, for his hospitality and encouragement during my research trip to the Bibliotheque nationale in May 2008; Ms. Eleana Silk, librarian at St Vladimir’s Seminary in New York, for her tireless assistance in helping me unearth rare Russian and Greek works; Deacon Andrei Psarev, instructor in canon law at Holy Trinity Seminary in Jordanville, New York, for his kind assistance with libraries in Russia; Dr. Evaggelos Bartzis for his guidance and skills as an interpreter during my visit to the canonists of Greece in November 2006; and finally the staff of the Pontifical Institute of Medieval Studies in Toronto for granting me access to their extraordinary collection in the final phases of my research.
On a more personal note, I also wish to thank Prof. Richard Schneider, Professor Emeritus of History at York University, Toronto. During my undergraduate years Prof. Schneider was instrumental in introducing me to the fascinating world of medieval history and in encouraging me to pursue my interests further. This work is in many respects the fruit of seeds that Prof. Schneider sowed many years ago.
Similarly, I wish to express my warmest gratitude to Mr. Peter Drobac, who generously commissioned the cover art for this volume.
Finally, I must thank my parents, Mark and Elisabeth, who have continued to show me extraordinary support, of all kinds, during both the original writing and revision of this work. This work is a testament to their unflagging belief in me, and their very great patience and love.
Introduction to the Law and Legality of the Greek East
The Byzantine Canonical Tradition, 381-883
The present work is an exploration into the cultural history of Byzantine law, and more specifically, the cultural history of Byzantine church law. Its central concern is to illuminate the fundamental perceptions, categories, values, expectations, assumptions, and structures that constituted the intellectual and cultural framework of Byzantine canon law—a set of dynamics that, borrowing loosely from Harold Berman, we may term Byzantine “legal beliefs.” In this, it seeks to complement more traditional legal-historical approaches which emphasize the history of legal institutions, legal doctrines, or, more recently, the manifold negotiations of power and identity in legal discourses. It is not, however, an attempt to illuminate the cultural history of Byzantium through law; it is an attempt to illuminate the cultural contours of Byzantine law itself. It is, in effect, an exploration into the Byzantine legal imagination.
Its particular task is to unfold the cultural contours of law and legality from a close reading of the central texts of the Byzantine canonical tradition AD 381-883. These texts include not only the Byzantine canons themselves, but also the principal prologues to the canonical collections and the tradition’s first forays into systematization. From these texts, and for the most part from these texts alone, it will attempt to sketch a legal-cultural architecture of the system as a whole. This process is in part an experiment in legal-historical methodology, designed to gauge the extent to which such texts can be read to describe and “think” about their own legal world.
Two disciplines form the essential backdrop for this study. The first is the study of Christian law. In this field this work may be considered—albeit indirectly—a companion volume, or even sequel, to Hamilton Hess’s The Early Development of Canon Law and the Council of Serdica and Heinz Ohme’s Kanon ekklesiastikos: die Bedeutung des altkirchlichen Kanonbegriffes.” These works, although focused on different questions, and employing very different methodologies, broach many of the same issues treated in this study. My examination, however, seeks to complement and expand these volumes by tracking developments far beyond the fourth and fifth centuries, if in only one major Christian tradition.
The second is Byzantine law. In this discipline my work has been conceived as primarily addressing a major lacuna: the lack of a modern comprehensive history of Byzantine church law, or even of Byzantine law more broadly conceived.’ Since the early modern period the field of Byzantine law, secular and ecclesial, has been dominated almost exclusively by source surveys.* These studies describe the historical genesis and content of legal sources and legal collections and trace patterns of transmission and mutual influence among these texts. They do not, however, offer synthetic or thematic treatments of legal doctrines, legal institutions, sociological and political realities of the law, or legal-theoretical and legal-cultural patterns. This study seeks to take one small step beyond these surveys by developing a more synthetic treatment of at least one of these areas, the last.
In the context of both disciplines, this work also has a broader methodological goal: to delineate more clearly the problem of early medieval law as a topic of cultural historical research—something in itself rarely considered— and to further develop a “vocabulary” and set of techniques for its study. My hope is that this will not only contribute to the long-term development of a much more comprehensive account of Byzantine law and Christian law than currently exists, but will also ignite interest in a subject that remains neglected within the mainstreams of late antique and early medieval studies.
This project faces a number of challenges. Ironically, the most significant emerge as deeply ingrained prejudices within the scholarly disciplines of Byzantine and church law themselves. Two scholarly narratives in particular have played a prominent role, directly or indirectly, in stifling creative investigation of our subject. Their influence is both pervasive and pernicious.
The first is the old but omnipresent narrative of late antique/Byzantine legal decline and corruption.” This narrative has been especially characteristic of accounts of secular law, where the story of late antique and Byzantine law has been principally the story of a gradual falling away from the conceptual heights of the classical Roman jurists. Fritz Pringsheim voiced a central conviction of this narrative when he traced the narrative curve of Roman law as one of steep classical ascent and post-classical descent: “Roman classical law rises like a mountain above the common level of the [other ancient laws] and it slopes down again to the previous level in the Byzantine period.”° For legal historians of this tradition the central problem of late antique and Byzantine historical research is precisely—and perversely—the apparent defectiveness of their subject in comparison to its classical predecessor (and, implicitly, medieval successor). The task of the historian thus becomes largely the enumeration and examination of all of the ways in which late antique and Byzantine law simply did not “work” as it should. The litany of complaints is long, and reflects the legal pieties of historians trained in modern continental law: doctrinal coherence and elegance seem elusive; the system was oddly rhetorical; jurisprudential activity ebbed; facts and law and law and morality became “confused”; equity and substantive justice tended to win over procedural regularity; legislation became embarrassingly ornate and conceptually clumsy; juristic autonomy (from political interference) and creativity waned; the rule of law was poorly observed; and laws generally lost their importance and efficacy as effective instruments of policy and of dispute resolution.” In light of these “failures,” the central task of the legal historian becomes the exploration of the causes and results of this evident decline.
