Before and After Muhammad The First Millennium Refocused

(Michael S) #1
EXEGETICAL CULTURES 2 | 169

when, less than a generation later, Constantine espoused Christianity. This
provoked a double clash, between polytheistic Roman tradition and the
Church, and different interpretations of Christianity struggling to attract
imperial patronage. Even if the impulse toward codification had not been
given, still the inherited body of law and procedure, and the writings of the
authoritative imperial jurists, would have provided an indispensable touch-
stone of Romanitas in an age when the theoretical superstructures were ques-
tioned as never before. Despite earlier scholars’ assumption that the story of
late Roman law was one of codification equals petrification, therefore de-
cline, it was in fact a vigorous and evolving organism.^22
It is some measure of the durable pragmatism of Roman law and society
that it was only a century after Constantine that a systematic statement of the
legal basis of the new, Christianized society was attempted. The document
known as the Comparison of Mosaic and Roman laws shows how some were
seeking (Rome? 390s) to reassure themselves—in the manner of Eusebius of
Caesarea—about the compatibility of the two traditions, and the feasibility
of harmonizing Moses with the classical jurists and the two Diocletianic
codes.^23 Then under Theodosius II (408–50) the need was finally recognized
for a codification of laws—Christian laws—promulgated since Constantine,
and for an attempt to digest and homogenize legal opinion both for practical
reasons and in order to formulate reliable “guidance for life” (magisterium/
ratio vitae).^24 But the Theodosian code promulgated at Constantinople in 438
did not resemble a philosophical treatise. It dispensed with “the exhortatory
rhetoric in which imperial pronouncements were regularly clothed.”^25 Far
from encouraging rational reflection, it explicitly maintained the prestige of
the imperial and especially Severan jurists (who had no equivalent under the
Dominate); and it confined itself to making somewhat mechanical rules for
establishing doctrine when the opinions expressed in their voluminous writ-
ings diverged.^26 Production of a digest of jurisprudence had to wait another
century. The codex containing Theodosius’s authoritative statement of or-
thodoxy was formally presented to and acclaimed by the Senate of Old Rome
as well^27 —for similar treatment of the Bible, see below.
Note also the collection known as the Laws of Constantine, Theodosius
and Leo, in Greek not Latin, which had been the language of the Theodosian


22 J. F. Matthews, Laying down the law: A study of the Theodosian Code (New Haven 2000) 10–30;
C. Humfress, Orthodoxy and the courts in late Antiquity (Oxford 2007) 18–19.
23 R. M. Frakes, Compiling the Collatio legum Mosaicarum et Romanarum in late Antiquity (Ox-
ford 2011).
24 Theodosian code [4:73] 1.1.5; cf. A. J. B. Sirks, The Theodosian code (Friedrichsdorf 2007)
36–53.
25 Matthews, Laying down the law [6:22] 20.
26 Theodosian code [4:73] 1.4.3 (the Law of citations, 426).
27 J. Harries, Law and empire in late Antiquity (Cambridge 1999) 64–66.

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