Chapter 1: The Shape of the Law
C. Major contours of the tradition
6. Is something missing? The problem of official definition, jurisprudence and
The phenomenon of core-formation may be understood as a very diffuse form of rule-
204 In the longer prologue, text in Schminck 1998,361
205 For an example of the latter, see Sbornik 252. Nikodemos, by including them in the Pedalion
(Kallivourtsis 1800), is thus following an old tendency in the manuscripts.
recogn nd hing a detailed official t, by e
ot even mention the corpus listing.210 The
canon i ole, as
lier, as already noted. Most likely it is simply confirming the place of Cyprian along with a
ition by turns reflects, explains, and perhaps enforces, the strikingly tenuous a desultory role of one very essential and normal element of most modern positivists theories of law: the assertion of a clear "official" authority to define the valid law.207
Only once in the canonical tradition does something approac
definition emerge: Trullo 2.208 It, however, can only very awkwardly and indirectly be cast as an exercise of true sovereign authority over the law, i.e. as an act of official definition of law in its strongest (modern) positivist sense.
First, although rarely noted, the canon is primarily addressed to a very specific problem – the status of the Apostolic Constitutions in the corpus – and not to corpus definition per se. The lengthy corpus delineation itself reads as almost an after-though and should probably be understood as a consequence of the broader problem raised the Apostolic Constitutions: the intrusion into the corpus of pseudepigraphal and fals material. This concern is precisely the focus of the canon's conclusion,209 and is how the synopsist reads the canon – he does n
s not therefore so much creatively or actively defining the law as a wh
clarifying the mainstream tradition (which already has authority) and tidying up around its edges in light of specific problems.
Second, as is often noted, its corpus delineation is little other than an
unremarkable confirmation of a corpus that had been in existence for at least a century: it seems more or less to read down the corpus list of the Coll14, as it stood in the late 7th C.211 The only thing it may be adding is Cyprian, since it goes out of its way to justify and explain its presence; but even this canon seems to have been in the tradition ear
few other peripheral patristic sources. Its general content and tone is thus almost entirely
207 This lack of a clear moment of official definition of the eastern corpus so upset 19th C canonists
(educated in modern civil and western canon law) that they invented one ("920"). See Appendix A (14).
208 The definition in Chalcedon 1 is probably specific in intention, but not in form; II Nicaea 1 does little
more than list the major types of legislation. Only one other more specific definition exists in the tradition, Novel 131.1, which confirms the dogmatic definitions and canons of the first four council updated in the 9th C in Basilica 5.3.2 to include the seven ecumenical councils. Even this imperial
definition, however, is 1) not especially comprehensive; 2) it reads as
s. It is only secondarily directed towards
s t role in per se – in particular, it is surprising how rare a four-council core
, is in the eastern tradition. Of course it undoubtedly contributed to the confirming the canons; 3) and it is mostly confirmatory in character: it sanctions and approves realitie already established. There is also little evidence in the texts that it played a particularly importan defining the shape of the corpus
structure, implied in Novel 131.1
corpus' definition, and may be read as another "marker" of the core.
209 ...καὶ μηδενὶ ἐξεῖναι τοὺς προδηλωθέντας παραχαράττειν κανόνας ἢ ἀθετεῖν ἢ ἑτέρους παρὰ τοὺς
προκειμένους παραδέχεσθαι κανόνας ψευδεπιγράφως ὑπό τινων συντεθέντας τῶν τὴν ἀλήθειαν καηπηλεύειν ἐπιχειρησάντων.
210 RP 2.311-312; so Aristenos.
traditional and deferential, "sealing" what has gone before.212 Although it may be attempting to bolster the authority of the Coll14 additions vis-à-vis the older Coll50
core, or simply to clarify the general tradition, it is certainly not working to modify or dramatically shape this tradition, and it is not granting authority to something that had none before. It is thus more recognizing the law than actively defining it: contributing, perhaps, to a broader process of definition and delineation, and further heightening and sharpen s, ther way aro ive , ing a previous growing consensus.