A more moderate version of this narrative appears in the tendency to cast Byzantine law as a significant subject of study only in its role as a static repository of ancient Roman traditions.* In this narrative it is conceded that the Byzantines preserved important legal knowledge, but that they themselves did not appreciate, understand, or develop this heritage: the Byzantines lacked the “spirit” of Roman law,’ and their law possessed a “poverty” of content.'° Implicit in this narrative is the idea that this heritage did become properly appreciated once more, namely during the great flowering of western medieval jurisprudence and, beyond that, in the European development of the ius commune generally—culminating, perhaps, in the 19th C German Begriffsjurisprudenz that forms the background of much 19th and early 20th C writing on Roman legal history. In any case, the history of Byzantine law becomes chiefly a story of transmission and anticipation, and thus of minor interest in and of itself.
This last tendency is one aspect of the second major narrative under which the modern study of Byzantine law labors: primitivism. This narrative is primarily a feature of the historiography of first millennium western law, this time more specifically ecclesiastical law, but its shadow falls over eastern developments as well. In this narrative, legal developments of the first millennium are consistently cast as a story of the slow but inevitable—almost providential—progress of law towards the 11th-12th C western legal developments. In canon law, the chief event is the transformation of canon law into an independent legal discipline on the model of the revived medieval Roman law.'! This development is posited as the natural evolutionary endpoint of church law, and everything before this period is thus examined almost entirely, if perhaps unconsciously, in terms of the inchoate and “not yet,” as simple prefigurations of later advances. Earlier developments are thus once again of little interest in themselves. Byzantine church law is rarely an explicit subject of these narratives, but it nevertheless suffers from association as the eastern counterpart to the first millennium western tradition, and from its own distinct lack of a medieval transformation comparable to that of the 12th C west. By implication, Byzantine church law remains only an example of a “primitive,” pre-medieval, stunted legal world.
Both of these narratives have had a particularly crippling effect in the area of the cultural history of law. The logic is inexorable: if Byzantine law, secular or ecclesial, is simply the story of decline and decadence, and/or primitivism, it is precisely the intellectual and theoretical underpinnings of these historical realities that become least deserving of scholarly attention. Indeed, for the most part, until relatively recently, they have been almost completely ignored.
Only a few countervailing currents in the older literature may be remarked. Two scholars in particular were almost unique in their attempts to present sympathetic accounts of late antique and/or Byzantine legal culture without pronounced recourse to the usual heuristics of legal decadence or primitivism. Each was interested not only in describing the cultural contours of the legal phenomena of this “dark age,” but also in attempting to develop a set of categories and models for explaining and understanding these phenomena. Unfortunately, neither author has been particularly appreciated for his contributions in this regard.
In canon law the towering figure is Rudolph Sohm (1841-1917). A Romanist by training, Sohm turned his hand to the history of canon law in two major works: Das altkatholische Kirchenrecht und das Dekret Gratians (1918) and his two-volume study Kirchenrecht (1923). In these studies, particularly the latter, Sohm pursued the thesis that the “essence” of law is opposed to the essence of the church, and that therefore the history of church law has been mostly a long, sad story of a slow disintegration into secular legalism. For Sohm, the 12th C medieval developments, in particular, far from marking a moment of advancement and evolution, represented precisely the critical and catastrophic moment of “fall” into legal formalism—a kind of legal devolution.
This polemical Lutheran reversal of the standard Roman Catholic narrative led Sohm—almost accidentally—to reconsider the 4th-11th C developments in a more sympathetic light than virtually anyone previously. He even developed a model of early medieval church law as a proprietary “sacramental” altkatholisch law, distinct (and superior) in many critical ways from the later medieval synthesis.'* Estimations of this model vary, but the chief value of his work for our purposes is simply the attempt to consider this early medieval legal material as constituting a mature legal world worthy of detailed exposition in itself, on its “own terms,” with its own values, preoccupations, and coherence.
Unfortunately the polemical, even homiletical, tone of his work, and the strained nature of some of his analyses (especially of Gratian’s Decretum), have justifiably discouraged appreciation of his ideas by later legal historians. '* Ironically, Sohm also introduced another narrative of decline into the scholarly mix, this time of the general devolution of all church law from an original charismatic, apostolic purity into the corrupt legalization and secularization of the post-Constantinian church. This narrative of decline-into-legalism has now become quite common in the literature, and is probably as detrimental to appreciating Byzantine developments as its secular counterpart.'* Nevertheless, despite these problems, Sohm’s brief treatment of early medieval church law remains among the most insightful assessments of pre-Gratianic law, eastern or western, ever committed to paper.'” We will return to some of his exceptionally prescient formulations throughout this work.
A more respected, and better-known, work is Biondo Biondi’s three-volume II diritto romano cristiano (1952-4). This monumental study addressed almost all aspects of the transformation and appropriation of Roman law in the late antique Christian context. Although dated, it continues to be consulted as a point of reference for all manner of specific problems and issues of institutional and doctrinal development. The overall thesis of the work, however, has generally been neglected, even if it may be the most valuable and creative aspect of the whole study—certainly it is for our purposes. Biondi’s central concern was to show that all of the traditional “failures” of late antique law can in fact be read as specifically Christian cultural reformulations and re-evaluations of the nature and purpose of law. Biondi thus tried to explore late antique legal developments in terms of cultural change, not simply cultural decadence, and therefore managed to produce a much more nuanced and sympathetic account of the late antique Vorstellungswelt than would otherwise be possible.
