N. 5 – 2006 – Memorie



St. Petersburg State University





So called “narrative” approach to the history, which appeared in the last quarter of the XX century can be expressed by the title of Averil Cameron’s book “History as a text[1]. However, as we think, the thesis vice versa “text as a history”  can also take place. It can be applied to liturgical and especially to hymnographic or church-poetic texts, which can reflect the realities of their epoch. It is not just to regard a church-poetical text as an element of a literary game[2], for it was very often not only a sign, but a military banner. It is enough to give a characteristic example: when  emperor Anastasius wanted to add the words “crucified for us” to Trisagion (Holy God, Holy Mighty, Holy Immortal) a rebellion outburst in Constantinople and rebels demand: «Romania should have another emperor». Hymnographic monuments should reflect historical reality at least in value of a religious maxim, expressed in the dogma of the IV Ecumenical (Chalcedonian) Council: «We confess One and the Same Christ, perfect in Divinity, perfect in humanity … in two natures without confusion, without change, without separation, without division»[3].

The dogma about the incarnation not only rehabilitate the earthly and human in their rights, opening the perspective of Sacred history, but it also introduced the human history in the frames of sacred one, which was understood as a divine-human existence of the Church.

As we see below, reflecting the human history and life of society also imply the reflection of law thought and a number of law collisions. But there was also another reason for that, for the history of the world was understood as a certain suit between God and creation. The term “martyr” in Greek prototype of this word appeals to the category of trial, for martu;s means an eye-witness and it means the bloody witness for the trial between the God Saviour and the creation, perishing because of its pride and wickedness. This court examination should be finished with the Last Judgment. It is very significant, that the liturgical texts regard the latter in categories of Roman law realities.  Let us remember the end of  a suffrage during the liturgy – Let us ask the good apology before the terrible tribunal of Christ – (kai; kalh;n ajpologivan  th;n ejpi; tou` foberou` bhvmatos tou` Cristou aithswvmeqa)[4]. The word bh`ma  corresponds to tribunal, a place, where a Roman judge was sitting. The 6 troparion of the 4  Ode of the canon of Doomsday Sunday is even more eloquent:


[Etavsew" ginomevnh"

kai; biblivwn ajneogmevnwn

tw`n pepragmevnwn

tiv poihvsei", w\ yuch’ talaivpwre;

tiv ajpologhvsei" ejpi; Bhvmato",

mh; e[cousa dikaiosuvnh" karpou; " prosavxai

tw`/1/ Cristw/ kai; Plavsth sou;

When the inquisition is held

 And books are opened

With what you have done,

What will you do

Oh, poor soul?

How will you apologize  before the Tribunal

If you don’t have the fruits of righteousness

To bring to Christ, your Creator?[5]


Here we see the realities of Roman trial:  bivbloi  the books (or rather scrolls),  Roman libelli where the witnesses and most important facts, were written down, bh`ma, or tribunal (Latin Praesidium), and at last – e[tasi" (inquisition – Latin inquisitio). Most of the scholars agree that the process in the later Emperor Rome had an inquisitive character.

If we regard hymnographic texts on a more deep level, we see the mutual correlation of theological and law terms, for Greek divkaio" (righteous) is correlated not only with Hebrew Biblical tsadiq, but also with Latin justus. Let us take another aspect of possible influence of Roman law. If we regard the famous statement of Ulpianus «The emperor is free from observance of the law», we see that this maxim is comparable with Theotokion of the 4 Ode of the Great Canon: «Where God wants, the order of nature is won, for He makes, what He wants». – (Qeo;" oJ{pou qevlei, nika`tai  fuvsew" tavxi", poiei` ga;r o{sa bouvletai)[6]. Of course, we don’t assert  that St. Andrew of Crete directly depends on Ulpianus, but we can speak here about a certain community of ideas of power – both divine and imperial one, about the ability of supreme Sovereign to abolish principal laws for the sake of  “philanthropy” and common weal. Here we can speak with a certain reservation about the common field of ideas, connected with community of cultural background.

Therefore we can suppose that Byzantine liturgical tradition and Church poetical texts include themes and images, connected with the Roman legal tradition, which were rather actual.

First of all it concerns the subject directly connected with Roman law – conviction and crucifixion of Christ. It was understood in early Christian homiletic and liturgical tradition both in terms of  God-killing, and insult of majesty. Melito of Sardes, who often uses early Christian hymnographic text in his homily “About Easter” (Peri; Pavsca), express the idea of crucifixion as insult of majesty obviously and clearly. 


