In this article, I argue that the Collatio legum Mosaicarum et Romanarum is a persuasive legal text composed in the late antique aesthetic, “the Jeweled Style.” Though the Collatio has been strongly criticized for its apparent lack of sophistication, it represents a legal, textual practice in which the author created an intricate legal display by compiling quotations from the Pentateuch and from Roman legal material. The Jeweled Style, with its themes of juxtaposition, discontinuity, and referentiality, is a useful lens to view the Collatio because it helps us appreciate the aesthetic priorities of the author of the Collatio. Having acknowledged the Jeweled Style in the Collatio, I employ James Boyd White's notion of law as “constitutive rhetoric” to explain why an artistic aesthetic would appear in legal practice. In White's definition, law is an argumentative practice composed in culturally specific settings. These settings condition the practice of law so much so that, when we analyze legal texts, we should be sensitive to their cultural contexts.
The Collatio legum Mosaicarum et Romanarum (also known as the Lex Dei) has been subject to withering criticism.1 The Collatio and its author have received such treatment because the document juxtaposes quotations of Mosaic law with quotations from Roman jurists and emperors. The Roman legal scholar Fritz Schulz described the Collatio and its author thus: “This much is clear: no reasonable man could have made so considerable an array of juristic material for the purpose of making so superficial a comparison of them with Mosaic law.”2 Schulz is not the only scholar to criticize the Collatio: scholars interested in Jewish texts find the quotations of the Pentateuch wanting while scholars of Roman law have often been suspicious of the reliability of the Roman texts it contains. It seems that no matter which way one looks at the Collatio, to quote Schulz, no reasonable person could have written it.
In this article I argue that, contrary to the negative appraisals, the Collatio is a sophisticated legal document created in the popular late antique aesthetic, the “Jeweled Style.” Scholars of Late Antiquity use the Jeweled Style as a descriptor of the recurrent themes of juxtaposition, discontinuity, and referentiality prevalent in the both literary and material productions.3 But why would legal textual production take part in an artistic aesthetic? The presence of the Jeweled Style in late Roman legal literature suggests that we need a fairly robust definition of law. To explain this interplay, I employ James Boyd White's definition of law as “constitutive rhetoric.”4 White's theory of law emphasizes how law is culturally conditioned according to its specific audience. By reading the Collatio as a legal text showcasing the Jeweled Style, we can come to appreciate how late Roman law as a textual production and practice was persuasive to its contemporary audience. The Collatio, then, was not a Frankenstein's monster, but a learned piece of law in the late Roman world.
THE JEWELED JURIST AT WORK: THE
COLLATIO LEGUM MOSAICARUM ET ROMANARUM
The Collatio allows us to observe the way in which the Jeweled Style affected legal culture. The Collatio acts as a useful case study for the legal practice of the late Roman Empire for two reasons; first, because it displays in miniature the aesthetics of legal argumentation characteristic of its age; and second, because it is representative of the way in which late Roman legal production has been critically evaluated by scholars. To proceed, I first review the structure and form of the Collatio. Then, I turn to outline the questions that have been asked of the document: the date of the document's creation, the location of the document's creation, and the author of the document. The development of these questions helps explain the lack of appreciation for the legal sophistication of the compilatory practice of the Collatio. Finally, I give a close reading of Collatio, Title 12 (“On Arsonists”), to demonstrate how late Roman legal argumentation was so strongly influenced by the aesthetic of the Jeweled Style.
First, what is the Collatio? The Collatio contains 16 sections or titles that usually run between two to four pages of text in the Fontes iuris romani anteiustiniani edited by Johannes Baviera.5 Each title covers a legal category; most titles cover traditional Roman legal categories, although some seem like later, non-traditional juristic topics. Traditional topics include 1. De sicariis et homicidis casu vel voluntate, “On Assassins and Murderers Either by Accident or Voluntarily” and 16. De legitima successione, “On Legitimate Succession.” Non-traditional titles are those like 5. De stupratoribus, “On Sexual Deviants” and 15. De mathematicis, maleficis, et Manichaeis, “On Astrologers, Sorcerers, and Manichaeans.” The titles are loosely arranged according to the final five commandments of the Decalogue, or Ten Commandments.6 Each title begins with a single quotation selected from either Exodus, Leviticus, Numbers, or Deuteronomy.7 After the biblical quotation, the author of the Collatio appended quotations from either juristic works or imperial constitutions.8 For the most part, the author allowed the quotations to do most of the communication; however, he occasionally interjected his own voice into the text.9
Scholarship on the Collatio has struggled to place the text into a time and place. The general consensus is that the text comes from sometime between the early fourth century and the early fifth century CE.10 The principal difficulty for dating the Collatio arises from the fifth title De stupratoribus, because the title contains the only reference to a law that could not have been contained in any of the earlier legal codes. The law in Coll. 5.3 is a prohibition of male homosexuality; a severely edited form of the law is found in CTh. 9.7.6. The law in the Theodosian Code is dated to 390, but the two sources of the law, the Code and the Collatio, posit different dates and locations for its publication. The Collatio gives the date and location as May 14th in the Atrium of the Temple of Minerva, while the Theodosian Code has August 6th in the Forum of Trajan. Detlef Liebs, in his Die Jurisprudenz im spätantiken Italien, argues that this discrepancy can be attributed to the sources used for each text. Whereas the compilers of the Theodosian Code obtained their edition from an archive in the library in Trajan's Forum, the author of the Collatio must have accessed an earlier version of the law's text soon after it was promulgated in Rome in the usual location of the Temple of Minerva.11 If that is the case, then the author of the Collatio had access to an earlier version of the law, and was probably composing his text shortly after the law's promulgation.12 Access to the law at the Temple of Minerva would also geographically circumscribe the text's production within the city of Rome.