Unfortunately, like Sohm, Biondi’s scholarship is directed by confessional concerns (this time Roman Catholic), and the scope of his argument (from late antiquity to the 20th C), along with his startling tendency to build arguments from late antique legal texts and modern Roman Catholic pronouncements in almost the same breath, can leave historians today a little nonplussed.'® Nevertheless, his work—like Sohm’s—retains its value simply because of its attempt to treat post-classical law as a subject worthy of careful culturalhistorical examination and explanation in and of itself. Many of his observations remain fundamental.
Beyond these early figures, it is only very recently that the disciplines of late antique and Byzantine law as a whole have attempted to confront systematically the older narratives of decline and primitivism. The present work may be identified as another such attempt. Here, however, a certain methodological bifurcation may be remarked in how specialists in late antique law and Byzantine law have approached this problem.
The Byzantinists, particularly those associated with the Max-Planck-Institut fiir europaische Rechtsgeschichte in Frankfurt, have tended to address the problem of decline by completely rethinking the formalist cultural-legal paradigm that has generated the narrative in the first place. Instead of trying to fit the observed phenomena into a modern formalist mold, and to find various political or social rationales for its failures, they have tended to formulate a new paradigm to take account of the changes witnessed—that is, like Biondi, to attempt to read the “failures” as conforming to a new and very different cultural ideal of law.
The pioneering text in this regard is Dieter Simon’s 1973 work Rechtsfindung am byzantinischen Reichsgericht.'’ In this study—still poorly known outside of specialist circles—the decisions of a judge of the Hippodrome, Eustathius, preserved in an 11th C Byzantine legal textbook, the ITeipa, are analyzed in terms of modern continental legal-scientific Rechtsdogmatik. Not surprisingly, Eustathius’ decisions come off badly: terminology is varied for purely aesthetic reasons; decisions that could be based on laws are based upon equity; similar cases are treated completely differently and with reference to different laws; laws are sometimes sought after a decision to provide a predetermined penalty; and interpretative rules run wild.'®
To explain these results, Simon does not, however, declare the [Jeipa an example of primitivism or decline, nor even make recourse to the well-worn narrative of Byzantine political “corruption” or decadence.'? Instead, he considers that the observed phenomena can be explained if we accept that rhetoric itself is the main dynamo of Byzantine Rechtsfindung, and that the laws are employed quite consistently if we consider them analogous to rhetorical topoi.”° In effect—although these are not quite Simon’s words— Byzantine law may be understood as functioning as a grand literary enterprise, focused on justice, and with laws constituting one (and only one) potential pool of literary tools for constructing and effecting justice. Other tools can also be employed, including any type of reasoned argument, a moral precept, or a citation from classical authors. Ultimately, as Simon puts it, one never so much argues “from” the law as “with” the laws.”’ Indeed, the author of the Ileipa at one point remarks that “for this decision he [Eustathius] also cited laws””* (apparently they are optional); and elsewhere a decision is praised first for its elegant and morally sound qualities, and then for the fact that it also included legal citations.”*
Simon notes that laws nevertheless remained important in this world, and he includes many examples of quite sophisticated technical rule arguing and application. The continued high status of laws, he suggests, may be explained by the fact that laws remain closely connected to the authority and person of the semi-divine emperor. Indeed, Simon observes, every Byzantine hearing could be considered an extension of the emperor’s personal jurisdiction.”* This, however, tended to heighten the degree of equity in the system, as the emperor’s decision is beyond rational critique or the demand for juridical consistency—it is always a quasi-divine statement in the realm of the Just and the Good.” In effect, laws remain critical, but they must always be read in light of a substantive criterion: the emperor’s sense of justice.
In very few pages, then, Simon turns on its ear any expectation of a Byzantine legal formalism of a modern variety (which I will define more extensively in a moment). Instead, he starts to sketch a reasonable alternative centered around the realization of the quasi-divine substantive justice of the emperor, and the ideal of the negotiation of legal rules in the context of a much broader set of literary and cultural values—all loosely governed by the expectations of an ancient rhetorical education. Modern continental civilian-legal values not only do not appear as ideals here, but they make little sense: conceptual consistency is overruled by concerns for aesthetically pleasing, rhetorically and morally consistent decisions, and judgments are intended to realize extra-juridical ideals of justice. The theoretical place for many other features of modern formalist systems—an independent and “creative” expert judiciary, forensic agonism, technical jurisprudence, the rule of law, the autonomy of law, and even the ideal of submitting to formal rules at all—is far from clear.
One may contest the details of Simon’s conclusions, but his critical breakthrough is on the level of methodology: like Sohm and Biondi, Simon sees the “problems” of Byzantine law as an opportunity for charting an altogether different and rather fascinating legal world. By resisting the temptation to assume the hegemonic ideals of later western legal culture as absolute standards, he opens the way to a much more nuanced historical appreciation of the cultural dynamics of Byzantine law. In effect, he suggests that as long as one is willing to stretch one’s legal imagination, Byzantine law emerges as not only an interesting legal phenomenon, but, taken on its own terms, one that is internally coherent and even rather sophisticated.
Numerous other studies in Byzantine law have since confirmed and built upon Simon’s work. Investigation of other juridical decisions, for example, has tended to reinforce the low place of laws and technical-legal concepts in legal processes: general extra-legal moral or metaphysical considerations, and the rhetorical know-how of presenting them, are often more prominent than the juridical construction of justice.° John Haldon puts it well, commenting on 7th C law: “Judges were not... expected to fulfill their obligations through applying the law, in a modern sense. On the contrary, the law they applied was the morality of the society—this replaced the normative legal framework— interpreted through the prism of inherited legislation.””” Law was essentially an exercise in applied morality.
