by Douglas Boin
Was Kerdir implying that Christians were secretly or openly aligned with the forces of darkness? According to Zoroastrian theological texts, Ahura Mazda and Ahreman were locked in a cosmic battle for control of the universe. Believers thought that this cosmic war would last for three one‐thousand‐year‐long periods, at which time a savior would arrive (named Sōšya̵ns) and the forces of good would finally triumph over the forces of evil. In the interim, all the elements of the natural world participated in the struggle. Some humans, like Zoroastrian believers, were indisputably on the side of the good. Non‐believers were considered either half‐human or half‐demon; neither was considered as good as the Zoroastrians, but the former could be enlisted as allies in the struggle.
From the founding of the Sasanian Empire to its dissolution in the seventh century, Christians were thought to hold this middle position. Stories about a “Great [Christian] Persecution” written in Syriac and circulated later – during the fifth, sixth, and seventh centuries CE – ignore this complex social reality. Instead, they reinforce a “myth of Zoroastrian intolerance.” Like the narratives of widespread “persecution” in Rome, however, these Syriac stories likely functioned as “an effective instrument of Christian institutional building” (Payne 2015, pp. 27–35).
Neither in 313 CE nor at any time during his long reign (d. 337 CE) did Constantine or any other Roman politician make Christianity the official “religion” of the Roman Empire.
7.3 Individual Laws and the Collection of Legal Texts
As we have already seen, Gaius’ Institutes, written in the middle of the second century CE, provided later jurists with an important model. It taught them how to think, write, categorize, and order Romans laws. The sixth‐century CE compilations undertaken by Justinian and his legal team were but the end of a long process, one that involved many other individuals between Gaius and Justinian. This section provides an overview of some other sources for Rome’s legal history, particularly sources that relate to the period of Diocletian, Constantine, and later fourth‐century emperors.
In general, laws in antiquity took several forms. First, they could be issued as edicts, which the emperors or their spokesmen read publicly to the people. Second, they could be expressed in the form of letters (epistulae, in the Latin plural), which were written from the emperor to other members of the imperial administration, who then had the responsibility of disseminating them. Lastly, an imperial law could be announced during an oratio, that is, an emperor’s speech before the Senate. (A fourth category, called a “rescript,” referred to cases in which the emperor had specifically taken the time to answer the legal concerns of a private individual, which technically resulted in a law; this form of legal writing was popular during the third and early fourth centuries but was later phased out.)
In all the cases just described – and for reasons that should be quite apparent in the pre‐modern world of limited, immediate communication – the law’s announcement was a crucial step in generating public awareness of the emperor’s policies. Publication could take several forms. The law’s text could be chiseled on stone (“an inscription”) or – more commonly – it could be written on parchment, papyrus, or wood and then distributed or displayed throughout town in high traffic areas like in a city’s forum or at its temples. Because of the lasting nature of inscriptions, however, the text of several important laws from the time of Diocletian and the Rule of Four still survive.
The Edict on Maximum Prices, 301 CE
One surviving law is Diocletian’s “Edict on Maximum Prices,” an emergency economic measure known from several fragments of Greek and Latin inscriptions that have been found overwhelmingly in the eastern Mediterranean. These texts on stone make tantalizing statements about the nature of the late third‐century and early fourth‐century economy. For, as the modern name of this one text suggests, Diocletian’s price decree set the maximum amount that merchants could charge for goods and services, starting in 301 CE. The preamble to the law makes clear that it applied throughout the entire empire (CIL 3, p. 801). Although it does not seem to have worked, Diocletian’s law was an audacious attempt to regulate the economy during a time when prices for nearly every staple of the Roman pantry and kitchen – grain, beans, different types of wine, olive oil, honey, lamb, goat – were rising. Wages for everyone from the mule drivers to barbers and to tailors needed to be legislated from the palace. For that reason alone, as the sign of top‐down interventionism, the “Edict on Maximum Prices” remains one of the most intriguing pieces of the economic puzzle of the late third century CE.
