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The episcopalis audientia in Late Antiquity

L’episcopalis audientia dans l’Antiquité tardive
A. J. B. Sirks
p. 79-88

Résumés

La Constitution de Sirmond 1 de 331/3 est considérée par un certain nombre d’universitaires comme la preuve que, durant la période 331/3-408, les évêques avaient pleine juridiction, c’est-à-dire que même contre la volonté de l’une des parties, une affaire pouvait être portée devant le tribunal épiscopal qui pouvait prononcer une décision exécutoire (par conséquent sans possibilité d’appel). Auparavant et après cette période, cela n’était possible que si les deux parties étaient d’accord, ce qui réduisait le tribunal épiscopal à un simple rôle d’arbitre. Cependant, la Sirm. 1 ne peut être authentique, non seulement parce qu’un tel élargissement de compétence sans possibilité d’appel est peu vraisemblable et contraire à la structure de la procédure en droit romain, mais aussi parce que la Constitution donne au témoignage unique d’un évêque, entière force probante. Cela est contraire à une autre règle fondamentale de la procédure en droit romain, à savoir la règle unus testis nullus testis,vigoureusement confirmée par Constantin juste avant et juste après l’émission supposée de la Sirm. 1. Négligé par les partisans de l’authenticité, c’est cet argument qui démontre que la Sirm. 1 ne doit pas être considérée comme authentique. C’est un faux, vraisemblablement concocté dans le but d’étayer les prétentions de l’église en Gaule mérovingienne à plus de pouvoir, joint à de vraies Constitutions pour lui donner un caractère véridique.

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1A particular phenomenon of Late Antiquity is the appearance of the so called episcopalis audientia, a term we meet first with Justinian’s Code. In the Theodosian Code we find the term iudicium episcopale, but as such it is the same. Basically it concerns a way of deciding a dispute, next to the official way of entering the official hierarchy of courts of local judge, the provincial judge, the diocesan vicar, and then the prefect, either in last resort (vice sacra iudicans) or as one but last phase before the emperor as supreme judge. Yet deferring the decision to one or more persons in the unofficial capacity of arbitrator was far from usual. It was commonly known by the name of arbitrium and the agreement to do so was a compromissum (actually two promises). The decision was called a sententia, as with state courts. Abeyance could be ensured by mutual penal stipulations, included or combined with the compromissum. This meant that if one party did not follow the sententia, the other could sue him before a state court for breach of promise, for the promised sum. As such, arbitration had its advantages. Costs were less or nil, the case could be handled much quicker, and one could apply the law of one’s choice, e.g. the law of one’s home town or people (Greek law, Jewish law). So what is so special about this ‘bishop’s court’?

  • 1 What that implies, no commentator elucidates. But we find the expression with Augustinus, De vera (...)

2Already in 325 the emperor Constantine conceded on the Council of Nicaea that it was the exclusive authority of bishops, if convened in a synod, to decide on religious matters (ad fidem Dei). It turned out, later on, not to be so exclusive after all in the east: the emperor also legislated (cfr. CTh 16.1.2); but we are not dealing with this here. Rather the question is: what about jurisdiction by bishops in secular matters? In another constitution, CTh 1.27.1 of presumably 318, Constantine had ordained that if parties in a law suit wanted to defer their case to a bishop as arbitrator, and have the Christiana lex applied,1 the judge had to accept that and to pronounce the bishop’s verdict as his verdict. The form of this is not known but it may have been an edict and as such it might have been the edict Sirm. 1 is referring to (whether authentically or fraudulently). Compared to the existing practice of enforcing a sententia arbitri by penal stipulations, this made a great difference: an arbitrator’s judgment – what the bishop’s decision was – would now become directly enforceable. But Constantine also declared that such recourse to a bishop could not be done by one party alone.

  • 2 Humfress cites CJ 1.4.7 as CTh Krueger 1.27.2, but Krügers edition of the Theodosian Code is unrel (...)
  • 3 J. F. Matthews, Laying Down the Law, New Haven/London 2000, p. 128 and p. 128 note 21.

