A Social and Cultural History of Late Antiquity

by Douglas Boin

  It is an extraordinary testament to the work and intellectual labors of Roman lawyers that they were able to provide a flexible, lasting legal framework for officials to handle cases like these. Many of Rome’s law codes had been written at a time when citizenship was not universal. Gaius was one important legal thinker who laid the groundwork for this lasting system. He lived in the middle of the second century CE, almost fifty years before Caracalla’s citizenship decree. One of his most famous works, the Institutes, was a handbook surveying legal questions and cases.

  Many of the statements included in Gaius’ Institutes concern stolen property and physical injury. In it, Gaius also discusses the history of punishments that were associated with the cases, oftentimes going back to legal documents written in the Roman Republic:

  The penalties for injuries provided by the Law of the Twelve Tables [originally compiled in the fifth century BCE] were as follows: ‘For a broken limb, retaliation; for a bone broken, or crushed, three hundred asses, if the party was a freeman, but if he was a slave a hundred and fifty; and for all other injuries, twenty‐five asses.’ These pecuniary penalties seemed to be sufficient compensation in those times of great indigence. At present, however, we make use of another rule. For we are permitted by the Judge [praetor] to estimate the damages ourselves, and the Judge may either condemn the defendant for the amount of which we have estimated it, or for a smaller sum, as he may think proper.

  (Gaius, Institutes 3.223–224, trans. by F. de Zulueta, The Institutes of Gaius [Oxford: Clarendon Press, 1946])

  As Gaius’ study shows, Roman legal claimants were not married to a strict, inflexible application of previous law or custom. Resolutions, like the amount owed in a property dispute, could be set by judges, which would shape later precedent. In this way, the Roman legal system navigated between tradition and innovation and, as citizenship grew, the number of Romans who could appeal to the law to protect them increased.

  Gaius’ Institutes proved so influential, in fact, that by 533 CE, a lawyer in Constantinople named Tribonian, working on the orders of the Roman Emperor Justinian (r. 527–565 CE), was asked to update it. Justinian’s Institutes were the result of this process. Along with the emperor’s Digests and his Codex of laws, these three sixth‐century documents soon became the foundation of legal culture in the later Roman Empire. All three preserved many of Gaius’ earlier, second‐century case studies. In this way, the legal culture of the sixth‐century Roman Empire – whose capital was at Constantinople, not Rome – represented the continuity of almost a thousand years of Roman legal history (Exploring Culture 7.1: The Emperor’s Residence in Constantinople; Figure 7.1). Even as the Roman Empire lost territory and its customs changed – by the sixth century CE, citizens were required to identify with one specific version of Christian faith – legal tradition connected the present to the past.

  Figure 7.1 Unlike at Rome, where excavations on the Palatine Hill provide a rich amount of material evidence about the emperor’s residence, the palace at Constantinople is not well known archaeologically. This artifact, known as the Great Palace Mosaic, was found in the area east of Constantinople’s hippodrome, where the palace was located. It depicts a scene of animal husbandry. In this close‐up, two men dressed in colorful tunics, an unpretentious garment worn by laborers, attend to horses and goats. Although a seemingly innocent, rustic scene, the proper cultivation of the land had long been used by Roman poets, like Varro and Virgil, as a metaphor for good governance. That message would have had a powerful resonance in the imperial palace, particularly if the mosaic were visible to diplomatic guests, august senators, and distinguished dignitaries. From the Great Palace Mosaic Museum, Istanbul, Turkey. Dated roughly between the fourth and sixth century CE.

  Photo credit: © Dennis Cox/Alamy Stock Photo.

  Exploring Culture 7.1 The Emperor’s Residence in Constantinople

  Our archaeological understanding of the palace in Constantinople (modern Istanbul) is woeful. Although we have some idea of its footprint – the palace faced the hippodrome, located on its western side – material from Constantine’s or even Emperor Justinian’s residence is almost non‐existent. Textual sources provide some of our most evocative descriptions.

