to their norms for conjugal conduct: “pastoral care and penitential discipline.”29 Persuasion and moral chastisement on the topic of sexuality became a central concern of late antique preaching for lay audiences, a trend perhaps best represented in the sermons of John Chrysostom (d. 407).30 More germane to our interests, penitential punishments for sexual transgressions were incorporated prominently into ecclesiastical or canon law, the legal tradition developed by Christian bishops to regulate matters particular to the church. From a very early date, Christian communities had been preserving treatises, pseudo-apostolic teachings, patristic epistles, and proceedings of church councils written in Latin, Greek, and Syriac that set down regulations for church affairs. By the fifth century, this body of texts had come to constitute a coherent legal tradition distinct from the law of the state.31 Representative works of ecclesiastical law range from early church orders like the Didache, a second-century text that regulated the duties of the ecclesiastical hierarchy and liturgical administration, to the proceedings of the Council of Nicaea and other ecumenical synods of the fourth and fifth centuries that defined orthodox dogma. While ecclesiastical law fundamentally concerned church affairs, it also included under its purview prescriptions of a broadly moral character directed to laypeople, particularly concerning sexuality. Lacking the same prerogatives of enforcement as imperial law, the ecclesiastical tradition usually sought to punish transgressors with exclusion from Christian rituals and communal participation. So, for example, the canonical letters of Basil of Caesarea (d. 378) prescribe exclusion from the Eucharist for fornication, among a number of other sexual offenses.32
Just as Christian moral teachings played a role in at least some of the later Roman emperors’ legislation, secular Roman law influenced the ecclesiastical tradition in significant ways. Justinian’s civil codification project was almost assuredly a major model of emulation for the ecclesiastical jurisprudents of the Greek east who began to produce newly systematized collections of canon law in the sixth century; in the late sixth or early seventh century, furthermore, canon lawyers incorporated pieces of Roman law relevant to church affairs into those collections, producing the joint ecclesiastical-civil legal compendia that scholars call nomocanons.33 But however much late antique Roman and ecclesiastical law overlapped, they ultimately claimed parallel jurisdictions with respect to the Roman family. When ecclesiastical law addressed itself to sexuality and marital practices, it extended into a civil area traditionally under the authority of Roman law; but only the latter retained the constitutive power to render marriage valid as a legal relationship (not to mention other civil contracts and transactions). To take another example from Basil’s canons, the Church Father could stipulate that the church would not recognize as marriage the union of a man and his third wife, but Roman law would still accord the relationship validity.34 Basil could exclude fornicators at the church’s door, but visiting prostitutes remained lawful in the eyes of the imperium.35 To promote properly Christian sexuality, late antique ecclesiastical law sought to modify behavior within an ancient institution that continued to be governed by and partly understood in terms of civil traditions.
The degree to which ancient attitudes toward marriage and the family persisted into the Christian empire is most evident in local legal practices as represented in documentary evidence—marriage agreements, divorce settlements, and related documents preserved in a number of Rome’s eastern provinces, especially Egypt. Marriage in ancient civil law traditions was always in some sense a contractual arrangement, in that it was a legal relationship created by an agreement between parties (usually the spouses and their families), but the law did not require the contract to be written in order for it to be valid.36 Those inhabitants of the eastern Roman world who did record their marriages and related transactions in documents, however, have left us evidence of strong continuities in the legal practices attendant to marriage and the formation of households throughout the era of Christianization; they demonstrate the conservatism of the Roman institution of marriage, which in practical terms changed slowly in response to Christian perspectives and even to new civil legislation.37 Divorce is perhaps the most emblematic civil practice of which orthodox Christianity disapproved but which clearly endures in the documentary record. Though they are not ubiquitous, a sizable number of deeds of divorce in Greek and Coptic, with provisions for the remarriage of the divorced spouses, are extant from Egypt from the sixth century into the eighth.38 So, for example, a no-fault divorce deed of 569 from Upper Egypt between one Mathias and his wife, Kyra, blames their separation on “an evil demon.”39 A sixth-century Greek document from the Palestinian village of Nessana records a divorce in which one Stephan retains the dowry of his former wife, who had either separated from him without cause or committed some transgression and thus forfeited her property to him.40 In a case that would have horrified any well-schooled bishop, an Egyptian fisherman named Shenetom divorced his wife, married another woman, and married his daughter to his new wife’s son—all on a single scrap of papyrus.41 Two other documents from Nessana evoke from a different angle the centrality of Roman civil tradition to marriage in the Christian empire. Both are marriage agreements, one dated 537 and the other 558, in which the groom acknowledges receipt of a dowry from the bride’s family “according to Roman custom.”42 Nessana was “an outlying village” on the edge of the desert in the province of Palaestina Tertia.43 Like elsewhere in the Roman world, Nessana’s Christian institutions, including churches, a monastery, and their officials, were central to local life.44 In a provincial setting like this in the heavily Christian later empire, the fact that these marriage contracts explicitly invoke the Roman example (whatever the actual content of their law) underscores how the legal-practical aspects of marriage and social reproduction remained intimately connected to notions of Roman citizenship, imperium, and law.
It is important to note that even though civil law retained constitutive authority over marriage as a legal relationship, ecclesiastics played important roles in its administration. It would take several centuries for the Latin and Greek churches to develop a systematic theology of marriage as a sacrament, but by the fifth century it was standard in the eastern empire for clerics to bless first marriages.45 Furthermore, many of the scribes and judicial figures who administered civil law, including that of marriage, were themselves Christian clerics. Constantine had granted official recognition to ecclesiastical courts in 318, and a career in the church was a path to status in the later empire.46 As such, the local notables who traditionally drew up deeds and contracts or witnessed documents might frequently hold clerical positions. To take one of numerous examples from the Egyptian papyri, a marriage contract of 610 from Panopolis (modern Akhmim) was witnessed by two priests, Moses and Yohannes.47 But while they certainly played judicial roles in administering marriage law, we should not assume that all Christian clerics were invested in enforcing the high tradition’s teachings on marriage and sexuality to the letter. In handling legal affairs they were carrying on a civil tradition that had always been a duty of prominent local men and officials; in the later empire Christianization had simply brought clerics to overlap with those categories. Indeed, the involvement of Christian figures in marriages did not necessarily imply the eschewal of practices lawful in civil terms but unchaste in ecclesiastical ones. Another Greek Nessana document, from the period of Umayyad rule but rooted in pre-Islamic Roman and local practices, is instructive here. The document, written in 689, records a divorce effected when Nonna, the wife, gives up her dowry and other marital property to John, her husband and a priest.48 Three of the seven witnesses are clerics associated with the local monastery of Saints Sergius and Bacchus, and the scribe is the priest and future abbot Sergius son of George. Though it may appear incongruous to encounter so many clerics affixing their signatures to a document attesting to a marriage’s dissolution (not to mention the crosses and invocations of God’s grace with which they embellished it), it is not necessarily so. These individuals were churchmen, but they were also custodians of the enduring civil traditions, rooted in Nessana’s recent Roman past, that governed the formation, maintenance, and dissolution of marriage.49 Christian tradition taught a radically new sexual morality, the Church Fathers and other ecclesiastics promoted it among their flocks, and some Roman emperors took it seriously when they promulgated new laws; but these developments never completely reformulated the Roman institution of marriage in the terms of Christian morality. Old and durable civil frameworks