It is also possible that all of Title Five is actually a later addition. Because it is unusually short and is the only title that includes a law from a later source, some scholars have argued that Title Five was added later in the manuscript tradition. This would mean that the Collatio was composed around the 320s, as Edoardo Volterra argued, and that it was subject to significant later editing. While one can argue against the exact dating or geographic origin of the law, it is clear that the text of the Collatio is representative of late Roman legal textual production since it draws from a continuous tradition of legal texts—part of the very reason why it is so difficult to date with any high degree of certainty.
Connected to the debates about the origin of the Collatio is the discussion of the identity of the author or, at least, the person's religion.13 The text of the Collatio as we have it has no introduction, conclusion, or authorial signature.14 In the absence of such material, late 19th- and early 20th-century scholarship attempted to ascribe the Collatio to one author or another, although no satisfactory argument has been made.15 Without firm evidence indicating the author's identity, scholars turned toward classifying the author: was the person a Christian or Jew?
The religious affiliation of the author of the Collatio would presumably affect the intended purpose of the document. If the author were Jewish, the Collatio would serve as an apologetic text during the late fourth century when the imperial attitude towards Jews was becoming increasingly ambivalent, at best.16 In this case, the Collatio would prove to an imperial audience that Jewish law preceded, or was convergent with, Roman legal thinking. The argument for Jewish identity stands on the observation that the author only draws from the Pentateuch, which might be strange for a Christian to cite exclusively. Additionally, the Collatio contains no mention of the central Christian figure, Jesus, and all of the biblical citations are attributed to Moses.
If, on the other hand, the author were Christian, the Collatio would argue for the primacy of Christian rule over Roman rule and would help assimilate a Christian identity with a Roman identity.17 By displaying the concordance of Roman and Christian legal thinking, the Collatio would prove that Christians were Romans and not an outside ethnos; additionally, it would suggest that Roman success in law and empire was a divine, Christian gift. The Christian argument runs into the objection that Christians could not or would not draw on the Jewish notion of “Law.” As Jacobs and Frakes have shown, however, Christians drew on the sophisticated legal work of Jews before there was a firm articulation of Christian law.18 Additionally, the references to Moses were very much at home in Christian texts, as can be seen in other Christian literary productions of the period.19 Finally, the work was probably used in the Middle Ages by the archbishop Hincmar (860 CE) as evidence of a Christian interdiction against divorce.20 The survival of the Collatio in Christian circles suggests that the text could very well have had a Christian origin. While the debate about religious identity has been helpful in illuminating how religious categories, arguments, and texts were both constitutive of individual communities and porous enough to be used by multiple communities, the payoff for our understanding or appreciation of the Collatio as a legal text has been minimal.
The compilation of the Collatio has made it a treasure trove for scholars who are interested in the textual history of legal texts. Legal scholars used the Collatio to extract and reconstitute lost Roman legal works.21 The Collatio is a veritable trove because its author cites 15 different juristic works, two imperial codes, and one additional law.22 This textual approach, however, is often wary of the author because the person represented a source of post-classical interpolation. For the most part scholars considered the legal skill required to create the Collatio negligible.23 For these scholars, real legal genius resided in the ability to create the documents cited, not in the compilation of quotations. Robert Frakes's recent monograph is the first to take the legal abilities of the author of the Collatio seriously. He argues that for someone to cite such a wide array of material, he or she must have been well read and kept a significant library, even if that library was stocked with post-classical compilations.24 Following Frakes's argument, I suggest that we look to the Collatio as a production of a competent legal expert and as a work that is illustrative of legal practice of the late Roman world.
In Collatio Title XII (“On Arsonists”), the author includes seven sections or quotations. The title begins, as most of the others in the Collatio do, with a quotation ascribed to Moses. This quotation is taken from the book of Exodus 22.6: “if a fire starts and comes up to brush and engulfs a threshing floor, bushes, or a field, he who set the fire will make restitution.”25 In this first quotation, the author of the Collatio uses Moses, an authoritative figure common in both Jewish and Christian writings in Late Antiquity, to posit a simple response to arson: destruction of property by burning should be compensated with payment. Throughout the Collatio, the author uses both Moses and the Pentateuch as sources of authority. By combining biblical quotations with the introduction “Moses says” (Moyses dicit), the author of the Collatio reinforces the authority of each when he or she simply could have introduced each biblical citation according to its position in the Pentateuch.
For the second quotation, the author takes two sentences from the pseudo-Pauline Sententiae:
“1. Of those who set fire to a house or a villa on account of hostility, the humiliores are condemned to a mine or to forced labor; honestiores are relegated to an island.
