LAW AND RELIGION: LAW AND RELIGION IN THE ANCIENT MEDITERRANEAN WORLD

Most scholars of the ancient world assume that Roman law did not fundamentally affect ancient religions. In 1905, Theodor Mommsen argued that in antiquity the only civil requirement religions had to meet was loyalty toward the rulers. In case of default the believers were forced to comply. Likewise, church historians tend to ignore any impact Roman law may have had on ancient Christianity. The jurist Harold J. Berman (1983) corroborates this view. In ancient Roman society law remained secular, he argues. Though the modern Western legal tradition derived crucial elements from it—a sharp distinction between legal and other social institutions, for example, religion, politics, and morality; an administration of law by a class of specialists; and a legal training of these professionals and the existence of a legal science—a closer relation between law and religion did not arise before the Middle Ages, when the Roman law was adopted by the Christian nation.

When Berman agues that the ancient Roman law was pervasively secular, he has the Near Eastern law codes in mind, which were promulgated by rulers on behalf of the gods or revealed by prophets in the name of God as the biblical book of the covenant (Genesis 20:22–23:19) or Deuteronomy (12–26). But is a hierarchical relation between religion and law the only one possible or even obvious? Tim Murphy (1997) proposes to consider also a horizontal one. He conceives of religion and law as two autonomous "systems," separate, but not unrelated. Law can be studied as a cultural system that turns religion into a legal subject, and religion as a cultural system that turns law into a religious issue (Geertz, 1983, p. 184). Using this approach, Winnifred Fallers Sullivan (1994) studied the notions of religion in U.S. Supreme Court rulings on First Amendment cases. Her study confirms that the disestablishment clause did not terminate a link between legislature and religion, but instead evoked among jurists legal discourses about defining religion. Likewise, Roman law despite its secular origin turned ancient religious practices into legal subjects and established legal discourses on religious issues.

From the Twelve Tables to the Late Roman Law Codes: Principles of the Growth of the Roman Legal Tradition

"The most celebrated system of jurisprudence known to the world begins, as it ends, with a code" (Maine, 1905/1861, p. 1). The Twelve Tables were drawn up by a special commission in 451–4500 bce and published on tablets in the Forum. Their demolition in 390 bce did not undermine their authority, as Elizabeth A. Meyer (2004) shows. Until the end of the Roman Empire they were cited as a fountainhead of all public and private law (Livy 3, 34, 6). For that reason the code is known only through quotations—in an adjusted, but still archaic language—by Roman authorities: Cicero (106–43 bce), Gaius (third quarter of the second century ce), Seneca the Younger (4 bce–65 ce), Pliny (23–79 ce), and others, but also by Christian Church fathers such as Augustine of Hippo (354–430), as Michael H. Crawford's reconstruction of the Twelve Tables shows (1996, pp. 555–721).

Law making in Rome was not restricted to only one institution. There were the leges, resolved by the people in a meeting and regarded as eternally valid, as the Twelve Tables. Other institutions legislated different kinds of law: the Senate's senatus consultum; Roman officials' edictum; and the emperor's constitutio principis, which could take the form of an edictum (an enactment of a general character), decretum (a judicial decision), rescriptum, in the form of a letter (epistola ), or an endorsement appended to a petition (subscriptio ) (Bretone, 1998, pp. 153–157). Finally, there were the legally binding opinions of the jurists (responsa prudentium ) when all agreed on a certain issue (Gaius, Inst. 1, 7).

Before the Twelve Tables were promulgated, the legal field was divided between human law (ius ) and divine law (fas ). Afterward, the main division became between public and private law (ius publicum and ius privatum ) as Alan Watson shows (1992, pp. 21–29). Religious matters belonged to the realm of public law. Since public law was based on the principle of a common benefit (utilitas ), it could not be annulled by private decisions or agreements. It also restricted private religious practices.