`O krem£saj t¾n gÁn kršmatai.                        Who hung the Earth is hanged     

`O p»xaj toÝj oÙranoÝj pšpektai.                    Who nailed  heavens is nailed

`O sthr…xaj t¦ p£nta ™pˆ xÚlou ™st»riktai.    Who fixed everything is fixed  on the tree,

     `O despÒthj parÚbristai.                           The  Master was insulted

     `O qeÕj pefÒneutai.                                     God was killed,

     `O basileÝj toà 'Isra¾l ¢nÇretai                The King of  Israel is killed

        ØpÕ dexi©j 'Israhl…tidoj.                      With right hand of Israel[7].


Greek word despÒthj corresponds to Latin dominus, or absolute Emperor[8]. Therefore the crime of Jews was not only killing of God, but also injuria majestatis.

This tradition continues in the XV antiphon of Matins of Great Friday, which was probably written  in  IV-V в.


Shvmeron krema`tai ejpi; xuvlou             Today hangs on the tree,

oJ ejn u{dasi th;n g`hn kremavsa"      who hung the Earth on waters    

Stevfanon ejx ajkanqwn peritivqetai     The King of Angels

oJ tw`n ajggevlwn Basileu;"                      is crowned with a crown of thorns.

Yeudh` porfuvran peribavlletai             Who dresses the sky with clouds

oJ peribavllwn to;n oujrano;n ejn nefelai`"  is dressed with false purple[9].


The same antiphon contains a certain reality connected with the procedure of emancipation:


Ravpisma katedevxato,                                    Who liberated Adam in Jourdan

oJ ejn jIordavnh/ ejleuqrerwvsa" to;n  jAda;m        received a slap in the face.


This text means a well-known Roman custom: during manumission of a slave he was given the last slap in the face, after which he considered to be free. Let us give as an example a fragment from the 81 Novel of  Justinian: For long ago the action of emancipation took place at so called legis actionis and they were rid from bounds with insults and slaps in the face[10].  

So, Christ, being the King of Angels, receives the slavely «last slap in the face» in order to liberate the man-slave.

But this text also admits another understanding. The number of legal possibilities of manumission is increased in Christian époque. One of them was spiritual adoption: a master could liberate a slave, if he became his God-father. As a norm of a written law this way of  manumission appears in Ecloga for the first time[11], but as a custom it existed earlier and it based on Roman legal tradition of adoption.

A number of Byzantine hymnographers show a close link with  Roman legal thought in their work. Among them one should mention St. Roman the Melode (490-560), who began his career of a deacon in Beirut, where  a famous school of jurisprudence. No doubts, that St. Roman was deeply influenced by this school, for his hymns (kontakia) very often show  clear legal thought and his skills of advocate or even an investigator.

Let us bring just one characteristic episode from the kontakion “About Joseph”, namely groundlessness of Joseph’s accusation in attempt of rape

E„ frÒnhsin ecen,    oÙk ¨n tÕn dÒlon œlaqe·

          krit¾j ™gšnou ¥frwn·    tù 'Iws¾f

m£rtuj Øp£rcei Ð citèn·    poà oân Øp£rcei

          ™reÚnhson, kaˆ blšpe    e„ pist» ™sti·

e„ œfugen aÙtÒn,    pîj katšcei toÚtou stol»n; 

If he had reason,  he would not be deceived

Having become a silly judge of Joseph.

The witness of event is  his garment. Where was it

Investigate and see, whether your wife was right.

If she escaped, how could she take his garment?[12]


St. Roman the Melodist often reflects legal conflicts, for example his kontakion “About monastic life” show the clash between powerful landlords (kthvtore") and poor peasants.


`Uyauce‹ kat¦ pšnhtoj ploÚsioj,    katesq…wn aÙtoà p©san Ûparxin·

     kopi´ gewrgÕj kaˆ Ð kt»twr trug´·    ¥llou k£mnontoj, ¥lloj eÙfranetai·

ƒdrîn sun£gei Ð penÒmenoj    na mÒcqJ komshtai § skorpzei· 

And the rich boasts over the poor, devouring all his estate

The peasant toils and the landlord crops. One works and another rejoices

The poor collects with sweat, which will be given to unworthy and wasted[13].


The picture represented by St. Roman is very vivid and realistic. Ruling of Justinian, especially thirties of the VI century were very unfavorable for poor peasants, which suffered severely from  arbitrariness of landlords ((kth`tore"). Governors of provinces freely practiced horrible abuses of power and blackmail. Likaoina, Lycia, Cappadocia and Pontus were captured with obvious robbery: landlords applied violence toward petty  landowners and increased their estates at their expense. Even Church properties were not free from capture. All these disasters produced complaints of refugees to the capital[14].

Forms of oppression of small peasants were different, apart obvious seizures peasantry suffered severely from money-lending, if peasants were helped with corn during failure of crops, they were often deprived of their land. Here is witness of 32 novel of Justinian.

