also among the well-off, thanks to his jurisdiction over legal affairs of substantial monetary value.13 The latter development can be seen as part of Justinian’s policy of restraining the damage caused by the corruption of other parts of the imperial judiciary (see below).14
State tribunals were available to all citizens of the empire.15 For certain social sectors, however, these tribunals possessed a special appeal. After all, the laws of the empire were created and implemented by the same group that sought to control it.16 Humfress points to the attempts of “high-ranking men … to circumvent the spirit of the emperor’s legislation by using a mechanism readily available within Roman civil law itself … by naming a third party as a ‘legitimate’ heir” as a means for securing the property of illegitimate children.17 Referring to a lawsuit of Augustine’s close companion Romanianus (d. ca. 408), Peter Brown commented that “[l]itigation in the Roman Empire involved an assiduous quest for patrons; and Romanianus must have counted on the support of leading Milanese citizens to secure a favorable settlement at the imperial court.”18 For members of the imperial elite, the system offered an advantage, as they brought their lawsuits before a state court designed, operated, and used by their peers. In addition, despite the extension of citizenship to most of the empire’s subjects by 400, there were still those who had less to expect of the imperial judiciary. These “have-nots,” according to Humfress, included “the urban poor and rural poor, and a whole host of ever-shifting socio-legally defined types of marginalized individuals.” As such, as of the early fourth century, they could expect harsher sentences extending even to the realm of “savagery.”19
The extension of citizenship, promulgated through the Constitutio Antoniniana of 212 A.D., placed a greater portion of the empire under state jurisdiction; yet it also presented a threat.20 If governors wished to introduce state law in the provinces, they had to do so with caution lest they provoke local discontent.21 As a result, Roman legislators exercised leniency in their attempts to reconcile imperial laws with provincial legal practices.22 This leniency should not be solely attributed to a policy meant to avoid confrontation with provincial practices. Frequent complaints about the obscure nature of Roman law, its slow administration, high cost, and the personal and professional merits of the Roman judges did not add to the popularity of state courts.23
Here the question of cost was of crucial significance behind a decision as to whether to pursue a legal affair in an imperial court.24 The testimony of two “charge sheets” listing the fees of various bureaucratic services, which were found inscribed on late Roman governmental buildings in Timgad (modern Algeria) and Caesarea (Palestine), attest to the heavy financial burdens that litigation in imperial courts entailed.25 For a plaintiff in fourth-century Timgad, the initial cost of 121 modiee for a case would have been about four-fifths of the annual wheat consumption for a family of four. Or, in monetary value, 121 modiee equaled three to four solidi, a sufficient income for an individual to live on for several months.26 Furthermore, the fifth-century inscription from Caesarea shows that the privileged enjoyed reduced fees, while the unprivileged had to pay as much as twice the normal amount. Thus, a simple provincial litigant who chose to litigate in Caesarea had to pay approximately five solidi, “almost equal to the cost of feeding a person for one year.”27 Under such circumstances, it would not be surprising to find many Roman subjects litigating in alternative venues.28
The fifth-century Greek historian Priscus of Panium mentions in his History an encounter with a Greek-speaking former citizen of the Roman Empire. The latter’s criticism of the Roman legal system was expressed as follows: “The laws were fair and Roman polity was good, but … the authorities were ruining it by not taking the same thought for it as those of old.”29 Roman legislation and contemporary “rhetorical fashions” suggest that Roman judges were taking bribes, fixing cases in favor of powerful citizens, engaging in extortion, manifesting judicial negligence and incompetence, and even acting sadistically. That being said, there appears to be no real evidence that would suggest such a scale of judicial corruption, or even that corruption was on the rise.30
The Episcopalis Audientia
Late Roman ecclesiastical courts were recognized as formal judicial institutions by the fourth century. In contrast to civil magistrates, ecclesiastical judges drew their authority and legitimacy from both imperial recognition and spiritual reputation. It was in 318 under the rule of the first Christian emperor, Constantine (r. 306-37), that the episcopalis audientia, the episcopal tribunals, received the state’s formal recognition.31 Despite its marked religious character, the episcopal court shared two important features with contemporary secular institutions. First, its authority was sanctioned by the Roman government. Second, its formal inception took place parallel to that of the defensor civitatis and was thus in line with other imperial initiatives to extend Roman legal authority by empowering local institutions.32 Past scholars have viewed the formal sanction of the episcopalis audientia by Constantine as an expression of the emperor’s wish to comply with the Pauline command exhorting believers to take their lawsuits before judges designated by the church (1 Cor. 6:1-6). It is now acknowledged, however, that the motivation for this step was of a rather more mundane nature.33 While the elevation of the episcopal court may well have served the purpose of Christianizing an empire, the formal endorsement of the ecclesiastical judiciary can be seen as another form of administrative adjustment in which local elites were acting as agents of the imperial government.34
According to the New Testament and the church orders, the episcopalis audientia had already operated, albeit informally, prior to the reign of Constantine.35 An example of its operation in the pre-Constantinian era can be found in the activities of Cyprian, the third-century bishop of Carthage (d. 258). His letters attest to the legal procedures of hearing, consulting, and passing verdict in matters pertaining to offensive clergymen.36
Despite common features between the episcopalis audientia and secular imperial institutions, the episcopal judge differed from the civil magistrate in three significant points. First, whereas his jurisdiction was not purely religious, that of his secular counterpart pertained to civil matters only.37 Although not from its outset, the bishop’s court gradually came to possess jurisdiction over both civil and religious matters and was open to clergy and laymen alike. Second, ecclesiastical judgment, though rendered in the conventional form of a ruling, was, from a legal point of view, considered a form of arbitration.38 Finally, the bishop drew his authority from both the state and the faithful, thus fulfilling a temporal task in “an atmosphere charged with expectations of judgment that did not belong exclusively to the Roman world.”39
Constantine’s step toward a full state endorsement of the bishop’s court was also a step toward its incorporation within the imperial legal apparatus.40 By 355, bishops enjoyed the privilege of being tried only before their peers. By 411, this privilege had been granted also to clergymen and, by the time of Justinian, to monks and nuns as well.41 If laymen wished to litigate before an ecclesiastical judge, the consent of both litigating parties was required for the tribunal to be considered lawful. With time, however, lawsuits could be transferred to an episcopal court at the request of only one of the parties, even if the other party was not a Christian.42
The road leading to a full state acknowledgment of episcopal courts was not without obstacles. By the end of the fourth century, an attempt was made to restrict the episcopal jurisdiction by confining it to religious matters and insisting once more on the need for the consent of both parties to litigate before a bishop. Yet by the fifth century and, to a greater extent, in the sixth century, the state had begun to enforce the bishops’ decisions that pertained both to religious and civil matters.43 According to Tony Honoré, the transformation of the episcopal courts into another form of imperial judiciary, possessing jurisdiction over matters of civil law, was eased by the fact that many prominent Christians were legal experts.44