2. Accidental fires, which come all the way up to a neighbor's fields either by the misfortune of powerful winds or the negligence of one tending a fire, if—on account of this—fields of grain or grapes or olives or fruit bearing trees should be incinerated, the damages according to an appraisal would be restored.”26
Here, we see Ps. Paul's Sententiae (a popular juristic text in the late Roman Empire) outlining legal responses to arson.27 The connection between the biblical quotation and Ps. Paul is not readily apparent; this seeming incongruity was the source of Schulz's frustration with the Collatio. The lack of an authorial connection, however, invites readers to supply their own connections.28 Whereas the first quotation states a simple rule that arson is to be paid back, Ps. Paul's quotation divides arson first into categories, deliberate and accidental. Deliberate arson is punished according to the offender's social class: the higher ranking honestiores, who were people like senators, equites, decurions, and military veterans, were punished with exile, while everyone outside of those elite positions was forced to work in mines or sent to some other compulsory, manual labor.29 The Pauline response to arson displays a greater complexity, but both quotations are immediately concerned with the destruction of agricultural property. While we can obviously find more connections between the quotations, where they align or vary, it seems to be the case that the collage of quotations—presented without framing or connecting material—was intended to activate the reader's critical and imaginative faculties as he or she pursued the subtle connections between authoritative texts.30
The third and fourth quotations, also taken from Ps. Paul, serve to complicate the punishment for arson further. In three, Ps. Paul adds a third category of persons who could be guilty of arson: slaves. The text reads: “if the master should agree, the act of slaves is compensated by noxal surrender.”31 The quotation goes on to reaffirm the punishments for honestiores and humiliores mentioned above in Coll. 12.2.32 The fourth quotation introduces the problem of fire in an urban setting: “arsonists, who commit the act in a town for the sake of plunder, are certainly punished with death.”33 These two quotations build on the battery of criteria available to the audience for evaluating arson. First, we see the personal status taken into consideration: is the offender an honestior, humilior, or slave? Second, was the act of arson committed in the countryside where it could destroy valuable crops or in the city where it could potentially kill many people? The third and fourth quotations complement the first two by expanding the criteria for thinking about arson and by showing the depth of the Pseudo-Pauline juristics.
The author of the Collatio takes his fifth quotation from Ulpian's juristic work, On the Office of the Proconsul. Like the previous two quotations, the author uses Ulpian to complicate the degrees of and responses to arson:
The lex Cornelia certainly ordered the interdiction of fire and water to arsonists, but in reality they are punished in different ways. For those who committed arson in a city on purpose, if they are in a humble state (sc. are humiliores) are usually thrown to the beasts, if in any grade and they committed the act in Rome, they are punished with death: or indeed ……. Those who commit these things ought to be punished.
But those who did not set the fire purposefully are generally forgiven, unless there was extensive and incautious carelessness or it was a prank.34
This passage from Ulpian expands the criteria for arson and adds another layer of authority to the collection. First, the quotation serves to offer another kind of punishment that even the text recognizes is not entirely applicable. The interdiction of fire and water was an old punishment in Roman penal practice that had probably fallen out of use.35 More realistic responses include the gruesome death of being thrown to the beasts, capital punishment, or, in the case of accidental fires, forgiveness. The Ulpianic text retains the personal divisions found in Ps. Paul: humiliores and honestiores are considered even if in a circumlocutious way. A new distinction in this quotation, however, is the reference to the third kind of space. While the biblical quotation and the quotations from Ps. Paul refer to rural spaces and urban space, the city of Rome is a super-urban space that merits unique punishment since it has been the center of Roman juristic thinking for so long.
The categories of arson are adorned with the multiple sources of authority drawn on by the author of the Collatio. Ulpian was a popular jurist in the late Roman period. In fact, throughout the Collatio, the author refers to Ps. Paul, Ulpian, Papinian, Modestinus, and Gaius. All of these jurists appear in the infamous law of citation of 426, which posited the degrees of authority each jurist would represent in a legal case.36 Thus the author, by including Ulpian in Title 12, is drawing on jurists who received wide recognition for their legal authority. To embroider the text a little more, the author chose a passage from Ulpian that included reference to the Lex Cornelia, the first-century BCE law that was used as a response to many kinds of violent criminal activity.37 This reference helps the quotation in particular and the title generally ring with a sound of authority and erudition by referring well beyond imperial constitutions and juristic commentaries. All together then, this quotation of Ulpian serves to complicate the criteria of arson in ways that the reader must figure out for him- or herself, while simultaneously contributing a forceful display of legal authority to the collection.
The sixth quotation is taken from Ps. Paul. The first section closely resembles the fourth quotation; the sixth quotation, however, goes on to discuss lighter punishment and arenas for dispute resolution. Both the fourth and the sixth quotations impose the death penalty for those who set fire to a city for the sake of predation.38Collatio 12.6 continues by saying that those responsible for fires that accidentally destroy apartments or villas are punished more lightly but that restitution must be made in the forum. The delineation of accidental fires from malicious arson in Coll. 12.6 also differs from the quotation of Ulpian by positing some form of remuneration for accidental fires instead of simple forgiveness. Here, we see a multiplicity of responses available in the Roman legal system depending on which authors one chooses to base one's argument.
The final quotation in “On Arsonists” is a long text taken from Ulpian's commentary on the Praetor's Edict, Ad edictum.39 It is a master class in authoritative citation. Scholarship on Coll. 12.7 has tried to reconstruct a classical version of Ulpian's text, and as a result has given little attention to what the text does within the Collatio.40 The quotation is too long to copy in full here, but it primarily discusses which sorts of fire the Lex Aquilia, a third-century BCE plebiscite concerned with civil wrongs like damaged property, covered.41 The text itself makes its argument according to a different aesthetic than the principle aesthetic ordering the Collatio. Instead of giving a series of unconnected quotations, the Ulpianic text explicitly connects references and explains how those references support the given interpretation of law. For instance, when discussing how both a landlord and his tenants could sue someone who burned down their apartment (insula), the Ulpianic text says that the plaintiffs would be able to use the Lex Aquilia as opposed to the broader and less valuable actio in factum. As evidence for the text's position that the Lex Aquilia applied in this case, the Ulpianic text cites another famous jurist, Labeo, with the line: “and so Labeo says in book XV of his Responsa.”42 There are cases, however, in which the Lex Aquilia would be inappropriate and the actio in factum would be more acceptable. If someone burning the remains of his fields accidentally burned down his neighbor's estate, the Ulpianic text tells us that many believe the actio in factum to be the appropriate charge, and to support this belief, the text cites another jurist, Celsus: “and so Celsus writes in book XXXVII of his Digesta.”43 The text then inserts Celsus's opinion in favor of the use of the actio in factum: “for he says, ‘if the fire of one burning the remains (of a field) got out of control, he is not to be held with the Lex Aquilia but with the actio in factum, because he did not originally burn it, but while he did something else, the fire proceeded.’”44 Further authority still is derived from a rescript of the Emperor Septimius Severus: “his (Celsus') opinion is even approved by a rescript of the divine Severus in these words…”45 The Ulpianic text supports its interpretations by references to esteemed legal authorities; in fact, eight different legal authorities are cited in this quotation.46 While the display of deep erudition may have first reflected Ulpian's legal expertise, in the Collatio, it showcases the author's masterful collection of legal references. The final quotation in “On Arsonists” aims to bedazzle the audience with complexity, both of the quotation itself and of the title as a whole.