In fact, the canon's function is probably best read as garnering support for Trullo's own legislation: it is above all a proclamation of Trullo's fidelity to the canon and thus the legitimacy of its own canons – and not the canons' dependency upon its sovereign legislative "approval".213 Trullo is seeking the canons' approval, not the o
und. It is above all a statement of allegiance to the established tradition.214 The most important "strike", however, against reading Trullo 2 as a definit and categorical official definition of the law is simply its lack of influence on the tradition as a whole. It will never, for example, mark a particularly definitive corpus- boundary (i.e. there are few witnesses which embody the Trullo list as a definitive and obvious core215), and indeed the manuscripts and recensions often ignore its exact list and order of patristic fathers, its addition of Cyprian, and its prohibition of any other Apostolic material aside from the Apostolic canons. Certainly when the final shape of the core corpus does emerge, as we have seen, it is defined not by Trullo (or II Nicaea 1) but by a later anonymous recension of the Coll14. Finally, as we have seen, many much later listings of the "the canons" hail more to the Coll50, and not the Coll14 at all
212 The key dispositive, ἐπισφραγίζω (ἐπισφραγίζομεν δὲ καὶ τοὺς λοιποὺς πάντας ἱεροὺς κανόνας...) can
denote "ratify" – in the sense of putting into active force – but it can also simply mean seal in the sense of "confirm" or "recognize". (In the corpus, for something approaching the former, see Constantinople I Προσφωνητικός in Kormchaya 95; for the latter Carthage 55; see Liddell-Scott 663; Lampe 536-537) In the context of the previous canon, however, to which canon 2 is clearly written as an addition (ἔδοξεν δὲ καὶ τοῦτο τῇ ἁγίᾳ ταύτῃ συνόδῳ...), the latter meaning is much more natural: just as Trullo 1 proclaims its allegiance to the traditional doctrinal definitions of the church, so now the council proclaims its allegiance to the church's canonical traditions. Trullo 2 is thus no more truly putting into force or "defining" the canons than canon 1 is putting into force or defining the older doctrinal decisions. It is proclaiming its allegiance to them. Critically, in fact, Trullo 1 uses the term, among others, ἐπισφραγίζω, to "confirm" the older doctrines.
213 Some modern Orthodox canonists, influenced by modern civil law doctrine, have been included to
read in Trullo the affirmation of the positivist action of the absolute sovereign legislative authority of the ecumenical council (e.g. Archontonis 1970,20-21; Christopoulos 1976,255-266; Gavardinas 1998,136- 138). This is not the council's intention; see Appendix A (15).
214 See further chapter 2.B.4.
215 That is, that contain the following corpus: Apostles, Nicene Corpus to Chalcedon, Constantinople 394,
in any form, including Trullo! In short, no one seems to have been reading this canon as the "official" statement of the tradition.
Some scholars have recently seen this curious lack of "official" effect as evidence for Trullo's late or tenuous reception into Byzantine canon law, and have suggested that Trullo was not truly in force until as late as the 12th C.
s either diate,
is In
menical council, or that it had no canonical authori
216 We must be
careful, however, about imposing an excessively – and anachronistically – categorical and bivalent sense of legal validity and enactment, i.e. the idea that an a source i absolutely in force, or absolutely not, and that this is status is meant to have imme consistent, and system-wide consequences – and that a particular person or organ can determine this. This presumes a concept of a definitive, positive definition of the valid and in-force law. It is much preferable, however, to recognize that categorical,
authoritative "official" statements of the law are simply not part of the Byzantine canonical legal imagination – indeed they do not seem to be clearly a part of anyone's canonical-legal imagination before the high middle ages217 – and that "validity" in th world appears much more as a graded and fuzzy calculus of traditional weighting.218 this case, Trullo's effect and fortunes are perfectly normal, and even to be expected. New material, whatever its source, always starts outside the core of fully recognized traditional material, and needs to slowly work its way in. In this sense it is true that Trullo is not fully "accepted" until the 12th C – i.e. it is not absolutely clearly seen as itself expressive of the tradition until this point. But this does not mean that Trullo was not "accepted" per se as a real imperial ecu
ty (any more than would be true for the early papal decretals in the west, on account of their variability in the manuscripts). The evidence is quite the opposite.219
216 Sources Fathers; Fonti 2.xv-xx; Ohme 1990,332-44; 2006,34. The background of this assertion is the
interminable discussion of the "ecumenicity" of Trullo.
217 "Prior to the thirteenth century, the very idea of a canonical compilation drawing its authority from a
formal act of sovereign approval seems not even to have entered the mind of popes and canonists alike..." Kuttner 1947,387. The seeds of this new idea are perhaps to be found in the Gregorian concern for the papal approval of genuine church legislation, as Kuttner goes on to discuss. The first moment when a collection appears quite explicitly and certainly to have received some kind of "official" approval is Innocent III's confirmation of the compilatio tertia of Peter Collivacina in 1209/10; the first collection composed by official order seems to be Honorius III's compilatio quinta (1226). See Pennington 2008,309-312. Gratian, however, is not formally promulgated until the 16th C.