The degree to which later Byzantine legislation disappoints as the policy instrument of an active modern-like positivist legislator has also become increasingly clear. Haldon again summarizes aptly: “the legal ‘system’ became less a practical instrument for intervening in the world of men... but more a set of theories which represented a desired... state of affairs... . Imperial action was thus not directed at emending laws to conform to reality, but rather at emending reality to conform to the inherited legal-moral apparatus.”** Legislation thus emerges increasingly as a highly sacralized and symbolic project, more the product of God than a secular emperor, and with the task of providing a symbolic framework for understanding the world and impressing and internalizing moral and metaphysical lessons—not necessarily addressing “real” legal and political problems (although it did this too—at least occasionally).7
In this sacralized world, not surprisingly, standard legal abrogation principles such as lex posterior derogat legi priori—although known and understood—seem to have had disturbingly little meaning, and little consistent use (how do you abrogate a divine law?).*° Similarly the rule of law and the relationship between secular law and church law can never seem to find clear conceptual articulation or delineation.*' Consistent legal-dogmatic architecture of any kind is simply difficult to identify: legal concepts and techniques are known, and occasionally employed, but they are somehow not very important. As is constantly noted, Byzantine law seems strangely rhetorical, and untechnical.*”
Byzantinists, then, in sum, have tended to confront the old narratives of decline and primitivism by rethinking the appropriateness of applying a formalist legal mold to this ancient law. By contrast, scholars in the field of late antique law have generally taken a very different tack. Here researchers have been more concerned to show that the “failures” of late antique law were simply not as bad, widespread, or meaningful as they sometimes appear: late antique law was not so corrupt as usually thought; jurists were still present and active; codification and legislation were still creative, even learned, and more doctrinally coherent than they are usually given credit for; juristic activity was not so closely controlled by the centralized state as sometimes supposed; the rhetoricization of legislation was not as complete, new, or significant as it seemed; the emperor was not so overwhelmingly in control of law as he appeared to be, nor as arbitrary, and participation in the legislative process was broader than often thought; laws were more efficacious than the old narratives allow; and (thank goodness!) there was still plenty of room for clever legal professionals to “play” the system.*?
All of this is undoubtedly true for the late antique period. Nevertheless, it is difficult to shake off the disquieting sense that such studies are still “keeping up legal appearances.” The unstated assumption of much of this research is that the only way late antique law might be possessed of a real legal cultural life is if it conformed to the demands of a modern-like formalist—positivist system (understood to be those of “proper” Roman law too), complete with an ongoing and quasi-independent scientific jurisprudence, a responsive and creative legislative center intent on effecting policy through laws, the rule of law, and a strong emphasis on resolving disputes through the consistent logical application of formal legal rules. Many of these studies thus appear to have internalized the legal-cultural preconceptions of the older generation of scholars. Certainly they have not taken the step that Byzantinists generally have, that is, to ask whether these assumed ideals corresponded to the actual legal-cultural ideals of late antique society in the first place. The deficiencies and problems of late antique law are thus addressed not in terms of the adequacy of our understanding of the legal-cultural model at play—which is in fact almost never raised as a direct topic of discussion in these studies—but in terms of the extent of our understanding of sociolegal praxis.
The reason for this difference is the distinctly sociohistorical turn of much recent scholarship on late antique law. Many scholars are simply no longer interested in exploring the intellectual architecture of late antique law, decline or no.” Instead, providing accounts of sociopolitical realities, and in particular the varieties of negotiations of power of which law is both part and vehicle, has taken center stage. Many recent studies thus treat intellectual-cultural issues, and often very perceptively, but their real argument is usually centered on affirming that, for example, late antique law can be read as an interesting, creative, and diverse set of sociopolitical interactions; legislative processes were informed by a surprisingly dynamic set of figures and influences; or that the rhetorical character of the legislation played an important role in broader patterns of power negotiation.*° For all these topics, the matter of the intellectual or cultural “decline” of law, or indeed the intellectual and cultural underpinnings of these phenomena at all, is simply not a very relevant question, and can be sublimated into descriptions of social practice. Further, the cultural-historical problems that are raised, such as the construction of authority, perceptions of punishment, the textures of imperial propaganda, or the role of law in identity formation, tend to be more about the interface of law and culture than the ancient culture of law per se. In all cases, the specifically cultural-historical problems surrounding the idea of legal “decline,” and the intellectual and cultural architecture of law and legality generally, are bypassed. As a result, the older cultural-theoretical models can easily persist unchallenged just beneath the surface.
This study is deeply indebted to the work of both late antique and Byzantine legal historians, but methodologically it finds its greatest affinity with the trajectory set by the Byzantinists. It too will attempt to confront the traditional narratives of decline and primitivism chiefly by re-examining the culturallegal paradigms that have generated these narratives in the first place—and by further developing the new paradigm Simon and others have adumbrated. In particular, I will attempt to demonstrate that Byzantine canon law did constitute a distinct legal whole and that it possessed its own, sometimes even impressive, internal logic and coherence, albeit of a different kind than a modern lawyer might expect.