3CTh 1.27.2 of 408 confirmed the authority of a bishop’s judgment. It also underlined that an agreement between parties was required. Likewise CJ 1.4.7, of 398, emphasises that bishops may function as arbitrators, but only in civil cases and as long as both parties agree to this.2 CTh 16.11.1, of 399, restricts their authority to religious cases. For secular cases the normal courts are competent. Thus even if Sirm. 1, or its predecessor, had ever been included in the Theodosian Code in Book 1 as Matthews suggests, it is certain it would not have been included in Justinian’s Code (contrary to Matthews’ assumption).3 This second constitution says that parties in a running lawsuit may also address a bishop without the judge knowing of this and declares bishop’s judgments valid without posterior confirmation by a secular judge. But the second constitution also says: Cum enim possint privati inter consentientes etiam iudice nesciente audire, ‘for since private persons can hear those persons who have given their consent, even without the knowledge of the judge’. As such it conforms to the practice of arbitration, be it now that the sentence of the arbitrator had direct force in secular courts. It is therefore not strange that CTh 1.27.1 is not included in Justinian’s Code.

  • 4 See in general on this A. Laniado, Recherches sur les notables municipaux dans l’empire protobyzan (...)
  • 5    See I. Wood, The Merovingian Kingdoms 450–751, London/New York 1994, p. 71-101.

4These constitutions are remarkable in that they show what prominent position Christianity and the Christian priesthood had gained in the course of the fourth century. Until the end of the fifth century a bishop was a private person and in this respect not different from any other person. Under Anastasius (491-518) in the east municipal decisions are deferred to a little group of the largest local estate owners and the local bishop.4 His position became by that a private one with public charges as well. In the west we do not see this happen officially, but unofficially the bishops attained a public function in the barbarian kingdoms.5 That made any decision by them more alike that of an official judge who in those days combined administrative and judiciary tasks. His decisions as arbiter being enforceable, may have made him look as a functionary with jurisdiction.

  • 6 On this Council: L. W. Barnard, The Council of Serdica 343 A.D., Sofia 1983; on its importance for (...)

5Further, a bishop was functionally not the like of any pagan priest of previous times. Although being still far from the monolithic organisation it was to become in the west and, to a lesser extent, in the east, the church had already organised itself into provincial synods and convened in interprovincial councils, and on these decisions regarding the Church were taken. Again, such provincial councils existed before in secular respect, and there existed so called provincial priesthoods, but no antique religion had been organised in that sense before, and all else was an imitation of the Christians (e.g., with Manichaeism). As regards the enforcement of decisions taken and canons issued, on the Council of Serdica of 343 it was decided that council decisions were to be obeyed and that otherwise sanctions could be imposed.6 That was the beginning of canon law. Thus, deferring your case to a bishop was not just deferring your case to any private person, but, certainly by the end of the 4th century, to a member of an increasingly powerful organisation. And as we see, this started already
in 318, when his judgment was made enforceable as if a judgment by a regular judge.

  • 7   The times of the formula procedure in private law, where the judgment of the judge, appointed by (...)

6On the other hand, a bishop’s judgment remained the outcome of arbitration. The bishop was the first and at the same time the ultimate judge: there was, as with other arbitrators, no appeal possible, even if the secular judge confirmed his judgment. That was a confirmation, it did not become his judgment and by that fit for appeal. This was acceptable as long as the parties involved were free to enter arbitration at their own discretion. If it had been real jurisdiction, with the episcopale iudicium being a court, why not appeal as was the rule in jurisdiction in the empire?7