We understand that it is necessary to cure with common law that horrible action, which exceeds every impiety and greedy plunder. We learned, that some persons of the province, you govern, dared during failure of crops to lend corn according to the smallest measure and to take all the land of debtors, so some of peasants escaped, and other were perishing  of hanger and it was really a horrible disaster not less than a barbaric invasion[15]. Justinian tried to take active measures against money-lending, fixing the interest not more than 8 percents per year [16].

Roman law and Roman legal practice enriched the system of  images of Byzantine hymnography. Let us regard the following example from the 34 kontakion (renunciation of Peter), where Christ says to St. apostle Peter.


      taÚtV g¦r k£lamon labèn,    ¥rcomai gr£fein

          sugcèrhsin p©si    to‹j ™k toà 'Ad£m·

¹ s£rx mou, ¿n Ðr´j, ésper c£rthj    g…neta… moi,

          kaˆ tÕ aŒm£ mou mšlan    Óqen b£ptw kaˆ gr£fw,

          dwre¦n    nšmwn ¢di£docon    to‹j kr£zousi·

          Speàson, sîson,    ¤gie, t¾n po…mnhn sou.

Having taken the cane * I begin to write

Forgiveness to all * descendants from Adam.

My flesh, which you see * will be like parchment.

And my blood will be ink * I shall dip in and write

uninheritable settlement * to those who cry

Hurry and save  your holy flock[17].


So redemption is understood as writing of  settlement (donatio), and this donation cannot be inherited (ajdiavdocos).

And dramatical events connected with death of the son of the widow from Zarephath are interpreted in terms of legal process and bringing an action about crime (delictum).


M£la mn ™krate‹to ØpÕ c»raj    Ð krat»saj nefîn te kaˆ tîn Ômbrwn

     kaˆ sune…ceto    ØpÕ m…aj Ð toÝj ¤pantaj    sunšcwn di¦ ·r»matoj·

gun¾ panaqla,    p£shj ¥moiroj dun£mewj,

     tÕn lÒgJ kaˆ dun£mei    oÙranoÝj kraten nomzonta    krate‹ æj kat£dikon,

kaˆ sumplakesa manikîj    æj fonša ej krit»rion

kaqelke kraug£zousa·    «DÒj moi gÒnon Ön œkteinaj·

oÙ crÇzw toà ¢leÚrou sou·    m¾ qršyV me nomzwn    <genšsqai fil£nqrwpoj.>

Artoujn tÍ gastrmou katasperaj    tÕn karpÕn tÁj gastrÒj mou kaˆ tÕn kl£don

     xerrzwsaj,    kaˆ pwlej moi <>    t¦ dîra t¦ brèsima·

yuc¾n ¢ntˆ ¢leÚrou    kaˆ ™laoumeqÒdeusaj·

     gë duswpî se    ¢natršyai tÕ sun£llagma    kaˆ doànai Ö œlabej·

And then the widow held him, who was holding clouds and rains

And one woman seized him, who seized all with his word.

A poor woman, * deprived any power,

was holding like a criminal him, * who considered to hold heavens.

And catching him fiercely  she was drawing him like a killer in court

crying “give me the son, which you have killed”

I don’t need you flour, don’t feed me, thinking that you are  philanthropic

You have sowed breads in my stomach, but you  have torn out the fruit

 and branch of my womb. * And so you sell me the victual presents

you have cunningly bought the soul for flour and oil?

I pray you to cancel this contract * and give what you have taken[18].


This original interpretation of biblical events reflects an obvious influence of  Roman  law and Roman legal procedures. If the Biblical text (1 Kings, 17, 17-24) regards the death of  the widow’s sun just as divine punishment and a prophet is just his messenger[19], here the widow considers the prophet the murder of his son, brings an action against him according to accusation in murder and she herself brings him to trial according to Roman legal conceptions.

In the process of court examination the widow puts a question about the measure of profit and measure of damage brought by the prophet. The measure of  profit, brought by Elijah cannot be compared with the damage (you have taken the soul for flour and oil). Moreover, the prophet’s behaviour is interpreted  both as unfair purchase and sail (you sells victuals for soul) and unfair  fulfillment of contract’s conditions by a tenant (Artouj ™n tÍ gastr… mou kataspe…raj    tÕn karpÕn tÁj gastrÒj mou kaˆ tÕn kl£don      ™xerr…zwsaj – You have sowed bread in my womb, but you  have torn out the fruit of my womb). These relations are determined as sun£llagma  or contractum – a bargain, which is unfair. The demand of a widow to break the bargain can be interpreted  as restoration of initial position (de in integrum restitutionibus)[20].