The Roman legal system, particularly during the empire, revolved around an institutionalized practice of questions and answers as Fergus Millar shows (1992, pp. 240–252). An official, a citizen, or a community confronted with an unusual legal case could send a petition (libellus ) to the emperor. When the case was deemed important enough, the emperor, assisted by his council, responded. The wording of the answer was entrusted to jurists. In their function as imperial advisors (iurisconsulti ) they introduced their professional knowledge into the process of law making. Likewise, on the local level jurists were indispensable. Since Roman officials had also the task of settling disputes, often without being legal specialists themselves, jurists had to find the laws applicable to the disputed cases (Bretone, 1998, pp. 138–169).

The efficacy of the laws differed profoundly from that of modern societies, at least in their ideal form. In pagan antiquity law abiding was not a value in itself. Roman citizens invoked laws when it was in their self-interest (Harries, 1999, p. 81). When people obtained a ruling from the emperor, they had to convince local officials to enforce it. Ramsay MacMullen observes that "[a] law reflects somebody's pressing need at a certain time. It does not show what was … common practice in the empire" (1984, p. 95). This practice was responsible for the many repetitions, tensions, and contradictions in the Roman legal tradition. Pagan Roman emperors made attempts to reduce the incoherence by determining officially the legal authorities that could be cited in court and by commissioning collections of laws. In the end only the Christian rulers succeeded. This was not by chance, however. In the pagan culture every city and nation lived according to its own laws, which differed from each other, whereas Christian theologians believed in one true law for all of humanity.

After Theodosius II (401–450) had decreed that all "constitutions" of Christian emperors should be collected, the Codex Theodosianus (CTh; Honoré, 1986; Harries and Wood, 1993) was promulgated in 438 ce. In 529–534 Emperor Justinian I (483–565) commissioned the Codex Justinianus, the Digests, and the Institutions. The committee in the Digests collected the legal tradition of the pagan Roman jurists and included in the Codex not only the laws of former Christian emperors, but also of their pagan predecessors. Justinian thought of his own empire as a restoration of ancient Rome. After the entire legal oeuvre was rediscovered in the twelfth century, it was called Corpus Iuris Civilis and became a fountain for the modern Western legal tradition.

Legal Discourses on Private Rituals

The Twelve Tables prohibited casting bad spells (carmina ), harming somebody else by incantations, bewitching fruits, and enticing the harvest of a neighbor (8:1, 8:4, Crawford, 1996). Not all ritual practices called magic were prohibited, but merely those that violated the property and the reputation of a fellow citizen (Graf, 1997, pp. 41–43). In an ongoing civil discourse on this provision, the focus gradually shifted to spells and rituals (Kippenberg, 1997). The Lex Cornelia, proclaimed in 82/81 bce, prohibited the possession of particular substances. "Who for the purpose of killing a man" has prepared, sold, bought, or administered a wicked drug (venenum malum ), shall be tried on a criminal charge (Crawford, 1996, pp. 752–753). Because the notion of venenum covered natural as well as supernatural devices, Roman lawyers included spells and rituals. Because of a lack of a theory of natural causation, poison and "unsanctioned religious activity" were brought under the same rubric (Phillips, 1991). In political trials where the defendant was accused of treason (maeistas ), the charge of sorcery (veneficia ) was often added. The Pauli Sententiae, compiled around 300, prohibited the art of magic and the possession of magical books as such and prescribed severe punishment. It even applied to secret nocturnal rites (Paulus, Sententiae 25, 17–18). Practicing magic had become a crime in itself, whether it caused damage or not. Even recognized rituals could be suspected of being "magic," provided their performance was unauthorized and of malicious intent.