  Corippus, a poet who worked in public relations for the court of Emperor Justin II (r. 565–578 CE), is one of the key witnesses to give us information. Corippus composed his poem to celebrate the arrival, in the mid‐sixth century CE, of a foreign embassy. The chief ambassador, named Tergazis, had been sent to Constantinople by the ruler of a kingdom based on the northern Black Sea: the Avars. Telling the story in a way that would impress the emperor, Corippus waxed eloquent about the splendid moment when Avar diplomats entered the palace.

  The imperial palace with its officials is like Olympus. Everything is as bright, everything as well ordered in its numbers, as shining with light: just as the golden shining stars in the curving sky accomplish their courses poised on their own measure, number and weight and remain firm in fixed retreat and one light shines over all; all the stars yield to its superior flames and they feed on the fire of their monarch by which they lie eclipsed. In this way the power of Rome over all that is great keeps itself over all kingdoms in the midst of the people and shines, subject only to the clear sky.

  (Corippus, In Praise of Justin II 3.179–190, trans. by Averil Cameron, Flavius Cresconius Corippus [London: Athlone Press, 1967])

  Corippus goes on to tell how the Avars “marveled as they crossed the first threshold and [entered] the great hall.” Before them, they saw Justin’s bodyguards, decked out in helmets with red plumes, standing at attention with golden shields and javelins, tipped with sparkling iron. The impression was stunning. “[T]hey believed that the Roman palace was another heaven” (Corippus, In Praise of Justin II 3.236–245). The Avar diplomats who accompanied Tergazis may be the surest we’re able to come to envisioning Justin II’s palace.

  There is at least one other – admittedly less certain – source that may provide relevant information. Between 1930 and the 1950s, several large chunks of mosaic floor were excavated southeast of the hippodrome. Some sections depict hunting scenes, a favorite elite pastime; others show tender moments of everyday life. A man stoops to give food to his mule; a likely squealing child chases a goose. These mosaics have been dated to the first half of the sixth century CE.

  Based on what we suspect about the palace floor plan, these mosaics should have come from a wing of the emperor’s residence, but no consensus has been reached yet about what building they may have belonged to or even their date.

  The history of Roman law as a story of “horizontal relations”

  There is one last reason why legal texts, like Aurelia Ataris’ petitions, are so helpful for social and cultural historians of Late Antiquity. As documents that report on the scandalous, outré events that took place in Roman cities, the legal texts allow us to see a kind of interpersonal relationship that doesn’t fit neatly into models of “top‐down” or “bottom‐up” history. These texts are fascinating because they preserve snapshots of “horizontal relations” (Bryen 2013, p. 269) – of friends and neighbors whose relationship with each other has gone comically, sometimes even horribly wrong.

  That’s what happened in May 336 CE when two pigs escaped from the farm of a woman named Aurelia Allous (Oxyrhynchus Papyrus [P. Oxy.] 54.3771, trans. by Bryen [2013], p. 262). After wandering off Aurelia’s property, the lost animals eventually stumbled into a waterwheel near Aurelia’s neighbor’s land. The owner of the land, a man named Pabanos, had been so enraged that he came after Aurelia with a chisel after trying to slaughter the pigs. According to the petition filed with the local magistrate, Pabanos even tried to drown Aurelia in one of the water conduits.

  Although the precise circumstances that led to the escalation of the violence here are missing from the textual reports, as they are from the kidnapping case of Aurelia Ataris, the fact that Aurelia Allous went to the magistrate to pursue her case �
� leaving a papyrus petition behind in the archaeological record – shows us one of the most important roles that the legal system played in fourth‐century Roman Egypt. Both these petitioners saw the law as a protection from a spike in the kinds of violence that could and did disrupt the more mundane rhythms of life on their farm or in their city. Waiting in line to see a local official, reading the complaint, witnessing and signing the petition, then waiting for a response: these were the everyday signs of law that went hand‐in‐hand with the top‐down world of imperial edicts, social policies, and politics.

