EAST ROMANS or ROOMANIANS CULTURAL NOMOI AND ORDER (4)


(BEING CONTINUED FROM 17/08/17)

V. Orthodox Christian Elements of Middle Byzantine Jurisprudence

Along with Roman Law, the precepts and teachings of Orthodox Christianity constituted
the second major component of Middle Byzantine jurisprudence. Although Roman law had been Christianized since the time of Constantine I, to a significant extent these two strands of Middle Byzantine jurisprudence remained contradictory. If one were to generalize this dynamic in the simplest way, then it could be characterized as the tension between the role of the law as an impartial instrument of justice and objective seeker of truth (Roman law) and its role as a societal necessity which had to be ameliorated and softened in its application (Orthodox Christianity).
This section will explore which components of Orthodox Christianity influenced Middle
Byzantine jurisprudence, and how jurists employed these Christian precepts alongside the dogmatic principles of Roman law.

Within Middle Byzantine jurisprudence, the Orthodox Christian imperative to judge
mercifully and humanely was considered to be among the most important traits of a good judge.
The Basilika commands that “it is necessary to interpret the laws humanely.”
46 The eleventhcentury aristocrat Kekaumenos within the section on judges in his Stratēgikon relates what would have been for his audience the case in which the imperative to judge humanely was most absent, the trial of Jesus:
But Pilate in no way assisted in the trial [of Jesus] or was able to hold Christ
guiltless and did not do so, because he himself witnessed to Christ, saying “I have the power to release you”,47 but to the Jews he said “I find no fault in this man.”48
Accordingly the Lord heard him [Jesus] say “You have no power over me, except
that which was given from to you from above. Only the one who betrayed me has
more sin than you.” And He made Judas the exarch of evil, and Pilate second-incommand.
Why was Pilate condemned so harshly? Because he was able to release Jesus and did not do it, although it would have been swift mercy. Therefore take care and do not suffer the same things, but if you are able, help [him].49
The fact that Pilate had arrived at the correct verdict (that Jesus was not at fault) meant
absolutely nothing to Kekaumenos because he had still allowed him to be crucified. Kekaumenos goes on to write that “if a multitude is accusing, and you have the power of judgment, be exact [in investigation]. And if you shall find that the multitude spoke justly, give a decision humanely,but if the multitude brought a suit against a man through scheming or envy, proceed wisely and absolve the accused and you shall be the mouth of God and of this very man.”50 The eleventh century bishop of Euchaïta John Mauropous in a letter to a judge on behalf of a friend likewise emphasizes the importance of humanity in judgment: “If disputed cases are resolved by others in
the spirit of humanity, I suppose for you it is more appropriate, indeed, to manifest greater humanity than any other in your deliberations and to include much benevolence in your decisions…”51 Likewise, Mauropous in another letter asks for clemency for a friend who was  accused of smuggling. The bishop knows the unbending harshness of the law, but still asks for leniency in judgment: “…we know that the laws for what you call smuggling and for violations relating to it are set up as unmerciful and severe punishment. But again a provision of these laws is this, that they, sometimes, take into consideration the ignorance of the offenders and for the most part pardon such mistaken conduct.”52 Further, Mauropous maintains that even if the accused are guilty, nonetheless it is the duty of the judge to imitate God’s mercy: “In a word,
therefore, if they appear to be completely free of guilt, deliver them, oh righteous guardian of the laws, to the laws and to justice. But if not, to imitate God’s clemency, inasmuch as it is fatherly…”53 In this case the act of applying clemency by the judge was imagined as an emulation of God’s love toward mankind. In these contexts, the intransigency of the law required the mitigation of love and mercy.

From a Middle Byzantine jurist’s perspective, the necessity of applying the laws
humanely was balanced by the need to apply the law correctly. Eustathios remarked upon this dichotomy in Peira 51.22, where he notes one law which says to give milder verdicts and another law which states that judges should not depart from the prescribed boundaries of the law.
His solution was the following: “A judge who follows this legal rule, where he finds two fitting punishments, one harsh and one milder, thinks to give a legal verdict by especially favoring the  milder.”54 Nonetheless, judging a case humanely still had to occur within the framework of the Roman law.

