A Common Justice. Uriel I. Simonsohn
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four-fifths of the annual wheat consumption for a family of four. Or, in monetary value, 121 modiee equaled three to four solidi, a sufficient income for an individual to live on for several months.26 Furthermore, the fifth-century inscription from Caesarea shows that the privileged enjoyed reduced fees, while the unprivileged had to pay as much as twice the normal amount. Thus, a simple provincial litigant who chose to litigate in Caesarea had to pay approximately five solidi, “almost equal to the cost of feeding a person for one year.”27 Under such circumstances, it would not be surprising to find many Roman subjects litigating in alternative venues.28
The fifth-century Greek historian Priscus of Panium mentions in his History an encounter with a Greek-speaking former citizen of the Roman Empire. The latter’s criticism of the Roman legal system was expressed as follows: “The laws were fair and Roman polity was good, but … the authorities were ruining it by not taking the same thought for it as those of old.”29 Roman legislation and contemporary “rhetorical fashions” suggest that Roman judges were taking bribes, fixing cases in favor of powerful citizens, engaging in extortion, manifesting judicial negligence and incompetence, and even acting sadistically. That being said, there appears to be no real evidence that would suggest such a scale of judicial corruption, or even that corruption was on the rise.30
The Episcopalis Audientia
Late Roman ecclesiastical courts were recognized as formal judicial institutions by the fourth century. In contrast to civil magistrates, ecclesiastical judges drew their authority and legitimacy from both imperial recognition and spiritual reputation. It was in 318 under the rule of the first Christian emperor, Constantine (r. 306-37), that the episcopalis audientia, the episcopal tribunals, received the state’s formal recognition.31 Despite its marked religious character, the episcopal court shared two important features with contemporary secular institutions. First, its authority was sanctioned by the Roman government. Second, its formal inception took place parallel to that of the defensor civitatis and was thus in line with other imperial initiatives to extend Roman legal authority by empowering local institutions.32 Past scholars have viewed the formal sanction of the episcopalis audientia by Constantine as an expression of the emperor’s wish to comply with the Pauline command exhorting believers to take their lawsuits before judges designated by the church (1 Cor. 6:1-6). It is now acknowledged, however, that the motivation for this step was of a rather more mundane nature.33 While the elevation of the episcopal court may well have served the purpose of Christianizing an empire, the formal endorsement of the ecclesiastical judiciary can be seen as another form of administrative adjustment in which local elites were acting as agents of the imperial government.34
According to the New Testament and the church orders, the episcopalis audientia had already operated, albeit informally, prior to the reign of Constantine.35 An example of its operation in the pre-Constantinian era can be found in the activities of Cyprian, the third-century bishop of Carthage (d. 258). His letters attest to the legal procedures of hearing, consulting, and passing verdict in matters pertaining to offensive clergymen.36
Despite common features between the episcopalis audientia and secular imperial institutions, the episcopal judge differed from the civil magistrate in three significant points. First, whereas his jurisdiction was not purely religious, that of his secular counterpart pertained to civil matters only.37 Although not from its outset, the bishop’s court gradually came to possess jurisdiction over both civil and religious matters and was open to clergy and laymen alike. Second, ecclesiastical judgment, though rendered in the conventional form of a ruling, was, from a legal point of view, considered a form of arbitration.38 Finally, the bishop drew his authority from both the state and the faithful, thus fulfilling a temporal task in “an atmosphere charged with expectations of judgment that did not belong exclusively to the Roman world.”39
Constantine’s step toward a full state endorsement of the bishop’s court was also a step toward its incorporation within the imperial legal apparatus.40 By 355, bishops enjoyed the privilege of being tried only before their peers. By 411, this privilege had been granted also to clergymen and, by the time of Justinian, to monks and nuns as well.41 If laymen wished to litigate before an ecclesiastical judge, the consent of both litigating parties was required for the tribunal to be considered lawful. With time, however, lawsuits could be transferred to an episcopal court at the request of only one of the parties, even if the other party was not a Christian.42
The road leading to a full state acknowledgment of episcopal courts was not without obstacles. By the end of the fourth century, an attempt was made to restrict the episcopal jurisdiction by confining it to religious matters and insisting once more on the need for the consent of both parties to litigate before a bishop. Yet by the fifth century and, to a greater extent, in the sixth century, the state had begun to enforce the bishops’ decisions that pertained both to religious and civil matters.43 According to Tony Honoré, the transformation of the episcopal courts into another form of imperial judiciary, possessing jurisdiction over matters of civil law, was eased by the fact that many prominent Christians were legal experts.44
The Life of Saint Augustine (bishop of Hippo, fl. 354-430) and his letters give some idea as to what it meant to hold spiritual authority and at the same time pass “worldly” judgment. When Augustine sat in judgment, reports his contemporary biographer, Possidius, “he heard their cases carefully and dutifully.”45 In one of his letters, Augustine turns to his Roman legal adviser, Eustochius, with a question pertaining to hiring the labor of a certain child.46 In the same letter, Augustine refers to the “secular duties” of his court: “There even earthly judgments are sought from us, especially concerning the temporal lot of men.”47 Yet Augustine’s letter also attests to his incomplete grasp of Roman law, that is, civil law. He seeks the instruction of his addressee on a number of legal points: “I ask your most pure charity to be so kind as to instruct me what is to be observed concerning those who are born of a free woman and a male slave.” For the most part, however, Augustine was well informed about Roman law, as can be inferred from his ability to frequently cite it and his known collection of imperial constitutions.48
An important reason for the development of the episcopalis audientia as alternatives to secular imperial courts was their growing appeal among laypeople.49 In one of his letters to the Rogatist bishop Vincentius from 408, Augustine speaks of those who come before his judgment, stressing the dual nature of his sanction: “[S]hould they not, for their own good, be roused by a set of temporal penalties, as to make them come out of their lethargic sleep and awake to the health of unity? … For, if they were frightened but not taught, the compulsion would seem unjust.”50 The bishop’s authority was perceived by some as superior to that of secular courts, as his judgment was valued not only for its legal principles but also for its morality.51 Because of his ability to resort to sanctions that follow from his authority as congregational leader, the bishop had both secular and religious powers to rely on. Furthermore, in contrast to the imperial magistrate, the bishop’s office was not limited in its tenure.52 Ecclesiastical tribunals were relatively accessible and able to offer a short process of administering justice.53 In contrast to the ongoing chain of appeals characteristic of the secular institution, the episcopal tribunal was not an appellate institution.54 The point is made clear in the Sirmondian Constitutions, found in the Theodosian Code, yet presumably from an earlier date:
[T]he judicial decisions, of whatsoever nature, rendered by the bishops, without any distinction as to age [of the litigants], must be observed as forever inviolate and unimpaired, namely, that whatever has been settled by the judicial decisions of the bishops shall be considered as forever holy and revered. Therefore, all cases which are tried either by praetorian or by civil law, when settled by the decisions of bishops, shall be affirmed by the eternal law of permanence; nor shall any case be subject to review which the judgment of a bishop has decided.55
Constantine’s plan to extend the authority of Roman law by sanctioning ecclesiastical judicial power may have succeeded beyond expectations. By the sixth century, the tables had turned,