  7.2 The “Edict of Milan,” 313 CE

  Milan in the early fourth century resembled most large imperial cities. Like Thessaloniki, whose buildings are attested archaeologically, and Nicomedia, whose ghostly presence haunts many fourth‐century texts, this city of northern Italy (in Latin, Mediolanum) was a cosmopolitan environment outfitted with all the amenities expected by Late Antique Roman citizens. There was a large circuit of walls surrounding the city; an amphitheater for animal hunts and gladiatorial games; baths with statues of the Roman gods, like Hercules; a race track for chariot matches; and broad, column‐lined city streets, perfect for staging imperial ceremonies. Milan owed much to the investment of the Tetrarchs. It would also soon become famous as the site of an important “constitutional convention,” a meeting between the Augusti of the eastern and western regions of the empire. The two protagonists in this meeting were Licinius (r. 312–324 CE) and Constantine (r. 312–324 with Licinius; 324–337 CE as sole emperor of Rome).

  In 312 CE, General Constantine had been proclaimed emperor by his troops at York, in Roman England. In the aftermath of this proclamation, he had decided to march his army against the current Augustus of Rome, Maxentius. It was a daring decision because it undermined the validity of Diocletian’s political reforms and challenged the notion of shared rule. In October 312 CE, Constantine successfully seized the capital. The Augustus, Maxentius, drowned in the Tiber Riber.

  One year later, in 313 CE, in the aftermath of his stunning victory, Constantine arranged to meet his eastern colleague, Licinius – perhaps to allay fears that Diocletian’s system was not in danger of falling apart. The meeting was scheduled for Milan. There, the two men would sign a joint statement clarifying the role and meaning of the practice of religio throughout the empire. It is this document, drafted at Milan but announced at Nicomedia, which is known as the “Edict of Milan.” It was an imperial decree that had a transformational effect on Roman society.

  The Roman constitution in context

  The Roman people had no written constitution, but the absence of a formal document does not preclude us from speaking about a “constitution” in more general terms as the legal culture, the formal governmental structure, and the social traditions that undergirded the state. Since the time of the Republic, the mechanisms that allowed the Roman state to function involved a balance between codified rules and an appreciation for traditions and values.

  For that reason, Rome’s “constitution” from its earliest days can be said to have depended on a combination of specific regulations, such as who could hold a magistracy and when; but also on a set of more loosely defined rituals, such as the performance of a triumph, an honor which allowed a successful general to parade through the streets of Rome and grow his political base. This system was supported by the consensus of the Senate, the men who played an advisory role, and by Rome’s priests and priestesses, who were tasked with ensuring that the government’s decisions conformed to the will of the gods. Religio, in this arrangement, functioned as a branch of Rome’s Republic.

  The rise of an autocracy in the first century BCE, commonly regarded as Rome’s “Empire,” was the direct result of a breakdown of this cooperative, consensual system. Yet without reading the ancient sources too naively, it is important for us to realize that the arrangement which came about during these formative years was, in many ways, the product of a creative constitutional renegotiation – one that took hold of Roman society gradually. The “Empire” did not emerge as the result of a radical governmental overhaul, certainly not by one authoritarian man.

  Just the contrary. The gradual process by which a single man, such as a highly respected politician like Augustus, was given authority to oversee the entire government ran on a certain cognitive dissonance. Romans could convince themselves that they were staying faithful to their history of living in a “Republic,” even as their state grew more and more to resemble a monarchy. The fact that Augustus assumed the role and title of pontifex maximus, “Chief Priest” of the government, ensured a particular new level of stability because priests who chose to use ill omens to object to Augustus’ policies would have been seen as deliberately undermining the authority that the Senate and people had invested in him. In extreme circumstances, however, as a vote of no‐confidence, the people or the army could always choose to remove those leaders who they saw as failing to live up to their expectations. The history of the third century CE can be seen as a time when even this system was tested.