VI. The Role of Reputation

Another important facet of Middle Byzantine jurisprudence was the reputations of the
parties in court. The long-term behavior of the parties at trial clearly influenced the verdict of the judge. Individual lapses or violations of the law could be extremely leniently punished as long as they did not indicate more serious perceived failings of character. This was the case even in instances in which Byzantine canon law strongly punished individual lapses, such as adultery.
When discussing the reasons whereby a wife could lose her dowry and be forcibly divorced from her husband, Eustathios lists among them drinking, bathing, or going to the chariot races and theatre with other men, all of which raised the suspicion of adultery.55 However, Eustathios is adamant that individual instances of these offenses are not to be punished by the law. He cleverly deduces this interpretation from the use of the present rather than aorist subjunctive in the words for “drinking together” and “bathing together”.56 It is only, Eustathios insists, repeated instances of these offenses which necessitate divorce and the loss of a wife’s dowry.

Likewise, repeated bad behavior could result in a judge giving preference to the opposing party. Peira 23.7 illustrates how the Byzantine judicial principle of partiality functioned in practice.
Many suits were issued against the Magistros Sklēros, saying that he had effected
the theft of some of their possessions, attacked their guards, and struck them.
When the Magistros and the Droungarios found that someone had wrought vengeance, mistreated the guard, and that gold had been lost, this weighed only on
him [i.e. Magistros Sklēros] to show that he could be excluded [as a suspect] or
that the guard had been struck, and then [the Magistros] would prefer that he take
an oath [first], stating his logic as “Since you imprisoned him and struck him and
mistreated him, there is an assumption [of guilt], and since you excused yourself
from these charges, for that reason I prefer that he [Magistros Sklēros] take an
oath. For the presumption [of guilt] is present.” Normally, if no [past] violence or
misdeed [of the defendant] is demonstrated, then the Magistros refuses [to convict
him], and it weighs on the plaintiff to demonstrate [that some violence or misdeed
occurred]; if doubt exists an oath is to be given to the Magistros.57

The case is also mentioned in Peira 69.5:

When [someone] struggles against a presumption [of guilt], the defendant and the
one contesting [the case] is not to be preferred [i.e. to take an oath first] to take an
oath, but rather the plaintiff. And the Magistros ruled this. For many suits had
been set in motion against the Magistros Sklēros, that he had taken away some of
their gold and had inflicted wrongdoings on them and their guards, and then the
Magistros [said], that since someone had inflicted some evil and imprisonments
[upon others], then the plaintiff was received to swear, as to what he had lost. For
he [Eustathios] said, that the magistros [Sklēros] was struggling against a
presumption of guilt. For since he struck a man or imprisoned him or did some
other evil, then it is likely that either he or his men were attacked by this very man
[i.e. Sklēros], on account of which the plaintiff is trustworthy. When some other
misdeed of theft or violence was not carried out in the past, the
defendant…[passage ends abruptly here].58
In the preceding passages, the Magistros Sklēros, who had been accused of attacking and
striking guards in the past, is presumed to be guilty when a similar case arises. Eustathios explains that because of his past behavior there exists a presumption (prolēpsis) of guilt, and therefore he would have the defendant take an oath. Continuing in this line of reasoning,Eustathios writes that normally if the defendant has not demonstrated any past behavior of misdeeds then it is incumbent upon the plaintiff to prove guilt; in cases of doubt oaths are still resorted to. In the same passage Eustathios elaborates further that, presumably in cases where the plaintiff’s case has not been sufficiently proven by evidence, the judge can call the plaintiff to take an oath. Yet when prolēpsis exists, the defendant can be compelled by the judged to take an oath. Within Byzantine Legal Culture, giving an oath was considered the deciding factor in a
case and usually trumped all other evidence.59 It is quite clear from this case and others that a defendant’s reputation was an extremely important factor within Byzantine jurisprudence, and it also hints at a possible motive as to why people accused of even very minor offences chose to contest them, often acting against their financial best-interest: the maintenance of one’s reputation was vital to being favorably looked-upon by the presiding judge, and could easily sway the verdict.