In Collatio Title 12 (“On Arsonists”), the author compiled legal references to impress the text's audience in three ways. First, he or she collected quotations from disparate sources of legal authority. The author drew on the Pentateuch, Ps. Paul, and Ulpian in this title to show that he or she had mastered each of those texts by pulling out relevant quotations. Second, the author left these passages unconnected. While he or she could very well have given framing material, as we saw the Ulpianic text do, the author of the Collatio left interpretation up to the audience of the text. The audience is invited to think about how each quotation expands, agrees, or varies with the others. Finally, the author carefully chose texts that resound with erudition. Each quotation is set up as a fragment of legal authority. In the final passage, with its eight different legal authors, we see a multifaceted fragment meant to astound the audience with its long legal history. The selections in Title 12 show us how legal experts of the late Roman world compiled texts according to their own aesthetics. The author of the Collatio could have written as Ulpian or Paul did, but chose instead to create a text that looked like other texts of the period; a text that was organized according to the aesthetic of the Jeweled Style.
THE AGE OF THE JEWELED STYLE
Michael Roberts coined the term “the Jeweled Style” in his 1989 book, The Jeweled Style, to illustrate why poets like Ausonius, Prudentius, Claudian, and Sidonius were so popular in Late Antiquity.47 Roberts' book was a reaction both to positive studies of late antique poets in non-Anglophone scholarship and to the overarching Anglophone criticisms of poetry in the period. Roberts wanted to offer an alternative reading that endeavored to bring together the various poetic works of the period—as the earlier, negative scholarship had done—but retained the sophisticated interpretations that distinguished non-Anglophone scholarship. The Jeweled Style showed that the literature of Late Antiquity, and especially poetry, privileged the collection of discrete units that were often described as visually spectacular—hence the jewels.48 These units could be taken from or modeled on previous works of poetry or other works, like biblical texts. Roberts noticed an overarching tendency toward an “aesthetic of discontinuity,” which entailed a withdrawal of narrative connection between individual units in favor of abstracted juxtaposition that required the reader to invest meaning in to appreciate the text.49 The fruits of Roberts' labor are clearest when he compares the aesthetic found in poetry to trends in Mosaic work: “the reader is distracted by the brilliance of individual words of subsidiary compositional units, the brilliance of the unit in isolation and in relationship to other equivalent units, to the extent that in the most extreme cases the meaning of a sentence is only with difficulty perceived amid the disconcerting impression of verbal dazzle.”50 Roberts' work showed that the juxtaposition of discrete units could be a positive artistic choice.
The aesthetic of the Jeweled Style can be seen in other works of the period as well. Roberts' other work has explored how the aesthetic was operative in prose.51 Patricia Cox Miller argues that the same aesthetic can be seen in sculpture and other cultural practices like relic veneration, in which a body is fragmented so that parts can refer individually to the sanctified whole.52 For Miller, the individual fragments of holy men and women became things to be collected in the same way that texts could be collected and arranged for new displays. C. M. Chin, although he does not employ the term “Jeweled Style,” investigates the tendency of authors in the age of “Christianization” to move from narrative to non-narrative and back to narrative; that is, the deconstruction and reconstruction of texts and ideas to tell a new, Christian story about themselves.53 The trend Chin analyzes shares much with the discrete juxtapositions of the Jeweled Style. Andrew Jacobs too, in his book on Epiphanius, finds the aesthetic of discontinuity and juxtaposition to be a pervasive element in Epiphanius's work.54 Jacobs argues that Epiphanius's works exhibit a highly sophisticated style that refers to the Bible with a level of detail meant to astound the reader. Epiphanius's references work as signs of erudition, proof of mastery of previous texts. It is clear from these further treatments of Roberts' Jeweled Style that the aesthetic is a useful way of approaching various late Roman productions. Thus the repeated themes of juxtaposition, disjunction, and referentiality were popular modes of working and writing in the period.
LAW AS CONSENSUS BUILDING
If we see the Jeweled Style in late Roman legal productions, what purpose would it serve? Law and poetry are very different, and the techniques used in one might not be found in the other. This question requires us to face two connected problems: the relationship between law and other intellectual productions and the role aesthetics play in law. As I will explain below, I employ J.B. White's definition of law as “constitutive rhetoric” to address these problems. White's theory of law was intended for contemporary American legal practice, but, by employing White's definition in the Roman world, we can come to appreciate how Roman legal practice worked for Roman legal experts.
