The Role of Orthodox Christianity in the Formative Phase of Byzantine Law
It is important to stress that the institution of Orthodox Christianity as a state religion took place simultaneously as Late Roman law was being systematically codified for the first time: therefore the creation of a standard set of normative texts took place in the same period when emperors and churchmen sought to define the correct form of Christian worship.
When Gratian and Theodosius issued the aforementioned law in 380 promulgating the superiority of OrthoÂdox Christianity, there was no official, standard collection of Roman law, nor did legal decisions and decrees appear to have been centrally stored in impeÂrial archives. The first attempts to systematically collect imperial laws or conÂstitutions, in the collections known as the Codex Gregorianus (291 ce) and CoÂdex Hermogenianus (ca. 295 ce) were individual, rather than state-sanctioned, endeavours. Both compilations mainly consisted of rescripts, responses issued in the emperor’s name to petitions submitted to him on the finer points of law. Yet an imperially-conceived effort to codify Roman law did eventually emerge during the reign of Theodosius ii (r. 408-450): begun in 429, it was termed the codex magisterium vitae, and, had it been brought to completion, would have included imperial constitutions andjurisprudential writings that applied to the whole empire (leges generales) from the time of Constantine onwards. However, only the collection of constitutions, the Codex Theodosianus, probably originally consisting of some 3,250 texts and divided into 16 books, was completed and promulgated in 438.[374]The sixteenth book of the Codex, from which the above quotation is derived, represented the first time that both Church and State were systematically disÂcussed in a Roman legal work.[375] Contemporaneously with the promulgation of the Codex Theodosianus, the imperial church sought to precisely define the correct form of Christianity, in particular through dogmatic statements on Christology.
Already under Constantine I the Council of Nicaea (325) had been convoked to condemn non-Trinitarian Arian Christianity; the theological defiÂnition of Gratian and Theodosius I championed Trinitarian Christianity and censured those who did not accept it. During the reign of Theodosius II inÂtense discussions regarding the status of Mary as the â€?Bearer of Christ' (Chris- totokos) or â€?Bearer of God' (Theotokos) resulted in the anathematizing of Nesto- rius, who advocated the former Marian epithet. The year after Theodosius ii's death saw the Council of Chalcedon (451), which promoted a Christological formula whereby Christ had a divine and human nature united in one person and substance. Opponents of the Christological formulae advanced at ChalÂcedon set up Miaphysite (â€?one nature') parallel churches and enjoyed considerÂable, even majority, support in the eastern provinces of Egypt and Syria.Church and State became further entwined through the codification efforts and legislation of the emperor Justinian I. He not only extensively regulated church and monastic affairs via imperial ordinances, but he also gave the canÂons issued by the first four ecumenical councils the status of official law. Among heretical Christians, he solidified the abject legal status of â€?Nestorian' Christians. Yet he did not, interestingly enough, legislate a similar stance for adherents of the Miaphysite movement. This is likely because, especially durÂing the first part of his reign, he had hoped for a rapprochement with these recalcitrant Christian communities.[376] His consort, the empress Theodora, was known to be a supporter and great benefactress of Miaphysite, in particular Syrian, Christians. Legal restrictions against â€?Jacobites' and other Miaphysites were thus not introduced by this emperor, who otherwise attenuated the legal status of heretical Christians and non-Christians alike with tremendous zeal.
Before examining the development of the legal status of heretical Christians and then, in the centuries that followed, Muslims, it is worth dwelling upon the paradigmatic nature of Justinian's codification of Roman law.
In essence, what in the Early Modern Period came to be known as the Corpus Iuris Civilis - conÂsisting of the CodexJustinianus (imperial constitutions), the Digest (excerpts from commentaries of Roman jurists), the Institutes (a textbook or Roman law largely based on the eponymous textbook of the second-century jurist Gaius) and the Novels (â€?new’ constitutions issued after the promulgation of the Codex Justinianus) - had an authoritative status over the entire course of the ByzanÂtine Empire. In terms of content, apart from some minor post-Justinianic modÂifications, the law of the land remained, as a rule, sixth-century Roman law. In essence, Byzantine jurists had to examine their legal problems through a Late Antique lens. In this respect law was not so different from other Byzantine litÂerary genres, which tended to privilege and idealize the works of the Later RoÂman Empire.2