The Edict against Christians, 312 CE
A second law to survive on stone was issued by the Tetrarch Maximinus (r. 305–313 CE), the nephew of Galerius who does not seem to have shared his uncle’s later preference for toleration. This inscription is a letter from Maximinus to the city of Colbassa, located in southwestern Asia Minor, encouraging them to continue their discrimination against local Christians. It dates to April 6, 312 CE (AE 1989, no. 1096). Written a year after Galerius’ death but before the “Edict of Milan,” the Colbassa decree reveals the extent to which conservative Roman mores – and an irrational fear of Christians – continued to grip many citizens during this period. It also shows the extent to which Diocletian’s successors were prepared to keep using the power of Roman law to discriminate against the empire’s minority groups. Eusebius claims to have seen a copy of a similar decree Maximinus had sent to and set up in the city of Tyre (History of the Church 9). Eusebius’ account of that inscription, although written in Greek, matches in many ways the Latin text of the Colbassa decree.
The creation of the Theodosian Code, 429–438CE
Needless to say, laws that were written on more perishable materials, like parchment or wood, and then tacked up or nailed up around town, have not fared as well. That does not mean we lack the texts of all laws which were never inscribed on stone. The archives for the study of legal history in the fourth century, more broadly, would be empty indeed were it not for the fact that many fourth‐century laws were later collected and edited, preserving them for posterity. This project was undertaken on the orders of the Christian emperor Theodosius II (r. 402–408 with Arcadius; 408–450 CE as sole ruler of the eastern empire).
The assembly of the Theodosian Code was a grand, collaborative campaign designed to collect laws from Constantine’s time to the fifth century CE. Thanks to the dedicated men who worked on it, we have an abundant collection of edicts, orations, and letters that date to the fourth century CE. We can only speculate how much information was lost during this arduous and patently political editing process. When it was finished in 438 CE, however, the Theodosian Code was one of the most up‐to‐date compendia of Roman law for its age and included sections on every aspect of daily life. In sixteen chapters, or books, it outlined and codified topics related to magistrates, marriage, property, slavery, heresy, taxes, religio, and superstitio.
7.4 Law and Politics in the Fourth Century CE
Now that we have looked at legal culture more broadly, we should return to the world of fourth‐century laws and politics. The fact that Christians around the Roman world were not united, socially or politically, before 312 CE would make the following century a particularly difficult one for those both inside the group and outside it. The “Edict of Milan” had been designed to address Christians’ legal status in the empire; it had not legislated how Christians should behave as Roman citizens (Political Issues 7.1: Gladiators, Chariot Races, and the Laws of the Christian Emperor Constantine). Even as the “Edict of Milan” gave them a new form of social security, however, it was Christians’ own spirited conversations – about how much or even whether they should embrace long‐standing Roman values, like participating in sacrifice, serving in the imperial cult, or attending Roman festivals and games – which had not been resolved.
Political Issues 7.1 Gladiators, Chariot Races, and the Laws of the Christian Emperor Constantine
Did Cons
tantine, the first ruler to self‐identify as a Christian, ban gladiatorial games and other wildly popular forms of Roman sport? It’s a provocative notion, based on the assumption that all of Jesus’ followers looked on the world around them as morally bankrupt and spiritually depraved. Gladiator matches left the arena sand soaked in gore. Breathtaking races in the circus were held on festival days for the gods. Even theatrical performances – comedy, tragedy, mime – were staged in venues the gods protected. Sometimes, based on the script of the play, gods even appeared on stage.
Tertullian, a Christian writing a century before Constantine, was horrified by Roman culture. “What are the things which eye has not seen, ear has not heard, and which have not so much as dimly dawned upon the human heart?” he asked. “Whatever they are, they are nobler, I believe, than any circus, theater, or stadium” (On the Spectacles 30, trans. slightly modified from S. Thelwall in the ANF series [1885]).