In White's definition of law as “constitutive rhetoric,” he describes rhetoric as “the central art by which culture and community are established, maintained, and transformed.”55 White's definition of rhetoric focuses on how modern lawyers use language to convince each other of what should constitute the law in the speaker's and audience's community. Put another way, law is not a single code or book, but an activity. Law is what lawyers do when they argue over what texts are authoritative, how those texts should be understood, and how the texts are relevant to particular cases. While law and legal practice may seem like a coherent and epistemologically stable system, White's idea of law suggests that, at root, law is a rhetorical, even artful practice. Lawyers deploy legal language and rhetoric to convince parties of the soundness of their argument; such persuasive effort would be unnecessary if law were truly epistemologically stable.
There are three essential elements to White's understanding of law. First, law is partly constituted by the culture-specific language that lawyers draw on. This means that when legal experts refer to legal texts, those texts become “law” to the extent that they are part of the rhetorical process of persuading a community that they are authoritative. Now, the references may be undeniably authoritative, like a citation of legislation, or they might be from a different discourse of community-ordering like conventional wisdom, but, in the moment of the rhetorical practice of doing law, they can both conditionally be deployed as law.56 Second, lawyers must be willing to add emphasis to or to frame legal texts in ways that privilege their own interpretation of the text. Framing devices can be as simple as telling someone “this is a law,” or including a series of conventionally understood legal texts; both techniques incline the audience to interpret along the central argument of the legal expert. Third, when the lawyer is successful and persuades his or her audience of the argument, the lawyer produces a community, if only fleetingly, by the shared understanding of their ethical beliefs. White's definition of law as a constitutive rhetoric allows us to appreciate how law is culturally specific in the texts it privileges and the way it frames or interprets those texts.
The idea of law as a rhetorical process may cause some reservation, since rhetoric has such strong connotations in both the modern and ancient world. The meaning of “rhetoric” I use, following White, is derived from contemporary, popular speech. “Rhetoric,” in this sense, is the artful use of language to secure persuasion. White is explicit in his use of the term; he divorces it from other popular meanings like rhetoric as a quasi-science or rhetoric as the use of trickery.57 All three definitions of rhetoric are obviously connected: persuasion can be studied, schematized, and reproduced; likewise, if one judges the end of the persuasion as bad, then that rhetoric is maligned as a sort of trickery or sophistry. The positive and negative definitions of rhetoric all denote a conscious deployment of language to a particular end. We can glean such an end from the Roman legal texts as well.
By calling law a rhetorical process in line with White's conception of law, I do not intend any relationship to Roman rhetorical practice or education.58 The ancient definition of rhetoric has traditionally been divided from law.59 In the Roman world, rhetoric was fundamental to a good education.60 The relationship between Roman law and formal rhetoric is complicated, but I use rhetoric here to describe the series of strategies used in choosing, framing, and communicating legal arguments.
White's definition of law as a constitutive practice can help us reconceive how we judge Roman law in three corresponding ways. First, if those citing texts as law are the ones who define law, then we should not criticize Roman legal experts for referring to certain sources of law.61 For instance, one could find fault in authors or advocates for referring to imperial constitutions as opposed to juristic responsa because the imperial constitution is a simpler, more immediate pronouncement on law. Likewise, one could criticize an author's citation of Christian texts as law by alleging that the author simply lacked the capacity to articulate a juristic response to the problem at hand. White's definition neutralizes such criticisms by defining law as that which is cited as law; therefore, “law as text” does not exist before the citation, but comes into being at the moment of citation.
Second, White's definition suggests that we should look to the methods with which legal experts frame their texts. The ways legal experts frame their texts are culturally specific since certain methods of introducing the law will be more popular or persuasive than others. For instance, in late Roman legal practice, there are distinct rhetorical strategies for framing legal arguments. Some of these strategies may be as simple as saying “this is the law” while others have elaborate religious or moral frames, which compel the audience to read the argument in light of the ethical considerations implied by those frames. Framing material, then, is not simply window dressing but is a crucial part of the construction of law as a practice.
Finally, the community created by successful persuasion may only be momentary, but the persistent creation and existence of such communities in turn predisposes their members to certain legal texts and framing techniques. As communities are constructed by legal discourse, they solidify in their preferences. Another way to describe this solidified preference is “aesthetics.” The aesthetics of a legal community determines the kinds of arguments they are likely to make, the way they make their arguments, and the texts they draw on to make them. The three aspects of law as constitutive rhetoric allow us to recalibrate our analysis of Roman law along the lines of what was legally persuasive in Roman communities.
Communities of law have preferences for the ways in which law and legal texts create legal discourse. As communities change their preference—that is as their aesthetic changes—so too their textual production will change. Whereas commentary writing, treatises, and monographs were the primary modes of legal textual production in the classical era of Roman law, the shifting aesthetics of the Roman legal communities could explain the rise of legal compilation.62 Aesthetics are a determining factor when deciding how to create an argument, since they affect how persuasive the argument will be. The conceptualization of law as a rhetorical process draws our attention to the strategies for securing consensus, and how these change according to their culturally specific setting.
The Collatio legum Mosaicarum et Romanarum was a sophisticated endeavor in late Roman legal practice. James Boyd White's definition of law helps us to appreciate how legal cultures calibrate their argumentative aesthetics according to their cultural contexts. Instead of trying to impose either a classical or a modern understanding of law on the legal texts of the late Roman Empire, we can appreciate how legal texts were ordered according to the contemporary aesthetic of the Jeweled Style. The author of the Collatio composed the document according to the dominant aesthetic of his age. The author compiled quotations from the Pentateuch, Roman jurists, and emperors with little connective material in a way that invited the audience to contemplate connections and disagreements between texts. To add to the astounding effect the quotations could have, the author chose texts that were themselves thick with referentiality. The repeated themes of juxtaposition, discontinuity, and referentiality were popular in other forms of artistic production of the age too. The prevalence of these themes would have made a legal argument composed according to the Jeweled Style all the more impressive to its contemporary audience. The Collatio's reflection of the Jeweled Style reveals that it was an intentional and sophisticated form of legal production in the late Roman Empire.