218 Cf. Burgmann 2003,252 n. 13, where it is noted that different levels of "officialness" could be
encountered in the Byzantine secular collections. The traditional distinction between "official" and "private" collections is Byzantine secular law is now increasingly questioned. See Appendix A (16).
219 For example, its citation in II Nicaea, in Leo's Novels, in citations at 861; see Dura 1995, Troianos
1995. In the west it seems that serious objections to Trullo's validity as a whole were not raised until the Gregorian reforms – and even afterwards the council sees a scattered reception (e.g. in Gratian). Sources Trullo; Laurent 1965,28-39.
By virtue of its newness, it is simply, and quite normally, a "softer" point in the tradition for some time. And so with its definition.
In sum, therefore, instead of a clear positivist action of sovereign legislative authority, a very different, much more diffuse – but no less real or effective – method o rule recognition seems to have been operative in the Byzantine canonical tradition. trying to find a theoretical formulation for this method, Rudolph Sohm long ago put his finger precisely on the central assumption of this system: in this world, authoritativ positive legislators do exist, but only in thepast.
f In
e
y,
authority over the rules. Instead, consensus must slowly build to reveal
ical
and
l jurisprudential activity per se is not hard to find.221 Indeed
can his
represent, as we will see, a modest level of jurisprudential production. The former
220 Only after a period of time can
legislation become clearly recognized as absolutely authoritative. Phrased differentl tradition itself is the only real sovereign positive agent; only it has categorical rule- recognition authority. As such, nothing today can acquire absolute recognition – no one living has
eventually the authority that "was" present in this or that legislative process. In practice, this process is thus very diffuse and seemingly almost unconscious. Curiously, the manuscript tradition itself seems to function as its most direct practical agent. Copy after copy, recension after recension, "the corpus" is slowly, and constantly, formed and defined.
The curious lack of instances of clear official positive definition of the canon sources points to a much broader and more conspicuous absence in the textual shape of the tradition: jurisprudence. Largely missing in Byzantine canon is a literature of the technical juristic discussion ofthe rules, their principles, their underlying concepts, their relationships with each other.
Evidence of canonica
, it is present in the canons themselves. As we will see in chapter three, canons can sometimes be written in almost commentary-like style on older regulations, and analyze in detail fine points of the nature and application of specific rules.222 T material itself may cautiously be considered instances of a very desultory "jurisprudential" literature.
Outside the canons themselves, the thematic collections and the synopsis also
220 Sohm 1923,2.75-77.
221 Unquestionably the early episcopal courts, attached to the civilian system, had constant contact with
broader secular jurisprudential processes. On the episcopalis audientia generally, see now especially Harries 1999,172-211 and Humfress 2007,153-173; also Wenger 1955,337-344. On the gathering of episcopal judgments as precedents, see Garnsey and Humfress 2001,77-78.
involve some sorting and classification, for example, and the latter do involve paraphrasing the canons. The extant scholia, if not all (or even mostly) within our period, witness to an ongoing process of explanation, reflection and even dissection the canons as a coherent of rules. At the very end of our period, Photius produces a se of canonical que
on t stion-and-answer,223 and, just after our period, Arethas writes two short treatise
ison
es,
or pronounced as the much more modest 7th-9th C Byzantine civil
jurispru nd
ristic
eferencing. Even the jurispru
r. f a
relief by its later emergence. In the 12th C, in particular, a sustained jurisprudential s on the transfer of bishops.224 Earlier, Theodore of Studite had composed a number of letters that are more or less canonical answers.225 A small work on the election of bishops, attributed to a certain Euthymius of Sardis, may also date to the early 9th C.226
But this production is very small, and hardly constitutes a sophisticated and sustained project – certainly not a literature. Unquestionably it pales in compar
with the extensive and advanced commentary work of the secular antecessors of the 6th C, which seems to have included a number of different genres of lectures, paraphras and case-examinations – to say nothing of the classical jurists227 It is not even as creative
dential activity, which still sees the development of comparatively creative a novel manuals, compilations and even monographs.228 If similar technical-ju
conversations around the canons were taking place, they have certainly not left much of a trace.
The material that is extant is also usually fairly practical and simple, hardly going much beyond clarification, indexing and cross-r
dence embedded in the patristic material and second-wave legislation does not emerge as in any way a sustained "scientific" or systematic jurisprudential endeavou It seems much more ad hoc, employed to deal with a problem or two, but not part o continued and sustained methodological enterprise.