  • 8 See A. Banfi, Habent illi iudices suos. Studi sull’esclusività della giurisdizione ecclesiastica e (...)
  • 9   See on this M. Vessey, «The Origins of the Collectio Sirmondiana», in J. Harries, I. Wood (eds), (...)
  • 10 Godefroy, as cited by Cimma: M. R. Cimma, L’episcopalis audientia nelle costituzioni imperiali da (...)
  • 11 As insinuated by O. Huck, À propos de CTh 1,27,1 et CSirm 1. « Sur deux textes controversés relati (...)
  • 12 D. 48.18.20: ... et testimonium non oportere unius hominis admitti nec solere a quaestionibus inci (...)
  • 13 Numbers 35:30, be it in case of homicide.
  • 14 Which shows social reality behind the law. Governors may have too easily relied on the testimony o (...)
  • 15 M. R. Cimma, L’episcopalis audientia nelle costituzioni imperiali da Costantino a Giustiniano, Tor (...)
  • 16   Matth. 22:21: ’Render therefore unto Caesar the things which are Caesar’s; and unto God the thing (...)
  • 17   O. Huck, À propos de CTh 1,27,1 et CSirm. 1. « Sur deux textes controversés relatifs à l’episcopa (...)
  • 18 C. Humfress, Orthodoxy and the Courts in Late Antiquity, Oxford 2007, p. 160-161: ‘It is plausible (...)

7This brings us to a second aspect. That is the extent of the episcopalis audientia, the great question for the 4th century. Here a discussion is going on since Godefroy’s commentary in the 16th century.8 It is the result of the retrieval and publication of a collection of constitutions on ecclesiastical matters, dating from the 7th century and originating in Lyons.9 The first of these so called Sirmondian constitutions is allegedly issued by Constantine in 331 (or 333) and grants bishops full authority to judge cases, with legal validity of their judgments by way of a posterior confirmation by a secular judge, and not only if both parties agree to defer their case to a bishop, but also – and here lies the difference with arbitration – if only one party applies for his judgment: etiamsi alia pars refragatur, ‘even though the other party to the suit should oppose it’. In other words, the other party could be brought against his will before a bishop’s court. There is no appeal possible (which again collides with the secular jurisdiction). Another remarkable privilege in Sirm. 1 is, that the single testimony of a bishop suffices to prove facts (Testimonium etiam ab uno licet episcopo perhibitum omnis iudex indubitanter accipiat nec alius audiatur testis, cum testimonium episcopi a qualibet parte fuerit repromissum. – ‘Furthermore the testimony given by a bishop, even though he may be the only witness, shall be unhesitatingly accepted by every judge, nor shall any other witness be heard when the testimony of a bishop has been promised by any party whatsoever.’ [transl. Pharr]). This all is indeed a very generous grant and one can see why Godefroy thought of it as a forgery equal to Lorenzo de Valla’s Donatio Constantini.10 You do not have to be a staunch Calvinist for that.11 Already the passage on the single testimony is against a basic rule of Roman law (D. 48.18.20),12 but also contrary to the Bible.13 The same Constantine had already warned against easily accepting a single testimony, and on 25 Aug. 334 he expressly forbade it again, even if it were from a decurion (CJ 4.20.9),14 thirteen and a half months after Sirm. 1. This should raise grave suspicions with anyone who reads Sirm. 1 on this, as first did Godefroy. But Cimma remarks that the second privilege attribution would also be against canonical rules and it would therefore be illogical for a forger to include this.15 Yet who fraudulently introduces jurisdiction for bishops, may also introduce this: both are against the canonical rules, since secular jurisdiction for bishops is contrary to Matthew 22:21 and the separation of wordly and spiritual powers.16 Huck does not discuss this point in his article on the authenticity of Sirm. 1.17 Humfress’ interpretation is neither probable nor does she too take account of the said principle.18

8Two constitutions from the Theodosian Code are added at the end in the manuscript Berol. Philipps. 1745 of the Sirmondian Constitutions, the present CTh 1.27.1, of 318, in which Constantine states that a secular judge must respect the wish of parties to defer their case to a bishop and must confirm the decision of the bishop. Further, he may not allow that one party on his own refers himself to a bishop; and the present CTh 1.27.2 of 408. The content of these two constitutions is as regards the question of court (to restrict ourselves to the point in issue) the precise opposite of Sirm. 1. And of the second constitution from the Theodosian Code, by Mommsen inserted as CTh 1.27.2, the collector says in the said manuscript: et hoc validior quia omnibus posterior. So the collector himself, or a later copier, was already in doubt.

  • 19   Underlining that the law must be applied: it may mean that in secular matters bishops had to rest (...)