The Collatio legum Mosaicarum et Romanarum is also known by the title Lex Dei quam praecepit Dominus ad Moysen. I use the title Collatio legum Mosaicarum et Romanarum throughout this paper because it is the more popular in contemporary scholarship. I also refer to the text with the shortened title, Collatio. On the title of the work, see T.D. Barnes, “Leviticus, the Emperor Theodosius, and the Law of God: Three Prohibitions of Male Homosexuality,” The Roman Legal Tradition, vol. 8 (2012): 43–62.
Fritz Schulz, History of Roman Legal Science (Oxford: Clarendon Press, 1953), 313.
First discussed by Michael Roberts, The Jeweled Style (Ithaca: Cornell University Press, 1989, paperback 2010).
James Boyd White, Heracles' Bow (Madison, WI: University of Wisconsin Press, 1985).
Fontes iuris romani antejustiniani, second edition, ed. Johannes Baviera (Florentiae: S.A.G. Barbèra, 1968).
Andrew Jacobs, “‘Papinian Commands One Thing, Our Paul Another’: Roman Christians and Jewish Law in the Collatio legum Mosaicarum et Romanarum,” in Religion and Law in Classical and Christian Rome, ed. Clifford Ando and Jörg Rüpke (Stuttgart: Franz Steiner Verlag, 2006), 92–93.
See Robert Frakes, Compiling the Collatio legum Mosaicarum et Romanarum in Late Antiquity (Oxford: Oxford University Press, 2011), “Table 2: Biblical Quotations in the Collatio” for a succinct list.
See Frakes, Compiling the Collatio, “Table 1: The Collator's Alleged Sources.”
Jill Harries, “How to Make a Law-Code,” in Modus Operandi: Essays in Honor of Geoffrey Rickman, ed. M. Austin, J. Harries, and C. Smith (London: Institute of Classical Studies, 1998), 68; at Coll. 5.3, 6.4, 6.7, 7.1, and 14.3.6.
The most important proponent for the early dating is Edoardo Volterra, “Collatio legum Mosaicarum et Romanarum,” Memorie delle Classe di scienze morali, storiche filologiche, Accademia Nazionale dei Lincei, 6.3 (1930): 100–101, who dates the Collatio from 302–324. Most scholars prefer some form of later dating, though before the year 438—the year of the publication in the West of the Theodosian Code. The fact that the Collatio does not draw on the Theodosian Code suggests that it must have been made before the Code was published. Still, other scholars, principally Fritz Schulz, argue that the Collatio is actually an amalgamation of texts that was compiled throughout time so one cannot really date the document as one piece; on Schulz's argument, the best one can hope for is dating the individual sections. See Schulz, History of Roman Legal Science, 311–314 and Fritz Schulz, “The Manuscripts of the Collatio legum Mosaicarum et Romanarum,” in Symbolae van Oven, ed. M. David, B.A. van Goningen, and E.M. Meijers (Leiden: Brill, 1946), 313–332.
Detlef Liebs, Die Jurisprudenz im spätantiken Italien (Berlin: Duncker & Humblot, 1987), 162–174.
Liebs, Die Jurisprudenz im spätantiken Italien, 171 and Frakes, Compiling the Collatio, ch. 2, “Dating the Work.”
I call the creator of the Collatio the “author” as opposed to “Collator” (as Frakes and Liebs do), because the wide ranging collection of quotations and authorial interjections suggest that the document was created with as much care as any other text whose creator we would call an “author.” By using “author,” I hope to avoid pejorative assumptions about the degree of sophistication of the Collatio. For a study of sophistication of late antique Latin literary production, see Marco Formisano, “Late Antiquity, New Departures,” in The Oxford Handbook to Medieval Latin Literature, ed. Ralph Hexter and David Townsend (Oxford: Oxford University Press, 2012), 509–534.
Schulz, History of Roman Legal Science, 312.
For a list of the potential authors, see H. Hyamsom, Mosaicarum et Romanarum legum collatio (Oxford: Oxford University Press, 1913), xxx–xxxi.
See Leonard Victor Rutgers, The Jews in Late Ancient Rome (Leiden: Brill, 2000), 210, note 1, for a review of scholarship, enumerating the number of scholars who support the argument for Jewish authorship. Volterra, “Collatio legum Mosaicarum,” argued that the Jewish identity of the author could be surmised from the fact that the quotations of the Pentateuch did not come from the Old Latin Bible, but from a Greek translation, which suggests that author was probably familiar with the text from a non-Christian setting.
Jacobs, “‘Papinian Commands One Thing,’” 87–88.
Frakes, Compiling the Collatio, 135–140.
Jacobs, “‘Papinian Commands One Thing,’” 91–94.
Frakes, Compiling the Collatio, 41–47; Hincmar, Responsio 12, De divortio Lotharii regis et Theutbergae reginae (Hannover: Hahnsche Buchhandlung, 1992); S. Arlie, “Private Bodies and the Body Politic in the Divorce Case of Lothar II,” Past and Present, vol.161 (1998): 3–38.
Franz Wieacker, Textstufen klassischer Juristen (Göttingen: Vandenhoeck & Ruprecht, 1960).
