N. 5 – 2006 –
Memorie
REFLECTION OF THE ROMAN LEGAL TRADITION
IN THE MONUMENTS OF BYZANTINE HYMNOGRAPHY
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
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
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
Let us
bring just one characteristic episode from the kontakion “About
Joseph”, namely groundlessness of Joseph’s accusation in attempt of
rape
E„
frÒnhsin ecen, 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 eÙfra…netai·
ƒdrîn sun£gei Ð penÒmenoj †na mÒcqJ kom…shtai § skorp…zei·
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.
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
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
mn ™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 d panaql…a, p£shj ¥moiroj dun£mewj,
tÕn lÒgJ kaˆ dun£mei oÙranoÝj krate‹n nom…zonta krate‹ æj kat£dikon,
kaˆ sumplake‹sa manikîj æj fonša e„j krit»rion
kaqe‹lke kraug£zousa· «DÒj moi gÒnon Ön œkteinaj·
oÙ crÇzw toà ¢leÚrou sou· m¾ qršyV me nom…zwn <genšsqai fil£nqrwpoj.>
”Artouj ™n tÍ gastr… mou kataspe…raj tÕn karpÕn tÁj gastrÒj mou kaˆ tÕn kl£don
™xerr…zwsaj, kaˆ pwle‹j moi <> t¦ dîra t¦ brèsima·
yuc¾n ¢ntˆ ¢leÚrou kaˆ ™la…ou ™meqÒdeusaj·
™gë d 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.