9And here we are confronted with the big question about the episcopalis audientia in Late Antiquity: was it a real court, parallel to the secular courts, to be curtailed in the west by the end of the 4th century on one hand to religious matters and on the other to arbitration by mutual consent and according to civil, secular law (CTh 16.11.1,19 CJ 1.4.7; CTh 1.27.2, and repeated in 452, Nov. Val. 35 pr.)?

  • 20 C. Humfress, Orthodoxy and the Courts in Late Antiquity, Oxford 2007, p. 158–161.
  • 21   Although it is indeed likely in view of the text that the emperor reminded the addressees of thei (...)

10Humfress, who in passing by only refers to the question of the genuineness or not of the Sirm. 1, thinks this is a case of forum shopping and that here parties tried to do so; she tries to find the case behind Sirm. 1 and thinks that the constitution, as other constitutions, merely ‘reminded’ judges and litigants, it did not invest them with authority or rights. The case was one in which Ablabius did not know whether he should reopen the case or not. The issue seems to have been the reluctance of civil judges to enforce the bishop’s judgment.20 Has it sense to reconstruct the case behind a text if the authenticity of the text is under scrutinity?21 It has if this is to check whether from this point of view something can be said about the authenticity. As such her analysis fits and suggests authenticity, but authenticity of the lesser case too, viz. that the judges simply hesitated to confirm such arbitral judgments. It does not say anything about the famous phrase or the bishop’s testimony. What would we have to suppose for that? That a judge wondered whether both parties had agreed and that it was
the bishop now who in person testified they had? Rather we may expect that the victorious party, or both if a judgment was given which gave
both something, went to the judge with the text written and signed by the bishop and both parties. That would have sufficed. Thus it is not logical to expect these two elements. Further, it is strange that if Constantine had really issued such a rule before, as the text says, the original constitution is not cited. The insinuation that even Ablabius could not find it does not make the case for authenticity stronger: it is a perfect forger’s trick to explain the unexpected appearance of a text introducing something new, while the reference to a previous but already in the times of the issuing emperor infindable constitutions only reinforces this story and enhances its credibility.

11As said, the entire Sirm. 1 could be a fraud, also on account of the exclusivity of the episcopal testimony, or authentic in part, originally referring to the rule of CTh 1.27.1, with the fraudulent addition of the phrase and the privilege. In any case: the question for us here in this contribution is not whether the text had general validity in 438 (it had not, or otherwise the anonymous commentator would have cited other texts), but whether the phrase etiamsi alia pars refragatur is true or false. If the phrase were true, the authority of the bishop would have exceeded that of an arbitrator and his jurisdiction would have been at a par with the secular jurisdiction. He would have had a real court during the fourth century. It would have been abolished by the end of the fourth century and explain why it had not been included; but that leaves the part on the bishop’s testimony, which should have been included.

12One may say that the constitutions at the end of the fourth century indicate that bishops previously did judge in secular cases on the wish of one party alone. It is an argument a contrario, which yet has some plausibility in itself. But what makes this unplausible is that if Sirm.1 were true, it would mean that whoever was cited against his wish before a bishop, never had the possibility to appeal. That were completely contrary to the principles of secular jurisdiction, which is very hard to believe to have been the case. Appeal was a long established and inveterate part of the legal system. Only with arbitration parties, as with a settlement, repudiated basically their right to appeal. If somebody wants to save Sirm. 1, he has to reduce its force to religious matters. But even there not a single bishop, but only the synod had the authority to make decisions which were not appealable.

  • 22   M. Vessey, «The Origins of the Collectio Sirmondiana», in J. Harries, I. Wood (eds), The Theodosi (...)
  • 23   J. F. Matthews, Laying Down the Law, New Haven/ London 2000, p. 123.