Frakes, Compiling the Collatio, 126 and “Table 1: The Collator's Alleged Sources:” six juristic works ascribed to Paul, four to Ulpian, three to Papinian, one to Modestinus, and one to Gaius; the Gregorian Code and the Hermogenian Code are also cited; finally a law at Coll. 5.3 is cited as a Theodosian constitution (Theodosii constitutio).
Schulz, History of Roman Legal Science, 311–314, argued that the legal texts were superficially correlated with the biblical quotations and were, therefore, probably culled from another legal textual collection. Liebs, Die Jurisprudenz im spätantiken Italien, 170–171, argues that the author's main concern was Christian and not legal as can be seen in the ten commandment structure and in Coll. 7.1.1, where the author addresses iuris consulti, legal experts. The address suggests that the author probably was not also a legal expert. Harries, “How to Make a Law-Code,” 68–70 argues that the author is representative of codification because the person was “mentally negligible” and later says the author, if he or she was a lawyer, was not a “profoundly well read one.”
Frakes, Compiling the Collatio, ch. 3, “The Collator's Sources.”
Coll. 12.1: Si exierit ignis et inuenerit spinas et conprehenderit areas uel spicas aut campum, aestimationem restituet ille qui succendit ignem. Latin text taken from FIRA II. All translations are my own.
Coll. 12.2: 1. Qui casam aut uillam inimicitiarum gratia incenderunt, humiliores in metallum aut in opus publicum damnantur, honestiores in insulam relegantur. 2. Fortuita incendia, quae casu uenti furentis uel incuria ignem supponentis ad usque uicini agros euandunt, si ex eo seges uel uinea uel oliuae uel fructiferae abrores concrementur, datum damnum aestimatione sarciatur.
Detlef Liebs, Römische Jurisprudenz in Africa (Berlin: Akademie Verlag, 1993), 28–109.
Ari Bryen, “Law in Many Pieces,” Classical Philology, vol. 109, no. 4 (October, 2014): 357–362, uses the phrase “legal commentary” to explain how laws are given meaning in texts. Interestingly, the only “commentary” here would, at best, be the biblical quotation that precedes the Roman legal texts. Otherwise, the “commentary” and hence the meaning of the entire passage is rather open to the interpretation of the audience.
Peter Garnsey, Social Status and Legal Privilege in the Roman Empire (Oxford: Clarendon Press, 1970) and Rolf Rilinger, Humiliores—honestiores (Munich: R. Oldenbourg), 1988.
Aaron Peltarri, The Space That Remains (Ithaca: Cornell University Press, 2014), ch. 3 “Open Texts and Layers of Meaning.”
Coll. 12.3.1: Commissum uero seruorum, si domino uideatur, noxae deditione sarcitur.
Coll. 12.3.2: Messium sane per dolum incensores uinearum oliuiarumue aut in metallum humiliores damnantur aut honestiores in insulam relegantur. “Clearly, those who maliciously burn crops of either grapes or olives are either as humiliores condemned to the mines or as honestiores exiled to an island.”
Coll. 12.4: Incendiarii, qui quid in oppido praedandi causa faciunt, facile capite puniuntur.
Coll. 12.5: Incendariis lex quidem Cornelia aqua et igni interdici iussit, sed re uarie sunt puniti. Nam qui data opera in ciuitate incendium fecerunt, si humillimo loco sunt, bestiis subici solent, si in aliquo gradu et Romae id fecerunt, capite puniuntur: aut certe ……. Adficiendi sut qui haec committunt. 2. Sed eis qui non data opera incendium fecerint plerumque ignoscitur, nisi in lata et incauta neglegentia uel lasciuia fuit.
On the practice of banishment in the later Roman world, see Daniel Washburn, Banishment in the Later Roman Empire, 284–476 CE (New York: Routledge, 2013).
For the legislative contexts, see Caroline Humfress, Orthodoxy and the Courts in Late Antiquity (Oxford: Oxford University Press, 2007), 76.
On the Lex Cornelia, see J.D. Cloud, “The Primary Purpose of the Lex Cornelia de Sicariis,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Romanistische Abteilung, 86 (1969): 258–286, and James B. Rives, “Magic, Religion, and Law: the Case of the Lex Cornelia de Sicariis et Veneficiis,” in Religion and Law in Classical and Christian Rome, ed. Clifford Ando and Jörg Rüpke (Stuttgart: Franz Steiner Verlag, 2006), 47–67.
Coll. 12.6: Incendiarii, qui in oppido praedae causa id admiserint, capite puniantur: qui casu insulam aut uillam, non ex inimicitiis incenderint, leuius. Fortuita enim incendia ad forum remittenda sunt, ut damnum uicinis sarciatur. “Arsonists, who perpetrate the crime in a city for the sake of spoils, should be punished with death: those who accidentally, not out of ill-will, burned down an apartment or villa, more lightly. Indeed, accidental fires must be remitted to the forum so that the damage can be repaired for the neighbors.” Even though this quotation opens with a similar line to the one found in 12.4, the text has the quote ascribed to a different work. 12.4 is said to come from Ps. Paul's Sententiae and 12.6 from Paul's book De poenis paganorum. Frakes argues that this is simply a scribal error and both quotations actually are derived from the Sententiae. Robert Frakes, “A Note on Collatio 12.6.1 and Paulus,” Roman Legal Tradition, vol. 3 (2006): 111–115.
On the commentary tradition of the Praetor's Edict, see Schulz, History of Roman Legal Science, 189–203; esp. 196–201 on Ulpian's commentary.
