clergy or monks, we may surmise that the expressions “unjust” and “unbelievers” refer to either secular or non-Christian figures.
By the end of the fourth century, “judges were no longer ungodly.”186 Whereas the New Testament addressed litigation outside the Christian community during the early phases of Christianity, The Apostolic Constitutions was composed in the post-Constantine era. By now, appearing before an ecclesiastical judge was a legitimate and legal judicial option. Written in Syria around the end of the fourth century, The Apostolic Constitutions is considered to be a comprehensive church order. It comprises earlier church orders such as the Didascalia, Didache, and the Apostolic Tradition.187 As such, it serves as a useful source for considering the early ecclesiastical position regarding Christian recourse to nonecclesiastical tribunals: “If by any management or temptation a contest arises with anyone, let him endeavor that it be composed, though thereby he be obliged to lose somewhat; and let it not come before a heathen tribunal. Nay, indeed, you are not to permit that the rulers of this world should pass sentence against your people; for by them, the devil contrives mischief to the servants of God and occasions a reproach to be cast upon us, as though we had not one wise man that is able to judge between his brethren (1 Cor. 6:1, etc.) or to decide their controversies.”188
Whereas the aforementioned Pauline passage uses expressions such as “unjust” and “unbelievers” to denote illegitimate judges, the passage in The Apostolic Constitutions refers to such judges as “heathen” and “rulers of this world.” Yet there is a greater ideal than turning to the “saint” instead of “rulers of this world”: “by suffering loss in the affairs of this life, thou wilt be sure not to suffer in the concerns of piety, and wilt live religiously, and according to the command of Christ.” The believers are called upon to endure loss and thus avoid contention as an act of piety and fulfillment: “In fact, to have lawsuits at all with one another is already a defeat for you. Why not rather be wronged? Why not rather be defrauded?”189
The concept is repeated once more in The Apostolic Constitutions, now in a harsher tone: “But if brethren have lawsuits one with another, which God forbid, you who are the rulers ought thence to learn that such as these do not do the work of brethren [in the Lord], but rather of public enemies; and one of the parties will be found to be mild, gentle, and the child of light; but the other unmerciful, insolent, and covetous. Let him, therefore, who is condemned be rebuked, let him be separated, let him undergo the punishment of his hatred to his brother.”190 The true believer, the “mild, gentle, and the child of light,” has no lawsuits. In contrast, a person who pursues lawsuits is considered a “public enemy … unmerciful, insolent, and covetous,” and therefore must be cast out of his community.
Examples of the application of these principles can be found in early Christian question-and-answer literature, legislation, and treatises on normative Christian behavior. A letter from the aforementioned collection of questions and answers of sixth-century Tawatha contains a question about the proper conduct in a case of legal contention, which is met with this answer: “Strive, to the best of your ability, to be reconciled quickly; for it is a sign of the perfect not to be troubled by temptations that come upon them. The weak person, however, if he postpones reconciliation, later arrives at it and ends up regretting the matter; then, instead of blaming himself, he turns to blaspheme against God and loses his soul. Thus the following words are fulfilled in that person: For what does it profit one to gain the whole world and forfeit one’s life?” (Matt. 16:26; Mark 8:36).
Once more, the idea of refraining from contention as the ideal solution to legal conflict is attested. The point is also found in a number of passages in the Liber Graduum. Yet in the latter, as the author of this work addresses groups of different levels of piety, he is aware that not all are capable of performing the entire set of commandments. Thus in chapter 11, he guides the perfect one, who is to set an example for other believers:
Do you want to become perfect? Pursue the great commandments. But pay attention, because if you prescribe these minor and major commandments to a person, he will not be able to observe them all at once, unless he leaves one in order to observe the other…. [O] ur Lord said, Do not judge (Matt. 7:1); and he [also] said, If the member refuses to listen to them, tell it to the church (Matt. 18:17). If both of them are [intended] for you, which one will you choose? … Therefore, these commandments, which do not judge anyone and love everyone, are spoken to the strong…. These minor [commandments] are spoken to the young and imperfect.191
The passage above suggests that although passing judgment is to be avoided, there are still those in the church who require it, as they have not “matured” but are “young and imperfect.”
Such ideas may help us view early Christian canon laws exhorting believers, predominantly clergy, not to take their lawsuits outside the church. An objection against contention in court, whether presided over by an ecclesiastical judge or a layman, was shared throughout the Christian world. Yet there was a pragmatic recognition, even in the New Testament, that such ideals could not be imposed upon all believers. If a lawsuit were to arise, it was to be kept within the community and not brought before secular judges. Even in the fourth century, Roman bishops issued canons against clergy taking their lawsuits outside the church. Silvester (fl. 314-35) and Julius (fl. 337-52) had both decreed that clerics should not enter a court for any reason and should keep their legal concerns within the church.192 A canon from the East Syrian synod of 484, held in the city of Bēt Lapat—a summer residence of Sasanian monarchs—states: “As to a clerk or a monk [bar qyāmā w-dayrāyā], when he has a legal claim against a secular [‘ālmā], he may not voluntarily and under no coercion turn to the tribunal of the outsiders [barrāyē]: Whoever goes out and willingly does so, and is found guilty, thus committing himself to the oaths [taken] before pagans [ḥanpē] or gives an ecclesiastical oath, will be listed in a particular book. He shall be received after pleading and giving penance according to the rules of the priests.”193
In 576, Canon 5, issued at a synod of the East Syrian Church, refers to members of the Christian community who defy ecclesiastical judgment by seeking refuge outside the church:
It is said in the synod that there are people who are excluded from the church on account of their disobedience with regard to what is proper; they then cling to their defiance and their infidelity, seeking refuge among the pagans [ḥanpē] and the secular [‘ālmānāyē]; they trouble those who have excommunicated them. They demand pardon though they do not deserve it. With regard to their matter, this synod has decreed that until they become obedient and do the proper thing, they shall remain outside the church under affliction and penitence for a certain time, whereupon they shall be forgiven.194
The context in which these canons were given is unknown. Chapters 3 and 5 of this volume try to uncover the identity of the nonecclesiastical judicial authorities mentioned here. For now, it would be useful to note the principal approaches of Christian leaders toward non-Christian judiciary and the signs of early ecclesiastical efforts to impose judicial exclusiveness.
Jewish Attitudes toward Non-Jewish Judiciary
The Mishnah’s discussion of the validity of deeds issued in non-Jewish courts is the earliest rabbinic reference to the use of non-Jewish courts in late antiquity: “All documents that are accepted in heathen courts, even if they who signed them were Gentiles, are valid [for Jewish courts] except writs of divorce and of emancipation. Rabbi Shim‘on says: These also are valid; they were only pronounced [to be invalid] when drawn up by unauthorized persons.”195
The Mishnah expresses an ambivalent opinion on the question of non-Jewish courts for the purposes of validating deeds. According to