13As Vessey suggested, the collection of Sirmondian constitutions might have been used after the conquest of Visigothic Gaul by the Franks in 506, who were orthodox Roman Catholics, by the Gallic Church which tried to increase its influence (and succeeded).22 It did so by inserting in Alaric’s Breviary in the Book on ecclesiastical affairs those constitutions from the Theodosian Code the Alarician compilers had left out. In this way we possess, next to the manuscript Vat. reg. Lat. 886, of Book 16 a mass of parallel text traditions. In Alaric’s Breviary we find under 11.5.1 the constitution of 399, restricting expressly the bishop’s authority to religious matters. It aligns with Valentinian’s Novel 35 pr., number 12 in the Breviary. We have to consider the collection of Sirmondian constitutions in that light. They could have been drawn from the emperor’s archive and been offered as proof of the Church’s claims. Mommsen thinks they were already before 438, the promulgation of the Theodosian Code, copied.23 Yet, first: there was no interest in destroying the imperial archives after 438 on account of the Code, and second: if these texts had really been included in the collection as proof of the claims, why then not in the form they had been included in the Theodosian Code? And some are indeed present in the Code, but in an abbreviated form. This leads me to assume that we have here a private collection, drawn from the original correspondence, made to sustain claims in the 7th century AD, by somebody who wanted to subtract jurisdiction from the Frankish kings to the Church. He would have faked the entire Sirm. 1 (quite a feat for those days, I think, in view of the command of composition required) or merely inserted the phrase etiamsi alia pars refragatur and the phrase about the bishop’s testimony, with perhaps a fitting introduction on Ablabius’ incompetence. And forgery was not uncommon in those days. A cleric would certainly think to do a good service, when he increased in this way the Church’s authority. Theoretically the Breviary should only have been supplemented from the Theodosian Code and these supplements should preferably have been inserted here. But this was not necessary and it would have been difficult for many to check whether a text came from the Theodosian Code or not. Including some text from the Code which were verifiable would make all more believable.

14Thus though the episcopalis audientia had in ecclesiastical matters exclusive jurisdiction (see Banfi), it was as regards non-ecclesiastical matters merely a court of arbitration, be it that its decisions could directly be enforced through confirmation by a secular judge. In the German kingdoms this latter requirement lacked because it was not included in Alaric’s Breviary. The authority of the bishop will, we hope, been enough.

  • 24 C. Humfress, Orthodoxy and the Courts in Late Antiquity, Oxford 2007, mentions this p. 161.
  • 25 See R. S. Bagnall, Egypt in Late Antiquity, Princeton 1993, p. 195.
  • 26   S. Mratschek, Der Briefwechsel des Paulinus von Nola, Göttingen 2002, p. 370–371.

15How was the practice of the episcopalis audientia? There is a case in which Ambrose was asked by the lawyers for parties to decide the case as judge (iudex). He only would accept the case as arbitrator (Ambrose ep. 24).24 Humfress thinks the case suggests that bishops could choose the form in which they agreed to hear cases. She does not say what difference this would make and so the remark is without consequence. But it would have made a difference. If Ambrose had been appointed iudex delegatus by the judge, he would have had the authority to an inquisitorial dealing with the case; as arbitrator he would have to rely on the cooperation of parties. And this leads me to the following. When we read the letters of Sulpicius Severus, Sidonius Apollinaris or Paulinus of Nola, we find that a bishop behaved more like a Republican, classic patrician Roman, who took care of his clients. He took their requests and intervened for them, trying to find a solution. Sulpicius, in the case of his coloni, tries to persuade Salvius, his opponent: he does not intend to litigate. Similarly Sidonius offers a solution for the marriage between a colonus and the inquilina of the other. Paulinus tries to persuade the vicar of South Italy to intervene. Late Antique bishops seem to have acted more as mediators than as judges and that would have been more in line with their pastoral mission, as we also know from texts from Egypt.25 Whether they would have functioned well, had they been judges, depends: Paulinus of Nola could unabashedly admit that the case he advised in favour of was legally very weak.26 So I would suggest that the episcopalis audientia in Late Antiquity was not so much a court with a judge, but a place for mediation and reconciliation; and perhaps we have to read Ambrose’s arbitrator in that sense, as mediator. In that sense the Christiana lex would have been: the duty to mediate and reconcile.

