Defending Constantine: The Twilight of an Empire and the Dawn of Christendom

by Peter J. Leithart

  Constantine's legislation was collected by the later Christian emperors, Theodosius, who commissioned the codification of Roman law, and Justinian, who commissioned both a codification of the law and a Digest and Institutes for lawyers, judges and law students.28 The Codices include only the strictly legislative portions of edicts and rescripts and leave out preambles that offer the rationale and explain the intent of a particular law. As a result, the Codices give a somewhat distorted portrait of imperial legislation. Still, it is far better than nothing, and more complete versions of some laws found their way into the works of Eusebius and Lactantius.

  Constantine's legislation is uneven in both substance and style.29 It has been charged that some of his laws were composed in haste, even in anger, though the tone of some laws maybe no more than evidence that Constantine had mastered the rhetorical bombast fashionable in his time. His sarcasm about the details of the law is so pervasive that the Codices attribute to Constantine virtually any law that manifests this "Constantinian" tone. In substance, the legislation is not consistent. In one law he shuts down the imperial cult, but in another he permits a city in Bithynia to erect a temple in his honor, with the limitation that no images should be erected or venerated there.3o

  Is there any consistent pattern here? Did Constantine have a legislative agenda? More specifically, did his legislation have the effect of incorporating Christian principles into law? Did his laws make any difference in forming a Christian political order?

  No, says Ramsay MacMullen. Constantine's legislation, he argues, shows two main features: obsession with sexual crimes and increased bru tality in punishment.31 Constantine's sexual legislation of April 326 demonstrates the presence of both of the alleged obsessions. "Constantine totally forbade married men to have concubines. He restricted the right to bring a charge of adultery to husbands, fathers, brothers, uncles, and cousins. He laid down that when a female ward grows up and wishes to marry, her guardian must furnish proof that she is a virgin inviolate; if the guardian has seduced her, he shall be deported and all his property confiscated." Sexual crimes were punished severely. "Constantine decreed that rapists should be punished by being burned alive, and he disallowed any appeal against the sentence." If a man abducted "a girl against her parents' wishes, he could no longer marry her, even if she was willing; on the contrary, her acquiescence rendered her too liable to be burned alive." Accessories to elopement were also in danger: "nurses who encouraged girls to elope were to have boiling lead poured down their throats, while anyone of either sex who aided the lover would also be burned alive." In short, he "treated seduction like a ritual impurity which can in no way be cleansed." Parents of seduced virgins who tried to hide their daughter's disgrace were "liable to deportation," and "even a virgin who was violently raped deserved punishment, since she could have stayed safely at home."32

  There were some ameliorations of punishment. Crucifixion was outlawed, apparently in respect to the cross of Jesus that had given Constantine his throne, and after Constantine no one appears to have been condemned to death by wild animals.33 But many of his decrees suggest a horror show. Corrupt bureaucrats were to have their hands cut off by the sword, tax evaders were put to death "with exquisite tortures," informers "shall be strangled in the very throat, and the tongue of envy cut off from its roots and plucked out" (CTh 10.10.2). The most colorful punishment was Constantine's re vival of the antiquated practice of tying an offender in a leather sack with snakes and throwing the sack into water to drown.34 After Constantine, death penalties increased throughout the fourth century.

  As we saw in chapter six, however, it is not entirely clear whether these punishments were ever enforced or whether they were ever intended to be enforced. Imperial legislation often functioned more as moral exhortation than as a code, and Constantine might well have been expressing his disgust at sexual criminals, informants and corrupt bureaucrats rather than instructing his agents to initiate a bloodbath. Even the focus on sexual legislation is not as obviously wrongheaded as it appears to us. For moderns, sexual activity is a purely private matter, so long as the parties are consenting adults; public law, we think, ought to have nothing to say about seduction, homosexual activity and the like. But this was hardly the perspective of Constantine or his age. Not only did they recognize that sexuality was a matter of public interest, but Constantine was faced with a sexual culture that would make even jaded postmoderns blush.

  More generally, Craig Carter charges that Constantine squandered the opportunity to "promote religious liberty and increase respect for human life and dignity."35 Other critics have complained that Constantine permitted slavery to continue, did little to reform law in a Christian direction and generally continued imperial business as usual. Yoder muses yearningly on the lost opportunity. He can imagine a genuinely Christian Constantine. If Constantine's faith had been stronger, he "would be just as free as anyone else to take risks in faith."36 Elsewhere Yoder rightly argues that no one ever has to deal with a "state as such" but only with particular states. For the early Christians, he says, there could only be a "polarity between Caesar and the God of the Bible." Caesar's empire was founded on idolatry, was prideful, demanded oaths and killed, and the early Christians totally rejected the system and operated by a "total dualism" that was practical rather than theoretical. Caesar was inescapable, and his "idolatry, violence, circuses, public abuse of minorities and enemies, feeding people to the lions for the crowd's amusement, war, and empire" were all "one package."37 Still, from the beginning Christians acknowledged the presence of the state and that it had a role in protecting the innocent and punishing the wicked, and by the time of Tertullian, the notion of "good government" was becoming "thinkable." What would good government have looked like? It would be a Roman empire that "would not persecute Christians, in which they would have their say and rights, and in which the laws could be judged from their perspective."

