Life of Saint Augustine (bishop of Hippo, fl. 354-430) and his letters give some idea as to what it meant to hold spiritual authority and at the same time pass “worldly” judgment. When Augustine sat in judgment, reports his contemporary biographer, Possidius, “he heard their cases carefully and dutifully.”45 In one of his letters, Augustine turns to his Roman legal adviser, Eustochius, with a question pertaining to hiring the labor of a certain child.46 In the same letter, Augustine refers to the “secular duties” of his court: “There even earthly judgments are sought from us, especially concerning the temporal lot of men.”47 Yet Augustine’s letter also attests to his incomplete grasp of Roman law, that is, civil law. He seeks the instruction of his addressee on a number of legal points: “I ask your most pure charity to be so kind as to instruct me what is to be observed concerning those who are born of a free woman and a male slave.” For the most part, however, Augustine was well informed about Roman law, as can be inferred from his ability to frequently cite it and his known collection of imperial constitutions.48
An important reason for the development of the episcopalis audientia as alternatives to secular imperial courts was their growing appeal among laypeople.49 In one of his letters to the Rogatist bishop Vincentius from 408, Augustine speaks of those who come before his judgment, stressing the dual nature of his sanction: “[S]hould they not, for their own good, be roused by a set of temporal penalties, as to make them come out of their lethargic sleep and awake to the health of unity? … For, if they were frightened but not taught, the compulsion would seem unjust.”50 The bishop’s authority was perceived by some as superior to that of secular courts, as his judgment was valued not only for its legal principles but also for its morality.51 Because of his ability to resort to sanctions that follow from his authority as congregational leader, the bishop had both secular and religious powers to rely on. Furthermore, in contrast to the imperial magistrate, the bishop’s office was not limited in its tenure.52 Ecclesiastical tribunals were relatively accessible and able to offer a short process of administering justice.53 In contrast to the ongoing chain of appeals characteristic of the secular institution, the episcopal tribunal was not an appellate institution.54 The point is made clear in the Sirmondian Constitutions, found in the Theodosian Code, yet presumably from an earlier date:
[T]he judicial decisions, of whatsoever nature, rendered by the bishops, without any distinction as to age [of the litigants], must be observed as forever inviolate and unimpaired, namely, that whatever has been settled by the judicial decisions of the bishops shall be considered as forever holy and revered. Therefore, all cases which are tried either by praetorian or by civil law, when settled by the decisions of bishops, shall be affirmed by the eternal law of permanence; nor shall any case be subject to review which the judgment of a bishop has decided.55
Constantine’s plan to extend the authority of Roman law by sanctioning ecclesiastical judicial power may have succeeded beyond expectations. By the sixth century, the tables had turned, as the imperial government found itself in competition with the episcopal system. It is plausible that one motivation for the Justinianic constitution of 530, insisting on the presence of the Gospels in every courtroom, was the fact that episcopal courts were becoming a preferred venue for litigation.56
Self-Help and Outside-Court Arrangements
It would be erroneous to view Roman Egypt as an exact model for how things worked elsewhere throughout the Eastern Roman Empire. At the same time, an examination of the judicial institutions of late Roman Egypt may prove useful for understanding the manner in which formal and non formal judicial institutions coincided. Its administrative setting included flourishing urban centers, the seats of governors and their apparatus, as well as diverse and vast rural settlements stretching along the Nile and throughout its delta.57 Whether the judicial institutions of late Roman Egypt were similar to those of other areas in the Near East is hard to determine; yet it is likely that the presence of Roman imperial administration next to that of local rural populations was not unique to Egypt.
Honoré, referring to the period following the extension of Roman citizenship, has argued that Roman provincial governors sought to implement Roman rule in a manner that would not provoke discontent within the provinces: “[Provincial governors] and other judges imposed the Roman legal system on the citizenry incrementally, and more cautiously in a province like Egypt that had its own well-developed legal institutions than in underdeveloped areas.”58 According to Christopher Kelly, the primary targets of appeasement were “local elites whose complicity was essential to the effective operation of government.”59
Yet in order to fully appreciate Roman measures, it is crucial to note that administrative concessions did not entail the creation of two (or more) autonomous legal orders. The example of the Babatha and Salome Komaise archives found by the Dead Sea suggest that even in the second century, local law was tolerated while at the same time adjusted to Roman law through the adoption of the conventional forms of Roman legal documents.60 Local institutions were thus able to sustain their station along that of formal courts as long as they continued to abide by Roman law, if only on the face of it.61
While landowners are likely to have dominated the rural landscape for some time, by the fourth century they were joined by the church as an administrative element that had to be taken into account by Roman provincial authorities as well. The church was gradually acquiring a central position in administrating judicial affairs. It was formally sanctioned to do so by the imperial government and thus served the agendas of Christianization and administrative adjustments. The evidence discussed by James Keenan, however, suggests that the church was also to be considered on account of its ever-increasing land holdings.62 Evidence of this comes from the archive of Dioscorus of the village of Aphrodito. By 538, Dioscorus’s father, Apollos, had become a monk, although he had not renounced his property. The monastery founded by Apollos provided the local village of Aphrodito with lands on which local farmers could live.63
Peter Sarris, in his study of the Apion estates in the region of Oxyrhynchus (in Upper Egypt) in the sixth century, has argued for a “highly standardized and professional character of Apion estate management” in which “legal proceedings … played a major part in social relations.”64 Sarris also showed that at the same time, the office of the chief regional tax collector, the pagarch, was held by members of the Apion family.65 Arthur Schiller has argued that the pagarch held some judicial authority, whether that of an ordinary judge or as someone who received complaints in the capacity of his administrative office.66 This fits the argument made by Sarris that landowners such as the Apions were “coming to dominate productive and social relations in the late antique Egyptian countryside.”67
Under such circumstances, a relationship of patronage, of mutual dependence existed between the landowner and his tenants. Patrons, however, were not necessarily landowners but members of an exclusive group of prominent individuals. Thus aristocrats, government officials, men of affluence, and landowners were all in a position to offer judicial services to their vassals in exchange for labor, produce, and, most important, loyalty.68 Such relationships are known to have prevailed in the late antique rural settlements of northern Syria and Egypt.
The career of Synesius of Cyrene (modern-day Libya) provides a useful illustration of the authority obtained by these aristocratic figures. As a member of one of the leading local families in the late fourth to early fifth century, Synesius took charge of military operations and administrative offices.69 He was able to do so by virtue of his high social ranking and land ownership. His later election to the office of bishop of Ptolemais in 411 does not change the basic fact of the matter: Synesius’s career was that of a local aristocrat who had assumed civil responsibilities at a moment of administrative change. These responsibilities, John Liebeschuetz tells us, entailed “occupying a position which had once been occupied by civic magistrates.”70
So far,