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Notes

1 What that implies, no commentator elucidates. But we find the expression with Augustinus, De vera religione 14.27, in the meaning of the precepts of the Christian religion in the context of the avoidance of sins. In other words: their case should be solved in accordance with Christian morality, not according to the civil law, with the mediation of the bishop.

2 Humfress cites CJ 1.4.7 as CTh Krueger 1.27.2, but Krügers edition of the Theodosian Code is unreliable in its reconstruction and should not be used: C. Humfress, Orthodoxy and the Courts in Late Antiquity, Oxford 2007, p. 162-163.

3 J. F. Matthews, Laying Down the Law, New Haven/London 2000, p. 128 and p. 128 note 21.

4 See in general on this A. Laniado, Recherches sur les notables municipaux dans l’empire protobyzantin, Paris 2002.

5    See I. Wood, The Merovingian Kingdoms 450–751, London/New York 1994, p. 71-101.

6 On this Council: L. W. Barnard, The Council of Serdica 343 A.D., Sofia 1983; on its importance for the development of canonical law: H. Hess, The Canons of the Council of Sardica, A.D. 343: a landmark in the early development of Canon law, Oxford 1958, p. 109-127.

7   The times of the formula procedure in private law, where the judgment of the judge, appointed by the magistrate, was definitive and without appeal, were long over by that time.

8 See A. Banfi, Habent illi iudices suos. Studi sull’esclusività della giurisdizione ecclesiastica e sulle origini del privilegium fori in diritto romano e bizantino, Milano 2005, p. 18 note 15, for an overview. A slight majority is in favour of a falsification of Sirm. 1, as first proposed by Godefroy. Also on the Sirmondian constitutions and in favour of the authenticity of Sirm. 1, O. Huck, Les compilateurs au travail : dessein et méthode de la codification théodosienne, p. 92–93, and my reaction on this on p. 103-104, and Huck’s reaction to this again on p. 117-118, in S. Crogiez-Pétrequin, P. Jaillette (eds.), Société, économie, administration dans le Code Théodosien, Lille 2012 (proceedings of a conference, held in Lille in 2005).

9   See on this M. Vessey, «The Origins of the Collectio Sirmondiana», in J. Harries, I. Wood (eds), The Theodosian Code, London 1993, p. 178-199.

10 Godefroy, as cited by Cimma: M. R. Cimma, L’episcopalis audientia nelle costituzioni imperiali da Costantino a Giustiniano, Torino 1989, p. 50.

11 As insinuated by O. Huck, À propos de CTh 1,27,1 et CSirm 1. « Sur deux textes controversés relatifs à l’episcopalis audientia constantinienne », ZSS Rom.Abt. 120, 2003, 89–90, with reference to Le Gendre in note 21. Godefroy will certainly have expressed himself in the style of his days, as Le Gendre, but that does not invalidate his legal arguments.

12 D. 48.18.20: ... et testimonium non oportere unius hominis admitti nec solere a quaestionibus incipi, etsi aliena esset ancilla. Procurator quaestionem de ancilla habuerat. Cum ex appellatione cognovisset imperator, pronuntiavit quaestione illicite habita unius testimonio non esse credendum ideoque recte provocatum. And the Gloss illicite: ... quia unus testis tantum praecedebat, qui non facit iudicium, vel praesumptionem, ... Likewise in G. Durantis, Speculum iudiciale, I, IIII, nr. 92: quia cum duo sint necessaria, scilicit quod sint testes, et quod sint rogati: si unum desit, non valet quod agitur (in the context of testified documents).

13 Numbers 35:30, be it in case of homicide.

14 Which shows social reality behind the law. Governors may have too easily relied on the testimony of a social superior, assuming that whatever a plebeian might say, would not weight up against that and so it would be unnecessary to hear the latter.

15 M. R. Cimma, L’episcopalis audientia nelle costituzioni imperiali da Costantino a Giustiniano, Torino 1989, p. 61.

16   Matth. 22:21: ’Render therefore unto Caesar the things which are Caesar’s; and unto God the things that are God’s.’ The Church, as set out, had originally jurisdiction in purely religious matters. Setting aside the question of Sirm. 1, it did not have more later on and in the Frankish kingdoms, even in cases with private law interests. In the Middle ages its jurisdiction expanded over matters with an ecclesiastical interest, ratione causae over marriages, burials etc., church property. But that period is already of no interest.