  It would have looked, in fact, a lot like the government that Constantine established.

  CHRISTIAN LEGISLATION?

  While he almost never cited explicit Christian or biblical justification for a law,31 Constantine did reform the law in a Christian direction in several respects. Most important, of course, he solidified Christianity's status as a legal religion and granted the church the exemptions enjoyed by pagan priesthoods and religious groups. Clergy were exempted from taxes, and a number of Constantine's laws included exhortations to pagans to abandon their false religion and sacrifices in order to worship the true God. Applying biblical precedent to the "Lord's Day" but using ambiguous terminology, he established the dies Solis as a day of rest, especially rest from lawsuits since the courts were closed. In his own palace, he honored the day with Christian worship.39 He not only abolished crucifixion but also prohibited torture that would damage the face, justifying this law by with the biblically based argument that a scar on the face does damage to the beauty of God's image in man. This has been mocked, and it is a somewhat trivial example; doesn't plucking out the tongue or cutting off the hands also damage the image of God? But it shows that at least in this one instance Constantine was thinking about Christian teaching when he legislated.4o

  Though there is no overt Christian reference in the edict concerning spectacles, in all likelihood this legislation was inspired by Christians, who had long complained about their cruelty. Pagans voiced objections as well, arguing that the games encouraged the baser members of society toward irrationalism.41 Constantine may have known of these arguments, but it is likely that whatever inclinations he had against combat were reinforced by Christian polemics. Lactantius said that a man "who reckons it a pleasure, that a man, though justly condemned, should be slain in his sight, pollutes his conscience as much as if he should become a spectator and a sharer of a homicide which is secretly committed." But Romans "call these sports in which human blood is shed." Fellow-feeling with other humans has departed when men watch a show and think "they are amusing themselves with sport, being more guilty
than all those whose bloodshedding they esteem a pleasure."42

  Lactantius was drawing on a long tradition. Pungent as always, Tertullian asked, "Why, the authors and managers of the spectacles, in that very respect with reference to which they highly laud the charioteers, and actors, and wrestlers, and those most loving gladiators, to whom men prostitute their souls, women too their bodies, slight and trample on them, though for their sakes they are guilty of the deeds they reprobate." The contradiction was obvious: "they doom them to ignominy and the loss of their rights as citizens, excluding them from the Curia, and the rostra, from senatorial and equestrian rank, and from all other honours as well as certain distinctions," yet at the same time "have pleasure in those whom yet they punish." While "they put all slights on those," they also "award their approbation; they magnify the art and brand the artist." To Tertul- Tian it was an outrage "to blacken a man on account of the very things which make him meritorious in their eyes!"43

  Cyprian likewise complained that the shows made killing into an art. Games are cannibalistic feasts, in which gladiators "are prepared, that blood may gladden the lust of cruel eyes. The body is fed with stronger food, and the vigorous mass of limbs is enriched with brawn and muscle, that the wretch fattened for punishment may die a harder death. Man is slaughtered that man may be gratified, and the skill that is best able to kill is an exercise and an art." Crime itself is bad enough, but gladiatorial shows not only commit but teach and train in crime. "Training is undergone to acquire the power to murder, and the achievement of murder is its glory." Gladiators "of ripe age, of sufficiently beautiful person, clad in costly garments," are only being "adorned for a voluntary death." When they fight with beasts, it is "not for their crime, but for their madness." Family members watch and cheer: "Fathers look on their own sons; a brother is in the arena, and his sister is hard by; and although a grander display of pomp increases the price of the exhibition, yet, oh shame! even the mother will pay the increase in order that she may be present at her own miseries. And in looking upon scenes so frightful and so impious and so deadly, they do not seem to be aware that they are parricides with their eyes."44 When he decreed that blood shows should be ended, Constantine was probably drawing on teaching such as this.

  Tracing effects, even unintentional effects, is often more important than identifying the sources of Constantine's legislation.45 Wherever he picked up his hostility to gladiatorial shows and it may be simply from his own personal revulsion at needless bloodletting, a common enough trait among military menhis legislation struck at an institution that, as we have seen, embodied many of the political, religious and cultural values of the empire. When Constantine outlawed gladiatorial contests, he may have believed he was doing no more than opposing the decadence of bloody spectacles. But his law had much wider effects on Roman culture. Gladiators continued to perform for some time after Constantine, and Christian emperors were still legislating against them into the middle of the fifth century. Already with Constantine, however, we see the beginning of a revolution in public spectacle, and that revolution, perhaps unwittingly, subverted much of what made Rome Rome. Not only did he outlaw bloody entertainments, but by eliminating one of the main public venues for the display and inculcation of Romanitas he began to chip away at the pagan civilization that had preceded him. It is too much to say that Constantine's legislation "Christianized" public entertainments, but he clearly deRomanized them. Rome had been baptized; now it needed to begin the slow work of Christian paideia.

