The Reach and Limit of the Law in Antiquity

I have sporadically (when I’ve not been writing and singing songs, leading worship, or watching al-Jazeera on the latest events in Libya) been reading Peter Leithart’s Defending Constantine: The Twilight of an Empire and the Dawn of Christendom. It’s a fascinating and challenging read. Leithart so far has not so much “defended” the arrangement between the Church and the Roman state that Constantine made as he has explained what it really was. Which is helpful.

He also takes as a basis for his narrative the fact that Constantine really was a Christian. The question then, for Leithart, is what kind of Christian Constantine was.

The Roman state, by the time of Diocletian, had long been a religious state. Pagan sacrifice was the core of the empire’s regular devotional practice. There are some passages about sacrifice which I meant to blog on earlier, and will get to later. Because this is a posting about the law.

In 324, Constantine (according to Eusebius) issued a degree that was “intended to restrain the idolatrous abominations which in time past had been practiced in every city and country; and it provided that no one should erect images, or practice divination and other false and foolish arts, or offer sacrifice in any way” (p. 127, quoting Eusebius’ Life of Constantine). He ended the practice of state officials offering regular sacrifices, and was himself militantly opposed to sacrifice. Not long after Constantine died, his son Constans reinforced this with a decree making sacrifice a punishable offense. According to Leithart, this is the point where Christianity could be seen to be the official, established religion of the state, at least in the eastern part of the empire. (Again, Leithart is citing Eusebius here.)

However, Constantine also allowed broad “freedom of conscience” within the empire. Leithart asks how can these two ideas — the ban on sacrifice and freedom of conscience for pagan worship — be reconciled? Because of the nature of the law in antiquity. Leithart writes:

Imperial edicts always depended on enforcement by provincial or local officials, who might be too lazy or busy to carry out the emperor’s business. A provincial governor surrounded by convinced pagans would be hesitant to bear down. More important, emperors “never expected or intended that their anti-pagan legislation be enforced.” [Quotation from Scott Bardbury’s “Julian’s Pagan Revival and the Decline of Blood Sacrifice,” p. 134.] Leafing through the codices, one gets the impression that the decrees of the early Christian emperors were concise and legally framed legislation, but when we examine the full of text of certain decrees in Eusebius, we find that the legislative portion is fairly minor and often concludes a prolix moral lecture. The Codex Theodosianus consists of excerpts from Constantine and his immediate successors, but excerpting changes the genre and tone. In its original setting, much imperial legislation functioned more as mere moral appeal than as law [italics mine] in our modern sense of the term. Given the nature of the “law” in Constantine’s empire, there was no necessary contradiction between his “We wholly forbid the existence of gladiators” and his permission to an Umbrian town to honor the emperor with combats. Nor was there any necessary contradiction between a decree suppressing sacrifice and continued toleration of sacrifice. 

Constantine cannot keep himself from preaching. He did it in court, and when he issued decrees in his official capacity he was still the mission-minded preacher. Eschewing sacrifice entirely was the best way to go, so he prohibited sacrifice; yet everyone should be free to follow conscience, so he did not enforce prohibition. He was a politician-preacher … [and h]is legislation created an “atmosphere” in which sacrifice gradually faded way. (p. 128-129)

The law as moral appeal rather than legislation. This is interesting. It appears to understand the limits of both law and state, something modernity does not appear to grasp (because it wants the law omnipotent and omnipresent, much like modernity wants the state). To an extent, the people of antiquity appear to grasp — at least in this example (and assuming Leithart and his sources, whose conclusions he draws from, are correct) — the limits of power and ability. It may even be that the law’s primary use is as moral exhortation rather than enforced limit on human activity.

This is not to say law or decree were not taken seriously in antiquity, were not viewed as having real power, or were not expected to be obeyed. Otherwise, no one would take seriously the decree of Augustus that becomes the reason in Luke’s Gospel for Mary and Joseph to move from Nazareth to Bethlehem in order to fulfill prophesy. (In Matthew, the move is the other way around, from Bethlehem to Nazareth, and then only because the wrong people rule Judea.) Nor would the Tanakh conclude with the two books of Chronicles, the final of words of which are the decree from King Cyrus of Persia to rebuild the temple of Jerusalem. Powerful words that move people to act, and change the world.

But it seems to me as well part of the power is in their proclamation. If Constantine saw himself as a preacher, then he was exhorting people to act rather than compelling them. Perhaps the distinction is blurry in antiquity between exhortation and compulsion, but it may be there is less an element of raw power (and the modern state, especially the state in the 20th century, seems to be grounded much more on the exercise of raw power) in the state of antiquity because while the people who did rule were conscious of the extent of their power over others, they may also have been much conscious of the limits of their power.

It would be like — to use a bad but probably appropriate example — the United Nations. Sometimes, the Security Council (the UN’s executive) is truly seized of its power, such as its response to Iraq’s occupation and annexation of Kuwait in 1990. Mostly, however, the UN Security Council engages in moral hectoring more than legislating or enforcing (however edifying or annoying that may be). Which may explain why many UN Security Council resolutions read the way they do.

However, we moderns expect the law to be enforced, to be impartial, and to be fair. We have come to believe the law is almost (or should be) mechanical. Perhaps because the law has always held out that promise. But it can’t be, and never will be, for the reason Leithart states. It is a human act, and perhaps it is better to consciously live with the tension that the law is better as moral appeal than code of behavior, knowing that it will always be enforced capriciously regardless.

One thought on “The Reach and Limit of the Law in Antiquity

  1. I had a graduate seminar on Constantine back in the day and one of the things that kept coming up is how little we actually knew about Constantine. I think You’re characterization of Constantine as a Politician/Emperor is exactly right but Eusebius is much more a PR hack writing for the still small percentage of Christians than an impartial historian and teh Codex Theodosius reflects Constantine’s successors more than the Man himself. It’s not for nothing that Constantine waited until his deathbed for baptism.


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