After the Catholic Church was established within the Roman legal tradition (Gaudemet, 1947), the Christian emperors continued prohibiting magic. For example, an edict of Constantius II (317–361) stated, "Superstition (superstitio ) shall cease; the madness of sacrifices (sacrificiorum insania ) shall be abolished" (CTh 16, 10, 2; 341 ce). Yet, the content of this ruling was open to different understandings. Pagan officials understood it as a license of prosecuting magic, and Christian officials, of suppressing paganism (Salzman, 1987). While the Christian rulers and their jurists preserved the existing legal notions, they reversed their reference. This applied in particular to the category superstitio. When Christianity spread in the Roman Empire, pagan authors from the early second century ce—Pliny (ep. X 96f), Tacitus (c. 56–c. 120; ann. XV 44, 2–5), and Suetonius (c. 69–after 122; Nero 16, 2)—decried it as a new superstitio. By adding nova et malefica to superstitio, Suetonius even suspected it of magical practices. In pagan times superstitio was defined by its opposite, religio, and could refer either to foreign origin or to unlawful practices. Since the reference of the pair shifted according to its user (Sachot, 1991), Christians were able to claim to be the religio, while denouncing paganism as superstitio (Grodzynski, 1974).

Another striking example of the continuity from Roman law to Christianity and a reversal of the categories at the same time is Augustine. In De civitate Dei (8, 19) he dealt with the artes magicae and pointed out that the Romans, not the Christians, had started prosecuting them. Pagan public opinion (lux publica ) was strongly against magical arts, as the Christians were. Augustine was so enamored of the Roman law that he transmitted quotations of the Twelve Tables, which have become highly valuable for the modern reconstruction.

Legal Discourses on Private Associations

The other provision of the Twelve Tables that was elaborated in the legal tradition and that affected religion concerned unauthorized meetings of citizens (coetus ) (8:14–15; Crawford, 1996). Since early times, citizens of Rome were remarkably free to establish private associations, as the lawyer Gaius reported in the second century ce about the Twelve Tables.

"A statute (lex ) gives the members of an association (sodales ) the power to enter into any agreement (pactio ) they like, so long as they do not contravene the public statute." Gaius added that this statute appeared to have been adopted from the law of Solon (Digests 47, 22, 4 "De collegiis et corporibus").

The creation of a great variety of professional and religious associations in ancient Roman society was because of that freedom. But that freedom also generated conflicts. When the Dionysian rituals, the Bacchanalia, spread clandestinely in Italy, Roman officials in 186 bce severely punished its adherents and abolished the status of a collegium. The rituals for the benefit of Dionysos/Bacchus were permitted, though only under restricted conditions (Baumann, 1990). After that, the Romans never forgot that unauthorized nocturnal meetings were unlawful (Livy XXIX).

This was only the beginning of restrictive politics toward associations. In the first century bce, when associations participated in the civil strife at the end of the Republic, Julius Caesar dissolved them all, "besides those that were long ago established" (Suetonius 42, 4). An ancient descent was required from all authorized associations. While Jews answered that requirement and were at least in principle allowed to establish associations under that law (Rajak, 1984), Christian associations did not. "How [were] the Christians … able to exist un-interfered with … in the face of the imperial policy in regard to associations?" a scholar asked long ago (Hardy, 1971/1874, p. 168). The solution probably lies in the different kinds of legal status of associations. While some collegia were officially acknowledged by a senatus consultum, an imperial letter, or a civic decree, and while others were prohibited and abolished as illicit, there existed in-between associations without an official recognition, but tolerated by state officials and city councils because of their useful social function as societies of humble people (collegia tenuiorum ). As such, Christian associations before the fourth century were probably tolerated as belonging to this third category (Kippenberg, 2002).

The legal restrictions had repercussions on the diffusion of religions. When Christians spread in the Greek cities, they expressed their beliefs and rituals in Hellenistic forms and conceptions. That the truth divine was hidden from the profane marketplace was evident to Greeks. Christian Gnostics shared this view and decried the material world as filled with lies and deceit. Accordingly, they kept their faith secret and rejected martyrdom. When Christians established their associations within the range of Roman law, the Latin church fathers Irenaeus (c. 120 to 140–c. 200 to 203) and Tertullian (c. 155/160–after 220) defended Christian associations and practices as public phenomena, in agreement with Roman law. They also engaged in a struggle against Christian Gnostics, who denied the public status of their faith. The category of hairesis arose during that struggle (Kippenberg, 1991, pp. 369–402).