VII. For Richer or for Poorer: The Role of Social Class

Social class as well played an important role in Byzantine jurisprudence. Although there
are various schemas for describing the class structure of Middle Byzantine society, the one used in this study, which in fact very well fits the way the legal system was used by various societal groups, is one recently advanced by John Haldon.60 In his social breakdown of Byzantine society, there are two overlapping groups of élites, namely a power élite and an élite in general.
The latter and larger of these two élite groups, the élite in general, sometimes also called the  ruling or dominant class, consists of “…those who, broadly speaking, occupied a social and economic situation which either reflected, or ensured access to, senior positions in state and church, social esteem from their peers, the ability to transmit their social, economic, and cultural capital to their offspring, and the ability to control resources in terms of land and its products,manpower, and movable wealth.”61 A subset of the ruling class is that of the power élite, which is “…the leading fraction of the economically dominant social strata, those who shared a situation in respect of access to political/ideological power and influence, in particular at Constantinople and in the various branches of the imperial administration.”62 One can therefore delineate a third group as an Unterschicht consisting of everyone excluded from the élite or
power élite, which will be referred to here as the “lower classes” or “lower social strata.”63 The ways in which the élite and power élite were able to exercise power through the legal system is detailed in Chapter Three.
Many of the novels of the Macedonian emperors starting at the beginning of the tenth
century during the reign of Romanos I Lekapenos (r. 920-44) make provisions for the protection of “poor” (ptōchoi or penētes) peasants against the incursions of “powerful” (dynatoi) predatory landowners.64 The ability to designate parties in court as “poor” or “powerful” had no exact precedent in Justinianic law (though terms for the “poor” and “powerful” are used in the CIC, but usually in a more general way), although offices like the Late Antique defensor civitatis demonstrate that the government certainly had shown concern for the poor in the legal sphere.65
Besides the description of the “powerful” found in the novel of Romanos Lekapenos
which first announced the measures which were to be taken against the “powerful”, one also finds a number of criteria used to determine whether someone could be counted as a “powerful”person in law-books of the period. At the end of the ninth century one finds a definition of poverty in the Prochiron, where it is stated that the “poor” (penētes) are unable to serve as witnesses, a poor person being someone with an estate (periousia) of less than 50 nomismata.66
This definition is found within the Peira as well, although in a slightly different context. Here,the conditions for prosperity (euporia), and thus the capability to serve as a witness, are listed: a witness must either possess a title, his own strateia, a trade/business or an estate of 50 nomismata.
67 The Peira passage would suggest that a person was defined as “poor” only in the
absence of other potential poverty-negating criteria; that is, by no means was every person with an estate of less than 50 nomismata considered “poor”, but only those people who did not possess a livelihood (epitēdeuma), a strateia, or rank.68

(TO BE CONTINUED)

Zachary Ray Chitwood

NOTES

46 Bas. 2.1.18: “Φιλαγάθως δεὶ τοὺς νόμους ἑρμηνεύειν.” The Basilika redactors here very much changed the sense of the Celsus passage in the Digest on which it is based: “Benignius leges interpraetandae sunt, quo voluntas earum conservetur” (Dig. 1.3.18).