  Like his legislation against pagan sacrifice, Constantine's legislation against spectacles created an "atmosphere" of public disapproval and played its part in forming a world without sacrifice.

  MARRIAGE AND FAMILY

  Whatever his intentions, and whatever his sources of inspiration, Constantine's legislation, and the legislation of the Christian emperors who followed him, on sex, women, marriage and divorce strengthened the church and improved the lot of women in the empire. Under the laws of Augustus, the unmarried were penalized. To encourage a restoration of the traditional Roman family, Augustus decreed that the unmarried could not bequeath an inheritance to anyone who was not within six degrees of relation, childless couples could pass on only half of their property in inheritance, and spouses were allowed to pass on only one-tenth of their wealth to the other, unless they were within six degrees of relation. Married men, by contrast, were given preference for senatorial rank and civic offices, and women with more than three children were permitted to carry out their financial affairs without the oversight of a guardian.41

  Constantine reversed the Augustan policy, removing penalties against the celibate and the childless by treating everyone as "married" before the law and every married couple as having children. Unmarried men and women thus could pass on an inheritance to whomever they pleased, and parents could pass on a full inheritance to their children. Constantine did not change Augustus's restrictions on inheritance from spouse to spouse, however. Constantine's marriage legislation has often been cited as a clear example of Constantine's Christianizing legislation, since it extended the privileges of married Roman citizens to celibates, who would mostly have been Christian. That may not have been the intention of the law. But its effects did assist the church. Not only did it enable celibates to retain property rights, but by changing the laws of inheritance, it made it easier for Christians to grant bequests to the church.47

  Other marriage legislation extended the rights of women. Established by Romulus and reinforced by the Twelve Tables, the traditional Roman patria potestas granted the paterfamilias "unfettered legal right" over his wife and children, including the power of life and death.41 Male privileges in sexuality and property associated with the patria potestas were already weakening in the early empire, but Constantine's legislation undermined them further, granting women significantly improved status.

  The legal deprivations of women were manifold. Women often married in their teens to men decades older, but under previous legislation when their husband died they were required to marry within two years of the death or forfeit all their property. Women who retained property and inheritances were forbidden to manage the marital property themselves. During the second and third centuries, jurists admitted that the law prohibiting widows from managing their own property was merely customary, but only under Constantine did the rules begin to change. He passed a law that "permitted women of good character over the age of eighteen to control their own property, although they still seem to have had to retain legal guardians." By the end of the century, women had gained the same rights as men over their property, and the tutela mulierum had disappeared completely. A law of 414 declared that "all contracts made by women be considered as binding."49

  Divorce laws also worked against women. Men were legally permitted to divorce wives at will, and they frequently satisfied their sexual urges with slaves and prostitutes. 50 Men frequently gave up one wife to secure a more socially advantageous marriage or a new wife of proven fertility. Constantine denounced divorce "for trivial reasons" and specified the conditions under which a man could sue for divorce. During the second century, women had gained the right to initiate divorce, and Constantine confirmed that right, with restrictions.51 Women were allowed to sue for divorce from a murderer, tomb robber or medicamentarius-Mathew Kuefler thinks this means "an abortionist or poisoner." A double standard remained.52 While men could divorce wives for adultery, a woman could not divorce a muliercularius, which Kuefler suggests is "a man who visited prostitutes," which did not come under the legal definition of adultery. Still, the law treated extramarital sexual dalliances as breaches of marriage.53 Under Constantine, penalties for unjustified divorce were sharpened. Earlier, a man who divorced his wife without cause would lose her dowry. Under Constantine's legislation, a woman could face deportation, and an ex-husband was forbidden to marry again.54 Significantly, Julian bowed to pressure from the Roman nobility, and Constantine's divorce legislation was overturned during his reign.
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  Despite remaining inequities, Constantine's legislation undermined some of the double standard of Roman sexual custom. Sex with slaves was discouraged in strong terms, and Constantine also appears to have been the first to legislate against rape.55 More deeply, Constantine's legislation embedded the new Christian masculinity within the Roman legal system. Roman men had always expressed their masculinity in sexual prowess, victory in battle, political power. By removing the legal penalties against the unmarried, Constantine signaled that sexual potency was no longer the test of manhood, nor an essential duty of citizenship. By outlawing gladiatorial games, he showed that violence was not the way of manhood. Sexual self-control-something on which Constantine seems to have prided himself personally-was encouraged by the state.

  CONSERVATIVE INNOVATOR

  Constantine appears, especially in his legislation, to have been an impatient man. He was certainly impatient with the technicalities, exceptions, and tiny twists and turns of the law, and this accounts for the sometimes sarcastic tone of his legislation. No piece of legislation illustrates this tendency better than that concerning wills. Wills were cumbersome for most Romans. Seven witnesses were required, and the one making the will had to seal a written text to authenticate the will. Exceptions were made for soldiers, whose wills were valid without formal confirmation by witnesses and who could therefore declare a binding will on their deathbed. Constantine's legislation on wills extended the military exception to citizens of the empire generally,56 and did so in a way that made it clear that he disliked the way earlier laws allowed the wishes of the dying to be overridden if someone forgot to use the proper formula: