Chapter 1: The Shape of the Law
A. A preliminary problem: codicology
This question of the "shape" of the tradition immediately raises the problem of how the tradition was physically present and encountered by contemporaries, i.e. publication forms, size, circulation, typical manuscript contents, and text layouts. In other words, it immediately raises the problem of Byzantine canon-legal codicology.
Unfortunately, a codicological description and analysis of Byzantine canon law has never been performed. In fact, it is surprisingly difficult to find even basic
codicological information in the modern literature: the physical shape of the tradition has never been a primary focus of interest. This neglect is so dissonant with our own priorities that it requires some explanation.
The basic problem is disciplinary: cultural history simply does not think codicologically. Rarely does a discussion of Byzantine theology, for example, start with the question of what a typical Byzantine "theological manuscript" looked like, what it contained, and how it was structured – or even if it existed. Instead, one tends to begin and end analyses with individual texts, extracted from the manuscripts, and possibly reconstructed. This tendency is driven by two major disciplinary trends, both of which are broadly problematic for our study.
First, modern historicism has tended to treat texts as anchored so firmly in original contexts that one can easily ignore their later historical relationships with each other and how, over time, texts become incorporated into larger cultural-intellectual wholes. One instead focuses on discrete text, at one discrete moment.
Second, and even more critically, an atomistic approach to ancient texts is strongly reinforced by the ideal of the modern critical edition. This ideal – as evident in all the major primary source series – has tended to encourage the isolation and
instead of reading whole manuscripts, and individual texts within the literal "con-texts" of the manuscripts, scholars tend to read, via the critical apparatus, single texts across
different manuscripts. The disposition of the relevant texts in the manuscripts – how often they are found, where they are found, next to what and how often, in what form, with what breaks and with what scholia – is distinctly side-lined. The question can hardly even be asked how these factors might inform our understanding of how the texts were read and how the texts, in their manuscript setting, constituted (or did not
constitute) a particular thought-world.
This discouraging of interest in how texts were physically synthesized and related to one other in the manuscripts – and by extension, in the cultural tradition itself – has encouraged re-synthesizing and re-ordering these texts in relation to each other in ways that may have little resonance with the priorities, interests or textures of the historical cultural tradition itself. A classic example of such a re-synthesis would be a "history of ideas" survey of ancient theology or philosophy that systematically traces the development of various discrete concepts and ideas through a patchwork juxtaposition of texts with little attention to whether the texts in question were ever much read at all, whether they were associated with each other, and whether they lend themselves to such systematic conceptual presentation in the first place. In canon law, the 19th C Orthodox manual tradition represents such a re-synthesis. The canonical manuals systematically extract rule content from the traditional texts and reorganize them under doctrinal headings derived from western canon and civil law. The historical shape of the tradition is important only for clarifying and purifying the individual "sources" of this
reconstruction – not for the architecture of the system as a whole.
Further problems are presented by the extreme interest of critical editions in restoring only "original" texts – texts as found at one point in time, their origin.1 This again distracts attention from how texts develop over time, and thus how the texts were related to each other and digested over time – critical issues for cultural history. The effect of these editions is to present not what ancient readers were actually reading – the critical starting point of cultural-historical analysis – but what modern scholars think ancient readers should have been reading. The entire ancient textual tradition thus becomes a huge montage of reconstructed, disembodied semi-hypothetical "originals",
1 For broader critique of the concept of an "original" text, and the related ideas of "original meaning" see,
which may bear very little resemblance to what most, or even any, exemplars of the text actually look like.2
This concern for originals also promotes a text-editing culture which sees variations and accretions as a "problem" that must be, and can be, penetrated, excised and dismissed in order to get to the "real" text. Sometimes this real text might not even be an original, but simply those core elements of a text which are of particular interest of the editor. In Byzantine canon law, Périclès-Pierre Joannou's edition of the canons, at present the best critical edition, provides an example of this tendency.3 It first disembodies or "cleans up" the tradition, stripping the canons of their traditional manuscript structures, appendices, indices, and scholia.4 It then goes on to include a source that is not found in any Byzantine canonical manuscripts,5 adds numerous rubrical headings not commonly encountered,6 and boldly re-arranges the sources such that the Apostolic canons are found prefaced to the "patristic" material – a disposition never encountered in the tradition, and quite contrary to its spirit. The result is
something that is neither particularly close to anything in the manuscripts, nor, indeed, to any "original". These actions make sense in light of Joannou's primary interest – providing modern Catholic codifiers with the most important Byzantine canonical sources – but they do not result in a particularly useful window onto the Byzantine canonical tradition itself.
