A Common Justice. Uriel I. Simonsohn
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and monks were not; this is only one example of the prevalence of “weak” and “strong” forms of legal pluralism that will be discussed below. Both forms, however, support the idea of a society whose members operated within more than one legal order and were able to choose from a variety of legal institutions. Admittedly, the people of the period did not possess such a schematic and all-encompassing perception of their institutions and most likely did not draw clear-cut distinctions between what is later described as “central versus provincial,” “secular versus religious,” or “formal versus informal” institutions. But for the present purposes, it is precisely this schematic analysis of late antique legal orders and their judicial institutions that enables us to consider their rise and formation as well as the manner in which they related to one another. “Legal pluralism is a concomitant of social pluralism,”1 and it is this dynamic of social control and social opportunism that should be kept in mind throughout. Whatever their motives were, clients turned to a diverse group of legal authorities. Their ability to bring their suits before more than one judicial institution raises a variety of social questions. Such a choice reflects not only the subordination of litigants to a multiplicity of judicial authorities but also their affiliation with a multiplicity of social circles.
Judicial Institutions and Practices in the Eastern Roman Empire
Referring to the governor of the Mesopotamian province of ‘Āsrā‘inē (Osrohene) who held office in 497-98, the anonymous author of the early sixth-century Chronicle of Pseudo-Joshua the Stylite noted that every Friday the Roman official “would sit in the martyrion of Mār John the Baptist and Mār Addai the Apostle and settle lawsuits free of charge.”2 The image of a Roman governor presiding over judicial proceedings outside the imperial courtroom in a martyrion provides a rare glimpse into late Roman judicial arrangements in the eastern provinces. The church was situated only a short distance from the Roman law courts in the southwestern quarter of Edessa.3 Yet the fact that the governor chose to pass his Fridays settling disputes in a church—moreover, one dedicated to a martyr—rather than in his formal courtroom brings to the fore some of the features of late Roman judicial practices. While the legal authority of the governor suggests the implementation of Roman law, the chosen venue of the martyrion reflects the interplay of imperial law and indigenous sentiments.
At least in theory, the citizen of the late Roman Empire could choose to settle disputes before an imperial magistrate, a military commander, a landlord, a village headman, a bishop, a monk, or even a recluse.4 Yet despite what may seem to be a highly decentralized imperial setting made up of an amalgamation of diverse institutions, things were not as fluid in practice. Rather than an absent imperial government, lying largely in major urban centers and military compounds, the image is of a sophisticated administrative scheme channeled through the services of local forces.5 Roman rulers sought to maintain control over their vast empire by enhancing reciprocal ties with members of local elites.6 The latter repaid the approval and sanction of the imperial government with loyalty to the empire and its laws.7 It is this principal premise of adaptation rather than stagnation that is the basis of the present analysis of late Roman judicial institutions. In addition, the present discussion includes another type of judicial institutions: out-of-court solutions that were not always formally sanctioned by the Roman state. Here, judicial services were rendered by a diverse group of individuals whose social capitals allowed them to assume informal judicial prerogatives.
A mixture of judicial offices, formal and informal, required an ongoing process of administrative adjustments. These adjustments tended to obscure administrative boundaries, making it unclear whether a bishop was issuing a judgment within the formal setting of an episcopal court or by virtue of his personal ties with members of his congregation. Similarly, the Justinianic decree, mentioned below, making it mandatory to hold a copy of the Scriptures in an imperial courtroom and declaring the imperial law to be of divine nature, may have added to a blurring of distinctions between ecclesiastical and secular courts.8
Imperial Courts
Caroline Humfress, in her discussion of dispute resolution under the late Roman Empire, quotes a constitution from 529 that emphasized the emperor’s role as the “sole maker and interpreter of the laws.” According to Humfress, while past emperors presented themselves as such, it was only under Justinian that an attempt was made to “make this rhetoric a reality.”9 By the time of Diocletian (fl. 284-305), the second highest judicial authority to the emperor was the provincial governor who presided over the courts as a first resort.10 Because of the size of their jurisdiction and overwhelming load of responsibilities, the governors often delegated judicial authority to their deputies. Another way of considering this delegation of power is to classify deputies as “lesser judges.” These officials dealt with affairs of a local nature because of their greater acquaintance with the affairs of local communities. The lesser judge is seen as precursor to the later-known defensor civitatis of the fourth century. The office is first noted in the end of the third century and is known to have included judicial authority before the fourth. The evolution of the defensor as a judicial post is viewed in modern scholarship as an imperial attempt to provide effective legal representation for those who were thus far denied, for whatever reason, the services of the imperial judiciary.11 At the same time, the improvement in judicial services helped improve the notion of an imperial presence in urban centers.12 If not from the outset, then at least by 535, the defensor had judicial appeal also among the well-off, thanks to his jurisdiction over legal affairs of substantial monetary value.13 The latter development can be seen as part of Justinian’s policy of restraining the damage caused by the corruption of other parts of the imperial judiciary (see below).14
State tribunals were available to all citizens of the empire.15 For certain social sectors, however, these tribunals possessed a special appeal. After all, the laws of the empire were created and implemented by the same group that sought to control it.16 Humfress points to the attempts of “high-ranking men … to circumvent the spirit of the emperor’s legislation by using a mechanism readily available within Roman civil law itself … by naming a third party as a ‘legitimate’ heir” as a means for securing the property of illegitimate children.17 Referring to a lawsuit of Augustine’s close companion Romanianus (d. ca. 408), Peter Brown commented that “[l]itigation in the Roman Empire involved an assiduous quest for patrons; and Romanianus must have counted on the support of leading Milanese citizens to secure a favorable settlement at the imperial court.”18 For members of the imperial elite, the system offered an advantage, as they brought their lawsuits before a state court designed, operated, and used by their peers. In addition, despite the extension of citizenship to most of the empire’s subjects by 400, there were still those who had less to expect of the imperial judiciary. These “have-nots,” according to Humfress, included “the urban poor and rural poor, and a whole host of ever-shifting socio-legally defined types of marginalized individuals.” As such, as of the early fourth century, they could expect harsher sentences extending even to the realm of “savagery.”19
The extension of citizenship, promulgated through the Constitutio Antoniniana of 212 A.D., placed a greater portion of the empire under state jurisdiction; yet it also presented a threat.20 If governors wished to introduce state law in the provinces, they had to do so with caution lest they provoke local discontent.21 As a result, Roman legislators exercised leniency in their attempts to reconcile imperial laws with provincial legal practices.22 This leniency should not be solely attributed to a policy meant to avoid confrontation with provincial practices. Frequent complaints about the obscure nature of Roman law, its slow administration, high cost, and the personal and professional merits of the Roman judges did not add to the popularity of state courts.23
Here the question of cost was of crucial significance behind a decision as to whether to pursue a legal affair in an imperial court.24 The testimony of two “charge sheets” listing the fees of various bureaucratic services, which were found inscribed on late Roman governmental buildings in Timgad (modern Algeria) and Caesarea (Palestine), attest to the heavy financial burdens that litigation in imperial courts entailed.25 For a plaintiff in fourth-century Timgad,