A Common Justice. Uriel I. Simonsohn
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episcopal system. It is plausible that one motivation for the Justinianic constitution of 530, insisting on the presence of the Gospels in every courtroom, was the fact that episcopal courts were becoming a preferred venue for litigation.56
Self-Help and Outside-Court Arrangements
It would be erroneous to view Roman Egypt as an exact model for how things worked elsewhere throughout the Eastern Roman Empire. At the same time, an examination of the judicial institutions of late Roman Egypt may prove useful for understanding the manner in which formal and non formal judicial institutions coincided. Its administrative setting included flourishing urban centers, the seats of governors and their apparatus, as well as diverse and vast rural settlements stretching along the Nile and throughout its delta.57 Whether the judicial institutions of late Roman Egypt were similar to those of other areas in the Near East is hard to determine; yet it is likely that the presence of Roman imperial administration next to that of local rural populations was not unique to Egypt.
Honoré, referring to the period following the extension of Roman citizenship, has argued that Roman provincial governors sought to implement Roman rule in a manner that would not provoke discontent within the provinces: “[Provincial governors] and other judges imposed the Roman legal system on the citizenry incrementally, and more cautiously in a province like Egypt that had its own well-developed legal institutions than in underdeveloped areas.”58 According to Christopher Kelly, the primary targets of appeasement were “local elites whose complicity was essential to the effective operation of government.”59
Yet in order to fully appreciate Roman measures, it is crucial to note that administrative concessions did not entail the creation of two (or more) autonomous legal orders. The example of the Babatha and Salome Komaise archives found by the Dead Sea suggest that even in the second century, local law was tolerated while at the same time adjusted to Roman law through the adoption of the conventional forms of Roman legal documents.60 Local institutions were thus able to sustain their station along that of formal courts as long as they continued to abide by Roman law, if only on the face of it.61
While landowners are likely to have dominated the rural landscape for some time, by the fourth century they were joined by the church as an administrative element that had to be taken into account by Roman provincial authorities as well. The church was gradually acquiring a central position in administrating judicial affairs. It was formally sanctioned to do so by the imperial government and thus served the agendas of Christianization and administrative adjustments. The evidence discussed by James Keenan, however, suggests that the church was also to be considered on account of its ever-increasing land holdings.62 Evidence of this comes from the archive of Dioscorus of the village of Aphrodito. By 538, Dioscorus’s father, Apollos, had become a monk, although he had not renounced his property. The monastery founded by Apollos provided the local village of Aphrodito with lands on which local farmers could live.63
Peter Sarris, in his study of the Apion estates in the region of Oxyrhynchus (in Upper Egypt) in the sixth century, has argued for a “highly standardized and professional character of Apion estate management” in which “legal proceedings … played a major part in social relations.”64 Sarris also showed that at the same time, the office of the chief regional tax collector, the pagarch, was held by members of the Apion family.65 Arthur Schiller has argued that the pagarch held some judicial authority, whether that of an ordinary judge or as someone who received complaints in the capacity of his administrative office.66 This fits the argument made by Sarris that landowners such as the Apions were “coming to dominate productive and social relations in the late antique Egyptian countryside.”67
Under such circumstances, a relationship of patronage, of mutual dependence existed between the landowner and his tenants. Patrons, however, were not necessarily landowners but members of an exclusive group of prominent individuals. Thus aristocrats, government officials, men of affluence, and landowners were all in a position to offer judicial services to their vassals in exchange for labor, produce, and, most important, loyalty.68 Such relationships are known to have prevailed in the late antique rural settlements of northern Syria and Egypt.
The career of Synesius of Cyrene (modern-day Libya) provides a useful illustration of the authority obtained by these aristocratic figures. As a member of one of the leading local families in the late fourth to early fifth century, Synesius took charge of military operations and administrative offices.69 He was able to do so by virtue of his high social ranking and land ownership. His later election to the office of bishop of Ptolemais in 411 does not change the basic fact of the matter: Synesius’s career was that of a local aristocrat who had assumed civil responsibilities at a moment of administrative change. These responsibilities, John Liebeschuetz tells us, entailed “occupying a position which had once been occupied by civic magistrates.”70
So far, an examination has been made of the judicial role played by imperial magistrates, bishops, and landowners. Despite their various titles and sources of legitimacy, whether imperial decree, spiritual authority, or wealth, these figures were all acknowledged by the state and acted upon the principles of Roman law. Yet there were other means by which individuals could settle their disputes or validate their transactions. According to Schiller, at least a century and a half before the Arab conquest, “state litigation was absent and private arbitration was paramount for the settlements of civil disputes.”71 Right or wrong, Schiller’s point confirms the widespread practice of outside-court settlements that prevailed in late antique Egypt and outside it.72
Gagos Traianos and Peter van Minnen have analyzed a document from Aphrodito dating to ca. 537 that was found in the archive of the aforementioned Dioscorus.73 The document records the settlement of a dispute over a piece of property next to the village. The dispute in this case was resolved through the work of a notary and was never brought before a formal court for resolution.74 As such, this form of settlement is considered a private one, since it does not require the involvement of a third party for purposes of judgment but only as a negotiator. The type of notary mentioned in this case was of the taboullarioi, who were not only entrusted with registering the legal document but also preparing it.75 As such, they had to possess sufficient legal education in addition to first-rate Greek and scribal skills. Most important, however, is the fact that these officials were authorized, if not appointed, by the imperial government. In sum, while the Aphrodito document of ca. 537 was issued and formulated in line with Roman law, it was attained without the involvement of the state.
Despite what may have been “a reality of undergovernance” or of “rudderless and captainless vessels” in fourth-century Egypt,76 papyri dating from the fourth to the eighth century attest to the function of a village headman, the lashane, or ape.77 The headman heard legal disputes and presided over less formal arbitrations.78 He was present at the signing of contracts and the drawing up and implementation of wills. He was also responsible for the confinement of delinquents, the collection of fines, and for addressing complaints.79 Though most of our knowledge about the administrative role of the village headman is based on Egyptian papyri—most notably, those from Aphrodito—it has been suggested that similar figures existed outside Egypt as well.80 Alongside the headmen was often a group of local town notables, better known as the “elders.” These men, clergy and laymen, customarily filled an administrative function by assisting the headman in his various tasks.81 The judicial role of local village notables is well attested in the Nessana papyri. According to Rachel Stroumsa, the documents suggest a loose and flexible arrangement, “and one which evidently continued to co-exist side by side with the government machinery,” in which respected members of the community oversaw the implementation of legal transactions and arbitrated disputes.82 As in the other forms of out-of-court judicial practices, however, the role of rural figures was not autonomous of the Roman legal order. Roman law was made known to the rural population, particularly through prefectorial edicts “disseminated throughout the country.”83
Christian Holy Men
Individuals who offered judicial services outside the