47 John 19:10; 18:38.
48 John 19:11.
49 Stratēgikon 1:1: “καὶ τῷ Πιλάτῷ δὲ οὐδὲν ἄλλο τῆς καταδίκης γέγονε πρόξενον ἢ τὸ δύνασθαι ἀθῳῶσαι τὸν Κύριον καὶ μὴ πεποιηκέναι, ὡς καὶ αὐτὸς ἐμαρτύρησε πρὸς μὲν τὸν Χριστὸν εἰπῶν ὃτι ‘ἐξουσίαν ἔχω ἀπολῦσαι σε’,πρὸς δὲ τοὺς Ἰουδαίους τὸ ‘οὐδεμίαν αἰτίαν εὑρίσκω ἐν τῷ ἀνθρώπῳ τούτῳ.’διὸ καὶ παρὰ τοῦ Δεσπότου ἀκήκοε τὸ ‘οὐδεμίαν ἐξούσιαν εἶχες κατ’ἐμοῦ, εἰ μὴ σοι δεδομένου ἂνωθεν· πλὴν ὁ παραδιδοὺς μέ σοι μείζονα ἁμαρτίαν ἒχει.’καὶ τὸν μὲν Ἰουδαν ἐποίσεν ἐξάρχοντα τοῦ κακοῦ, τὸν δὲ Πιλάτον δεύτερον. διὰ τί ὁ Πιλάτος βαρέως κατεδικάσθη; διότι δυνάμενος ἀπολῦσαι τὸν Κύριον τοῦτο οὐκ ἐποίησεν, εἰ τάχα καὶ οίκονομία ἦν τὸ γινόμενον.
πρόσεχε οὖν καὶ σὺ μὴ τὰ αὐτὰ πάθῃς, ἀλλ’εἰ δύνασαι, βοήθησον.”
50 Stratēgikon 1.1-2: “εἰ δὲ πλῆθος ἐστιν τὸ κατηγοροῦν, σὺ δὲ ἔχεις τοῦ κρίνειν, ἀκριβολόγησον· καὶ εἰ μὲν εὑρήσεις δίκαια λέγον τὸ πλῆθος, δὸς ἀπόφασιν μετὰ φιλανθρωπίας, εἰ δὲ ἐξ ἐπιβουλῆς τὸ πλῆθος ἐκινήθη κατὰ τοῦ
ἀνθρώπου εἴτε καὶ ἀπὸ φθόνου, σοφῶς ὑπελθὼν ἔξελε τὸν κατηγορηθέντα καὶ ἒσῃ στόμα θεοῦ καὶ ἀνθρώπου αὐτοῦ.”
51 John Mauropous, Letter 31, lines 23-7: “εἰ δὲ τὰ παρ’ἄλλοις ἀμφίβολα τέμνει φιλανθρωπίαν, ἦπου τῷ παντὶ δικαιότερον ὑμᾶς αὐτοὺς ἐν ταῖς κρίσεσι φιλανθρωπότοτα πάντων ἑαυτοὺς ἐξηγεῖσθαι καὶ πολὺ τὸ φιλάγαθον ἐγκαταμιγνύναι ταῖς ἀποφάσεσιν…” Edition and English translation of the letters of John Mauropous in The Letters
of Ioannes Mauropus Metropolitan of Euchaita, Apostolos Karpozilos (ed. and trans.), CFHB 34; Series Thessalonicensis (Thessalonike: Association for Byzantine Research, 1990). The translations employed here are Karzopilos’.

52 John Mauropous, Letter 11, lines 1-5: “…ἴσμεν ὃπως οἱ νόμοι τοῖς καθ’ ὑμᾶς κλεπτοτελωνήμασι καὶ ταῖς περὶ αὐτὰ κακουργίαις ἀπαραίτητοι κάθηνται ἐνίοτε τῶν πλημμελούντων συντρέχειν, καὶ ταῖς τοιαύταις ἀγνοίαις συγγινώσκειν ὡς τὰ πολλά.”
53 Ibid., lines 18-21: “Ἳν’οὖν συνέλω τὸ πᾶν, εἰ μὲν φανεῖεν παντάπασιν αἰτίας ἐλεύθεροι, ἄφες, ὦ δίκαιε προστάτα τῶν νόμων, τῷ τε νόμῳ καὶ τοῖς δικαίοις. εἰ δὲ μή, θεῷ τῷ οἰκτίρμονι, ὡς καὶ αὐτὸς ὤν οἰκτίρμων καὶ τὴν τοῦ θεοῦ μιμεῖσθαι φιλανθρωπίαν πατρικὴν κελευόμενος.”