Other fields have also informed this work. A particularly important set of background problematics and insights has been furnished by eastern (Byzantine) Orthodox canon law.*® This discipline remains largely unknown in the mainstream western study of legal history.*” This is in part because the bulk of Orthodox canon law literature remains in languages that are not commonly known in the western academy. Equally important, however, is the fact that relatively little modern Orthodox canon law work is strictly historical in purpose or orientation. The dominant vehicles of the modern discipline have been technical canonical manuals.** Written in the categories and forms of the modern civilian tradition, these are orientated towards contemporary (and often highly regional) practice, and are therefore very synchronic in content and method. Even works written in a more historical vein tend to be directed primarily to contemporary problems in Orthodox church life, and are often very theological.*”
Modern Orthodox canonical literature nevertheless remains of great interest for our topic, if simply because the central texts of the present study continue to function as the living legal corpus of the Byzantine Orthodox churches. As a result, much Orthodox canonical literature over the past century and a half represents a fascinating study in the appropriation of late antique and Byzantine legal thought in a variety of modern legal contexts. Directly or indirectly, Orthodox canonists have been confronting a problem not so dissimilar from my own: how to make sense of a pre-modern legal system in the context and categories of a very different, post-medieval legal culture.
The formulations offered by Orthodox canonists to “square the circle” of this difficult appropriation are varied. Broadly, two approaches may be identified. The first, and the dominant, is the “legal scientific” tradition, represented by most of the manuals. This tradition seeks to adapt the traditional texts to the forms and methodologies of modern continental civil law (and often modern Roman Catholic canon law). The degree of adaptation varies, but the typical concerns of representatives of this tradition—who usually have formal legal training of a western type—include how traditional texts can be read in terms of abstract categories of rights, duties, and powers; questions about the valid promulgation of legislation by competent authorities; the constitution of canon law as a valid branch of law; the disciplinary autonomy of law (versus theology); the formal mechanisms for legal change; the development of formal distinctions and definitions (for example, ius sacrum and ius humanum; “doctrinal” canons and “disciplinary” canons; validity and liceity; potestas ordinis and potestas iurisdictionis); and, above all, the consistency and comprehensiveness of canon law as a logical system of formal norms. Broadly, these concerns reveal a strong desire to mold the tradition into a modern legal science.
The second, much more amorphous, stream is mostly characterized by the conviction that modern legal categories—and particularly the formalist “legal scientific” model—are precisely unable to encompass or convey the textures of the traditional canonical materials.*° Representatives of this “school,” who are usually theologians, historians, or philosophers—not lawyers—point to the many dissonances between the expectations of a modern civilian jurist and the evidence of the texts. Typically, law itself is then rejected as a particularly helpful or useful concept for understanding Byzantine canonical phenomena. The canons, it is argued, must instead be understood as only expressions of deeper metaphysical realities. Characteristic is the assessment of Lewis Patsavos: “Although the holy canons constitute the Church’s law, they nevertheless differ essentially from all other types of law... They are not to be understood as legal regulations, but as the practical application of the church’s dogmas”; or Vladimir Lossky: “[The canons] are not, properly speaking, juridical statutes, but the applications of the dogmas of the Church.”** In many cases the canons emerge as something to be bypassed or transcended: one must constantly strive to “go beyond ‘canons’ and ‘canon law’,”*? or one must attain to a higher “canonical consciousness”™* that is apparently above and beyond the canonical texts themselves.*” Similarly, warnings abound against “legal mentalities’*° and “reducing” canon law to legal categories.*” Alternative formulations or hermeneutical concepts are then often proposed, including “jurisprudence of the Holy Spirit,”** or a narrative of a pre-Constantinian legal purity,”’ or various precepts of existentialist freedom,” or attempts at articulating a legal “via media” that is neither too legal nor too antinomian.”’ Not surprisingly, these positions often emerge in the polemical context of establishing a “non-legal” eastern Christian identity over and against the “legalist” west.
None of these formulae, which are more theological than historical in intention and content, will be the object of sustained discussion in this study, but many of the difficulties encountered by both schools, whether in trying to fit the traditional texts into modern molds or trying to devise some type of new formulation to describe the dynamics observed, serve as useful stimuli for my project of articulating a legal-cultural description of the Byzantine canonical world. I will occasionally return to the problems, insights, and formulations of this valuable literature.
To turn to methodology, this work is ultimately not closely aligned with any approach commonly employed in Orthodox canon law, the history of church law, or even late antique or Byzantine law (although Simon’s work is a near parallel). Its approach may best be described as a kind of legal ethnography, albeit of a historical and literary variety. It will thus proceed by exploring how the central prescriptive texts of the Byzantine church—taken together as representing a distinct legal-cultural phenomenon—can be read as articulating the fundamental beliefs and categories of the Byzantine canon-legal world through their very structures, patterns of expression, definitions, strategies of composition, and even stylistic tendencies. It is not primarily an exercise in the history of ideas, that is, an inquiry into the meaning of particular concepts (“law” or “justice” or “canon”) and their development over time. Explicit, conceptual assertions of legal belief and thought—definitions and statements of the nature of law and legality—will be considered, but equally important is the unstated, the unconscious, and the implicit. My conviction is that questions of ethos, predominant images, prevailing metaphors, and fundamental “shapes” of the law’s expression and growth are as important as direct statements of legal theory in arriving at a nuanced and comprehensive description of the Byzantine legal imagination.
Such a methodology—details of which I will return to in a moment—has its limitations. I must in particular issue the caveat that, as a cultural-historical study, this work is above all interested in how Byzantine canon law was designed or written to work (consciously or unconsciously). That is, it is focused broadly on how Byzantine canon law was supposed to work. This is not unconnected from how it did work. Expectations for the system’s operation must be taken into account when one is evaluating evidence for its “real” operation, and vice versa. Nevertheless, this study is intentionally not directly concerned with the social or political-historical realities of the Byzantine system, except on a few occasions where they are essential for illumining specific problems of cultural perception. My chief emphasis is instead on what the legal anthropologists might call the “formalities” of law. Here a remark of Kenneth Pennington, commenting on the traditional figural representation of Justice, is not unhelpful: “social historians record the number of weights on [Justice’s] scales but do not see justice through her eyes.”°* In this study I am very much trying to look through Justice’s eyes, not count the weights on her scales.