Tertullian did not stop with a simple rhetorical question. He used these well‐liked entertainments to warn about the coming of the apocalypse. He described to Christians his terrifying vision, predicting:
[a] last day of judgment … that day unlooked for by the nations … when the world hoary with age and all its many products shall be consumed in one great flame! How vast a spectacle then bursts upon the eye! I shall have a better opportunity of hearing the tragedians; louder‐voiced in their own calamity; of viewing the play‐actors, much more “dissolute” in the dissolving flame; of looking upon the charioteer, all glowing in his chariot of fire; of beholding the wrestlers, not in their gymnasia but tossing in the fiery billows – unless even then I shall not care to attend to such ministers of sin, in my eager wish rather to fix a gaze insatiable on those whose fury vented itself against the Lord. (On the Spectacles 30)
For Tertullian and the Christian community who listened to him, there was no delight to be found in these exciting Roman pastimes, “ministers of sin.”
Fast‐forward a hundred years, when Christians had won the right to set the legislative agenda for the empire, and we find only the slightest hint that any of these social issues were a source of concern. Many Christians attended these events quite openly now, as they learned for themselves how to juggle their faith and their culture in creative ways. In Greek and Latin, they drew the ire of their peers, just as many had from Tertullian (John Chrysostom, Homily on the New Year Festival [Kalends] 1–3; Maximus of Turin, Sermon 98 on the New Year Festivals).
Even Constantine continued to endorse the games. His one reservation was that criminals no longer be punished as gladiators. In a law issued October 325 CE, the emperor announced: “Bloody spectacles do not please us in civil ease and domestic quiet. For that reason we forbid those people to be gladiators who by reason of some criminal act were accustomed to deserve this condition and sentence. You shall rather sentence them to serve in the mines” (Theodosian Code 15.12.1, trans. by D. Potter, “Constantine and the Gladiators,” Classical Quarterly 60 [2010], p. 597).
The fact that Christians could now argue, speak, and meet openly, without fearing legal punishment, however, did ensure that their own internal, sometimes parochial conversations gained a degree of attention that they had not previously enjoyed. Two heated topics arose in the fourth century that were particularly divisive to the empire’s minority Christian community.
One was a dispute over organizational leadership in North Africa. It had ignited in the aftermath of Diocletian’s legislation, as Christians began to debate whether people who had handed over the scriptures during the persecution could even be considered “real Christians” any more. (The Christian bishop who took a strict, uncompromising position in this debate was named Donatus.) The second dispute arose out of Alexandria and concerned the relationship of Jesus’ humanity to his divinity. (The bishop of Alexandria who argued that Jesus had been created by God, rather than coexisting with God since eternity, was named Arius.) Both men, Donatus and Arius, would eventually have their names defamed, smeared into ‐isms by Christians who found that the best way to disagree with them was through open caricature. (Many triumphalist books have been written about the history of “Donatism” and “Arianism” in Late Antiquity without any attention to the complexities of all sides of the participants in these debates.)
Both these controversies, especially the one surrounding Arius, can still seem more like abstract theological lessons than necessary moments in Rome’s history; but by the late fourth century, debates like these were vitally important to bishops who had a vested interest in making sure their party platform – not that of their opponents – earned government support. The following writer, addressing his Christian congregation in 381 CE, was one of those with a vested interest in this topic raised by Arius:
If you ask for change [in the market], [people in Constantinople] wax philosophical about the Begotten and the Unbegotten. And if you ask the price of bread, they answer, “The Father is greater, and the Son is subject to him.” And if you say, “Is the bath ready yet?” they declare the Son has his being from non‐existence. I’m not sure what this evil should be called – inflammation of the brain or madness or some sort of epidemic disease which contrives to derange people’s reasoning. (Gregory of Nyssa, “On the Divinity of the Son and the Holy Spirit,” in the collected writings of Christian Greek authors [Patrologia Graeca 46, column 557], trans. by A. D. Lee in Pagans and Christians in Late Antiquity [London: Routledge, 2000], p. 110)
The bishop’s concern to regulate and control daily small talk in the marketplaces of Constantinople was the sign of a Christian intra‐squad dispute which would only grow louder and more pointed in the fifth century. Church councils would be called to adjudicate these disputes. The effects on the Christian community would be politically and even geographically polarizing.