54 Peira 51.22: “…καὶ τούτῳ ὁ δικαστὴς τῷ νομίμῷ κανόνι ἑπόμενος, ἔνθα εὕρῃ δύο ἁρμοζούσας ποινὰς, τὴν μὲν
τραχεῖαν τὴν δὲ πρᾳοτέραν, πρὸς τὴν πρᾳοτέραν μάλιστα ἀποκλίνων νομίμως δοκεῖ ἀποφαίνεσθαι.”
55 Peira 23.18.
56 “ἐὰν συμποσιάζῃ καὶ συλλούηται.”

57 Peira 23.7: “Ὅτι δίκαι πολλαὶ ἐκινήθησαν κατὰ τοῦ μαγίστρου τοῦ [Σ]κληροῦ, λεγόντων τινῶν ἀφαίρεσιν πραγμάτων αὐτῶν ὑποστῆναι καὶ εἰς φυλακὰς ἐμβληθῆναι καὶ τυφθῆναι. ἔνθα μὲν οὖν εὗρισκεν ὁ μάγιστρος καὶ ὁ δρουγγάριος ὡς ὑπέστη τὶς τιμωρίαν καὶ φυλακῆς κάκωσιν καὶ ἀπώλειαν χρυσίου, ἐκεῖνον μόνον τοῦτο ἐβάρυνε
δεικνύειν, ὅτι ἀπεκλείσθη τύχον [ἤ] ὅτι ἐτύφθη, καὶ τότε προετίμα αὐτὸν εἰς τὸν ὀμνύειν, λέγων λογισμὸν, ὅτι ἐπεὶ ἀπέκλεισας αὐτὸν καὶ ἔτυψας καὶ ἐκάκωσας, πρόληψίς ἐστιν, ὅτι καὶ ἅ ἐπεφέρετο ἀφείλου, καὶ διὰ τοῦτο προτιμῶ αὐτὸν εἰς τὸν ὅρκον· πρόληψις γὰρ ἐστιν ἐνταῦθα. ὅπου δὲ μὴ ἐδείκνυτο βία ἤ κάκωσις, τότε ἐξ ὀρθοῦ ἀρνουμένου τοῦ μαγίστρου, ἀποδείξαι ἐβάρυνε τὸν ἐνάγοντα, καὶ ἐξ ἀπορίας ὅρκον ἐπέφερε τῷ μαγίστρῳ.”
58 Peira 69.5: “Ὅτι ἔνθα μάχεται προλήψει, ὁ ἐναγόμενος καὶ ἀρνούμενος οὐ προτιμᾶται εἰς τὸν ὅρκον, ἀλλ’ὁ ενάγων. καὶ τοῦτο ὁ μάγιστρος ἔκρινε. πολλῶν γὰρ κινούντων κατὰ τοῦ μαγίστρου τοῦ σκληροῦ ὡς ἁφελομένου ἐκ τούτων χρυσίον καὶ ἄλλας εἰσαγαγόντος αὐτοῖς κακώσεις καὶ φυλακὰς, ὁ μάγιστρος ἔνθα μὲν συνίστησί τις τὴν ἄλλην κάκωσιν καὶ τὰ δεσμὰ, τότε ἐνάγοντα ἐδέχετο ὀμνύμειν, τί ἀπώλεσεν. ἔλεγε γὰρ, ὅτι προλήψει μάχεται ὁ μάγιστρος. ἐπεὶ γὰρ ἔτυψε τὸν ἄνθρωπον ἤ ἐδέσμευσεν ἤ ἄλλως ἐκάκωσε, εἰκός ἐστι καὶ τὸ ἐπιφερόμενον παρὰ τοῦ ἀνθρώπου αὐτοῦ ἀφελέσθαι ἤ αὐτὸν ἤ ἀνθρώπους αὐτοῦ, καὶ διὰ τοῦτο πιστός ἐστιν ὁ ἐνάγων. ἔνθα δὲ μὴ προηγεῖται ἑτέρα τὶς κάκωσις τῆς ἀφαιρέσεως ἤ βία, τὸν ἐνάγοντα…[lacuna here].”