In this respect, the older, and often inaccurate, edition of J.B. Pitra is superior.7 Although the overall form of the edition does not attempt to approximate any Byzantine manuscript, Pitra was careful to include the standard "framing" texts of the manuscripts (prologues, systematic indices), some of the introductory apostolic materials, some appendix material, and some scholia.8 The much more accurate editions of
Beneshevich are also more useful and reliable inasmuch as they attempt to convey t whole of specific "originals": the original version of the Coll50 and the "Tarasian
he
2 An excellent example is Scripture: it can come as a surprise to many scholars that even the New
Testament only rarely forms a single physical book in the Greek manuscript tradition, and that the Catholic epistles almost always precede the Pauline. Metzger 1981,54-56; Parker 2008,70-81.
3 Turner 1899 is another example; the concern to compare texts has made it difficult to determine exactly
what any one collection looks like.
4 Even one set of "prologue" material, for Constantinople, is missing; see Appendix B (2).
5 Constantinople 869 in Fonti 1.1.289-342. Joannou carefully notes, of course, that this is an addition. 6 See Appendix B (2).
7 Criticism of Pitra's text is widespread: see Funk 1905,1.xxiii; Sources Introduction; Stolte 1998a,184;
and above all Sbornik 24-25 and Sin 20-21, et passim. Even casual use of the text will reveal many small errors.
8 Beneshevich is also quite critical of Pitra's edition of the scholia (2.642-655): "крайне
recension" of the Coll14.9 Beneshevich is also concerned to convey scholia, albeit separated from the main body of the texts.10 The best representative of the shape
texture of the tradition is, however, Rhalles-Potles, the least critical of the major modern editions. It roughly approximates the typical order and content of a fairly full late
Byzantine manuscript, with prologues, systematic index, full corpus with comment and appendix materials – although without scholia.
and
ators,
11
The modern text-critical emphasis on the original, or even specific recensions, not only results in texts that do not necessarily look much like typical examples, but also entails the ingress of subtler assumptions of printed-text culture. Print-cultures tend to think of texts first and foremost in terms of discrete recensions, on the model of separate editions and printings of modern publishing.12 This encourages us to think about change in texts in terms of distinct moments of "official" publication, and thus in terms of very discrete, intentional stages of development. Manuscripts, however, suggest a much more gradual and continual mechanism of textual change: each manuscript copying is in a sense a new recension or a new edition, and variation is easily found – and tolerated – manuscript-to-manuscript. Texts thus emerge as much more fluid, "living" phenomena than in printed-text cultures, subject to constant change over time. This demands attention, then, not simply to specific moments in the text's history, points of dramatic change, but also to slow and gradual patterns and tendencies
in textual shaping over time. Further, to appreciate the intellectual-cultural world of these texts, the values and characteristics of print-cultures, such as absolute precision, accuracy, identity of texts, attention to detail, and intentional logical change, must not distract from appreciating the dynamics of manuscript cultures: the gradual, the graded, the general, the similar, the subtle, the unconscious. This sensitivity is particularly critical in legal studies, where many of the values of modern legal culture (precision, strict definition, categorical application, logical systematization, newer texts
immediately abrogating the old) are closely intertwined with those of modern print- culture.13 Doing law in a manuscript culture is a very different proposition from doing law in a print culture.
9 Syn and Kormchaya.
10 Syn 157-190; Sin 250-268; Sbornik 145-149; Sbornik (Prilozhenie) 3-80.
11 This faithfulness to the manuscripts accounts for its continued dominance in Orthodox canon law
studies. See Appendix A (1) for details.
12 For what follows, see especially Parker 1987, also Eggert 1991, Jeffries 2008,92, Ong 1982 and Stolte
1998a,187 (on the "living" nature of the nomocanonical recensions).
13 Changes in writing technology have not infrequently been connected with changes in legal culture. See
All of these codicological problems have not been entirely neglected in the modern disciplines of Byzantine law and Orthodox canon law, but they have not drawn much attention.14 The chief result of this is that the study of Byzantine canon law, like the study of western canon law, tends to be centered around source surveys that take as their central and fundamental narrative unit the individual source or collection, extracted and reconstructed out of the manuscripts, understood as constituting discrete published wholes, and analyzed almost exclusively in terms of original compositional context (author, place and date), discrete recensional stages, and narrowly-conceived source relationships with one another, i.e. the derivation of individual constituent texts.15 Pieces of the manuscripts are thus privileged over wholes, compositional practices over reception and editing, and diversity over continuity. Broader morphological and substantive patterns across the manuscripts and collections and how these patterns suggest a broader cultural-legal world – our very concern in this chapter – tend not to be considered at all. The "shape" of the tradition, as encountered by most of its historical readers, becomes very difficult to discern.
Unfortunately, redressing these problems is not easy. Codicological analysis of Byzantine canon law also faces considerable practical challenges.
The first problem, for our period, is simple and glaring: the extant manuscripts all date from the 9th C or later. The very earliest Greek canon law manuscript is usually dated to the early 9th C.16 This is at precisely the end of our period of examination. We thus have no direct codicological window onto most of our period of interest: we have no physical witnesses to the shape of the tradition.
This problem is probably less serious than it first appears. One of the
fundamental characteristics of the Byzantine canonical tradition, as we will see, is its extreme conservatism and stability. Combining Beneshevich's careful text-
archeological reconstructions of pre-9th C recensions of the Coll14 (and to a lesser extent, the Coll50), pre-9th C Latin and Syriac witnesses which often reflect older Greek originals, external textual witnesses, and various processes of extrapolation, it is
possible, as we will see, to make very good guesses about the basic form of Byzantine canon law texts prior to the 9th C. At the very least, one can extrapolate back to fundamental patterns and dynamics of the manuscript tradition, if not specific forms.
14 The main exception is Burgmann 2002.
15 So, for example, Delineatio and Peges in the east; Gaudemet 1985, Maassen 1871, Reynolds 1986,
Stickler 1950 in the west.
16 Patmos 172. Stolte, however, has reported finding an early 8th C, possibly late 7th C, fragmentary
More problematic, in fact, is simply the practical state of affairs of modern Byzantine legal codicology. Thanks to the efforts of the research group "Edition und Bearbeitung byzantinischer Rechtsquellen", founded in 1974 by D. Simon, virtually every known Byzantine legal manuscript, secular and ecclesiastical (at least until c. 1600, but later ones have also been included; in total ~1000 manuscripts), has now been microfilmed and gathered at the Max-Planck-Institut für europäische Rechtsgeschichte in Frankfurt.17 An excellent and detailed manuscript description project is underway. But the volume on canon law has yet to be completed, and as a result it is still difficult to ascertain with absolute certainty even fairly basic information about codicological content (i.e. distribution of collections, predominate forms of collections, etc). Until such time as this volume is completed, we must rely on a patchwork of older,
sometimes unsatisfactory and incomplete catalogues, editions, descriptions and source- histories – and, of course, a sampling of the manuscript themselves.18 This data is already sufficient to allow at least basic conclusions about the major contours of the tradition, our primary concern here; but many points of detail must remain tentative.
B. The tradition takes shape: a survey of the textual history of Byzantine canon law