17   O. Huck, À propos de CTh 1,27,1 et CSirm. 1. « Sur deux textes controversés relatifs à l’episcopalis audientia constantinienne », ZSS Rom.Abt. 120, 2003, 78–105.

18 C. Humfress, Orthodoxy and the Courts in Late Antiquity, Oxford 2007, p. 160-161: ‘It is plausible, given the context, that this ruling refers to a specific situation in which a bishop may have been called into a magistrate’s court to render an account of his judging, at the request of one of the parties involved.’ It is an interesting speculation, but the text does not give any hint in this direction: it is simply stated very generally, and it refers explicitily to testimonium. If there had been a case before a bishop, one would expect in case of a review, as in secular cases, the transfer of the documents and the protocol of the proceedings; there would be no need for testifying. Besides, it would still violate the general rule, since the parties would be debied, effectively, the right to testify too.

19   Underlining that the law must be applied: it may mean that in secular matters bishops had to restrict themselves to the law and not apply Christian rules.

20 C. Humfress, Orthodoxy and the Courts in Late Antiquity, Oxford 2007, p. 158–161.

21   Although it is indeed likely in view of the text that the emperor reminded the addressees of their duties, and that many constitutions are issued on the occasion of a particular case, this does not suffice. It does not provide us with the general rule which the text must comprise. Indeed, many constitutions do not explicitly institute a right or the like but seem rather to confirm. But that may have been the result of the codification process in which only valid constitutions were retained but also shortened, and the result of the way new rules were introduced, viz. in a response to a case or to a grown custom. Sirm. 1 must have contained a general rule too, or else it would have been senseless to collect (or concoct) it. What might complicate matters is the distance between moment of issue and moment of codification. The compilers had to collect general rules and it is beyond any doubt whatsoever that constitutions
in the Theodosian Code contained general rules. The original case may elucidate the rule applied,
but it may well be that the compilers read a different, or slightly different rule in the text. So it has, basically, less sense from the legal point of view to look solely for the original case behind the text. In this case the general rule would have been that judges had to confirm the bishop’s judgments and this rule, which had previously been issued, is now, thus the text, again promulgated (olim promulgatae legis ordinem salubri rursus imperio propagamus). If any general rule, then this, and Humfress mentions it indeed in the end.

22   M. Vessey, «The Origins of the Collectio Sirmondiana», in J. Harries, I. Wood (eds), The Theodosian Code, London 1993, p. 197. See I. Wood, The Merovingian Kingdoms 450–751, London/New York 1994, p. 71-101 on the strong position of the bishops in Gaul under the Visigoths and Merovingians; but he does not mention the episcopalis audientia.

23   J. F. Matthews, Laying Down the Law, New Haven/ London 2000, p. 123.

24 C. Humfress, Orthodoxy and the Courts in Late Antiquity, Oxford 2007, mentions this p. 161.

25 See R. S. Bagnall, Egypt in Late Antiquity, Princeton 1993, p. 195.

26   S. Mratschek, Der Briefwechsel des Paulinus von Nola, Göttingen 2002, p. 370–371.

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Auteur

A. J. B. Sirks

A. J. Boudewijn Sirks est Regius Professor of Civil Law de l’Université d’Oxford, Fellow of All Souls College (antérieurement professeur d'Histoire du Droit et de Droit privé à la J. W. Goethe-Universitaet Frankfurt am Main) ; ses champs de recherche sont : le droit romain (ancien, médiéval, réception), le droit byzantin, le droit colonial. Parmi ses publications : Food for Rome, Amsterdam, 1991 (reimpr. 2010) ; The Theodosian Code. A Study, Friedrichsdorf, 2007 ; W. J. Zwalve, A. J. B. Sirks, Grundzüge der europäischen Privatrechtsgeschichte. Einführung und Sachenrecht, Wien/Köln, 2012.

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