  The larger point is that the broad ideology of Rome’s “Republican” system proved remarkably resilient. Throughout Late Antiquity, the Senate continued to work in its accustomed deliberative role; the emperor commanded respect through his personal authority; and the people themselves functioned as an important check‐and‐balance, calling out political ineptitude or sometimes calling for new leadership in public venues where they met the emperors, such as at the circus games. This constitutional system, in which very little about the actual running or management of the government was ever codified – let alone written down – provided the underpinning for the Roman Empire, both when Rome was a part of the state and even when Constantinople was its sole capital (A. Kaldellis, The Byzantine Republic: People and Power in New Rome [Cambridge, MA: Harvard University Press, 2015]).

  Expanding the idea of being Roman

  Constantine’s conference with Licinius’ in 313 CE leaps out from history for two reasons. It’s not just that the emperors’ decisions would affect the political trajectory of Christianity, although 313 CE remains the year which Christians use to commemorate the moment when their faith was legally recognized. (Galerius’ edict of 311 CE does not traditionally receive the same recognition.)

  There is a second, subtler reason why that Milan conference is important, though. The idea that any Roman ruler would take the time to define, explicitly, what and who constituted a Roman religio – by writing their opinions down and distributing that language to the citizens of the empire – represents an entirely new development in the story of Rome’s constitution. Where tradition and custom had been the norm for centuries, leading to the difficulties with civic sacrifice in the third century CE, this new formal, fixed legal language now provided a safe harbor for all the empire’s 60 million citizens. Christians, according to the language of Constantine and Licinius’ edict, were now to be accorded the official status of a religio (Lactantius, On the Death of the Persecutors 48). And unlike Galerius’ edict, this decree would never be challenged or repealed.

  The idea of what it meant to worship as a Roman citizen (religio) had just been expanded to include all the empire’s diverse Christian individuals. Meanwhile, the fortunes of other Christian communities, outside the Roman Empire, would follow different paths (Key Debates 7.1: Being Christian in the Sasanian Zoroastrian State: A Case of Constant “Persecution”?). In Rome, the protection of Christian worship had now been written into Roman law. It was a decision that would have unforeseen implications for many priests and bishops, as well as for many ordinary Christian individuals, as they all would now grapple with the responsibility of having been classified as one of the religiones of the Roman state.

  Key Debates 7.1 Being Christian in the Sasanian Zoroastrian State: A Case of “Persecution”?

  Emperor Constantine saw himself as “a bishop to people on the outside.” That, at least, is the portrait painted by the emperor’s Christian biographer, Eusebius
(Life of Constantine 4.24). Eusebius marshaled powerful evidence to support his claims. In his biography, he included a letter sent by the emperor, c.324 CE, to the head of the Zoroastrian Sasanian state, Sapur II (r. c.310–379 CE). In it, Constantine advocated forcefully on behalf of the Christian community in Persia and requested Sapur II treat them with respect. “[B]ecause your power is great, I commend these persons to your protection; because your piety is eminent, I commit them to your care” (Eusebius, Life of Constantine 4.13, trans. by E. Richardson from the NPNF series [1890]).

  Whether Constantine really sent such a letter cannot be proven, but the social status of Christians in the Sasanian Empire is a fascinating topic to explore. In many ways, it could easily be told as a story of “martyrdom” and “persecution” similar to pious “church histories” of Christians in Rome. A closer look at Persian politics reveals a different picture. Christians negotiated their place in the Sasanian world in much the same way that we know they did in Rome.

  A Middle Persian text written on the so‐called Ka’ba of Zoroaster at Naqsh‐i Rustam would seem to support the traditional story of Christian persecution. On one side of the monument, the chief priest of the Sasanian Empire, Kerdir, bragged that – under three successive administrations, from 241–274 CE – he strictly enforced Zoroastrian belief throughout society. Worship of the god of Light, Ahura Mazda, also known as Ohrmazd, “held great authority in the empire,” Kerdir wrote. “The doctrine of Ahreman [the god of darkness, Ohrmazd’s evil opponent] and the demons was expelled from the empire” (Inscription of Kerdir, trans. by Richard Payne, A State of Mixture: Christians, Zoroastrians, and Iranian Political Culture in Late Antiquity [Berkeley: University of California Press, 2015], p. 23). Yet many Christians continued to live in Persia both during and after this time.