59 See Ludwig Burgmann, “Oath” in ODB, vol. 2, p. 1509.
60 John Haldon, “Social Élites, Wealth, and Power” in idem (ed.), The Social History of Byzantium (Chichester,U.K.: Wiley-Blackwell, 2009), pp. 168-212. Also in the The Social History Haldon has written an excellent overview of the various approaches to social history in Byzantium as well as many of the broader methodological and theoretical issues with which it is intertwined; see John Haldon, “Towards a Social History of Byzantium”, ibid.,pp. 1-30.

61 Ibid., p. 171.
62 Ibid., p. 172.
63 Note that Haldon restricts his analysis to the two respective groups of élites; this third category is used here for the sake of convenience.
64 See Andrew J. Cappel, “Dynatoi” in ODB, vol. 1, pp. 667-8; idem, “Poor” in ODB, vol. 3, pp. 1697-8; Michel Kaplan, Les hommes et la terre à Byzance du VIe au XIe siècle: propriété et exploitation du sol, Publications de la Sorbonne. Série Byzantina Sorbonensia 10 (Paris: Publications de la Sorbonne, Université de Paris -Panthéon Sorbonne,1992), pp. 359-444; Rosemary Morris, “The Poor and the Powerful in Tenth-Century Byzantium”, Past & Present 73 (Nov., 1976): pp. 3-27. Νote however that the definition in Cappel’s entry for “Poor” in the ODB with a reference to Prochiron 27.13 supposedly defining someone as “poor” who had a property valued at less than fifty
nomismata should instead be Prochrion 27.22; the former passage cited concerns witnesses and what to do if they disagree with one another. For the use of “poor” and “rich” in Late Antique/Early Byzantine legal texts, see Evelyne Patlagean, Pauvreté économique et pauvreté sociale à Byzance, 4e-7e siècles (Paris: Mouton, 1977), pp. 9-35.

65 A.H.M. Jones, The later Roman Empire, 284-602: a social, economic, and administrative survey (Oxford: Basil Blackwell, 1964), p. 480ff.
66 Prochiron 27.22: “Οἱ πένητες οὐ μαρτυροῦσιν. πένης δέ ἐστιν ὁ μὴ ἔχων πενήκοντα νομισμάτων περιουσίαν.”This regulation is repeated in the Eisagoge as well (Eisagoge 22.8). This definition of poverty is based on Dig.48.2.10: “Nonnulli propter paupertatem, ut sunt qui minus quam quinquaginta aureos habent.” Interestingly, the Digest passage concerns a completely different matter, that of making accusations in criminal cases, rather than rendering testimony in general, which is the case in the relevant passages in the Eisagoge and Prochiron.
67 Peira 30.2: “Ὅτι τὸ ἐπιτήδευμα, ἐξ οὗ τις προσπορίζεται αὑτῷ τὰ χρειώδη, ἀρκεῖ πρὸς εὐπορίαν. ὁ γὰρ μάρτυς εἴτε ἀξιωματικὸς ὀφείλει εἶναι, εἴτε στρατείαν ἰδίαν ἔχειν, εἴτε ἐπιτήδευμα, εἴτε νομισμάτων ν΄ περιουσίαν.”
68 Morris’ rejection of the possibility that this definition of poverty was ever actually used (Morris, p. 22, n. 55), is, I think, unwarranted. The limited context in which this 50-nomismata definition of poverty is discussed, that is concerning the qualifications of witnesses, tends to broadly agree with other qualifications witnesses were supposed
to possess. In general, and this is confirmed by a perusal of the surviving monastic documents from this period,witnesses were almost always of high social standing: officials of various rank, village elders, churchmen, etc.
Whether or not this definition of poverty was used in other contexts is more of an open question, but as a qualification to serve as a witness it would certainly not have been out of tune with other regulations regarding the characteristics witnesses were supposed to possess.

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