A sample of scholarship on this text can be found in Alan Watson, “Two Studies in Textual History,” Legal History Review, vol. 30 (1962); Bruce Frier, “Bees and Lawyers,” The Classical Journal, vol. 78, no. 2 (1983): 104–115. See the commentary in Frakes, Compiling the Collatio, 293–294 for an extensive list.
An excellent introduction to delicts generally and the Lex Aquilia specifically is A.J.B. Sirks, “Delicts,” in The Cambridge Companion to Roman Law, ed. David Johnston (Cambridge: Cambridge University Press, 2015), 246–271.
Coll. 12.7.3: et ita Labeo libro XV responsorum refert. On the importance of Labeo and Celsus and their roles in the Sabinians and Proculians, see Detlef Liebs, “Rechtsschulen und Rechtsunterricht im Prinzipat,” Aufstieg und Niedergang der römischen Welt, 15 (1976): 197–286.
Coll. 12.7.5: Sed plerisque Aquilia lex locum habere non uidetur, et Celsus libro XXXVII digestorum scribit.
Coll. 12.7.5: Ait enim ‘si stipulam incendentis ignis effugit, Aquilia lege eum non teneri, sed in factum agendum, quia non principaliter hic exussit, sed dum aliud egit, sic ignis processit.’
Coll. 12.7.6: Cuius sententia et rescripto diui Seueri conprobata est in haec uerba.
Labeo, Celsus, Severus, Neratius, Vivianus, Proculus, Urseius, and Sabinus.
Roberts, The Jeweled Style, 1.
Roberts, The Jeweled Style, ch. 2 “The Literary Tradition and Its Refinement,” esp. 55–65. Studies of late antique poetry and their aesthetic has benefited greatly from thinking with and against Roberts' Jeweled Style. See the volumes Classics Renewed: Reception and Innovation in the Latin Poetry of Late Antiquity, ed. Scott McGill and Joseph Pucci (Heidelberg: Winter Universitätsverlag, 2016) and The Poetics of Late Latin Literature, ed. Jas Elsner and Jesús Hernández Lobato (Oxford: Oxford University Press, 2016).
The requirement of the reader was been fruitfully expounded by Peltarri, The Space That Remains, esp. chapters 2–3. In chapter 2, “Prefaces and the Reader's Approach to the Text,” Peltarri argues that the rise of paratextual prefaces served to orient the reader and guide his or her interpretation of the text. In chapter 3, “Open Texts and Layers of Meaning,” Peltarri brings a nuanced approach to the interpretation of late antique literature by arguing that authors not only drew on earlier texts to create the sorts of varied and brilliant discrete references mentioned in Roberts' work, but they also used these references to play with the meaning of those referent texts. James Corke-Webster, “Emperors, Bishops, Art and Jurisprudence: the Transformation of Law in Eusebius of Caesarea,” Early Medieval Europe, vol 27, no. 1, (2019): 12–34, argues that Eusebius uses the law in a Jeweled Style when he excerpts legal material. Eusebius carefully curates legal quotation with pointed introductions and explanations so that legal texts argue his own point. Corke-Webster's argument shows how the constructive force of legal discourse could be used in explicitly argumentative ways.
Roberts, The Jeweled Style, 75.
See also, Michael Roberts, “The Treatment of Narrative in Late Antique Literature,” Philologus 132, no. 2 (1988): 181–195, where Roberts treats the the organization of narrative in Ammianus Marcellinus, Rutuilius Namatianus, and Paulinus of Pella.
Patricia Cox Miller, “1997 NAPS Presidential Address ‘Differential Networks’: Relic and Other Fragments in Late Antiquity,” Journal of Early Christian Studies 6, no. 1 (Spring 1998): 113–138.
Catherine Chin, Grammar and Christianity in the Late Roman World (Philadelphia, PA: University of Pennsylvania Press, 2008), 170. Cf. Kate Cooper, The Fall of the Roman Household (Cambridge: Cambridge University Press, 2007), 61–68.
Andrew Jacobs, Epiphanius of Cyprus (Oakland, CA: University of California Press, 2016), ch. 4, “Scripture,” esp. 173–175.
White, Heracles' Bow, 28.
White, Heracles' Bow, 33.
White, Heracles' Bow, 31–32.
Though the argument can be made that there is some sort of relationship between the two categories. See Tessa Leesen, Gaius Meets Cicero (Leiden: Martinus Nijhoff Publishers, 2010).
John Crook, Legal Advocacy in the Roman World (Ithaca, NY: Cornell University Press, 1995), ch. 1 and 2; Humfress, Orthodoxy and the Courts; J.H.W.G. Liebescheutz, Antioch (Oxford: The Clarendon Press, 1972), 242–255.
Robert Kaster, Guardians of Language (Berkeley, CA: University of California Press, 1988); Malcolm Heath, Menander (Oxford: Oxford University Press, 2004); Raffaella Cribiore, The School of Libanius in Late Antique Antioch (Princeton: Princeton University Press, 2007).
Ari Bryen, “When Law Goes Off the Rails: or, Aggadah among the Roman Iurisprudentes,” Critical Analysis of Law, vol. 3 no.1 (2016): 9–29, deals with a similar problem in the division of “legal texts.” His focus, following Talmudic scholarship, is on the unusual narratives in juristic texts, but one could consider the categorization of texts as “legal” or “non-legal” as wrestling with the same differentiation as thinking about what sources constitute law.
For a discussion of the related codification practice in Roman law, see Dieter Nörr, “Zu den geistigen und sozialen Grundlagen der spätantiken Kodifikationsbewegung: Anon. De rebus bellicis XXI,” Zeitschrift d Savigny-Stiftung für Rechtsgeschichte. Romanistische Abteilung, 80 (1963): 109–140.