Late Roman Law Codes Turning Religious Diversity in a Legal Hierarchy

While Christian emperors and the Catholic Church were hostile to religious paganism, their attitude toward the Roman legal tradition was different. The official recognition of Christianity occurred in terms of the Roman legal tradition. The Catholic Church had been recognized by Constantine in 313 as a religio equal to all the other religious associations; Theodosius acknowledged it as the only true religio of the entire Empire in 380.

The associations of private Christian believers became a legal body with laws, property rights, and an official hierarchy of its own, and their worship was protected by the ruler. The emperor and Catholic Church adopted legal notions such as religio, superstitio, maleficium, magia, corpus (collegium ), and hairesis to define the recognized place of the Catholic Church in the public realm of the Roman Empire, as various documents show (Coleman-Norton, 1966).

The Codex Theodosianus (CTh; Mommsen and Meyer, 1904; Pharr, 1952) arranged the imperial constitutions in a way that still reflects the point of departure from the Twelve Tables. The prohibition of harmful private rituals and of unauthorized associations informs the arrangement of the laws. In book 12, which is dedicated to public crimes, title 16 collected imperial constitutions concerning "Magicians, astrologers and all other like Criminals." Christians adopted and intensified the practice of prosecuting them, as Augustine had already demanded. Book 16 collected rulings regarding religious associations. The notion religio was reserved for the Catholic Church alone. Heretics, Jews, and pagans belonged to the category of superstitio and were virtual threats to the common well-being of the empire. Jews were allowed to keep their old privileges, but were prohibited from building new synagogues. Heretics were forbidden, but not all were prosecuted alike. "Not all should be punished with the same severity" (CTh 16:5, 65 [2]). The sanctions for the various groups ranged from being tolerated to merciless prosecution (Manicheans). Apostates had to forfeit their right to make a will. And pagan sacrifices, both public and private, were strictly forbidden. The entire composition is imbued with the idea that the Catholic Church alone may represent the true religio in public and that res publica is sustained more by religion, than by official duties and labor (CTh 16:2, 16). By means of Roman legal notions, the Codex Theodosianus turned the religious diversity of the late Roman Empire into a hierarchical order (Salzman, 1993).

The Codex Iustinianus (CI; Krüger, 1929; Scott, 1932), composed about a hundred years later, moved chapter 16 of the Codex Theodosianus on religious associations to the very beginning. A comparison reveals that the legal distinctions between various heretics in chapter 16, title 9 of the Codex Theodosianus disappeared. Membership in all non-Catholic Christian groups became a public crime (CI 1:5, 4); the perpetrators were punished like the Manicheans and forfeit their civic rights. In book 9, which addressed public crimes like the Codex Theodosianus, the Codex Iustinianus adopted the constitutions of the Codex Theodosianus on "Magicians, astrologers and all other like Criminals" (CI 9:18). It added two constitutions of earlier pagan emperors: Antoninus Pius (r. 138–161 c.e.) and Diocletian (r. 284–305; CI 9, 18, 1, 2). The continuation of the Roman criminalization of magic was in agreement with Justinian's aspiration: to restore ancient Rome.

But it would be rash to infer from these prohibitions that religious diversity disappeared. The consequence of this takeover of the Roman legal tradition was the introduction of a new kind of legal reasoning into the rising Christian social order. While the Christian monotheistic creed knew merely the biblical distinction between idolatry and the true worship of the One God, the Roman legal terms applied other criteria: whether a cult was ancient or not and foreign or not; whether rituals were performed in public and therefore salutary or unauthorized in secret and therefore pernicious; and whether associations were lawful or unlawful. By adopting the pagan legal distinctions, the Catholic Church established a worldview, in which paganism, Judaism, magic, and heresy continued to exist, though theologically and legally devalued. MacMullen points out that the triumph of the Catholic Church "did not and could not conclude in any sort of total eclipse or displacement of the past" (1997, p. 159). The hierarchy was in line with the early and persistent Christian faith: that Christ had subdued the pagan demonic forces. That belief allowed the continuous existence of the non-Christian powers in an inferior status (Flint, 1999).

See Also

Codes and Codification.

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Hans Kippenberg (2005)