As for the mass of Romans who did not identify as Christian, one might assume that conversations of this sort – whether surrounding Donatus or Arius – really did seem like an “inflammation of the brain” with little relevance in their day‐to‐day lives (Working With Sources 7.1: The Talmud as Evidence for the History of the Jewish Community). Besides, there was a more pressing legal question for all the empire’s citizens during the fourth century. Would Christians, now that they had gained legal status, tolerate Rome’s older worship practices or would they try to eliminate them by force of law, making Christianity the only official religio of the state?
Working With Sources 7.1 The Talmud as Evidence for the History of the Jewish Community
A hundred and thirty years after the Second Temple’s destruction, after a tense time that had witnessed two more failed Jewish revolts against Rome (115–117 CE and 132–135 CE), the Jewish community began to shows signs of healing and rebirth. A collection of “repeated traditions,” called the Mishnah in Hebrew, was written down by the start of the third century CE. Its teachings had previously been passed down orally. The Mishnah is the earliest document that shows us how the Jewish community struggled with the complexity of living in a world without a Temple.
The world of the Mishnah and its “supplement,” called the Tosefta, was a time of rabbis and study houses, called in Hebrew bet midrash. In these houses, throughout the Mediterranean and in the lands of the Tigris and Euphrates Rivers (“Babylon”), Jewish law would be taught, interpreted, and debated. During the third and fourth centuries CE, the rabbis, the leaders of these study houses, grew in status. They acted as judges, tax collectors, and leaders of the wider Jewish community.
In the Roman world specifically, they functioned as a parallel government – or at least, self‐regulated community – living among the state authorities. The chief diplomatic liaison between the Jewish and Roman authorities was the Jewish “patriarch” (ha‐Nasi, in Hebrew). The patriarch maintained relations with emperors and other high‐placed officers (Emperor Julian, Letter 51 [ed. Wright 1923], referencing a matter raised by the Jewish patriarch; and Libanius, Letter 160, to the patriarch himself).
This limited form of self‐rule would not last. In 429 CE, the Roman emperors eliminated the position of Jewish patriarch (Theodosian Code 16.8.29).
It was at precisely this time, c.425 CE, that a new set of laws was compiled to provide guidance to Jewish leaders: the Talmud. Because these documents were written by Jews who lived close to the Temple, they are called the Jerusalem Talmud (ha‐Talmud ha‐Yerushalmi, often abbreviated “Y.”). This name distinguishes them from a second collection, written in Persia during the sixth and seventh centuries CE: the Babylonian Talmud (ha‐Talmud ha‐Bavli).
The product of many authors and editors, both collections speak to the day‐to‐day concerns of Jewish people in Late Antiquity. Here is an excerpt from the Jerusalem Talmud:
A young man sold his property. The case came before Rabbi Hiyyan ben Yosef and Rabbi Yohanan. R. Hiyyan b. Yosef said: On the assumption that he was a reasonable person [i.e., an adult] they signed [the document]. R. Yohanan said: Since he [the purchaser] took it upon himself to remove the property from the family, he must bring proof [of purchase]. (Jerusalem Talmud, Bava Batra 9.6/8, 17a, trans. by Catherine Hezser, “Roman Law and Rabbinic Legal Composition,” The Cambridge Companion to the Talmud and Rabbinic Literature, ed. by C. Fonrobert and M. Jaffee [New York: Cambridge University Press, 2007], p. 159)