Even as an exercise in cultural history, this study constitutes only one possible approach. Much can also be learned about Byzantine legal beliefs through investigation of legislative processes and institutions, the historical application of specific regulations, forensic practice, and references to law in non-legal literature. The first of these approaches, in particular, has dominated legal-cultural research within the field of church law, and has been very productive.”* It examines the nature of canonical law and legality primarily through the eyes of its original producers, set firmly in their original contexts. My approach, however, is quite different. I wish to understand law not as encountered and constructed at its original point of production but as encountered in its principal textual manifestations in the later tradition, that is, in and as corpora of regulations in canonical collections. This is driven by the observation that law has a life that extends well beyond its original legislative contexts, and that the vast majority of Byzantines would have encountered and engaged with their canonical tradition as corpora of regulations gathered and arranged in collections precisely removed from their original contexts. As such, the assumptions about law and legality that these collections themselves embody and promote are critical, even central, to understanding Byzantine legal culture. Nevertheless, this focus is not exclusive of the more traditional approach, or any other, and illumines only one part of the picture.
To anticipate some criticism, this work is not directly engaging many of the concerns of the “new cultural history.” This is intentional. Historians have become increasingly aware of the role played by forms of discourse in the negotiation of power among individuals and groups. Beliefs and ideals, it is recognized, are both formed by, and serve to enforce and maintain, assertions of control and patterns of domination. Cultural historians have therefore become very sensitive to the problem of the interface and interrelation of cultural expressions with sociological and political contests. In this work, however, I am purposely, albeit artificially, bracketing cultural expressions from all broader sociopolitical matrices. This is not intended as an assertion of any particular historiographical dogmatics, but merely as an analytical tool for ensuring focus on Byzantine belief and theory in se, whatever their precise, if undoubted, interrelation with power dynamics. Although I would agree that a clear sense of the explicit and implicit goals, beliefs, assumptions, and aspirations of cultural phenomena is essential for any consideration of that phenomenon’s sociological “existence,” and vice versa, in this work the emphasis will be on the cultural half of this hermeneutic dynamic.
Following Simon’s lead, I have placed at the core of my methodology a comparison of Byzantine and (a) modern legal culture. I might wish that I could approach the texts without a comparator, to allow the texts to describe and define “on their own” their sense of legality, with as little input or presupposition on my part as possible. But this is impossible. Some type of predetermined questions or criteria for identifying and examining “the legal” must be brought to the texts. In fact, one can only speak of examining the legal textures of the Byzantine canonical texts “on their own terms” if one understands this phrase as shorthand for the dialectical process of challenging modern preconceptions and expectations with the evidence from the historical texts—and as signaling a general willingness to refrain from an immediately negative valuation of any dynamics or tendencies that seem foreign or unusual. The success of this process is dependent precisely upon shedding any pretense of “presuppositionless” analysis. One must therefore be quite open about what type of legal questions and criteria one is bringing to the texts, that is, what legal-theoretical foil one is employing in the analysis. This requires a deconstruction of one’s own legal-cultural presuppositions and categories.
Simon’s foil was modern continental Rechtsdogmatik. He explored how the Byzantine texts conformed—or mostly, did not conform—to the doctrinal categories of modern legal science. This study’s foil must be broader inasmuch as my scope of inquiry is broader. The concern here is not so much the operation of specific legal doctrines as the overall shape of the Byzantine legal imagination. The foil for this work must therefore be nothing other than a generalized description of modern legal culture itself—the set of expectations, values, categories, instincts, and images that make up the spoken and unspoken fabric of our modern western legal experience.
Any attempt to describe something as broad as “modern legal culture” is, of course, doomed to end in caricature and oversimplification. Nevertheless, if understood as a research heuristic and not a definitive cultural analysis, a reasonable working description of the broad cultural assumptions of modern western law can be constructed. Modern legal theory and modern legal anthropology and sociology have in fact already provided a rich vocabulary and set of categories for constructing just such a generalized portrait.°*
Drawing on these disciplines, I will assert as my legal foil a composite construction of modern narratives, practices, and perceptions that may be termed legal formalism, or better, formalism—positivism.*° This construction does not correspond to any real legal system—and certainly would not meet the approval of most legal theorists—but it is broadly descriptive of a set of practices and cultural ideals which have their immediate ancestors in 12th C western European readings of Roman law texts, and which have become characteristic of the official law of most modern western legal systems (especially continental).°°
Law is first of all conceived as an independent and abstract project or field of learned endeavor concerned with the application of a formal system of mostly written rules to a wide range of dispute and order-related factual situations. These rules are conceived as, ideally, clearly established and defined by a competent legislative authority, and are treated as, and intended to form, a closed and coherent systematic whole.°’ The rules are intended to be as comprehensive as possible, even “gapless,” and are meant to be able to address virtually any factual situation that may arise. To this end, they are often exceptionally lengthy and detailed, with many provisions, exceptions, and qualifications—and there are usually very many of them. More importantly, the legal system is characterized by an advanced and sophisticated set of proprietary methods and techniques—a set of “secondary rules”—that governs the application and use of the “primary rules” and that tries to ensure that these rules can be applied as widely and consistently as possible.°® These rules can even generate new rules as necessary.