This early absence of jurisprudential literature is thrown into particularly high
223 Grumel 1972-1991, #531, 539, 540, 542, 545. See Peges 253, also 154-156, 251, 256; Troianos
2003,763.
224 Ed.Westerink 1968,1.246-251. Peges 256.
225 Epistles 40, 487, 489, 525, 535, 549, 552 (ed. Fatouros 1992). Troianos 2003,763. 226 Ed. Darrouzès 1966,108-115. Peges 156, 256.
227 On the antecessors, the Greek schools, and their methods, Collinet 1925,243-256; Pringsheim 1921;
; Zepos 1958. Scheltema 1970; van der Wal 1953.
literature does emerge in the shape of three corpus commentaries.229 These join a number of increasingly detailed question-and-answer material and canon-legal
monographs that had been growing in number throughout the 11th C.230 Later practical handbooks and manuals also exhibit more creative patterns of selection and ordering, more in line with later Byzantine trends of excerpting and epitomizing.231 There is no
questio ure sticated e ianic es of
omponent of the tradition. The canonical traditio
n that Byzantine canon law does eventually acquire a kind of secondary literat of formal rule-commentary and rule-reasoning – even if never extensive or sophi in comparison to the post-12th C west.
In light of this later development, the earlier jurisprudential silence becomes almost deafening. The sudden 12th C flurry of commentary work is particularly mysterious: why now and not earlier? It is hard to imagine that the need to explain some of the archaic canons of, for example, Ancyra or Carthage, was so much mor pressing in the 12th C than the 9th C – or even the 6th C. Further, the 6th C Justin
and 9th C Macedonian spurts of secular legal activity surely recommend themselves as at least as obvious moments for the stimulation of a real canonical jurisprudential literature as the (relatively obscure) 11th C revival in secular legal learning the
presumably underlay the 12th canonical work.232 Most critically, the canons themselv give evidence that canonical jurisprudential thinking and activity was taking place during these earlier periods, and there is every reason to believe that, on the model the 6th C and 9th C literature, it could have if anything been more sophisticated and involved than what later emerged. But if it existed it simply did not form itself into a lasting and distinct literature, a regular c
n in our period overwhelmingly presents itself as simply a series of primary rules: a secondary discourse around these rules, although evidently occurring, does not textually congeal in a significant way.
229 Overview in Delineatio 108-112 and Peges 249-270 (see this last especially on the "fourth"
commentary, a reworking of Balsamon). The only monograph remains Kraznozhen 1911. See also Gallagher 2002, Pieler 1991, Stevens 1969, Stolte 1989, 1991, 1991a.
me
nd the latter proceeds through an exceptionally regular and rational progression of subjects.
230 Peges 250-258, 303-306, 308-315 gives the most recent and thorough survey; see also for further
references to the older literature Beck 1977,598-601, 655-662.
231 The best examples are the two 14th C collections, the Syntagma of Blastares (in RP 6) and the Epito
of Harmenopoulos (PG 150.45-168). The former adopts a method of organization known from earlier civil-law works (alphabetical listing of subjects; as found in the secular Synopsis Major and Synopsis Minor) a
232 On the 11th C revival see Angold 1994; Delineatio 98-104; Macrides 1990,68; Wolska-Conus 1976,
This lack of a distinct jurisprudential literature is undoubtedly connected to another gaping hole in the "shape" of early Byzantine canon law: professionalization.233 This is
een
ked something of the h
thing, but there ne
f
zantium.
(i.e. s d there seem to have been no regular and
widesp their
Even one of the few socio-political realities of Byzantine canon law to be broached in this work, but it is essential for explaining the tradition's peculiarities.
Unfortunately, the topic of Byzantine legal professionalization has never b the subject of sustained research, even in secular Byzantine law – much less so in Byzantine canon law. Nevertheless, a few central facts may be asserted with some confidence.
Byzantium did know secular legal professionalization, at least of a type. Late antiquity, with its well-known law schools and "bars" may have even mar
igh water mark of formal Roman legal professionalization, certainly on a scholastic level.234 After the 6th C legal professionalizaiton is notoriously difficult to trace in any detail, and the documentary trail at times fades to almost no
is little question that at least in Constantinople itself throughout much of Byzanti history one can detect professional notaries, advocates, and at least private teachers o law; at the very least, the concept of the legal professional is present.235
By contrast, it is far from clear that even the concept of a professional "canonist" or "canon lawyer", parallel to the secular lawyers and jurists, ever existed in By