These examples show, how deeply the Roman law influenced the Byzantine hymnography both on ideological and artistic level. Of course, the total  investigation of this influence will demand considerable efforts, but it will be very useful both for the history of law and for the history of mentality.




[1] A. Cameron, History as a text, Oxford 1991.


[2] This position is typical for works of Kazhdan and Liubarsky.


[3] ` tÕn aÙtÕn Ðmologe‹n uƒÕn tÕn kÚrion ¹mîn 'Ihsoàn CristÕn sumfènwj ¤pantej ™kdid£skomen, tšleion tÕn aÙtÕn ™n qeÒthti kaˆ tšleion tÕn aÙtÕn ™n ¢nqrwpÒthti, ™n dÚo fÚsesin ¢sugcÚtwj ¢tršptwj ¢diairštwj ¢cwr…stwj gnwrizÒmenon  Concilia Oecumenica.  Concilium universale Chalcedonense anno 451, ed. E. Schwartz, Acta conciliorum oecumenicorum, vol. 2.1.1-2.1.3. Berlin: De Gruyter, 2.1.1-2.1.2:1933; 2.1.3:1935 (repr. 2.1.1-2.1.2:1962; 2.1.3:1965):  T.2. V. 1. Pars 2., 130. 


[4] See the Greek Texts in  JIeratiko;n,  jAqh`nai  1994, 36.


[5] Triw/vdion katanuktiko;n,  jAqh`nai 1994, 30.


[6] Triw/vdion katanuktiko;n. ...  302.


[7] See O. Perler, Méliton de Sardes. Sur la Pâque et fragments // Sources chrétiennes, T. 123, Paris: Cerf, 1966, 104.


[8] Of course, a Roman emperor of this time was called princeps, but attempts to name princeps as dominus were made since the time of Octavianus Augustus.


[9] Triw/vdion.... 448-449.


[10] e„ g¦r ¹ tÁj emancipationoj pr©xij p£lai mn ØpÕ t¦j kaloumšnaj legis actionaj ginomšnh meq' Ûbrewn kaˆ rapism£twn ¢p»latten aÙtoÝj tîn toioÚtwn desmîn. Justiniani Novellae. // Corpus iuris civilis, Vol. 3, ed. R. Schöll et W. Kroll, Berlin: Weidmann, 1895, 397.


[11] Kai; pavlin, o{ dou`lo" ejqeleuqerou`tai, ejan oJ kuvrio" tou` hj kuriva hj ta; tevkna aujtw‘` sugcwrhsavntwn

tw`n gonevwn ejdevxanto to;n dou`lon ejn tw`/ aJgivw/ kai; swthriwvdh baptivsmati

And again, a slave becomes free, if his master or lady or their children with permission of their parents received the slave during holy and saving baptism. Ecloga. Title 8. Paragraph 4.


[13] See Romanos le Mélode. Hymnes / ed. J. Grosdidier de Matons, vol. 5, Sources chrétiennes T. 128, Paris 1981, 245.


[14] See Ju. Kulakovsky, Istoria vizantiiskoi imperii (The history of Byzantine Empire), Vol. 2., St. Petersburg 1997, 210.


[15] Pr©gma deinÕn kaˆ p£shj ™pškeina kaˆ ¢sebe…aj kaˆ pleonex…aj ginÒmenon sune…domen nÒmJ qerapeàsai koinù... œgnwmen g¦r éj tinej ™pˆ tÁj ™parc…aj Âj ¥rceij ™tÒlmhsan ™pilabÒmenoi toà kairoà tÁj ¢for…aj toà s…tou d£neisma pr©xai prÒj tinaj ™p' ™lac…stJ mštrJ karpîn kaˆ t¾n aÙtîn labe‹n gÁn ¤pasan ¢nt' aÙtoà, éste toÝj mn tîn gewrgîn feÚgein, toÝj d diafqarÁnai limù, dein»n te gegenÁsqai fqor¦n oÙdn tÁj barbarikÁj ™pidromÁj ™l£ttona.  Justiniani Novellae. // Corpus iuris civilis. Vol. 3, 239.


[16] 32 Novel. Ibid. 240.


[17] 34. Strophe 7. Ved.: Romanos le Mélode. Hymnes, Vol. 4, ed. J. Grosdidier de Matons, Sources Chretiennes 128, Paris 1967, 120.


[18] Kontakion. 7. Strophe 20. See. Romanos le Mélode. Hymnes, ed. J. Grosdidier de Matons, vol. 1, Sources chrétiennes  99, Paris 1964, 230.


[19] O thou man of God? Art thou come unto me to call my sin to remembrance, and to slay my son? (1 Kings, 17, 18).


[20] Digestae. Liber IV. Titulus 1.