Consistency and fairness of rule application is a central value of this system, and is related to the conviction that one can find a more or less “right” legal answer for any situation solely from the disciplined and predictable operation of logical legal principles and concepts (that is, the “forms” of the law can themselves produce correct answers—thus “formalism”). In effect, the rules themselves can be made to “think through” any situation. Because of this, the system places great emphasis on internal logical coherence, and is exceptionally concerned about establishing clear and precise definitions, concepts, and relationships between rules, and about eliminating any repetitions, irregularities, or contradictions. The system is thus often conceptualized as a “science.” When the logical and consistent application of legal method and technique cannot find a proper legal answer, judicial “discretion” must be invoked—but, it is hoped, very rarely and in a very limited manner. It is much preferable for the system itself to produce an answer than to depend upon the whimsy of a fallible human judge. Indeed, the controlling metaphor of the system is technological: law is idealized as functioning as a quasi-mathematical mechanism of legal doctrine in which rules may be impartially—that is, mechanically—applied to different fact situations.” It is recognized that such a formalist rule mechanism will not always produce an obviously just solution for every problem, but this is understood as an unfortunate but necessary cost of the system. As a result, the critical distinction arises—and is accepted—between formal and substantive justice, that is, between a “legally” just solution (formally and procedurally correct) and a “really” just solution (according to the value judgments of a given observer or community). This can encourage a certain amoralism in law’s practice, where participants are expected to function not so much as truth seekers but as skilled manipulators of a “rule game,” defending “interests” in a strongly agonistic manner.
Not surprisingly, this complex structure of rules and rule logic is both operated and developed largely by a professional class of legal experts and academics, who are understood as an essential and natural aspect of the system. They function in the context of proprietary legal professional and academic infrastructures. These professionals tend to form a distinct caste in society, with its own forms of education, its own career paths, its own qualifications, its own professional language, its own dress, and its own standards of conduct—its own “ethos.”
The presence of a well-defined and separate class of legal professionals is one aspect of another central motif: autonomy. Not only does law function as the domain of a clearly demarcated professional cadre, but law understands itself as a distinct field of human endeavor and study, separate from other fields and with its own language and special method of reasoning and thinking. It is, in particular, constantly concerned to differentiate itself from other types of normative systems and forms of social control. Especially characteristic is an ongoing preoccupation with distinguishing itself from ethics/morality and politics (and in canon law, theology). An extremely important aspect of this autonomous self-perception—and a critical aspect of its formalism and positivism—is the idea and ideal that law is able to function legitimately with as little recourse to “outside” narratives and values as possible. It wishes to remain sealed from all outside interferences, bound instead within its own well-defined legal rule world.
Finally, law is easily constructed and reconstructed as legislators or legal professionals shape and reshape it to conform to changing policies or values (this is the principal expression of the system’s “positivism”). This may happen through a formal legislative process or through the application of philosophical or special legal-academic discourses (that is, a jurisprudence), whether deductive or casuistic in form. In all cases, however, the law is in this respect very “secular”: it is very much a malleable human instrument or tool for the effecting of broader agendas or goals, whether these be the whim of a despot, the consequences of a natural-law theory, a policy of a democratic legislature, or a concern for greater systematic consistency. Provided that the correct formal procedures are followed (formalism again), rules may thus be dismissed, replaced, or modified quite easily. The law is thus typically always “progressing,” “advancing,” or “growing,” adapting to new circumstances. Change, even profound change, is fairly easy, regular, and expected.
In summary, then, this legal world is characterized by detailed and comprehensive rules; an emphasis on systematic coherence and logical consistency; a strong assertion of autonomy from other normative discourses; very clear, almost mechanistic, processes for identifying and applying rules; complex structures of professionalism; and a high degree of legislative and jurisprudential malleability.
I must reiterate that this vision of the legal is a caricature, even a straw man. This particular image of law has long been recognized in both legal theory and legal anthropology as having no special claim as a source of universal categories to explore human law, nor even as embodying a particularly useful legal ideal.°° Nevertheless, I employ it here because it is my conviction that it continues to quietly dominate the modern study of ancient law, secular and ecclesial, and more importantly, it remains, even if weakened, the functional mythos of modern western legal culture, however long ago modern legal theory may have left it in the dust. Indeed, even casual familiarity with legal textbooks or the rhetoric of the court system reveals that most lawyers, legislators, and judges in the western world tend to imagine their work in terms not so far from those just described. Similarly, most citizens of western countries, despite frustrations and dissatisfactions, understand and expect the processes, ideals, values, and struggles of this type of legal system. At the very least, then, this vision of law probably captures better than any other specific theoretical model the parameters and points of reference of our culture’s baseline legal imagination, that is, our legal instincts and habits, the “cultural plot” of what law is about. It thus provides a heuristic backdrop of unparalleled richness and cultural density for any study of a non-western, non-modern legal system that aims to ferret out contrasts and similarities of legal-cultural belief.
This study is divided into four chapters. The first two treat the “framing” of the canonical tradition. In Chapter 1 I explore the tradition from a bird’s-eye view, examining the overall textual shape of Byzantine canon law and the patterns of its historical development. Here I consider how the basic contours of these developments reveal the legal presuppositions of the “system” as a whole. In Chapter 2 I turn to how the Byzantines themselves introduced their own tradition and set the parameters of its operation through traditional prologues and prologue-like texts.
In the third chapter—in some respects the heart of this work—I turn to a careful reading of the Byzantine canons themselves as set within the Byzantine corpus. Here the literary orientation of the present work will become most evident as I analyze not so much the canons’ substantive rule content as how forms, styles, and patterns of language reveal legal beliefs.
In the last chapter I move to the question of systematization. Here I consider in detail the origin, nature, and purpose of the first extant Byzantine systematic collections—the Collection in Fifty Titles and Collection in Fourteen Titles—as a means of exploring how the Byzantines conceived (or did not conceive) of the canonical tradition as an organized and interrelated system.
In the Conclusion I will consider how the various patterns and emphases that have emerged throughout the foregoing chapters might suggest a coherent cultural-intellectual architecture of Byzantine canon law. I will attempt a description of this architecture or model and then consider what this might mean for our broader understanding of the history of Byzantine law, and what further problems it suggests.
A few other specific themes will be addressed throughout the study, even if they do not always emerge directly or obviously from the sources themselves. The most prominent is the relationship between Byzantine canon law and Byzantine secular law. This is a central question of the modern academic discussion of Byzantine law, and therefore deserving of special consideration. Here, however, my concern will be not the sociopolitical realities of this relationship, nor even so much the explicit theoretical articulations of this interaction (which are few in our texts, in any case), but rather the subtler textures of how the canonical texts locate themselves in relation to the secular law through patterns of shared nomenclature, diction, patterns of thought, compositional forms, genres, and images.
Throughout the work I will also occasionally employ comparisons with the Latin canonical tradition. This is both necessary and inevitable, given the western orientation of much modern canon law historiography: most of the basic models, categories, and narratives of the history of canon law have been developed with reference to the western experience. To fully appreciate the peculiarities of the eastern tradition I must therefore on occasion note points of similarities to and differences from the western tradition. I will also very occasionally look east, to the Syrian and “oriental” Christian worlds, considering ways in which Christian canon law can be read as a unified legal story. In both cases I will be attempting to take a few modest steps towards breaking the parochialism of much modern canon law historiography.
A number of limitations have been imposed upon this study. The first is chronological. The dates 381 to 883 have been chosen because the first corresponds (at least approximately) to the adoption of the so-called “Antiochian” corpus by the church of the recently triumphant Nicene orthodoxy, and therefore marks the emergence of the collection of texts that will become the core of the later Byzantine canonical tradition. The second marks the completion of the so-called Photian recension of the Collection in Fourteen Titles, which, in retrospect, marked the completion of the core Byzantine canonical corpus. These dates therefore encompass what may be considered the central period of development of the Byzantine canonical tradition, that is, the time during which the texts and text structures were produced that even to this day are considered the heart of the entire Byzantino-Orthodox canonical tradition. These dates are, however, symbolic; material outside of these dates will occasionally be considered to illustrate broader themes and patterns.
A limit has also been placed on the scope of material to be examined. As already remarked, I will mostly limit this study to the texts that emerge as the central corpus structures of the Byzantine canonical tradition. The definition and development of these “central corpus structures” will be examined in detail in Chapter 1, but suffice to say they include all of the canonical sources of the 883 recension of the Collection in Fourteen Titles, the introductory and rubrical structures of the two extant Byzantine systematic collections from this period (the Collection in Fifty Titles and the Collection in Fourteen Titles), and a number of other smaller texts from our period regularly found in the manuscripts. These texts are not exhaustive of the canonical material of this period, but they do constitute its most important and prominent elements.
The extent of historical contextualization has also been limited. The number of texts that could potentially illuminate the patterns and structures of Byzantine legal belief is enormous. I have therefore restricted my attention to those that may be considered primary parallels to or influences on the Byzantine canonical tradition as a formal legal corpus. This pool is still very large, and includes virtually all of the extant Greek and Roman secular legal collections of this period and earlier, as well as a wide variety of texts such as the Apostolic Church Order collections, classical literary or philosophical treatments of law, and scriptural legal texts. Naturally I will also from time to time make comparisons with later Byzantine legal sources.
Despite these limitations, the scope of this work remains extremely broad, encompassing over five centuries of developments. Some may find this breadth disconcerting. This scope is, however, necessary: the fundamental contours of legal belief can only be convincingly traced as they emerge over the cultural longue durée. It is only in the cumulative coherence, traced over centuries, of how the corpus takes shapes (Chapter 1), how the tradition explicitly frames its own endeavors (Chapter 2), how the central texts of the tradition implicitly describe their own legal world (Chapter 3), and how the tradition organizes and arranges itself (Chapter 4), that the nature of law and legality in the canonical collections begins to emerge with any clarity or persuasiveness. A more narrow study, or impressionistic anecdotal treatment, not only would not allow credible conclusions to be drawn about how the tradition as a whole was perceived—my question—but could even evade the challenge of considering the cultural whole in the first place.
One final caveat must be made. As noted, even as an exploration into Byzantine canon-legal culture, this work can be considered only one element of a much larger project. A broader range of sources must be consulted before we can make any claims to comprehensiveness. Two areas of study, in particular, must be singled out as standing in special need of scholarly treatment. First, Greek patristic thinking on law and legality is in need of much more thorough investigation than it has so far received.°! A study on this topic must treat not only explicit discussions and expressions of legal theorization, but also the use of legal metaphors, images, language, and broader legal symbolism and iconology (and even architecture). In this it must explore the influence of both Jewish and Roman legal thinking. Comparison of similar dynamics in Latin patristic material, which has been much better served in these areas, would also be important.°” Second, and perhaps more urgently, the discipline sorely needs a comprehensive analysis of texts conveying canonical forensic practice, similar to that performed by Dieter Simon on the [Jefpa. Important texts would include conciliar acta, records of trials (for example, of Maximus the Confessor), and even epistolary exchanges on church-legal matters (for example, between Photius and Nicholas I). For our purposes, these texts need to be examined not so much for what they may or may not reveal about what “really happened” socially or politically, or the nature of legal structures of the day, but for the legal assumptions and values they assume and promote. Only when the results of these studies are taken into account will we begin to form a truly satisfactory and nuanced picture of the imagination and theorization of law and legality in the Greek East.
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